EXHIBIT 10.1
LEASE TERMINATION AGREEMENT
THIS AGREEMENT, made and entered into this 18th day of June, 1998, by and
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(hereinafter called "Landlord") and BISON INSTRUMENTS, a Minnesota corporation
(hereinafter called "Tenant").
WITNESSETH:
WHEREAS, LANDLORD AND TENANT ENTERED INTO A LEASE DATED JULY 20, 1994 ("LEASE"),
COVERING CERTAIN PREMISES KNOWN AS SUITE 145 AND CONSISTING OF APPROXIMATELY
10,165 SQUARE FEET OF SPACE ("PREMISES") IN THE BUILDING LOCATED AT 0000 XXXXXXX
XXXX, XXXXXXXXXX, XXXXXXXXX ("BUILDING"), WHICH PREMISES ARE MORE PARTICULARLY
DESCRIBED IN SAID LEASE; AND
WHEREAS, Landlord and Tenant now desire to terminate the Lease pursuant to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the preambles and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Lease is hereby terminated as of October 1, 1998 (the "Effective
Date"), and thereafter the parties shall have no rights, duties or
obligations under the Lease and are hereby released therefrom, except
those which are expressly stated in the Lease to survive the
termination of the Lease.
2. In consideration of Landlord's agreement to terminate the Lease as set
forth in Section 1, Tenant hereby agrees to pay to Landlord the
following amounts:
a) A termination fee of $25,000.00, which will be paid as of the
date of this Agreement;
b) All rent due and unpaid under the Lease as of the date of this
Agreement, totaling $18,259.96; and
c) All rent due under the Lease from the date of this Agreement
to the Effective Date, totaling $27,389.94. The parties agree
that Landlord shall apply Tenant's security deposit under the
Lease, in the amount of $5,481.00, to the amount owed under
this Sub-Section C. Tenant shall pay to Landlord the balance
owed of $21,908.94 by no later than July 1, 1998.
3. This Agreement shall be governed by and construed under the laws of the
State of Minnesota.
4. This Agreement shall not be binding until executed by all parties
hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
LANDLORD:
LIBERTY PROPERTY LIMITED
PARTNERSHIP
By:
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Its:
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TENANT:
BISON INSTRUMENTS
By:
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Its:
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SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease"), made and entered into this 18th day of
June, 1998, by and between BISON INSTRUMENTS, a Minnesota corporation
("Sublessor'), and ENDURATEC SYSTEMS CORP., a Minnesota corporation ("Tenant").
WITNESSETH:
WHEREAS, Sublessor entered into that certain Lease dated July 20, 1994 (the
"Prime Lease"), by and between MARFIELD, BELGARDE & XXXXX ("Landlord"), as
landlord, and Sublessor, as tenant, for certain premises ("Premises") in the
building located at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx, a true and correct
copy of which is attached hereto as Exhibit A and made a part hereof; and
WHEREAS, Sublessor desires to sublease to Tenant that portion of the Premises
which is identified by crosshatch on the attached Exhibit B ("Subleased
Premises"), and Tenant desires to sublease the same from Sublessor, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by
and between the parties hereto as follows:
1. SUBLEASED PREMISES. Sublessor hereby leases unto Tenant, and Tenant hereby
takes from Sublessor, in its "as is" condition the Subleased Premises.
2. TERM. The term of this Sublease shall commence on July 1, 1998, and shall
terminate as of October 1st, 1998.
3. RENT. As monthly rent ("Rent") for the Subleased Premises, Tenant will pay
monthly rent in an amount equal to 50% of Sublessor's monthly installments of
Minimum Annual Rent, Annual Operating Expenses, Taxes and other Impositions, and
other additional rent for the Premises. Tenant's Rent shall be payable in
advance, without abatement, deduction or setoff, on the Commencement Date and on
the first day of each calendar month thereafter during the Sublease Term. The
Rent as to any partial months included in the Sublease Term shall be prorated on
a daily basis.
4. ASSUMPTION OF OBLIGATIONS. Except for the rent due under the Prime Lease and
except as otherwise set forth in this Sublease, Tenant assumes and agrees to
keep, obey and perform all of the terms, covenants and conditions of Sublessor
as Tenant under the Prime Lease with respect o the Subleased Premises. Any
failure by Tenant to perform, keep and obey the same shall be a default
hereunder. It is hereby understood and agreed that Tenant's rights to use,
possess and enjoy the Subleased Premises are subject to the terms and conditions
of the Prime Lease and the rights and remedies of Landlord thereunder.
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5. TITLE AND POSSESSION. Sublessor covenants and agrees that it has full right
and authority to enter into this Sublease for the full term hereof, and that
Tenant, upon paying the rents and other sums provided herein, and upon
performing the duties, covenants, agreements and obligations hereof, and upon
keeping and obeying all of the restrictions, conditions and provisions hereof,
will have, hold and enjoy quiet possession of the Subleased Premises for the
term herein granted and with all of the rights and privileges of Sublessor under
the Prime Lease with respect to the Subleased Premises except as herein
expressly excluded or modified and subject to all of said duties, covenants,
agreements, obligations, restrictions, conditions and provisions.
6. SUBLEASE AND ASSIGNMENT. It is mutually agreed that Tenant may not assign
this Sublease or further sublease any portion of the Subleased Premises without
the prior written consent of Sublessor and Landlord. Tenant shall not pledge its
interest hereunder, or allow liens to be placed on such interest, or suffer this
Sublease or any portion thereof to be attached or taken upon execution. No
assignment or further subleasing, even with the consent of Sublessor and
Landlord, shall relieve Tenant from liability for payment of the rent herein
provided for or from the obligation to keep and be bound by all of the terms,
conditions and covenants of this Sublease.
7. DAMAGE, DESTRUCTION OR CONDEMNATION. In the event of damage or destruction of
the Subleased Premises or the taking of all or any part thereof under the power
of eminent domain, this Sublease shall terminate if, but only if, the Prime
Lease is terminated as a result thereof, and the rent payable hereunder shall
xxxxx only as long as and in the same proportion as the rent due from Sublessor
to Landlord under the Prime Lease abates as a result thereof.
8. MUTUAL RELEASE AND WAIVER OF SUBROGATION. Notwithstanding any provision of
this Sublease to the contrary, all parties hereby waive any and all rights of
recovery, claim, action or cause of action, against the others and against
Landlord, their agents (including partners, both general and limited), officers,
directors, shareholders or employees, for any loss or damage that may occur to
the Subleased Premises, or any improvements thereto, or the building of which
the Subleased Premises are a part, or any improvements thereto, or any property
of such party herein, by reason of fire, the elements, or any other cause which
could be insured against under the terms of standard fire and extended coverage
insurance policies, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers or employees, and each covenants that
its insurers shall hold no right of subrogation against any other party.
9. ALTERATIONS. Any alterations, additions and improvements in or upon the
Subleased Premises shall be made by Tenant only after prior written consent by
Sublessor, which consent shall not be withheld if Landlord consents thereto.
Upon the termination of the term hereof, all such alterations, additions and
improvements (except personal property, business and trade fixtures, machinery
and equipment, furniture and movable partitions owned by Tenant) shall be and
remain part of the Subleased Premises and shall not be removed by Tenant unless
such removal is required by Sublessor, in which case Tenant shall remove the
same and restore the Subleased Premises to the same condition in which they were
on the date hereof, reasonable and
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ordinary wear and tear excepted. Personal property, business and trade fixtures,
machinery and equipment, furniture and movable partitions owned by Tenant shall
be and remain the property of Tenant and may be removed by Tenant at any time
during the term hereof when Tenant is not in default hereunder. Tenant covenants
and agrees to indemnify Sublessor and Landlord against, and hold Sublessor and
Landlord harmless from, all liens, whether for labor or materials arising as the
result of alterations, additions, repairs, or improvements to the Subleased
Premises made by Tenant during the term of this Sublease.
10. DEFAULT. If the rent above referred to, or any part thereof, whether the
same be demanded or not, shall remain unpaid for a period of 5 days from the
date when due hereunder, or if any other term, condition or covenant of this
Sublease, express or implied on the part of Tenant to be kept or performed shall
be violated or neglected, and if Tenant shall fail to cure the same within ten
days from the date of written notice from Sublessor to Tenant specifying the
violations, or if the Subleased Premises or Tenant's interest therein shall be
taken on execution or other process of law, or if Tenant shall petition to be or
shall be declared bankrupt or insolvent according to law or shall enter an
assignment for the benefit of creditors, or if Tenant shall abandon the
Subleased premises, or if any default under the Prime Lease shall occur with
respect to Tenant or the performance by Tenant of any of its covenants and
obligations under this Sublease, then and in any of said cases, Tenant shall be
deemed in default, and Sublessor shall have all of the rights and remedies
against Tenant which would be available to Landlord against Sublessor in the
event of a default by Sublessor under the Prime Lease.
11. NOTICES. Any notice or communication required or permitted to be given or
served by either party hereto upon the other shall be deemed given or served in
accordance with the provisions of this Sublease when mailed in a sealed wrapper
by United States registered or certified mail, return receipt requested, postage
prepaid, property addressed as follows:
If to Sublessor: Bison Instruments
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Tenant: EnduraTEC Systems Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Each such mailed notice or communication shall be deemed to have been given to,
or served upon, the party to which addressed on the date the same is deposited
in the United States registered or certified mail, postage prepaid, property
addressed in the manner above provided. Any party hereto may change its address
for the service of notice hereunder by serving written notice hereunder upon the
other party hereto, in the manner specified above, at least ten (10) days prior
to the effective date of such change.
12. SURRENDER OF SUBLEASED PREMISES UPON EARLY TERMINATION. Upon any early
termination of this Sublease, Tenant shall quit and surrender possession of the
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Subleased Premises to Sublessor in as good order and condition as the same are
now or hereafter may be improved by Landlord, Sublessor or Tenant, reasonable
wear and tear and repairs which are Landlord's obligation excepted, and shall,
without expense to Sublessor, remove or cause to be removed from the Subleased
Premises all debris and rubbish, all furniture, equipment, business and trade
fixtures, movable partitioning and other articles or personal property owned by
Tenant or installed or placed by Tenant at its expense in the Subleased
Premises, and all similar articles of any other persons claiming under Tenant,
and Tenant shall repair all damage to the Subleased Premises resulting from such
removal.
13. TERMINATION OF PRIME LEASE. It is understood and agreed by and between the
parties hereto that the existence of this Sublease is dependent and conditioned
upon the continued existence of the Prime Lease, and in the event of the
cancellation or termination of the Prime Lease, this Sublease automatically
shall be terminated; provided, however, that this provision shall not be deemed
to release Sublessor from liability if the Prime Lease is cancelled or
terminated by reason of a default by Sublessor as tenant under the Prime Lease,
which default did not result, in whole or in part, from a default by Tenant
hereunder. Sublessor shall have no liability to Tenant if the Prime Lease is
cancelled or terminated by reason of a default by Tenant hereunder, or by reason
of any condemnation or destruction of the Subleased Premises.
14. WAIVER. A waiver by Sublessor of any default, breach or failure of Tenant
under this Sublease shall not be construed as a waiver of any subsequent or
different default, breach or failure.
15. HOLDING OVER. If Tenant holds over after the early termination of the term
hereof without the express written consent of Sublessor, Tenant shall become a
tenant at sufferance only, at a rental rate equal to 150% of the rental rate in
effect upon the date of such expiration and otherwise upon the terms, covenants
and conditions herein specified, so far as applicable. Acceptance by Sublessor
of rent after such expiration or earlier termination shall not constitute a
consent to a holdover hereunder or result in a renewal. The foregoing provisions
of this paragraph are in addition to, and shall not limit, Sublessor's right of
reentry or any other rights of Sublessor hereunder or as otherwise provided by
law. In the event of any unauthorized holding over, Tenant shall indemnify
Sublessor against all claims for damages arising therefrom.
16. SUCCESSORS AND ASSIGNS. All of the terms, covenants, provisions and
conditions of this Sublease shall be biding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
17. CAPTIONS. The captions used on the paragraphs of this Sublease are for
convenience only, are not a part of this Sublease, and are not to be considered
in the interpretation hereof.
18. CONSENT OF LANDLORD. This Sublease is contingent upon approval by Landlord
manifested by Landlord's execution of the Consent to Sublease appearing below.
Unless and until Landlord executes the Consent to Sublease below, this Sublease
shall be of no force or effect, and the parties hereto shall have no liability
or obligation to each
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other. Tenant shall not be permitted access to the Subleased Premises for any
purpose until the Consent to Sublease below has been executed by Landlord.
19. RELATIONSHIP OF PARTIES. This Sublease does not and shall not create the
relationship of principal and agent, or of partnership, or of joint venture, or
of any other association between Sublessor and Tenant, the sole relationship
between the parties hereto being strictly that of landlord and tenant.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
as of the day and year first above written.
SUBLESSOR:
BISON INSTRUMENTS
By:
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Its:
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TENANT:
ENDURATEC SYSTEMS CORP.
By:
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Its:
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CONSENT TO SUBLEASE
THE UNDERSIGNED ("LANDLORD") DOES HEREBY CONSENT TO THE FOREGOING SUBLEASE,
PROVIDED THAT SUCH CONSENT SHALL NOT RELEASE OR DISCHARGE THE SUBLESSOR FROM ANY
OF ITS OBLIGATIONS TO BE PERFORMED UNDER THE PRIME LEASE, AND FURTHER PROVIDED
THAT SUCH CONSENT IS LIMITED TO THE FOREGOING SUBLEASE ONLY, AND ANY FURTHER
ASSIGNMENT, SUBLEASE, AMENDMENT OR MODIFICATION OF THIS SUBLEASE OR THE PRIME
LEASE SHALL REQUIRE THE PRIOR WRITTEN CONSENT OF THE UNDERSIGNED PURSUANT TO OF
THE PRIME LEASE.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By:
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Its:
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