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COMMERCIAL LEASE

Lease Agreement

COMMERCIAL LEASE | Document Parties: AETRIUM INC | Hub Management  | Kamko I, LLC You are currently viewing:
This Lease Agreement involves

AETRIUM INC | Hub Management | Kamko I, LLC

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Title: COMMERCIAL LEASE
Governing Law: Minnesota     Date: 3/31/2006
Industry: Electronic Instr. and Controls    

COMMERCIAL LEASE, Parties: aetrium inc , hub management  , kamko i  llc
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Exhibit 10.24

COMMERCIAL LEASE

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 ”).

DEFINITIONS :

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.

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

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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:

 

(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 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.

2.0 BASE RENT:

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

3.0 ADDITIONAL RENT:

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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3.3 UTILITIES

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.

5.0 OVERDUE PAYMENTS :

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.

6.0 USE :

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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