EXHIBIT 10.22
Exhibits Omitted
JLT 02/19/08
02/25/08
03/10/08
03/17/08
03/24/08
03/25/08
INDUSTRIAL/WAREHOUSE
LEASE AGREEMENT
OPUS NORTHWEST, L.L.C., AS
LANDLORD,
AND
INSIGNIA SYSTEMS, INC., AS TENANT.
PARK WEST BUSINESS CENTER
BROOKLYN PARK, MINNESOTA
Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
TABLE OF CONTENTS
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DEFINITIONS
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1
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BASIC TERMS
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1
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ARTICLE 1
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LEASE OF PREMISES AND LEASE TERM
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4
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1.1
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Premises
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4
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1.2
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Term, Delivery and Commencement
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4
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1.2.1
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Commencement and Expiration of
Term
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4
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1.2.2
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Tender of Possession
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4
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1.2.3
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Commencement Date Memorandum
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4
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1.2.4
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Access Prior to Substantial
Completion
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4
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ARTICLE 2
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RENTAL AND OTHER PAYMENTS
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5
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2.1
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Base Rent
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5
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2.2
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Additional Rent
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5
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2.3
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Delinquent Rental Payments
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5
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2.4
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Independent Obligations
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6
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ARTICLE 3
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PROPERTY EXPENSES
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6
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3.1
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Payment of Property Expenses
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6
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3.2
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Estimation of Tenant’s Share of Property
Expenses
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6
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3.3
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Payment of Estimated Tenant’s Share of
Property Expenses
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6
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3.4
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Confirmation of Tenant’s Share of Property
Expenses
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6
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3.5
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Tenant’s Inspection and Audit
Rights
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7
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3.6
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Adjustments
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8
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3.7
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Personal Property Taxes
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8
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3.8
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Landlord’s Right to Contest Property
Taxes
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8
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3.9
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Rent Tax
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8
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3.10
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Management
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8
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ARTICLE 4
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USE
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8
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4.1
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Permitted Use
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8
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4.2
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Acceptance of Premises
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9
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4.3
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Increased Insurance
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9
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4.4
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Laws/Property Rules
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9
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4.5
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Common Area
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9
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ARTICLE 5
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HAZARDOUS MATERIALS
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10
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5.1
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Compliance with Hazardous Materials
Laws
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10
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5.2
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Notice of Actions
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11
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5.3
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Disclosure and Warning Obligations
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11
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5.4
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Indemnification by Tenant
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11
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5.5
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Indemnification by Tenant
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12
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ARTICLE 6
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SERVICES AND UTILITIES
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12
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ARTICLE 7
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MAINTENANCE AND REPAIR
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14
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Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
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7.1
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Landlord’s Obligations
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14
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7.2
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Tenant’s Obligations
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14
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7.2.1
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Maintenance of Premises
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14
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7.2.2
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Tenant Damage
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14
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7.2.3
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Alterations Required by Laws
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15
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7.2.4
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Notice to Landlord
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15
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ARTICLE 8
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CHANGES AND ALTERATIONS
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15
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8.1
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Landlord Approval
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15
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8.2
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Tenant’s Responsibility for Cost and
Insurance
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16
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8.3
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Construction Obligations and
Ownership
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17
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8.4
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Liens
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17
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8.5
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Indemnification
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17
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ARTICLE 9
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RIGHTS RESERVED BY LANDLORD
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17
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9.1
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Landlord’s Entry
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17
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9.2
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Control of Property
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18
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9.3
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Right to Cure
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18
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ARTICLE 10
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INSURANCE
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19
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10.1
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Tenant’s Insurance
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19
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10.1.1
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Liability Insurance
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19
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10.1.2
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Property Insurance
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19
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10.1.3
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Other Insurance
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19
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10.2
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Landlord’s Insurance
Obligations
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19
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10.2.1
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Property Insurance
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19
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10.2.2
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Liability Insurance
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20
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10.3
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Waivers and Releases of Claims and
Subrogation
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20
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10.3.1
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Tenant’s Waiver and Release
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20
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10.3.2
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Landlord’s Waiver and
Release
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20
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10.3.3
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Limitation on Waivers of Claims
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21
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10.4
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Tenant’s Failure to Insure
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21
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10.5
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No Limitation
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21
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10.6
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Tenant’s and Landlord’s
Indemnification
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21
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ARTICLE 11
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DAMAGE OR DESTRUCTION
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22
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11.1
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Tenantable Within 150 Days
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22
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11.2
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Not Tenantable Within 150 Days
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23
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11.3
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Property Substantially Damaged
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23
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11.4
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Insufficient Proceeds
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23
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11.5
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Landlord’s Repair; Rent
Abatement
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23
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11.6
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Rent Abatement if Lease Terminates
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24
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11.7
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Exclusive Casualty Remedy
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24
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11.8
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Notice to Landlord
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24
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ARTICLE 12
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EMINENT DOMAIN
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24
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12.1
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Termination of Lease
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24
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12.2
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Landlord’s Repair
Obligations
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25
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Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
ii
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12.3
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Tenant’s Participation
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25
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12.4
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Exclusive Taking Remedy
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25
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ARTICLE 13
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TRANSFERS
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26
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13.1
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Restriction on Transfers
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26
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13.2
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Costs
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26
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13.3
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Landlord’s Consent Standards
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26
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13.4
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Transfers to Affiliates
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27
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ARTICLE 14
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DEFAULTS; REMEDIES
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27
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14.1
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Events of Default
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27
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14.1.1
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Failure to Pay Rent
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27
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14.1.2
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Failure to Perform
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27
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14.1.3
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Misrepresentation
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28
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14.1.4
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Other Defaults
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28
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14.2
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Remedies
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28
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14.2.1
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Termination of Tenant’s Possession/Re-entry
and Reletting Right
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28
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14.2.2
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Termination of Lease
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29
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14.2.3
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Present Worth of Rent
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29
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14.2.4
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Other Remedies
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30
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14.3
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Costs
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30
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14.4
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Waiver and Release by Tenant
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30
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14.5
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Landlord’s Default
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30
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14.6
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No Waiver
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31
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ARTICLE 15
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CREDITORS; ESTOPPEL CERTIFICATES
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31
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15.1
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Subordination
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31
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15.2
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Attornment
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32
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15.3
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Mortgagee Protection Clause
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32
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15.4
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Estoppel Certificates
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32
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15.4.1
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Contents
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32
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15.4.2
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Failure to Deliver
|
33
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ARTICLE 16
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SURRENDER; HOLDING OVER
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33
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16.1
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Surrender of Premises
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33
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16.2
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Holding Over
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34
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ARTICLE 17
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ADDITIONAL PROVISIONS
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34
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17.1
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Initial Improvements
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34
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17.1.1
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Landlord’s Improvements
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34
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17.1.2
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Tenant Improvements
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34
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17.1.3
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( Intentionally
Deleted)
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34
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17.1.4
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(Intentionally Deleted)
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34
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17.1.5
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(Intentionally Deleted)
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34
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17.1.6
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Construction Drawings and
Specifications
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34
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17.1.7
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Changes to Construction Drawings and
Specifications
|
35
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17.1.8
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Tenant’s Representative
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35
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Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
iii
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17.1.9
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Substantial Completion; Tenant
Delay
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35
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17.1.10
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Punch List
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35
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17.1.11
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Construction Warranty
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35
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17.2
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Security Deposit
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36
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ARTICLE 18
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MISCELLANEOUS PROVISIONS
|
36
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18.1
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Notices
|
36
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18.2
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Transfer of Landlord’s
Interest
|
36
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18.3
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Successors
|
37
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18.4
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Captions and Interpretation
|
37
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18.5
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Relationship of Parties
|
37
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18.6
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Entire Agreement; Amendment
|
37
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18.7
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Severability
|
37
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18.8
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Landlord’s Limited Liability
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37
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18.9
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Survival
|
38
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18.10
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Attorneys’ Fees
|
38
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18.11
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Brokers
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38
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18.12
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(Intentionally Omitted)
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38
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18.13
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Governing Law
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38
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18.14
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Time is of the Essence
|
38
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18.15
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Joint and Several Liability
|
38
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18.16
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No Accord and Satisfaction
|
39
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18.17
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Tenant’s Authority
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39
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18.18
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Force Majeure
|
39
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18.19
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Management
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39
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18.20
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Financial Statements
|
39
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18.21
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Quiet Enjoyment
|
40
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18.22
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No Recording
|
40
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18.23
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Outside Storage Prohibited
|
40
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18.24
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Construction of Lease and Terms
|
40
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18.25
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Exhibits
|
40
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ARTICLE 19
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SIGNAGE
|
41
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ARTICLE 20
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PARKING RIGHTS
|
41
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ARTICLE 21
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OPTION TO EXTEND
|
42
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ARTICLE 22
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ARBITRATION
|
43
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ARTICLE 23
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RIGHT OF FIRST OFFER
|
44
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ARTICLE 24
|
TENANT’S EQUIPMENT
|
45
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Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
iv
(Exhibits omitted)
EXHIBITS
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EXHIBIT “A”
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Definitions
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EXHIBIT “B”
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Legal Description of the Land
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EXHIBIT “C”
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Floor Plan
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EXHIBIT “D”
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Commencement Date Memorandum
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EXHIBIT “E”
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Property Rules
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EXHIBIT “F”
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Tenant Sign Criteria
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EXHIBIT “G”
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Parking Areas
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EXHIBIT “H”
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List of Plans and Specifications for the Tenant
Improvements
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EXHIBIT “I”
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Monument Sign Drawing
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EXHIBIT “J”
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Form Subordination, Non-Disturbance and Attornment
Agreement
|
Industrial/Warehouse Lease Agreement
Opus Legal 1-31-01
v
INDUSTRIAL/WAREHOUSE LEASE
AGREEMENT
This Industrial/Warehouse Lease Agreement is made
and entered into as of the Effective Date by and between OPUS
NORTHWEST, L.L.C., a Delaware limited liability company, as
Landlord, and INSIGNIA SYSTEMS, INC., a Minnesota corporation, as
Tenant.
DEFINITIONS
Capitalized terms used in this Lease have the
meanings ascribed to them on the attached
EXHIBIT ”A.”
BASIC TERMS
The following Basic Terms are applied under and
governed by the particular section(s) in this Lease pertaining to
the following information:
|
1.
|
Premises: Approximately 40,781
rentable square feet located within the Building as depicted on
EXHIBIT “C.” The Premises is measured to the exterior
of exterior walls and to the middle of walls between the Premises
and other tenant space. The Building is located at 8701 Brooklyn
Boulevard, Brooklyn Park, Minnesota 55445. The Building contains
approximately 104,004 rentable square feet. The area upon which
rental is calculated includes Tenant’s proportionate share
(198 square feet) of the common electrical room (508 total square
feet) in the Building and an agreed fifty percent (50%) (28 square
feet) allocation of the shared entry vestibule area.
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2.
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Lease Term: seven (7)
years, seven (7) months
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3.
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Delivery Date: July 24,
2008
|
Months 1 -4:
Zero Dollars ($0.00) (Base Rent is abated for the
first four months of the term).
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Months 5 – 16:
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$437,172.32 per annum payable monthly, in advance,
in equal monthly installments of $36,431.03
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Months 17 – 28:
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$445,736.33 per annum payable monthly, in advance,
in equal monthly installments of $37,144.69
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Months 29 – 40:
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$454,708.15 per annum payable monthly, in advance,
in equal monthly installments of $37,892.35
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1
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Months 41 – 52:
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$464,087.78 per annum payable monthly, in advance,
in equal monthly installments of $38,673.98
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Months 53 – 64:
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$473,059.60 per annum payable monthly, in advance,
in equal monthly installments of $39,421.63
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Months 65 – 76:
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$482,847.04 per annum payable monthly, in advance,
in equal monthly installments of $40,237.25
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Months 77 – 91:
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$492,226.67 per annum payable monthly, in advance,
in equal monthly installments of $41,018.89
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5.
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Initial Tenant’s Share of
Property Expenses Percentage:
|
39.21% (subject to adjustment, if any, provided in
Paragraph 1.1)
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6.
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Permitted Use:
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Office, warehouse, and light manufacturing
operations (all subject to applicable law)
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7.
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Improvement Allowance:
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(Not Applicable)
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8.
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Security Deposit:
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$39,761.48
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9.
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Rent Payment Address:
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Opus Northwest Management, L.L.C., as
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property manager for Opus Northwest,
L.L.C.
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P.O. Box 263
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Minneapolis, MN 55440-0263
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Telephone: 952-656-4444
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Facsimile: 952-656-4529
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10.
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Address of Landlord
for Notices:
|
Opus Northwest, L.L.C.
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10350 Bren Road West
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Minnetonka, MN 55343
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Attn: Vice President
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Telephone: 952-656-4444
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Facsimile: 952-656-4529
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With a copy to:
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Opus Corporation
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10350 Bren Road West
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Minnetonka, MN 55343
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Attn: Legal Department
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Telephone: 952-656-4444
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Facsimile: 952-656-4814
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2
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With a copy to:
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Property Manager at the address set forth
above.
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11.
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Address of Tenant
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for Notices:
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Insignia Systems, Inc.
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8799 Brooklyn Boulevard
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Brooklyn Park, MN 55445
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Attn: Chief Financial Officer
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Telephone: 763-392-6200
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Facsimile: 763-392-6222
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With a copy to:
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Best & Flanagan LLP
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225 South Sixth Street, Suite 4000
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Minneapolis, MN 55402
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Attn: James C. Diracles
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Telephone: 612-339-7121
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Facsimile: 612-349-5897
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12.
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Broker(s):
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Tenant’s Broker: Equity Transwestern (acting
through Michael J. Salmen and Steve Kellogg)
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Landlord’s Broker: C.B. Richard Ellis (acting
through James De Pietro and Rick Graf)
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13.
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Project Manager:
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Opus Northwest Management, LLC
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3
ARTICLE 1
LEASE OF PREMISES AND LEASE TERM
1.1 Premises. In
consideration of the covenants and agreements set forth in this
Lease and other good and valuable consideration, Landlord leases
the Premises to Tenant and Tenant leases the Premises from
Landlord, upon and subject to the terms, covenants and conditions
set forth in this Lease. This Lease does not include any right to
use of the roof of the Building.
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1.2
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Term, Delivery and Commencement
.
|
1.2.1 Commencement and
Expiration of Term . The Term of this
Lease is the period stated in the Basic Terms. The Term commences
on the Commencement Date and expires ninety-one (91) months
thereafter on February 29, 2016.
1.2.2 Tender of
Possession . Landlord will use
commercially reasonable efforts to achieve Substantial Completion
and tender possession of the Premises to Tenant on or before the
Delivery Date. If Landlord is unable to achieve Substantial
Completion on or before the Delivery Date for any reason, this
Lease remains in full force and effect and Landlord is not liable
to Tenant for any resulting loss or damage except that, if Landlord
does not achieve Substantial Completion and does not deliver
possession of the Premises to Tenant on or before the date eight
(8) days after the Delivery Date, Tenant will receive the lesser of
(a) two (2) days rent credit or (b) the daily holdover damages that
Tenant incurs because of such delay beyond the Delivery Date for
each day of such delay beyond the date eight (8) days after the
Delivery Date. Notwithstanding anything herein to the contrary, for
purposes of the foregoing sentence, the date eight (8) days after
the Delivery Date shall be extended by the number of days of delay
in Substantial Completion and tender of possession arising out of
Force Majeure and/or Tenant Delay.
1.2.3 Commencement Date
Memorandum . Promptly after the
Commencement Date, Landlord will deliver to Tenant the Commencement
Date Memorandum with all blanks properly completed. Within 10 days
after receipt, Tenant will execute and deliver the Commencement
Date Memorandum to Landlord. If Tenant does not timely execute and
deliver to Landlord the Commencement Date Memorandum unmodified or
modified appropriately to make the statements therein true,
Landlord and any prospective purchaser or encumbrancer may
conclusively rely on the information contained in the unexecuted
Commencement Date Memorandum Landlord delivered to
Tenant.
1.2.4 Access Prior to
Substantial Completion . Landlord will
allow Tenant limited access to the Premises prior to Substantial
Completion on June 23, 2008, for partial occupancy if all
governmental requirements for occupancy have been met and to begin
installing equipment, fixtures, and cabling and/or to properly
coordinate such work with the construction of the Tenant
Improvements. Landlord has
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no obligation to provide a certificate of occupancy
until Substantial Completion. Any such access will be subject to
Landlord’s prior consent in each instance, which consent will
not be unreasonably withheld but may be conditioned on
Tenant’s work not interfering with the construction of Tenant
Improvements or causing a labor dispute. Any such use of the
Premises is also subject to, and Tenant must comply with and
observe, all applicable Laws and all other terms and conditions of
this Lease provided that Tenant shall not be required to pay Rent
during such period. In no event may Tenant conduct business in the
Premises during such early access period unless an occupancy permit
has been received allowing same. All Tenant’s alterations
shall be subject to the provisions of Article 8 hereof.
ARTICLE 2
RENTAL AND OTHER PAYMENTS
2.1 Base Rent . Except
for the first four months of the lease term, and except that Base
Rent for the fifth month of the lease term shall be payable at the
time of execution of this Lease, Tenant will pay Base Rent in
monthly installments to Landlord, in advance, without offset or
deduction (except as otherwise permitted in this Lease), commencing
on the Rent Commencement Date and continuing on the first day of
each and every calendar month after the Rent Commencement Date
during the Term. Tenant will make all Base Rent payments to
Property Manager at the address specified in the Basic Terms or at
such other place or in such other manner as Landlord may from time
to time designate in writing. Tenant will make all Base Rent
payments without Landlord’s previous demand, invoice or
notice for payment. Landlord and Tenant will prorate, on a per diem
basis, Base Rent for any partial month within the Term.
2.2 Additional Rent .
Article 3 of this Lease requires Tenant to pay Tenant’s Share
of Property Expenses as Additional Rent pursuant to estimates
Landlord delivers to Tenant. Tenant will make all such payments in
accordance with Section 3.3 without deduction or offset and without
Landlord’s previous demand, invoice or notice for payment.
Tenant will pay all other Additional Rent described in this Lease
within 20 days after receiving Landlord’s invoice for such
Additional Rent. Tenant will make all Additional Rent payments to
the same location and, except as described in the previous
sentence, in the same manner as Tenant’s Base Rent
payments.
2.3 Delinquent Rental Payments
. If Tenant does not pay any installment of Base
Rent or any Additional Rent within five (5) days after the due
date, Tenant will also pay Landlord a Late Charge. Further, if
Tenant does not pay any installment of Base Rent or any Additional
Rent when the payment is due, Tenant will pay Landlord interest on
the delinquent payment calculated at the Maximum Rate from the date
when the payment is due through the date the payment is made. The
parties agree that such amounts represent a fair and reasonable
estimate of the damages Landlord will incur by reason of such late
payment. Such charges will be considered Additional Rent and
Landlord’s right to such compensation for the delinquency is
in addition to all of Landlord’s rights and remedies under
this Lease, at law or in equity. Anything herein to the contrary
notwithstanding, the first $100.00 of interest accruing in each
calendar year under this Paragraph 2.3 shall be abated.
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2.4 Independent Obligations
. Notwithstanding any contrary term or provision of
this Lease, Tenant’s covenant and obligation to pay Rent is
independent from any of Landlord’s covenants, obligations,
warranties or representations in this Lease.
ARTICLE 3
PROPERTY EXPENSES
3.1 Payment of Property Expenses
. Tenant will pay, as Additional Rent and in the
manner this Article 3 describes, Tenant’s Share of Property
Expenses for each calendar year of the Term. Landlord will prorate
Tenant’s Share of Property Expenses for the calendar year in
which this Lease commences or terminates as of the Rent
Commencement Date or termination date, as applicable, on a per diem
basis based on the number of days of the Term within such full or
partial calendar year.
3.2 Estimation of Tenant’s Share of
Property Expenses . Landlord will deliver
to Tenant a written estimate of the following for each calendar
year of the Term: (a) Property Expenses, (b) Tenant’s Share
of Property Expenses and (c) the annual and monthly Additional Rent
attributable to Tenant’s Share of Property Expenses. Landlord
may re-estimate Property Expenses from time to time during the
Term. In such event, Landlord will re-estimate the monthly
Additional Rent attributable to Tenant’s Share of Property
Expenses to an amount sufficient for Tenant to pay the re-estimated
monthly amount over the balance of the calendar year. Landlord will
notify Tenant of the re-estimate and Tenant will pay the
re-estimated amount in the manner provided in the last sentence of
Section 3.3.
3.3 Payment of Estimated Tenant’s Share of
Property Expenses . Tenant will pay the
amount Landlord estimates as Tenant’s Share of Property
Expenses under Section 3.2 in equal monthly installments, in
advance, commencing on the Rent Commencement Date and thereafter on
the first day of each and every calendar month during the Term.
Partial months shall be appropriately prorated. If Landlord has not
delivered the estimates to Tenant by the first day of January of
the applicable calendar year, Tenant will continue paying
Tenant’s Share of Property Expenses based on Landlord’s
estimates for the previous calendar year. When Tenant receives
Landlord’s estimates for the current calendar year, Tenant
will pay the estimated amount for such calendar year (less amounts
Tenant paid to Landlord in accordance with the immediately
preceding sentence) in equal monthly installments over the balance
of such calendar year, with the number of installments being equal
to the number of full calendar months remaining in such calendar
year.
3.4 Confirmation of Tenant’s Share of
Property Expenses . Within 120 days after
the end of each calendar year within the Term, Landlord will
determine the actual amount of Tenant’s Share of Property
Expenses for the expired calendar year and deliver to Tenant a
written statement of such amount. If Tenant paid less than the
amount of Tenant’s Share of Property Expenses specified in
the statement, Tenant will pay the difference to Landlord as
Additional Rent in the manner described in Section 2.2. If Tenant
paid more than the amount of Tenant’s Share of Property
Expenses specified in the statement, Landlord will, at
Landlord’s option, either (a) refund the
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excess amount to Tenant if such amount is more than
one month’s Base Rent, or (b) if such amount is equal to or
less than one month’s Base Rent, credit the excess amount
against Tenant’s next due monthly installment or installments
of Base Rent. If the Term has expired or has been terminated,
Tenant shall pay the balance due to Landlord or, alternatively,
Landlord shall refund the surplus to Tenant, whichever the case may
be, within 30 days after Tenant’s receipt of Landlord’s
Property Expense statement. If Landlord is delayed in delivering
such statement to Tenant, such delay does not constitute
Landlord’s waiver of Landlord’s rights under this
section; provided, however, that in no event shall Tenant be
responsible to Landlord under this Paragraph 3.4 for any item which
is first invoiced by Landlord more than one(1) year after the date
such item is incurred by Landlord.
3.5 Tenant’s Inspection and Audit
Rights . Landlord shall keep and maintain
reasonably complete, legible and accurate records of the Property
Expenses for a period of three (3) years from the date such
Property Expenses are incurred. If Tenant desires to audit
Landlord’s determination of the actual amount of
Tenant’s Share of Property Expenses for any calendar year,
Tenant must deliver to Landlord written notice of Tenant’s
election to audit within 180 days after Landlord’s delivery
of the statement of such amount under Section 3.4. If such notice
is timely delivered, then Tenant (but not any subtenant) or its
representatives may audit Landlord’s records relating to such
amounts. Such audit will take place during regular business hours
at a time and place reasonably acceptable to Landlord (which may be
the location where Landlord or Property Manager maintains the
applicable records). Tenant’s election to audit
Landlord’s determination of Tenant’s Share of Property
Expenses is deemed withdrawn unless Tenant completes and delivers
the audit report to Landlord within 90 days after the date Tenant
delivers its notice of election to audit to Landlord under this
section. If the audit report shows that the amount Landlord charged
Tenant for Tenant’s Share of Property Expenses was greater
than the amount this Article 3 obligates Tenant to pay, unless
Landlord reasonably contests the audit, Landlord will refund the
excess amount to Tenant, together with interest on the excess
amount (computed at 10% per annum from the date Tenant delivers its
dispute notice to Landlord) within 30 days after Landlord receives
a copy of the audit report. If the amount charged pursuant to
Landlord’s annual statement exceeds the final amount actually
payable by more than 3%, Landlord will pay the cost of
Tenant’s audit not to exceed $2,500. If the audit report
shows that the amount Landlord charged Tenant for Tenant’s
Share of Property Expenses was less than the amount this Article 3
obligates Tenant to pay, Tenant will pay to Landlord, as Additional
Rent, the difference between the amount Tenant paid and the amount
determined in the audit. Pending resolution of any audit under this
section, Tenant will continue to pay to Landlord all estimated
amounts of Tenant’s Share of Property Expenses in accordance
with Section 3.3. Except for disclosures required by law, Tenant
must keep all information it obtains in any audit confidential and
may only use such information for the limited purpose this section
describes and for Tenant’s own account. If Landlord desires
to contest such audit results, Landlord may do so by submitting the
results of the audit to arbitration with an arbitrator jointly
appointed and compensated (50% each) by Landlord and by Tenant. The
decision of the arbitrator shall be binding on the
parties.
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3.6 Adjustments . If
all of the rentable area of the Building is not occupied at all
times during any calendar year pursuant to leases under which the
terms and rents have commenced for such calendar year or if the
Building has not commenced business operations, Landlord will
reasonably and equitably adjust its computation of Property
Expenses for that calendar year to include all components of
Property Expenses that vary based on occupancy or lack of operation
(for example, management fees) in an amount equal to
Landlord’s reasonable estimate of the amount Landlord would
have paid for such components of Property Expenses had all of the
rentable area of the Building been so occupied at all times during
such calendar year assuming an average rental rate equal to the
average rate under existing leases.
3.7 Personal Property Taxes
. Tenant will pay, prior to delinquency, all taxes
charged against Tenant’s Personal Property. Tenant will use
all reasonable efforts to have Tenant’s Personal Property
taxed separately from the Property. If any of Tenant’s
Personal Property is taxed with the Property, Tenant will pay the
taxes attributable to Tenant’s Personal Property to Landlord
as Additional Rent.
3.8 Landlord’s Right to Contest Property
Taxes . Landlord may, but is not
obligated to, contest the amount or validity, in whole or in part,
of any Property Taxes. If Property Taxes are reduced (or if a
proposed increase is avoided or reduced) because Property Taxes are
contested, Landlord may include in its computation of Property
Taxes the reasonable costs and expenses incurred in connection with
such contest, including without limitation reasonable
attorney’s fees, up to the amount of any Property Tax
reduction obtained in connection with the contest or any Property
Tax increase avoided or reduced in connection with the contest, as
the case may be. Tenant may not contest Property Taxes. Tenant
shall be credited with its equitable share of any refund of
Property Taxes, using the Tenant’s Share of Property Expenses
Percentage, to the extent paid by Tenant and, if applicable, such
refund shall be made to Tenant after the term of this
Lease.
3.9
Rent Tax. Upon
enactment of state or federal or local law requiring payment of a
Rent Tax, Tenant will pay to Landlord all Rent Tax due in
connection with this Lease or the payment of Rent hereunder, which
Rent Tax will be paid by Tenant to Landlord concurrently with each
payment of Rent made by Tenant to Landlord under this
Lease.
3.10
Management. Landlord
will use reasonable commercial effort to cause the Property to be
managed in an efficient and prudent manner.
ARTICLE 4
USE
4.1 Permitted Use .
Tenant will use the Premises only for the permitted use specified
in the Basic Terms and may not use the Premises for any other
purposes. Tenant will not use the Property or permit the Premises
to be used in violation of any Laws or in any manner that would (a)
violate any certificate of occupancy affecting the Property; (b)
make void or voidable any insurance now or after the Effective Date
in
8
force with respect to the Property; (c) cause injury
or damage to the Property or to the person or property of any other
tenant on the Property; (d) cause substantial diminution in the
value or usefulness to Landlord of all or any part of the Property
reasonable wear and tear and damage from casualty excepted; or (e)
constitute a public or private nuisance or waste. Tenant will
obtain and maintain, at Tenant’s sole cost and expense, all
permits and approvals required under the Laws for Tenant’s
use of the Premises. Tenant shall have exclusive use of the trash
enclosure immediately outside the Premises which is to be
constructed as part of the Tenant’s Improvements.
4.2 Limitation on Representations and
Warranties . Except as otherwise provided
in this Lease, Tenant acknowledges that neither Landlord nor any
agent, contractor or employee of Landlord has made any
representation or warranty of any kind with respect to the
Premises, the Building or the Property, specifically including, but
not limited to, any representation or warranty of suitability or
fitness of the Premises, Building or the Property for any
particular purpose.
4.3 Increased Insurance . Tenant will not do or permit to be done on the Premises
and/or the Property anything that will (a) increase the premium of
any insurance policy Landlord carries covering the Premises or the
Property; (b) cause a cancellation of or be in conflict with any
such insurance policy; (c) result in any insurance company’s
refusal to issue or continue any such insurance in amounts
reasonably satisfactory to Landlord; or (d) subject Landlord to any
liability or responsibility for injury to any person or property by
reason of Tenant’s operations in the Premises or use of the
Property. Tenant, at Tenant’s sole cost and expense, will
comply with all rules, orders, regulations and requirements of its
insurers. Tenant will reimburse Landlord, as Additional Rent, for
any additional premium charges for such policy or policies
resulting from Tenant’s failure to comply with the provisions
of this section.
4.4 Laws/Property Rules . This Lease is subject and subordinate to all Laws. A copy of
the current Property Rules is attached to this Lease as EXHIBIT
“E.” Upon not less than 30 days prior written notice to
Tenant, Landlord may revise the Property Rules from time to time in
Landlord’s reasonable discretion provided such Property Rules
shall not be enforced more rigorously against Tenant than against
other tenants. Revised Property Rules will not materially adversely
affect rights granted to Tenant in this Lease.
4.5 Common Area .
Subject to the express provisions of this Lease related to parking,
Landlord grants Tenant the non-exclusive right, together with all
other occupants of the Property and their agents, employees and
invitees, to use the Common Area during the Term for the purposes
intended, subject to all Laws. Subject to the express provisions of
this Lease related to parking, Landlord may, at Landlord’s
sole and exclusive discretion, make changes to the Common Area so
long as such changes do not materially and adversely impact access
to the Premises or the parking rights granted herein.
Landlord’s rights regarding the Common Area include, but are
not limited to, the right to (a) restrain unauthorized persons
from using the Common Area; (b) temporarily close any portion of
the Common Area (i) for repairs,
9
improvements or Alterations, (ii) to discourage
unauthorized use, (iii) to prevent dedication or prescriptive
rights, or (iv) for any other reason Landlord deems sufficient in
Landlord’s reasonable judgment; (c) change the shape and size
of the Common Area; (d) add, eliminate or change the location of
any improvements located in the Common Area and construct buildings
or other structures in the Common Area; and (e) impose and revise
Property Rules concerning use of the Common Area, including without
limitation any parking facilities comprising a portion of the
Common Area. Except for the provisions herein relating to Property
Expenses and subject to the provisions of Article 20, in no event
shall Landlord charge either Tenant or its customers, guests,
invitees, licensees, permitted subtenants, employees, suppliers or
agents for parking.
ARTICLE 5
HAZARDOUS MATERIALS
5.1 Compliance with Hazardous Materials
Laws . Tenant will not cause any
Hazardous Materials to be brought upon, kept or used on the
Property in a manner or for a purpose prohibited by or that could
result in liability to Landlord under any Hazardous Materials Law.
Tenant, at its sole cost and expense, will comply with all
Hazardous Materials Laws. On or before the expiration or earlier
termination of this Lease, Tenant, at its sole cost and expense,
will completely remove from the Property (regardless of whether any
Hazardous Materials Law requires removal), in compliance with all
Hazardous Materials Laws, all Hazardous Materials Tenant causes to
be present in, on, under or about the Property. Upon
Landlord’s written request, Tenant will promptly deliver to
Landlord documentation acceptable to Landlord disclosing the nature
and quantity of any Hazardous Materials brought upon, kept or used
on the Property by or at the direction of Tenant or its agents,
employees, or contractors, and evidencing the legal and proper
handling, storage and disposal of all Hazardous Materials kept at
or removed or to be removed from the Premises and/or the Property.
All such documentation will list Tenant or its agent as the
responsible party and will not attribute responsibility for any
such Hazardous Materials to Landlord or Property Manager. Landlord
represents and warrants that as of the date hereof Landlord has no
actual knowledge of any Hazardous Materials on the Property or
Premises which are required by applicable law to be remediated.
Further, Landlord represents to Tenant, as follows, as of the date
hereof:
(a) To Landlord’s
actual knowledge, any handling, transportation, storage, treatment
or usage of Hazardous Materials that has occurred on the Premises
prior to the date of this Lease has been in compliance with all
Hazardous Materials Laws and no Release of Hazardous Materials in
violation of law has occurred on the Premises prior to the date of
this Lease. To Landlord’s knowledge, no Hazardous Materials
on the Property or Premises are required by applicable law to be
remediated.
(b) To Landlord’s
actual knowledge, there are no underground storage tanks
(including, but not limited to, underground storage tanks for the
storage of petroleum or petroleum products) at the
Premises.
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When any representation herein is to
Landlord’s actual knowledge, such representation is limited
to the actual knowledge of Tom Shaver and Tony Phelps. Further, any
representation made in this Paragraph 5.1 is subject to matters
described in that certain Phase I Environmental Report prepared by
Landmark Environmental, LLC dated February 28, 2007, and in
documents referred to therein.
5.2 Notice of Actions .
Tenant will notify Landlord of any of the following actions
affecting Landlord, Tenant or the Property that result from or in
any way relate to Tenant’s use of the Property immediately
after receiving notice of the same: (a) any enforcement, clean-up,
removal or other governmental or regulatory action instituted,
completed or threatened under any Hazardous Materials Law; (b) any
Claims made or threatened by any person relating to damage,
contribution, liability, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous
Material; and (c) any reports, records, letters of inquiry and
responses, manifests or other documents made by any person,
including Tenant, to or from any environmental agency relating to
any Hazardous Material, including any complaints, notices, warnings
or asserted violations. Tenant will also deliver to Landlord, as
promptly as possible and in any event within five Business Days
after Tenant first receives or sends the same, copies of all
Claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises or Tenant’s
use of the Premises and/or the Property. Tenant will not take any
remedial action in response to the presence of any Hazardous
Materials in on, under or about the Property, nor enter into any
settlement agreement, consent decree or other compromise with
respect to any Claims relating to or in any way connected with
Hazardous Materials in, on, under or about the Property, without
first notifying Landlord of Tenant’s intention to do so and
affording Landlord reasonable opportunity to investigate, appear,
intervene and otherwise assert and protect Landlord’s
interest in the Property.
5.3 Disclosure and Warning Obligations
. Tenant acknowledges and agrees that all reporting
and warning obligations required under Hazardous Materials Laws
arising from Tenant’s use or occupancy of the Premises or
Property are Tenant’s sole responsibility, regardless of
whether the Hazardous Materials Laws require Landlord to report or
warn.
5.4 Indemnification by Tenant
. Tenant will indemnify, protect, defend (with
counsel reasonably acceptable to Landlord) and hold harmless the
Landlord Parties from and against any and all Claims whatsoever to
the extent arising or resulting, in whole or in part, directly or
indirectly, from the presence, treatment, storage, transportation,
disposal, release or management of Hazardous Materials in, on,
under, upon or from the Property (including water tables and
atmosphere) to the extent caused by and arising from Tenant’s
wrongful act or from Tenant’s use or occupancy of the
Premises or Property. Tenant’s obligations under this section
include, without limitation and whether foreseeable or
unforeseeable, (a) the costs of any required or necessary repair,
compliance, investigations, clean-up, monitoring response,
detoxification or decontamination of the Property; (b) the costs of
implementing any closure, remediation or other required action in
connection therewith as stated above; (c) the costs arising out of
any loss of use and any diminution in value of the Property and
adjacent and
11
nearby properties including groundwater; and (d)
consultants’ fees, experts’ fees and response costs.
The obligations of Tenant under this Article survive the expiration
or earlier termination of this Lease.
5.5 Indemnification by Landlord
. Landlord will indemnify, protect, defend (with
counsel reasonably acceptable to Tenant) and hold harmless the
Tenant Parties from and against any and all Claims whatsoever to
the extent arising or resulting, directly or indirectly, from the
presence, treatment, storage, transportation, disposal, release or
management of Hazardous Materials in, on, under, upon or from the
Property (including water tables and atmosphere) to the extent
caused by and arising from Landlord’s wrongful act
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