OFFICE LEASE AGREEMENT

Exhibit 10.1

OFFICE LEASE AGREEMENT BETWEEN

NEA GALTIER, LLC,

AS LANDLORD,

AND

CRAY INC.

AS TENANT

DATED July 2, 2009

Galtier Plaza, St. Paul, Minnesota

BASIC LEASE INFORMATION

The parties acknowledge that Gross Full Service Rent includes all Operating Costs (as defined in Section 4(b) herein).

As used herein, the term “ Lease Month” shall mean each calendar month during the Term. If the Actual Commencement Date does not occur on the first day of a calendar month, the period from the Actual Commencement Date to the first day of the next calendar month shall be included in the first Lease Month for purposes of determining the duration of the Term and the monthly Gross Full Service Rent for the first calendar month shall be prorated as of the Actual Commencement Date. As used herein, the term “ Lease Year” shall mean that period from the Actual Commencement Date to the next succeeding anniversary date of the Actual Commencement Date. Thereafter, “ Lease Year ” shall mean successive twelve (12) month periods following the expiration of the first Lease Year.

Security Deposit: $234,086.49 (Three (3) months’ Gross Full Service Rent, subject to adjustment based on Tenant’s exercise of Tenant’s Expansion Options).

Subject to the provisions of Section 6 herein, on the first day of the nineteenth (19 ^th ) full calendar month of the Term, one-third (1/3) of the initial Security Deposit will be applied to that month’s Gross Full Service Rent;

Subject to the provisions of Section 6 herein, on the first day of the thirty-first (31st) full calendar month of the Term, one-third (1/3) of the initial Security Deposit will be applied to that month’s Gross Full Service Rent; and

Landlord will hold the remaining balance of the Security Deposit as a Security Deposit for the balance of the Term.

1

Tenant’s Address: Prior to Actual Commencement Date: Following Actual Commencement Date : Cray Inc. Cray Inc. Cray Inc. Cray Inc.

Attention: Property Management
Telephone: 651.297.6734
Telecopy: 651.297.6287

For Rent:
NEA Galtier, LLC
NW 5771
P.O. Box 1450
Minneapolis, MN 55485-5771

2

The foregoing Basic Lease Information is incorporated into and made a part of the Lease identified above. If any conflict exists between any Basic Lease Information and the Lease, then the Lease shall control.

LANDLORD:
NEA GALTIER, LLC ,

a            Delaware limited liability company

By: /s/ Steven M. Resnick
Name: Steven M. Resnick
Title: Managing Member



By: /s/ Dale Stark
Name: Dale Stark
Title: Managing Member

TENANT:
CRAY INC.,

a Washington corporation

By: /s/ Brian C. Henry
Name: Brian C. Henry
Title: Executive Vice President
and Chief Financial Officer

3

TABLE OF CONTENTS

Page

1.

Definitions and Basic Provisions

 

2.

Lease Grant

 

3.

Term

 

4.

Rent

 

(a)

Payment

 

(b)

Operating Costs

 

5.

Delinquent Payment; Handling Charges

 

6.

Security Deposit

 

7.

Utility Service; Building Amenities

 

8.

Improvements; Alterations; Repairs; Maintenance

 

(a)

Improvements; Alterations

 

(b)

Repairs; Maintenance

 

(c)

Performance of Work

 

(d)

Mechanic’s Liens

 

9.

Use

 

10.

Assignment and Subletting

 

(a)

Transfers

 

(b)

Consent Standards

 

(c)

Request for Consent

 

(d)

Conditions to Consent

 

(e)

Intentionally Omitted

 

(f)

Additional Compensation

 

(g)

Permitted Transfers

 

(h)

Assignment of Subrents

 

11.

Insurance; Waivers; Subrogation; Indemnity

 

(a)

Tenant’s Insurance

 

(b)

Landlord’s Insurance

 

(c)

Waiver of Negligence; No Subrogation

 

(d)

Indemnity

 

(e)

No Waiver

 

12.

Subordination and Non-Disturbance; Attornment; Notice to Landlord’s Mortgagee

 

(a)

Subordination and Non-Disturbance

 

(b)

Attornment

 

(c)

Notice to Landlord’s Mortgagee

 

(d)

Landlord’s Mortgagee’s Protection Provisions

 

13.

Rules and Regulations

 

14.

Condemnation

 

(a)

Total Taking

 

(b)

Partial Taking — Tenant’s Rights

 

(c)

Partial Taking — Landlord’s Rights

 

(d)

Award

 

15.

Fire or Other Casualty

 

(a)

Repair Estimate

 

(b)

Landlord’s and Tenant’s Rights

 

(c)

Landlord’s Rights

 

(d)

Repair Obligation

 

(e)

Removal of Personal Property

 

16.

Personal Property Taxes

 

17.

Events of Default

 

18.

Remedies

 

(a)

Re-Entry Without Termination

 

(b)

Damages in the Event of Termination

 

(c)

Miscellaneous

 

19.

Jurisdiction; Non-Waiver

 

(a)

Jurisdiction

 

(b)

No Waiver

 

20.

Surrender of Premises

 

21.

Holding Over

 

22.

Certain Rights Reserved by Landlord

 

23.

Intentionally Omitted

 

24.

Miscellaneous

 

(a)

Landlord Transfer

 

(b)

Landlord’s Liability

 

(c)

Force Majeure

 

(d)

Brokerage

 

(e)

Estoppel Certificates

 

(f)

Notices

 

(g)

Separability

 

(h)

Amendments; and Binding Effect

 

(i)

Quiet Enjoyment

 

(j)

No Merger

 

(k)

No Offer

 

(l)

Entire Agreement

 

(m)

Waiver of Jury Trial

 

(n)

Governing Law

 

(o)

Joint and Several Liability

 

(p)

Financial Reports

 

(q)

Landlord’s Fees

 

(r)

Telecommunications

 

(s)

Confidentiality

 

(t)

Legal Fees

 

(u)

Hazardous Materials

 

(v)

List of Exhibits

 

25.

Other Provisions

 

(a)

Warranty Disclaimer

 

(b)

Gross Full Service Rent Abatement

 

(c)

Tenant’s Termination Right

 

(d)

Tenant’s Right of First Offer

 

(f)

Bicycle Parking/Storage

 

(g)

Conference Center

 

(h)

YMCA Membership

 

(i)

Bus Services

 

(j)

Building Naming Rights; Consequences of Tenant Abandonment

 

(k)

Municipal Incentives

LEASE

THIS LEASE AGREEMENT (this “ Lease ”) is entered into as of July 2, 2009 (the “ Execution Date ”) between NEA GALTIER, LLC , a Delaware limited liability company (“ Landlord ”), and CRAY INC. , a Washington corporation (“ Tenant ”).

1.  Definitions and Basic Provisions . The definitions and basic provisions set forth in the Basic Lease Information (the “ Basic Lease Information ”) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes. Additionally, the following terms shall have the following meanings when used in this Lease: “ Laws ” means all federal, state, and local laws, rules and regulations, all court orders, governmental directives, and governmental orders, and all restrictive covenants affecting the Property, and “ Law ” shall mean any of the foregoing; “ Affiliate ” means any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the party in question; “ Tenant Party ” means any of the following persons: Tenant; any assignees claiming by, through, or under Tenant; any subtenants claiming by, through, or under Tenant; and any of their respective agents, contractors, employees, and invitees; and “ including ” means including, without limitation.

2.  Lease Grant . Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises. The Premises are outlined on the plan attached to the Lease as Exhibit A . The Building, together with the other improvements owned by Landlord and located in the complex known as Galtier Plaza are the “ Complex .” The terms “Building” and “Complex” include related land and similar improvements. The land on which the Complex is located (the “ Land ”) is described on Exhibit B .

3.  Term . If the Premises are not ready for occupancy by Tenant on the Scheduled Commencement Date, then (a) Gross Full Service Rent and Additional Rent (as defined in Section 4) shall be waived until Landlord tenders possession of the Premises to Tenant, and the Gross Full Service Rent schedule shall be adjusted to ensure that the initial Term remains at 126 months (subject to the provisions of subsection (d) of this Section 3), with Gross Full Service Rent abatement for the first six (6) months (excepting any initial partial calendar month); (b) so long as Landlord has used best efforts to achieve Substantial Completion by the Scheduled Commencement Date (taking into account any Tenant Delays (as defined in Exhibit D ) and events of Force Majeure which may delay Landlord’s efforts to achieve Substantial Completion by said Date), Landlord shall not be in default hereunder or be liable for damages therefor; provided, however, that (i) the Working Drawings (as defined in Exhibit D ) have been approved by Landlord and Tenant on or before July 31, 2009 , and (ii) the Premises Contract (as defined in Exhibit D ) and all bids related to the Working Drawings shall have been approved by Landlord and Tenant on or before July 31, 2009 , then in such case Landlord shall reimburse Tenant for 50% of the excess over 100% of the base rent required to be paid by Tenant as holdover base rent after December 1, 2009 under its existing lease at its current location at 1340 and 1345 Mendota Heights Road, Mendota Heights, Minnesota (said 50% share estimated to be $15,000 per month) from the Scheduled Commencement Date until the Actual Commencement Date, provided that Tenant gives substantiating documentation of any such holdover base rent to Landlord as is reasonably acceptable to Landlord; notwithstanding the foregoing, Landlord’s reimbursement obligation shall cease in the event of any one (1) or more Tenant Delays, which, in the aggregate cause a delay in Substantial Completion of fifteen (15) or more days; (c) subject to Tenant’s right to terminate the Lease set forth below in this Section 3, Tenant shall accept possession of the Premises when Landlord tenders possession thereof to Tenant; provided, however, that Landlord shall not deliver the Premises to Tenant prior to Substantial Completion of the Tenant Improvements (as defined in Exhibit D ) and completion of the Punch List Inspection as described in Section 10.1 of Exhibit D (provided that Tenant arranges and completes said walk-through during the specified time period); and (d) if the date Landlord tenders possession of the Premises to Tenant is not the first day of a calendar month, then the Term shall be extended by the number of days between such tender of possession and the first day of the next month. The actual date that Tenant accepts possession of the Premises in accordance with this Section 3 shall be referred to as the “ Actual Commencement Date ”. Notwithstanding the forgoing, in the event that Landlord has not delivered possession of the Premises to Tenant on or before May 1, 2010 (that date that is six (6) months after the Scheduled Commencement Date) and that such failure is not the result of a Tenant Delay or a Force Majeure as described in Section 24(c), then Tenant may terminate this Lease by giving written notice to Landlord, the receipt of which must occur no later than May 12, 2010 in order for termination to be effective. In the event that Tenant elects to so terminate the Lease, the Lease shall be deemed terminated the date that the termination notice is delivered to the Landlord and, subject to any surviving obligations of the parties hereunder, the parties thereafter shall have no further rights or obligations hereunder. If Tenant fails to timely complete the walk-through described on Exhibit D , or if Tenant does timely complete the walk-through but provides no written notice that the Premises are not Substantially Complete, Tenant shall be deemed to have accepted the Premises in their condition as of the date of delivery thereof, subject to the performance of punch-list items that remain to be performed by Landlord, if any. Upon request by Tenant or Landlord, the parties shall execute and deliver to each other, within ten (10) days after such request, an amendment confirming the Actual Commencement Date and the expiration date of the initial Term, any adjustments to the Gross Full Service Rent schedule (including adjustments made pursuant to Exhibit D attached hereto or Tenant’s election of Tenant’s Expansion Options), that Tenant has accepted the Premises, and that Landlord has performed all of its obligations with respect to the Premises (except for punch-list items specified in such letter), and reserving to Tenant any claims for latent defects and/or any design and construction defects. Landlord agrees to use its best efforts to achieve Substantial Completion by the Scheduled Completion Date. As used in this Lease, “ best efforts ” means good faith efforts that are reasonable under the circumstances and does not require unreasonable, unwarranted, or impractical efforts and expenditures of time and money out of proportion to economic reality.

4.  Rent .

(a)  Payment . Tenant shall timely pay to Landlord Gross Full Service Rent and all additional sums to be paid by Tenant to Landlord under this Lease (“ Additional Rent ”), without deduction or set off, at Landlord’s address provided for in this Lease or as otherwise specified by Landlord and, to the extent not already included in the Gross Full Service Rent, shall be accompanied by all applicable state and local sales or use taxes. Gross Full Service Rent, adjusted as herein provided, shall be payable monthly in advance. Subject to Section 3 herein, the first monthly installment of Gross Full Service Rent shall be payable on or before the Actual Commencement Date; thereafter, Gross Full Service Rent shall be payable on the first day of each month beginning on the first day of the second full calendar month of the Term. The monthly Gross Full Service Rent for any partial month at the beginning of the Term shall equal the product of 1/365 of the annual Gross Full Service Rent in effect during the partial month and the number of days in the partial month from and after the Actual Commencement Date, and shall be due on the Actual Commencement Date.

(b)  Operating Costs . The term “ Operating Costs ” shall mean all expenses and disbursements that Landlord incurs in connection with the ownership, operation, and maintenance of the Complex, determined in accordance with sound accounting principles including, but not limited to, the following costs: (A) wages and salaries (including management fees) of all employees at or below the level of senior building management fully engaged in the operation, maintenance, and security of the Complex (together with Landlord’s reasonable allocation of expenses of off-site employees who perform a portion of their services in connection with the ownership, operation or maintenance of the Complex), including taxes, insurance and benefits relating thereto; (B) all supplies and materials used in the operation, maintenance, repair, replacement, and security of the Complex; (C) costs for improvements made to the Complex which, although capital in nature, are expected to reduce the normal operating costs (including all utility costs) of the Complex, as well as capital improvements made in order to comply with any law hereafter promulgated by any governmental authority, as amortized over the useful economic life of such improvements as determined by Landlord in its reasonable discretion; (D) cost of all utilities, including electricity except the cost of utilities reimbursable to Landlord by the Complex’s tenants other than pursuant to a provision similar to this Section 4.(b), and except costs of utilities for the Server Room and Lab and after-hours use, as described in Section 7 herein, which shall be Tenant’s responsibility; (E) insurance expenses; (F) repairs, replacements, and general maintenance of the Complex; (G) service or maintenance contracts with independent contractors for the operation, maintenance, repair, replacement, or security of the Complex (including, without limitation, alarm service, window cleaning, and elevator maintenance), and (H) all taxes, assessments, and governmental charges whether federal, state, county or municipal, and whether they be by taxing districts or authorities presently taxing or by others, subsequently created or otherwise, attributable to the Complex (or its operation), excluding, however, penalties and interest thereon and federal and state taxes on income (collectively, “ Taxes ”) (if the present method of taxation changes so that in lieu of the whole or any part of any taxes, assessments or governmental charges, there is levied on Landlord a capital tax directly on the rents received therefrom or a franchise tax, assessments, or charge based, in whole or in part, upon such rents for the Complex, then all such taxes, assessments, or charges, or the part thereof so based, shall be deemed to be included within the term “ Taxes ” for purposes hereof). Taxes shall include the costs of consultants retained in an effort to lower taxes and all costs incurred in disputing any taxes or in seeking to lower the tax valuation of the Complex. For property tax purposes, Tenant waives all rights to protest or appeal the appraised value of the Premises, as well as the Complex.

5.  Delinquent Payment; Handling Charges . Commencing with the second failure by Tenant to pay a sum when due within any rolling twelve (12) month period, all past due payments required of Tenant hereunder shall bear interest from the date due until paid at the lesser of eighteen percent (18%) per annum or the maximum lawful rate of interest; additionally, upon such second occurrence, after Landlord has delivered to Tenant written notice of its failure to pay a sum when due, then Landlord may, without delivering to Tenant notice of such delinquency, charge Tenant a fee equal to five percent (5%) of the delinquent payment to reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenant’s delinquency. In no event, however, shall the charges permitted under this Section 5 or elsewhere in this Lease, to the extent they are considered to be interest under applicable Law, exceed the maximum lawful rate of interest.

6.  Security Deposit . Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord the Security Deposit, which shall be held by Landlord to secure Tenant’s performance of its obligations under this Lease. The Security Deposit is not an advance payment of Rent nor a measure or limit of Landlord’s damages upon an Event of Default (defined in Section 17). Landlord may, from time to time following an Event of Default and without prejudice to any other remedy, use all or a part of the Security Deposit to perform any obligation Tenant fails to perform hereunder. Upon the commencement of the 19 ^th full calendar month of the Term, provided that an Event of Default by Tenant has not occurred hereunder, the amount of one (1) months’ Gross Full Service Rent shall be taken from the Security Deposit and applied toward Gross Full Service Rent hereunder. Upon the commencement of the 31 ^st full calendar month of the Term, provided that an Event of Default by Tenant does not then exist hereunder, the amount of one (1) months’ Gross Full Service Rent shall be taken from the Security Deposit and applied toward Gross Full Service Rent hereunder. Following any application of the Security Deposit pursuant to an Event of Default, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount (or to its reduced amount, in accordance with the foregoing provisions allowing for reduction of the Security Deposit on the 19 ^th and 31 ^st full calendar months of the Term, respectively). Provided that Tenant has performed all of its obligations hereunder, Landlord shall, within 30 days after the Term ends, return to Tenant the portion of the Security Deposit which was not applied to satisfy Tenant’s obligations. The Security Deposit may be commingled with other funds, and no interest shall be paid thereon. If Landlord transfers its interest in the Premises and the transferee assumes Landlord’s obligations under this Lease, then Landlord may assign the Security Deposit to the transferee and Landlord thereafter shall have no further liability for the return of the Security Deposit.

7.  Utility Service; Building Amenities . Tenant shall promptly pay all charges for all utility services furnished to or used in connection with the Server Room and Lab, as defined in Exhibit D attached hereto, which charges shall not include the administrative fee historically assessed as part of the Building’s Operating Costs pursuant to the Thermal Energy Service Agreement. In addition, Tenant shall be responsible for all telephone, fiber optic data, and cable costs for the Premises and any other utilities not expressly included in Tenant’s Gross Full Service Rent pursuant to the following sentence. Utility services (electricity, gas (if applicable), running water, hydronic water for heating and cooling (if applicable), sewer, trash, plumbing, heating, ventilation, and air conditioning) provided to portions of the Premises other than the Server Room and Lab shall be included in Operating Costs and are a part of Tenant’s Gross Full Service Rent. Notwithstanding the foregoing, Tenant shall be responsible for the costs of electricity and HVAC provided to the Premises outside of normal business hours, as defined in Section 9 herein, to the extent such use outside of normal business hours exceeds sixteen (16) hours a month. Tenant shall be charged a rate of $22.00 an hour for such after-hours HVAC and electricity usage, to the extent such usage exceeds sixteen (16) hours a month. Landlord shall compute the use of the 16-hour per month allowance of after-hours electricity and HVAC by counting against the allowance the aggregate number of hours of after-hours electricity and/or HVAC provided to any zone within the Premises (after deducting the hours of use that overlap when service is provided to multiple zones) during each period outside normal business hours from the end of normal business hours until the beginning of the next period of normal business hours, as measured by the Building energy management system (rounded to the nearest hour), regardless of the number of zones in the Premises in which electricity and HVAC are being supplied during that given period outside normal business hours. For example, if Tenant triggers the supply of electricity and HVAC services under the Building energy management system outside normal business hours on a Friday evening starting at 6:00 p.m. in five zones in the Premises that overlap as follows: Zone 1 – 7-8 p.m. (1 hour), Zone 2: 6-10 p.m. (4 hours), Zone 3: 8-10 p.m. (2 hours), Zone 4: 8-11 p.m. (3 hours), and Zone 5: 7-9 p.m. (2 hours), then the number of hours charged against the allowance would be five (5) hours, consisting of the 4 hours required in Zone 2, plus the additional hour from 10 p.m. to 11 p.m. required in Zone 4 that was not overlapped by the time required under Zone 2. Tenant shall provide and maintain separate meters for utilities provided to the Server Room and Lab.

Elevator service to the Premises shall be available 24 hours a day, 7 days per week, 52 weeks per year. Heating, ventilation, air conditioning (“ HVAC ”) and electricity for normal office use shall be provided during the Building’s normal business hours, as defined in Section 9 herein. Notwithstanding the foregoing, electricity and HVAC shall be provided to the Server Room and Lab 24 hours a day, 7 days per week, 52 weeks per year. HVAC and electricity will also be provided to the Premises outside of normal business hours for employees of Tenant working after-hours on an as-needed basis, subject to Tenant’s payment of costs for these utilities as described above. Tenant shall have key-card access to the Building, 24 hours a day, 365 days a week, subject to the provisions of Section 9 herein. The key card access system shall be provided and maintained by Landlord, the costs of which are included in Tenant’s Gross Full Service Rent; provided, however, that Tenant shall pay to Landlord a security deposit on all access cards, equal to $25.00 per card . Landlord acknowledges that Tenant intends to use a key card access system for the Premises, and Landlord agrees to attempt to coordinate its key card access system for the Complex with Tenant’s key card access system so that the same key card may be used for both systems. Landlord agrees to provide 24-hour on-site security and security escort service for the Building, seven (7) days a week, the costs of which shall be included in Operating Costs hereunder. Tenant may, at its sole cost, provide additional security for the Premises, such as video monitoring devices, subject to the provisions of Section 8 herein. Landlord agrees to reasonably cooperate with Tenant with respect to the installation and maintenance of such security, provided that Landlord shall not be responsible for any costs of the same. Landlord shall also provide cleaning and janitorial services to the Premises and common areas of the Building of a character customarily provided in first-class buildings in St. Paul, which services will be performed five (5) days per week, Monday through Friday, excepting legal holidays, the costs of which shall be included in Operating Costs hereunder. The Building shall also be fully sprinklered. As of the Effective Date, the sprinkler supply is 6”, 125 psi, and the Building is served by a 500 gpm diesel fire pump.

Tenant acknowledges that Qwest currently provides fiber-optic data service to the Building, and Tenant shall be responsible for delivering fiber optic data and telephone service to the Premises. Landlord shall not be liable for any interruption or failure whatsoever in Building services, utilities and amenities, and Tenant shall comply with all provisions of this Lease notwithstanding any such failure or interruption.

8.  Improvements; Alterations; Repairs; Maintenance .

(a)  Improvements; Alterations . Except for any work to be performed by Landlord pursuant to Exhibit D attached to this Lease (“ Tenant Improvements ”), all improvements to the Premises shall be installed at Tenant’s expense only in accordance with plans and specifications which have been previously submitted to and approved in writing by Landlord. No alterations or physical additions in or to the Premises costing in excess of $25,000.00 in the aggregate for any one (1) Lease Year may be made without Landlord’s prior written consent, which shall not be unreasonably withheld or delayed; however, Landlord may, in its sole discretion, withhold its consent to any alteration or addition that would affect the Complex’s structure or its HVAC, plumbing, electrical, or mechanical systems. All such alterations other than the Tenant Improvements installed by or on behalf of Tenant shall hereinafter be referred to as “ Tenant’s Alterations ”. All Tenant’s Alterations shall become the property of Landlord and shall be surrendered as part of the Premises upon the expiration or earlier termination of this Lease; provided, however, that Tenant may be required to remove those Tenant’s Alterations requiring Landlord’s approval hereunder if, as a condition of Landlord’s approval, Landlord requires the removal of the same upon the expiration or earlier termination of this Lease. Tenant shall not paint or install lighting or decorations, signs, window or door lettering, or advertising media of any type on or about the Premises without the prior written consent of Landlord, which shall not be unreasonably withheld or delayed; however, Landlord may withhold its consent to any such painting or installation which would affect the appearance of the exterior of the Complex or of any common areas of the Complex. Notwithstanding the foregoing, Landlord agrees that Tenant may construct and install a monument and fascia signage and other branding and signage, at Tenant’s sole cost (“ Tenant’s Signage ”), subject to the prior approval of the City of Saint Paul, Tenant’s compliance with all applicable Laws, and the prior approval of Landlord with respect to the design, location and number of such signs, which approval shall not be unreasonably withheld. Landlord agrees to cooperate with Tenant to obtain the City of Saint Paul’s approval for Tenant’s Signage as approved by Landlord (provided that Landlord shall incur no costs with respect to the same), but Tenant shall have primary responsibility for taking all actions necessary to seek the approval of the City of Saint Paul. Notwithstanding anything to the contrary in this Section 8, Tenant shall be required to remove Tenant’s Signage upon the expiration or earlier termination of this Lease, and to repair any damage caused by such removal to Landlord’s satisfaction. Tenant’s removal and repair obligations hereunder shall survive the expiration or earlier termination of this Lease. Landlord agrees to provide Building standard directory board and tenant suite identification at no cost to Tenant. All alterations, additions, and improvements shall be constructed, maintained, and used by Tenant, at its risk and expense, in accordance with all Laws; Landlord’s approval of the plans and specifications therefor shall not be a representation by Landlord that such alterations, additions, or improvements comply with any Law.

(b)  Repairs; Maintenance . Tenant shall maintain the Premises in a clean, safe and operable condition and in good condition and repair in accordance with all applicable Laws, including, but not limited to all of Tenant’s equipment, furnishings, fixtures and IT Systems (as defined in Exhibit D ), as well as the interior walls, windows, floors, ceilings, and doors. In addition, Tenant shall be solely responsible for the maintenance, repair and replacement of all heating, ventilating and air-conditioning/cooling systems, electrical equipment and apparatus, and fire and safety systems located in the Server Room and Lab. Tenant shall not permit or allow to remain any waste or damage to any portion of the Premises. Tenant shall repair or replace, subject to Landlord’s direction and supervision, any damage to the Complex caused by a Tenant Party. If Tenant fails to complete such repairs or replacements within fifteen (15) days after the occurrence of such damage, or such additional time as may be reasonably necessary if the repair cannot be completed within such fifteen (15) day period, but in no event more than fifteen (15) additional days, then Landlord may make the same at Tenant’s cost. If any such damage occurs outside of the Premises, then Landlord may elect to repair such damage at Tenant’s expense, rather than having Tenant repair such damage. The cost of all repair or replacement work performed by Landlord under this Section 8 shall be paid by Tenant to Landlord within ten (10) days after Landlord has invoiced Tenant therefor.

Subject to the obligations of the Tenant relative to the Premises in the prior paragraph and the obligations of other persons under applicable recorded declarations related to the Complex, Landlord shall keep and maintain in good repair and working order and in compliance with applicable Laws and regulations, and perform maintenance upon the: (a) structural elements of the Complex; (b) mechanical (including HVAC), electrical, plumbing and fire/life safety systems serving the Complex in general; (c) common areas; (d) roof of the Complex; (e) exterior windows of the Complex; and (f) elevators and skyway serving the Complex. Landlord shall promptly make repairs and perform maintenance for which Landlord is responsible.

(c)  Performance of Work . All alteration or improvement work described in this Section 8 shall be performed only by Landlord or by contractors and subcontractors approved in writing by Landlord, such approval not to be unreasonably withheld, conditioned or delayed. The party who engages the contractor or subcontractor (Landlord or Tenant) shall cause all contractors and subcontractors performing work described in this Section 8 to procure and maintain commercial general liability insurance coverage against such risks, in such amounts, and with such companies as the contracting party (Landlord or Tenant) may reasonably require naming Landlord and Tenant as an additional insured, and shall also cause all such contractors and subcontractors to maintain workers compensation insurance, all of which insurance shall contain waiver of subrogation endorsements acceptable to the contracting party. All such work shall be performed in accordance with all Laws and in a good and workmanlike manner so as not to damage the Complex (including the Premises, the structural elements, and the plumbing, electrical lines, or other utility transmission facility). All such work which may affect the Complex’s HVAC, electrical, plumbing, other mechanical systems, or structural elements must be approved by the Complex’s engineer of record, at Tenant’s expense and, at Landlord’s election, must be performed by Landlord’s usual contractor for such work.

(d)  Mechanic’s Liens . Tenant agrees to promptly pay all sums of money in respect of any labor, services, materials, supplies or equipment furnished or alleged to have been furnished to Tenant or anyone holding the Premises or any part thereof, through, or under Tenant in, at or about the Premises, or furnished to Tenant’s agents, employees, contractors or subcontractors, which may be secured by any mechanic’s, material supplier’s or other type of lien against any part of the Complex or the Landlord’s interest therein (a “ Lien ”). Tenant shall notify Landlord of the filing of any Lien within three days after receiving notice of such filing. If Tenant fails, within 20 days after the date of the filing of the Lien, to discharge such Lien or pursuant to Minn. Stat. § 514.10 deposit into court a sum determined by the court, Landlord may, but shall not be required or expected to, remove such Lien in such manner as Landlord may, in its sole discretion, determine, and the full cost thereof, together with all Landlord’s fees and costs, including attorney fees, shall be due and payable by Tenant to Landlord immediately upon Tenant’s receipt of Landlord’s notice therefor. Tenant acknowledges that Landlord may post notice on the Premises of non-responsibility for such Liens and, in such event, Tenant shall so advise all contractors, materialmen, suppliers and other persons performing work or providing services and/or supplies to the Premises on behalf of Tenant.

9.  Use . Tenant shall occupy and use the Premises only for the Permitted Use and shall comply with all Laws relating to the use, condition, access to, and occupancy of the Premises. Tenant shall not conduct regular second or third shift operations within the Premises; however, Tenant may use the Premises after normal business hours, so long as Tenant is not routinely conducting business from the Premises after normal business hours. Normal business hours as used herein shall mean the hours between 6:00 am and 6:00 pm, Monday through Friday, and between 8:00 am and 1:00 pm Saturday, holidays excepted; provided however, that Landlord acknowledges and agrees that the nature of Tenant’s business operations requires, and Tenant will at all times (24 hours a day, 365 days a year) maintain, not less than two (2) staff personnel on the Premises for monitoring of the Server Room and responding to client service calls (herein the “ After Hours Staff ”). Landlord further acknowledges that, from time to time, a limited number of employees of Tenant may work after-hours from the Premises to complete work-related projects on a temporary, as-needed basis. Other than the After Hours Staff, all persons entering or leaving the Complex between the hours of 6:00 pm and 6:00 am, Monday through Friday, or after 1:00 pm Saturday, or at any time on Sundays or holidays, may be required to do so under such reasonable regulations as Landlord may impose. Landlord my exclude or expel any peddler or solicitor. The Premises shall not be used for any use which is disreputable, creates extraordinary fire hazards, or results in an increased rate of insurance on the Complex or its contents, or for the storage of any Hazardous Materials. If, because of a Tenant Party’s acts, the rate of insurance on the Complex or its contents increases, then such acts shall be an Event of Default, Tenant shall pay to Landlord the amount of such increase within ten (10) days after Landlord’s demand, and acceptance of such payment shall not waive any of Landlord’s other rights. Tenant shall conduct its business and control each other Tenant Party so as not to create any nuisance or unreasonably interfere with other tenants or Landlord in its management of the Complex. Landlord acknowledges and agrees that (i) Tenant shall be permitted to supply food and beverages for Tenant’s employees and invitees through vending machines on and in the Premises and/or from off-site catering services; (ii) such food/beverage supply and service does not violate any current lease exclusive or restrictive agreements; and (iii) Landlord shall not enter into any exclusive or restrictive agreement that could prohibit or otherwise impair Tenant’s supply of food/beverages for Tenant’s employees and invitees on the Premises through off-site catering or on-site vending machines.

10.  Assignment and Subletting .

(a)  Transfers . Except as provided in Section 10.(g), Tenant shall not, without the prior written consent of Landlord, (1) assign, transfer, or encumber this Lease or any estate or interest herein, whether directly or by operation of law, (2) permit any other entity to become Tenant hereunder by merger, consolidation, or other reorganization, (3) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the current control of Tenant, (4) sublet any portion of the Premises, (5) grant any license, concession, or other right of occupancy of any portion of the Premises, or (6) permit the use of the Premises by any parties other than Tenant (any of the events listed in Section 10.(a)(1) through 10.(a)(6) being a “ Transfer ”).

(b)  Consent Standards . Landlord shall not unreasonably withhold, condition or delay its consent to any assignment or subletting of the Premises, provided that the proposed transferee  is creditworthy, will use the Premises for the Permitted Use and will not use the Premises in any manner that would conflict with any exclusive use agreement or other similar agreement between Landlord and any other tenant of the Complex, and is not another occupant of the Complex or person or entity with whom Landlord is negotiating to lease space in the Complex; otherwise, Landlord may withhold its consent in its sole discretion.

(c)  Request for Consent . If Tenant requests Landlord’s consent to a transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; and general references sufficient to enable Landlord to determine the proposed transferee’s creditworthiness and character (collectively, the “ Consent Information ”). Following Tenant’s submittal of the last of the Consent Information, Landlord shall have fifteen (15) days to approve or disapprove of the same by writing signed by an authorized officer of Landlord (herein “ Written Response ”) delivered to and received by Tenant within said fifteen (15) day period, subject to the standards set forth in subsection (b) above. If Written Response is not received by Tenant by such fifteenth (15th) day, Landlord shall be deemed to have disapproved of Tenant’s request.

(d)  Conditions to Consent . If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes Tenant’s obligations hereunder; however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer for the period of the Transfer. No Transfer shall release Tenant from its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlord’s consent to any Transfer shall not waive Landlord’s rights as to any subsequent Transfers. If an Event of Default occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent. Tenant authorizes its transferees to make payments of rent directly to Landlord upon receipt of notice from Landlord to do so. Tenant shall pay for the cost of any demising walls or other improvements necessitated by a proposed subletting or assignment.

(e)  Intentionally Omitted .

(f)  Additional Compensation . Tenant shall pay to Landlord, immediately upon receipt thereof, fifty percent (50%) of the excess of (1) all compensation received by Tenant for a Transfer less the costs reasonably incurred by Tenant with unaffiliated third parties in connection with such Transfer (i.e., brokerage commissions, legal fees, and the like) over (2) the Rent allocable to the portion of the Premises covered thereby. Notwithstanding the foregoing, one hundred percent (100%) of all such amounts shall be delivered to Landlord during any period that Tenant is in default hereunder.

(g)  Permitted Transfers . Notwithstanding Section 10.(a), Tenant may Transfer all or part of its interest in this Lease or all or part of the Premises (a “ Permitted Transfer ”) to the following types of entities (a “ Permitted Transferee ”) without the written consent of Landlord:

(1) an Affiliate of Tenant, so long as the Tangible Net Worth of the Affiliate is not less than the Tangible Net Worth of Tenant as of the date hereof;

(2) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of business entities, so long as (A) Tenant’s obligations hereunder are assumed by the entity surviving such merger or created by such consolidation; and (B) the Tangible Net Worth of the surviving or created entity is not less than the Tangible Net Worth of Tenant as of the date hereof; or

(3) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant’s assets if such entity’s Tangible Net Worth after such acquisition is not less than the Tangible Net Worth of Tenant as of the date hereof.

Tenant shall promptly notify Landlord of any such Permitted Transfer. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder, or if Tenant no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Permitted Use, and the use of the Premises by the Permitted Transferee may not violate any other agreements affecting the Premises, the Complex, Landlord or other tenants of the Complex. At least 30 days after the effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with copies of the instrument effecting any of the foregoing Transfers and documentation establishing Tenant’s satisfaction of the requirements set forth above applicable to any such Transfer. The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. “ Tangible Net Worth ” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“ GAAP ”), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including, without limitation, goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted Transferee shall be subject to Landlord’s prior written consent (which Landlord may grant or deny in its sole discretion).

(h)  Assignment of Subrents . Tenant hereby irrevocably assigns to Landlord all rents due or to become due from any assignee or transferee of or sublessee under this Lease or any tenant or occupant of the Premises or any part thereof, and authorizes and empowers Landlord in the name of Tenant or otherwise, to collect and receive the same, provided that, so long as Tenant is not in default under this Lease beyond the expiration of the applicable cure periods, if any, provided herein, Tenant shall have the right to collect and receive such rents for its own uses and purposes. Upon any default by Tenant under this Lease, Landlord shall have absolute title to such rents and the absolute right to collect and receive the same. Landlord shall apply to the Rent due under this Lease the net amount (after deducting all costs and expenses of collection, including, without limitation, attorney fees and expenses) of any rents so collected and received by it.

11.  Insurance; Waivers; Subrogation; Indemnity .

(a)  Tenant’s Insurance . Tenant shall maintain throughout the Term the following insurance policies: (1) commercial general liability insurance (including insured contract coverage of Tenant’s indemnity obligations under this Lease) in amounts of $5,000,000 per occurrence or such other amounts as Landlord may from time to time reasonably require, insuring Tenant, Landlord, Landlord’s agents and their respective Affiliates against all liability for injury to or death of a person or persons or damage to property arising from the use and occupancy of the Premises, (2) insurance covering the full replacement value of Tenant’s property and improvements, and other property (including property of others) in the Premises in the “all-risk” form, (3) worker’s compensation insurance, containing a waiver of subrogation endorsement acceptable to Landlord, and (4) business interruption insurance. Tenant’s commercial general liability insurance shall be written on an “occurrence” as distinguished from a “claims made” basis. Tenant’s insurance shall provide primary coverage to Landlord when any policy issued to Landlord provides duplicate or similar coverage, and in such circumstance Landlord’s policy will be excess over Tenant’s policy. On or before the Actual Commencement Date and from time to time upon request of Landlord, Tenant shall furnish to Landlord certificates of such insurance and such other evidence reasonably satisfactory to Landlord of the maintenance of all insurance coverages required hereunder, and Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least 30 days before cancellation or a material change of any such insurance policies. All such insurance policies shall be in form, and issued by companies, reasonably satisfactory to Landlord.

(b)  Landlord’s Insurance . Landlord shall maintain at all times (i) “all-risk” property insurance covering at least ninety percent (90%) of the Complex’s replacement value, and (ii) commercial general liability insurance in commercially reasonable and customary amounts. The commercial general liability insurance required to be obtained by Landlord will name Tenant as additional insured. The costs of all insurance carried by Landlord shall be included in Operating Costs. On or before the Actual Commencement Date and from time to time upon request of Tenant, Landlord shall furnish to Tenant a certificate evidencing the insurance required to be obtained by Landlord hereunder and upon request of Tenant, Landlord shall obtain a written obligation on the part of the carrier of Landlord’s commercial general liability insurance to notify Tenant at least 30 days before cancellation or a material change of such insurance policy.

(c)  Waiver of Negligence; No Subrogation . Landlord and Tenant each waives any claim it might have against the other for any injury to or death of any person or persons or damage to or theft, destruction, loss, or loss of use of any property (a “ Loss ”), to the extent the same is insured against under any insurance policy that is required to be maintained hereunder or is otherwise maintained covering the Complex, the Premises, Landlord’s or Tenant’s fixtures, personal property, leasehold improvements, or business, or is required to be insured against under the terms hereof, regardless of whether the negligence of the other party caused or contributed to such Loss. If necessary under their respective policies to be effective as provided in this subsection, each party shall cause its insurance carrier to endorse all applicable policies waiving the carrier’s rights of recovery under subrogation or otherwise against the other party.

(d)  Indemnity . Subject to Section 11.(c) above and Landlord’s indemnification obligations in this subsection (d), Tenant shall defend, indemnify, and hold harmless Landlord and its representatives and agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages, and expenses (including reasonable attorneys’ fees) arising from (1) any Loss arising from any occurrence on the Premises (other than any Loss arising out of a breach of Tenant’s obligations under Section 24.(u), which shall be subject to the indemnity in such section), (2) Tenant’s failure to perform its obligations under this Lease, except to the extent caused by the negligence or fault of Landlord or its agents, or (3) Tenant’s negligence, except to the extent caused by the negligence or fault of Landlord or its agents. This indemnity provision shall survive termination or expiration of this Lease. If any proceeding is filed for which indemnity is required by Tenant hereunder, Tenant agrees, upon request therefore, to defend the indemnified party in such proceeding at its sole cost utilizing counsel selected by Tenant and reasonably acceptable to Landlord. Subject to Section 11 (c) above and Tenant’s indemnification obligations in this subsection (d), Landlord shall defend, indemnify and hold harmless Tenant and its representatives and agents from and against all claims, demands, liabilities, causes of actions, suits, judgments, damages and expenses (including reasonable attorneys’ fees) arising from (1) any Loss arising from any occurrence on the common areas of the Complex (other than any Loss arising out of a breach of Tenant’s obligations under Section 24.(u), which shall be subject to Tenant’s indemnity in such Section), (2) Landlord’s failure to perform its obligations under this Lease, except to the extent caused by the negligence or fault of Tenant or its agents, or (3) Landlord’s negligence, except to the extent caused by the negligence or fault of Tenant or its agents. This indemnity provision shall survive termination or expiration of this Lease. If any proceeding is filed for which indemnity is required by Landlord hereunder, Landlord agrees, upon request therefore, to defend the indemnified party in such proceeding at its sole cost utilizing counsel selected by Landlord and reasonably acceptable to Tenant.

(e)  No Waiver . Neither a party’s failure or the failure of any of such party’s contractors or subcontractors to furnish certificates of insurance, nor a party’s failure to request the same, will constitute a waiver of the requirements of this Section’s requirements. If any party or any of its contractors or subcontractors fails to provide the required certificates, the other party expressly reserves the right to enforce these requirements, and any resulting loss or liability to the other party will be deemed to be an indemnified claim under Section 11(d) above, without limiting the applicability of that Section 11(d).

12.  Subordination and Non-Disturbance; Attornment; Notice to Landlord’s Mortgagee .

(a)  Subordination and Non-Disturbance . This Lease is and shall be subordinate to any deed of trust, mortgage, or other security instrument, or any ground lease, master lease, or primary lease, that now or hereafter covers all or any part of the Premises (the mortgagee under any such mortgage or the lessor under any such lease is referred to herein as a “ Landlord’s Mortgagee ”). Any Landlord’s Mortgagee may elect, at any time, unilaterally, to make this Lease superior to its mortgage, ground lease, or other interest in the Premises by so notifying Tenant in writing. Landlord shall use reasonable efforts to obtain a subordination, non-disturbance and attornment agreement from any Landlord’s Mortgagee existing as of the date of this Lease; provided, however, that the failure to obtain such an agreement shall not constitute a default hereunder or otherwise release Tenant from any of its obligations hereunder. Notwithstanding anything to the contrary in this Section 12, so long as Tenant is not in default under this Lease, this Lease shall remain in full force and effect and the holder of the Mortgage and any purchaser at foreclosure sale thereof shall not disturb Tenant’s possession hereunder.

(b)  Attornment . Tenant shall attorn to any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party’s request, and shall execute such agreements confirming such attornment as such party may reasonably request.

(c)  Notice to Landlord’s Mortgagee . Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail, to any Landlord’s Mortgagee whose address has been given to Tenant, and affording such Landlord’s Mortgagee a reasonable opportunity to perform Landlord’s obligations hereunder.

(d)  Landlord’s Mortgagee’s Protection Provisions . If Landlord’s Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord’s Mortgagee shall not be: (1) liable for any act or omission of any prior lessor (including Landlord); (2) bound by any rent or additional rent or advance rent which Tenant might have paid for more than the current month to any prior lessor (including Landlord), and all such rent shall remain due and owing, notwithstanding such advance payment; (3) bound by any security or advance rental deposit made by Tenant which is not delivered or paid over to Landlord’s Mortgagee and with respect to which Tenant shall look solely to Landlord for refund or reimbursement; (4) bound by any termination, amendment or modification of this Lease made without Landlord’s Mortgagee’s consent and written approval, except for those terminations, amendments and modifications permitted to be made by Landlord without Landlord’s Mortgagee’s consent pursuant to the terms of the loan documents between Landlord and Landlord’s Mortgagee; (5) subject to the defenses which Tenant might have against any prior lessor (including Landlord); and (6) subject to the offsets which Tenant might have against any prior lessor (including Landlord) except for those offset rights which (A) are expressly provided in this Lease, (B) relate to periods of time following the acquisition of the Building by Landlord’s Mortgagee, and (C) Tenant has provided written notice to Landlord’s Mortgagee and provided Landlord’s Mortgagee a reasonable opportunity to cure the event giving rise to such offset event. Landlord’s Mortgagee shall have no liability or responsibility under or pursuant to the terms of this Lease or otherwise after it ceases to own an interest in the Building. Nothing in this Lease shall be construed to require Landlord’s Mortgagee to see to the application of the proceeds of any loan, and Tenant’s agreements set forth herein shall not be impaired on account of any modification of the documents evidencing and securing any loan.

13.  Rules and Regulations . Tenant shall comply with the rules and regulations of the Complex which are attached hereto as Exhibit C . Landlord may, from time to time, change such rules and regulations for the safety, care, or cleanliness of the Complex and related facilities, provided that such changes are applicable to all tenants of the Complex and will not unreasonably interfere with Tenant’s use of the Premises. Tenant shall be responsible for the compliance with such rules and regulations by each Tenant Party.

14.  Condemnation .

(a)  Total Taking . If the entire Complex or Premises are taken by right of eminent domain or conveyed in lieu thereof (a “ Taking ”), this Lease shall terminate as of the date of the Taking.

(b)  Partial Taking — Tenant’s Rights . If any part of the Complex becomes subject to a Taking and such Taking will prevent Tenant from conducting its business in the Premises in a manner reasonably comparable to that conducted immediately before such Taking for a period of more than 180 days, then Tenant may terminate this Lease as of the date of such Taking by giving written notice to Landlord within 30 days after the Taking, and Rent shall be apportioned as of the date of such Taking. If Tenant does not terminate this Lease, then Rent shall be abated on a reasonable basis as to that portion of the Premises rendered untenantable by the Taking.

(c)  Partial Taking — Landlord’s Rights . If any material portion, but less than all, of the Complex becomes subject to a Taking, or if Landlord is required to pay any of the proceeds received for a Taking to a Landlord’s Mortgagee, then Landlord may terminate this Lease by delivering written notice thereof to Tenant within 30 days after such Taking, and Rent shall be apportioned as of the date of such Taking. If Landlord does not so terminate this Lease, then this Lease will continue, but if any portion of the Premises has been taken, Rent shall abate as provided in the last sentence of Section 14.(b).

(d)  Award . If any Taking occurs, then Landlord shall receive the entire award or other compensation for the land on which the Complex is situated, the Complex, and other improvements taken, and Tenant may separately pursue a claim (to the extent it will not reduce Landlord’s award) against the condemnor for the value of Tenant’s personal property which Tenant is entitled to remove under this Lease, moving costs, loss of business, and other claims it may have, to the extent allowed under applicable Law.

15.  Fire or Other Casualty .

(a)  Repair Estimate . If a material portion of the Premises or the Complex are damaged by fire or other casualty (a “ Casualty ”), Landlord shall, within 60 days after such Casualty, deliver to Tenant a good faith estimate (the “ Damage Notice ”) of the time needed to repair the damage caused by such Casualty. Damage to Tenant’s Server Room such that the Server Room is unable to function as intended in Tenant’s ordinary business is deemed to be damage of a material portion of the Premises.

(b)  Landlord’s and Tenant’s Rights . If a material portion of the Premises or the Complex is damaged by Casualty such that Tenant is prevented from conducting its business in the Premises in a manner reasonably comparable to that conducted immediately before such Casualty and Landlord estimates that the damage caused thereby cannot be repaired within 210 days after the Casualty (allowing for Landlord’s relocation of the Server Room and Lab at Landlord’s sole cost and utilizing available insurance proceeds pursuant to such repair within such 210 days), then Tenant may terminate this Lease by delivering written notice to Landlord of its election to terminate within 30 days after the Damage Notice has been delivered to Tenant. Tenant acknowledges and agrees that if Tenant does not so timely terminate this Lease, then (subject to Section 15.(c)) Landlord shall repair the damage referred to in the Damage Notice, as the case may be, as provided below, and Rent for the portion of the Premises rendered untenantable by the damage shall be abated on a reasonable basis from the date of damage until the completion of the repair, unless a Tenant Party caused such damage, in which case, Tenant shall continue to pay Rent without abatement.

(c)  Landlord’s Rights . If a Casualty damages a material portion of the Complex, and Landlord makes a good faith determination that restoring the Premises would be uneconomical, or if Landlord is required to pay any insurance proceeds arising out of the Casualty to a Landlord’s Mortgagee, then Landlord may terminate this Lease by giving written notice of its election to terminate within 30 days after the Damage Notice has been delivered to Tenant, and Gross Full Service Rent and Tenant’s Operating Cost Reimbursements shall be abated as of the date of the Casualty.

(d)  Repair Obligation . If neither party elects to terminate this Lease following a Casualty, then Landlord shall, within a reasonable time after such Casualty, begin to repair the Complex and the Premises and shall proceed with reasonable diligence to restore the Complex and Premises to substantially the same condition as they existed immediately before such Casualty; however, Landlord shall not be required to repair or replace any of Tenant’s personal property or alterations performed by or on behalf of Tenant (with the exception of the Tenant Improvements), including the furniture, equipment, fixtures, and other improvements which may have been placed by, or at the request of, Tenant or other occupants in the Complex or the Premises, and Landlord’s obligation to repair or restore the Complex or Premises shall be limited to the extent of the insurance proceeds actually received by Landlord for the Casualty in question.

(e)  Removal of Personal Property . In the event of any damage or destruction to the Building or the Premises by any peril contemplated by this Section 15, or in the event of termination as a consequence of condemnation as contemplated in Section 14, Tenant shall, upon notice from Landlord, promptly remove, at its sole cost and expense, the property belonging to Tenant from such portion of the Building as Landlord shall request and Tenant hereby waives any and all claims it may have, now or in the future, against Landlord arising in connection with damage to such property occurring as a result of any alleged failure to properly secure the Premises prior to such removal.

16.  Personal Property Taxes . Tenant shall be liable for all taxes levied or assessed against personal property, furniture, or fixtures placed by Tenant in the Premises. If any taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and Landlord elects to pay the same, or if the assessed value of Landlord’s property is increased by inclusion of such personal property, furniture or fixtures and Landlord elects to pay the taxes based on such increase, then Tenant shall pay to Landlord, upon demand, the part of such taxes for which Tenant is primarily liable hereunder; however, Landlord shall not pay such amount if Tenant notifies Landlord that it will contest the validity or amount of such taxes before Landlord makes such payment, and thereafter diligently proceeds with such contest in accordance with law and if the non-payment thereof does not pose a threat of loss or seizure of the Complex or interest of Landlord therein or impose any fee or penalty against Landlord.

17.  Events of Default . Each of the following occurrences shall be an “ Event of Default ”:

(a) Tenant’s failure to pay Rent on or before the end of the fifth (5th) Business Day after Landlord has delivered notice to Tenant that the same is unpaid and overdue; provided however, if any such notice under this Section 17.(a) shall be given two (2) times during the twelve (12) month period commencing with the date of the first (1 ^st ) such notice, then the third (3 ^rd ) failure to pay Rent within five (5) Business Days after due during such twelve (12) month period shall be an Event of Default, without notice. Upon the expiration of any 12 month period hereunder without an Event of Default having occurred, a new 12 month period shall begin with the date of the first notice under this Section 17.(a) given after the expiration of such 12 month period; ;

(b) Other than in the case of abandonment described in Section 25(j), which event in and of itself shall not constitute an Event of Default (provided that Tenant continues to pay Rent and perform all of its other obligations hereunder), or other than Tenant’s failure to provide an estoppel certificate, the consequences of which are addressed in Section 24(e) herein, Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease and the continuance of such failure for a period of more than thirty (30) days after Landlord has delivered to Tenant written notice thereof; provided, however, that if such failure cannot be cured within such thirty (30) day period and Tenant commences to cure such failure within such thirty (30) day period and thereafter diligently pursues such cure to completion, then such failure shall not be an event of default unless it is not fully cured within an additional thirty (30) days after the expiration of the initial thirty (30) day period; and

(c) The filing of a petition by or against Tenant (the term “ Tenant ” shall include, for the purpose of this Section 17.(c), any guarantor of Tenant’s obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2) seeking any relief under any state or federal debtor relief law; (3) for the appointment of a liquidator or receiver for all or substantially all of Tenant’s property or for Tenant’s interest in this Lease; or (4) for the reorganization or modification of Tenant’s capital structure; however, if such a petition is filed against Tenant, then such filing shall not be an Event of Default unless Tenant fails to have the proceedings initiated by such petition dismissed within ninety (90) days after the filing thereof.

18.  Remedies . Upon any Event of Default, Landlord may, at its election and in addition to all other remedies available at law or in equity, terminate this Lease through the delivery of written notice to that effect to Tenant or terminate tenant’s right to possession only, without terminating the Lease. In the event Landlord elects to terminate this Lease pursuant to this Section 18, the Term shall expire and terminate as of the later of the fifth day after Landlord delivers such notice of termination or the termination date stated in the notice with the same force and effect as though such termination date were the date originally set forth in this Lease as the expiration date of the Term.

(a)  Re-Entry Without Termination . Upon any termination of Tenant’s right to possession of the Premises without termination of this Lease, Landlord may, at Landlord’s option, enter into the Premises pursuant to applicable law, remove all signs and other evidence of Tenant’s tenancy, remove all property from the Premises and store such property in a public warehouse or elsewhere, at the cost of, and for the account of Tenant, and take and hold possession of the Premises without: (1) being deemed guilty of trespass; (2) becoming liable for any loss or damage which may be occasioned by such entry and/or possession; (3) such entry and/or possession terminating this Lease; and (4) releasing Tenant, in whole or in part, from any obligation, including Tenant’s obligation to pay Rent for the full Term. Landlord shall use commercially reasonable efforts to relet the Premises or any part thereof to the extent required by applicable law, for such rent and upon such terms as Landlord, in its sole but reasonable discretion, shall determine (including the right to relet the Premises as part of a larger area, the right to change the character or the use made of the Premises, and the right to lease all or any portion of the Premises for a term extending beyond the Term of this Lease), and Landlord shall not be required to accept any tenant offered by Tenant or to observe any instructions given by Tenant about such reletting. In any such case, Landlord may make repairs, alterations and additions in or to the Premises, and redecorate the same to the extent Landlord deems necessary or desirable, in its sole discretion. All rentals and other sums received by Landlord from any such reletting shall be applied as follows: first, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such alterations and repairs; third, to the payment of Landlord’s expenses of reletting, including, without limitation, broker’s commissions, attorneys’ fees and lease inducements, such as moving or leasehold improvement allowances; fourth, to the payment of Rent; and the residue, if any, shall be held by Landlord and applied in payment of future Rent as the same may become due and payable hereunder. If such rentals and other sums received from such reletting during any month be less than the Rent to be paid during said month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. Notwithstanding any such re-entry and possession by Landlord, Landlord may at any time hereafter elect to terminate this Lease for such previous breach.

(b)  Damages in the Event of Termination . Tenant acknowledges that the damages Landlord would incur in connection with terminating this Lease following an Event of Default would be difficult to estimate or ascertain. “Landlord Costs” as used in this Lease shall mean the following Landlord transaction costs pertaining to this Lease and nothing else: brokerage commissions paid to AREA and CBRE for this Lease, Landlord’s Share of the Architect’s Fees, Landlord’s 50% share of the costs of ADA Compliance Work, $468,173 (representing the first six months’ abated Gross Full Service Rent) (the “Abated Rent”), and the Tenant’s Allowance (without the Additional Allowance, the amortized cost of which is included in the Gross Full Service Rent) all as defined in the Workletter or Lease. In the event Landlord elects to terminate this Lease, Landlord may recover from Tenant as it sole monetary remedy following its election to terminate the Lease, liquidated damages equal to the sum of (i) the then remaining pro rata portion as of the effective date of such early Lease termination of the Landlord Costs computed by multiplying the total Landlord Costs by a fraction, the numerator of which is the number of remaining full calendar months of the initial Lease Term, and the denominator of which is 120; and (ii) a sum of money equal to the Gross Full Service Rent that would be payable under the Lease for the 18 full calendar months following the effective date of such early Lease termination, discounted to its net present value using a monthly amortization approach and a discount rate equal to seven percent (7%) per annum, which amount shall be immediately due and payable upon demand; provided however that if the effective date of such early Lease termination occurs during the last 18 months of the initial Lease Term, then the sum payable under this subsection (ii) shall be computed using only Gross Full Service Rent that would be payable under the Lease for the remaining full calendar months of the Term. For example, the liquidated damages payable under this section given an effective date of early Lease Termination during the 42nd month of the Term would be (i) 84/120ths of the total Landlord Costs, plus (ii) $1,483,946 (the aggregate Gross Full Service Rent payable under the Lease for months 43 – 60 (6 months at $85,264.17 per month and 12 months at $87,822.08 per month discounted to its net present value using 7% per annum). The terms “enter,” “entry,” “re-enter,” and “re-entry” are not limited to their technical meanings.

(c)  Miscellaneous . Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the remedies herein provided or any other remedies available at law or in equity, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any Rent due to Landlord hereunder or of any damages accruing to the non-breaching party by reason of the violation of any term, provision and/or covenant herein contained. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Premises by reason of Tenant’s violation of any term of this Lease.

19.  Jurisdiction; Non-Waiver .

(a)  Jurisdiction . To the full extent permitted by law, Landlord and Tenant agree the federal and state courts of the state in which the Premises are located shall have exclusive jurisdiction over any matter relating to or arising from this Lease and the parties’ rights and obligations under this Lease.

(b)  No Waiver . Landlord’s acceptance of Rent following an Event of Default shall not waive Landlord’s rights regarding such Event of Default. No waiver by Landlord of any violation or breach of any of the terms contained herein shall waive Landlord’s rights regarding any future violation of such term and no custom or practice which may evolve between the Landlord and Tenant shall waive or diminish Landlord’s right to insist upon Tenant’s performance in strict accordance with the terms of this Lease. Landlord’s acceptance of any partial payment of Rent shall not waive Landlord’s rights with regard to the remaining portion of the Rent that is due, regardless of any endorsement or other statement on any instrument delivered in payment of Rent or any writing delivered in connection therewith; accordingly, Landlord’s acceptance of a partial payment of Rent shall not constitute an accord and satisfaction of the full amount of the Rent that is due.

20.  Surrender of Premises . No act by Landlord shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid unless it is in writing and signed by Landlord. At the expiration or termination of this Lease, Tenant shall deliver to Landlord the Premises with all improvements located therein in good repair and working condition, free of Hazardous Materials placed on the Premises during the Term, broom-clean, reasonable wear and tear (and condemnation and Casualty damage not caused by Tenant, as to which Sections 14 and 15 shall control) excepted, and shall deliver to Landlord all keys and key cards to the Premises. Tenant shall remove all unattached trade fixtures, furniture, and personal property placed in the Premises or elsewhere in the Complex by Tenant and repair any damage caused by such removal (but Tenant may not remove any such item which was paid for, in whole or in part, by Landlord and any Tenant Improvements as defined in Exhibit D attached hereto, or any wiring or cabling installed as part of Tenant’s Work as defined in Exhibit D attached hereto). Additionally, at Landlord’s option, Tenant shall remove those Tenant’s Alterations requiring Landlord’s approval pursuant to the provisions of Section 8 if, as a condition of such approval, Landlord required removal of the same upon the expiration or earlier termination of this Lease. In addition, Tenant shall remove Tenant’s Signage in accordance with the provisions of Section 8 herein. Tenant shall repair all damage caused by such removal. All items not so removed shall, at Landlord’s option, be deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord at Tenant’s sole cost and expense without notice to Tenant and without any obligation to account for such items. The provisions of this Section 20 shall survive the end of the Term.

21.  Holding Over . If Tenant fails to vacate the Premises at the end of the Term, then Tenant shall be, at Landlord’s option without Tenant’s execution of any document or receipt of any notice, a tenant at will and, in addition to all other damages and remedies to which Landlord may be entitled for such holding over, Tenant shall pay, in addition to the other Rent, a daily Gross Full Service Rent equal to 150% of the daily Gross Full Service Rent payable during the last month of the Term, subject to all other terms and conditions of this Lease, including the payment of Tenant’s Operating Costs Reimbursements and all other sums due under this Lease. The provisions of this Section 21 shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at Law or in equity. If Tenant fails to surrender the Premises upon the termination or expiration of this Lease, in addition to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from all loss, costs (including reasonable attorneys’ fees) and liability resulting from such failure, including, without limiting the generality of the foregoing, any claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom.

22.  Certain Rights Reserved by Landlord . Provided that the exercise of such rights does not unreasonably interfere with Tenant’s occupancy of the Premises, Landlord shall have the following rights:

(a) To decorate and to make inspections, repairs, alterations, additions, changes, or improvements, whether structural or otherwise, in and about the Complex, or any part thereof; to enter upon the Premises (after giving Tenant reasonable notice thereof, which may be oral notice, except in cases of real or apparent emergency, in which case no notice shall be required) and, during the continuance of any such work, to temporarily close doors, entryways, public space, and corridors in the Complex; to interrupt or temporarily suspend Complex services and facilities; to change the name of the Complex; and to change the arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or other public parts of the Complex;

(b) To take such reasonable measures as Landlord deems advisable for the security of the Complex and its occupants; evacuating the Building or the Complex for cause, suspected cause, or for drill purposes; temporarily denying access to the Complex; and closing the Building or the Complex after normal business hours and on Sundays and holidays, subject, however, to Tenant’s right to enter when the Building or the Complex is closed after normal business hours under such reasonable regulations as Landlord may prescribe from time to time; and

(c) To enter the Premises at reasonable hours to show the Premises to prospective purchasers, lenders, or, during the last twelve (12) months of the Term, tenants.

23.  Intentionally Omitted .

24.  Miscellaneous .

(a)  Landlord Transfer . Subject to the condition in this section, Landlord may transfer any portion of the Complex and any of its rights under this Lease, provided that Landlord delivers to the assignee any Security Deposit funds required by this Lease, and the assignee expressly assumes Landlord’s obligations hereunder by written agreement; then subject to the proviso below, in such case Landlord shall thereby be released from any obligations hereunder arising after the date of such transfer. No such transfer shall release Landlord from any obligations and claims under this Lease arising or accruing prior to and including the date of such transfer. Notwithstanding the foregoing, Landlord agrees that the principals representing the Landlord in the negotiation of this Lease with Tenant (Steve Resnick, Chuck Hawley, Nan Hynes) shall continue to represent the Landlord and make decisions with respect to the implementation, interpretation and performance by Landlord under this Lease, including without limitation the completion of the Tenant Improvements to be constructed under this Lease, until the Actual Commencement Date, excepting the occurrence of any unforeseeable or unanticipated event that would prevent the continued representation of said principals (including, but not limited to, death, injury or illness, termination of employment, or the like).

(b)  Landlord’s Liability . The liability of Landlord to Tenant for any default by Landlord under the terms of this Lease shall be limited to Tenant’s actual, direct, but not consequential damages therefor and shall be recoverable only from the interest of Landlord in the Complex. As used herein, Landlord’s “interest in the Complex” shall include the equity and net cash proceeds received by Landlord after payment of all indebtedness attributable to the Building and Complex from (i) insurance proceeds, (ii) rents due from tenants of the Building and Complex, and (iii) proceeds from the sale of the Building and the Complex, or any part thereof (prior to the distribution of any proceeds to any partner, member or shareholder of Landlord or any other third party, subject to valid, prior perfected third party mortgage lien holders).

(c)  Force Majeure . Other than for Tenant’s obligations under this Lease that can be performed by the payment of money (e.g., payment of Rent and maintenance of insurance), whenever a period of time is herein prescribed for action to be taken by either party hereto, such party shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the control of such party.

(d)  Brokerage . Tenant represents that, except for AREA, LLC (“ Tenant’s Broker ”), Tenant has not dealt with any broker or agent in connection with the negotiation or execution of this Lease, and Tenant hereby agrees to defend and indemnify and hold Landlord harmless from and against all costs, expenses, attorneys’ fees, and other liability for commissions or other compensation claimed by any broker or agent other than Tenant’s Broker. The commission for Tenant’s Broker shall be paid by Landlord pursuant to a separate agreement.

(e)  Estoppel Certificates . From time to time, Tenant shall furnish to any party designated by Landlord, within ten (10) business days after Landlord has made a request therefor, a certificate in substantially the form attached hereto as Exhibit E (“Estoppel Certificate”), signed by Tenant confirming and containing the factual certifications and representations as to this Lease substantially as set forth Exhibit E , or such other certifications and representations as Landlord may reasonably request substantially as set forth in Exhibit E . Upon Tenant’s failure to deliver requested Estoppel Certificates within such 10 business-day period, Tenant shall pay Landlord $300.00 per day starting on the eleventh (11th) business day and continuing until such Estoppel Certificate is delivered, which payment(s) shall be made to Landlord upon demand. In addition, if Tenant fails to deliver such an Estoppel Certificate within thirty (30) days after Landlord has delivered written notice to Tenant of its failure to deliver the Estoppel Certificate in the ten (10) business day period noted above (subject to any events of Force Majeure which prevent Tenant from delivering the Estoppel Certificate), such failure shall be an Event of Default hereunder. The foregoing fine and potential for an Event of Default do not apply to a request for estoppel certifications substantially different than those in Exhibit E , provided that Tenant shall use best efforts to deliver any such reasonably requested estoppel certifications in the time periods specified in this Section 24(e).

(f)  Notices . All notices and other communications given pursuant to this Lease shall be in writing and shall be (1) mailed by first class, United States Mail, postage prepaid, certified, with return receipt requested, and addressed to the parties hereto at the address specified in the Basic Lease Information, (2) hand delivered to the intended address, (3) sent by a nationally recognized overnight courier service, or (4) sent by facsimile transmission during normal business hours followed by a confirmatory letter sent in another manner permitted hereunder. All notices shall be effective upon delivery to the address of the addressee. The parties hereto may change their addresses by giving notice thereof to the other in conformity with this provision.

(g)  Separability . If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such clause or provision, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable.

(h)  Amendments; and Binding Effect . This Lease may not be amended except by instrument in writing signed by Landlord and Tenant. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord, and no custom or practice which may evolve between the parties in the administration of the terms hereof shall waive or diminish the right of Landlord to insist upon the performance by Tenant in strict accordance with the terms hereof. The terms and conditions contained in this Lease shall inure to the benefit of and be binding upon the parties hereto, and upon their respective successors in interest and legal representatives, except as otherwise herein expressly provided. This Lease is for the sole benefit of Landlord and Tenant, and, other than Landlord’s Mortgagee, no third party shall be deemed a third party beneficiary hereof.

(i)  Quiet Enjoyment . Provided Tenant has performed all of its obligations hereunder, Tenan