1
Exhibit 10.34
ASSIGNMENT OF LEASE
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Bio Clinic corporation, a Delaware corporation
("Seller"), does hereby assign, grant, bargain, sell, convey and transfer to
▇▇▇▇▇ Industries, Inc., a Delaware corporation ("Buyer"), its successors and
assigns forever all of Seller's right, title and interest as lessee in and to
that certain lease dated June 24, 1993 between General American Life Insurance
Company, a Missouri corporation, as lessor, and Seller, as lessee, together
with all amendments and clarifications attached thereto (the "Lease")
respecting those certain premises commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ including any lease security, deposit or prepayment.
This Assignment shall not take effect until the closing of the transaction
(the "Closing") under that certain Asset Purchase Agreement between Seller,
buyer and Sunrise Medical, Inc., a Delaware corporation.
ASSUMPTION OF LEASE
For good and valuable consideration the receipt and adequacy of which are
hereby acknowledged and further in consideration of the foregoing Assignment
of Lease (the "Assignment") executed with Bio Clinic Corporation, a Delaware
corporation ("Seller") and the Consent to Assignment executed by General
American Life Insurance Company, a Missouri corporation, attached hereto,
▇▇▇▇▇ Industries, Inc., a Delaware corporation, does hereby agree to assume
and make all payments relating to obligations arising from and after the date
hereof under the Lease (as defined in the Assignment), and to perform all
covenants and conditions which are to be performed by Seller pursuant to the
Lease from and after the date thereof.
CONSENT TO ASSIGNMENT
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and further in consideration of the foregoing Assumption
of Lease executed by ▇▇▇▇▇ Industries, Inc., a Delaware corporation
("Assignee"), the undersigned as lessor under the Lease (as defined in the
foregoing Assignment of Lease executed by Bio Clinic Corporation, a Delaware
corporation ("Assignor") does hereby consent to the foregoing Assignment of
Lease whereby the rights and obligations of Assignor under the Lease arising
from and after the date of the Assumption of Lease are assigned to Assignee.
NOTWITHSTANDING ANYTHING HEREIN CONTAINED, SUCH CONSENT WILL NOT RELEASE BIO
CLINIC CORPORATION, A DELAWARE CORPORATION, A WHOLLY OWNED SUBSIDIARY OF
SUNRISE MEDICAL, INC. ("TENANT") OF ITS OBLIGATIONS OR ALTER THE PRIMARY
LIABILITY OF TENANT TO PAY THE RENT AND PERFORM AND COMPLY WITH ALL OF THE
OBLIGATIONS OF TENANT TO BE PERFORMED UNDER THE LEASE.
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Executed this 15 day of October, 1996.
BIO CLINIC CORPORATION
By: s \ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its Secretary
▇▇▇▇▇ INDUSTRIES, INC.
By: s \ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its VP-CFO
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: s \ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Second VP-Real Estate
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STANDARD FORM OF INDUSTRIAL LEASE
(SEMI-GROSS)
THIS LEASE, made this 24th day of June, 1993, by and between GENERAL AMERICAN
LIFE INSURANCE COMPANY, a Missouri corporation (hereinafter "Landlord"), and
BIO CLINIC CORPORATION, A DELAWARE CORP. A WHOLLY OWNED SUBSIDIARY OF SUNRISE
MEDICAL, INC. (hereinafter "Tenant").
ARTICLE I. DEFINITIONS.
1.1 Address of Landlord: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.2 Address of Tenant: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.3 Base Rent: $17,091.00 per month.
January 1, 1994 through December 31, 1994 $ 17,091.00
January 1, 1995 through December 31, 1995 $ 17,834.00
January 1, 1996 through December 31, 1996 $ 18,577.00
January 1, 1997 through December 31, 1997 $ 19,320.00
January 1, 1998 through December 31, 1998 $ 20,063.00
January 1, 1999 through December 31, 1999 $ 20,806.00
January 1, 2000 through December 31, 2000 $ 21,549.00
1.4 Base Year: The calendar year in which this Lease commences.
1.5 Building/s: The Building/s in which the Premises is located. The
specific Building in which the Premises is located contains 74,307 square
feet. The total square footage of all the Buildings in the Center is 343,813
square feet.
1.6 Center: The land, improvements and appurtenances depicted on Exhibit B
attached hereto and commonly referred to as General American Pacific Gate and
located at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
1.7 Common Area: The term "common Area" means all the area of the Center
designed for the common use and benefit of the Landlord and all of the
tenants, their employees, agents, customers and invitees. The Common Area
includes, but not by way of limitation, parking lots, truck courts, landscaped
and vacant area, driveways, rail spurs, walks and curbs with facilities
appurtenant to each as such areas may exist from time to time.
1.8 Lease Term: The lease term shall commence on January 1, 1994 and run for
6 years, and 2 months, expiring on February 29, 2000.
1.9 Permitted Use of the Premises: Manufacture and distribution of
therapeutic cushions and other consumer products and other legally permitted
uses.
1.10 Premises: 74,307 square feet of space together with 116 parking spaces
situated upon 3.71 acres of land in the Center located as outlined on Exhibit
B attached hereto, and addressed as: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(See Rider, Par. 1.2).
1.11 Rent: All sums, moneys or payments required to be paid by Tenant to
Landlord pursuant to this Lease, including Base Rent and Additional Rent.
1.12 Additional Rent: All sums, moneys or payments required to be paid by
Tenant to Landlord pursuant to this Lease other than Base Rent.
1.13 Security Deposit: $21,549.00
1.14 Tenant's Allocated Share: The percentage figure determined by dividing
the number of square feet in the Premises by the number of square feet in the
Building that is then leased to Tenant and to other tenants.
1.15 Tenant's Proportionate Share: The percentage figure determined by
dividing the number of square feet in the Premises by the total number of
square feet in all the Buildings (this paragraph is applicable when the Center
contains more than one Building), which percentage figure is 21.61%.
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1.16 Tenant's Prorata Share: The percentage figure determined by dividing
the number of square feet in the Premises by the number of square feet in the
specific Building in which the Premises is located, which percentage figure is
100%.
ARTICLE II. THE DEMISED PREMISES.
2.1 Lease of the Premises: In consideration of the Rents, covenants,
agreements and conditions hereinafter provided to be paid, kept, performed and
observed, the Landlord leases to the Tenant and the Tenant hereby hires from
the Landlord the Premises, upon all the terms and conditions set forth in this
Lease.
2.2 Use of Common Area: Landlord grants the Tenant the nonexclusive
revocable use of the Common Area by Tenant, Tenant's employees, agents,
customers and invitees, under all the terms and conditions hereof, which use
shall be subject at all times to such reasonable, uniform and non-
discriminatory rules and regulations as may from time to time be established
by Landlord.
2.3 Quiet Enjoyment: Landlord covenants that the Tenant, on paying the Rent
herein provided and keeping, performing and observing the covenants,
agreements and conditions herein required of the Tenant, shall peaceably and
quietly hold and enjoy the Premises for the Lease Term, subject, however, to
the terms and conditions of this Lease.
2.4 Reservations by Landlord: Landlord excepts and reserves from the
Premises the roof and exterior walls of the Building/s, and further reserves
the right to place, install, maintain, carry through, repair and replace such
utility lines, air ducts, pipes, wires, appliances, tunneling and the like in,
over, through and upon the Premises as may be reasonably necessary or
advisable for the servicing of the Premises or any other portions of the
Center. Landlord further reserves the right, at any time, and from time to
time to:
(i) make alterations, changes and additions to the Building/s and other
improvements in the Center;
(ii) add additional areas to the Center and/or to exclude areas therefrom;
(iii) construct additional buildings and other improvements to the Center;
(iv) remove or relocate the whole or any part of any building or other
improvement in the Center; and
(v) relocate any other tenant in the Center. It is further understood that
the existing layout of the buildings, walks, roadways, parking areas,
entrances, exits, and other improvements shall not be deemed to be a warranty,
representation or agreement on the part of the Landlord that the Center will
remain exactly as presently built, it being understood and agreed that
Landlord may change the number, dimensions and locations of the walks,
buildings and parking spaces as Landlord shall deem proper. Notwithstanding
anything herein to the contrary, Landlord shall have no right to make
alterations, changes or additions to the Building or Premises that adversely
affects Tenant's quiet enjoyment of the Building and Premises.
ARTICLE III. TERM OF THE LEASE.
3.1 Term: Tenant shall have and hold the Premises for and during the Lease
Term subject to the payment of the Rent and the full and timely performance by
Tenant of all the covenants and conditions set forth in this Lease.
3.2 Tender of Possession. Landlord shall tender possession of the Premises
to Tenant at the commencement of the Lease Term. Landlord shall not be
subject to any liability for any failure to render possession of the Premises
to Tenant, provided that such failure occurred as a consequence of any
circumstance or cause beyond Landlord's reasonable control, including but not
limited to any Act of God or the failure of a prior tenant to vacate all or
any portion of the Premises.
3.3 Holding Over. In the event of a holding over by Tenant or any of its
successors in interest after expiration or termination of this Lease without
the consent in writing of the Landlord, Tenant shall be deemed a Tenant at
sufferance and shall pay as liquidated damages, double Rent for the entire
holdover period and all attorney's fees and expenses incurred by Landlord in
enforcing its rights hereunder. Any holding over with the consent of Landlord
shall constitute Tenant a month-to-month tenant upon and subject to all the
terms, covenants and conditions of this Lease.
ARTICLE IV. RENT.
4.1 Base Rent. Tenant covenants to pay without notice, deduction, set-off
or abatement to Landlord the Base Rent in lawful money of the United States in
equal consecutive monthly installments in advance on the first day of each
month during the Lease Term. Base Rent for any partial month shall be
prorated on a per diem basis. Base Rent shall be payable to Landlord at
Landlord's Address or such other place as Landlord may designate from time to
time in writing. Tenant shall pay the first full month's rent upon execution
of this Lease.
4.2 Additional Rent: For the calendar year 1994, Tenant shall pay $716
per month to Landlord as Additional Rent. Tenant covenants to pay without
notice, deduction, set-off or abatement to Landlord the Additional Rent in
lawful money of the United States in equal consecutive monthly installments in
advance on the first day of each month during the Lease Term. Additional Rent
for any partial month shall be prorated on a per diem basis. Additional Rent
shall be payable to Landlord at Landlord's address or such other place as
Landlord may designate in writing. In order to provide for current payments
of Additional Rent. Tenant agrees to pay an amount of Additional Rent
reasonably estimated by Landlord from time to time commencing on the first day
of the month following the month in which Landlord notifies Tenant of the
amount of such Additional Rent. If, as finally determined, the amount of
Additional Rent installments so paid to Landlord for each calendar year, the
Tenant shall pay to Landlord the amount of such underpayment, or Landlord
shall credit Tenant for the amount of such overpayment, as the case may be.
It is the intention hereunder to estimate the amount of Additional Rent for
each calendar year and then to adjust such estimate in the following year
based on the actual amount of Additional Rent owing. The obligation of Tenant
with respect to the payment of Additional Rent shall survive the termination
of this Lease. Any payment, refund or credit made pursuant to this paragraph
shall be made without prejudice to any right of Tenant to dispute the amount
of Additional Rent owing, or the right of Landlord to correct any items as
billed pursuant to the provisions hereof. Within 30 days of the date Landlord
notifies Tenant of the amount of Additional Rent owing, Tenant or its
authorized agent shall have the right to inspect the books of Landlord during
the business hours of Landlord at such location that Landlord may specify, for
the purpose of verifying such amount. Unless Tenant asserts specific errors
within such 30 days, such notification by Landlord shall be deemed to be
correct. No decrease in Additional Rent shall reduce Tenant's liability
hereunder below the amount of Base Rent payable hereunder.
4.2(a) Utilities and Services. Landlord shall not be liable for any
interruption or failure whatsoever in utility services. Tenant shall contract
in its own name and pay for all charges for electricity, gas, fuel, telephone,
and any other services or utilities used in, servicing or assessed against the
Premises, unless otherwise herein expressly provided. Additionally, and if
the Building is master metered for water, sewer and exterior lighting, Tenant
agrees to pay to Landlord as Additional Rent Tenant's Prorata Share of the
cost of such utilities for the Building. Additionally, and as containerized
rubbish collection bins will be provided to the Building, Tenant agrees to pay
to Landlord as Additional Rent, Tenant's Allocated Share of the service cost
of such bins (unless Landlord, exercising reasonable discretion, should
determine that Tenant's actual use thereof is greater than such Tenant's
Allocated Share therefore, in which case an equitable adjustment shall be
made). Landlord may, however, require Tenant to contract for his own rubbish
collection. In the event Tenant's needs for such containers constitute
excessive demand on common containers. In such event, Tenant shall contract
with the same provider as the Center'' common bins.
4.2(b) Insurance. Tenant shall pay to Landlord as Additional Rent Tenant's
Prorata Share (or, Tenant's Proportionate Share in the event there is more
than one Building in the Center) of any increase in the cost of the premium
for the fire and extended coverage insurance that Landlord maintains hereunder
over the premium paid by Landlord for the 1994 calendar year. Tenant shall
pay any increase in the cost of fire and extended coverage insurance caused by
Tenant's use or activities on or about the Premises.
4.2(c) Real Estate Taxes. Tenant shall pay to Landlord as Additional Rent
Tenant's Prorata Share (or, Tenant's Proportionate Share in the event there is
more than one Building in the Center) of any increases in Landlord's Real
Estate taxes for the 1993/1994 property tax ▇▇▇▇ levied against the Center.
However, during the initial Lease term only, Tenant shall not be responsible
for the payment of any increase in Real Estate Taxes resulting from a sale of
the Premises to a third party. "Real Estate" taxes shall mean:
(a) all ad valorem Real Estate Taxes on the Center (adjusted after protest
or litigation, if any) for any part of the term of this Lease, exclusive of
penalties;
(b) any taxes which shall be levied in lieu of any such ad valorem Real
Estate Taxes;
(c) any special assessments for benefits on or to the Center paid in annual
installments by the Landlord;
(d) occupational taxes or excise taxes levied on rentals derived from the
operation of the property of the privilege of leasing property
(e) any provide subdivision assessment made against the Center; and
(f) the expense of protesting, negotiating or contesting the amount of
validity of any such taxes, charges or assessments, such expense to be
applicable to the period of the item contest, protested or negotiated. The
amount of such expense that Tenant is obligated to pay shall not exceed the
realized savings resulting from the protest, negotiation or contest.
If the Lease Term shall end during a tax year ("tax year" shall mean the
annual period for which Real Estate Taxes are assessed and levied) of which
only part is included in the Lease Term, the amount of such Additional Rent
shall be prorated on a per diem basis and shall be paid on or before the last
day of the Lease Term. If the Lease Term ends in any tax year before the
amount to be payable by Tenant has been determined under the provisions of
this Section, an amount payable for the portion of the Lease Term during the
tax year shall be reasonably estimated by Landlord and the estimated amount
shall be promptly paid by Tenant. As soon as the amount properly payable by
Tenant for the partial period has finally been determined, the amount shall be
adjusted between Landlord and Tenant. Tenant shall be liable for all taxes
levied against personal property and trade fixtures placed by Tenant in the
Premises.
4.2(d) HVAC Maintenance. Tenant shall pay for all expenses incurred to
repair the heating ventilating and air conditioning equipment servicing the
Premises Within thirty (30) days from the Commencement Date of the Lease,
Tenant shall provide Landlord with evidence of an executed and valid HVAC
maintenance contract. The HVAC maintenance shall be performed by a mechanical
contractor, licensed in the state of California, and shall provide for no less
than quarterly (4 x year) preventative maintenance services.
4.2(e) Common Area Expenses. Tenant will pay to Landlord as Additional Rent
Tenant's Prorata Share (or, Tenant's Proportionate Share in the event there is
more than one Building in the Center of Landlord's cost and expense in
maintaining the landscaped areas of the Premises and Common Areas. However,
in no event will Tenant be responsible for the payment of Landlord's expense
for maintaining the landscaped areas at other premises or buildings within the
Center.
4.2(f) Rent on Sales Taxes. Tenant shall pay to Landlord as Additional
Rent any Sales or Rent Taxes, however named or designated, levied on any form
of Rent or Additional Rent. 4.3 Late Payment. Tenant's failure to make any
rental payment or other Rider payment required of Tenant hereunder within ten
(10) days of the due date therefor shall automatically result in the
imposition of a service charge for such late payment in the amount of ten
percent (10%) of such payment, without notice. 4.4 Security Deposit. Tenant
herewith deposits with Landlord the Security Deposit as security for the
performance by Tenant of every covenant and condition of this Lease. Said
Security Deposit may be mingled with other funds of Landlord and shall bear no
interest. If Tenant shall default with respect to any convent or condition
of this Lease, Landlord may apply the whole or any part of such Security
Deposit to the payment of any sum in default, including Rent and Additional
Rent, or any sum which Landlord may be required to spend by reason of Tenant's
default. This includes, but is not limited to, applying the Security Deposit
first to any restoration, revamping, repairs and/or cleanup costs necessary
over and above normal wear and tear of the vacated space. Should Landlord so
apply the Security Deposit or any portion thereof during the Lease Term,
Tenant shall promptly reimburse Landlord for same. It is understood that the
Security Deposit is not to be considered as the last month's rent. Should
Tenant comply with all of the covenants and conditions of this Lease, the
Security Deposit or any balance thereof shall be returned to Tenant within 30
days of the expiration of the Lease Term.
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS.
5.1 Maintenance by Landlord. During the Lease Term, Landlord shall operate
and maintain the Common Area and shall keep and maintain the roof, exterior
walls (excluding doors, glass, or plate glass, foundation, gutters and
downspouts of the Building's in good condition and repair. Landlord shall be
under no obligation and shall not be liable for any failure to make repairs
that are Landlord's responsibility herein until and unless Tenant notifies
Landlord in writing of the necessity therefor, in which event Landlord shall
have a reasonable time thereafter to make such repairs. Landlord reserves the
right to the exclusive use of the roof and exterior walls of the Building/s
which Landlord is so obligated to maintain and repair. Landlord shall enter
into a service contract on the Building for the heating, ventilation and air
conditioning equipment for periodic inspection and service of such equipment,
and Tenant shall reimburse Landlord pursuant to the provisions hereof. If any
portion of the Center which Landlord is obligated to maintain or repair is
damaged by the negligence of Tenant, its agents, employees or invitees, ten
repairs necessitated by such damage shall be paid for by Tenant.
5.2 Mortgage and Transfer: Estoppel Certificates. Landlord shall have
the right to transfer, mortgage, pledge or otherwise encumber, assign and
convey, in whole or in part, the Center, the Building/s, this Lease, and all
or any part of the rights now or thereafter existing therein and all Rents and
amounts payable to Landlord under the provisions hereof. In the event of any
such transfer or transfers, Landlord herein named (and in case of any
subsequent transfer, then the transferor) shall be automatically freed and
relieved from and after the date of such transfer of all personal liability as
respects the performance of any covenants or agreements on the part of
Landlord contained in this Lease thereafter to be performed. Nothing herein
contained shall limit or restrict any such rights, and the rights of the
Tenant under this Lease shall be subject and subordinate to all instruments
executed and to be executed in connection with the exercise of any such
rights, including, but not limited to, the lien of any mortgage, deed or
trust, or security agreement now or hereafter placed upon Landlord's interest
in the Premises. This paragraph shall be self-operative. However, Tenant
covenants and agrees to execute and deliver upon demand such further
instruments subordinating this Lease to the lien, of any such mortgage, deed
of trust or security agreement as shall be requested by Landlord and/or
mortgagee or proposed mortgagee or holder of any security agreement. In the
event of any such transfer, mortgage or pledge, Tenant's obligations to
subordinate this Lease to the lien of any proposed Mortgage, Deed of Trust or
Security Agreement is conditioned upon the delivery to Tenant and mutual
execution by such proposed mortgagee or holder of such security agreement,
within a reasonable time thereafter, or an agreement not to disturb Tenant's
possession ("Non-Disturbance Agreement") so long as Tenant complies with all
of the obligations contained in this Lease. Tenant shall, within ten (10)
days after written request of Landlord, execute, acknowledge, and deliver to
landlord or to Landlord's mortgagee, proposed mortgagee, Land Lessor of
proposed purchaser of the Center or any part thereof, any estoppel
certificates requested by Landlord from time to time, which estoppel
certificates shall show whether the lease is in full force and effect and
whether any changes may have been made to the original lease; whether the term
of the lease has commenced and full rental is accruing; whether there are any
defaults by Landlord and, if so, the nature of such defaults; whether
possession has been assumed and all improvements to be provided by Landlord
have been completed; and whether rent has been paid more than thirty (30) days
in advance and that there are no liens, charges, or offsets against rental due
or to become due and that the address shown on such estoppel is accurate.
5.3 Landlord's Inability to Perform. If, by reason of: inability to obtain
and utilize labor, materials or supplies; circumstances directly or indirectly
the result of a state of war or national or local emergency; any laws, rules
orders, regulations or requirements of any governmental authority now or
hereafter in force; strikes or riots; accident in, damage to or the making of
repairs, replacements, or improvements to, the Premises or any of the
equipment thereof; or by reason of any other cause beyond the reasonable
control of the Landlord including "Acts of God," Landlord shall be unable to
perform or shall be delayed in the performance of any covenant to supply any
service, such nonperformance or delay in performance shall not render Landlord
liable in any respect for damages to either person or property, constitute a
total or partial eviction, constructive or otherwise, work an abatement of
rent or relieve Tenant from the fulfillment of any covenant or agreement
contained in this Lease. This paragraph shall provide reciprocal protections
to the Tenant. Should the circumstances described herein prevent or delay
Tenant's ability to supply any service, except the payment of Base Rent or
Additional Rent, such non-performance or delay in performance shall not render
Tenant liable for damages to the Landlord.
5.4 Rights of Landlord. Landlord may enter upon the Premises with forty-
eight hours notice for the purpose of exercising any or all of the rights
hereby reserved without being deemed guilty of an eviction of disturbance of
Tenant's use or possession and without being liable in any manner to Tenant.
The reservation of these rights by Landlord shall not render Landlord liable
for not performing any of the matters specified herein.
5.4(a) Name of Center. To change the name of the Building/s or the Center
without notice or liability of the Landlord to Tenant.
5.4(b) During the last ninety (90) days of the Lease Term or any renewal or
extension thereof, if during or prior to that time the Tenant has vacated the
Premises, to decorate, remodel, repair, alter or otherwise prepare the Prepare
the Premises for reoccupancy;
5.4(c) Re-Lease. To exhibit the Premises to others and to display "For
Lease" signs on the Premises during the last one hundred eighty (180) days of
the Lease Term or any renewal or extension thereof;
5.4(d) Vehicles. To remove abandoned or unlicensed vehicles and vehicles
that are unreasonably interfering with the use of the parking lot by others,
and to charge the responsible tenant for the expense of removing said
vehicles;
5.4(e) Preservation of the Center. To take any and al measures, including
making inspection, repairs, alternations, additions and improvements to the
Premises or to the Center as may be necessary or desirable for the safety,
protection or preservation of the Premises or the Center or the Landlord's
interests, or as may be necessary or desirable in the operation of the
Premises or the Center.
ARTICLE V. TENANT'S RIGHTS AND OBLIGATIONS.
6.1 Acceptance of Premises. Landlord will complete the Premises in
accordance with Exhibit C, if attached hereto. Tenant acknowledges that it
will examine the Premises before taking possession hereunder. Unless Tenant
furnishes Landlord with a notice in writing specifying any defect in the
construction or condition of the Premises within ten (10) days after taking
possession, such taking of possession , such taking of possession shall be
conclusive evidence as against Tenant that at the time thereof the Premises
were in good order and satisfactory condition. However, Tenant's notice to
landlord of latent defects in materials, workmanship and other hidden problems
existing as of the date that Tenant takes possession of the Premises shall not
be limited to the ten (10) day notice period contained herein.
6.2 Alternations and Additions. Tenant shall not make any structural
alterations, improvements, or additions exceeding $5,000.00 to the Premises
without the prior written consent and approval of plans therefor by Landlord.
Alternations, improvements or additions made by either of the parties upon the
Premises, except moveable furniture and equipment placed in the Premises at
the expense of Tenant, shall be the property of Landlord and shall remain upon
and be surrendered with the Premises as a part thereof at the termination of
this Lease, without disturbance, molestation, injury of damage unless Landlord
elects to require Tenant to remove such alterations or improvements from the
Premises at the expiration of this lease. Landlord must notify Tenant within
five (5) days of Landlord's receipt of Tenant's construction plans of
Tenant's obligation to remove said alteration, improvement or addition. In
the event damage shall be caused by moving said furniture and equipment in or
out of the Premises, said damage shall be repaired at the cost of Tenant.
6.3 Assignment and Subletting. Tenant shall not assign or hypothecate this
Lease or sublet all or any part of the Premises without the prior written
consent of Landlord. If Tenant wishes to assign or sublet the Premises, to a
non-related entity, it shall give notice in writing (by certified mail or by
personal delivery) of such intention to Landlord and, thereupon, Landlord
shall, within thirty (30) days of receipt of such notice, have the right to
unilaterally terminate this Lease or to approve said subletting by written
notice to Tenant. If no notice is given by landlord, landlord will be deemed
to have elected to approve the assignment or subletting. If the assignment or
subletting is approved and rents under the sublease are greater than the
resents provided for herein, then Landlord shall have the further option
either
(a) to convert the sublease into a prime Lease and receive all of the rents,
in which case Tenant will be relieved of further liability hereunder and under
the proposed sublease, or
(b) to require Tenant to remain liable under this Lease, in which event
Tenant shall be entitled to retain such excess rents. If the assignment or
subletting is approved and rents under the sublease are less than the rents
provided for herein, Tenant shall remain liable under all the covenants and
conditions of this Lease. Landlord may withhold its consent to any proposed
assignee or subtenant which in Landlord's judgment
(a) would conflict with the tenancy, use or business of any other tenant or
the tenant mix of the Center,
(b) has a net worth and/or credit history inferior to that of Tenant, or
(c) is currently a tenant or negotiating for space in the Center. Tenant
may assign or sublet the Premises, or any portion thereof, without Landlord's
consent, to any related entity which controls, is controlled by or is under
common control with Tenant, provided that said assignee or subtenant assumes,
in full, the obligations of tenant under this Lease. However, it is
understood and agreed that any such assignment or sublease shall not, in any
way, affect, limit or relieve Tenant's obligation under the terms of this
Lease.
6.4 Maintenance by Tenant. Tenant shall be responsible for all maintenance
and repair to the Premises of whatsoever kind or nature that it not herein set
forth specifically as the obligations of Landlord. Tenant shall take good
care of the Premises and fixtures, and keep them in good repair free from
filth, overloading , danger or fire or any pest or nuisance, repair any damage
or breakage done by Tenant or Tenant's agents, employees or invitees,
including damage done to the Building's by Tenant's equipment or
installations. Tenant shall be responsible for the repair and replacement of
all glass and plate glass on the Premises. In the event Tenant fails to
maintain the Premises or make required repairs as provided for herein within
thirty (30) days after receipt of notice from Landlord, Landlord shall have
the right, but not the obligation, to perform such maintenance as is required
of Tenant in which event Tenant shall reimburse Landlord for its costs in
providing such maintenance or repairs together with a ten (10%) percent charge
for landlord's overhead and Tenant shall promptly reimburse Landlord for the
amount so billed to Tenant by Landlord.
6.5 Mechanic's Liens. Tenant will not permit any mechanic's liens, or
other liens, to be place upon the Premises, the Building/s or the Center
during the Lease Term or any extension or renewal thereof, and in case of the
filling of any such lien, Tenant will promptly pay same. Tenant agrees to pay
or bond all legal fees that might be incurred by Landlord because of any
mechanic's liens being placed upon the Premises, as a result of Tenant's
actions.
6.6 Redelivery of Premises. No later than the last day of the Lease
Term, Tenant will remove all Tenant's personal property and repair all injury
done by or in connection with installation or removal of such property and
surrender the Premises broom clean (together with al keys to the premises) in
as good a condition as they were in at the beginning of the Lease Term,
reasonable wear and tear excepted.
6.7 Signs and Advertisements. Tenant shall not put upon nor permit to be
put upon any part of the Premises, the Building's or the Center, any signs,
billboards, or advertisements whatever in any location or any form without the
prior written consent or Landlord whose consent shall not be unreasonably
withheld. Wherever the consent or approval of Landlord and Tenant is called
for anywhere in this Lease, such consent or approval shall not be unreasonably
withheld, delayed or conditioned. A charge of $50.00 per day per sign,
billboard or advertisement will be assessed against Tenant if Tenant fails to
obtain the written consent of Landlord prior to placing any such signs.
6.8 Use of Common Areas. Tenant shall not use any ▇▇▇ of the Center
exterior to the Premises for outside storage. No trash, creates, pallets, or
refuse shall be permitted anywhere on the Center outside of the Building/s by
Tenant except in enclosed metal containers to be located as directed by
Landlord. Tenant shall not park any trucks or trailers, loaded or empty,
except in front of the loading areas.
6.9 Use of Premises. The Premises hereby leased shall be used by the
Tenant only for the Permitted Use of the Premises and for no other purposes.
Tenant shall, at Tenant's expense, comply promptly with all applicable
statutes, ordinances, rules, regulations, orders and requirements in effect
during the term or any part of the term hereof regulating the use by Tenant
of the Premises. Tenant shall not use or permit the use of the Premises in
any manner that will tend to create waste or a nuisance, or will tend to
unreasonably disturb such other tenants in the Center. Tenant, its employees
and all persons visiting or doing business with the Tenant in the Premises
shall be bound by and shall observe the Rules and Regulations attached to this
Lease as Exhibit A. No rule or regulation contained herein or specified in
Exhibit A shall unreasonably restrict or adversely affect the Tenant's use of
the Premises.
6.10 Hazardous Substances. Tenant shall not cause or permit to be released
(whether by way of uncapping, pouring, spilling, spraying, spreading,
attaching, or otherwise) into or onto the Premises, or the Building/s, or the
Center, or the Common Areas (including the ground and ground water thereunder
and the sewer and drainage systems therein) any hazardous substances (as
defined or established from time to time by applicable local, state or federal
law that is in violation of any applicable law, code or ordinance. Tenant
shall immediately notify Landlord if any such release occurs, and, as to any
such release that has been caused or permitted by Tenant:
(i) Tenant shall immediately and entirely remove such released hazardous
substance, and in a manner fully in compliance with all laws pertaining to the
removal and storage or deposit thereof; and
(ii) Tenant hereby agrees to hold Landlord harmless of and from any
liability, public or private, resulting to Landlord as a result of such
release. Further, upon reasonable evidence that a release of a hazardous
substances has occurred, Tenant shall, upon landlord's demand and at Tenant's
sole expense, demonstrate to Landlord (through such tests, professional
inspections, sampling or otherwise as is, in Landlord's sole judgment
sufficient for the purpose) that Tenant has not caused or permitted any such
release of hazardous substances. Landlord warrants that as of the date of
execution hereof and to the best of its knowledge, there are no hazardous
substances stored on or within the Premises, utilized in the construction of
the Premises or existing in the Premises that would constitute a violation of
any applicable law, code or ordinance.
ARTICLE VII. INSURANCE.
7.1 Liability Insurance. Tenant covenants and agrees to maintain on the
Premises at all times during the Lease Term, or any extension or renewal
thereof, a policy or policies of comprehensive public liability and property
damage insurance with not less than $1,000,000 combined single limit for both
bodily injury and property damage.
7.2 Fire and Extended Coverage Insurance. Landlord shall, throughout the
Lease Term, or any extension or renewal thereof, maintain fire and extended
coverage (FEC) insurance on the property owned by Landlord located on the
Center in such amounts and with such deductibles as Landlord shall determine.
Landlord shall not in any way or manner insure any property of Tenant or any
property that may be in the Premises not owned by the Landlord. Tenant shall
comply with all reasonable insurance regulations so that the lowest fire,
lightning, explosion, extended coverage and liability insurance rates may be
obtained; and nothing shall be done or kept in or on the Premises by Tenant
except as reasonably necessary for the operation of Tenant's business which
will cause an increase in the premium for any such insurance on the Premises
or on any Building/s of which the Premises are a part or on any contents
located therein, over the rate usually obtained for the proper use of the
Premises permitted by this Lease or which will cause cancellation of such
insurance.
7.3 Indemnification of Landlord. Other than for the loss or injury
resulting from the negligent actions, willful misconduct or failure to
reasonably perform on the part of Landlord, its agents, employees or
contractors, Tenant shall indemnify Landlord and save Landlord harmless from
and against any and all loss (including loss of rentals payable by Tenant or
other tenants) and against all claims, actions, damages, liability and
expenses in connection with loss of life, bodily and personal injury or
damages to property arising from any occurrence in, upon or at the Premises or
any part thereof, or occasioned wholly or in part by any act or omission of
Tenant, or by anyone permitted to be on the Premises by Tenant. Tenant
assumes all risk of and Landlord shall not be liable for injury to person or
damage to property resulting from the conditions of the Premises or from the
bursting or leaking of any and all pipes, utility lines, connections, or air
conditioning or heating equipment in, on or about the Premises, or from water,
rain or snow which may leak into, issue or flow from any part of the Building.
Other than for the loss or injury resulting from the negligent actions,
willful misconduct or failure to reasonably perform on the part of the
Landlord, its agents, employees or contractors, Tenant agrees, at all times,
to indemnify and hold Landlord harmless against all actions, claims, demands,
costs damages or expenses of any kind which may be brought or made against
Landlord or which landlord may pay or incur by reason of Tenant's occupancy
of the Premises or its negligent performance of or failure to perform any of
its obligations under this Lease. In case Landlord shall, without fault on
its part, be made a party to any litigation commenced by or against Tenant,
then Tenant shall protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation. Tenant's obligations under this paragraph
shall be limited to loss or injury occurring in, on or about the Premises
only.
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION.
8.1 Eminent Domain. In the event that title to the whole or a substantial
part of the Premises shall be lawfully condemned or taken in any manner for
any public or quasi-public use, this lease and the term and estate hereby
granted shall forthwith crease and terminate as of the date of vesting title
and Landlord shall be entitled to receive the entire award. Tenant hereby
assigning to landlord the Tenant's interest therein, if any. However, nothing
herein shall be deemed to give Landlord any interest in or to require Tenant
to assign to Landlord any award made to Tenant for the taking of personal or
property or fixtures belonging to Tenant or for the interruption of our damage
to Tenant's business or for Tenant's moving expenses. A sale to a public or
quasi-public authority under threat of condemnation shall constitute a taking
by eminent domain.
In the event that title to a part of the Premises shall be so condemned or
taken where such condemnation or taking adversely affects, limits or restricts
the use of the Premises by Tenant, Landlord may terminate this lease and the
term and estate hereby granted by notifying the other party of such
termination within sixty (60) days following the date of vesting of title, and
this lease and the term and estate hereby granted shall expire on the date
specified in the notice of termination, not less than (60) days after the
giving of such notice, as fully and completely as if such date were the date
herein set for the expiration of the leas Term and the Rent hereunder shall be
apportioned as of such date. In the event that a part of the Premises is
taken and neither Landlord or Tenant elect to terminate the Lease, the Base
Rent and Additional Rent Payable by Tenant shall be reasonably adjusted by
Landlord and Tenant to reflect the partial taking of the Premises. In the
event of any condemnation or taking of any portion of the parking area of the
Center, which does not result in a reduction of the parking area by more than
twenty percent (20%), the terms of this lease shall continue in full force and
effect. If more than twenty percent (20%) of the parking area is taken,
either party shall have the right to terminate this lease upon giving written
notice to the other party within thirty (30) days of such taking.
8.2 Damage or Destruction. If the Premises, the Building or any part
thereof is damaged by fire or other casualty, cause of condition whatsoever
and Landlord shall determine not to restore said Premises or Building,
Landlord may, by written notice to Tenant given within sixty (60) days after
such damage, terminate this Lease. Such termination shall become effective as
of the date of the damage. If this Lease is not terminated as above provided
and if the Premises are made partially or wholly untenantable, Landlord, at
its expense, shall restore the same with reasonable promptness to the
condition in which Landlord furnished the Premises to Tenant at the
commencement of the Lease Term as to those items that were provided to the
Premises at Landlord's expense without any reimbursement by Tenant. Landlord
shall be under no obligation to restore any alternation, improvements or
additions to the Premises made by Tenant or paid for by Tenant, including, but
not limited to, any of the initial tenant finish done or paid for by Tenant or
any subsequent changes, alternations or additions made by Tenant or
reimbursement by Tenant.
If, as a result of fire or other casualty, cause of condition whatsoever
the Premises are made partially or wholly untenantable and, if landlord has
not given the sixty (60) day notice above provided for and fails within one
hundred twenty (120) days, effective as of the date such damage occurs to
eliminate substantial interference with Tenant's use of said Premises or
substantially to restore said Premises. Tenant may terminate this Lease after
the end of said one hundred twenty (120) days, effective as of the date such
damage occurs, by notice to Landlord given at any time prior to the
commencement of restoration of the Premises. If the Premises are rendered
totally untenantable but this Lease is not terminated, all rent shall ▇▇▇▇▇
from the date of the fire or other relevant cause or condition until the
Premises are ready for occupancy and reasonably accessible to Tenant. If a
portion of the Premises is untenantable, rent shall be prorated on a per diem
basis and apportioned in accordance with the portion of the Premises which is
usable by the Tenant until the damaged part is ready for the Tenant's
occupancy. If a substantial portion of the Premises is made untenantable
during the last two (2) years of the initial Lease Term, or during the last
two (2) years of any previously exercised Option Period, and the time required
to restore the Premises will exceed one hundred one hundred eighty (180) days,
Tenant may terminate the Lease. In all cases, due allowance shall be made for
reasonable delay caused by adjustment of insurance loss, strikes, labor
difficulties or any cause beyond Landlord's reasonable control. For the
purposes of this Lease, said Premises shall be considered tenantable so long
as and to the extent that the Premises are substantially utilized by Tenant in
the operation of its business. In any event, Tent shall be responsible for
the removal, or restoration, when applicable, of all its damaged property and
debris from the Premises, upon request by Landlord or else Tenant must
reimbursement Landlord for the cost of removal.
ARTICLE IX. DEFAULT AND REMEDIES.
9.1 Events of Default. The occurrence of any one or more of the
following events shall constitute a Default and a material breach of this
Lease by Tenant:
9.1(a) Nonpayment. Failure of Tenant to pay any installment of Rent or other
sum payable to Landlord hereunder on the date that same is due and such
failure shall continue for a period of five (5) days; or
9.1(b) Noncompliance. Failure of Tenant to comply with any term, condition
or covenant of this Lease, other than the payment of Rent or other sum of
money; or
9.1(c) Insolvency or Transfer. Insolvency, the making of a transfer in fraud
of creditors or the making of an of an assignment for the benefit of creditors
by Tenant or any guarantor of Tenant's obligation; or
9.1(d) Bankruptcy. The filing by or against Tenant or any guarantor of
Tenant's obligations hereunder of a petition in bankruptcy or for liquidation,
or adjudication as a bankrupt or insolvent in proceedings filed by or against
Tenant or such guarantor; or
9.1(e) Receiver. Appointment of receiver or trustee for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations
hereunder; or
9.1(f) Abandonment. Abandonment by Tenant of any substantial portion of the
Premises.
9.2 Remedies. In the event of the occurrence of any Default, Landlord shall
have the right, without further notice to or demand upon Tenant and without
being liable to Tenant for any damages or to any prosecution therefor, to do
any and all of the following to the extent permitted by law:
9.2(a) Repossession and Sale. Re-enter and take exclusive possession of the
Premises with or without force or legal process, refuse to allow Tenant to
enter the same or have possession thereof, change the locks on the doors to
the Premises, take possession of any furniture or fixtures or other property
in or upon the Premises (Tenant hereby waiving the benefit of all exemptions
by law), sell the same at public or private sale without notice and apply the
proceeds thereof to the costs of sale, payment of damages and payment of all
sums owing under this Lease; and/or
9.2(b) Releasing. Relet the Premises as agent of Tenant for the balance of
the term f this lease or for a shorter or longer term and receive the rents
therefor, applying them first to the payment of the expense of such reletting
and, second, to the payment of damages suffered to the Premises, and third to
all sums due and to become due under this Lease, Tenant remaining liable for
and hereby agreeing to pay Landlord any deficiency; and/or
9.2(c) Cancellation. Cancel and terminate the remaining term of this Lease,
and re-enter and take possession of the Premises free of this Lease.
Thereafter this Lease shall be null and void and the Rent in such case shall
be apportioned and paid on and up to the date of such entry. Thereafter both
parties shall be released and relieved from and of any and all obligations
thereafter to accrue hereunder. Tenant shall be liable for all loss and
damage resulting from such breach or default; and/or
9.2(d) Anticipatory Breach. Treat such default as an anticipatory breach of
this Lease and, as liquidated damages for such default, be entitled to the
difference, if any, between the sum which, at the time of such termination for
anticipatory breach represents the then present worth (computed at ten percent
(10% per year) of the excess aggregate rents and additional rents payable
hereunder that would have accrued over the balance of the Lease Term
(including renewals) had such term not been prematurely terminated, over the
aggregate market rental value of the Premises over the term (including
renewals) that the Lease would have run had it not been prematurely
terminated; and/or
9.2(e) Attorney's Fees. Recover from Tenant, landlord's attorney fees
incurred in enforcing its rights hereunder.
9.3 Remedies Cumulative. All rights and remedies expressly provided in this
Lease for Landlord's protection shall be cumulative as to each other and of
any other rights and remedies provided hereunder or by law.
9.4 No Waiver. A waiver by Landlord of a breach or default by Tenant under
the terms and conditions of this Lease shall not be construed to be a waiver
of any subsequent breach or default or of any other or the same term or
condition of this Lease, and the failure of Landlord to assert any breach or
to declare a default by Tenant shall not be construed to constitute a waiver
thereof so long as such breach or default continues unremedied.
ARTICLE X. MISCELLANEOUS
10.1 Bankruptcy of Assignment to Trustee. Neither this Lease nor any interest
therein nor any estate hereby created shall pass to any trustee or receiver in
bankruptcy or to any other receiver or assignee for the benefit of creditors
or otherwise by operation of law during the term of this Lease or any renewal
thereof.
10.2 Brokers. Except as may be expressly set forth to the contrary in the
Rider, each party represents to the other that no person, firm, corporation or
other entity is entitled to any brokerage commission or finder's fee on
account of the execution, delivery, and consummation of this Lease. Tenant
hereby agrees to indemnify Landlord and to hold Landlord free and harmless of
and from any and all claims, losses, damages, costs and expenses of whatsoever
nature, including attorneys' fees and costs of litigation arising from or
relating to any brokerage commissions or finder's fees incurred by Tenant in
connection with this Lease. Said indemnity is deemed to be reciprocal and
protects the Tenant to the same degree as landlord. Landlord recognizes ▇▇▇▇▇
& ▇▇▇▇▇, city of Ontario for the Tenant and CB Commercial city of Industry for
the landlord as the brokers in this transaction. Said brokers shall be
compensated per separate agreement.
10.3 Captions The captions used throughout this Lease for the convenience
and reference only and shall in no way be held to explain, modify, amplify, or
aid in the interpretation , construction or meaning of any provisions in this
Lease.
10.4 Certificates of Occupancy. Tenant may, prior to the commencement of the
Lease Term, apply for a certificate of occupancy to be issued by the
municipality in which the Premises are located, but this Lease shall not be
contingent on issuance thereof.
10.5 Entire Agreement. This Lease including its Exhibits and Rider, if any,
contains the entire agreement between the parties and no modification of this
Lease shall be binding upon the parties unless evidenced by an agreement in
writing signed by Landlord and Tenant after the date hereof.
10.6 Joint and Several Liability of Multiple Tenants. If there be more than
one Tenant named herein, the provisions of this Lease shall be applicable to
and binding upon such Tenants jointly and severally.
10.7 Notices. Except as otherwise herein provided, whenever by the terms of
this Lease notice shall or may be given either to landlord or to Tenant, such
notice shall be in writing and shall be deemed to have been properly delivered
if sent by certified mail, return receipt requested, postage prepaid, to
Landlord at Landlord's Address and to Tenant at the Premises, or to such other
place as Landlord or Tenant may designate in writing. The date of mailing
shall be deemed the date of delivery.
10.8 Partial Invalidity. If any term, covenant, condition or provision of
this Lease or the application thereof to any person or circumstances shall, to
any extent be invalid, unenforceable or violate a party's legal rights, then
such term, covenant, condition or provision shall be deemed to be null and
void an unenforceable, however, all other provisions of this Lease, or the
application of such term or provision to persons or circumstances other than
those which are held invalid, unenforceable or violative of legal rights,
shall not be affected thereby, shall not be affected thereby and each and
every other term, condition, covenant and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
10.9 Recording. This lease shall not be recorded by either party without the
written consent of the other.
10.10 Successors. The agreements, covenants and conditions of this Lease
shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance, or subletting by Tenant, unless permitted by
the provisions of this Lease, without the written consent of Landlord shall
vest any right in the assignee, encumbrancee or sublessee of Tenant.
10.11 Use of the Singular: Gender. The terms "Landlord" and "Tenant," and
pronouns representing the same, wherever used herein shall include the plural
as well as the singular, the feminine as well as the masculine.
10.12 Rider. A Rider consisting of 4 pages, with paragraphs numbered 1
through 47 consecutively, is attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
hereinabove stated.
LANDLORD:
GENERAL AMERICAN LIFE INSURANCE COMPANY,
a Missouri Corporation
BY: s \ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Director of Real Estate
TENANT:
BIO-CLINIC CORPORATION, A DELAWARE
CORP., A WHOLLY OWNED SUBSIDIARY
OF SUNRISE MEDICAL, INC.
BY: s \ ▇▇▇▇ ▇▇▇▇▇, VP / Gen. Mgr.
BY: s \ ▇▇▇ ▇▇▇▇▇▇, VP / Finance
BY: