Exhibit 10.30 to CNS, Inc. Form 10-K dated March 31, 2004




Exhibit 10.30 



                THIS
LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership
(“LANDLORD”) with its address at 10400 Viking Drive,
Suite 130, Eden Prairie, Minnesota 55344, and CNS, INC., a
corporation organized under the laws of __________________
(“TENANT”) with its address at 4400 West 78th Street,
Bloomington, Minnesota 55435, and is dated as of the date on which this
lease has been fully executed by Landlord and Tenant. 



	1.  	  	Summary
of Terms and Certain Definitions.  






	  	(a) 	  	“PREMISES”:
             Approximate rentable square feet: 73,000 (Section 2) 






	  	(b) 	  	“BUILDING”:  (§2)
    Approximate rentable square feet: 93,000
                                       Address:  






	  	(c) 	  	“TERM”:  (§5              One
hundred twenty (120)) months plus any partial month from the Commencement Date

                                      until the first day of the first full calendar month during the Term







	  	  	(i)  	  	“COMMENCEMENT
DATE”:   See Rider  






	  	  	(ii)  	  	“EXPIRATION
DATE”:   See Section 5  






	  	(d)  	  	Minimum
Rent (§6) & Operating Expenses (§7)  






	  	  	(i) 	  	“MINIMUM
ANNUAL RENT”:   $682,550.04 (Six hundred eighty-two
thousand five hundred fifty and 04/100 Dollars), payable in monthly installments
of $56,879.17 (Fifty-six thousand eight hundred seventy-nine and 17/100
Dollars), increased as follows: 






	Lease Year 
		Annual 
		Monthly 
		Lease Year 
		Annual 
		Monthly 
	
	 	2	 	$	 696,201.00	 	$	  58,016.75	 	 	6	 	$	 753,590.40	 	$	  62,799.20	 
	 	3	 	 	710,125.08	 	 	59,177.09	 	 	7	 	 	768,662.16	 	 	64,055.18	 
	 	4	 	 	724,327.56	 	 	60,360.63	 	 	8	 	 	784,035.36	 	 	65,336.28	 
	 	5	 	 	738,814.08	 	 	61,567.84	 	 	9	 	 	799,716.12	 	 	66,643.01	 
	 	  	 	 	  	 	 	  	 	 	10 	 	 	815,710.44	 	 	67,975.87	 








	  	  	(ii) 	  	Estimated “ANNUAL
OPERATING EXPENSES”:   $173,010.00 (One Hundred
Seventy-three Thousand Ten and no/l00 Dollars), payable in monthly installments
of $14,417.50 (Fourteen Thousand Four Hundred Seventeen and 50/100 Dollars),
based on estimated annual operating expenses of S2.37 per rentable square feet
for calendar year 2000, subject to adjustment (§7(a)) 
















	  	(e) 	  	“PROPORTIONATE
SHARE” (§7(a)): 78.5% (Ratio of approximate rentable square feet
in the Premises to approximate rentable square feet in the Building)







	  	(f) 	  	“USE” (§4): general office, warehouse and assembly  






	  	(g) 	  	“SECURITY DEPOSIT” (§28): None  






	  	(h) 	  	CONTENTS:      This lease consists of the Index, pages 1 through 11 containing Sections 1 through 37

                             and the following, all of which are attached hereto and made a part of this lease: 





	Exhibits:	 	 	 
	“A” – Plan showing Premises	 	“E” – Drawings	 
	“B” – Commencement Certificate Form	 	“F” – Exclusions from Operating	 
	“C” – Building Rules Expenses	 	“G” – TI Plans	 
	“D” – Estoppel Certificate Form	 






2.              Premises.   Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the Premises as
shown on preliminary floor plan attached hereto as Exhibit “A” within
the Building to be constructed pursuant to the provisions of Section 29
hereof (the Building and the lot on which it is located, the
“PROPERTY”), together with the nonexclusive right with Landlord
and other occupants of the Building to use all areas and facilities provided by
Landlord for the use of all tenants in the Property including any driveways,
sidewalks and parking, loading and landscaped areas (the “COMMON
AREAS”). The Premises will consist of approximately 73,000 rentable
square feet (29,340 rentable square feet devoted to office use and 43,660
rentable square feet devoted to warehouse use). Upon substantial completion of
the Premises and Building, (i) at the request of either party, Landlord and
Tenant shall enter into an amendment to this Lease replacing Exhibit
“A” with a drawing outlining the Premises as constructed, and
(ii) Landlord shall cause Landlord’s architect to determine the
as-built square footage of the Premises and Building, and, if the square
footages, as measured, vary from the square footages set forth in
Section 1 of this Lease, the parties shall enter into an appropriate
amendment to this lease incorporating the actual square footage, with a
corresponding pro rata adjustment to Minimum Annual Rent and Tenant’s
Proportionate Share. 



	3. 	  	Acceptance
of Premises.   See the provisions of
Section 32 below. 






	4. 	  	Use; Compliance. 






                (a)    Permitted
Use.   Tenant shall occupy and use the Premises for and only
for the Use specified in Section 1(f) above and in such a manner as is
lawful and will not create any nuisance or otherwise interfere with any other
tenant’s normal operations or the management of the Building. Landlord
represents that, as of the Commencement Date, the Property will be zoned to
permit the Use specified in Section 1(f) above. All Common Areas shall be
subject to Landlord’s exclusive control and management at all times. Tenant
shall not use or permit the use of any portion of the Property for outdoor
storage or installations outside of the Premises nor for  





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any use that
would interfere with any other person’s use of any portion of the Property
outside of the Premises. 



                (b)    Compliance.   Landlord
represents that, as of the date of this lease, there is no action required with
respect to the Premises or Common Areas under any laws (including Title III
of the ADA), ordinances, notices, orders, rules, regulations and requirements
applicable to the Premises or to the Common Areas. From and after the
Commencement Date, Tenant shall comply promptly, at its sole expense, (including
making any alterations or improvements) with all laws (including the ADA),
ordinances, notices, orders, rules, regulations and requirements regulating the
Property during the Term which impose any duty upon Landlord or Tenant
specifically with respect to Tenant’s use, occupancy or alteration of, or
Tenant’s installations in or upon, the Property including the Premises, (as
the same may be amended, the “LAWS AND REQUIREMENTS”) and the
building rules attached as Exhibit “C”, as amended by
Landlord from time to time (the “BUILDING RULES”).
Notwithstanding the foregoing, Tenant shall not be required to comply with the
Laws and Requirements with respect to the footings, foundations, structural
steel columns and girders forming a part of the Property unless the need for
such compliance arises out of Tenant’s specific use, occupancy or
alteration of the Property, or by any act or omission of Tenant or any
employees, agents, contractors, licensees or invitees
(“AGENTS”) of Tenant. With respect to Tenant’s obligations
as to the Property, other than the Premises, at Landlord’s option and at
Tenant’s expense, Landlord may comply with any repair, replacement or other
construction requirements of the Laws and Requirements and Tenant shall pay to
Landlord all costs thereof as additional rent. Landlord agrees to enforce the
Building Rules in a uniform and nondiscriminatory manner. No amendment to the
Building Rules shall be effective until the date that is 30 days after the
date that Landlord notifies Tenant of the amendment. 



                (c)    Environmental.   Tenant
shall comply, at its sole expense, with all Laws and Requirements as set forth
above, all manufacturers’ instructions and all requirements of insurers
relating to the treatment, production, storage, handling, transfer, processing,
transporting, use, disposal and release of hazardous substances, hazardous
mixtures, chemicals, pollutants, petroleum products, toxic or radioactive matter
(the “RESTRICTED ACTIVITIES”). Tenant shall deliver to Landlord
copies of all notices, filings, permits and any other material written
communications relating to Tenant’s operations from or to Tenant and any
entity regulating any Restricted Activities. 



                (d)    Notice.   If
at any time during or after the Term, Tenant becomes aware of any inquiry,
investigation or proceeding regarding the Restricted Activities or becomes aware
of any material claims, actions or investigations regarding the ADA, Tenant
shall give Landlord written notice, within 5 days after first learning thereof,
providing all available information and copies of any notices. 



	5. 	  	Term.   See Section 33 below.  






6.              Minimum
Annual Rent.   Tenant agrees to pay to Landlord the
Minimum Annual Rent in equal monthly installments in the amount set forth in
Section 1(d) (as increased at the beginning of each lease year as set forth
in Section 1(d)), in advance, on the first day of each 





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calendar month during the Term,
without notice, demand or setoff except as expressly provided for in this lease, at
Landlord’s address designated at the beginning of this lease unless Landlord
designates otherwise; provided that rent for the first full month shall be paid at the
signing of this lease. If the Commencement Date falls on a day other than the first day of
a calendar month, the rent shall be apportioned pro rata on a per diem basis for the
period from the Commencement Date until the first day of the following calendar month and
shall be paid on or before the Commencement Date. As used in this lease, the term
“lease year” means the period from the Commencement Date through the succeeding
12 full calendar months (including for the first lease year any partial month from the
Commencement Date until the first day of the first full calendar month) and each
successive 12 month period thereafter during the Term.  



	7.  	  	Operation
of Property; Payment of Expenses.  






                (a)    Payment
of Operating Expenses.   Tenant shall pay to Landlord the
Annual Operating Expenses in equal monthly installments in the amount set forth
in Section 1(d) (prorated for any partial month), from the Commencement
Date and continuing throughout the Term on the first day of each calendar month
during the Term, as additional rent, without notice, demand or setoff except as
expressly provided for in this lease; provided that the monthly installment for
the first full month shall be paid at the signing of this lease. Landlord shall
apply such payments to the Operating Expenses owed to Landlord by Tenant
pursuant to the following Sections 7(b)-(f). The amount of the Annual
Operating Expenses set forth in Section 1(d) represents Tenant’s
Proportionate Share of the estimated Operating Expenses during the first
calendar year of the Term on an annualized basis; from time to time Landlord may
adjust such estimated amount if the estimated Operating Expenses increase. By
April 30th of each year (and as soon as practical after the expiration or
termination of this lease or at any time in the event of a sale of the
Property), Landlord shall provide Tenant with a statement of the actual amount
of such expenses for the preceding calendar year or part thereof Landlord or
Tenant shall pay to the other the amount of any deficiency or overpayment then
due from one to the other or, at Tenant’s option, Landlord will credit
Tenant’s account for any overpayment. Tenant’s obligation to pay the
Annual Operating Expenses pursuant to this Section 7 shall survive the
expiration or termination of this lease. The term “Operating Expenses”
in this lease means all amounts owed to Landlord by Tenant pursuant to the
following Sections 7(b)-(f). Any provision to the contrary in this lease
notwithstanding, Operating Expenses shall not include any of the items listed on
attached Exhibit “F”. 



                (b)    Taxes
and Other Impositions.   Tenant shall pay prior to
delinquency all levies, taxes (including sales taxes and gross receipt taxes),
assessments, liens, license and permit fees, which are applicable to the Term,
and which are imposed by any authority or under any law, ordinance or regulation
thereof, or pursuant to any recorded covenants or agreements, and the reasonable
cost of contesting any of the foregoing (the “IMPOSITIONS”)
upon or with respect to the Premises, or any improvements thereto, or directly
upon this lease or the Rent (defined in Section 7(f)) or amounts payable by
any subtenants or other occupants of the Premises, or against Landlord because
of Landlord’s estate or interest herein. Additionally, Tenant shall pay as
aforesaid its Proportionate Share of any Imposition which is not imposed upon
the Premises as a separate entity but which is imposed upon all or part of the
Property or upon the leases or rents relating to the Property. 





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                                  (i)    Nothing
herein contained shall be interpreted as requiring Tenant to pay any income,
excess profits or corporate capital stock tax imposed or assessed upon Landlord,
unless such tax or any similar tax is levied or assessed in lieu of all or any
part of any Imposition or an increase in any Imposition. 



                                  (ii)    If
it shall not be lawful for Tenant to reimburse Landlord for any of the
Impositions, the Minimum Annual Rent shall be increased by the amount of the
portion of such Imposition allocable to Tenant, unless prohibited by law.




                                  (iii)    If
Landlord receives any rebate, refund or similar payment relating to any
Impositions paid by or charged back to Tenant, Landlord shall promptly pay to
Tenant Tenant’s Proportionate Share of such rebate or refund, net of any
expenses incurred by Landlord in obtaining the same. Tenant may request that
Landlord initiate an action to contest or challenge an Imposition, and Landlord
agrees to consult with Tenant regarding such contest or challenge and to take
such action as Landlord deems reasonable and appropriate under the circumstances
as a result of such consultation. Tenant shall not initiate any action to
contest any Impositions without Landlord’s prior written consent.




	  	(c)  	  	Insurance.  






                                  (i)    Property.   Landlord
shall keep in effect, and Tenant shall pay to Landlord its Proportionate Share
of the cost of, insurance against loss or damage to the Building or the Property
by fire and such other casualties as may be included within fire, extended
coverage and special form insurance covering the full replacement cost of the
Building (but excluding coverage of Tenant’s personal property in, and any
alterations by Tenant to, the Premises), and such other insurance as Landlord
may reasonably deem appropriate or as may be required from time-to-time by any
mortgagee. Landlord shall deliver to Tenant on or before the Commencement Date,
a certificate of insurance evidencing such coverage and the waiver of
subrogation described below. 



                                  (ii)    Liability.   Tenant, at its own expense, shall keep in effect comprehensive
general public liability insurance with respect to the Premises and the
Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000 (which aggregate limit shall apply separately to each of
Tenant’s locations if more than the Premises); however, such limits shall
not limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord’s agent as
insured parties with respect to the Premises, shall provide that it is primary
with respect to any policies carried by Landlord and that any coverage carried
by Landlord shall be excess insurance, shall provide that it shall not be
cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in
the most current edition of Best’s Insurance 




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Reports. Tenant
shall deliver to Landlord on or before the Commencement Date, and subsequently
renewals of, a certificate of insurance evidencing such coverage and the waiver
of subrogation described below. 



                                  (iii)    Waiver
of Subrogation.   Landlord and Tenant shall have included in
their respective property insurance policies waivers of their respective
insurers’ right of subrogation against the other party. If such a waiver
should be unobtainable or unenforceable, then such policies of insurance shall
state expressly that such policies shall not be invalidated if, before a
casualty, the insured waives the right of recovery against any party responsible
for a casualty covered by the policy. 



                                  (iv)    Increase
of Premiums.   Tenant agrees not to do anything or fail to do
anything which will increase the cost of Landlord’s insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed. 



                (d)    Repairs
and Maintenance; Common Areas; Building Management. Except as specifically
otherwise provided in this Section (d), Tenant at its sole expense shall
maintain the Premises in good order and condition, promptly make all repairs
necessary to maintain such condition, and repair any damage to the Premises
caused by Tenant or its Agents. All repairs made by Tenant shall utilize
materials and equipment which are comparable to those originally used in
constructing the Building and Premises. When used in this Section (d), the
term “repairs” shall include replacements and renewals when necessary.




                                  (i)    Landlord,
at its sole expense, shall make all necessary repairs to the footings,
foundations, structural steel columns and girders forming a part of the
Premises. If Tenant becomes aware of the need for such repair, Tenant shall
promptly notify Landlord thereof. 



                                  (ii)    Landlord,
at Tenant’s sole expense, shall maintain and repair the HVAC systems
exclusively serving the Premises. 



                                  (iii)    Landlord
shall make all necessary repairs to the roof, exterior portions of the Premises
and the Building, utility and communications lines, equipment and facilities in
the Building, which serve more than one tenant, and to the Common Areas, the
cost of which shall be an Operating Expense of which Tenant shall pay its
Proportionate Share. If Tenant becomes aware of the need for such repair, Tenant
shall promptly notify Landlord thereof Landlord shall operate and manage the
Property and shall maintain all Common Areas and any paved areas appurtenant to
the Property in a clean and orderly condition. Landlord reserves the right to
make alterations to the Common Areas from time to time provided that
(A) absent Tenant’s prior written consent, there shall be no material
change in the nature and extent of the Common Areas and the benefits extended to
the Premises by the Common Areas, and (B) any such alterations must be
completed in a manner so as not to unreasonably interfere with Tenant’s use
of the Common Areas or Tenant’s business activities within the Premises.
Operating Expenses also 




6 









shall include (A) all
sums expended by Landlord for the supervision, maintenance, repair, replacement
and operation of the Common Areas (including the costs of utility services),
(B) any costs of building improvements made by Landlord to the Property
that are required by any governmental authority or for the purpose of reducing
Operating Expenses and (C) a management and administrative fee (not to
exceed 4% of gross rents) applicable to the overall operation of the Property.




                                  (iv)    Notwithstanding
anything herein to the contrary, repairs and replacements to the Property
including the Premises made necessary by Tenant’s use, occupancy or
alteration of, or Tenant’s installation in or upon the Property or by any
act or omission of Tenant or its Agents shall be made at the sole expense of
Tenant to the extent not covered by any applicable insurance proceeds paid to
Landlord. Tenant shall not bear the expense of any repairs or replacements to
the Property arising out of or caused by any other tenant’s use, occupancy
or alteration of, or any other tenant’s installation in or upon, the
Property or by any act or omission of any other tenant or any other
tenant’s Agents. 



                (e)    Utility
Charges.   Tenant shall pay for water, sewer, gas,
electricity, heat, power, telephone and other communication services and any
other utilities supplied to or consumed in or on the Premises. Landlord shall
not be responsible or liable for any interruption in utility service, nor shall
such interruption affect the continuation or validity of this lease.
Notwithstanding the foregoing, if any interruption in utility service is the
result of Landlord’s negligence or willful misconduct, and such
interruption prevents Tenant from conducting its business in and from the
Premises, then all Rent hereunder shall abate from the date of such interruption
until such utility service is restored. 



                (f)    Net
lease.   Except for the obligations of Landlord expressly set
forth herein, this lease is a “triple net lease” and Landlord shall
receive the Minimum Annual Rent as net income from the Premises, not diminished
any expenses other than payments under any mortgages, and Landlord is not and
shall not be required to render any services of any kind to Tenant. The term
“RENT” as used in this lease means the Minimum Annual Rent,
Annual Operating Expenses and any other additional rent or sums payable by
Tenant to Landlord pursuant to this lease, all of which shall be deemed rent for
purposes of Landlord’s rights and remedies with respect thereto. Tenant
shall pay all Rent to Landlord within 30 days after Tenant is billed, unless
otherwise provided in this lease, and interest shall accrue on all sums due but
unpaid. 



                (g)    Access
to Books and Records.   Tenant shall be entitled at any
reasonable time during regular business hours, but no more than once in each
calendar year, after giving to Landlord at least five (5) business days
prior written notice, to inspect in Landlord’s business office all
Landlord’s records regarding Operating Expenses for the Building (which
records shall be retained or made available in the Minneapolis/St. Paul
metropolitan area) necessary to satisfy itself that all Operating Expenses have
been correctly allocated to Tenant, for either or both of the two
(2) calendar years immediately preceding the year during which such notice
is given, and to obtain an audit thereof by an independent certified public
accountant (selected by Tenant with Landlord’s written consent, which shall
not be withheld unreasonably) to determine the accuracy of Landlord’s
certification of the amount of additional rent charged Tenant. If it is
determined that Tenant’s liability for additional rent for either such
calendar year is less than ninety-five 




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percent (95%) of that
amount which Landlord previously certified to Tenant for such calendar year,
Landlord shall pay to Tenant the cost of such audit (provided, however, that
Landlord shall not be required to pay the cost of any audit based on a
contingency fee or percentage of the amount recovered for Tenant) and regardless
of such percentage Landlord shall refund promptly to Tenant the amount of the
additional rent paid by Tenant for such calendar year which exceeds the amount
for which Tenant actually is liable, as determined following such audit. If it
is determined that Tenant’s liability for additional rent for either such
calendar year is more than the amount which Landlord previously certified to
Tenant for such calendar year, Tenant shall promptly pay to Landlord (net of the
cost to Tenant of the audit) the amount of the additional rent underpaid by
Tenant, as determined following such audit. Except as provided above, Tenant
shall bear the total cost of any such audit. Tenant shall keep, and shall cause
Tenant’s auditor to keep, the results of such audit confidential.




8.              Signs.   Except
for signs which are located wholly within the interior of the Premises and not
visible from the exterior of the Premises, no signs shall be placed on the
Property without the prior written consent of Landlord. All signs installed by
Tenant shall be maintained by Tenant in good condition and Tenant shall remove
all such signs at the termination of this lease and shall repair any damage
caused by such installation, existence or removal. 



                The
foregoing notwithstanding, Tenant shall have the right to procure, install and maintain,
at Tenant’s sole cost and expense, the following identification signage on or about
the Building: 



	  	(a) 	  	One
building-mounted identification sign on the south face of the Building;







	  	(b) 	  	Signage on one
monument sign serving the Building; and 






	  	(c) 	  	Loading dock
signage, signage identifying Tenant’s employee entrance and signage
identifying Tenant on Tenant’s entrance door(s). 






                The
design, size and location of all Tenant signage shall be consistent with Landlord’s
sign criteria and otherwise subject to Landlord’s approval, which approval shall not
be unreasonably withheld. Tenant shall cause all Tenant signage to comply with all Laws
and Requirements applicable thereto. Upon the expiration or termination of this Lease,
Tenant shall remove the signage and shall repair any damage occasioned by such removal. 



	9.  	  	Alterations and Fixtures.  






                (a)    Subject
to Section 10, Tenant shall have the right to install its trade fixtures in
the Premises, provided that no such installation or removal thereof shall
materially and adversely affect any structural portion of the Property nor any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant. At the expiration or termination of this
lease and at the option of Landlord or Tenant, Tenant shall remove such
installation(s) and, in the event of such removal, Tenant shall repair any
damage caused by such installation or removal; if Tenant, with Landlord’s
written consent, elects not to remove such 




8 









installation(s) at the
expiration or termination of this lease, all such installations shall remain on
the Property and become the property of Landlord without payment by Landlord.




                (b)    Except
for alterations that are non-structural, that do not materially and adversely
affect any of the electrical, mechanical, HVAC, life-safety, plumbing, security
or other systems serving the Building, and that do not exceed $25,000 in the
aggregate with respect to any project, Tenant shall not make or permit to be
made any alterations to the Premises without Landlord’s prior written
consent, which consent shall not be unreasonably withheld or delayed. Tenant
shall pay the costs of any required architectural/engineering reviews. In making
any alterations, (i) Tenant shall deliver to Landlord the plans,
specifications and necessary permits, together with certificates evidencing that
Tenant’s contractors and subcontractors have adequate insurance coverage
naming Landlord and Landlord’s agent as additional insureds, at least
10 days prior to commencement thereof, (ii) such alterations shall not
impair the structural strength of the Building or any other improvements or
reduce the value of the Property or affect any utility lines, communications
lines, equipment or facilities in the Building serving any tenant other than
Tenant, (iii) Tenant shall comply with Section 10 and (iv) the
occupants of the Building and of any adjoining property shall not be materially
disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant’s request prior to Tenant making
any alterations, Landlord shall notify Tenant in writing, whether Tenant is
required to remove such alterations at the expiration or termination of this
lease. 



10.              Mechanics’ Liens.   Tenant
shall pay promptly any contractors and materialmen who supply labor, work or
materials to Tenant at the Property and shall take all steps permitted by law in
order to avoid the imposition of any mechanic’s lien upon all or any
portion of the Property. Should any such lien or notice of lien be filed for
work performed for Tenant other than by Landlord, Tenant shall bond against or
discharge the same within 10 days after Tenant has notice that the lien or
claim is filed regardless of the validity of such lien or claim. Nothing in this
lease is intended to authorize Tenant to do or cause any work to be done or
materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant’s account and at Tenant’s risk and expense.
Throughout this lease the term “mechanic’s lien” is used
to include any lien, encumbrance or charge levied or imposed upon all or any
portion of, interest in or income from the Property on account of any
mechanic’s, laborer’s, materialman’s or construction lien or
arising out of any debt or liability to or any claim of any contractor,
mechanic, supplier, materialman or laborer and shall include any mechanic’s
notice of intention to file a lien given to Landlord or Tenant, any stop order
given to Landlord or Tenant, any notice of refusal to pay naming Landlord or
Tenant and any injunctive or equitable action brought by any person claiming to
be entitled to any mechanic’s lien. 



11.              Landlord’s Right of Entry.   Tenant
shall permit Landlord and its Agents to enter the Premises at all reasonable
times following reasonable notice (except in the event of an emergency), for the
purpose of inspection, maintenance or making repairs, alterations or additions
as well as to exhibit the Premises for the purpose of sale or mortgage and,
during the 




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last 12 months of the
Term, to exhibit the Premises to any prospective tenant. Landlord will make
reasonable efforts not to inconvenience Tenant in exercising the foregoing
rights, but shall not be liable for any loss of occupation or quiet enjoyment
thereby occasioned. 



	12.  	  	Damage
by Fire or Other Casualty.  






                (a)    If
the Premises or Building shall be damaged or destroyed by fire or other
casualty, Tenant promptly shall notify Landlord and Landlord, subject to the
conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant.
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the date of the casualty to complete; in such event, either Landlord
or Tenant may terminate this lease effective as of the date of casualty by
giving written notice to the other within 10 days after Landlord’s notice.
Further, if a casualty occurs during the last 12 months of the Term or any
extension thereof, Landlord may cancel this lease unless Tenant has the right to
extend the Term for at least 3 more years and does so within 30 days
after the date of the casualty. 



                (b)    Landlord
shall maintain a 12 month rental coverage endorsement or other comparable
form of coverage as part of its fire, extended coverage and special form
insurance. Tenant will receive an abatement of its Minimum Annual Rent and
Annual Operating Expenses to the extent the Premises are rendered untenantable.




	13.  	  	Condemnation.  






                (a)    Termination.   If (i) all
of the Premises are taken by a condemnation or otherwise for any public or
quasi-public use, (ii) any part of the Premises is so taken and the
remainder thereof is insufficient for the reasonable operation of Tenant’s
business or (iii) any of the Property is so taken, and, in Landlord’s
opinion, it would be impractical or the condemnation proceeds are insufficient
to restore the remainder of the Property, then this lease shall terminate and
all unaccrued obligations hereunder shall cease as of the day before possession
is taken by the condemnor. 



                (b)    Partial
Taking.   If there is a condemnation and this lease has not
been terminated pursuant to this Section, (i) Landlord shall restore the
Building and the improvements which are a part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of the Minimum
Annual Rent according to the rental value of the Premises before and after the
date upon which the condemnor took possession and/or the date Landlord completes
such restoration. 



                (c)    Award.   In
the event of a condemnation affecting Tenant, Tenant shall have the right to
make a claim against the condemnor for moving expenses and business dislocation
damages to the extent that such claim does not reduce the sums otherwise payable
by the 




10 









condemnor to Landlord.
Except as aforesaid and except as set forth in (d) below, Tenant hereby assigns
all claims against the condemnor to Landlord. 



                (d)    Temporary
Taking.   No temporary taking of the Premises shall terminate
this lease or give Tenant any right to any rental abatement. Such a temporary
taking will be treated as if Tenant had sublet the Premises to the condemnor and
had assigned the proceeds of the subletting to Landlord to be applied on account
of Tenant’s obligations hereunder. Any award for such a temporary taking
during the Term shall be applied first, to Landlord’s costs of collection
and, second, on account of sums owing by Tenant hereunder, and if such amounts
applied on account of sums owing by Tenant hereunder should exceed the entire
amount owing by Tenant for the remainder of the Term, the excess will be paid to
Tenant. 



14.              Non-Abatement of Rent.   Except
as otherwise expressly provided as to damage by fire or other casualty in
Section 12(b) and as to condemnation in Section 13(b) and except as
otherwise specifically provided in this lease, there shall be no abatement or
reduction of the Rent for any cause whatsoever, and this lease shall not
terminate, and Tenant shall not be entitled to surrender the Premises. 



15.              Indemnification.   Subject
to Sections 7(c)(iii) and 16, Tenant will protect, indemnify and hold
harmless Landlord and its Agents from and against any and all claims, actions,
damages, liability and expense (including fees of attorneys, investigators and
experts) in connection with loss of life, personal injury or damage to property
in or about the Premises or arising out of the occupancy or use of the Premises
by Tenant or its Agents or occasioned wholly or in part by any act or omission
of Tenant or its Agents, whether prior to, during or after the Term, except to
the extent such loss, injury or damage was caused by the negligence of Landlord
or its Agents. In case any action or proceeding is brought against Landlord
and/or its Agents by reason of the foregoing, Tenant, at its expense, shall
resist and defend such action or proceeding, or cause the same to be resisted
and defended by counsel (reasonably acceptable to Landlord and its Agents)
designated by the insurer whose policy covers such occurrence or by counsel
designated by Tenant and approved by Landlord and its Agents. Tenant’s
obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease. 



                Subject
to Sections 7(c)(iii) and 16, Landlord will protect, indemnify and hold harmless Tenant
and its Agents from and against any and all claims, actions, damages, liability and
expense (including fees of attorneys, investigators and experts) in connection with loss
of life, personal injury or damage to property caused to any person in or about the
Premises occasioned wholly or in part by the negligence of Landlord or its Agents, except
to the extent such loss, injury or damage was caused by the negligence of Tenant or its
Agents. In case any action or proceeding is brought against Tenant and/or its Agents by
reason of the foregoing, Landlord, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Tenant and its Agents) designated by the insurer whose policy covers such
occurrence or by counsel designated by Landlord and approved by Tenant and its Agents.
Landlord’s obligations pursuant to this Section shall survive the expiration or
termination of this lease. 




11 








16.              Waiver of Claims.   Landlord
and Tenant each hereby waives all claims for recovery against the other for any
loss or damage which may be inflicted upon the property of such party even if
such loss or damage shall be brought about by the fault or negligence of the
other party or its Agents; provided, however, that such waiver by Landlord shall
not be effective with respect to any liability of Tenant described in
Sections 4(c) and 7(d)(iv). 



17.              Quiet Enjoyment.   Landlord
covenants that Tenant, upon performing all of its covenants, agreements and
conditions of this lease, shall have quiet and peaceful possession of the
Premises as against anyone claiming by or through Landlord, subject, however, to
the exceptions, reservations and conditions of this lease. 



	18. 	  	Assignment and Subletting. 






                (a)    Limitation.   Tenant
shall not transfer this lease, voluntarily or by operation of law, without the
prior written consent of Landlord which shall not be withheld unreasonably.
However, Landlord’s consent shall not be required in the event of any
transfer by Tenant to an affiliate of Tenant which is at least as creditworthy
as Tenant as of the date of this lease and provided Tenant delivers to Landlord
the instrument described in Section (c)(iii) below, together with a
certification of such creditworthiness by Tenant and such affiliate. Any
transfer not in conformity with this Section 18 shall be void at the option of
Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent
to any subsequent transfer. “Transfer” shall include any sublease,
assignment, license or concession agreement, change in ownership or control of
Tenant, mortgage or hypothecation of this lease or Tenant’s interest
therein or in all or a portion of the Premises. 



                (b)    Offer
to Landlord.   Tenant acknowledges that the terms of this
lease, including the Minimum Annual Rent, have been based on the understanding
that Tenant physically shall occupy the Premises for the entire Term. Therefore,
upon Tenant’s request to transfer all or a portion of the Premises, at the
option of Landlord, Tenant and Landlord shall execute an amendment to this lease
removing such space from the Premises, Tenant shall be relieved of any liability
with respect to such space and Landlord shall have the right to lease such space
to any party, including Tenant’s proposed transferee. The provisions of
this subsection 18(b) notwithstanding, if Landlord so elects to recapture
all or a portion of the Premises, Tenant shall have the right to withdraw
Tenant’s request for Landlord’s consent to the transfer, provided that
Tenant withdraw such request in a written notice to Landlord given not less than
5 business days following Landlord’s election. 



                (c)    Conditions.   Notwithstanding
the above, the following shall apply to any transfer, with or without
Landlord’s consent: 



                                  (i)    As
of the date of any transfer, Tenant shall not be in default under this lease nor
shall any act or omission have occurred which would constitute a default with
the giving of notice and/or the passage of time. 



                                  (ii)    No
transfer shall relieve Tenant of its obligation to pay the Rent and to perform
all its other obligations hereunder. The acceptance of Rent by Landlord from any
person 




12 









shall not be deemed to be a
waiver by Landlord of any provision of this lease or to be a consent to any
transfer. 



                                  (iii)    Each
transfer shall be by a written instrument in form and substance satisfactory to
Landlord which shall (A) include an assumption of liability by any
transferee of all Tenant’s obligations and the transferee’s
ratification of and agreement to be bound by all the provisions of this tease,
(B) afford Landlord the right of direct action against the transferee
pursuant to the same remedies as are available to Landlord against Tenant and
(C) be executed by Tenant and the transferee. 



                                  (iv)    Tenant
shall pay, within 10 days of receipt of an invoice, Landlord’s reasonable
attorneys’ fees and costs in connection with the review, processing and
documentation of any transfer for which Landlord’s consent is requested.




	19.  	  	Subordination;
Mortgagee’s Rights.  






                (a)    This
lease shall be subordinate to any first mortgage or other primary encumbrance
hereafter affecting the Premises. Although the subordination is self-operative,
within 10 days after written request, Tenant shall execute and deliver any
further commercially reasonable and customary instruments of attornment and
nondisturbance that may be desired by any such mortgagee or Landlord. The
foregoing notwithstanding, so long as Tenant is not in default under this lease,
this lease shall remain in full force and effect and the mortgagee and any
purchaser at a foreclosure sale thereof shall not disturb Tenant’s
possession hereunder. However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant’s consent, by giving written notice
to Tenant, and thereupon this lease shall be deemed prior to such mortgage
without regard to their respective dates of execution and delivery; provided,
however, that such subordination shall not affect any mortgagee’s right to
condemnation awards, casualty insurance proceeds, intervening liens or any right
which shall arise between the recording of such mortgage and the execution of
this lease. 



                (b)    It
is understood and agreed that any mortgagee shall not be liable to Tenant for
any funds paid by Tenant to Landlord unless such funds actually have been
transferred to such mortgagee by Landlord. 



                (c)    Notwithstanding
the provisions of Sections 12 and 13 above, Landlord’s obligation
to restore the Premises after a casualty or condemnation shall be subject to
such commercially reasonable procedures and controls as may be imposed by
Landlord’s mortgagee, including, but not limited to, such mortgagee’s
rights, if any, to approve restoration plans and such mortgagee’s rights,
if any, to require that casualty or condemnation proceeds be disbursed pursuant
to standard construction loan disbursing procedures. 



20.              Recording; Tenant’s Certificate.   Tenant
shall not record this lease or a memorandum thereof without Landlord’s
prior written consent. Within 10 days after Landlord’s written request from
time to time: 




13 








                (a)    Tenant
shall execute, acknowledge and deliver to Landlord a written statement
certifying the Commencement Date and Expiration Date of this lease, that this
lease is in full force and effect and has not been modified and otherwise as set
forth in the form of estoppel certificate attached as
Exhibit “D” or with such modifications as may be necessary
to reflect accurately the stated facts and/or such other certifications as may
be requested by a mortgagee or purchaser. Tenant understands that its failure to
execute such documents may cause Landlord serious financial damage by causing
the failure of a financing or sale transaction. 



                (b)    Tenant
shall furnish to Landlord, Landlord’s mortgagee, prospective mortgagee or
purchaser reasonably requested financial information. 



	21.  	  	Surrender;
Abandoned Property.  






                (a)    Subject
to the terms of Sections 9(b), 12(a) and 13(b), at the expiration or
termination of this lease, Tenant promptly shall yield up in the same condition,
order and repair in which they are required to be kept throughout the Term, the
Premises and all improvements thereto, and all fixtures and equipment servicing
the Building, ordinary wear and tear excepted. 



                (b)    Upon
or prior to the expiration or termination of this lease, Tenant shall remove any
personal property from the Property. Any personal property remaining thereafter
shall be deemed conclusively to have been abandoned, and Landlord, at
Tenant’s expense, may remove, store, and, unless Tenant retrieves such
Property from Landlord (and reimburses Landlord for Landlord’s cost of
removal and storage) within 10 days following the expiration or termination
of this lease, sell or otherwise dispose of such property in such manner as
Landlord may see fit and/or Landlord may retain such property as its property.
If any part thereof shall be sold, then Landlord may receive and retain the
proceeds of such sale and apply the same, at its option, against the expenses of
the sale, the cost of moving and storage and any Rent due under this lease.




                (c)    If
Tenant, or any person claiming through Tenant, shall continue to occupy the
Premises after the expiration or termination of this lease or any renewal
thereof, such occupancy shall be deemed to be under a month-to- month tenancy
under the same terms and conditions set forth in this lease, except that the
monthly installment of the Minimum Annual Rent during such continued occupancy
shall be 150% of the amount applicable to the last month of the Term. Anything
to the contrary notwithstanding, any holding over by Tenant without
Landlord’s prior written consent shall constitute a default hereunder and
shall be subject to all the remedies available to Landlord. 



22.          Curing Tenant’s Defaults.   If
Tenant shall be in default in the performance of any of its obligations
hereunder, Landlord, without any obligation to do so, in addition to any other
rights it may have in law or equity, may elect to cure such default on behalf of
Tenant after 30 days’ written notice (except in the case of emergency) to
Tenant. Tenant shall reimburse Landlord upon demand for any sums paid or costs
incurred by Landlord in curing such default, including interest thereon from the
respective dates of Landlord’s incurring such costs, which sums and costs
together with interest shall be deemed additional rent. 




14 








	23.  	  	Defaults — Remedies.  






                (a)    Defaults.   It
shall be an event of default: 



                                  (i)    If
Tenant does not pay in full when due any and all Rent; 



                                  (ii)    If
Tenant fails to observe and perform or otherwise breaches any other provision of
this lease; 



                                  (iii)    [Intentionally Deleted]; 



                                  (iv)    If
Tenant becomes insolvent or bankrupt in any sense or makes a general assignment
for the benefit of creditors or offers a settlement to creditors, or if a
petition in bankruptcy or for reorganization or for an arrangement with
creditors under any federal or state law is filed by or against Tenant, or a
bill in equity or other proceeding for the appointment of a receiver for any of
Tenant’s assets is commenced, or if any of the real or personal property of
Tenant shall be levied upon; provided, however, that any proceeding brought by
anyone other than Landlord or Tenant under any bankruptcy, insolvency,
receivership or similar law shall not constitute a default until such proceeding
has continued unstayed for more than 60 consecutive days. 



                (b)    Remedies.   Then,
and in any such event, Landlord shall have the following rights: 



                                  (i)    To
charge a late payment fee equal to the greater of $100 or 5% of any amount owed
to Landlord pursuant to this lease which is not paid within 5 days after the due
date. 



                                  (ii)    To
enter and repossess the Premises, by breaking open locked doors if necessary,
and remove all persons and all or any property therefrom, by action at law or
otherwise, without being liable for prosecution or damages therefor, and
Landlord may, at Landlord’s option, make alterations and repairs in order
to relet the Premises and relet all or any part(s) of the Premises for
Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency
that may arise by reason of such reletting. In the event of reletting without
termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach. 



                                  (iii)    To
accelerate the whole or any part of the Rent for the balance of the Term, and
declare the same to be immediately due and payable. 



                                  (iv)    To
terminate this lease and the Term without any right on the part of Tenant to
save the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken. 



                (c)    Grace
Period.   Notwithstanding anything hereinabove stated,
neither party will exercise any available right because of any default of the
other, except those remedies contained in subsection (b)(i) of this
Section, unless such party shall have first given 10 days written notice 




15 









thereof to the defaulting
party, and the defaulting party shall have failed to cure the default within
such period; provided, however, that: 



                                  (i)    No
such notice shall be required if Tenant fails to comply with the provisions of
Sections 10 or 20(a), in the case of emergency as set forth in
Section 22 or in the event of any default enumerated in
subsections (a)(iii) and (iv) of this Section. 



                                  (ii)    Landlord
shall not be required to give such 10 days notice more than 2 times during
any 12 month period. 



                                  (iii)    If
the default consists of something other than the failure to pay money which
cannot reasonably be cured within 30 days, neither party will exercise any
right if the defaulting party begins to cure the default within the 30 days
and continues actively and diligently in good faith to completely cure said
default. 



                                  (iv)    Tenant
agrees that any notice given by Landlord pursuant to this Section which is
served in compliance with Section 27 shall be adequate notice for the
purpose of Landlord’s exercise of any available remedies. 



                (d)    Non-Waiver;
Non-Exclusive.   No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant’s default shall not
constitute a waiver of Landlord’s right to recover damages hereunder. No
right or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord’s right to recover the balance of Rent due, or Landlord’s
right to pursue any other available remedy. 



                (e)    Costs
and Attorneys’ Fees.   If either party commences an
action against the other party arising out of or in connection with this lease,
the prevailing party shall be entitled to have and recover from the losing party
attorneys’ fees, costs of suit, investigation expenses and discovery costs,
including costs of appeal. 



                (f)    Curing
Landlord’s Defaults.   If (i) Landlord shall
be in default of any of its maintenance and repair obligations under the Lease
or shall fail to provide any of the services to be provided by Landlord under
this Lease, and (ii) such default materially interferes with Tenant’s
use and occupancy of the Premises for the conduct of Tenant’s business
therein, and (iii) Tenant gives Landlord written notice specifying the
nature of the default and specifying that Tenant intends to exercise its
self-help rights under this subsection, and (iv) Landlord fails to cure
such default within 30 days (or within a period of 72 hours if an
emergency or shorter reasonable period if Landlord fails to timely remove snow)
after Landlord receives Tenant’s 




16 








notice (or within such
reasonable additional time as may be necessary to cure such default provided
Landlord commences such cure within said period and thereafter diligently
prosecutes such cure to completion), then Tenant may, without any obligation to
do so, cure such default on behalf of Landlord. Landlord shall reimburse Tenant
within 30 days of demand for any reasonable out-of-pocket sums paid or costs
incurred by Tenant in curing such default (“Tenant’s Cost of
Cure”), which demand shall be accompanied by invoices or other
reasonable documentation evidencing amounts incurred by Tenant. To the extent
Tenant’s Cost of Cure include items properly includable in Operating
Expenses, Landlord may include in Operating Expenses such amounts reimbursed by
Landlord. 



	24. 	  	Representations
of Tenant.   Tenant represents to Landlord and agrees that: 






                (a)    The
word “Tenant” as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and effect as if given by or to all
thereof. 



                (b)    If
Tenant is a corporation, partnership or any other form of business association
or entity, Tenant is duly formed and in good standing, and has full corporate or
partnership power and authority, as the case may be, to enter into this lease
and has taken all corporate or partnership action, as the case may be, necessary
to carry out the transaction contemplated herein, so that when executed, this
lease constitutes a valid and binding obligation enforceable in accordance with
its terms. Tenant shall provide Landlord with corporate resolutions or other
proof in a form acceptable to Landlord, authorizing the execution of this lease
at the time of such execution. 



25.              Liability of Landlord.   The
word “Landlord” as used herein includes the Landlord named
above as well as its successors and assigns, each of which shall have the same
rights, remedies, powers, authorities and privileges as it would have had it
originally signed this lease as Landlord. Any such person or entity, whether or
not named herein, shall have no liability hereunder after it ceases to hold
title to the Premises except for obligations already accrued (and, as to any
unapplied portion of Tenant’s Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord’s successor in interest
for the performance of the covenants and obligations of the Landlord hereunder
which thereafter shall accrue. Neither Landlord nor any principal of Landlord
nor any owner of the Property, whether disclosed or undisclosed, shall have any
personal liability with respect to any of the provisions of this lease or the
Premises, and if Landlord is in breach or default with respect to
Landlord’s obligations under this lease or otherwise, Tenant shall look
solely to the equity of Landlord in the Property for the satisfaction 




17 









of Tenant’s claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment. 



	26.  	  	Interpretation; Definitions.  






                (a)    Captions.   The
captions in this lease are for convenience only and are not a part of this lease
and do not in any way define, limit, describe or amplify the terms and
provisions of this lease or the scope or intent thereof. 



                (b)    Entire
Agreement.   This lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word “including” followed by any specific item(s) is deemed
to refer to examples rather than to be words of limitation. Both parties having
participated fully and equally in the negotiation and preparation of this lease,
this lease shall not be more strictly construed, nor any ambiguities in this
lease resolved, against either Landlord or Tenant. 



                (c)    Covenants.   Each
covenant, agreement, obligation, term, condition or other provision herein
contained shall be deemed and construed as a separate and independent covenant
of the party bound by, undertaking or making the same, not dependent on any
other provision of this lease unless otherwise expressly provided. All of the
terms and conditions set forth in this lease shall apply throughout the Term
unless otherwise expressly set forth herein. 



                (d)    Interest.   Wherever
interest is required to be paid hereunder, such interest shall be at the highest
rate permitted under law but not in excess of 15% per annum. 



                (e)    Severability;
Governing Law.   If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located. 



                (f)    “Mortgage”
and “Mortgagee.”   The word “mortgage” as
used herein includes any lien or encumbrance on the Premises or the Property or
on any part of or interest in or appurtenance to any of the foregoing, including
without limitation any ground rent or ground lease if Landlord’s interest
is or becomes a leasehold estate. The word “mortgagee” as used 




18 









herein includes the holder
of any mortgage, including any ground lessor if Landlord’s interest is or
becomes a leasehold estate. Wherever any right is given to a mortgagee, that
right may be exercised on behalf of such mortgagee by any representative or
servicing agent of such mortgagee. 



                (g)    “Person.”   The
word “person” is used herein to include a natural person, a
partnership, a corporation, an association and any other form of business
association or entity. 



                (h)    Proportionate
Share.   At any time or times, upon request of Landlord or of
any tenant of the Building, the method for allocating Tenant’s
Proportionate Share of any Impositions, cost, charge, rent, expense or payment
then or thereafter payable shall be redetermined by an independent qualified
expert. The cost of such redetermination shall be borne by the tenants of the
Building in the same proportion as that determined by such expert for
reallocation of said relevant sum; except that if such redetermination is
requested by a tenant, the cost thereof shall be borne entirely by such tenant
if the proportionate share of said relevant sum allocable to such tenant as the
result of such redetermination shall not vary by at least 5% from the amount
which would have been allocable to such tenant in accordance with the percentage
based on square foot area. Except as otherwise expressly provided in this lease,
Landlord shall not increase or decrease the physical size of the Building
without Tenant’s prior written consent. 



27.              Notices.   Any
notice or other communication under this lease shall be in writing and addressed
to Landlord or Tenant at their respective addresses specified at the beginning
of this lease, except that after the Commencement Date Tenant’s address
shall be at the Premises, (or to such other address as either may designate by
notice to the other) with a copy to any mortgagee or other party designated by
Landlord. Each notice or other communication shall be deemed given if sent by
prepaid overnight delivery service or by certified mail, return receipt
requested, postage prepaid or in any other manner, with delivery in any case
evidenced by a receipt, and shall be deemed received on the day of actual
receipt by the intended recipient or on the business day delivery is refused.
The giving of notice by Landlord’s attorneys, representatives and agents
under this Section shall be deemed to be the acts of Landlord; however, the
foregoing provisions governing the date on which a notice is deemed to have been
received shall mean and refer to the date on which a party to this lease, and
not its counsel or other recipient to which a copy of the notice may be sent, is
deemed to have received the notice. 



28.              Security Deposit.   [Intentionally Deleted]. 



29.              Premises.   The
Premises will consist of 73,000 rentable square feet (29,340 rentable square
feet devoted to office use and 43,660 rentable square feet devoted to warehouse
use) in the single story Building to be constructed by Landlord as provided in
Section 30 below, as depicted on the floor plan attached to this
lease as Exhibit “A”. 



30.              Building Construction.   The
base Building shell shall be completed by Landlord substantially in accordance
with the drawings attached hereto as Exhibit “E”. All
construction shall be done in a good and workmanlike manner and shall comply in
all material respects with all applicable laws codes, regulations, rules and
requirements of the governmental authorities having jurisdiction, as applied,
enforced and interpreted as of the date the building permit is 




19 









issued, including, but not
limited to, all requirements of Title III of the ADA as applicable to commercial
facilities. This lease, and the obligations of Landlord and Tenant hereunder, is
contingent upon Landlord obtaining all necessary municipal and other
governmental approvals and permits for the development and construction of the
base Building for the uses contemplated herein and of the planned development of
which the base Building is a part. Landlord will use all reasonable efforts to
obtain such approvals. If Landlord has not obtained the building permit for the
construction of the base Building on or before April 20, 2000, either
Landlord or Tenant can terminate this lease by giving written notice of
termination to the other on or before April 30, 2000. 



31.              Tenant Improvements; Tenant Improvement Allowance. 



	  	31.1 	  	Initial Tenant Improvements.   The
initial tenant improvements (the “Initial Tenant Improvements”) shall
be constructed either by Landlord or Tenant, based on Tenant’s election
described in Section 31.3 below, in accordance with the Tenant
Improvement Plans, as defined in Section 31.2 below. Regardless of
whether constructed under contract with Landlord or with Tenant, the contracting
party shall cause the construction to be done in a good and workmanlike manner
in compliance with all applicable Laws and Requirements. 






	  	31.2 	  	
Tenant Improvement Plans.   Landlord and Tenant have
approved the space plans for the Initial Tenant Improvements attached hereto as,
or listed on attached, Exhibit G (the “Preliminary Plans”).
Tenant will provide Landlord, on or before the date that is 120 days after the
date of this Lease, complete construction drawings and specifications for the
Initial Tenant Improvements. The construction drawings and specifications shall
be consistent with the Preliminary Plans. Within 10 business days after its
receipt of the construction drawings and specifications, Landlord shall notify
Tenant of its approval or disapproval thereof (which approval shall not be
unreasonably withheld), and if Landlord disapproves thereof, the revisions that
Landlord requires in order to obtain such approval. It is agreed that Landlord
will not object to construction drawings and specifications to the extent that
they conform to the Preliminary Plans. As promptly as reasonably possible
thereafter, but no later than 10 business days after Landlord’s response,
Tenant shall submit to Landlord modified construction drawings incorporating
appropriate revisions. Upon approval of the final construction drawings and
specifications, Landlord’s and Tenant’s authorized representatives
shall each evidence such approval by initialing the top of each sheet of the
approved construction drawings and specifications. The approved construction
drawings and specifications are herein termed the “Tenant Improvement
Plans”. Once approved, neither party will change any of the Tenant
Improvement Plans without Tenant’s consent, which consent shall not be
unreasonably withheld, conditioned or delayed. 






	  	31.3 	  	
Construction.   On or before April 15, 2000, time
being of the essence, Tenant may elect by written notice to Landlord, to perform
through a general contractor selected by Tenant the construction of the Initial
Tenant Improvements. If Tenant 







20 









	  	timely elects to
construct the Initial Tenant Improvements, the Initial Tenant Improvements shall
be constructed pursuant to the approved Tenant Improvement Plans, shall be
constructed by a general contractor approved by Landlord, which approval shall
not be unreasonably withheld, and shall otherwise be constructed in accordance
with the provisions of Sections 9 and 10 of this lease. Tenant shall deliver to
Landlord copies of all certificates of occupancy, permits and licenses required
to be issued by any authority in connection with Tenant’s construction. If
Tenant fails to timely make such election, Landlord, through a general
contractor selected by Landlord, shall perform the construction of the Initial
Tenant Improvements in accordance with the provisions of this
Section 31.







	  	31.4 	  	Tenant
Improvement Allowance.   Landlord shall provide Tenant a
leasehold improvement allowance of up to $876,000 (based on $12.00 per rentable
square foot) (the “Allowance”) toward the cost of the Initial
Tenant Improvements (including the cost of architectural, engineering and
construction drawings, of obtaining necessary permits and of constructing the
interior improvements other than trade fixtures, equipment, furniture or other
removable personal property of Tenant). If Tenant contracts for the construction
of the Initial Tenant Improvements, the Allowance shall be disbursed to Tenant
by Landlord promptly after submission by Tenant to Landlord of evidence of the
costs and expenses of the Initial Tenant Improvements, evidence of payment
thereof by Tenant, lien waivers from all persons supplying labor or materials to
the initial leasehold improvements, and any other information or documentation
that Landlord may reasonably request. If the costs and expenses of the Initial
Tenant Improvements, whether constructed by Landlord or by Tenant, exceed the
Allowance (as the same may have been increased pursuant to the following
paragraph), Tenant shall be solely responsible for payment of any excess.







	  	At Tenant’s
request (which request must be made on or prior to April 1, 2000), Landlord will
increase the Allowance by an amount not to exceed $146,000 (based on $2.00 per
rentable square foot) (the “Increase”). In such event, the
Minimum Annual Rent will be increased by an amount equal to the Increase
multiplied by .1654. For example, if the Increase is the full $146,000, the
Minimum Annual Rent will increase by $24,148.40 (or $.3308 per rentable square
foot). 






	32.  	  	Completion Dates: Access; Acceptance.  






	  	32.1 	  	If Tenant
Constructs Initial Tenant Improvements.   If Tenant
elects to construct the Initial Tenant Improvements, Landlord shall cause the
base Building to be Substantially Completed (as defined below) on or before
September 1, 2000, subject to extension for any delays caused by Tenant or
delays resulting from matters outside of Landlord’s reasonable control.
“Substantial Completion” shall be deemed to occur on the date that
(i) the base Building shell (including HVAC, plumbing, electrical and other
mechanical systems to be constructed by Landlord pursuant to
Section 30.1 above) are sufficiently complete to allow access to the 







21 









	  	
Premises by Tenant for the installation of the Initial Tenant Improvements, and
(ii) a temporary or permanent certificate of occupancy with respect to the
Base Building has been issued by the City of Eden Prairie. On or about the time
of Substantial Completion of the base building, Landlord, Tenant and
Landlord’s general contractor shall jointly inspect the Premises and agree
in writing on a final punchlist of Landlord’s work that is unfinished or
defective. Tenant’s acceptance of delivery of the Premises to Tenant for
the construction of the Initial Tenant Improvements shall constitute acceptance
of the Premises, subject only to the punchlist items. Landlord shall cause
Landlord’s general contractor to complete all items on the approved
punchlist within 30 days, subject only to delays outside of Landlord’s
reasonable control. 






	  	Tenant shall at
all reasonable times following Substantial Completion of the Base Building until
the Commencement Date have access to the Premises, at Tenant’s own risk,
expense and responsibility, for purposes of installing the Initial Tenant
Improvements, furniture, trade fixtures and equipment. Moreover, Tenant shall,
upon Tenant’s request, be afforded limited access to the Premises prior to
the Substantial Completion of the Base Building for the purpose of installing
cables or other equipment, including, but not limited to, racking and a conveyor
system, that properly requires installation before the completion of the Base
Building and for the purpose of constructing the mezzanine over the office area;
Landlord shall have the right to control such access so that it does not
interfere with the timely completion of the Base Building. In connection with
all access by Tenant prior to the Commencement Date, Tenant shall abide by the
terms and conditions of this Lease including carrying the insurance specified by
the Lease, as if the term of this Lease had already commenced, except that
Tenant shall have no obligation to pay the Minimum Annual Rent or Annual
Operating Expenses until the Commencement Date. Tenant shall, however, pay the
charges for all utilities furnished to the Premises during Tenant’s
early-access period and after the substantial completion of the Base Building,
as reasonably estimated by Landlord. 






	  	32.2 	  	If Landlord
Constructs Initial Tenant Improvements. If Landlord constructs the Initial
Tenant Improvements, Landlord shall cause Landlord’s Work (meaning the
construction of the base Building and the Initial Tenant Improvements) to be
Substantially Completed (as defined below) on or before October 15, 2000,
subject to extension for any delays caused by Tenant or resulting from matters
outside of Landlord’s reasonable control. “Substantial
Completion” shall be deemed to occur on the date that
(i) Landlord’s Work is completed but for minor unfinished items that
do not materially interfere with Tenant’s scheduled installation of its
trade fixtures, equipment or furnishings or with Tenant’s scheduled
occupancy of the Premises, and (ii) a temporary or permanent certificate of
occupancy has been issued by the City of Eden Prairie. 






	  	On or about the
time of Substantial Completion of Landlord’s Work, Landlord, Tenant and
Landlord’s general contractor shall jointly inspect the Premises and agree
in writing on a final punchlist of Landlord’s Work that is unfinished or 







22 









	  	defective.
Tenant’s taking of possession of the Premises shall constitute acceptance
of the Premises, subject only to the punchlist items. Landlord shall cause
Landlord’s general contractor to complete all items on the approved
punchlist within 30 days, subject only to delays outside of Landlord’s
reasonable control. 






	  	Tenant shall at
all reasonable times following Substantial Completion of Landlord’s Work
until the Commencement Date have access to the Premises, at Tenant’s own
risk, expense and responsibility, for purposes of installing Tenant’s
furniture, trade fixtures and equipment. Moreover, Tenant shall, upon
Tenant’s request, be afforded limited access to the Premises prior to the
Substantial Completion of Landlord’s Work for the purpose of installing
cables or other equipment that properly requires installation before the
completion of Landlord’s Work; Landlord shall have the right to control
such access so that it does not interfere with the performance of
Landlord’s Work. In connection with all access by Tenant prior to the
Commencement Date, Tenant shall abide by the terms and conditions of this Lease
including carrying the insurance specified by the Lease, as if the term of this
Lease had already commenced, except that Tenant shall have no obligation to pay
the Minimum Annual Rent or Annual Operating Expenses until the Commencement
Date. Tenant shall, however, pay the charges for all utilities furnished to the
Premises during Tenant’s early-access period and after substantial
completion of Landlord’s Work, as reasonably estimated by Landlord.







33.              Term.   The
Term of this Lease shall commence on the Commencement Date (as defined below)
and shall end at 11:59 p.m. on the last day of the Term (the
“EXPIRATION DATE”), without the necessity of notice from either
party, unless sooner terminated in accordance with the terms hereof. At
Landlord’s request, Tenant shall confirm the Commencement Date and
Expiration Date by executing a lease commencement certificate in the form
attached as Exhibit “B”. 



If Tenant elects pursuant
to Section 31.3 above to contract for the construction of the
Initial Tenant Improvements, then the Commencement Date shall be the later of
(i) the date that is 90 days following the date that the base Building
is Substantially Completed and access to the Premises is delivered by Landlord
to Tenant for Tenant’s construction of the Initial Tenant Improvements as
provided in Section 32.1 above, and (ii) December 1, 2000.




If Landlord contracts for
the construction of the Initial Tenant Improvements, then the Commencement Date
shall be the later of (i) the date that is 45 days following the date
that Landlord’s Work (as defined in Section 32.2 above) is
Substantially Completed and access to the Premises is delivered by Landlord to
Tenant for the installation of Tenant’s trade fixtures, furniture and
equipment, and (ii) December 1, 2000. 



34.              Extension Option.   Tenant
shall have the right and option to extend the Term of this Lease for two
(2) additional extension terms of five (5) years each. Each such
option must be exercised, if at all, by giving Landlord prior written notice, at
least one year in advance (the “Exercise Deadline”) of the
expiration date of the then current lease Term, of Tenant’s election 




23 









to extend the lease Term;
it being agreed that time is of the essence and that this option is personal to
Tenant and is non-transferable to any assignee or sub lessee (regardless of
whether any such assignment or sublease was made with or without Landlord’s
consent) or other party. Except as follows, and subject to the following
conditions, each extension Term shall be under the same terms and conditions as
provided in the Lease: 



                (a)    Tenant’s
extension option shall be void at Landlord’s option if there exists any
event of default by Tenant under this Lease beyond any applicable notice and
cure period at the time Tenant exercises an extension option or as of the
commencement date of an extension term; 



                (b)    there
shall be no further options to extend the term beyond the second extension term;




                (c)    Tenant
shall accept the Premises in their “as is” condition, without any
obligation on the part of Landlord to provide any tenant improvements or tenant
improvement allowance; and 



                (d)    The
Minimum Annual Rent for the extension term will be the “Market Rent”
for the Premises as determined and defined pursuant to the provisions of this
Section. 



                The
Market Rent shall be determined as follows: Within 10 business days after
Landlord receives timely notice from Tenant exercising Tenant’s extension
option, Landlord will give notice to Tenant of its determination of the Market
Rent of the Premises, and Landlord’s determination will constitute the
Market Rent unless Tenant objects by giving Landlord written notice of objection
within 10 business days after Tenant’s receipt of Landlord’s
determination. If Tenant so objects, and the parties are unable to agree upon
the Market Rent within 30 days after the Tenant’s objection, then by
written notice to Landlord within 2 business days thereafter Tenant may
request arbitration of the Market Rent under this paragraph. If Tenant does not
timely give such notice requesting arbitration, Tenant’s exercise of the
extension option will be deemed rescinded, and Tenant’s extension option
shall be null and void. If arbitration is timely requested by Tenant, the Market
Rent will be determined by appraisal within 90 days after Tenant’s request
by a board of appraisers consisting of three reputable real estate professionals
experienced in the leasing of commercial office/industrial space (each an
“Expert”). One Expert will be appointed by Tenant, and the second
Expert will be appointed by Landlord. Landlord and Tenant will each appoint
their respective Experts within 30 days following Tenant’s arbitration
request. The third Expert will be appointed by the first two Experts. If the
first two Experts are unable to agree on a third Expert within 10 business days
after the appointment of the second Expert, or if either party refuses or
neglects to appoint an Expert as herein provided, then the third Expert or the
second Expert, whose appointment was not made as provided above, may be
appointed by any judge of the Hennepin County District Court. Any Expert
appointed by a judge of the Hennepin County District Court shall be a reputable
real estate appraiser experienced in appraising the rental value of commercial
office space, and shall be a member of the American Institute of Real Estate
Appraisers with the designation of “MAI.” The Experts shall be
instructed to reach their respective determinations within 45 days of the
appointment of the third Expert. If determinations of at least two of the
Experts are identical in amount, that amount will be determined to be the Market
Rent. If the determinations of all three Experts are 




24 









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



                For
purposes of this Section, “Market Rent” means the net annual rent that a willing
tenant would pay, and a willing lessor would accept, in arms-length, bona fide
negotiations, if the premises at issue were leased to a single tenant for the period in
question under a lease pursuant to which such tenant would not receive any rental
concession, such as rental abatements or “free rent” periods or rental
assumption, inducements or any leasehold improvement allowance, and otherwise taking into
account any other pertinent factors, including, but not limited to, the net effective
annual rates per rentable square foot for leases of comparable space in comparable
buildings recently or then being entered into in the southwest suburban Minneapolis area
(“Comparable Rates”). In determining the Market Rent and using Comparable Rates
in connection with such determination, the following factors (and any other factors then
known to be pertinent) shall be considered: the size of the Premises; the length of the
term; permitted use; quality of services provided; location and/or floor level; definition
of rentable area; existing leasehold improvements; leasehold improvements to be provided
by the lessor, whether directly or by allowance; the quality, age and location of the
building; financial strength of the applicable tenant; rental concessions (such as rental
abatements or “free rent” periods and rent assumptions); inducements; the
respective obligations of the lessor and the tenant, the manner in which the rents are
then subject to escalation and the time the particular rate under consideration became or
will become effective. In the event a Comparable Rate used for comparison is a
“gross” rate (i.e., the rate includes an allowance for operating expenses or
taxes), then such Comparable Rate shall be appropriately adjusted to the end that such
rate is net of operating expenses and taxes to the same extent as provided in this Lease,
and in the event a Comparable Rate is a “net” rate (i.e. the rate does not
include an allowance for operating expenses or taxes), any difference between operating
expenses and taxes payable under this Lease and under the lease as to which the Comparable
Rate applies shall be taken into account. 




25 








Upon the timely exercise of an
extension option, at the request of either party the parties hereto will enter into an
appropriate amendment to the Lease incorporating the terms of the Lease extension. 



35.              Parking.   Landlord
shall provide, and Tenant shall be entitled to the use of, not less
than 4.5 unreserved parking spaces for each 1,000 rentable square feet of
the Premises. Such parking shall be nonexelusive, undesignated and unreserved
parking provided as part of the Building’s common area parking facilities,
except that Landlord will allow Tenant to designate up to 10 of said
parking spaces for the parking of Tenant’s visitors and guests (the
location and the signage of such visitor parking being subject to
Landlord’s reasonable approval). 



	36.  	  	Expansion Rights.  






	  	36.1 	  	
Expansion Option.   Tenant may elect by written
notice to Landlord given on or before April 1, 2000  to expand the
Premises by approximately 20,000 rentable square feet (the “Expansion
Space”) so as to include in the Premises 100% of the rentable area of the
Building. In such event, all of the terms and conditions of this lease
applicable to the original Premises (including, but not limited to, the Tenant
Improvement Allowance of $12.00 per rentable square foot (subject to increase
under the terms and conditions of the second paragraph of Section 31.4))
shall apply to the Expansion Space; and the Minimum Annual Rent for each lease
year as set forth in Section 1(d) shall be increased by an amount
equal to the scheduled Minimum Annual Rent per rentable square foot for the
original Premises multiplied by the rentable square feet in the Expansion Space.
If Tenant timely exercises this expansion option, at the request of either
party, the parties shall enter into an amendment to this lease adding the
Expansion Space to the Premises and incorporating into the schedule of Minimum
Annual Rent the rental increase resulting from the increase in the rentable
square footage of the Premises. The Tenant Improvement Allowance for the
Expansion Space may be used for leasehold improvements constructed in the
original Premises as well as for leasehold improvements constructed in the
Expansion Space, but it shall not be used for trade fixtures, equipment,
furniture or other removable personal property of Tenant. 






	  	36.2 	  	First
Notice.   Tenant acknowledges that Tenant has no rights
in and to the Expansion Space other than the rights specified in
Section 36.1 above. If, however, Tenant fails to exercise its rights
to expand into the Expansion Space as provided above, Landlord will, as a
courtesy to Tenant, endeavor to provide Tenant notice at such time Landlord
believes that Landlord is close to entering into an initial lease or commitment
to lease the Expansion Space to a third party. Such notice may be given by
telephone or other informal means. This provision is not intended to provide
Tenant any rights of first offer, first refusal or other rights with respect to
the Expansion Space, and Landlord shall have no liability to Tenant if Landlord
fails to provide the notice contemplated in this Section 36.2. The
provisions of this Section 36.2 shall only apply to the initial
leasing of the 








26 









	  	Expansion Space,
and shall not apply to any subsequent leasing or re-leasing thereof. 






	37.  	  	Landlord’s Environmental Representations.  






	  	37.1  	  	Landlord has
provided Tenant a copy of the following environmental assessments and reports
regarding the Property: 






	  	  	•  	  	Phase I
Environmental Site Assessment prepared by LAW ENGINEERING AND ENVTRONMENTAL
SERVICES, INC. Dated January 9, 1998, Project 5200-7-1363-02b-916. 






	  	  	•  	  	Phase I
Environmental Site Assessment prepared by LAW ENGINEERING AND ENWERONMENTAL
SERVICES, INC. Dated January 9, 1998, Project 5200-7-1363-02c-916. 






	  	Landlord
represents to Tenant that the foregoing is a complete list of all studies and
reports in Landlord’s possession or under Landlord’s control with
respect to hazardous substances or Restricted Activities (as defined in
Section 4 of the lease) on or about the Property. Landlord will provide
Tenant a copy of any additional or updated environmental assessments obtained by
Landlord in connection with its acquisition or development of the Property.
Landlord has received no notice from any governmental authority regarding of any
inquiry, investigation or proceeding regarding hazardous substances or
Restricted Activities on or about the Property. 






	  	37.2 	  	
Landlord represents that the base Building will be constructed in compliance, in all
material respects, with all applicable environmental Laws and Requirements as applied,
enforced and interpreted as of the date the building permit is issued. 






	  	37.3 	  	
Landlord will protect, indemnify and hold harmless Tenant from and against any and all
claims, actions, damages, liability and expense (including fees of attorneys,
investigators and experts) arising out of the breach by Landlord of Landlord’s
representations in this Section 37. Landlord, at its expense, shall resist and
defend such action or proceeding, or cause the same to be resisted and defended by counsel
(reasonably acceptable to Tenant) designated by Landlord and approved by Tenant.
Landlord’s obligations pursuant to this Section shall survive the expiration or
termination of this lease. 








27 









        IN
WITNESS WHEREOF, and in consideration of the mutual entry into this lease and for
other good and valuable consideration, and intending to be legally bound, Landlord and
Tenant have executed this lease. 



	Date signed:   December 21, 1999 	 	Landlord:
LIBERTY PROPERTY LIMITED PARTNERSHIP 
	  	  	By:   	 	Liberty Property Trust, Sole General Partner 
	 
	  	  	  	 	By:   	 	 /s/   Robert L. Kiel	 
	 	

	  	  	  	 	  	 	Its:   Sr Vice President – Reg Dir 	 
	 
	 
	 	 	Tenant:  
	Date signed:   December 21, 1999 	 	CNS, INC. 
	 
	  	  	By:   	 	/s/   Marti Morfitt 
	 	

	  	  	  	 	Its:   President and Chief Operating Officer 

















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