EXHIBIT 10.09
LEASE
THIS LEASE, made and entered into this 10th day of June 1997, by and
between JORANDCOR, INC., a Minnesota corporation (hereinafter referred to as
"Landlord"), and CHRONIMED, INC., a Minnesota corporation (hereinafter referred
to as "Tenant");
WITNESETH:
1. LEASED PREMISES. In consideration of the rents, terms, provisions
and covenants of this Lease, Landlord hereby leases, lets and demises to Tenant
that portion of the following described premises outlined in red on Exhibit A
attached hereto, and designated "leased premises" (hereinafter referred to as
the "Leased Premises"), and containing 18,040 square feet, situated in the
building located at 6214-6222 Bury Drive, including the nonexclusive right to
use the common areas identified on Exhibit A.
2. TERM. Subject to and upon the conditions set forth below, the term
of this Lease shall commence on September 1, 1997 ("Commencement Date"), and
shall terminate on August 31, 2002.
3. RENT. Landlord reserves and Tenant covenants to pay the Landlord,
without demand at its offices at 6250 Bury Drive, or at such other address as
the Landlord may from time to time designate in writing, in advance, rent as
follows:
(a) From September 1, 1997 to August 31, 1999, Tenant shall pay
base rent for the Leased Premises of $6.76 per square foot
($10,162.53 per month); and
(b) From September 1, 1999 to August 31, 2000, Tenant shall pay
base rent for the Leased Premises of $7.00 per square foot
($10,523.33 per month); and
(c) From September 1, 2000 to August 31, 2001, Tenant shall pay
base rent for the Leased Premises of $7.15 per square foot
($10,748.83 per month); and
(d) From September 1, 2001 to August 31, 2002, Tenant shall pay
base rent for the Leased Premises of $7.30 per square foot
($10,974.33 per month).
<PAGE>
The total base rent for the five year lease term will be $630,858.60.
The base rent includes the payment on Landlord's Work based on an
amortization schedule of $58,926.94 over five years at 9.5% interest
("Amortization Schedule") for past work completed on the Leased Premises.
4. ADDITIONAL RENT. As additional rental for the entire term of this
Lease, Tenant agrees to pay to the Landlord its pro-rata share of the operating
expenses of the building, as herein defined. If this Lease commences or
terminates on a day other than the first or last day of a calendar year, the
amount of additional rent payable by Tenant applicable to the year in which such
commencement or termination occurs shall be pro-rated in accordance with the
number of days during such year this Lease was in effect. Landlord shall invoice
Tenant for estimated operating costs for each calendar year at the beginning of
such calendar year, and Tenant agrees to prepay monthly, due at the same time as
and together with the Base Rent above provided, one-twelfth of such estimated
amount. Within a reasonable time after the end of each calendar year, Landlord
will provide Tenant with an accounting showing the operating expenses for such
year and Tenant's share thereof. Tenant shall have the right, at its sole
expense and at a reasonable time convenient to Landlord, no more frequently than
once each year, to audit Landlord's books relevant to the additional rent due
hereunder. In the event that the estimated amount paid for such year exceeds the
amount due for such year based on such accounting, Landlord agrees to return
such amount to the Tenant, together with said accounting. In the event that the
estimate is less than the operating expenses for such calendar year, Tenant
agrees to reimburse Landlord for such amount within thirty (30) days of receipt
of the above-referenced accounting.
2
<PAGE>
The term "operating expenses" as used in this paragraph includes all
expenses incurred with respect to the ownership, repair, maintenance and
operation of the building of which the Leased Premises are a part, and
underlying land and other improvements thereon excluding repair and maintenance
of sewer and water to the building, but including, without limitation, snow
removal, reasonable internal management costs, fees, costs of cleaning exterior
of building and grounds, the cost of any common utilities, costs of maintaining
and repairing the building and all fixtures therein, all insurance premiums
provided for in Paragraph 12(a) hereof, and all real property taxes and
installments of special assessments which accrue against the building of which
the Leased Premises are a part during the term of this Lease and all other costs
of any nature which for federal income tax purposes may be expensed rather than
capitalized. Notwithstanding the foregoing, whether "capitalized" or "expenses",
operating expenses shall also include the yearly amortization of capital costs
incurred by the Landlord for improvements or structural repairs to the building
required to comply with any change in the laws, rules or regulations of any
governmental authority having jurisdiction. In addition, if any increase in the
fire and extended coverage insurance premiums paid by Landlord for the building
in which Tenant occupies space is caused by Tenant's use and occupancy of the
Leased Premises, or if Tenant vacates the Leased Premises and causes an increase
in such premiums, then Tenant shall pay as additional rent the amount of such
increase. Except as provided above, the term "operating expenses" does not
include any capital improvement to the building, outside management fees, any
expenses incurred in leasing to or procuring tenants for the building, or any
costs of renovating space for new tenants. For purposes of this paragraph, the
building in which the Leased Premises are a part is 50,200 square feet, and
Tenant's pro-rata share shall be 35.94%.
3
<PAGE>
The operating costs for the Lease Premises have been estimated at $XXX
per square foot. True operating expenses will be calculated pursuant to the
terms of this Section.
5. LATE PENALTY AND WAIVER OF SETOFF. Tenant waives and disclaims any
present or future right to apply any payment or part payment of rent, including
additional rent, or to set-off or counterclaim in any action for rent, including
additional rent, against any obligation of Landlord, however incurred, and
agrees that it will not claim or assert such right, set-off or counterclaim.
Other remedies for non-payment of rent notwithstanding, if the monthly rental
payment, including both Base Rent and additional rent, is not received by
Landlord on or before the tenth (10th) day of the month for which such rent is
due, or if any other payment due Landlord by Tenant is not received by Landlord
on or before ten (10) days after the due date thereof, a service charge of five
percent (5%) of such past due amount shall become due and payable in addition to
and together with such amounts owed under this Lease. In addition, interest at
the rate of twelve percent (12%) per annum shall be added to all amounts which
are over thirty (30) days past due and shall be due together therewith.
6. USE OF PREMISES.
(a) The Leased Premises shall be used and occupied by Tenant for
the purposes of distribution of pharmacy and related products
and to manufacture and sell products and services to the
medical industry, and for no other purposes whatsoever without
the written consent of Landlord. Such use and occupancy shall
be in compliance with all applicable laws, ordinances and
governmental regulations. The Leased Premises shall not be
used in such a manner that, in accordance with any requirement
of law or of any public authority, the Landlord shall be
required to make any additions or alterations to or in the
building.
(b) Tenant shall promptly comply with all laws, ordinances and
regulations affecting the Leased Premises and promulgated by
duly constituted
4
<PAGE>
governmental authorities affecting the cleanliness, safety,
use and occupation of the Leased Premises.
(c) Tenant shall promptly comply with and use the Leased Premises
and the common areas serving or within the building, including
parking facilities, in accordance with such rules and
regulations as may from time to time be made by the Landlord
for the general safety, comfort and convenience of the
Landlord, the occupants and tenants of the building, and
Tenant agrees to cause its customers, employees and invitees
to abide by such rules and regulations.
(d) Tenant shall not perform any acts or carry on any practices
which may injure the improvements on the property, and shall
keep the property in clean, safe, sanitary and first class
condition, and clean and free from rubbish and dirt at all
times, and shall store all trash and garbage in the agreed
upon designated common area. In addition, Tenant agrees to
occupy the Leased Premises, conduct its business and control
its agents, employees, invitees and visitors so as not to
create any nuisance or otherwise interfere with, annoy or
disturb any other tenant in its normal business operations.
7. UTILITIES. Tenant agrees to procure and promptly pay all bills for
electricity, gas, heat, fuel oil, and any and all other utilities used in the
Leased Premises during the term of this Lease, except water, which shall be
billed to Tenant as a portion of the operating expenses. Landlord agrees to use
its best efforts to restore any interrupted utility service, but shall not be
responsible or liable for any interruption in the supply of any utilities to the
Leased Premises beyond Landlord's reasonable control.
8. REPAIRS AND MAINTENANCE.
(a) Landlord shall maintain and keep in good order and repair only
the exterior portions of the building of which the Leased
Premises are a part (excluding all windows, window glass,
plate glass and doors serving or allowing access solely to any
leased portion of the building), the common areas of the
building and fixtures and equipment located therein and the
parking areas and other common areas serving the building.
Tenant agrees to immediately give written notice to Landlord
of the need for repairs of which Tenant has knowledge, for
which Landlord may be responsible under this paragraph.
Landlord agrees to make such repairs within a reasonable time
after receiving such notice. Landlord shall not be liable to
Tenant except as expressly provided in this Lease for any
damage or inconvenience, and
5
<PAGE>
Tenant shall not be entitled to any abatement or reduction of
rent by reason of any repairs made by Landlord under this
Lease. In addition, Landlord shall have no responsibility for
the maintenance of any fixtures or other improvements
installed or made by or at the request of Tenant. In addition,
Tenant shall be liable for the cost of any repairs required by
reason of the negligence or misuse of Tenant, its agents,
employees and invitees which are not covered by the fire and
extended coverage insurance maintained by Landlord pursuant to
this Lease.
(b) Except as provided in Subparagraph (a) above, Tenant shall, at
its own cost and expense, maintain the Leased Premises
including doors and windows serving or allowing access solely
to such Leased Premises and improvements and all equipment and
fixtures in or on the Leased Premises in good repair and
condition, including all necessary replacements and replace
all glass which is broken by Tenant with glass of comparable
quality. Tenant shall not allow any damage to be committed on
any portion of the Leased Premises, and at termination of this
Lease, by lapse of time or otherwise, Tenant shall deliver the
Leased Premises to Landlord in as good a condition as existed
at the commencement or completion date of this Lease, ordinary
wear and tear excepted. The cost and expense of any repairs
necessary to restore the condition of the Leased Premises
shall be borne by Tenant, and if Landlord undertakes to
restore the Leased Premises, it shall have a right of
reimbursement against Tenant. Should Tenant neglect to keep
and maintain the Leased Premises as required herein, then
Landlord shall have the right, but not the obligation, to have
the work done and to charge the cost thereof to Tenant as
additional rent, which shall become payable by Tenant with the
payment of the rent next due hereunder. All materials and
workmanship in such maintenance or replacement shall be of
comparable quality to the initial materials and workmanship
and shall be compatible with the building and the Leased
Premises.
9. INSTALLATION AND ALTERATIONS.
(a) Tenant shall have the right to install its own trade fixtures
and equipment, which shall at all times remain its property,
and, on condition that it is not in default hereunder, shall
have the right to remove the same immediately upon the
expiration or earlier termination of this Lease, provided that
it repairs any damage occasioned by the removal thereof.
(b) Tenant shall not make any repairs, alterations or additions to
the Leased Premises, including alterations prior to the
commencement of this Lease, or make any contracts therefor,
without first procuring Landlord's written consent, which the
Landlord agrees not to unreasonably withhold, and delivering
to Landlord any plans and specifications and copies of
proposed
6
<PAGE>
contracts and necessary permits, including the alterations
which Tenant shall, at Tenant's expense, cause to be performed
on the Leased Premises more fully described as "Tenant's
Work," if any, in Exhibit B attached hereto. Notwithstanding
anything to the contrary, Tenant may make alterations or
repairs to the Leased Premises if said alterations or repairs
cost less than Five Thousand and No/100 Dollars ($5,000.00);
and if prior to said alteration or repair, Tenant notifies
Landlord in writing the identity (including names and
addresses) of all contractors, subcontractors and/or material
suppliers providing labor and/or materials to the Leased
Premises. Prior to Tenant's commencement of any repairs,
alterations or additions to the Leased Premises, including
Tenant's Work described in Exhibit B, Tenant shall furnish
such indemnification against liens, costs, damages and
expenses as may be required by the Landlord including, without
limitation, a payment or performance bond. All alterations,
additions, improvements and fixtures, other than trade
fixtures, which may be made or installed by either of the
parties hereto upon the Leased Premises, and which are in any
manner attached to the floors, walls or ceilings at the
termination of this Lease shall become the property of
Landlord and shall remain upon and be surrendered with the
Leased Premises as a part thereof, without damage or injury
unless Landlord requests that such alterations or improvements
be removed, in which event the same shall be removed by the
Tenant at the expiration of the term of this Lease at its own
expense, and it shall be obligated to repair any damages
occasioned thereby. Tenant shall not place any signs on the
exterior of the Leased Premises or the building of which the
Leased Premises are a part without the Landlord's written
consent, which Landlord agrees not to unreasonably withhold.
(c) In the event that the alteration or improvement of the Leased
Premises by Tenant results in any increase in the assessed
value of the building for real estate tax purposes, and such
amount can be ascertained, the Tenant shall pay the increase
in real estate taxes resulting therefrom as and together with
additional rent due hereunder.
(d) Tenant shall pay when due, and indemnify, defend and hold
Landlord harmless from, all claims for labor or materials
furnished or alleged to have been furnished to Tenant for use
in the Leased Premises, which claims are or may be secured by
any lien against the Leased Premises, or any interest therein.
Tenant may, at its sole cost and expense, contest a mechanics
lien; provided, however, that during such contest the Tenant
shall, at the request of Landlord, provide security
satisfactory to the Landlord, including but not limited to
satisfaction of the requirements of Minn. Stat.ss.514.10. If
at any time payment of the mechanics lien or any other
obligation becomes necessary to prevent the foreclosure of the
Leased Premises, the Tenant shall pay the same in sufficient
time to prevent such foreclosure.
7
<PAGE>
10. INDEMNITY.
(a) Tenant accepts the Leased Premises in its present condition as
of the completion of Landlord's Work and without any
representation or warranty by Landlord as to the condition of
said Leased Premises or its suitability to Tenant's use or
occupancy and the taking of possession of the Leased Premises
by Tenant shall be conclusive evidence that it was in good and
satisfactory condition at such time.
(b) Tenant agrees to indemnify and save the Landlord, its
successors and assigns, harmless against any and all claims,
demands, damages, and costs and expenses, including reasonable
attorneys' fees, for the defense thereof, arising from the
conduct of or management of the business being conducted by
Tenant in the Leased Premises, or from any breach or default
on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to
the terms of this Lease, or from any act or negligence of
Tenant, its agents, contractors, servants, employees,
sublessees, in or about the Leased Premises, the sidewalks
adjoining the same, and the loading docks adjacent to the
Leased Premises. In case of any action or proceeding by or
against the Landlord by reason of any such claims, upon notice
from Landlord, Tenant covenants to defend such action or
proceeding with counsel reasonably satisfactory to Landlord.
Landlord shall not be liable to Tenant, and Tenant waives all
claims for damages to person or property sustained by Tenant
or Tenant's employees, agents, servants, invitees and
customers or to any other person resulting from the Leased
Premises or any equipment or appurtenances thereto becoming
out of repair or resulting from any accident or occurrence in
or about the Leased Premises, or the building in which they
are situated. This shall apply especially, but not
exclusively, to the flooding of the basement or any surface
areas, and the damage caused by refrigerators, sprinkling
devices, air conditioning apparatus, if any, water, snow,
frost, steam, excessive heat or cold, falling plaster, broken
glass, sewage, gas odors or noise, or the bursting or leaking
of pipes or plumbing fixtures. All property belonging to
Tenant or any other occupant of the Leased Premises shall be
there at the sole risk of Tenant or of any other such person
only, and Landlord shall not be liable for any damages
thereto, or for theft or misappropriation thereof.
11. MUTUAL WAIVER OF RIGHT OF SUBROGATION. Each party hereto expressly
waives any and all claims which arise or may arise in his or its favor and
against the other party hereto, or its respective agents, servants or employees,
during the term of this Lease hereinabove provided, or any extension thereof,
for any and all loss of or damage to any of his or its property located within
or upon or constituting a part of the building of which
8
<PAGE>
the Leased Premises are a part or underlying land, resulting from any peril or
risk customarily covered by standard Minnesota fire insurance policy with
extended coverage provisions (whether such insurance is in effect or not),
notwithstanding said injury or damage is caused by the negligence of either of
the parties hereto, their agents, servants or employees. Each of the parties
agrees to look to his or its own insurance carrier for recovery of any damages
sustained to his or its property, hereby waiving any rights of subrogation
against the other.
12. INSURANCE.
(a) Landlord shall, at all times during the term of this Lease,
maintain a policy or policies of insurance issued by and
binding upon some solvent insurance company insuring the
building against all risk of direct physical loss in an amount
equal to 100% of the full replacement cost of the building
structure and its improvements as of the date of the loss;
provided that Landlord shall not be obligated in any way or
manner to insure any personal property or fixtures of Tenant
or which Tenant may have upon, within or installed within the
Leased Premises, or any additional improvements which Tenant
may construct on the Leased Premises. Tenant agrees that the
cost of maintaining such insurance shall be an operating
expense within the meaning of Paragraph 4 hereof, and it
shall, therefore, reimburse Landlord for its pro-rata share of
such insurance premiums.
(b) Tenant agrees to procure and maintain a policy or policies of
insurance at its own cost and expense, insuring the Landlord,
its successors and assigns, as well as Tenant, from all
claims, demands or actions for injury or death to any person,
or property damage, in an amount reasonably agreed to by
Landlord. Said insurance shall not be subject to cancellation
except after thirty (30) days prior written notice to
Landlord. The policy or policies, or duly executed
certificate(s) for same, together with satisfactory evidence
of the payment of the premium thereof, shall be deposited with
the Landlord at the commencement of the term and renewals
thereof not less then thirty (30) days prior to the expiration
of the term of such insurance. If Tenant fails to comply with
such requirements, Landlord may obtain such insurance and keep
the same in effect, and Tenant shall pay Landlord the premium
cost thereof upon demand as a part of the additional rent due
hereunder.
(c) In addition, Tenant agrees to procure and maintain at its own
cost and expense all risk fire and extended coverage insurance
for the full
9
<PAGE>
replacement value of Tenant's leasehold improvements, fixtures
and furnishings.
13. DAMAGE BY FIRE OR OTHER CASUALTIES.
(a) In case the Leased Premises shall be partially or totally
destroyed by fire or other casualty so as to render fifty
percent (50%) or more of the Leased Premises untenantable or
fifty percent (50%) or more of the building of which the
Leased Premises are a part untenantable, either the Landlord
or Tenant may terminate this Lease by notice in writing within
sixty (60) days after such destruction or damage. In the event
that the Landlord does not terminate this Lease as above
provided, or the damage or destruction does not exceed the
percentage of the Leased Premises or building above set forth,
the Landlord shall rebuild or otherwise restore the building
to good condition and fit for occupancy within a reasonable
period of time after such destruction or damage, and a just
and proportionate part of the rent shall be abated until so
repaired, based upon the time and to the extent the Leased
Premises are rendered untenantable. In any event, if the
repair or restoration of the Leased Premises is not
substantially completed within 180 days after the damage or
destruction, Tenant may, at its option, terminate this Lease
by delivering a written notice of termination to Landlord,
whereupon all rights and obligations under this Lease shall
cease to exist.
(b) Under no circumstances shall the Landlord be obligated to
repair or replace any of Tenant's betterments or leasehold
improvements, or any of its personal property or fixtures.
Tenant shall be obligated to repair and/or restore the same at
its own expense.
14. EMINENT DOMAIN. In the event of the acquisition of the Leased
Premises, or any part thereof, by eminent domain proceedings, or negotiated sale
in lieu thereof, the following provisions shall apply:
(a) Total Condemnation of Leased Premises. If the whole of the
Leased Premises shall be so acquired, then the term of this
Lease shall cease and terminate as of the date possession
shall be taken in such proceeding or sale, and all rentals
shall be paid up to that date.
(b) Partial Condemnation. If only part of the Leased Premises
shall be so acquired, and such partial acquisition shall
render the Leased Premises unsuitable for the purposes of the
business of Tenant, then the term of this Lease shall cease
and terminate as of the date of possession, and rent shall be
adjusted to the date of such termination. In the event of a
partial taking or
10
<PAGE>
condemnation which is not extensive enough to render the
premises unsuitable for the business of Tenant, then Landlord
may, at its option, promptly restore the Leased Premises so as
to constitute the remaining premises a complete architectural
unit, and this Lease shall continue in full force and effect
with a proportionate abatement of the rent, based upon the
portion of the Leased Premises taken, or terminate this Lease
by written notice to Tenant. The rent shall also abate during
the restoration as to the portion of the Leased Premises
rendered untenantable.
(c) Landlord's Damages. In the event any condemnation or taking as
aforesaid, whether whole or partial, the Tenant shall not be
entitled to any part of the award paid for such condemnation
and Landlord shall receive the full amount of such award.
Tenant hereby expressly waives any right or claim to any part
thereof and,' by this Lease, does hereby assign and transfer
to Landlord such award or payment as may be made therefor, and
does hereby further agree to execute such documents of
assignment and transfer as may be required by Landlord.
(d) Tenant's Damages. Tenant shall be entitled to seek and recover
from the condemning authority only the damages to which Tenant
is separately entitled by Minnesota Statutes for damages to
Tenant's business and removal of Tenant's fixtures and
equipment, and this shall be Tenant's sole remedy.
15. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign or in any manner transfer this Lease
or any interest therein, nor sublet the Leased Premises or any
part or parts thereof, or permit occupancy by anyone with,
through or under it, without the previous written consent of
the Landlord, which the Landlord agrees not to unreasonably
withhold. Consent by Landlord to one or more assignments of
this Lease, or to one or more sublettings of the Leased
Premises shall not operate as a waiver of Landlord's rights
under this section to any subsequent assignment or subletting.
No assignment or subletting shall release Tenant of any of its
obligations under this Lease, or be construed or taken as a
waiver of any of Landlord's rights or remedies hereunder.
Every assignee or sublessee of this Lease shall be subject to
and be bound by all of the covenants, provisions and
conditions of this Lease to the same extent as the original
tenant. Tenant agrees to notify Landlord in writing of its
desire to assign this Lease or sublease all or a portion of
the Leased Premises at least thirty (30) days prior to such
proposed assignment or subletting.
11
<PAGE>
(b) Neither this Lease nor any interest therein, nor any estate
thereby created, shall pass to any trustee or receiver in
bankruptcy, or any assignee for the benefit of creditors, or
by operation of law.
(c) In lieu of granting its consent to any proposed assignment or
subletting of this Lease, Landlord may, in its discretion,
terminate and cancel this Lease upon thirty (30) days written
notice to Tenant, whereupon this Lease shall terminate and
Tenant shall be released from all liabilities hereunder,
except for all accrued liabilities.
16. ACCESS TO PREMISES. Landlord shall have the right to enter upon the
Leased Premises during business hours or upon twenty-four (24) hours notice,
except in emergencies when no notice is required, for the purposes of inspecting
the same or making any alterations or additions thereto, or to the building in
which the same are located, or for the purposes of exhibiting the same to
prospective tenants, purchasers or others, and shall have the right to place a
"For Rent" sign or signs upon the Leased Premises during the last 120 days of
the Lease term or any renewal thereof. Landlord shall not be liable to Tenant in
any manner for any expense, loss or damage by reason thereof (unless caused in
connection with alterations or additions), nor shall the exercise of such right
be deemed an eviction or disturbance of Tenant's use or possession.
17. DEFAULT BY TENANT AND LANDLORD'S REMEDIES.
(a) The following shall be Events of Default by Tenant under this
Lease:
(1) The failure of Tenant to pay an installment, or any
portion thereof, of base or additional rent within
ten (10) days after the due date thereof;
(2) The continued default by Tenant in any of its other
covenants or conditions under this Lease after thirty
(30) days written notice of such default to Tenant;
(3) The making by Tenant of an assignment for the benefit
of its creditors;
12
<PAGE>
(4) The Tenant ceases the conduct of active business
operations in, or abandons, the Leased Premises;
(5) In the event proceedings are instituted by or against
Tenant for the reorganization, liquidation or
involuntary dissolution of Tenant, for its
adjudication as a bankrupt or insolvent or under
Chapter XI of the Bankruptcy Act, or for the
appointment of a receiver of the property of Tenant,
if involuntary, and said proceedings are not
dismissed, and any receiver, trustee or liquidator
appointed therein, discharged within thirty (30) days
after the institution of said proceedings;
(6) The doing or permitting to be done by Tenant of any
act which creates a mechanic's lien or claim therefor
against the land or building of which the Leased
Premises are a part, except pursuant to Section 9(d).
(b) Upon the occurrence of any Event of Default set forth above,
Landlord, in addition to any of the remedies available at law
or equity, shall have the option to pursue any one or more of
the following remedies without any notice or demand:
(1) Terminate this Lease and recover possession of the
Leased Premises in accordance with Minnesota law, in
which event Tenant shall immediately surrender the
Leased Premises to Landlord and, if Tenant fails to
surrender the Leased Premises, Landlord may, without
prejudice to any other remedy which it may have for
possession or recovery of rent, enter upon and take
possession of the Leased Premises, and lock out,
expel or remove Tenant and any other person who may
be occupying all or any part of the Leased Premises
without being liable for prosecution for any claim
for damages. Tenant agrees to pay on demand the
amount of all loss and damage which Landlord may
suffer by reason of the termination of the Lease
under this subsection, whether through the inability
to relet the Leased Premises on satisfactory terms or
otherwise. Upon termination of this Lease, the
Landlord shall be entitled to recover from Tenant
forthwith as its damages, the sum of money equal to a
total of (i) all costs of recovering the Leased
Premises, (ii) the unpaid rent owed at the time of
termination, plus interest thereon from the due date
at the maximum rate permitted by applicable law,
(iii) an amount equal to the balance of the rent for
the remainder of the terms, discounted to present
value, utilizing an eight percent (8%) discount
favor, and (iv) any other sum of money and damages
owed by Tenant to Landlord;
13
<PAGE>
(2) Recover possession of the Leased Premises in
accordance with Minnesota law without termination of
the Lease and, if necessary, expel or remove the
Tenant, and lock out, expel or remove Tenant and any
other person that may be occupying all or any part of
the Leased Premises without being liable for
prosecution for any claim for damages, and relet the
Leased Premises on behalf of Tenant, and receive
directly the rent by reason of subletting. Tenant
agrees to pay Landlord on demand any deficiency that
may arise, by reason of any reletting of the Leased
Premises and any expenditures made by Landlord for
remodeling or repairing in order to relet the Leased
Premises. No such re-entry or taking of possession of
the Leased Premises by Landlord shall be construed as
an election on its part to terminate this Lease
unless a written notice of such intention be given to
Tenant, or unless the termination thereof be decreed
by a court of competent jurisdiction;
If the default can be cured by the expenditure of money, Landlord may,
at its option, cure such default, and Tenant shall be obligated to reimburse
Landlord upon demand, as additional rent hereunder, for all such expenditures,
together with interest, at the rate of twelve percent (12%) per annum or, if
lesser, the maximum rate permitted by law, and costs and reasonable attorneys'
fees incurred in connection with such cure and collecting such amounts from
Tenant.
In the event that Tenant defaults in the performance of any of the
terms, covenants, agreements or conditions contained in this Lease, and Landlord
successfully enforces all or any part of this Lease or recovers possession of
the Leased Premises, Tenant agrees to pay or reimburse Landlord for all costs
and expenses incurred in connection therewith, including reasonable attorneys'
fees.
ll rights and remedies of Landlord and Tenant herein shall be
cumulative and none shall exclude any right or remedy allowed by law, and said
rights and remedies may be exercised and enforced concurrently, and whenever and
as often as the occasion therefore arises.
18. SURRENDER OF POSSESSION.
14
<PAGE>
(a) At the expiration of the tenancy created hereunder, whether by
lapse of time or otherwise, Tenant shall promptly remove all
personal property belonging to Tenant or persons claiming
through Tenant and surrender the Leased Premises in good
condition and repair, broom-clean, reasonable wear and tear
and loss by fire or unavoidable casualty excepted.
(b) In the event Tenant remains in possession of the Leased
Premises after the expiration of the tenancy created
hereunder, and without the execution of a new lease, it shall
be deemed to be occupying the Leased Premises from
month-to-month, subject to all of the conditions, provisions
and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy, except that the base
rent payable shall be increased to 125% of the base rent
provided in Paragraph 3 hereof.
(c) Upon the expiration of the tenancy hereby created, if the
Landlord has requested Tenant to remove all of the additions,
fixtures and installations placed upon the Leased Premises by
Tenant and designated in said request, and to repair any
damage occasioned by such removal, and if Tenant fails to
remove the same or make such repairs, Landlord may effect such
removals and repairs, and Tenant shall pay to Landlord the
cost thereof, with interest at the rate of eight percent (8%)
per annum from the date of payment by Landlord.
19. SUBORDINATION. Tenant agrees that this Lease shall be subordinate
to any mortgage currently or hereafter placed upon the building of which the
Leased Premises are a part by the Landlord, and agrees to execute any and all
documents necessary to indicate that this Lease is subordinate to any such
mortgage; provided, however, Tenant shall not be disturbed in its possession of
the Leased Premises by any mortgagee or purchaser at a mortgage foreclosure
sale, so long as Tenant is not in default under the terms hereof. Tenant shall
execute and deliver whatever instruments may be required for the above purposes,
and, failing to do so within ten (10) days after demand in writing, does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in
its name, place and stead so to do. Tenant further agrees to furnish within ten
(10) days of receipt of the form, from time to time upon request of Landlord or
Landlord's mortgagee
15
<PAGE>
an estoppel certificate on the form prepared by Landlord and delivered to
Tenant, containing items customarily certified to therein. Tenant further agrees
to execute and deliver to Landlord within ten (10) days of receipt of the form
thereof, a memorandum or short form lease in recordable form, containing such
items of this Lease as Tenant shall request.
20. NOTICES. Wherever under this Lease a provision is made for notice
of any kind, such notice shall be in writing and signed by or on behalf of the
party giving or making the same, and it shall be deemed sufficient notice and
service thereof if such notice is to Tenant and sent by registered or certified
mail, postage prepaid, to the address of Tenant at: Attention: Chronimed, Inc.,
Vice President of Finance, 13911 Ridgedale Drive, Minnetonka, Minnesota 55305
and Chronimed, Inc., 6214 Bury Drive, Eden Prairie, Minnesota 55346, and to the
Landlord for such purpose, at the place then fixed for payment of rent, or at
such other address as may be furnished by Landlord. By notice in the manner
above set forth, either party may designate a different location to which notice
shall be sent.
21. COMMISSIONS. Landlord agrees to indemnify and hold Tenant harmless
against all claims, damages, costs or expenses (including costs incurred in
defending any claim) for any leasing fees or commissions resulting from the
execution of this Lease.
22. GENERAL.
(a) The various rights and remedies herein contained and reserved
to each of the parties hereto shall not be considered as
exclusive of any other right or remedy of such party, but
shall be construed as cumulative and shall be in addition to
every other remedy now or hereafter existing at law, in
equity, or by statute. No delay or omission of the right to
exercise any power by either party shall impair any such right
or power, or shall be construed as a waiver
16
<PAGE>
of any default, or as acquiescence therein. One or more
waivers of any covenant, term or condition of this Lease by
either party shall not be construed by the other party as a
waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by either party to or of
any act by the other party of a nature requiring consent or
approval shall not be deemed to waive or render unnecessary
consent or approval of a subsequent similar act.
(b) Tenant shall give written notice to Landlord in case of fire
or accidents in the Leased Premises, or of defects therein, or
in any fixtures or equipment.
(c) The headings of the several articles contained herein are for
convenience only and do not define, limit or construe the
contents of such articles.
(d) The covenants, agreements and obligations herein contained
shall extend to, bind or inure to the benefit of not only of
the parties hereto, but their respective personal
representatives, heirs, successors and assigns.
(e) Whenever a period of time is herein provided for the Landlord
to do or perform any act or thing, Landlord shall not be
liable or responsible for any delays due to strikes, riots,
acts of God, shortages of labor or materials, national
emergency, acts of a public enemy, governmental restrictions,
laws or regulations, or any other cause or causes whatever,
whether similar or dissimilar to those enumerated, beyond its
reasonable control.
(f) Tenant shall not record this Lease without the written consent
of Landlord.
(g) The laws of the State of Minnesota shall govern the validity,
performance and enforcement of this Lease.
(h) The invalidity or enforceability of any provision of this
Lease shall not affect or impair the validity of any other
provision.
(i) Landlord further covenants that Tenant, upon paying the
rentals provided for herein, and upon performing the covenants
and agreements to be performed by it, will have, hold and
enjoy quiet possession of the Leased Premises.
(j) This Lease constitutes the entire agreement of the parties in
respect of the Lease by Tenant of the Leased Premises and
there are no understandings or agreements not incorporated in
this Lease. Any other written agreements by and between the
parties are terminated upon the commencement of the term of
this Lease. This Lease may not be modified except in a writing
executed by all parties hereto, or their permitted assignees.
17
<PAGE>
(k) Tenant has no right to light or air over the building or
underlying land.
(l) The word "Tenant" wherever used in this Lease shall be
considered to mean tenants in all cases where there is more
than one tenant and the necessary grammatical changes required
to make provisions hereof applicable to corporations,
partnerships or individuals shall in all cases be assumed as
though in each case fully expressed.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands
as of the date and year first above written.
LANDLORD: TENANT:
JORANDCOR, INC. CHRONIMED, INC.
By: By:
Its: Its:
