**EXHIBIT 10.12**

 

**COMMERCIAL LEASE**

 

This Indenture of Lease, datedthis day 12th day of June, 2002 by and between Moen LeuerProperties, Inc., a Minnesota corporation (“Landlord”), and Ciprico Inc. aMinnesota corporation (hereinafter referred to as “Tenant”).

 

**DEFINITIONS**:

 

**“Property”—**Thatcertain real property located in the City of Plymouth, County of Hennepin andState of Minnesota and legally described on Exhibit “A” attached hereto andmade a part hereof, including all buildings and site improvements locatedthereon.

 

**“Building”—**Thatcertain office/warehouse building containing approximately 83,513 square feetlocated upon the Property and commonly described as Plymouth Ponds Building #8, located at 17400 Medina Road, Plymouth, Minnesota 55447.

 

**“Premises”—**Thatcertain portion of the Building described on attached Exhibit “B” and locatedat 17400 Medina Road, Plymouth, Minnesota, and designated as Suite 800,totaling approximately 39,147 square feet consisting of 29,490 square feet ofoffice/engineering space, approximately 9,040 square feet oftechnology/engineering area and approximately 617 square feet of warehouse andshared mechanical space as measured in accordance with BOMA standards.  Landlord shall deliver to Tenant a spaceplan that contains Landlord’s final determination of such figures.  Tenant shall have the right to confirm suchfigures with Tenant’s architect or engineer. The Premises include a non-exclusive easement for access to commonareas, as hereinafter defined, and all licenses and easements appurtenant tothe Premises.

 

**“Common Areas”—**Theterm “common area” means the entire areas to be used for the non-exclusive useby Tenant and other tenants in the Building, including, but not limited to,corridors, lavatories, driveways, truck docks, parking lots and landscapedareas.  Subject to reasonable rules andregulations promulgated by Landlord, the common areas are hereby made availableto Tenant and its employees, agents, customers, and invitees for reasonable usein common with other Tenants, their employees, agents, customers andinvitees.  Landlord further warrantsthat any action taken by Landlord regarding the Common Areas shall not:  (i) affect ingress or egress to thePremises, nor the visibility of Tenant’s signage; (ii) increase the cost toTenant of Operating Expenses; (iv) result in a material reduction of parkingspaces available to Tenant, its employees and customers; or (v) materially andadversely affect Tenant’s use and enjoyment of the Premises.

 

Landlord shallexercise its control of the Common Areas in such a manner so as to preclude anyimpairment of visibility or access to the Common Areas or Premises, or closureof parking spaces or other interference with the operation of Tenant’sbusiness.  Landlord shall keep the CommonAreas in a neat, clean and orderly condition, properly surfaced, painted,landscaped and lighted in a manner consistent with a first class officebuilding in Minneapolis, Minnesota

 

**“ProportionateShare”****—**Tenant’s “Proportionate Share” of RealEstate Taxes and Operating Expenses shall be the ratio that the rentable areaof the Premises bears to the rentable area existing within the Building.

 

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**WITNESSETH:**

 

**1.             TERM:**

 

For and in consideration of therents, additional rents, terms, provisions and covenants herein contained,Landlord hereby lets, leases and demises to Tenant the Premises for the term ofEighty-Four (84) months commencing on the 1st day of November, 2002(sometimes called “the Commencement Date”), subject to the terms of Article 9,and expiring the 31st day of October, 2009 (sometimes called“Expiration Date”), unless sooner terminated as hereinafter provided.

 

**2.             BASERENT:**

 

Landlord reserves and Tenantshall pay Landlord, a total rental of (See Addendum) payable in advance withoutoffset, deduction or demand, except as set forth herein, in equal monthlyinstallments of (See Addendum) commencing on the Commencement Date andcontinuing on the first day of each and every month thereafter for the nextsucceeding months during the balance of the term (sometimes called “BaseRent”).  In the event the CommencementDate falls on a date other than the first of a month the rental for that monthshall be prorated and adjusted accordingly.

 

**3.             ADDITIONALRENT:**

 

Tenant shall pay to Landlordthroughout the term of this Lease the following:

 

**a.**             Tenant shall pay a sum equal toTenant’s Proportionate Share of the Real Estate Taxes, which share is currently46.88%.  The term “Real Estate Taxes”shall mean all real estate taxes, all assessments and any taxes in lieu thereofwhich may become due and payable against the Property during the Term,excluding, however, federal and state or other taxes on net income, deathtaxes, excess profit taxes or franchise taxes or any special assessmentsrelated to initial construction of the Building, capital stock, or penalties orinterest on late payment of Real Estate Taxes unless caused by Tenant.  Any tax year commencing during any leaseyear shall be deemed to correspond to such lease year.  In the event the taxing authorities includein such real estate taxes and assessments the value of any improvements made byTenant, or of machinery, equipment, fixtures, inventory or other personalproperty or assets of Tenant, then Tenant shall pay all the taxes attributableto such items in addition to its proportionate share of said aforementionedreal estate taxes and assessments.  Aphotostatic copy of the tax statement submitted by Landlord to Tenant shall besufficient evidence of the amount of taxes and assessments assessed or leviedagainst the Property of which the Premises are a part.

 

**b.**             A sum equal to Tenant’sProportionate Share of the annual aggregate Operating Expenses, which share iscurrently 46.88%, incurred by Landlord in the operation, maintenance and repairof the Building and Property.  The term“Operating Expenses” shall include but not be limited to maintenance, repair,operation, replacement and care of all common areas (including common areautilities and lighting), mechanical rooms, common area plumbing and roofs,parking and landscaped areas, signs, snow removal, non-structural repair andmaintenance of the exterior of the Building, Insurance premiums, management fee(not to exceed 4% of gross building revenue), wages and fringe benefits ofpersonnel directly employed for such work, costs of equipment purchased andused for such purposes and the cost or portion thereof properly allocable tothe Property (amortized in accordance with generally accepted accountingprinciples together with the interest at the rate of ten percent (10%) perannum on the unamortized balance) of any capital improvements made to theBuilding by Landlord after the Base Year, but only to the extent of thereduction achieved in Operating Expenses resulting from

 

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such capital improvement, ormade to the Building by Landlord after the date of this Lease that are requiredunder any governmental law or regulation that was not applicable to theBuilding at the time it was constructed.

 

**c**.             In no event shall the totaladjusted monthly rent be less than-the first month’s base rent plus Tenant’sproportionate share of building taxes and common area maintenance charges,except as otherwise set forth herein.

 

The payment of the sums setforth in this *Article 3* shall be in addition to the Base Rent payablepursuant to *Article2* of this Lease.  All sumsdue hereunder shall be due and payable within thirty (30) days of delivery ofwritten certification by Landlord setting forth the computation of the amountdue from Tenant.  In the event the leaseterm shall begin or expire at any time during the calendar year, Tenant shallbe responsible for his pro-rata share of Additional Rent under subdivisions a.and b. during the Lease and/or occupancy time.

 

Prior to commencement of thisLease, and prior to the commencement of each calendar year thereaftercommencing during the term of this Lease or any renewal or extension thereof,Landlord may reasonably estimate for each calendar year (i) the total amount ofReal Estate Taxes; (ii) the total amount of Operating Expenses; (iii) Tenant’sshare of Real Estate Taxes for such calendar year; (iv) Tenant’s share ofOperating Expenses for such calendar year; and (v) the computation of theannual and monthly rental payable during such calendar year as a result ofincreases or decreases in Tenant’s share of Real Estate Taxes, and OperatingExpenses.  Said estimates will be inwriting and will be delivered or mailed to Tenant.

 

The amount of Tenant’s share ofReal Estate Taxes, and Operating Expenses for each calendar year, so estimated,shall be payable as Additional Rent by Tenant, without offset, deduction ordemand, except as set forth herein, in equal monthly installments, in advance,on the first day of each month during such calendar year at the option ofLandlord.  In the event that suchestimate is delivered to Tenant before the first day of January of suchcalendar year, said amount, so estimated, shall be payable as additional rentin equal monthly installments, in advance, on the first day of each monthduring such calendar year.  In the eventthat such estimate is delivered to Tenant after the first day of January ofsuch calendar year, said amount, so estimated, shall be payable as additionalrent in equal monthly installments, in advance, on the first day of each monthover the balance of such calendar year, with the number of installments beingequal to the number of full calendar months remaining in such calendar year.

 

No later than ninety (90) daysafter completion of each calendar year during the term of this Lease or anyrenewal or extensions thereof, Landlord shall cause its accountants todetermine the actual amount of the Real Estate Taxes, and Operating Expensespayable in such calendar year and Tenant’s Proportionate Share thereof anddeliver a written certification of the amounts thereof to Tenant.  If Tenant has underpaid its share of RealEstate Taxes, or Operating Expenses for such calendar year, Tenant shall paythe balance of its share of same within ten (10) days after the receipt of suchstatement.  If Tenant has overpaid itsshare of Real Estate Taxes, or Operating Expenses for such calendar year,Landlord shall either (i) refund such excess, or (ii) credit such excessagainst the most current monthly installment or installments due Landlord forits estimate of Tenant’s share of Real Estate Taxes, and Operating Expenses forthe next following calendar year.  A prorata adjustment shall be made for a fractional calendar year occurring duringthe term of the Lease or any renewal or extension thereof based upon the numberof days of the term of the Lease during said calendar year as compared to three

 

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hundred sixty-five (365) daysand all additional sums payable by Tenant or credits due Tenant as a result ofthe provision of this *Article 3*shall be adjusted accordingly.

 

Tenantshall be entitled to review Landlord’s books and records relating to OperatingExpenses at Landlord’s Plymouth, Minnesota office, on not less than three (3)business days notice to Landlord.  IfLandlord and Tenant disagree on the accuracy of Operating Expenses as set forthin the statement, Tenant shall nevertheless make payment in accordance with anynotice given by Landlord, but Tenant may cause the Operating Expenses to beaudited by a certified accountant approved by Landlord (which approval will notbe unreasonably withheld and will be deemed given if not given or withheld byLandlord within ten (10) days after Tenant’s written request for approval isreceived by Landlord), in which case Landlord will submit Landlord’s relevantbooks and records to such auditor at a location in Plymouth, Minnesota that isreasonably acceptable to Tenant.  Theresults of any such audit will be conclusive, and any adjustment required toany previous payment made by Tenant or Landlord by reason of any such auditshall be made within fourteen (14) days of delivery of such audit by suchauditor to Landlord and Tenant, and the party required to make payment undersuch adjustment shall bear all costs of the audit.

 

**4.             COVENANTTO PAY RENT:**

 

The covenants of Tenant to paythe Base Rent and the Additional Rent are each independent of any othercovenant, condition, provision or agreement contained in this Lease, except asotherwise set forth herein.  All rentsare payable to Landlord at 3600 Holly Lane North, Suite 100, Plymouth, MN  55447.

 

**5.             UTILITIES:**

 

Landlord shall provide mainsand conduits to supply water, gas, electricity and sanitary sewage to theProperty.  Tenant shall pay, when due,all charges for sewer usage or rental, garbage disposal, refuse removal, water,electricity, gas, fuel oil, L.P. gas, telephone and/or other utility servicesor energy source furnished to the Premises during the term of this Lease, orany renewal or extension thereof.  IfLandlord elects to furnish any of the foregoing utility services of otherservices furnished or caused to be furnished to Tenant, then the rate chargedby Landlord shall not exceed the rate Tenant would be required to pay to autility company or service company furnishing any of the foregoing utilities orservices.  The charges thereof shall bedeemed additional rent in accordance with *Article 3*. Landlord shall not be liablefor, and Tenant shall not be entitled to any abatement or reduction of BaseRent or Minimum Rent by reason of Landlord’s failure to furnish any of theforegoing utilities, when such failure is caused by accident, breakage, repairs(including replacements), strikes, lockouts or other labor disturbances orlabor disputes of any character, of for any other causes not within the controlof Landlord.

 

**6.             CAREAND REPAIR OF PREMISES:**

 

Tenant shall, at all timesthroughout the term of this Lease, including renewals and extension, and at itssole expense, keep and maintain the Premises in a clean, safe, sanitary andfirst class condition, subject to reasonable wear and tear, and in compliancewith all applicable laws, codes, ordinances, rules and regulations but only if the requirements apply to Tenant’sspecific use of the Premises and not to office or retail use generally, andotherwise Landlord shall be responsible for such compliance.  Tenant’s obligations hereunder shall includebut not be limited to the maintenance, repair and replacement, if necessary, ofheating, air conditioning fixtures, equipment, and systems, all lighting andplumbing fixtures and equipment, fixtures, motors and machinery, all interiorwalls and doors of the trash

 

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enclosure, partitions, doorsand windows, including the regular painting thereof, all exterior entrances,windows, doors and docks and the replacement of all broken glass, and allinterior walls, to the extent any of the foregoing items are located within,and exclusively serve, the Premises. When used in this provision, the term “repairs” shall includereplacements or renewals when necessary, and all such repairs made by Tenantshall be equal in quality and class to the original work.  The Tenant shall keep and maintain allportions of the Premises in a clean and orderly condition, free of accumulationof dirt, rubbish, snow and ice.

 

If Tenant fails, refuses orneglects to maintain or repair the Demised Premises as required in this Leasewithin a reasonable time after notice shall have been given Tenant, inaccordance with *Article 33* of this Lease, Landlord may make such repairswithout liability to Tenant for any loss or damage that may accrue to Tenant’smerchandise, fixtures or other property or to Tenant’s business by reasonthereof, and upon completion thereof, Tenant shall pay to Landlord all costsplus ten percent (10%) of overhead reasonably incurred by Landlord in makingsuch repairs upon presentation to Tenant of bill therefor.

 

Landlord shall repair, at itsexpense, the structural portions of the Building, provided however wherestructural repairs are required to be made by reason of the acts of Tenant, thecosts thereof shall be borne by Tenant and payable by Tenant to Landlord upondemand, subject to Section 15C.

 

Landlord shall be responsiblefor all outside maintenance of the Premises, including grounds, parking areas,trash enclosures, the electrical systems, heating and air conditioning systems(located outside the Premises), sprinkler and plumbing systems (located outsidethe Premises), roof, exterior walls, foundation, the parking, landscaped andcommon areas, and shall keep such areas free of accumulation of dirt, rubbish,snow and ice.  Landlord also shallmaintain all other portions of the Premises and Building not specificallydelegated to Tenant herein**.**  All such maintenance which is theresponsibility of Landlord shall be provided as reasonably necessary to thecomfortable use and occupancy of Premises during business hours, except Saturdays,Sundays and holidays, in accordance with the standards of first classoffice/warehouse buildings.

 

**7.             SIGNS:**

 

Any sign, lettering, picture,notice or advertisement installed on or in any part of the Property and visiblefrom the exterior of the Building, or visible from the exterior of thePremises, must be approved in advance by Landlord and installed at Tenant’sexpense, which approval shall not be unreasonably withheld.  In the event of a violation of the foregoingby Tenant, Landlord may remove the same without any liability and may chargethe expense incurred by such removal to Tenant.

 

**8.             ALTERATIONS,INSTALLATION, FIXTURES:**

 

Except as hereinafter provided,Tenant shall not make any alteration, additions, or improvements in or to thePremises or add, disturb or in any way change any plumbing or wiring thereinwithout the prior written consent of Landlord, which consent shall not beunreasonably withheld; provided, however, that Tenant shall have the right tomake cosmetic alterations and non-structural alterations costing less than FiveThousand and no/100 Dollars ($5,000.00) with written notice to Landlord butwithout obtaining Landlord’s consent. In the event alterations are required by any governmental agency byreason of the specific use and occupancy of the Premises by Tenant, as opposedto office or retail use generally, Tenantshall make such alterations at its own cost and expense after first obtainingLandlord’s approval of plans and specifications therefor and furnishing suchindemnification as Landlord may reasonably

 

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require against liens, costs,damages and expenses arising out of such alterations.  Alterations or additions by Tenant must be built in compliancewith all laws, ordinances and governmental regulations affecting the Propertyand Tenant shall warrant to Landlord that all such alterations, additions, orimprovements shall be in strict compliance with all relevant laws, ordinances,governmental regulations, and insurance requirements.  Construction of such alterations or additions shall commence onlyupon Tenant obtaining and exhibiting to Landlord the requisite approvals,licenses and permits and indemnification against liens.  All alterations, installations, physicaladditions or improvements to the Premises made by Tenant shall at the option ofLandlord become the property of Landlord and shall be either removed by Tenantat Tenant’s sole cost or surrendered to Landlord upon the termination of thisLease; provided, however, that (i) Landlord must notify Tenant of any removalobligations in writing at the time Tenant commences any alterations,installations physical additions or improvements and (ii) this clause shall notapply to movable equipment or furniture owned by Tenant which shall be removedby Tenant at the end of the term if this Lease.  Notwithstanding anything to the contrary set forth in this Lease,in no event shall Tenant have any obligation to remove any cabling from thePremises, including, without limitation, voice or data cabling.

 

**9.             POSSESSION:**

 

Landlord shall deliverpossession of the Premises to Tenant in the condition required by this Lease onor before October 1, 2002, but delivery of possession prior to or later thansuch date shall not affect the expiration date of this Lease.  Base Rent and Additional Rent shall commencethirty (30) days after the date Landlord has delivered possession of thePremises to Tenant in the condition required herein.  Landlord shall have no responsibility or liability for loss ordamage to fixtures, facilities or equipment installed or left on the Premises,except to the extent caused by the negligence of Landlord or its employees oragents.  In the event Landlord fails todeliver the Premises to Tenant in the condition required herein by October 1,2002, excluding a delay directly attributable to Tenant, then (i) Tenant’sobligation to pay Base Rent and Additional Rent shall be abated one (1) day foreach day beyond October 1, 2002 that that the Premises in the condition requiredherein is not delivered to Tenant, which abatement shall be in addition to theabatement of Base Rent and Additional Rent for the first month of the Term and(ii) Landlord shall indemnify and hold Tenant harmless from all costs damages,expenses and liabilities, including, without limitation, hold-over rent, rentfor any temporary facility and moving costs resulting from or related toLandlord’s failure to deliver the Premises to Tenant in the condition requiredherein by October 1, 2002.  In addition,in the event Landlord fails to deliver the Premises to Tenant in the conditionrequired herein by November 1, 2002, excluding a delay directly attributable toTenant, then Tenant also shall have the right to terminate this Lease upon ten(10) days’ written notice to Landlord.

 

**10.          SECURITYAND DAMAGE DEPOSIT:**

 

Tenant contemporaneously withthe execution of this Lease, has deposited with Landlord the sum of ThirtyThousand and No/100 Dollars ($30,000.00), receipt of which is acknowledgedhereby by Landlord, which deposit is to be held by Landlord, without liabilityfor interest, as a security and damage deposit for the faithful performance byTenant during the term hereof or any extension hereof.  Prior to the time when Tenant shall beentitled to the return of this security deposit, Landlord may commingle suchdeposit with Landlord’s own funds and to use such security deposit for suchpurpose as Landlord may determine.  Inthe event of a default by Tenant hereunder, and Tenant’s failure to cure withinthe applicable time frame, during the term hereof or any extension hereof, thenLandlord, either

 

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with or without terminatingthis Lease may (but shall not be required to) apply such portion of saiddeposit as may be necessary to compensate or repay Landlord for all losses ordamages reasonably sustained or to be sustained by Landlord due to such breachon the part of Tenant, including, but not limited to overdue and unpaid rent,any other sum payable by Tenant to Landlord pursuant to the provisions of thisLease, damages or deficiencies in the reletting of Premises, and reasonableattorney’s fees incurred by Landlord. Should the entire deposit or any portion thereof, be appropriated andapplied by Landlord, in accordance with the provisions of this paragraph,Tenant upon written demand by Landlord, shall remit forthwith to Landlord asufficient amount of cash to restore said security deposit to the original sumdeposited, and Tenant’s failure to do so within five (5) days after receipt ofsuch demand shall constitute a breach of this Lease.  Said security deposit shall be returned to Tenant, less anydepletion thereof as the result of the provisions of this paragraph, at the endof the term of this Lease or any renewal thereof, or upon the earliertermination of this Lease.  Tenant shallhave no right to anticipate return of said deposit by withholding any amountrequired to be paid pursuant to the provision of this Lease or otherwise.

 

In the event Landlord shallsell the Property, or shall otherwise convey or dispose of its interest in thisLease, Landlord may assign the security deposit or any balance thereof toLandlord’s assignee, whereupon Landlord shall be released from all liabilityfor the  return or repayment of suchsecurity deposit and Tenant shall look solely to the said assignee for thereturn and repayment of said security deposit. Said security deposit shall not be assigned or encumbered by Tenantwithout such consent of Landlord, and any assignment or encumbrance withoutsuch consent shall not bind Landlord. In the event of any rightful and permitted assignment of this Lease byTenant, said security deposit shall be deemed to be held by Landlord as a depositmade by the assignee, and Landlord shall have no further liability with respectto the return of said security deposit to Tenant.

 

**11.          USE:**

 

The Premises shall be used andoccupied by Tenant solely for the purposes of office, technology and warehouseand such use by Tenant shall at all times be in full compliance with allapplicable laws, ordinances and governmental regulations affecting the Buildingand Property but only if the requirementsapply to Tenant’s specific use of the Premises and not to office or retail usegenerally, and otherwise Landlord shall be responsible for such compliance.  The Premises shall not be used in suchmanner that, in accordance with any requirement of law or of any publicauthority, Landlord shall be obligated on account of the purpose or manner ofsaid use to make any addition or alteration to or in the Building.  The Premises shall not be used in any mannerwhich will increase the rates required to be paid for pubic liability or forfire and extended coverage insurance covering the Property.  Tenant shall occupy the Premises conduct itsbusiness and control its agents, employees, invitees and visitors in such a wayas is lawful, and reputable and will not permit or create any nuisance, noise,odor, or otherwise interfere with, annoy or disturb any other Tenant in theBuilding in its normal business operations or Landlord in its management of theBuilding.  Tenant’s use of the Premisesshall conform to all Landlord’s reasonable rules and regulations relating tothe use of the Property.  Outsidestorage on the Property of any type of equipment, property or materials ownedor used on the Premise by Tenant or its customers and suppliers shall not bepermitted.

 

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**12.          ACCESSTO PREMISES:**

 

The Tenant agrees to permitLandlord and the authorized representatives of Landlord to enter the Premisesat all times during usual business hours upon reasonable prior notice for thepurpose of inspecting the same and making any necessary repairs to the Premisesand performing any work therein that may be necessary to comply with any laws,ordinances, rules, regulations or requirements of any public authority or ofthe Board of Fire Underwriters or any similar body or that Landlord may deemnecessary to prevent waste or deterioration in connection with thePremises.  Nothing herein shall implyany duty upon the part of Landlord to do any such work which, under anyprovision of this Lease, Tenant may be required to perform and the performancethereof by Landlord shall not constitute a waiver of Tenant’s default infailing to perform the same.  TheLandlord may, during the progress of any work in the Premises, keep and storeupon the Premises all necessary materials, tools and equipment.  The Landlord shall not in any event beliable for inconvenience, annoyance, disturbance, loss of business, or otherdamage of Tenant by reason of making repairs or the performance or any work inthe Premises, or on account of bringing materials, supplies and equipment intoor through the Premises during the course thereof and the obligations of Tenantunder this Lease shall not thereby be affected in any manner whatsoever.

 

Landlord reserves the right toenter upon the Premises at any time in the event of an emergency and atreasonable hours to exhibit the Premises to prospective purchasers or others;and to exhibit the Premises to prospective Tenants and to display “For Lease”or similar signs on windows or doors in the Premises during the last onehundred eighty (180) days of the term of this Lease, all without hindrance ormolestation by Tenant.

 

Notwithstanding anything to thecontrary set forth in this Article 12, Landlord agrees to exercise the rightsset forth herein in a manner that does not interrupt or impair Tenant’s use ofthe Premises.

 

**13.          EMINENTDOMAIN:**

 

In the event of any eminentdomain or condemnation proceeding or private sale in lieu thereof in respect tothe Property during the term thereof, the following provisions shall apply:

 

**a.**             If the whole of the Property shallbe acquired or condemned by eminent domain or any public or quasi-public use orpurpose, then the term of this Lease shall cease and terminate as of the datepossession shall be taken in such proceeding and all rentals shall be paid upto that date.

 

**b.**             If any part constituting less thanthe whole of the Property shall be acquired or condemned as aforesaid, and inthe event that such partial taking or condemnation shall materially affect thePremises so as to render the Premises unsuitable for the business of Tenant,then the term of this Lease shall cease and terminate as of the date possessionshall be taken by the condemning authority and rent shall be paid to the dateof such termination.

 

In the event of a partialtaking or condemnation of the Property which shall not materially affect thePremises so as to render the Demised Premises unsuitable for the business ofTenant, this Lease shall continue in full force and effect but with aproportionate abatement of the Base Rent and Additional Rent based on theportion, if any, of the Demised Premises taken. If not so terminated, thenLandlord shall restore the Building and the Premises to substantially the samecondition as they were prior to such condemnation.  Landlord shall commence restoration and shall restore theBuilding and the Premises

 

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with reasonable promptness,subject to delays beyond Landlord’s control and delays in the making ofcondemnation or sale proceeds adjustment by Landlord; and Tenant shall have noright to terminate this Lease except as herein provided.  Upon completion of such restoration, therent shall be adjusted based upon the portion, if any, of the Premisesrestored.

 

**c.**             In the event of any condemnation ortaking as aforesaid, whether whole or partial, Tenant shall not be entitled toany part of the award paid for such condemnation and Landlord is to receive thefull amount of such award, Tenant hereby expressly waiving any right to claimto any part thereof.

 

**d.**             Although all damages in the eventof any condemnation shall belong to Landlord whether such damages are awardedas compensation for diminution in value of the leasehold or to the fee of thePremises, Tenant shall have the right to claim and recover from the condemningauthority, but not from Landlord, such compensation as may be separatelyawarded or recoverable by Tenant in Tenant’s own right on account of any andall damage to Tenant’s business by reason of the condemnation and for or onaccount of any cost or loss to which Tenant might be put in removing Tenant’smerchandise, furniture, fixtures, leasehold improvements and equipment.  However, Tenant shall have no claim againstLandlord or make any claim with the condemning authority of the loss of its leaseholdestate, any unexpired term of loss of any possible renewal or extension of saidlease or loss of any possible value of said lease, any unexpired term, renewalor extension of said Lease.

 

**14.          DAMAGEOR DESTRUCTION:**

 

In the event of any damage ordestruction to the Property by fire or other cause during the term hereof, thefollowing provisions shall apply:

 

**a.**             If the Building is damaged by fireor any other cause to such extent that the cost of restoration, as reasonablyestimated by Landlord, will equal or exceed thirty percent (30%) of thereplacement value of the Building (exclusive of foundations) just prior to theoccurrence of the damage, then Landlord may, no later than the sixtieth (60th)day following the damage, give Tenant written notice of Landlord’s election toterminate this Lease.

 

**b.**             If the cost of restoration asestimated by Landlord will equal or exceed fifty percent (50%) of saidreplacement value of the Building and if the Premises are not suitable as aresult of said damage for the purposes for which they are demised hereunder, inthe reasonable opinion of Tenant, then Tenant may, no later than the sixtieth(60th) day following the damage, give Landlord a written notice of election toterminate this Lease.

 

**c.**             If the cost of restoration asestimated by Landlord shall amount to less than thirty percent (30%) of saidreplacement value of the Building, or if, despite the cost, Landlord does notelect to terminate this Lease, and Tenant does not exercise its terminationoption, Landlord shall restore the Building and the Premises with reasonablepromptness, subject to delays beyond Landlord’s control and delays in themaking of insurance adjustments by Landlord; and Tenant shall have no right toterminate this Lease except as herein provided.  Landlord shall not be responsible for restoring or repairingleasehold improvements of Tenant.

 

**d.**             In the event of either of theelections to terminate, this Lease shall be deemed to terminate on the date ofthe casualty and all rentals shall be paid up to that date.  Tenant shall have no claim against Landlordfor the value of any unexpired term of this Lease.

 

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**e.**             In any case where damage to theBuilding shall materially affect the Premises so as to render them unsuitablein whole or in part for the purposes for which they are demised hereunder, thena portion of the rent based upon the amount of the extent to which the Premisesare rendered unsuitable shall be abated until repaired or restored.

 

Notwithstanding anythingcontained in this Article 14 to the contrary, Landlord shall only be obligatedto restore the Premises to the extent of the insurance proceeds actuallyreceived, but if the insurance proceeds actually received do not permitLandlord to restore the Premises, Landlord shall so notify Tenant and eitherLandlord or Tenant may terminate this Lease by written notice given withinsixty (60) days after Landlord’s notice. If Landlord restores the Premises or the Project in accordance with theprovisions of this Section, then Tenant shall not have any right to terminatethis Lease because of such damage pursuant to: (i) any common law rights, (ii) Minnesota Statutes § 504.05 as now ineffect or as it may be hereafter amended or supplemented, or (iii) anycomparable right established by a similar statute.

 

**15.          CASUALTYINSURANCE:**

 

**a.**             Landlord shall at all times duringthe term of this Lease, at its expense, maintain a policy or policies ofinsurance with premiums paid in advance issued by an insurance company licensedto do business in the State of Minnesota insuring the Building against loss ordamage by fire, explosion or other insurable hazards and contingencies for thefull insurable value, provided that Landlord shall not be obligated to insureany furniture, equipment, machinery, goods or supplies not covered by thisLease which Tenant may bring upon the Premises or any additional improvementswhich Tenant may construct or install on the Demised Premise.  Tenant shall at all times during the term ofthis Lease, at its expense maintain a policy or policies of insurance withpremiums paid in advance issued by an insurance company licensed to do businessin the State of Minnesota insuring Tenant’s improvements to the Premises andTenant’s personal property.

 

**b.**             Tenant shall not carry any stock ofgoods or do anything in or about the Premises which will in any way impair orinvalidate the obligation of the insurer under any policy of insurance requiredby this Lease.

 

**c.**             Landlord hereby waives and releasesall claims, liabilities and causes of action against Tenant and its agents,servants and employees for loss or damage to, or destruction of, the Propertyor any portion thereof, including the buildings and other improvements situatedthereon, resulting from fire, explosion and other perils included in standardextended coverage insurance, whether caused by the negligence of any of saidpersons or otherwise.  Likewise, Tenanthereby waives and releases all claims, liabilities and causes of action againstLandlord and its agents, servants and employees for loss or damage to, ordestruction of, any of the improvements, fixtures, equipment, supplies,merchandise and other property, whether that of Tenant or of others, upon orabout the Property resulting from fire, explosion or the other perils includedin standard extended coverage insurance, whether caused by the negligence ofany of said persons or otherwise.  Thewaiver shall remain in force whether or not Tenant’s or Landlord’s insurershall consent thereto.

 

**d.**             In the event that the use of thePremises by Tenant increases the premium rate for insurance carried by Landlordon the improvements of which the Premises are a part, Tenant shall payLandlord, upon demand, the amount of such premium increase.  If Tenant installs any electrical

 

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equipment that overloads thepower lines to the building or its wiring, Tenant shall, at its own expense,make whatever changes are necessary to comply with the requirements of theinsurance underwriter, insurance rating bureau and governmental authoritieshaving jurisdiction.

 

**16.          PUBLICLIABILITY INSURANCE:**

 

Tenant shall during the termhereof keep in full force and effect at its expense a policy or policies ofpublic liability insurance with respect to the Premises and the business ofTenant, on terms with companies approved in writing by Landlord, in Landlordand Landlord’s designees are named as additional insureds under prudent limitsof liability not less than: $1,000,000 for injury/death to any one person;$2,000,000 for injury/death to more than one person, and $1,000,000 withrespect to damage to property.  Suchpolicy(ies) shall: (i)  provide thatsuch policies are primary and Landlord’s policy(ies) are noncontributing; (ii)include a cross-liability endorsement, and (iii) require at lease thirty (30)days prior written notice must be given to Landlord prior to cancellation,expiration or material adverse changes to such policy(ies).  Tenant shall furnish evidence satisfactoryto Landlord at the time this Lease is executed that such coverage is in fullforce and effect.  Landlord shallmaintain a policy or policies of commercial general liability insurance withthe premiums thereon fully paid on or before the due dates, issued by andbinding upon a solvent insurance company authorized to do business inMinnesota, such insurance to afford minimum protection of not less than$2,000,000 combined single limit.

 

**17.          DEFAULTOF TENANT:**

 

**a.**             In the event of any failure ofTenant to pay any rental due hereunder within five (5) days after receipt ofwritten notice that the same is due (provided, however, that Landlord shallhave the obligation to provide written notice of a rental default only one (1)time during any twelve (12) month period), or any failure to perform any otherof the terms, conditions or covenants of this Lease to be observed or performedby Tenant for more than twenty (20) days after written notice of such failureshall have been given to Tenant, or such additional time as may be necessary ifsuch failure cannot be cured within such twenty (20) day period, or if Tenantor an agent of Tenant shall falsify any report required to be furnished toLandlord pursuant to the terms of this Lease, or if Tenant shall becomebankrupt, or file any debtor proceedings or any person shall take or haveagainst Tenant in any court pursuant to any statue either of the United Statesor of any state a petition of bankruptcy or insolvency or for reorganization orfor the appointment of a receiver or trustee of all or a portion of Tenant’sproperty, and such proceeding is not removed within sixty (60) days afterfiling, or if Tenant or any such guarantor makes an assignment for the benefitor creditors, or petitions for or enters into such  an arrangement, or if Tenant shall suffer this Lease to be takenunder any writ of execution, then in any such event Tenant shall be in defaulthereunder, and Landlord, in addition to other rights of remedies it may have,shall have the immediate right or re-entry and may remove all persons andproperty from the Premises and such property may be removed and stored in apublic warehouse or elsewhere at the cost of, and for the account of Tenant,all without service of notice or resort to legal process and without beingguilty of trespass, or becoming liable for any loss or damage which may beoccasioned thereby.

 

**b.**             Should Landlord elect to re-enterthe Premises, as herein provided, or should it take possession of the Premisespursuant to legal proceedings or pursuant to any notice provided for by law, itmay either terminate this Lease or it may from time to time, withoutterminating this Lease, make such alterations and repairs as may be necessaryin order to relet the Premises, and relet the Premises or any part thereof uponsuch term or terms (which may be for a term extending beyond the term of thisLease)

 

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and at such rental or rentalsand upon such other terms and conditions as Landlord in its reasonablediscretion may deem advisable.  Uponeach such subletting all rentals received by Landlord from such reletting shallbe applied first to the payment of any indebtedness other than rent duehereunder from Tenant to Landlord; second, to the payment of any costs andexpenses of such reletting, including brokerage fees and attorney’s fees andcosts of such reasonable alterations (consistent with office use) and repairs;third, to the payment of the rent due and unpaid payment of future rent as thesame may become due and payable hereunder. If such rentals received from such reletting during any month be lessthan that to be paid during that month by Tenant hereunder, Tenant, upondemand, shall pay any such deficiency to Landlord.  No such re-entry or taking possession of the Premises by Landlordshall be construed as an election on its part to terminate this Lease unless awritten notice of such intention be given to Tenant or unless the terminationthereof be decreed by a court of competent jurisdiction.  Notwithstanding any such reletting withouttermination, Landlord may at any time after such re-entry and reletting electto terminate this Lease for any such breach, in addition to any other remediesit may have, it may recover from Tenant all damages it may incur by reason ofsuch breach, including the cost of recovering the Premises, reasonableattorney’s fees, and including the worth at the time of such termination of theexcess, if any, of the amount of rent and charges equivalent to rent reservedin this Lease for the remainder of the stated term, minus the amount of rentalloss which Tenant proves could have been reasonably avoided,  all of which amounts shall be immediatelydue and payable from Tenant to Landlord. Landlord shall also be entitled to any other amounts necessary to compensateLandlord for all detriment proximately caused by Tenant’s failure to complywith the requirements of this Lease, excluding, however, consequential damages.

 

**c.**             Landlord may, at its option,instead of exercising any other rights or remedies available to it in thisLease or otherwise by law, statue or equity, if Tenant has failed to cure thedefault within thirty (30) days after receipt of written notice from Landlord,spend such money as is reasonably necessary to cure any default of Tenant hereinand the amount so spent, and costs incurred, including attorney’s fees incuring such default, shall be paid by Tenant, and additional rent, upon demand.

 

**d.**             In the event suit shall be broughtfor recovery of possession of the Premises, for the recovery of rent of anyother amount due under the provisions of this Lease, or because of the breachof any other covenant herein contained on the part of Tenant to be kept orperformed, and a breach shall be established, Tenant shall pay to Landlord allexpenses reasonably incurred therefor, including a reasonable attorney’s fee,together with interest on all such expenses at the rate of ten percent (10%)per annum from the date of such breach of the covenants of this Lease.

 

**e.**             Tenant  waives any demand for possession of the Premises, and any demandfor payment of rent and any notice of intent to re-enter the Premises, or ofintent to terminate this Lease, other than the notices above provided in thisArticle, and waives any and every other notice or demand prescribed by anyapplicable statues or laws.

 

**f.**              No remedy herein or elsewhere inthis Lease or otherwise by law, statue or equity, conferred upon or reserved toLandlord or Tenant shall be exclusive of any other remedy, but shall becumulative, and may be exercised from time to time and as often as the occasionmay arise.

 

**18.          INDEMNITY& HOLD HARMLESS:**

 

Except to the extent thatliability for damage or loss is caused by the negligence of Landlord, itsagents or employees,  Tenant shallindemnify, protect, defend (at Landlord’s request and with counsel

 

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reasonably approved byLandlord) and hold Landlord and Landlord’s affiliates and each of theirrespective partners, directors, officers, shareholders and employees harmlessfrom and against every demand, claim, cause of action, judgment and expense,including, but not limited to, reasonable attorneys’ fees and disbursements ofcounsel, whether suit is initiated or not, and all loss and damage arisingfrom: (a) any injury, loss or damage to the person or property of Tenant, anyother tenant in the Property or to any other person rightfully in the Property,(i) occurring in or about the Premises, or (ii) caused by the negligence ormisconduct of Tenant, or Tenant’s affiliates or any of their respectiveemployees, representatives, agents or contractors, or (iii) resulting from theviolation of any legal requirements or the provisions of this Lease by Tenant,or Tenant’s affiliates or any of their respective employees, representatives,agents or contractors; (b) any loss or damage to books, records, computer orother electronic equipment, data or media, files, artwork, money, securities,negotiable instruments or papers in the Premises; or (c) any loss or damageresulting from interference with or obstruction of deliveries to or from thePremises caused by Tenant or Tenant’s affiliates or any of their  respective employees, representatives,agents or contractors.  All propertykept, maintained or stored on the Premises shall be so kept, maintained orstored at the sole risk of Tenant, except for the negligence of Landlord.

 

If any mechanic’s lien is filedagainst any part of the Property for work claimed to have been done for, ormaterials claimed to have been furnished to, Tenant, such mechanic’s lien shallbe discharged by Tenant within thirty (30) days thereafter, at Tenant’s solecost and expense, by the payment thereof or by making any deposit required bylaw or by posting a bond with such surety, in such amount and in such form asLandlord deems proper.  Tenant shallimmediately notify Landlord of any mechanic’s lien or other lien filed againstthe Property or any part thereof by a contractor or subcontractor of Tenant orotherwise by reason of work claimed to have been done for or materials claimedto have been furnished to Tenant.  IfTenant fails to remove such lien or post such bond within the thirty (30) dayperiod following the filing thereof, Landlord may, at its sole discretion andwithout waiving its rights and remedies based on such breach by Tenant andwithout releasing Tenant from any of its obligations, cause such lien to bereleased by any means it shall deem proper, including payment in satisfactionof the claim giving rise to such lien. Tenant shall, in such event, pay to Landlord at once, upon notice byLandlord, any sum paid by Landlord to remove such lien, together with interestat the rate of 12% from the date of such payment by Landlord.  Landlord shall have the right at all timesto post and keep posted on the Premises any notices permitted or required byapplicable law, or that Landlord shall deem proper for the protection ofLandlord, the Premises, the Property and any other party having an interesttherein, from liens.  All materialsuppliers, contractors, artisans, mechanics, laborers and other partiescontracting with Tenant for the furnishing of any labor, services, materials,supplies or equipment with respect to any portion of the Premises are herebycharged with notice that they must look solely to Tenant for payment of thesame and Tenant’s purchase orders, contracts and subcontracts in connectiontherewith must clearly state this requirement.

 

**19.          NON-LIABILITY:**

 

Subject the terms andconditions of *Article 14* hereof, Landlord shall not be liable for damageto any property of Tenant or of others located on the Property, not for theloss of or damage to any property of Tenant or of others by theft or otherwise.Landlord shall not be liable for any injury or damage to persons or propertyresulting from fire, explosion, falling plaster, steam, gas, electricity,water, rain or snow or leaks from any part of the Property or from the pipes,appliances, or plumbing works or from the roof, street or subsurface or fromany other place or by dampness or by any other cause of whatsoever nature.  Landlord shall not be liable for any suchdamage caused by other Tenants or persons

 

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in the Property, occupants ofadjacent property, of the buildings, or the public or caused by operations inconstruction of any private, public or quasi-public work.  Landlord shall not be liable for any latentdefect in the Premises.  All property ofTenant kept or stored on the Premises shall be so kept or stored at the risk ofTenant only and Tenant shall hold Landlord harmless from any claims arising outof damage to the same, including subrogation claims by Tenant’s insurancecarrier.

 

Notwithstanding the foregoing,unless caused by Tenant’s negligence or misconduct, Landlord shall indemnifyand hold Tenant harmless from and against every demand, claim, cause of action,judgment and expense and all loss or damage which may be asserted againstTenant arising from any injury or damage to person or property of any otherBuilding tenant, or any other person in the Building, or results from theviolation of any governmental laws or ordinances by Landlord, its employees,agents or contractors**.**

 

**20.          SUBORDINATION:**

 

This Lease shall besubordinated to any mortgages, deeds of trust, security agreements, groundleases, master leases or other encumbrances (collectively, “Encumbrances”) thatmay now exist or that may hereafter be placed upon the Property, or any partthereof, and to any and all advances made thereunder, and to the interest uponthe indebtedness evidenced by such Encumbrances, and to all renewals,replacements and extensions of any of the Encumbrances.  In the event of execution by Landlord afterthe date of this Lease of any such Encumbrance, renewal, replacement orextension, Tenant agrees,  within ten(10) days of its receipt, to execute and return any commercially reasonablesubordination agreement required by the holder of such Encumbrance, whichagreement shall provide that:

 

**a.**             Such holder shall not disturb thepossession and other rights of Tenant under this Lease so long as Tenant is notin default hereunder;

 

**b.**             In the event of acquisition oftitle to the Premises by such holder, such holder shall accept Tenant as Tenantof the Premises under the terms and conditions of this Lease and shall performall the obligations of Landlord hereunder; and

 

**c.**             In the event of such Tenant shallrecognize such holder as Landlord hereunder.

 

Tenant shall, upon receipt of arequest from Landlord therefore, within ten (10) days after receipt of suchrequest, execute and deliver to Landlord or to any proposed holder of anEncumbrance, an estoppel certificate in recordable form, certifying that thisLease is in full force and effect, and that there are no offsets against rentnor defenses to Tenant’s performance under this Lease, or setting further anysuch offsets or defenses claimed by Tenant, as the case may be.  In the event that Tenant fails to executeand return the estoppel certificate within such ten (10) day period, the holderof such Encumbrance shall be entitled to rely, as against the Tenant, that: (i)this Lease is in full force and effect, without amendment except as specifiedby the Landlord, (ii) Tenant has no offsets against rent nor any defenses toTenant’s performance under this Lease, (iii) Tenant has no right to any offsetor defenses to the payment of rent, and (iv) Tenant has not paid any rentalunder this Lease more than one month in advance.

 

Tenant agrees to give promptwritten notice to the holder of each Encumbrance who has given Tenant writtennotice of its address of any default by Landlord under this Lease which wouldentitle Tenant to terminate or cancel this Lease or abate the rental payablehereunder.

 

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If a mortgage encumbers theProperty, then prior to the Commencement Date, Landlord shall deliver to Tenanta non-disturbance agreement from all existing mortgagees of the Propertypursuant to a form reasonably acceptable to Tenant.

 

**21.          ASSIGNMENTOR SUBLETTING:**

 

Tenant agrees to use and occupythe Premises throughout the entire term hereof for the purpose or purposesherein specified and for no other purposes, in the manner and to substantiallythe extent now intended, and not to assign, sublet, license, concession orotherwise transfer this Lease or Tenant’s rights in the Premises, or any partthereof, whether by voluntary act, operation of law, or otherwise, withoutobtaining the prior written consent of Landlord in each instance.  Tenant shall seek such consent of Landlordby a written request therefor, setting forth such information as Landlord mayreasonably deem necessary. Landlord agrees not to withhold consentunreasonably.  Consent by Landlord toany assignment of this Lease or to any subletting of the Premises shall not bea waiver of Landlord’s rights under this Article as to any subsequentassignment or subletting.  Tenant willbe responsible for Landlord’s reasonable attorney fees for review and approvalof the sublease document.  Landlord’srights to assign this Lease are and shall remain unqualified.  No such assignment or subleasing shallrelieve Tenant from any of Tenant’s obligations in this Lease contained, norshall any assignment or sublease or other transfer of this Lease be effectiveunless the assignees, subtenant or transferee shall at the time of suchassignment, sublease or transfer, assume in writing for the benefit ofLandlord, its successors or assigns, all of the terms, covenants and conditionsof this Lease thereafter to be performed by Tenant and shall agree in writingto be bound thereby.  Should Tenantsublease in accordance with the terms of this Lease, fifty percent (50%) of anyprofit received by Tenant shall be forwarded to and retained by Landlord, whichincrease shall be in addition to the Base Rent and Additional Rent due Landlordunder this Lease.  Notwithstanding theforegoing, Tenant shall have the right to assign or sublet the Premises withoutLandlord’s consent to any of the following (a “Permitted Transferee”): (i) anysuccessor corporation or other entity resulting from the merger orconsolidation of Tenant; or (ii) any entity that which controls, is controlledby, or is under common control with Tenant.

 

**22.          ATTORNMENT:**

 

In the event of any sale,transfer or assignment of Landlord’s interest in the Property, or the Buildingin which the Premises are located, or this Lease, or if the Property come intocustody or possession of a mortgagee or any other party whether because of amortgage foreclosure, or otherwise, Tenant shall attorn to such assignee orother party and recognize such party as Landlord hereunder; provided, howeverTenant’s peaceable possession pursuant to the terms of this Lease will not bedisturbed so long as Tenant faithfully performs its obligations under thisLease.  Tenant shall execute, on demand,any commercially reasonable  attornmentagreement required by any such party to be executed, containing such provisionsand such other provisions as such party may require.

 

**23.          NOVATIONIN THE EVENT OF SALE:**

 

In the event of the sale of thePremises, Landlord shall be and hereby is relieved of all of the covenants andobligations created hereby accruing from and after the date of sale, and suchsale shall result automatically in the purchaser assuming and agreeing to carryout all the covenants and obligations of Landlord herein.  Notwithstanding the foregoing provisions ofthis Article, Landlord, in the event of a sale of the Premises, shall cause tobe included in this agreement of sale and purchase a covenant

 

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whereby the purchaser of thePremises assumes and agree to carry out all of the covenants and obligations ofLandlord herein.

 

The Tenant agrees at any timeand from time to time upon not less than ten (10) days prior written request byLandlord to execute, acknowledge and deliver to Landlord a statement in writingcertifying that this Lease is unmodified and in full force and effect asmodified and stating the modifications, and the dates to which the basic rentand other charges have been paid in advance, if any, it being intended that anysuch statement delivered pursuant to this paragraph may be relied upon by anyprospective purchaser of the fee or mortgagee or assignee of any mortgage uponthe fee of the Premises.  In the eventthat Tenant fails to execute and return the estoppel certificate within suchten (10) day period, the holder of such Encumbrance shall be entitled to rely,as against the Tenant, that: (i) this Lease is in full force and effect,without amendment except as specified by the Landlord, (ii) Tenant has nooffsets against rent nor any defenses to Tenant’s performance under this Lease,(iii) Tenant has no right to any offset or defenses to the payment of rent, and(iv) Tenant has not paid any rental under this Lease more than one month inadvance.

 

**24.          SUCCESSORSAND ASSIGNS:**

 

The terms, covenants andconditions hereof shall be binding upon and inure to the successors and assignsof the parties hereto.

 

**25.          REMOVALOF FIXTURES:**

 

Notwithstanding anythingcontained in Article 8, Article 29 or elsewhere in this Lease, if Landlordrequests in writing at the time Tenant commences installation of any fixture,equipment or alterations, excluding the initial improvements, the Tenant will removeat the sole cost and expense of Tenant such fixtures, equipment and alterationsmade by Tenant simultaneous with vacating the Premises and Tenant will promptlyrestore said Premises to the condition that existed immediately prior to saidfixtures, equipment and alternations having been made all at the sole cost andexpense of Tenant, subject to reasonable wear and tear.  Notwithstanding anything to the contrary setforth in this Lease, in no event shall Tenant have any obligation to remove anycabling from the Premises, including, without limitation, voice or datacabling.

 

**26.          QUIETENJOYMENT:**

 

Landlord warrants that it hasfull right to execute and to perform this Lease and to grant the estatedemised, and that Tenant, upon payment of the rents and other amounts due andthe performance of all the terms, conditions, covenants and agreements onTenant’s part to be observed and performed under this Lease, may peaceably andquietly enjoy the Premises for the business uses permitted hereunder, subject, nevertheless,to the terms and conditions of this Lease.

 

**27.          RECORDING:**

 

Tenant shall not record thisLease without the written consent of Landlord. However, upon the request of either party hereto, the other party shalljoin in the execution of the Memorandum lease for the purposes ofrecordation.  Said Memorandum leaseshall describe the parties, the Premises and the term of the Lease and shallincorporate this Lease by reference. This *Article27* shall not be construed to limit Landlord’s right to file thisLease under*Article 22*of this Lease.

 

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**28.          OVERDUEPAYMENTS:**

 

All monies due under this Leasefrom Tenant to Landlord shall be due on demand, unless otherwise specified andif not paid within five (5) days of when due, shall result in the imposition ofa service charge for such late payment in the amount of five percent (5%) ofthe amount due.  All unpaid ordelinquent rents and Tenant obligations of any kind shall accrue interest atthe rate of one and one-half (1-1/2%) percentage per month from and after thedue date.

 

**29.          SURRENDER:**

 

On the Expiration Date or uponthe termination hereof upon a day other than the Expiration Date, Tenant shallpeaceably surrender the Premises broom-clean in good order, condition andrepair, reasonable wear and tear, casualty damage and condemnation damage onlyexcepted.  On or before the ExpirationDate or upon termination of this Lease on a day other than the Expiration Date,Tenant shall, at its expense, remove all trade fixtures, personal property andequipment and signs from the Premises and any property not removed shall bedeemed to have been abandoned.  Anydamage caused in the removal of such items shall be repaired by Tenant and atits expense.  If the Premises are notsurrendered on the Expiration Date or the date of termination, Tenant shallindemnify Landlord against loss or liability, claims, without limitation, madeby any succeeding Tenant founded on such delay.  Tenant shall promptly surrender all keys for the Premises toLandlord at the place then fixed for payment of rent and shall inform Landlordof combinations of any locks and safes on the Premises.

 

**30.          HOLDINGOVER:**

 

In the event of a holding overby Tenant after expiration or termination of this Lease without the consent inwriting of Landlord, Tenant shall be deemed a Tenant at sufferance and shallpay rent for such occupancy at the rate of one hundred fifty percent (150%) thelease-current aggregate Base Rent, prorated for the entire holdover period,plus all reasonable attorney’s fees and expenses incurred by Landlord inenforcing its rights hereunder, plus any other damages occasioned by suchholding over.  Except as otherwiseagreed, any holding over with the written consent of Landlord shall constituteTenant a month-to-month Tenant.

 

**31.          ABANDONMENT:**

 

In the event Tenant shallremove its fixtures, equipment or machinery or shall vacate the Premises or anypart thereof prior to the Expiration Date of this Lease, or shall discontinueor suspend the operation of its business conducted on the Premises, Tenantshall not be deemed to have abandoned the Premises and Tenant shall not be indefault under the terms of this Lease unless Tenant fails to pay the Landlordthe Base Rent and Additional Rent within the time frames described herein.

 

**32.          CONSENTSBY LANDLORD:**

 

Whenever provision is madeunder this Lease for Tenant securing the consent or approval by Landlord, suchconsent or approval shall only be in writing and shall not be unreasonablywithheld.

 

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**33.          NOTICES:**

 

Any notice required orpermitted under this Lease shall be deemed sufficiently given or secured ifsent by registered or certified return receipt mail to Tenant at address asprovided in *Definitions*on Page 1 of Lease and to Landlord at the address as provided in *Article 4*of this Lease, and either party may by like written notice at any timedesignate a different address to which notices shall subsequently be sent orrent to be paid.

 

**34.          RULESAND REGULATIONS:**

 

Tenant shall observe and complywith the reasonable rules and regulations as Landlord may prescribe, on writtennotice to Tenant for the safety, care and cleanliness of the Building.

 

**35.          INTENTOF PARTIES:**

 

Except as otherwise providedherein, Tenant covenants and agrees that if it shall any time fail to pay anysuch cost or expenses, or fail to take out, pay for, maintain or deliver any ofthe insurance policies above required, or fail to make any other payment orperform any other act on its part to be made or performed as in this Leaseprovided within a reasonable time after receipt of written notice from Tenant,then Landlord may, but shall not be obligated so to do, and without notice toor demand upon Tenant and without waiving or releasing Tenant from anyobligations of Tenant in this Lease contained, pay any such cost or expense,effect any such insurance coverage and pay premiums therefor, and may make anyother payment or perform any other act on the part of Tenant to be made andperformed as in this Lease provided, in such manner and to such extent asLandlord may deem desirable, and in exercising any such right, to also pay allnecessary and incidental costs and expenses, employ counsel and incur and payreasonable attorneys’ fees.  All sums sopaid by Landlord and all necessary and incidental costs and expenses inconnection with the performance of any such act by Landlord, together withinterest thereon at the rate of twelve percent (12%) per annum from the date ofmaking of such expenditure, by Landlord, shall be deemed additional renthereunder, and shall be payable to Landlord on demand.  Tenant covenants to pay any such sum or sumswith interest as aforesaid and Landlord shall have the same rights and remediesin the event of the non-payment thereof by Tenant as in the case of default byTenant in the payment of the Base Rent payable under this Lease.

 

**36.          GENERAL:**

 

**a.            **The Leasedoes not create the relationship of principal and agent or of partnership or ofjoint venture or of any association between Landlord and Tenant, the solerelationship between the parties hereto being that of Landlord and Tenant.

 

**b.            **No waiverof any default of Tenant hereunder shall be implied from any omission byLandlord to take any action on account of such default if such default persistsor is repeated, and no express waiver shall affect any default other than thedefault specified in the express waiver and that only for the time and to theextent therein stated.  One or morewaivers by Landlord shall not then be construed as a waiver of a subsequentbreach of the same covenant, term or condition.  The consent to or approval by Landlord of any act by Tenantrequiring Landlord’s consent or approval shall not waive or render necessaryLandlord’s consent to or approval of any subsequent similar act by Tenant.  No action specifically required or permittedto be taken by or on behalf of Landlord under the terms or provisions of thisLease shall be deemed to constitute an eviction or disturbance of Tenant’spossession of the

 

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Premises, except as otherwiseset forth herein.  All preliminarynegotiations are merged into and incorporated in this Lease.  The laws of the State of Minnesota shallgovern the validity, performance and enforcement of this Lease.

 

**c.**             This Lease and the exhibits, ifany, attached hereto and forming a part hereof, constitute the entire agreementbetween Landlord and Tenant affecting the Premises and there are no otheragreements, either oral or written, between them other than are herein setforth.  No subsequent alteration,amendment, change or addition to this Lease shall be binding upon Landlord orTenant unless reduced to writing and executed in the same form and manner in whichthis Lease is executed.

 

**d.**             If any agreement, covenant orcondition of this Lease or the application thereof to any person orcircumstances shall, to any extent, be invalid or unenforceable, the remainderof this Lease, or the application of such agreement, covenant or condition topersons or circumstances other than those as to which it is held invalid orunenforceable, shall not be affected thereby and each agreement, covenant orcondition of this Lease shall be valid and be enforced to the fullest extentpermitted by law.

 

**e.**             The obligations of Landlord underthis Lease do not constitute the personal obligations of the individualpartners, members, trustees, shareholders, directors or officers of Landlord orits constituent members or partners.  IfLandlord shall fail to perform any covenant, term or condition of this Leaserequired of Landlord, Tenant shall be required to deliver to Landlord writtennotice of the same.  If Landlord failsto cure such breach within thirty (30) days after receipt of written noticefrom Tenant or immediately in the event of an emergency, then Tenant shall havethe right to cure such breach and deduct the costs from the Base Rent payableunder the terms of this Lease.  If, as aconsequence of such default, Tenant shall recover a money judgment againstLandlord, such judgment shall be satisfied only out of the proceeds of salereceived upon execution of such judgment and levied thereon against the right,title and interest of Landlord in the Property and out of rent or other incomeform the Property receivable by Landlord, or out of consideration received byLandlord from the sale or other disposition of all or any part of Landlord’sright, title or interest in the Property, and no action for any deficiency maybe sought or obtained by Tenant.

 

**37.          HAZARDOUSMATERIAL:**

 

**a.**             The Premises hereby leased shall beused by and/or at the sufferance of Tenant only for the purpose set forth in*Article 11*aboveand for no other purposes.  Tenant shallnot use or permit the use of the Premises in any manner that will tend tocreate waste or a nuisance, or will tend to unreasonably disturb other Tenantsin the Building or the Property. Tenant, its employees and all persons visiting or doing business withTenant in the Premises shall be bound by and shall observe the reasonable rulesand regulations made by Landlord relating to the Premises, the Building or theProperty of which notice in writing shall be given to Tenant, and all suchrules and regulations shall be deemed to be incorporated into and form a partof this Lease.

 

**b.**             Tenant covenants throughout theLease Term, at Tenant’s sole cost and expense, promptly to comply with all lawsand ordinances and the orders, rules and regulations and requirements of allfederal, state and municipal governments and appropriate departments,commissions, boards, and officers thereof, and the orders, rules andregulations of the Board of Fire Underwriters where the Premises are situated,or any other body now or hereafter created with jurisdiction over the Premises,and whether or not the same require structural repairs or alterations, whichmay be applicable to the Premises, or the use or manner of use of the Premises but only if the requirements apply to Tenant’s

 

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specificuse of the Premises and not to office or retail use generally, and otherwiseLandlord shall be responsible for such compliance.  Tenant will likewise observe and comply withthe requirements of all policies of public liability, fire and all otherpolicies of insurance at any time in force with respect to the buildings andimprovements on the Premises and the equipment thereof but only if the requirements apply to Tenant’s specific use of thePremises and not to office or retail use generally, and otherwise Landlordshall be responsible for such compliance.

 

**c.**             In the event any Hazardous Material(hereinafter defined) is brought or caused to be brought into or onto thePremises, the Building or the Property by Tenant, Tenant shall handle any suchmaterial in compliance with all applicable federal, state and/or localregulations.  For purposes of thisArticle, “Hazardous Material” means and includes any hazardous, toxic ordangerous waste, substance or material defined as such in (or for purposes of)the Comprehensive Environmental Response, Compensation, and Liability Act, andso-called “Superfund” or “Superlien” law, or any federal, state or localstatue, law, ordinance, code, rule, regulation, order decree regulation,relating to, or imposing liability or standards of conduct concerning, anyhazardous, toxic or dangerous waste, substance or material, as now or at anytime hereafter in effect.  Tenant shallsubmit to Landlord on an annual basis copies of its approved hazardousmaterials communication plan, OSHA monitoring plan, and permits required by theResource Recovery and Conservation Act of 1976, if Tenant is required toprepare, file or obtain any such plans or permits.  Tenant will indemnify and hold harmless Landlord from any losses,liabilities, damages, costs or expenses (including reasonable attorneys’ fees)which Landlord may suffer or incur as a result of Tenant’s introduction into oronto the Premises, Building or Property of any Hazardous Material.  This Article shall survive the expiration orsooner termination of this Lease.

 

Notwithstandingthe foregoing, Landlord shall indemnify, defend and hold harmless Tenant, itsofficers, directors, agents, employees, and invitees from and against any andall claims, damages, fines, judgments, penalties, costs, expenses orliabilities (including, without limitation, any and all sums paid forsettlement of claims, attorney’s fees, consultant and expert fees) arising anytime from or in connection with the use, storage, generation or disposal ofHazardous Materials in, on, or about the Building, Premises or Property, exceptto the extent caused by Tenant, Tenant’s agents, employees, contractors, orinvitees.

 

**38.          CAPTIONS:**

 

The captions are inserted onlyas a matter of convenience and for reference, and in no way define, limit ordescribe the scope of this Lease nor the intent or any provision thereof.

 

**39.          ATTACHMENTS:**

 

See also rider attached heretoand made a part hereof containing Article 1 through Article 49 inclusive aswell as *ExhibitsA*through *Exhibit E* inclusive, which Exhibits areattached hereto and made a part hereof.

 
| **Exhibit** |   | **Description**                   |
|-------------|--------|-----------------------------------|
| Exhibit A   |   | Legal  Description                |
| Exhibit B   |   | Demised  Premises                 |
| Exhibit C   |   | Exclusions  to Operating Expenses |
| Exhibit D   |   | Building  Rules and Regulations   |
| Exhibit E   |   | Improvements                      |

 

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**40.          SUBMISSION:**

 

Submission of this instrumentto Tenant or proposed Tenant or his agents or attorneys for examination,review, consideration or signature does not constitute or imply an offer tolease, reservation of space, or option to lease, and this instrument shall haveno binding legal effect until execution hereof by both Landlord/Owner andTenant or its agents.

 

**41.          REPRESENTATION:**

 

It is agreed and understood thatJonathan R. Yanta and Jason J. Meyer, agents or brokers with United PropertiesBrokerage LLC, are representing Moen Leuer Properties, Inc., Landlord, andMichael Smith, agent(s) or broker(s) with Grubb & Ellis, is representingCiprico, Inc., the Tenant in this transaction.

 

IN WITNESSWHEREOF, Landlord and Tenant have caused these presents to be executed in formand manner sufficient to bind them at law, as of the day and year first abovewritten.

 
| **Landlord:** |   | **Moen Leuer Properties, Inc.,  A Minnesota corporation** |                    |
|---------------|--------|-----------------------------------------------------------|-------------------------|
|          |   |                                                      |                    |
|          |   | By:                                                       | /s/ Bradley  Moen       |   |
|          |   | Name:  Bradley Moen                                       |                    |
|          |   | Its:  Governor                                            |                    |
|          |   |                                                      |                    |
| **Tenant:**   |   | **Ciprico Inc.****A Minnesota corporation**               |                    |
|          |   |                                                      |                    |
|          |   | By:                                                       | /s/ Thomas  S. Wargolet |   |
|          |   | Name: Thomas  S. Wargolet                                 |                    |
|          |   | Its:  VP-Finance/CFO                                      |                    |

 

 

STATE OF 

ss.

COUNTY OF 

 

On this             dayof               ,20      , personally came before me, a Notary Publicwithin and for said County,                                    and                                   ,to me well known to be the same persons described in and who executed theforegoing instrument, and acknowledged that they executed the same as theirfree act and deed.

 

 

Notary Public

My commission expires: January31, 2005

 

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**LEASE ADDENDUM**

 

This Indentureof Lease, dated this 12th day of June, 2002 by and between MoenLeuer Properties, Inc., a Minnesota corporation (“Landlord”), and Ciprico Inc.a Minnesota corporation (“Tenant”), is attached to and made a part of thatcertain Commercial Lease of even date hereof (the “Lease Form”).  The Lease Form as modified by this Addendumis hereinafter referred to as the Lease. Except to the extent otherwise defined below, all capitalized terms usedin this Addendum shall be as defined in the Lease Form.

 

Landlord andTenant mutually agree as follows:

 

Any provisionof the Lease Form to the contrary notwithstanding, the following provisionsshall apply:

 

**42.**          **Base Rental:**

 
| **Years** |   | **Price Per  Square  Foot** |   | **Monthly** |   | **Annually** |   |
|-----------|--------|-----------------------------|--------|-------------|--------|--------------|--------|
| 1-3:      |   | $                           | 8.56   |        | $      | 27,924.86    |   | $ | 335,098.00 |   |
| 4:        |   | $                           | 8.84   |        | $      | 28,838.29    |   | $ | 346,059.48 |   |
| 5:        |   | $                           | 9.08   |        | $      | 29,621.23    |   | $ | 355,454.76 |   |
| 6-7:      |   | $                           | 9.22   |        | $      | 30,077.95    |   | $ | 360,935.34 |   |

 

**43.          AmountsDue Upon Lease Execution:** The Security and DamageDeposit described in *Article 10*of the Lease herein($30,000.00) shall be due upon execution of the Lease.  Tenant shall submit to Landlord a check inamount representing the first month’s Base Rent ($27,924.86) and AdditionalRent on or before the first day of the first month of the Term.

 

**44.          Free Rent:**  Landlord will provide Tenant one (1) monthof free Base Rent and Additional Rent after completion of the LeaseholdImprovements but prior to the Commencement Date to set-up equipment.

 

**45.****                               Leasehold Improvements:** Landlordshall construct the leasehold improvements pursuant to the plans andspecifications for the leasehold improvements attached hereto as Exhibit E (the“Leasehold Improvements”).  Landlordagrees to be responsible for the cost of the Leasehold Improvements per theagreed to space plan. To the extent that the Tenant adds any additional TenantImprovement costs to the agreed to space plan, Tenant shall be responsible forthe excess costs; provided, however that Landlord must obtain Tenant’s priorwritten consent before expending any sums in excess of the agreed to spaceplan.  The portion of the LeaseholdImprovement Cost, which is Tenant’s responsibility shall be paid by Tenantwithin thirty (30) days of the completion of the Leasehold Improvements asevidenced by a certificate of occupancy or a certificate of Tenant’s architector engineer.

 

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On or prior to October 1, 2002,Landlord and Tenant shall jointly inspect the Premises to determine if thePremises are in the condition required under Exhibit E.  If the Premises are in the conditionrequired by Exhibit E, the Term shall be deemed to commence in accordance withthe provisions of the Lease.

 

If the Premises are not in thecondition required by the Lease, Tenant may conditionally accept the Premisesusing the following procedure: Tenant shall deliver to Landlord a list of theitems which Landlord must complete or remediate in order to bring the Premisesinto compliance with the Lease and the time period within which each said itemis to be completed (each of which dates shall be referred to as the “agreedcompletion date” for that item.  Suchitems on the list (“Punchlist”) shall be attached to a conditional acceptanceletter to be prepared by Tenant.  If theitems on the Punchlist are not completed according to the provisions of thePunchlist on or prior to the agreed completion date for each said item,Landlord shall continue to be obligated to complete each said item inaccordance with the terms of the Punchlist and conditional acceptance letter,but Tenant shall be entitled to complete the uncompleted items on its own, inwhich event Tenant shall be entitled to set off against the Base Rent thereasonable costs of completing the items in question unless Landlord shallreimburse Tenant for the reasonable costs incurred by Tenant in completing saiditems, within ten (10) days following written demand by Tenant for suchreimbursement. Tenant reserves the right to object to latent defects in thePremises.

 

**46.****                               Optionto Renew**: Landlord hereby grants toTenant two (2) options (the “Renewal Options”) to renew this LeaseAgreement for a term of three (3) years each (“Renewal Terms”), for allportions of the Premises then being leased by Tenant as of the date theapplicable Renewal Term is to commence. Each Renewal Term shall be on the same terms and conditions as set forthin this Lease Agreement, except as modified by the terms, covenants andconditions as set forth below:

 

a.             If Tenant elects to exercise saidoption, then Tenant shall provide Landlord with written notice nine (9) monthsprior to the expiration of the then current Term of the Lease Agreement(“Renewal Notice”).  If Tenant fails toprovide such notice, Tenant shall have no right to extend or renew the Term ofthe Lease Agreement; provided, however, that Landlord agrees to provide Tenantwith written notice of the deadline for exercising the Renewal Notice twelve(12) months prior to the expiration of the Term.  Time is of the essence with respect to the giving of such RenewalNotice.  The Renewal Notice shall begiven in the manner provided in the Lease Agreement for the giving of noticesto Landlord.

 

b.             Within ten (10) days of Landlord’sreceiving Tenant’s Renewal Notice, Landlordshall notify Tenant of Landlord’s determination of the “Fair Rental Rate” to beapplicable during the Renewal Term (“Landlord’sRate Notice”).  If the FairRental Rate as set forth in Landlord’s Rate Notice is acceptable to Tenant,then Tenant’s exercise of said Renewal Option shall be complete.  If the Fair Rental Rate as set forth inLandlord’s Rate Notice is not acceptable to Tenant, Tenant must provideLandlord with written notice on or before thirty (30) days subsequent to thereceipt of Landlord’s Rate Notice.  IfTenant has so timely objected in writing to Landlord’s Rate Notice, thenLandlord and Tenant shall negotiate, in good faith, for up to an

 

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additional thirty (30) days toarrive at a mutually acceptable Fair Rental Rate, which is within thedefinition thereof as set forth below. If, however, at the end of said additional thirty (30) day periodLandlord and Tenant have failed to arrive at a mutually acceptable Fair RentalRate, then Tenant, within ten (10) days after expiration of said thirty (30)day period, shall either terminate the exercise of its Renewal Option or electto have Fair Rental Value be determined by an arbitrator in accordance withthis Article.  All notices under thisParagraph shall be given in the manner provided in the Lease Agreement for the givingof notices.

 

c.             Upon the exercise of the RenewalOption, whether by Tenant’s acceptance of Landlord’s determination of the FairRental Rate as set forth in Landlord’s Rate Notice, or by a mutually acceptable negotiated Fair Rental Rate pursuant to paragraphb of this Article; then the parties shall memorialize the exercise of the Renewal Option byexecuting an amendment to the Lease Agreement to extend the Term of the LeaseAgreement for the Renewal Term, upon the same terms and conditions herein contained;provided, however, that the monthly installments of Base Rent payable by Tenantto Landlord for the Renewal Term shall be at the Fair Rental Rate as determinedby the foregoing paragraph b of this Article.

 

d.             For purposes of this Article, “FairRental Rate” means the Base Rent that a tenant would pay to a landlord under alease containing other terms and conditions substantially as set forth hereinwith respect to comparable premises in a comparable building in the westernsuburban metropolitan area of Minneapolis, Minnesota.

 

e.             In the eventLandlord and Tenant have not agreed on the Fair Rental Rate for the RenewalTerm within thirty (30) days as set forth above, then the Fair Rental Rateshall be determined by appraisal in accordance with the rules from the AmericanArbitration Association.

 

**47.          Expansion:**  **EXPANSIONRIGHTS-FIRST REFUSAL**

 

Subject to theterms and conditions of this Article 47, Landlord grants to Tenant a right offirst refusal to lease the space within the Building located adjacent to thePremises (the “First Refusal Space’). If Landlord enters into good faith negotiations with any third party tolease all or any part of the First Refusal Space and receives from such thirdparty a letter of intent or similar document acceptable to Landlord inLandlord’s sole discretion to lease all or any part of the First Refusal Space,Landlord will notify Tenant of the terms and conditions of the proposed leasebetween Landlord and the third party and provide Tenant with a copy of theletter of intent or similar document.

 

If Tenantdesires to lease the portion of the First Refusal Space that is the subject ofthe negotiations between Landlord and the third party on the same terms andconditions described in Landlord’s notice to Tenant and the letter of intent orsimilar document, Tenant will so notify Landlord within ten (10) business daysafter the date of Landlord’s notice to Tenant. If Tenant does not so notify Landlord within the ten (10) business dayperiod, Landlord may lease the subject portion of the First Refusal Space tothe third party on only the same terms and conditions described in Landlord’snotice to Tenant and the letter of intent or similar document (or on terms andconditions more favorable to Landlord). If Tenant notifies Landlord within the ten (10) business day period thatTenant desires to lease the subject portion of the First Refusal Space,Landlord and Tenant will proceed in good faith to negotiate an amendment tothis Lease to reflect the addition of the subject portion of the First RefusalSpace to the Premises; provided however that the term of the First RefusalSpace shall be coterminous

 

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with the Term for the Premises.

 

If Tenantfails to exercise its expansion rights after receipt of Landlord’s Notice underthis Article and, prior to Landlord’s execution of a lease with the thirdparty, the terms and conditions of the transaction between Landlord and thethird party change to be less favorable to Landlord than the terms andconditions described in Landlord’s notice to Tenant or the letter of intent orsimilar document, Landlord will notify Tenant of the revised terms andconditions.  If Tenant desires to leasethe subject portion of the First Refusal Space on the revised terms andconditions, Tenant must so notify Landlord within five (5) business days afterthe date of Landlord’s notice.  IfTenant so notifies Landlord within the five (5) business day period, Landlordand Tenant will negotiate an amendment to this Lease.

 

Landlord shallbe obligated to offer the First Refusal Space to Tenant pursuant to theconditions set for in this Article 47 each time Landlord attempts to lease allor any portion of the First Refusal Space.

 

The rights setforth herein are subordinate to the current expansion and renewal rights of thecurrent contiguous Tenant, Pulmonetics, pursuant to the terms of the existinglease between Pulmonetics and Landlord dated March 29, 2002.

 

**48.          Options to Terminate:**  Provided (a) on or before the last day ofthe twenty-seventh (27th) month of the Term, Tenant delivers written notice toLandlord advising Landlord that Tenant desires to terminate this Lease as ofthe end of the thirty-sixth (36th) month of the Term, and (b) Tenantdelivers to Landlord a payment in the amount of Six Hundred Eighty Thousand and00/100 Dollars ($680,000.00) no later than the effective date of termination,then this Lease shall be deemed to terminate on the last day of thethirty-sixth (36th) month of the term.  Upon such termination, Tenant shall have no obligationshereunder.  If Tenant does not exercisethe First Termination Option, then provided (a) on or before the last day ofthe fifty-first (51st) month of the initial term, Tenant delivers writtennotice to Landlord advising Landlord that Tenant desires to terminate thisLease as of the end of the sixtieth (60th) month of the Term, and(b) Tenant delivers to Landlord a payment in the amount of Forty-two Thousandand 00/100 Dollars ($42,000.00) no later than the effective date oftermination, then this Lease shall be deemed to terminate on the last day ofthe-sixtieth (60th) month of the initial term.  (the “Second Termination Option”.)  Upon such termination, Tenant shall have noobligations hereunder.

 

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**49.          Directional Signage:**Prior to October 1, 2002, Landlord shall provide, at its sole cost and expense,prominent directional signage to the Premises in accordance with Tenant’sinstructions as to location and design.

 
| **Tenant:**          |   | **Ciprico Inc.**                |                         |
|----------------------|--------|---------------------------------|------------------------------|
|                 |   | **A Minnesota corporation**     |                         |
|                 |   |                            |                         |
| Date: June  12, 2002 |   | By:                             |  /s/ Thomas S. Wargolet |   |
|                 |   | Its: VP  Finance/CFO            |                         |
|                 |   |                            |                         |
| **Landlord:**        |   | **Moen Leuer Properties, Inc.** |                         |
|                 |   | **a Minnesota corporation**     |                         |
|                 |   |                            |                         |
| Date: June  12, 2002 |   | By:                             | /s/ Bradley  Moen            |   |
|                 |   | Its:  Governor                  |                         |

 

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**EXHIBIT A**

**LEGAL DESCRIPTION****OFPROPERTY**

 

 

Lot 4, Block 1

Plymouth Ponds Business Park

Third Addition

 

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**EXHIBIT B**

**PREMISES**

 

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**EXHIBIT C**

**EXCLUSIONS TO OPERATING EXPENSES**

 

Notwithstanding the forgoing, OperatingExpenses shall not include the following:

 

(i)            repairs or other work occasioned byfire, windstorm or other casualty, to the extent that the costs thereof arereimbursed to Landlord by insurers, or would have been reimbursed had theinsurance required hereunder been maintained, or by governmental authorities ineminent domain

 

(ii)           leasing commissions, attorneys’ feesand other expenses incurred in connection with negotiations or disputes withtenants, or prospective tenants of the Building;

 

(iii)          costs incurred in renovating orotherwise improving or decorating or redecorating space for tenants in theBuilding or other space leased or held for lease in the Building;

 

(iv)          Landlord’s costs of utilities,janitorial and other services sold to tenants for which Landlord is entitled tobe reimbursed by tenants,

 

(v)           depreciation and amortization, exceptas specifically provided in the Lease;

 

(vi)          costs which under generally acceptedaccounting principles, consistently applied, must be capitalized;

 

(vii)          interest on debt or amortizationpayments on any mortgage or mortgages, and rental under any ground orunderlying lease or leases;

 

(viii)        costs incurred in advertising for theBuilding or other marketing or promotional activity specifically and primarilydesigned for marketing space in the Building but excluding amenities for thebenefit of existing tenants of the Building;

 

(ix)           employment costs of Landlord’spersonnel ranking higher than the on-premises manager, provided that theallocable compensation, on the basis of time spent on the Building, of onesenior property management executive may be included;

 

(x)            any bad debt expense or bad debtreserve.

 

(xi)           all costs incurred in connection withor directly related to the original construction (as distinguished fromoperation, repair and maintenance) of the Building;

 

(xii)          legal and other fees, leasingcommissions, advertising expenses and other costs incurred in connection withacquisition or original development or original leasing of the Building;

 

(xiii)         the costs of renting or leasinganything other than items, the purchase price of which could be included inOperating Expenses hereunder;

 

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(xiv)        all costs related to the removal ofsubstances or materials from the Building which are presently, or at any timein the future may be, deemed hazardous;

 

(xv)         the cost of changes to the Building,the parking structure, or the appurtenances in compliance with any laws,statutes, ordinances, rules or directives enacted prior to the CommencementDate;

 

(xvi)        any charges for ground leases or otherunderlying leases, easements or any other similar or dissimilar use fees orother costs;

 

(xvii)       costs of correcting defects in the designor construction of the Building, the major Building systems or the materialused in the construction of the Building (including latent defects or theinadequacy of design) or in the building equipment or appurtenances thereto;

 

(xviii)      the cost of any repair to remedy damagecaused by or resulting from the negligence of any other tenants in theBuilding, including their agents, servants, employees or invitees, togetherwith the costs and expenses incurred by Landlord in attempting to recover suchcosts;

 

(xix)         any item of cost which represents anamount paid to an affiliate of Landlord or an affiliate of any partner orshareholder of Landlord, to the extent the same is in excess of the lowestreasonable cost of said item or service in an arms length transaction;

 

(xx)          any and all costs (including legalfees and costs of lawsuits) associated with the operation of the business ofthe entity which constitutes Landlord or preservation of the Landlord’sinterest in the Building;

 

(xxi)         any expense incurred as a result of thenegligence of Landlord, its agents, servants, or employees or arising out ofLandlord’s negligent failure to manage the Building consistently with thestandards required by this Lease; and

 

(xxii)        Any holding costsrelating to land held for development or future construction.

 

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**EXHIBIT D**

**BUILDING RULES ANDREGULATIONS**

 

**1.            **Any sign,lettering, picture, notice or advertisement installed on or in any part of theProperty and visible from any exterior or interior common area of the Complexor from the exterior of the Property, shall be installed at Tenant’s sole costand expense, and in such manner, character and style as Landlord may approve inwriting.  Anything herein to thecontrary notwithstanding, approval as to signs shall be subject to Landlord’sapproval which may be withheld in Landlord’s reasonable discretion.  In the event of a violation of the foregoingby Tenant, Landlord may remove the same without any liability and may chargethe expense incurred by such removal to Tenant.

 

**2.**             Intentionally Deleted.

 

**3.            **Tenant,its employees, customers, invitees and guests shall not obstruct sidewalks,entrances, passages, corridors, vestibules, halls, or stairways in and aboutthe Complex which are used in common with other tenants and their employees,customers, guests and invitees, and which are not a part of the Property ofTenant.  Tenant shall not place objectsagainst glass partitions or doors or windows which would be unsightly from theComplex corridors or from the exterior of the Complex and will promptly removeany such objects upon notice from Landlord.

 

**4.            **Tenantshall not make excessive noises, cause disturbances or vibrations, use oroperate any electrical or mechanical devices that emit excessive sound or otherwaves, disturbances or create obnoxious odors, nor operate any device/equipmentfor radio/television broadcasting or reception from or within the Complex orelsewhere and shall not place or install any projections, antennas, aerials orsimilar devices inside or outside the Property or on the Complex.

 

**5.            **Tenantshall not waste electricity, water or air conditioning furnished by Landlord,if any, and shall cooperate fully with Landlord to ensure the most effectiveoperation of the Complex’s heating and air conditioning systems.

 

**6.            **Tenantassumes full responsibility for protecting its space from theft, robbery andpilferage, which includes keeping doors locked and other means of entry to theProperty closed and secured after normal business hours.

 

**7.            **In noevent shall Tenant bring into the Complex flammables, such as gasoline,kerosene, naphtha, benzene, explosives or any other article of intrinsicallydangerous nature.  If, by reason of thefailure of Tenant to comply with the provisions of this subparagraph, anyinsurance premium for all or any part of the Complex shall at any time beincreased, Tenant shall make immediate payment of the whole of the increasedinsurance premium, without waiver of any of Landlord’s other rights at law orin equity for Tenant’s breach of this lease.

 

**8.            **Tenant shall comply with all applicablefederal, state and municipal laws, ordinances and regulations, and buildingrules and shall not directly or indirectly make any use of the Property whichmay be prohibited by any of the foregoing or which may be dangerous to personsor property or may increase the cost of insurance or require additionalinsurance coverage, except as set forth in the Lease.

 

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**9.            **Landlordshall have the right to prohibit any advertising by Tenant which in Landlord’sreasonable opinion tends to impair the reputation of the Complex or its desirabilityas a building complex for office/warehouse use, and upon written notice fromLandlord, Tenant shall refrain from or discontinue such advertising.

 

**10.         **The Propertyshall not be used for cooking (as opposed to heating of food), lodging,sleeping or for any immoral or illegal purpose.

 

**11.         **Unlessexpressly permitted by Landlord, no additional locks or similar devices shallbe attached to any door or window and no keys other than those provided byLandlord shall be made for any door.  Ifmore than two keys for one lock are desired by Tenant, Landlord may provide thesame upon payment by Tenant.  Upontermination of this Lease or of Tenant’s possession, Tenant shall surrender allkeys of the Property and shall explain to Landlord all combination locks on safes,cabinets and vaults.

 

**12.         **Any carpetingcemented down shall be installed with a releasable adhesive. In the event of aviolation of the foregoing by Tenant, Landlord may charge the expense incurredby removal to Tenant.

 

**13.         **Therestrooms, drinking fountains and other plumbing fixtures shall not be used forany purpose other than those for which they are constructed, and no sweepings,rubbish, rags, coffee grounds or other substances shall be thrown therein.  All damages resulting from any misuse of thefixtures shall be borne by Tenant who, or whose employees, agents, visitors orlicensees have caused same.  No personshall waste water by interfering or tampering with the faucets or otherwise.

 

**14.         **Tenant shallnot overload any utilities serving the Property.

 

**15.         **No dog orother animal shall be allowed in the Complex.

 

**16.         **Allloading/unloading, receiving/delivery of goods/supplies or disposal ofgarbage/refuse shall be made only through entryways provided for suchpurposes.  Tenant shall be responsiblefor any damage to the Complex or the property of its employees or others andinjuries sustained by any person whomsoever resulting from the use or moving ofsuch articles in or out of the Property, and shall make all repairs andimprovements required by Landlord or governmental authorities in connectionwith the use or moving of such articles.

 

**17.         **All safes,equipment or other heavy articles shall only be used by Tenant in a mannerwhich will not interfere with or cause damage to the Property or the Complex inwhich they are located, or to the other tenants or occupants of saidComplex.  Tenant shall be responsiblefor any damage to the building or the property of its employees or others andinjuries sustained by any person whomsoever resulting from the use or moving ofsuch articles in or out of the Property, and shall make all repairs andimprovements required by Landlord or governmental authorities in connectionwith the use or moving of such articles.

 

**18.         **Canvassing,soliciting, and peddling in or about the Complex is prohibited and each Tenantshall cooperate to prevent the same.

 

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**19.         **Wherever inthese Building Rules and Regulations the word “Tenant” occurs, it is understoodand agreed that it shall mean Tenant’s associates, employees, agents, clerks,invitees, and visitors.  Wherever theword “Landlord” occurs, it is understood and agreed that it shall meanLandlord’s assigns, agents, clerks, and visitors.

 

**20.         **Landlord shall have the right to enter uponthe Property at all reasonable hours for the purpose of inspecting the same.

 

**21.         **Landlord shall have the right to enter theProperty at hours convenient to Tenant for the purpose of exhibiting the sameto prospective Tenants.

 

**22.         **Tenant, itsemployees, customers, invitees and guests shall, when using the parkingfacilities in and around the Complex, observe and obey all signs regarding firelanes and no parking zones, and when parking always park between the designatedlines.  Landlord reserves the right totow away, at the expense of the owner, any vehicle which is improperly parkedor parked in a no parking zone.  Allvehicles shall be parked at the sole risk of the owner, and Landlord assumes noresponsibility for any damage to or loss of vehicles.  No vehicles shall be parked overnight.

 

**23.         **In case ofinvasion, mob, riot, public excitement, or other commotion, Landlord reservesthe right to prevent access to the Complex during the continuance of the sameby closing the doors or otherwise, for the safety of the tenants or theprotection of the Complex and the property therein.  Landlord shall in no case be liable for damages resulting fromany error or action taken with regard to the admission to or exclusion from theComplex of any person.

 

**24.         **All entrancedoors to the Property shall be locked when the Property are not in use.  All common corridor doors, if any, shallalso be closed during times when the air conditioning equipment in the Complexis operating so as not to dissipate the effectiveness of the system or place anoverload thereon.

 

**25.         **Intentionally Deleted.

 

**26.         **Intentionally Deleted.

 

**27.         **No awning orother projection shall be attached to the outside walls of the Complex.  No curtains, blinds, shades or screensvisible from the exterior or interior common area of the Complex or visiblefrom the exterior of the Property, shall be attached to, hung in, or used inconnection with any window or door of the Property without the prior writtenconsent of Landlord.  Such curtains,blinds, shades, screens or other fixtures must be of a quality, type, designand color, and attached in manner approved by Landlord.

 

**28.         **Tenant andTenant’s employees, agents, visitors and licensees shall observe faithfully andcomply strictly with the foregoing rules and regulations and such other andfurther appropriate rules and regulations as Landlord or Landlord’s agent mayfrom time to time adopt.  Reasonablenotice of any additional rules and regulations shall be given in such manner asLandlord may reasonably elect.

 

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**29**.          Landlord reserves the right at anytime to rescind, alter or waive, in whole or in part, any of these Rules andRegulations when deemed necessary, desirable, or proper, in Landlord’s reasonablejudgment, for its best interest or for the best interest of the tenants of theComplex.  Tenant reserves the right torefuse compliance with any subsequent additional rules and regulations added tothose agreed to at the time of signing the lease.

 

**30.         **IntentionallyDeleted.

 

**31.****                              **Anytrash dumpsters must be kept inside the premises.

 

**32.         **No outsidestorage of materials is allowed. (This includes trailer storage parked longerthan 96 hours.

 

**33.         **To the extentthese rules are in conflict with the terms of the Lease, the terms of the Leaseshall rule and govern.

 

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**EXHIBIT E**

 

See Plans & Specifications

 

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