**Exhibit 10.14**

 

**SECOND AMENDMENT OF LEASE**

 

**THISSECOND AMENDMENT OF LEASE**(“Second Amendment”) isentered into this 22nd day of April, 2002, to that certain Lease(“Lease”) dated April 24, 1996, as amended January 31, 2001, (as amended, the“Lease”) between **CSM INVESTORS, INC.,**a Minnesota corporation (“Landlord”) and **DIGITALRIVER, INC.,** a Delaware corporation, (“Tenant”) for premisesconsisting of approximately 47,961 square feet (“Premises”) located at thestreet address of **9625 West 76thStreet, Suite 150, Eden Prairie, Minnesota**in the project commonlyknown as the **GOLDEN TRIANGLE BUSINESS CENTER**,as more particularly described in the Lease.

 

The Lease is hereby amended asfollows:

 

1.                                       **Section 1.2 Premises.**  Effective **October1, 2002,**the Premises shall be: (i) increased by approximately49,370 square feet of area (comprised of approximately 18,919 square feet ofoffice space, 17,191 square feet of production/tech space, and 13,260 squarefeet of warehouse space); and (ii) reduced by 15,042 square feet (comprised of10,547 square feet of office space and 4,495 square feet of warehouse space;for a total area of 82,289 square feet, as depicted on the site plan and floorplan attached hereto as **Revised Exhibits Aand B.**  Landlord agreesto provide Tenant early occupancy of the 49,370 square foot expansion area ofthe Premises as of **August 1, 2002,**for the purpose of installing its tenant improvements, furniture, fixtures andequipment, under the same terms and conditions contained in the Lease,exclusive of payment of Rent and Operating Expenses.

 

2.                                       Theexpansion area is leased to Tenant in its “as-is” condition, except that theHVAC, plumbing, and electrical systems shall be certified by licensedcontractors to be in good and working order as of October 1, 2002, and Landlordagrees to restripe the rear parking area for the building with the stripingplan depicted on **Revised Exhibit A.**

 

3.                                       **Section 1.3 Lease Term.**  Effective upon full execution of thisAgreement, the term of the Lease shall be extended for an additional twenty-six(26) month period commencing August 1, 2003 and expiring September 30, 2005.

 

4.                                       Effectiveupon full execution of this Agreement, the Base Rent shall be adjusted as setforth below:

 

| **Period**               |   | **Monthly Base Rent** |      | **Per Sq. Ft.** |   |
|--------------------------|--------|-----------------------|-----------|-----------------|--------|
| 05/01/02 – 09/30/02 |   | $                     | 31,186.80 |            | $      | 7.803 |   |
| 10/01/02 – 09/30/05 |   | $                     | 51,430.63 |            | $      | 7.500 |   |

 

5.                                       **Section 1.7 Pro Rata Share.**  Effective October 1, 2002, Tenant’s pro-ratashare of operating expenses shall be 54.12%.

 

6.                                       **Section 2.3 Definition of Operating Expenses**.  Section 2.3 of the Lease is amended toprovide that Operating Expenses shall also include (i)  all real property taxes, installments ofspecial assessments and governmental impositions of any kind whatsoever imposedupon Landlord by reason of its ownership, operation or management of theProject, including without limitation the so called Minnesota “state generaltax”, and legal fees incurred in connection with actions to reduce the same;and (ii)  all premiums, deductibles andretentions for insurance coverages Landlord is required to carry pursuant toSection 7.6 of the Lease or by its lender, or that Landlord

 

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otherwisedeems reasonably necessary to carry, including without limitation, propertyinsurance, commercial general liability insurance, and rent loss insurance.

 

7.                                       **Section 6.2 Tenant Improvements.**  Tenant shall coordinate, contract, financeand construct additional improvements to the Premises at Tenant’s sole cost andexpense, except as set forth in subparagraph F. of this section, including preparationof all necessary plans and drawings and payment of any and all SAC and WACcharges, under the following conditions:

 

A.                                   Priorto commencement of construction of the tenant improvements, Tenant shallforward to Landlord, for Landlord’s approval, copies of the proposed plans andspecifications of the proposed work, together with the final estimated cost ofthe work and a copy of the final construction contract for such work.  Said improvements may be performedincrementally, with each increment subject to the terms and conditions setforth herein, with Landlord’s total contribution not exceeding the Allowanceset forth in Section 7.F. below. Landlord’s approval of said plans and specifications shall not be unreasonablywithheld or delayed.

 

B.                                     Priorto commencement of construction of the tenant improvements, Tenant shallforward to Landlord names and addresses of all contractors and subcontractorswhich will be working in or on the Premises, and Tenant will post notices incontent and locations on the Premises acceptable to Landlord notifyingcontractors and subcontractors that work performed on the Premises is notlienable.

 

C.                                     Tenantshall be responsible for ensuring that all work complies with the approvedplans and specifications and applicable laws, codes, ordinances, regulationsand the like.

 

D.                                    Landlordshall have no responsibility for the quality, maintenance, repair orreplacement of the tenant improvements.

 

E.                                      Tenantshall indemnify, defend (with counsel reasonably approved by Landlord), andhold Landlord harmless from and against any and all claims, causes of action,damages or expenses (including, without limitation, mechanic’s liens) arisingout of, by reason of, or as a result of Tenant’s construction and installationof the tenant improvements.

 

F.                                      Landlordagrees to provide Tenant an amount not to exceed $250,000.00 (the “Allowance”)to be applied against the actual costs incurred by Tenant in making tenantimprovements to the Premises during the period of August 1, 2002 to September30, 2005 (including cabling and wiring of phone and computer stations), subjectto the following terms and conditions. Upon completion of the tenant improvements, Tenant shall deliver toLandlord the following documentation, all in form and content acceptable toLandlord:  (a) a sworn constructionstatement signed by Tenant and the general contractor confirming the total costof labor and materials provided for the tenant improvements;  (b) a copy of the construction contract and all change orders and amendmentsthereto, if any, relative to the tenant improvements; and (c) originalunconditional lien waivers verifying that Tenant has paid for the total cost ofthe tenant improvements (including without limitation, SAC and WAC charges)less the Allowance.  Within ten (10)days of receipt of such documentation, Landlord agrees to pay all or such partof the Allowance as applicable directly to Tenant’s general contractor.  It shall

 

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be a conditionprecedent of Landlord’s obligation to pay the Allowance that this Lease is infull force and effect and Tenant is not in default under any of the terms ofthis Lease.

 

**8.****                                      Section14.13 Option to Extend.**

 

A.                                   Tenantshall have the option (“Option”) to extend the term of the Lease for one (1)additional thirty-six (36) month term (the “Option Term”) under the same termsand conditions contained in the Lease, provided, however, that the Base Rentshall be adjusted to equal the then current market rate for similar space inthe Building, determined in accordance with ***Section 14.13.B.*** of this SecondAmendment.  Tenant may exercise eachOption term by delivering written notice to Landlord (“Renewal Notice”),stating its irrevocable intent to exercise the Option, not less than onehundred eighty (180) days and not more than three hundred sixty-five (365) daysprior to the expiration of the initial Lease Term.  In the event that Tenant fails to deliver timely notice of itsintent to exercise its Option, Tenant’s right to the Option shall be deemednull and void.  Conditions of theexercise of such Option shall be that Tenant is not in Default pursuant toSection 18 of the Lease and that the Lease is in full force and effect.

 

B.                                     MarketRate Determination.  If the market ratemust be determined in accordance with the provisions of ***Section 14.13.A.***above, the parties hereto agree as follows:

 

i.                       Withinfifteen (15) days following receipt of Tenant’s Renewal Notice for the OptionTerm, Landlord will submit to Tenant Landlord’s proposed market ratedetermination (“Landlord’s Proposed Market Rate”).

 

ii.                    IfTenant does not notify Landlord within ten (10) days after receipt ofLandlord’s Proposed Market Rate that Tenant disagrees with Landlord’s ProposedMarket Rate, then Landlord’s Proposed Market Rate shall be deemed approved andaccepted by Tenant.  If Tenant timelynotifies Landlord of Tenant’s disagreement with Landlord’s Proposed MarketRate, then the parties agree to negotiate in good faith for a period of thirty(30) days following Landlord’s receipt of Tenant’s notice of disagreement (the“Negotiation Period”) in an attempt to reach agreement on the market rate.  In connection therewith, each party shallsubmit to the other party such evidence as it then has to substantiate its proposedmarket rate.  If the market rate is notmutually agreed upon by the parties within the Negotiation Period, the RenewalNotice shall remain in full force and effect and the market rate shall bedetermined by arbitration in accordance with the commercial rules of theNational Aribtration Forum.

 

Upon thedetermination of the market rate pursuant to the foregoing terms, suchdetermination shall be final and binding upon the parties.  If for any reason the determination of themarket rate has not been made as of the commencement of the Option Term, thenTenant shall nevertheless pay Base Rent at Landlord’s Proposed Market Ratepending determination of the market rate pursuant to the mechanism describedabove.  Any rent paid by Tenant at arate other than the market rate determined pursuant to the foregoing termsshall be adjusted retroactively.  Anyand all fees and expenses charged by the Expert shall be divided equallybetween Landlord and Tenant, or alternatively, Landlord and 

 

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Tenant shalleach pay any and all fees and expenses incurred in connection with such party’sown Board member and the fees and expenses of the third Board member shall bedivided equally between Landlord and Tenant.

 

9.                                       **Miscellaneous.**  If any provision of the Lease isinconsistent with the provisions contained herein, then the provisions of thisSecond Amendment shall control.  Exceptas expressly modified herein, all other terms and conditions of the Lease shallremain unchanged, and in full force and effect.  This Second Amendment may be executed in counterparts, each ofwhich when so executed and delivered shall be deemed an original, but togethershall constitute one and the same instrument.

 
| **LANDLORD:**           |              | **TENANT:**             |
|-------------------------|-------------------|-------------------------|
|                    |              |                    |
| **CSM INVESTORS, INC.** |              | **DIGITAL RIVER, INC.** |
|                    |              |                    |
| By:                     | /s/ David Carland |                    | By: | /s/ Robert  E. Strawman |
|                    |              |                    |
| Print Name:             | David  Carland    |                    | Print Name: | Robert E.  Strawman |
|                    |              |                    |
| Print Title:            | V.P.              |                    | Print Title: | CFO |
|                         |                   |                         |  |  |  |  |  |  |

 

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**Revised Exhibit A**

 

[GRAPHIC]

 

| GOLDEN  TRIANGLE BUSINESS CENTER |   |   |
|----------------------------------|--------|--------|
|                             |   |   |
|                             |   |   |

 

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**Revised Exhibit B**

[GRAPHIC]

 

| DIGITAL  RIVER   |   |   |
|------------------|--------|--------|
| GOLDEN  TRIANGLE |   |   |

 

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