LEASE AGREEMENT
OFFICE AND INDUSTRIAL SPACE
This Lease Agreement is made and entered into as of the 6th day of October,
1999, by and between GB Ventures ("Landlord"), whose address is 0000 Xxxxx Xxxx
Xx. #000, Xxxxxxx. XX 00000, and Heska Corporation ("Tenant"), whose address is
0000 Xxxxxxxx Xxxxxxx, Xxxx Xxxxxxx, XX 00000.
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 Xxx Xxxxxxxx, Xxxx Xxxxxxx,
Xxxxxxxx. 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 C, E, G, H, I, J in Building 0000 Xxxxxxxx Xxxxxxx
consisting of Approximately 18,529 square feet, all
3. Base Term. The term of this Lease shall commence at 12:00 noon on May 1,
2000 , and, unless sooner terminated as herein provided for, shall end at 12:00
noon on May l, 2005 ("Lease Term"). Except as specifically provided to the
contrary herein, the Leased Premises shall, upon the termination of this Lease,
by virtue of the expiration of the Lease Term or otherwise, be returned to the
Landlord by the Tenant in as good or better condition than when entered upon by
the Tenant, ordinary wear and tear excepted.
4. Rent. Tenant shall pay the following rent for the Leased Premises:
A. Base Monthly Rent. Tenant shall pay to Landlord, without notice and
without setoff, at the address of Landlord as herein set forth, the following
Base Monthly Rent ("Base Monthly Rent"), said Base Monthly Rent to be paid in
advance on the first day of each month during the term hereof. In the event
that this Lease commences on a date other than the first day of a month, the
Base Monthly Rent for the first month of the Lease Term shall be prorated for
said partial month. Below is a schedule of Base Monthly Rental payments as
agreed upon:
During Lease Term
=================
For Period To Period A Base Monthly
Starting Ending Rent of
Tenant shall take occupancy of 0000 Xxxxxx Xxxxx Xxxxx Xxxxxx X/X (0000 sf) on
May 1, 2000
May 1, 2000 June 1, 2000 $5,708.45 NNN
Tenant shall take occupancy of 0000 Xxxxxx Xxxxx Xxxxx Xxxxxx X, X, X, X (12,127
sf) for a total square footage of 18,529 sf as of June 1, 2000.
June 1, 2000 May 1, 2005 $16,521,69/month NNN with
annual CPI Adjustments on:
May 1, 2001;
May 1, 2002;
May 1, 2003; and
May 1, 2004.
B. Lease Term Adjustment. If, for any reason, other than delays caused
by the Tenant, the Leased Premises are not ready for Tenants occupancy on May 1,
2000 for Suites C/E and June 1, 2000 for Suites G, H, I, J, the Tenant's rental
obligation and other monetary expenses (i.e. taxes, utilities, etc.) shall be
abated in direct proportion to the number of days of delay. It is hereby agreed
that the premises shall be deemed ready for occupancy on the day the Landlord
receives a T.C.O. or C.O. from the appropriate authority, or on the day the
Landlord gives Tenant the keys to the Leased Premises if a building permit has
not been applied for and/or is not required by the appropriate authority.
C. Cost of Living Adjustment. The Base Monthly Rental specified in
paragraph 4A above shall be recalculated for each Lease Year as defined
hereinafter following the first Lease Year of this Lease Agreement. The
recalculated Base Monthly Rental shall be hereinafter referred to as the
"Adjusted Monthly Rental". The Adjusted Monthly Rental for each Lease Year
after the first Lease Year shall be the greater of: (i) the amount of the
previous year's Adjusted Monthly Rental, (or the Base Monthly Rental if
calculating the Adjusted Monthly Rental for the second Lease Year), or (ii) an
amount calculated by the rent adjustment formula set forth below. In applying
the rent adjustment formula, the following definitions shall apply:
(1) "Lease Year" shall mean a period of twelve (12) consecutive full
calendar months with the first Lease Year commencing on the date of the
commencement of the term of this Lease and each succeeding Lease Year commencing
upon the anniversary date of the first Lease Year; however, if this Lease does
not commence on the first day of a month, then, the first Lease Year and each
succeeding Lease Year shall commence on the first day of the first month
following each anniversary date of this Lease;
(2) "Bureau" shall mean the Bureau of Labor Statistics of the United
States Department of 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 Xxxxxxxx-Xxxx, 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 Rental = Revised Price Index X Base Monthly Rental
=========================================
Base Price Index
Notwithstanding the above formula, the Adjusted Monthly Rental shall not be less
than 103% or greater than 106% of the previous year's Adjusted Monthly Rental,
or the Basic Monthly Rental if such adjustment is for the Second Lease Year.
The Adjusted Monthly Rental as herein above provided shall continue to be
payable monthly as required in paragraph 4A above without necessity of any
further notice by the Landlord to the Tenant.
D. Total Net Lease. The Tenant understands and agrees that this Lease is
a total net lease (a "net, net, net lease"), whereby the Tenant has the
obligation to reimburse the Landlord for a share of all costs and expenses
(taxes, assessments, other charges, insurance, trash removal, Common Area
operation and maintenance and like costs and expenses), incurred by the Landlord
as a result of the Landlord's ownership and operation of the Area. 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 Sixteen Thousand Five Hundred Twenty Two Dollars ($16,522.00) 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
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, upon 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.
6. Use of Premises. Tenant shall use the Leased Premises only for Office,
warehouse, Laboratory, Light Manufacturing, Assembly 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 satisfactory to
Landlord. No storage of any material outside of the Leased Premises shall be
allowed unless first approved by Landlord in writing, and then in only such
areas as are designated by Landlord. Tenant shall not commit or suffer any
waste on the Leased Premises nor shall Tenant permit any nuisance to be
maintained on the Leased Premises or permit any disorderly conduct or other
activity having a tendency to annoy or disturb any occupants of any part of the
Area and/or any adjoining property.
7. Laws and Regulations. - Tenant Responsibility. The Tenant shall, at its sole
cost and expense, comply with all laws and regulations of any governmental
entity, board, commission or agency having jurisdiction over the Leased
Premises. Tenant agrees not to install any electrical equipment that overloads
any electrical paneling, circuitry or wiring and further agrees to comply with
the requirements of the insurance underwriter or any governmental authorities
having jurisdiction thereof.
8. Landlord's Rules and Regulations. Landlord reserves the right to adopt and
promulgate rules and regulations applicable to the Leased Premises and from time
to time 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.
9. Parking. If the Landlord provides off street parking for the common use of
Tenants, employees and customers of the Area, the Tenant shall park all vehicles
of whatever type used by Tenant and/or Tenant's employees only in such areas
thereof as are designated by Landlord for this purpose, and Tenant accepts the
responsibility of seeing that Tenant's employees park only in the areas so
designated. Tenant shall, upon the request of the Landlord, provide to the
Landlord license numbers of the Tenant's vehicles and the vehicles of Tenant's
employees.
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 $1,961.00 until the Landlord
receives the first tax statement for the referred to properties. Thereafter,
the monthly payments shall be based upon 1/12th of the prior year's taxes and
assessments. Once each year the Landlord shall determine the actual Tenant's
Prorata Share of taxes and assessments for the prior year and if the Tenant has
paid less than the Tenant's Prorata Share for the prior year the Tenant shall
pay the deficiency to the Landlord with the next payment of Base Monthly Rent,
or, if the Tenant has paid in excess of the Tenant's Prorata Share for the prior
year the Landlord shall forthwith refund said excess to the Tenant.
Additionally, upon Lease expiration or termination Landlord shall also determine
Tenant's Prorata Share of taxes and assessments for the calendar year in which
the Lease expires or terminates based on the most recent valuation and estimate
of taxes provided by Boulder County. If the Tenant has paid less than the
Tenant's prorated Prorata Share for the current year the Tenant shall pay the
deficiency, or, if the Tenant has paid in excess of the Tenant's prorated
Prorata Share for the current year the Landlord shall forthwith refund the
excess to the Tenant.
B. Personal Property Taxes. Tenant shall be responsible for, and shall
pay promptly when due, any and all taxes and/or assessments levied and/or
assessed against any furniture, fixtures, equipment and items of a similar
nature installed and/or located in or about the Leased Premises by Tenant.
C. Rent Tax. If a special tax, charge, or assessment is imposed or
levied upon the rents paid or payable hereunder or upon the right of the
Landlord to receive rents hereunder (other than to the extent that such rents
are included as a part of the Landlord's income for the purpose of an income
tax), the Tenant shall reimburse the Landlord for the amount of such tax within
fifteen (15) days after demand therefore is made upon the Tenant by the
Landlord.
D. Other Taxes, Fees and Charges. Tenant shall pay to Landlord, on the
first day of each month, as additional rent, Tenant's Pro Rata Share of any
"Other Charges" (as hereinafter defined) levied, assessed, charged or imposed
against the Area, as a whole. Unless paid directly by Tenant to the authority
levying, assessing, charging or imposing same, Tenant shall also pay to
Landlord, on the first day of the month following payment of same by Landlord,
the entire costs of any such "Other Charges" levied, assessed, charged or
imposed against the Leased Premises, Tenant's use of same, or Tenant's conduct
of business thereon. For purposes of this provision, "Other Charges" shall mean
and refer to any and all taxes, assessments, impositions, user fees, impact
fees, utility fees, transportation fees, infrastructure fees, system fees,
license fees, and any other charge or assessment imposed by any governmental
authority or applicable subdivision on the Area, the Leased Premises or the
ownership or use of the Area or Leased Premises, or the business conducted
thereon, whether or not formally denominated as a tax, assessment, charge, or
other nominal description, whether now in effect or hereafter enacted or imposed
(excluding, however, Landlord's income taxes).
E. Should Landlord protest and win a reduction in the real estate taxes
for the Building and 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.
12. Insurance.
A. Landlord's Insurance. Landlord shall obtain and maintain such fire
and casualty insurance on the core and shell of the Building in which the Leased
Premises are located and the Common Areas, as well as such loss of rents,
business interruption, liability or any other insurance, as it deems
appropriate, with such companies and on such terms and conditions as Landlord
deems acceptable. Such insurance shall not be required to cover any of Tenant's
inventory, furniture, furnishings, fixtures, equipment or tenant improvements
(whether or not installed on the Leased Premises by or for Tenant and whether or
not included within the tenant finish provided by Landlord), and Landlord shall
not be obligated to repair any damage thereto or replace any of same, and Tenant
shall have no interest in any proceeds of Landlord's insurance.
B. Tenant's Insurance. Tenant shall, at its sole cost and expense,
obtain and maintain throughout the term of this Lease, on a full replacement
cost basis, "all risk" insurance covering all of Tenant's Inventory, furniture,
furnishings, fixtures, equipment and all tenant improvements or tenant finish
(whether or not installed by Landlord) and betterments located on or within the
Leased Premises. In addition, Tenant shall obtain and maintain, at its sole
cost and expense, comprehensive general public liability insurance providing
coverage from and against any loss or damage occasioned by an accident or
casualty on, about or adjacent to the Leased Premises, including protection
against death, personal injury and property damage. Such liability coverage
shall be written on an "occurrence" basis, with limits of not less than
$1,000,000.00 combined single limit coverage.
All policies of insurance required to be carried by Tenant hereunder shall
be written by an insurance company licensed to do business in the State of
Colorado, and shall name Landlord as an additional named insured and/or loss
payee, as Landlord may direct. Each such policy shall provide that same shall
not be changed or modified without at least thirty (30) days' prior written
notice to Landlord and any mortgagee of Landlord. Certificates evidencing the
extent and effectiveness of all Tenant's insurance shall be delivered to
Landlord. The limits of such insurance shall not, under any circumstances,
limit the liability of Tenant under this Lease.
In the event that Tenant fails to maintain any of the insurance required of
it pursuant to this provision, Landlord shall have the right (but not the
obligation) at Landlord's election, to pay Tenant's premiums or to arrange
substitute insurance with an insurance company of Landlord's choosing, in which
event any premiums advanced by Landlord shall constitute additional rent payable
under this Lease and shall be payable by Tenant to Landlord immediately upon
demand for same. Landlord shall also have the right, but no the obligation,
whether or not Tenant maintains coverage to carry any such insurance as Landlord
may elect in order to provide coverage in the event Tenant fails to properly
maintain such insurance.
The rights of Landlord hereunder shall be in addition to, and not in lieu
of, of any other rights or remedies available to Landlord under this Lease or
provided by law or in equity. Without limiting the foregoing, in the event that
coverage of any risk for which Tenant is responsible pursuant to this Section 12
is ultimately provided by coverage maintained by Landlord, whether due to
Tenant's failure to provided or maintain such insurance or otherwise, Tenant
shall promptly reimburse Landlord for an amount equal to any deductible
incurred, immediately upon demand for same.
C. Tenants 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 canceled without thirty (30) days prior written
notice thereof being given to Landlord.
D. Tenants 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 $108.00
until changed by Landlord as a result of an increase or decrease in the cost of
such insurance.
E. Mutual Subrogation Waiver. Landlord and Tenant hereby grant to each
other, on behalf of any insurer providing fire and extended coverage to either
of them covering the Leased Premises, Buildings or other improvements thereon or
contents thereof, a waiver of any right of subrogation any such insurer of one
party may acquire against the other or as against the Landlord or Tenant by
virtue of payments of any loss under such insurance. Such a waiver shall be
effective so long as the Landlord and Tenant are empowered to grant such waiver
under the terms of their respective insurance policy or policies and such
waiver shall stand mutually terminated as of the date either Landlord or Tenant
gives notice to the other that the power to grant such waiver has been so
terminated.
13. Utilities.
A. Tenant shall be solely responsible for and promptly pay all charges
for heat, water, gas, electric, sewer service and any other utility service used
or consumed on the Leased Premises. For all utility services used or consumed
on the Leased Premises which are included in utility services to an area larger
than the Leased Premises, 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 $1,521.00
for building water, electric and gas service to the HVAC system. 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. Additionally, upon Lease expiration or termination Landlord shall
also determine Tenant's Prorata Share of the annualized actual costs of the
foregoing expenses for the number of days the Lease is in effect during the
calendar year in which the Lease expires or terminates. If the annualized
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
annualized actual costs to the Landlord, or, if the annualized actual costs are
less than the estimated costs, the Landlord shall forthwith refund the excess
payment to the Tenant. For purposes of calculating Tenant's share of expenses
under this paragraph, annualized actual costs shall be the sum of actual costs
for the year at the time of reconciliation plus the total estimated costs
prorated for the number of days from the date the last actual cost was paid to
the end of the year. For all utility services used or consumed on the Leased
Premises in which the utility service is used solely on the Leased Premises, 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 xxxx 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.
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 immediately and without any delay.
B. Landlord Controls Selection. Landlord has advised Tenant that
presently Public Service Company of Colorado ("Utility Service Provider") is the
utility company selected by Landlord to provide electricity and gas service for
the Building. Notwithstanding the foregoing, if permitted by Law, Landlord
shall have the right at any time and from time to time during the Lease Term to
either contract for service from a different company or companies providing
electricity and/or gas service (each such company shall hereinafter be referred
to as an ("Alternative Service Provider") or continue to contract for service
from the Utility Service Provider.
C. Tenant Shall Give Landlord Access. Tenant shall cooperate with
Landlord, Utility Service Provider, and any Alternative Service Provider at all
times and, as reasonably necessary, shall allow Landlord, Utility Service
Provider, and any Alternative Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, gas lines, and any other
machinery within the Premises.
D. Landlord Not Responsible for Interruption of Service. Landlord shall
in no way be liable or responsible for any loss, damage, or expense that Tenant
may sustain or incur by reason of any change, failure, interference, disruption,
or defect in the supply or character of the electrical and/or gas energy
furnished to the Premises, or if the quantity or character of the electric
and/or gas energy supplied by the Utility Service Provider or any Alternate
Service Provider is no longer available or suitable for Tenant's requirements,
and no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under the Lease.
14. Maintenance 0bligations of Landlord. Except as herein otherwise
specifically provided for, and not including capital improvement. Landlord
shall keep and maintain the roof 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
actions or inactions of Tenant.
E. Cutting Roof. Tenant must obtain in writing the Landlord's approval
prior to making any roof penetrations. Failure by Tenant to obtain written
permission to penetrate a roof shall relieve Landlord of any roof repair
obligations as set forth in Paragraph "14" hereof. Tenant further agrees to
repair, at its sole cost and expense, all roof penetrations made by the Tenant
and to use, if so requested by Landlord, a licensed contractor selected by the
Landlord to make such penetrations and repairs.
F. Glass and Doors. The repair and replacement of all glass and doors on
the Leased Premises shall be the responsibility of the Tenant. Any such
replacements or repairs shall be promptly completed at the expense of the
Tenant.
G. Liability for Overload. Tenant shall be responsible for the repair or
replacement of any damage to the Leased Premises, the Building or the Area which
result from the Tenant's movement of heavy articles therein or thereon. Tenant
shall not overload the floors of any part of the Leased Premises.
H. Liability for Overuse and Overload of Operating Systems. Tenant shall
be responsible for the repair, upgrade, modification, and/or replacement of any
operating systems servicing the Leased Premises and/or all or 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. Inspection of Leased Premises - "As Is" Conditions. Tenant has
inspected the Leased Premises and accepts the Leased Premises in the condition
that they exist as of the date of this Lease, including, but not limited to, all
mechanical, plumbing, and electrical systems and the conditions of the interior
except: No Exceptions.
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 costs
plus a ten percent (10%) overhead charge therefore shall be charged to Tenant as
additional rental and shall become payable by Tenant with the payment of the
rental next due.
16. Common Area Maintenance. Tenant shall be responsible for Tenant's Prorata
share of the total costs incurred for the operation, maintenance and repair of
the Common Areas, including, but not limited to, the costs and expenses incurred
for the operation, maintenance and repair of parking areas (including restriping
and 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; costs to cover Landlord's management fees
paid for the property. These costs shall be estimated on an annual basis by the
Landlord and shall be adjusted upwards or downwards depending on the actual
costs for the preceding twelve months. Tenant shall pay monthly, commencing
with the first month of the Lease 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 $1,350.00. Once each year the Landlord shall determine the actual costs of
the foregoing expenses for the prior year and if the actual costs are greater
than the estimated costs, the Tenant shall pay its Tenant's Prorata Share of the
difference between the estimated costs and the actual costs to the Landlord with
the next payment of Base Monthly Rent, or, if the actual costs are less than the
estimated costs, the Landlord shall forthwith refund the amount of the Tenant's
excess payment to the Tenant.
Additionally, upon Lease expiration or termination Landlord shall also determine
Tenant's prorated Prorata Share of the annualized actual costs of the foregoing
expenses for the number of days the Lease is in effect during the calendar year
in which the Lease expires or terminates. If the annualized actual costs are
greater than the estimated costs, the Tenant shall pay its prorated Tenant's
Prorata Share of the difference between the estimated costs and the annualized
actual costs to the Landlord, or, if the annualized actual costs are less than
the estimated costs, the Landlord shall forthwith refund the excess to the
Tenant. For purposes of calculating Tenant's share of expenses under this
paragraph, annualized actual costs shall be the sum of actual costs for the year
at the time of reconciliation plus the total estimated costs prorated for the
number of days from the date the last actual cost was paid to the end of the
year.
17. Inspection of and Right of Entry to Leased Premises--Regular, Emergency,
Reletting. Landlord and/or Landlord's agents and employees, shall have the right
to enter the Leased Premises at all times during regular business hours and, at
all times during emergencies, to examine the Leased Premises, to make such
repairs, alterations, improvements or additions as Landlord deems necessary, and
Landlord shall be allowed to take all materials into and upon said Leased
Premises that may be required therefore without the same constituting an
eviction of Tenant in whole or in part, and the rent reserved shall in no way
xxxxx while such repairs, alterations, improvements or additions are being made,
by reason of loss or interruption of business of Tenant or otherwise. During
the six months prior to the expiration of the term of this Lease or any renewal
thereof, Landlord may exhibit the Leased Premises to prospective tenants and/or
purchasers and may place upon the Leased Premises the usual notices indicating
that the Leased Premises are for lease and/or sale.
18. Alteration-Changes and Additions-Responsibility. Unless the Landlord's
approval is first secured in writing, the Tenant shall not install or erect
inside partitions, add to existing electric power service, add telephone
outlets, add light fixtures, install additional heating and/or air conditioning
or make any other changes or alterations to the interior or exterior of the
Leased Premises. Any such changes or alterations shall be made at the sole cost
and expense of the Tenant. At the end of this Lease, all such fixtures,
equipment, additions, changes and/or alterations (except trade fixtures
installed by Tenant) shall be and remain the property of Landlord; provided,
however, Landlord shall have the option to require Tenant to remove any or all
such fixtures, equipment, additions and/or alterations and restore the Leased
Premises to the condition existing immediately prior to such change and/or
installation, normal wear and tear excepted, all at Tenant's cost and expense.
All such work shall be done in 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. 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 Tenants 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 Tenants
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 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. Nothing in this Lease will
require Tenant to indemnify, hold harmless or release Landlord for 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 the Landlord hereunder.
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, except if
caused by Tenant's negligence, and said Leased Premises are not rendered
untenable 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 repair thereof shall be substantially completed. If the Landlord
elects to exercise the right herein vested in it to terminate this Lease as a
result of damage to or destruction of the Leased Premises or the Building in
which the Leased Premises are located, said election shall be made by giving
notice thereof to the Tenant within thirty (30) days after the date of said
damage or destruction.
22. Governmental Acquisition of Property. The 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.
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 shall not be unreasonably withheld. No such assignment or
subletting if approved by the Landlord shall relieve Tenant of any of its
obligations hereunder, and, the performance or nonperformance of any of the
covenants herein contained by subtenants shall be considered as the performance
or the nonperformance by the Tenant. In the event of an acquisition, merger, or
reorganization, the assignment of the Lease shall not be unreasonably withheld
by Landlord.
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.
26. Subordination. Tenant agrees that this Lease shall be subordinate to any
mortgages, trust deeds or ground leases that may now exist or which may
hereafter be placed upon said Leased Premises and to any and all advances to be
made thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof. Tenant shall execute and deliver whatever instruments may
be required for the above purposes, and failing to do so within ten (10) days
after demand in writing, does hereby make, constitute and irrevocably appoint
Landlord as its attorney-in-fact and in its name, place and stead so to do.
Tenant shall in the event of the sale or assignment of Landlord's interest in
the Area or in the Building of which the Leased Premises form a part, or in the
event of any proceedings brought for the foreclosure of or in the event of
exercise of the power of sale under any mortgage made by Landlord covering the
Leased Premises, attorn to the purchaser and recognize such purchaser as
Landlord under this Lease.
27. Easements. The Landlord shall have the right to grant any easement on,
over, under and above the Area for such purposes as Landlord determines,
provided that such easements do not materially interfere with Tenant's occupancy
and use of the Leased Premises.
28. Indemnification and Waiver. Except in the case of a breach or default in
the performance of any obligation under this Lease, each party shall indemnify,
defend and hold harmless the other party and nothing in this Lease shall be
construed as imposing any liability on them for any loss, costs, expense
(including reasonable attorney's fees), or any claims, suits, actions or damages
arising from the ownership, use, control or occupancy of any portion of the
Project including the Building, Common Areas and Premises unless such loss,
cost, expense, claim, suit or action is a result of or caused by the negligent
acts or omissions of such other party or its agents, servants, employees,
contractors, or invitees.
Tenant shall not indemnify Landlord for acts or failure to observe or comply
with any of the rules by any other Tenant or occupant of the Building or Project
that adversely affect Tenant's use and occupancy in which Landlord has been put
on notice of such adverse impact to Tenant.
29. Acts or Omission 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 of the Landlord, its agents 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 due
date until paid. Payment of such interest shall not excuse or cure any default
by Tenant under this Lease.
31. Holding Over-Double Last Month's Rent. If Tenant shall remain in
possession of the Leased Premises after the termination of this Lease, whether
by expiration of the Lease Term or otherwise, without a written agreement as to
such possession, then Tenant shall be deemed a month-to-month Tenant. The rent
rate during such holdover tenancy shall be equivalent to double the monthly rent
paid for the last full month of tenancy under this Lease, excluding any free
rent concessions which may have been made for the last full 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 to Tenant by United States
registered or certified mail, return receipt requested, properly sealed, stamped
and addressed to Tenant at 0000 Xxxxxxxx Xxxxxxx, Xxxx Xxxxxxx, XX 00000,
Attention Facilities Manager or at such other place as Tenant may from time to
time designate in a written notice to Landlord; and, such as are to be given to
Landlord shall be deemed to have been properly given if personally served on
Landlord or if sent to Landlord, United States registered or certified mail,
return receipt requested, properly sealed, stamped and addressed to Landlord at
0000 Xxxxx Xxxx Xx. #000, Xxxxxxx, XX 00000 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 that it
will give to said mortgagee a copy of any request for performance by Landlord or
notice of default by Landlord; and in the event Landlord fails to cure such
default, the Tenant will give said mortgagee a sixty (60) day period in which to
cure the same. Said period shall begin with the last day on which Landlord
could cure such default before Tenant has the right to exercise any remedy by
reason of such default. All notices to the mortgagee shall be sent by United
States registered or certified mail, postage prepaid, return receipt requested.
35. Controlling Law. The Lease, and all terms hereunder shall be construed
consistent with the laws of the State of Colorado. Any dispute resulting in
litigation hereunder shall be resolved in court proceedings instituted in
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 Tenants 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. Should Tenant be in default of rental
charges (monetary expenses to Tenant) Landlord shall give Tenant a cure period
of ten (10) days; if such default is non-monetary, a cure period of thirty (30)
days shall be given after written notice from Landlord.
A. The occurrence of any of the following events shall constitute a
default by Tenant under this Lease:
(1) Failure to make due and punctual payment of rent or any other
charges, assessments or amounts due or payable or required to be paid under this
Lease; or
(2) Neglect or failure by Tenant to perform or observe, or any other
breach of, any other term, covenant or condition of this Lease; or
(3) Adjudication of Tenant as bankrupt or insolvent, or filing by or
against Tenant of any petition in bankruptcy or for reorganization or for the
adoption of any arrangement under the Bankruptcy Code; application is made for
the appointment of receiver or conservator for Tenants business or property; or
assignment by Tenant is made of its property for the benefit of its creditors;
or Tenant's interest in this Lease or any substantial amount of Tenant's other
real or personal property is levied or executed upon by process of law; or
(4) Petition or other proceeding is made by or against Tenant for its
dissolution or liquidation; or voluntary dissolution or liquidation of Tenant;
or
(5) Abandonment of the Leased Premises, or any part thereof, by
Tenant for a period of time in excess of thirty (30) consecutive days.
B. If Tenant shall default in the payment, of rent or in the keeping of
any of the terms, covenants or conditions of this Lease to be kept and/or
performed by Tenant or shall otherwise commit any event of default as defined
above, Landlord may upon the expiration of any applicable cure, immediately, or
at any time thereafter, reenter the Leased Premises, remove all persons and
property therefrom, 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 and
without liability on the part of Landlord for any action so taken.
C. In the event an assignment of Tenant's business or property shall be
made for the benefit of creditors, or, if the Tenants 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, 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.
D. [Intentionally left blank]
E. In addition to all rights and remedies granted to Landlord by the
terms hereof, Landlord shall have available any and all rights and remedies
available at law or in equity, or under the statutes of the State of Colorado.
No remedy herein or otherwise conferred upon or reserved to Landlord shall be
considered exclusive of any other remedy but shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Further, all powers and remedies given by this
Lease to Landlord may be exercised, from time to time, and as often as occasion
may arise or as may be deemed expedient. No delay or omission of Landlord to
exercise any right or power arising from any default shall impair any such right
or power or shall be considered to be a waiver of any such default or
acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to
be a waiver of any breach of any of the covenants herein contained or of any of
the rights of Landlord to any remedies herein given.
F. If Tenant shall, for any reason, vacate the Leased Premises before the
current expiration date, landlord shall have the right to accelerate rental
payments and any and all future rent payments due during the course of the Lease
Term shall become immediately payable in full to the Landlord.
G. Upon default by Landlord, Tenant shall give Landlord written notice of
said default, with particulars. The landlord shall have thirty days to cure
such default, unless the reasonable time to cure exceeds thirty days, in which
case Landlord must have taken substantial steps toward curing the default within
said thirty days. In addition, Tenant shall be entitled to all the rights and
remedies of a commercial tenant under Colorado Law.
39. Legal Proceedings-Responsibilities. In the event of proceeding at law or
in equity by either party hereto, the defaulting party shall pay all costs and
expenses, including all reasonable attorney's fees incurred by the non-
defaulting party in pursuing such remedy, if such non-defaulting party is
awarded substantially the relief requested.
40. Administrative Charges. In the event any check, bank draft or negotiable
instrument given for any money payment hereunder shall be dishonored at any time
and from time to time, for any reason whatsoever not attributable to Landlord,
Landlord shall be entitled, in addition to any other remedy that may be
available, (1) to make an administrative charge of $100.00 or three times the
face value of the check, bank draft or negotiable instrument, whichever is
smaller, and (2) at Landlord's sole option, to require Tenant to make all future
rental payments in cash or cashiers check.
41. Hazardous Materials and Environmental Considerations.
A. Tenant covenants and agrees that Tenant and its agents, employees,
contractors and invitees shall comply with all Hazardous Materials Laws (as
hereinafter defined). Without limiting the 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 from the Leased Premises, except in
full compliance with any applicable Hazardous Materials Laws. Any Hazardous
Materials located on the Leased Premises shall be handled in an appropriately
controlled environment which shall include the use of such equipment (at
Tenant's expense) as is necessary to meet or exceed standards imposed by any
Hazardous Materials Laws and in such a way as not to interfere with any other
tenants use of its premises. Upon breach of any covenant contained herein,
Tenant shall, at Tenant's sole expense, cure such breach by taking all action
prescribed by any applicable Hazardous Materials Laws or by any governmental
authority with jurisdiction over such matters.
B. Tenant shall inform Landlord at any time of (i) any Hazardous
Materials it intends to use, generate, handle, store or dispose of, on or about
or transport from, the Leased Premises and (ii) of Tenant's discovery of any
event or condition which constitutes a violation of any applicable Hazardous
Materials Laws. Tenant shall provide to Landlord copies of all communications,
to or from any governmental authority or any other party relating to Hazardous
Materials affecting the Leased Premises.
C. Tenant shall indemnify and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities, expenses or
losses (including, without limitation, diminution on value of the Leased
Premises, damages for loss or restriction on use of all or part of the Leased
Premises, sums paid in settlement of claims, investigation of site conditions,
or any cleanup, removal or restoration work required by any federal, state or
local governmental agency, attorney's fees, consultant fees, and expert fees)
which arise as a result of or in connection with any breach of the foregoing
covenants or any other violation of any Hazardous Materials laws by Tenant. The
indemnification contained herein shall also accrue to the benefit of the
employees, agents, officers, directors and/or partners of Landlord.
D. Upon termination of this Lease and/or vacation of the Leased Premises,
Tenant shall properly remove all Hazardous Materials and shall then provide to
Landlord a Phase I environmental audit report, prepared by a professional
consultant satisfactory to Landlord and at Tenant's sole expense, certifying
that the Leased Premises have not been subjected to environmental harm caused by
Tenant's use and occupancy of the Leased Premises. Landlord shall grant to
Tenant and its agents or contractors such access to the Leased Premises as is
necessary to accomplish such removal and prepare such report.
E. "Hazardous Materials" shall mean (a) any chemical, material, substance
or pollutant which poses a hazard to the Leased Premises or to persons on or
about the Leased Premises or would cause a violation of or is regulated by any
Hazardous Materials Laws, and (b) any chemical, material or substance defined as
or included in the definitions of "hazardous substances", "hazardous wastes",
"extremely hazardous waste", "restricted hazardous waste", "toxic substances",
"regulated substance", or words of similar import under any applicable federal,
state or local law or under the regulations adopted or publications promulgated
pursuant thereto, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec.
9601, et seq; the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
Sec. 1801, et seq; the Resource Conservation and Recovery Act as amended, 42
U.S.C. Sec 6901, et seq; the Solid Waste Disposal Act, 42 U.S.C. Sec. 6991 et
seq; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Sec. 1251,
et seq; and Sections 00-00-000, et seq; 00-00-000, 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 hereunder shall survive and continue after
the expiration of this Lease or its earlier termination for any reason.
G. Tenant further covenants and agrees that it shall not install any
storage tank (whether above or below the ground) on the Leased Premises without
obtaining the prior written consent of the Landlord, which consent may be
conditioned upon further requirements imposed by Landlord with respect to, among
other things, compliance by Tenant with any applicable laws, rules, regulations
or ordinances and safety measures or financial responsibility requirements.
H. Should any local governmental entity having jurisdiction over the
Leased Premises require any type of environmental audit or report prior to or
during the occupancy of the Leased Premises by the Tenant, such cost of the
audit or report shall be the sole responsibility of the Tenant.
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. [Intentionally left blank]
44. Estoppel Certificates. Within no more than 5 days after receipt of written
request, the Tenant shall furnish to the owner a certificate, duly acknowledged,
certifying, to the extent true:
A. That this Lease is in full force and effect.
B. That the Tenant knows of no default hereunder on the part of the owner,
or if it has reason to believe that such a default exists, the nature
thereof in reasonable detail.
C. The amount of the rent being paid and the last date to which rent has
been paid.
D. That this Lease has not been modified, or 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, the Tenant hereby appoints the owner as its
Attorney-In-Fact to execute and deliver such certificate for and on behalf of
the Tenant.
45. Financial Statements. As requested by the Landlord, Tenant shall provide
copies of its most recent financial statements and shall also provide Landlord
with up to three (3) prior years of financial statements, if so requested.
46. Brokers. Tenant represents and warrants that it has dealt only with N/A
(the "Broker") in the negotiation of this Lease. Landlord shall make payment of
the commission according to the terms of a separate agreement with the Broker.
Tenant hereby agrees to Indemnify and hold Landlord harmless of an from any and
all loss, costs, damages or expenses (including, without limitation, all
attorney's fees and disbursements) by reason of any claim of, or liability to,
any other broker or person claiming through Tenant and arising out of this
Lease. Additionally, Tenant acknowledges and agrees that Landlord shall have no
obligation for payment of any brokerage fee or similar compensation to any
person with whom Tenant has dealt or may deal with in the future with respect to
leasing of any additional or expansion space in the Building or any renewals or
extensions of this Lease unless specifically provided for by separate written
agreement with Landlord. In the event any claim shall be made against Landlord
by any other broker who shall claim to have negotiated this Lease on behalf of
Tenant or to have introduced Tenant to the Building or to Landlord, Tenant
hereby indemnifies Landlord, and Tenant shall be liable for the payment of all
reasonable attorney's fees, costs, and expenses incurred by Landlord in
defending against the same, and in the event such broker shall be successful in
any such action, Tenant shall, upon demand, make payment to such broker.
47. Lease Exhibits Attached. This Lease includes the following Lease Exhibits
which are incorporated herein and made a part of this Lease Agreement:
Exhibit "A" - Site Plan Depicting Area
Exhibit "B" - [Intentionally left blank]
Exhibit "C" - Landlord and Tenants Construction Obligations
Exhibit "D" - Sign Code Obligations
48. Miscellaneous. All marginal notations and paragraph headings are for
purposes of reference and shall not affect the true meaning and intent of the
terms hereof. Throughout this Lease, wherever the words "Landlord" and "Tenant"
are used they shall include and imply to the singular, plural, persons both male
and female, companies, 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/ X. X. XXXXXXXX
TENANT: HESKA CORPORATION
By: /s/ X. X. XXXXXXXX
X. X. XXXXXXXX, EXECUTIVE VICE PRESIDENT & CHIEF FINANCIAL OFFICER
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS INDEMNITY is given as of this 6th day of October, 1999, by Heska
Corporation ("Indemnitor," whether one or more), to and for the benefit of GB
Ventures ("Landlord").
WHEREAS, GB Ventures, is Landlord under a proposed Lease Agreement dated
October 6, 1999, ("the Lease") in which Heska Corporation a Delaware Corporation
is the proposed tenant ("Tenant"), regarding the Leased Premises commonly known
as 0000 Xxxxxxxx Xxxxxxx, Suites C/D, G, H, I, & J, Xxxx Xxxxxxx, Xx 00000
("Leased Premises"); and
WHEREAS, Landlord is unwilling to enter into the Lease with Tenant unless
the Indemnitor 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, Indemnitor undertakes and agrees
as follows:
1. Indemnitor 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 or
discharge, by or on behalf of Tenant, of any Hazardous Materials (as defined in
the Lease) on, in or under or affecting all or any portion of the Leased
Premises or any surrounding areas, or the disposition or transportation of any
Hazardous Materials therefrom, 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), or otherwise resulting from or arising
out of any action or non-action of Tenant or Tenant's operations on the Leased
Premises.
Without limiting the generality of the foregoing, it is expressly agreed by
Indemnitor that such Indemnity shall also include the following: 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, 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.
2. Indemnitor agrees to pay to Landlord, from time to time, upon 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 Indemnitor 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.
4. Until all Tenants obligations under the Lease are fully performed,
Indemnitor (i) waives any right of subrogation which it might have against
Tenant by reason of any payments or acts of performance by Indemnitor pursuant
to its obligations hereunder; (ii) waives any other right which Indemnitor may
have against Tenant by reason of any one or more payments or acts in compliance
with its obligations hereunder; and (iii) subordinates any liability or
indebtedness of tenant held by Indemnitor to the obligations of Tenant to
Landlord under the Lease.
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 Indemnitor, to:
Heska Corporation
Attention: Facilities Manager
0000 Xxxxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
If to Landlord, to:
GB Ventures
0000 Xxxxx Xxxx Xxxxxx #000
Xxxxxxx, XX 00000
6. In the event of default in its obligations hereunder, Indemnitor
agrees to reimburse Landlord for reasonable attorneys' fees and costs incurred
by Landlord in the enforcement of such obligations.
7. 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.
8. This Environmental Indemnity Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
9. 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.
/s/ X. X. XXXXXXXX
"Indemnitor"- HESKA CORPORATION
/s/ X. X. XXXXXXXX
"Landlord" - GB VENTURES
EXHIBIT "A"
[SITE PLAN]
EXHIBIT "C"
LANDLORD AND TENANT'S CONSTRUCTION OBLIGATIONS
Tenant shall take the Premises in "as is" condition. Landlord has no
construction obligations.
EXHIBIT "D"
[SIGN CODE OBLIGATIONS]
