**Exhibit10.13**

 

 

 

**METROPOLITANLIFE INSURANCE COMPANY**,

on behalf of a commingledseparate account,

 

as Landlord

 

 

AND

 

 

**KMGAMERICA CORPORATION**, a Virginia corporation

 

as Tenant

 

 

----

 

LEASE AGREEMENT

 

----

 

 

Dated:  February 2, 2005

 

12600 Whitewater Drive

Minnetonka, Minnesota 55343

 

 

 

----

 

**TABLE OFCONTENTS**

 
| ARTICLE 1 | REFERENCE DATA AND DEFINITIONS                                      |   |
|----------------|---------------------------------------------------------------------|--------|
|           |                                                                |   |
| ARTICLE 2 | DEMISED  PREMISES AND TERM                                          |   |
|           |                                                                |   |
| 2.1            | Demised Premises and Storage Space                                  |   |
|           |                                                                |   |
| 2.2            | Term                                                                |   |
|           |                                                                |   |
| 2.3            | Tenant’s Entry upon Demised Premises before  Commencement Date |   |
|           |                                                                |   |
| 2.4            | Temporary Premises                                                  |   |
|           |                                                                |   |
| ARTICLE 3 | RENT  AND SECURITY DEPOSIT                                          |   |
|           |                                                                |   |
| 3.1            | Fixed Rent                                                          |   |
|           |                                                                |   |
| 3.2            | Additional Rent                                                     |   |
|           |                                                                |   |
| 3.3            | Past Due Rent                                                       |   |
|           |                                                                |   |
| 3.4            | Security Deposit                                                    |   |
|           |                                                                |   |
| 3.5            | Rent Payments                                                       |   |
|           |                                                                |   |
| ARTICLE 4 | TENANT’S  SHARE OF OPERATING COSTS AND TAXES                   |   |
|           |                                                                |   |
| 4.1            | Definitions                                                         |   |
|           |                                                                |   |
| 4.2            | Tenant’s Payment Of Operating Costs And  Taxes                 |   |
|           |                                                                |   |
| 4.3            | Refunds; Other Items                                                |   |
|           |                                                                |   |
| ARTICLE 5 | COMPLETION  AND OCCUPANCY OF DEMISED PREMISES                       |   |
|           |                                                                |   |
| 5.1            | Completion of Demised Premises                                      |   |
|           |                                                                |   |
| 5.2            | Occupancy of Demised Premises                                       |   |
|           |                                                                |   |
| ARTICLE 6 | CONDUCT  OF BUSINESS BY TENANT                                      |   |
|           |                                                                |   |
| 6.1            | Use of Demised Premises                                             |   |
|           |                                                                |   |
| 6.2            | Compliance with Laws and Requirements of  Public Authorities        |   |
|           |                                                                |   |
| 6.3            | Rules and Regulations                                               |   |
|           |                                                                |   |
| ARTICLE 7 | COMMON  AREA                                                        |   |
|           |                                                                |   |
| 7.1            | Control of Common Area                                              |   |
|           |                                                                |   |
| 7.2            | Parking                                                             |   |
|           |                                                                |   |
| ARTICLE 8 | REPAIRS,  ALTERATIONS AND MECHANICS’ LIENS                     |   |
|           |                                                                |   |
| 8.1            | Repairs                                                             |   |
|           |                                                                |   |
| 8.2            | Alterations                                                         |   |
|           |                                                                |   |
| 8.3            | Mechanics’ Liens                                               |   |

 

i

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| 8.4             | Indemnification                                         |   |
|-----------------|---------------------------------------------------------|--------|
|            |                                                    |   |
| ARTICLE 9  | UTILITIES  AND BUILDING SERVICES                        |   |
|            |                                                    |   |
| 9.1             | Heating, Ventilating and Air Conditioning               |   |
|            |                                                    |   |
| 9.2             | Cleaning Service                                        |   |
|            |                                                    |   |
| 9.3             | Elevator Service                                        |   |
|            |                                                    |   |
| 9.4             | Electricity                                             |   |
|            |                                                    |   |
| 9.5             | Telecommunications                                      |   |
|            |                                                    |   |
| 9.6             | Interruption of Services                                |   |
|            |                                                    |   |
| 9.7             | Overtime Services                                       |   |
|            |                                                    |   |
| ARTICLE 10 | PERSONAL  PROPERTY TAXES                                |   |
|            |                                                    |   |
| 10.1            | Tenant’s Personal Property                         |   |
|            |                                                    |   |
| ARTICLE 11 | INSURANCE  AND INDEMNITY                                |   |
|            |                                                    |   |
| 11.1            | Tenant’s Insurance                                 |   |
|            |                                                    |   |
| 11.2            | Indemnity and Non-Liability                             |   |
|            |                                                    |   |
| 11.3            | Waiver of Subrogation                                   |   |
|            |                                                    |   |
| 11.4            | Landlords’ Insurance                               |   |
|            |                                                    |   |
| ARTICLE 12 | DAMAGE  BY CASUALTY                                     |   |
|            |                                                    |   |
| 12.1            | Notice                                                  |   |
|            |                                                    |   |
| 12.2            | Restoration of Improvements                             |   |
|            |                                                    |   |
| 12.3            | Damage During Last Year of Lease Term                   |   |
|            |                                                    |   |
| ARTICLE 13 | EMINENT  DOMAIN                                         |   |
|            |                                                    |   |
| 13.1            | Taking of Demised Premises                              |   |
|            |                                                    |   |
| 13.2            | Partial or Temporary Taking of Building                 |   |
|            |                                                    |   |
| 13.3            | Termination                                             |   |
|            |                                                    |   |
| 13.4            | Surrender                                               |   |
|            |                                                    |   |
| 13.5            | Rent Adjustment for Partial Taking of  Demised Premises |   |
|            |                                                    |   |
| 13.6            | Awards                                                  |   |
|            |                                                    |   |
| ARTICLE 14 | RIGHTS  RESERVED TO LANDLORD                            |   |
|            |                                                    |   |
| 14.1            | Access to Demised Premises                              |   |
|            |                                                    |   |
| 14.2            | Additional Rights                                       |   |

 

ii

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| ARTICLE 15 | ASSIGNMENT  AND SUBLETTING                       |   |
|-----------------|--------------------------------------------------|--------|
|            |                                             |   |
| 15.1            | Consent Required                                 |   |
|            |                                             |   |
| ARTICLE 16 | BANKRUPTCY                                       |   |
|            |                                             |   |
| 16.1            | Bankruptcy                                       |   |
|            |                                             |   |
| 16.2            | Measure of Damages                               |   |
|            |                                             |   |
| 16.3            | Adequate Assurance                               |   |
|            |                                             |   |
| ARTICLE 17 | DEFAULT                                          |   |
|            |                                             |   |
| 17.1            | Events of Default                                |   |
|            |                                             |   |
| 17.2            | Damages                                          |   |
|            |                                             |   |
| 17.3            | Waiver of Jury Trial                             |   |
|            |                                             |   |
| 17.4            | Other Remedies                                   |   |
|            |                                             |   |
| 17.5            | Landlord Default                                 |   |
|            |                                             |   |
| ARTICLE 18 | SURRENDER                                        |   |
|            |                                             |   |
| 18.1            | Possession                                       |   |
|            |                                             |   |
| 18.2            | Merger                                           |   |
|            |                                             |   |
| ARTICLE 19 | HOLDING  OVER                                    |   |
|            |                                             |   |
| 19.1            | Holding Over                                     |   |
|            |                                             |   |
| ARTICLE 20 | NO  WAIVER                                       |   |
|            |                                             |   |
| 20.1            | No  Waiver                                       |   |
|            |                                             |   |
| ARTICLE 21 | ESTOPPEL  CERTIFICATE, SUBORDINATION, ATTORNMENT |   |
|            |                                             |   |
| 21.1            | Estoppel Certificate                             |   |
|            |                                             |   |
| 21.2            | Subordination                                    |   |
|            |                                             |   |
| 21.3            | Attornment                                       |   |
|            |                                             |   |
| 21.4            | Mortgages                                        |   |
|            |                                             |   |
| ARTICLE 22 | QUIET  ENJOYMENT                                 |   |
|            |                                             |   |
| 22.1            | Quiet Enjoyment                                  |   |
|            |                                             |   |
| ARTICLE 23 | NOTICES                                          |   |
|            |                                             |   |
| 23.1            | Notices                                          |   |
|            |                                             |   |
| ARTICLE 24 | MISCELLANEOUS  PROVISIONS                        |   |
|            |                                             |   |
| 24.1            | Time                                             |   |

 

iii

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| 24.2            | Applicable Law, Construction and  Arbitration of Disputes |   |
|-----------------|-----------------------------------------------------------|--------|
|            |                                                      |   |
| 24.3            | Parties Bound                                             |   |
|            |                                                      |   |
| 24.4            | No Representations by Landlord                            |   |
|            |                                                      |   |
| 24.5            | Brokers                                                   |   |
|            |                                                      |   |
| 24.6            | Consulting Fee                                            |   |
|            |                                                      |   |
| 24.7            | Severability                                              |   |
|            |                                                      |   |
| 24.8            | Force Majeure                                             |   |
|            |                                                      |   |
| 24.9            | Definition of Landlord                                    |   |
|            |                                                      |   |
| 24.10           | No  Option                                                |   |
|            |                                                      |   |
| 24.11           | Exculpatory Clause                                        |   |
|            |                                                      |   |
| 24.12           | No Recording                                              |   |
|            |                                                      |   |
| 24.13           | Financial Statements                                      |   |
|            |                                                      |   |
| 24.14           | ERISA                                                     |   |
|            |                                                      |   |
| 24.15           | Signage                                                   |   |
|            |                                                      |   |
| 24.16           | Maintenance                                               |   |
|            |                                                      |   |
| ARTICLE 25 | OPTION  TO RENEW                                          |   |
|            |                                                      |   |
| 25.1            | Option to Renew                                           |   |
|            |                                                      |   |
| 25.2            | Fair Market Rent                                          |   |
|            |                                                      |   |
| 25.3            | Dispute of Fair Market Rent                               |   |
|            |                                                      |   |
| 25.4            | Arbitration of Fair Market Rent                           |   |
|            |                                                      |   |
| 25.5            | Conditions                                                |   |
|            |                                                      |   |
| ARTICLE 26 | TENANT  FINISH                                            |   |

 

iv

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| **EXHIBITS** |
|--------------|
|         |   |   |
| EXHIBIT A    | DEMISED PREMISES |   |
| EXHIBIT A-1  | DEMISED PREMISES OCCUPIED (FIRST 24 MOS.) |   |
| EXHIBIT A-2  | STORAGE SPACE |   |
| EXHIBIT A-3  | TEMPORARY SPACE |   |
| EXHIBIT B    | LEGAL DESCRIPTION OF LAND |   |
| EXHIBIT C    | RULES AND REGULATIONS |   |
| EXHIBIT D    | WORK LETTER |   |
| EXHIBIT E    | PERMIT SET OF DRAWINGS |   |
| EXHIBIT F    | PARKING RIDER |   |
| EXHIBIT G    | CLEANING SPECIFICATIONS |   |

 

v

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**LEASE**

 

This Lease is made between Landlord andTenant named in Article l as of the date set forth therein.  Landlord and Tenant, in consideration of thecovenants and agreements contained herein, agree as follows:

 

# **ARTICLE 1REFERENCE DATA AND DEFINITIONS**

#  

The following are definitions of terms usedin this Lease, and each reference in this Lease to any of the followingsubjects shall be construed to incorporate the data, terms, covenants andprovisions stated for that subject in this Article 1, subject to the termsof the balance of this Lease: 

 
| DATE OF EXECUTION   OF THIS LEASE: |   | February 2, 2005 (“**Date of Execution of Lease**”)                                              |   |   |
|------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------|--------|--------|
|                               |   |                                                                                                            |   |   |
| LANDLORD:                          |   | Metropolitan Life Insurance Company, a New  York corporation, on behalf of a commingled separate account        |
|                               |   |                                                                                                            |
| MANAGING AGENT:                    |   | CB Richard Ellis, Inc.                                                                                          |   |   |
|                               |   |                                                                                                            |   |   |
| LANDLORD’S ADDRESS:           |   | c/o CB Richard Ellis, Inc.  88 South 6th Street   Suite 350   Minneapolis, MN 55402   Attn: Real Estate Manager |   |   |
|                               |   |                                                                                                            |   |   |
|                               |   | with a copy to:                                                                                                 |   |   |
|                               |   |                                                                                                            |   |   |
|                               |   | c/o BlackRock Realty Advisors, Inc..  10 Park Avenue  Morristown, NJ 07962   Attn: Cathy Bernstein              |   |   |
|                               |   |                                                                                                            |   |   |
| TENANT:                            |   | KMG America Corporation, a Virginia  corporation                                                                |   |   |
|                               |   |                                                                                                            |   |   |
| TENANT’S ADDRESS:             |   | Date of Execution of Lease to Rent  Commencement Date:                                                          |   |   |
|                               |   |                                                                                                            |   |   |
|                               |   | 7760 France Avenue South  Suite 1000   Minneapolis, MN 55435                                                    |   |   |
|                               |   |                                                                                                            |   |   |
|                               |   | Rent Commencement Date to Expiration Date:                                                                      |   |   |

 

1

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|              |   | 12600 Whitewater Drive  Suite 150  Minnetonka, MN 55343                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |   |   |
|-------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
|              |   | with a copy to:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |   |   |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
|              |   | KMG America Corp.  c/o John D. Piller   Kanawha Insurance Company   210 S. White St.   Lancaster, SC 29720                                                                                                                                                                                                                                                                                                                                                                                                                   |   |   |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
| DEMISED PREMISES: |   | 16,931 rentable square feet located on the  first floor, as shown on Exhibit A. For all purposes of this Lease,  the Demised Premises is agreed to be 16,931 rentable square feet and the  Building is agreed to be 70,705 rentable square feet, subject only to the  following:                                                                                                                                                                                                                                             |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
|              |   | For the first 24 months of this Lease, it  is anticipated Tenant shall only Occupy (defined below) and pay Fixed Rent  (defined below) on 10,000 square feet of rentable space for the first 24  months of the Lease. If Tenant requires the use of and Occupies more than the  area identified and described on Exhibit A-1 before the 25th  month of this Lease, then Tenant shall pay the per square foot charge as  Fixed Rent for any such additional space.                                                            |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
|              |   | The term “**Occupy**,” as used in this Lease, shall not be deemed to  have occurred solely because Tenant exercises its rights under Section 2.3  to enter the Demised Premises early, or that the Demised Premises is improved  with cubicles or that Tenant’s ingress and egress to the Demised Premises or  the Building’s interior elevator is through such space, but in the event  Tenant’s materials or people otherwise occupy such space, such space shall be  deemed to be Occupied. |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| STORAGE SPACE:    |   | Approximately 662 rentable square feet of  storage space as shown on Exhibit A-2 (“**Storage Space**”). Landlord shall install the demising  wall shown on Exhibit A-2 prior to Commencement Date, but such  installation may not be prior to Entry Date (defined below).                                                                                                                                                                                                                                          |
|              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |   |   |
| TEMPORARY SPACE:  |   | Approximately 3500 rentable square feet  shown on Exhibit A-3. Landlord agrees at Landlord’s cost such space  shall be improved with carpeting, a ceiling and a single power pole to  provide electricity for 4 to 6 stations. If Tenant wished to install cabling  and wiring in such space, Tenant shall make such improvements at Tenant’s  sole cost and expense provided Tenant has obtained                                                                                                                  |

 

2

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|                          |   | Landlord’s prior written approval for such  work and shall remove such cabling at the expiration or earlier termination  of the Lease pursuant to Section 9.5 (e).                                                                                                                                                                                                                                                                                                                                                                                                                     |
|-------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| LAND:                         |   | The Land described on Exhibit B.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |   |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |   |
| BUILDING:                     |   | 12600 Whitewater Drive, Minnetonka,  Minnesota                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |   |   |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |   |
| PROPERTY:                     |   | The Land, the Building and all other  improvements located on the Land, including, without limitation, parking  areas, driveways, walkways and landscaped areas.                                                                                                                                                                                                                                                                                                                                                                                                                                 |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| SCHEDULED  COMMENCEMENT DATE: |   | April 1, 2005 so long as the Date of  Execution of this Lease is not later than 5:00 p.m. Central Time on February 2,  2005                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| SCHEDULED   EXPIRATION DATE:  |   | June 30, 2010, based on the  Commencement Date being no later than April 1, 2005.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| RENT COMMENCEMENT   DATE:     |   | October 1, 2005                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| TERM:                         |   | Five (5) years and three (3) months,  subject to adjustment as provided in Section 2.2 below.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| RENEWAL TERM:                 |   | One (1) Renewal Term of five (5) years.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |   |   |
|                          |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |   |
| FIXED RENT:                   |   | **Initial Term**:  (Note: Commencing with the first month following the expiration of the Rent  Abatement Period (as defined below), the Monthly Rent amounts shall be 1/12th  of the annual Fixed Rent amount due and payable. It is anticipated that  Tenant will only occupy the space shown on Exhibit A-1 from the  Commencement Date to the first day of 25th month of the Term, and  Tenant shall pay commencing the 1st day of the seventh month of  the Term at a minimum for such period annual Fixed Rent of $105,000 and  monthly Fixed Rent of $8,750.00. To the extent during such |   |   |

 

3

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|   |   | period Tenant Occupies more than the square  feet shown on Exhibit A-1, then Tenant shall pay monthly 1/12th  of the annual Fixed Rent at the per square foot charge on the amount of space  Occupied, with the charge for the space in excess of the square feet shown on  Exhibit A-1 being prorated based on the number of days such excess  space is Occupied. From and after the first day of the twenty-fifth month  after the Commencement Date through the expiration of the Term, Fixed Rent  shall be payable on 16,931 square feet regardless of the amount of space  Tenant actually Occupies.) |   |                                                                       |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From Rent Commencement Date until the last  day of the sixth month after the Commencement Date (the “**Rent Abatement Period**”):                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   | $0.00 per square foot                                                      |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From the first day of the seventh month  after the Commencement Date until the last day of the twelfth month after the  Commencement Date:                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |   | $10.50 per square foot  Occupied per annum                                 |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From the first day of the thirteenth month  after the Commencement Date until the last day of the twenty- fourth month  after the Commencement Date:                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   | $10.75 per square foot  Occupied per annum                                 |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From the first day of the twenty-fifth  month after the Commencement Date until the last day of the thirty-sixth  month after the Commencement Date:                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   | $11.25 per square foot   times 16,931 square feet   /$190,473.75 per annum |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From the first day of the thirty-seventh  month after the Commencement Date until the last day of the forty-eighth  month after the Commencement Date:                                                                                                                                                                                                                                                                                                                                                                                                                                                      |   | $11.50 per square foot  times 16,931 square feet   /$194,706.50 per annum  |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |   |                                                                       |
|   |   | From the first day of the forty-ninth month  after the Commencement Date until the last day of the sixtieth month after  the Commencement Date:                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   | $11.75 per square foot   times 16,931 square feet   /$198,939.25 per annum |

 

4

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|                                                            |   | From the first day of the sixty-first month  after the Commencement Date until the last day of the sixty-third month after  the Commencement Date:                                                                                                                                                                                                                                                                                                                                   |   | $12.25 per square foot   times 16,931 square feet   /$207,404.75 per annum |
|-----------------------------------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------|
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
|                                                            |   | **Storage Space Rent**  (but not during the Rent Abatement Period)                                                                                                                                                                                                                                                                                                                                                                                                                   |   | $10.00 gross per square   foot of the Storage Space.                       |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
|                                                            |   | **Renewal Term**:                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |   |                                                                       |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
|                                                            |   | Fair Market Rent (as defined in Section 25.2)                                                                                                                                                                                                                                                                                                                                                                                                                                   |   |                                                                       |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
| TENANT’S   PROPORTIONATE SHARE   (excludes Storage Space): |   | From Commencement Date to the last  day of the twenty-fourth month after the Commencement Date: that fraction  whose denominator is 70,705 and whose numerator is 10,000 square feet. To the  extent Tenant actually Occupies more than that area identified and described  on Exhibit A-1 during the first twenty-four months after the Commencement  Date, such fraction shall be adjusted and the percentage prorated based on  the number of days such excess space is Occupied. |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
|                                                            |   | From the first day of the twenty-fifth  month after the Commencement Date until the last day of the sixty-third month  after the Commencement Date: 23.95%.                                                                                                                                                                                                                                                                                                                          |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
| DEFAULT RATE:                                                   |   | The lesser of (1) twelve percent (12%)  per annum, or (2) the maximum rate of interest permitted by law.                                                                                                                                                                                                                                                                                                                                                                   |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| SECURITY DEPOSIT AMOUNT:                                        |   | $8,750.00 if required by the terms of Section 3.4  below.                                                                                                                                                                                                                                                                                                                                                                                                                       |   |                                                                       |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |                                                                       |
| NORMAL BUSINESS HOURS:                                          |   | Monday through Friday: 7:00 A.M. to 6:00  P.M. Saturdays: 8:00 A.M. to 1:00 P.M.                                                                                                                                                                                                                                                                                                                                                                                                     |
|                                                            |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| BROKER:                                                         |   | CB Richard Ellis, Inc.                                                                                                                                                                                                                                                                                                                                                                                                                                                               |   |                                                                       |

 

5

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# **ARTICLE 2**

 

# **DEMISED PREMISES ANDTERM**

#  

## **2.1****                               DemisedPremises and Storage Space**.

##  

Landlord hereby leases unto Tenant, andTenant hereby leases from Landlord, the Demised Premises and Storage Space,subject to the covenants, agreements, terms, conditions, limitations,exceptions and reservations of this Lease.

 

## **2.2****                               Term**.

##  

### (a)                                  The Term shall meanthe period set forth in Article 1 and shall commence on the earlier tooccur of (the “**Commencement Date**”):(i) the later to occur of (A) April 1, 2005, and (B) the date thatthe Demised Premises are available for occupancy, as determined under Section 5.1,or (ii) the date on which Tenant or anyone claiming by, under or throughTenant shall first Occupy any portion of the Demised Premises for any purposeother than to prepare the Demised Premises for the conduct of Tenant’sbusiness; and shall end, unless sooner terminated as herein provided orpursuant to law, at the close of business on the Scheduled Expiration Date.

###  

### (b)                                 If for any reason otherthan a Tenant Delay (defined below in Section 5.1), the Demised Premisesare not substantially completed and permitted under Applicable Law as beingavailable for occupancy (“**Turn OverCondition**”) March 31, 2005 (such date being referred to asthe “**Finish Date**”),Landlord shall pay to Tenant the Daily Fee (defined below) for each day afterthe Finish Date the Demised Premises are not in Turn Over Condition, but theaggregate of such amount shall not exceed seven Thousand Dollars ($7,000.00) (“**Cap**”). By Tenant’s execution of this Lease, Tenant hereby expressly approvesthe permit set of drawings referred to in Exhibit E and such drawingsare defined as the “**Permit Set of Drawings”**).  The Daily Fee shall be the per diem amountpayable by Tenant at its existing executive suite space located at 7760 FranceAvenue South, Minneapolis, Minnesota (“**ExistingLease**”), but in no event more than the Cap.  Landlord shall not be liable for any otherclaims, damages or liabilities in connection with such failure, nor shall thesame make this Lease void or voidable. In any event, in the event of such delay in delivery of the DemisedPremises to Tenant, Tenant agrees to use its good faith reasonable efforts tomitigate damages under its Existing Lease so as to mitigate Landlord’sobligations as set forth herein.

###  

### (c)                                  The expiration date(the “**Expiration Date**”) ofthe Term shall be the Scheduled Expiration Date set forth in the Schedule,unless, however, the Commencement Date occurs after the Scheduled CommencementDate set forth in the Schedule, in which event the Expiration Date shall beextended to a date which shall allow the term of this Lease to be the completeTerm set forth in the Schedule; provided, however, that if such extendedExpiration Date would occur on a day other than the last day of a calendarmonth, then the Expiration Date shall be the last day of such calendar month.

 

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### (d)                                 Following theCommencement Date, the parties shall, at either party’s request, execute asupplemental agreement to become a part hereof setting forth the CommencementDate and Expiration Date of the Term, as determined under the provisions ofthis Article.  The parties’ failure toexecute such supplemental agreement shall in no way affect Tenant’s obligationto perform under this Lease.

###  

## **2.3****                               Tenant’sEntry upon Demised Premises before Commencement Date**.

##  

Provided that Tenant complies at all timeswith the provisions and requirements of this Lease (other than the obligationto pay Fixed Rent and, except as provided for below, the obligation to payAdditional Rent (as defined below)), Tenant may (i) access and use the Building’sinterior elevator beginning on the Date of Execution of Lease and (ii) enterthe Demised Premises prior to the Commencement Date, but not earlier than theEntry Date defined below to install trade fixtures and furnishings and to makethe Demised Premises ready for the conduct of Tenant’s business provided,however, that except as set forth in the last sentence of this Section 2.3,Tenant does not interfere with Landlord’s Work (as defined below), if any, andprovided further that such contractors as Tenant may engage to undertake suchinstallations and other preparatory work shall be subject to Landlord’s (orLandlord’s duly appointed agent’s) written approval (which approval shall notbe unreasonably withheld) prior to engagement. The “**Entry Date**” shall be March 25,2005 so long as the Tenant has fully executed and delivered this Lease toLandlord no later than February 2, 2005. If Tenant fails to so execute and deliver, then the Entry Date shall bethe date named by Landlord using Landlord’s commercially reasonable efforts topromptly commence Landlord’s Work. Tenant acknowledges that Landlord may not be able to install the storagedemising wall during the Temporary Premises Term.

 

## **2.4****                               TemporaryPremises**.

##  

Upon the Date of Execution of Lease, Tenantmay lease and occupy the Temporary Space (“**TemporaryPremises**”) for all uses permitted under the Lease, including butnot limited to the installation of wires and cables to accommodate workstations(“**Temporary Space Wiring**”).  Tenant’s lease of the Temporary Premisesshall be subject to all of the terms, conditions and limitations regarding theDemised Premises as set forth in this Lease, except as follows:

 

### (a)                                  The term for Tenant’slease of the Temporary Premises shall be the period commencing on the Date ofExecution of Lease and expiring on the Commencement Date (“**Temporary Premises Term**”).

###  

### (b)                                 The rent for the TemporaryPremises shall be $0.00 per rentable square foot of the Temporary Premisesduring the Temporary Premises Term (“**TemporaryPremises Rent**”).  Tenantshall not be obligated to pay any Additional Rent (as defined below) inconnection with Tenant’s lease of the Temporary Premises.

###  

### (c)                                  Tenant agrees that(i) Tenant shall accept the Temporary Premises in its current “as-is”condition, except Landlord shall deliver the Temporary Premises to Tenant inbroom-clean condition, with carpet, ceiling installed and a single power poleproviding electricity to 4 to 6 work stations, (ii) Except for the carpet andceiling,

 

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### Landlord shall not be required to constructany improvements in the Temporary Premises and (iii) Landlord has not made anyrepresentation or warranty regarding the Temporary Premises or its suitabilityfor the conduct of Tenant’s business.

###  

# **ARTICLE 3**

 

# **RENT AND SECURITYDEPOSIT**

#  

## **3.1****                               FixedRent**.

##  

Commencing on the Rent Commencement Date,Tenant shall pay to Landlord, without any prior demand therefor and without anydeduction or setoff whatsoever, the Fixed Rent set forth in Article 1.  Fixed Rent shall be due and payable inmonthly installments each equal to the Monthly Fixed Rent set forth in Article l,in advance on the first day of each and every calendar month during theTerm.  Tenant shall pay to Landlord uponexecution of this Lease an amount equal to the first Monthly Fixed Rent, whichamount shall be held by Landlord without interest and applied to the firstMonthly Fixed Rent obligation of Tenant.

 

## **3.2****                               AdditionalRent**.

##  

Any sums or charges to be paid by Tenantpursuant to the provisions of this Lease, other than the Fixed Rent, shall bedesignated as “**Additional Rent**”and shall be payable within 5 days after Landlord gives written notice thatpayment is due, unless otherwise provided in this Lease.  Without limiting the generality of theforegoing, Additional Rent includes Tenant’s Expense Charge.  Landlord shall have the same rights againstTenant for default in payment of Additional Rent as for default in payment ofthe Fixed Rent.  As used in this Lease,the term “**Rent**” shall meanthe Fixed Rent and Additional Rent.

 

## **3.3****                               PastDue Rent**.

##  

Any amount due from Tenant to Landlord whichis not paid when due shall bear interest at the Default Rate from the date suchpayment is due, after the expiration of any applicable grace period andprovided Tenant is notified by Landlord and fails to cure such default asdescribed in Section 17.1(a) herein, until paid.  The rate so determined shall continue ineffect following any default by Tenant pursuant to this Lease.  Payment of such interest shall not excuse orcure any default by Tenant under this Lease. The parties agree that the payment of interest is to compensate Landlordfor its inability to use the money improperly withheld by Tenant and for itsadditional administrative expenses in handling and processing delinquentpayments.

 

## **3.4****                               SecurityDeposit**.

##  

### (a)                                  Tenant shall berequired to provide to Landlord a Security Deposit (as defined below), andTenant shall deposit with Landlord the Security Deposit within five businessdays after the Date of Execution of Lease and, thereafter throughout the Termshall keep on deposit with Landlord, the Security Deposit Amount set forth in Article 1as security for the payment by Tenant of the Rent and for the faithfulperformance of all the terms, conditions and covenants of this Lease (the “**Security Deposit**”).  Landlord shall

 

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### not be obligated to keep the Security Depositas a separate fund, but may commingle the Security Deposit with Landlord’s ownfunds.

###  

### (b)                                 Landlord may, butshall not be required to, use the Security Deposit, or so much thereof asnecessary, in payment of any Rent in default, or in reimbursement of anyexpense incurred by Landlord or in payment of the damages incurred by Landlordby reason of Tenant’s default, after any applicable grace and cure period.  In such event, Tenant shall, upon writtendemand from Landlord, immediately remit to Landlord a sufficient amount in cashto restore the Security Deposit to equal the Security Deposit Amount.  Within 30 days after the expiration of thisLease and surrender of the Demised Premises in accordance with the terms andconditions of this Lease, and in the event the Security Deposit has not beenutilized as aforesaid, the Security Deposit, or as much thereof as has not beenutilized for such purposes, shall be refunded to Tenant without interest.  Landlord may deliver the Security Deposit tothe purchaser of Landlord’s interest in the Demised Premises in the event suchinterest is sold, and, in such instance, Landlord named herein shall bedischarged from any further liability with respect to the Security Deposit andTenant shall look to Landlord’s successor for the return of the SecurityDeposit.  Notwithstanding the foregoing,if any claims of Landlord exceed the amount of the Security Deposit, Tenantshall remain liable for the balance of such claims.

###  

## **3.5****                               RentPayments**.

##  

All Rent payments shall be made to Landlordat the address set forth in Article l, or at such other place designatedby Landlord in writing, in lawful currency of the United States ofAmerica.  Rent payments applicable topartial months falling within the Term or occurring as a result of theapplication of the Monthly Fixed Rent payable upon Lease execution shall beprorated.

 

# **ARTICLE 4**

#  

# **TENANT’S SHARE OFOPERATING COSTS AND TAXES**

#  

## **4.1****                               Definitions**.

##  

As used herein:

 

### (a)                                  “**Operating Costs**” shall mean any and allcosts, charges, expenses and disbursements of every kind and nature whichLandlord shall pay or become obligated to pay in connection with the operation,ownership, maintenance, property management, and repair of the Property (and noother properties), including, without being limited to, the following:

###  

#### (1)                                  All wage, salary andlabor costs of all persons but only for that portion of the time such personsare engaged in the operation, maintenance, property management, and repair ofthe Property and no other properties (including, without being limited to, allapplicable taxes, insurance and benefits), but expressly excluding any oneperforming asset management services.

 

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#### (2)                                  Costs of any utilitiessupplied by Landlord (including, without being limited to, heat, electricity,gas, water and sewer), fuel and supplies and materials and costs of theoperation and maintenance of all Property systems (including, without beinglimited to, heating, ventilation and air-conditioning (“**HVAC**”) systems and telecommunicationssystems).

####  

#### (3)                                  Costs to insure theProperty (and no other properties) and incidents relating to the Property (andno other properties), including, without being limited to, casualty, workers’compensation, rental and liability insurance; provided, however thatdeductibles of such insurance coverage shall not exceed commercially reasonableamounts from time to time for similar properties owned by similar entities inthe reasonable and prudent judgment of such entities.

####  

#### (4)                                  Subject to Section 9.2,costs of all maintenance and service agreements for the Property (and no otherproperties), including, without being limited to, window and other cleaning,snow removal, painting in parking lot, security, elevator maintenance, andjanitorial service.

####  

#### (5)                                  Subject to terms andconditions set forth in Sections 4.1 (a) (vii) and 4.1(a)(xix), costs ofrepairs, replacements, decorations, and general maintenance for the Property(and no other properties), including, without being limited to, exteriorbuilding maintenance, paving, curbs, drainage, lighting, sidewalks andlandscaping.

####  

#### (6)                                  Professional fees andexpenses (including, without being limited to, reasonable legal and accountingfees) limited solely to that portion of those fees which directly arises out ofand relates to the operation of the Building as defined herein.

####  

#### (7)                                  All costs of makingany alterations to the Building for life-safety systems or energy conservationor other capital improvements required by any governmental requirement enactedor amended after the date hereof or which are primarily for the purpose ofreducing or stabilizing Operating Costs or providing additional or increasedservices to the tenants of the Building, amortized over the useful life of suchimprovements, with a return on capital at the rate of ten percent (10%) perannum.

####  

#### (8)                                  All propertymanagement fees, costs and expenses. Said fees, costs and expenses shall be limited to the current marketrate for such services from time to time during the Term of the Lease.

####  

If Landlord isnot furnishing any particular work or service (the cost of which if performedby Landlord would constitute an Operating Cost) to a tenant (other than Tenant)who has undertaken to perform such work or service in lieu of the performancethereof by Landlord, Operating Costs shall be increased by an amount equal tothe additional Operating Costs which would have been incurred during suchperiod by Landlord if it had at its own expense furnished such work or servicesto such tenant.  In

 

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determining the amount of Operating Costs forany calendar year, if less than 95% of the net rentable square feet of theBuilding shall have been occupied by tenant(s) at any time during such calendaryear, Operating Costs shall be determined for such year to be an amount equalto the like expenses which would have been incurred had such occupancy been 95%throughout such year. The foregoing adjustment in Operating Costs shall only beapplied with respect to Operating Costs which vary with the level of occupancy.

 

The followingexpenses are excluded from Operating Costs:

 

##### (i)                                     depreciation andamortization;

#####  

##### (ii)                                  expenses incurred byLandlord to prepare, renovate, repaint, redecorate or perform any other work inany space leased to an existing tenant or prospective tenant of the Building;

#####  

##### (iii)                               expenses incurred byLandlord or other tenants for repairs or other work occasioned by fire,windstorm, or other insurable casualty or condemnation;

#####  

##### (iv)                              expenses incurred byLandlord to lease space to new tenants or to retain existing tenants includingleasing commissions, advertising and promotional expenditures in connectionwith leasing or releasing of space;

#####  

##### (v)                                 expenses insured byLandlord to resolve disputes, enforce or negotiate lease terms with prospectiveor existing tenants or in connection with any financing, sale or syndication ofthe Building;

#####  

##### (vi)                              interest, principal,points and fees, amortization or other costs associated with any debt and rentpayable under any lease to which this Lease is subject and all costs andexpenses associated with any such debt or lease and any ground lease rent,irrespective of whether this Lease is subject or subordinate thereto;

#####  

##### (vii)                           Capital improvements willnot be passed through, except that capital improvements that are intended toreduce Operating Costs or required by law will be passed through undergenerally accepted accounting principles as specified in Section 4.1(a)(7),which includes amortizing such capital improvements over the useful life ofsuch improvement;

#####  

##### (viii)                        expenses for the replacement ofany item covered under warranty;

#####  

##### (ix)                                any penalty or fineincurred by Landlord due to Landlord’s violation of any federal, state or locallaw or regulation or failure to comply with any agreement;

 

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##### (x)                                   cost of repairsnecessitate by Landlord’s negligence or willful misconduct;

#####  

##### (xi)                                expenses for any itemor service which Tenant pays directly to a third party or separately reimbursesLandlord and expenses incurred by Landlord to the extent the same arereimbursable or reimbursed by another tenant, insurance or other third parties;

#####  

##### (xii)                             expenses for any item orservice not provided to Tenant but exclusively to certain other tenants in theBuilding;

#####  

##### (xiii)                          salaries of (A) employeesabove the grade of Building superintendent or Building manager, and (B)employees, to the extent such employee’s time is not spent in the operation ofthe Property;

#####  

##### (xiv)                         Landlord’s general corporateoverhead and administrative expenses;

#####  

##### (xv)                            fees paid to affiliates ofLandlord in excess of competitive rates for comparable services;

#####  

##### (xvi)                         costs to remove, abate,encapsulate, test or otherwise handle or dispose of hazardous material tocomply with current environmental laws;

#####  

##### (xvii)                      legal fees related to any actioninvolving tenants or prospective tenants in the Building; and

#####  

##### (xviii)                   costs of complying with requirementsof the Americans With Disabilities Act applicable to the Common Area (asdefined in Section 7.1 below) of the Building as of the date of thisLease.

#####  

##### (xix)                           costs or expenses related towindow replacement or repairs and related damage arising from defects inwindows and from seepage of moisture into the curtain wall and condensationfrom such defects (ordinary operating expenses for maintenance, repair andreplacement of windows, including caulking, shall not be excluded hereby).

#####  

##### (xx)                              costs or expenses ofenvironmental air quality inspections and reports concerning mold, mold spores,excessive bacteria in the Demised Premises and repairs and replacements arisingfrom negative results from such inspections and reports (ordinary operatingexpenses for maintenance, repair and replacement of air quality equipment andsystems shall not be excluded hereby).

#####  

The foregoingdefinition, and exclusions, of Operating Costs are intended to permit Landlordto recover Operating Costs actually incurred by Landlord only and is not 

 

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intended to permit Landlord to recover morethan 100% of Operating Costs incurred by Landlord.

 

### (b)                                 “**Taxes**” shall mean the aggregate amountof real estate and personal property taxes and any special assessments levied,due and payable upon the Property, or any portion thereof, other than any wateror sewer charge to the extent the same are included in Operating Costs for theapplicable calendar year, except, however, Taxes shall not include any estate,inheritance, succession, transfer, gift, corporate franchise, excise orpersonal or corporate net income or property tax imposed upon Landlord.  If because of any change in the taxation ofreal estate, any other tax, assessment or surcharge of any kind or nature(including, without being limited to, any franchise, income, profit, sales,use, occupancy, gross receipts or rental tax) is imposed upon, against or withrespect to Landlord, or the occupancy, rents or income there from, either inlieu of, in substitution for or in addition to any of the foregoing Taxes, suchother tax, assessment or surcharge (which shall be measured as if the Property,or applicable portion thereof, as the case may be, were the only asset ofLandlord or such owner) shall be deemed part of Taxes.  With respect to any calendar year, allexpenses, including attorneys’, accounting and experts’ fees and expenses andadministration costs and expenses, incurred in contesting the validity oramount of Taxes, the assessed valuation of the Property, or any portionthereof, or in obtaining a refund of Taxes shall be considered as part of Taxesfor such year.  However, no suchattorneys’, accounting and/or expert fees, expenses or administration costsshall be considered as part of Taxes unless a net tax savings is realizedduring that calendar year.

###  

## **4.2****                               Tenant’sPayment Of Operating Costs And Taxes**.

##  

### (a)                                  For each calendaryear, or portion thereof, during the Term, Tenant shall pay to Landlord, asAdditional Rent, at the times and in the manner provided below, Tenant’sProportionate Share of the sum of (1) Operating Costs for such calendaryear, and (2) Taxes for such calendar year (collectively, “**Tenant’s Expense Charge**”).

###  

### (b)                                 At any time during theTerm, Landlord shall have the right to compute and deliver to Tenant anestimate (an “**Estimate**”) ofTenant’s Expense Charge for the applicable calendar year and, without furthernotice, Tenant shall pay to Landlord commencing with the next payment ofMonthly Fixed Rent and continuously thereafter with payments of Monthly FixedRent until delivery of the next Estimate, monthly installments equal toone-twelfth of the amount set forth in such Estimate, together with, in thecase of the first such monthly payment, an amount equal to the differencebetween (i) the amount of such monthly installment times the number ofmonths occurring during the Term in such year preceding the first monthlypayment based on such Estimate, less (ii) the amount of any monthlyinstallments in respect of the prior Estimate theretofore paid to Landlordduring the Term in such year.  In theevent Landlord is required under any mortgage of any portion of the Property,including the Building, to escrow Operating Costs and/or Taxes, Landlord may(without obligation) use the amount required to be escrowed as a basis fordetermining the Estimate.

 

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### (c)                                  Landlord will deliverto Tenant within 120 days after the end of each calendar year during the Term awritten statement (the “**Statement**”)setting out in reasonable detail Tenant’s Expense Charge for such yearcertified to be correct by Landlord.  Ifthe aggregate of the monthly installments actually paid by Tenant to Landlordon account of the estimated Tenant’s Expense Charge during any calendar year(the “**Actual Payments**”)differs from the amount of Tenant’s Expense Charge payable according to theStatement (the “**Obligated Payments**”),Tenant shall (1) if the Obligated Payments shall exceed the ActualPayments, pay to Landlord, within 30 days after the date of delivery of theStatement, an amount equal to such excess, or (2) if the Actual Paymentsshall exceed the Obligated Payments, be granted a credit against the nextinstallments of Tenant’s Expense Charge in an amount equal to such overpayment.

###  

### (d)                                 Tenant shall have theright to examine Landlord’s books and records with respect to the items in aStatement during Normal Business Hours (except, however, Saturdays) at any timewithin forty-five (45) days following the furnishing of the Statement toTenant.  In conducting such examination,Tenant must utilize either its own full time salaried employees or anindependent certified public accountant (“**CPA**”),which CPA shall be paid by Tenant on an hourly fee for services rendered basis,and not on a contingency fee basis, and which CPA shall be subject to Landlord’sreasonable prior approval.  Unless Tenanttakes written exception to any item on the subject Statement within ninety (90)days after the furnishing of the Statement, such Statement shall be consideredas final and accepted by Tenant.  IfTenant timely provides such written exception to Landlord, but if Landlord andTenant disagree on the accuracy of Tenant’s Expense Charge as set forth in theStatement, Tenant shall nevertheless make payment in accordance with theStatement, but the disagreement shall immediately be referred by Landlord forprompt decision to a mutually acceptable public accountant or otherprofessional consultant (provided, however, that Landlord and Tenant agree thatsuch accountant or other professional consultant shall not have providedservices to Landlord in connection with the Building during the prior threeyears and shall not have provided services to Tenant during the prior threeyears) who shall be deemed to be acting as an expert and not as an arbitrator,and a determination signed by the selected expert shall be final and binding onboth Landlord and Tenant.  If Landlordand Tenant shall fail to agree on such an expert within 15 days after Tenant’snotice of disagreement (as hereinafter described), such expert shall beselected by the president of the local chapter of the National Association ofReal Estate Boards.  If an adjustment isrequired to be made by reason of any such determination, then (i) ifTenant owes Landlord an amount as a result of such adjustment, Tenant shall paysuch amount within thirty (30) days after final determination or (ii) ifLandlord owes Tenant an amount as a result of such adjustment, Landlord shallcredit such amount against the next installment of Tenant’s ExpenseCharge.  If the adjustment is greaterthan 5% and the amount of the adjustment is to be paid to Tenant, Landlord willpay the cost of the expert; otherwise Tenant will pay the cost of the expert.

###  

## **4.3****                               Refunds;Other Items**.

 

In the event a refund of any Operating Costsor Taxes is obtained and actually paid to Landlord, Landlord shall creditTenant’s pro rata portion thereof (after deducting any

 

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unrecouped actual expenses incurred in connection with obtaining suchrefund) to the next installment(s) of Tenant’s Expense Charge.

 

# **ARTICLE 5**

#  

# **COMPLETION ANDOCCUPANCY OF DEMISED PREMISES**

#  

## **5.1****                               Completionof Demised Premises**

##  

The Demised Premises shall be deemedavailable for occupancy when Landlord notifies Tenant, in writing, that thework required to be performed by Landlord (“**Landlord’s Work**”), if any, described in Exhibit D tothis Lease (the “**Work Letter**”)and the Permit Set of Drawings has been substantially completed and permittedunder Applicable Law as being available for occupancy.  Landlord’s Work shall be deemed substantiallycompleted notwithstanding that (a) certain minor or non-material detailsof construction, mechanical adjustment or decoration (“**punch list items**”) are incomplete, or(b) portions of Landlord’s Work are incomplete because such work cannot beperformed until work to be performed by or on behalf of Tenant iscompleted.  In the event Landlord isdelayed in completing Landlord’s Work by any delay, interference or hindrance,directly or indirectly, of such work (1) by Tenant, Tenant’s contractorsor any of their employees or agents, (2) by any Additional Work (asdefined in the Work Letter) requested by Tenant and agreed to by Landlord, or(3) by Tenant’s failure to timely and properly perform any of itsobligations imposed pursuant to the Work Letter or if Tenant’s furniture vendordoes not complete furniture installation before March 31, 2005 so long asLandlord provides Tenant access on the Entry Date (any of the foregoing being a“**Tenant Delay**”), theDemised Premises shall be conclusively deemed substantially completed andavailable for occupancy on the date on which the same would have occurred inthe absence of such Tenant Delay, which date shall be determined by Landlordand documented to Tenant.

 

## **5.2****                               Occupancyof Demised Premises**.

##  

The occupancy of the Demised Premises or anypart thereof for business by Tenant or anyone claiming by, under or throughTenant shall be conclusive evidence that (a) Tenant accepts possession;(b) the Demised Premises were in good and satisfactory condition, subjectto latent defects; and (c) Landlord’s Work, if any, was satisfactorilycompleted at the time such occupancy was so taken, subject to punch list items,if any, indicated on a list delivered by Tenant to Landlord and agreed to byLandlord on or before the date Tenant takes occupancy of the Demised Premisespursuant to Exhibit D.

 

# **ARTICLE 6**

#  

# **CONDUCT OF BUSINESSBY TENANT**

#  

## **6.1****                               Useof Demised Premises**

##  

Tenant shall use the Demised Premises duringthe Term solely for general office uses and for no other purpose and shall notviolate the Restrictions.

 

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## **6.2****                               Compliancewith Laws and Requirements of Public Authorities**.

##  

### (a)                                  At all times duringthe Term, Tenant shall give prompt notice to Landlord of any notice Tenantreceives of any violation of any law or requirement of a governmentalauthority, or any regulation of the board of fire underwriters havingjurisdiction over the Property, affecting the Demised Premises (“**Applicable Law**”), and, at its sole costand expense, shall comply with all Applicable Laws, including any violation,order or duty imposed upon Landlord or Tenant, arising from or relating to(1) Tenant’s use of the Demised Premises; (2) the manner or conductof Tenant’s business or operation of its installations, equipment or otherproperty therein; (3) any event or condition caused or permitted byTenant; or (4) breach of any of Tenant’s obligations hereunder.  Further, Tenant, at its sole cost andexpense, shall comply with the requirements of the Americans With DisabilitiesAct applicable to the Demised Premises. To the extent that Landlord receives such notice directly, Landlord agreespromptly to provide Tenant with a copy of such notice after Landlord’s receiptof the same and Tenant’s time to respond shall run from the date of Tenant’sactual receipt of such notice, whether received directly or from Landlord, inorder that Tenant might comply therewith.

###  

### (b)                                 Tenant shall not do,permit or suffer any act or thing to be done which is injurious to the Propertyor the Demised Premises, which is immoral, a nuisance, contrary to ApplicableLaw or in violation of the certificate of occupancy issued for the Building orwhich would result in the cancellation of, or any increase in premiums for,insurance maintained by Landlord with respect to the Property or the DemisedPremises.

###  

### (c)                                  Tenant shall not, norshall Tenant allow any person to, generate, manufacture, process, transport,recycle, spill, leak, emit, use, handle, possess, treat, store, dispose of,transfer, release, convey or recover Hazardous Materials (as hereinafterdefined) in, on, under or from the Demised Premises; provided, however, anyHazardous Material lawfully permitted and generally recognized as necessary andappropriate for general office use may be stored and used on the DemisedPremises so long as (i) such storage and use is in the ordinary course ofTenant’s business permitted under this Lease; (ii) such storage and use isperformed in compliance with all applicable Environmental Laws (as hereinafterdefined) and in compliance with the highest standards prevailing in theindustry for the storage and use of such materials; and (iii) Tenantdelivers prior written notice to Landlord of the identity and quantity of suchmaterials and such other information regarding such materials as Landlord mayrequest.  Without limiting other rightsor remedies available to Landlord under this Lease or at law or equity, in theevent of a default by Tenant under this Section, Landlord shall immediatelyhave the right to injunctive relief.  “**Hazardous Materials**” shall mean(i) any solid, liquid or gaseous waste, substance or emission or anycombination thereof which may (a) cause or significantly contribute to anincrease in mortality or serious illness, or (b) pose the risk of asubstantial present or potential hazard to human health, to the environment orotherwise to animal or plant life and/or (ii) hazardous substances as definedby the Comprehensive Environmental Response, Compensation and Liability Act of1980, as amended; petroleum and any of its derivatives or byproducts; asbestos;polychlorinated biphenyls; radon; and any material and/or substance defined as,or regulated as, a 

 

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### pollutant, waste, hazardous, extremelyhazardous, toxic, or dangerous under any law, regulation or ordinanceincluding, without limitation, any Environmental Law.  Tenant shall immediately notify Landlord ofthe presence or suspected presence of any Hazardous Materials on or about theDemised Premises and shall deliver to Landlord any notice received by Tenantrelating thereto.  “**Environmental Laws**” means any and allpresent and future federal, state and local laws, regulations, rules, orders,guidelines, policies and requirements of any governmental authority relatingto: the protection, remediation or restoration of the environment, naturalresources or wildlife; pollution; Hazardous Materials; or public health and/orsafety.

###  

### (d)                                 Tenant agrees that itshall not keep, use, sell or offer for sale in or upon the Demised Premises anyarticle that may be prohibited by any then available standard forms offire insurance policies with extended coverage. Tenant agrees to pay to Landlord any increase in premiums for insurancemaintained by Landlord with respect to the Demised Premises or the Propertyresulting from the use of the Demised Premises by Tenant, whether, or notLandlord has consented to such use.

###  

### (e)                                  Tenant shall pay allcosts, expenses, fines, penalties or damages that may be imposed upon Landlordby reason of Tenant’s failure to comply with the provisions of this Section 6.2.

###  

## **6.3****                               Rulesand Regulations**.

##  

Tenant and its agents, employees, contractorsand invitees shall faithfully observe and comply with the rules and regulationsattached hereto as Exhibit C and incorporated herein by this reference,and such changes thereto, whether by modification, elimination or addition, asLandlord may, at any time and from time to time, make in respect of the DemisedPremises and/or the Property (the “**Rulesand Regulations**”).  Suchchanges shall be effective upon prior written notice thereof from Landlord toTenant.  In the case of any conflict orinconsistency between the provisions of this Lease and any of the Rules andRegulations, as originally promulgated or as changed, the provisions of thisLease shall control.  Nothing containedin this Lease shall be construed to impose upon Landlord any duty or obligationto enforce the Rules and Regulations, or the provisions in any other lease, asagainst any other tenant; provided, however, that Landlord shall not enforcethe Rules and Regulations so as unjustly to discriminate against Tenant.

 

# **ARTICLE 7**

#  

# **COMMON AREA**

#  

## **7.1****                               Controlof Common Area**.

##  

### (a)                                  As used in thisLease, the term “**Common Area**”shall mean that part of the interior and exterior portions of the Propertydesignated by Landlord for the common use of all tenants, which includesparking area, sidewalks, landscaping, curbs, driveways, delivery passages,loading areas, seating areas, private streets and alleys, lighting facilities,drinking fountains, meeting rooms, lunch/break room, public toilets and the

 

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### like. Landlord grants Tenant a nonexclusive license for the Term, to use incommon with the invitees of Landlord and Tenant and such other persons asLandlord and Tenant shall designate, the Common Area, subject to the terms andconditions of this Lease and to the Rules and Regulations.

###  

### (b)                                 Landlord reserves theright, at any time and from time to time, without incurring any liability toTenant therefor, to change the arrangement, dimensions and/or location ofpublic entrances, passageways, doors, doorways, corridors, elevators, stairs,toilets, parking areas, seating areas, or other parts of the Common Area solong as Tenant’s use and access of the Premises is not materially and adverselyaffected.  In such event, Landlord shallrepair any physical damage caused to the Demised Premises.  Notwithstanding the foregoing, Landlordagrees not to relocate or decrease the dimensions of the current lunch/breakroom without prior written notice to and approval by Tenant.  Tenant agrees to review and approve ordisapprove such changes in good faith within ten days after Tenant’s receipt ofwritten request for approval.  If Tenantshall fail to respond to such request within such ten days, Tenant shall bedeemed to have approved such change. Furthermore, to the extent Landlord otherwise alters any aspect of thelunch/break room other than location and dimensions, Landlord agrees tomaintain a first class quality facility.

###  

### (c)                                  Subject to Tenant’sright of quiet enjoyment as set forth in Section 22.1 herein, Landlordreserves the right, at any time and from time to time, to use portions of theCommon Areas for art and other displays, promotional events and other uses notinconsistent with the character of the Building.

###  

## **7.2****                               Parking**.

##  

Tenant shall have only such parking rights asare provided in the Parking Rider set forth as Exhibit F attachedhereto.

 

# **ARTICLE 8**

#  

# **REPAIRS, ALTERATIONSAND MECHANICS’ LIENS**

#  

## **8.1****                               Repairs**.

##  

### (a)                                  Landlord shall makeall necessary repairs to keep the roof, exterior walls, foundation and structuralframe of the Building, the common Building systems, fixtures and equipment(such as elevators, common Building heating, ventilating and air-conditioningsystems, windows, and common Building telecommunications, electrical andplumbing systems, provided, however, that Landlord shall have no responsibilityfor any such equipment owned or maintained by tenants or other third parties orany damage to such systems caused by tenants or other third parties) and theCommon Area in good order and repair, excluding, however, all repairs whichTenant is obligated to make or pay for pursuant to this Section 8.1 andall repairs which any other tenant of the Building is required to make pursuantto the terms of such tenant’s lease. Tenant shall give Landlord prompt noticeof any defective condition in any ventilating, air-conditioning,

 

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### plumbing, heating system, electrical lines orwindows located in, servicing or passing through the Demised Premises andfollowing such notice, Landlord shall use commercially reasonable efforts wherepracticable to initiate all repairs promptly and to remedy the condition withdue diligence, subject to unavoidable delay, but at the expense of Tenant ifrepairs are necessitated by any act attributable to Tenant, Tenant’s servants,agents, employees, invitees or licensees; provided, however, that no liabilityof Landlord to Tenant shall accrue hereunder unless and until Tenant has givennotice to Landlord of the specific repair to be made.  Tenant shall have the right from time to timeat its election to test the air quality in the Demised Premises.  Such tests shall be at Tenant’s sole cost andexpense except that Landlord shall reimburse Tenant the actual and reasonablecost of such test in the event the test results show an unacceptable airquality condition according to industry standards reasonably determined.

###  

### (b)                                 Tenant, at its solecost and expense, shall take good care of the Demised Premises, including allfloor coverings and doors in the Demised Premises, and Tenant’s property andfixtures.  All repairs made by or onbehalf of Tenant shall be made and performed in accordance with the provisionsof Section 8.2 and shall be at least equal in quality and design to theoriginal construction of the Demised Premises and the Building.  If Tenant fails to proceed with due diligenceto make repairs required to be made by Tenant, and such failure shall continuefor 10 days after notice from Landlord, the same may be made by Landlord at theexpense of Tenant and the amount so incurred by Landlord shall be paid toLandlord by Tenant immediately upon submission of a bill or statement thereforby Landlord.  Tenant shall have noresponsibility for the maintenance or upkeep of plate glass or windows in theDemised Premises, except to the extent Tenant is responsible for the breakageof such plate glass or windows in which case the above provisions of Article 8.1would otherwise apply.

###  

## **8.2****                               Alterations**.

##  

Tenant shall not make any alterations, additionsor improvements (collectively, “**Alterations**”)in or to the Demised Premises without Landlord’s prior written consent, whichconsent shall not be unreasonably withheld or delayed.  The Work (as defined in the Work Letterattached as Exhibit D) is not considered Alterations and, accordingly isnot subject to the terms of this Section 8.2.  Tenant shall only utilize contractorsapproved by Landlord, which approval shall not be unreasonably withheld ordelayed.  Tenant shall, before making anyAlterations, at its expense, obtain all permits, approvals and certificatesrequired by any governmental or quasi-governmental bodies and (upon completion)certificates of final approval thereof and shall deliver promptly duplicates ofall such permits, approvals and certificates to Landlord, and Tenant agrees tocarry, and to cause Tenant’s contractors and sub-contractors to carry suchworkers’ compensation, general liability, personal and property damageinsurance as Landlord may reasonably require. Upon completion of any Alterations, Tenant shall deliver to Landlord oneset of “as-built” plans and specifications therefor.  All fixtures and all paneling, partitions,railing and like Alterations, installed in the Demised Premises, either byTenant or by Landlord on Tenant’s behalf, shall become the property of Landlordand shall remain upon and be surrendered with the Demised Premises upon theexpiration or earlier termination of the Lease, unless Landlord, by notice toTenant given no later than 20 days prior to the Expiration Date of this Lease(or within 20 days after the earlier termination hereof), elects to have themremoved

 

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by Tenant, in which event, the same shall be removed from the DemisedPremises by Tenant.  Notwithstanding theforegoing, at the time Tenant requests Landlord’s consent to a contemplatedAlteration, Tenant may request that Landlord determine whether or not suchAlteration will be required to be removed upon the expiration or earliertermination of this Lease.  Upon receiptof such request from Tenant, Landlord shall notify Tenant at the time Landlordconsents to such Alteration whether or not Landlord will require removal uponthe expiration or earlier termination of this Lease.  Nothing in this section shall beconstrued to give Landlord title to or to prevent Tenant’s removal of tradefixtures, moveable office furniture and equipment, but upon removal of any suchequipment and fixtures from the Demised Premises or upon removal of other installationsas may be required by Landlord, Tenant shall immediately and at its expense,repair and restore the Demised Premises to the condition existing prior toinstallation (subject to ordinary wear and tear) and repair any damage to theDemised Premises or the Property due to such removal.  All property that was permitted or requiredto be removed by Tenant at the end of the Term but which remains in the DemisedPremises for 10 days after Tenant vacates the Demised Premises shall be deemedabandoned and may, at the election of Landlord, either be retained as Landlord’sproperty or may be removed from the Demised Premises by Landlord at Tenant’sexpense.

 

## **8.3****                               Mechanics’Liens**.

##  

Tenant shall (a) pay before delinquency allcosts and expenses of work done or caused to be done by Tenant in the DemisedPremises; (b) keep the title to the Property and every part thereof freeand clear of any lien or encumbrance in respect of such work; and(c) indemnify, reimburse and hold harmless Landlord Protected Parties(defined below) against any claim, loss, cost, demand (including reasonablelegal fees), whether in respect of liens or otherwise, arising out of thesupply of material, services or labor for such work.  Tenant shall immediately notify Landlord ofany lien, claim of lien or other action of which Tenant has knowledge and whichaffects the title to the Property or any part thereof, and promptly shall causethe same to be paid or removed by the filing of a bond but in any event nolater than 60 days after Tenant has knowledge of such lien.  If Tenant shall fail to pay or bond, Landlordmay take such action as Landlord deems necessary to remove the same and theentire cost thereof shall be immediately due and payable by Tenant to Landlordand such amount shall bear interest at the Default Rate. Nothing contained inthis section or elsewhere in this Lease shall be deemed or construed inany way as giving Tenant any right, power or authority to contract for orpermit the rendering of any services or the furnishing of any materials thatwould give rise to the filing of a materialmen’s, mechanics’ or other lienagainst the Demised Premises or any other portion of the Property.

 

## **8.4****                               Indemnification**.

##  

Without limitation of any otherindemnification provisions contained in this Lease, Tenant hereby agrees toindemnify, protect, defend and hold harmless Landlord, and Landlord’s agents,employees, contractors, officers, trustees, directors, shareholders, members,managers, partners and principles (disclosed or undisclosed), managing agentand advisors (including, but not limited to, BlackRock Realty Advisors, Inc.)and their officers, directors, members, managers, employees and agents(collectively, the “**Landlord ProtectedParties**”) from and against all claims, liabilities, losses,damages and expenses of whatever nature arising out of or in connection withany Alterations, including, without limitation, the cost of any repairs to the

 

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Demised Premises or Project necessitated by activities of Tenant orTenant’s contractors and bodily injury to persons, except, however to theextent any such claims, liabilities, lawsuits, damages and expenses are causedby the negligence or willful misconduct of the indemnified party.

 

# **ARTICLE 9**

#  

# **UTILITIES ANDBUILDING SERVICES**

#  

## **9.1****                               Heating,Ventilating and Air Conditioning**.

##  

### (a)                                  Subject tolimitations and restrictions imposed by federal, state and/or localauthorities, Landlord shall furnish heating and air-conditioning to the DemisedPremises during Normal Business Hours with a range of 69 and 74 degrees.  In addition, Landlord agrees that theBuilding HVAC system will be activated after Normal Business Hours if thetemperature in the Building drops below 65o F or rises above 80o F.  The foregoing temperature conditions assumethat Tenant will not overload Buildings systems with unusually highconcentrations of personnel or heat generating equipment.  Accordingly, and without limiting thegenerality of the effect of the foregoing, whenever heat generating machines orequipment are used in the Demised Premises which may affect the temperaturewhich would otherwise be maintained by the Building air-conditioning system,Landlord reserves the right to install supplementary air-conditioning units forthe Demised Premises at the expense of Tenant and the costs of operation andmaintenance thereof shall be paid by Tenant to Landlord at commerciallyreasonable rates determined by Landlord. Any air-conditioning units required for Tenant’s computer systems shallbe described in Exhibit D to the Lease and shall be installed with allconnections needed for operation by and at the expense of Landlord.  Landlord agrees that Tenant may operate theair-conditioning units required for Tenant’s computer systems twenty-four (24)hours per day, seven (7) days per week, and Tenant may only be subject toAdditional Rent for electricity charges pursuant to Section 9.4 (b) ifTenant’s units and operation change materially from the description in ExhibitE.  The costs of maintenance of suchunits shall be paid by Tenant using contractors reasonably approved by Landlordwho abide by the rules and regulations for vendors at the Building, including,without limitation, the delivery of insurance certificates.

###  

### (b)                                 Tenant recognizesthat, outside of Normal Business Hours, Tenant may require overtime HVACservices in order to render the Demised Premises comfortable and tenantable andthat Tenant shall have no claim against Landlord for the condition of theDemised Premises outside of Normal Business Hours, except as provided under Section 9.1(a)above with respect to temperature conditions outside of Normal Business Hours,and except that, overtime HVAC services can be provided by Landlord to Tenantat an additional cost at the standard hourly rate for such services in effectat such time (“Standard Rate”), which Standard Rate Landlord and Tenant agreeon the Date of Execution of this Lease is $45.00 per hour.  Landlord agrees to provide Tenant upon Tenant’swritten request the amount of the Standard Rate then in effect.  This Section 9.1 (b) shall not apply tothe operation of the air conditioning units required for the computer room asdescribed in Section 9.1 (a) above, and Tenant shall not be subject toAdditional

 

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### Rent for electricity charges pursuant to Section 9.4(b) unless Tenant’s units and operation change materially from the descriptionin Exhibit E.

###  

## **9.2****                               CleaningService**.

##  

Landlord shall provide Class A buildingstandard cleaning services, more fully described in Exhibit G attachedhereto and made a party hereof by reference, five (5) days a week, Mondaythrough Friday, holidays excepted.  Asused herein holidays shall mean New Years Day, Memorial Day, Independence Day,Labor Day, Thanksgiving and Christmas and such other holidays as are generallyrecognized by other similar class buildings in the Minnetonka, Minnesota area.

 

Tenant shall not provide any cleaningservices without Landlord’s consent and then only at Tenant’s soleresponsibility and expense and by cleaning contractors or employees and in amanner at all times satisfactory to Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant’srefuse and rubbish to the extent that such refuse and rubbish removed byLandlord exceeds the refuse and rubbish normally attendant upon the use of theDemised Premises as offices.

 

## **9.3****                               ElevatorService**.

##  

Landlord shall furnish automatic elevatorservice at all times, which elevator may also, subject to the Building Rulesand Regulations set forth in Exhibit C, be used as a freight elevator.

 

## **9.4****                               Electricity**.

##  

### (a)                                  Landlord shall,during Normal Business Hours only, supply electricity to the Demised Premisesfor normal office lighting and business machines that operate on standard 110voltage and do not require special or additional air conditioning.  Except as may be approved in writing byLandlord (including as may be approved in writing by Landlord in the WorkingDrawings (as defined in the Work Letter), Tenant’s use of electricity in theDemised Premises shall be for the operation of Building standard lighting,electrical fixtures, personal computers and other office machines and lamps(expressly excluding high electrical consumption business machines and spaceheaters, except, however, for radiant space heaters approved by Landlord whennecessary due to extreme weather conditions) and shall not at any time exceedthe capacity of any of the electrical conductors and equipment in or otherwiseserving the Demised Premises.

###  

### (b)                                 Tenant agrees to payto Landlord, as Additional Rent, Landlord’s charges for electricity and otherenergy consumed by Tenant (i) during hours other than Normal BusinessHours (A) for normal office lighting and business machines and(B) subject to Section 9.1, for heating and air conditioning, and(ii) for business machines other than as permitted by Section 9.4(a)hereof.  Such electrical and other energyshall be payable monthly, at the Standard Rate, together with payments ofMonthly Fixed Rent.

###  

### (c)                                  Tenant shall not,without Landlord’s prior written consent (which consent shall not beunreasonably withheld or delayed) in each instance, connect any additionalfixtures, appliances or equipment (other than normal office electricalfixtures, lamps,

 

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### personal computers and similar officemachines) to the Building’s electric distribution system or make anyalterations or additions to the electric system of the Demised Premisesexisting at the commencement of the Term. If Landlord grants such consent, unless paid for by the service providerwith no charge to Landlord, the cost of all additional risers and otherequipment required therefor shall be paid as Additional Rent by Tenant toLandlord upon demand.  Furthermore,Tenant shall, at Landlord’s option, pay on demand as Additional Rent toLandlord, the cost of any electric current or other energy for the operation ofheavy reproduction equipment, computer equipment or other equipment requiringmore electrical current or energy than is necessary for normal business officeuse as determined by Landlord.  If Tenantshall require additional electricity and such electricity is available to theDemised Premises and for the Building, Landlord may either (i) at Tenant’sexpense, install a meter in the Demised Premises and cause the Demised Premisesto be connected directly with the lines of the public utility company supplyingelectricity to the Building and thereafter Tenant shall pay all the charges ofsuch company for furnishing electrical current; or (ii) shall measure thecurrent supplied to Tenant by a meter installed in the Demised Premises, inwhich case Tenant shall pay to Landlord monthly as Additional Rent the sumswhich Tenant would be required to pay to the public utility company serving theBuilding if Landlord had connected Tenant to the lines of such public utilitycompany.

###  

### (d)                                 Landlord, at Tenant’sexpense, shall purchase and install all light bulbs, fluorescent and otherlighting tubes, ballasts and any incandescent lamps used in Building-standardlighting fixtures installed by Landlord in the Demised Premises uponnotification from Tenant that such installation is required.  Tenant shall use only such electricallighting fixtures and lamps as may be approved by Landlord.  Tenant shall replace, as necessary, all bulbsand fluorescent tubes in non-Building-standard lighting fixtures, if any,installed in the Demised Premises.  IfTenant shall fail to make any such replacement within five (5) days afterwritten notice from Landlord, Landlord may make such replacement and charge thecost of labor and materials involved therein to Tenant as additional rent.

###  

### (e)                                  Notwithstandinganything herein to the contrary, both Landlord and Tenant may at their optioninstall meters in the Demised Premises and take such other steps as they mayconsider desirable in assisting in determining Tenant’s consumption ofelectricity.  Tenant shall pay the costsof installing and maintaining such meters.

###  

## **9.5****                               Telecommunications**.

##  

### (a)                                  All telephone, videoand other telecommunications connections to the Demised Premises (but notnetworking and connections within the Demised Premises, which do not affectBuilding systems), which Tenant may desire shall be first approved by Landlord(or Landlord’s duly appointed agent) in writing before the same are installed,and the location of all wires and the work in connection therewith shall beperformed by contractors reasonably approved by Landlord and shall be subjectto the direction of Landlord.  Landlordreserves the right to reasonably designate and control the entity or entitiesproviding repair and maintenance in the Building and to restrict and controlaccess to telephone cabinets. Notwithstanding anything contained herein to the

 

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### contrary, the refusal of Landlord to grantits approval to any prospective provider in accordance with the terms hereofshall not be deemed a default or breach by Landlord of its obligations underthis Lease.  The provisions herein aresolely for the benefit of Tenant and are not for the benefit of any other partyand specifically, but without limitation, no telephone or othertelecommunications services provider shall be deemed a third party beneficiaryof this Lease.  Fiber optic capacity iscurrently serviced to the Building by Qwest, with the main point of presencelocated on the lower level telecommunications room.  Notwithstanding the foregoing, Landlordagrees that Tenant’s provider, Network Design, Inc. and Consultedge shall beacceptable for the purposes of the initial installation of all network cablingand phone service provided such vendors comply with the rules and regulationsfor vendors at the Building and supply certificates of insurance.

###  

### (b)                                 Tenant shall beresponsible for and shall pay all costs incurred in connection with theinstallation of telephone cables and related wiring in the Demised Premises,including, without limitation, any hook-up, access and maintenance fees relatedto the installation of such wires and cables in the Demised Premises and thecommencement of service therein, and the maintenance thereafter of such wireand cables; and there shall be included in Operating Costs for the Building allinstallation, hook-up or maintenance costs incurred by Landlord in connectionwith telephone cables and related wiring installed in the Building after theDate of Execution of Lease that are not allocable to any individual tenants ofsuch service but are allocable to the Building generally.  If Tenant fails to maintain all telephonecables and related wiring in the Demised Premises and such failure affects orinterferes with the operation or maintenance of any other telephone cables orrelated wiring in the Building, and if Tenant does not commence to cure suchfailure promptly and diligently thereafter pursue such cure after writtennotice from Landlord, then Landlord or any vendor hired by Landlord may enterinto and upon the Demised Premises forthwith and perform such repairs, restorationsor alterations as Landlord deems necessary in order to eliminate any suchinterference (and Landlord may recover from Tenant all of Landlord’s reasonablecosts in connection therewith and Landlord shall have no liability to Tenant byreason thereof).

###  

### (c)                                  Tenant agrees thatneither Landlord nor any of its agents or employees shall be liable to Tenant,or any of Tenant’s employees, agents customers or invitees or anyone claimingthrough, by or under Tenant, for any damages, injuries, losses, expenses, claimsor causes of action because of any interruption, diminution, delay ordiscontinuance at any time for any reason in the furnishing of any telephoneservice to the Demised Premises and the Building.  However, Landlord agrees promptly afterreceipt of actual notice of any such interruption, diminution, delay ordiscontinuance to use its commercially reasonable good faith efforts to notifyappropriate vendors of such service and upon compliance with commerciallyreasonable requirements, to allow access by such vendors to the Building topermit correction of such problem.

###  

### (d)                                 Landlord shall havethe right, upon reasonable prior notice to Tenant, to interrupt or turn offsuch connections and services in the event of emergency or as necessary inconnection with maintenance, repairs or construction at the Building orinstallation of equipment for other tenants of the Building or on account ofviolation by

 

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### the Tenant’s provider or owner of theequipment of any obligation to Landlord or in the event that Tenant’s use ofthe telecommunications infrastructure of the Building materially interfereswith the telecommunications services of other tenants of the Building.  Tenant shall not utilize any wirelesstelecommunications services equipment (other than usual and customary cellulartelephones), including antennae and satellite dishes, within the DemisedPremises without Landlord’s prior written consent, which consent shall not beunreasonably withheld, conditioned or delayed or within the Building, orattached to the outside walls or roof of the Building without Landlord’s priorwritten consent, which consent may be withheld in Landlord’s solediscretion.  In the event that anytelephone, video or other telecommunication equipment of any type installed byor at the request of Tenant within the Demised Premises, on the roof, orelsewhere within or on the Building causes interference to equipment previouslyinstalled and then in use by another party, Tenant shall cease using suchequipment until the source of the interference is identified and eliminated andTenant shall assume all liability related to such interference.  Tenant shall cooperate with Landlord andother parties, to eliminate such interference promptly.  In the event that Tenant is unable to do so,Tenant will substitute alternative equipment that remedies the situation.  If such interference persists, Tenant shall,at Landlord’s sole discretion, remove such equipment.

###  

### (e)                                  Upon the ExpirationDate, Tenant agrees to remove all telephone cables and related wiring installedby Tenant for and during Tenant’s occupancy, unless Landlord provides writtennotice to Tenant at least thirty (30) days prior to the Expiration Date thatLandlord will not require Tenant to remove such telephone cables and relatedwiring.

###  

## **9.6****                               Interruptionof Services**.

##  

Landlord does not covenant that Buildingservices will be free from interruptions caused by repairs, improvements,changes of service, alterations, strikes, lockouts, labor controversies,accidents, inability to obtain fuel, water or supplies, actions of othertenants, licensees or other occupants of the Building or other third parties orany other cause beyond the reasonable control of Landlord.  No such interruption of service shall bedeemed a constructive eviction or disturbance of Tenant’s use and possession ofthe Demised Premises or any part thereof, or otherwise render Landlord liableto Tenant for damages, by abatement of rent or otherwise, or otherwise relieveTenant from performance of Tenant’s obligations under this Lease.  Tenant hereby waives and releases all claimsagainst Landlord for damages for interruption or stoppage of Buildingservices.  In the event of any suchinterruption or stoppage of Building services, Landlord shall use commerciallyreasonable efforts to have such services promptly resumed.  Landlord shall be deemed to have observed andperformed the terms and conditions to be performed by Landlord under this Lease,including those relating to the provision of utilities and services, if in sodoing it acts in accordance with a directive, policy or request of agovernmental or quasi-governmental authority serving the public interest in thefields of energy conservation or security. Notwithstanding the foregoing, in the event any such interruption inservices to be provided by Landlord under this Article is caused by thenegligence or willful misconduct of Landlord, and if such interruption causesthe Demised Premises to be untenantable, and as a result thereof Tenant in factceases to use all or any portion of the Demised Premises for a period in excessof five (5) consecutive days, then commencing on the sixth (6th) consecutiveday of

 

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such untenantability and non-use, Fixed Rent and Additional Rentpayable by Tenant shall be abated until the earliest to occur of (a) thedate upon which such interruption has been remedied and the DemisedPremises are again tenantable or (b) the date Tenant resumes use of theDemised Premises.  Notwithstanding theforegoing, however, in the event Tenant is entitled to recover Fixed Rent orAdditional Rent, or both, for such period of untenantability from Tenant’sbusiness interruption insurance or otherwise, then Tenant shall not be entitledto such abatement, it being the intent and agreement of Tenant to first proceedagainst its insurance carrier for any such loss of use.

 

## **9.7****                               OvertimeServices**.

##  

In the event Tenant requires any utilities orservices during periods other than as provided in this Article andprovided that Tenant shall have given Landlord notice no later than 2:00 P.M.of the last business day prior to Tenant’s need for such services, Landlordshall provide Tenant with such services, and Tenant shall pay Landlord, asAdditional Rent, Landlord’s then existing charges in respect thereto.  Subject to Section 9.1, Landlord’scharges for after hours HVAC shall be its Standard Rate.

 

# **ARTICLE 10**

#  

# **PERSONAL PROPERTYTAXES**

#  

## **10.1****                        Tenant’sPersonal Property**.

##  

Tenant shall pay directly all taxes on anyand all personal property leased, owned, installed, used, or located in theDemised Premises.  Tenant shall indemnifyand hold harmless Landlord Protected Parties against any claim, loss, cost,demand (including reasonable legal fees), whether in respect of liens orotherwise, arising out of such taxes.

 

# **ARTICLE 11**

#  

# **INSURANCE ANDINDEMNITY**

#  

## **11.1****                        Tenant’sInsurance**.

##  

At all times Tenant shall keep in full forceand effect a policy of commercial general liability and property damageinsurance with respect to the Demised Premises, in such limits as may bereasonably required from time to time by Landlord.  The limits of commercial liability insuranceon the Commencement Date shall be not less than $3,000,000.00 for death or injuryto any number of persons or for property damage, for each occurrence.  In no event shall the limits of any coveragemaintained by Tenant pursuant to this Section 11.1 be considered aslimiting Tenant’s liability under this Lease. These policies shall name Landlord, any person, firms or corporations(including, without being limited to, any mortgagee or lessor of Landlord)designated by Landlord and Tenant as insureds, shall include blanketcontractual liability coverage which insures contractual liability under theindemnifications set forth in Section 11.2 hereof and shall contain aclause that the insurer will not cancel or change the insurance without firstgiving Landlord 30 days prior written notice. The insurance shall be written by an insurance company, licensed andqualified to do business in the State in which the Property is located, 

 

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which is reasonably acceptable to Landlord.  An original copy of the policy or acertificate of insurance shall be delivered to Landlord upon the execution anddelivery of this Lease and replacement certificates shall be delivered not lessthan ten (10) days prior to the expiration of any then existing coverage.  The insurance which Tenant is required tomaintain in force and effect under this Section 11.1 shall be primaryinsurance as respects Landlord (and any other additional insureds designated byLandlord) and not excess over or contributory with any other availableinsurance.  Certificates of insuranceevidencing the liability insurance coverage required under this Section 11.1shall contain an endorsement to such effect. In addition, at all times during the Term hereof, Tenant shall procureand maintain Worker’s Compensation Insurance in accordance with the laws of theState in which the Property is located.

 

## **11.2****                        Indemnityand Non-Liability**.

##  

### (a)                                  Neither Landlord norLandlord’s agents (including, without being limited, to the Managing Agent),employees, contractors, officers, trustees, directors, shareholders, partnersor principals (disclosed or undisclosed) shall be liable to Tenant or Tenant’sagents, employees, contractors, invitees or licensees or any other occupant ofthe Demised Premises, and Tenant shall save Landlord, its successors andassigns and their respective agents, employees, contractors, officers,trustees, directors, shareholders, partners and principals (disclosed orundisclosed) harmless from any loss, cost, liability, claim, damage, expense(including reasonable attorneys’ fees and disbursements), penalty or fineincurred in connection with or arising from any injury to Tenant or to anyother person or for any damage to, or loss (by theft or otherwise) of, any ofTenant’s property or of the property of any other person, irrespective of thecause of such injury, damage or loss (including the acts or negligence of anytenant or of any owners or occupants of adjacent or neighborhood property orcaused by operations in construction of any private, public or quasi-publicwork) unless due to the negligence or willful misconduct of Landlord orLandlord’s agents or employees.  However,even if such loss or damage is caused by the negligence or willful misconductof Landlord, its agents or employees, Tenant waives, to the full extentpermitted by law, any claim for consequential damages in connectiontherewith.  To the extent of Tenant’sinsurance coverage, Landlord, and its agents and employees, shall not beliable, for any loss or damage to any person or property due to the negligenceof Landlord, its agents or employees.

###  

### (b)                                 Neither any(1) performance by Landlord, Tenant or others of any repairs,improvements, alterations, additions, installations, substitutions, bettermentsor decorations in or to the Property or the Building, the Building equipmentand systems, the Common Areas or the Demised Premises, (2) failure ofLandlord or others to make any such repairs or improvements, (3) damage tothe Property or the Building, the Building equipment and systems, the CommonAreas, the Demised Premises or Tenant’s property, (4) injury to anypersons, caused by other tenants or persons in the Building, or by operationsin the construction of any private, public, or quasi-public work, or by anyother cause, (5) latent defect in the Building, the Building equipment andsystems, the Common Areas or the Demised Premises, nor (6) inconvenienceor annoyance to Tenant or injury to or interruption of Tenant’s business byreason of any of the events or occurrences referred to in the foregoingsubdivisions (1) through (5) shall impose any liability on Landlord to Tenant,other than, subject to Section 24.10 hereof, such liability 

 

27

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### as may be imposed upon Landlord by law forLandlord’s negligence or the negligence of Landlord’s agents or employees inthe operation or maintenance of the Building, the Building equipment andsystems or the Common Areas or for the breach by Landlord of any expresscovenant of this Lease on Landlord’s part to be performed.  No representation, guaranty or warranty ismade or assurance given that the communications or security systems, devices orprocedures of the Building, including the proximity card read access systemwith remote monitoring cameras, will be effective to prevent injury to Tenantor any other person or damage to, or loss (by theft or otherwise) of, any ofTenant’s property or of the property of any other person.  Furthermore, Landlord agrees that it shallnot reduce the security service provided at the Date of Execution of the Leasewithout the prior written consent of and approval by Tenant.  Tenant agrees to review and approve ordisapprove any such request for a reduction in security service, in good faith,within ten days after Tenant’s receipt of written request for approval fromLandlord.  If Tenant shall fail torespond to such request within ten days after receipt of such request, Tenantshall be deemed to have approved such change.

###  

### (c)                                  Tenant herebyindemnifies and holds harmless Landlord Protected Parties from any loss, cost,liability, claim, damage, expense (including reasonable attorneys’ fees anddisbursements), penalty or fine incurred in connection with or arising from(1) any default by Tenant in the performance of any of the terms of thisLease on Tenant’s part to be performed, or (2) the use or occupancy ormanner of use or occupancy of the Demised Premises by Tenant or (3) anyacts or omissions resulting from or arising out of the gross negligence orwillful misconduct of Tenant, or the contractors, agents, employees, invitees,licensees, assignees or sublessees of Tenant, or (4) any accident, injuryor damage whatsoever caused to any person or to the property of any person andoccurring in or about the Demised Premises. Tenant’s obligations under this Section 11.2 shall survive theexpiration or earlier termination of this Lease.

###  

### (d)                                 After Tenant’s reviewand approval for accuracy, Tenant shall pay to Landlord as Additional Rent,within thirty (30) days after receipt by Tenant of bills or statements therefor,sums equal to all losses, costs, liabilities, claims, damages, fines, penaltiesand expenses referred to in this Section 11.2.  Tenant shall be deemed to have approved suchAdditional Rent charge if Tenant does not notify landlord of any objections asto accuracy within such 30 days.

###  

## **11.3****                        Waiver ofSubrogation**.

##  

### (a)                                  Landlord and Tenantshall each endeavor to procure an appropriate clause in, or endorsement to,each of its policies for industry standard form of property insurance which, asof the date of this Lease, is known as “causes of loss - special form,”pursuant to which the insurance company waives subrogation or consents towaiver of its right of recovery against the other party, which, in the case ofTenant, shall be deemed to include any subtenant in the Demised Premises, andhaving obtained such clause or endorsement of waiver of subrogation or consentto a waiver of the right of recovery, such party hereby agrees that it will notmake any claim against or seek to recover from the other for any loss or damageto its property or the property of others covered by such property damageinsurance coverage; provided, however, that the release, discharge and

 

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### covenant not to sue herein contained shall belimited by the terms and provisions of the waiver of subrogation clause orendorsement, or the clause or endorsement consenting to a waiver of right ofrecovery, and shall be co-extensive therewith.

###  

### (b)                                 If either party heretoshall not be able to obtain such clause or endorsement on a particular policyor if the inclusion of such clause or endorsement would result in an increasein premium, then that party shall so notify the other party hereto at least 15days from the date the party is informed by its property insurance carrier ofthe same.  To the extent that such clauseor endorsement is available at an increased premium, the other party shall beobligated to pay the amount of any increase in premium resulting from theinclusion of such clause or endorsement, unless such other party notifies theparty obtaining the insurance, within twenty (20) days following notice of theamount of such increase, that such other party declines to pay such increase,in which event the party holding the insurance shall have no obligation to theother party with regard to the inclusion of such clause or endorsement or thelack thereof.  If a party shall fail togive notice either of inability to obtain such clause or endorsement or noticeof an increase in premium, then that party shall be deemed to have waived itsright of recovery from the other party with respect to any loss or damageinsured against by the policy with respect to which notice was not given asprovided above.

###  

## **11.4****                        Landlords’Insurance**.

##  

Landlord agrees to purchase and keep in forceand effect commercial general liability insurance with respect to the CommonAreas and insurance on the Building improvements and on the items included inLandlord’s Work so long as such item are not trade fixtures, moveable officefurniture and movable equipment which Tenant is entitled to remove at theexpiration or earlier termination of this Lease (“**Insurable Items of Landlord’s Work**”) (but not including,however, any tenant improvements, alterations or additions made after theinitial improvements made pursuant to Landlord’s Work) in amounts and withcoverages consistent with amounts and coverages carried by prudent owners ofthe class of buildings in the Minnetonka, Minnesota area that are equal to theclass of building of the Building at such time.

 

# **ARTICLE 12**

#  

# **DAMAGE BY CASUALTY**

#  

## **12.1****                        Notice**.

##  

Tenant shall give written notice to Landlordof any damage caused to the Demised Premises by fire or other casualty withintwenty-four (24) hours of the date on which Tenant becomes aware of such event.

 

## **12.2****                        Restorationof Improvements**.

##  

### (a)                                  In the event theDemised Premises are damaged by fire or other casualty, Landlord shall, unlessthis Lease is terminated as hereinafter provided, proceed with reasonablediligence and at its sole cost and expense to repair the Demised Premises,including the Insurable Items of Landlord’s Work (but not including, however,any tenant

 

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### improvements, alterations or additions madeafter the initial improvements made pursuant to Landlord’s Work or tradefixtures, moveable office furniture and movable equipment which Tenant isentitled to remove at the expiration or earlier termination of this Lease), andthen only to the extent of available insurance proceeds received.  Tenant shall promptly, at its sole cost andexpense, remove such of its furniture and other belongings from the DemisedPremises as Landlord shall require in order to repair and restore the DemisedPremises.  Until any such repairs to theDemised Premises are completed, the Fixed Rent and Additional Rent shall beabated in proportion to the part of the Demised Premises, if any, that isunusable by Tenant in the conduct of its business.  If the fire or other casualty is due to thegross negligence or willful misconduct of Tenant, its agents, employees,contractors or invitees, there shall be no abatement of Fixed Rent orAdditional Rent.

###  

### (b)                                 If (1) theDemised Premises shall be (i) totally destroyed or substantially damaged,or (ii) partially destroyed or damaged by a casualty not sufficiently, inLandlord’s reasonable judgment, covered by insurance or, even if covered byinsurance, which, in Landlord’s reasonable judgment, cannot be restored totenantable condition within 180 days after the casualty, or (2) theBuilding shall be destroyed to the extent of one-quarter or more of its thenvalue or so damaged that, in Landlord’s reasonable judgment, substantialalteration, demolition or reconstruction of the Building shall be required,whether or not covered by Landlord’s insurance, then in either such eventLandlord may elect to proceed to rebuild and repair the Demised Premises or toterminate this Lease, effective upon giving notice of such election to Tenantwithin 30 days after the occurrence of such casualty. Landlord’s obligation torebuild and repair under this Section shall in any event be limited torestoring the Building and the Demised Premises to substantially the conditionin which they existed prior to the casualty (in no event shall Landlord berequired to repair any of Tenant’s leasehold improvements, fixtures, equipment,furniture, furnishings and personal property or any improvements, fixtures,equipment, furniture, furnishing and personal property of any third partyprovider of Tenant, such as Tenant’s telecommunications provider) and then onlyto the extent that insurance proceeds shall be sufficient to pay for suchrestoration.  Tenant agrees that,promptly after the completion of such work by Landlord, it will proceed with reasonablediligence and at its sole cost and expense to rebuild, repair and restore itsfixtures, equipment and other installations.

###  

### (c)                                  Tenant shall have noright to terminate this Lease in the event of the damage or destruction of theDemised Premises other than as set forth in this Section and hereby waivesthe provision of any Applicable Law granting Tenant such right.

###  

## **12.3****                        DamageDuring Last Year of Lease Term**.

##  

Without limiting Landlord’s rights under Section 12.2,in the event the Building or Demised Premises shall, in Landlord’s reasonablejudgment, be substantially damaged during the last year of the term of thisLease, Landlord may elect either to rebuild or repair the Demised Premises orto terminate this Lease effective upon giving notice of such election, inwriting, to Tenant within thirty (30) days after the happening of the fire orother casualty.

 

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# **ARTICLE 13**

 

# **EMINENT DOMAIN**

#  

## **13.1****                        Taking ofDemised Premises**.

##  

If during the Term all of the DemisedPremises shall be taken for any public or quasi-public use under any statute orby right of eminent domain, or sale-in-lieu of such taking, this Lease shallautomatically terminate on the date on which the condemning authority takespossession of the Demised Premises (hereinafter called the “**Date of Taking**”).  If so much of the Demised Premises (but lessthan all) is taken as shall render the Demised Premises untenantable, Tenantand Landlord shall each have the right to terminate this Lease by givingwritten notice to the other party of termination within 30 days after the Dateof Taking.

 

## **13.2****                        Partial orTemporary Taking of Building**.

##  

### (a)                                  If during the Term, aportion of the Property shall be taken for any public or quasi-public use underany statute or by right of eminent domain, or sale-in-lieu of such taking, then(1) if in the reasonable opinion of Landlord substantial alteration orreconstruction of the Property is necessary as a result thereof, whether or notthe Demised Premises are or may be affected; (2) if one-quarter or more ofthe value, in Landlord’s sole judgment, of the Property is included in suchtaking or sale; or (3) if such portion of the Common Areas, including anyparking areas or driveways, shall be taken as, in Landlord’s reasonablejudgment, to materially interfere or prevent access to the Building or reducethe value of Property by more than one-quarter; then, Landlord shall have the rightto terminate this Lease by giving to Tenant at least 30 days’ written noticethereof.

###  

### (b)                                 If during the Term,the Building or the Common Areas, or any portion thereof, shall be taken as setout in subsection (a) above for a period of less than 90 days, this Leaseshall remain in full force and effect subject to Section 13.5 hereof.  If such a taking shall be for a period of 90days or more, then the provisions of Section 13.1 and Section 13.2(a),as the case may be, shall be applicable.

###  

### (c)                                  If a Partial orTemporary Taking as set forth in Section 13.2 (a) affects any portion ofthe Demised Premises, Tenant shall have the right to terminate this Lease bygiving written notice to Landlord no later than 30 days after the date of suchPartial or Temporary Taking.

###  

## **13.3****                        Termination**.

##  

If either party exercises its rights oftermination under Section 13.1 or 13.2 (and any such right must beexercised within 30 days after the Date of Taking, failing which such rightshall be deemed waived), this Lease shall terminate on the date stated in thenotice, provided, however, that no termination pursuant to notice hereunder mayoccur later than 60 days after the Date of Taking.

 

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## **13.4****                        Surrender**.

##  

On the date of termination under this Leaseunder Section 13.1 or 13.2, Tenant shall immediately surrender to Landlordthe Demised Premises and all interests therein under this Lease and Tenantshall pay Landlord Rent through the date of termination (or through the Date ofTaking if such date shall not be the same as the date of termination).  Landlord may re-enter and take possession ofthe Demised Premises and remove Tenant there from.  Upon such surrender, Tenant shall remove itsequipment and personal property and, to the extent Demised Premises aredirectly affected by the Taking, restore the Demised Premises to as goodcondition as prior to the date of this Lease (subject to ordinary wear andtear) and repair any damage to the Demised Premises or the Property due to suchremoval.

 

## **13.5****                        RentAdjustment for Partial Taking of Demised Premises**.

##  

If any portion of the Demised Premises (butless than the whole thereof) is so taken, and no rights of termination hereinconferred are timely exercised, the Term shall expire (or, in respect of ataking pursuant to Section 13.2(b) hereof, have no force and effect forthe period of such temporary taking) with respect to the portion so taken on(or from) the Date of Taking.  In suchevent, the Rent thereafter payable under this Lease shall be adjusted pro rataby Landlord in order to account for the resulting reduction (either temporarilyor permanently) in the number of rentable square feet in the Demised Premises.

 

## **13.6****                        Awards**.

##  

Upon any taking or sale described in thisArticle, Landlord shall be entitled to receive and retain the entire award orconsideration for the affected lands and improvements, and Tenant shall nothave nor advance any claim against Landlord or anyone else for the value of itsproperty or its leasehold estate under this Lease, or for the costs or removalor relocation, or business interruption expense or any other damages arisingout of such taking or purchase.  Nothingherein shall give Landlord any interest in or preclude Tenant from seeking andrecovering on its own account a separate award from the condemning authorityattributable to the taking or purchase of Tenant’s trade fixtures, or theremoval or relocation of its business and effects, or the interruption of itsbusiness provided that Landlord’s award is not diminished thereby.  If any such award made or compensation paidto either party specifically includes an award or amount for the other, theparty first receiving the same shall promptly account therefor to the other.

 

# **ARTICLE 14**

#  

# **RIGHTS RESERVED TO LANDLORD**

#  

## **14.1****                        Access to Demised Premises**.

##  

Landlord and Landlord’s agents shall have theright (but shall not be obligated) to enter the Demised Premises in anyemergency at any time, and to perform any acts related to the safety,protection or preservation thereof or of the Building.  At other reasonable times, and uponreasonable notice, Landlord may enter the Demised Premises (1) to examineand make such repairs, replacements and improvements as Landlord may deemnecessary or reasonably

 

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desirable to the Demised Premises or to any other portion of theBuilding, (2) for the purpose of complying with laws, regulations andother requirements of governmental authorities or the provisions of this Lease,(3) for the purpose of posting notices of nonresponsibility, or(4) for the purposes of showing the same to prospective purchasers ormortgagees of the Building, and during the last 12 months of the Term, for thepurpose of showing the same to prospective tenants.  Tenant shall permit Landlord to use andmaintain and replace unexposed pipes and conduits in and through the DemisedPremises and to erect new unexposed pipes and conduits therein.  Landlord may, during the progress of any workin the Demised Premises, take all necessary materials and equipment into theDemised Premises and close or temporarily suspend operation of entrances,doors, corridors, elevators or other facilities without such interferenceconstituting an eviction.  Tenant shallnot be entitled to any damages by reason of loss or interruption of business orotherwise during such periods; provided, however that the foregoing shall notbe deemed or construed to limit Tenant’s rights under Section 9.6 abovewith respect to Rent abatement in the event of certain interruption ofservices.  During such periods Landlordshall use reasonable efforts to minimize any interference with Tenant’s use ofthe Demised Premises, including, but not limited to, performing any requiredwork after Normal Business Hours as necessary. If Tenant is not present to open and permit an entry into the DemisedPremises, Landlord or Landlord’s agents may enter the same whenever such entrymay be necessary or permissible by master key or otherwise, provided reasonablecare is exercised to safeguard Tenant’s property.  Such entry shall not render Landlord or itsagents liable therefor, nor in such event shall the obligations of Tenanthereunder be affected.

 

## **14.2****                        AdditionalRights**.

##  

Landlord shall have the following additionalrights exercisable without notice (except as provided below) and withoutliability to Tenant for damage or injury to property, person or business, allclaims for damage being hereby released, and without effecting an eviction ordisturbance of Tenant’s use or possession or giving rise to any claim forsetoffs, or abatement of Rent:

 

### (a)                                  To change the name,number or designation by which the Building may be known; provided, however,that Landlord shall not during the term of this Lease, under any circumstance,allow the existing tenant, CFG, to have its name on the exterior of Building oras the designation by which the Building is known, so long as Tenant is not indefault beyond applicable notice and cure periods under any of the terms andconditions of this Lease; and provided that Tenant is occupying the DemisedPremises;

###  

### (b)                                 To make such changesin or to the Building, including the building equipment and systems, asLandlord may deem necessary or desirable, provided that any such change doesnot deprive Tenant of a reasonable means of access to the Demised Premises orunreasonably interfere with the use of the Demised Premises;

###  

### (c)                                  To grant to anyonethe exclusive right to conduct any business or render any services (including,without being limited to, the right to designate all suppliers or personsfurnishing sign painting and lettering, beverages, foods, towels, vendingmachines or toilet supplies used or consumed on the Demised Premises) in theBuilding, provided such exclusive right shall not operate to exclude Tenantfrom the use expressly

 

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### permitted by Article 6,specifically including, without limitation, Tenant’s right to conduct businessin the Demised Premises as general offices;

###  

### (d)                                 To close the Buildingat any such reasonable times after Normal Business Hours as Landlord maydetermine, subject, however, to Tenant’s unrestricted right to access theBuilding, the Demised Premises and all Common Areas twenty-four (24) hours perday, seven (7) days per week, three hundred sixty-five (365) days per yearpursuant to commercially reasonable rules and regulations; and

###  

### (e)                                  To perform any act,obligation or other commitment required of or by Tenant, which Tenant has notperformed for any reason whatsoever (including, without being limited to,obtaining insurance coverage), and to charge Tenant as Additional Rent allreasonable costs and expenses incurred by Landlord for such performance,together with interest thereon at the Default Rate from the dates of Landlord’sexpenditures until paid.

###  

# **ARTICLE 15**

#  

# **ASSIGNMENT ANDSUBLETTING**

#  

## **15.1****                        ConsentRequired**.

##  

### (a)                                  Tenant shall not,voluntarily or involuntarily, by operation of law orotherwise:  (i) assign, mortgage, pledge, encumber or in anymanner transfer this Lease in whole or in part, or (ii) sublet all or anypart of the Demised Premises, or allow any other person to occupy all or anypart thereof, without the prior written consent of Landlord in each instance,which consent, as more fully provided below, shall not be unreasonablywithheld, and any attempt to do any of such acts without such consent shall benull and void and of no effect.  Tenantshall reimburse Landlord for all third party costs and third party expensesincurred by Landlord in reviewing said request, including, without limitation,reasonable outside attorneys’ fees, but such reimbursement of such costs,expenses and fees shall not to exceed $2,500.00 in the aggregate.  In the event of a transfer of control ofTenant, including, without being limited to, a transfer of stock or partnershipinterest or the merger, consolidation, sale of all or substantially all of theother assets of Tenant or other corporate or other reorganization of Tenant(whether or not Tenant shall be the surviving entity) (such event being a “**Transfer of Control Event”** and the entityassigned this Lease a “**Transfer of ControlAssignee**”).  Tenant shallgive Landlord written notice within 30 days after a Transfer of Control Eventand furnish reasonable evidence that such assignee has a net worth of equal toor greater than the net worth as of the Date of Execution of Lease of KanawhaInsurance Company (“**Required Net Worth**”).  In the event the assignee shall have theRequired Net Worth such Transfer of Control Event shall not be deemed anassignment under this Lease and shall not require Landlord’s priorconsent.  Such assignment shall besubject to all the provisions of this Article. In the event the TransferControl Assignee shall not have the Required Net Worth, then such Transfer ofControl Event shall be deemed an assignment and Landlord shall have all of itsrights in connection with an assignment or sublet as set forth in Section 15(c).  The consent by Landlord to anyassignment, mortgage, pledge,

 

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### encumbrance,transfer or subletting shall not constitute a waiver of the necessity for suchconsent to any subsequent assignment, mortgage, pledge, encumbrance, transferor subletting.

###  

### (b)                                 In the event Tenantdesires to assign this Lease or sublet all or a portion of the DemisedPremises, Tenant shall submit to Landlord: (a) the proposed sublease orassignment, which is not to commence prior to thirty (30) days from thedate the submission to Landlord occurs, and (b) sufficient information topermit Landlord to determine the acceptability, financial responsibility, andcharacter of subtenant or assignee.

###  

### (c)                                  Withinfifteen (15) business days after receipt of the materials and informationset forth in Section 15.1(b), Landlord shall respond by, either:(a) granting or refusing its consent to the proposed sublease orassignment, as provided in subsection (d) below.  (b) terminating this Lease on the datethe assignment was to commence; or (c) as to a sublease, terminating thisLease for only the portion of the Demised Premises to be subleased (the “**Subject Premises**”) as of the date onwhich the sublease was to commence. Tenant shall remain liable for all payments due under this Lease throughthe date of termination even though such amounts may be billed subsequent totermination.

###  

### (d)                                 If Landlord does notterminate this Lease in the case of a proposed assignment or terminate theLease as to the Subject Premises pursuant to subsection (c) above,Landlord shall not unreasonably withhold its consent to the proposed subleaseor assignment.  Such consent shall bedeemed to be reasonably withheld if: (i) in the judgment of Landlord, thesubtenant or assignee is of a character or engaged in a business which is notin keeping with the standards of Landlord for the Building; (ii) in thejudgment of Landlord the purposes for which the subtenant or assignee intendsto use the Demised Premises or the portion of the Demised Premises to besubleased (the “**Subject Premises**”),as the case may be, are not in keeping with the standards of Landlord for theBuilding or the terms of this Lease, or are in violation of the terms of anyother lease in the Building; (iii) in the judgment of Landlord theproposed use of the Demised Premises or Subject Premises, as the case may be,by the subtenant or assignee would increase traffic into and out of theBuilding or otherwise increase the use of the Common Areas, including parkingareas; (iv) Tenant is in default under this Lease; (v) the SubjectPremises or the remaining balance of the Demised Premises, if any, is notregular in shape with appropriate means of ingress and egress and suitable fornormal renting purposes; (vi) the proposed subtenant or assignee is eithera governmental unit (or subdivision or agency thereof) a present occupant of ornegotiating for space in the Building; (vii) the assignee or sublessee isnot, in the sole judgment of Landlord, solvent or does not have unencumberedassets of a value at least equal to twice the projected costs of theobligations to be assumed for the unexpired term of this Lease; (viii) inthe judgment of Landlord such a sublease or assignment would violate any term,condition, covenant, or agreement of the Landlord involving the Building, orany other tenant’s lease within it; (ix) the proposed use or occupancy ofthe Demised Premises or Subject Premises, as the case may be, by the assigneeor sublessee is not a Permitted Use or would either violate any applicable law,statute, ordinance, code or regulation or would impose any obligation uponLandlord to comply with any of the foregoing or increase 

 

35

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### Landlord’s obligation to comply with any ofthe foregoing; or (x) any such proposed sublease or assignment would causea breach of the ERISA representations set forth in Section 24.14below.  Notwithstanding anything to thecontrary contained in this Lease, Tenant’s sole right and remedy in any disputeas to whether Landlord’s consent to a proposed sublease or proposed assignmenthas been unreasonably withheld shall be an action for declaratory judgment orspecific performance, and Tenant shall not be entitled to any damages ifLandlord is adjudged to have unreasonably withheld such consent.

###  

### (e)                                  If Landlord grants consentto any assignment or sublease hereunder, it shall be upon and subject to thefollowing terms: (i) the terms and conditions of this Lease shall in noway be deemed modified, abrogated or amended; (ii) the consent shall notbe deemed a consent to any further subletting or assignments by either Tenant,subtenants or assignees; and (iii) such other terms and conditions as are setforth in Landlord’s standard consent form. In addition to the foregoing conditions, if Tenant shall assign thisLease, the assignee shall expressly assume all obligations of Tenant hereunderin a written instrument satisfactory to Landlord and furnished to Landlord byTenant not later than fifteen (15) days prior to the effective date of theassignment; if Tenant shall sublease any portion or all of the Demised Premisesas permitted herein, Tenant shall obtain and furnish to Landlord, not laterthan fifteen (15) days prior to the effective date of such sublease and in formsatisfactory to Landlord, the written agreement of such subtenant to the effectthat the subtenant will attorn to Landlord, at Landlord’s option and writtenrequest, in the event this Lease terminates before the expiration of thesublease.  Tenant shall not be releasedfrom any obligations or liabilities under this Lease as a result of anyassignment of this Lease or sublet of all or any portion of the DemisedPremises.

###  

### (f)                                    If Tenant shallassign this Lease or sublet all or any portion of the Demised Premises pursuantto the terms of this Article, then Tenant shall pay Landlord as additionalRent, all of the excess payments or other economic consideration whetherdenominated as rent or otherwise (together with escalations) payable to Tenantunder the sublease or assignment which might be in excess of the Fixed Rentplus Additional Rent payable to Landlord under this Lease (or, if only aportion of the Demised Premises is being sublet, the excess payments or othereconomic consideration allocable on a rentable square footage basis to thespace sublet).  Notwithstanding theforegoing, any payment by Tenant to Landlord, as contemplated in thissubsection, shall be net of any Tenant’s costs to secure the assignment orsublease, including but not limited to, broker fees and subtenant improvements.

###  

# **ARTICLE 16**

#  

# **BANKRUPTCY**

#  

## **16.1****                        Bankruptcy**.

##  

If at any time after the execution anddelivery of this Lease, there shall be entered an Order for Relief againstTenant in any court pursuant to any statute either of the United States or anycourt of any State in connection with a petition in bankruptcy or insolvency orfor reorganization or for the appointment of a receiver or trustee orconservator of all or a portion of 

 

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Tenant’s property, or if Tenant makes an assignment for the benefit ofcreditors, this Lease, (a) if such event shall occur prior to the later ofthe Commencement Date or the date that Landlord’s Work, if any, is completed,shall ipso facto be cancelled and terminated, or (b) if such event shalloccur on or after the Commencement Date, at the option of Landlord to beexercised within 60 days after notice of the happening of any one or more ofsuch events, may be cancelled and terminated, and in any such event oftermination neither Tenant nor any person claiming through or under Tenant orby virtue of any statute or of an order of any court shall be entitled topossession or to remain in possession of the Demised Premises but shallforthwith quit and surrender the Demised Premises, and Landlord, in addition tothe other rights and remedies granted by virtue of any other provision in thisLease or by virtue of any statute or rule of law, may retain as damages anyRent, Security Deposit, or moneys received by it from Tenant or others onbehalf of Tenant.

 

## **16.2****                        Measure ofDamages**.

##  

In the event of the termination of this Leasepursuant to Section 16.1 above, Landlord shall be entitled to the samerights and remedies as set forth in Article 17.

 

## **16.3****                        AdequateAssurance**.

##  

### (a)                                  If Tenant or atrustee elects to assume this Lease subsequent to the filing of a petitionunder the Bankruptcy Code, Tenant, as debtor and as debtor in possession, andany trustee who may be appointed agree as follows: (i) to cure each andevery existing breach by Tenant within not more than ninety (90) days ofassumption of this Lease; and (ii) to compensate Landlord for any actualpecuniary loss resulting from any existing breach, including withoutlimitation, Landlord’s reasonable costs, expenses and attorneys’ fees incurredas a result of the breach, as determined by a court of competent jurisdiction,within ninety (90) days of assumption of this Lease; and (iii) in theevent of an existing breach, to provide adequate assurance of Tenant’s futureperformance, including without limitation (A) the deposit of an additionalsum equal to three months’ Rent to be held (without any allowance for interestthereon) to secure Tenant’s obligations under the Lease; and (B) theproduction to Landlord of written documentation establishing that Tenant hassufficient present and anticipated financial ability to perform each and everyobligation of Tenant under this Lease; and (C) assurances, in formacceptable to Landlord, as may be required under any applicable provision ofthe Bankruptcy Code; and (iv) the assumption will not breach any provisionof this Lease; and (v) the assumption will be subject to all of theprovisions of this Lease unless the prior written consent of Landlord isobtained.

###  

### (b)                                 If Tenant assumes thisLease and proposes to assign the same pursuant to the provisions of theBankruptcy Code to any person or entity who shall have made a bonafideoffer to accept an assignment of this Lease on terms acceptable to Tenant, thennotice of such proposed assignment, setting forth (i) the name and addressof such person, (ii) all the terms and conditions of such offer, and(iii) the adequate assurance to be provided Landlord to assure such person’sfuture performance under the Lease, including, without limitation, theassurances referred to in any applicable provision of the Bankruptcy Code,shall be given to Landlord by Tenant no later than twenty (20) days 

 

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### after receipt by Tenant, but in any event nolater than ten (10) days prior to the date that Tenant shall makeapplication to a court of competent jurisdiction for authority and approval toenter into such assignment and assumption, and Landlord shall thereupon havethe prior right and option, to be exercised by notice to Tenant given at anytime prior to the effective date of such proposed assignment, to accept anassignment of this Lease upon the same terms and conditions and for the sameconsideration, if any, as the bonafide offer made by suchperson, less any brokerage commissions which may be payable out of theconsideration to be paid by such person for the assignment of this Lease.  The adequate assurance to be providedLandlord to assure the assignee’s future performance under the Lease shallinclude without limitation: (A) the deposit of a sum equal to three months’Rent to be held (without any allowance for interest thereon) as security forperformance hereunder; and (B) a written demonstration that the assigneemeets all reasonable financial and other criteria of Landlord as did Tenant andits business at the time of execution of this Lease, including the productionof the most recent audited financial statement of the assignee prepared by acertified public accountant; and (C) the assignee’s use of the DemisedPremises will be in compliance with the terms of this Lease; and(D) assurances, in form acceptable to Landlord, as to all mattersidentified in any applicable provision of the Bankruptcy Code.

###  

# **ARTICLE 17**

#  

# **DEFAULT**

#  

## **17.1****                        Events ofDefault**.

##  

This Lease and the Term and estate herebygranted are subject to the limitation that:

 

### (a)                                  whenever Tenant shallhave failed to pay any installment of Rent, or any portion thereof when thesame shall be due and payable, and Tenant shall have failed to pay same for aperiod of five (5) business days after the due date of such payment (“**Grace Period**”), and for an additionalperiod of five (5) days following the date on which Tenant receives writtennotice of default under this subsection from Landlord.  Landlord shall not, however, be required togive Tenant written notice more than two times in any consecutive twelve (12)month period of the failure to timely pay any installment of Rent; or

###  

### (b)                                 whenever Tenant shallhave failed to comply with, shall have violated or shall be in default in theperformance of any other provision of this Lease and Tenant shall have failedto cure such default within 30 days after written notice from Landlord of suchnoncompliance, violation or default (in the case of a default which cannot withdue diligence be cured within a period of 30 days, Tenant shall have suchadditional time to cure same as may reasonably be necessary, provided Tenantcommences curing such default within the 30 day period and proceeds promptly,effectively, continuously and with due diligence to cure such default afterdelivery of said notice); or

###  

### (c)                                  wheneverTenant shall abandon the Demised Premises and also fail to timely pay Renthereunder following said abandonment; or

 

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### (d)                                 whenever any warranty,representation or statement made or furnished by Tenant to Landlord in writingat any time in connection with this Lease or any other agreement to whichTenant and Landlord are parties is determined to have been, and which Tenantwas aware at the time was false or misleading in any material respect when madeor furnished in writing;

###  

then regardless and notwithstanding the fact that Landlord has or mayhave some other remedy under this Lease or by virtue hereof, or in law or inequity, Landlord may give to Tenant a notice (the “**Termination Notice**”) (which notice isin addition to, and not in lieu of, the notice and cure periods provided under Section 17.1above), of the intention of Landlord to end the term of this Lease specifying aday not less than five (5) days thereafter and, upon the giving of theTermination Notice and upon Tenant’s failure to cure the default at theexpiration of the relevant cure period described above, this Lease and the Termand estate hereby granted shall expire and terminate upon the day so specifiedin the Termination Notice as fully and completely and with the same force andeffect as if the day so specified were the Expiration Date and all rights ofTenant shall terminate and Tenant shall remain liable for damages as hereinafterprovided.  From and after any date uponwhich Landlord is entitled to give a Termination Notice, Landlord, withoutfurther notice and with or without giving such Termination Notice, may enterupon, re-enter, possess and repossess itself of the Demised Premises, by force,summary proceedings, ejection or otherwise, and may dispossess and removeTenant and all other persons and property from the Demised Premises and mayhave, hold and enjoy the Demised Premises and the right to receive all rentaland other income of and from the same. As used in this Lease the words “enter” and “re-enter” are notrestricted to their technical legal meanings.

 

Upon and after such entry into possessionLandlord shall use reasonable efforts to mitigate its damages and in connectiontherewith shall use reasonable efforts to relet the Demised Premises, orportions thereof, for the account of Tenant, to any person, firm orcorporation, other than Tenant, for such Rent, for such time and upon suchterms as Landlord, in Landlord’s reasonable discretion, shall determine, andLandlord shall not be required to accept any tenant offered by Tenant or toobserve any instruction given by Tenant about such reletting.

 

## **17.2****                        Damages**.

##  

### (a)                                  Tenant covenants andagrees that in the event of the termination of this Lease or re-entry byLandlord, under any of the provisions of this Article or pursuant to law,by reason of default hereunder on the part of Tenant,Tenant shall pay to Landlord, as damages with respect to this Lease, at theelection of Landlord:

###  

#### (1)                                  a sum which at thetime of such termination of this Lease or at the time of any re-entry byLandlord, as the case may be, represents the present value (using a discountrate of 8%) of the excess, if any, of:

####  

##### (i)                                     the aggregate ofthe Rent which would have been payable by Tenant for the period commencing withsuch earlier termination of this Lease or the date of any such re-entry, as thecase may be, and ending with the Expiration Date of this Lease, had this Leasenot so terminated or had Landlord not so re-entered the Demised Premises over

 

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##### (ii)                                  theaggregate fair market rental value of the Demised Premises for the same period;or

#####  

##### (iii)                               sums equal to the Rentwhich would have been payable by Tenant had this Lease not so terminated, orhad Landlord not so re-entered the Demised Premises, payable upon the daysspecified in this Lease following such termination or such re-entry and untilthe Expiration Date of this Lease, provided, however, that if the DemisedPremises shall be leased or re-let during said period, Landlord shall creditTenant with the net rents, if any, received by Landlord from such leasing or re-letting,such net Rent to be determined by first deducting from the gross rents as andwhen received by Landlord from such leasing or re-letting the expenses incurredor paid by Landlord in terminating this Lease or of re-entering the DemisedPremises and of securing possession thereof, as well as the expense of leasingand re-letting, including altering and preparing any portion of the DemisedPremises for new tenants, brokers’ commissions and all other expenses properlychargeable against the Demised Premises and the rental there from; but in noevent shall Tenant be entitled to receive any excess of such net rents over theRent, payable by Tenant to Landlord hereunder.

#####  

### (b)                                 Suit or suits for therecovery of any and all damages, or any installments thereof, provided forhereunder may be brought by Landlord from time to time at its election, andnothing contained herein shall be deemed to require Landlord to postpone suituntil the date when the term of this Lease would have expired if it had notbeen terminated under the provisions of this Article, or under provisions ofany law, or had Landlord not re-entered the Demised Premises.

###  

### (c)                                  Nothing hereincontained shall be construed as limiting or precluding the recovery by Landlordagainst Tenant of any damages to which Landlord may lawfully be entitled in anycase other than those particularly provided for above.

###  

## **17.3****                        Waiver ofJury Trial**.

##  

To the fullest extent permitted by theapplicable law, the parties hereto shall and they hereby do waive trial by juryin any action, proceeding or counterclaim brought by either of the partieshereto against the other on any matters whatsoever arising out of or in any wayconnected with this Lease or the interpretation thereof, the relationship ofLandlord and Tenant, Tenant’s use or occupancy of the Demised Premises, and/orany claim of injury or damage.

 

## **17.4****                        OtherRemedies**.

##  

In the event of a default, and upon Tenant’sfailure to cure the default at the expiration of the relevant cure perioddescribed above, Landlord may, but shall not be obligated to, perform anyobligation of Tenant under this Lease, and, if Landlord so elects, allreasonable costs and expenses paid by Landlord in performing such obligation,together with interest at the Default Rate, shall be reimbursed by Tenant toLandlord on demand.  Any and all remediesset forth in 

 

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this Lease:  (a) shall be in addition to any and allother remedies Landlord may have at law or in equity; (b) shall becumulative; and (c) may be pursued successively or concurrently asLandlord may elect.  The exercise of anyremedy by Landlord shall not be deemed an election of remedies or precludeLandlord from exercising any other remedies in the future.

 

## **17.5****                        LandlordDefault**.

##  

In the event of a default by Landlord, andfailure of Landlord to remedy such default after notice from Tenant, Tenant mayexercise any and all remedies available at law or in equity and may pursue suchremedies successively or concurrently as Tenant may elect.  The failure of Tenant to pursue any remedyshall not be deemed as a waiver by reason of any subsequent breach or breachesby the Landlord.  The exercise of anyremedy by Tenant shall not be deemed an election of remedies or preclude Tenantfrom exercising any other remedies in the future.  In no event shall Landlord be responsible forconsequential damages.

 

# **ARTICLE 18**

#  

# **SURRENDER**

#  

## **18.1****                        Possession**.

##  

Upon the expiration or earlier termination ofthis Lease, Tenant shall immediately quit and surrender to Landlord possessionof the Demised Premises in as good a state and condition as they were whenentered into, reasonable wear and tear and casualty damage (other than thatwhich Tenant is obligated to repair) excepted and repair any damage to theDemised Premises or the Property due to such removal.  Upon such surrender, all right, title andinterest of Tenant in the Demised Premises shall cease.

 

## **18.2****                        Merger**.

##  

The voluntary or other surrender of thisLease by Tenant or the cancellation of this Lease by mutual agreement of Tenantand Landlord shall not work a merger, but shall, at Landlord’s option,terminate all or any subleases and subtenancies or operate as an assignment toLandlord of all or any subleases or subtenancies.  Landlord’s option hereunder shall beexercised by notice to Tenant and all known sublessees or subtenants in the DemisedPremises or any part thereof.

 

# **ARTICLE 19**

#  

# **HOLDING OVER**

#  

## **19.1****                        HoldingOver**.

##  

If Tenant retains possession of the DemisedPremises or any part thereof after the expiration or earlier termination ofthis Lease, Tenant shall pay as Rent a sum equal to 150% times the amount ofFixed Rent and 100% of Additional Rent payable hereunder for the monthpreceding such holding over computed on a daily basis for each day that Tenantremains in possession.  Tenant also shallbe liable for and shall pay to Landlord, all direct damages (but notconsequential damages), sustained by reason of Tenant’s holding over.  The provisions of this 

 

41

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section do not waive Landlord’s right of re-entry or right toregain possession by actions at law or in equity or any other rights hereunder,and any receipt of payment by Landlord shall not be deemed a consent byLandlord to Tenant’s remaining in possession or be construed as creating orrenewing any lease or right of tenancy between Landlord and Tenant.

 

# **ARTICLE 20**

#  

# **NO WAIVER**

#  

## **20.1****                        No Waiver**.

##  

No waiver by Landlord or Tenant of a breachof any covenants, agreements, obligations or conditions of this Lease shall beconstrued to be a waiver of any future breach of the same or any othercovenant, agreement, obligation or condition hereof.  No receipt of money by Landlord from Tenantafter notice of default, or after the termination of this Lease or thecommencement of any suit or final judgment of possession of the DemisedPremises, shall reinstate, continue or extend the term of this Lease or affectany notice, demand or suit.

 

# **ARTICLE 21**

#  

# **ESTOPPEL CERTIFICATE,SUBORDINATION, ATTORNMENT**

#  

## **21.1****                        EstoppelCertificate**.

##  

Tenant shall at any time upon the request ofLandlord, execute and deliver in recordable form and in substance satisfactoryto Landlord, an estoppel certificate certifying to the best of Tenant’sknowledge and understanding on the date the estoppel certificate isissued:  the date Tenant acceptedoccupancy of the Demised Premises; the date to which Rent has been paid; theamount of any Security Deposit; that this Lease is in full force and effect andhas not been modified or amended (or if modified or amended, describing thesame) and that Tenant is not aware of any defenses or offsets thereto ordefaults of Landlord under this Lease (or if any be claimed, describing thesame); that the Demised Premises have been completed in accordance with theterms and provisions hereof, that Tenant has accepted the Demised Premises andthe condition thereof and of all improvements thereto and has no claims againstLandlord or any other party with respect thereto (or if Tenant does not believethe Demised Premises have been satisfactorily completed or believes it has anyclaims against Landlord, a full and complete explanation thereof); and suchother matters as Landlord may reasonably request.  Tenant’s failure to deliver such certificatewithin fifteen (15) days of the demand therefor shall be a default hereunder.

 

## **21.2****                        Subordination**.

##  

This Lease is and shall be subject andsubordinate to all ground or underlying leases, mortgages and deeds of trustwhich now or hereafter affect the Land, Building, Property and/or any ground orunderlying leases thereof and to all renewals, modifications, consolidations,replacements and extensions thereof.  Theprovisions of this section shall be automatic and shall not require anyfurther action.  In confirmation of suchsubordination, Tenant will execute and deliver upon demand of Landlord any andall instruments desired by Landlord subordinating this 

 

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lease to suchlease, mortgage or deed of trust. Landlord is hereby irrevocably appointed andauthorized as agent and attorney-in-fact of Tenant to execute and deliver allsuch subordination instruments in the event Tenant fails to execute and deliversaid instruments within fifteen (15) days after notice from Landlord requestingthe execution thereof.

 

## **21.3****                        Attornment**.

##  

Tenant agrees that, at the option of thelandlord under any ground lease now or hereafter affecting the real property ofwhich Demised Premises forms a part, Tenant shall attorn to said landlord inthe event of the termination or cancellation of such ground lease and ifrequested by said landlord, enter into a new lease with said landlord (or asuccessor ground-lessee designated by said landlord) for the balance of theterm then remaining hereunder upon the same terms and conditions as thoseherein provided.  Landlord representsthat as of the Date of Execution of Lease there is no such ground lease.

 

## **21.4****                        Mortgages**.

##  

Landlord represents that on the Date ofExecution of Lease, there is no mortgage affecting the Land, Building and/orProperty.  Tenant covenants and agreesthat, if by reason of default under any mortgage or deed of trust which mayhereafter affect the Land, Building and/or Property, the mortgagee thereunderenters into and becomes possessed of the said mortgaged property either throughpossession, foreclosure action, deed in lieu of foreclosure, or otherproceeding, or in the event of the sale of the said mortgaged property as aresult of any action or proceeding to foreclosure the said mortgage, Tenantwill attorn to the mortgagee or such then owner as its landlord under thisLease.  Tenant agrees to execute anddeliver, at any time and from time to time, upon the request of the mortgageeor the then owner of the said mortgaged property of which the Demised Premisesforms a part any instrument which may be necessary or appropriate to evidencesuch attornment and Tenant hereby appoints the mortgagee or the then owner ofthe said mortgaged property the attorney-in-fact, irrevocable, of Tenant toexecute and deliver for and on behalf of Tenant any such instrument.  In the event there hereafter exists amortgage or deed of trust that affects the Land, Building and/or Property, andsuch mortgagee desires to subordinate this Lease, such Subordination shall notbe effective until and unless such mortgagee executes a non-disturbance,subordination and attornment agreement reasonably acceptable to Tenant wherebysuch mortgagees agree not to disturb Tenant’s possession under this Lease solong as no event of default by Tenant beyond applicable notice and cure periodsexists.  Tenant shall be deemed to haveapproved such mortgagee’s form of non-disturbance, subordination and attornmentagreement if Tenant fails to accept or make comments to such form within 15days after written receipt of request to review and approve or disapprove suchform.

 

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# **ARTICLE 22**

#  

# **QUIET ENJOYMENT**

#  

## **22.1****                        QuietEnjoyment**.

##  

Landlord covenants and agrees with Tenantthat upon payment by Tenant of the Rent hereunder and upon the observance andperformance of all of the terms, covenants and conditions on Tenant’s part tobe observed and performed, Tenant may peaceably and quietly enjoy the DemisedPremises, free of all claims from Landlord, but subject, nevertheless, to theother terms and/or conditions of this Lease.

 

# **ARTICLE 23**

#  

# **NOTICES**

#  

## **23.1****                        Notices**.

##  

Whenever any notice or consent is required orpermitted hereunder, such notice or consent shall be in writing.  Any notice or document required or permittedto be delivered hereunder shall be deemed to be delivered (a) upon receiptor refusal of receipt when sent by recognized overnight courier or(b) upon receipt or refusal of receipt when deposited in the United StatesMail, postage prepaid, Registered or Certified Mail, Return Receipt Requested,addressed to the parties hereto at the addresses set forth in Article l,or at such other addresses as they have theretofore specified by written noticedelivered in accordance herewith.

 

# **ARTICLE 24**

#  

# **MISCELLANEOUSPROVISIONS**

#  

## **24.1****                        Time**.

##  

Time is and shall be of the essence of thisLease and all its provisions.

 

## **24.2****                        ApplicableLaw, Construction and Arbitration of Disputes**.

##  

### (a)                                  This Lease shall begoverned by and construed under the laws of the State in which the Property islocated.

###  

### (b)                                 The necessarygrammatical changes required to make the provisions of this Lease apply in theplural sense where there is more than one tenant and to either corporations,associations, partnerships or individuals, males or females, shall in allinstances be assumed as though fully expressed. If there is more than one person or entity who or which are Tenant underthis Lease, the obligations imposed upon Tenant under this Lease shall be jointand several.  The relationship betweenLandlord and Tenant created hereunder shall be that of lessor and lessee andnothing herein shall be construed as creating any joint venture orpartnership.  The captions used in thisLease 

 

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### are forconvenience only and do not in any way limit or amplify the terms andprovisions hereof.

###  

### (c)                                  In the event of anydispute, claim, or disagreement arising from or related to this Lease, or thebreach thereof, Landlord and Tenant shall use their reasonable good faithefforts to settle the dispute, claim, or disagreement.

###  

## **24.3****                        PartiesBound**.

##  

It is agreed that this Lease, and each andall the covenants and obligations hereof, shall be binding upon and inure tothe benefit of, as the case may be, the parties hereto, their respective heirs,executors, administrators, successors and assigns, subject to all agreementsand restrictions herein contained with respect to assignment or other transferof Tenant’s interest herein.

 

## **24.4****                        NoRepresentations by Landlord**.

##  

Neither Landlord nor Landlord’s advisors oragents have made any representations or promises with respect to the physicalcondition of the Property or the Building, the Demised Premises, permissibleuses of Demised Premises, the rents, leases, expenses of operation or any othermatter or thing affecting or related to the Demised Premises except asexpressly set forth, and no rights, easements, or licenses are acquired byTenant by implication or otherwise except as expressly set forth in theprovisions of this Lease.  Uponacceptance of delivery of possession of the Demised Premises, Tenant shall bedeemed to have accepted the Demised Premises and Building in “as is” conditionsubject to completion of Landlord’s Work, if any, andsubject to Landlord’s obligations hereunder and the representations set forthbelow.  All understandings and agreementsheretofore made between the parties hereto are merged in this Lease, whichalone fully and completely expresses the agreement between Landlord and Tenant,and any executory agreement hereafter made shall be ineffective to change,modify, discharge or effect an abandonment of it, in whole or in part, or asurrender of this Lease or of the Demised Premises or any part thereof or ofany interest of Tenant therein unless such executory agreement is in writingand signed by Landlord and Tenant. Landlord represents to Tenant that to Landlord’s knowledge, as of thedate hereof, the common Building mechanical, electrical, plumbing and elevatorsystems are in good working order.

 

## **24.5****                        Brokers**.

##  

Tenant warrants that it has had no dealingswith any broker or agent in connection with the negotiation or execution ofthis Lease other than the broker(s) identified in Article 1.  Tenant agrees to indemnify and hold harmlessthe Landlord Protected Parties from and against any and all cost, expense, orliability for commissions or other compensation and charges claimed by anybroker or agent (other than the broker(s) identified in Article 1) withrespect to this Lease as a result of a broker who was retained by Tenant orclaims compensation as a result of actions for the benefit of Tenant or it isotherwise found that such broker was a procuring cause of the Lease based onTenant’s actions.  Landlord warrants thatit has had no dealings with any broker or agent in connection with thenegotiation or execution of this Lease other than the broker(s) identified in Article 1.  Landlord agrees to indemnify, reimburse andhold harmless the Tenant from and against any and all cost, expense, orliability for commissions or other compensation 

 

45

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and charges claimed by any broker or agent (other than the broker(s)identified in Article 1) with respect to this Lease as a result of abroker who was retained by Landlord or claims compensation as a result ofactions for the benefit of Landlord or it is otherwise found that such brokerwas a procuring cause of the Lease based on Landlord’s actions.

 

## **24.6****                        ConsultingFee**.

##  

Landlord, upon the execution of this Lease byboth parties hereto, will pay to Tenant a consulting fee in the amount of $67,724.00.  One-half of the consulting feewill be due and payable upon lease execution and delivery and one-half uponoccupancy of the Demised Premises by Tenant.

 

## **24.7****                        Severability**.

##  

The invalidity or unenforceability of anyprovision of this Lease shall not affect or impair the validity of any otherprovision.

 

## **24.8****                        ForceMajeure**.

##  

In the event Landlord or Tenant shall bedelayed or hindered in or prevented from the performance of any act requiredhereunder by reason of strikes, lock-outs, labor troubles, inability to procurematerials, failure of power, restrictive governmental laws or regulations,riots, insurrection, war or other reason of a like nature beyond the reasonablecontrol of Landlord or Tenant, as the case may be, in performing work or doingacts required under the terms of this Lease, then performance of such act shallbe extended for a period equivalent to the period of such delay; provided,however, that in no event shall Tenant’s obligation to pay Rent hereunder orTenant’s cure periods under Section 17.1 above be extended as a result ofany such delay.

 

## **24.9****                        Definitionof Landlord**.

##  

As used in this Lease, the term “**Landlord**” shall mean only the owner, orthe mortgagee in possession, for the time being, of the Property or the ownerof a lease of the Property so that in the event of any sale of the Property orin the event of a lease of the Property said Landlord shall be and hereby isentirely freed and relieved of all covenants and obligations of Landlordhereunder thereafter to be performed or observed, and it shall be deemed andconstrued without further agreement between the parties or their successors ininterest, or between the parties and any such purchaser or lessee, that suchpurchaser or lessee has assumed and agreed to performed and observe any and allcovenants and obligations of Landlord hereunder first arising from and afterthe effective date of such transfer.

 

## **24.10****                 No Option**.

##  

The submission of this Lease for examinationor execution does not constitute a reservation of or option for the Demised Premises, and this Lease becomes effective as a lease onlyupon execution and delivery thereof by Landlord and Tenant.

 

46

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## **24.11****                 ExculpatoryClause**.

##  

All separate and personal liability ofLandlord or any trustee, director, officer, partner principal (disclosed orundisclosed), managing agent, or advisor (including, but not limited toBlackRock Realty Advisors, Inc.) thereof of every kind or nature, if any, iswaived by Tenant, and by every person now or hereafter claiming by, through orunder Tenant; and Tenant shall look solely to Landlord’s estate in the Propertyfor the payment of any claim against Landlord.

 

## **24.12****                 No Recording**.

##  

Unless required by law, Tenant shall notrecord this Lease, or any portion or any reference hereto.  In the event Tenant records this Lease, orpermits or causes this Lease, or any portion hereof or reference hereto to berecorded, this Lease shall terminate at Landlord’s option or Landlord maydeclare a default hereunder and pursue any and all of its remedies provided inthis Lease.

 

## **24.13****                 FinancialStatements**.

##  

Tenant, within 30 days after Landlord’swritten request, shall provide Landlord with a copy of the most recent annualfinancial statement available and such other information as Landlord mayreasonably request in order to create a “business profile” of Tenant anddetermine Tenant’s ability to fulfill its obligations under this Lease.

 

## **24.14****                 ERISA**.

##  

Tenant hereby represents and warrants toLandlord that no portion of or interest in the Lease will be treated as theasset of any (i) “employee benefit plan” (within the meaning of Section 3(3)of the Employee Retirement Income Security Act of 1974, as amended), (ii) “plan”(within the meaning of Section 4975(e)(1) of the Internal Revenue Code of1986, as amended ) or (iii) entity whose underlying assets include “plan assets”by reason of a plan’s investment in such entity.

 

## **24.15****                 Signage**.

##  

Provided that Tenant is not in default and nouncured event of default exists under any of the terms and conditions of thisLease; and provided that Tenant is occupying the Demised Premises, Tenant shallhave the right to erect one (1) identifying sign panel on the existing monumentsign in front of the Building (“Tenant’s Monument Signage”).  Landlord shall be responsible, at its solecost and expense, for the purchase, installation, maintenance (in a first-classmanner) and removal, at the expiration or earlier termination of this Lease, ofTenant’s Monument Signage.  The design,specifications and panel location of Tenant’s Monument Signage shall be subjectto the prior approval of Landlord and Landlord’s architect, which approvalshall not be unreasonably withheld, conditioned or delayed.  Tenant shall be responsible for compliancewith all applicable laws, orders and regulations of the municipality in whichthe Building is located.  Notwithstandingany such review and approval by Landlord and Landlord’s architect, Tenant shallbe responsible in all respects for Tenant’s Monument Signage, includingcompliance with all the applicable laws.

 

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All of Tenant’s signage rights hereunder arepersonal to the initial Tenant hereunder and may not be assigned or subleased.

 

## **24.16****                 Maintenance**.

##  

Subject to Section 8.1, Landlord herebyagrees that it shall be obligated at all times to maintain the Building,Property, Demised Premises, Storage Space, or any other area utilized by Tenantpursuant to this Lease, in a first class manner.

 

# **ARTICLE 25**

#  

# **OPTION TO RENEW**

#  

## **25.1****                        Option toRenew**.

##  

Provided that the conditions set forth in Section 25.5are satisfied on the Expiration Date of the initial Term, Tenant shall have theright to extend the Term for the Renewal Term described in Article 1 hereofupon the same terms and conditions as are herein provided, except that(a) Fixed Rent during the Renewal Term shall be at an annual rate equal tothe annual Fair Market Rent (as hereinafter defined) for the Demised Premisesfor the Renewal Term, (b) Tenant shall have no option to renew this Leasebeyond the expiration of the Renewal Term (subject to Section 25.5) and(c) Landlord shall have no obligation to pay a tenant improvementallowance or make any other concession. Such right shall be exercised by Tenant by giving written notice (the “**Notice to Renew**”) to Landlord at leasttwelve (12) months prior to the Expiration Date.  Time shall be of the essence for the exerciseof such option. The renewal options set forth in this Section 25.1 arepersonal to KMG America Corp. and to a Transfer of Control Assignee who had theRequired Net Worth and shall not inure to the benefit of any third party orassignee.

 

## **25.2****                        FairMarket Rent**.

##  

For the purposes of this Article, “**Fair Market Rent**” shall mean the FixedRent, on a so-called “net” basis, that would be paid by a willing tenant, notcompelled to lease, and accepted by a willing landlord, not compelled to lease,for premises similar to the Demised Premises in comparable buildings in thesouthwest and west suburban Minneapolis/St. Paul, Minnesota, area as of thepertinent date.  In determining the FairMarket Rent for the Demised Premises, whether or not Landlord will be providingan allowance or other concession to Tenant for the Renewal Term, and whetherTenant will be accepting the Demised Premises in their “as is” condition, shallbe considered.  Fair Market Rent shall bedetermined by Landlord in a notice (“**FairMarket Rent Notice**”) delivered to Tenant not later than thirty(30) days after written request from Tenant for the Fair Market Rent Notice,but in no event shall Landlord be obligated to provide the Fair Market RentNotice sooner than thirteen (13) months prior to the commencement of theRenewal Term.

 

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## **25.3****                        Dispute ofFair Market Rent**.

##  

In the event Tenant shall elect to disputeLandlord’s determination of the Fair Market Rent (“**Landlord’s Amount**”), Tenant shall berequired to notify Landlord of such dispute in writing (the “**Dispute Notice**”) within thirty (30)days after delivery to Tenant of the Fair Market Rent Notice.  Failure by Tenant to so notify Landlord ofTenant’s dispute of the amount thereof shall be deemed to constitute Tenant’sacceptance thereof.  If Tenant shalltimely notify Landlord of Tenant’s dispute, then the determination of FairMarket Rent shall be determined by arbitration as hereinafter set forth.  If such arbitration concerning Fair MarketRent shall not be concluded prior to the commencement of the applicable RenewalTerm, Tenant shall nevertheless pay all Fixed Rent and Additional Rent toLandlord with respect thereto from and after the commencement of the applicableRenewal Term, which shall include Fixed Rent as specified in the Fair MarketRent Notice.  If the applicable FairMarket Rent as determined by arbitration is greater than or less than thatspecified in the Fair Market Rent Notice, then such adjustment as shall beneeded to correct the amount previously paid by Tenant on such overpaid orunderpaid amount, as the case may be, computed from the date of suchoverpayment or underpayment, as the case may be, to the date of refund orpayment, as appropriate, shall be made in a payment by the appropriate partywithin thirty (30) days after the arbitration determination.  In the event the Fair Market Rent determinedby arbitration is greater than Landlord’s Amount, Tenant shall have the rightto revoke its exercise of its right to extend the Term for the Renewal Termwithin ten (10) days after receipt of the notice of the arbitrationdetermination.  In the event Tenant shallnot so revoke its exercise, the Lease will be extended at the Fair Market Rentset forth in the arbitration determination.

 

## **25.4****                        Arbitrationof Fair Market Rent**.

##  

In the event that arbitration of the Fair MarketRent shall be required pursuant to this Article, then the following proceduresshall apply:

 

###### (i)                                     If Landlord orTenant desires to invoke the arbitration procedure set forth in this Article,the party invoking the arbitration procedure shall give a notice to the otherparty and shall in such notice appoint a person as arbitrator on itsbehalf.  Within thirty (30) days aftersuch notice, the other party by notice to the original party shall appoint asecond person as arbitrator on its behalf. The arbitrators thus appointed shall appoint a third person, and suchthree arbitrators shall as promptly as possible determine such matter;provided, however, that:

######  

(A)                              Ifthe second arbitrator shall not have been appointed within the thirty (30) dayperiod as aforesaid, the first arbitrator shall proceed to determine suchmatter and shall render his decision and award in writing within thirty (30)days after the expiration of said thirty (30) day period; and

 

(B)                                Ifthe two arbitrators are appointed by the parties and shall be unable to agree,within ten (10) days after the appointment of the second arbitrator, upon theappointment of a third arbitrator, they shall give written notice to theparties of such failure to agree, and if the parties fail to agree upon theselection of such third arbitrator within ten (10) days after the arbitrators 

 

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appointed by the parties give notice asaforesaid, then within five (5) days thereafter either of the parties uponnotice to the other party may request such appointment by the nearest office ofthe American Arbitration Association or any organization which is the successorthereof (the “**AAA**”), or inits absence, refusal, failure or inability to act, may apply to a trial courtof the state in which the Building is located having jurisdiction over the Land(the “**Court**”), for theappointment of such arbitrator and the other party shall not raise any questionas to the Court’s full power and jurisdiction to entertain the application andmake the appointment.

 

###### (ii)                                  The arbitration shallbe conducted in accordance with the then prevailing rules of the AAA, modifiedas follows:

######  

(A)                              Tothe extent that any statute of the state in which the Property is locatedimposes requirements different than those of the AAA in order for the decisionof the arbitrator or arbitrators to be enforceable in the courts of such state,such requirements shall be complied with in the arbitration;

 

(B)                                Eacharbitrator shall be disinterested and shall not be affiliated with Landlord orTenant; and

 

(C)                                Thearbitrators, if more than one, shall render their decision and award inwriting, upon the concurrence of at least two of their number, within thirty(30) days after the appointment of the third arbitrator.

 

###### (iii)                               Such decision and awardor the decision and award of arbitrators, if more than one, as provided in thisArticle, shall be binding and conclusive on the parties, shall constitute an “award”by the arbitrator within the meaning of the AAA rules and applicable law, andcounterpart copies thereof shall be delivered to each of the parties.  In rendering such decision and award, thearbitrators shall not add to, subtract from or otherwise modify the provisionsof this Lease.  Judgment may be had onthe decision and award of the arbitrators so rendered in any court of competentjurisdiction.

######  

###### (iv)                              Each party shall pay thefees and expenses of one of the two original arbitrators appointed by or forsuch party and the fees and expenses of the third arbitrator and all otherexpenses of the arbitration (other than the fees and disbursements of attorneysor witnesses for each party) shall be borne by the parties equally.

######  

## **25.5****                        Conditions**.

##  

Tenant may exercise its option to renewhereunder, and an exercise thereof shall be only effective, if at the time ofTenant’s exercise of the option and on the commencement date of the RenewalTerm, (i) this Lease is in full force and effect and (ii) an uncured event ofdefault does not exist, and (iii) inasmuch as this option is intended only forthe benefit of KMG America Corp. or a Transfer of Control Assignee who had theRequired Net Worth, the entire Demised Premises are occupied by KMG AmericaCorp or a Transfer of Control Assignee who had the Required Net Worth, and theTenant has neither assigned this Lease nor sublet any portion of the

 

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Demised Premises other than to a Transfer ofControl Assignee who had the Required Net Worth.

 

# **ARTICLE 26**

#  

# **TENANT FINISH**

#  

Landlord shall, at its own cost and expense,complete the work to build out the Demised Premises according to the WorkLetter and the Permit Set of Drawings. Tenant’s architect shall provide fully compliant signed documents to besubmitted to the City for all applicable approvals and permits, and Landlordshall reimburse Tenant’s architect $16,931.00. Tenant shall bear the entire cost of any improvements in the DemisedPremises in excess of the work required by the Permit Set of Drawings.

 

In the event Tenant desires to make changesto the Permit Set of Drawings and such change results in a cost savings (“**Savings Changes**”), and further suchchanges do not delay the completion of Landlord’s Work (whether such changeshall result in a delay being in Landlord’s sole determination) (“**Determined Delay**”) Landlord shallpermit such change and apply such cost savings as Landlord and Tenant mutuallyagree in writing.  If any such SavingsChange shall cause such a Determined Delay, Tenant shall not be permitted tomake such Savings Change unless Tenant agrees in writing that the date under Section 2.2(a)(i) shall be deemed to be the Scheduled Commencement Date,and that Landlord shall not pay to Tenant the Daily Fee under anycircumstances.

 

[Balance of page intentionallyleft blank]

 

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**IN WITNESS WHEREOF**,the parties hereto have caused this Lease to be executed as of the 8thday of February, 2005.

 

 
| ** ** | **LANDLORD:**                                                                                                 |
|------------|---------------------------------------------------------------------------------------------------------------|
|       |                                                                                                          |
| ** ** | **METROPOLITAN LIFE INSURANCE  COMPANY,** a New York corporation, on  behalf of a commingled separate account |
|       |                                                                                                          |
|       | By:                                                                                                           | BlackRock Realty Advisors, Inc., its   investment advisor |
|       |                                                                                                          |   |
|       |                                                                                                          | By: | /s/ Cathy Bernstein |   |
|       |                                                                                                          | Name: Cathy Bernstein |
|       |                                                                                                          | Title: Asset Manager |

 

[SIGNATURES CONTINUE ONFOLLOWING PAGE]

 

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| ** ** | **TENANT**                                      |
|------------|-------------------------------------------------|
|       |                                            |   |
| ** ** | **KMG AMERICA CORP.,**a  Virginia   corporation |
|       |                                            |   |
|       | By:                                             | /s/ Thomas D. Sass |   |
|       | Name: Thomas D. Sass                            |
|       | Title: Senior Vice President - Operations       |
|            |                                                 |  |  |  |

 

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