Loading...
9.0. EDSR 04-13-2000 FINAL • SOLARATTIC SUBLEASE THIS SUBLEASE, made this 31st day of March, 1997, by and between the City of Elk River Economic Development Authority, a Public Body Corporate and Politic (hereinafter called "Sublessor"), and SolarAttic, Inc., a Minnesota Corporation, (hereinafter called "Sublessee"); WITNESSETH, THAT: WHEREAS, Sublessor has leased certain space in an office/industrial complex known as the Elk River Business Incubator and located at 16820 Highway 10 in the City of Elk River, for the purpose of supporting the development and growth of high technology companies in the City of Elk River. Such space being leased by Sublessor shall be referred to herein as the "Elk River Business Incubator." WHEREAS, Sublessor is leasing the Elk River Business Incubator pursuant to the terms and conditions of that certain lease (hereinafter called "Prime Lease") dated March 18, 1997, between Larry Hickman (hereinafter called "Landlord"), as landlord, and Sublessor, as lessee, a true and correct copy of which is attached hereto as Exhibit A and made a part hereof. • WHEREAS, Sublessee desires to lease the space (3,546 sq. ft. in the Elk River Business Incubator designated on Exhibit B attached hereto and made a part hereof(hereinafter called the "Subleased Premises") and Sublessor desires to sublease the Subleased Premises to Sublessee. NOW, THEREFORE, in consideration of the rents to be paid and the covenants to be performed by the Sublessee as hereinafter set forth, Sublessor does hereby demise and sublease the Subleased Premises to the Sublessee, and Sublessee does hereby hire and take the Subleased Premises from Sublessor upon the terms and conditions hereinafter set forth. (1) Assumption of Obligations. Except as may be herein otherwise specifically provided, Sublessee shall have all the rights and privileges and assume and agree to keep, obey and perform all of the obligations, restrictions and conditions, agreements and covenants of the Sublessor as lessee under the Prime Lease as fully and to the same extent as if the provisions of the Prime Lease were set forth herein. Sublessee hereby accepts the demise and Sublease of the Subleased Premises expressly subject to all of the terms, covenants and conditions set forth in the Prime Lease, and agrees to comply with all of the terms, covenants and provisions thereof. Any failure by Sublessee to perform such duties, liabilities and obligations under the Prime Lease shall also be a default under this Sublease. • (2) Rent and Other.Charges. In consideration of the aforesaid subleasing, Sublessee covenants and agrees to pay to the Sublessor, without setoff or deduction whatsoever, except as \\elkriver\sys\shrdoc\eda\document\bisolar.doc 1 • set forth herein, rent in the amount of$472.80 per month payable on the fifteenth day of each month during the Term of April 15, 1997, to April 14, 1998, and $591.00 per month during the term of April 15, 1998, to April 14, 1999. In the event that the Term begins or ends on other than the first or last day of the month, rent shall be pro-rated for such partial month. Sublessor shall be responsible for payment of all rent due to the Landlord under the Prime Lease. (3) Term. Notwithstanding any provisions relating to the Term or Renewal Term contained in the Prime Lease, the Term of this Lease shall be for the period commencing on April 15, 1997, and terminating on April 14, 1999. (4) Quiet Enjoyment. Sublessor covenants that Sublessee, subject to the Prime Lease and on paying the rents and performing the covenants herein set forth, shall and may peaceably and quietly have, hold and enjoy the Subleased ?:remises for the Term hereof free of all claims made by persons claiming by, through or under Sublessor. Sublessor shall provide, at no cost to sublessee, all utilities described in the prime lease. (5) Exclusions. The following rights, if any, reserved to the Sublessor under the Prime Lease shall be reserved to the Sublessor, and Sublessee shall have no right therein: (a) The right to sublease, assign or sublet. (b) Any right on the part of the Sublessor under the Prime Lease to terminate • the Prime Lease in the event of damage by casualty or taking by eminent domain, the default of the Landlord, or for any reason whatsoever, the exercise of which shall release sublessee hereunder (c) Any option or right to extend the Term or any Renewal Term. (6) Maintenance. The Sublessee agrees to accept the Subleased Premises as of the commencement of the Term in their then "as is" condition and that they will take good care of the Subleased Premises, and will commit no waste, and will not do, suffer or permit to be done any injury to the same; that they will keep said Subleased Premises in at least as good order, condition and state of repair required of Sublessor under the Prime Lease, ordinary wear and tear excepted; that they will permit the Sublessor to enter onto the Subleased Premises at any and all reasonable times to inspect the same or for any other proper purpose without liability on the part of Sublessor for any loss or interruption of business occasioned thereby, and that they will not do or permit to be done any act or thing contrary to the covenants and agreements made by the Sublessor in the Prime Lease. Sublessee shall also, at their sole cost and expense, comply with all applicable local, state and federal laws, ordinances, codes and regulations, and with all rules and regulations promulgated by companies which from time to time insure against loss or damage to, or against injuries or deaths occurring on or about, the Subleased Premises. In no event shall Sublessee allow the Subleased Premises to be used for any use which makes void or voidable any insurance in force with respect to the Subleased Premises or makes it impossible to • obtain insurance, creates a public or private nuisance, or is illegal, unlawful, immoral, or is a hazardous business, trade, occupation, activity or purpose. Sublessor and sublessee agree that \\elhriver\sys\shrdoc\eda\document\bisolar.doc 2 the assembly and sale of attic based solar energy systems shall not be deemed a default of the • terms and conditions of this sublease. (7) Alterations. Sublessee agrees that any alterations or improvements will be made in good and workmanlike manner and that it will not make any alterations or improvements in or to the Subleased Premises except in compliance with Prime Lease and with all applicable laws, ordinances, codes and regulations and without obtaining the prior written consent of the Sublessor, but such consent will not be unreasonably withheld or unduly delayed if Landlord grants its consent thereto. Sublessor may require Sublessee, at the end of the term and at Sublessee's expense, to remove all alterations and improvements made by Sublessee and to repair any damage caused by such removal. (8) Liability of Sublessor: Assignment of Right of Action. Sublessor shall have no responsibility whatsoever with respect to the Subleased Premises or the condition thereof; provided, however, that the subleased premises shall be habitable. Sublessor shall not be liable for any nonperformance of or noncompliance with or breach or failure to observe any term, covenant or condition of the Prime Lease upon Landlord's part to be kept, observed, performed or complied with, or for any delay or interruption in Landlord's performing its obligations thereunder. Sublessor hereby assigns unto Sublessee, for so long as this Sublease shall be in force and effect, any and all rights and causes of action which it may have against Landlord with respect to the Subleased Premises due to defaults by Landlord under the Prime Lease. Sublessor agrees to cooperate with and join Sublessee in claims or suits brought by Sublessee against Landlord under the Prime Lease, provided that the costs and expenses of such participation shall be borne by Sublessee. (9) Insurance; Indemnification. Sublessee shall continuously maintain public liability insurance with respect to death or injury to persons and damage to or destruction of property occurring at or about the Subleased Premises. Such policy of insurance shall be in form and amount reasonably satisfactory to Sublessor, shall name Sublessor and/or Landlord as an additional insured party and shall be delivered to Sublessor. Sublessee hereby agrees to indemnify and hold harmless Sublessor from, and shall reimburse Sublessor for, all costs and expenses, including reasonable legal expenses, incurred by Sublessor in connection with the defense of all claims and demands of third persons, whether or not suit is brought, including but not limited to those for death, for personal injuries, or for property damage, arising out of any default of Sublessee in performing or observing any term, covenant, condition or provision of this Sublease, or out of the use or occupancy of the Subleased Premises by the Sublessee, or out of any of the acts or omissions of the Sublessee, its agents, representatives, employees, customers, guests, invitees or other persons who are doing business with Sublessee or who are at the Subleased Premises with Sublessee's consent. Sublessee, for itself and its insurers, hereby further expressly waives all claims against Sublessor for any and all damages to persons or property caused by or resulting from sublessee's negligence. Sublessee agrees that said insurance policies shall contain waiver of subrogation rights against Sublessor. • (10) Termination; Surrender of Subleased Premises. This Sublease shall terminate at the end of the term hereof or upon any default arising under the Prime Lease without the 1\elkriver\sys\shrdoc\eda\document\bisolar.doc 3 • necessity of any notice from either Sublessor or Sublessee to terminate the Sublease. Sublessee hereby agrees that they will peacefully and quietly vacate and surrender the Subleased Premises to the Sublessor at the expiration of the term, in as good order and repair as required under this Sublease and the Prime Lease, normal wear and tear excepted. It is further understood and agreed by and between the parties hereto that 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 said Prime Lease, this Sublease automatically shall be terminated except for the return of any prepaid rent in any form whatsoever. Sublessor shall have no liability to Sublessee due to the termination of the Prime Lease by reason of any default by Sublessee hereunder, by reason of any condemnation or destruction of the Subleased Subleased Premises, or by any other reason not within the control of Sublessor. (11) Sublease and Subletting. Sublesseee may not assign this Sublease or sublet all or any part of the Subleased Premises. Sublessee may not pledge this Sublease, or allow any liens to be placed hereon, or suffer this Sublease or any portion thereof to be attached or taken upon execution. (12) Sublessor's Right to Cure Defaults. If Sublessee shall default in the observance or performance of any of Sublessee's covenants, agreements or obligations hereunder, Sublessor may, but it is not obligated, and without limiting any other remedy which Sublessor may have by reason of such default, cure the default and charge the cost thereof to Sublessee including, without limitation, reasonable attorney's fees. Sublessee shall pay the same within ten (10) days • after receipt of an invoice therefore from Sublessor, together with interest thereon at the lesser of the rate of twelve percent (12%)per annum or the maximum rate allowed by law. (13) A. Default by Sublessee. If Sublessee shall default in the payment of any installment of rent or other monies to be paid under this Sublease, or if Sublessee shall default in the observance or performance of any of Sublessee's other covenants, agreements or obligations hereunder, or if any proceeding is commenced by or against Sublessee for the purpose of subjecting the assets of Sublessee to any law relating to bankruptcy or insolvency, or for appointment of a receiver for Sublessee or for any of Sublessee's assets, or if Sublessee makes a general Sublease of Sublessee's assets for the benefit of creditors; then Sublessor, at its option, after giving sublessee ten (10) days written notice during which time sublessee may cure such default, may terminate this Sublease, may reenter the Subleased Premises and remove all persons and property therefrom, and have,regain and enjoy possession of the Subleased Premises and, in addition, Sublessor shall have all of the rights and remedies against Sublessee as are available to Landlord against Sublessor pursuant to the Prime Lease. Sublessee hereby expressly waives service of any notice of Sublessor's intention to reenter and waives all right of restoration to possession of the Subleased Premises after reentry or after judgment for possession thereof. In case of any such termination, and in addition to any other remedies which Sublessor may have, Sublessee shall indemnify Sublessor for all damages Sublessor may incur by reason of such default, including the cost of recovering the Subleased • Premises, reasonable attorney's fees and expenses incurred in enforcing any term of this Sublease, and the rent reserved in this Sublease for the remainder of the Term, all of which \\ell:river\sys\shrdoc\eda\document\bisolar.doc 4 amounts shall be immediately due and payable to Sublessor. 1111 B. Default by Sublessor. If sublessor shall default in the observance or performance of any of sublessor's covenants, agreements, or obligations hereunder, sublessee shall have the right, after giving sublessor ten (10) days written notice, to terminate this sublease and to pursue all available remedies at law and in equity (14) Security Interest. Sublessor shall have a security interest in all exterior signs, floor coverings, or drapes, owned by Sublessee and installed on the Subleased Premises, for rent and other sums which may become due Sublessor, or upon any default, under this Sublease and the Prime Lease. Sublessee agrees to execute such UCC filings as Sublessor may require as necessary to perfect such security interest. (15) Expenses and Attorney's Fees. In the event legal action is commenced by either party to enforce its rights hereunder, the non-prevailing party shall pay the prevailing party's reasonable attorney's fees within thirty (30) days of receipt of an invoice therefore. (16) Relocation. In the event that the Landlord exercises its rights, if any under the Prime Lease to relocate the Subleased Premises, then Sublessor shall have the same right to relocate the Subleased Premises, and sublessor shall pay sublessee's reasonable costs for such relocation. • (17) Notice. Any notices or demands (not to include invoices) permitted or required hereunder shall be deemed given or made if, and shall not be deemed to have been delivered or made unless, in writing and deposited in the United States mails, registered or certified, postage prepaid, or deposited with a nationally recognized overnight courier service, addressed to Sublessor and Sublessee jointly as follows: If to Sublessor: City of Elk River Economic Development Authority Elk River City Hall P.O. Box 490 Elk River, Minnesota 55330-0490 Attention: Paul Steinman If to Sublessee: Ed Palmer, President SolarAttic, Inc. 15548 95th Circle NE Elk River, MN 55330-7228 which addresses may be changed from time to time by notice as above provided. Sublessee agrees to furnish Sublessor immediately upon Sublessee's receipt thereof any and all • communications received by Sublessee from the Landlord under the Prime Lease. Sublessee e:\shrdoc\eda\document\bisolar.doc 5 • further agrees to send to Sublessor concurrent notice of any notice or demand sent to said Landlord. (17) Relationship of the 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 Sublessee, the sole relationship between the parties hereto being strictly Sublessor and Sublessee. (18) Severability. If any term, condition or provision of this Sublease, or the application thereof to any person or circumstance, shall, to the extent be held to be invalid or unenforceable, the remainder hereof, and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or unenforceable, shall not be affected thereby, and this Sublease, and all of the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. IN WITNESS WHEREOF, the parties hereto have fully executed this Sublease on the day and year first written above. SUBLESSOR: City of Elk River Economic Development • Authority I / , ;/ By:(e4-4.-)..5e1\4. enc-fl„�,�-, Its: pfra4k....4-- Its: ` SUBLESSEE: SolarAttic, Inc. By: aWitness — . )311q1Its: 33 • e:\shrdoc\eda\document\bisolar.doc 6 Exhibit A Lease • \\elkriver\sys\shrdoc\eda\document\bisolar.doe 7 FINAL • First Amendment to: SolarAttic Memorandum of Understanding This First Amendment to SolarAttic Memorandum of Understanding (the "First Amendment"), is made and entered into this/ ay of7fla"'"t , by and between the City of Elk River Economic Development Authority (EDA), Larry Hickman (Hickman), Genesis Business Centers, LTD. (Genesis), and SolarAttic, Inc., a corporation organized and existing under the laws of the State of Minnesota (the "Company"). Whereas, the parties hereto entered into that certain SolarAttic Memorandum of Understanding dated March 31, 1997 (the "Agreement") regarding the company's participation as a member company in the Elk River Business Incubator ("ERBI") and as a recipient of certain services in connection therewith; Whereas, the Agreement included a sublease of certain premises (the • "Premises") within the ERBI wherein the Company was the tenant for a lease term expiring April 14, 1999; Whereas, the parties wish to enter into this First Amendment in order to extend the term of the occupancy of the Company at the ERBI for an additional one year; Now, therefore, in consideration of the foregoing and of the mutual promises and covenants contained in this First Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. Extension of Lease. The Company shall enter into the Lease Term Extension Agreement attached hereto as Exhibit A. II. Consideration. The parties hereby agree that the rent payable as provided in the Lease Term Extension Agreement attached hereto as Exhibit A is equal to approximately twenty percent (20%) of the rental value of the Premises. As further consideration for the services 411 provided to the Company hereunder, the Company, at the time of the execution of the Lease Term Extension Agreement attached hereto as FINAL Exhibit A, shall convey and issue to the EDA (in its capacity as sub- ", landlord), Hickman (in his capacity as building owner) and Genesis (in its capacity as business incubator consultant), the number of shares of voting common stock of the Company currently valued at $5 per share as follows: Shares Received EDA 1,418 Hickman 2,128 Genesis 1,418 Total Number of Shares 4,964 III. Continuing Validity of Agreement. Except as amended by this First Amendment, all of the terms and conditions of this Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties have set their hands and seals as of the date first-above written. CITY ' VER A THE �y P By 411' � By � / t/t/7 47) • Typed Nome �<<c- N• b.3.ry sr Typed Name Ea/PA&to e Title jt .v t - Title Preri;e64 e-o Date _ • VI Date '3/17/99 B a. _�P 'Typed ame ' T..Ste;►'444a.... Title EX.42Aa- , Date 3 • (q • 9c LARR KMpu.:2 Typ rmre rt.) Title ©Cvie'Z- Date 6/72 V GE.►'.. S : • • •' NIERS, LTD. B. //., moi- -.e. lam- AV .I X061 a� Date �� i \shrdoc\eda\document\lamdsola.doc FINAL • Exhibit A Lease Term Extension Agreement This Lease Term Extension Agreement is made this /7 day of /14144 , 899, by and between the City of Elk River Economic Development Authority, a Public Body Corporate and Politic (hereinafter called "Sublessor") and SolarAttic, Inc., a Minnesota Corporation (hereinafter called "Sublessee"); WITNESSETH, that: Whereas, Sublessor and Sublessee entered into sublease for a certain space in the Elk River Business Incubator pursuant to a sublease dated March 31, 1997, (the "Sublease"); and, Whereas, Sublessee desires to extend the term of the Sublease for the period beginning April 15, 1999, and ending April 14, 2000, and Sublessor desires to agree to such extension; Now, therefore, in consideration of the rents to be paid and the agreements hereinafter set forth, Sublessor agrees to this lease term extension. I. Extension of Term. The term of the Sublease shall be extended to include the period from April 15, 1999, through and including April 14, 2000. II. Rent. The rent for the extended sublease term shall be $664.88 per month. III. Continuing validity of Sublease. Except as specifically modified in this lease extension agreement, all of the terms and conditions of the sublease shall remain in full force and effect. IN WITNESS WHEREOF, the parties have set their hand and seals as of the date first-above written. SUBLESSOR SUBLESSEE CITY OF LK RIVER SOLA, INC. ECON! ' C f E LOPMENT AUTHORITY By �� 1 zfi✓ feW By '/ i�/9 Its and .��---t S/sp----- • Its E Ir ument la Q„d- f:\shrdoc\eda\document\1 amdsola.doc