EXHIBIT 10.10a
FIRST LEASE AMENDMENT
THIS FIRST LEASE AMENDMENT (the "Amendment") is executed this 25th day of
September, 2000, by and between DUKE REALTY MINNESOTA, LLC, a Minnesota limited
liability company ("Landlord"), and MEDGENESIS INC., a Minnesota corporation
("Tenant").
W I T N E S S E T H:
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WHEREAS, Landlord and Chronimed, Inc., as predecessor in interest to
Tenant, entered into a certain lease dated October 27, 1998 (the "Lease"),
whereby Tenant leased from Landlord certain premises consisting of approximately
25,420 rentable square feet of space (the "Original Premises") located in an
office/warehouse building commonly known as Edina Interchange V, 5182 West 76th
Street, Edina, Minnesota 55435; and
WHEREAS, Landlord and Tenant desire to expand the Original Premises by
approximately 7,063 rentable square feet (the "Additional Space"). Collectively,
the Original Premises and Additional Space shall hereinafter be referred to as
the "Leased Premises"; and
WHEREAS, Landlord and Tenant desire to extend the Lease Term for a
period of three (3) years, eleven (11) months and seventeen (17) days; and
WHEREAS, Landlord and Tenant desire to amend certain provisions of the
Lease to reflect such expansion and extension and any other changes to the
Lease;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and each act performed hereunder by the parties,
Landlord and Tenant hereby enter into this Amendment.
1. Incorporation of Recitals. The above recitals are hereby
incorporated into this Amendment as if fully set forth herein.
2. Extension of Term. The Lease Term is hereby extended through October
31, 2005.
3. Amendment of Article 1. Lease of Premises. Commencing October 1,
2000, Article 1, Section 1.01 of the Lease is hereby amended as follows:
A. Leased Premises (shown cross-hatched on Amended Exhibit A attached
hereto): Edina Interchange V, 5182 West 96th Street, Edina, Minnesota 55435;
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B. Rentable Area: approximately 32,483 rentable square feet;
Landlord shall use commercially reasonable standards, consistently
applied, in determining the Rentable Area and the rentable area of
the Building. The Rentable Area shall include the area within the
Leased Premises plus a pro rata portion of the area covered by the
common areas within the Building, as reasonably determined by
Landlord from time to time. Landlord's determination of Rentable
Area made in good faith shall conclusively be deemed correct for all
purposes hereunder, including without limitation the calculation of
Tenant's Building Expense Percentage and Tenant's Minimum Annual
Rent.
C. Building Expense PercentageXXX%;
D. Minimum Annual Rent:
10/01/00-09/30/01 $ XXX
10/01/01-10/31/01 $ XXX (1 month)
11/01/01-10/31/02 $ XXX
11/01/02-09/30/03 $ XXX (11 months)
10/01/03-09/30/05 $ XXX per year
10/01/05-10/31/05 $ XXX (1 month);
E. Monthly Rental Installments:
10/01/00-10/31/01 $ XXX per month
11/01/01-09/30/03 $ XXX per month
10/01/03-10/31/05 $ XXX per month;
I. Security Deposit: $XXX payable on or before November 14, 2001
M. Addresses for payments and notices:
Landlord: Duke Realty Minnesota, LLC
1550 Utica Avenue South
Suite 120
Minneapolis, MN 55416
With Payments to: Duke Realty Minnesota, LLC
NW 7210
P.O. Box 1450
Minneapolis, MN 55485-7210
Tenant: MEDgenesis Inc.
5182 West 76th Street
Edina, MN 55435
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4. Amendment of Section 2.02. Construction of Tenant Improvements.
Section 2.02 of the Lease is hereby deleted in its entirety and the following is
substituted in lieu thereto:
Tenant has personally inspected the Leased Premises and accepts the same "AS IS"
without representation or warranty by Landlord of any kind and with the
understanding that Landlord shall have no responsibility with respect thereto.
It is understood and agreed that Tenant's contractor shall perform all work on
the tenant finish improvements in the Leased Premises, at Tenant's sole cost.
Such tenant finish improvements shall be constructed in accordance with Tenant's
plans and specifications, which shall be mutually agreed upon by both Landlord
and Tenant and attached hereto as Amended Exhibit B, in a good and workmanlike
manner, in accordance with all applicable laws, regulations and building codes,
with materials of an equal or greater quality than the Building standard
materials and otherwise in accordance with the provisions of this Lease.
Landlord shall have the right to approve Tenant's contractor and all
subcontractors performing such work, which approval shall be based on price,
quality of work and timeliness of performance, and all work shall be performed
in accordance with Landlord's standard rules and requirements. Tenant shall pay
Landlord a fee for its supervision of the project, including review and approval
of space plans and construction documents, equal to three percent (3%) of the
total project cost. Tenant shall provide Landlord with a complete cost breakdown
for the work performed in the Leased Premises. Tenant agrees that all work on
any subsequent tenant finish improvements shall be performed by Duke
Construction Limited Partnership or a subsidiary or affiliate of Landlord which
shall receive a fee as Landlord's construction manager or general contractor,
with the exclusion of Tenant's production areas.
5. Amendment of Section 16.11. Option to Extend. Section 16.11 of the
Lease is hereby deleted in its entirety and shall be of no further force or
effect.
6. Amendment of Section 16.12. Option to Terminate. Section 16.12 of
the Lease is hereby deleted in its entirety and shall be of no further force or
effect.
7. Contingency. This Amendment is contingent upon (i) Tenant paying to
Landlord XXX Dollars ($XXX) upon execution of this Amendment; (ii) Tenant paying
a fee of XXX Dollars ($XXX) to Sunrise Vending, Incorporated upon execution
hereof, pursuant to a separate agreement with Sunrise Vending, Incorporated in
respect of Sunrise Vending, Incorporated's termination of the lease referred in
subparagraph (iii.a) hereof and (iii) Landlord and Sunrise Vending, Incorporated
entering into (a) a lease termination agreement for the Additional Space and (b)
a new lease for approximately 7,426 rentable square feet located at Edina
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Interchange I both the lease termination and new lease to be executed on or
before September 30, 2000. In the event these contingencies are not satisfied,
upon written notice from Landlord, this Amendment shall be null and void and of
no further force or effect.
8. Tenant's Representations and Warranties. The undersigned represents
and warrants to Landlord that (i) Tenant is duly organized, validly existing and
in good standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this
Amendment has been taken by Tenant; and (iii) the individual executing and
delivering this Amendment on behalf of Tenant has been authorized to do so, and
such execution and delivery shall bind Tenant. Tenant, at Landlord's request,
shall provide Landlord with evidence of such authority.
9. Examination of Amendment. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation or option,
and it is not effective until execution by and delivery to both Landlord and
Tenant.
10. Definitions. Except as otherwise provided herein, the capitalized
terms used in this Amendment shall have the definitions set forth in the Lease.
11. Incorporation. This Amendment shall be incorporated into and made a
part of the Lease, and all provisions of the Lease not expressly modified or
amended hereby shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed on the day and year first written above.
"Landlord"
DUKE REALTY MINNESOTA, LLC,
a Minnesota limited liability company
By: /s/ James W. Gray
---------------------------------
Chief Manager
"Tenant"
MEDGENESIS INC.,
a Minnesota corporation
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By: /s/ Richard B. Thon
---------------------------------
Printed: Richard B. Thon
----------------------------
Title: CFO
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STATE OF MN )
--------------------
)SS:
COUNTY OF Hennepin )
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Before me, a Notary Public in and for said County and State, personally appeared
Richard Thon, by me known and by me known to be the CFO of MEDgenesis Inc., a
Minnesota corporation, who acknowledged the execution of the foregoing "First
Lease Amendment" on behalf of said corporation.
WITNESS my hand and Notarial Seal this 25th of September, 2000.
/s/ Mark Youngquist
-------------------------------------
Notary Public
Mark Youngquist
-------------------------------------
(Printed Signature)
My Commission Expires: 1/31/05
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My County of Residence: Hennepin
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ASSIGNMENT AND ASSUMPTION OF LEASE
FOR AND IN CONSIDERATION of receipt of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CHRONIMED, INC., a Minnesota corporation (hereinafter referred to
as "Assignor"), hereby assigns to MEDGENESIS INC., a Minnesota corporation
(hereinafter referred to as "Assignee"), all of its right, title and interest in
and to a certain Lease dated October 27, 1998 by and between Assignor, as
"Tenant", and Duke Realty Minnesota, LLC, a Minnesota limited liability company,
as "Landlord," for certain space
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described therein and more commonly known as Edina Interchange V, 5182 West 76th
Street, Edina, Minnesota 55435 (the "Lease").
Assignee hereby accepts this Assignment and Assumption of Lease and hereby
agrees to be bound by all of the rights and obligations of Assignor as Tenant
under the Lease and acknowledges that all provisions of the Lease remain in full
force and effect. Assignor hereby acknowledges that this Assignment and
Assumption of Lease does not relieve it from its liability under the terms and
obligations of the Lease through November 14, 2001, the original date of
termination of the Lease. This Assignment and Assumption of Lease shall not be
construed to modify, waive, impair or affect any of the terms, provisions or
conditions of the Lease.
This Assignment and Assumption of Lease shall not constitute a consent to any
further assignment of the Lease or subletting of the premises demised thereby.
This Assignment and Assumption of Lease may be executed in two or more
counterparts, each of which shall be deemed an original. All such counterparts
shall together constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The effective date of this Assignment and Assumption of Lease
shall be the date of execution hereof.
EXECUTED this 25th day of September, 2000.
"Assignor"
CHRONIMED, INC., a Minnesota corporation
By: /s/ Kenneth S. Guenthner
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Printed: Kenneth S. Guenthner
---------------------------------
Title: Gen. Counsel & Secretary
-----------------------------------
"Assignee"
MEDGENESIS INC., a Minnesota corporation
By: /s/ Richard B. Thon
-------------------------------------
Printed: Richard B. Thon
--------------------------------
Title: CFO
----------------------------------
STATE OF MN )
----------------
)SS:
COUNTY OF Hennepin )
----------------
Before me a Notary Public in and for said County and State,
personally appeared Kenneth Guenthner, by me known and by me known to
be the Gen. Counsel & Secretary of Chronimed, Inc., a Minnesota
corporation, who acknowledged the execution of the foregoing
"Assignment and Assumption of Lease" on behalf of said corporation.
Witness my hand and Notarial Seal this 25th day of September,
2000.
/s/ Mark Youngquist
----------------------------------
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Notary Public
Mark Youngquist
------------------------------------
(Printed Signature)
My Commission Expires: 1/31/05
----------------
My County of Residence: Hennepin
----------------
STATE OF MN )
--------------------------------
)SS:
COUNTY OF Hennepin )
--------------------------------
Before me, a Notary Public in and for said County and State,
personally appeared Richard Thon, by me known and by me known to be the
CFO of MEDgenesis Inc., a Minnesota corporation, who acknowledged the
execution of the foregoing "First Lease Amendment" on behalf of said
corporation.
WITNESS my hand and Notarial Seal this 25th of September,
2000.
/s/ Mark Youngquist
----------------------------------
Notary Public
Mark Youngquist
----------------------------------
(Printed Signature)
My Commission Expires: 1/31/05
---------------
My County of Residence: Hennepin
---------------
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CONSENT AND ACCEPTANCE
DUKE REALTY MINNESOTA, LLC, a Minnesota limited liability company, as
Landlord under the Lease, hereby consents to the assignment of the Lease as set
forth above; provided, however, that such assignment does not affect or release
any liability of Assignor under the terms and obligations of the Lease except as
may be otherwise specifically provided for in the above Assignment and
Assumption.
This Consent and Acceptance of the foregoing Assignment and Assumption
of Lease shall not constitute a consent by Landlord to any further assignments
of the entire or any portion of the Leased Premises.
"landlord"
DUKE REALTY MINNESOTA, LLC,
a Minnesota limited liability company
By: /s/ James W. Gray
---------------------------------
Chief Manager
