Exhibit
10.4


 


LEASE AGREEMENT


 


between


 


MINNESOTA INDUSTRIAL PROPERTIES LIMITED
PARTNERSHIP


as “Landlord”


 


and


 


MOCON, INC., a Minnesota corporation 

as “Tenant”


 

















 


TABLE OF CONTENTS


 


	
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  PAGE

  
	
   

  	
   

  	
   

  
	
  Error! Not a valid
  heading level in TOC entry on page 1

  	
   

  	
   

  



 


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BASIC LEASE INFORMATION


 


	
  Lease
  Date:

  	
   

  	
  For
  identification purposes only, the date of this Lease is March 9, 2010.

  
	
   

  	
   

  	
   

  
	
  Landlord:

  	
   

  	
  Minnesota
  Industrial Properties Limited Partnership, a Minnesota limited partnership

  
	
   

  	
   

  	
   

  
	
  Tenant:

  	
   

  	
  Mocon, Inc.,
  a Minnesota corporation

  
	
   

  	
   

  	
   

  
	
  Project:

  	
   

  	
  Northland
  Interstate Business Center IV

  
	
   

  	
   

  	
   

  
	
  Building
  Address:

  	
   

  	
  9300 75th Avenue North, Brooklyn Park, MN 55428

  
	
   

  	
   

  	
   

  
	
  Premises
  Address:

  	
   

  	
  9300 75th Avenue North, Suite 100, Brooklyn Park,
  MN 55428

  
	
   

  	
   

  	
   

  
	
  Rentable
  Area of Building:

  	
   

  	
  Approximately
  185,000 square feet.

  
	
   

  	
   

  	
   

  
	
  Premises:

  	
   

  	
  Approximately
  60,086 rentable square feet, including approximately 31,718 rentable square
  feet of office/lab area and approximately 28,368 rentable square feet of
  warehouse space.

  
	
   

  	
   

  	
   

  
	
  Permitted
  Use:

  	
   

  	
  The Premises
  shall be used for lawful warehouse and general office/lab purposes,
  manufacturing, fabrication and/or assembly of various testing equipment and
  for no other use or purpose without Landlord’s prior written consent.

  
	
   

  	
   

  	
   

  
	
  Term:

  	
   

  	
  One hundred
  eighty-four (184) full calendar months (plus any partial month at the
  beginning of the Term) (“Initial Term”). Tenant has one Extension Option, as defined in Exhibit D
  to this Lease, to extend the Term of this Lease for one (1) additional
  consecutive five (5) year period beginning pursuant to Section 35
  (Extension of Term) of this Lease.

  
	
   

  	
   

  	
   

  
	
  Scheduled
  Commencement Date:

  	
   

  	
  June 1,
  2010

  
	
   

  	
   

  	
   

  
	
  Expiration
  Date:

  	
   

  	
  The last day of
  the one hundred eighty-fourth (184th) full calendar month in the Term

  
	
   

  	
   

  	
   

  
	
  Base
  Rent:

  	
   

  	
  Initial Term: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 1-5:

  	
  none-abated* 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 6 - 16:

  	
  $367,125.46 per
  annum

  



 


1

















 


	
   

  	
   

  	
   

  	
  $30,593.79 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 17 - 28:

  	
  $376,138.36 per
  annum

  
	
   

  	
   

  	
   

  	
  $31,344.86 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 29 - 40:

  	
  $385,752.12 per
  annum

  
	
   

  	
   

  	
   

  	
  $32,146.01 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 41 - 52:

  	
  $395,365.88 per
  annum

  
	
   

  	
   

  	
   

  	
  $32,947.16 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 53 - 64:

  	
  $405,580.50 per
  annum

  
	
   

  	
   

  	
   

  	
  $33,798.38 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 65 - 76:

  	
  $415,795.12 per
  annum

  
	
   

  	
   

  	
   

  	
  $34,649.59 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 77 - 88:

  	
  $426,009.74 per
  annum

  
	
   

  	
   

  	
   

  	
  $35,500.81 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 89 - 100:

  	
  $436,825.22 per
  annum

  
	
   

  	
   

  	
   

  	
  $36,402.10 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 101 -
  112:

  	
  $447,640.70 per
  annum

  
	
   

  	
   

  	
   

  	
  $37,303.39 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 113 -
  124:

  	
  $459,057.04 per
  annum

  
	
   

  	
   

  	
   

  	
  $38,254.75 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 125 -
  136:

  	
  $470,473.38 per
  annum

  
	
   

  	
   

  	
   

  	
  $39,206.12 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 137 -
  148:

  	
  $482,490.58 per
  annum

  
	
   

  	
   

  	
   

  	
  $40,207.55 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 149 —
  160:

  	
  $494,507.78 per
  annum

  
	
   

  	
   

  	
   

  	
  $41,208.98 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 161 -
  172:

  	
  $507,125.84 per
  annum

  
	
   

  	
   

  	
   

  	
  $42,260.49 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 173 -
  184:

  	
  $519,743.90 per
  annum

  
	
   

  	
   

  	
   

  	
  $43,311.99 per
  month

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Extension Term:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Months 185 — 244

  	
  Market Rate (see Section 3.1(a)

  



 


2

















 






	
   

  	
   

  	
  *Tenant shall be
  entitled to (i) an abatement of Base Rent and Additional Rent during
  months 1-4 of the Initial Term, and (ii) an abatement of Base Rent only
  during month 5 of the Initial Term, however, Tenant shall be responsible for
  utility consumption charges for the Premises during said abatement period. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  **To the extent
  Tenant engages in a single construction project involving permitted
  Alterations to the Premises during months 61-120 of the Initial Term that
  costs equal to or more than Two Hundred Fifty Thousand Dollars ($250,000),
  then upon completion of the project in compliance with all the terms of this
  Lease, and delivery to Landlord of unconditional full and final lien waivers
  evidencing that total hard construction costs for such project equal or
  exceed $250,000, Landlord will give Tenant a rent credit to be applied
  against the next installment of Base Rent coming due hereunder equal to
  Thirty Thousand Dollars ($30,000); provided, however, Landlord may, in its
  sole discretion, prior to commencement of construction of said construction
  project, elect to waive Section 6.6 of this Lease with respect to said
  construction project, in which event the foregoing rent credit shall be null
  and void. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ***To the extent
  Tenant engages in a single construction project involving permitted
  Alterations to the Premises during months 121-180 of the Initial Term that
  costs equal to or more than Two Hundred Fifty Thousand Dollars ($250,000),
  then upon completion of the project in compliance with all the terms of this
  Lease, and delivery to Landlord of unconditional full and final lien waivers
  evidencing that total hard construction costs for such project equal or exceed
  $250,000, Landlord will give Tenant a rent credit to be applied against the
  next installment of Base Rent coming due hereunder equal to Thirty Thousand
  Dollars ($30,000); provided, however, Landlord may, in its sole discretion,
  prior to commencement of construction of said construction project, elect to
  waive Section 6.6 of this Lease with respect to said construction
  project, in which event the foregoing rent credit shall be null and void.

  
	
   

  	
   

  	
   

  
	
  Tenant’s
  Share:

  	
   

  	
  32.48%

  
	
   

  	
   

  	
   

  
	
  Security
  Deposit:

  	
   

  	
  $41,259.06

  
	
   

  	
   

  	
   

  
	
  Landlord’s
  Address for Payment of Rent:

  	
   

  	
  Minnesota
  Industrial Properties Limited Partnership  

  c/o Ryan Companies US, Inc.  

  50 South Tenth Street, Suite 300  

  Minneapolis MN 55403-2012

  



 


3

















 


	
  Landlord’s
  Address  for Notices:

  	
   

  	
  Minnesota
  Industrial Properties Limited Partnership  

  c/o Ryan Companies US, Inc.  

  50 South Tenth Street, Suite 300  

  Minneapolis MN 55403-2012

  
	
   

  	
   

  	
   

  
	
  Tenant’s
  Address  for Notices:

  	
   

  	
  Mocon, Inc.  

  9300 75th Avenue North, Suite 100  

  Brooklyn Park, MN 55428

  
	
   

  	
   

  	
   

  
	
  Broker(s):

  	
   

  	
  Tenant: NAI
  Welsh (Peter Mork; Tim Olsen)  

  Landlord: CB Richard
  Ellis (Matt A. Oelschlager)

  
	
   

  	
   

  	
   

  
	
  Guarantor(s):

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  Property
  Manager:

  	
   

  	
  Ryan Companies
  US, Inc.

  
	
   

  	
   

  	
   

  
	
  Additional
  Provisions:

  	
   

  	
  35. Extension of
  Term; 36. Permitted Trash Enclosure

  



 


	
  Exhibits:

  	
   

  	
   

  
	
  Exhibit A:

  	
   

  	
  The Premises

  
	
  Exhibit B:

  	
   

  	
  Construction Rider

  
	
  Exhibit B-1:

  	
   

  	
  Final Cost Estimate

  
	
  Exhibit C:

  	
   

  	
  Building Rules

  
	
  Exhibit D:

  	
   

  	
  Additional Provisions Rider

  
	
  Exhibit E:

  	
   

  	
  Tenant’s
  Hazardous Materials List

  
	
  Exhibit F:

  	
   

  	
  Non-Disturbance,
  Attornment, Estoppel and Subordination Agreement

  



 


The Basic Lease Information set forth above is part of the Lease.  In the event of any conflict between any
provision in the Basic Lease Information and the Lease, the Lease shall control.


 


4

















 


THIS LEASE is made as of the Lease Date set forth in the Basic Lease
Information, by and between the Landlord identified in the Basic Lease
Information (“Landlord”), and the Tenant
identified in the Basic Lease Information (“Tenant”).  Landlord and Tenant hereby agree as follows:


 


1.            PREMISES.


 


1.1          Premises Described.  Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, in its “as-is” condition, except for latent
defects in the Tenant Improvements (defined in Exhibit B) and
Landlord’s lease obligations hereunder, including the Tenant Improvements
described in Exhibit B, upon the terms and subject to the
conditions of this Lease, the  premises
identified in the Basic Lease Information as the Premises (the “Premises”), in the Building located at the Building Address
specified in the Basic Lease Information (the “Building”).  The approximate configuration and location of
the Premises is shown on Exhibit A. 
Landlord and Tenant agree that during the entire Term of this Lease,
including any extension thereof, the rentable area of the Premises (“Rentable Area”) for all purposes under this Lease, except as
otherwise provided in Section 12 (Damage or Destruction) or Section 13
(Condemnation), shall be the Rentable Area specified in the Basic Lease
Information.  Landlord and Tenant agree
that the rentable area of the Building (“Building Rentable Area”)
for all purposes under this Lease,  except as otherwise provided in Section 12
(Damage or Destruction) or Section 13 (Condemnation), shall be the
Building Rentable Area specified in the Basic Lease Information.  The Building, together with the parking
facilities serving the Building (the “Parking Facility”),
the common areas (the “Common Areas”)
and the parcel(s) of land on which the Building and the Parking Facility
are situated (collectively, the “Property”), is
part of the Project, which  may contain
more than one building, identified in the Basic Lease Information (the “Project”).


 


Notwithstanding the foregoing to the contrary, within thirty (30) days
after the earlier of (i) the date Landlord notifies Tenant in writing that
installation of the demising wall has been completed sufficient to permit
measurement of the Rentable Area of the Premises, or (ii) the date
Landlord delivers the Premises to Tenant with the Tenant Improvements
Substantially Completed, Landlord’s architect shall have the Rentable Area of
the Premises verified by measuring same in accordance with the standard herein
provided and shall give written notice as to such measurement to Landlord and
Tenant.  In the event that the
verification reveals a discrepancy between the Rentable Area of the Premises
specified in the Basic Lease Information and the Rentable Area of the Premises
determined by Landlord’s architect and either Landlord or Tenant dispute the
measurement of Landlord’s architect by written notice delivered to the other
party within fifteen (15) days after Landlord delivers its architect
verification of the Rentable Area to Tenant, then an independent architect
acceptable to both parties (the cost of which shall be divided equally between
Landlord and Tenant) shall measure the Premises in accordance with the standard
herein provided.  If neither party
disputes the Rentable Area determined by Landlord’s architect within said
fifteen (15) day period, then the determination of Rentable Area by Landlord’s
architect shall be deemed conclusive. If either party timely disputes the
Rentable Area determined by Landlord’s architect, then the square footage of
Rentable Area of the Premises as determined by said independent architect shall
be the Rentable Area of the Premises for purposes of this Lease, and within
thirty (30 days thereafter, the parties shall execute an addendum to this Lease
in form prepared by Landlord’s counsel confirming same and the Base Rent,
Tenant’s Share of Operating Costs and 


 


5

















 


any other sums due
hereunder based in whole or in part on the rentable square footage of the
Building, and further any necessary payments or reimbursements shall be made by
the appropriate party.  The Rentable Area
of the Building will be calculated in accordance with the American National
Standard Method of Measuring Floor Area in Office Buildings,
ANSI/BOMAA65.1-1996.


 


1.2          Common Areas.    The term “Common Areas”
as used herein means all areas and facilities outside the Premises, within the
exterior boundaries of the Project, that are provided and designated by
Landlord from time to time for the general non-exclusive use and convenience of
Tenant and of other tenants of Landlord having the common use of such areas,
and their respective authorized representatives and invitees.  Common Areas include, without limitation,
driveways, parking areas, sidewalks, and landscaped areas, all as generally
described or shown on Exhibit A attached hereto.  Landlord hereby grants to Tenant, for the
benefit of Tenant and its employees, suppliers, shippers, customers and
invitees, during the Term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by
Landlord under the terms hereof or under the terms of any reasonable rules and
regulations or restrictions governing the use of the Building or the
Project.  Under no circumstances shall
the right herein granted to use the Common Areas be deemed to include the right
to store any property, temporarily or permanently, in the Common Areas, except
for Tenant’s dumpsters and the permitted trash enclosure, as more particularly
set forth in Section 36 of this Lease.


 


(a)           Common
Areas-Changes.  Landlord shall have
the right, in Landlord’s reasonable discretion, from time to time, so long as
Tenant’s rights under the Lease are not materially diminished and Tenant’s
access to the Premises and parking are not materially interfered with;


 


1.             To make changes and
reductions to the Common Areas, including, without limitation, changes in the
location, size, shape and number of driveways, entrances, parking spaces,
parking areas, loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas and walkways;


 


2.             To close
temporarily any of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available;


 


3.             To designate other
land outside the boundaries of the Building to be a part of the Common Areas;


 


4.                                      To add additional improvements to the Common Areas;


 


5.             To use the Common
Areas while engaged in making additional improvements, repairs or alterations
to the Building or Project, or any portion thereof;


 


6.             To do and perform
such other acts and make such other changes in, to or with respect to the
Common Areas as Landlord may, in the exercise of sound business judgment, deem
to be appropriate.


 


6

















 


(b)           Common Area
Maintenance.  Landlord shall, in
Landlord’s reasonable discretion, maintain and repair the Common Areas (subject
to reimbursement pursuant to this Lease) including snow and ice removal from
sidewalks and parking areas, lawn care and landscaping and establish and
enforce reasonable non-discriminatory rules and regulations concerning
such areas.


 


(c)           Tenant’s Use of
Parking Areas.  Tenant and its
employees, customers, visitors, and licensees shall have the non-exclusive
right to use, in common with other parties occupying the Buildings or Project,
at least 175 parking spaces in the Project, subject to such reasonable rules and
regulations as Landlord may from time to time prescribe.


 


2.             TERM; POSSESSION.  The term of this Lease (the “Term”) shall commence on the Commencement Date as described
below and, unless sooner terminated, shall expire on the Expiration Date set
forth in the Basic Lease Information (the “Expiration Date”).  The “Commencement Date”
shall be the date on which Landlord tenders possession of the Premises to
Tenant, with all of Landlord’s construction obligations “Substantially
Completed” as provided in the Construction Rider attached as Exhibit B
(the “Construction Rider”) or, in the event
of any “Tenant Delay,” as defined in the
Construction Rider, the date on which Landlord could have done so had there
been no such Tenant Delay.  The parties
anticipate that the Commencement Date will occur on or about the Scheduled
Commencement Date set forth in the Basic Lease Information (the “Scheduled Commencement Date”); provided, however, that
Landlord shall not be liable for any claims, damages or liabilities if the
Premises are not ready for occupancy by the Scheduled Commencement Date, except
as specifically set forth herein.  When
the Commencement Date has been established, Landlord and Tenant shall at the
request of either party confirm the Commencement Date and Expiration Date in
writing.


 


In the event
Landlord fails to deliver possession of the Premises to Tenant with the Tenant
Improvements Substantially Completed on or before July 1, 2010, subject to
force majeure delays (described in Section 26) and Tenant Delays (defined
in Exhibit B), then Tenant as its sole and exclusive remedy shall
be entitled to an abatement of one day of Base Rent for each day after July 1,
2010 that the Tenant Improvements  have
not been Substantially Completed.  Such
day-for-day Base Rent abatement shall commence to apply upon the Commencement
Date of the Lease and shall continue until applied in full, provided, however,
that it is the intent of the parties that this day-for-day rent abatement be
applied consecutively, not concurrently, with any other rent abatement or
credit which may be then-applicable.  In
the event Landlord fails to deliver possession of the Premises to Tenant with
the Tenant Improvements Substantially Completed on or before September 1,
2010, subject to force majeure delays (described in Section 26) and Tenant
Delays (defined in Exhibit B), then Tenant as its sole and
exclusive remedy shall have the right to terminate this Lease by providing
Landlord with ten (10) days’ prior written notice thereof, but in any
event given before Landlord has Substantially Completed the Tenant
Improvements.  Other than as aforesaid,
Landlord shall have no liability to Tenant for failure to deliver possession of
the Premises to Tenant with Tenant Improvements Substantially Completed on or
before June 1, 2010. Notwithstanding anything in this Lease to the
contrary, if this Lease is not fully executed by the parties by March 5,
2010, including without limitation, approval and signature by Landlord, Tenant
and Wells Fargo Bank, National Association (“Wells Fargo”), of the NDESA
attached hereto as Exhibit F, then each of the above described
deadlines in this subparagraph shall be extended one day for each day after March 5,
2010 until the Lease is fully executed by the parties and the NDESA is fully executed
by Landlord, Tenant and Wells Fargo.


 


7

















 


3.            RENT.


 


3.1          Base Rent.  Tenant agrees to pay to Landlord the Base
Rent in the Base Rent schedule set forth in the Basic Lease Information,
without prior notice or demand, on the first day of each and every calendar
month during the Term, except as otherwise provided in said Base Rent
schedule.  Within forty-five (45) days
after execution of the Lease by both Landlord and Tenant, Tenant shall pay
Landlord the amount of Base Rent and Additional Rent for the first full month
that Rent is payable pursuant to said Base Rent schedule. Base Rent for any
partial month at the beginning or end of the Term shall be prorated based on
the actual number of days in the month and paid by the Commencement Date.


 


(a)           Base Rent:
Extension Term.  Tenant agrees to pay
to Landlord Base Rent for the Extension Term at the Market Rate.  “Market Rate” shall be defined
as what an arm’s-length, non-expansion, non-equity tenant of comparable credit
to Tenant would, as of the beginning of the term in question, pay for space of
comparable size, quality, utility and location, taking into account the length
of the term and all allowances and concessions being offered in the market.  The Market Rate shall be determined as
follows:  Within thirty (30) days after
Landlord receives notice from Tenant of Tenant’s election to exercise an
Extension Option, Landlord will give notice to Tenant of its determination of
the Market Rate for the Premises and Landlord’s determination will constitute
the Market Rate unless Tenant objects by notice to Landlord in writing within
thirty (30) days after Tenant’s receipt of Landlord’s determination. Landlord’s
notice of determination shall include a statement in all capitalized, 12 point
or larger type on the first page of the notice stating:  “THE DETERMINATION OF MARKET RENT SET FORTH
HEREIN SHALL BE BINDING ON TENANT UNLESS TENANT SHALL OBJECT THERETO WITHIN 30
DAYS OF TENANT’S RECEIPT OF THIS NOTICE.”  
If Tenant so objects, the parties shall meet within fifteen (15) days
after Tenant’s objection and attempt to agree on the Market Rate.  If the parties are unable to agree on the
Market Rate within such 15-day period, then (x) the Extension Term of this
Lease as defined in Exhibit D may be cancelled at the request of
either party, provided, however, notice of cancellation must be delivered to
the other party within five (5) business days after expiration of the
15-day period described above or this right of cancellation shall be deemed
waived and the Market Rate shall be determined by appraisal pursuant to
subparagraph (y) below and the following provisions of this Section 3.1(a),
or (y) the Market Rate will be determined by appraisal, made by a board of
appraisers consisting of three reputable real estate appraisers, each of whom
has been actively involved in commercial real estate in Minneapolis, Minnesota
no less than ten years prior to appointment (each an “Expert”).  In addition, each such Expert shall have been
active over the five (5) year period ending on the date of such
appointment in the appraisal of comparable commercial properties in the
Northwest submarket of the Twin Cities metropolitan area.  One Expert will be appointed by Tenant, and
one Expert will be appointed by Landlord. 
Both Landlord and Tenant shall appoint their Expert within fifteen (15)
days after the failure of Landlord and Tenant to agree on the  Market
Rate.  The third Expert will be appointed
by the first two Experts.  If the first
two Experts are unable to agree on a third Expert within ten (10) days
after the appointment of the second Expert, or if either party refuses or
neglects to appoint an Expert as herein provided within fifteen (15) days after
the appointment of the first Expert, then the third Expert or the second
Expert, whose appointment was not made as provided above, may be appointed by
any active judge of the District Court of the County where the Premises is
located.  If determinations of at least
two of the Experts are identical in amount, then that amount will be determined
to be the


 


8














 


Market
Rate.  If the determinations of all three
Experts are different in amount, the highest appraised value will be averaged
with the middle value (that average being referred to as “Sum A”).  The lowest appraised value will be averaged
with the middle value (that average being referred to as “Sum B”),
and the Market Rate will be determined as follows:  (i) if neither Sum A nor Sum B
differs from the middle appraised value by more than 10% of the middle
appraised value, then the Market Rate will be the average of the three
appraisals, (ii) if either Sum A or Sum B (but not both) differs
from the middle appraised value by more than 10% of the middle appraised value,
then the Market Rate will be the average of the middle appraised value and the
appraised value closer in amount to the middle appraised value, and (iii) if
both Sum A and Sum B differ from the middle appraised value by more
than 10% of the middle appraised value, then the Market Rate will be equal to
the middle appraised value.  Written
notice of the Market Rate as duly determined in accordance with this Section shall
be promptly given to Landlord and Tenant and will be binding and conclusive on
them.  Each party will bear its own
expenses in connection with the Market Rate determination proceedings, except
that the fees of the Experts will be borne equally.  If, for any reason, the Market Rate has not
been determined at the time of the commencement of the Extension Term, then the
Market Rate will be the amount set forth in Landlord’s determination, and if
the determination of the Experts as provided above indicates that a lesser or
greater amount should have been paid than that which was actually paid, a
proper adjustment will be made in a payment from Landlord to Tenant, or Tenant
to Landlord, as the case may be, such payment to be made within thirty (30)
days of the determination of the Market Rate.


 


3.2          Additional
Rent:  Increases in Operating Costs and
Taxes.


 


(a)           Definitions.


 


(1)           “Operating Costs” means all costs of managing, operating,
maintaining and repairing the Property, including, but not limited to, all
costs, expenditures, fees and charges for: 
(A) operation, maintenance and repair of the Property (including
maintenance, repair and replacement of glass and landscaping and maintenance and
repair (but not replacement) of the roof covering or membrane); (B) utilities
and services (including trash removal), 
servicing the Common Areas and associated supplies and materials; (C) compensation
(including employment taxes and fringe benefits) for persons who perform duties
in connection with the operation, management, maintenance and repair of the
Project, such compensation to be appropriately allocated for persons who also
perform duties unrelated to the Project ; (D) property (including coverage
for earthquake and flood if required to be carried by Landlord by its lender or
carried by Landlord in its reasonable determination), liability, rental income
(not to exceed 12 month’s coverage) and other insurance relating to the
Project, and expenditures for deductible amounts paid under such insurance; (E) licenses,
permits and inspections; (F) complying with the requirements of any
federal, state, municipal or local law, statute, ordinance or governmental rule or
regulation or any orders pursuant thereto (collectively “Laws”)
which become effective after the  Lease Date ; (G) amortization of capital
improvements required to comply with Laws which become effective after the
Lease Date, or which are intended to reduce Operating Costs (not to exceed the
amount of such savings in any event) or improve the utility, efficiency or
capacity of any Building System, with interest on the unamortized balance at
the rate paid by Landlord on funds borrowed to finance such capital
improvements (or, if Landlord finances such improvements out of Landlord’s
funds without borrowing, the rate that Landlord would have paid to borrow such
funds, as reasonably determined by Landlord), over such useful life as Landlord
shall reasonably 


 


9





















 


determine pursuant
to generally accepted accounting principals; (H) market rate property
management fees, not to exceed five percent (5%) of total gross rental of the
Building (provided however, if average occupancy of the Building is less than
100%, then Landlord may recover a minimum management fee at market rates),
which shall include accounting, bill paying and management activities, salaries
and costs of management employees, such that there will be a single management
fee subject to the limitations above; (I) accounting, legal and other
professional services incurred in connection with the operation of the Project
and the calculation of Operating Costs and Taxes; (J) a reasonable
allowance for depreciation on machinery and equipment used to maintain the
Project and on other personal property owned by Landlord in the Property; (K) contesting
the validity or applicability of any Laws that may affect the Property but only
to the extent any cost savings are achieved by the contest; (L) the Building’s
proportionate share of any Common Area maintenance fees and expenses shared
with other properties adjacent to the Project; and (M) any other cost,
expenditure, fee or charge, whether or not herein before described, which in
accordance with generally accepted property management practices would be
considered an expense of managing, operating, maintaining and repairing the
Project.  Operating Costs that vary with
occupancy for any calendar year during which average occupancy of the Building
is less than one hundred percent (100%) shall be calculated based upon the
Operating Costs that would have been incurred if the Building had an average
occupancy of one hundred percent (100%) during the entire calendar year.


 


Operating Costs
shall not include (i) capital improvements (except as otherwise provided
above); (ii) costs of special services rendered to individual tenants
(including Tenant) for which a special charge is made; (iii) interest and
principal payments on loans or indebtedness secured by the Building; (iv) costs
of improvements or construction allowances for Tenant or other tenants of the
Building; (v) costs of services or other benefits of a type which are not
available to Tenant but which are available to other tenants or occupants, and
costs for which Landlord is reimbursed by other tenants of the Building other
than through payment of tenants’ shares of increases in Operating Costs and
Taxes; (vi) leasing commissions, attorneys’ fees, advertising or
promotional expenses or disputes with tenants, and other expenses incurred in
connection with leasing space in the Building or enforcing such leases or
developing the Project; (vii) depreciation or amortization, other than as
specifically enumerated in the definition of Operating Costs above; (viii) costs,
interest, fines or penalties incurred due to Landlord’s violation of any Law or
breach of its obligations under this Lease; (ix) the cost of any off-site
personnel (except to the extent ratably allocated to the Property, e.g.
pro-rata cost of maintenance personnel), Landlord’s home office expenses, or
any on-site personnel above the level of building manager or superintendent; (x) debt
amortization or financing or refinancing costs; (xi) expenses for which
Landlord is or will be reimbursed out of insurance, warranty or condemnation
proceeds; (xii) any cost to comply with Laws which were effective as of the
Lease Date; (xiii) rent, additional rent and other charges payable under any
ground lease or any lease superior to this Lease; (xiv) intentionally deleted;
(xv) any costs or other sums paid to any person or entity related to or
affiliated with Landlord to the extent that same exceeds the reasonable and
customary cost thereof; (xvi) professional fees incurred in connection with the
preparation of financial statements, tax returns and other documents and
information for Landlord or its mortgagees or other costs associated with the
operation of the business of the entity which constitutes Landlord, as the same
are distinguished from the costs of operation or management of the Project,
such as but not limited to accounting and legal matters, costs of defending any
lawsuits with any mortgagee, costs of selling, syndicating, financing,
mortgaging, or hypothecating any of Landlord’s interest in the Project or the
land thereunder, costs of disputes between Landlord and its employees or
Building management or 


 


10





















 


other tenants;
(xvii) intentionally deleted; (xviii) costs of paintings, sculptures or other
artwork; (xiv) expenses arising from the negligence of Landlord, its agents,
employees or contractors; (xx) bad debt or rent loss reserves; (xxi) charitable
contributions or memberships in organizations, whether professionals,
political, civic or charitable; (xxii) utility charges for utilities separately
metered or sub-metered to other tenants and any extraordinary charges imposed
on other tenants by Landlord for such tenants’ disproportionate use of shared
utilities, if any; (xxiii) costs incurred in connection with the original
construction of the Building or the repair of any defects in the initial
original construction of the Building or inadequacy of the initial design or
construction of the Building, or the Building equipment or appurtenances
thereto; or costs incurred in connection with any major change in the Building,
such as but not limited to adding or expanding floors or decreasing the size
thereof or any sale or marketing of the Property or the preparation of the
Property for sale; (xxiv) any recalculation of or additional Operating Expenses
for which Landlord first notifies Tenant of required payment more than eighteen
(18) months after the later of (1) the year in which the Operating
Expenses were incurred, or (2) receipt of the invoice for the applicable
recalculated or additional Operating Expense, or in any event more than twenty
(24) months after the year in which the Operating Expenses were incurred; (xxv)
any amounts “grossed up” based on less than 100% occupancy of the Building,
which do not vary with occupancy; (xxvi) rental for a building management
office, or any costs attributable to the operation or maintenance of a building
management office; (xxvii) costs and reserves thereof of a capital nature,
except that Landlord may include the yearly amortization of the cost of capital
repairs and replacements (including those described in Section 3.2(a)(1)(G) above),
except as otherwise provided in Section 7.2 of this Lease, provided that
such capital expenditures are amortized over the useful life of each particular
capital expenditure at an interest rate of eight percent (8.0%) per annum;
(xxviii) costs relative to any damage or destruction of the Property, except
deductibles or retentions maintained on Landlord’s insurance not to exceed
$50,000; (xxix) costs associated with Hazardous Materials (except costs not to
exceed $1,000 per calendar year for disposal of Hazardous Materials caused by
parties against whom Landlord has no recourse or recovery (e.g. unknown third
party dumper)); (xxx) special events held on the Property or Project not
approved by Tenant; (xxxi) travel entertainment or related expenses incurred by
Landlord or its Property Manager or personnel; (xxxii) premiums paid to perform
work on the Building or Project after hours or unless approved in advance in
writing by Tenant (except in the event of an emergency); and (xxxiii) any costs
attributable solely to any buildings other than the Building.


 


Operating Expenses shall exclude all cash or credit discounts, trade
discounts, or quantity discounts received by Landlord or Landlord’s managing
agent in the purchase of any goods, utilities, or services in connection with
the operation of the Building.  In the
event Landlord leases any item otherwise constituting an Operating Expense,
Landlord’s election to lease such item rather than purchase it shall not serve
to increase Tenant’s proportionate share of Operating Expenses beyond that
which would have applied had said item been purchased.  Landlord shall maintain its books and records
pertaining to Operating Expenses and Real Estate Taxes in accordance with
generally accepted accounting principles.


 


Notwithstanding
anything there to the contrary, Landlord shall not recover as Taxes or
Operating Expenses more than 100% of the Taxes and Operating Expenses actually
paid by Landlord.  If Landlord receives a
refund or credit toward Operating Expenses subsequent to the year in which such
expense was paid and charged to Operating Expenses, Landlord shall credit Tenant’s
account (or pay to Tenant for such portion as there is insufficient Term
remaining to fully utilize the credit) 


 


11





















 


the amount of such
refund or credit to the extent Tenant directly or indirectly was charged for
such expense during a prior year.


 


(2)           “Taxes” means:  all
real property taxes and general, special or district assessments or other
governmental impositions, of whatever kind, nature or origin, imposed on or
against the Property or against Landlord by reason of its ownership of the
Property (except as otherwise provided herein) which are due and payable during
the Term; service payments in lieu of taxes and taxes and assessments of every
kind and nature whatsoever levied or assessed in addition to, in lieu of or in
substitution for existing or additional real or personal property taxes on the
Property or the personal property described above that are due and payable
during the Term of the Lease; and the reasonable cost of contesting by
appropriate proceedings the amount or validity of any taxes, assessments or
charges described above, but only to the extent of the cost savings in Taxes
that is achieved thereby.  Taxes shall in
no event include Landlord’s income, estate, inheritance, transfer, or gross
receipts.  In the event Landlord has the
right to pay all or any portion of Taxes in installments, then regardless of
whether Landlord elects such method of payment, Landlord shall, for the
purposes of this Lease, be deemed to have elected the longest period of payment
permissible (but without incurring late fees, interest or penalties) for the
purpose of the inclusion thereof in Taxes.


 


(3)           “Tenant’s Share” means the Rentable Area of the Premises
divided by the total Rentable Area of the Building, as set forth in the Basic
Lease Information.  If the Rentable Area
of the Building is changed or the Rentable Area of the Premises is changed by
Tenant’s leasing of additional space hereunder or for any other reason, Tenant’s
Share shall be adjusted accordingly.


 


(b)           Additional Rent.


 


(1)           Tenant shall pay
Landlord as “Additional Rent” for each calendar
year or portion thereof during the Term (except as otherwise provided in the
Base Rent schedule set forth in the Basic Lease Information) Tenant’s Share of
the sum of (x) Operating Costs for such 
period, and (y) Taxes for such period.


 


(2)           Prior to the
beginning of each calendar year, Landlord shall notify Tenant of Landlord’s
estimate of Operating Costs, Taxes and Tenant’s Additional Rent for the
following calendar year.  Commencing on
the first day of January of each calendar year and continuing on the first
day of every month thereafter in such year, Tenant shall pay to Landlord
one-twelfth (1/12th) of the estimated Additional Rent.  If Landlord thereafter estimates that
Operating Costs or Taxes for such year will vary from Landlord’s prior
estimate, Landlord may, by notice to Tenant, revise the estimate for such year
(and Additional Rent shall thereafter be payable based on the revised
estimate).


 


(3)           Within one hundred
twenty (120) days after the end of each calendar year during the Term, Landlord
shall furnish Tenant a statement with respect to such year, showing Operating
Costs, Taxes and Additional Rent for the year, and the total payments made by
Tenant with respect thereto.  Unless
Tenant raises any objections to Landlord’s statement within eight (8) months
after receipt of the same, such statement shall conclusively be deemed correct
and Tenant shall have no right thereafter to dispute such statement or any item
therein or the computation of Additional Rent based thereon.  If Tenant does object to such statement, then
Landlord shall 


 


12





















 


provide Tenant
with reasonable verification of the figures shown on the statement and the
parties shall negotiate in good faith to resolve any disputes.  Any objection of Tenant to Landlord’s
statement and resolution of any dispute shall not postpone the time for payment
of any amounts due Tenant or Landlord based on Landlord’s statement, nor shall
any failure of Landlord to deliver Landlord’s statement in a timely manner
relieve Tenant of Tenant’s obligation to pay any amounts due Landlord based on
Landlord’s statement, provided such statement is delivered within eighteen (18)
months after the later of (i) the end of the calendar year to which the
expenses relate, or (ii) receipt of the invoice for the applicable
expenses, but in any event not later than twenty (24) months after the end of
the calendar year to which the expenses relate. 
Within eight (8) months after receipt of Landlord’s annual
reconciliation statement, Tenant shall have the right, during normal business
hours and at the offices of Landlord or its management agent, and upon not less
than thirty (30) days’ prior written notice to Landlord, to review or audit
Landlord’s books and records pertaining to Taxes or Operating Expenses.  If Tenant uses a third party to perform any
such review or audit, such third party must be a certified public accountant
whose compensation for such work is not based partially or wholly on a
contingent fee or similar arrangement. 
In the event that Tenant’s review or audit discloses that Landlord has
overcharged Tenant, Landlord shall reimburse Tenant for the excess amounts paid
by Tenant plus interest at the rate set forth herein for late payments of
Rent.  In addition, in the event that any
such overcharge exceeds the amount actually owed by Tenant by more than five
percent (5%), Landlord shall reimburse Tenant for the reasonable cost of its
audit, excluding travel, meals and lodging.


 


(4)           If Tenant’s
Additional Rent as finally determined for any calendar year exceeds the total
payments made by Tenant on account thereof, Tenant shall pay Landlord the
deficiency within thirty (30) days of Tenant’s receipt of Landlord’s statement.  If the total payments made by Tenant on
account thereof exceed Tenant’s Additional Rent as finally determined for such
year, Tenant’s excess payment shall be credited toward the rent next due from
Tenant under this Lease.  For any partial
calendar year at the beginning or end of the Term, Additional Rent shall be
prorated on the basis of a 365-day year by computing Tenant’s Share of
Operating Costs and Taxes for the entire year and then prorating such amount
for the number of days during such year included in the Term.  Notwithstanding the termination of this
Lease, Landlord shall pay to Tenant or Tenant shall pay to Landlord, as the
case may be, within thirty (30) days after Tenant’s receipt of Landlord’s final
statement for the calendar year in which this Lease terminates, the difference
between Tenant’s Additional Rent for that year, as finally determined by
Landlord, and the total amount previously paid by Tenant on account thereof.


 


3.3          Payment of Rent.  All amounts payable or reimbursable by Tenant
under this Lease, including late charges and interest (collectively, “Rent”), shall constitute rent and shall be payable and
recoverable as rent in the manner provided in this Lease.  All sums payable to Landlord on demand under
the terms of this Lease shall be payable within thirty (30) days after notice
from Landlord of the amounts due.  All
Rent shall be paid without offset, recoupment or deduction, except as otherwise
specifically set forth herein, in lawful money of the United States of America  to Landlord at
Landlord’s Address for Payment of Rent as set forth in the Basic Lease
Information, or to such other person or at such other place as Landlord may
from time to time designate.


 


4.             SECURITY DEPOSIT.  Upon execution of this Lease, Tenant shall
deposit with Landlord the amount specified in the Basic Lease Information as
the Security Deposit, if any (the “Security Deposit”),
as security for the performance of Tenant’s obligations under this Lease.  Landlord may (but shall have no obligation
to) use the Security Deposit or any portion thereof to cure any Event 


 


13





















 


of Default under
this Lease or to compensate Landlord for any damage Landlord incurs as a result
of Tenant’s failure to perform any of Tenant’s obligations hereunder.  In such event Tenant shall pay to Landlord on
demand an amount sufficient to replenish the Security Deposit.  If Tenant is not in default at the expiration
or termination of this Lease, Landlord shall return to Tenant the Security
Deposit or the balance thereof then held by Landlord and not applied as
provided above within thirty (30) days after Lease termination.  Landlord may commingle the Security Deposit
with Landlord’s general and other funds. 
Landlord shall not be required to pay interest on the Security Deposit
to Tenant.


 


5.             USE AND COMPLIANCE WITH LAWS.


 


5.1          Use.  The Premises shall be used and occupied for
the Permitted Use and for no other use or purpose without Landlord’s prior
written consent.  Subject to the other terms
of this Lease, beginning on the date Landlord delivers the Premises to Tenant
with the Tenant Improvements Substantially Completed, Tenant and its employees,
licensees, and guests, shall have access to the Premises at all times, 24 hours
per day, every day of the year.  Tenant
shall comply with all present and future Laws relating to Tenant’s specific or
unique manner of use or occupancy of the Premises or because of any Alterations
made by Tenant to the Premises (and make any repairs, alterations or improvements
as required to comply with all such Laws), and shall observe the Building Rules (as
defined in Section 27 - Rules and
Regulations); provided, however, Tenant shall not be responsible for
any outstanding code compliance violations that are the responsibility of
Landlord that may be triggered by Tenant’s specific use or occupancy of the
Premises or Alterations made by Tenant to the Premises.  Tenant may install its standard tenant
identification logo and letter signage on the exterior of the Premises facing
Highway 169, subject to the Building Rules, reasonable consent of Landlord,
City approval and subject to and in compliance with applicable laws, codes and
ordinances. Tenant shall not do, bring, keep or sell anything in or about the
Premises that is prohibited by, or that will cause a cancellation of or an
increase in the existing premium for, any insurance policy covering the
Property or any part thereof.  Tenant
shall not permit the Premises to be occupied or used in any manner that will
constitute waste or a nuisance, or unreasonably disturb the quiet enjoyment of
or otherwise annoy other tenants in the Building. No waste, materials or refuse
shall be dumped upon or permitted to remain outside the Premises or upon the
Property.  Tenant shall not, without the
prior consent of Landlord, (i) bring into the Building or the Premises
anything that may cause substantial noise, odor or vibration, overload the
floors in the Premises or the Building or any of the heating, ventilating and
air-conditioning (“HVAC”),
mechanical, plumbing, electrical, fire protection, life safety, security or
other systems in the Building (“Building
Systems”), or jeopardize the structural integrity of the Building or
any part thereof; (ii) connect to the utility systems of the Building any
apparatus, machinery or other equipment other than that, for which the utility
systems have been designed; or (iii) connect to any electrical circuit in
the Premises any equipment or other load with aggregate electrical power
requirements in excess of 80% of the rated capacity of the circuit. Landlord
shall be responsible for complying with all Laws affecting the design,
construction and
operation of the Building (including the Premises to the extent Tenant
is not required to comply therewith as provided for above or as otherwise
provided in this Lease) or relating to the performance by Landlord of any
duties or obligations to be performed by it hereunder, provided, however,
Landlord’s costs of compliance will be included in Operating Costs.  Tenant shall have no obligation to comply
with or pay for the compliance with any Laws requiring alterations,
modifications, or repairs to any conduits, pipes, or duct work which is located
within the Premises (such as within the plenum area) but which exclusively
serves any building wide systems 


 


14





















 


(provided,
however, this shall not relieve Tenant of its obligation to pay for costs
related to same to the extent permitted to be included in Operating Costs) or
premises within the Building other than the Premises, it being the intent of
the parties that the cost of such modifications, alterations, and repairs shall
be Landlord’s responsibility or the responsibility of the tenant served
exclusively by such systems.  Landlord
represents to the best of its actual knowledge and belief that the Building
will be in compliance with all Laws as of the date Landlord initially delivers
the Premises to Tenant. Landlord warrants that the Premises will be in
compliance with all Laws as of the Lease Date. Landlord warrants that the
Tenant Improvements constructed upon the Premises by Landlord will be in
compliance with all Laws as of the date Landlord initially delivers the
Premises to Tenant.


 


5.2          Hazardous
Materials.


 


(a)           Definitions.


 


(1)           “Hazardous Materials” shall mean any substance:  (A) that now or in the future is
regulated or governed by, requires investigation or remediation under, or is
defined as a hazardous waste, hazardous substance, pollutant or contaminant
under any governmental statute, code, ordinance, regulation, rule or
order, and any amendment thereto, including the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. §9601 et seq.,
and the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq.,
or (B) that is toxic, explosive, corrosive, flammable, radioactive,
carcinogenic, dangerous or otherwise hazardous, including gasoline, diesel
fuel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, radon
and urea formaldehyde foam insulation.


 


(2)           “Environmental Requirements” shall mean all present and
future Laws, orders, permits, licenses, approvals, authorizations and other
requirements of any kind applicable to Hazardous Materials.


 


(3)           “Handled by Tenant” and “Handling by Tenant”
shall mean and refer to any installation, handling, generation, storage, use,
disposal, discharge, release, abatement, removal, transportation, or any other
activity of any type by Tenant or its agents, employees, contractors,
licensees, assignees, sublessees, transferees or representatives (collectively,
“Representatives”) or its guests,
customers, invitees, or visitors (collectively, “Visitors”)
in connection with or involving Hazardous Materials at or about the Premises
introduced, released, disposed or discharged upon the Premises by Tenant, its
Representatives or Visitors.


 


(4)           “Environmental Losses” shall mean all costs and expenses of
any kind, damages, including foreseeable and unforeseeable consequential
damages, fines and penalties incurred in connection with any violation of and
compliance with Environmental Requirements  and all losses of any kind attributable to
the diminution of value, loss of use or adverse effects on marketability or use
of any portion of the Premises or Property.


 


(b)           Tenant’s
Covenants.  Tenant represents that it
is a very small quantity generator (EPA classification) and will not change
such status to a large quantity generator with respect to its operations in or
at the Premises without Landlord’s prior written consent, not to be
unreasonably withheld. Subject to the terms of this Lease, Landlord hereby
consents to Handling by Tenant of (i) the Hazardous Materials in the
quantities identified on Exhibit E attached hereto or 


 


15





















 


such other
Hazardous Materials as are reasonably required in the operation of Tenant’s
business for the Permitted Use, and (ii) small quantities of Hazardous
Materials customarily used in the conduct of general office/warehouse activities,
such as copier fluids and cleaning supplies(“Permitted
Hazardous Materials”), 
provided the Permitted Hazardous Materials shall be Handled by Tenant in
compliance with Environmental Requirements. Such consent shall not be deemed a
release or waiver of Tenant’s obligations under this Lease pertaining to
Hazardous Materials Handled by Tenant, including without limitation those
Hazardous Materials identified on Exhibit E.  Except for the Permitted Hazardous Materials,
no Hazardous Materials shall be Handled by Tenant at or about the Premises or
Property without Landlord’s prior written consent, which consent may be
granted, denied, or conditioned upon compliance with Landlord’s requirements,
all in Landlord’s reasonable discretion. 
At the expiration or termination of the Lease, Tenant shall promptly
remove from the Premises and Property all Hazardous Materials Handled by Tenant
at the Premises or the Property, including without limitation, the Permitted
Hazardous Materials. Tenant shall keep and maintain at the Premises in
compliance with Environmental Requirements all records and reports pertaining
to Hazardous Materials Handled by Tenant at the Premises or Property and shall
make same available to Landlord, its environmental consultants, agents and employees
for inspection promptly after request by Landlord. Tenant shall cause its
environmental consultants, agents or employee(s) responsible for
management of  Hazardous Materials
Handled by Tenant) to cooperate with Landlord and its consultants, agents, and
employees regarding all records, reports, licensing, permitting and other
information concerning Hazardous Materials Handled by Tenant. Tenant shall be
responsible and liable for the compliance with all of the provisions of this Section by
all of Tenant’s Representatives and Visitors, and all of Tenant’s obligations
under this Section (including its indemnification obligations under
paragraph (e) below) shall survive the expiration or termination of this
Lease.


 


(c)           Compliance.  Tenant shall at Tenant’s expense promptly
take all actions required by any governmental agency or entity in connection
with or as a result of the Handling by Tenant of Hazardous Materials at or
about the Premises or Property, including inspection and testing, performing
all cleanup, removal and remediation work required with respect to those
Hazardous Materials Handled by Tenant, complying with all closure requirements
and post-closure monitoring, and filing all required reports or plans, and
obtaining and maintaining necessary licensees and permits.  All of the foregoing work and all Handling by
Tenant of all Hazardous Materials shall be performed in a good, safe and
workmanlike manner by consultants qualified and licensed to undertake such work
and in a manner that will not unreasonably interfere with any other tenant’s
quiet enjoyment of the Property or Landlord’s use, operation, leasing and sale
of the Property.  Unless otherwise
required by law, Tenant shall deliver to Landlord prior to delivery to any
governmental agency, or promptly after receipt from any such agency, copies of
all permits, manifests, closure or remedial action plans, notices, and all
other documents relating to the Handling by Tenant of Hazardous Materials at or
about the Premises or Property other than Permitted Hazardous Materials.  If any lien attaches to the Premises or the
Property in connection  with or as a result of the Handling by Tenant
of Hazardous Materials, and Tenant does not cause the same to be released, by
payment, bonding or otherwise, within thirty (30) days after the attachment
thereof, Landlord shall have the right but not the obligation to cause the same
to be released and any sums expended by Landlord (plus Landlord’s
administrative costs) in connection therewith shall be payable by Tenant on
demand.


 


(d)           Landlord’s Rights.  Upon 24 hours advance notice (except in an
emergency), Landlord shall have the right, but not the obligation, to enter the
Premises at any 


 


16





















 


reasonable time (i) to
confirm Tenant’s compliance with the provisions of this Section 5.2, and (ii) to
perform Tenant’s obligations under this Section if Tenant has failed to do
so after reasonable notice to Tenant. Tenant shall have the right to have a
representative of Tenant present during such entry. Landlord shall also have
the right to engage qualified Hazardous Materials consultants to inspect the
Premises and review the Handling by Tenant of Hazardous Materials, including
review of all permits, reports, plans, and other documents regarding same.  Tenant shall pay to Landlord on demand the
costs of Landlord’s consultants’ fees and all costs incurred by Landlord in
performing Tenant’s obligations under this Section in the event Tenant has
violated the provisions of this Section 5.2.  Landlord shall use reasonable efforts to
minimize any interference with Tenant’s business caused by Landlord’s entry
into the Premises, but Landlord shall not be responsible for any interference
caused thereby except in the case of Landlord’s negligence or willful
misconduct.


 


(e)           Tenant’s
Indemnification.  Tenant agrees to
indemnify, defend, protect and hold harmless Landlord and its partners or
members and its or their partners, members, directors, officers, shareholders,
employees and agents from all Environmental Losses and all other claims,
actions, losses, damages, liabilities, costs and expenses of every kind,
including reasonable attorneys’, experts’ and consultants’ fees and costs,
incurred at any time and arising from or in connection with the Handling by
Tenant of Hazardous Materials at or about the Property or Tenant’s failure to
comply in full with all Environmental Requirements with respect to Tenant’s
Handling of Hazardous Materials at or about the Premises. The obligations of
the Tenant under this subsection (e) shall survive the expiration or
termination of this Lease. It is the intent of Landlord and Tenant that Tenant
shall have no liability or responsibility for damage or injury to human health,
the environment or natural resources caused by, for abatement and/or clean-up
of, or otherwise with respect to, Hazardous Materials by virtue of the
interests of Tenant in any part of the Property created hereby, or as the
result of Tenant exercising any of its rights or remedies with respect thereto
hereunder, unless such Hazardous Materials were Handled by Tenant or Tenant’s
Representatives.


 


(f)            Landlord
Obligations.  Landlord hereby
represents to the best of its actual knowledge, no Hazardous Materials are now
or have ever been located, produced, treated, transported, incorporated,
discharged, emitted, released, deposited or disposed of in, upon, under, over
or from the Premises or Property.  Landlord agrees to indemnify, defend, protect
and hold harmless Tenant and its directors, officers, shareholders, employees
and agents from all claims, actions, losses, damages, liabilities, costs and
expenses of every kind, including reasonable attorneys’, experts’ and
consultants’ fees and costs, incurred at any time as a result of (i) the
Handling by Landlord of Hazardous Materials at or about the Premises, or (ii) Landlord’s
failure to comply in full with all Environmental Requirements imposed upon
Landlord with respect to the Premises, excluding Hazardous Materials Handled by
Tenant, or (iii) breach of the representations and warranties of Landlord
set forth above.  In the event that
Tenant reasonably determines that  any Hazardous
Materials are present on the Premises (other than any Hazardous Materials
Handled by Tenant) and represent a material danger to persons or property on
the Premises, Tenant shall notify Landlord of the same, and Landlord shall be
responsible at its sole expense, to remove, remediate or abate (or cause the
responsible party to remove, remediate or abate) such Hazardous Materials within
a commercially reasonable time after receipt of said written notification from
Tenant. The obligations of the Landlord under this subsection (f) shall
survive the expiration or termination of this Lease.


 


17





















 


5.3          Americans With
Disabilities Act.      The parties agree that the liabilities
and obligations of Landlord and Tenant under that certain federal statute
commonly known as the Americans With Disabilities Act as well as the
regulations and accessibility guidelines promulgated thereunder as each of the
foregoing is supplemented or amended from time to time (collectively, the “ADA”) shall be apportioned as follows:


 


(a)           If any of the Common Areas,
including, but not limited to, exterior and interior routes of ingress and
egress, off-street parking and all rules and regulations applicable to the
Premises, the Building or the Project, fails to comply with the ADA, such
nonconformity shall be promptly made to comply by Landlord.  Landlord shall also cause the manager of the
Building and the Project (the “Manager”) to
comply with the ADA in its operation of the Building and the Project.


 


(b)           From and after the Commencement Date
of the Lease, Tenant covenants and agrees to conduct its operations within the
Premises in compliance with the ADA.  If
any of the Premises fails to comply with the ADA due to Tenant’s specific or
unique use of the Premises, such nonconformity within the Premises shall be
promptly made to comply by Tenant.  In
the event that Tenant elects to undertake any alterations to, for or within the
Premises, including initial build-out work, Tenant agrees to cause such
alterations to be performed in compliance with the ADA.  Landlord shall deliver the Tenant Improvements
to be constructed in the Premises by Landlord to Tenant in compliance with the
ADA; provided, however, Tenant shall not be responsible for any outstanding
ADA compliance violations that are the responsibility of Landlord that may be
triggered by Tenant’s specific use or occupancy of the Premises or Alterations
made by Tenant to the Premises.


 


6.             TENANT IMPROVEMENTS &
ALTERATIONS.


 


6.1          Landlord shall perform its obligations
with respect to design and construction of any Tenant Improvements (defined in Exhibit B)
to be constructed and installed in the Premises, as provided in the
Construction Rider.  Except for any work
to be constructed by Tenant as provided in the Construction Rider, Tenant shall
not make any alterations, improvements or changes to the Premises, including
installation of any security system or telephone or data communication wiring,
(“Alterations”), without Landlord’s prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed, except for Alterations to structural portions, footing, or foundations,
or utility systems serving other tenants of the Building, where Landlord may
withhold its consent in its sole discretion. 
Any such Alterations shall be completed by Tenant at Tenant’s sole cost
and expense:  (i) with due
diligence, in a good and workmanlike manner, using new materials; (ii) in
compliance with plans and specifications approved by Landlord; (iii) in
compliance with the construction rules and regulations promulgated by
Landlord from time to time; (iv) in accordance with all applicable Laws
(including all work, whether structural or non-structural, inside or outside
the Premises, required to comply fully with all applicable Laws and
necessitated by Tenant’s work; provided, however, Tenant shall not be
responsible for any outstanding code compliance violations that are the
responsibility of Landlord that may be triggered by Alterations made by Tenant
to the Premises); and (v) subject to all reasonable conditions which
Landlord may impose for Tenant to:  (i) provide
evidence of financial ability to pay costs of construction (e.g. loan
commitment or bank statement), letter of credit, or payment or performance
bonds to the extent the estimated cost of the Alterations equals or exceeds
$100,000; (ii) provide evidence of insurance (from Tenant and Tenant’s
contractors, subcontractors or design


 


18


















 


professionals); (iii) use
only contractors and subcontractors who qualify as an Approved Contractor
(defined in Section 6.6 herein) if required by the terms of Section 6.6;
and (iv) remove all or part of the Alterations prior to or upon expiration
or termination of the Term, provided written notice of requirement to remove
such Alterations shall be given at the time Landlord consents to such
Alterations, except Cosmetic Alterations and the Tenant Improvements shall not
be required to be removed by Tenant at the end of the Term.  Tenant shall have the right, without Landlord’s
consent, to make non-structural alterations to the Premises that do not alter
the Building Systems, such as painting, wall, floor or window coverings, or
installation or rearrangement of cabinets or other modular office dividers that
do not affect the Building structure (“Cosmetic Alterations”).  Tenant shall give Landlord not less than ten (10) days
prior written notice of any such Cosmetic Alterations and shall otherwise
comply with the terms and provisions of this Lease. If any adjustment to any of
the Building Systems is required in connection with or as a result of Tenant’s
work, such work shall be performed at Tenant’s expense by contractors approved
by Landlord.  If any work outside the
Premises, or any work on or adjustment to any of the Building Systems, is
required in connection with or as a result of Tenant’s work, such work shall be
performed at Tenant’s expense by contractors designated by Landlord.  Landlord’s right to review and approve (or
withhold approval of) Tenant’s plans, drawings, specifications, contractor(s) and
other aspects of construction work proposed by Tenant is intended solely to
protect Landlord, the Property and Landlord’s interests.  No approval or consent by Landlord shall be
deemed or construed to be a representation or warranty by Landlord as to the
adequacy, sufficiency, fitness or suitability thereof or compliance thereof
with applicable Laws or other requirements. 
Except as otherwise provided in Landlord’s consent, all Alterations
shall upon installation become part of the realty and be the property of
Landlord. Notwithstanding anything in this Lease to the contrary, Tenant will
be obligated to remove Tenant’s identification signage, cabling, and Tenant’s
Trade Fixtures and personal property on or before the expiration or earlier
termination of the Term of this Lease, and repair and restore any damage to the
Premises, Building or Property arising because of installation or removal of
the foregoing items.


 


6.2                               Before making any Alterations, except Cosmetic Alterations, Tenant
shall submit to Landlord for Landlord’s prior approval reasonably detailed
final plans and specifications prepared by a licensed architect or engineer, a
copy of the construction contract, including the name of the contractor and all
subcontractors proposed by Tenant to make the Alterations and a copy of the
contractor’s license.  Tenant shall
reimburse Landlord upon demand for any expenses incurred by Landlord in
connection with any Alterations made by Tenant, including reasonable fees
charged by Landlord’s contractors or consultants for construction oversight or
review of the plans and specifications prepared by Tenant and to update the
existing as-built plans and specifications of the Building to reflect the
Alterations, provided, however, the aggregate of such costs shall not exceed
two percent (2%) of the cost of design and construction of the
Alterations.  Tenant shall obtain all
applicable permits, authorizations and governmental approvals and deliver
copies of the same to Landlord before commencement of any Alterations.


 


6.3                               Tenant shall keep the Premises and the Property free and clear of all
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant.  If any such lien
attaches to the Premises or the Property, and Tenant does not cause the same to
be released by payment, bonding or otherwise within thirty (30) days after the
attachment thereof, Landlord shall have the right but not the obligation to
cause the same to be released by payment of the lien or otherwise, and any sums
expended by Landlord (plus Landlord’s administrative costs) in connection
therewith shall be payable by Tenant on demand with interest thereon from the
date of 


 


19





















 


expenditure by
Landlord at the Interest Rate (as defined in Section 16.2 - Interest).  Tenant
shall give Landlord at least ten (10) days’ notice prior to the
commencement of any Alterations except in an emergency and cooperate with
Landlord in posting and maintaining notices of non-responsibility in connection
therewith.


 


6.4                               Subject to the provisions of Section 5 - Use and
Compliance with Laws and the foregoing provisions of this Section,
Tenant may install and maintain furnishings, equipment, movable partitions,
business equipment and other trade fixtures (“Trade
Fixtures”) in the Premises, provided that the Trade Fixtures do not
become an integral part of the Premises or the Building.  Tenant shall promptly repair any damage to
the Premises or the Building caused by any installation or removal of such
Trade Fixtures.


 


6.5                               All signs, notices and graphics of every kind or character, reasonably
visible in or from public view or the Common Areas or the exterior of the
Premises, shall relate to the identity of the Tenant or its Permitted Use in
the Premises, and shall be subject to Landlord’s prior written approval, which
Landlord shall have the right to withhold in its reasonable discretion.  Tenant shall not place or maintain any
banners whatsoever or any window décor in or on any exterior window or widow
fronting upon any Common Areas or service area or upon any truck doors or
service doors without Landlord’s prior written approval which Landlord shall
have the right to grant or withhold in its reasonable discretion.  Any installation of signs or graphics on or
about the Premises and Project shall be subject to any applicable governmental
laws, ordinances, regulations and to any other reasonable requirements imposed
by Landlord with respect to signage reasonably visible outside the Premises.
There is no monument signage available for Tenant. Tenant shall remove all such
signs and graphics at the termination of this Lease.  Such installations and removals shall be made
in such manner as to avoid injury to or defacement of the Premises, Building or
Project and any other improvements contained therein, and Tenant shall repair
any injury or defacement including, without limitation, discoloration caused by
such installation or removal, provided Tenant shall be permitted to
professionally patch damaged areas (e.g. holes) and paint such discoloration to
match the building exterior as reasonably possible without being required to
restore more than the discolored area.


 


6.6                               Prior to commencing any Work (defined in
this Section 6.6), Tenant shall furnish to Landlord the name and address
of all Contractors (defined in this Section 6.6) who will be, or are
reasonably expected to be, performing any of the Work. All such Contractors
shall be licensed by the City of Minneapolis, Minnesota and approved by
Landlord, which approval shall not be unreasonably withheld, and the business
manager of the applicable local AFL-CIO Building and Construction Trades
Council (the “BCTC”) (when approved by Landlord
and the BCTC, such Contractor shall be an “Approved Contractor”).  Prior to
commencing the Work, Tenant shall also furnish to Landlord for approval, not to
be unreasonably withheld, a copy of the construction contract(s), including all
amendments, change orders and modifications thereof, for the construction and
installation of the Work (“Construction Contract”).  Tenant agrees to comply with the following
Quality Contractor Policy and shall cause the Construction Contract to contain
provisions requiring the Contractor (and all of its subcontractors) to comply
with the following Quality Contractor Policy when performing its work and when
selecting any subcontractors to perform the work:


 


All contractors and subcontractors at any tier performing any
construction, repair, refurbishment or restoration (collectively, “Work”), including, without limitation, tenant 


 


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improvements,
build-out, alterations, additions, improvements, renovations, repairs,
remodeling, painting and installations of fixtures, mechanical, electrical,
plumbing, data, security, telecommunication, low voltage or elevator equipment
or systems or other equipment, or with respect to any other construction work
in, on, or to the Premises or the Project (including any such work performed by
any person who contracts to provide services to any portion of the Premises or
Project, such as cable, DSL, communications, telecommunications or similar
services, but excluding work performed on behalf of and paid for by Tenant for
installation of furniture, movable trade fixtures, and equipment of
Tenant),  (collectively, “Contractors”)
shall: (i) be bound by and signatory to a collective bargaining agreement
with a labor organization (a) whose jurisdiction covers the type of work
to be performed on the Project, and (b) who is an “Approved Building
Trades Department Contractor or Subcontractor;” and (ii) observe area
standards for wages and other terms and conditions of employment, including fringe
benefits.  For purposes hereof, an “Approved Building Trades Department Contractor or Subcontractor”
is a contractor or subcontractor who is currently affiliated with the Building
and Construction Trades Department of the AFL-CIO (the “BCTD”)
or, if no such BCTD-affiliated contractor or subcontractor is available for a
particular trade (e.g., carpentry work), a contractor or subcontractor which is
affiliated with a national trade union which was formerly affiliated with the
BCTD and which recognizes (and will recognize and respect, for its work on the
Project), the jurisdictional limitations established by the local BCTD.  Upon the request
of Landlord, each such contractor and subcontractor shall provide written
certification that all work performed by such contractor or subcontractor was
performed in compliance with this policy.


 


Contractors may not engage any subcontractor that does not satisfy the
provisions of clauses (i) and (ii) above. If at any time Contractor
or subcontractor does not satisfy clauses (i) and (ii) above, such
Contractor and subcontractor shall not be an Approved Contractor.


 


7.                                      MAINTENANCE AND REPAIRS.


 


7.1                               By taking possession of the Premises, subject to latent defects in the
Tenant Improvements not discoverable by Tenant upon reasonable inspection and
Landlord’s obligations to perform the Tenant Improvements described in Exhibit B
and the other terms and conditions of this Lease, Tenant agrees that the
Premises are then in a good and tenantable condition.  During the Term, Tenant at Tenant’s expense
but under the direction of Landlord, shall keep the Premises, in a clean, safe
and orderly condition, including without limitation, providing its own interior
janitorial services (including without limitation, changing and disposal of light
bulbs, interior window washing, janitorial supplies and equipment and garbage
removal and disposal), and shall repair and maintain the Premises, in a first
class condition including, but not limited to, repair and replacement of plate
glass in all windows, doors and non-structural interior areas of the Premises,
interior and exterior doors, special office entries, floor covering, Building
Systems exclusively serving the Premises (including without limitation,
heating, ventilating and air conditioning  systems and hot water heaters), truck doors,
dock bumpers, dock plates and levelers, interior ceilings, plumbing and
electrical work and fixtures, skylights and ventilation drops for equipment of
Tenant.  Tenant shall at Tenant’s expense
also perform necessary pest extermination and regular removal of trash and
debris.  Tenant shall, at its own
expense, enter into a regularly scheduled preventive maintenance service
contract with a maintenance contractor for servicing all hot water, heating and
air conditioning systems and equipment exclusively serving the Premises.  The maintenance contractor and the contract
must be reasonably approved by Landlord. 
The service contract must include all services suggested by the
equipment manufacturer within the 


 


21





















 


operation/maintenance
manual and must become effective and a copy thereof delivered to Landlord
within thirty (30) days of the Commencement Date.  Tenant shall not damage any demising wall or
disturb the integrity and support provided by any demising wall and shall, at
its sole expense, immediately repair any damage to any demising wall caused by
Tenant or its employees, agents or invitees, reasonable wear and tear excepted.


 


Notwithstanding
the foregoing to the contrary, from the Commencement Date through December 31,
2010, Landlord shall be responsible for performing, at its sole expense, all
necessary repairs (but not preventive maintenance) to the HVAC units serving
the Premises. Commencing January 1, 2011 and during the remaining Initial
Term of this Lease, Landlord shall be responsible for performing all necessary
repairs to the HVAC units serving the Premises, provided, however, Tenant shall
reimburse Landlord for fifty percent (50%) of the cost of such repairs within
thirty (30) days after written demand for payment by Landlord. Also, if at any
time during the Initial Term of the Lease any of the HVAC units serving the
Premises need to be replaced, in Landlord’s reasonable determination, then
Landlord shall perform such replacement, provided, however, Tenant shall
reimburse Landlord for Tenant’s HVAC Share (as defined herein) of the cost of
such replacements within thirty (30) days after Landlord delivers written
demand for payment to Tenant. “Tenant’s HVAC Share” shall be computed by
multiplying the costs of replacement of the HVAC unit(s) serving the
Premises incurred by Landlord by a fraction, the numerator of which is the
number of months remaining in the Initial Term of the Lease and the denominator
of which is one hundred eighty four (184). Landlord shall have no obligation to
inspect, service or make any repairs or replacements of the HVAC units serving
the Premises until Tenant notifies Landlord in writing of the need for repair
or replacement. Also, the foregoing provision shall not limit Tenant’s
responsibility and obligation to perform preventive maintenance on the HVAC
units serving the Premises and carry a preventive maintenance service contract
for said HVAC units in accordance with the immediately preceding paragraph.


 


7.2                               Landlord shall maintain or cause to be maintained in reasonably good
order, condition and repair, the structural portions of the Building, the roof,
foundations, floors and exterior window systems (but not plate glass) and
exterior walls of the Building, Building Systems (other than those Building
Systems exclusively serving the Premises), and the Common Areas of the Project.
All costs incurred by Landlord under this Section 7.2, except repairs and
replacements of structural portions of the Building including slab and
foundation and except roof replacements and tear out and replacement of the
entire parking lot for the Building, shall be reimbursed to Landlord as part of
Operating Costs (unless excluded therefore as set forth in the Lease);
provided, however, that Tenant shall pay the cost of repairs for any damage to
the Premises or the Property by any act or omission of Tenant or Tenant’s
Representatives or Visitors, to the extent (if any) not covered by the property
insurance required to be maintained by Landlord pursuant to the Lease.  Landlord shall be under no obligation to
inspect the Premises.  Tenant shall
promptly report in writing to Landlord any defective condition known to Tenant
which Landlord is required to repair.


 


7.3                               Landlord hereby reserves the right, at any time and from time to time,
without liability to Tenant, and without constituting an eviction, constructive
or otherwise, or entitling Tenant to any abatement of rent or to terminate this
Lease or otherwise releasing Tenant from any of Tenant’s obligations under this
Lease, except as otherwise set forth in this Lease:


 


22





















 


(a)                                 To make alterations, additions, repairs, improvements to or in or to
decrease the size of area of, all or any part of the Building, the fixtures and
equipment therein, and the Building Systems;


 


(b)                                 To change the Building’s name or street address;


 


(c)                                  To install and maintain any and all signs on the exterior and interior
of the Building; and


 


(d)                                 If any governmental authority promulgates or revises any Law or imposes
mandatory controls or directives on Landlord or the Property relating to the
use or conservation of energy or utilities or the reduction of automobile or
other emissions or reduction or management of traffic or parking on the
Property (collectively “Controls”), to
comply with such Controls, whether mandatory or voluntary, or make any
alterations to the Property related thereto, provided such voluntary controls
do not materially interfere with Tenant’s permitted use and occupancy of the
Premises or materially inconvenience Tenant.


 


(e)                                  With respect to any provision of this Lease which entitles or requires
Landlord to make improvements, alterations or repairs to either the Premises,
the Building or the Common Areas, or to enter the Premises, Landlord agrees
that such entry and/or work, except to the extent required to comply with
applicable Laws, shall not (i) materially damage the appearance or reduce
the floor area of the Premises, (ii) materially affect Tenant’s layout
(including access to the Premises), or (iii) materially interfere with
Tenant’s use and enjoyment of the Premises. 
Furthermore, any pipes or conduits that may be installed by Landlord in
the Premises shall be installed above the ceiling, below the floor, or
concealed or “boxed in” in a manner consistent with Tenant’s decor.  All such entry and/or work shall be performed
by Landlord in such a way as to minimize unreasonable disruption to Tenant’s
business, and any damage caused to the Premises (including tenant’s decor)
shall be repaired by Landlord at its expense. In the event (i) such entry
and/or work results in Tenant not being able to use the Premises for its then
current business operations which are permitted under the terms of this Lease
for a period in excess of five (5) consecutive business days, (ii) thereafter,
Tenant notifies Landlord in writing of the occurrence of the events described
above in Section 7(e)(i), which notice shall include both a depiction and
reasonable estimate of the Rentable Area of the area of the Premises affected (“Tenant’s
Interference Notice”), and (iii) the occurrence of the events described in
Section 7(e)(i) continues for an additional three (3) business
days after Landlord’s receipt of Tenant’s Interference Notice, then Monthly
Base Rent shall be abated in proportion to the area of the Premises so affected
beginning on the fourth (4th) business day after Landlord’s receipt of Tenant’s Interference
Notice, until the earlier of (i) completion of such entry and/or work by
Landlord, or (ii) Tenant begins using the area of the Premises affected by
Landlord’s entry and/or work.


 


8.                                      TAXES.  Tenant shall pay all
rental, excise, sales or transaction privilege taxes arising out of this Lease
(excluding, however, state and federal personal or corporate income taxes
measured by the income of Landlord from all sources) imposed by any taxing
authority upon Landlord or upon Landlord’s receipt of any rent payable by
Tenant pursuant to the terms of this Lease (“Rental Tax”).  Tenant shall pay any Rental Tax to Landlord
in addition to and at the same time as Base Rent is payable under this Lease.


 


23





















 


9.                                      UTILITIES AND SERVICES.


 


9.1                               Utility Services.  Tenant shall pay for all water, gas, heat,
air conditioning, light,  power, telephone, sewer, sprinkler charges
and other utilities and services used on or from the Premises, together with
any taxes, penalties, surcharges or the like pertaining thereto, and maintenance
charges for utilities and shall furnish all electric lamps and ballasts. Gas
and electricity service to the Premises shall be separately metered by Landlord
as part of the Tenant Improvements (defined in Exhibit B), but
shall be paid by Landlord at its sole cost. 
Water and sewer service is not separately metered but may be submetered
at Landlord’s option, provided that cost of installation of the submeter shall
be at Landlord’s sole cost and expense. Consumption charges for any utility
services that are separately metered shall be paid by Tenant directly to the
utility provider when due. Consumption charges for any utility services that
are submetered to the Premises shall be reimbursed by Tenant to Landlord within
thirty (30) days after written request for payment by Landlord, which
consumption charges shall be the actual cost paid by Landlord to the utility
provider without mark-up or additional fees.


 


9.2                               Interruption of Services.  In the event of an interruption in or failure
or inability to provide any services or utilities to the Premises or Building
for any reason (a “Service Failure”),
such Service Failure shall not, regardless of its duration, impose upon
Landlord any liability whatsoever, constitute an eviction of Tenant,
constructive or otherwise, entitle Tenant to an abatement of rent or to
terminate this Lease or otherwise release Tenant from any of Tenant’s
obligations under this Lease. 
Notwithstanding anything to the contrary contained herein, in the event
of any Service Failure caused by Landlord or its employees, agents or
contractors that materially interferes with Tenant’s use and enjoyment of the
Premises, Tenant shall have the right to abate Rent in proportion to the area
of the Premises rendered untenantable by said interruption if said interruption
continues for at least five (5) business days, commencing on the fourth (6th) day.   The foregoing abatement shall be applied
consecutively (not concurrently) with any other rent abatement or credit that
may be then-applicable during such period.


 


10.                               EXCULPATION AND INDEMNIFICATION.


 


10.1                        Landlord’s Indemnification of Tenant.  Subject to Section 11.3
and Section 28, Landlord shall indemnify, protect, defend and hold Tenant
harmless from and against any claims, actions, liabilities, damages, costs or
expenses, including reasonable attorneys’ fees and costs incurred in defending
against the same (“Claims”)
asserted by any third party against Tenant for loss, injury or damage, to the
extent such loss, injury or damage is caused by the willful misconduct or
negligent acts or omissions of Landlord or its authorized representatives, or
Landlord’s continuing breach or default of this Lease after applicable notice
of breach or default and expiration of applicable cure period, excepting only
Claims to the extent they are caused by the willful misconduct or negligent
acts or omissions of Tenant or its agents, representatives or contractors.


 


10.2                        Tenant’s Indemnification of Landlord.  Subject to Section 11.3,
Tenant shall indemnify, protect, defend and hold Landlord and Landlord’s
Representatives and its mortgagee and management agent harmless from and
against Claims asserted by a third party against Landlord or Landlord’s
Representatives arising from (a) the negligent acts or omissions of Tenant
or Tenant’s Representatives or Visitors in or about the Property, or (b) any
construction or other work undertaken by Tenant on the Premises (including any
design defects), or (c) any continuing 


 


24





















 


breach or default
of its obligations under this Lease by Tenant after applicable notice of breach
or default and expiration of applicable cure period , or (d) any loss,
injury or damage, howsoever and by whomsoever caused, to any person or
property, occurring in or about the Premises during the Term, excepting Claims
caused by the willful misconduct or negligent acts or omissions of Landlord or
its agents, representatives, or contractors.


 


10.3                        Damage to Tenant’s Property.  Landlord shall not be liable
to Tenant for any loss, injury or other damage to Tenant’s property in or about
the Premises or the Property from any cause (including defects in the Property
or in any equipment in the Property; fire, explosion or other casualty;
bursting, rupture, leakage or overflow of any plumbing or other pipes or lines,
sprinklers, tanks, drains, drinking fountains or washstands in, above, or about
the Premises or the Property; or acts of other tenants in the Property) unless
caused by Landlord’s negligence (unless waived pursuant to Section 11.3)
or willful misconduct.  Tenant hereby
waives all claims against Landlord for any such loss, injury or damage and the
cost and expense of defending against claims relating thereto, including any
loss, injury or damage caused by Landlord’s negligence (active or passive), but
excluding Landlord’s willful misconduct.


 


10.4                        Survival.  The obligations of the parties under this Section 10
shall survive the expiration or termination of this Lease.


 


11.                               INSURANCE.


 


11.1                        Tenant’s Insurance.


 


(a)                                 Liability Insurance.  Tenant shall maintain in full force
throughout the Term, commercial general liability insurance providing coverage
on an occurrence form basis with limits of not less than Three Million Dollars
($3,000,000.00) each occurrence for bodily injury and property damage combined,
Three Million Dollars ($3,000,000.00) annual general aggregate, and Three
Million Dollars ($3,000,000.00) products and completed operations annual
aggregate.  Tenant’s liability insurance
policy or policies shall:  (i) include
premises and operations liability coverage, products and completed operations
liability coverage, broad form property damage coverage including completed
operations, blanket contractual liability coverage including, to the maximum
extent possible, coverage for the indemnification obligations of Tenant under
this Lease, and personal and advertising injury coverage; (ii) provide
that the insurance company has the duty to defend all insureds under the
policy; (iii) provide that defense costs are paid in addition to and do
not deplete any of the policy limits; (iv) cover liabilities arising out
of or incurred in connection with Tenant’s use or occupancy of the Premises or
the Property; (v) extend coverage to cover liability for the actions of
Tenant’s Representatives and Visitors; and (vi) designate separate limits
for the Property.  Each policy of
liability insurance required by this Section shall:  (i) contain a cross liability
endorsement or separation of insureds clause; (ii) provide that any waiver
of subrogation rights or release prior to a loss does not void coverage; (iii) provide
that it is primary to  and not contributing with, any policy of
insurance carried by Landlord covering the same loss; (iv) provide that
any failure to comply with the reporting provisions shall not affect coverage
provided to Landlord, its partners, property managers and Mortgagees; and (v) name
Landlord, its partners, the Property Manager identified in the Basic Lease
Information (the “Property Manager”),
and such other parties in interest (e.g. property manager or mortgagee) as
Landlord may from time to time reasonably designate to Tenant in writing, as
additional insureds.  Such additional
insureds shall be provided at least the same extent of coverage as is provided
to Tenant under such policies.


 


25





















 


(b)                                 Property Insurance.  Tenant shall at all times maintain in effect
with respect to any Alterations and Tenant’s Trade Fixtures and personal
property, commercial property insurance providing coverage, on an “all risk” or
“special form” basis, in an amount equal to at least 90% of the full
replacement cost of the covered property. 
Tenant may carry such insurance under a blanket policy, provided that
such policy provides coverage equivalent to a separate policy.  During the Term, the proceeds from any such
policies of insurance shall be used for the repair or replacement of the
Alterations, Trade Fixtures and personal property so insured.  Landlord shall be provided coverage under such
insurance to the extent of its insurable interest and, if requested by
Landlord, both Landlord and Tenant shall sign all documents reasonably
necessary or proper in connection with the settlement of any claim or loss
under such insurance.  Landlord will have
no obligation to carry insurance on any Alterations or on Tenant’s Trade
Fixtures or personal property.


 


(c)                                  Requirements For All Policies.  Each policy of insurance
required under this Section 11.1 shall: 
(i) be in a form, and written by an insurer, reasonably acceptable
to Landlord, (ii) be maintained at Tenant’s sole cost and expense, and (iii) require
at least thirty (30) days’ written notice to Landlord prior to any
cancellation, nonrenewal or modification of insurance coverage.  Insurance companies issuing such policies
shall have rating classifications of “A” or better and financial size category
ratings of “VII” or better according to the latest edition of the A.M.
Best Key Rating Guide.  All insurance
companies issuing such policies shall be admitted carriers licensed to do
business in the state where the Property is located.  Any deductible amount under such insurance
shall not exceed $50,000.  Tenant shall
provide to Landlord, upon request, evidence that the insurance required to be
carried by Tenant pursuant to this Section, including any endorsement effecting
the additional insured status, is in full force and effect and that premiums
therefor have been paid.


 


(d)                                 Updating Coverage.  Tenant shall increase the amounts of
insurance as required by any Mortgagee, and, not more frequently than once
every five (5) years, as recommended by Landlord’s insurance broker, if,
in the opinion of either of them, the amount of insurance then required under
this Lease is not adequate provided such increase in insurance is in a
commercially reasonable amount in keeping with the standards of other
office/warehouse buildings in the Twin Cities area.  Any limits set forth in this Lease on the
amount or type of coverage required by Tenant’s insurance shall not limit the
liability of Tenant under this Lease.


 


(e)                                  Certificates of Insurance.  Prior to occupancy of the
Premises by Tenant, and not less than thirty (30) days prior to expiration of
any policy thereafter, Tenant shall furnish to Landlord a certificate of
insurance reflecting that the insurance required by this Section is in
force, accompanied by an endorsement showing the required additional insureds
satisfactory to Landlord in substance and form. 
Notwithstanding the requirements of this paragraph, Tenant shall at  Landlord’s
request provide to Landlord a certified copy of each insurance policy required
to be in force at any time pursuant to the requirements of this Lease or its
Exhibits.


 


11.2                        Landlord’s Insurance.  During the Term, Landlord shall maintain in
effect insurance on the Building with responsible insurers, on an “all risk” or
“special form” basis, insuring the Building and the Tenant Improvements in an
amount equal to at least 90% of the replacement cost thereof, excluding land,
foundations, footings and underground installations.  Landlord shall maintain Commercial General
Liability Insurance with limits of not less than $3,000,000.00, 


 


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which may be
comprised of primary and excess liability coverage.  Landlord may, but shall not be obligated to,
carry insurance against additional perils and/or in greater amounts as is
commercially reasonable and in keeping with the standards of other
office/warehouse buildings in the Twin Cities area or as may be required by
Landlord’s mortgagee.


 


11.3                        Mutual Waiver of Right of Recovery & Waiver of Subrogation.  Landlord and Tenant each
hereby waive any right of recovery against each other and the partners,
managers, members, shareholders, officers, directors, employees, agents and
authorized representatives of each other for any loss or damage that is covered
by any policy of property insurance maintained by either party (or required by
this Lease to be maintained) with respect to the Premises, Property or Project
or any Trade Fixtures or any operation in the Premises, regardless of cause,
including negligence (active or passive) of the party benefiting from the
waiver.  If any such policy of insurance
relating to this Lease or to the Premises or the Property does not permit the
foregoing waiver or if the coverage under any such policy would be invalidated
as a result of such waiver, the party maintaining such policy shall obtain from
the insurer under such policy a waiver of all right of recovery by way of subrogation
against either party in connection with any claim, loss or damage covered by
such policy.


 


12.                               DAMAGE OR DESTRUCTION.


 


12.1                        Landlord’s Duty to Repair.


 


(a)                                 If all or a substantial part of the Premises are rendered untenantable
or inaccessible by damage to all or any part of the Property from fire or other
casualty then, unless either party is entitled to and elects to terminate this
Lease pursuant to Section 12.2 - Landlord’s Right to
Terminate and Section 12.3 - Tenant’s
Right to Terminate, Landlord shall, at its expense, repair and
restore the Premises and/or the Property, as the case may be, to substantially
their former condition to the extent permitted by then applicable Laws;
provided, however, that in no event shall Landlord have any obligation for
repair or restoration beyond the extent of insurance proceeds received by
Landlord for such repair or restoration, or for any of Tenant’s personal
property, Trade Fixtures or Alterations.


 


(b)                                 If Landlord is required or elects to repair damage to the Premises
and/or the Property, this Lease shall continue in effect, but Tenant’s Base
Rent and Additional Rent shall be abated with regard to any portion of the
Premises that Tenant is prevented from using by reason of such damage or its
repair from the date of the casualty until substantial completion of Landlord’s
repair of the affected portion of the Premises as required under this
Lease.  In no event shall Landlord be
liable to Tenant by reason of any injury to or interference with Tenant’s
business or property arising from fire or other casualty or by reason of any
repairs to any part of the Property necessitated by such casualty.


 


12.2                        Right to Terminate.  Either Landlord or Tenant may elect to
terminate this Lease following damage by fire or other casualty under the
following circumstances:


 


(a)                                 If, in the reasonable judgment of Landlord, the Premises and the
Property cannot be substantially repaired and restored under applicable Laws
within two hundred ten (210) days from the date of the casualty; and


 


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(b)                                 If the fire or other casualty occurs during the last year of the Term,
except to the extent the fire or other casualty occurs during the last year of
the Initial Term and Tenant has exercised its Extension Option.


 


If any of the
circumstances described in subparagraphs (a) or (b) of this Section 12.2
occur or arise, Landlord shall give Tenant notice within sixty (60) days after
the date of the casualty, specifying whether Landlord elects to terminate this
Lease as provided above and, if not, Landlord’s estimate of the time required
to complete Landlord’s repair obligations under this Lease.


 


12.3                        Tenant’s Right to Terminate.  In addition to Section 12.3
above, if Landlord’s estimated time for completion of repairs or restoration
provided to Tenant exceeds two hundred ten (210) days, and if neither party
elects to terminate this Lease as permitted under this Section 12, then if
Landlord does not complete the repairs or restoration to substantially their former
condition to the extent permitted by applicable Laws within thirty (30) days
after the estimated time for completion provided to Tenant, Tenant may elect to
terminate this Lease by written notice to Landlord effective not less than
thirty (30) days after the date of such Tenant’s notice except that if Landlord
completes such repairs or restoration before the effective date of such
termination, such termination shall be deemed a nullity.


 


12.4                        Landlord’s Right to Terminate.  In addition to Section 12.3
above, (i) if the Building is damaged or destroyed to the extent that, in
the reasonable judgment of Landlord, the cost to repair and restore the
Building would exceed fifty percent (50%) of the full replacement cost of the
Building, or (ii) if, in the reasonable judgment of Landlord, adequate
proceeds are not, for any reason, made available to Landlord from Landlord’s
insurance policies (and/or from Landlord’s funds made available for such
purpose, at Landlord’s sole option) to make the required repairs; then Landlord
shall have the right to terminate this Lease by written notice to Tenant within
sixty (60) days after the date of the casualty.


 


13.                               CONDEMNATION.


 


13.1                        Definitions.


 


(a)                                 “Award” shall mean all compensation,
sums, or anything of value awarded, paid or received on a total or partial
Condemnation.


 


(b)                                 “Condemnation” shall mean (i) a
permanent taking (or a temporary taking for a period extending beyond the end
of the Term) pursuant to the exercise of the power of condemnation or eminent
domain by any public or quasi-public authority, private corporation or
individual having such power (“Condemnor”),
whether by legal proceedings or otherwise, or (ii) a  voluntary sale
or transfer by Landlord to any such authority, either under threat of
condemnation or while legal proceedings for condemnation are pending.


 


(c)                                  “Date of Condemnation” shall mean the
earlier of the date that title to the property taken is vested in the Condemnor
or the date the Condemnor has the right to possession of the property being
condemned.


 


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13.2                        Effect on Lease.


 


(a)                                 If the Premises are totally taken by Condemnation, this Lease shall
terminate as of the Date of Condemnation. 
If a portion but not all of the Premises is taken by Condemnation, this
Lease shall remain in effect; provided, however, that if the portion of the
Premises remaining after the Condemnation will be unsuitable for Tenant’s
continued use, then upon notice to Landlord within thirty (30) days after
Landlord notifies Tenant of the Condemnation, Tenant may terminate this Lease
effective as of the Date of Condemnation.


 


(b)                                 If twenty-five percent (25%) or more of the Property or of the parcel(s) of
land on which the Building is situated or of the Parking Facility or of the
floor area in the Building is taken by Condemnation, or if as a result of any
Condemnation the Building is no longer reasonably suitable for the Permitted
Use or any other permitted use of any other tenant of the Project, whether or
not any portion of the Premises is taken, Landlord may elect to terminate this Lease,
effective as of the Date of Condemnation, by notice to Tenant within thirty
(30) days after the Date of Condemnation.


 


(c)                                  If all or a portion of the Premises is temporarily taken by a Condemnor
for a period not extending beyond the end of the Term, this Lease shall remain
in full force and effect.


 


13.3                        Restoration.  If this Lease is not terminated as provided
in Section 13.2 - Effect on Lease,
Landlord, at its expense, shall diligently proceed to repair and restore the
Premises to substantially its former condition (to the extent permitted by then
applicable Laws) and/or repair and restore the Building to an architecturally
complete building in as close a condition as possible to the condition of the
Building existing on the date of taking of possession; provided, however, that
Landlord’s obligations to so repair and restore shall be limited to the amount
of any Award received by Landlord and not required to be paid to any Mortgagee
(as defined in Section 20.2 below). 
In no event shall Landlord have any obligation to repair or replace any
improvements in the Premises beyond the amount of any Award received by
Landlord for such repair or to repair or replace any of Tenant’s personal
property, Trade Fixtures, or Alterations.


 


13.4                        Abatement and Reduction of Rent.  If any portion of the Premises
is taken in a Condemnation or is rendered permanently untenantable by repairs
necessitated by the Condemnation, and this Lease is not terminated, the Base
Rent and Additional Rent payable under this Lease shall be proportionally
reduced as of the Date of Condemnation based upon the percentage of rentable
square feet in the Premises so taken or rendered permanently untenantable.  In addition, if this Lease remains in effect
following a Condemnation and Landlord proceeds to repair and restore the
Premises, the Base Rent and Additional Rent payable under this Lease shall be
abated during the period of such repair or restoration to the extent such
repairs prevent Tenant’s use of the Premises.


 


13.5                        Awards.  Any Award made shall be paid to Landlord, and
Tenant hereby assigns to Landlord, and waives all interest in or claim to, any
such Award, including any claim for the value of the unexpired Term; provided,
however, that Tenant shall be entitled to receive, or to prosecute a separate
claim for, an Award for a temporary taking of the Premises or a portion thereof
by a Condemnor where this Lease is not terminated (to the extent such Award
relates to the unexpired Term), or an Award or portion thereof separately
designated for relocation expenses or the 


 


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interruption of or
damage to Tenant’s business or as compensation for Tenant’s personal property,
Trade Fixtures or Alterations or other claim permitted by law.


 


13.6                        Failure to Complete Restoration.  In addition to Section 13.2(a) above,
after a taking adversely affecting the Premises and if neither party elects to
terminate this Lease as permitted under this Section, and if Landlord is
obligated to restore the Premises or if Landlord elects to restore the
Premises, and the Premises are not restored to substantially their former
condition to the extent permitted by applicable Laws within the longer of two
hundred ten (210) days after the date of taking of possession or 30 days after
the Landlord’s estimated time for completion provided to Tenant, then, Tenant
shall have the right, exercisable by written notice to Landlord given on or
before the thirtieth (30th) day after the expiration of the time period set
forth herein, to terminate this Lease effective not less than thirty (30) days
after the date of such Tenant’s notice except that if Landlord completes such
restoration before the effective date of such termination, such termination
shall be deemed a nullity.


 


14.                               ASSIGNMENT AND SUBLETTING.


 


14.1                        Landlord’s Consent Required.  Tenant shall not assign this
Lease or any interest therein, or sublet or license or permit the use or
occupancy of the Premises or any part thereof by or for the benefit of anyone
other than Tenant, or in any other manner transfer all or any part of Tenant’s
interest under this Lease (each and all a “Transfer”),
without the prior written consent of Landlord, which consent (subject to the
other provisions of this Section 14) shall not be unreasonably withheld,
conditioned or delayed.  It is
acknowledged that so long as Tenant is a publicly traded business entity, any
direct or indirect transfer of the stock of the entity (whether in a single
transaction or in the aggregate through more than one transaction) shall not be
deemed a Transfer.  Notwithstanding the
foregoing to the contrary, no consent of Landlord shall be required as a
condition of Tenant’s right to assign or sublet this Lease to an affiliate of
Tenant. An “affiliate of Tenant” means an entity controlling, controlled by or
under common control with Tenant, or a parent or subsidiary of Tenant, or any
entity that is Tenant’s successor by merger or that acquires all or
substantially all the stock or assets of Tenant. The term “control” or words of
similar meaning in the preceding sentence means the power to direct the
management of the company. Notwithstanding any provision in this Lease to the
contrary, Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
this Lease or all or any part of Tenant’s interest under this Lease.


 


14.2                        Reasonable Consent.


 


(a)                                 Prior to any proposed Transfer, Tenant shall submit in writing to
Landlord (i) the name and legal composition of the proposed assignee,
subtenant, user or other transferee (each a “Proposed
Transferee”); (ii) the nature of the business proposed to be
carried on in the Premises; (iii) a current balance sheet, income
statements for the last two years and such other reasonable financial and other
information concerning the Proposed Transferee as Landlord may request; and (iv) a
copy of the proposed assignment, sublease or other agreement governing the
proposed Transfer.  Within fifteen (15)
business days after Landlord receives all such information with respect to
Transfer requiring Landlord’s consent under this Section 14, Landlord
shall notify Tenant whether it approves or disapproves such Transfer or if it
elects to proceed under Section 14.7 - Landlord’s Right to Space.


 


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(b)                                 Tenant acknowledges and agrees that, among other circumstances for
which Landlord could reasonably withhold consent to a proposed Transfer, it
shall be reasonable for Landlord to withhold consent where (i) the
Proposed Transferee does not intend itself to occupy the entire portion of the
Premises assigned or sublet, (ii) based upon reasonable and credible
evidence, Landlord reasonably disapproves of the Proposed Transferee’s business
operating ability or history, reputation or creditworthiness or the character of
the business to be conducted by the Proposed Transferee at the Premises, (iii) the
Proposed Transferee is a governmental agency or unit or an existing tenant in
the Project (provided Landlord has space in the Building available or becoming
available within a reasonable amount of time to meet the existing tenant’s
requirements), (iv) the proposed Transfer would violate any “exclusive”
rights of any tenants in the Project, (v) Landlord or Landlord’s agent has
shown space in the Building to the Proposed Transferee or responded to any
inquiries from the Proposed Transferee or the Proposed Transferee’s agent
concerning availability of space in the Building, at any time within the
preceding six months and Landlord has space in the Building available or
becoming available within a reasonable amount of time to reasonably meet the
Proposed Transferee’s requirements, or (vi) Landlord otherwise determines
that the proposed Transfer would have the effect of decreasing the value of the
Building or increasing the expenses associated with operating, maintaining and
repairing the Property.  In no event may
Tenant, its employees, agents brokers publicly advertise or market (including
without limitation, via any listing service) all or any portion of the Premises
for assignment or sublease at a rental less than that then sought by Landlord
for a direct lease (non-sublease) of comparable space in the Project that is
available or becoming available within a reasonable amount of time.


 


14.3                        Excess Consideration.  If Landlord consent is required and Landlord
consents to the Transfer, Tenant shall pay to Landlord as Additional Rent,
within ten (10) days after receipt by Tenant, fifty percent (50%) of any
consideration paid by any transferee (the “Transferee”)
for the Transfer, including, in the case of a sublease, fifty percent (50%) of
the excess of the rent and other consideration payable by the subtenant over
the amount of Base Rent and Additional Rent payable hereunder applicable to the
subleased space, after deduction of Tenant’s reasonable costs in connection
with the Transfer, including broker commissions, construction costs and
reasonable attorneys fees. Excess rent or consideration shall not include
amounts received by Tenant for sale of stock. Excess rent or consideration shall
include amounts received by Tenant for sale or rental of assets, equipment,
furniture, and personal property, less in the case of sale of any such item,
the fair market value of such item. As a condition of the effectiveness of any
such Transfer, Tenant shall provide documentation to Landlord substantiating
the excess rent or consideration, Tenant’s costs in connection with the
Transfer (such as broker commissions, construction costs and reasonable
attorneys’ fees) and amounts received by Tenant for sale or rental of assets,
equipment, furniture and personal property and Tenant’s reasonable
determination of the fair market value of such items on a line item basis.


 


14.4                        No Release Of Tenant.  No Transfer shall relieve Tenant of any
obligation to be performed by Tenant under this Lease, whether occurring before
or after such consent, assignment, subletting or other Transfer.  Each Transferee shall be jointly and
severally liable with Tenant (and Tenant shall be jointly and severally liable
with each Transferee) for the payment of rent (or, in the case of a sublease,
rent in the amount set forth in the sublease) and for the performance of all
other terms and provisions of this Lease. 
The consent by Landlord to any Transfer shall not relieve Tenant or any
such Transferee from the obligation to obtain Landlord’s express prior written
consent to any subsequent Transfer by Tenant or any Transferee.  The acceptance of rent by 


 


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Landlord from any
other person (whether or not such person is an occupant of the Premises) shall
not be deemed to be a waiver by Landlord of any provision of this Lease or to
be a consent to any Transfer.


 


14.5                        Effectiveness of Transfer.  Prior to the date on which any
permitted Transfer (requiring Landlord’s consent) becomes effective, or within
ten (10) days after the date on which any permitted Transfer (not
requiring Landlord’s consent) becomes effective, Tenant shall deliver to
Landlord a counterpart of the fully executed Transfer document and if consent
of Landlord is required, Landlord’s standard form of Consent to Assignment or
Consent to Sublease as reasonably agreed to between Landlord, Tenant and the
Transferee, executed by Tenant and the Transferee in which each of Tenant and
the Transferee confirms its obligations pursuant to this Lease.  Failure or refusal of a Transferee to execute
any such instrument shall not release or discharge the Transferee from
liability as provided herein.  The
voluntary, involuntary or other surrender of this Lease by Tenant, or a mutual
cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate
all or any existing subleases or operate as an assignment to Landlord of any or
all of such subleases.


 


14.6                        Assignment of Sublease Rents.  Tenant hereby absolutely and
irrevocably assigns to Landlord any and all rights to receive rent and other
consideration from any sublease and agrees that Landlord, as assignee for Tenant
for purposes hereof, or a receiver for Tenant appointed on Landlord’s
application may (but shall not be obligated to) collect such rents and other
consideration and apply the same toward Tenant’s obligations to Landlord under
this Lease; provided, however, that Landlord grants to Tenant at all times
prior to occurrence of any Event of Default by Tenant a revocable license to
collect such rents (which license shall automatically and without notice be and
be deemed to have been revoked and terminated immediately upon any Event of
Default).


 


15.                               DEFAULT AND REMEDIES.


 


15.1                        Events of Default.  The occurrence of any of the following shall
constitute an “Event of Default” by Tenant:


 


(a)                                 Tenant fails to make any payment of Rent when due, or any amount
required to replenish the security deposit as provided in Section 4 above,
if payment in full is not received by Landlord within five (5) business
days after written notice that it is past due.


 


(b)                                 Tenant abandons the Premises, provided Tenant shall have the right to
cease operating its business in the Premises and/or vacate the same without
creating a default under this Lease so long as Tenant pays its rental and
performs its other obligations under the Lease, but subject to Landlord’s
recapture rights under Section 5.1 of this Lease.


 


(c)                                  Tenant fails timely to deliver any subordination document, estoppel
certificate or financial statement requested by Landlord within the applicable
time period specified in Sections 20 - Encumbrances -
and 21 - Estoppel Certificates and Financial Statements below,
if the subordination document, estoppel certificate or financial statement is
not received by Landlord within five (5) days of written notice it is past
due.


 


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(d)                                 Tenant violates the restrictions on Transfer set forth in Section 14
- Assignment and Subletting and fails to
cure such violation within fifteen (15) days after written notice of such
violation.


 


(e)                                  Tenant makes an assignment for the benefit of creditors; is adjudicated
an insolvent, files a petition (or files an answer admitting the material
allegations of a petition) seeking relief under any state or federal bankruptcy
or other statute, law or regulation affecting creditors’ rights; all or
substantially all of Tenant’s assets are subject to judicial seizure or
attachment; or Tenant consents to or acquiesces in the appointment of a
trustee, receiver or liquidator for Tenant or for all or any substantial part
of Tenant’s assets.


 


(f)                                   Tenant fails, within ninety (90) days after the commencement of any
proceedings against Tenant seeking relief under any state or federal bankruptcy
or other statute, law or regulation affecting creditors’ rights, to have such
proceedings dismissed, or Tenant fails, within ninety (90) days after an
appointment, without Tenant’s consent or acquiescence, of any trustee, receiver
or liquidator for Tenant or for all or any substantial part of Tenant’s assets,
to have such appointment vacated.


 


(g)                                  Tenant fails to perform or comply with any provision of this Lease
other than those described in (a) through (f) above, and does not
fully cure such failure within thirty (30) days after notice to Tenant, if such
failure cannot be cured within such thirty (30)-day period, Tenant fails within
such thirty (30)-day period to commence, and thereafter diligently proceed
with, all actions necessary to cure such failure as soon as reasonably possible
but in all events within ninety (90) days of such notice.


 


15.2                        Remedies.  Upon the occurrence of an Event of Default,
Landlord shall have the following remedies, which shall not be exclusive but
shall be cumulative and shall be in addition to any other remedies now or
hereafter allowed by law:


 


(a)                                 Landlord may terminate Tenant’s right to possession of the Premises at
any time by written notice to Tenant. 
Tenant expressly acknowledges that in the absence of such written notice
from Landlord, no other act of Landlord, including re-entry into the Premises,
efforts to relet the Premises, reletting of the Premises for Tenant’s account,
storage of Tenant’s personal property and Trade Fixtures, acceptance of keys to
the Premises from Tenant or exercise of any other rights and remedies under
this Section, shall constitute an acceptance of Tenant’s surrender of the Premises
or constitute a termination of this Lease or of Tenant’s right to possession of
the Premises.  Upon such termination in
writing of Tenant’s right to possession of the Premises, as herein provided,
this Lease shall terminate and Landlord shall be entitled to recover damages,
including, but not limited to, tenant improvement costs, broker fees and
negotiating costs incurred in re-letting the Premises and damages from Tenant
for such breach and damages from Tenant for such breach. In the event Landlord elects
to terminate this Lease or repossess the Premises by reason of an Event of
Default by Tenant, then Landlord shall use reasonable efforts to re-let the
Premises.  Landlord’s reasonable efforts
as used in the immediately preceding sentence shall be deemed satisfied by
listing the Premises’ availability for lease with a broker selected by
Landlord.


 


(b)                                 Landlord may cure the Event of Default at Tenant’s expense.  If Landlord pays any sum or incurs any
expense in curing the Event of Default, Tenant shall reimburse Landlord upon
demand for the amount of such payment or expense with interest at the Interest 


 


33





















 


Rate from the date
the sum is paid or the expense is incurred until Landlord is reimbursed by Tenant.


 


(c)                                  Landlord may remove all Tenant’s property from the Premises, and such
property may be stored by Landlord in a public warehouse or elsewhere at the
sole cost and for the account of Tenant. 
If Landlord does not elect to store any or all of Tenant’s property left
in the Premises, Landlord may consider such property to be abandoned by Tenant,
and Landlord may thereupon dispose of such property in any manner deemed
appropriate by Landlord.  Any proceeds
realized by Landlord on the disposal of any such property shall be applied
first to offset all expenses of storage and sale, then credited against Tenant’s
outstanding obligations to Landlord under this Lease, and any balance remaining
after satisfaction of all obligations of Tenant under this Lease shall be
delivered to Tenant.


 


(d)                                 In the event of any default under this Lease by Landlord, Landlord
shall have thirty (30) days after receipt of written notice thereof to cure
such default, unless it shall be of a nature that it cannot reasonably be cured
within said thirty (30) day period, in which event Landlord shall have a
reasonable period of time to cure such default provided that Landlord commences
to cure such default within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion. 
If Landlord fails to cure any default within the cure period specified
above, Tenant, without limiting any of its rights or remedies permitted at law
or in equity, shall have the right (but not the obligation) to cure such
default and to recover from Landlord the cost thereof, and Landlord shall pay
such costs of cure to Tenant within thirty (30) days after written demand for
payment is delivered to Landlord together with written information
substantiating such costs incurred. If Landlord does not timely reimburse
Tenant for such costs within thirty (30) days after delivery of an initial
written demand for payment to Landlord with substantiation of costs incurred,
and thereafter, Landlord does not reimburse Tenant for such costs within fifteen
(15) days after delivery of a second written demand for payment to Landlord,
then Tenant may offset such costs against the next installments of Rent coming
due under this Lease.


 


16.                               LATE CHARGE AND INTEREST.


 


16.1                        Late Charge.  If any payment of Rent is not received by
Landlord within five (5) business days after the date when due, Tenant
shall pay to Landlord on demand as a late charge the sum of Five Hundred and
00/100 Dollars ($500.00) (each a “Late Charge”
and collectively, “Late Charges”).  A Late Charge shall not be imposed more than
once on any particular installment not paid when due, but imposition of a Late
Charge on any payment not made when due does not eliminate or supersede Late
Charges imposed on other (prior) payments not made when due or preclude
imposition of a Late Charge on other installments or payments not made when
due.


 


16.2                        Interest.  In addition to the Late Charges referred to
above, which are intended to defray Landlord’s costs resulting from late
payments, any payment from Tenant to Landlord not paid when due shall at
Landlord’s option bear interest from the date due until paid to Landlord by
Tenant at the rate of twelve percent (12%) per annum or the maximum lawful rate
that Landlord may charge to Tenant under applicable laws, whichever is less
(the “Interest Rate”).  Acceptance of any Late Charge and/or interest
shall not constitute a waiver of Tenant’s default with respect to the overdue
sum or prevent Landlord from exercising any of its other rights and remedies
under this Lease.


 


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17.                               WAIVER.  No provisions of this
Lease shall be deemed waived by Landlord or Tenant unless such waiver is in a
writing signed by the waiving party.  The
waiver by Landlord or Tenant of any breach of any provision of this Lease shall
not be deemed a waiver of such provision or of any subsequent breach of the
same or any other provision of this Lease. 
No delay or omission in the exercise of any right or remedy upon any
default shall impair such right or remedy or be construed as a waiver.  Landlord’s acceptance of any payments of Rent
due under this Lease shall not be deemed a waiver of any default by Tenant
under this Lease (including Tenant’s recurrent failure to timely pay rent)
other than Tenant’s nonpayment of the accepted sums, and no endorsement or
statement on any check or payment or in any letter or document accompanying any
check or payment shall be deemed an accord and satisfaction.  Landlord or Tenant’s consent to or approval
of any act requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent act.


 


18.                               ENTRY, INSPECTION AND CLOSURE. 
Upon reasonable oral or written notice to Tenant (and without notice in
emergencies), Landlord and its authorized representatives may enter the
Premises at all reasonable times to:  (a) determine
whether the Premises are in good condition, (b) determine whether Tenant
is complying with its obligations under this Lease, (c) perform any
maintenance or repair of the Premises or the Building that Landlord has the
right or obligation to perform, (d) install or repair improvements for
other tenants where access to the Premises is required for such installation or
repair, (e) serve, post or keep posted any notices required or allowed
under the provisions of this Lease, (f) during the last nine (9) months
of the Term or at any time after Tenant has abandoned the Premises, show the
Premises to prospective brokers, agents, buyers, transferees, Mortgagees or
tenants, or (g) do any other act or thing necessary for the safety or
preservation of the Premises or the Building. 
When reasonably necessary, Landlord may temporarily close entrances,
doors, corridors, elevators or other facilities in the Building without liability
to Tenant by reason of such closure, except as set forth in this Lease.  Landlord shall conduct its activities under
this Section in a commercially reasonable manner that will minimize
inconvenience to Tenant without incurring additional expense to Landlord.  In no event shall Tenant be entitled to an
abatement of rent and Landlord shall not be liable in any manner for any
inconvenience, loss of business or other damage to Tenant or other persons
arising out of Landlord’s entry on the Premises in accordance with this
Section, except as set forth in this Lease. 
No action by Landlord pursuant to this paragraph shall constitute an
eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement
of rent or to terminate this Lease or otherwise release Tenant from any of
Tenant’s obligations under this Lease, except as set forth in this Lease.


 


19.                               SURRENDER AND HOLDING OVER.


 


19.1                        Surrender.  Upon the expiration or termination of this
Lease, Tenant shall surrender the Premises and all Tenant Improvements and
Alterations to Landlord broom-clean and in their original condition, except for
reasonable wear and tear, damage from casualty or condemnation, Landlord’s
obligations and any changes resulting from approved Alterations; provided,
however, that prior to the expiration or termination of this Lease Tenant shall
remove all telephone and other cabling installed in the Building by Tenant and
remove from the Premises all Tenant’s personal property and any Trade Fixtures
and all Alterations that Landlord has elected to require Tenant to remove as
provided in Section 6.1 - Tenant Improvements &
Alterations, and repair any damage caused by such removal.  If such removal is not completed before the
expiration or termination of the Term, Landlord shall have the right (but no
obligation) to remove the same.  Landlord
shall 


 


35





















 


also have the
right to retain or dispose of all or any portion of such property if Tenant
does not pay all such costs and retrieve the property within ten (10) days
after notice from Landlord (in which event title to all such property described
in Landlord’s notice shall be transferred to and vest in Landlord).  Tenant waives all Claims against Landlord for
any damage or loss to Tenant resulting from Landlord’s removal, storage,
retention, or disposition of any such property. 
Upon expiration or termination of this Lease or of Tenant’s possession,
whichever is earliest, Tenant shall surrender all keys to the Premises or any
other part of the Building and shall deliver to Landlord all keys for or make
known to Landlord the combination of locks on all safes, cabinets and vaults
that may be located in the Premises.  In
no event shall Tenant be required to remove the Tenant Improvements or any
Alterations except as provided in Section 6.1.  Tenant’s obligations under this Section shall
survive the expiration or termination of this Lease.


 


19.2                        Holding Over.  If Tenant (directly or through any Transferee
or other successor-in-interest of Tenant) remains in possession of the Premises
after the expiration or termination of this Lease, Tenant’s continued
possession shall be on the basis of a tenancy at the sufferance of Landlord. In
such event, Tenant shall continue to comply with or perform all the terms and
obligations of Tenant under this Lease, except that the monthly Base Rent
during the first two month’s of Tenant’s holding over shall be one and one half
(1.5) times the Base Rent payable in the last full month prior to the
termination hereof, and thereafter the monthly Base Rent during the Tenant’s
holding over shall be twice the Base Rent payable in the last full month prior
to the termination hereof. Tenant shall indemnify, defend and hold Landlord
harmless from and against all Claims arising or resulting directly or
indirectly from Tenant’s failure to timely surrender the Premises, including (i) any
rent payable by or any loss, cost, or damages claimed by any prospective tenant
of the Premises, and (ii) Landlord’s damages as a result of such
prospective tenant rescinding or refusing to enter into the prospective lease
of the Premises by reason of such failure to timely surrender the Premises, provided, however, in order for Tenant to
be liable to Landlord hereunder for any Claims for consequential damages made
by Landlord or a third party, including a prospective tenant or purchaser of
the Premises or Building, Landlord must have given Tenant at least thirty (30)
days written notice prior to the accrual of such damages advising Tenant in good
faith that Landlord intends to lease, license, sell, transfer or convey the
Premises to such third party.


 


20.                               ENCUMBRANCES.


 


20.1                        Subordination, Non- Disturbance and Attornment.  This Lease is expressly made
subject and subordinate to any mortgage, deed of trust, ground lease,
underlying lease or like encumbrance affecting any part of the Property or any
interest of Landlord therein which is now existing or hereafter executed or
recorded (“Encumbrance”); provided, however,
that such subordination shall only be effective if this Lease and Tenant’s
rights hereunder shall survive the termination of the Encumbrance by lapse of
time, foreclosure or otherwise so long as Tenant is not in default under this
Lease beyond any applicable cure period. 
Simultaneously with Tenant’s execution and delivery of this Lease,
Tenant shall execute and deliver to Landlord the Non-Disturbance, Attornment,
Estoppel and Subordination Agreement attached hereto as Exhibit F (the “NDESA”). At any time after
execution of this Lease and within ten (10) days after written
request therefor by Landlord, Tenant shall execute and deliver to Landlord the
NDESA, or any additional documents in form reasonably requested by Landlord
(including without limitation, a replacement NDESA) to correct clerical errors
or omissions in the NDESA, to replace lost or destroyed originals of the NDESA,
or to permit recording of the NDESA with the County land title 


 


36





















 


records for the
Property, or to otherwise evidence the subordination of this Lease with respect
to any such Encumbrance and the nondisturbance agreement of the holder of any
such Encumbrance, provided the conditions of the first sentence of this Section 20.1
are satisfied and said documents shall not limit or reduce Tenant’s rights
under the Lease.  If the interest of
Landlord in the Property is transferred pursuant to or in lieu of proceedings
for enforcement of any Encumbrance, Tenant shall immediately and automatically
attorn to the new owner, and this Lease shall continue in full force and effect
as a direct lease between the transferee and Tenant on the terms and conditions
set forth in this Lease.


 


20.2                        Mortgagee Protection.  Tenant agrees to give any holder of any
Encumbrance covering any part of the Property (“Mortgagee”),
by certified mail, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of notice of assignment of rents and leases, or otherwise) of the address of
such Mortgagee.  If Landlord shall have
failed to cure such default within thirty (30) days from the effective date of
such notice of default, then the Mortgagee shall have an additional thirty (30)
days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary to cure such
default (including the time necessary to foreclose or otherwise terminate its
Encumbrance, if necessary to effect such cure), and this Lease shall not be
terminated so long as such remedies are being diligently pursued. To the extent
the Tenant and the applicable Mortgagee have executed an NDESA that contains
any provisions that are inconsistent with this Section 20.2, then the
terms of said NDESA shall control and be determinative as to such inconsistent
provisions.


 


21.                               ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.


 


21.1                        Estoppel Certificates.  Within ten (10) days after written
request therefor, Tenant shall execute and deliver to Landlord, in a form
provided by or satisfactory to Landlord, a certificate stating that this Lease
is in full force and effect, describing any amendments or modifications hereto,
acknowledging that this Lease is subordinate or prior, as the case may be, to
any Encumbrance and stating any other information Landlord may reasonably
request regarding the status of this Lease or Tenant’s occupancy of the
Premises, including the Term, the monthly Base Rent, the date to which Rent has
been paid, the amount of any security deposit or prepaid rent, whether either
party hereto is in default under the terms of the Lease, and whether Landlord
has completed its construction obligations hereunder (if any).  Any person or entity purchasing, acquiring an
interest in or extending financing with respect to the Property shall be
entitled to rely upon any such certificate executed by Tenant.


 


21.2                        Financial Statements. Within ten (10) business
days after written request therefore, but not more than once a year, Tenant
shall deliver to Landlord a copy of the financial statements (including at
least a year end balance sheet and a statement of profit and loss) of Tenant
(and of each guarantor of Tenant’s obligations under this Lease) for each of
the three (3) most recently completed years, prepared in accordance with
generally accepted accounting principles (and, if such is Tenant’s normal
practice, audited by an independent certified public accountant), all then
available subsequent interim statements, and such other financial information
as may reasonably be requested by Landlord or required by any Mortgagee.


 


22.                               NOTICES.  Any notice, demand,
request, consent or approval that either party desires or is required to give
to the other party under this Lease shall be in writing and shall be served 


 


37





















 


personally,
delivered by messenger or courier service, or sent by U.S. certified mail,
return receipt requested, postage prepaid, addressed to the other party at the
party’s address for notices set forth in the Basic Lease Information.  Any notice required pursuant to any Laws may
be incorporated into, given concurrently with or given separately from any
notice required under this Lease.  Notices
shall be deemed to have been given and be effective on the earlier of (a) receipt
(or refusal of delivery or receipt); or (b) one (1) day after
acceptance by the independent service for delivery, if sent by independent
messenger or courier service, or three (3) days after mailing if sent by
mail in accordance with this Section. 
Either party may change its address for notices hereunder, effective
fifteen (15) days after notice to the other party complying with this
Section.  If Tenant sublets the Premises,
notices from Landlord shall be effective on the subtenant when given to Tenant
pursuant to this Section.


 


23.                               ATTORNEYS’ FEES.  In the event of any dispute  between Landlord and Tenant in any way related to this
Lease, and whether involving contract and/or tort claims, the non-prevailing
party shall pay to the prevailing party all reasonable attorneys’ fees and
costs and expenses of any type,  without
restriction by statute, court rule or otherwise, incurred by the
prevailing party in connection with any action or proceeding (including any
appeal and the enforcement of any judgment or award), whether or not the
dispute is litigated or prosecuted to final judgment (collectively, “Fees”).  The “prevailing
party” shall be determined based upon an assessment of which party’s major
arguments or positions taken in the action or proceeding could fairly be said
to have prevailed (whether by compromise, settlement, abandonment by the other
party of its claim or defense, final decision, after any appeals, or otherwise)
over the other party’s major arguments or positions on major disputed issues.
Any Fees incurred in enforcing a judgment shall be recoverable separately from
any other amount included in the judgment and shall survive and not be merged
in the judgment.  The Fees shall be
deemed an “actual pecuniary loss” within the meaning of Bankruptcy Code Section 365(b)(1)(B),
and notwithstanding the foregoing, all Fees incurred by either party in any
bankruptcy case filed by or against the other party, from and after the order
for relief until this Lease is rejected or assumed in such bankruptcy case,
will be “obligations of the debtor” as that phrase is used in Bankruptcy Code Section 365(d)(3).


 


24.                               QUIET POSSESSION.  Subject to
Tenant’s full and timely performance of all of Tenant’s obligations under this
Lease, including applicable notice and cure periods, and subject to the terms
of this Lease, including Section 20 - Encumbrances,
Tenant shall have the quiet possession of the Premises throughout the Term as
against any persons or entities lawfully claiming by, through or under
Landlord.


 


25.                               SECURITY MEASURES.  Landlord may,
but shall be under no obligation to, implement such security measures for the
Property, as Landlord deems necessary or appropriate to reduce any threat of
property loss or damage, bodily injury or business interruption; provided,
however, that such measures shall be implemented in a way as not to
inconvenience tenants of the Building unreasonably.  Landlord shall
at all times have the right to change, alter or reduce any such security
services or measures.  Tenant shall cooperate
and comply with, and cause Tenant’s Representatives and Visitors to cooperate
and comply with, such commercially reasonable security measures.  Landlord, its agents and employees shall have
no liability to Tenant or its Representatives or Visitors for the
implementation or exercise of, or the failure to implement or exercise, any
such security measures or for any resulting disturbance of Tenant’s use or
enjoyment of the Premises, except in the case of landlord’s negligence or
willful misconduct.


 


38


















 


26.                               FORCE MAJEURE.  If Tenant or
Landlord is delayed, interrupted or prevented from performing any of its
obligations under this Lease (excluding payment or rent or other monetary
obligations), including its obligations under the Construction Rider (if any),
and such delay, interruption or prevention is due to fire, act of God,
governmental act or failure to act, labor dispute, unavailability of materials
or any cause outside the reasonable control of Landlord, then the time for
performance of the affected obligations of Landlord shall be extended for a
period equivalent to the period of such delay, interruption or prevention.


 


27.                               RULES AND REGULATIONS.  Tenant
shall be bound by and shall comply with the rules and regulations attached
to and made a part of this Lease as Exhibit C to the extent those rules and
regulations are not in conflict with the terms of this Lease, as well as any
reasonable rules and regulations hereafter adopted by Landlord for all
tenants of the Building, upon notice to Tenant thereof (collectively, the “Building Rules”). 
Landlord shall not be responsible to Tenant or to any other person for
any violation of, or failure to observe, the Building Rules by any other
tenant or other person, provided Landlord shall take commercially reasonable
efforts to enforce such Building Rules in the event Tenant’s use of the
Premises is being materially interfered with by another tenants violation of
the Building Rules.


 


28.                               LANDLORD’S LIABILITY.  The term “Landlord,”
as used in this Lease, shall mean only the owner or owners of the Building at
the time in question.  In the event of
any conveyance of title to the Building, then from and after the date of such
conveyance, the transferor Landlord shall be relieved of all liability with
respect to Landlord’s obligations to be performed under this Lease after the
date of such conveyance provided that such transferee has assumed all of
Landlord’s obligations under this Lease arising from and after the effective
date of such transfer.  Notwithstanding
any other term or provision of this Lease, the liability of Landlord for its
obligations under this Lease is limited solely to Landlord’s interest in the
Building (including rents, profits, and proceeds from condemnation, casualty,
sale or refinancing of the Building) as the same may from time to time be
encumbered (i.e. Tenant’s claim to the foregoing shall be subordinate to the
interest of a Mortgagee), and no personal liability shall at any time be
asserted or enforceable against any other assets of Landlord or against
Landlord’s partners or members or its or their respective partners,
shareholders, members, directors, officers or managers on account of any of
Landlord’s obligations or actions under this Lease.


 


29.                               CONSENTS AND APPROVALS.


 


29.1                        Determination in Good Faith.  Wherever the consent,
approval, judgment or determination of Landlord is required or permitted under
this Lease, Landlord may exercise its good faith business judgment in granting
or withholding such consent or approval or in making such judgment or
determination without reference to any extrinsic standard of reasonableness,
unless the specific provision contained in this Lease providing for such
consent, approval, judgment or determination specifies that Landlord’s consent
or approval is not to be unreasonably withheld, or that such judgment or
determination is to be reasonable, or otherwise specifies the standards under
which Landlord may withhold its consent.


 


29.2                        No Liability Imposed on Landlord.  The review and/or approval by
Landlord of any item or matter to be reviewed or approved by Landlord under the
terms of this Lease or any Exhibits or Addenda hereto shall not impose upon
Landlord any liability for the accuracy or sufficiency of any such item or
matter or the quality or suitability of such item for its intended use.  


 


39





















 


Any such review or
approval is for the sole purpose of protecting Landlord’s interest in the
Property, and no third parties, including Tenant or the Representatives and
Visitors of Tenant or any person or entity claiming by, through or under
Tenant, shall have any rights as a consequence thereof.


 


30.                               BROKERS.  Landlord shall pay the
fee or commission of the broker or brokers identified in the Basic Lease
Information (the “Broker”) in
accordance with Landlord’s separate written agreement with the Broker, if
any.  Landlord and Tenant warrant and
represent to the other that in the negotiating or making of this Lease neither
it nor anyone acting on its behalf has dealt with any broker or finder who
might be entitled to a fee or commission for this Lease other than the
Broker.  Landlord and Tenant shall
indemnify and hold the other harmless from any claim or claims, including costs,
expenses and attorney’s fees incurred by the indemnified party asserted by any
other broker or finder for a fee or commission based upon any dealings with or
statements made by the indemnifying party or its representatives.


 


31.                               RELOCATION OF PREMISES. 
Intentionally omitted.


 


32.                               ENTIRE AGREEMENT.  This Lease,
including the Exhibits and any Addenda attached hereto, and the documents
referred to herein, if any, constitute the entire agreement between Landlord
and Tenant with respect to the leasing of space by Tenant in the Building, and
supersede all prior or contemporaneous agreements, understandings, proposals
and other representations by or between Landlord and Tenant, whether written or
oral, all of which are merged herein. 
Neither Landlord nor Landlord’s agents have made any representations or
warranties with respect to the Premises, the Building, the Project or this
Lease except as expressly set forth herein, and no rights, easements or
licenses shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein.  The
submission of this Lease for examination does not constitute an option for the
Premises and this Lease shall become effective as a binding agreement only upon
execution and delivery thereof by Landlord to Tenant.


 


33.                               MISCELLANEOUS.  This Lease may
not be amended or modified except by a writing signed by Landlord and
Tenant.  Subject to Section 14 - Assignment and Subletting and Section 28 - Landlord’s Liability, this Lease shall be binding on and
shall inure to the benefit of the parties and their respective successors,
assigns and legal representatives.  The
determination that any provisions hereof may be void, invalid, illegal or
unenforceable shall not impair any other provisions hereof and all such other
provisions of this Lease shall remain in full force and effect.  The unenforceability, invalidity or
illegality of any provision of this Lease under particular circumstances shall
not render unenforceable, invalid or illegal other provisions of this Lease, or
the same provisions under other circumstances. 
This Lease shall be construed and interpreted in accordance with the
laws (excluding conflict of laws principles) of the State in which the Building
is located.  The provisions of this Lease
shall be construed in accordance with the fair meaning of the language used and
shall not be strictly construed against either party, even if such party
drafted the provision in question.  When
required by the context of this Lease, the singular includes the plural.  Wherever the term “including” is used in this
Lease, it shall be interpreted as meaning “including, but not limited to” the
matter or matters thereafter enumerated. 
The captions contained in this Lease are for purposes of convenience
only and are not to be used to interpret or construe this Lease.  If more than one person or entity is
identified as Tenant hereunder, the obligations of each and all of them under
this Lease shall be joint and several. 
Time is of the essence with respect to this Lease, except as to the
conditions relating to the delivery of possession of the Premises to 


 


40





















 


Tenant.  Neither Landlord nor Tenant shall record this
Lease, provided that upon the request of either party, such party shall
promptly execute a recordable memorandum of lease. If a memorandum of lease is
executed and recorded, then promptly upon request by Landlord after termination
of this Lease, Tenant shall execute and deliver to Landlord a written
instrument in recordable form confirming the termination of this Lease and if
Tenant fails to do so within ten (10) days after written request by
Landlord and Tenant has not provided Landlord with written notice that Tenant
disputes the Lease has terminated, Landlord shall have authority to
unilaterally record an affidavit or other written instrument confirming the
termination of this Lease without releasing Tenant from its obligation to
provide the written termination.


 


34.                               AUTHORITY.  Tenant and Landlord
represent and warrant that each of the persons executing this Lease on their
behalf is a duly organized and validly existing entity, has full right and
authority to enter into this Lease and that the persons signing on their behalf
are authorized to do so and have the power to bind such party to this Lease.  Landlord and Tenant shall provide the other
upon request with evidence reasonably satisfactory confirming the foregoing
representations.


 


(remainder of page left intentionally blank — signatures follow on
next page)


 


41





















 


IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as
of the date first above written.


 


	
  TENANT:

  	
  LANDLORD:

  
	
  MOCON, INC.,

  a Minnesota corporation

  	
  MINNESOTA
  INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP,

  
	
   

  	
  a Minnesota
  limited partnership

  
	
  By:

  	
  /s/ Darrell
  B. Lee

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Darrell B. Lee

  	
  By: Minnesota
  Industrial Portfolio, LLC

  
	
   

  	
  Title:

  	
  V.P. &
  CFO

  	
  Its: General
  Partner

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  March 3,
  2010

  	
  By:

  	
  /s/
  M.L. Wedin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  M.L. Wedin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
  March 9,
  2010

  
							



 


42





















 


EXHIBIT A


 


ATTACHED TO AND
FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9,
2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS
TENANT (“LEASE”)


 


THE PREMISES


 





 


1





















 


EXHIBIT B


 


ATTACHED TO AND
FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9,
2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS
TENANT (“LEASE”)


 


CONSTRUCTION RIDER


 


1.                                      Tenant Improvements. 
Landlord shall with reasonable diligence through a contractor designated
by Landlord (which contractor may be an affiliate of Landlord) construct and
install in the Premises the improvements and fixtures pursuant to the Final
Construction Documents (defined herein) (“Tenant Improvements”),
at Tenant’s expense, subject to the Allowance provided by Landlord herein.
Notwithstanding the foregoing, Landlord shall pay the cost to construct the
demising wall and separate the utilities (electricity and gas) at its sole
cost, which amount shall not be applied against the Allowance provided by
Landlord.  The Final Construction
Documents are subject to Landlord’s prior reasonable approval.  Upon request by Landlord, Tenant shall
designate in writing an individual authorized to act as Tenant’s Representative
with respect to all approvals, directions and authorizations pursuant to this
Construction Rider.


 


1.1.                            Plans.  The Tenant
Improvements shall be constructed substantially as shown in the final
construction documents prepared by DE Design dated February 12, 2010,
subject to revisions required by the City of Brooklyn Park, MN (“City”), if any
(the “Final Construction Documents”).  Landlord has provided Tenant with a bid for
the work shown in the Final Construction Documents, a copy of which is attached
hereto as Exhibit B-1 (“Final Cost Estimate”).


 


1.2.                            Construction. 
Landlord shall proceed with reasonable diligence to cause the Tenant
Improvements to be Substantially Completed on or prior to June 1, 2010 the
Scheduled Commencement Date.  The Tenant
Improvements shall be deemed to be “Substantially Completed”
when they have been completed in accordance with the Final Construction
Documents except for finishing details, minor omissions, decorations and
mechanical adjustments of the type normally found on an architectural or
construction “punch list” which do not materially interfere with Tenant’s
installation of its trade fixtures and equipment and operation of its business
therein.  (The definition of
Substantially Completed shall also define the terms “Substantial
Completion” and “Substantially Complete.”)


 


Following Substantial
Completion of the Tenant Improvements and before Tenant takes possession of the
Premises (or as soon thereafter as may be reasonably practicable and in any
event within thirty (30) days after Substantial Completion), Landlord and
Tenant shall inspect the Premises and jointly prepare a “punch list” of agreed
items of construction remaining to be completed.  Landlord shall complete the items set forth
in the punch list as soon as reasonably 


 


1





















 


possible.  Tenant shall cooperate with and accommodate
Landlord and Landlord’s contractor in completing the items on the punch list.


 


1.3.                            Cost of Tenant Improvements. 
Landlord shall contribute up to Seven Hundred Twenty-Five Thousand and
no/100 Dollars ($725,000.00)  (the “Allowance”) toward the cost of the design (including
preparation of space plans and Construction Documents), construction and
installation of the Tenant Improvements (including without limitation, usual
markups for overhead, supervision and profit which shall be included in the
Final Cost Estimate), but excluding any of the costs related to the Exercise Room as
shown on such plans which shall be paid by Tenant.  Landlord shall provide an
additional Seventy-six Thousand Nine Hundred Twenty-five and 00/100 Dollars
($76,925.00) (the “Additional Contribution”)
toward the Tenant Improvements or other hard cost of constructing any other fixture or
leasehold improvements made by Tenant to the Premises prior to the Commencement
Date; provided, however the amount of the Additional Contribution, if any,
shall be amortized over the initial one hundred eighty (180) months of the Term
at an interest rate of ten and 00/100 percent (10.0%) per annum and added to
the Base Rent due and payable monthly pursuant to this Lease.  The balance, if any, of the cost of the Tenant
Improvements as set forth in the Final Cost Estimate over and above
the Allowance and Additional Contribution (“Additional Cost”)
shall be paid by Tenant.  Tenant shall
pay Landlord fifty percent (50%) of the Additional Cost based upon the Final
Cost Estimate prior to the commencement of construction of the Tenant
Improvements.  The balance of the actual
Additional Cost shall be paid to Landlord upon Substantial Completion of the
Tenant Improvements and full completion of the punch list items, within thirty
(30) days after receipt of Landlord’s invoice therefor.  Landlord will use reasonable care in
preparing the cost estimates, and Tenant shall have no obligation, other than
for Changes set forth below and any City required changes, additions or
alterations in or to the Final Construction Documents that increases the cost
of the Tenant Improvements, to pay any additional costs of the Tenant
Improvements over the approved Final Cost Estimate less the Allowance and
Additional Contribution.  
Notwithstanding the foregoing, in the event the full Seven Hundred Twenty-Five
Thousand and no/100 Dollars ($725,000.00) of the Allowance is not used by
Tenant as provided above, then up to Seventy-Two Thousand Five Hundred and
no/100 Dollars ($72,500.00) of the unused balance may be used by Tenant for the
Additional Cost and the hard cost of constructing any other fixture or
leasehold improvements made by Tenant to the Premises prior to the Commencement
Date; provided, however, Tenant must request the right to utilize such portion
of the unused balance by written notice delivered to Landlord within ninety
(90) days after Landlord achieves Substantial Completion of the Tenant
Improvements.  Upon Substantial
Completion of the Tenant Improvements, the parties shall promptly execute an addendum
to this Lease in form prepared by Landlord’s counsel confirming the date of
Substantial Completion, the Commencement Date, the Termination Date, the amount
of the Additional Contribution, if any, and any increase in the Base Rent based
on the amortization of the Additional Contribution, if any.


 


1.4.                            Changes.  If Tenant
requests any change, addition or alteration in or to the Final Construction
Documents (“Changes”) Landlord shall cause
Ryan to prepare additional Plans implementing such Change.  Tenant shall pay the cost of preparing additional
Plans, which charge may be paid from the Allowance or shall otherwise be
reimbursed to Landlord within thirty (30) days after receipt of Landlord’s
invoice therefor.  As soon as practicable
after the completion of such additional Construction Documents, Landlord shall
notify Tenant of the estimated cost of the Changes.  Within three (3) business days after
receipt of such cost estimate, 


 


2





















 


Tenant shall notify
Landlord in writing whether Tenant approves the Change.  If Tenant approves the Change, Landlord shall
proceed with the Change and Tenant shall be liable for any Additional Cost
resulting from the Change.  If Tenant
fails to approve the Change within such three (3) business day period,
construction of the Tenant Improvements shall proceed as provided in accordance
with the original Construction Documents.


 


1.5.                            Delays.  Tenant shall
be responsible for, and shall pay to Landlord, any and all out of pocket costs
and expenses incurred by Landlord in connection with any delay in the
commencement or completion of any Tenant Improvements and any increase in the
cost of Tenant Improvements caused by (i) Tenant’s failure to submit
information to Ryan or approve any plans, drawing, specifications, or Construction
Documents or cost estimates within the time periods required herein, (ii) any
delays in obtaining any items or materials constituting part of the Tenant
Improvements requested by Tenant with long lead times, provided Landlord has
advised Tenant of the long lead item and Tenant would not accept a reasonably
equivalent substitution therefor, (iii) any Changes, or (iv) any
other delay requested or caused by Tenant (collectively, “Tenant
Delays”).


 


2.                                      Delivery of Premises. 
Upon Substantial Completion of the Tenant Improvements, Landlord shall
deliver possession of the Premises to Tenant. 
If Landlord has not Substantially Completed the Tenant Improvements and
tendered possession of the Premises to Tenant on or before the Scheduled
Commencement Date, or if Landlord is unable for any other reason to deliver
possession of the Premises to Tenant on or before such date, neither Landlord
nor its representatives shall be liable to Tenant for any damage resulting from
the delay in completing such construction obligations and/or delivering
possession to Tenant and the Lease shall remain in full force and effect unless
and until it is terminated under the express provisions of this Paragraph.  If any delays in Substantially Completing the
Tenant Improvements are attributable to Tenant Delays, then the Premises shall
be deemed to have been Substantially Completed and delivered to Tenant on the
date on which Landlord could have Substantially Completed the Premises and
tendered the Premises to Tenant but for such Tenant Delays.


 


3.                                      Early Access to Premises. 
Subject to the terms of this Lease (except payment of Base Rent and
Additional Rent), when Landlord has completed construction to a point where
Landlord reasonably believes Tenant may occupy the Premises to commence installation
of its data and communications cabling/wiring and installation of its trade
fixtures and equipment and otherwise ready the Premises for Tenant’s occupancy
(“Permitted Work”) without interfering with the completion of the Tenant
Improvements by Landlord or its contractor, Landlord shall allow Tenant and
Tenant’s Representatives to enter the Premises prior to the Commencement Date
to perform the Permitted Work; provided, however, that prior to such entry of
the Premises, Tenant shall provide evidence reasonably satisfactory to Landlord
that Tenant’s insurance, as described in Section 11.1 - Tenant’s Insurance of the Lease, shall be in effect as of
the time of such entry.  Such permission
may be revoked at any time upon reasonable cause upon twenty-four (24) hours’
notice, and Tenant and its Representatives shall not interfere with Landlord or
Landlord’s contractor in completing the Building or the Tenant Improvements.


 


Tenant agrees that
Landlord shall not be liable in any way for any injury, loss or damage which
may occur to any of Tenant’s property placed upon or installed in the Premises
prior to the Commencement Date, the same being at Tenant’s sole risk, and
Tenant shall be liable for all 


 


3





















 


injury, loss or damage to
persons or property arising as a result of such entry into the Premises by
Tenant or its Representatives.


 


4.                                      Ownership of Tenant Improvements. 
All Tenant Improvements, whether installed by Landlord or Tenant, shall
become a part of the Premises, shall be the property of Landlord and, subject
to the provisions of the Lease, shall be surrendered by Tenant with the
Premises, without any compensation to Tenant, at the expiration or termination
of the Lease in accordance with the provisions of the Lease.


 


4





















 


EXHIBIT B-1


 


ATTACHED TO AND
FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9,
2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS
TENANT (“LEASE”)


 


FINAL COST
ESTIMATE


 


(see attached 5
pages)


 


1


















 





 


February 22th, 2010 [revised lease 2.24.10]


 


Mr. Adam Warden


Ryan Companies US, INC.


50 South Tenth Street, Suite 300


Minneapolis, MN 55403-2012


 


RE: Mocon @ Northland IV.


 


Dear Mr. Warden,


 


In accordance with the documents issued by DE Design
including Bulletin #1, #2 & #3, we propose to complete the work as shown
for the sum of:


 


	
  Final Clean

  	
   

  	
  $

  	
  8,500

  	
   

  
	
  Site Demo  [Exterior Wall] - not in scope

  	
   

  	
  omitted

  	
   

  
	
  Site Demo
  [Exterior Trellis, incl spring EFIS patch & Repaint] - not in scope

  	
   

  	
  omitted

  	
   

  
	
  New Exterior
  Exit Door [cut, patch & Alum Door to match]

  	
   

  	
  in below

  	
   

  
	
  Interior
  Demolition

  	
   

  	
  $

  	
  22,705

  	
   

  
	
  Site Excavation

  	
   

  	
  $

  	
  8,000

  	
   

  
	
  Exterior Stoop @
  Sidewalk at Front Entry

  	
   

  	
  $

  	
  6,500

  	
   

  
	
  Landscaping
  Repairs @ new front entry and Prax-Air Pad

  	
   

  	
  $

  	
  1,000

  	
   

  
	
  Interior Fence @
  Loading Docks - by tenant

  	
   

  	
  omitted

  	
   

  
	
  Add for Overhead
  Door Demo

  	
   

  	
  $

  	
  480

  	
   

  
	
  Dock Leveler
  Infill with sand and concrete

  	
   

  	
  $

  	
  2,000

  	
   

  
	
  Add Steel Stair,
  Painted at Removed Dock Door

  	
   

  	
  $

  	
  7,500

  	
   

  
	
  Millwork

  	
   

  	
  $

  	
  12,450

  	
   

  
	
  Carpentry
  [Millwork , D/F/H Install, Rough & Finish Included]

  	
   

  	
  $

  	
  24,690

  	
   

  
	
  Doors, Frames
  & Hardware [Reuse to greatest extent possible, no touch-up of reused]

  	
   

  	
  $

  	
  19,585

  	
   

  
	
  Glass &
  Glazing - omitted sidelights at offices

  	
   

  	
  $

  	
  4,500

  	
   

  
	
  Aluminum @
  Glazing at overhead door

  	
   

  	
  $

  	
  3,500

  	
   

  



 


	
  GREINER
  CONSTRUCTION

  	
   

  	
  PHONE

  	
   

  	
  FAX

  
	
  Northstar
  Center West, 625 Marquette Avenue, Suite 640, Minneapolis, MN 55402

  	
   

  	
  612.338.1696

  	
   

  	
  612.338.1892

  



 


2

















 


	
  Drywall

  	
   

  	
  $

  	
  90.500

  	
   

  
	
  Infill windows
  looking into labs

  	
   

  	
  NA

  	
   

  
	
  Add Insulation
  at offices

  	
   

  	
  $

  	
  4,000

  	
   

  
	
  New Tenant
  Demising Wall

  	
   

  	
  by Alt

  	
   

  
	
  Top-off Existing
  Wall at Offices to be demising wall

  	
   

  	
  by Alt

  	
   

  
	
  Tape & Sand Finishes on Backside of
  Demising Wall

  	
   

  	
  $

  	
  by alt

  	
   

  
	
  Ceramic Tile
  [includes ceramic floor not indicated on plans]

  	
   

  	
  $

  	
  9,000

  	
   

  
	
  Acoustic
  Ceilings [patch existing, new in all labs & training]

  	
   

  	
  $

  	
  23,000

  	
   

  
	
  EFIS In-fills at
  Removed Louvers

  	
   

  	
  $

  	
  1,500

  	
   

  
	
  Painting
  [offices]

  	
   

  	
  $

  	
  37,186

  	
   

  
	
  Painting [new
  walls in manufacturing]

  	
   

  	
  in above

  	
   

  
	
  Flooring [new
  carpet throughout office area, VCT in labs]

  	
   

  	
  $

  	
  90,000

  	
   

  
	
  Floor patch and
  leveling

  	
   

  	
  $

  	
  4,000

  	
   

  
	
  Toilet
  Accessories & Partitions

  	
   

  	
  $

  	
  2,600

  	
   

  
	
  [5] Projection
  Screens

  	
   

  	
  Omitted

  	
   

  
	
  Fire Protection

  	
   

  	
  $

  	
  13,200

  	
   

  
	
  Plumbing

  	
   

  	
  $

  	
  46,000

  	
   

  
	
  Med-Gas 6 Air
  Piping [Terminating B’ AFF]

  	
   

  	
  $

  	
  65,000

  	
   

  
	
  HVAC [only
  additional equipment are [2] exhaust fans at restrooms & [1] transfer fan
  @ Server]

  	
   

  	
  $

  	
  68,900

  	
   

  
	
  Separate Gas
  Meter [Separation of MOCON space ONLY]

  	
   

  	
  by Alt

  	
   

  
	
  Electrical

  	
   

  	
  $

  	
  110,000

  	
   

  
	
  Electrical [cost
  to separate Mocon only from the existing utilities]

  	
   

  	
  by Alt

  	
   

  
	
  Fire Alarm Rework [Allowance]

  	
   

  	
  $

  	
  4,000

  	
   

  
	
  General
  Conditions

  	
   

  	
  $

  	
  44,329

  	
   

  
	
  Permit Fee

  	
   

  	
  $

  	
  10,400

  	
   

  
	
  Fee

  	
   

  	
  $

  	
  38,800

  	
   

  
	
  Subtotal

  	
   

  	
  $

  	
  783,825

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Alternates agree
  to at the 2-24.10 meeting

  	
   

  	
   

  	
   

  
	
  Supply
  non-structural lid at compressor room

  	
   

  	
  Add: $1,200

  	
   

  
	
  Deduct to go to
  $18yd [material] carpet squares

  	
   

  	
  Deduct: $12,000

  	
   

  
	
  Provide
  Excavation, Concrete, Fencing and Paint for “Prax-Air”

  	
   

  	
  Add: $18,500

  	
   

  
	
  Add Trash
  Enclosure [allow. Block & Conc. $8k, Excavation $4k, Gate $2k, Steel $3k]

  	
   

  	
  Add: $17,000

  	
   

  
	
  VE design
  lighting to meet “office” lighting standard foot-candles

  	
   

  	
  Deduct: $6,600

  	
   

  
	
  Alternates
  Subtotal

  	
   

  	
  Net: $18,100

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Of Tenant Expenses

  	
   

  	
  $

  	
  801,925.00

  	
   

  



 


3

















 


	
  Owner paid
  items:

  	
   

  	
   

  	
   

  
	
  Build new
  demising wall -

  	
   

  	
  Add: $6,500.00

  	
   

  
	
  Top off existing
  demising wall at offices

  	
   

  	
  Add: $4,000.00

  	
   

  
	
  Separate Gas for
  Mocon from remaining building

  	
   

  	
  Add: $3,000.00

  	
   

  
	
  Rock &
  Insulate Non-Tenant Side of Demising Wall [No Taping or paint included]

  	
   

  	
  Add: $8,000.00

  	
   

  
	
  Separate
  Electrical from remainder of building

  	
   

  	
  Add: $40,160.00

  	
   

  
	
  Demo existing
  low voltage cabling only

  	
   

  	
  Add: $7,400

  	
   

  
	
  Total of Owner
  Paid Items

  	
   

  	
  $

  	
  69,060.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total of All Project Commitments

  	
   

  	
  $

  	
  870,985.00

  	
   

  



 


Voluntary Alt See
list above:


 


	
  Add [2] auto-door openers at existing main entry
  doors

  	
   

  	
  Add: $5,000.00

  
	
  Paint all existing warehouse walls

  	
   

  	
  Add: $3,600.00

  
	
  Restain existing doors that are reused

  	
   

  	
  Add: $60 ea - TBO

  
	
  Provide Med Gas 31 terminations at each various
  bench locations

  	
   

  	
  Add: $22,000

  
	
  Add to our proposal $1,000 per day liquidated
  damages past June 1st

  	
   

  	
  Add: $25,000

  
	
  Server room [Add 2-ton ductless in lieu of exhaust
  fan]

  	
   

  	
  Add: $8,600

  
	
  Install New Appliances only. Supply by others. Does
  not include Vending

  	
   

  	
  Add: $1,200

  
	
  Add for Two card reader locations [each additional
  $1,500]

  	
   

  	
  Add: $8,000

  
	
  Retape yellow outline on floor around electrical
  panels

  	
   

  	
  Add: $300

  



 


Clarifications:


All work is to be completed during
normal working hours.


Does not include any sinks, drains or water not shown


Does not include connection or power to relocated equip.
unless specifically indicated on plans.


Does not include SAC/WAC costs


Ceillings Std 2’x 4’ grid with USG #2310 or Armstrong
Fine Fissured 1729 at lab spaces


Excludes repair to existing mechanical and electric systems


Pricing is based on current drawings issued to ALL
bidders. Pricing does not include any prior information whether known or
unknown, if not included on plans or bulletins.


Pricing does not include Prax-Air products, connections,
wiring, alarms, piping of any kind.


We do not include Voice Data, Security or low voltage wiring
other then “ring and Strings"


We do include revisions to the fire
alarm system [by allowance in
bid]. Overages in budget due to City  and/or
Ryan Companies requirements will result in additional charges.


 


4

















 


Meter separation design will need to be approved by Xcel
Energy.


Removal of existing Data Cabling is added by alternate


Removal, repairs and or reuse of security, card readers or
speaker system is not included


Change Order Mark-up to be 5% OH&P and
8% General Conditions


We exclude the supply and installation of eye wash stations.
Code is based on materials and location information with which we were not
provided.


We do not include soil corrections for exterior site
conditions


We do not include and sheeting, shoring or underpinning for
exterior excavations to preserve existing conditions.


The building power will be interrupted during the meter work. We have
not included costs, such as a generator to keep the current tenant powered. 


Does not include power, backing, wall cutting or patching
for A/V vendor work. Other than Bulletin #1


 


Base Bid: Gas  and Compressed Air requirements  Per D/E
Design Bulletin #2


 


	
  Test Lab

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 5

  
	
  N2

  	
   

  	
  Qty 4

  



 


	
  Engineering Lab

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 3

  
	
  Air Drops

  	
   

  	
  Qty 3

  



 


	
  Film Lab

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 1

  



 


	
  Manufacturing Lab

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 2

  
	
  Air Drops

  	
   

  	
  Qty 1

  



 


	
  Demo Lab

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 1

  
	
  Air Drops

  	
   

  	
  Qty 1

  



 


	
  Assembly WHSE

  	
   

  	
   

  
	
  Air Drops

  	
   

  	
  Qty 6

  
	
  N2 Drops

  	
   

  	
  Qty 1

  



 


	
  Test Area

  	
   

  	
   

  
	
  Gas Drops

  	
   

  	
  Qty 20

  
	
  Air Drops

  	
   

  	
  Qty 6

  



 


5

















 


Base Bid
Electrical Scope


 


·Electrical
permit


·General
demo as required including removal of equipment per note 7


·Relocate


212
2x4 fixtures


7-Exits


1-Electrical panel in office area 


·Furnish
and install


202-2x4
fixtures


7-Exits


52-Single
pole switches


200-Duplex
receptacles


5-Ceiling
receptacles for projectors


13-GFI
receptacles


12-Power
pole base feeds for office furniture


5-Floorboxes
for conference rooms


50-Phone/Data
openings


8-Cord
drops with duplex receptacles


33-Cord drops with 4plex receptacles 


·Wire
and connect 4-ovens


 


 


Thank you for the
opportunity to provide you with the proposal. If you have any questions or
comments, please feel free to call.


 


	
  Sincerely,

  	
   

  
	
   

  	
   

  
	
  /s/ Kory Carlston

  	
   

  
	
  Kory Carlston LEED AP

  	
   

  
	
  Project Manager

  	
   

  



 


6














 


EXHIBIT C


 


ATTACHED TO AND
FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9,
2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS
TENANT (“LEASE”)


 


BUILDING RULES


 


The following Building Rules are
additional provisions of the foregoing Lease to which they are attached.  The capitalized terms used herein have the
same meanings as these terms are given in the Lease.


 


1.                                      Use of Common Areas. 
Tenant will not obstruct the sidewalks, exits, or entrances of the Building
or the other Common Areas of the Project, and Tenant will not use the Common
Areas for any purpose other than ingress and egress to and from the Premises or
such other intended uses of the Common Areas. 
Landlord reserves the right to control and prevent access to the Common
Areas of any person whose presence, in Landlord’s reasonable opinion, would be
prejudicial to the safety, reputation and interests of the Building and its
tenants, provided such person is not an employee, agent or visitor of Tenant
and under Tenant’s reasonable control.


 


2.                                      No Access to Roof. 
Tenant has no right of access to the roof of the Building and will not
install, repair or replace any antenna, aerial, aerial wires, fan,
air-conditioner or other device on the roof of the Building, without the prior
written consent of Landlord.  Any such
device installed without such written consent is subject to removal at Tenant’s
expense without notice at any time.  In
any event Tenant will be liable for any damages or repairs incurred or required
as a result of its installation, use, repair, maintenance or removal of such
devices on the roof and agrees to indemnify and hold harmless Landlord from any
liability, loss, damage, cost or expense, including reasonable attorneys’ fees,
arising from any activities of Tenant or of Tenant’s Representatives on the
roof of the Building, as required pursuant to the indemnification provisions of
the Lease.


 


3.                                      Signage.  No sign,
placard, picture, name, advertisement or notice visible from the exterior of
the Premises will be inscribed, painted, affixed or otherwise displayed by
Tenant on or in any part of the Building without the prior written consent of
Landlord.  Landlord reserves the right to
adopt and furnish Tenant with general guidelines relating to signs in or on the
Building.  All approved signage will be
inscribed, painted or affixed at Tenant’s expense by a person approved by
Landlord, which approval will not be unreasonably withheld.


 


4.                                      Prohibited Uses. 
The Premises will not be used for lodging or for the sale of goods to
the general public.  Tenant will not
permit any food preparation on the Premises except that Tenant may use
Underwriters’ Laboratory approved equipment for brewing coffee, tea, hot 


 


1

















 


chocolate and similar
beverages and heating food so long as such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations.


 


5.                                      Keys and Locks. 
Landlord will furnish Tenant, free of charge, two keys to each door or
lock in the Premises.  Landlord may make
a reasonable charge for any additional or replacement keys.  Tenant will not duplicate any keys, alter any
locks or install any new or additional lock or bolt on any door of its Premises
or on any other part of the Building without the prior written consent of
Landlord and, in any event, Tenant will provide Landlord with a key for any
such lock.  On the termination of the
Lease, Tenant will deliver to Landlord all keys to any locks or doors in the
Building which have been obtained by Tenant.


 


6.                                      Nuisances and Dangerous Substances. 
Tenant will not conduct itself or permit Tenant’s Representatives or
Visitors to conduct themselves, in the Premises or anywhere on or in the
Property in a manner which is unreasonably offensive or unduly annoying to any
other tenant or Landlord’s property managers. 
Tenant will not install or operate any phonograph, radio receiver,
musical instrument, or television or other similar device in any part of the
Common Areas and shall not operate any such device installed in the Premises in
such manner as to unreasonably disturb or annoy other tenants of the
Building.  Except as otherwise permitted
under the Lease, Tenant will not use or keep in the Premises or the Property
any kerosene, gasoline or other combustible fluid or material other than
limited quantities thereof reasonably necessary for the maintenance of office
equipment, or, without Landlord’s prior written approval, use any method of
heating or air conditioning other than that supplied by Landlord.  Tenant will not permit or suffer the Premises
to be occupied or used in a manner which would reasonably be offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors or vibrations, or interfere in any way with other tenants or those
having business therein.  Tenant will not
bring or keep any animals, except Service Animals, in or about the Premises or
the Property.


 


7.                                      Building Name and Address. 
Without Landlord’s prior written consent, Tenant will not use the name
of the Building in connection with or in promoting or advertising Tenant’s
business except as Tenant’s address.


 


8.                                      Window Coverings. 
Other than interior window blinds, no curtains, draperies, shutters,
shades, awnings, screens or other coverings, window ventilators, hangings,
decorations or similar equipment shall be attached to, hung or placed in, or
used in or with any window of the Building without the prior written consent of
Landlord.


 


9.                                      Floor Coverings. 
Tenant will not lay or otherwise affix linoleum, tile, carpet or any
other floor covering to the floor of the Premises in any manner except as
approved in writing by Landlord.  Tenant
will be liable for the cost of repair of any damage resulting from the violation
of this rule or the removal of any floor covering by Tenant or its
contractors, employees or invitees.


 


10.                               Wiring and Cabling Installations. 
Landlord will direct Tenant’s electricians and other vendors as to where
and how data, telephone, and electrical wires and cables are to be
installed.  No boring or cutting for
wires or cables will be allowed without the prior written consent of Landlord,
not to be unreasonably withheld, conditioned or delayed.  The location of burglar alarms, smoke
detectors, telephones, call boxes and other office equipment affixed to the 


 


2

















 


Premises shall be subject
to the written approval of Landlord, not to be unreasonably withheld,
conditioned or delayed.


 


11.                               Plumbing Facilities. 
The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be disposed of therein.  Tenant will be liable for any breakage, stoppage or
damage resulting from the violation of this rule by Tenant, its employees
or invitees.


 


12.                               Refuse.  Except as
otherwise permitted in the Lease, Tenant shall store all Tenant’s trash and
garbage within the Premises or in other facilities designated by Landlord for
such purpose.  Tenant shall not place in
any trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and garbage in
the city in which the Building is located without being in violation of any law
or ordinance governing such disposal. 
All trash and garbage removal shall be made in accordance with
directions issued from time to time by Landlord, only through such Common Areas
provided for such purposes and at such times as Landlord may designate.  Tenant shall comply with the requirements of
any recycling program adopted by Landlord for the Building. Except as otherwise
permitted in the Lease, Tenant understands and acknowledges that its trash bins
cannot currently be located or housed outside the Building and Tenant must keep
them in its Premises until collection by Tenant’s refuse/recycling vendor.


 


13.                               Soliciting.  Canvassing,
peddling, soliciting and distribution of handbills or any other written
materials in the Building are prohibited, and Tenant will cooperate to prevent
the same.


 


14.                               Parking.  Tenant will
use, and cause Tenant’s Representatives and Visitors to use, any parking spaces
to which Tenant is entitled under the Lease in a manner consistent with
Landlord’s directional signs and markings in the Parking Facility.  Specifically, but without limitation, Tenant
will not park, or permit Tenant’s Representatives or Visitors to park, in a
manner that impedes access to and from the Building or the Parking Facility or
that violates space reservations for handicapped drivers registered as
such.  Landlord may use such reasonable
means as may be necessary to enforce the directional signs and markings in the
Parking Facility, including but not limited to towing services, and Landlord
will not be liable for any damage to vehicles towed as a result of
non-compliance with such parking regulations.


 


15.                               Fire, Security and Safety Regulations. 
Tenant will comply with all safety, security, fire protection and
evacuation measures and procedures reasonably established by Landlord or any
governmental agency.


 


16.                               Responsibility for Theft. 
Tenant assumes any and all responsibility for protecting the Premises
from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.


 


17.                               Sales and Auctions. 
Tenant will not conduct or permit to be conducted any sale by auction
in, upon or from the Premises or elsewhere in the Property, whether said
auction be voluntary, involuntary, pursuant to any assignment for the payment
of creditors or pursuant to any bankruptcy or other insolvency proceeding.


 


3

















 


18.                               Waiver of Rules. 
Landlord may waive any one or more of these Building Rules for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
will be construed as a waiver of such Building Rules in favor of any other
tenant or tenants nor prevent Landlord from thereafter enforcing these Building
Rules against any or all of the tenants of the Building.


 


19.                               Effect on Lease. 
These Building Rules are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of the Lease. 
Violation of these Building Rules constitutes a failure to fully
perform the provisions of the Lease, as referred to in Section 15.1 - “Events of Default”.


 


20.                               Intentionally deleted.


 


21.                               Additional and Amended Rules. 
Landlord reserves the right to rescind or amend these Building Rules and/or
adopt any other and reasonable non-discriminating rules and regulations as
in its judgment may from time to time be needed for the safety, care and
cleanliness of the Building and for the preservation of good order therein.


 


4

















 


EXHIBIT D


 


ATTACHED TO AND FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9, 2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS TENANT (“LEASE”)


 


ADDITIONAL PROVISIONS RIDER


 


35.                               EXTENSION OF TERM.  Landlord
grants to Tenant the option to extend the Initial Term of this Lease (“Extension Option”) for one (1) additional period of
five (5) years (“Extension Term”),
subject to and upon the following conditions:


 


35.1                        The Extension Term will commence as of the expiration of the Initial
Term of this Lease.


 


35.2                        Tenant will give irrevocable written notice of exercise to Landlord not
less than one hundred eighty (180) days and not more than three hundred sixty
five (365) days prior to the commencement of the Extension Term, time being of
the essence.


 


35.3                        The Extension Term will be upon all of the terms and conditions of this
Lease, except that Base Rent will be equal to the Market Rate for the Extension
Term and the Premises will be leased to Tenant in its “as-is” condition and the
terms of Exhibit B shall not apply. The determination of the Market
Rate will be made in accordance with the terms of Section 3.1(a) of
this Lease.


 


35.4                        No Event of Default beyond any applicable notice and cure period shall
be in existence at either the time of exercise or at any time prior to
commencement of the Extension Term.


 


36.                               PERMITTED TRASH ENCLOSURE. Notwithstanding anything in the Lease to the
contrary, Tenant may, at its sole cost and expense, subject to approval by the
City and applicable Laws, maintain up to two (2) trash dumpsters in the
rear exterior area of the Building immediately adjacent to the loading dock
area of the Premises. To the extent the City or applicable Laws require that
the dumpsters be housed or stored within an enclosure or be screened in some
other manner, Tenant shall, at its sole cost and expense (except as otherwise
provided in the final sentence of this Section 36), construct, install,
maintain, and repair such trash enclosure and/or screening in compliance with
applicable Laws. Prior to obtaining City approval and prior to construction and
installation of such enclosure or screening, Tenant shall obtain the prior
written consent of Landlord, not to be unreasonably withheld, conditioned or
delayed, of Tenant’s detailed plans and specifications for such enclosure
and/or screening, upon approval by.  The
area where Tenant’s dumpsters and permitted trash enclosure is located shall be
treated the same as 


 


1

















 


the Premises for all purposes under this Lease, provided that Tenant
shall be responsible for all maintenance, repair, restoration and insurance
obligations pertaining to same. Upon expiration or earlier termination of this
Lease, Tenant shall remove its dumpsters and the permitted trash enclosure and
restore the area where same were located to substantially the same condition
that existed on the date of this Lease, reasonable wear and tear excepted.
Notwithstanding the foregoing to the contrary, Tenant may include the hard
costs of constructing the permitted trash enclosure in the Additional
Contribution (defined in Exhibit B of this Lease).


 


2














 


EXHIBIT E


 


ATTACHED TO AND
FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9,
2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS
TENANT (“LEASE”)


 


Tenant’s Hazardous
Materials List


 


Hazardous
Materials Inventory Statement


 


	
  Tenant:

  	
  Mocon

  
	
  Building:

  	
  Northland IV

  
	
  Address:

  	
  9300 75th Avenue

  
	
   

  	
  Brooklyn Park, MN 55428

  



 


	
  Hazard Classification

  	
   

  	
  Chemical

  Common / Trade Name

  	
   

  	
  Chemical
  Abstract

  Service No. (CAS)

  	
   

  	
  Physical
  State

  	
   

  	
  Quantity

  Stored

  	
   

  	
  In-Use

  (open)

  	
   

  	
  In-Use

  (closed)

  	
   

  	
  Total Quantity

  of Product

  	
   

  	
  Comments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Flammable Liquids:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class I-A

  	
   

  	
  Auto Fuel (gasoline)

  	
   

  	
  86290-81 -5

  	
   

  	
  liquid

  	
   

  	
  1.0 gallons

  	
   

  	
  1.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class I-B

  	
   

  	
  Methanol

  	
   

  	
  67-56-1

  	
   

  	
  liquid

  	
   

  	
  15.0 gallons

  	
   

  	
  5.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class I-B

  	
   

  	
  Acetone

  	
   

  	
  67-64-1

  	
   

  	
  liquid

  	
   

  	
  5.0 gallons

  	
   

  	
  5.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class I-B

  	
   

  	
  Isopropyl Alcohol

  	
   

  	
  67-63-0

  	
   

  	
  liquid

  	
   

  	
  5.0 gallons

  	
   

  	
  5.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class I-C

  	
   

  	
  none

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total Flammable Liquids:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  26 gallons

  	
   

  	
  16 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Combustible liquids:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class II

  	
   

  	
  none

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class III-A

  	
   

  	
  none

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class III-B

  	
   

  	
  Motor Oil

  	
   

  	
  64742650

  	
   

  	
  liquid

  	
   

  	
  5.0 gallons

  	
   

  	
  5.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class III-B

  	
   

  	
  Propylene Glycol

  	
   

  	
  57-55-6

  	
   

  	
  liquid

  	
   

  	
  55.0 gallons

  	
   

  	
  5.0 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total Combustible Liquids:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  60
  gallons

  	
   

  	
  10
  gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Health Hazards:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Carcinogen

  	
   

  	
  Solder with Lead

  	
   

  	
  7439-92-1

  	
   

  	
  solid

  	
   

  	
  2.0 lbs.

  	
   

  	
  2.0 lbs.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Carcinogen

  	
   

  	
  Cadmium Impreg. Nickel

  	
   

  	
  7440-43-9

  	
   

  	
  solid

  	
   

  	
  100 lbs.

  	
   

  	
  100 lbs.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Corrosive

  	
   

  	
  Potassium Hydroxide
  Solution

  	
   

  	
  1310-58-3

  	
   

  	
  liquid

  	
   

  	
  30 gallons

  	
   

  	
  5 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  17% solution

  	
   

  
	
  Corrosive

  	
   

  	
  Ammonium Hydroxide

  	
   

  	
  1336-21-6

  	
   

  	
  liquid

  	
   

  	
  1.0 gallon

  	
   

  	
  1.0 gallon

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total Corrosives:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  31 gallons

  	
   

  	
  6 gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Highly Toxic

  	
   

  	
  Mercury (thermometers)

  	
   

  	
  7439-97-6

  	
   

  	
  liquid

  	
   

  	
  0.1 lbs.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toxic

  	
   

  	
  Cadmium Impregnated
  Nickel sheet, containing:

  	
   

  	
  solid

  	
   

  	
  100 lbs

  	
   

  	
  100 lbs

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -
  cadmium

  	
   

  	
  7440-43-9

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -
  nickel

  	
   

  	
  7440-02-0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


	
  Hazard Classification

  	
   

  	
  Chemical

  Common / Trade Name

  	
   

  	
  Chemical
  Abstract

  Service No. (CAS)

  	
   

  	
  Physical
  State

  	
   

  	
  Quantity

  Stored

  	
   

  	
  In-Use

  (open)

  	
   

  	
  In-Use

  (closed)

  	
   

  	
  Total Quantity

  of Product

  	
   

  	
  Comments

  	
   

  
	
  Irritants

  	
   

  	
  Propylene
  Glycol

  	
   

  	
  57-55-6

  	
   

  	
  liquid

  	
   

  	
  55.0
  gallons

  	
   

  	
  5.0
  gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Irritants

  	
   

  	
  Acetone

  	
   

  	
  67-64-1

  	
   

  	
  liquid

  	
   

  	
  5.0
  gallons

  	
   

  	
  5.0
  gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sensitizers

  	
   

  	
  Isopropyl
  Alcohol

  	
   

  	
  67-63-0

  	
   

  	
  liquid

  	
   

  	
  5.0
  gallons

  	
   

  	
  5.0
  gallons

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Radioactives

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
  Cryogenic Nitrogen

  	
   

  	
  7727-37-9

  	
   

  	
  liquid/gas

  	
   

  	
  3000 gals.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  outdoor storage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Plastics:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  A

  	
   

  	
  ABS
  (acrylonitrile-butadiene-styrene copolymer)

  	
   

  	
  9003-56-9

  	
   

  	
  solid

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  A

  	
   

  	
  Polyurethane

  	
   

  	
   

  	
   

  	
  solid

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  A

  	
   

  	
  Polystyrene

  	
   

  	
  9003-53-6

  	
   

  	
  solid

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  A

  	
   

  	
  TPE (thermoplastic
  elastomer)

  	
   

  	
   

  	
   

  	
  solid

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total Type A
  Plastics:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  800 lbs.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  B

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type
  C

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Physical Hazards:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Combustible
  Fiber

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryogenic,
  Flammable

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryogenic,
  Oxidizing

  	
   

  	
  Cryogenic Oxygen

  	
   

  	
  7782-44-7

  	
   

  	
  liquid/gas

  	
   

  	
  500 gals.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  outdoor storage

  	
   

  
	
  Explosives

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Flammable
  Solids

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Flammable
  Gas

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Organic
  Peroxide

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Oxidizer

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Oxidized
  - Gas

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pyrophoric

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Unstable
  (reactive)

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Water
  Reactive

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2














 


EXHIBIT F


 


ATTACHED TO AND FORMING A PART OF


LEASE AGREEMENT


DATED AS OF MARCH 9, 2010


BETWEEN


MINNESOTA
INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP, AS LANDLORD,


AND


MOCON, INC., AS TENANT (“LEASE”)


 


NON-DISTURBANCE, ATTORNMENT,
ESTOPPEL AND SUBORDINATION AGREEMENT


 


THIS NON-DISTURBANCE, ATTORNMENT, ESTOPPEL AND SUBORDINATION AGREEMENT (this “Agreement”)
is made and entered into as of March 9,
2010, by, between and among WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association as Administrative and Collateral Agent (the “Agent” or “Beneficiary”)
for certain Lenders (the “Lenders”) who are or become parties who become
parties to that certain Amended and Restated Credit Agreement dated June 5,
2006, as amended by that certain First Amendment to Loan Documents dated as of August 22,
2006, that certain Second Amendment to Loan Documents dated as of March 29,
2007, and that certain Third Amendment to Loan Documents dated April 25,
2008, and as affected by that certain Extension Recognition Agreement dated June 5,
2009 and a certain Restructuring Consent Letter dated June 23, 2009 and by
a certain Post Closing Agreement June 23, 2009 and as from time to time
hereafter amended or modified, by and between Agent and the Lenders and EBREF
Holding Company, LLC, as Borrower (the “Credit Agreement”) and MOCON, INC., a Minnesota corporation (“Lessee”), and MINNESOTA INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP (“Lessor”).


 


R E C I T A L S:


 


A.                                   Lenders are the
owners and holders, or expect to be the owners and holders, of certain
Promissory Notes dated as of June 5, 2006, (the “Notes”) in the aggregate
principal sum of One Hundred Seventy Million Dollars ($170,000,000.00), which are guaranteed by a certain Payment Guaranty
Agreement dated as of June 5, 2006, which Payment Guaranty Agreement is to
be joined in by the Lessor and is secured or to be secured by a Indemnity of
Trust, Security Agreement and Assignment of Leases and Rents and Fixture Filing
(the “Mortgage”)  and an Indemnity
Assignment of Leases and Rents (the “Assignment of Rents”), each to be entered
into on or about the date of this Agreement, which Mortgage constitutes a lien
or encumbrance on that certain real property more particularly described in the
attached EXHIBIT A (the “Property”).


 


B.                                     Lessee
is the holder of a leasehold estate covering a portion of the Property (the “Demised
Premises”) pursuant to the terms of that certain Lease Agreement dated March 9,
2010, 


 


1

















 


and executed by Lessee and Lessor (the “Lease”).
A copy of the Lease, certified as true and correct by Lessee, has previously
been delivered to Beneficiary and has not been amended, modified or terminated
as of the date hereof.


 


C.                                     Lessee, Lessor
and Beneficiary in its capacity as Collateral Agent and Administrative Agent
under the Credit Agreement desire to confirm their understanding with respect
to the Lease, the Mortgage and the Assignment of Rents.


 


AGREEMENT


 


1.  So
long as Lessee is not in default (beyond any period given Lessee to cure such
default) in the payment of rent or in the performance of any of the terms,
covenants or conditions of the Lease on Lessee’s part to be performed, Lessee’s
possession and occupancy of the Demised Premises shall not be interfered with
or disturbed by Beneficiary during the term of the Lease or any extension
thereof duly exercised by Lessee.


 


2.  Lessee
hereby consents to the assignment by Lessor to Beneficiary of the Lease, as set
forth in the Deed of Trust and the Assignment of Rents. If the interests of
Lessor shall be transferred to and/or owned by Beneficiary by reason of
judicial foreclosure, power-of-sale foreclosure or other proceedings brought by
Beneficiary, or by any other manner, including, but not limited to, the
institution of a receiver for the Property or Beneficiary’s exercise of its
rights under the Assignment of Rents, Lessee shall be bound to Beneficiary
under all of the terms, covenants and conditions of the Lease for the balance
of the remaining term thereof and any extension thereof duly exercised by
Lessee, with the same force and effect as if Beneficiary were the lessor under
the Lease, and Lessee does hereby attorn to Beneficiary as its lessor, said
attornment to be effective and self-operative without the execution of any further
instruments on the part of any of the parties hereto immediately upon
Beneficiary’s succeeding to the interest of the lessor under the Lease;
provided, however, that Lessee shall be under no obligation to direct its
payment of rent to Beneficiary until Lessee receives written notice from
Beneficiary to do so. Lessee may rely upon any such written notice received
from Beneficiary and the payment of Rent to Beneficiary after receipt of such
notice shall satisfy Lessee’s obligations therefore under the Lease.  The respective rights and obligations of
Lessee and Beneficiary upon such attornment, to the extent of the then
remaining balance of the term of the Lease and any such extension, shall be and
are the same as now set forth therein, as modified hereby, it being the
intention of the parties hereto for this purpose to incorporate the Lease in
this Agreement by reference with the same force and effect as if set forth in
full herein.


 


3.  If
Beneficiary shall succeed to the interest of the landlord under the Lease,
Beneficiary shall, subject to the last sentence of this Section 3, be
bound to Lessee under all of the terms, covenants and conditions of the Lease;
provided, however, that Beneficiary shall not be:


 


(a)  Liable for
any act or omission of any prior lessor (including Lessor) or for any monetary
damages incurred by Lessee in connection therewith or liable for any act or
omission prior to Beneficiary’s succession to title; or


 


2

















 


(b) Subject to
any offsets, defenses or counterclaims which Lessee might have against any
prior lessor (including Lessor) or accruing prior to Beneficiary’s succession
to title; or


 


(c)  Bound by any
rent, additional rent or advance rent which Lessee might have paid for more
than the current month to any prior lessor(including Lessor) or prior to
Beneficiary’s succession to title and all such rent shall remain due and owing
notwithstanding such advance payment; or


 


(d)  Bound by any
amendment or modification of the Lease made without its consent and written
approval; or


 


(e)  Required to
restore the building or otherwise perform the obligations of Lessor under the
Lease in the event of a foreclosure of the Deed of Trust or acceptance by
Beneficiary of a deed in lieu of foreclosure, in either instance if the
building or the restoration obligations have not been fully completed prior to
the foreclosure or acceptance, provided, that if the building or other
obligations have not been performed by Beneficiary, the Tenant may give Beneficiary
a notice that it will terminate the Lease, and Beneficiary may avoid such
termination by written notice to Tenant that is agrees to restore or take such
other action necessary to remedy such lack of restoration promptly.


 


Neither Wells Fargo nor any other party who,
from time to time, shall be included in the definition of the term “Beneficiary”
hereunder shall have any liability or responsibility under or pursuant to the
terms of this Agreement after it ceases to own a fee interest in or to the
Property.


 


4. 
Subject to the terms of this Agreement (including, but not limited to,
those in Section 2 hereof, the Lease and the terms thereof are, and shall
at all times continue to be, subject and subordinate in each and every respect,
to the Deed of Trust and the terms thereof, and to any and all renewals,
modifications, extensions, substitutions, replacements and/or consolidations of
the Deed of Trust.  Nothing herein
contained shall be deemed or construed as limiting or restricting the
enforcement by Beneficiary of any of the terms, covenants, provisions or
remedies of the Deed of Trust or the Assignment of Rents, whether or not
consistent with the Lease.


 


5.  The
term “Beneficiary” shall be deemed to include Wells Fargo and all of its
successors and assigns, including anyone who shall have succeeded to Lessor’s
interest by, through or under judicial or power-of-sale foreclosure or other
proceedings brought pursuant to the Deed of Trust, or deed in lieu of such
foreclosure or proceedings, or otherwise.


 


6.  Lessor
and Lessee represent and warrant to Beneficiary as follows: (a)that the Lease
is presently in full force and effect and unmodified or changed; (b)that the
term shall commence upon Substantial Completion of the Tenant Improvements as
set forth in the Lease, and full rental will then accrue; (c) that all
conditions required under the Lease that could have been satisfied as of the
date hereof have been met; (d) that no rent under said Lease has been paid
more than thirty 


 


3

















 


(30)days in advance of its due date; (e) that
no default or event, which with the giving of notice, passage of time, or both,
would constitute a default, exists under said Lease;(f) that the Lessee,
as of this date, has no charge, lien or claim of offset under said Lease or
otherwise, against rents or other charges due or to become due thereunder;(g) that
the Lease constitutes the entire agreement between the parties and that
Beneficiary shall have no liability or responsibility with respect to any
security deposit of Lessee; (h) that the only persons, firms or
corporations in possession of said leased premises or having any right to the
possession or use of said premises(other than the record owner) are those
holding under the Lease; and (i) that the Lessee has no right or interest
in or under any contract, option or agreement involving the sale or transfer of
the Demised Premises.


 


7.  In the
absence of the prior written consent of Beneficiary, Lessee agrees not to do
any of the following: (a) prepay the rent under the Lease for more than
one (1) month in advance, (b) enter into any agreement with the
Lessor to amend or modify the Lease, (c) voluntarily surrender the Demised
Premises or terminate the Lease prior to the expiration date thereof set forth
in the Lease, and (d) sublease or assign the Demised Premises.


 


8.  In the
event Lessor shall fail to perform or observe any of the terms, conditions or
agreements in the Lease, Lessee shall give written notice thereof to
Beneficiary and Beneficiary shall have the right (but not the obligation) to
cure such failure. Lessee shall not take any action with respect to such
failure under the Lease, including, without limitation, any action in order to
terminate, rescind or avoid the Lease or to withhold any rent thereunder, for a
period of thirty (30) days after receipt of such written notice by Beneficiary;
provided, however, that in the case of any default which cannot with diligence
be cured within said 30-day period, if Beneficiary shall proceed promptly to
cure such failure and thereafter prosecute the curing of such failure with
diligence and continuity, the time within which such failure may be cured shall
be extended for such period as may be necessary to complete the curing of such
failure with diligence and continuity.


 


9.  So
long as the Loan is outstanding, Lessee covenants to provide Beneficiary with
all information, including, but not limited to evidence of payment of taxes and
insurance (if Lessee is obligated for such payments under the Lease) to which
the Lessor may be entitled under the Lease, at the times and in the manner as
the same are provided to the Landlord.


 


10. So long as the Loan is outstanding,
Beneficiary or its designee may enter upon the Property at all reasonable times
to visit or inspect the Property and discuss the affairs, finances and accounts
of Lessee applicable to the Property or the Lease at such reasonable times as
Beneficiary or its designee may request.


 


11. Lessee hereby represents and warrants that
the Lease and this Agreement have been duly authorized, executed and delivered
by Lessee and constitute legal, valid and binding instruments, enforceable
against Lessee in accordance with their respective terms, except as such terms
may be limited by bankruptcy, insolvency or similar laws affecting creditors’
rights generally.


 


4

















 


12. This Agreement may not be modified orally or
in any other manner than by an agreement in writing signed by the parties
hereto and their respective successors in interest. This Agreement shall inure
to the benefit of and be binding upon the parties hereto, their successors and
assigns. In the event of a conflict between the provisions of this Agreement
and the provisions of the Lease, the provisions of this Agreement shall
control.


 


13. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement, binding on
all parties hereto, notwithstanding that all parties are not signatories to the
original or the same counterpart.


 


14. All notices or other communications required
or permitted to be given pursuant to the provisions hereof shall be in writing
and shall be considered as properly given if mailed by first class United
States mail, postage prepaid, registered or certified with return receipt
requested, or by delivering same in person to the intended addressee, or by
prepaid telegram. Notice so given in person or by telegram shall be effective
upon its deposit. Notice so given by mail shall be effective two (2) days
after deposit in the United States mail. Notice given in any other manner shall
be effective only if and when received by the addressee. For purposes of
notice, the addresses of the parties shall be:


 


	
  Lessor:

  	
  Minnesota
  Industrial Properties Limited Partnership

  
	
   

  	
  c/o Ryan
  Companies US, Inc.

  
	
   

  	
  50 South Tenth
  Street, Suite 300

  
	
   

  	
  Minneapolis MN
  55403-2012

  
	
   

  	
   

  
	
  Lessee:

  	
  Mocon, Inc.

  
	
   

  	
  9300 75th Avenue North, Suite 100

  
	
   

  	
  Brooklyn Park,
  MN 55428

  
	
   

  	
   

  
	
  Beneficiary:
  

  	
  Wells
  Fargo Bank, National Association 

  
	
   

  	
  Real
  Estate Group

  
	
   

  	
  1750
  H Street, NW, Suite 400,

  
	
   

  	
  Washington,
  D.C. 20006

  
	
   

  	
  Attention:
  Manager, Loan Administration Department

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Wells
  Fargo Bank Real Estate Group

  
	
   

  	
  420
  Montgomery Street

  
	
   

  	
  San
  Francisco, California 94111

  
	
   

  	
  Attention: Chief Credit Officer

  



 


provided, however, that any party shall have the
right to change its address for notice hereunder to any other location within
the continental United States by the giving of thirty (30) days’ notice to the
other parties in the manner set forth hereinabove.


 


5

















 


[Signatures on following page]


 


6

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first above written.


 


	
   

  	
  LESSEE:

  
	
   

  	
   

  
	
   

  	
  MOCON,
  INC.,

  
	
   

  	
  a
  Minnesota corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darrell B. Lee

  
	
   

  	
   

  	
  Name:

  	
  Darrell
  B. Lee

  
	
   

  	
   

  	
  Title:

  	
  V.P. & CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  STATE OF MINNESOTA

  	
  )

  	
  ss:

  	
   

  
	
  COUNTY OF HENNEPIN

  	
  )

  	
   

  	
   

  



 


I, a Notary Public in and for the aforesaid jurisdiction,
do hereby certify that Darrell B. Lee, who is personally well known to me as,
or satisfactorily proven to be, the person named as Vice President of MOCON,
INC., in the foregoing Non-Disturbance, Attornment, Estoppel and Subordination
Agreement bearing date as of the 9th day of March, 2010, personally appeared
before me in the said jurisdiction, and by virtue of the authority vested in
him or her by said Agreement, acknowledged the same to be the act and deed of
said organization, and delivered the same as such.


 


GIVEN under my hand and official seal this 9th
day of March, 2010


 


	
   

  	
   

  	
  /s/ Congcong Luo

  
	
   

  	
   

  	
  Notary Public

  



 


My Commission Expires:  January 31, 2014


 


[SIGNATURES CONTINUED ON NEXT PAGE]


 


7

















 


	
   

  	
  LESSOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  MINNESOTA INDUSTRIAL PROPERTIES LIMITED PARTNERSHIP,

  
	
   

  	
  a Minnesota limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  Minnesota
  Industrial Portfolio, LLC

  
	
   

  	
  Its:  General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  EBREF Holding Company, LLC, a Delaware limited
  liability company, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mandi L. Wedin

  
	
   

  	
   

  	
  Mandi L. Wedin

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  STATE OF MARYLAND

  	
  )

  	
  ss:

  	
   

  
	
  COUNTY OF MONTGOMERY

  	
  )

  	
   

  	
   

  



 


This is to certify that Robert B.
Bellinger, Manager of EBREF
Holding Company, LLC, a Delaware limited liability company, , who is
personally well known to me or who identified [himself] [herself] by exhibiting
a current valid photo identification, to wit, [a
                   
                 
          drivers license, number
                 
              
        ,] [Mandi L. Wedin], personally
appeared before me in the jurisdiction set forth above, on the day and year set forth below, and stated to me
that [he][she] affixed [his] [her] signature on this page of the foregoing
document voluntarily for the purposes set forth therein as Manager of EBREF
Holding Company, LLC, as Manager of Minnesota
Industrial Portfolio, LLC, as General Partner of Minnesota Industrial Portfolio, LLC, and that he was duly
authorized to execute such document..


 


CERTIFIED this 10th day of March, 2010.


 


[PHOTOGRAPHICALLY


REPRODUCABLE SEAL]


 


	
   

  	
  /s/ Melissa Franklin

  
	
   

  	
  Notary Public

  



 


My Commission Expires: 
August 18, 2013


 


[SIGNATURES CONTINUED ON NEXT PAGE]


 


8

















 


	
   

  	
  BENEFICIARY:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Liz C. Anderson

  
	
   

  	
   

  	
  Liz C. Anderson

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DISTRICT OF COLUMBIA

  	
  ) ss:

  	
   

  



 


I, a Notary Public in and for the aforesaid
jurisdiction, do hereby certify that Liz C. Anderson, who is personally well
known to me as, or satisfactorily proven to be, the person named as Vice
President of Wells Fargo Bank, National Association in the foregoing
Non-Disturbance, Attornment, Estoppel and Subordination Agreement bearing date
as of the         day of
                     ,
2010 personally appeared before me in the said jurisdiction, and being duly
authorized, acknowledged the same to be the act and deed of Wells Fargo Bank,
National Association, and delivered the same as such.


 


GIVEN under my hand and official seal this 11th
day of March, 2010.


 


 


	
   

  	
   

  	
  /s/ Diana Becerra

  
	
   

  	
   

  	
  Notary Public

  



 


 


My Commission Expires:  August 14, 2013


 


9

















 


EXHIBIT A


 


LEGAL DESCRIPTION OF THE PROPERTY


 


10