LEASE
Exhibit 10.45
ARTICLE 1. LEASE TERMS
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1.1 |
LANDLORD AND TENANT. This Lease ("Lease") is entered into this 21st day of April,2016, by and between Industrial Equities Group, LLC, a Minnesota limited liability company ("Landlord") and DJO, LLC, a Delaware limited liability company ("Tenant"). |
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1.2 |
PREMISES. Landlord hereby rents, leases, lets and demises to Tenant the following described property ("Premises"), as illustrated on the site plan attached hereto as Exhibit A, approximately 34,316 rentable square feet (consisting of approximately 2,616 square feet of warehouse space, approximately 31,556 square feet of office space and approximately 000 xxxxxx xxxx xx xxxxxx xxxx) located in a building (the "Building") commonly referred to as Lakeview Business Campus III, with a street address of 000 Xxxxxx Xxxxx, Xxx Xxxxxxxx, Xxxxxxxxx 00000 which consists of approximately 46,970 square feet ("Property"). A floor plan of the Premises is attached as Exhibit B and a description of improvements to be constructed is attached hereto as Exhibit C. |
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1.3 |
LEASE TERM. The term of this Lease shall commence on October 1, 2016 ("Commencement Date") and shall terminate December 31, 2023 unless sooner terminated as hereinafter provided. In the event that Tenant does not vacate the Premises upon the expiration or termination of this Lease, Tenant shall be deemed in default of this Lease, and Landlord may commence eviction proceedings. Notwithstanding anything in this Lease to the contrary, Landlord shall have the option, in case of any such holding over, to convert the Lease term from a fixed term to a tenancy at will, in which case the term will continue and no eviction proceedings commenced until the tenancy at will is terminated. Whether or not Landlord opts to convert the term to a tenancy at will, Tenant will be liable, during any holding over period, for base rent in an amount equal to one and a quarter (1.25) times the Base Rent which would have been payable by Tenant had the holdover period been a part of the original term of this Lease, together with all additional rent as provided in this Lease. Because rent will accrue with respect to any holdover period in any event, no acceptance of rent by Landlord will be deemed an election to convert the term to a tenancy at will. Rather, Landlord will have the right to bring eviction proceedings unless and until Landlord elects, by written notice, to convert the term to a tenancy at will. |
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Landlord hereby agrees that the Landlord's Work shall be completed as evidenced by the issuance of a City issued Certificate of Occupancy, and delivery of possession shall be delivered to Tenant no later than October 1, 2016 (the "Outside Delivery and Completion Date"). Landlord hereby acknowledges and understands that (a) the Tenant is a party to a certain lease agreement (the "Tenant's Current Lease"), wherein the Tenant is currently operating at another location (the "Tenant's Current Location") and (b) the execution of this Lease (i) has resulted in the Tenant's termination of the Tenant's Current Lease; and (ii) will result in the Tenant's relocation of all or a portion of its operations from the Tenant's Current Location to the Premises. As a result of the foregoing, Landlord acknowledges and understands that it is critical to the Tenant's operations that early access to the Premises is granted to Tenant on August 1, 2016 and that the Landlord's Work is completed and that delivery of possession occur no later than the Outside Delivery and Completion Date. Accordingly, notwithstanding anything to the contrary, (a) in the event that the Landlord fails to grant Tenant early access to the Premises by August 1, 2016 as contemplated in Section 14.13 below; or (b) in the event that the Landlord's Work has not been completed on or before the Outside Delivery and Completion Date or (c) in the event that delivery of possession has not yet occurred on or before the Outside Delivery and Completion Date, and provided that such delay was not caused by the Tenant, in addition to any other rights or remedies which are available to Tenant under this Lease and/or which are otherwise available to Tenant at law or in equity, Landlord shall be obligated to pay to the Tenant an amount which is equal to $2,600.00 per day.
Months |
Monthly Base Rent |
October 1, 2016- December 31, 2016 |
$0.00 |
January 1, 2017- December 31,2017 |
$29,683.34 |
January 1, 2018- December 31, 2018 |
$30,277.01 |
January 1, 2019- December 31, 2019 |
$30,882.55 |
January 1, 2020- December 31, 2020 |
$31,500.20 |
January 1, 2021- December 31, 2021 |
$32,130.20 |
January 1, 2022- December 31, 2022 |
$32,772.81 |
January 1, 2023- December 31, 2023 |
$33,428.26 |
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1.5 |
PERMITTED USE. Office, and Warehouse and related legal purposes and for such other purposes which may be incidental thereto and for any other lawful purpose. |
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1.6 |
SECURITY DEPOSIT. $40,750.25. |
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1.7 |
PRO RATA SHARE. 73.06% |
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1.9 |
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Landlord's Address: Tenant's Address:
Industrial Equities Group LLC |
DJO,LLC |
x/x Xxxxxxxxxx Xxxxxxxx XXX |
0000 Xxxxxxxx Xxxxxx |
000 Xxxxx Xxxxxx Xxxxx |
Xxxxx, XX 00000 |
Xxxxxxxxxxx, XX 00000 |
Attention: Xxxx Xxx, Xx. Director - Global |
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Indirect Procurement |
Phone: 612/000-0000 |
Phone: 760/000-0000 |
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A copy of all non-routine or legal notices also shall be mailed or faxed to: |
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DJO,LLC Attn: General Counsel 0000 Xxxxxxxx Xxxxxx Xxxxx, XX 00000 Fax: (000) 000-0000 |
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ARTICLE 2. RENT, OPERATING EXPENSES AND SECURITY DEPOSIT, LATE CHARGES AND REPAYMENT OF FREE RENT
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2.3 |
DEFINITION OF OPERATING EXPENSES. Except as expressly stated in this Lease, the term "operating expenses" includes all expenses incurred by Landlord with respect to the maintenance and operation of the Building, including, but not limited to, the following: maintenance and repair and replacement costs; electricity, fuel, water, sewer, gas and other common Building utility charges; equipment used for maintenance and operation of the Building; operational expenses; exterior window washing; trash and snow removal; landscaping and pest control; management fees, wages and benefits payable to employees of Landlord whose duties are directly connected with the operation and maintenance of the Building; all services, supplies, repairs, replacements or other expenses for maintaining and operating the Building or project including parking and common areas; improvements made to the Building which are required under any governmental law or regulation that was not applicable to the Building at the time it was constructed; all other expenses which would generally be regarded as operating, repair, replacement and maintenance expenses; all real property taxes and installments of special assessments, including dues and assessments by means of deed restrictions and/or owner's association which accrue against the Building during the term of this Lease and legal fees incurred in connection with actions to reduce the same; and all insurance premiums Landlord is required to pay or deems necessary to pay, including fire and extended coverage, and rent loss and public liability insurance. |
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The term "operating expenses" shall not include any of the following costs or expenses:
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(i) |
the cost of repairs, replacements and general maintenance paid by the proceeds of insurance or by the Tenant or other third parties, and alterations attributed solely to tenants of the Building other than Tenant; |
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(ii) |
depreciation of the Building and equipment, fixtures, improvements, and facilities used in connection therewith; |
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(iii) |
legal expenses other than those incurred for the purpose of reducing common area costs (e.g., legal fees incurred in contesting the assessment of taxes); |
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(iv) |
costs in renovating or otherwise improving space for occupants of the Building or vacant space in the Building; |
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(v) |
expenses incurred in leasing to or procuring of tenants, leasing commissions, advertising and promotional expenses; |
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(vi) |
costs incurred in correcting defects, normal wear and tear excepted, in the construction of the Building; |
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(vii) |
to the extent Landlord was obligated to maintain insurance for such casualty under the Lease, any cost of restoration after an uninsured casualty; |
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(viii) |
interest, principal payments or amortization of any mortgage or other indebtedness of Landlord, nor depreciation allowance or expense; |
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(ix) |
Landlord's cost of electricity and other services sold or provided to tenants in the Building and for which Landlord is reimbursed by such tenants as a separate additional charge or rental over and above the base rent and additional rent payments payable under the lease agreement with such tenant; |
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(x) |
expenses incurred in connection with services or other benefits which are non building standard but are provided to other tenants or occupants of the Building |
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(xi) |
costs (limited to penalties, fines and associated legal expenses) incurred due to violations by Landlord of the terms and conditions of any lease or rental arrangement covering space in the Building; |
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(xii) |
overhead and profit increment paid to subsidiaries, partners or other affiliates of Landlord and salaries and associated costs of Landlord's employees for services on or to the Building, to the extent only that the cost of such services exceeds competitive costs of such services were they not so rendered by a subsidiary or other affiliate of Landlord; |
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(xiii) |
any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord; |
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(xiv) |
all items and services for which tenants or other parties reimburse Landlord (excluding reimbursements paid through additional rent payments); |
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(xv) |
the costs incurred and related to maintaining Landlord's existence, as a corporation, partnership or other entity; |
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(xvi) |
the costs incurred in connection with correcting defects in the construction of the Building or Building equipment (except that conditions resulting from ordinary wear and tear and use shall not be deemed defects for the purposes of this category); |
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(xvii) |
interest and penalties due to late payment of taxes, utility bills and other such costs; |
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(xviii) |
salaries or other compensation paid to employees of Landlord above the grade of building manager or in excess of their allocable service at or for the Building and costs of Landlord's general corporate overhead and general administrative expenses that would not be chargeable to basic costs of the Building in accordance with generally accepted accounting principles, consistently applied; |
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(xix) |
the cost of any repairs occasioned by eminent domain to the extent that such costs are reimbursed to Landlord by governmental authorities in eminent domain proceedings net of all expenses in connection therewith; |
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(xx) |
the cost of any artwork such as sculptures or original paintings used to decorate the Building; and |
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(xxi) |
management fees incurred by Landlord for the management of the Building which exceed four percent (4%) of all gross rentals of the Building. |
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2.5 |
SECURITY DEPOSIT. The security deposit set forth in Section 1.6 shall be held by Landlord for the performance of Tenant's covenants and obligations under this Lease, it being expressly understood that the security deposit shall not be considered an advance payment of rental or a measure of Landlord's damage in case of default by Tenant. Upon the occurrence of any event of default by Tenant or breach by Tenant of Tenant's covenants under this Lease, Landlord may, from time to time, without prejudice to any other remedy, use the security deposit to the extent necessary to make good any arrears of rent, or to repair any damage or injury, or pay any expense or liability incurred by Landlord as a result of the event of default or breach of covenant, and any remaining balance of the security deposit shall be returned by Landlord to Tenant upon termination of this Lease. If any portion of the security deposit is so used or applied, Tenant shall upon ten (10) days written notice from Landlord, deposit with Landlord by cash or cashier's check an amount sufficient to restore the security deposit to its original amount. |
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3.3 |
COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's sole cost and expense, shall comply with all laws, ordinances, orders, rules and regulations of state, federal, municipal or other agencies or bodies having jurisdiction over the use, condition or occupancy of the Premises. Tenant will comply with the reasonable rules and regulations of the Building established in writing by Landlord. Subject to the rights of Tenant under this Lease, Landlord shall have the right at all times to change and amend the rules and regulations in any reasonable manner as may be deemed advisable for the safety, care, cleanliness, preservation of good order and operation or use of the Building or the Premises. All rules and regulations of the Building will be sent by Landlord to Tenant in writing, shall be enforced by Landlord in a non-discriminatory manner, and shall thereafter be carried out and observed by Tenant. In the event of any conflict between the provisions of this Lease and any rules or regulations, the provisions of this Lease shall govern and control. |
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ARTICLE 4. UTILITIES AND ACTS OF OTHERS
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property or personnel caused by criminal acts or entry by unauthorized persons into the Premises or the Building. |
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ARTICLE 5. REPAIRS AND MAINTENANCE
Prior to the Commencement Date, Landlord will certify that the HVAC system (including all applicable HVAC equipment) serving the Premises, the plumbing and the electrical systems are in proper working condition. During the term of this Lease, Tenant shall be obligated to enter into a preventative maintenance contract with a reputable mechanical company licensed to do business in the State in which the Premises are located (the "HVAC Contractor") for the purpose of performing no less than semi-annual maintenance repairs on all HVAC equipment serving the Premises, it being understood and agreed that such preventative maintenance contract shall be consistent and comparable to industry standards for buildings which are comparable to the building of which the Premises are a part. Notwithstanding the foregoing, so long as the Tenant complies with its obligations with respect to the preventative maintenance contract with respect to the HVAC system, in the event, at any time during the term of this Lease, the HVAC Contractor determines that one or more HVAC systems (or any HVAC equipment related thereto) must be replaced, Landlord, at Landlord's sole cost and expense, shall be obligated to replace (and install) such HVAC system (or applicable HVAC equipment), it being specifically understood and agreed that in no event shall the costs incurred by Landlord be passed through or included as part of operating expenses. It is further understood that once Landlord properly replaces and installs any new HVAC equipment in accordance with the manufacturer's specifications and in accordance with applicable laws and codes, Tenant shall be fully responsible for all repairs, maintenance and replacement of such new HVAC equipment for the duration of the lease.
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5.2 |
TENANT REPAIRS. Tenant shall, at all times throughout the term of this Lease, including renewals and extensions, at its sole expense, keep and maintain the Premises in a clean, safe, sanitary and first class condition and in compliance with all applicable laws, codes, ordinances, rules and regulations. Except as provided in Section 5.1 above, Tenant's obligations hereunder shall include, but not be limited to, the maintenance, repair and replacement, if necessary, of all heating, ventilation, air conditioning, lighting and plumbing fixtures and equipment, fixtures, motors and machinery, all interior walls, partitions, doors and windows, including the regular painting thereof, all exterior entrances, windows, doors and docks and the replacement of all broken glass. When used in this provision, the term "repairs" shall include, if applicable, replacements or renewals when necessary, and all such repairs made by the Tenant shall be equal in quality and class to the original work. The Tenant shall keep and maintain all portions of the Premises and the sidewalk and areas adjoining the same in a clean and orderly condition, free of accumulation of dirt, rubbish, snow and ice. If Tenant fails, refuses or neglects to maintain or repair the Premises as required in this Lease after notice shall have been given Tenant and provided such failure shall continue beyond any applicable cure period, in accordance with this Lease, Landlord may make such repairs without liability to Tenant for any loss or damage that may accrue to Tenant's merchandise, fixtures or other property or to Tenant's business by reason thereof, and upon completion thereof, Tenant shall pay to Landlord all costs plus fifteen percent (15%) for overhead incurred by Landlord in making such repairs upon presentation to Tenant of xxxx therefor. |
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ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
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Build to suit office space per Exhibit B. |
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Paint office area with industry standard paint, color selection by Tenant. |
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Stripe Thirty (30) new parking stalls in truck court and along Hwy 88 as shown in Exhibit D. |
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Install new Landlord's standard carpet in office area, color selection by Tenant. |
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Service and certify existing HVAC system servicing the Premises is in good working order as of the Commencement Date. |
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Ensure that all existing HVAC, plumbing, electrical, doors and hardware are in good working order as of the Commencement Date. |
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Landlord's scope of work will not be contrary to or in conflict with the specific terms which are set forth in this Section 6.1, Exhibit B attached hereto. In the event that the terms of this Section 6.1, and the Exhibit B attached hereto, do not encompass all of the scope of work that is the Landlord's Work, Landlord and Tenant agree to use reasonable efforts to cooperate with each other and to act in good faith. Notwithstanding the foregoing, Tenant shall have the right to request changes to the scope of the Landlord's Work so long as such changes do not affect the
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cost of the Landlord's Work or the date by which Landlord must complete the Landlord's Work. If Tenant's requested changes increase the scope or cost of work, Landlord shall inform Tenant and Tenant shall be responsible for all costs associated with such change. All changes shall be in writing.
As of the Commencement Date, Landlord shall be responsible for (a) ensuring that the Premises, the common areas, the Building and the Property are in compliance with all applicable laws and codes (including, but not limited to, the ADA); and (b) ensuring that the Landlord's Work is in compliance with the plans and specifications and the terms of this Lease and all applicable laws and codes, including, but not limited to, ADA.
As soon as the Landlord's Work has been substantially completed, Landlord shall notify Tenant. Regardless of when completed or corrected, all punch list items shall be completed or corrected by Landlord in a good and workmanlike first-class manner, structurally sound and free of latent defects, in accordance with all applicable laws and plans
Landlord shall cause all contractors and subcontractors involved in the construction of the Landlord's Work to: (1) maintain insurance covering risks associated with the construction of the Landlord's Work, including, but not limited to worker's compensation, builder's risk and commercial general liability insurance covering personal injury and property damage, with contractual liability endorsement, in the amount of not less than One Million Dollars ($1,000,000) per occurrence for personal injuries or deaths of persons occurring in are about the area of, or in connection with the construction of, the Landlord's Work, and which insurance policy or policies shall name Tenant as an additional insured; and (2) indemnify, hold harmless and defend Tenant from and against any and all claims (including all costs, counsel fees, expenses and liabilities incurred in connection with any such claim or action or proceeding brought thereon) or liability for any injury or damage to any person in, on or about the Premises or any part thereof, when such injury or damage shall be caused by the act, neglect, fault of or omission of any duty with respect to the same by such contractors and subcontractors, their respective agents, servants, employees and invitees to the Premises.
Subject to (a) the Landlord's Work set forth in this Section 6.1 and on Exhibit B attached hereto, and (b) any continuing obligations of Landlord as expressly stated in this Lease, and (c) any representations of Landlord which are expressly stated in this Lease, Tenant agrees to take the Premises in its "AS-IS" condition.
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ARTICLE 7. CASUALTY AND INSURANCE
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7.5 |
HOLD HARMLESS. Landlord shall not be liable to Tenant's employees, agents, invitees, licensees or visitors, or to any other person, for an injury to a person or damage to property on or about the Premises (i) caused by any act or omission of Tenant, its agents, servants or employees, or of any other person entering upon the Premises under express or implied invitation by Tenant, or (ii) caused by the improvements located on the Premises becoming out of repair, or (iii) unless caused by the negligence or willful misconduct of Landlord, its employees, agents, representatives or contractors, the failure or cessation of any service provided by Landlord (including security service and devices), or caused by leakage of gas, oil, water or steam or by electricity emanating from the Premises. Tenant agrees to indemnify and hold harmless Landlord of and from any loss, attorney's fees, expenses or claims arising out of any such damage or injury. Except for any claims, rights of recovery and causes of action that Tenant has released, Landlord shall hold Tenant harmless and defend the Tenant against any and all claims (including all costs, counsel fees, expenses and liabilities incurred in connection with any such claim or action or proceeding brought thereon) or liability for any injury or damage to any person in, on or about the Premises, the Building or the Property, when such injury or damage shall be caused by the act, neglect, fault of, or omission of any duty with respect to the same by Landlord, its employees, agents, representatives or contractors. The provisions of this Section 7.5 shall survive the expiration or termination of this Lease with respect to any claims or liability occurring prior to such expiration or termination. |
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A. |
Landlord shall maintain all risks property insurance covering the Building in an amount not less than the "replacement cost" thereof. Said policy or policies or certificates thereof shall be delivered to Tenant by Landlord upon commencement of the Lease and thereafter, as requested in writing by Tenant but no more than annually. |
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B. |
Landlord shall maintain during the term of this Lease a policy or policies of worker's compensation and commercial general liability insurance. The general liability policy shall include coverage for bodily injury and property damage, with contractual liability coverage, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence. |
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8.2 |
PARTIAL TAKING. If all or a substantial part of this Premises are taken for a public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain or by purchase in lieu thereof, and this Lease is not terminated as provided in Section 8.1 above, the rent payable under this Lease during the unexpired portion of the term shall be adjusted to such an extent as may be fair and reasonable under the circumstances. Tenant shall have no claim to the condemnation award or proceeds in lieu thereof, except that Tenant shall be entitled to a separate award for the cost of removing and moving its personal property. |
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ARTICLE 9. ASSIGNMENT OR SUBLEASE
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following receipt thereof by Tenant; or (2) refuse, in its sole and absolute discretion and judgment, to consent to the proposed assignment or sublease, which refusal shall be deemed to have been exercised unless Landlord gives Tenant written notice providing otherwise. Upon the occurrence of an event of default, if all or any part of the Premises are then assigned or sublet, Landlord, in addition to any other remedies provided by this Lease or provided by law, may, at its option, collect directly from the assignee or sublessee all rents becoming due to Tenant by reason of this assignment or sublease, and Landlord shall have a security interest in all properties on the Premises to secure payment of such sums.. Any collection directly by Landlord from the assignee or sublessee shall not be construed to constitute a novation or a release of Tenant or any guarantor from the further performance of its obligation under this Lease. |
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ARTICLE 10. INTENTIONALLY OMITTED ARTICLE
In the event that an order for relief is entered in any case under Title 11, U.S.C. (the "Bankruptcy Code") in which Tenant is the debtor and: (A) Tenant as debtor-in-possession, or any trustee who may be appointed in the case (the "Trustee") seeks to assume the Lease, then Tenant, or Trustee if applicable, in addition to providing adequate assurance described in applicable provisions of the Bankruptcy Code, shall provide adequate assurance to Landlord of Tenant's future performance under this Lease by depositing with Landlord a sum equal to the lesser of twenty-five percent (25%) of the rental or other charges due for the balance of this Lease term or six (6) months' rent ("Security"), to be held (without any allowance or interest thereon) to secure Tenant's obligation under the Lease, and (B) Tenant, or Trustee if applicable, seeks to assign the Lease after assumption of the same, then Tenant, in addition to providing adequate assurance described in applicable provisions of the Bankruptcy Code, shall provide adequate assurance to Landlord of the proposed assignee's future performance under the Lease by depositing with Landlord, a sum equal to the Security to be held (without any allowance or interest thereon) to secure performance under the Lease. Nothing contained herein expresses or implies, or shall be construed to express or imply, that Landlord is consenting to assumption and/or assignment of the Lease by Tenant, and Landlord expressly reserves all of its rights to object to any assumption and/or assignment of the Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of any "fire", "bankruptcy", "going out of business" or auction sale in or from the Premises.
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In the event of election under (ii) to terminate Tenant's right to possession only, Landlord may, at Landlord's option, enter the Premises and take and hold possession thereof, without such entry into possession terminating this Lease or releasing Tenant in whole or in part from Tenant's obligation to pay all amounts hereunder for the full stated term. Upon such re-entry, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without becoming liable for any loss or damage which may be occasioned thereby. Such re-entry shall be conducted in the following manner: without resort to judicial process or notice of any kind if Tenant has abandoned or voluntarily surrendered possession of the Premises, and, otherwise, by resort to judicial process. Upon and after entry into possession without termination of the Lease, Landlord may, but is not obligated to, relet the Premises, or any part thereof, to anyone other than the Tenant for such time and upon such terms as Landlord, in Landlord's sole discretion, shall determine. Landlord may make alterations and repairs to the Premises to the extent deemed by Landlord necessary or desirable.
Upon such re-entry, Tenant shall be liable to Landlord as follows:
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A. |
For reasonable attorney's fees incurred by Landlord in connection with exercising any remedy hereunder. |
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B. |
For the unpaid installments of Base Rent, additional rent or other unpaid sums which were due prior to such re-entry, including interest and late payment fees, which sums shall be payable immediately. |
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C. |
For the installments of Base Rent, additional rent, and other sums falling due pursuant to the provisions of this Lease for the period after re-entry during which the Premises remain vacant, including late payment charges and interest, which sums shall be payable as they become due hereunder. |
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D. |
For all reasonable expenses incurred in releasing the Premises, including leasing commissions, attorney's fees, and costs of alteration or repairs, which shall be payable by Tenant as they are incurred by Landlord: and |
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E. |
While the Premises are subject to any new lease or leases made pursuant to this Section, for the amount by which the monthly installments payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. |
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Notwithstanding Landlord's election to terminate Tenant's right to possession only, and notwithstanding any reletting without termination, Landlord, at any time thereafter, may elect to terminate this Lease, and to recover (in lieu of the amounts which would thereafter be payable pursuant to the foregoing, but not in diminution of the amounts payable as aggregate sum equal to the amount by which the rental value of the portion of the term unexpired at the time of such election is less than an amount equal to the unpaid base rent, and additional rent and all other charges which would have been payable by Tenant for the unexpired portion of the term of this Lease, which deficiency and all expenses incident thereto, including commissions, attorney's fees, expenses of alterations and repairs, shall be due to Landlord as of the time Landlord exercises said election, notwithstanding that the term had not expired. If Landlord, after such re-entry, leases the Premises, then the rent payable under such new Lease shall be conclusive evidence of the rental value of the unexpired portion of the term of this Lease.
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If this Lease shall be terminated by reason of bankruptcy or insolvency of Tenant, Landlord shall be entitled to recover from Tenant or Tenant's estate, as liquidated damages for loss of bargain and not as a penalty, the amount determined by the immediately preceding paragraph.
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A. |
The rights and remedies of Landlord set forth herein shall be in addition to any other right and remedy now and hereafter provided by law. All rights and remedies shall be cumulative and not exclusive of each other. Landlord may exercise its rights and remedies at any time, in any order, to any extent, and as often as Landlord deems advisable without regard to whether the exercise of one right or remedy precedes, concurs with or succeeds the exercise of another. |
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B. |
A single or partial exercise of a right or remedy shall not preclude a further exercise thereof, or the exercise of another right or remedy from time to time. |
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C. |
No delay or omission by Landlord in exercising a right or remedy shall exhaust or impair the same or constitute a waiver of, or acquiesce to, a Default. |
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D. |
No waiver of Default shall extend to or affect any other Default or impair any right or remedy with respect thereto. |
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E. |
No action or inaction by Landlord shall constitute a waiver of Default. |
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F. |
No waiver of a Default shall be effective unless it is in writing and signed by Landlord. |
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11.6 |
LANDLORD EVENTS OF DEFAULT. In the event that Landlord fails to perform any of its obligations under this Lease and provided that such failure shall continue for a period of thirty (30) days after written notice from Tenant, Tenant, at Tenant's option and in addition to any other remedies which Tenant may have at law or in equity, and without its actions being deemed a cure of Landlord's default, Tenant may, at is sole option (i) exercise "self help" and pay or perform such obligations; or (ii) xxx for damages. In the event that Tenant lawfully exercises its right to "self-help" as contemplated herein, Landlord shall reimburse Tenant for any reasonable amounts incurred by Tenant within ten (10) days after written demand by Tenant (such written demand to include reasonable supporting documentation of competitive bids). |
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ARTICLE 12. RELOCATION- INTENTIONALLY OMITTED
ARTICLE 13. AMENDMENT AND LIMITATION OF WARRANTIES
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14.4 |
HEADINGS. The section headings appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any Section. |
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Notwithstanding any provision in this Lease to the contrary, Tenant shall not have any liability with respect to, and Landlord shall protect, indemnify, defend and hold Tenant harmless for, from and against any and all claims, costs, expenses, suits, judgments, actions, investigations, proceedings and liabilities arising out of or in connection with (i) any Hazardous Materials present on the Property or Premises prior to the Commencement Date, (ii) any Hazardous Materials brought onto the Property or the Premises by any third party (other than employees or invitees of Tenant) during the lease term or (iii) the migration of any Hazardous Materials described in clauses (i) or (ii) at any time before, during or after the lease term.
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14.8 |
SEVERABILITY. If any provision of this Lease or the application thereof to any person or circumstances shall be invalid or unenforceable to any extent, the remainder of this Lease and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. |
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14.15 |
RIGHT OF FIRST OFFER: After Landlord initially leases all contiguous space at the Lease Premises, provided Tenant is not in default under the terms and conditions of this Lease and provided further that at least four (4) years either remain on the lease term or Tenant agrees to modify the lease under terms and conditions acceptable to Landlord to provide for a total of four (4) years on the total leased premises, then Landlord shall give Tenant written notice that specifically defined (in the notice) space, contiguous to the existing Premises, is either immediately available for occupancy or will become available for occupancy within the next 180 days. After Landlord gives such notice, Tenant has a ten (10) business day option to lease this contiguous space, as-is, with no improvements or warranties as to condition, for a term beginning when the space becomes available for occupancy by Tenant and ending with the term of Tenant's Lease, subject to any option to extend or renew. If, by the end of said ten (10) business day period, Tenant does not inform Landlord in writing that Tenant is electing to exercise such option for this contiguous space, then Tenant shall be deemed not to have exercised such option. The rental rates used in the Lease will carry over and apply to the contiguous space, provided, though, that Landlord shall have the right to adjust the rate (and will so state in its notice to Tenant), as Landlord sees fit in its reasonable discretion, to reflect any differences in the quality or type of space or finish found in the contiguous space compared to the existing Premises. Example: an upward adjustment to reflect more office finished space in the contiguous space. Landlord will not lease the contiguous space to a third party until Landlord gives Tenant the notice and the ten (10) business day option described herein to add the contiguous space to the Premises has expired. If Tenant does not exercise such option within the ten (10) business days allowed, with time being of the essence, the right of first offer, created in this Section, will expire, whereupon Landlord will have the right to lease the contiguous space to a third party on such terms as Landlord may desire. |
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective the day and year first above written.
LANDLORD: Industrial Equities Group LLC a Minnes a limited liability company |
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TENANT: DJO,LLC a Delaware limited liability company |
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By: |
/s/ Xxxx X. Xxxxx |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Xxxx X. Xxxxx |
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Its: |
Managing Agent |
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Its: |
Executive Vice President, General Counsel and Secretary |
Date: |
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Date: |
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