exv10w2






EXHIBIT 10.2




AMENDMENT NO. 3 TO LEASE




     THIS AMENDMENT NO. 3 TO LEASE (“Amendment”) made as of April 30, 2008, by and between ST. PAUL
PROPERTIES, INC., a Delaware corporation (“Landlord”) and ATS MEDICAL, INC., a Minnesota
corporation (“Tenant”).



WITNESSETH:




     WHEREAS, Landlord and Tenant are parties to that certain Lease dated April 29, 2000 (the
“Original Lease”), for premises described therein, which premises were expanded pursuant to the
terms of Paragraph 1 thereof (such premises, as expanded, the “Original Premises”); and



     WHEREAS, Landlord and Tenant entered into a certain Amendment No. 1 to Lease dated May 1, 2001
(the “First Amendment”);



     WHEREAS,
Landlord and Tenant entered into a certain Amendment No. 2 to
Lease dated September 1,
2006 (the Original Lease, the First Amendment and the Second Amendment are collectively,
hereinafter the “Lease”); and



     WHEREAS, Landlord and Tenant wish to amend the Lease to reflect certain additional agreements
between them.



     NOW, THEREFORE, in consideration of the Premises and for good and valuable consideration, the
parties agree as set forth below.



     1. Defined Terms. Unless otherwise indicated, capitalized terms shall be defined in
the manner set forth in the Original Lease.



     2. Expansion of Premises.




     (a) Effective on May 1, 2008 (the “Expansion Space Commencement Date”), the Original
Premises shall be expanded to include an additional 2,465 rentable square feet, as generally
indicated on Exhibit A attached hereto and made a part hereof, (the “Expansion
Space”; the Original Premises and the Expansion Space may be referred to collectively herein
as the “Premises”), such that from and after the Expansion Space Commencement Date”) through
and including July 31, 2010 (the period from the Expansion Space Commencement Date through
and including July 31, 2010 is hereinafter the “Expansion Term”), the Premises (including
the Expansion Space) shall consist of approximately 25,374 rentable square feet.




(b) (i) Commencing on the Expansion Space Commencement Date and ending on July 31,
2008, Base Rent for the Premises shall be $132,452.28 per annum ($11,037.69 per
month);



 









 






     (ii) Commencing on August 1, 2008, through and including July 31, 2009,
Base Rent for the Premises shall be $134,482.20 per annum ($11,206.85 per
month); and




     (iii) Commencing on August 1, 2009, through and including July 31, 2010, Base
Rent for the Premises shall be $137,273.34 per annum ($11,439.45 per month),




all of which Base Rent shall, in all cases, be paid at the time and in the manner
set forth in the Lease for the payment of Base Rent, it being understood and agreed
that, during the Expansion Term, each and every use of the term “Base Rent” in the
Lease shall mean Base Rent as amended in this subparagraph (b).



     3. Amendments. From and after the Expansion Space Commencement Date:





     (a) Tenant’s Proportionate Share as shown on the Data sheet shall be 18.19%;




     (b) Exhibit A attached to the Original Lease shall be deleted and Exhibit A
attached to this Amendment substituted therefor.



     4. Additional Agreements.





     (a) The parties agree that, to the extent Tenant timely and properly exercises the
renewal option granted by Paragraphs 5(d) and (e) of the Second Amendment, the lease of the
Expansion Space shall be renewed as well, such that, during such renewal term, the Premises
shall consist of approximately 25,374 rentable square feet.




     (b) Replacement of Tank; Restoration of Premises. Pursuant to Paragraph 3 of
the Original Lease, Tenant installed an above-ground liquid nitrogen storage tank adjacent
to the Premises, referred to in the Original Lease as the “Tank.” Tenant wishes to replace
the Tank with a larger tank (the “Replacement Tank”), as shown on the sketch attached to
this Amendment as Exhibit B and in accordance with plans attached to this Amendment
as Exhibit C, each made a part hereof. Landlord agrees to allow the installation
and operation of the Replacement Tank, at Tenant’s sole cost and expense, subject to the
terms and conditions of this Amendment and, upon installation, the Replacement Tank shall,
for all purposes under the Lease, be the “Tank.” Such installation and operation shall be
subject to the terms and conditions of Paragraph 3 of the Original Lease, including, without
limitation, the obligation, at Tenant’s sole cost and expense, of obtaining any necessary
permits from any governmental entity or agency with jurisdiction. At its sole cost and
expense, Tenant shall remove and dispose of the original Tank and its contents in accordance
with all applicable laws and regulations. Tenant shall defend, indemnify and hold Landlord
harmless from and against any and all claims, actions, proceedings, damages, judgments,
costs and expenses, including, without limitation, attorneys’ fees and costs arising from or
related to, the removal and disposal of the original Tank and its contents and the
installation, operation and removal of the Replacement Tank. Tenant’s obligations under the
foregoing sentence shall be in addition to, and not instead of any indemnification and hold
harmless agreement under the Lease. The provisions of this paragraph shall survive the
expiration or earlier termination of this Lease.



 









 






     (c) As partial consideration for Landlord’s agreement to allow the installation and
operation of the Replacement Tank, Tenant agrees, notwithstanding the provisions of
Paragraph 7 of the Original Lease, upon the expiration or earlier termination of the Term
(as the same may be extended pursuant to the Second Amendment), Tenant shall, at its sole
cost and expense (a) remove the Replacement Tank; and (b) return the Premises to the
condition in which they were delivered to Tenant on the Commencement Date, with Landlord’s
Work (as shown on Exhibit B-1 to the Original Lease) completed, reasonable wear and tear
excepted. It is understood and agreed that the requirements of subparagraph (b) above
include, without limitation, restoration of the two restrooms located in the Premises (to
the extent Tenant has removed said restrooms) in compliance with all then-applicable codes
and regulations.




     (d) Landlord and Tenant agree that on the Expansion Commencement Date, Tenant shall
accept the Expansion Space in its then AS-IS, WITH ALL FAULTS CONDITION. Tenant
acknowledges that neither Landlord nor any agent or employee of Landlord has made any
representation or warranty with respect to the Expansion Space or any other portion of the
Building or the Project, including, without limitation, any representation or warranty with
respect to the suitability or fitness of the Expansion Space, the Premises, the Building or
any other portion of the Project for the conduct of Tenant’s business in the Expansion Space
or Premises.




     (e) Each of the parties agrees that it has had no dealings with any broker other than
United Properties Brokerage, LLC, and each party hereby agrees to defend, indemnify and hold
the other harmless from and against all costs, expenses, attorneys’ fees or other liability
for commissions or other compensation or charges claimed by any broker or agent other than
the brokers listed above claiming by or through Landlord or Tenant, respectively, with
respect to this Amendment.




     (f) Landlord agrees that the plumbing and mechanical systems serving the Expansion
Space shall be in good working order on the Expansion Space Commencement Date.



     5. Reference to and Effect on the Lease.





     (a) Upon the effectiveness of this Amendment, each reference in the Lease to “this
Lease”, “hereunder”, “hereof”, “herein” or words of like import referring to the Lease shall
mean and be a reference to the Lease as amended hereby.




     (b) Except as specifically set forth above, the Lease remains in full force and effect
and is hereby ratified and confirmed.



 









 






     (c) Wherever there exists a conflict between this Amendment and the Lease, the
provisions of this Amendment shall control.



     6. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Minnesota.




     7. Counterparts. This Amendment may be executed in counterparts, all of which, when
taken together, shall constitute one and the same original.



     8. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.



     9. Time of Essence. Time shall be of the essence as to each and every provision of
this amendment.



SIGNATURE PAGE FOLLOWS




 









 








     IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.



	 	 	 	 	 	 	 	 	 	 	 
	TENANT:	 	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ATS MEDICAL, INC.	 	 	 	ST. PAUL PROPERTIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

	 	/s/ Michael Kramer
	 	 	 	By: 
	 	/s/ Michael D. Elnicky	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name: Michael Kramer	 	 	 	Name: Michael D. Elnicky	 	 
	Title: CFO	 	 	 	Title: Asset Manager	 	 







 









 








EXHIBIT A




Depiction of Original Premises and Expansion Space





 









 








EXHIBIT B




Sketch Plan of Tank





 









 








EXHIBIT C




Plans for Tank