ASSIGNMENT OF LEASE

 

the promises, covenants or agreements contained in the Lease, this Assignment shall not be taken to modify or limit the obligation of Tenant, and Landlord may have such remedies against Tenant, including any confession of judgment for moneys due as by the Lease provided, in the same manner as if this assignment had not been made.

 

 

Dated:	October 23, 2003		Tenant:
			BIOMEC Cardiovascular Inc.
			By:		/s/ Vincent P. Owens
				Its:	President & CEO

 

 

ACCEPTANCE OF TENANT’S ASSIGNMENT

 

In consideration of the above assignment and of the written consent of Landlord thereto, Assignee (binding also Assignee’s heirs, successors and assigns) hereby assumes and agrees to make all payments and to perform and keep all promises, covenants and conditions and agreements of the Lease by Tenant to be made, kept and performed commencing on the Assignment Date, expressly adopting for Assignee the provisions of any confession of judgment clause contained in the Lease as though here restated.

 

It is further agreed that the taking by Landlord of any remedy as by confession of judgment against Tenant shall not preclude Landlord from the exercise of said remedy against Assignee, but Landlord may have the same remedy against Assignee, its heirs, successors or assigns simultaneously with that against Tenant, and Landlord shall be limited only and at all events to one satisfaction for any debts or obligations which may accrue by virtue of a breach of any covenants, promises or agreement contained in the Lease.

 

 

Dated:	October 23, 2003		Assignee:
			Medacquisition, Inc.
			By:		/s/ James D. Hartman
				Its:		CEO

 

 

CONSENT TO TENANT’S ASSIGNMENT

 

Landlord hereby consents to the assignment of the Lease by Tenant to Assignee in consideration of Tenant’s promises, covenants and agreements herein above expressed and upon the express condition that Tenant shall remain liable for the prompt payment of the rent reserved in the Lease and the keeping and performance of all conditions and covenants of the Lease by the Tenant to be kept and performed, and in consideration likewise of the covenants, promises and agreements of Assignee above set forth.  Landlord does not consent to any further assignment of the Lease nor to any subletting of the Leased Premises or any part thereof.

 

 

Dated:	, 2003		Landlord:
			Lakeland Industrial, LLC
			By:		/s/ [ILLEGIBLE]
				Its:		V.P.

 

 

idmsmpl:512659_3 (8-06-02) 9:14

 

SECOND AMENDMENT TO LEASE AGREEMENT

 

THIS SECOND AMENDMENT made this            day of August, 2002 by and between Lakeland Industrial, LLC, a Delaware limited liability company , as “Landlord”, and Biomec Cardiovascular, Inc, a Minnesota corporation , f/k/a InnoMedica, Inc., f/k/a R. F. Machining, Inc., as “Tenant” .

 

WITNESSETH

 

WHEREAS; Landlord’s predecessor-in-interest, Principal Life Insurance Company, an Iowa corporation, f / k/a Principal Mutual Life Insurance Company, c/o Principal Capital Management, LLC, a Delaware LLC, and Tenant entered into a certain Lease Agreement (the “Lease” ) dated June 15, 1998, for certain premises consisting of approximately 13,548 square feet of net rentable area located at 7448 W 78 ^th Street, Bloomington, Minnesota (the “Premises” ) and

 

WHEREAS; the Lease was amended pursuant to a certain First Amendment to Lease dated October 3, 2000, by and between Landlord and Tenant (the “First Amendment” ); and

 

WHEREAS; Landlord has succeeded to all right, title and interest of Principal Life Insurance Company, an Iowa corporation, f/k/a Principal Mutual Life Insurance Company, c/o Principal Capital Management, LLC, a Delaware LLC, as Landlord under the Lease, and

 

WHEREAS; Tenant desires to extend and expand the term of the Lease and First Amendment and Landlord is willing to grant such extension and expansion, subject to the terms and provisions hereinafter set forth.

 

NOW THEREFORE, in consideration of the foregoing and for other consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:

 

1.                                        Expansion Space:  Beginning September 1, 2002, the Premises shall be expanded by an additional 5,931 square feet of adjacent space ( “Expansion Space” ).  The Leased Premises shall then total 24,928 square feet.

 

2.                                        Expiration Date :  The Expiration Date of the Lease shall be modified from the last day of December, 2005 to the last day of December, 2008.

 

3.                                        Extension of Term:  Commencing September 1, 2002 and continuing through December 31, 2008 Tenant shall pay the following monthly base rent for the Leased Premises:

 

Period		Monthly Base Rent			Rent/SF			Total Rent/period
September 1, 2002 – October 31, 2002		$	10,047.00		$	4.84		$	20,094.00
November 1, 2002 – December 31, 2003		$	13,151.00		$	6.33		$	197,265.00
January 1, 2004 – December 31, 2008		$	14,189.00		$	6.83		$	851,340.00

 

4.                                        Additional Rent : Pursuant to Article 3 of the Lease, Tenant’s proportionate share of common area maintenance charges and real estate taxes for the property ( “Additional Rent” ) shall be increased from 25.62% to 33.62% effective November 1, 2002.

 

5.                                        Utilities: Beginning September 1, 2002, Tenant shall be responsible to pay directly all gas and electric bills for services provided to the Expansion Space.

 

 

6.                                       Improvement Allowance: Landlord agrees to provide an improvement reimbursement allowance up to $135,000 (the “TIA”) to be used specifically for improvements to the Premises to be constructed in accordance with plans and specifications prepared by Genesis Architecture dated July 9, 2002 and revised July 18, 2002 (the “Approved Plans”).  The TIA shall be applied against all costs and expenses incurred in connection with the design of the tenant improvements, the preparation of the Approved Plans and the construction of the tenant improvements.  Such tenant improvements include work performed by or at the request of Tenant prior to the date hereof; provided, however, that the TIA shall not be applied against the cost of any such work which was not performed in accordance with the Approved Plans.  All improvements in excess of the $135,000 allowance shall be completed at the Tenant’s sole cost and expense, and must receive the Landlord’s prior written approval, which approval shall not be unreasonably delayed, conditioned or denied.

 

Tenant, at Tenant’s sole cost and expense, shall cause any and all construction work at or about the Premises performed by or at the instance of Tenant, prior to the date hereof to comply in all respects with city ordinances, building codes and all other applicable laws.

 

The Landlord, prior to the commencement of the work, shall approve the general contractor, which approval shall not be unreasonably delayed, conditioned or denied.  The Landlord will disburse the improvement allowance directly to Tenant after the work has been completed and all lien waivers and a certificate of occupancy (or, if the City of Bloomington does not issue certificates of occupancy, written approval or “sign off” from responsible city officials as to compliance of the tenant improvements with city ordinances and codes) have been delivered to the Landlord evidencing payment of the improvements and compliance with applicable laws.

 

7.               First Right of Offer as to Additional Space :

 

a.                                        Provided Tenant is not in default hereunder, Landlord agrees to notify Tenant of the availability of leasable premises within the Building (“Available Tenant Space”) prior to marketing or leasing such available Tenant Space to third parties.  When Landlord determines that any tenant space is or will within six (6) months thereafter become available for leasing, Landlord shall provide written notice thereof to Tenant (a “Landlord’s Space Availability Notice”).  Thereafter, Landlord agrees to negotiate in good faith and exclusively with Tenant for a period of thirty (30) days after the giving of such Landlord Space Availability Notice.  If at the end of such thirty (30) day period, Landlord and Tenant have not reached agreement on the full and final terms of the lease of the Available Tenant Space, Landlord shall be free to pursue leasing opportunities for the Available Tenant Space with third parties.  Notwithstanding anything contained herein to the contrary, Landlord shall not be obligated to give Tenant the right of first offer with respect to any Available Tenant Space which becomes, or will become, available within the last twelve (12) calendar months of the term of this Lease, unless such term is extended, whether by exercise of any available extension options as provided in the Lease or by other written agreement between Landlord and Tenant.

 

b.                                       If the Lease or Tenant’s right to possession of the Premises shall terminate in any manner whatsoever before Tenant shall exercise its rights under this Article 7, then immediately upon such termination this Article 7 and Tenant’s rights hereunder shall simultaneously terminate and become null and void.

 

c.                                        The first right of offer set forth in Section 7(a) above hereby granted is personal to Biomec Cardiovascular, Inc., a Minnesota corporation (“Biomec”), and is not transferable, except to subsidiaries of Biomec or affiliates controlled by, or under common control with, Biomec.  In the event of an assignment or sublease (of more than 25% of the leased premises) of the Lease, the first right of offer shall automatically become null and void thereafter.

 

 

8.                Signage : Tenant shall have the right to erect a sign on the side of the building.  Tenant must first have approval from the City of Bloomington and from the Landlord on the size and design of the sign, which Landlord approval shall not be unreasonably delayed, conditioned or denied.  Tenant agrees to remove said signage upon vacating the building and return the building to the condition it was in prior to the installation of the signage.

 

9.                Roof : Landlord acknowledges that Tenant has experienced leakage of water by and to the premises in response, Landlord has, in addition to roof patching, engaged the services of John A. Dalsin & Son, Inc. (“Dalsin”), roofing contractor, to perform roof repairs pursuant to a certain proposal letter dated April 11, 2002, a copy of which has been provided to and reviewed by Tenant, which roof repairs have been completed.  In the event Tenant experiences further roof leakage, Tenant shall notify Landlord thereof and Landlord shall diligently seek to (i) determine the cause of such leaks, and (ii) engage the services of Dalsin or another roofing contractor to remedy the identified cause of such leaks.

 

10.          Deletion of Articles : The parties agree that Article 38 (Termination Upon Demolition of Sale of Building) shall be and hereby is terminated and deemed removed from the Lease.

 

11.          Brokers : Each of the parties represents and warrants that except as hereafter provided, there are no claims for brokerage commissions or finder’s fees (collectively “Leasing Commissions” ) in connection with this Lease Amendment, and agrees to indemnify the other against, and hold it harmless from all liabilities arising from any such claim, including without limitation, the cost of attorney’s fees in connection therewith.  Landlord agrees to pay any Leasing Commission payable to Landlord’s broker, Welsh Companies on account of this Lease Amendment.  Landlord further agrees to pay a Leasing Commission to Tenant’s broker, Staubach Company pursuant to the Lease Proposal Letter dated May 9, 2002 from Welsh Companies to Mr. Mark Evenson.

 

12.          Option to Renew : Landlord acknowledges that Tenant shall continue to have the right and option to renew pursuant to Article 42 of the Lease, except it shall be applicable with respect to the end of the Term as extended pursuant to Paragraph 2 above, or if an Extended Term becomes applicable pursuant to Article 7 above, then at the end of such Extended Term.

 

Except as hereinabove amended, all other terms, covenants and conditions of the Lease shall remain in full force and effect and the same are hereby ratified and confirmed.

 

IN WITNESS WHEREOF, Landlord and Tenant respectively have duly signed and sealed these presents as of the day and year first above written.

 

LANDLORD:				TENANT:
Lakeland Industrial, LLC a Delaware limited				Biomec Cardiovascular, Inc.,
liability company				a Minnesota corporation
By:	/s/ Dennis Doyle			By:	/s/ Vincent P. Owens
Dennis Doyle				Vincent Owens
Its:	V.P.			Its:	President & CEO

 

 

FIRST AMENDMENT TO LEASE

 

This First Amendment to Lease is made this 3rd day of October, 2000, by and between Principal Life Insurance Company (an Iowa corporation), f/k/a Principal Mutual Life Insurance Company, c/o Principal Capital Management, LLC, (a Delaware limited liability company), as “Landlord” and Biomec Cardiovascular, Inc. (a Minnesota corporation), f/k/a InnoMedica, Inc., f/k/a R.F. Machining, Inc., as “Tenant”.

 

W I T N E S S E T H :

 

WHEREAS, Landlord and Tenant have heretofore entered into a certain lease dated June 3, 1998 of a certain space consisting of approximately 13,548 square feet, located at 7448 West 78 ^th Street, Bloomington, Minnesota (the “Premises”), upon terms and conditions described in the Lease; and

 

WHEREAS, Landlord and Tenant desire to amend said Lease as described below:

 

NOW THEREFORE, in consideration of rents reserved and of the covenants and agreements set forth, it is agreed that the Lease be hereby amended from and after the date hereof as follows:

 

1.                Expansion Space: Beginning January 1, 2001, the Premises shall be expanded by an additional 5,449 square feet (1,880 square feet of office and 3,569 square feet of warehouse) of adjacent space (“Expansion Space”).

 

2.                Expiration Date: The Expiration Date of the Lease shall be modified from the last day of May, 2005 to the last day of December, 2005.

 

3.                Base Rent: The Base Rent for the Premises shall be as follows:

 

 

4.                Additional Rent: Pursuant to Article 3 of the Lease, Tenant’s proportionate share of common area maintenance charges and real estate taxes for the property (“Additional Rent”) shall be increased from 18.27% to 25.62% effective January 1, 2001.

 

5.                Utilities: Beginning January 1, 2001, Tenant shall be responsible to pay directly all gas and electric bills for services provided to the Expansion Space.

 

6.                The Landlord agrees to provide an improvement allowance up to $54,000.00 to be used specifically for Landlord approved improvements to the Premises and the completion of any additional space planning or construction drawings.  The improvements to the Premises shall be substantially the same

 

 

Amendment to Lease

 

as those described on the preliminary space plan and construction bid shown in Exhibit “A”.  All improvements in excess of the $54,000.00 allowance shall be completed at the Tenant’s sole cost and expense, and must receive the Landlord’s prior written approval.

 

Any code items or upgrades which may be required by the City of Bloomington must be completed within the improvement allowance, or in the event the allowance is exceeded, at the Tenant’s expense.

 

The Landlord will disburse the improvement allowance after the work as been completed by a contractor which has been previously approved by the Landlord and all lien waivers have been delivered.

 

7.                Contingency: This First Amendment to Lease is contingent upon the Landlord executing an acceptable lease termination with the existing tenant in the Expansion Space, Spectralytics, Inc., no later than October 31, 2000.  In the event such agreement is not executed on or before October 31, 2000, this agreement shall be null and void.

 

Except as is hereinabove set forth, all terms, provisions and covenants of the Lease shall remain unchanged and in full force and effect.

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Lease as of the date and year first above written.

 

TENANT:				LANDLORD:
BIOMEC CARDIOVASCULAR, INC.				PRINCIPAL LIFE INSURANCE
(A Minnesota corporation)				COMPANY
				(f/k/a Principal Mutual Life Ins. Co.)
By:	/s/ Vincent P. Owens			By:	Principal Capital Management, LLC
					A Delaware limited liability company
Its:	President & CEO			Its:	Authorized Signatory
				By:	/s/ Mark Scholz
					MARK SCHOLZ
				Its:	DIRECTOR

 

2

 

EXHIBIT “A”

 

09/07/00

WELSH CONSTRUCTION
PROJECT COST ESTIMATE		Requested By: Jeff Jiovanazzo
Innomedica Expansion		7456 W 78th Street
Preliminary Estimate

 

Proj. Mgr./Est Dave Laumb

Plan Date:

 

5200 Use S.F.

ACTIVITY CODE		DESCRIPTION		PRELIM ESTIMATE					COST PER SQ. FT.
0210		Demolition		$	864.00		•  Remove door. VCT at restroom, remove cabinets.		$	0.17
0925		Carpentry Drywall		$	8,824.00		•  New demising wall (104 if), 9' wall at new restrooms, install 2 doors.		$	1.70
0622		Millwork		$	0.00				$	0.00
0810/0870		Doors/ Frames /Hardware		$	3,025.00		•  2-3070 doors, 2- 8x8 overhead doors, lever latches.		$	0.58
0885		Ceramic Tile		$	2,100.00		•  Standard grade floor and wall tile @ restrooms.		$	0.40
0950		Acoustical ceiling		$	1,882.00		•  Replace existing ceiling tile.		$	0.36
0980		Flooring		$	4,216.00		•  Carpet and wall base, $15.00/sy installed.		$	0.81
0990/0995		Painting / VWC/ SSV		$	3,429.00		•  Paint office walls, ssv new doors.  Clean warehouse ceiling.  Paint ne wdemising wall only.		$	0.66
		Specialties
		Restroom Accessories		$	330.00		•  Grab bars, accessories.		$	0.06
1530		Plumbing		$	5,800.00		•  Plumbing rough in and concrete work.		$	1.12
1551		Sprinkler Adjust		$	830.00		•  Add sprinklers as required.		$	0.16
1595		HVAC		$	7,150.00		•  Add 3 unit heaters, separate warehouse distribution, gas piping.		$	1.38
1601		Electrical		$	4,679.00		•  Relocate distribution for service separation, switches for new restroom 2 exit lights.		$	0.90
		General Conditions		$	5,631.00		•  Cleanup, supervision, insurance, permits, dumpster.		$	1.08
		SUBTOTAL		$	48,760.00		NOTE:		$	9.38
1700		CM FEE		$	4,876.00		•  Existing ceiling and floor coverings to remain.		$	0.94
							•  No allowance for removal of existing warehouse equipment. To include air lines, exhaust piping or fans, electrical disconnects or panels.
							•  Two separate electrical services are existing, metering to remain as is.
							•  No allowance for ADA strobes or horns.
		TOTAL		$	53,636.00		•  Existing VCT flooring to remain.		$	10.31

 

 

LANDLORD’S WAIVER AND AGREEMENT

 

WHEREAS, Principal Mutual Life Insurance Company, an Iowa corporation, (hereinafter “Landlord”), is the landlord and R.F. Machining, Inc., a Minnesota corporation, (hereinafter Tenant”), is the tenant by executed lease date June 1,1998 (hereinafter “Lease”) covering a portion or all of the real property located at 7452 West 78 ^th Street, Minneapolis, Minnesota 55439-2513, as more particularly described in Exhibit A hereto (hereinafter “Property”); and

 

WHEREAS, Riverside Bank (hereinafter “Lender”) has made or will make a certain loan or will sell subject to and be secured by a security interest in the personal property or equipment described in Exhibit B hereto (hereinafter “personal property”) which is now or about to be located on the real property.

 

NOW, THEREFORE, so long as the aforementioned Lease exists on the Property and the loan secured by Lender’s security interest in the personal property remain outstanding and in consideration of the mutual covenants and agreements herein contained, Landlord, Tenant and Lender hereby covenant and agree as follows:

 

1.                                        Except as limited in this waiver and agreement, Landlord waives its interest in the personal property and agrees that the personal property shall not become part of the Property regardless of the manner in which the personal property may be attached or affixed to the Property provided that the Property is not materially damaged or altered thereby.  This waiver and agreement shall be effective only to the extent of the principal indebtedness owed to the Lender.  To the extent such principal indebtedness is less than the fair market value of the personal property, this waiver and agreement shall be void and in effective and Landlord’s lien or other interest in or to the Property shall control with respect to such excess.  Furthermore, full payment of the principal indebtedness shall render this waiver and agreement void and ineffective and not subject to renewal without a written agreement of the parties hereto.

 

2.                                        Landlord agrees it will not prevent Lender or its designee upon written request to Landlord from entering upon the Property at all reasonable times to inspect or remove the personal property and Lender agrees to promptly and fully repair any resulting damage to the Property.  Upon written request and notification by Landlord of the termination of the Lease or the exercise of its rights to possession of the property by virtue thereof, Lender agrees to cause the personal property to be removed from the Property and any resulting damage to the Property to be promptly repaired.  Lender further agrees to pay Landlord a per diem fee based upon the average monthly rental provided for in the Lease for each day that Lender is in possession of the Property after termination of the Lease for purposes of removing the personal property.  Within thirty (30) days after written request and notice to Lender, if the personal property has not been removed and Lender is not prohibited from removing its because of bankruptcy or other legal proceedings, Landlord may remove the personal property and repair any resulting damage to the Property, at Lender’s expense, wholly without liability to Lender for any damage to the personal property or impairment of Lender’s security interest.

 

3.                                        All requests, notices or service provided for or permitted to be given or made pursuant to this waiver and agreement shall be deemed to have been properly given or made by depositing the same in the United States Mail, postage prepaid and registered or certified return receipt requested and addressed to the addresses set forth below, or to such other addresses as may from time to time be specified in writing by either party to the other:

 

	RESA 63	BRAEMAR
		7424-7500 78TH STREET BLOOMINGTON, MN

 

 

If to Lender:			If to Tenant:
Riverside Bank			R.F. MACHINING
7760 France Aves.			7452 W 70TH STREET
Bloomington MN 55435			MINNEAPOLIS MN 55439

and to Landlord:

 

711 High Street

Des Moines IA 50392-1370

Attn: Commercial Real Estate Equities (RESA# 63)

 

4.                                        In no event shall Leasing Company/Lender cause to be recorded any financing statements, Uniform Commercial Code filings or their equivalents in connection with this Agreement which affect or otherwise impair title to Landlord’s fixtures and real or personal property located on the Property.

 

5.                                        This waiver and agreement is binding upon and inures to the benefit of Landlord and Lender and their respective successors and assigns, and to no other person or entities, and shall become effective on the date it is fully executed and acknowledged by Landlord, Tenant and Lender and Landlord has been served with a fully executed and acknowledged copy.

 

 

Lender:					Landlord:
RIVERSIDE BANK					PRINCIPAL MUTUAL LIFE INS. CO.
By:	/s/ [ILLEGIBLE]				By:		/s/ Mark Scholz
							Mark Scholz
Its:	Vice President				Its:		Senior Regional Asset Manager
Date:		6-30-98			Date:			6/30/98
					Tenant:
					R.F. MACHINING, INC.
					By:	/s/ [ILLEGIBLE]
					Its:	CEO
					Date:			6-30-98

 

 

EXHIBIT “A”