EXHIBIT 10.19
THIS INDENTURE, made in duplicate this 25 day of June, 1998.
PARTIES
by and between Kamko Investments, a Minnesota General Partnership
hereinafter designated and referred to as lessor, and Aetrium Incorporated, a
Minnesota Corporation hereinafter designated and referred to as tenant,
WITNESSETH: THAT said lessor in consideration of the rents and
covenants hereinafter mentioned, to be paid and performed by said tenant, does
hereby demise, lease and let unto the said tenant, and the said tenant does
hereby hire and take from the said lessor, the following described premises
situate in the City of North St. Xxxx County of Xxxxxx State of Minnesota
DESCRIPTION OF PREMISES.
to-wit: A 30,382 square foot building located at 2342, 2346, 0000 Xxxxx Xxxxxx
Xxxxx Xx. Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxx, situated on acreage, the legal
description of which is: Xxxx 0, 0, 00, 00, xxx 00, Xxxxx 18, North
St. Xxxx Proper, Xxxxxx County.
TERM.
TO HAVE AND TO HOLD the above premises just as they are, without any liability
or obligation on the part of said lessor of making any alterations, improvements
or repairs of any kind on or about said premises or the building or buildings of
which they are a part, or the equipment, fixtures, plumbing, appliances, or
machinery in, upon or serving same, or the streets, alleys, areas, area-ways or
passages adjoining or appurtenant thereto, for the term of from and after the 15
day of March, 1998, to the 14 day of February 2006, both dates inclusive, for
the following purposes and for no other purposes, to-wit:
office space, manufacturing, sales, and services
NATURE OF OCCUPANCY.
RENT.
And the said tenant agrees to and with said lessor to pay the lessor as rent for
the above mentioned premises the sum of One million five hundred eighty-two
thousand three hundred sixty-eight and no/100------ Dollars ($1,582,368.00) in
monthly payments of Sixteen thousand four hundred eighty-three and no/100------
Dollars ($16,483.00), payable in advance on the first day of each and every
month for and during the full term of this lease, at the office of 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000. (Prorated for the first and
last month if the term does not start on the first day of a month.)
TENANT TO MAINTAIN AND SURRENDER PREMISES IN GOOD ORDER.
The said tenant also covenants and agrees with the lessor as
follows: That the tenant will keep at his own expense said demised premises and
the equipment, plumbing, drains, fixtures, appliances and machinery in, upon,
serving or appurtenant to said demised premises, in good repair and in good
sanitary condition during said term, and that he will replace at his own expense
promptly any and all glass broken in or about said premises with glass of the
same quality; that he will make no alterations in or additions to said premises,
without first obtaining the lessor's written consent, and that he will not use
or permit anything upon said premises that will increase the rate of insurance
thereon, or anything that may be dangerous to life or limb, and that he will not
in any manner deface or injure said demised premises, or any part thereof, or
overload the floors, or do or permit anything to be done upon said premises or
in the passageways, alleys, areas, area-ways, sidewalks or streets adjacent
thereto, that will amount to or create a nuisance; and that he will not use said
premises or permit the same or any part thereof to be used for lodging or
sleeping purposes, or for any purpose contrary to the laws, ordinances or
regulations of the United States of America or the State of Minnesota, or the
City of North St. Xxxx or of any rules or regulations of the City of North St.
Xxxx, or of any boards or officers of said city; and the tenant agrees to return
said premises peaceably and promptly so the lessor at the end of the term of
this lease, or at any previous termination thereof, in as good condition as the
same are now in or may hereafter be put in, loss by fire and ordinary wear
excepted.
ICE AND SNOW.
UTILITIES.
And the tenant further covenants and agrees to keep the sidewalks
bordering on said demised premises (where the leased space borders upon a
sidewalk or passageway) and the roof of said demised premises at all times free
from ice and snow and other obstructions, and to neither waste nor misuse water,
electricity, gas, steam, or any other utilities or agencies which are or may be
furnished by the lessor, and to promptly pay all rates, costs and charges for
the same, except as to such of the same, if any, as the lessor has specifically
agreed herein to furnish free of charge.
SIGNS.
Lessee shall not erect or permit to be erected on said premises, any
signs on the exterior of the premises or buildings without the written consent
or lessor endorsed hereon nor place or permit to be placed in any portion of any
of the demised premises any weight or weights in excess of the reasonable or
safe carrying capacity of the structure.
SUBLEASING.
The tenant agrees that he will not sublet the demised premises, or
any part thereof, and will not assign this lease or any interest therein, nor
permit such lease to become transferred by operation of law or otherwise, and
that no act or acts will be done or suffered whereby the same may be or become
sublet or assigned in whole or in part, unless the written consent of the lessor
endorsed thereon shall be first obtained in each and every case of underletting
or assignment, as they shall from time to time occur to be desired, and that
nothing whatever shall be held to be a waiver of or supersede the necessity of
such endorsement.
BANKRUPTCY.
Any assignment, sale in bankruptcy or insolvency of the lessee may,
at the option of the lessor, be considered an assignment within the meaning of
this lease and as a breach of the covenants hereof.
*Such consent not to be unreasonably withheld
NOTICE TO CLEAN PREMISES.
The tenant further covenants and agrees that the service of notice
by any officer of the City of N. St. Xxxx upon either party to this lease to
clean said premises, or to do any other act in connection therewith, shall be
conclusive evidence as between the parties hereto of the breach by the tenant of
the covenant with respect to the non-performance of which by the tenant such
notice has been served.
Any notice from the lessor to the tenant, relating to the demised
premises or the occupancy thereof, shall be deemed duly served if left at the
demised premises addressed to the tenant.
TENANT TO COMPLY WITH CITY REGULATIONS.
The tenant further covenants and agrees at its own expense to
observe and keep all regulations and requirements of the city of N. St. Xxxx or
other public authorities in force at the time of the taking possession by the
tenant of the demised premises or which may thereafter be made regarding the
condition and conduct of said demised premises, any part thereof, and the
sidewalks adjacent thereto, including all building, fire, sanitary, police or
other regulations.
QUIET ENJOYMENT.
The lessor agrees and covenants that the tenant, on paying the rent
and performing the covenants aforesaid, shall and may peaceably and quietly
have, hold and enjoy the said demised premises for the term aforesaid, except as
in this lease otherwise provided.
BOND AGAINST LIENS.
*by Tenant
It is understood and agreed with respect to all alterations and
repairs, improvements or alterations* to said demised premises, or any part
thereof, which shall only be with the written consent of the lessor, that tenant
shall and will in each instance save said lessor and said premises forever
harmless and free from all costs, damages, loss and liability of every kind and
character which may be claimed, asserted or charged, including liability to
adjacent owners based upon the acts of negligence of said tenants or their
agents, contractors or employees, or upon the negligence of any other person or
persons in or about said premises or upon the failure of any or either of them
to observe and comply with the requirement of the law or with the regulations of
the authorities in the said city of N. St. Xxxx and will preserve and hold the
lessor and said premises forever free and clear from liens for labor and
material furnished. And the tenant agrees that it will from time to time before
making any such repairs, improvements or alterations furnish the lessor with a
bond in an amount and with sureties satisfactory to the lessor conditioned for
the performance by the tenant of the matters and things in this paragraph
required to be done by the tenant.
RIGHT OF RE-ENTRY.
SUBLEASING.
TERMINATION OF LEASE UNDER BANKRUPTCY.
It is further agreed between the lessor and tenant this lease is
made upon the condition that if the tenant shall neglect or fail to keep,
observe and perform any of the covenants and agreements contained in this lease,
which are to be kept, observed or performed by the tenant, or if the leasehold
interest of the tenant shall be taken on execution or other process of law, or
if the tenant shall petition to be or be declared bankrupt or insolvent
according to law, or if the tenant shall vacate said premises or abandon the
same during the term of this lease, then and in any of said cases the lessor may
immediately or at any time thereafter, and without further notice or demand,
enter into and upon said premises, or any part thereof, in the name of the
whole, and take absolute possession of the same fully and absolutely, without
such re-entry working a forfeiture of the rents to be paid and the covenants to
be performed by the lessee for the full term of this lease, and may at the
lessor's election lease or sublet said premises, or any part thereof, on such
terms and conditions and for such rents and for such time as the lessor may
elect, and after crediting the rent actually collected by the lessor from such
reletting on the rentals stipulated to be paid under this lease by the tenant
from time to time, collect from the tenant any balance remaining due from time
to time on the rent reserved under this lease, charging to the tenant such
reasonable expenses as the lessor may expend in putting the premises in
tenantable condition. Or the lessor may at his election and upon written notice
to the tenant declare this lease forfeited and void, and may thereupon re-enter
and take full and absolute possession of said premises as the owner thereof, and
free from any right or claim of the tenant, or any person or persons claiming
through or under the tenant; and such election and re-entry last mentioned shall
be and constitute an absolute bar to any right to enter by the tenant upon the
payment of all arrearages of rent and costs after a dispossession under any suit
or process for breach of any of the covenants of this lease, and the
commencement by the lessor of any action to recover possession of said premises
aforesaid shall be deemed a sufficient notice of election of said lessor to
treat this lease as void and terminated, without the written notice above
specified, unless the lessor shall in writing, before beginning such proceeding,
notify the tenant that after obtaining such possession the lessor will continue
to look to the tenant for the performance of this lease and will submit the
premises on the tenant's account, in the manner as above provided.
It is further agreed between the parties to this lease:
See attached Addendum to Lease Agreement for additional provisions. Also see
Exhibit "A"
Lessee, upon leaving the premises hereby leased, shall at his own
expense remove all ashes, dirt, rubbish and refuse, and upon lessee's failure so
to do, lessor may immediately without further notice to lessee do the same at
lessee's expense, which the lessee shall immediately pay upon receipt of a xxxx
for same from lessor.
NOTICE OF VACANCY (ILLEGIBLE) TO TERMINATE.
The tenant further agrees to give the lessor written notice 120
days before the expiration of this lease of his intention to vacate at the end
of this lease otherwise the lessor will have the option of continuing this lease
for one year from and after the expiration of this lease without notice to the
tenant. If, however, the lessor does not elect to so continue this lease and the
tenant remains in said premises after the expiration of the term of this lease,
such remaining in possession shall not, except at the option of the lessor,
extend the term of this lease, and the tenant shall promptly vacate said
premises; and if for any reason the tenant does not promptly vacate the premises
at the end of the term, the tenant agrees to pay the lessor, for such time as
elapses between the end of the term of this lease and the time when the tenant
actually vacates the premises, a pro rata rental equal to one and one-half (1
1/2) times the rent provided to be paid during the term of the lease.
The tenant agrees that no assent, express or implied, by the lessor
to any breach of any of the tenant's covenants or agreements shall be deemed or
taken to be a waiver of any succeeding breach of such covenant.
RIGHT OF ENTRY.
The lessor shall at all times have the right to enter upon said premises to
inspect their condition, and at his election to make reasonable and necessary
repairs thereon for the protection and preservation thereof, but nothing herein
shall be construed to require the lessor to make such repairs, and the lessor
shall not be liable to the tenant, or any other person or persons, for failure
or delay in making said repairs, or for damage or injury to person or property
caused in or by the making of such repairs, or the doing of such work. The
lessor shall have the right during the last 30 days of the term of this lease to
place and maintain on the demised premises and in the windows thereof the usual
notice of "To Let" or "To Rent," and to show said premises to prospective
tenants.
HEIRS AND OTHERS.
Each of the covenants, provisions, terms and agreements of this
lease shall inure to the benefit of and shall be obligatory upon the respective
heirs, executors, administrators, successors and assigns of the lessor and
tenant respectively.
There are no understandings or agreements outside of this lease.
IN TESTIMONY WHEREOF the lessor and tenant have hereunto set their
hands and seals the day and year first written. We, the tenant, hereby
acknowledge that at the time of making and delivery of this lease and mortgage
lien, the Lessor delivered to us a full, true and complete copy of same.
Signed, sealed and delivered in presence of:
/s/ Xxxxxxx X. Xxxx
---------------------
Xxxxxxx X. Xxxx As to Tenant
Vice President, Corporate Administration
/s/ X.X. Xxxxxxx, Xx.
---------------------
As to Lessor
COUNTY OF _________________}
} ss.
STATE OF __________________}
ON THIS ________DAY OF _________19__, BEFORE ME, A NOTARY PUBLIC WITHIN AND
FOR SAID COUNTY, PERSONALLY APPEARED _______________________ TO ME PERSONALLY
KNOWN, WHO, BEING BY ME DULY SWORN, DID SAY THAT THEY ARE THE VICE-PRESIDENT AND
SECRETARY OF THE CORPORATION NAMED IN THE FOREGOING INSTRUMENT, AND THAT THE
SEAL AFFIXED TO SAID INSTRUMENT IS THE CORPORATE SEAL OF SAID CORPORATION, AND
THAT SAID INSTRUMENT WAS SIGNED AND SEALED IN BEHALF OF SOLD CORPORATION BY
AUTHORITY OF ITS BOARD OF ___________ AND SAID ___________ ACKNOWLEDGED SAID
INSTRUMENT TO BE THE FREE ACT AND DEED OF SAID CORPORATION.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
COUNTY OF _________________}
} ss.
STATE OF __________________}
ON THIS ________DAY OF _________19__, BEFORE ME, A ________________
WITHIN AND FOR SAID COUNTY, PERSONALLY APPEARED
--------------------------------------------------------------
--------------------------------------------------------------
TO ME KNOWN TO BE THE PERSON DESCRIBED IN AND WHO EXECUTED THE FOREGOING
INSTRUMENT, AND ACKNOWLEDGED THAT HE EXECUTED THE SAME AS _________ FREE ACT AND
DEED.
--------------------------------------------------------------
--------------------------------------------------------------
ASSIGNMENT
For value received, the undersigned
,Tenant,
hereby sells, assigns, transfers, and sets over unto all h____ right, title and
interest to the within lease and premises therein described; It being
understood, however, that this transfer in no way releases said tenant from h___
liability for the performance of all the terms, covenants and payment of rental
under said lease.
__________________________________________
For value received, ________________ hereby assumes all the
obligations under the terms of the within lease and agrees to perform all of the
terms, covenants and conditions and pay the rent as therein stipulated, pursuant
to the above agreement. __________________________________________
The within landlord hereby consents to the above assignment.
__________________________________________
__________________________________________
Dated this ___________ day of _____________ A. D. 19__
BUSINESS LEASE
FROM
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
Premises -----------------------------------------------------------------------
--------------------------------------------------------------------------------
Amount -----------------------------------------------------------------------
--------------------------------------------------------------------------------
Date __________________________, 19 _________
Expiration _____________________, 19 _________
================================================================================
Addendum to Lease Agreement Dated June 25, 1998 between KAMKO Investments, a
Minnesota General Partnership and Aetrium Incorporated, a MN Corporation
PROPERTY TAXES AND ASSESSMENTS
Tenant shall pay all property taxes and assessments due and payable in the
calendar year of 1998 and each year thereafter throughout the term of the lease
and extensions thereof which are assessed against the legal description set
forth in Exhibit "A" attached hereto. Said taxes and assessments shall be paid
by tenant when due and payable to the assessing authority.
RIGHT OF FIRST REFUSAL
Should Lessor opt to sell the Demised Premises at any time after the initial
term of the lease for so long as the lease remains in effect, Tenant shall have
Right of First Refusal.
EMINENT DOMAIN
If the whole of the Demised Premises shall be taken by any public authority
under the power of eminent domain, then the term of this lease shall cease as of
the day possession shall be taken by such public authority, and the rent shall
be paid up to that date with a proportionate refund by Lessor of such rent as
shall have been paid in advance. In the event that more than twenty percent
(20%) of the floor area of the building or the parking areas in the Demised
Premises be so taken, the Lessor shall have the right to terminate this lease at
the time and with the rent adjustment as above in this article provided, by
giving Tenant written notice of termination within thirty (30) days after the
taking of possession by such public authority.
If twenty percent (20%) or more of the floor area of the building in the Demised
Premises or twenty percent (20%) or more of the parking areas shall be so taken,
then Tenant shall have the right either to terminate this lease, or, subject to
Lessor's right of termination as set forth above in this Article, to continue in
possession of the remainder of the Demised Premises upon notice in writing to
Lessor of Tenant's intention within thirty (30) days after such taking of
possession. In the event Tenant elects to remain possession, and Lessor does not
so terminate, all of the terms herein provided shall continue in effect except
that the rent shall be proportionately and equitably abated based on the area of
the Demised Premises, if any, taken and Lessor shall make all necessary repairs
of alterations to the building.
All damages awarded for such taking under the power of eminent domain, whether
for the whole or a part of the Demised Premises, shall be the property of Lessor
whether such damages shall be awarded as compensation for diminution in value of
the leasehold or to the fee of the Demised Premises; provided, however, that
Lessor shall not be entitled to any separate award made to Tenant for loss of
business, depreciation to, and cost of removal of stock and fixtures, and
relocation of its business.
1
INDEMNITY AND INSURANCE
INDEMNITY. To the fullest extent permitted bv law, the Tenant agrees to
indemnify and hold harmless Lessor, Lessor's agents, and employees of any of
them, from and against all claims, damages, losses and expenses including but
not limited to attorneys fees, arising from or resulting from any accident,
injury or damage whatsoever caused to any person or to the property of any
person during the term hereof in or about the Demised Premises and not arising
or resulting in connection with the construction cIff the Demised Premises or
arising from or resulting from any accident,injury or damage during the term
hereof outside of the Demised Premises but within the legal description set
forth on Exhibit "A" attached hereto where such accident, injury or damage
results from a negligent act or omission on the part of Tenant or Tenant's
officers, agents, and emplofees of any of them.
ASSUMPTION OF RISK. Tenant agrees to use and occupy the Demised Premises and to
use all other nar-ts of the land in the legal description as set forth in
Exhibit "A" attached hereto at its own risk, and further aarees that Lessor
shall have no reszonsibilitv or liabilitv for ~ny loss or damage to fixtures,
equipment, merchandise or other personal property c"F Tenant not covered by
construction casualty insurance, which Lessor agrees to carry during the
course of construction of the De,.aised Premises with coverage limits reasonably
acceptable to Tenant.
LIABILITY INSURANCE. Tenant shall maintain in effect at all times during the
term of the Lease and any extension thereof a "Commercial General Liability
insurance" policy (Insurance Services Office form title), providing coverage on
an "occurrence," rather than on a "claims made" basis, which policy shall
include, but not be limited to, coverage for Bodily Injury, Property Damage,
Personal Injury, Contractual Liability (applying to this Document), Independent
Contractors, and Products-Complete Ozerations liability, or an equivalent form
(or forms), so long as such eauivalent form (or forms) affords coverage which
is at least as broad. An Insurance Sez-vices Office "Comprehensive General
Liability" policy which includes a Broad Form Endorsement GL 0404 (Insurance
Services Office designation) shall be considered to be an acceptable equivalent
policy form. Such policy shall name Lessor as an Additional Insured thereunder.
Tenant agrees to maintain at all times during the term of this Lease and any
extensions thereof, a combined liability policy limit of at least $2,000,000.00
each occurrence applying to liability for Bodily Injury, Personal Injury, and
Property Damage, WHICH combined limit may be satisfied by the limit afforded
under its Commercial General Liability Policy, or equivalent policy, or by such
policy in combination with the limits afforded by an Umbrella or Excess
Liability Policy (or policies); provided, that the coverage afforded under any
such Umbrella or Excess Liability Policy is at least as broad in all material
respects as that afforded by the underlying Commercial General Liability Policy
(or equivalent
2
underlying policy), and further, that Lessor is included as an Additional
Insured thereunder.
Such Comprehensive General Liability Policy and Umbrella or Excess Liability
Policy (or policies) may provide aggregate limits for some or all of the
coverages afforded thereunder, so long as such aggregate limits have not, as of
the beginning of the lease term or at any time during the lease term, been
reduced to less than the total required each occurrence limit stated above, and
further, that the Umbrella or Excess Liability Policy provides coverage from the
point that such aggregate limits in underlying Umbrella or Excess Liability
Policy which "drops down" to respond immediately over reduced underlying limits,
or in place of exhausted underlying limits, but subject to a deductible or
"retention" amount shall be acceptable in this regard so long as such deductible
or "retention" amount does not cause Tenan-t's total deductible or retention for
each occurrence to exceed the amount shown in the provision immediately below.
Tenant's liability insurance coverage may be subject to a deductible,
"retention" or "participation" provision) requiring the Tenant to remain
responsible for a stated amount or percentage of each covered loss; provided,
however, that such deductible, retention, or participation amount shall not
exceed $5,000.00 each occurrence.
At least 10 days prior to the beginning of the term, Tenant shall provide Lessor
with evidence that the insurance coverage required under this paragraph will be
in full force and effect at the beginning of the term. At least 10 days prior to
termination of any such coverage, Tenant shall provide Lessor with evidence that
such coverage will be renewed or replaced upon termination with insurance that
complies with these provisions. Such evidence of insurance shall be in the form
of a standard certificate of Insurance, or in such other form as Lessor may
reasonably request, and shall contain sufficient information to allow Lessor to
determine whether there is compliance with these provisions. At the request of
Lessor, Tenant shall, in addition to providing such evidence of insurance,
promptly furnish lessor with a complete (and if so requested, insurer-certified)
copy of each insurance policy intended to provide coverage required hereunder.
All such policies shall be endorsed to require that the Insurer provide at least
60-day notice to Lessor prior to the effective date of policy cancellation,
nonrenewal, or material adverse change in coverage terms.
All policies of insurance required under this paragraph shall be issued by
financially responsible insurers, and all such insurers must be acceptable to
Lessor. Such acceptance by Lessor shall not be unreasonably withheld or delayed.
An insurer with a current A.M. Best Company rating of at least A:VII shall be
conclusively deemed to be acceptable. In all other instances, Lessor shall have
1O business days from the date of receipt of Tenant's evidence of insurance to
advise Tenant in writing of any insurer that is not
3
acceptable to Lessor. If Lessor does not so respond in writing within such
10-day period, Tenant's insurer(s) shall be deemed to be acceptable to Lessor.
At the request of Lessor, Tenant shall promptly furnish loss information
concerning all liability claims brought against Tenant (or any other Insured
under Tenant's required policies), that may affect the amount of liability
insurance available for the benefit and protection of Lessor under this
provision. Such loss information shall include such specifics and be in such
form as Lessor may reascnably require.
If Lessor's mortgagee should require additional insurance coverage than that
required herein, Tenant shall procure such insurance at its own expense.
PROPERTY INSURANCE.
(a) Risks to be Insured. Tenant, at its sole ccst and expense,
will maintain the following insurance:
(i) insurance on land and buildings described in
Exhibit "A" and "C" attached hereto against
loss by fire and other hazards covered by
the so-called "a11 risk" form of policy, and
including Earthquake coverage and
"Contingent Liability from Operation of
Building Laws" coverage, in an amount equal
to the actual replacement cost thereof
(exclusive of foundations and excavations)
without deduction for physical depreciation.
While any building or other improvement Is
in the course of being constructed or
rebuilt on the Land (other than the
Addition, as hereinafter defined, during
initial construction), the aforesaid hazard
insurance shall be in builder's risk
completed value form, including coverage
available on the so-called "all-risk"
non-reporting form of policy, for an amount
equal to 100% of the insurable replacement
value of such building or other improvement.
Such insurance shall include Valuable Papers
and Records coverage, providing for
Reproduction Cost measure of recovery, and
coverage for damage to Electronic Data
Processing Equipment and Media, including
coverage for the perils of mechanical
breakdown and electronic disturbance.
(ii) If the Property includes steam boilers or
other equipment excluded from coverage
pursuant to a Boiler and Machinery
exclusion, Boiler and Machinery insurance in
an amount satisfactory to Lessor.
(iii) If the Land or any part thereof is located
in a designated official flood-hazardous
area, flood insurance insuring the buildings
and improvements now existing or hereafter
erected on the Land in an amount equal to
the maximum limit of coverage made available
with respect to
4
such buildings and improvements under the Federal flood
Disaster Protection Act of 1973, as amended, and the
regulations issued thereunder.
(iv) Insurance against interruption of business in respect of
the property in an amount sufficient to pay one (1)
year's rent insurance, taxes, and utilities that are
required to be paid by the Tenant by the terms of this
lease.
(b) Policy Provisions. All insurance policies and renewals thereof
required herein shall:
(i) be written by an insurance carrier satisfactory to
Lessor;
(ii) contain a loss payee and standard mortgage clause in
favor of and in favor form acceptable to Lessor.
(iii) contain an agreement of the insurer that it wi11 not
cancel or modify the policy except after 30 days' prior
written notice to Lessor.
(iv) have an "agreed amcunt" endorsement or otherwise exclude
co-insurance participation by the insured; and
(v) be reasonably satisfactory to Lessor in all other
respects.
(c) Delivery of policy. Tenant will deliver to the Lessor's
Mortgagee copies of policies satisfactory to the Mortgagee
evidencing the insurance which is required herein, and Tenant
shall promptly furnish copies of all renewal notices and all
receipts of paid premiums received by it. At least 30 days
prior to the expiration date of a required Policy, Tenant
shall deliver to Lessor a copy of a renewal policy in form
satisfactory to Lessor. Lessor may from time to time, but not
more often than every 3 years require an insurance appraisal
reasonably satisfactory to Lessor, confirming the replacement
cost of the insured property. If Tenant has a blanket
insurance policy in force providing coverage for several
properties of Tenant, including the subject Property, Lessor
will accept a certificate of such insurance together with a
copy of such blanket insurance policy; provided the
certificate sets forth the amounts of insurance and coverage,
and such amounts are at least equal to the amounts required
hereinabove, and otherwise complies with the requirements
hereof.
(d) If Lessor's mortgagee should require additional insurance coverage than
that required herein, Tenant shall procure such insurance at its own
expense.
5
WAIVER OF SUBROGATION. Lessor hereby waives and releases all claims, liabilities
and causes or act on against Tenant and its agents, servants and employees for
loss or damage to, or destruction of, the buildings and other improvements
situated in the Demised Premises and land area in the legal description set
forth in Exhibit "A" attached hereto resulting from fire or other perils
included in standard coverage insurance, whether caused by the negligence of any
of said persons or otherwise. This waiver shall remain in force so long as
Lessor/Tenant's insurer shall consent thereto without additional premium, and if
additional premium is charged, Tenant shall pay said add additional premium.
Tenant hereby waives and releases all claims, liabilities and causes of action
against Lessor and its agents, servants and emmployees for loss or damage to, or
destruction of, any of the improvements, fixtures, euqipment, supplies,
merchandise andother property whether that of Tenant or of others in, upon or
about the Demised Premises, and land within legal description as set forth in
Exhibit "A" attached hereto or the buildings orimporvements of which the Demised
Premises are a part resulting from fire or the other perils included in standard
extended coverage insurance, whether caused by the negligence of any of said
persons or otherwise.
DAMAGE BY FIRE OR OTHER CASUALTY
In the case the building in which the Demised Premises are situated shall be
partially or totally destroyed by fire or other casualty so as to become
partially or totally untenantable, the same shall, be repaired as soon as
reasonably possible by the Lessor and in any event within one hundred twenty
(120) days after repairs are commenced, unless Lessor shall elect not to rebuild
or Tenant shall elect to terminate this lease, as hereinafter provided, and a
just and proportionate part of the rent shall be abated until so repaired based
upon the time and to the extent the Demised Premises are untenantable.
in case the Demised Premises shall be destroyed or so damaged by fire or other
casualty as to render more than twenty-five ercent (25%) thereof untenantable or
in case of any substantial destruction or damage not covered by
Lessor's/Tenant's insurance, or in the event Lessor's mortgagee shall apply the
insurance proceeds to prepay its mortgage rather than to rebuild said building,
the Lessor may, if it so elects, rebuild or restore said buildings to good
condition and fit for occupancy within a reasonable time after such destruction
or damage, or may at its election, by notice in writing within thirty (30) days
after such destruction or damage, terminate this lease. If Lessor elects to
rebuild or restore said buildings, it shall, within said thirty (30) day period,
give Tenant thereof notice of its intention so to do and proceed w th the
rebuilding and restoration promptly as may be reasonable, and a just and
proportionate part of the rent shall be abated until so repaired based upon the
time and to the extent the Demised Premises are untenantable. In case the
Demised Premises shall be destroyed or so damaged by fire or other casualty
6
as to render more than twenty-five percent (25%) thereof untenantable, Tenant
may at its election, by notice in writing within thirty (30) days after such
destruction or damage, terminate this lease.
In no event in the case of any such destruction shall Lessor be required to
repair or replace Tenant's stock in trade, leasehold improvements or other
property. Tenant covenants to make such repairs and replacements.
SUBORDINATION OF LEASE
Tenant agrees that Tenant's rights under this lease are and shall always be
subordinate to the lien of any mortgage or mortgages or trust deed now or
hereafter placed from time to time upon the security thereof. Tenant shall,
upon written notice from Lessor, execute such other and further instruments or
assurances subordinating this lease to the lien or liens of any such mortgage
or mortgages or trust deed or should the Lessor so request, this lease shall be
prior in right to any such lien, mortgage or deed of trust and Tenant shall
upon Lessor's request execute such instruments as may be required to
establish such priority.
Tenant shall receive a non-disturbance agreement from any mortgage or
subsequent holder of a deed of trust or lien. If Tenant shall fail to execute
any such document within twenty (20) days after demand in writing, the tenant
will be in default of this lease.
ESTOPPEL CERTIFICATES
DELIVERY OF STATEMENT. At any time, and from time to time, after the
Commencement Date each party shall, within twenty (20) days after written
request therefor from the other party, deliver to such party a statement in
writing certifying that this lease is in full force and effect, setting forth
all modifications or amendments which exist with respect thereto, the dates to
which rent, taxes, insurance, and utilities have been paid, the balance of any
security deposit held by other party, all known breaches by the other party of
the terms, covenants and conditions hereof, and other matters reasonable
requested by the other party.
RELIANCE UPON STATEMENT. Any statement delivered to Lessor as required by this
Article may be relied upon by any purchaser, mortgagee or assignee of all or any
part of Lessor's interest in the Demised Premises. Any such statement delivered
to Tenant may be relied upon by any subtenant, assignee or mortgagee of all or
any part of Tenant's interest in the Demised Premises, provided such sublease,
assignment or mortgage is made with the consent of Lessor as elsewhere in this
lease provided.
FAILURE TO FURNISH STATEMENTS. The failure of either party to furnish the
statement required hereby within the said twenty (20) day period shall be deemed
to be an acknowledgment by the party requested to give such statement that this
lease is in full force
7
and effect, without modification or amendment, that rent, taxes, insurance, and
utilities have been paid in full to and including the respective due dates
therefor immediately preceding the date of such request, that no rent has been
paid in advance of the due date therefor as set forth herein, that no security
deposit is held by the party requesting such statement and that the party
requesting such statement has performed all of the terms, covenants and
agreements required of it hereunder.
OPTION TO RENEW
Provided that the Tenant is not in default and upon not less than ninety (90)
days written notice by Tenant to Lessor given prior to expiration of the initial
term of this lease of Tenant's intent to exercise said option to extend the term
of this lease for a period of five (5) additional years commencing on the date
following expiration of the initial term of this lease on the same terms and
conditions as provided in the Lease except that the annual rent for the first
year during said option term shall be equal to the sum of (a) $160,500
plus a percentage increase of the product of said $160,500 and the overall
percentage increase of the Consumer Price Index - Minneapolis, St. Xxxx
(all-items index) over the initial term of this lease, and the rent for each
year thereafter for the remainder of the option renewal period shall also be
adjusted upward from said rent payable in prior year of the said option period
by any annual percentage increase in said CPI. Monthly rent shall be so adjusted
at the beginning of the option term and at the beginning of each year thereafter
until said option period expires.
UTILITIES
Lessee shall pay the cost of all utilities and public services including but not
limited to, gas, water, electric, sanitary sewer, surface water removal, tree
trimming, snow removal, lawn and garden maintenance and upkeep.
8
OPTION TO PURCHASE
Provided that the Tenant is not in default and upon not less than one hundred
twenty (120) days written notice by Tenant to Lessor given prior to expiration
of the initial term off this lease of Tenant's intent to exercise said option,
Lessor hereby grants to Tenant an option to purchase the Demised Premises on
expiration of such initial term. The purchase price for the Demised Premises
(the "Purchase Price") will be determined by appraisal of the fair premises as
or option exercise, as follows. The Demised Premases will be appraised by an
appraiser designated by Lessor, an appraiser designated by Tenant, and an
appraiser mutually designated by the parties, or failing that, designated by the
Xxxxxx County District Court upon application of either party. All appraisers
will be MAI appraisers having at least five (5) years experience in the
appraisal of commercial properties in the Twin Cities metropolitan area. The
appraisers will be directed to submit their appraisals in writing to the parties
thirty (30) days prior to expiration of the initial term of this lease. The
Purchase Price will be the average of the two closest appraisals. The Purchase
Prices will be the average of two appraisals if the third appraisal is not
received within fifteen days after receipt of the first two appraisals. Each
party will pay for the appraisal of the appraiser designated by such party, and
the parties will bear equally the cost of the third appraisal. Lessor will,
within thirty (30) days after option exercise, furnish a complete abstract of
title for the Demised Premises certified to date to include propler searches
covering bankruptcies, and state and federal judgments and liens and levied and
pending special assessments. The Tenant will be allowed thirty (30) days after
receipt thereof for examination of said title and the making of any objections
thereto, said objections to be made in writing or deemed to be waived. If any
objections are so made Lessor will be allowed sixty (60) days to make such title
marketable. If said title is not marketable and is not made so within sixty (60)
days from the date of written objections as above provided, Tenant's option
exercises will be null and void, at, Option of the Tenant, and neither party
will be liable for damages hereunder to the other party. If the title to the
Demised Premises is found marketable or is so made within said time, and Tenant
defaults in payment of the Purchase Price as provided hereunder, then Lessor may
terminate the sale of the Demised Premises, time being of the essence hereof.
This provision will not deprive either party of the right of enforcing the
specific performance of the sale of the Demised Premises provided such sale is
not terminated as aforesaid, and provided action to enforce such specific
performance is commenced within six (6) months after such right of action
arises, nor will it deprive either party of the right of enforcing a claim for
money damages resulting from the other party's default hereunder.
9
Closing will be held at Tenant's offices or other mutually agreed upon location
on the expiration date of the initial term of this lease or, if later, fifteen
(15) days after receipt by the parties of the second appraisal submitted
hereunder. At the closing, the Purchase Price will be paid in immediately
available funds by wire transfer, and Lessor will execute and deliver an
affidavit, in the customary form, relative to 10 judgments, federal tax liens,
mechanic's liens, bankruptcy and outstanding interests in the Demised Premises
and a warranty deed conveying marketable title to the Demised Premises subject
only to the following exceptions:
Building and zoning laws, ordinances, State and Federal
regulations;
Reservation of any minerals or mineral rights to the State of
Minnesota; and
Utility, drainage and flowage easements and road right of way of record.
Lessor will pay for any real estate transfer tax and the cost of recording any
documents necessary to establish marketable and record title in Lessor. Lessor
will execute any further instruments, documents or agreement reasonably
necessary to effectuate the sale contemplated hereunder.
In the event closing is delayed beyond the expiration of the initial term of
this lease, this lease will continue until closing, provided that no rent will
accrue after the first two months of such hold over period if such delay
results from objections to title timely made or other reasons within the control
of Lessor.
10
MISCELLANEOUS
WAIVER. One or more waivers of any covenant, term or condition of this lease by
either party shall not be construed by the other party as a waiver of a
subsequent breach of the same covenant, term or condition. The consent or
approval of either party to or of any act by the other party of a nature
requiring consent or approval shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent similar act. The failure or delay on
the part of either party to enforce or exercise at any time any of the
provisions, rights or remedies in the lease shall in no way be construed to be a
waiver thereof, nor in any way to affect the validity of this lease or any
part thereof, or the right of the party thereafter enforce each and every
such provision, right or remedy.
RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed or construed
by the parties hereto or by any third party to create the relationship of
principal and agent or of partner ship or of joint venture or of any association
whatsoever between Lessor and Tenant, it being expressly understood and agreed
that neither the method of commutation of rent nor any other provisions
contained in this lease nor any act or acts of the parties hereto shall be
deemed to create any relationship between Lessor and Tenant other than the
relationship of Lessor and Tenant.
GOVERNING LAW. The laws of the State of Minnesota shall govern the validity,
performance and enforcement of this lease.
MARGINAL HEADINGS. The paragraph titles herein are for convenience only and do
not define, limit or construe the contents of such paragraphs.
ACCORD AND SATISFACTION. No payment by Tenant or receipt by Lessor of a lesser
amount than the Rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated unpaid installment thereof, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Lessor may accept such
check or
11
payment without prejudice to Lessor's right to recover an amount due hereunder
or pursue any other remedy in this lease provided.
SHORT FORM LEASE. At the request of either party to this lease, the other party
shall enter into a Short Form lease for the purpose of recording the same in
lieu of recording this lease.
ENTIRE AGREEMENT. This lease and the exhibits attached hereto and forming a part
hereof set forth all the covenants, promises, agreements, conditions and
undertakings between the Landlord and Tenant concerning the Demised Premises,
and there are no covenants, promises, agreements, conditions or undertakings,
either oral or written, between them except those herein set forth. Except as
herein otherwise provided, no subsequent alteration, amendment, change or
addition to this lease shall be binding upon Lessor or Tenant unless reduced to
writing and signed by other parties hereto.
FORCE MAJEURE. Except as otherwise provided herein, in the event that either
party hereto is delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive government laws
or regulations, riots, insurrection, war or other reason of a like nature not
the fault of the party delayed in performing work or doing act required under
the terms of this lease, then performance of such act shall be excused for
the period of the delay and the period for the performance of any such act
shall be extended for the period equivalent to the period of such delay.
EXECUTION AND COPIES. This lease shall not be binding upon the parties hereto
until duly executed by an authorized officer or official of both parties and
delivered to the other party. This lease may be executed in multiple
counterparts, each of which shall be deemed an original; and it shall not be
necessary in making proof of this lease to produce or account for more than one
such counterpart.
COVENANT TO BIND SUCCESSORS. The terms, covenants, and conditions hereof shall
bind and inure to the benefit of the heirs, legal
12
representatives and permitted successors, and assigns of the respective parties
hereto.
KAMKO Investments, a
MN General Partnership
by: /s/ X.X. Xxxxxxx, Xx.
---------------------------
Partner
Aetrium Incorporated, a
MN Corporation
by: /s/ Xxxxxxx X. Xxxx
-----------------------
Vice President, Corporate Adminstration
13
Exhibit A
LEGAL DESCRIPTION OF PROPERTY FOR LEASE
"THE DEMISED PREMISES"
That part of Lots 1 through 7 inclusive and that part of Lots 15 through 18
inclusive and that part of Xxxx 00 & 00 xxx xx Xxxxx 00, Xxxxx Xx. Xxxx Proper,
Xxxxxx County, Minnesota described as beginning at the southwest corner of said
Lot 7; thence on an assumed bearing of North 88 degrees 31 minutes East along
the south line of said Lot 7 and its easterly extension and along the south line
of Lot 15 a distance of 402.56 feet to the west line of the east 200 feet of
said Lots 15 through 18; thence North 0 degrees 23 seconds West along said 43
minutes 08 seconds West 181 feet to the southeasterly line of the northwesterly
16 feet of said Lot 1; thence southwesterly along said southeasterly line to the
east-west centerline of Section 12, Township 29, Range 22; thence North 88
degrees 31 minutes East 14.87 feet to the northwesterly line of said Lots 3 & 4;
thence South 51 degrees 16 minutes 52 seconds West along said northwesterly line
159.11 feet to the west line of said Block 18; thence South 0 degrees 24 minutes
26 seconds East along said west line to the point of beginning.
Together with right of ingress and egress over and across the three following,
parcels:
Lots 15, 14 and the north 10 feet of Lot 13 all in Block 3 the
North St. Xxxx Xxxx Co.'s Re-arrangement No. 1 in Blocks 14,
15 & 18 of North St. Xxxx Proper, Xxxxxx County, Minnesota.
That part of Xxx 00, Xxxxx 0, Xxx Xxxxx Xx. Xxxx Xxxx Co.'s
Re-arrangement No. 1 in Blocks 14, 15 & 18 of North St. Xxxx
Proper, Xxxxxx County, Minnesota, which lies between the
westerly extensions of the north line of Lot 15 and the north
line of Lot 13 all in said Block 3.
The north 45 feet of the west 80 feet of the east 200 feet of
Lot 18 and the south 20 feet of the west 80 feet of the east
200 feet of Xxx 00 xxx xx Xxxxx 00, Xxxxx Xx. Xxxx Proper,
Xxxxxx county, Minnesota.
