COMMERCIAL LEASE BY AND BETWEEN Triple Shot, LLC AND Aetrium Incorporated
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Real Estate
- Lease Agreements
EX-10.HTM 2 ex10w1.htm COMMERCIAL LEASE ex10w1.htm
Exhibit 10.1
COMMERCIAL LEASE
BY
AND
BETWEEN
Triple Shot, LLC
AND
Aetrium Incorporated
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TABLE OF CONTENTS
Definitions &# 160;
| 1.0 | Term of Lease and Possession |
| | 1.1 | Option to Renew ……………………………………………………………………………. |
| 2.0 | Base Rent …………………………………………………………………………………………... |
| 3.0 | Additional Rent …………………………………………………………………………………….. |
| | 3.1 | Common Area Maintenance Expenses (CAM) |
| | 3.2 | Real Estate Taxes and Assessments |
| | 3.3 | Utilities |
| | 3.4 | Miscellaneous Charges and Reimbursements |
| 4.0 | Covenant to Pay Rent |
| 5.0 | Overdue Payments |
| 6.0 | Use |
| 7.0 | Care and Repair of Premises |
| 8.0 | Hazardous Materials |
| 9.0 | Public Liability Insurance |
| 10.0 | Signage and Displays |
| 11.0 | Alternations, Installation, Fixtures |
| 12.0 | Access to Premises |
| 13.0 | Removal of Fixtures |
| 14.0 | Assignment or Subletting |
| 15.0 | Successors and Assigns |
| 16.0 | Notices |
| 17.0 | Surrender |
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18.0 Holding Over 0;
| 19.0 | Abandonment |
| 20.0 | Default of Tenant |
| 21.0 | Eminent Domain |
| 22.0 | Rules and Regulations |
| 23.0 | Damage or Destruction |
| 24.0 | Casualty Insurance |
| 25.0 | Covenants to Hold Harmless |
| 26.0 | Non-Liability |
| 27.0 | Subrogation |
| 28.0 | Attornment |
| 29.0 | Novation in the Event of Sale |
| 30.0 | Estoppel Certificates |
| 31.0 | Financial Statements |
| 32.0 | Brokers |
| 33.0 | Quiet Enjoyment |
| 34.0 | Recording |
| 35.0 | Consents by Landlord |
| 36.0 | Intent of Parties |
| 37.0 | Tenant Improvements of Premises |
| 38.0 | Tenant Performance of Other Landlord Requirements |
| 39.0 | General |
| 40.0 | Termination of Lease |
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Signatures 60;
Exhibit A 0;
Exhibit B 0;
Exhibit C 0;
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COMMERCIAL LEASE
This Commercial Lease (this "Lease") dated August 20, 2010, by and between Triple Shot, LLC, a Minnesota limited liability company ("Landlord") and Aetrium Incorporated, a Minnesota corporation ("Tenant").
DEFINITIONS:
"Building" or “Premises” -- Shall mean the building and improvements containing approximately 44,800 net rentable square feet, and including all driveways, parking areas, pick-up and delivery areas and compliant set-back areas at 2350 Helen Street, North Saint Paul, Minnesota, 55109 located on that certain real property in the City of& #160; North Saint Paul, County of Ramsey, State of legally described on Exhibit B attached hereto and incorporated herein.
In consideration for the Base Rent, Additional Rent and any additional compensation(s) outlined in this Lease, Landlord leases to Tenant the Premises under the following conditions:
1.0 TERM OF LEASE AND POSSESSION:
Landlord gives and Tenant takes possession of Premises for the term of five (5) years (the "Term of Lease") beginning September
1, 2010 (the "Commencement Date"), and ending August 31, 2015 (the "Expiration Date"), unless terminated earlier as conditioned.
Unless otherwise stated, Landlord will deliver possession of the Premises to Tenant in the condition required by this Lease on or before the Commencement Date, but
delivery of possession prior to or later than such Commencement Date will not affect the Expiration Date of this Lease. The rentals herein reserved will commence on
the date when possession of the Premises is delivered by Landlord to Tenant. Any occupancy by Tenant prior to the Commencement Date commences all mutual terms
and obligations of this Lease. Landlord will have no responsibility or liability for loss or damage to fixtures, facilities or equipment installed or left on the Premises.
If Premises are not ready for occupancy by Commencement Date and possession is later than Commencement Date, rent will begin on date of possession. If the
Commencement Date is a date other than the first day of a calendar month, Landlord will prorate monthly Base Rent for the first month of the Term of Lease or the last
month of the Term of Lease, as the case may be, based on the ratio that the number of days of the Term of Lease within such month bears to the total number of days
in such month.
1.1 OPTION TO RENEW:
Provided (i) Tenant is not in default of any terms or conditions of this Lease, or would be in default with the passage of time, the giving of notice, or both, and (ii) Tenant has provided Landlord with written notice that Tenant is exercising its Option to Renew under Section 1.2 of this Lease at least 90 days but not more than 270 days prior to the Expiration Date, then Tenant
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may extend the Term by five (5) years (the "Extension Term") beginning immediately after the Expiration Date, upon the same terms and conditions of the Lease, except that:
| | (i) | the Term will be modified as stated above; |
| | (ii) | the Option to Renew in this Article 1.2 will be deleted; |
| | (iii) | The Base Rent for each year of the Extension Term will be at ninety-five percent (95%) of then Fair Rental Value (as hereinafter defined) for similarly situated property. "Fair Rental Value" means the annual rent that a willing tenant would pay, and a willing landlord would accept, in arms-length, bona fide negotiations, if the Premises were leased to a single tenant for 5 years under a lease pursuant to which such tenant would not receive (and, accordingly, the rental rate that otherwise would be agreed to will be reduced to reflect the fact that Tenant will not receive) any rental concession, such as rental abatements or "free rent" periods or rental assumption, inducements or any leasehold improvement allowance, and otherwise taking into account any other pertinent factors, including, but not limited to, the net effective annual rates per square foot for office leases recently or then being entered into in suburban Minneapolis and St. Paul, Minnesota ("Comparable Rates "). In determining the Fair Rental Value and using Comparable Rates in connection with such determination, the following factors (and any other factors then known to be pertinent) will be considered: the size of the Premises; the length of the term; use; quality of services provided; location and/or floor level; existing leasehold improvements; leasehold improvements to be provided by Landlord, whether directly or by allowance; the quality, age and location of the Building; financial strength of the applicable tenant; rental concessions (such as rental abatements or "free rent" periods and rent assumptions); inducements (such as signing bonuses, equity participation, tax benefits, or other participation in ownership); the respective obligations of the Landlord and the tenant, the manner in which the rents are then subject to escalation and the time the particular rate under consideration became or will become effective. |
The Fair Rental Value will be determined as follows: Within 10 days after Landlord receives notice from Tenant regarding Tenant’s election to exercise the Extension Option, Landlord will give notice to Tenant of its determination of the Fair Rental Value of the Premises for each year of the Extension Term, and Landlord’s determination will constitute the Fair Rental Value unless Tenant objects in writing within 10 days after Tenant’s receipt of Landlord’s determination. If Tenant so objects and the parties are unable to agree upon the Fair Rental Value within 20 days after the Tenant’s objection, then by written notice to Landlord within 10 days thereafter Tenant may request determination of the Fair Rental Value under this Article. If Tenant does not give such notice requesting determination of Fair Rent al Value using the appraisal process described below, Tenant’s exercise of the option will be deemed rescinded. If determination by the appraisal process is requested by Tenant, the Fair Rental Value will be determined by appraisal within 30 days after Tenant’s request by a board of appraisers consisting of three reputable real estate professionals experienced in the leasing of commercial office/industrial space (each an "Expert"). One Expert will be appointed by Tenant, and the second Expert will be appointed by Landlord. The third Expert will be appointed by the first two Experts. If the first two Experts are unable to
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agree on a third Expert within 10 days after the appointment of the second Expert, or if either party refuses or neglects to appoint an Expert as herein provided within 10 days after the appointment of the first Expert, then the third Expert or the second Expert, whose appointment was not made as provided above, may be appointed by any judge of the Ramsey County District Court. Any Expert appointed by a judge of the Ramsey County District Court will be a reputable real estate appraiser experienced in appraising the rental value of commercial office/industrial space, and will be a member of the American Institute of Real Estate Appraisers with the designation of "MAI." If determinations of at least two of the Experts are identical in amount, that amount will be determined to be the Fair Rental Value. If the determinations of all three Experts are different in amount, the highest appraised value will be averaged with the middle value (that average being referred to as "Sum A"). The lowest appraised value will be averaged with the middle value (that average being referred to as "Sum B"), and the Fair Rental Value will be determined as follows: (i) if neither Sum A nor Sum B differs from the middle appraised value by more than 10% of the middle appraised value, then the Fair Rental Value will be the average of the three appraisals, (ii) if either Sum A or Sum B (but not both) differs from the middle appraised value by more than 10% of the middle appraised value, then the Fair Rental Value will be the average of the middle appraised value and the appraised value closer in amount to the middle appraised value, and (iii) if both Sum A and Sum B differ from the middle appraised value by more than 10% of the middle appraised value, then the Fair Rental Value will be equal to the middle appraised value. Written notice of the Fair Rental Value as d uly determined in accordance with this Article will be promptly given to Landlord and Tenant and will be binding and conclusive on them. Each party will bear its own expenses in connection with the board proceeding (including the Expert appointed by it), and the fees of the third Expert will be borne equally. If, for any reason, the Fair Rental Value has not been determined at the time of the commencement of the Extension Option period, then the Fair Rental Value will be the amount set forth in Landlord’s determination, and if the determination of the Experts as provided above indicates that a lesser or greater amount should have been paid than that which was actually paid, a proper adjustment will be made in a payment from Landlord to Tenant, or Tenant to Landlord, as the case may be.
2.0 BASE RENT:
Landlord is due and Tenant will pay Landlord, "Base Rent" as scheduled:
| Starting | Ending | Monthly | Annual | Square foot |
| September 1, 2010 | August 31, 2011 | $21,734.40 | $260,812.80 | $5.82 |
| September 1, 2011 | August 31, 2012 | $21,734.40 | $260,812.80 | $5.82 |
| September 1, 2012 | August 31, 2013 | $21,734.40 | $260,812.80 | $5.82 |
| September 1, 2013 | August 31, 2014 | $21,995.40 | $263,944.80 | $5.89 |
| September 1, 2014 | August 31, 2015 | $22,517.40 | $270,208.80 | $6.03 |
3.0 ADDITIONAL RENT:
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Tenant will reimburse to Landlord monthly, throughout the Term of this Lease and any extension of this Lease, Tenant's proportionate share of the following "Additional
Rent":
Common Area Maintenance (CAM) (as hereinafter defined) expenses, Real Estate Taxes and Assessments (as hereinafter defined), any Utilities (as hereinafter
defined) not paid directly by Tenant, and any Miscellaneous Charges and Reimbursements (as hereinafter defined).
Tenant’s proportionate share of all Additional Rent will be a fraction, the numerator of which is the rentable area of the Premises and the denominator of which is the
rentable area of the Building. If improvements, real property, or the amount of rentable area will be added to or deleted from the Premises or Building, then the amount
of Additional Rent may be appropriately adjusted by Landlord from time to time, as applicable.
Landlord may estimate annual Additional Rent charges as a basis for reimbursement for any calendar year and invoice in monthly installments. Landlord may from time
to time adjust the monthly installment of estimated Additional Rent charges to more accurately reflect Landlord's current estimate of such charges. When Landlord has
determined the actual amounts for each such Additional Rent item, Landlord will provide to Tenant a written statement of actual Additional Rent charges which will advise
Tenant of additional amounts due from Tenant or any credit due to Tenant. If Tenant has underpaid its share of any of these expenses, Tenant will reimburse Landlord
as invoiced within fifteen (15) days of Tenant's receipt of such statement. If Tenant has overpaid its share of any of these expenses, Landlord will credit such amount
against the next payment of Additional Rent due under this Lease. If the Term of Lease is less than one calendar year any reimbursement(s) will be prorated based on time of occupancy for such year. Upon prior written notice to Landlord, Tenant will have the opportunity to audit the& #160; actual Additional
Rent statement for a period of 30 days upon receipt of said statement. Tenant will be deemed to waive its right to audit the actual Additional Rent statement upon its
failure to exercise such right during said 30 day period.
Landlord presently calculates Additional Rent based on a calendar year, and Tenant's obligation to pay Additional Rent will be prorated on a calendar year basis if the
calendar year includes any period of time not within the Term of Lease.
Landlord reserves the right to assess Additional Rent items that are incurred based upon occupancy (such as janitorial services for occupied tenant spaces in the
Building) only against the occupied spaces in the Building. Landlord and Tenant acknowledge that certain Additional Rent items are incurred largely based on the
occupancy of the Building. Therefore, it is agreed that in the event the Building is not fully occupied during any calendar year, a reasonable and equitable adjustment
will be made by Landlord in computing the Additional Rent items for that calendar year so that the Additional Rent items so affected by occupancy will be adjusted to
that amount that would have been incurred had the Building been fully occupied during such calendar year.
3.1 COMMON AREA MAINTENANCE EXPENSES (CAM):
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"CAM" includes Landlord's costs of maintaining, repairing, and operating the Premises and the Building, including, but not be limited to janitorial and window
washing expenses, expenses related to maintenance, repair, replacement and care of any part of the Building including all lighting, plumbing, paving, curbs, parking
surfaces, sidewalks, roadways, parking facilities (including all parking lots, garages and ramps, if any), landscaped areas, planters, signs, snow removal, elevators,
pest removal and monitoring, drainage facilities, machines, equipment, expenses for trash and rubbish removal, insurance (which may include, but not limited to,
hazard, plate glass, boiler and machinery and liability insurance but not loss of rent insurance) , security expenses, fire and smoke alarm monitoring expenses, fire and smoke alarm service expenses, contract maintenance expenses, costs incurred in
renting equipment necessary or appropriate for the smooth operation of the Premises or the Building, costs of contesting the value of the Premises or the Building
for real estate taxation purposes, wages, salaries and related expenses of all employees engaged in the operation, maintenance or security of the Premises or Building, the costs of all supplies and materials used in the operation and maintenance of the Premises or Building, light bulbs and
ballasts, interior and exterior maintenance expenses excluding expenses related to maintenance of the foundations and structural portions of the Building but including expenses related to the electrical, mechanical, plumbing and other systems and facilities serving the Premises or the Building, any wages and fringe benefits of personnel employed < /div>
for such work, the cost of maintenance and service agreements for the Premises or Building and the equipment therein, amortization, on a commercially reasonably
basis, of capital improvements (including interest expenses) made to: (i) reduce operating costs, (ii) comply with any law, rule, regulation, or order of any
governmental authority. Notwithstanding the foregoing, CAM does not include roof repairs or replacement, HVAC maintenance, repairs or replacement in excess of $11,000.00 per lease year, leasing commissions, real estate commissions and costs of marketing and the costs of credit reports on other tenants, management or administration fees or expenses, accounting and auditing costs, amortization or depreciation except as provided above, or painting or resurfacing of exterior or interior or repair of potholes or resurfacing or striping of pa rking lots or driveways due to ordinary wear and tear.
3.2 REAL ESTATE TAXES AND ASSESSMENTS:
"Real Estate Taxes and Assessments" means (i) all real estate taxes and annual installments of special assessments due and payable in each calendar year, which
may be levied upon or assessed against the Premises and the Building, (ii) any taxes levied or assessed, in whole or in part, in lieu of real estate taxes, (iii) any
taxes on the stream of rental income (other than income taxes), (iv) all other taxes or any other federal, state or local governmental charges on the Premises, the
Building, individual buildings or individual premises on the Premises or this Lease and (v) any sales tax or similar tax assessed or payable in connection with
services provided by Landlord under this Lease. Any tax year commencing during any lease year will be deemed to correspond to such lease year. Tenant will
also pay as Additional Rent any and all Real Estate Taxes and Assessments levied or assessed, in whole or in part, based on
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the value of Tenant's personal property in the Premises. Upon Tenant’s request, Landlord will furnish a copy of the real estate tax statement.
3.3 UTILITIES:
"Utilities" means all utilities, including, without limitation, water, electricity and gas, the cost of heating, lighting, air conditioning and ventilating the Premises.
Landlord will provide mains and conduits to supply water, gas, electricity and sanitary sewage to the Building. If Tenant’s usage of any utility is deemed
disproportionate as determined by Landlord, Landlord may elect to sub meter and bill Tenant accordingly.
3.4 MISCELLANEOUS CHARGES AND REIMBURSEMENTS:
"Miscellaneous Charges and Reimbursements" includes, without limitation, service requests facilitated by Landlord at the direction of Tenant, Tenant improvement
reimbursements, notes due Landlord and any other miscellaneous charge due Landlord.
4.0 COVENANT TO PAY RENT:
All rents are due and payable as invoiced on the first of the each month during the Term of Lease and any extensions of the Lease to Landlord at:
Triple Shot, LLC
3050 Echo Lake Avenue
Mahtomedi, Minnesota 55115
or such other address as Landlord designates to Tenant in writing. Tenant will pay Base Rent and Additional Rent without prior notice or demand, in lawful money
of the United States. Nothing contained in this Lease will be deemed to suspend or delay Tenant's payment of any amount of money or charge at the time the same
is due and payable under this Lease, or limit any other remedy of Landlord, except Tenant’s rights of offset as provided hereunder.
5.0 OVERDUE PAYMENTS:
All Base Rent and Additional Rent under this Lease and any extension will be due on the first of each calendar month, unless otherwise specified. Service charges
will be imposed after the tenth of each calendar month in the amount five percent (5%) of the outstanding balance due.
6.0 USE:
The Premises will be used and occupied by Tenant solely for office and manufacturing purposes and Tenant agrees that such use will be in compliance with all
applicable laws, ordinances and governmental regulations affecting the Building and Premises. Tenant will immediately discontinue any use of the Premises which
is not in compliance with any
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applicable laws, ordinances or governmental regulations. The Premises will not be used in such manner that, in accordance with any requirement of law or of any
public authority, Landlord is obliged on account of the purpose or manner of said use to make any addition or alteration to or in the Building. The Premises will
not be used in any manner which will increase the rates required to be paid for public utility or for fire and extended coverage insurance covering the Premises. Tenant
will occupy the Premises, conduct its business and control its agents, employees, invitees and visitors in such a way as is lawful, and reputable and will not permit or
create any nuisance, noise, odor, or otherwise interfere with, annoy or disturb any other tenant in the Building in its normal business operations or Landlord in its
management of the Building. Outside storage on the Building of any type of equipment, property or materials owned or used on the Premises by Tenant or its customers
and suppliers will not be permitted, unless otherwise stated. By occupying the Premises, Tenant will be conclusively deemed to have accepted the Premises as being in
the condition required by this Lease, subject to completion of Tenant Improvements as provided herein. If requested by Landlord, Tenant will sign a statement confirming the Commencement Date and ratifying acceptance of the Premises.
7.0 CARE AND REPAIR OF PREMISES:
Tenant will, at all times throughout the Term of Lease and any extensions, and at its sole expense, keep and maintain the Premises in a clean, safe, sanitary and first
class condition, comparable to the condition of the Premises at commencement of the Term of Lease and after completion of Tenant Improvements subject to ordinary wear and tear, and in compliance with all applicable laws, codes, ordinances, rules and regulations. Tenant’s obligations hereunder will include without limitation, the maintenance,
repair, replacement, if necessary of all fixtures, interior walls, partitions, doors and windows, all exterior entrances, windows, doors and docks, the replacement of all broken
glass, of any fixture/equipment/component of heating, ventilation, air conditioning (HVAC) systems subject to the limitations
provided herein, all lighting systems, plumbing systems and electrical systems. With the exception of HVAC equipment, when used in this provision, the term "repairs" includes
replacements, and all such repairs or replacements made by the Tenant will be of equal quality to the original equipment or work. The Tenant will 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, regardless
of any CAM performed by Landlord. Tenant will maintain a minimum temperature in the Premises of 40 degrees during the Term of Lease.
If Tenant fails, refuses or neglects to maintain or repair the Premises as required in this Lease after notice has been given Tenant, in accordance with Article 17.0 of this
Lease, Landlord may make such repairs or replacements without liability to Landlord 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 will pay to Landlord all costs plus 15% for overhead incurred by Landlord in
making such repairs or replacements.
Landlord will repair, at its expense, the structural portions of the Building, unless such repairs are required as a result of the acts of Tenant, its employs, agents, assigns
or invitees, the costs thereof will be borne by Tenant and payable by Tenant to Landlord.
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The Landlord will be responsible for all outside maintenance of the Premises, including grounds and parking areas. All such maintenance which is the responsibility of
the Landlord will be provided as reasonably necessary to the comfortable use and occupancy of Premises during business hours, except Sundays and holidays, upon the
condition that the Landlord will not be liable for damages for its performance due to causes beyond its control.
8.0 HAZARDOUS MATERIALS:
Tenant will not (either with or without negligence) cause or permit the escape, disposal or release of any biologically or chemically active or other hazardous substances,
or materials. Tenant will not allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor allow to be brought into the Premises any such materials or substances except in the ordinary
course of Tenant’s business, and then only after written notice is given to Landlord of the identity of such substances or materials. Without limitation, hazardous
substances and materials includes those described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency ever requires to ascertain whether or not there has been any release of hazardous materials, then the reasonable
costs thereof will be reimbursed by Tenant to Landlord upon demand as additional charges if such requirement applies to the Premises. In addition, Tenant will execute
affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s best knowledge and belief regarding the presence of hazardous
substances or materials on the Premises. In all events, Tenant will indemnify Landlord from any release of hazardous materials on the Premises occurring while Tenant
is in possession or elsewhere if caused by Tenant or persons acting under Tenant. The within covenants will survive the expiration or earlier termination of the Lease
term.
9.0 PUBLIC LIABILITY INSURANCE:
Tenant will during the term hereof keep in full force and effect at its own expense a policy or policies of public liability insurance with respect to the Premises and the
business of Tenant, on terms and with companies approved in writing by Landlord, in which both Tenant and Landlord are covered by being named as insured parties
under reasonable limits of liability not less than: $1,000,000 for injury/death to any one person; $2,000,000 for injury/death to more than one person, and $1,000,000 with
respect to damage to property. Such policy or policies will provide that thirty (30) days written notice must be given to Landlord prior to cancellation thereof. Tenant
will furnish evidence satisfactory to Landlord at the time this Lease is executed that such coverage is in full force and effect.
10.0 SIGNAGE AND DISPLAYS:
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Upon occupancy, building exterior signage, building directories and/or pylon signage will be approved, installed and provided for by Landlord in compliance with city
ordinances and building signage criteria. Any changes, modifications and/or maintenance of initial signage will be at Tenant’s sole cost and expense with approval of
Landlord. Additional signage, lettering, picture, notice or advertisement installed on or in any part of the Premises and visible from the exterior of the Building, or visible
from the exterior of the Premises, will be approved by Landlord at Tenant’s sole cost and expense. Said signs are to be maintained by Landlord at Tenant’s expense.
Landlord may remove any unauthorized signs without any liability to Landlord and may charge the expense incurred by such removal to Tenant.
11.0 ALTERATIONS, INSTALLATION, FIXTURES:
Unless otherwise stated, Tenant will not make any alterations, additions or improvements in or to the Premises or add, disturb or in any way change any plumbing or
wiring without the prior written consent of the Landlord, which approval will not be unreasonably withheld. Notwithstanding the foregoing, Landlord agrees to consent to non-structural alterations or improvements costing less than One Thousand Five Hundred Dollars ($1,500.00) in the aggregate, so long as all costs are promptly paid by Tenant and Tenant obtains and provides Landlord with prior written notice and copies of any required approvals, licenses, or permits and Tenant indemnifies Landlord against any liens arising from such non-structural alteration or improvement. In the event alterations are required by any governm ental agency by reason of the use and occupancy of the Premises by Tenant, Tenant will make such
alterations at its own cost and expense after first obtaining Landlord’s written approval of plans and specifications and furnishing such indemnification as Landlord may
reasonably require against liens, costs, damages and expenses arising out of such alterations. Tenant warrants to Landlord that all such alterations, additions, or
improvements will be in strict compliance with all relevant laws, ordinances, governmental regulations and insurance requirements. Construction of such alterations or
additions will commence only upon Tenant obtaining and exhibiting to Landlord the requisite approvals, licenses and permits and indemnification against liens. Unless
otherwise agreed to, all alterations, installations, physical additions or improvements to the Premises made by Tenant will at once become the property of Landlord and
will be surrendered to Landlord upon the termination of this Lease.
12.0 ACCESS TO PREMISES:
Tenant agrees to permit Landlord and the authorized representatives of Landlord to enter the Premises at all times during usual business hours for the purpose of
inspecting the same and making any necessary repairs to the Premises and performing any work therein that may be necessary to comply with any laws, ordinances,
rules, regulations or requirements of any public authority or of the Board of Fire Underwriters or any similar body or that Landlord may deem necessary to prevent
waste or deterioration in connection with the Premises. Nothing herein will imply any duty upon the part of Landlord to do any such work which, under any
provision of this Lease, Tenant is required to perform and the performance thereof by Landlord will not constitute a waiver of the Tenant’s default to perform the
same. Landlord may, during the progress of any work in the Premises or Building, keep and store upon the Premises or Building all necessary materials, tools, and
equipment. Landlord will
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not in any event be liable for inconvenience, annoyance, disturbance, loss of business, or other damage of the Tenant, nor will Tenant’s Lease obligations be affected
by reason of making repairs or the performance of any work, including materials handling into or through the Premises or Building.
Landlord reserves the right to enter upon the Premises (a) at any time in the event of an emergency and (b) at reasonable hours to exhibit the Premises to prospective
purchasers or others; and to exhibit the Premises to prospective tenants and to display "For Rent" or similar signs on windows or doors in the Premises during the
last one hundred eighty (180) days of the Term of Lease, all without hindrance by Tenant.
13.0 REMOVAL OF FIXTURES:
Notwithstanding anything contained in Article 11.0, Article 17.0, or elsewhere in this Lease, if Landlord requests, then Tenant will promptly remove at the sole cost and
expense of Tenant all fixtures, equipment and alterations (other than alterations permitted under Article 11.0)made by Tenant simultaneously with vacating the Premises and Tenant will promptly restore said Premises to the condition that existed immediately prior to said fixtures,
equipment and alterations having been made all at the sole cost and expense of Tenant.
14.0 ASSIGNMENT OR SUBLETTING:
Tenant agrees to use and occupy the Premises throughout the entire term hereof for the purpose herein specified and for no other purposes, in the manner and to
substantially the extent now intended, and not to transfer or assign this Lease or sublet said Premises, or any part thereof, whether by voluntary act, operation of law,
or otherwise, without obtaining the prior consent of Landlord in each instance. Except for an assignment to Tenant's Affiliate (as hereinafter defined), Tenant will seek such consent of Landlord by a written request therefore, setting forth such information as Landlord may deem necessary. For the purposes of this Lease, "Tenant's Affiliate" means a corporation then owned or controlled by Tenant with financial wherewithal and net worth acceptabl e in all respects to Landlord. Tenant agrees to provide Landlord with prior written notice, a copy of any proposed assignment documentation and any other information requested by Landlord regarding Tenant's Affiliate prior to a transfer to Tenant's Affiliate. Landlord agrees not to withhold consent unreasonably. Consent by Landlord to any assignment of this Lease or to any subletting of the Premises will not be a waiver of Landlord’s right under this Article as
to any subsequent assignment or subletting. Landlord’s rights to assign this Lease are and will remain unqualified. No such assignment or subleasing will relieve the
Tenant from any of Tenant’s obligations in this Lease contained, nor will any assignment or sublease or other transfer of this Lease be effective unless the assignee,
subtenant or transferee at the time of such assignment, sublease or transfer, assumes in writing for the benefit of Landlord, its successors or assigns, all of the terms,
covenants, and conditions of this Lease thereafter to be performed by Landlord and agrees in writing to be bound thereby. Should Tenant sublease in accordance with
the terms of this Lease, fifty percent (50%) of any increase in rental received by Tenant over the per square foot rental rate which is being paid by Tenant will be
forwarded to and retained by Landlord, which increase will be in addition to the Base Rent and Additional Rent due Landlord under this Lease.
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15.0 SUCCESSORS AND ASSIGNS:
The terms, covenants and conditions hereof will be binding upon and inure to the successors and assigns of the parties hereto.
16.0 NOTICES:
Any notice required or permitted under this Lease will be deemed sufficiently given or secured one (1) day following the date the same is sent by registered or certified
return receipt mail to Tenant at 2350 Helen Steet, North Saint Paul, Minnesota 55109 to Landlord at the address then fixed for the payment of rent as provided in Article 5.0 of this Lease and either party may by like written notice at any time
designate a different address to which notices will subsequently by sent or rent to be paid.
17.0 SURRENDER:
On the Expiration Date or upon the termination hereof upon a day other than the Expiration Date, Tenant will peaceably surrender the Premises in good order, condition
and repair (reasonable wear and tear only excepted); warehouse area in broom clean condition; office/restroom area vacuumed and cleaned. On or before the Expiration Date or upon termination of this Lease on a day other than the Expiration Date,
Tenant will, at its expense, remove all trade fixtures, personal property and equipment and signs from the Premises and any property not removed will be deemed to have
been abandoned. Tenant will also repair any injury or damage to the Premises or the Premises which results from such removal. Any damage caused in the removal of
such items will be repaired by Tenant and at its expense. All alterations, additions, improvements and fixtures (other than trade fixtures) which have been made or
installed by Landlord or Tenant upon the Premises and all floor covering so installed will remain upon and be surrendered with the Premises as a part thereof, without
disturbance, molestation or injury, and without charge, at the expiration or termination of this Lease. If the Premises are not surrendered on the Expiration Date or the
date of termination, Tenant will indemnify Landlord against loss or liability, claims, without limitation, made by any succeeding Tenant founded on such delay. Tenant
will promptly surrender all keys for the Premises to Landlord at the place then fixed for payment of rent and will inform Landlord of combinations of any locks and safes
on the Premises.
18.0 HOLDING OVER:
In the event of a holding over by Tenant after expiration or termination of this Lease without the consent in writing of Landlord, Tenant will be deemed a Tenant at
sufferance and will pay rent for such occupancy at the rate of one and one-half times the last-current aggregate Base and Additional Rent, prorated for the entire holding over period, plus all attorney's fees and expenses incurred by Landlord in enforcing its rights
hereunder, plus any other damages occasioned by such holding over. Except as otherwise agreed, any holding over with the written consent of Landlord will constitute
Tenant a month-to-month lease.
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19.0 ABANDONMENT:
In the event Tenant removes its fixtures, equipment or machinery or vacates the Premises or any part thereof prior to the Expiration Date of this Lease, or discontinues
or suspends the operation of its business conducted on the Premises for a period of more than one hundred twenty (120) consecutive days (except during any time when the Premises may be rendered untenable by reason of fire or other casualty and except by reason of move to another location), then in any such event Tenant will 60; be deemed to have abandoned the Premises and Tenant will be in default under the terms of this Lease. Tenant will
maintain a minimum temperature in the Premises of 40 degrees during the Term of Lease.
20.0 DEFAULT OF TENANT:
| | a. | In the event of any failure of Tenant to pay any rental due hereunder within ten (10) days after the same becomes due, or if a check for the payment of Base Rent or Additional Rent is returned NSF, or any failure to perform any other terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such failure has been given to Tenant (provided that where a cure is not reasonably possible within that period, Tenant will be entitled to additional time to effect a cure, but not beyond thirty (30) additional days, so long as Tenant promptly commences acts reasonably calculated to effect a cure and thereafter diligently prosecutes those acts to completion), or if Tenant or an agent of Tenant falsifies any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease becomes bankrupt or insolvent, or files any debtor proceedings or any person takes or has against Tenant or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor's property, or if Tenant or any such guarantor's property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement with its creditors, or if Tenant abandons the Premises or suffers this Lease to be taken under any writ of execution, then in any such event Tenant will be in default hereunder. and 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 of, and for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. |
| | b. | Upon any default by Tenant, Landlord, besides any other rights or remedies it may have at law or in equity, may (a) terminate this Lease upon the expiration of five (5) days after written notice is given to Tenant, in which event, the Term of Lease will end on the date set forth in the notice, or (b) re-enter the Premises in accordance with applicable law, dispossess Tenant and/or other occupants of the Premises, remove all persons and property from the & #160; Premises and store such property in a public warehouse or elsewhere at the cost of, and for the account of Tenant and hold the Premises, without being guilty of trespass, or becoming liable for any loss or damage |
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| | which may be occasioned thereby, or (c) take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided for by law. Tenant agrees that such re-entry by Landlord will not be construed as an election to terminate this Lease, that right being continuously reserved by Landlord. Landlord will not be deemed to have elected to terminate this Lease unless Landlord provides Tenant with written notice of that election. If Landlord elects to re-enter the Premises, Landlord may from time to time make such alterations and repairs as may be necessary in order to re-let the Premises, and re-let all or a part of the Premises for such term or terms (which may be for a term extending beyond the Term of Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may believe appropriate. Upon each such subletting all rentals received by the Landlord from such re-letting will be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such re-letting, including brokerage fees and attorney's fees and costs of such alterations and repairs; third, to the payment of the rent and other charges due and unpaid hereunder, and the residue, if any will be held by Landlord and applied in payment of future payments for which Tenant is responsible as the same may become due and payable hereunder. If the sums received from such re-letting during any month be less than that to be paid during that month by Tenant hereunder, Tenant will pay any such deficiency to Landlord; if such sums are greater, Tenant will have no right to the excess. The deficiency will be calculated and paid monthly. Notwithstanding any such re-entry by Landlord, Landlord may at any time after such re-entry and re-letting elect to terminate this Lease for such previous breach. In the event that Tenant or any parent, subsidiary, or affiliate of Tenant leases any other space within the Building, any default by Tenant or such affiliated company under such other lease will be deemed to be a default under this Lease and Landlord will be entitled to enforce all of its rights and remedies as provided for in the event of a default under this Lease. Tenant will be responsible, and Landlord may recover a judgment from tenant, for Landlord's actual costs of constructing any leasehold improvements to the Premises which are not being directly paid for by Tenant together with such brokerage commissions as Landlord may have incurred in connection with this Lease (collectively, the "Transaction Costs"). Notwithstanding anything to the contrary in this Lease, upon a default by Tenant, whether or not Landlord elects to terminate this Lease, Landlord will be entitled to recover the unamortized balance of any such Transaction Costs, on an accelerated basis, so as to make the same immediately due and said amount will be deemed Additional Rent. For the purposes of this Lease, the "unamortized balance" means the actual total amount of Transaction Costs reduced, however, over the Term of Lease as if said sum were being amortized at an interest rate of eight percent (8.0%) per annum, in equal monthly installments over the number of months Tenant is to pay Base Rent under this Lease. Landlord's right to so accelerate the unamortized balance of the Transaction Costs will be an additional remedy of Landlord and will be exercisable either alone or in combination with Landlord's other remedies as set forth in this Lease. Should Landlord at any time terminate Tenant's right of possession upon a breach without terminating this Lease, in addition to any other remedies it may have, Landlord will also have the right to accelerate the entire indebtedness (including the amount of Base Rent and reasonably |
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| | estimated Additional Rent reserved in this Lease for the remainder of the Term of Lease), reduce the same to present value using a discount rate of eight percent (8.0%), and recover a judgment from Tenant in that amount. |
| | c. | Landlord may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorney's fees in curing such default, will be paid by Tenant, as Additional Rent, upon demand. |
| | d. | In the event suit is brought for recovery of possession of the Premises, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach is established, Tenant will pay to Landlord all expenses incurred therefore, including attorney's fees and costs, together with interest on all such expenses at the rate of fourteen percent (14%) per annum from the date of written and documented demand therefore to Tenant. |
| | e. | Tenant waives any demand for possession of the Premises, and any demand for payment of rent and any notice of intent to re-enter the Premises, or of intent to terminate this Lease, other than the notices above provided in this Article, and any other notice or demand prescribed by any applicable statutes or laws. |
| | f. | No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant will be exclusive of any other remedy, but will be cumulative, and may be exercised from time to time and as often as the occasion may arise. No waiver by Landlord or Tenant of performance by the other party will be considered a continuing waiver or will preclude Landlord or Tenant from exercising its rights in the event of a subsequent default. No acceptance by Landlord of a partial payment tendered by Tenant will be deemed to be a waiver of the balance of the amount due even if the tender states that acceptance will constitute payment in full. |
| | g. | Notwithstanding any provision to the contrary in this Lease, Tenant agrees that if Landlord is in default under this Lease, Tenant will look exclusively to the interest of Landlord in the Building and to offset against Base Rent and Additional Rent, and that Landlord, its partners, members, employees, agents, or representatives will not have any personal liability to pay any indebtedness hereunder or to perform any covenant contained herein and that no personal liability or personal responsibility of any sort is assumed by, nor will at any time be asserted or enforceable against Landlord, its partners, members, employees, agents or representatives. Tenant and all persons claiming by, through and under Tenant hereby expressly waive all such personal liability. |
21.0 EMINENT DOMAIN:
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In the event of any eminent domain of condemnation proceeding or private sale in lieu thereof in respect to the Building during the term thereof, the following provisions
will apply:
| | a. | If the whole of the Building is acquired or condemned by eminent domain for any public or quasipublic purpose, the Term of Lease will cease and terminate as of the date possession will be taken in such proceedings and all rentals will be paid up to that date. |
| | b. | If any part constituting less than the whole of the Building is acquired or condemned as aforesaid, and in the event that such partial taking or condemnation will materially affect the Premises so as to render the Premises unsuitable for the business of the Tenant, in the opinion of Landlord, then the Term of Lease will cease and terminate as of the date possession will be taken by the condemning authority and rent will be paid to the date of such termination. |
In the event of a partial taking or condemnation of the Building which will not materially affect the Premises so as to render the Premises unsuitable for the
business of the Tenant, in the opinion of the Landlord, this Lease will continue in full force and effect with a proportionate abatement of the Base Rent and
Additional Rent based on the portion, if any of the Premises taken. Landlord reserves the right, at its option, to restore the building and the Premises to
substantially the same condition as they were prior to such condemnation. In such event, Landlord will give written notice to Tenant, within 30 days following
the date possession is taken by the condemning authority, of Landlord’s intention to restore. Upon Landlord’s notice of election to restore, Landlord will
commence restoration and will restore the Building and the Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the
making of condemnation or sale proceeds adjustments by Landlord; and Tenant will have no right to terminate this Lease except as herein provided. Upon
completion of such restoration, the rent will be adjusted based upon the portion, if any, of the Premises restored. Notwithstanding the foregoing, in the event that twenty percent (20%) or more of the floor area of the Building or twenty percent (20%) or more of the parking areas are so taken, then Landlord and Tenant will each have the right to terminate this Lease by giving written notice thereof to the other within thirty (30) days following the date possession is taken by the condemning authority.
| | c. | In the event of any condemnation or taking as aforesaid, whether whole or partial, the Tenant will not be entitled to any part of the award paid for such condemnation and Landlord is to receive the full amount of such award, the Tenant hereby expressly waiving any right to claim to any part thereof. |
| | d. | Although all damages in the event of any condemnation belong to the Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the Premises, Tenant will have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant’s own right on account of any and all damage to Tenant’s business by reason of the condemnation and for or |
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| | on account of any cost or loss to which Tenant might be put in removing Tenant’s merchandise, furniture, fixtures, leasehold improvements and equipment. However, Tenant will have no claim against Landlord or make any claim with the condemning authority for the loss of its leasehold estate, any unexpired term or loss of any possible renewal or extension of said lease or loss of any possible value of said lease, any unexpired term, renewal or extension of said lease. |
22.0 RULES AND REGULATIONS:
Tenant will observe and comply with such further rules and regulations as Landlord may prescribe, on written notice to Tenant for the safety, care and cleanliness of the
Building.
23.0 DAMAGE OR DESTRUCTION:
In the event of any damage or destruction to the Premises by fire or other cause during the term hereof, the following provisions apply:
| | a. | If the Building is damaged by fire or any other cause to such extent that the cost of restoration, as estimated by Landlord, will equal or exceed twenty percent (20%) of the then replacement value of the Building (exclusive of foundations) just prior to the occurrence of the damage, or if Landlord believes in good faith that it will be unable to restore the Building or Premises within one hundred eighty (180) days following a casualty, then Landlord and Tenant may each, not later than thirty (30) days following the damage, give the other written notice of its election to terminate this Lease. |
| | b. | If neither Landlord nor Tenant elects to terminate this Lease, Landlord will restore the Building and the Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the making of insurance adjustments by Landlord, to as near the condition which existed immediately prior to the casualty as may be reasonably possible, provided however, Landlord will not be required to be responsible to restore any improvements made by Tenant subsequent to the Commencement Date. Tenant will have no right to terminate this Lease except as herein provided. |
| | c. | In the event of an election by either party to terminate this Lease, this Lease will be deemed to terminate on the date of the receipt of the notice of election and all rentals will be paid up to that date. Tenant will have no claim against Landlord for the value of any unexpired Term of Lease. |
| | d. | In any case where damage to the Building will materially affect the Premises so as to render them unsuitable in whole or in part for the purposes for which they are hereunder, then, unless such destruction was wholly or partially caused by the gross negligence, willful misconduct or breach of the terms of this Lease by Tenant, its employees, contractors or licensees, Tenant's obligation to pay monthly installments of Base Rent and Additional Rent will abate during such period of time that the Premises are untenantable in the proportion that the untenantable portions of the Premises bears to the entire Premises. If the destruction or damage was wholly or partially caused by gross negligence, willful misconduct or breach of the terms of this Lease by Tenant |
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| | as aforesaid and if Landlord elects to rebuild, the rent will not abate and the Tenant will remain liable for the same. When Landlord has completed its work required hereunder, Tenant's obligation to pay Base Rent and Additional Rent will resume and Tenant will promptly complete the restoration of the Premises to the condition which existed immediately prior to the casualty. |
24.0 CASUALTY INSURANCE:
| | a. | Tenant will at all times during the Term of Lease, at its expense, maintain a policy or policies of insurance with premiums paid in advance issued by an insurance company licensed to do business in the State of insuring the Building against loss or damage by fire, explosion or other insurable hazards and contingencies for the full replacement value. |
| | b. | Tenant will not carry any stock of goods or do anything in or about the Premises which will in any way impair or invalidate the obligation of the insurer under any policy of insurance required by this Lease. |
| | c. | Landlord hereby waives and releases all claims, liabilities and causes of action against Tenant and its agents, servants and employees for loss of damage to, or destruction of, the Building or any portion thereof, including the buildings and other improvements situated thereon, resulting from fire, explosion or the other perils included in standard extended coverage insurance, whether caused by the negligence of any of said persons or otherwise. Likewise, Tenant hereby waives and releases all claims, liabilities and causes of action against Landlord and its agents, servants and employees for loss of damage to, or destruction of, any of the improvements, fixtures, equipment, supplies, merchandise and other property, whether that of Tenant or of others in, upon or about the Premises resulting from fire, explosion or the other perils included in standard coverage insurance, whether caused by the negligence of any of said persons or otherwise. The waiver will remain in force whether or not the Tenant's or Landlord’s insurer consents thereto. |
| | d. | If Tenant installs any electrical equipment that overloads the power lines to the building or its wiring, Tenant will, at its own expense, make whatever changes are necessary to comply with the requirements of the insurance underwriter, insurance rating bureau and governmental authorities having jurisdiction. |
25.0 COVENANTS TO HOLD HARMLESS:
Unless the liability for damage or loss is caused by the negligence of Landlord, its agents or employees, Tenant will hold harmless Landlord from any liability for
damages to any person or property in or upon the Premises and the Building, including the person and property of Tenant and its employees and all persons in the
Building at its or their invitation or sufferance, and from all damages resulting from Tenant’s failure to perform the covenants of this Lease. All property kept, maintained
or stored on the Premises will be so kept, maintained or stored at the sole risk of Tenant. Tenant agrees to pay all sums of money in
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respect of any labor, service, materials, supplies or equipment furnished or alleged to have been furnished to Tenant in or about the Premises, and not furnished on
order of Landlord, which may be secured by any mechanic's material men’s or other lien to be discharged at the time performance of any obligation secured thereby matures, provided that Tenant may contest such lien, but if such lien is
reduced to final judgment and if such judgment or process thereon is not stayed, or if stayed and said stay expires, then and in each such event, Tenant will forthwith
pay and discharge said judgment. Landlord will have the right to post and maintain on the Premises, notices of non-responsibility under the laws of the State of .
26.0 NON-LIABILITY:
Subject to the terms and conditions of this Article 26.0 hereof, Landlord will not be liable for any damage to property of Tenant or of others located on the Premises,
nor for the loss or damage to any property of Tenant or of others by theft or otherwise. Landlord will not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or snow or leaks from any part of the Premises or from the pipes, appliances, or plumbing
works or from the roof, street or subsurface or from any other place or by dampness or by any other cause of whatsoever nature. Landlord will not be liable for any
such damage caused by other Tenants or persons in the Premises, occupants or adjacent property, of the buildings, or the public or caused by operations in
construction of any private, public or quasi-public work. Landlord will not be liable for any latent defect in the Premises. All property of Tenant kept or stored on the Premises will be so kept or stored at
the risk of Tenant only and Tenant will hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant’s insurance
carrier unless directly caused by Landlord’s gross negligence or willful misconduct.
27.0 SUBORDINATION:
This Lease will automatically be subordinated to any mortgage that may now exist or that may hereafter be placed upon the Premises and to any and all advances
made there under, and to the interest upon the indebtedness evidenced by such mortgages, and to all renewals, replacements and extensions thereof. In the event of execution
by Landlord after the date of this Lease of any such mortgage, renewal, replacement or extension, Tenant agrees to execute a subordination agreement with the holder
thereof which agreement will provide that:
| | a. | Such holder will not disturb the possession and other rights of Tenant under this Lease so long as Tenant is not in default hereunder; |
| | b. | In the event of acquisition of title to the Premises by such holder, such holder will accept the Tenant as Tenant of the Premises under the terms and conditions of this Lease and will perform all the obligations of Landlord hereunder; and |
| | c. | The Tenant will recognize such holder as Landlord hereunder. |
28.0 ATTORNMENT:
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In the event of a sale or assignment of Landlord’s interest, in the Building or in the Premises, where the Building is located, or this Lease, or if the Building comes into custody or possession of a mortgagee or any other party whether because of a mortgage foreclosure, or
otherwise, Tenant will attorn to such assignee or other party and recognize such party as Landlord hereunder; provided, however, Tenant’s peaceable possession will not
be disturbed so long as Tenant faithfully performs its obligations under this Lease. Tenant will execute, on demand, any attornment agreement required by any such
party to be executed, containing such provisions as such party may require. Landlord will have no further obligations under this Lease after any such assignment.
29.0 NOVATION IN THE EVENT OF SALE:
In the event of the sale of the Premises, Landlord will be and hereby is relieved of all of the covenants and obligations created hereby accruing from and after the date
of sale, and such sale will result automatically in the purchaser assuming and agreeing to carry out all the covenants and obligations of Landlord herein. Notwithstanding
the foregoing provisions of this Article 29.0, Landlord, in the event of a sale of the Premises, will cause to be included in this agreement of sale and purchase a
covenant whereby the purchaser of the Premises assumes and agrees to carry out all of the covenants and obligations of Landlord herein.
The Tenant agrees at any time and from time to time upon not less than ten (10) days prior written request by the Landlord to execute, acknowledge and deliver to
the Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect as modified and stating the modifications, and the dates to which
the basic rent and other charges have been paid in advance, if any, it being intended that any such statement delivered pursuant to this paragraph may be relied upon
by any prospective purchaser of the fee or mortgagee or assignee or any mortgage upon the fee of the Premises.
30.0 ESTOPPEL CERTIFICATES:
Within ten (10) days after written notice from Landlord, Tenant will provide an estoppel certificate to Landlord and such other party as is directed by Landlord in such
form as is provided by Landlord certifying: (a) that this Lease is in full force and effect and that it has not been assigned, modified, supplemented, or amended in any
way (or identifying any assignment, modification, supplement or amendment); (b) the date of commencement and expiration of the Term of Lease or the applicable renewal
term; (c) that there are no defenses or offsets thereto (or stating those claimed by Tenant); (d) the amount of Base Rent and Additional Rent that has been paid in
advance and the amount of security deposit that has been deposited with Landlord; (e) the date to which Base Rent or Additional Rent have been paid under this
Lease; (f) that any tenant improvements have been completed in accordance with the requirements of this Lease; and (g) such other information as is reasonably
requested by Landlord. Tenant hereby irrevocably appoints Landlord as its attorney in fact to execute such certificate in the event Tenant fails to do so within
ten (10) days of the Landlord's notice.
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31.0 FINANCIAL STATEMENTS:
Upon request by Landlord, including at such times as Landlord prepares to sell or refinance the Premises, Tenant agrees to provide Landlord with the most recent
balance sheet and income statement certified to by an officer/partner of Tenant as being true and correct.
32.0 BROKERS:
Tenant warrants that it has not engaged or dealt with any broker in connection with this Lease other than Wellington Management, Inc. and Tenant agrees to indemnify, defend and hold Landlord harmless from and against any claim for a broker's fee or finder's fee asserted by anyone, on account of
any dealings with Tenant in connection with this Lease.
33.0 QUIET ENJOYMENT:
Landlord warrants that it has full right to execute and to perform this Lease and to grant the estate , and that Tenant, upon payment of the rents and other amounts
due and the performance of all the terms, conditions, covenants and agreements on Tenant’s part to be observed and performed under this Lease, may peaceably and
quietly enjoy the Premises for the business uses permitted hereunder, subject, nevertheless, to the terms and conditions of this Lease.
34.0 RECORDING:
Tenant will not record this Lease without the written consent of Landlord. However, upon the request of either party hereto, the other party will join in the execution
of a memorandum of lease for the purposes of recordation. Said Memorandum lease will describe the parties, the Premises and the term of the Lease and will
incorporate this Lease by reference. This Article 34.0 will not be construed to limit Landlord’s right to file this Lease.
35.0 CONSENTS BY LANDLORD:
Whenever provision is made under this Lease for Tenant securing the consent or approval by Landlord, such consent or approval must only be in writing.
36.0 INTENT OF PARTIES:
Except as otherwise provided herein, the Tenant covenants and agrees that if it any time fails to pay any cost or expense required to be paid by it, or fail to take
out, pay for, maintain or deliver any of the insurance policies above required, or fails to make any other payment or perform any other act on its part to be made or
performed as in this Lease provided, then the Landlord may, but will not be obligated so to do, and without notice to or demand upon the Tenant and without
waiving or releasing the Tenant from any obligations of the Tenant in this Lease contained, pay any such cost or expense, effect any such insurance coverage and
pay premiums therefore, and may make any other payment or perform any other act on the
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part of the Tenant to be made and performed as in this Lease provided, in such manner and to such extent as the Landlord may deem desirable, and in exercising any
such right, to also pay all necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorney's fees. All sums so paid by Landlord
and all necessary and incidental costs and expenses in connection with the performance of any such act by the Landlord, together with interest thereon at the rate of
fourteen percent (14%) per annum from the date Landlord give written and documented notice of making such expenditures, will be deemed Additional Rent hereunder, and will be payable to Landlord on demand. Tenant covenants to pay any such sum or sums
with interest as aforesaid and the Landlord will have the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by Tenant in the payment of the Base Rent payable under this Lease.
37.0 TENANT IMPROVEMENTS OF PREMISES:
Landlord will start Tenant Improvements and complete said work as scheduled on Exhibit C. Tenant Improvements means the improvements, alterations and additions by Landlord as required by the outline specifications and plans attached hereto on Exhibit A & C.
Landlord will perform Tenant Improvements in a first class manner substantially in accordance with outline specifications and plans attached hereto and made a part hereof as Exhibit A & C. Any changes or modifications to the approved specifications and plans will be made and agreed to by Tenant by written change order or agreement and will
constitute an amendment to this Lease. Landlord will utilize first quality new materials in compliance with all applicable laws, ordinances, rules and statutes. Tenant will
have 15 days after Landlord has completed Improvements of the Premises to inspect them and report any defects, and Tenant will be deemed to have accepted the Premises except for any defects timely reported.
Upon receipt of such report, Landlord will then complete the work within fifteen (15) days.
In the event Landlord fails to complete any Tenant Improvement by the Completion Date scheduled therefor on Exhibit C, Tenant may within forty-five (45) days after such Completion Date terminate this Lease by written notice thereof to Landlord, termination to be effective on the date specified in such written notice, such termination date to be not later than six (6) months after such written notice.
38.0 TENANT PERFORMANCE OF OTHER LANDLORD REQUIREMENTS.
Landlord will promptly commence within three (3) days notice thereof and diligently proceed to investigate and correct any roof leakage or other roof integrity issue, and in the event Landlord fails to so perform, Tenant may proceed to correct such issue and offset its costs and expenses incurred thereby against Base Rent and Additional Rent as they become due. Landlord will promptly make or authorize all necessary HVAC maintenance, repairs and replacements in excess of $11,000 in any year of the Term of Lease, and in the event Landlord fails to so perform and reimburse Tenant for Tenant’s costs and expenses incurred thereby, Tenant may proceed to cause all such work to be performed and offset its costs and expenses incurred thereby against Base Rent and Additional Rent as they become due. In the event Landlord fails to perform a ny other terms, conditions or covenants of this Lease to be observed or performed by Landlord for more than thirty (30) days after written notice of such failure
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has been given to Landlord, Tenant may proceed to perform such requirements and offset its costs and expenses incurred thereby against Base Rent and Additional Rent as they become due.
39.0 GENERAL:
| | a. | The Lease does not create the relationship of principal and agent or of partnership or of joint venture or of any association between Landlord and Tenant, the sole relationship between the parties hereto being that of Landlord and Tenant. |
| | b. | No waiver of any default of Tenant hereunder will be implied from any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver will affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated. One or more waivers by Landlord will not then be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by Landlord of any act by Tenant requiring Landlord’s consent or approval will not waive or render unnecessary Landlord’s consent to or approval of any subsequent similar act by Tenant. No action required or permitted to be taken by or on behalf of Landlord under the terms or provisions of this Lease will be deemed to constitute an eviction or disturbance of Tenant’s possession of the Premises. All preliminary negotiations are merged into and incorporated in this Lease. The laws of the State of will govern the validity, performance and enforcement of this Lease. |
| | c. | This Lease and the exhibits, if any, attached hereto and forming a part hereof, constitute the entire agreement between Landlord and Tenant affecting the Premises and there are no other agreements, either oral or written, between them other than herein set forth. No subsequent alteration, amendment, change or addition to this Lease will be binding upon Landlord or Tenant unless reduced to writing and executed in the same form and manner in which this Lease is executed. |
| | d. | If any agreement, covenant or condition of this Lease or the application thereof to any person or circumstance is, to any extent, invalid or unenforceable, the remainder of this Lease, or the application of such agreement, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby and each agreement, covenant or condition of this Lease will be valid and be enforced to the fullest extent permitted by law. |
| | e. | The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease nor the intent or any provision thereof. |
| | f. | Submission of this instrument to Tenant or proposed Tenant or his agents or attorneys for examination, review, consideration or signature does not constitute or imply an offer to lease, reservation of space, or option to lease, and this instrument will have no binding legal effect until execution hereof by both Landlord and Tenant or its agents. |
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| | g. | Tenant and Landlord (each, a "Representing Party") each represents and warrants to the other (i) that neither the Representing Party nor any of its officers, directors or managing members is a person or entity (each, a "Prohibited Person") with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including Executive Order 13224 (the "Executive Order") signed on September 24, 2001 and entitled "Blocking Property and Prohibiting Transactions with Person Who Commit, Threaten to Commit, or Support Terrorism"), or other governmental action, (ii) that the Representing Party's activities do not violate the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders promulgated there under (as amended from time to time, the "Money Laundering Act"), and (iii) that throughout the term of this lease the Representing Party will comply with the Executive Order and with the Money Laundering Act. |
40.0 TERMINATION OF LEASE:
This Lease is conditioned upon Tenant and Prudential Mortgage Capital (“Lender”) entering into a Subordination, Nondisturbance and Attornment Agreement assuring that Tenant’s rights to the Premises and under the Lease, including without limitation Tenant’s rights to complete Landlord’s requirements and offset costs and expenses incurred thereby against rents as they become due, will be preserved notwithstanding any loan default by Landlord or mortgagee foreclosure, and otherwise on terms satisfactory to Tenant. This Lease will terminate and be of no force or effect on August 27, 2010 in the event Lender has not by such date executed and delivered to Tenant such Subordination, Nondisturbance and Attornment Agreement.
| | [Signatures begin on next page] |
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IN WITNESS WHEREOF, the Landlord and the Tenant have executed this Lease in form and manner sufficient to bind them at law, as of the day and year first above
written.
LANDLORD: TENANT:
| Triple Shot, LLC | Aetrium Incorporated |
| A Minnesota Limited Liability Company | A Minnesota corporation |
__/s/ Gary T. Mulcahy, Sr. ______________ _/s/ Douglas L. Hemer_________________
Signature Signature
Gary T. Mulcahy, Sr. Douglas L. Hemer
Name (print) Name ( print)
Chief Manager Chief Administrative Officer
Title Title
August 20, 2010 _ & #160; August 20, 2010______________________
Date 0; Date
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Exhibit B
LEGAL DESCRIPTION
PARCEL 1A:
That part of Lot 1, Block 18, North St. Paul Proper lying Southeasterly of a line drawn parallel to and 16 feet Southeasterly from the most Northwesterly line of said lot.
Lots 2, 3, 4, 5, 6, and 7, Block 18, North St. Paul Proper.
Those parts of Lots 15, 16, 17, 18, 19, 20, 21 and 22, Block 18, North St. Paul Proper lying West of a line and its extension, drawn parallel to and 120 feet West from the East line of said Lots 16 to 22, inclusive.
That part of Lot 24, Block 18, North St. Paul Proper lying Southerly of the Northwesterly 16 feet thereof and West of a line and its extension, drawn parallel to and 120 feet West from the East line of said lot.
Those parts of Lots 25 and 26, Block 18, North St. Paul Proper lying Southerly of the Northwesterly 16 feet thereof, and Northerly of the Southerly 220 feet thereof, as measured perpendicular to the Southerly lines thereof.
Lots 13, 14, and 15, Block 3, North St. Paul Land Co’s Rearrangement No. 1 in Blocks 14, 15 and 18, North St. Paul Proper, Ramsey County, Minnesota.
PARCEL 1B:
Easement for ingress and egress purposes described in Easement Agrement dated August 7, 1995, recorded September 7, 1995, as Document No. 2886559.
Torrens Property
Abstract Property (as to appurtenant easement)
Torrens Certificate No. 552234
PARCEL 2:
All those parts of the South 220 feet of Lots 25 and 26, Block 18, North St. Paul Proper which lie North of the South lot lines extended of Lots 7 and 15, Block 18, North St. Paul Proper, Ramsey County, Minnesota.
Abstract Property
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EXHIBIT C
Tenant Improvements
| Tenant Improvement | Completion Date | |
| 1. | A two part epoxy finishing on the production side finished floor area, or other floor covering approved by Tenant, will be done in colors approved by Tenant. Work is to be completed off hours with ventilation systems operating. Moving of equipment is to be done by Tenant. | November 30, 2010 |
| 2. | Walls will be painted as required by Tenant in colors approved by Tenant. Work is to be completed off hours. Landlord will be responsible to move furniture and fixtures to allow access to painters. | November 30, 2010 |
| 3. | Reception area will be repaired and repainted with vinyl replaced as required by Tenant in colors and vinyl approved by Tenant. Entry trim and doors will be repainted. | November 30, 2010 |
| 4. | Nonfunctioning lighting will be repaired. | October 15, 2010 |
| 5. | New carpeting of equal grade to existing carpeting and otherwise as approved by Tenant will be installed in all carpeted areas except offices carpeted five years ago and any other areas approved by Tenant to not be carpeted. Work will be completed off hours where possible and with minimal disruption to Tenant. Tenant will be responsible for clearing cubicles per Landlord’s advance schedule. Landlord will be responsible for moving and reinstalling all furniture, files and equipment necessary for the carpeting. A new carpet or other wall base acceptable to Tenant will be installed throughout carpeted area. | November 30, 2010 |
| 6. | New mirrors, as necessary, and faucets will be installed in bathrooms and any necessary tile repairs or replacements will be made. | October 15, 2010 |
| 7. | The door leading from the cubicle area to the employee entrance will be replaced and a door jamb will be installed. | October 15, 2010 |
| 8. | Walls with doors and windows will be constructed in the engineering lab and incoming inspection areas, and conference room C will be expanded, per the attached. | October 15, 2010 |
| 9. | Hydraulic door openers and closers will be serviced and repaired or replaced as necessary | October 15, 2010 |
| 10. | Soiled and broken ceiling tiles will be replaced | November 30, 2010 |
| 11. | Water heaters will be evaluated and repaired or replaced as necessary | October 15, 2010 |
| 12. | The exterior of the building will be repainted in colors approved by Tenant. | October 15, 2010 |
| 13. | All potholes in the parking lot will be repaired. | October 15, 2010 |
| 14. | Dock doors will be serviced and dock gasket will be repaired. Broken block at dock door will be replaced. | October 15, 2010 |
| 15. | Raised cement areas at entrances will be corrected and chipped cement area at main entrance will be repaired. Drainage at employee entrance will be redesigned and installed. | October 15, 2010 |
| 16. | Any asphalt areas showing ‘alligatoring’ will be removed and replaced with two lifts of new asphalt, and the parking lot will be seal-coating with tap-rock and re-striped. | June 30, 2012 |
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General Requirements
| | 1. | All work will conform to all applicable Minnesota state and local codes. |
| | 2. | Each Tenant Improvement to be completed by scheduled Completion Date. |
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