This Commercial
Lease (this “ Lease ”), dated February 24,
2006, by and between Hub Management as owner’s agent for
Kamko I, LLC, a Limited Liability Company , (“
Landlord ”) and, Aetrium Incorporated, a Minnesota
corporation (“ Tenant ”).
“
Premises ” – That certain real property located
in the City of North St Paul, County of Ramsey, State of Minnesota,
legally described on Exhibit A attached hereto and
incorporated herein.
“
Building ” — That certain Building located on
the Premises, containing approximately 44,800 square feet and
commonly addressed as 2350 Helen Street, North St Paul, Minnesota,
as shown on the site plan of the Premises attached hereto as
Exhibit B .
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 (the “
Term ”) of five years beginning
February 15, 2006 (the “ Commencement Date
”) and ending February 28, 2011 (the “
Expiration Date ”), unless terminated earlier as
conditioned.
Notwithstanding
the earlier Commencement Date, Landlord will deliver possession of
the Premises to Tenant in the condition required by this Lease on
or before the Delivery Date (as hereinafter defined), but delivery
of possession prior to or later than such Commencement Date will
not affect the Expiration Date of this Lease. The Base Rent (as
hereinafter defined) and Additional Rent (as hereinafter defined)
will commence on the Commencement Date. 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 delivered to
Tenant later than Commencement Date, Base Rent and Additional Rent
will begin on date of possession.
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
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Tenant 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:
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(i)
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the
Term will be modified as stated above;
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(ii)
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the
Option to Renew in this Article 1.2 will be
deleted;
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(iii)
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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.
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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 Rental 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
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appointed by
Landlord. The third Expert will be appointed by the first two
Experts. If the first two Experts are unable to 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 duly 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.
Tenant will pay
to Landlord a monthly base rent (“ Base Rent ”)
on the first day of each month during the Term of this Lease
(provided that Base Rent for the first month will be prorated from
and payable on the Commencement Date) as follows:
February 15- 2006 - February 28, 2007
— $23,333.00
March 1, 2007 -
February 28, 2008- $23,800.00
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March 1,
2008 - February 28, 2009
— $24,276.00
March 1,
2009 - February 28, 2010
— $24,762.00
March 1,
2010 - February 28, 2011
— $25,256.00
Tenant will
reimburse to Landlord monthly, on the same day that Base Rent is
due, throughout the Term of Lease and any extension of this Lease,
the following additional rent (“ Additional Rent
”): any CAM (as defined in Article 3.1), Real Estate
Taxes/Assessments (as defined in Article 3.2) and Utilities
(as defined in Article 3.3) not paid directly by Tenant, and
any Miscellaneous Charges or Reimbursements (as defined in
Article 3.4).
3.1 COMMON
AREA MAINTENANCE EXPENSES (CAM):
Common Area
Maintenance (“ CAM ”) means Landlord’s
operating expenses to operate, maintain and repair the Premises,
including, but not be limited to maintenance, repair, replacement
and care of all lighting, plumbing, roofs, parking surfaces,
landscaped areas, signs, snow removal, non-structural repair and
maintenance of the exterior of the Building, costs of equipment
purchased and used for such purposes, cleaning and cleaning
supplies for the common areas, insurance premiums, wages and fringe
benefits of personnel employed for such work. Additionally, during
the term of this Lease, any extension and/or renewal of this Lease,
CAM expenses will include the annual cost or portion allocable to
the Building of any capital improvements made to the Building by
Landlord which result in a reduction of expenses or required under
any governmental law or regulation that was not applicable at the
time it was constructed. Landlord may elect to amortize such costs
over a reasonable time period and at a reasonable rate of
interest.
3.2 REAL
ESTATE TAXES AND ASSESSMENTS:
Real Estate
Taxes and Assessments means all real estate taxes, all assessments
and any taxes in lieu thereof payable on each calendar year, which
may be levied upon or assessed against the Building. Real Estate
Taxes and Assessments due during the term of this Lease will be
paid by Landlord when due and payable to the assessing authority.
Landlord will bill Tenant on the monthly rental invoice and provide
a copy of the Real Estate Tax bill for Real Estate Taxes and
Assessments when due. Real Estate Taxes and Assessments due during
the calendar year of the date of expiration of this Lease will be
prorated on a calendar year basis to the date of expiration, and
Tenant will pay any unpaid portion of such prorated amount to
Landlord. In the event the taxing authorities additionally include
in such real estate and assessments the value of any improvements
made by Tenant, or of machinery, equipment, fixtures, inventory or
other personal property or assets of Tenant, then Tenant will pay
all the taxes attributable to such items. Landlord will furnish a
copy of the real estate tax statement to Tenant.
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Landlord will
provide mains and conduits to supply water, gas, electricity and
sanitary sewage to the Building. Tenant will pay, when due, all
charges for sewer and water usage, garbage/refuse disposal/removal
and recycling, electricity, gas and other fuels,
telephone/communication services and/or other utility services or
energy source furnished to the Premises during the term of this
Lease, or any extension and/or renewal of this Lease. Landlord, at
its election, may invoice for reimbursement(s) of any Utility usage
not paid directly by Tenant.
3.4
MISCELLANEOUS CHARGES AND REIMBURSEMENTS
Miscellaneous
Charges and Reimbursements includes, without limitation, service
requests facilitated by Landlord at the direction of Tenant, notes
due Landlord and any other miscellaneous charge due
Landlord.
4.0 COVENANT
TO PAY RENT:
The covenants
of Tenant to pay the Base Rent and the Additional Rent are each
independent of any other covenant, condition, provision or
agreement contained in this Lease. 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:
Hub Management
Company Inc
3050 Echo Lake Avenue
Mahtomedi, MN 55118
or such other
address as Landlord designates to Tenant in writing. Each monthly
installment of Base Rent and Additional Rent will be paid without
advance notice, demand, offset, or deduction.
All Base Rent
and Additional Rent under this Lease and the Extension Term (if
applicable) 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.
The Premises
will be used and occupied by Tenant solely for office and light
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 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 will be 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 Building. Tenant will
occupy the Premises,
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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.
Tenant’s use of the Premises will conform to all the
Landlord’s rules and regulations relating to the use of the
Building. Outside storage 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.
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
and sanitary condition 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 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, all lighting
systems, plumbing systems and electrical systems. In the event that
an HVAC rooftop unit or ceiling hung unit heater requires
replacement, the cost of such replacement will be shared between
Landlord and Tenant, Tenant’s share to be based on a ratio of
the time of occupancy to the nearest one-half year to the estimated
useful life of the unit, unless caused by the misuse or neglect of
Tenant. Such estimations are fifteen (15) years for a roof top
unit and ten (10) years for a ceiling hung unit heater under
normal conditions. With the exception of HVAC equipment, when used
in this provision, the term “repairs” will include
replacements, and all such repairs or replacements made by the
Tenant will be of equal quality to the original equipment or work.
Tenant will keep and maintain all portions of the Premises and the
sidewalk, parking areas 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 Lease Term.
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 16.0 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, in which case the costs
thereof will be borne by Tenant and payable by Tenant to
Landlord.
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
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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: $500,000 for
injury/death to any one person; $1,000,000 for injury/death to more
than one person, and $500,000 with respect to damage to property.
Tenant will use its best efforts to cause such policy or policies
to provide that thirty (30) days written notice 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:
Upon occupancy,
Tenant may install such building exterior signage and/or building
monument signage as are approved by Landlord, which installation
will be at Tenant’s sole cost and expense in compliance with
city ordinances and building signage criteria. Any changes,
modifications and/or maintenance of 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, must be approved by Landlord at Tenant’s sole cost
and expense. Said signs are to be maintained by Tenant 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
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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 governmental 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 with
reasonable advanced notice 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
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