Exhibit 10.1


 


LEASE


 


By and Between


 


Utah State
Retirement Investment Fund


(“Landlord”)


 


AND


 


Winmark
Corporation


(“Tenant”)


 


Multi-Tenant
Office Lease


 


06-05-97


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1 -

  	
  TERM

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 -

  	
  USE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 -

  	
  RENTALS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 -

  	
  CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 -

  	
  POSSESSION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 -

  	
  TENANT’S PRO RATA SHARE OF REAL
  ESTATE TAXES AND OPERATING EXPENSES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 -

  	
  UTILITIES AND SERVICE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 -

  	
  NON-LIABILITY OF LANDLORD

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 -

  	
  CARE OF PREMISES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 -

  	
  RESTRICTIONS CONCERNING USE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 -

  	
  INSPECTION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 -

  	
  ALTERATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 -

  	
  SIGNS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 -

  	
  COMMON AREAS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 -

  	
  ASSIGNMENT AND SUBLETTING

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16 -

  	
  LOSS BY CASUALTY

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17 -

  	
  WAIVER OF SUBROGATION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 18 -

  	
  EMINENT DOMAIN

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19 -

  	
  SURRENDER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20 -

  	
  NON-PAYMENT OF RENT, DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 21 -

  	
  LANDLORD’S DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 22 -

  	
  HOLDING OVER

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23 -

  	
  SUBORDINATION

  	
   

  



 


1

















 


	
  ARTICLE 24 - INDEMNITY,
  INSURANCE AND SECURITY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 25 - NOTICES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 26 - APPLICABLE LAW

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 27 - MECHANICS’ LIEN

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 28 - INTENTIONALLY
  DELETED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 29 - BROKERAGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 30 - INTENTIONALLY
  DELETED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3l - ESTOPPEL
  CERTIFICATES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 32 - GENERAL

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 33 - EXCULPATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 34 - SECURITY DEPOSIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  35 – OPTION TO EXTEND TERM

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  36 – RIGHT TO ADDITIONAL SPACE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  37 – STORAGE SPACE 

  	
   

  	
   

  



 


2

















 


LEASE SUMMARY SHEET


 


	
  1.

  	
   

  	
  Landlord:

  	
   

  	
  Utah State Retirement
  Investment Fund, an independent agency of the State of Utah

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  CB Richard Ellis Investors

  
	
   

  	
   

  	
   

  	
   

  	
  515 South Flower Street

  
	
   

  	
   

  	
   

  	
   

  	
  31st Floor

  
	
   

  	
   

  	
   

  	
   

  	
  Los Angeles, California
  90071-2233

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Director of Asset
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  CB Richard Ellis

  
	
   

  	
   

  	
   

  	
   

  	
  510 Marquette Ave.,
  Suite 250

  
	
   

  	
   

  	
   

  	
   

  	
  Minneapolis, MN 55435

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Property Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Tenant:

  	
   

  	
  Winmark Corporation, a
  Minnesota corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Tenant’s Address:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  A.

  	
   

  	
  Prior to the
  commencement of the Term:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  4200 Dahlberg Drive,
  Suite 100

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Golden Valley, MN 55422

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  B.

  	
   

  	
  Subsequent to
  commencement of the Term if different from the address of the Premises:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Premises:

  	
   

  	
   

  	
  605 U.S. Highway 169, Suites
  150, 310, 350, 375, 385, and 400

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Plymouth, MN 55441

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Containing approximately 33,513
  rentable square feet as follows:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  ·      Suite 150, containing approximately 5,606 rentable
  square feet (the “First Floor Space”)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  ·      Suites 310, 350, 375, and 385, containing approximately 9,758
  rentable square feet (the “Third Floor Space”)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  ·      Suite 400, containing approximately 18,149 rentable
  square feet (the “Fourth Floor Space”)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Term of Lease:

  	
  Ten (10) years and Six
  (6) months.

  
									



 


3

















 


6.             Rent:


 


	
  Months

  	
   

  	
  Floor

  	
   

  	
  Minimum 

  Rental 

  per 

  Square 

  Foot

  	
   

  	
  Annual Minimum 

  Rental

  	
   

  	
  Monthly 

  Minimum Rental 

  (divided)

  	
   

  	
  Total Monthly 

  Minimum Rental

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
  Months
  1-6*

  	
   

  	
  3rd

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.00

  	
   

  	
  $

  	
  67,272.00

  	
   

  	
  $

  	
  5,606.00

  	
   

  	
   

  	
   

  
	
  Months
  7-18

  	
   

  	
  3rd

  	
   

  	
  $

  	
  14.50

  	
   

  	
  $

  	
  141,491.00

  	
   

  	
  $

  	
  11,790.92

  	
   

  	
  $

  	
  39,326.96

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  14.50

  	
   

  	
  $

  	
  263,160.50

  	
   

  	
  $

  	
  21,930.04

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.25

  	
   

  	
  $

  	
  68,673.50

  	
   

  	
  $

  	
  5,722.79

  	
   

  	
   

  	
   

  
	
  Months
  19-30

  	
   

  	
  3rd

  	
   

  	
  $

  	
  14.75

  	
   

  	
  $

  	
  143,930.50

  	
   

  	
  $

  	
  11,994.21

  	
   

  	
  $

  	
  40,025.15

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  14.75

  	
   

  	
  $

  	
  267,697.75

  	
   

  	
  $

  	
  22,308.15

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.50

  	
   

  	
  $

  	
  70,075.00

  	
   

  	
  $

  	
  5,839.58

  	
   

  	
   

  	
   

  
	
  Months
  31-42

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.00

  	
   

  	
  $

  	
  146,370.00

  	
   

  	
  $

  	
  12,197.50

  	
   

  	
  $

  	
  40,723.33

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.00

  	
   

  	
  $

  	
  272,235.00

  	
   

  	
  $

  	
  22,686.25

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.75

  	
   

  	
  $

  	
  71,476.50

  	
   

  	
  $

  	
  5,956.38

  	
   

  	
   

  	
   

  
	
  Months
  43-54

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.25

  	
   

  	
  $

  	
  148,809.50

  	
   

  	
  $

  	
  12,400.79

  	
   

  	
  $

  	
  41,421.52

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.25

  	
   

  	
  $

  	
  276,772.25

  	
   

  	
  $

  	
  23,064.35

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.00

  	
   

  	
  $

  	
  72,878.00

  	
   

  	
  $

  	
  6,073.17

  	
   

  	
   

  	
   

  
	
  Months
  55-66

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.50

  	
   

  	
  $

  	
  151,249.00

  	
   

  	
  $

  	
  12,604.08

  	
   

  	
  $

  	
  42,119.71

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.50

  	
   

  	
  $

  	
  281,309.50

  	
   

  	
  $

  	
  23,442.46

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.25

  	
   

  	
  $

  	
  74,279.50

  	
   

  	
  $

  	
  6,189.96

  	
   

  	
   

  	
   

  
	
  Months
  67-78

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.75

  	
   

  	
  $

  	
  153,688.50

  	
   

  	
  $

  	
  12,807.38

  	
   

  	
  $

  	
  42,817.90

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.75

  	
   

  	
  $

  	
  285,846.75

  	
   

  	
  $

  	
  23,820.56

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.50

  	
   

  	
  $

  	
  75,681.00

  	
   

  	
  $

  	
  6,306.75

  	
   

  	
   

  	
   

  
	
  Months
  79-90

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.00

  	
   

  	
  $

  	
  156,128.00

  	
   

  	
  $

  	
  13,010.67

  	
   

  	
  $

  	
  43,516.09

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.00

  	
   

  	
  $

  	
  290,384.00

  	
   

  	
  $

  	
  24,198.67

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.75

  	
   

  	
  $

  	
  77,082.50

  	
   

  	
  $

  	
  6,423.54

  	
   

  	
   

  	
   

  
	
  Months
  91-102

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.25

  	
   

  	
  $

  	
  158,567.50

  	
   

  	
  $

  	
  13,213.96

  	
   

  	
  $

  	
  44,214.27

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.25

  	
   

  	
  $

  	
  294,921.25

  	
   

  	
  $

  	
  24,576.77

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  14.00

  	
   

  	
  $

  	
  78,484.00

  	
   

  	
  $

  	
  6,540.33

  	
   

  	
   

  	
   

  
	
  Months
  103-114

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.50

  	
   

  	
  $

  	
  161,007.00

  	
   

  	
  $

  	
  13,417.25

  	
   

  	
  $

  	
  44,912.46

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.50

  	
   

  	
  $

  	
  299,458.50

  	
   

  	
  $

  	
  24,954.88

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  14.25

  	
   

  	
  $

  	
  79,885.50

  	
   

  	
  $

  	
  6,657.13

  	
   

  	
   

  	
   

  
	
  Months
  115-126

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.75

  	
   

  	
  $

  	
  163,446.50

  	
   

  	
  $

  	
  13,620.54

  	
   

  	
  $

  	
  45,610.65

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.75

  	
   

  	
  $

  	
  303,995.75

  	
   

  	
  $

  	
  25,332.98

  	
   

  	
   

  	
   

  



 


7.             Security
Deposit:        $69,937.78, subject to
reduction pursuant to Section 34 herein.


 






* In
addition to relieving Tenant of any obligation to make Minimum Rental payments,
Tenant’s obligation to pay Operating Expenses and Real Estate Taxes shall also
be abated during this six (6) month period.


 


4

















 


This Lease Summary Sheet
information is incorporated into and made a part of the Lease Agreement
attached hereto. In the event of any conflict between any Summary Sheet
information and the Lease Agreement, the Lease Agreement shall control. This
Lease Agreement includes the following Exhibits, all of which are made a part
of this Lease Agreement. Exhibits: Exhibit A-1 (Graphic Location of the
Premises); Exhibit A-2 (Legal Description for the Building); Exhibit B,
if attached (Tenant Work Fundings); Exhibit C (Executive
Parking Stalls); Exhibit D (Rights to Additional Space).


 


5
















 


MULTI-TENANT OFFICE LEASE AGREEMENT (NET)


 


THIS LEASE AGREEMENT
(hereinafter called the “Lease Agreement”) made as of the 26th day of September, 2008, by and
between Utah State Retirement Investment Fund, an independent agency of the
State of Utah, having offices at c/o CB Richard Ellis, 510
Marquette Ave., Suite 250, Minneapolis (hereinafter called the “Landlord”),
and Winmark Corporation, a Minnesota corporation (hereinafter called the “Tenant”).


 


WITNESSETH


 


FOR
AND IN CONSIDERATION of the sum of One Dollar ($1.00) in hand paid by each of
the parties to the other, and other good and valuable consideration, receipt
and sufficiency of which is hereby acknowledged, Landlord does hereby lease and
let unto Tenant, and Tenant does hereby hire, lease and take from Landlord, those areas outlined in
red on Exhibit A-1 attached hereto, and by this reference incorporated
herein, and described as Suite 150 on the
first floor of the Building, consisting of approximately 5,606 square feet of
space (the “First Floor Space”), Suites 310, 350, 375 and 385 on the third
floor of the Building, consisting of approximately 9,758 square feet of space
(the “Third Floor Space”) and, Suite 400 on the fourth floor of the
Building consisting of approximately 18,149 rentable square feet (the “Fourth
Floor Space”), for a total of 33,513 rentable square feet, (the First Floor Space, the Third Floor Space and the Fourth Floor
Space, are hereinafter collectively
called the “Premises”) at 605 Waterford Park (hereinafter called the “Building”)
in the City of Plymouth, County of Hennepin, State of Minnesota.
The term Building as it is used herein shall consist of the land and building(s) set
forth in Exhibit A-2 hereto.


 


ARTICLE 1
- TERM


 


To
have and to hold said Premises for a term of ten (10) years
and six (6) months, commencing on the later of February 1, 2009, or upon substantial completion
of the leasehold improvements and terminating ten years
and six (6) months thereafter (hereinafter called the “Term”)
upon the rentals and subject to the conditions set forth in this Lease
Agreement, and the Exhibits attached hereto. The commencement and termination
dates are specifically subject to the provisions of Article 5 hereof.


 


ARTICLE 2
- USE


 


The
Premises shall be used by the Tenant solely for the following purposes: general office use.


 


ARTICLE 3
- RENTALS


 


Tenant
agrees to pay to Landlord as minimum rental (hereinafter called “Minimum Rental”)
for the Premises, without notice set-off or demand, the amounts set
forth in the table below, said monthly installments to be due and
payable by Tenant in advance on the first day of each calendar month during the
Term of this Lease Agreement, or any extension or renewal thereof, at the
office of Landlord set forth in the preamble to this Lease Agreement or at such
other place as Landlord may designate. In the event of any fractional calendar
month, Tenant shall pay for each day in such partial month a rental equal to
1/30 of the Minimum Rental. For example, if the Tenant
first occupies the Premises on the 19th of January, the Tenant will pay 12/30 of the
Minimum Rental for the Premises in January.  Tenant agrees
to pay, as Additional Rental, which shall be collectible to the same extent as
Minimum Rental, all amounts which may become due to Landlord hereunder and any
tax, charge or fee that may be levied, assessed or imposed upon or measured by
the rents reserved hereunder by any governmental authority acting under any
present or future law before any fine, penalty, interest or costs may be added
thereto for 


 


6

















 


non-payment. Pursuant to Article 6
hereof, Landlord’s estimated Operating Expenses for 2008,
are $3.87 per square foot and estimated Real
Estate Taxes payable in 2008 are $7.09 per square foot.


 


	
  Months

  	
   

  	
  Floor

  	
   

  	
  Minimum 

  Rental per 

  Square 

  Foot

  	
   

  	
  Annual Minimum 

  Rental

  	
   

  	
  Monthly 

  Minimum Rental 

  (divided)

  	
   

  	
  Total Monthly 

  Minimum Rental

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
  Months
  1-6*

  	
   

  	
  3rd

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.00

  	
   

  	
  $

  	
  67,272.00

  	
   

  	
  $

  	
  5,606.00

  	
   

  	
   

  	
   

  
	
  Months
  7-18

  	
   

  	
  3rd

  	
   

  	
  $

  	
  14.50

  	
   

  	
  $

  	
  141,491.00

  	
   

  	
  $

  	
  11,790.92

  	
   

  	
  $

  	
  39,326.96

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  14.50

  	
   

  	
  $

  	
  263,160.50

  	
   

  	
  $

  	
  21,930.04

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.25

  	
   

  	
  $

  	
  68,673.50

  	
   

  	
  $

  	
  5,722.79

  	
   

  	
   

  	
   

  
	
  Months
  19-30

  	
   

  	
  3rd

  	
   

  	
  $

  	
  14.75

  	
   

  	
  $

  	
  143,930.50

  	
   

  	
  $

  	
  11,994.21

  	
   

  	
  $

  	
  40,025.15

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  14.75

  	
   

  	
  $

  	
  267,697.75

  	
   

  	
  $

  	
  22,308.15

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.50

  	
   

  	
  $

  	
  70,075.00

  	
   

  	
  $

  	
  5,839.58

  	
   

  	
   

  	
   

  
	
  Months
  31-42

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.00

  	
   

  	
  $

  	
  146,370.00

  	
   

  	
  $

  	
  12,197.50

  	
   

  	
  $

  	
  40,723.33

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.00

  	
   

  	
  $

  	
  272,235.00

  	
   

  	
  $

  	
  22,686.25

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  12.75

  	
   

  	
  $

  	
  71,476.50

  	
   

  	
  $

  	
  5,956.38

  	
   

  	
   

  	
   

  
	
  Months
  43-54

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.25

  	
   

  	
  $

  	
  148,809.50

  	
   

  	
  $

  	
  12,400.79

  	
   

  	
  $

  	
  41,421.52

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.25

  	
   

  	
  $

  	
  276,772.25

  	
   

  	
  $

  	
  23,064.35

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.00

  	
   

  	
  $

  	
  72,878.00

  	
   

  	
  $

  	
  6,073.17

  	
   

  	
   

  	
   

  
	
  Months
  55-66

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.50

  	
   

  	
  $

  	
  151,249.00

  	
   

  	
  $

  	
  12,604.08

  	
   

  	
  $

  	
  42,119.71

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.50

  	
   

  	
  $

  	
  281,309.50

  	
   

  	
  $

  	
  23,442.46

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.25

  	
   

  	
  $

  	
  74,279.50

  	
   

  	
  $

  	
  6,189.96

  	
   

  	
   

  	
   

  
	
  Months
  67-78

  	
   

  	
  3rd

  	
   

  	
  $

  	
  15.75

  	
   

  	
  $

  	
  153,688.50

  	
   

  	
  $

  	
  12,807.38

  	
   

  	
  $

  	
  42,817.90

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  15.75

  	
   

  	
  $

  	
  285,846.75

  	
   

  	
  $

  	
  23,820.56

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.50

  	
   

  	
  $

  	
  75,681.00

  	
   

  	
  $

  	
  6,306.75

  	
   

  	
   

  	
   

  
	
  Months
  79-90

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.00

  	
   

  	
  $

  	
  156,128.00

  	
   

  	
  $

  	
  13,010.67

  	
   

  	
  $

  	
  43,516.09

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.00

  	
   

  	
  $

  	
  290,384.00

  	
   

  	
  $

  	
  24,198.67

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  13.75

  	
   

  	
  $

  	
  77,082.50

  	
   

  	
  $

  	
  6,423.54

  	
   

  	
   

  	
   

  
	
  Months
  91-102

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.25

  	
   

  	
  $

  	
  158,567.50

  	
   

  	
  $

  	
  13,213.96

  	
   

  	
  $

  	
  44,214.27

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.25

  	
   

  	
  $

  	
  294,921.25

  	
   

  	
  $

  	
  24,576.77

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  14.00

  	
   

  	
  $

  	
  78,484.00

  	
   

  	
  $

  	
  6,540.33

  	
   

  	
   

  	
   

  
	
  Months
  103-114

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.50

  	
   

  	
  $

  	
  161,007.00

  	
   

  	
  $

  	
  13,417.25

  	
   

  	
  $

  	
  44,912.46

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.50

  	
   

  	
  $

  	
  299,458.50

  	
   

  	
  $

  	
  24,954.88

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1st

  	
   

  	
  $

  	
  14.25

  	
   

  	
  $

  	
  79,885.50

  	
   

  	
  $

  	
  6,657.13

  	
   

  	
   

  	
   

  
	
  Months
  115-126

  	
   

  	
  3rd

  	
   

  	
  $

  	
  16.75

  	
   

  	
  $

  	
  163,446.50

  	
   

  	
  $

  	
  13,620.54

  	
   

  	
  $

  	
  45,610.65

  	
   

  
	
   

  	
   

  	
  4th

  	
   

  	
  $

  	
  16.75

  	
   

  	
  $

  	
  303,995.75

  	
   

  	
  $

  	
  25,332.98

  	
   

  	
   

  	
   

  



 


ARTICLE 4
- CONSTRUCTION


 


If any initial improvements to the Premises (“Tenant Improvements”)
are to be made, the provisions governing the planning, construction, scope of
work and terms and payment, shall be set forth 


 










* In addition to relieving Tenant of any obligation to make Minimum
Rental payments, Tenant’s obligation to pay Operating Expenses and Real Estate
Taxes shall also be abated during this six (6) month period.


 


7





















 


in Exhibit B, which,
if attached hereto, is incorporated herein by this reference. If the parties
have agreed to plans and/or a description for said Tenant Improvements, the
same will be attached hereto as Exhibit A-3 and, if so attached, is
incorporated herein by this reference.


 


ARTICLE 5
- POSSESSION


 


A.    Except as otherwise provided, Landlord
shall deliver possession of the Premises on or before the date hereinabove
specified for commencement of the Term, but delivery of possession prior to
such commencement date shall not affect the expiration date of this Lease
Agreement.  Failure
of Landlord to deliver possession of the Premises by the date hereinabove
provided, due to any cause beyond Landlord’s
control, or time required for construction delays due to material shortages,
strikes, or acts of God, shall automatically postpone the date of commencement
of the Term of this Lease Agreement and shall extend the termination date by
periods equal to those which shall have elapsed between and including the date
hereinabove specified for commencement of the Term hereof and the date on which
possession of the Premises is delivered to the Tenant.  Landlord agrees to use
commercially reasonable efforts to ensure that the entire Premises is free of
any other tenants by November 1, 2008.


 


B.    The rentals herein reserved shall
commence on the first day of the Term, provided, Landlord
provides Tenant with notice on or before October 28, 2008 that the entire
Premises has been vacated of other tenants and that the entire Premises is
available for purposes of constructing the improvements described in Exhibit B,
such construction to be substantially completed within ninety (90) days of the
notice, subject to force majeure.  In the
event Landlord is delayed from providing such notice and said delay continues
until December 31, 2008, Tenant may, at its option, by notice in writing
to Landlord within ten (10) days thereafter, cancel this Lease, in which
event the parties shall be discharged from all obligations hereunder; provided
further, however, that if such written notice of Tenant is not received by
Landlord within said ten (10) day period, Tenant’s right to cancel this
Lease under this Article 5 shall terminate and be of no further force or
effect.  Provided further, that if Landlord
shall be delayed in delivery of the Premises to Tenant due to Tenant’s failure
to reasonably agree to the Plans, or by
Tenant’s failure to pay for the costs of the Tenant Improvements, then in such
case the rental shall be accelerated by the number of days of such delay, and
the rentals shall commence the same as if occupancy had been taken by Tenant.
Prior to the commencement of the Term, Landlord shall have no responsibility or
liability for loss or damage to fixtures, facilities or equipment installed or
left on the Premises. By occupying the Premises as a Tenant as outlined in Article 1, Tenant shall be conclusively
deemed to have accepted the same and to have acknowledged that the Premises are
in the condition required by this Lease Agreement.  Should the commencement of the rental
obligations of Tenant under this Lease Agreement occur for any reason on a day
other than the first day of a calendar month, then in that event solely for the
purposes of computing the Term of this Lease Agreement, the commencement date
of the Term shall become and be the first day of the first full calendar month
following the date when Tenant’s rental obligation commences, or the first day
of the first full calendar month following the commencement date set out in Article 1
(if such is other than the first date of a calendar month), whichever date is
later, and the termination date shall be adjusted accordingly; provided
however, that the termination date shall be the last day of a calendar month,
which date shall in no event be earlier than the termination date set out in Article 1.
Immediately after Tenant’s occupancy of the Premises the Landlord and Tenant
shall execute a ratification agreement 


 


8





















 


which shall set
forth the final commencement and termination dates for the Term and shall
acknowledge the Minimum Rental, the square footage of the Premises, and
delivery of the Premises in the condition required by this Lease
Agreement.  Landlord represents and warrants that the Premises is structurally sound
and up to all relevant occupancy standards, has quality windows and a proper
and sufficient HVAC system, both of which are in good working order, and has
obtained all necessary easements, zoning, and other permits to provide Tenant
with a commercial space designed for general office use.  Except as specifically provided in the
foregoing sentence, Tenant accepts the
Premises and any improvements thereto in their “AS IS – WITH ALL FAULTS”
condition upon delivery of the same from Landlord and, except as set forth in Exhibit B,
Landlord shall not bear the cost or expense for any improvements, hook-ups or
other items necessitated by Tenant’s initial occupancy of the Premises.


 


ARTICLE 6
- TENANT’S PRO RATA SHARE OF REAL ESTATE TAXES AND OPERATING EXPENSES


 


A.    Subject to the abatement of Real Estate Taxes and Operating Expenses
set forth in Article 3 herein or Article 5 herein, during
each full or partial calendar year during the Term of this Lease Agreement,
Tenant shall pay to Landlord, as Additional Rental, an amount equal to the Real
Estate Taxes and Operating Expenses (both as hereinafter defined) per square
foot of rentable area in the Building multiplied by the number of square feet
of rentable area in the Premises prorated for the period that Tenant occupied
the Premises. Notwithstanding the preceding sentence, Tenant’s share of the
following Operating Expenses shall be computed on the basis of the cost of said
expenses per rentable square foot of area within the Building actually
occupied: cleaning, management, and energy expenses.


 


B.    Landlord
shall, each year during the Term of this Lease Agreement, give Tenant an
estimate of Operating Expenses and Real Estate Taxes payable per square foot of
rentable area for the coming calendar year. Tenant shall pay, as Additional
Rental, along with its monthly Minimum Rental payments required hereunder,
one-twelfth (1/12) of such estimated Operating Expenses and Real Estate Taxes
and such Additional Rental shall be payable until subsequently adjusted for the
following year pursuant to this Article.


 


C.    As soon
as possible after the expiration of each calendar year, Landlord shall
determine and certify to Tenant the actual Operating Expenses and Real Estate
Taxes for the previous year per square foot of rentable area in the Building
and the amount applicable to the Premises. If such statement shows that Tenant’s
share of Operating Expenses and Real Estate Taxes exceeds Tenant’s estimated
monthly payments for the previous calendar year, then Tenant shall, within
twenty (20) days after receiving Landlord’s certification, pay such deficiency
to Landlord. In the event of an overpayment by Tenant, such overpayments shall
be refunded to Tenant, at the time of certification, in the form of an
adjustment in the Additional Rental next coming due, or if at the end of the
Term by a refund.


 


D.    Tenant shall have the right, once each calendar year, to reasonably
review supporting data for any portion of a Landlord’s Statement in accordance
with the following procedure:


 


9





















 


1.     Tenant
shall, within sixty (60) days after any such Landlord’s Statement is delivered,
deliver a written notice to Landlord specifying that Tenant desires to review
Landlord’ records supporting such Landlord’s Statement, provided that Tenant
shall pay to Landlord all amounts due from Tenant to Landlord as specified in
the Landlord’s Statement within the time period specified above.  Except
as expressly set forth in subsection (3) below and elsewhere in this
Lease, in no event shall Tenant be entitled to withhold, deduct, or offset any
monetary obligation of Tenant to Landlord under the Lease (including, without
limitation, Tenant’s obligation to make all payments of Base Rent and all
payments for Tenant’s share of Property Taxes and Operating Expenses) pending
the completion of and regardless of the results of any review of records under
this Section.  The right of Tenant under this Section may only be
exercised once for any Landlord’s Statement, and if Tenant fails to meet any of
the above conditions as a prerequisite to the exercise of such right, the right
of Tenant under this Section 4.03 for a particular Landlord’s Statement
shall be deemed waived.


 


2.     Tenant
agrees that any review of the records under this Section shall be at the
sole expense of Tenant.  Tenant may exercise the right to audit only during
normal business hours at the offices of Landlord’s manager.  Tenant
acknowledges and agrees that any records reviewed under this Section constitute
confidential information of Landlord, which shall not be disclosed to anyone
other than the persons performing the review, the legal counsel of Tenant,
principals of Tenant who receive the results of the review, and governmental
authorities or courts of competent jurisdiction if disclosure is required by
Applicable Laws, by court order, or pursuant to legal action.  In
addition, Tenant shall not be obligated to keep such information confidential
if said information becomes publicly available through no act or omission of
Tenant.


 


3.     Any
errors disclosed by the review shall be promptly corrected by Landlord, provided,
however, that if Landlord disagrees with any such claimed errors, Landlord
shall have the right to cause another review to be made by an independent firm
of certified public accountants of national standing.  In the event of a
disagreement, the review that discloses the least amount of deviation from the
Landlord’s Statement shall be deemed to be correct.  In the event that the
results of the review of records (taking into account, if applicable, the
results of any additional review caused by Landlord) reveal that Tenant has
overpaid obligations for a preceding period, the amount of such overpayment
shall be credited against Tenant’s subsequent installment obligations to pay
the estimated Tax and Operating Expense Adjustment.  In the event that such
results show that Tenant has underpaid its obligations for a preceding period,
Tenant shall pay the amount of such underpayment to Landlord within 30 days.


 


E.     For the purposes of this Article, the term “Real
Estate Taxes” means the total of all taxes, fees, charges and assessments,
general and special, ordinary and extraordinary, foreseen or unforeseen, which
become due or payable upon the Building. All costs and expenses incurred by
Landlord during negotiations for or contests of the amount of Real Estate Taxes
shall be included within the term “Real Estate Taxes.” For purposes of this
Article, the term “Operating Expenses” shall be deemed to mean all costs and
expenses directly related to the Building incurred by Landlord in the repair,
operation, management and maintenance of the Building including interior and
exterior and common area 


 


10





















 


maintenance, management fees, cleaning expenses,
energy expenses, insurance premiums, and the amortization of capital
investments made to reduce operating costs or that are necessary due to
governmental requirements, all in accordance with generally accepted accounting
principles.


 


F.        Landlord may at any time designate a
fiscal year in lieu of a calendar year and in such event, at the time of such a
change, there may be a billing for the fiscal year, which is less than 12
calendar months.


 


G.        Landlord reserves, and Tenant hereby
assigns to Landlord, the sole and exclusive right to contest, protest, petition
for review, or otherwise seek a reduction in the Real Estate Taxes.


 


ARTICLE 7
- UTILITIES AND SERVICE


 


A.       Landlord
agrees to furnish water, electricity, elevator service, and janitorial service.
In the event Tenant’s requirements and/or usage of such utilities and services
is substantially greater than is customarily supplied to a typical tenant in
the Building, Landlord or Tenant may request that the difference in such
requirement and/or usage be determined and that appropriate adjustments be made
in the Minimum Rental provided for in Article 3 of this Lease Agreement.


 


B.        Landlord
agrees to furnish heat during the usual heating season and as
reasonably necessary from time to time and air conditioning during
the usual air conditioning season and as reasonably
necessary from time to time, all during normal business hours as
defined in this Lease Agreement.  Additional heating and cooling will be
available to Tenant at the current overtime HVAC rate of $5.00 per hour per
heat pump, provided that this HVAC rate may be reasonably adjusted by Landlord
from time to time.


 


C.        No
temporary interruption or failure of such services incidental to the making of
repairs, alterations or improvements, or due to accidents or strike or
conditions or events not under Landlord’s control, shall be deemed as an
eviction of the Tenant or relieve the Tenant from any of the Tenant’s
obligations hereunder.


 


D.        For the
purposes of this Article 7, normal business hours shall be deemed to mean
the period of time between 6:00 a.m.
to 6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m.
on Saturday, and specifically
excluding  Sundays and legal holidays.


 


E.        Tenant
shall have no right of access to the roof of the Premises or the Building and
shall not install, repair or replace any aerial, fan, air conditioner, or other
device on the roof of the Premises or the Building without the prior written
consent of Landlord.


 


ARTICLE 8
- NON-LIABILITY OF LANDLORD


 


Except
in the event of the negligence of Landlord, its agents, employees or
contractors, Landlord shall not be liable for any loss or damage for failure to
furnish heat, air conditioning, electricity, elevator service, water, sprinkler
system or janitorial service. Landlord shall not be liable for personal injury,
death or any damage from any cause about the Premises or the Building except if
caused by Landlord’s negligence.


 


11





















 


ARTICLE 9
- CARE OF PREMISES


 


A.        Tenant
agrees:


 


1.        To keep
the Premises in as good condition and repair as they were in at the time Tenant
took possession of same, reasonable wear and tear and damage from fire and
other casualty for which insurance is normally procured excepted;


 


2.        To keep
the Premises in a clean and sanitary condition;


 


3.        Not to
commit any nuisance or waste on the Premises, overload the Premises or the
electrical, water and/or plumbing facilities in the Premises or Building, throw
foreign substances in plumbing facilities, or waste any of the utilities
furnished by Landlord;


 


4.        To
abide by such rules and regulations as may from time to time be reasonably
promulgated by Landlord;


 


5.        To
obtain Landlord’s prior approval of the interior design of any portion of the
Premises visible from the common areas or from the outside of the Building. “Interior
design” as used in the preceding sentence shall include but not be limited to
floor and wall coverings, furniture, office design, artwork and color scheme; and


 


6.        With
respect to the First Floor Space, Tenant acknowledges and agrees that a portion
of the First Floor Space is visible to the public from the atrium/entrance area
of the Building and that Landlord wishes to maintain the visible integrity and
professional appearance of said atrium/entrance area.  Tenant hereby agrees to work with Landlord to
maintain the visible integrity and professional and tidy appearance of the
Building using reasonable means as agreed upon by Landlord and Tenant, such as
window coverings obstructing the public’s view of the interior of the First
Floor Space or locating and arranging the storage items inside of the First
Floor Space in such a way as to appear tidy from the atrium/entrance area of
the Building.


 


B.        If
Tenant shall fail to keep and preserve the Premises in the state of condition
required by the provisions of this Article 9, the Landlord may at its
option put or cause the same to be put into the condition and state of repair
agreed upon, and in such case the Tenant, on demand, shall pay the cost
thereof.


 


ARTICLE
10 - RESTRICTIONS CONCERNING USE


 


Tenant
covenants not to introduce any hazardous or toxic materials onto the Premises
without complying with all applicable Federal, State and local laws or
ordinances pertaining to the transportation, storage, use or disposal of such
materials, including but not limited to obtaining proper permits. If Tenant’s
transportation, storage, use or disposal of hazardous or toxic materials on the
Premises results in the contamination of the soil or surface or ground water or
loss or damage to person(s) or property, then Tenant agrees to:


 


i)         Notify
Landlord immediately of any contamination, claim or contamination, loss or
damage;


 


ii)        After
consultation with the Landlord, clean up the contamination in full compliance
with all applicable statutes, regulations and standards; and


 


12





















 


iii)       Indemnify,
defend and hold Landlord harmless from and against any claims, suits, causes of
action, costs and fees, including attorneys’ fees and costs, arising from or
connected with any such contamination, claim of contamination, loss or damage.


 


This provision shall
survive termination, cancellation or expiration of this Lease Agreement. For
purposes of this Article, the terms “hazardous materials” or “toxic materials”
shall mean any substance or material which has been determined by any state,
federal or local governmental authority to be capable of posing a risk of
injury to health, safety or property, including all of those materials and
substances designated as hazardous or toxic by the city in which the Premises
are located, the U.S. Environmental Protection Agency, the Consumer Product
Safety Commission, the Food and Drug Administration, and any federal agencies
that have overlapping jurisdiction with such state agencies, or any other
governmental agency now or hereafter authorized to regulate materials and
substances in the environment.


 


ARTICLE
11 - INSPECTION


 


The
Landlord or its employees or agents shall have the right, with
Tenant’s prior written consent, such consent not to be unreasonably withheld
(except in case of emergency, where no consent shall be required), and
without any diminution of rent or other charges payable hereunder by Tenant, to
enter the Premises at all reasonable times for the purpose of exhibiting the
Premises to prospective tenants or purchasers, inspection, cleaning, repairing,
testing, altering or improving the same or said Building, but nothing contained
in this Article shall be construed so as to impose any obligation on the
Landlord to make any repairs, alterations or improvements.


 


ARTICLE
12 - ALTERATIONS


 


Tenant
will neither disturb or in any way change any locks,
plumbing, or wiring nor make structural changes without the prior written
consent of the Landlord.  Tenant will
also not make any alterations, repairs, additions or improvements in
or to the Premises in excess of $10,000
without the prior written consent of the Landlord as to the character of the
alterations, additions or improvements to be made, the manner of doing the
work, and the contractor doing the work. All such consents
shall not be unreasonably withheld or delayed. All such work shall comply with
the applicable governmental laws, ordinances, rules and regulations. The
Landlord as a condition to said consent may require a surety performance and/or
payment bond from the Tenant for said actions. Tenant agrees to indemnify and
hold Landlord free and harmless from any liability, loss, cost, damage or
expense (including attorney’s fees) by reasons of any said alteration, repairs,
additions or improvements.


 


ARTICLE
13 - SIGNS


 


Tenant
agrees that no signs or other advertising materials shall be erected, attached
or affixed to any portion of the exterior of the Premises or the Building
without the express prior written consent of Landlord.  Notwithstanding the
foregoing, Tenant shall be allowed to place a sign on
the exterior of the space in front of each suite entry of the Premises at
Tenant’s sole cost and expense, provided:


 


1.  Such entry signage conforms to the building
standard signage (provided Tenant may affix its logo to such building standard
signage); and


 


2.  Said signage shall comply with the terms and
conditions of the rules for the Building as may be set from time to time,
and with all governmental laws, rules, regulations and ordinances; and


 


3. Said signage is not visible from the exterior of the Premises.


 


13





















 


Notwithstanding the foregoing, for so long as Tenant is the sole
occupant of the entire fourth floor, Tenant may install its own signage in the
lobby of the Fourth Floor Space, so long as such signage is not visible from
the exterior of the Premises


 


In
addition to the foregoing, Tenant shall have the right to install prominent
exterior building signage on the existing exterior pylon sign and exterior of the
building similar to the existing signage of other tenants on the Building,
subject to Landlord’s approval, which shall not be unreasonably withheld and
subject to municipal codes.  Tenant shall
pay for the design, installation, construction, maintenance, repair, and any
other costs associated with the signage. 
Landlord shall have the right to approve the design of the exterior
signs prior to Tenant’s installation of said signs.  Any change to any of Tenant’s signage subsequent to Landlord’s approval
must be re-approved by Landlord.


 


ARTICLE
14 - COMMON AREAS


 


A.       Tenant
agrees that the use of all corridors, passageways, elevators, toilet rooms,
parking areas and landscaped area in and around said Building, by the Tenant or
Tenant’s employees, visitors or invitees, shall be subject to such rules and
regulations as may from time to time be made by Landlord for the safety,
comfort and convenience of the owners, occupants, tenants and invitees of said
Building. Tenant agrees that no awnings, curtains, drapes or shades shall be
used upon the Premises except as may be approved by Landlord.


 


B.        In
addition to the Premises, Tenant shall have the right of non-exclusive use, in
common with others, of: (a) all unrestricted automobile parking areas
(subject to the provisions set forth below), driveways and walkways; and (b) loading
facilities, freight elevators and other facilities as may be constructed in the
Building, all to be subject to the terms and conditions of this Lease Agreement
and to reasonable rules and regulations for the use thereof as prescribed
from time to time by Landlord.


 


C.        Landlord
shall have the right to make changes or revisions in the site plan and in the
Building so as to provide additional leasing area. Landlord shall also have the
right to construct additional buildings on the land described on Exhibit A-2
for such purposes as Landlord may deem appropriate. Landlord also reserves all
airspace rights above, below and to all sides of the Premises, including the
right to make changes, alterations or provide additional leasing areas.


 


D.        Landlord
and Tenant agree that Landlord will not be responsible for any loss, theft or
damage to vehicles, or the contents thereof, parked or left in the parking
areas of the Building and Tenant agrees to so advise its employees, visitors or
invitees who may use such parking areas.


 


E.        The
parking areas shall include those areas designated by Landlord, in its reasonable discretion, as either restricted or unrestricted
parking areas. Tenant, its employees and invitees shall have the right to park
in the unrestricted parking areas in common with other tenants of the Building
upon such terms and conditions adopted by Landlord from time to time, but those conditions shall not include the imposition of a
parking charge.  Tenant agrees not to
overburden the unrestricted parking areas and agrees to cooperate with Landlord
and other tenants in the use of the unrestricted parking areas. 


 


14





















 


Landlord reserves the right in its absolute discretion
to determine whether the parking areas are becoming overburdened and to
allocate and assign parking spaces among Tenant and other tenants, and to
reconfigure the parking areas and modify the existing ingress to and egress
from the parking areas as Landlord shall deem appropriate.  Landlord agrees that all
of its rights pursuant to this paragraph, including its designation of
restricted parking areas and its reconfiguration of parking areas, will not
encroach upon Tenant’s ability to have adequate parking for its employees, visitors or invitees.   Any restricted parking areas shall be leased
only by separate license agreement with Landlord. Tenant further agrees not to
use or permit its employees, visitors or invitees to use the parking areas for
overnight storage of vehicles.  Notwithstanding the foregoing, in addition to
the right to park in unrestricted parking areas, Landlord shall provide to
Tenant eight executive garage stalls in the location shown on Exhibit C (“Executive
Parking Stalls”), four of which shall be provided at no additional cost to
Tenant.  As part of rent due hereunder,
throughout the Term of this Lease and any extension thereto, Tenant shall pay
Seventy-Five and 00/100 Dollars ($75.00) per month for each of the remaining
four (4) Executive Parking Stalls, with two percent (2%) annual increases per
stall.


 


ARTICLE
15 - ASSIGNMENT AND SUBLETTING


 


A.       Tenant
shall not assign this Lease Agreement, or sublease all or any part of the
Premises, or permit the use of the Premises by any party other than Tenant,
without the prior written consent of Landlord, such consent to
be provided or denied within ten (10) days and not unreasonably withheld
by Landlord. When Tenant requests
Landlord’s consent to such assignment or sublease, it shall notify Landlord in
writing of the name and address of the proposed assignee or subtenant and the
nature and character of the business of the proposed assignee or subtenant and
shall provide financial information, including financial statements of the
proposed assignee or subtenant. Tenant shall also provide Landlord with a copy
of the proposed sublet or assignment agreement.


 


B.        If
Landlord approves an assignment or sublease as herein provided, Tenant shall
pay to Landlord, as additional rent due under this Lease Agreement, fifty
percent (50%) of the difference, if any, between the Minimum Rental plus
Additional Rental allocable to that part of the Premises affected by such
assignment or sublease pursuant to this Lease Agreement, and the rent and any additional
rent payable by the assignee or subtenant to Tenant (the
“Excess Rental”), but only to the extent the
Excess Rental exceeds Tenant’s transaction costs (e.g. costs of tenant
improvements, broker fees or legal fees actually incurred by Tenant in connection
with the assigned/subleased premises).  No consent to any assignment or sublease
shall constitute a further waiver of the provisions of this Article, and all
subsequent assignments or subleases may be made only with the prior written
consent of Landlord. An assignee of Tenant, at the option of Landlord, shall
become directly liable to Landlord for all obligations of Tenant hereunder, but
no sublease or assignment shall relieve Tenant of any liability hereunder. Any
assignment or sublease without Landlord’s consent shall be void, and shall, at
the option of the Landlord, constitute a default under this Lease Agreement. In
the event that Landlord shall consent to a sublease or assignment hereunder,
Tenant shall pay Landlord’s reasonable fees, not to exceed Two Hundred Fifty
and no/100ths Dollars ($250.00) per transaction, incurred in connection with
the processing of documents necessary to the giving of such consent.


 


15




















 


C.        Landlord’s
right to assign this Lease Agreement is and shall remain unqualified upon any
sale or transfer of the Building and, providing the purchaser succeeds to the
interests of Landlord under this Lease Agreement, Landlord shall thereupon be
entirely freed of all obligations of the Landlord hereunder and shall not be
subject to any liability resulting from any act or omission or event occurring
after such conveyance. Tenant agrees to attorn to any such assignee or
transferee of Landlord’s interest in this Lease Agreement or the Building.


 


ARTICLE
16 - LOSS BY CASUALTY


 


A.       If the
Premises shall be destroyed or rendered untenantable, either wholly or in part,
by fire or other casualty, Landlord may, at its option, (i) terminate this
Lease Agreement effective as of the date of such damage or destruction, or (ii) restore
the Premises to their previous condition, and in the meantime the rent shall be
abated in the same proportion as the untenantable portion of the Premises bears
to the whole thereof, and this Lease Agreement shall continue in full force and
effect. If the damage is due, directly or indirectly, to the fault or neglect
of Tenant, or its officers, contractors, licensees, agents, servants,
employees, guests, invitees or visitors, there shall be no abatement of rent,
except to the extent Landlord receives proceeds from any applicable insurance
policy of Tenant to compensate Landlord for loss of rent.


 


B.        If the
Building shall be destroyed or damaged by fire or other casualty insured
against under Landlord’s fire and extended coverage insurance policy to the
extent that more than fifty percent (50%) thereof is rendered untenantable, or
if the Building shall be materially destroyed or damaged by any other casualty
other than those covered by such insurance policy, notwithstanding that the
Premises may be unaffected directly by such destruction or damage, Landlord
may, at its election, terminate this Lease Agreement by notice in writing to
Tenant within sixty (60) days after such destruction or damage. Such notice
shall be effective thirty (30) days after receipt thereof by Tenant.


 


C.        Other
than rental abatement provided in paragraph A of this Article, no damages,
compensation or claim shall be payable by Landlord for inconvenience or loss of
business arising from interruption of business, repair or restoration of the
Building or Premises.


 


D.        Landlord’s
obligations, should it elect to repair, shall be limited to the base Building,
common areas and the interior improvements installed by Landlord. Anything
herein to the contrary notwithstanding, if the Premises are destroyed or
damaged during the last nine (9) months of the Term of this Lease Agreement, then
Landlord may, at its option, cancel and terminate this Lease Agreement as of
the date of the occurrence of such damage.


 


ARTICLE
17 - WAIVER OF SUBROGATION


 


Whether
any loss or damage occurring to the Premises or the Building is due to the
negligence of Landlord or Tenant or their agents or employees, or any other cause, Landlord and Tenant each hereby
release the other and their agents and
employees from responsibility for and waives their
entire claim of recovery for (i) any loss or damage to the personal
property of either Landlord or Tenant located
in the Building, including the Building itself, arising out of any of the
perils which are covered by the other’s
property insurance policy, with extended coverage endorsements, or (ii) loss
resulting from business interruption or loss of rental income, at the Premises,
arising out of any of the perils which may 


 


16

















 


be covered by the
business interruption or by the loss of rental income insurance policy held
by  Landlord or Tenant.
Landlord and Tenant shall each use its best efforts to cause its insurance carrier(s) to
consent to such waiver of all rights of subrogation.


 


ARTICLE
18 - EMINENT DOMAIN


 


If
the entire Building is taken by eminent domain, this Lease Agreement shall
automatically terminate as of the date of taking. If a portion of the Building is
taken by eminent domain, the Landlord shall have the right to terminate this
Lease Agreement, provided it gives written notice thereof to the Tenant within
ninety (90) days after the date of taking. If a portion of the Premises is
taken by eminent domain and this Lease Agreement is not terminated by Landlord,
the Landlord shall, at its expense, restore the Premises to as near the
condition which existed immediately prior to the date of taking as reasonably
possible, and the rentals shall abate during such period of time as the
Premises are untenantable, in the proportion that the untenantable portion of
the Premises bears to the entire Premises. All damages awarded for such taking
under the power of eminent domain shall belong to and be the sole property of
Landlord, irrespective of the basis upon which they are awarded, provided,
however, that nothing contained herein shall prevent Tenant from making a
separate claim to the condemning authority for its moving expenses and trade
fixtures. For purposes of this Article, a taking by eminent domain shall
include Landlord’s giving of a deed under threat of condemnation.


 


ARTICLE
19 - SURRENDER


 


On
the last day of the Term of this Lease Agreement or on the sooner termination
thereof in accordance with the terms hereof, Tenant shall peaceably surrender
the Premises in good condition and repair consistent with Tenant’s duty to make
repairs as provided in Article 9 hereof. 
On or before said last day, Tenant shall at its expense remove all of
its equipment from the Premises, repairing any damage caused thereby, and any
property not removed shall be deemed abandoned. All alterations, additions and
fixtures other than Tenant’s trade fixtures, which have been made or installed
by either Landlord or Tenant upon the Premises shall remain as Landlord’s
property and shall be surrendered with the Premises as a part thereof, or shall
be removed by Tenant, at the option of Landlord, in which event Tenant shall at
its expense repair any damage caused thereby. 
Notwithstanding the foregoing, in no event shall
Tenant be required to remove those improvements described in Exhibit B as
the Tenant Work.


 


ARTICLE
20 - NON-PAYMENT OF RENT, DEFAULTS


 


A.    If any one
or more of the following occurs:


 


1.         A rent
payment or any other payment due from Tenant to Landlord shall be and remain
unpaid in whole or in part for more than five (5) days after written
notice that the same is due and payable;


 


2.         Landlord provides Tenant written notice specifying the nature of a
violation or default of any of the
other covenants, agreements, stipulations or conditions herein, and Tenant does not cure such default within
thirty (30) days after receipt of such notice or within such reasonable time
thereafter as may be necessary to cure such default where such default is of
such a character as to reasonably require more than thirty (30) days to cure,
not to exceed sixty (60) days after receipt of such notice; or


 


17

















 


3.         If
Tenant shall commence or have commenced against Tenant proceedings under a
bankruptcy, receivership, insolvency or similar type of action, 


 


then it shall be optional for Landlord, without
further notice or demand, to cure such default or to declare this Lease
Agreement forfeited and the said Term ended, or to terminate only Tenant’s
right to possession of the Premises, and to re-enter the Premises, all in accordance with Minnesota law.  Notwithstanding
re-entry by Landlord or termination only of Tenant’s right to possession of the
Premises, the liability of Tenant for the rent and all other sums provided
herein shall not be relinquished or extinguished for the balance of the Term of
this Lease Agreement.  Tenant shall be
responsible for, in addition to the rentals and other sums agreed to be paid
hereunder, the cost of any necessary maintenance, repair, restoration,
reletting (including related cost of removal or modification of tenant
improvements) or cure as well as reasonable attorney’s fees incurred or awarded
in any suit or action instituted by Landlord to enforce the provisions of this
Lease Agreement, regain possession of the Premises, or the collection of the
rentals due Landlord hereunder. Tenant may take reasonable
steps to mitigate damages hereunder and Landlord will not unreasonably oppose Tenant’s
efforts to mitigate its damages. 
Tenant agrees to pay interest at the highest permissible rate of
interest allowed under the usury statutes of the State of Minnesota, or in case
no such maximum rate of interest is provided, at the rate of 12% per annum, on
all rentals and other sums due Landlord hereunder not paid within ten (l0) days
from the date same become due and payable.


 


B.        Tenant
shall be liable to Landlord for the payment of a late charge in the amount of
10% of the rental installment or other sum due Landlord hereunder, plus any
attorneys’ fees and costs incurred by Landlord by reason of Tenant’s failure to
pay said amount, if said payment has not been received within ten (10) days
from the date said payment becomes due and payable, or cleared by Landlord’s
bank within three (3) business days after deposit. The parties agree that
such late charges represent a fair and reasonable estimate of the costs that
Landlord will incur by reason of Tenant’s late payment. Landlord’s acceptance
of such late charges shall not constitute a waiver of Landlord’s default with
respect to such overdue amount or estop Landlord from exercising any of the
other rights and remedies granted hereunder. Each right or remedy of Landlord
provided for in this Lease Agreement shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease Agreement
now or hereafter existing at law or in equity or by statute or otherwise.


 


ARTICLE
21 - LANDLORD’S DEFAULT


 


Landlord shall not be deemed to be in default under
this Lease Agreement until Tenant has given Landlord written notice specifying
the nature of the default and Landlord does not cure such default within thirty
(30) days after receipt of such notice or within such reasonable time thereafter
as may be necessary to cure such default where such default is of such a
character as to reasonably require more than thirty (30) days to cure, not to exceed sixty (60) days after receipt Tenant’s notice.


 


ARTICLE
22 - HOLDING OVER


 


Tenant will, at the expiration of this Lease
Agreement, whether by lapse of time or termination, give up immediate
possession to Landlord. If Tenant fails to give up possession, such tenancy shall be from month-to-month in which event Tenant shall
pay to Landlord for the first (1st) 
additional month or partial month an amount equal to one hundred twenty
five percent (125%) of the rent in 


 


18

















 


effect
for the last period prior to the date of such expiration or termination, for
the second (2nd) additional month an amount equal to one hundred
fifty percent (150%) of the rent in effect for the last period prior to the
date of such expiration or termination, for the third (3rd)
additional month an amount equal to one hundred seventy-five percent (175%) of
the rent in effect for the last period prior to the date of such expiration or
termination, for the fourth (4th) additional month an amount equal
to two hundred (200%) of the rent in effect for the last period prior to the
date of such expiration or termination, and said amount shall remain at two
hundred percent of the rent in effect for the last period prior to the date of
such expiration or termination until such time as Tenant gives up possession of
the Premises to Landlord as required herein.


 


ARTICLE
23 - SUBORDINATION


 


Tenant agrees that this Lease Agreement shall be
subordinate to any mortgage(s) that may now or hereafter be placed upon
the Building or any part thereof, and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, replacements, and
extensions thereof, provided the mortgagee named in such mortgage(s) shall
agree to recognize this Lease Agreement or Tenant in the event of foreclosure
provided the Tenant is not in default. In confirmation of such subordination,
Tenant shall promptly execute and deliver any instrument, in recordable form,
as required by Landlord’s mortgagee. In the event of any mortgagee electing to
have the Lease Agreement a prior incumbrance to its mortgage, then and in such
event upon such mortgagee notifying Tenant to that effect, this Lease Agreement
shall be deemed prior in incumbrance to the said mortgage, whether this Lease
Agreement is dated prior to or subsequent to the date of said mortgage.


 


ARTICLE 24
- INDEMNITY, INSURANCE AND SECURITY


 


A.       Tenant
will keep in force at its own expense for so long as this Lease Agreement
remains in effect public liability insurance with respect to the Premises in
which Landlord shall be named as an additional insured, in companies and in
form acceptable to Landlord with a minimum combined limit of liability of Two
Million Dollars ($2,000,000.00). This limit shall apply per location. Said
insurance shall also provide for contractual liability coverage by endorsement.
Tenant shall further provide for business interruption insurance to cover a
period of not less than six (6) months. Tenant will further deposit with
Landlord the policy or policies of such insurance or certificates thereof, or
other acceptable evidence that such insurance is in effect, which evidence
shall provide that Landlord shall be notified in writing thirty (30) days prior
to cancellation, material change, or failure to renew the insurance. If Tenant
shall not comply with its covenants made in this Article 24, Landlord may,
at its option, cause insurance as aforesaid to be issued and in such event
Tenant agrees to pay the premium for such insurance promptly upon Landlord’s
demand.


 


B.        Tenant
further covenants and agrees to indemnify and hold Landlord and Landlord’s
manager of the Building harmless for any claim, loss or damage, including
reasonable attorney’s fees, suffered by Landlord, Landlord’s manager or
Landlord’s other tenants caused by: i) any act or omission by Tenant, Tenant’s
employees or anyone claiming through or by Tenant in, at, or around the
Premises or the Building; ii) the conduct or management of any work or thing
whatsoever done by Tenant in or about the Premises or from transactions of the
Tenant concerning the Premises; or iii) Tenant’s failure to comply with any and
all governmental laws, rules, ordinances or regulations applicable to the use
of the Premises and its occupancy.


 


19

















 


C.        Tenant
shall be responsible for the security and safeguarding of the Premises and all
property kept, stored or maintained in the Premises.  Landlord will make available to Tenant, at
Tenant’s request, the plans and specifications for construction of the Building
and the Premises. Tenant represents that it is satisfied that the construction
of the Building and the Premises, including the floors, walls, windows, doors
and means of access thereto are suitable for the particular needs of Tenant’s
business. Tenant further represents that at the time of signing
this Lease, it is satisfied with the security of said Building and
Premises for the protection of any property which may be owned, held, stored or
otherwise caused or permitted by Tenant to be present upon the Premises. The
placement and sufficiency of all safes, vaults, cash or security drawers,
cabinets or the like placed upon the Premises by Tenant shall be at the sole
responsibility and risk of Tenant. Tenant shall maintain in force throughout
the Term, insurance upon all contents of the Premises, including that owned by
others and Tenant’s equipment and any alterations, additions, fixtures, or
improvements in the Premises acknowledged by Landlord to be the Tenant’s.


 


D.        Landlord
shall carry and cause to be in full force and effect a fire and extended
coverage insurance policy on the Building, but not contents owned, leased or
otherwise in possession of Tenant. The cost of such insurance shall be an
Operating Expense.


 


ARTICLE
25 - NOTICES


 


All notices from Tenant to Landlord required or
permitted by any provisions of this Lease Agreement shall be directed to
Landlord postage prepaid, certified or registered mail, at the address provided
for Landlord in the preamble to this Lease Agreement or at such other address
as Tenant shall be advised to use by Landlord. All notices from Landlord to
Tenant required or permitted by any provision of this Lease Agreement shall be
directed to Tenant, postage prepaid, certified or registered mail, at the
Premises and at the address, if any, set forth prior to Tenant’s signature line
of this Lease Agreement. Landlord and Tenant shall each have the right at any
time and from time to time to designate one (1) additional party to whom
copies of any notice shall be sent.


 


ARTICLE
26 - APPLICABLE LAW


 


This
Lease Agreement shall be construed under the laws of the State of Minnesota.


 


ARTICLE
27 - MECHANICS’ LIEN


 


In
the event any mechanic’s lien shall at any time be filed against the Premises
or any part of the Building by reason of work, labor, services or materials
performed or furnished to Tenant or to anyone holding the Premises through or
under Tenant, Tenant shall forthwith cause the same to be discharged of record.
If Tenant shall fail to cause such lien forthwith to be discharged within five (5) days
after being notified of the filing thereof, then, in addition to any other
right or remedy of Landlord, Landlord may, but shall not be obligated to,
discharge the same by paying the amount claimed to be due, or by bonding, and
the amount so paid by Landlord and all costs and expenses, including reasonable
attorney’s fees incurred by Landlord in procuring the discharge of such lien,
shall be due and payable in full by Tenant to Landlord on demand.


 


ARTICLE
28 - INTENTIONALLY DELETED


 


ARTICLE
29 - BROKERAGE


 


Tenant
represents and warrants to Landlord that neither it nor its officers or agents,
nor any one acting on its behalf has dealt with any real estate broker other
than NAI Welsh Companies, LLC (“Tenant’s
Broker”) in the negotiating or making of this Lease Agreement. Tenant agrees to
indemnify 


 


20

















 


and hold Landlord, its
agents, employees, partners, directors, shareholders and independent
contractors harmless from all liabilities, costs, demands, judgments,
settlements, claims and losses, including reasonable attorneys’ fees and costs,
incurred by Landlord in conjunction with any such claim or claims of any other
broker or brokers claiming to have interested Tenant in the Building or the
Premises, or to have caused Tenant to enter into this Lease Agreement. Landlord
represents and warrants to Tenant that neither it nor its officers or agents,
nor anyone acting on its behalf, has dealt with any real estate broker other
than CB Richard Ellis, Inc. (“CBRE”) in the negotiating or making of this
Lease Agreement. The brokers’ commission and/or finders’ fees arising out of
this Lease Agreement on behalf of Tenant’s Broker and CBRE shall be paid as
follows:  by Landlord
pursuant to a separate written agreement.


 


ARTICLE
30 - INTENTIONALLY DELETED


 


ARTICLE
3l - ESTOPPEL CERTIFICATES


 


A.            Each party hereto
agrees that at any time, and from time to time during the Term of this Lease
Agreement (but not more often than twice in each calendar year), within ten (10) days
after request by the other party hereto, it will execute, acknowledge and
deliver to such other party or to any prospective purchaser, assignee or
mortgagee designated by such other party, an estoppel certificate in a form
acceptable to Landlord. If Tenant fails to respond within ten (10) days of
receipt by Tenant of a written request by Landlord as herein provided, Tenant
shall be deemed to have given such estoppel certificate as above provided,
without modification and shall be deemed to have admitted the accuracy of any
information supplied by Landlord to any prospective purchaser, mortgagee,
assignee or ground lessor of the Building.


 


B.            Tenant agrees to provide Landlord
(but not more often than twice in any calendar year), within ten (10) days
of request, the then most current financial statements of Tenant and any
guarantors of this Lease Agreement, which shall be certified by Tenant, and if
available, shall be audited and certified by a certified public accountant.
Landlord shall keep such financial statements confidential, except Landlord
shall, in confidence, be entitled to disclose such financial statements to
existing or prospective mortgagees or purchasers of the Building.  Notwithstanding the
foregoing, the terms and conditions of this paragraph B shall not apply, so
long as Tenant remains a publicly traded company.


 


ARTICLE
32 - GENERAL


 


This
Lease Agreement does not create the relationship of principal and agent or of
partnership or of joint venture or of any association between Landlord and
Tenant, the sole relationship between Landlord and Tenant being that of
landlord and tenant. No waiver of any default of Tenant hereunder shall be
implied from any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. The covenants of
Tenant to pay the Minimum Rental and the Additional Rental are each independent
of any other covenant, condition, or provision contained in this Lease
Agreement. The marginal or topical headings of the several Articles, paragraphs
and clauses are for convenience only and do not define, limit or construe the
contents of such Articles, paragraphs or clauses. All preliminary negotiations
are merged into and incorporated in this Lease Agreement. This Lease Agreement
can only be modified or amended by an agreement in writing signed by the
parties hereto. All provisions hereof shall be binding upon the heirs, successors
and assigns of each party hereto. If any term or provision of this Lease
Agreement shall to any extent be held invalid or unenforceable, the remainder
shall not be affected thereby, and each other term and provision of this Lease
Agreement shall be valid and be enforced to the fullest extent permitted by
law. If Tenant is a corporation, each individual executing this Lease Agreement
on behalf of said corporation represents and warrants that he is duly
authorized to execute and deliver this Lease Agreement on behalf of said 


 


21

















 


corporation and that this
Lease Agreement is binding upon said corporation in accordance with its terms.
No receipt or acceptance by Landlord from Tenant of less than the monthly rent
herein stipulated shall be deemed to be other than a partial payment on account
for any due and unpaid stipulated rent; no endorsement or statement of any
check or any letter or other writing accompanying any check or payment of rent
to Landlord shall be deemed an accord and satisfaction, and Landlord may accept
and negotiate such check or payment without prejudice to Landlord’s rights to (i) recover
the remaining balance of such unpaid rent or (ii) pursue any other remedy
provided in this Lease Agreement. (Neither party shall record this Lease
Agreement or any memorandum thereof, and any such recordation shall be a breach
of this Lease Agreement void, and without effect.) Time is of the essence with
respect to the due performance of the terms, covenants and conditions herein
contained. Submission of this instrument for examination does not constitute a
reservation of or option for the Premises, and this Lease Agreement shall
become effective only upon execution and delivery thereof by Landlord and Tenant.


 


ARTICLE
33 - EXCULPATION


 


Notwithstanding
anything in this Lease Agreement to the contrary, the covenants, undertakings
and agreements herein made on the part of Landlord are made and intended not
for the purpose of binding Landlord personally, or the assets of Landlord, but
are made and intended to bind only the Landlord’s interest in the Premises and
the Building, as the same may, from time to time, be encumbered, and no
personal liability shall at any time be asserted or enforced against Landlord
or its stockholders, officers, or partners, or their respective heirs, legal
representatives, successors and assigns, on account of this Lease Agreement or
on account of any covenant, undertaking or agreement of Landlord in this Lease
Agreement.


 


ARTICLE 34
– SECURITY DEPOSIT


 


Tenant
shall deposit with Landlord upon execution hereof $69,937.78
as security for Tenant’s faithful performance of its obligations
hereunder.  If Tenant fails to pay rent
or other charges due hereunder, or otherwise defaults with respect to any
provision of this Lease, Landlord may use, apply, or retain all or any portion
of said deposit for the payment of any rent or other charge in default or for
the payment of any other sum to which Landlord may become obligated by reason
of Tenant’s default, or to compensate Landlord for any loss or damage that
Landlord may suffer thereby.  If Landlord
so uses or applies all or any portion of said deposit, Tenant shall within ten (10) days
after written demand therefor deposit cash with Landlord in an amount
sufficient to restore said deposit to the full amount then required of
Tenant.  If the monthly rent increases,
from time to time, during the term of this Lease, Tenant shall, at the time of
such increase, deposit with Landlord additional money as a security deposit so
that the total amount of the security deposit held by Landlord shall at all
times bear the same proportion to the then current Minimum Rental  as the initial security deposit bears to the
initial Minimum Rental set forth in the Lease Summary Sheet.  Landlord shall not be required to keep said
security deposit separate from its general accounts.  If Tenant performs all of its obligations
hereunder and there is no event of default during the first
sixty (60) months of the Term, said deposit shall be returned,
without payment of interest or other increment for its use, to Tenant (or, at
Landlord’s option, to the last assignee, if any, of Tenant’s interest
hereunder) after at the expiration of the sixtieth (60th) month of the term hereof.  In the event Tenant fails
to pay rent or other charges due hereunder or otherwise defaults with respect
to any provision of this Lease Agreement, the security deposit shall continue
to be held as security for Tenant’s faithful performance of its obligations
hereunder for one (1) additional year for each event of failure to pay
rent or other charges, and each event of default with respect to any provision
of this Lease.  Upon expiration of the
time period upon which the security deposit shall be continued to be held based
on the foregoing, or upon expiration of the Term hereof and after Tenant has
vacated the Premises, 


 


22

















 


whichever
occurs first, said deposit, or so much thereof as has not theretofore been
applied by Landlord, shall be returned, without payment of interest or other
increment for its use, to Tenant (or, at Landlord’s option, to the last
assignee, if any, of Tenant’s interest hereunder).  No trust relationship is created herein
between Landlord and Tenant with respect to said security deposit.


 


ARTICLE
35 – OPTION TO EXTEND TERM


 


A.  Subject to the terms set
forth below, Tenant shall have two (2) Options (each, an “Option”) to
extend the Term of this Lease Agreement for a period of five (5) years
(each, an “Option Term”) immediately following the initial Term, or the first
Option Term, if applicable.  The Option
shall be exercised, if at all, by written notice delivered by Tenant to
Landlord not later than nine (9) full months prior to the end of the
initial Term, or the first Option Term, if applicable, of this Lease Agreement
(time being of the essence).   Provided
Tenant has properly and timely exercised the Option, the initial Term, or the
first Option Term, if applicable, of this Lease Agreement shall be extended by
the Option Term, and all terms, covenants and conditions of the Lease Agreement
shall remain unmodified and in full force and effect, except for the Minimum
Rental, which shall be based upon the then-prevailing market rates for the
Premises.


 


B.   Such Option granted to
Tenant in this Lease Agreement is personal to the original Tenant and may be
exercised only by the original Tenant while occupying the Premises, who does so
without the intent of thereafter assigning this Lease Agreement or subletting
the Premises or any portion thereof, and may not be exercised or be assigned,
voluntarily or involuntarily, by or to any person or entity other than Tenant.


 


C.  Tenant shall have no right to
exercise its Option, notwithstanding any provision in the grant of Option to
the contrary, (i) during the period of time commencing on the date after a
monetary obligation to Landlord is due from Tenant and unpaid (without any
necessity for notice thereof to Tenant) and continuing until the obligation is
paid, or (ii) in the event that Landlord has given to Tenant three or more
notices of monetary default whether or not the defaults are cured, during the
12-month period of time immediately prior to the time that Tenant attempts to
exercise the subject Option.


 


ARTICLE
36 – RIGHT TO FOR ADDITIONAL SPACE


 


Subject
to any rights U.S. Energy Services, Inc., a Minnesota corporation (“U.S.
Energy”), may have pursuant to that certain lease by and between Landlord and
U.S. Energy dated March 2007 (“U.S. Energy Lease”), Tenant shall have
rights to certain portions of the Building, as follows:


 


A.  Right of First Refusal.  Subject to the terms and conditions set forth
herein, Landlord shall provide Tenant a continuous right of first refusal (“Right
of First Refusal”), during the Term or any Option Term to rent Suite 100
in the Building as shown in Exhibit D (“Suite 100) when Suite 100
becomes “Available Space” as defined in Article 36(B)(iii).  If Landlord receives a written bona fide
offer to lease all or any portion of Suite 100, then Landlord shall
deliver to Tenant written notice of such offer, including the approximate date
possession is to be delivered (“Landlord’s ROFR Notice”).  Tenant shall have ten (10) days from
receipt of Landlord’s ROFR Notice to advise Landlord, in writing (“Tenant’s
ROFR Notice”) that Tenant either (i) accepts Suite 100, or (ii) declines
the right to lease Suite 100.  Upon
exercise of this right by Tenant, Suite 100 shall become a part of the
Premises under this Lease Agreement and Tenant’s tenancy of Suite 100
shall be subject to all of the terms and conditions of this Lease Agreement and
shall be coterminous with the Term or any Option Term, if applicable, except
that Tenant’s Minimum Rental for Suite 100 shall be calculated based on
the then current Minimum Rental for the First Floor Space, and Tenant’s pro
rata share of Real Estate Taxes and Operating Expenses shall
be adjusted based on the additional


 


23

















 


rentable square feet in Suite 100. 
In the event Tenant fails to timely exercise such Right of First Refusal
or declines to lease Suite 100, Landlord thereafter may lease Suite 100
to any party or parties and upon any terms the Landlord deems necessary or
desirable.  Except as set forth in
paragraph E below, Tenant shall accept delivery of Suite 100 with tenant
improvements existing at the time Suite 100 becomes Available Space (i.e.,
“As Is”), subject to the terms of Article 16 of this Lease Agreement.


 


B.  Rights of First Offer.  Subject to the terms and conditions set forth
herein, Tenant shall have the following rights with respect to the first floor
lounge area of the Building as shown in Exhibit D (the “Lounge”), Suites
300 and 320 as shown in Exhibit D (collectively, Suites 300/320), and Suite 500
as shown in Exhibit D (“Suite 500”) (collectively, the Lounge, Suites
300/320, and Suite 500 are referred to herein as the “Expansion Area”).
Tenant’s rights, as described below, shall take effect upon expiration of any
current lease and any extensions thereto for the Expansion Area:


 


(i)   Upon the terms and
provisions set forth in this Lease, the Tenant shall have a continuous right of
“first offer” during the Lease Term or any Option Term, if applicable, to lease
each of the Lounge, Suites 300/320 and Suite 500.


 


(ii)  For the purposes of this Section, “first offer” shall mean a
right by the Tenant to lease such space under this Lease following the
expiration of the Landlord’s lease or any extensions thereto with the current
tenant of the Expansion Area to lease the Expansion Area and waiver by U.S.
Energy of any rights it may have to such space pursuant to the U.S. Energy
Lease.


 


(iii) for purposes of this Article 36, space becomes “Available
Space” in the Building when the lease of such space has expired and not renewed
or extended by the current tenant or is otherwise terminated, and the current
tenant of such space has physically vacated and surrendered possession of the
space to the Landlord and U.S. Energy has not exercised any rights it may have
to such space pursuant to the U.S. Energy Lease.


 


(iv) Tenant may not exercise any right of first offer with respect
to less than that portion of the Expansion Area specified in Landlord’s Notice
of Availability (as defined below). 
Tenant shall exercise such right of first offer by delivering written
notice of exercise to the Landlord not later than ten (10) days following
the date of delivery by the Landlord to the Tenant of notice (“Notice of
Availability”) that a portion of the Expansion Area is becoming available on
the expected date specified in the notice. 
The Notice of Availability will include the rate of Minimum Rental
pursuant to Article 36(B)(v) below, and will specify the portion of
the Expansion Area included in the right of first offer.  The Notice of Availability will not be
delivered to Tenant more than one hundred eighty (180) days prior to the date
upon which the Landlord expects the subject Expansion Area to become available
space.


 


(v)  The Tenant’s tenancy of the Expansion Area covered by any
exercised right of first offer shall commence and be deemed to have commenced
on the earlier of (a) the date that the Expansion Area actually becomes “Available
Space”, or (b) upon Tenant’s taking occupancy.  Upon exercise of this right by Tenant, the
applicable portion of the Expansion Area shall become a part of the Premises
under this Lease Agreement, and Tenant’s Tenancy of said portion of the
Expansion Area shall be subject to all of the terms and conditions of this
Lease Agreement, and shall be coterminous with the Term or Option Term, if
applicable, and Tenant’s Minimum Rental shall be as follows: (i) for the
Lounge, Minimum Rental shall be calculated based on the then current Minimum
Rental for the First Floor Space, (ii) for Suites 300/320 Minimum Rental
shall be calculated based the then current Minimum Rental for the Third Floor
Space, and (iii) for Suite 500, Minimum Rental shall be


 


24

















 


calculated
based on the then current Minimum Rental for the Fourth Floor Space.   At the time that any portion of the
Expansion Area is added to the Premises, the Additional Rental as provided in Article 6
herein shall be recalculated to include such Expansion Area. Except as set
forth in paragraph E below, Tenant shall accept delivery of The Expansion Area
with tenant improvements existing at the time said space becomes “Available
Space” (i.e., “As Is”), subject to the terms of Article 16 of this Lease
Agreement.


 


C.  Rights Personal to Tenant.
 The Right of First Refusal and the
rights of First Offer granted in this Article 36 are personal to Tenant
and are not transferable.  In event
Tenant has an active sublease or assignment at the time the Right of First
Refusal or any of the rights of first option become effective, the Right of
First Refusal and the rights of First Offer contained in this Article 36
shall automatically terminate and thereafter be null and void.


 


D.  Default or other
Prevailing Rights.  Tenant shall have
no right to exercise its Right of First Refusal or rights of First Offer,
notwithstanding any provision in this Article to the contrary, (i) during
the period of time commencing on the date after a monetary obligation to
Landlord is due from Tenant and unpaid (without any necessity for notice
thereof to Tenant) and continuing until the obligation is paid, (ii) in
the event that Landlord has given to Tenant three or more notices of monetary
default whether or not the defaults are cured, during the 12-month period of
time immediately prior to the time that Tenant attempts to exercise the subject
Option, or (iii) if U.S. Energy has a senior right to such space pursuant
to the U.S. Energy Lease.


 


E.  Tenant Improvement
Allowance.  For purposes of this Article 36,
in the event Tenant properly exercises the Right of First Refusal or any of the
rights of First Offer, Landlord shall provide Tenant with an allowance for
tenant improvements for such additional premises (“Additional Allowance”),
which Additional Allowance shall be disbursed to Tenant under the same terms
and conditions as those described in Exhibit B attached hereto.  With respect to each of Suite 100, the
Lounge, Suites 300/320, and Suite 500, the Additional Allowance shall be
calculated by multiplying the following: (i) the number of rentable square
feet in the subject Expansion Area, (ii) the quotient of $32.00 divided by
120, and (iii) the number of full months remaining in the original Term or
extension thereof, if applicable (i.e. (square footage of premises)($32.00/120)(#
of months remaining in original Term or Option Term, if applicable)).


 


ARTICLE 37 – STORAGE SPACE Subject to the terms and conditions set forth herein, Tenant shall have
the following rights with respect to up to 1,000 square feet storage space in
the lower level of the Building (the “Storage Space”):


 


(i)  Upon the terms and provisions set forth in this Lease, Tenant
shall have a continuous right of “first offer” during the Term and any Option
Term to lease the Storage Space (“Storage ROFO”).


 


(ii)  For the purposes of this Section, “first offer” shall mean a
right by Tenant to lease the Storage Space under this Lease following the
expiration of the Landlord’s lease or any extensions thereto with the current
tenant of the Storage Space, and the Storage Space has become “Available Space.”  “Available Space” for purposes of this Article 37
shall mean the lease of such space has expired and not renewed or extended by
the current tenant or is otherwise terminated, and the current tenant of such
space has physically vacated and surrendered possession of the space to the
Landlord.


 


(iii)  Tenant may not exercise any right of first offer with
respect to less than all of the Storage Space described in the Notice of
Storage Space Availability.  Tenant shall
exercise such Storage 


 


25

















 


ROFO by
delivering written notice of exercise to the Landlord not later than five (5) days
following the date of delivery by the Landlord to the Tenant of notice (“Notice
of Storage Space Availability”) that the Storage Space is becoming available on
the expected date specified in the notice. 
The Notice of Availability will not be delivered to Tenant more than one
hundred eighty (180) days prior to the date upon which the Landlord expects the
Storage Space to become Available Space.


 


(iv)  Tenant’s tenancy of the Storage Space covered by any
exercised Storage ROFO shall commence and be deemed to have commenced on the
earlier of (a) the date that the Storage Space actually becomes Available
Space, or (b) upon Tenant’s taking occupancy.  Tenant shall accept delivery of the Storage
Space with tenant improvements existing at the time said space becomes
Available Space (i.e., “As Is”), subject to the terms of Article 16 of
this Lease Agreement.  Upon exercise of
this right by Tenant, the Storage Space shall become a part of the Premises
under this Lease Agreement, provided the gross rent for the Storage Space shall
be Eleven and 00/100 Dollars ($11.00) per rentable square foot (“Storage Rent”),
which Storage Rent includes all Operating Costs and Real Estate Taxes and shall
be payable in monthly installments pursuant to the terms and conditions of Article 3
(except that in no event shall the Storage Rent be subject to the abatement
provisions of Article 3).


 


(v)  This right of first offer granted herein is personal to the
Tenant and is not transferable.  In the
event Tenant has an active sublease or assignment on or after month sixty (60)
of the Term, the right of first offer contained herein shall automatically
terminate and thereafter be null and void. 
Landlord
shall have the right to relocate the Storage Space during the Term and any
renewal thereof to alternate storage of approximately equivalent or greater
square feet as contained in the Storage Space. 
No Tenant Improvement Allowance shall apply to the Storage Space, and it
is not intended that Tenant shall be required to make any improvements to the
Storage Space in order to make reasonable storage use thereof.


 


(vi) 
Tenant shall have no right to exercise its right of first offer for the
Storage Space, notwithstanding any provision in the grant of its right of first
offer to the contrary, (i) during the period of time commencing on the
date after a monetary obligation to Landlord is due from Tenant and unpaid
(without any necessity for notice thereof to Tenant) and continuing until the
obligation is paid, or (ii) in the event that Landlord has given to Tenant
three or more notices of monetary default whether or not the defaults are
cured, during the 12-month period of time immediately prior to the time that
Tenant attempts to exercise the subject Option.


 


26

















 


IN WITNESS WHEREOF, this Lease Agreement has been duly executed by the
parties hereto as of the day and year indicated above.


 


Address for Notices, if
other than the Premises:


 


 


 


 


 


	
  TENANT:

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  Winmark
  Corporation,

  	
   

  	
  Utah
  State Retirement Investment Fund,

  
	
  a
  Minnesota corporation

  	
   

  	
  an independent agency
  of the State of Utah

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  	
  By

  	
  CB Richard Ellis
  Investors L.L.C.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
  Brett
  D. Heffes

  	
   

  	
   

  	
  Its

  	
  Agent

  
	
  Its

  	
  President
  of Finance and Administration

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By

  	
   /s/ James E. Bell

  
	
   

  	
   

  	
   

  	
   

  	
  Name

  	
  James
  E. Bell

  
	
   

  	
   

  	
   

  	
   

  	
  Its

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By

  	
  /s/
  Michael J. Everly

  
	
   

  	
   

  	
   

  	
   

  	
  Name

  	
  Michael
  J. Everly

  
	
   

  	
   

  	
   

  	
   

  	
  Its

  	
  Authorized
  Signatory

  
																



 


27
















 


EXHIBIT A-1


GRAPHIC LOCATION OF PREMISES


 

















 





 

















 





 

















 





 

















 


EXHIBIT A-2


LEGAL DESCRIPTION


 


The land referred to is
situated in the State of Minnesota, County of Hennepin, and is described as
follows:


 


Lot 1, Block 1, GROVES
OFFICE PARK 2ND ADDITION together with that part of vacated 8th Avenue accruing
thereto by reason of the vacation thereof, according to the plats thereof on
file and of record, Hennepin County, Minnesota, lying East and North of the
Plat of GROVES OFFICE PARK ANNEX; South of Lot 1, Block 1, GROVES OFFICE PARK
2ND ADDITION and West of State Highway 18, Plat 19, together with the benefits
contained in the following easement agreement:


 


Declaration of Access and
Driveway Easement dated September 30, 1986, recorded October 10, 1986
as Document Number 5169175 as amended by instrument dated December 30,
1988, record March 8, 1989, Document Number 5513370;


 


Mutual Truck Turn
Around Easement Agreement dated December 30, 1988, recorded March 8,
1989, as Document Number 5513371;


 


Declaration of Transformer
and Compactor Easement dated December 30, 1988, recorded March 8,
1989, as Document Number 5513375; and


 


Mutual Walk Way
Easement Agreement dated December 30, 1988, recorded March 8, 1989,
as Document Number 5513372.


 

















 


EXHIBIT B


TENANT WORK FUNDINGS


 


            The Tenant Improvements
(as defined below) shall be constructed substantially as shown on plans and
specifications for the Premises (the “Plans”), which Landlord shall cause to be
prepared and delivered to Tenant as soon as reasonably practicable after
execution and delivery of this Lease Agreement. 
Tenant shall respond to the Plans five (5) business days after
receipt thereof, specifying any changes or modifications Tenant desires in the
Plans.  Landlord will then cause the
Plans to be revised and resubmit them to Tenant for its approval within five (5) business
days.  Tenant shall approve or disapprove
of the same within five (5) business days after receipt.  The revised Plans, as approved by Tenant and
Landlord, shall be the final Plans for the Tenant Improvements.  The parties understand and acknowledge that
the Plans must be approved by both Landlord and Tenant by October 15, 2008
so as not to cause a delay in delivery of the Premises to Tenant.  Any subsequent amendment to the Plans shall be approved by both
Landlord and Tenant.  The
parties acknowledge that the Plans are to modify the Premises to accommodate
Tenant’s intended use. Landlord shall be responsible for constructing the
improvements as shown on the Plans (hereafter called “Tenant Improvements”) for
and on behalf of Tenant. Landlord and Tenant have agreed that the costs of such
Tenant Improvements shall be paid by Tenant, although Landlord shall provide
Tenant an allowance of up to Thirty-Two and No/100
Dollars ($32.00) per square foot to be utilized toward the cost of
the Tenant Improvements (hereafter called the “T.I. Allowance”). The T.I.
Allowance shall be used for payment of costs relating to construction of the
Tenant Improvements (including but not limited to
the costs of preparing the Plans and demolition
of any existing improvements), which costs Landlord shall pay directly out of
the T.I. Allowance, for the credit of Tenant.  Tenant may also provide Landlord with
invoices during the construction process related to furniture (including
cubicles) and any building signage, which Landlord will reimburse to Tenant out
of the T.I. Allowance within thirty (30) days of receipt of said invoices,
provided, all such reimbursement amounts shall be included as part of the
Twelve and No/100 Dollars ($12.00) per square foot described in the following
sentence.  Except as specifically
provided in this Exhibit B, in no event shall any part of the
T.I. Allowance be paid to or payable to Tenant, provided up
to Twelve and No/100 Dollars ($12.00) per square foot of the T.I. Allowance may
be used by Tenant and paid by Landlord within thirty (30) days of receipt of
all invoices therefore and subsequent to Tenant taking possession of the
Premises for Tenant’s rent, moving and installation costs for Tenant’s cabling,
fixtures, furniture and equipment. Any costs of the Tenant
Improvements which exceed the T.I. Allowance shall be paid by Tenant to
Landlord without demand within thirty (30) days of the day of submission by Landlord to Tenant of a
statement of said costs. Any improvements to the Premises, other than as shown
on the Plans, and the furnishing of the Premises, shall be made by Tenant at
the sole cost and expense of Tenant, subject to all other provisions of this
Lease Agreement, including compliance with all applicable governmental laws,
ordinances and regulations.  Landlord agrees that such improvements may include the construction of
an interior staircase between the Third Floor Space and the Fourth Floor
Space.  Tenant shall at all reasonable times
have a right to inspect the Tenant Improvements and Landlord shall immediately
cease work upon written notice from Tenant to the extent that the Tenant
Improvements are not materially in compliance with the approved Plans.  Landlord shall pay the costs related to the
construction manager, which shall be BDH & Young, and the costs of
such construction manager shall not be deducted from the T.I. Allowance.


 
















 


EXHIBIT C


 


EXECUTIVE PARKING STALLS


 

















 





 

















 


EXHIBIT D


 


DEPICTION OF PREMISES SUBJECT TO


TENANT’S RIGHTS TO ADDITIONAL SPACE