EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 31st day of January, 2000 by and
between XXXXX XXXXXXXXXXX d/b/a XXXXXXXXXXX PROPERTIES ("Landlord") and
MEDAMICUS, INC., a Minnesota corporation ("Tenant");
WITNESSETH THAT:
1. DEFINITIONS. For purposes of this Lease Agreement the following words or
phrases shall have the following meanings:
"Building". That certain office/warehouse building situated at the
following described address: 00000 Xxxxxxx 00 Xxxx, Xxxxxxxx, Xxxxxxxxx
00000 (the "Building").
"Leased Premises". That portion of the Building containing approximately
31,337 square feet measured from the exterior surface of the exterior
walls to the center of the interior walls.
"Rentable Area". Approximately 31,337 square feet, being the sum of the
square footage contained in the Leased Premises including Tenant's
proportionate share of the common areas such as lobbies, entry ways,
toilets, hallways, loading docks and mechanical rooms that Tenant shares
in common with other tenants.
"Tenant's Percentage". Sixty-eight and six-tenths percent (68.6%) being
the percentage of the total area of the Building contained within the
Rentable Area.
2. DEMISE AND PREMISES. Subject to the terms and conditions hereof, Landlord
leases to Tenant, and Tenant hires and takes of and from Landlord the Leased
Premises.
3. TERM. The Term of this Lease shall commence on June 1, 2000, and shall
terminate on May 31, 2005, unless earlier terminated as hereinafter provided.
4. BASE RENT. Tenant agrees to pay Landlord, at 00000 Xxxxxxx 00 Xxxx, Xxxxxxxx,
Xxxxxxxxx 00000, or such other place as Landlord may from time to time designate
in writing, an initial monthly base rent of $14,187.00 per month, subject to
adjustment as provided in paragraph 29 below, payable in advance on the first
day of each month during the term of this Lease without demand therefore or
deduction or set off. In the event the commencement date of this Lease falls on
a date other than the first day of the month, the rent payable for the first
month shall be adjusted on a pro rata basis and shall be payable on or before
the commencement date.
5. ADDITIONAL RENT. Tenant agrees to pay to Landlord as additional rent
hereunder payable at the same time and location as the base rent, the following:
(a) Taxes and Special Assessments. Tenant's Percentage is sixty-eight
and six-tenths percent (68.6%) of combined annual real estate taxes
and installments of special assessments payable with respect to the
Building and the real estate upon which it is situated (whether or
not the same are levied or pending) on the date hereof. Tenant will
receive a copy of annual tax and special assessment statement and
Tenant shall pay its pro rata share on a monthly basis concurrent
with Base Rental Payments. Real estate taxes are currently estimated
to be $1.70 per square foot.
(b) Common Area Maintenance (Operating Expenses) - The Tenant's
Percentage is sixty-eight and six-tenths percent (68.6%) of the
total operating expenses for the Building and the real estate upon
which it is situated. For purposes of this Lease, operating expenses
shall mean all costs which, for federal tax purposes, may be
expensed rather than capitalized and which Landlord will incur in
owning, maintaining and operating the Building and real estate
including, but not by way of limitation, charges for cutting,
fertilizing and maintaining grass, shrubbery and trees, roofs,
downspouts, sewer, water; management fees, building insurance,
scheduled HVAC maintenance, sprinkler alarm system, plumbing and
other utility service (gas and electric) to the Building and grounds
payable by Landlord; cleaning, maintaining, repairing, resurfacing
and snow removal of driveways and parking areas; lighting, sodding,
planting,; operating and policing the grounds. Operating expenses
shall not include depreciation or interest or principal payments on
any mortgage or encumbrance on the Building or real estate.
Currently, operating expenses and common area maintenance charges
are approximately $.80 per square. Common area maintenance
(operating expenses) charges shall be payable monthly concurrent
with Base Rental Payments and shall be $25,069.60 or $2,089.13 per
month.
6. SERVICE AND UTILITIES. Tenant agrees that it shall pay all costs incurred in
operating maintaining and repairing all heating, ventilating, air conditioning,
plumbing and other utility systems serving the Leased Premises in as good order
and condition as they were at the outset of the Lease, provided that Landlord
warrants the condition of and will repair or replace all HVAC, plumbing,
electrical and other systems during the first thirty (30) days of the Lease in
that area not previously occupied by Tenant prior to the commencement of this
lease. Tenant agrees to pay all charges for heat, air conditioning and utility
services furnished to the Leased Premises during the term of this Lease
including, but not by way of limitation, gas, electric, sewer, water, telephone,
sprinkler alarm system and rubbish removal. Payments for utility services shall
be paid by Tenant directly to the appropriate utility authorities, when due, if
such utility authorities permit or accept direct payment. If any HVAC unit
should require replacement due to normal wear and tear or as caused by Acts of
God, during the term of the Lease, Landlord shall pay for the cost of such
replacement. Landlord's service technician shall determine replacement needs,
but in any case in which repair estimates exceed 50% of replacement costs, the
unit shall be replaced and the cost shall be Landlords.
All payments to be made by Tenant pursuant to this Section 6 shall be in
addition to payments for repair, maintenance and utility services furnished to
the grounds and common areas and payable by Landlord which are included in the
operating expenses to be paid by Tenant. Landlord shall not be liable for
failure to furnish, or for delay or suspension in furnishing, lighting, heat,
air conditioning, water service or other utilities if such failure or suspension
is caused by breakdown, maintenance, repairs, strikes, scarcity of labor or
materials, acts of third parties or causes beyond Landlord's control.
7. USE OF PREMISES. Tenant agrees that it will use and occupy the Leased
Premises solely for office/warehouse and processing purposes. Tenant will not
use or occupy the Leased Premises for any unlawful purpose and will comply with
all present and future laws, ordinances, regulations and orders of all
governmental units having jurisdiction over the Leased Premises. Tenant shall
not cause or permit any unusual noise, odors or nuisance in or about the Leased
Premises and the Building and grounds nor shall Tenant permit any debris,
property or merchandise of Tenant, its officers, employees or agents to be
placed or left upon the grounds. Tenant, its officers and employees shall
observe all reasonable rules and regulations adopted by landlord for the general
safety, comfort and convenience of landlord, Tenant and other Tenants including
the reasonable assignment of parking spaces for the exclusive use of Tenant or
other tenants of landlord in the Building. Landlord disclaims any warranty that
the premises are suitable for Tenant's use and Tenant acknowledges that it has
had full opportunity to make its own determination in this regard.
Tenant warrants that the operation of its business will not be harmful to
the Building or the mechanical equipment within the Building and Tenant shall be
liable in the event of damage arising from such harmful operation. In the event
Landlord's insurance premiums are increased above the standard building rate as
a result of Tenant's use of the Leased Premises, Tenant will pay to Landlord as
additional rent the amount of such increase.
In the event Tenant shall cause or permit any unusual noise, odor or
nuisance or the storage of any debris, property or merchandise of Tenant, its
officers, employees or agents, in or about the Leased Premises, Building or
grounds in violation of the terms of this Section 7, and has not corrected the
condition within a reasonable time after written notice from the Landlord of the
violation, Landlord will be entitled to take any steps it deems reasonably
necessary to correct or remove such violation and Tenant shall pay Landlord, as
additional rent hereunder, all costs and expenses incurred in such correction or
removal including all costs and expenses incurred in ascertaining which Tenant
is responsible for such violation.
8. ASSIGNMENT AND SUBLETTING. Tenant will not assign, transfer, mortgage or
encumber its interest in this Lease, nor sublet, rent, nor permit occupancy or
use of the Leased Premises, or any part thereof by any third party, nor shall
any assignment or transfer of this Lease be effectuated by operation of law or
otherwise, without in each such case obtaining the prior written consent of
Landlord. Landlord's consent will not be unreasonably withheld. Tenant shall
seek such consent of Landlord by a written request, setting forth such
information as Landlord may deem necessary. The consent by Landlord to any
assignment or subletting shall not be construed as a waiver or release of Tenant
from the terms of any covenant or obligation under this Lease, nor shall the
collection or acceptance of rent from any transferee under an assignment
constitute an acceptance of the assignment or a waiver or release of Tenant from
any covenant or obligation contained in this Lease, nor shall any assignment be
construed to relieve Tenant from the requirement of obtaining the consent in
writing of Landlord of any further assignment or subletting. No assignment or
sublease or other transfer of this Lease shall be effective unless the assignee,
sub-lessee or transferee shall at the time of such assignment, sublease or
transfer, assume in writing, all of the terms, covenants and conditions of this
Lease to be performed by Tenant.
Whether or not Landlord has consented to an assignment or sublease, Tenant
shall pay directly to Landlord the amount by which the rent or other payments
received by Tenant pursuant to such assignment or sublease exceeds, in any
month, the base rent and additional rent payable by Tenant to landlord
hereunder. Should the Tenant improve its space (at its own expense) which is
then assigned or subleased to a third party at a rental rate higher than tenant
is paying landlord under this lease or any future lease or extension of this
lease, Tenant shall have the right to keep the difference between rent it pays
to Landlord and rent it collects from the third party until tenants expense for
improvements are amortized. Tenant shall he allowed to add interest at prime
rate plus two (2) percent to its cost of improvements on behalf of such third
party. Interest rate shall be prime rate plus 2% (two percent) set on the date
of first day of construction of said improvements.
9. SUBORDINATION. Tenant agrees that this Lease is subject and subordinate to
the lien of all first mortgages which may now or hereafter encumber the Building
or real estate and to all renewals, extensions, modifications or re-financings
thereof. Tenant shall, at Landlord's request, promptly execute any reasonable
certificate or other document requested by any first mortgagee. Tenant agrees
that in the event that any proceedings are brought for the foreclosure of any
first mortgage, Tenant shall attorn to the purchaser, at such foreclosure sale,
if requested to do so by such purchaser and Tenant waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or purport to
give Tenant any right to terminate or otherwise adversely affect this Lease and
the obligations of Tenant hereunder in the event that any such foreclosure
proceeding is prosecuted or completed. Notwithstanding anything to the contrary
in this Lease, this Lease shall remain in full force and effect and the
mortgagee shall not disturb Tenant's possession hereunder.
10. SALE OR MORTGAGE OF THE BUILDING. In the event of a sale of the Building,
Landlord shall be relieved of all liability under this Lease accruing from and
after the date of sale, provided Landlord has obtained the written agreement of
its transferee or assignee to assume and carry out all of the covenants and
obligations of the Landlord hereunder.
The Tenant agrees at any time and from time to time, upon not less than
ten (10) days prior written request by Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing certifying that the Lease is not
modified (or if modified, stating the modification) that the Lease is in full
force and affect, stating the dates to which the base rent and additional rents
have been paid in advance and stating whether the Landlord is in default
hereunder. It is intended that any such statement may be relied upon by any
prospective purchaser of the fee or mortgagee or assignee of any mortgage upon
the Building or real estate.
11. TENANT INSURANCE. Tenant agrees that it shall purchase in advance and carry
the following insurance at its own expense: (a) fire and extended coverage
insurance insuring Tenant's personal property, furniture, trade fixtures,
inventory, business record and leasehold improvements against loss from all
insurable events for the full replacement value thereof; (b) insurance against
interruption of Tenant's business activities; and (c) comprehensive liability
insurance covering all acts of Tenant, its employees, agents, representatives
and guests and insuring against all claims arising from injury to persons or
damage to property in or about the Leased Premises, Building or real estate in a
single limit amount of not less than $500,000.00 for personal injury or death
and not less than $100,000.00 for property damage and fire legal liability.
All such insurance shall name Landlord as an additional insured and shall
provide for thirty (30) days written notice to Landlord prior to cancellation,
non-renewal or material modification. Certificates of all such insurance shall
be delivered to Landlord prior to occupancy of the premises by Tenant and at
least thirty (30) days prior to the termination date of any existing policy.
Tenant shall pay to Landlord, upon demand, as additional rent the cost of
securing such insurance in the event Tenant fails to furnish certificates of
insurance to Landlord. However, it is not Landlord's duty nor obligation to
secure such insurance for Tenant.
12. FIRE OR OTHER CASUALTY. If the Leased Premises or the Building shall be
damaged or destroyed by fire or other cause, without the fault or neglect of
Tenant, Landlord may (taking into account the time necessary to effectuate a
satisfactory settlement with any insurance company) undertake to repair such
damage at its own expense, provided, however, in the event the Leased Premises
or the Building are damaged by fire or other cause to such extent that the
damage cannot, in the Landlord's sole judgment, be economically repaired within
a reasonable time after the date of such damage, Landlord shall have the option,
by notice given to Tenant within ninety (90) days of the date of the damage, to
terminate this Lease as of the date of the damage. This Lease shall, unless
terminated by Landlord pursuant to this Section 12, remain in full force and
effect following such damage, and the Base Rent and additional rent, prorated to
the extent that the Leased Premises are rendered untenantable, shall be
equitably abated until such repairs are completed. If the destruction or damage
was wholly or partially caused by negligence or breach of the terms of this
Lease by Tenant, its officers, agents or employees, the rent shall not xxxxx and
the Tenant shall remain liable for the same.
13. CONDEMNATION. If the whole or any part of the Leased Premises shall be taken
or condemned or purchased under threat of condemnation by any governmental
authority, then the Term of this Lease shall cease and terminate as of the date
when the interference with possession, enjoyment or value of the Leased Premises
occurs and Tenant shall have no claim against the condemning authority, Landlord
or otherwise for any portion of the amount that may be awarded as damages as a
result of such taking or condemnation or for the value of any unexpired Term of
this Lease, provided, however, that Landlord shall not be entitled to any award
made to Tenant for loss of business or the fair value of and the cost of removal
of stock and trade fixtures. In the event part of the Building, but not the
Leased Premises, is condemned to the extent that it cannot, in Landlord's sole
judgment, be economically restored within a reasonable time, Landlord shall have
the option, by notice given to Tenant within ninety (90) days of the date of
interference with possession, to terminate this Lease as of the date of such
interference with possession.
14. ALTERATIONS AND SIGNS. Tenant will not make or permit anyone to make any
alterations, decorations, additions or improvements, structural or otherwise
with a cost in excess of $1,000, in or to the Leased Premises or the Building
without the prior written consent of Landlord, except as set forth in Section
29. Any alterations shall be out of identical or improved building materials and
construction methods as was used in original structure. As a condition precedent
to written consent of Landlord hereunder, Tenant agrees to obtain and deliver to
Landlord such security against mechanic's liens as Landlord shall reasonably
request. If any mechanic's lien is filed against any part of the Building or
real estate for work claimed to have been done for or labor or materials claimed
to have been furnished to or authorized by Tenant, such mechanic's lien shall be
discharged by Tenant within ten (10) days thereafter, at Tenant's sole cost and
expense, by the payment and satisfaction thereof or by filing any bond required
or permitted by law. Should Tenant fail to obtain the discharge of any such
mechanic's lien within ten (10) days of the filing thereof, Landlord shall be
entitled to obtain such discharge by whatever reasonable means Landlord deems
expedient, and all costs incurred by Landlord in obtaining such discharge
including reasonable attorneys fees, shall be paid by Tenant as additional rent
hereunder.
All alterations, decorations, additions or improvements in or to the
Leased Premises or the Building made by either party shall immediately become
the property of Landlord and shall remain upon and be surrendered with the
Leased Premises as a part thereof at the end of the term hereof without
disturbance, molestation or injury; provided, however, that if Tenant is not in
default in the performance of any of its obligations under this Lease, and
further provided that if any and all damage resulting therefrom be repaired,
Tenant shall have the right to remove at its own expense, prior to the
expiration or termination of the term of this lease, all movable furniture,
trade fixtures and manufacturing equipment installed in the Leased Premises,
provided such removal is completed with no damage to the Leased Premises or the
Building.
Tenant shall have the right to remodel any existing monument signs at
Tenant's expense, subject to the approval by the City of Plymouth, other
building tenants, and Landlord. Tenant agrees not to place or maintain any sign,
advertisement or notice on any part of the outside or the inside of the Building
without Landlord's prior written approval. Any such approved use shall be at the
sole expense and cost of Tenant.
15. WAIVER OF SUBROGATION. Notwithstanding any other provision in this Lease to
the contrary, Landlord and Tenant hereby release one another, their respective
officers, agents, partners and employees, from any and all liability or
responsibility (to the other or anyone claiming through or under them by way of
subrogation or otherwise) for any loss or damage covered by casualty insurance
actually carried or coverable by the insurance required by Section 11 hereof.
16. WAIVER AND INDEMNITY. Tenant agrees that Landlord, its officers, agents,
partners and employees shall not be liable to Tenant or those claiming through
or under Tenant for any injury, death or property damage occurring in, on or
about the Leased Premises, the Building or grounds. Without limitation of the
foregoing, Landlord shall not be liable to Tenant for any damage, compensation
or claims arising from: loss or damage to books, records, files, money,
securities, negotiable instruments or other papers in or about the Leased
Premises; the necessity of repairing any portion of the Building; the
interruption in the use of the Premises; accident or damage resulting from the
use or operation by Landlord, Tenant, or any other person or persons whatsoever
of elevators, or heating, cooling, electrical or plumbing equipment or
apparatus; the termination of this Lease by reason of the destruction or
condemnation of the Leased Premises; any fire, robbery, theft, or any other
casualty; any leakage or bursting of pipes or water vessels or any roof or wall
leakage, in any part or portion of the leased Premises or the Building; water,
rain, snow or underground water that may leak into, flow on, or flow from, any
part of the Leased Premises or the Building.
Tenant agrees to indemnify and hold harmless Landlord from and against all
claims of whatever nature arising or resulting from any act, omission or
negligence of Tenant, its officers, employees and agents in or about the Leased
Premises, Building or grounds or in connection with its use of the Leased
Premises and to indemnify and hold harmless Landlord against all costs, expenses
and liabilities, including reasonable attorneys fees, incurred in connection
with any such claim or proceeding brought thereon, and the defense thereof.
17. REPAIRS. Tenant shall put, keep, repair and maintain the Leased Premises at
all times in a good, neat, clean and sanitary condition and state of repair,
reasonable wear and tear excepted, free of debris and other similar
obstructions, and shall repair and replace broken plate and window glass and
damage caused by the negligence or intentional act of Tenant, its officers,
employees and agents. Tenant shall allow Landlord access to the Leased Premises
during all reasonable hours to make repairs required to be made by Tenant which
Tenant fails or refuses to make, and shall pay Landlord as additional rent the
cost of such repairs made for Tenant by Landlord. Landlord shall make all
necessary repairs to the outer walls, roof, and structural elements of the
Building. Landlord shall keep the plumbing, sewage, heating, air conditioning,
electrical and ventilating systems of the Building outside the perimeter of the
Leased Premises in good repair, ordinary wear and tear and casualty damage
covered by insurance excepted. Landlord shall maintain and keep the common
areas, grounds, driveways and parking areas in a neat and clean condition.
Notwithstanding the foregoing, any cost of repairs or improvements to the
Building, to the Leased Premises or to any common areas which are occasioned by
the negligence or default of Tenant, its officers, employees, agents or
invitees, or by requirements of law, ordinance or other governmental directive
and which arise out of the nature of Tenant's use and occupancy of the Leased
Premises or the installations of Tenant in the Leased Premises shall be paid for
by Tenant, as additional rent hereunder, immediately upon billing unless covered
by Landlord's Insurance.
18. ENTRY AND INSPECTION. Tenant shall permit Landlord, its agents or
representatives to enter the Leased Premises to examine and inspect the same or,
with Tenant's written permission, to make such alterations, renovations or
repairs to the Leased Premises or the Building as Landlord may deem necessary or
desirable, or to exhibit the Leased Premises to prospective Tenants during the
last ninety (90) days of the term of this Lease or to prospective purchasers at
any time during the term, upon reasonable notice during normal business hours.
19. MAINTENANCE. Tenant shall keep the Leased Premises, and the fixtures and
equipment therein, in good, safe and sanitary condition, will suffer no waste or
injury thereto and will, at the expiration or termination of the term of this
Lease, surrender the same with all walls, carpets and other improvements in the
same order and condition as on the commencement date of this Lease, ordinary
wear and tear and casualty damage covered by insurance excepted.
20. IMPROVEMENTS. Tenant agrees that it has had ample opportunity to inspect the
Leased Premises, and agrees to take the same on an "as is" basis and agrees that
Landlord shall not be obligated to do any work in the Leased Premises. The
taking of possession of the Leased Premises or renewal of this Lease by Tenant
shall be conclusive evidence that the Leased Premises and the Building are in
good and satisfactory condition at the time of such taking of possession or
renewal, (Subject to Paragraph 6).
21. WAIVER. No waiver by either party of any breach of any covenant, condition
or agreement herein contained shall operate as a waiver of such covenant,
condition, or agreement itself, or of any subsequent breach thereof. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly
installments of rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent nor shall any endorsement or statement
on any check or letter accompanying a check for payment of rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent, to terminate
this Lease, to repossess the Leased Premises or to pursue any other remedy
provided in this Lease. No re-entry by Landlord, and no acceptance by Landlord
of keys from Tenant, shall be considered an acceptance of a surrender of the
Lease.
22. COVENANTS OF LANDLORD. Landlord covenants that it has the right to make this
Lease for the term aforesaid and covenants that if Tenant shall pay the rent and
perform all of the covenants, terms and conditions of this Lease to be performed
by Tenant, Tenant shall, during the term of this Lease freely, peaceably and
quietly occupy and enjoy the full possession of the Leased Premises without
molestation or hindrance.
23. DEFAULT.
(a) Any one of the following events shall constitute an Event of
Default:
(i) Tenant shall fail to pay any monthly installment of Base Rent
or additional rent as herein provided
(ii) Tenant shall violate or fail to perform any of the other
terms, covenants or conditions of this Lease and such default
shall continue for thirty (30) days after notice from
Landlord;
(iii) Tenant shall file or have filed against it or any guarantor of
this Lease any bankruptcy or other creditor's action, or make
an assignment for the benefit of its creditors.
(iv) Tenant shall vacate all or a substantial portion of the Leased
Premises, whether or not Tenant is in default of the payments
due under this Lease.
(b) If an Event of Default shall have occurred and be continuing,
Landlord may at its sole option by written notice to Tenant
terminate this Lease. Neither the passage of time after the
occurrence of the Event of Default nor exercise by Landlord or any
other remedy with regard to such Event of Default shall limit
Landlord's right under this Paragraph 23 (b).
(c) If an Event of Default shall have occurred and be continuing,
whether or not Landlord elects to terminate this Lease, Landlord may
enter upon and repossess the Leased Premises (said repossession
being hereinafter referred to as "Repossession") by force, summary
proceedings, ejectment or otherwise, and may remove Tenant and all
other persons and property therefrom.
(d) From time to time after Repossession of the Leased Premises, whether
or not this Lease has been terminated, Landlord may attempt to relet
the Leased Premises for the account of Tenant in the name of
Landlord or otherwise, for such term or terms (which may be greater
or less than the period which would otherwise have constituted the
balance of the Term) and for such terms (which may include
concessions or free rent) and for such uses as Landlord, in its sole
and unqualified discretion, may determine, and may collect and
receive the rent therefor. Landlord shall not be responsible or
liable for any failure to collect any rent due upon any such
reletting.
(e) No termination of this Lease pursuant to paragraph 23 (b) and no
Repossession of the Leased Premises pursuant to paragraph 23(c) or
otherwise shall relieve Tenant of its liabilities and obligations
under this Lease, all of which shall survive any such termination or
Repossession.
In the event of any such termination or Repossession, whether or not
the Leased Premises shall have been relet, Tenant shall pay to
Landlord the Base Rent and other sums and charges to be paid by
Tenant up to the time of such termination or Repossession, and
thereafter Tenant, until the end of what would have been the term in
the absence of such termination or Repossession, shall pay to
Landlord, as and for liquidated and agreed current damages for
Tenant's default, the equivalent of the amount of the Base Rent,
additional rent and such other sums and charges which would be
payable under this Lease by Tenant if this Lease were still in
effect, less the net proceeds, if any, of any reletting effected
pursuant to the provisions of paragraph 23(d) after deducting all of
Landlord's expenses in connection with such reletting, including
without limitation, all repossession costs, brokerage and management
commissions, operating expenses, legal expenses, reasonable
attorneys' fees, alteration costs, and expenses of preparation for
such reletting. Tenant shall pay such current damages to Landlord
monthly on the days on which the Base Rent would have been payable
under this Lease if this Lease were still in effect, and Landlord
shall be entitled to recover the same from Tenant on each such day.
At any time, after such termination or Repossession, whether or not
Landlord shall have collected any current damages as aforesaid,
Landlord shall be entitled to recover from Tenant, and Tenant shall
pay to Landlord on demand, as and for liquidated and agreed final
damage for Tenant's default, an amount equal to the then present
worth of the excess of the Base Rent and other sums or charges
reserved under this Lease from the day of such termination or
Repossession for what would be the then unexpired term if the same
had remained in effect, over the then net fair rental value of the
Leased Premises for the same period.
(f) If an Event of Default shall have occurred and Landlord places in
the hands of an attorney the enforcement of all or any of the terms,
covenants, agreements or conditions of this Lease, the collection of
any rent due or to become due, or the recovery of possession of the
Leased Premises, Tenant agrees to reimburse Landlord, as additional
rent hereunder, for Landlord's reasonable attorneys fees, together
with the actual cost of maintaining any action commenced in law or
equity by said attorneys for the services of the attorneys, whether
suit is actually filed or not. Such reimbursement shall be payable
within thirty (30) days of demand therefor.
24. SURRENDER. Tenant shall surrender the Leased Premises to Landlord upon
termination of this Lease, whether such termination occurs at the end of the
lease term or sooner, together with all utility systems, improvements,
replacements, alterations and decorations thereto and operating bulbs or tubes
in all light fixtures, broom clean and in good order, condition and repair
except for ordinary wear and tear. Tenant shall remove promptly, upon request by
Landlord, alterations, modifications and the like to the Leased Premises made by
Tenant, or on behalf of Tenant, and not consented to by Landlord, and shall
restore and repair damage caused by such removal. Should Tenant fail to
surrender the Leased Premises in the condition required by this section,
Landlord shall be entitled to take whatever steps may, in Landlord's sole
discretion, be required to restore the Leased Premises to said condition and
Tenant agrees that it shall pay to Landlord all costs incurred by Landlord in so
restoring the premises.
25. HOLDING OVER. Should the Tenant continue to occupy the Leased Premises, or
any part thereof, after the expiration or termination of the Term of this Lease
whether with or against the consent of the Landlord, such Tenancy shall be from
month to month and Tenant shall pay Landlord the additional rent set forth in
Section 5 plus two times the Base Rent set forth in Section 4 during the entire
period that Tenant continues to so occupy the Leased Premises after the term of
this Lease.
26. LATE PAYMENT. Other remedies for nonpayment of rent notwithstanding and
without prejudice to such remedies, if Tenant fails to pay the monthly base
rent, additional rent or any other payment due hereunder within the seven days
immediately following the date on which such payment is due, Tenant shall pay
the following amounts to Landlord as additional rent hereunder:
(a) Interest on all such past due payments at the rate of one and
one-half % per month or at the maximum rate permitted by law
whichever rate is lower. Interest shall accrue from the date each
such late-payment became due and shall be payable to the date of
payment thereof by Tenant;
(b) A service charge equal to the costs actually incurred by Landlord as
a result of Tenant's failure to make payments due hereunder
including, but not limited to, reasonable attorney's fees and costs
incurred in the collection or attempted collection of such past due
amounts.
27. HAZARDOUS SUBSTANCES/ENVIRONMENTAL REGULATIONS. Tenant warrants and
represents that: (a) its use of the Leased Premises and the operation of its
business thereon shall not violate any law, statute, ordinance, rule,
regulation, order or determination of any governmental authority pertaining to
hazardous substances, toxic waste, asbestos, health or the environment
(hereinafter if sometimes collectively called "Environmental Regulations")
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA'1), as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX") (collectively "CERCLA/XXXX")
and the Resource Conservation and Recovery Act of 1976 (1'RCRA") and the
Minnesota Environmental Response and Liability Act ("XXXXX"); (b) Tenant has
obtained and shall continue to maintain all permits, licenses or similar
authorizations required by Environmental Regulations to conduct its business on
the Leased Premises; and (c) Tenant's use of the Leased Premises will not result
in the disposal or release of any hazardous substance, toxic waste, asbestos or
other substance regulated by Environmental Regulations on or about the Leased
Premises, Building or the real property on which it is situated. In the event
Tenant1 its officers, agents or employees shall breach or fail to perform any of
the warranties and representations contained in this Section: (d) upon notice
from Landlord, Tenant shall remove from the Leased Premises, Building or real
property on which it is situated, at Tenant's sole expense, any hazardous
substance, toxic waste, asbestos or other substance regulated by Environmental
Regulations introduced by Tenant which is not in compliance with Environmental
Regulations or this Lease; (e) Landlord and such Environmental Engineers as it
may employ shall be entitled to enter upon the Leased Premises for the purpose
of conducting such environmental audits or similar tests as Landlord may deem
necessary and the cost and expense of such environmental audits or tests
incurred by Landlord shall be paid by Tenant as additional rent hereunder with
the next installment of base rent; and (e) Tenant shall protect, indemnify and
save Landlord harmless from all costs, fines, claims, demands, actions,
proceedings, judgments and damages, including court costs and reasonable
attorneys' fees, resulting from or arising out of any breach or non-performance
by Tenant of the representations and warranties contained in this Section
including, without limitation, the cost of removal or remediation of any
disposal, release or contamination on or about the Leased Premises, Building or
the real property on which it is situated. It is expressly acknowledged by
Tenant that all of the terms, covenants and conditions of this paragraph
pertaining to Environmental Regulations including, but not by way of limitation,
the indemnifications herein provided shall survive the termination of this
Lease.
28. BASE RENT ADJUSTMENT On June 1, 2002, and on subsequent yearly anniversary
dates of this Lease, including any renewal term thereof, the monthly base rent
may be adjusted by the increase in the Consumers Price Index of the Bureau of
Labor Statistics of the U.S. Department of Labor for All Urban Consumers,
Minneapolis-St. Xxxx Metropolitan Area, "All-Items Index", herein referred to as
"C.P.I.U".
29. TENANT IMPROVEMENTS. Landlord will provide Tenant a remodeling allowance up
to an amount not to exceed $150,000. The allowance shall be used for, but not
limited to: (1) new paint, wallpaper, floor tile replacement and bathroom and
office upgrades to Tenant's existing space, and (2) upgrade of new space to
Tenant's specifications. Tenant shall use contractors satisfactory to Landlord.
Tenant shall provide invoices of completed work to Landlord and Landlord shall
promptly pay each invoice according to the terms of the invoice.
Tenant agrees to commence repayment to Landlord of all disbursed amounts,
with interest on the unpaid balance calculated at 8% per annum, and amortized
over the remaining life of the Lease, exclusive of renewal periods. Payments
will commence concurrent with the payment of monthly rent on the first of the
month following Landlords disbursement. Tenant shall have the right to prepay
the outstanding balance of this loan at any time.
30. EXPANSION SPACE. If Tenant is not in default under the terms of this Lease,
Tenant shall have an option to lease part or all of any space in the Building
which is or becomes available during the Lease term. Should such an expansion
space become available for rent, Landlord or Landlord's agent shall notify
Tenant in writing and Tenant shall have thirty (30) days to notify Landlord or
Landlord's agent in writing whether or not it intends to exercise this option.
Should Tenant elect to exercise the option, Tenant and Landlord shall enter into
a mutually acceptable agreement for the lease of the expansion space within
thirty (30) days after Tenant's notice of its intent to exercise the option.
Should Landlord and Tenant be unable to reach an agreement within that thirty
(30) day period, Tenant's option shall expire and become null and void.
31. OPTION TO RENEW. If Tenant is not in default under the terms of this Lease,
Landlord shall grant Tenant the option to renew the term of this Lease for three
(3) successive one-year periods. Tenant shall have deemed to have exercised the
next one-year option to extend the term of this lease unless if one hundred
eighty (180) days prior to the termination of the initial term of this Lease or
the then current extended term of this Lease, as the case may be, Tenant gives
written notice to Landlord of its intention to terminate this Lease at the end
of the initial term or the then current renewal term, as the case may be. Said
extended term shall be upon all of the terms and condition contained herein.
32. MISCELLANEOUS.
(a) All notices or other communications hereunder shall be in writing
and shall be hand delivered or sent by first class United States
mail to the following address:
Landlord: Tenant:
-------- ------
Xxxxx Xxxxxxxxxxx d/b/a Xxxxxxxxxxx MedAmicus, Inc
Properties 00000 Xxxxxxx 00 X
000 Xxxxxx Xxxxx Xxxx Xxxxxxxx, Xxxxxxxxx 00000
Xxxxx Xxx, Xxxxxxxxx 00000
Mailed notice shall be effective the day following the day of
mailing;
(b) This Lease Agreement is made and executed in the State of Minnesota,
and shall be constructed according to the laws of Minnesota;
(c) The invalidity or unenforceability of any provision of this
agreement shall not affect or impair the validity of any other
provisions; and section titles and captions in this Agreement are
for convenience only and do not define, limit or construe the
contents of such paragraphs;
(d) If more than one person or entity shall sign this Lease as Tenant,
the obligations set forth herein shall be deemed joint and several
obligations of each such party;
(e) This Lease shall be binding upon and inure to the benefit of the
parties thereto and, subject to the restrictions and limitations
herein contained, their respective heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement as of
the day and year so indicated below.
XXXXX XXXXXXXXXXX d/b/a MEDAMICUS, INC.
XXXXXXXXXXX PROPERTIES
By:
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Xxxxx Xxxxxxxxxxx
Its:
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Date: Date:
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