Exhibit 10.20
ASSIGNMENT AGREEMENT
This Agreement (the or this
“Agreement”) is made as of January 20, 2004,
between Littlefeet, Inc., a California corporation
(“Littlefeet”) and Aetrium Incorporated, a Minnesota
corporation (“Aetrium”), jointly (the
“Parties”).
RECITALS:
A. The Parties entered into an
Assignment and Assumption of Lease Agreement (the “Lease
Assignment”) dated August 8, 2000 under which Aetrium
assigned to Littlefeet that certain Standard Industrial/Commercial
Single-Tenant Lease-Net dated September 18, 1998 by and
between Aetrium and Pomerado Leasing No. 5 LP, a California
limited partnership (“Lessor”), as successor in
interest to W.H. Pomerado LLC, a California limited liability
company (including Addendum to Lease dated September 17, 1998
(“Addendum”) and as amended by that certain First
Amendment to Lease (“First Amendment”) dated
September 10, 1999 and by that certain Consent to Assignment
of Lease and Amendment of Lease dated August 10, 2000 by and among
Lessor, Aetrium and Littlefeet (“First Consent”))
(“Lease”) respecting premises located at 13000 Gregg
Street, Poway, California (the “Premises”). Aetrium
remained liable for the full performance of lessee under the Lease.
True and correct copies of the Lease Assignment and Lease are
attached as Exhibit “A” and Exhibit “B”
hereto, respectively. Any words or phrases defined in the Lease
will have the same meaning and effect when used in this Agreement,
unless otherwise expressly provided in this Agreement.
B. The term of the Lease is
scheduled to expire on January 31, 2010 (the
“Contractual Termination Date”).
C. Aetrium holds a security
deposit in the amount of $67,500.00 (“Aetrium Security
Deposit”) and Lessor holds a security deposit in the amount
of $67,582.00 (the “Pomerado Security Deposit” the
Aetrium Security Deposit and the Pomerado Security Deposit are
collectively referred to as the “Security
Deposits”).
D. Littlefeet will be ceasing
operations in the near future and may be liable for substantial
damages for rent and other sums that would have been payable
through the balance of the Lease term. Littlefeet has requested
that, in lieu of prosecuting a lawsuit against Littlefeet for such
damages and for collection thereof, Aetrium instead assume the
Lease and accept a one-time lump sum payment as set forth herein.
Littlefeet acknowledges that such a reduction of its liability to
Lessor and Aetrium is a substantial benefit to it in that, among
other things, it reduces the absolute number of dollars it would
otherwise have to pay to Lessor and Aetrium.
NOW, THEREFORE, in furtherance of
the foregoing, and in consideration of the premises and the mutual
covenants set forth below and other good and valuable consideration
the receipt and adequacy of which is acknowledged, the Parties
agree as follows:
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Exhibit 10.20
1. Assignment
and Assumption. Effective the date of this Agreement, Littlefeet
hereby assigns to Aetrium all of its right, title and interest in,
to and under the Lease and in, to and under that certain Sublease
(the “Tandberg Sublease”) dated February 12, 2002
by and between Littlefeet and Tandberg Data Inc, a Delaware
corporation (“Tandberg”) with respect to approximately
13,319 square feet of the Premises, including without limitation
with respect to security deposits held under the Lease and by
Aetrium, and Aetrium hereby assumes all obligations of Littlefeet
under the Lease and the Tandberg Sublease accruing on or after the
date hereof, including without limitation with respect to the
security deposit under the Tandberg Sublease. Littlefeet represents
that a true and correct copy of the Tandberg Sublease is attached
hereto as “Exhibit C” hereto, the Tandberg
Sublease is in full force and effect and has not been modified,
Littlefeet and Tandberg are each in full compliance with the
requirements of the Tandberg Sublease, and rent under the Tandberg
Sublease has been paid in full through
January 2004.
2. Lump Sum
Payment. In consideration for amounts currently owing under the
Lease and the Lease Assignment and for Lessor and Aetrium
permitting Littlefeet to be relieved of the future obligation to
pay damages that would have been payable under the Lease and Lease
Assignment through the Contractual Termination Date,
contemporaneously with the execution of this Agreement, Littlefeet
has paid to Aetrium by wire transfer to Aetrium’s bank
(Anchor Bank, 2700 East Seventh Avenue, North St. Paul, MN 55109,
routing number 096008825, for the account of Aetrium Incorporated,
account number 97-84972) an amount of money equal to $212,661, plus
an additional amount of $22,500 to be held and applied as a
“Utilities Reserve” as set forth herein. Littlefeet
hereby assigns to Aetrium all of its right, title and interest in
and to the Security Deposits. In addition, Littlefeet will pay
Lessor all of Lessor’s reasonable costs and expenses incurred
in connection with Lessor’s consent to this
Agreement.
3. Release of
Claims.
a. Except
for the agreements of Littlefeet set forth in this Agreement,
Aetrium, as of the date of this Agreement, releases Littlefeet and
its present and former shareholders, officers, directors, agents,
attorneys, employees, predecessors, successors, and assigns
(collectively “Littlefeet Releasees ”) of and
from any and all claims, demands, damages, liabilities, losses,
costs, and expenses of every kind and nature whatsoever, whether
now known or unknown, suspected or unsuspected which any of them
now has, owns or holds or at any time heretofore ever had, owned or
held or could, will or may hereafter have, own or hold against any
and all of the Littlefeet Releasees based upon obligations of
Littlefeet under the Lease and the Lease Assignment and for any
other damages Aetrium could otherwise collect as a consequence of
any failure by Littlefeet to fully perform such obligations (the
“Aetrium Released Matters ”).
b. Except
for the agreements of Aetrium set forth in this Agreement,
Littlefeet, as of the Effective Date, releases Aetrium, and its
present and former members, agents, attorneys, employees,
predecessors, successors, and assigns (collectively “Aetrium
Releasees ”) of and from any
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Exhibit 10.20
and all claims, demands, damages,
liabilities, losses, costs, and expenses of every kind and nature
whatsoever, whether now known or unknown, suspected or
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