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CHANNELL COMMERCIAL CORP - CHNL Quarterly Report (10-Q) EXHIBIT 10.29.lnkGreySmall{font-family: Arial, Sans-Serif;font-weight: bold;font-size: 9px;}a.lnkGreySmall{background-color: transparent;text-decoration: none;}a.lnkGreySmall:active{background-color: transparent; }a.lnkGreySmall:hover{color: #000;}table.welcomeNavColor{background-color: white;border-color: #f1f1e9;border-style: solid;border-width: 2px;width: 25px;padding:2px 2px 2px 2px;padding-right: 2px;padding-left: 2px;padding-bottom: 2px;padding-top: 2px;}.txtGreySmall{font-family: Arial, Sans-Serif;font-weight: bold;color: #696969;font-size: 9px;}About EDGAR Online|LoginDashboardTodayCompanyIndustrySearchScreenerAnalyticsThe following is an excerpt from a 10-Q SEC Filing, filed by CHANNELL COMMERCIAL CORP on 8/12/2002.Jump to : 1 && this[this.selectedIndex].value != "Section0" && this[this.selectedIndex].value != "Section1" ) { document.open(this[this.selectedIndex].value+".asp","_top","",false); } else { document.open("https://signup.edgar-online.com/default.aspx?offerid=secedgarProFreeTrial","_top","",false);}' ID="Select2">-- Use Sections To Navigate Through The Document --10-QFORM 10-QFINANCIAL STATEMENTSINCOME STATEMENTBALANCE SHEETCASH FLOWNOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)Item 2-Management's Discussion and Analysis of Results of Operations ...Item 1. Legal ProceedingsItem 2. Changes in SecuritiesItem 3. Defaults Upon Senior SecuritiesItem 4. Submission of Matters to a Vote of Security HoldersSIGNATURESEXHIBIT 10.28EXHIBIT 10.29EXHIBIT 99.1EXHIBIT 99.2 EXHIBIT 10.29[LOGO] AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATIONSTANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE--NET(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)1. Basic Provisions ("Basic Provisions").1.1 Parties: This Lease ("Lease"), dated for reference purposes only, -June 27, 2002, is made by and between - Ynez Street, Ltd., a California limitedpartnership ("Lessor") and - Channell Commercial Corporation, a DelawareCorporation ("Lessee"), (collectively the "Parties," or individually a "Party").1.2 Premises: That certain real property, including all improvementstherein or to be provided by Lessor under the terms of this Lease, and commonlyknow as - 26090 Ynez Road, Temecula, located in the County of Riverside, Stateof California, and generally described as (describe briefly the nature of theproperty and, if applicable, the "Project", if the property is located within aProject) freestanding building of approximately 102,566 square feet, SAID REALPROPERTY BEING MORE PARTICULARLY DESCRIBED AS PARCEL 10 OF PARCEL MAP 21361 ASSHOWN BY MAP ON FILE IN BOOK 139 PAGE(S) 89 AND 90 OF PARCEL MAPS, RECORDS OFRIVERSIDE COUNTY, CALIFORNIA ("Premises"). (See also Paragraph 2)1.3 Term: Ten (10) years and -0- months ("Original Term") commencing - June27, 2002 ("Commencement Date") and ending - June 30, 2012 ("Expiration Date").(See also Paragraph 3)1.4 Early Possession:- Upon mutual lease execution ("Early PossessionDate"). (See also Paragraphs 3.2 and 3.3)1.5 Base Rent: $53,334 per month ("Base Rent"), payable on the 1st day ofeach month commencing - August, 2002. (See also Paragraph 4)[ ] If this box is checked, there are provisions in this Lease for the BaseRent to be adjusted.1.6 Base Rent and Other Monies Paid Upon Execution:(a) Base Rent $60,215.80 for the period June 27, 2002 through July31, 2002.(b) Security Deposits: $ 160,000.00 ("Security Deposit"). (See alsoParagraph 5)(c) Association Fees: $ -0- for the period N/A(d) Other: $-0- for N/A(e) Total Due Upon Execution of this Lease: $220,215.80.1.7 Agreed Use: Office, design, testing, manufacturing, painting, powdercoating, assembly warehouse and related functions of plastic and metal andrelated products. (See also Paragraph 6)1.8 Insuring Party: Lessor is the "Insuring Party" unless otherwise statedherein. (See also Paragraph 8)1.11 Attachments. Attached hereto are the following, all of whichconstitute a part of this Lease:[ ] an Addendum consisting of Paragraphs 51 through 69;[ ] a plot plan depicting the Premises;[ ] a current set of the Rules and Regulations;[ ] a Work Letter;[ ] other (specify);2. Premises.2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases fromLessor, the Premises, for the term, at the rental, and upon all of the terms,covenants and conditions set forth in this Lease. Unless otherwise providedherein, any statement of size set forth in this Lease, all that may have beenused in calculating Rent, is an approximation which the Parties agree isreasonable and any payments based thereon are not subject to revision whether ornot the actual size is more or less. Note: Lessee is advised to verify theactual size prior to executing this Lease.2.2 Condition. Lessor shall deliver the Premises to Lessee broom clean andfree of debris on the Commencement Date or the Early Possession Date, whicheverfirst occurs ("Start Date"), and, so long as the required service contractsdescribed in the Paragraph 7.1(b) below are obtained by Lessee and in effectwithin thirty days following the Start Date, warrants that the existingelectrical, plumbing, fire sprinkler, lighting, heating, ventilating and airconditioning systems ("HVAC"), loading doors, sump pumps, if any, and all othersuch elements in the Premises, other than those constructed by Lessee, shall bein good operating condition on said date and that the structural elements of theroof, bearing walls and foundation of any buildings on the Premises (the"Building") shall be free of material defects. If a non-compliance with saidwarranty exists as of the Start Date, or if one of such systems or elementsshould malfunction or fail within the appropriate warranty period, Lessor shall,as Lessor's sole obligation with respect to such matter, except as otherwiseprovided in this Lease, promptly after receipt of written notice from Lesseesetting forth with specificity the nature and extent of such non-compliance,malfunction of failure, rectify same at Lessor's expense. The warranty periodsshall be as follows: (i) 6 months as to the HVAC systems, and (ii) 30 days asthe remaining systems and other elements of the Building. If Lessee does notgive Lessor the required notice within appropriate warranty period./s/ IllegibleInitials Page 1 of 12 Initialscorrection of any such non-compliance, malfunction or failure shall be theobligation of Lessee at Lessee's sole cost and expense.2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor inParagraph 2 shall be of no force or effect if immediately prior to the StartDate Lessee was the owner or occupant of the Premises. In such event, Lesseeshall be responsible for any necessary corrective work.3. Term.3.1 Term. The Commencement Date, Expiration Date and Original Term of thisLease are as specified in Paragraph 1.3.3.2 Early Possession. If Lessee totally or partially occupies the Premisesprior to the Commencement Date, the obligation to pay Base Rent shall be abatedfor the period of such early possession. All other terms of this Lease(including but not limited to the obligations to pay Real Property Taxes andinsurance premiums and to maintain the Premises) shall, however, be in effectduring such period. Any such early possession shall not affect the ExpirationDate.3.3 Delay in Possession. Lessor agrees to use its best commerciallyreasonable efforts to deliver possession of the Premises to Lessee by theCommencement Date. If, despite said efforts, Lessor is unable to deliverpossession by such date, Lessor shall not be subject to any liability therefor,nor shall such failure affect the validity of this Lease. Lessee shall not,however, be obligated to pay Rent or perform its other obligations until Lessordelivers possession of the Premises and any period of rent abatement thatLessee would otherwise have enjoyed shall run from the date of delivery ofpossession and continue for a period equal to what Lessee would otherwise haveenjoyed under the terms hereof, but minus any days of delay caused by the actsor omissions of Lessee. If possession is not delivered within 60 days after theCommencement Date, Lessee may, at its option, by notice in writing within 10days after the end of such 60 day period, cancel this Lease, in which event theParties shall be discharged from all obligations hereunder. If such writtennotice is not received by Lessor within said 10 day period, Lessee's right tocancel shall terminate. If possession of the Premises is not delivered within120 days after the Commencement Date, this Lease shall terminate unless otheragreements are reached between Lessor and Lessee, in writing.3.4 Lessee Compliance. Lessor shall not be required to deliver possessionof the Premises to Lessee until Lessee complies with its obligation to provideevidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lesseeshall be required to perform all of its obligations under this Lease from andafter the Start Date, including the payment of Rent, notwithstanding Lessor'selection to withhold possession pending receipt of such evidence of insurance.Further, if Lessee is required to perform any other conditions prior to orconcurrent with the Start Date, the Start Date shall occur but Lessor may electto withhold possession until such conditions are satisfied.4. Rent.4.1 Rent Defined. All monetary obligations of Lessee to Lessor under theterms of this Lease (except for the Security Deposit) are deemed to be rent("Rent").4.2 Payment. Lessee shall cause payment of Rent to be received by Lessor inlawful money of the United States on or before the day on which it is due,without offset or deduction (except as specifically permitted in this Lease).Rent for any period during the term hereof which is for less than one fullcalendar month shall be prorated based upon the actual number of days of saidmonth. Payment of Rent shall be made to Lessor at its address stated herein orto such other persons or place as Lessor may from time to time designate inwriting. Acceptance of a payment which is less than the amount then due shallnot be a waiver of Lessor's rights to the balance of such Rent, regardless ofLessor's endorsement of any check so stating. In the event that any check,draft, or other instrument of payment given by Lessee to Lessor is dishonoredfor any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to anyLate Charge and Lessor, at its option, may require all future payments to bemade by Lessee to be by cashier's check. Payments will be applied first toaccrued late charges and attorney's fees, second to accrued interest, then toBase Rent and Operating Expense Increase, and any remaining amount to any otheroutstanding charges or costs.4.3 Association Fees. In addition to the Base Rent, Lessee shall pay toLessor each month an amount equal to any owner's association or condominium feeslevied or assessed against the Premises. Said monies shall be paid at the sametime and in the same manner as the Base Rent.5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof theSecurity Deposit as security for Lessee's faithful performance of itsobligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaultsunder this Lease, Lessor may use, apply or retain all or any portion of saidSecurity Deposit for the payment of any amount due Lessor or to reimburse orcompensate Lessor for any liability, expense, loss or damage which Lessor maysuffer or incur by reason thereof. If Lessor uses or applies all or any portionof the Security Deposit, Lessee shall within 10 days after written requesttherefor deposit monies with Lessor sufficient to restore said Security Depositto the full amount required by this Lease. Lessor shall not be required to keepthe Security Deposit separate from its general accounts. Within 14 days afterthe expiration or termination of this Lease, if Lessor elects to apply theSecurity Deposit only to unpaid Rent, and otherwise within 30 days after thePremises have been vacated pursuant to Paragraph 7.4(c) below, Lessor shallreturn that portion of the Security Deposit not used or applied by Lessor. Nopart of the Security Deposit shall be considered to be held in trust, to bearinterest or to be prepayment for any monies to be paid by Lessee under thisLease./s/ IllegibleInitials Page 2 of 12 Initials6. Use.6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use,or any other legal use which is reasonably comparable thereto, and for no otherpurpose. Lessee shall not use or permit the use of the Premises in a manner thatis unlawful, creates damage, waste or a nuisance, or that disturbs occupants ofor causes damage to neighboring premises or properties. Lessor shall notunreasonably withhold or delay its consent to any written request for amodification of the Agreed Use, so long as the same will not impair thestructural integrity of the improvements on the Premises or the mechanical orelectrical systems therein, and/or is not significantly more burdensome to thePremises. If Lessor elects to withhold consent, Lessor shall within 7 days aftersuch request give written notification of same, which notice shall include anexplanation of Lessor's objections to the change in the Agreed Use.6.2 Hazardous Substances. (See Addendum Para.56)(a) Reportable Uses Require Consent. The term "Hazardous Substance"as used in this Lease shall mean any product, substance, or waste whosepresence, use, manufacture, disposal, transportation, or release, either byitself or in combination with other materials expected to be on the Premises, iseither: (i) potentially injurious to the public health, safety or welfare, theenvironment or the Premises, (ii) regulated or monitored by any governmentalauthority, or (iii) a basis for potential liability of Lessor to anygovernmental agency or third party under any applicable statute or common lawtheory. Hazardous Substances shall include, but not be limited to, hydrocarbons,petroleum, gasoline, and/or crude oil or any products, by-products or fractionsthereof. Lessee shall not engage in any activity in or on the Premises whichconstitutes a Reportable Use of Hazardous Substances without the express priorwritten consent of Lessor and timely compliance (at Lessee's expense) with allApplicable Requirements. "Reportable Use" shall mean(i) the installation or useof any above or below ground storage tank, (ii) the generation, possession,storage, use, transportation, or disposal of a Hazardous Substance that requiresa permit from, or with respect to which a report, notice, registration orbusiness plan is required to be filed with, any governmental authority, and/or(iii) the presence at the Premises of a Hazardous Substance with respect towhich any Applicable Requirements requires that a notice be given to personsentering or occupying the Premises or neighboring properties. Notwithstandingthe foregoing, Lessee may use any ordinary and customary materials reasonablyrequired to be used in the normal course of the Agreed Use, ordinary officesupplies (copier toner, liquid paper, glue, etc.) and common household cleaningmaterials, so long as such use is in compliance with all ApplicableRequirements, is not a Reportable Use, and does not expose the Premises orneighboring property to any meaningful risk of contamination or damage or exposeLessor to any liability therefor. In addition, Lessor may condition its consentto any Reportable Use upon receiving such additional assurances as Lessorreasonably deems necessary to protect itself, the public, the Premises and/orthe environment against damage, contamination, injury and/or liability,including, but not limited to, the installation (and removal on or before Leaseexpiration or termination) of protective modifications (such as concreteencasements) and/or increasing the Security Deposit.(b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause tobelieve, that a Hazardous Substance has come to be located in, on, under orabout the Premises, other than as previously consented to by Lessor, Lesseeshall immediately give written notice of such fact to Lessor, and provide Lessorwith a copy of any report, notice, claim or other documentation which it hasconcerning the presence of such Hazardous Substance.(c) Lessee Remediation. Lessee shall not cause or permit any HazardousSubstance to be spilled or released in, on, under, or about the Premises(including through the plumbing or sanitary sewer system) and shall promptly, atLessee's expense, comply with all Applicable Requirements and take allinvestigatory and/or remedial action reasonably recommended, whether or notformally ordered or required, for the cleanup of any contamination of, and forthe maintenance, security and/or monitoring of the Premises or neighboringproperties, that was caused or materially contributed to by Lessee, orpertaining to or involving any Hazardous Substance brought onto the Premisesduring the term of this Lease, by or for Lessee, or any third party.(d) Lessee Indemnification. Lessee shall indemnify, defend and holdLessor, its agents, employees, lenders and ground lesssor, if any, harmless fromand against any and all loss of rents and/or damages, liabilities, judgments,claims, expenses, penalties and attorneys' and consultants' fees arising out ofor involving any Hazardous Substance brought onto the Premises by or for Lessee,or any third party (provided, however, that Lessee shall have no liability underthis Lease with respect to underground migration of any Hazardous Substanceunder the Premises from adjacent properties not caused or contributed to byLessee). Lessee's obligations shall include, but not be limited to, the effectsof any contamination or injury to person, property or the environment created orsuffered by Lessee, and the cost of investigation, removal, remediation,restoration and/or abatement, and shall survive the expiration or termination ofthis Lease. No termination, cancellation or release agreement entered into byLessor and Lessee shall release Lessee from its obligations under this Leasewith respect to Hazardous Substances, unless specifically so agreed by Lessor inwriting at the time of such agreement.(e) Lessor Indemnification. Lessor and its successors and assignsshall indemnify, defend, reimburse and hold Lessee, its employees and lenders,harmless from and against any and all environmental damages, including the costof remediation, which result from Hazardous Substances which existed on thePremises prior to Lessee's occupancy or which are caused by the gross negligenceor willful misconduct of Lessor, its agents or employees. Lessor's obligations,as and when required by the Applicable Requirements, shall include, but not belimited to, the cost of investigation, removal, remediation, restoration and/orabatement, and shall survive the expiration or termination of this Lease.(f) Investigations and Remediations. Lessor shall retain theresponsibility and pay for any investigations or remediation measures requiredby governmental entities having jurisdiction with respect to the existence ofHazardous Substances on the Premises prior to Lessee's occupancy, unless suchremediation measure is required as a result of Lessee's use (including"Alterations", as defined in paragraph 7.3(a) below) of the Premises, in whichevent Lessee shall be responsible for such payment. Lessee shall cooperate fullyin any such activities at the request of Lessor, including allowing Lessor andLessor's agents to have reasonable access to the Premises at reasonable times inorder to carry out Lessor's investigative and remedial responsibilities.(g) Lessor Termination Option. If a Hazardous Substance Condition (seeParagraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legallyresponsible therefor (in which case Lessee shall make the investigation andremediation thereof required by the Applicable Requirements and this Lease shallcontinue in full force and effect, but subject to Lessor's rights underParagraph 6.2 (d) and Paragraph 13), Lessor may, at Lessor's option, either (i)investigate and remediate such Hazardous Substance Condition, if required, assoon as reasonably possible at Lessor's expense, in which event this Lease shallcontinue in full force and effect, or (ii) if the estimated cost to remediatesuch condition exceeds 12 times the then monthly Base Rent of $100,000,whichever is greater, give written notice to Lessee, within 30 days afterreceipt by Lessor of knowledge of the occurrence of such Hazardous SubstanceCondition, of Lessor's desire to terminate this Lease as of the date 60 daysfollowing the date of such notice. In the event Lessor elects to give atermination notice, Lessee may, within 10 days thereafter, give written noticeto Lessor of Lessee's commitment to pay the amount by which the cost of theremediation of such Hazardous Substance Condition exceeds an amount equal to 12times the then monthly Base Rent or $100,000, whichever is greater. Lessee shallprovide Lessor with said funds or satisfactory assurance thereof within 30 daysfollowing such commitment. In such event, this Lease shall continue in fullforce and effect, and Lessor shall proceed to make such remediation as soon asreasonably possible after the required funds are available. If Lessee does notgive such notice and provide the required funds or assurance thereof within thetime provided, this Lease shall terminate as of the date specified in Lessor'snotice of termination.6.3 Lessee's Compliance with Applicable Requirements.6.4 Inspection; Compliances. Lessor and Lessor's "Lender" (as defined inParagraph 30) and consultants shall have the right to enter into Premises at anytime, in the case of an emergency, and otherwise at reasonable times afterreasonable notice, for the purpose of inspecting the condition of the Premisesand for verifying compliance by Lessee with this Lease. The cost of any suchinspections shall be paid by Lessor, unless a violation of ApplicableRequirements, or a Hazardous Substance Condition (see paragraph 9.1) is found toexist or be imminent, or the inspection is requested or ordered by agovernmental authority. In such case, Lessee shall upon request reimburse Lessorfor the cost of such inspection, so long as such inspection is reasonablyrelated to the violation or contamination.7. Maintenance; Repairs, Utility Installations; Trade Fixtures Alterations.7.1 Lessee's Obligations.(a) In General. Subject to the provisions of Paragraph 2.2(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with ApplicableRequirements), 7.2 (Lessor's Obligation), 9 (Damage or Destruction), and 14(Condemnation), Lessee shall, at Lessee's sole expense, keep the Premises,Utility Installations (intended for Lessee's exclusive use, no matter wherelocated), and Alterations in good order, condition and repair (whether or notthe portion of the Premises requiring repairs, or the means of repairing thesame, are reasonably or readily accessible to Lessee, and whether or not theneed for such repairs occurs as a result of Lessee's use, any prior use, theelements or the age of such portion of the Premises), including, but not limitedto, all equipment or facilities, such as plumbing, HVAC equipment, electrical,lighting facilities, boilers, pressure vessels, fire protection system,fixtures, walls(interior and exterior), foundations, ceilings, roofs, roofdrainage systems, floors, windows, doors, plate glass, skylights, landscaping,driveways, parking lots, fences, retaining walls, signs, sidewalks and parkwayslocated in, on, or adjacent to the Premises. Lessee, in keeping the Premises ingood order, condition and repair, shall exercise and perform good maintenancepractices, specifically including the procurement and maintenance of the servicecontracts required by Paragraph 7.1(b) below. Lessee's obligations shallinclude restorations, replacements or renewals when necessary to keep thePremises and all improvements thereon or a part thereof in good order, conditionand state of repair. Lessee shall, during the term of this Lease, keep theexterior appearance./s/ IllegibleInitials Page 3 of 12 Initialsof the Building in a first-class condition (including, e.g. graffiti removal)consistent with the exterior appearance of other similar facilities ofcomparable age and size in the vicinity, including, when necessary, the exteriorrepainting of the Building.(c) Failure to Perform. If Lessee fails to perform Lessee'sobligations under this Paragraph 7.1, Lessor may enter upon the Premises after10 days' prior written notice to Lessee (except in the case of an emergency, inwhich case no notice shall be required), perform such obligations on Lessee'sbehalf, and put the Premises in good order, condition and repair, and Lesseeshall promptly pay to Lessor a sum equal to 115% of the cost thereof.(d) Replacement. Subject to Lessee's Indemnification of Lessor as setforth in Paragraph 8.7 below, and without relieving Lessee of liabilityresulting from Lessee's failure to exercise and perform good maintenancepractices, if an item described in Paragraph 7.1(b) cannot be repaired otherthan at a cost which is in excess of 50% of the cost of replacing such item,then such item shall be replaced by Lessor, and the cost thereof shall beprorated between the Parties and Lessee shall only be obligated to pay, eachmonth during the remainder of the term of this Lease, on the date on which BaseRent is due, an amount equal to the product of multiplying the cost of suchreplacement by a fraction, the numerator of which is one, and the denominator ofwhich is 144 (i.e. 1/144th of the cost per month). Lessee shall pay interest onthe unamortized balance at a rate that is commercially reasonable in thejudgment of Lessor's accountants. Lessee may, however, prepay its obligation atany time.7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2(Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14 (Condemnation),it is intended by the Parties hereto that Lessor have no obligation, in anymanner whatsoever, to repair and maintain the Premises, or the equipmenttherein, all of which obligations are intended to be that of the Lessee. It isthe intention of the Parties that the terms of this Lease govern the respectiveobligations of the Parties as to maintenance and repair of the Premises, andthey expressly waive the benefit of any statute now or hereafter in effect tothe extent it is inconsistent with the terms of this Lease.7.3 Utility Installations; Trade Fixtures; Alterations.(a) Definitions. The term "Utility installations" refers to all floorand window coverings, air and/or vacuum lines, power panels, electricaldistribution, security and fire protection systems, communication cabling,lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises.The term "Trade Fixtures" shall mean Lessee's machinery and equipment that canbe removed without doing material damage to the Premises. The term "Alterations"shall mean any modification of the improvements, other than UtilityInstallations or Trade Fixtures, whether by addition or deletion. "Lessee OwnedAlterations and/or Utility Installations" are defined as Alterations and/orUtility Installations made by Lessee that are not yet owned by Lessor pursuantto Paragraph 7.4(a).(b) Consent. Lessee shall not make any Alterations or UtilityInstallations to the Premises over $5000.00 without Lessor's prior writtenconsent. Lessee may, however, make non-structural Utility Installations to theinterior of the Premises (excluding the roof) without such consent but uponnotice to Lessor, as long as they are not visible from the outside, do notinvolve puncturing, relocating or removing the roof/or any existing walls, willnot affect the electrical, plumbing, HVAC, and/or life safety systems, and thecumulative cost thereof during this Lease as extended does not exceed a sumequal to 3 month's Base Rent in the aggregate or a sum equal to one month's BaseRent in any one year. Notwithstanding the foregoing, Lessee shall not make orpermit any roof penetrations and/ or install anything on the roof without theprior written approval of Lessor. Lessor may, as a precondition to granting suchapproval, require Lessee to utilize a contractor chosen and/or approved byLessor. Any Alterations or Utility Installations that Lessee shall desire tomake and which require the consent of the Lessor shall be presented to Lessor inwritten form with detailed plans. Consent shall be deemed conditioned uponLessee's: (i) acquiring all applicable governmental permits, (ii) furnishingLessor with copies or both the permits and the plans and specifications prior tocommencement of the work, and (iii) compliance with all conditions of saidpermits and other Applicable Requirements in a prompt and expeditious manner.Any Alterations or Utility Installations shall be performed in a workmanlikemanner with good and sufficient materials. Lessee shall promptly upon completionfurnish Lessor with as-built plans and specifications. For work which costs anamount in excess of one month's Base Rent. Lessor may condition its consent uponLessee providing a lien and completion bond in an amount equal to 150% of theestimated cost of such Alteration or Utility Installation and/or upon Lessee'sposting an additional Security Deposit with Lessor.(c) Liens; Bonds. Lessee shall pay, when due, all claims for labor ormaterials furnished or alleged to have been furnished to or for Lessee at or foruse on the Premises, which claims are or may be secured by any mechanic's ormaterialmen's lien against the Premises or any interest therein. Lessee shallgive Lessor not less than 10 days notice prior to the commencement of any workin, on or about the Premises, and Lessor shall have the right to post notices ofnon-responsibility. If Lessee shall contest the validity of any such lien, claimor demand, then Lessee shall, at its sole expense defend and protect itself.Lessor and the Premises against the same and shall pay and satisfy any suchadverse judgment that may be rendered thereon before the enforcement thereof. IfLessor shall require, Lessee shall furnish a surety bond in an amount equal to150% of the amount of such contested lien, claim or demand, indemnifying Lessoragainst liability for the same. If Lessor elects to participate in any suchaction, Lessee shall pay Lessor's attorneys' fees and costs.7.4 Ownership; Removal; Surrender; and Restoration.(a) Ownership. Subject to Lessor's right to require removal or electownership as hereinafter provided, all Alterations and Utility Installationsmade by Lessee shall be the property of Lessee, but considered a part of thePremises. Lessor may, at any time, elect in writing to be the owner of all orany specified part of the Lessee Owned Alterations and Utility Installations.Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee OwnedAlterations and Utility Installations shall, at the expiration or termination ofthis Lease, become the property of Lessor and be surrendered by Lessee with thePremises.(b) Removal. By delivery to Lessee of written notice from Lessor notearlier than 90 and not later than 30 days prior to the end of the term of thisLease, Lessor may require that any or all Lessee Owned Alterations or UtilityInstallations be removed by the expiration or termination of this Lease. Lessormay require the removal at any time of all or any part of any Lessee OwnedAlterations or Utility Installations made without the required consent excludingunderground utilities(c) Surrender; Restoration. Lessee shall surrender the Premises by theExpiration Date or any earlier termination date, with all of the improvements,parts and surfaces there of broom clean and free of debris, and in goodoperating order, condition and state of repair, ordinary wear and tear excepted."Ordinary wear and tear" shall not include any damage or deterioration thatwould have been prevented by good maintenance practice. Notwithstanding theforegoing, if this Lease is for 12 months or less, then Lessee shall surrenderthe Premises in the same condition as delivered to Lessee on the Start Date withNO allowance for ordinary wear and tear. Lessee shall repair any damageoccasioned by the installation, maintenance or removal of Trade Fixtures, Lesseeowned Alterations and/or Utility Installations, furnishings, and equipment aswell as the removal of any storage tank installed by or for Lessee. Lessee shallcompletely remove from the Premises any and all Hazardous Substances broughtonto the Premises by or for Lessee, or any third party (except HazardousSubstances which were deposited via underground migration from areas outside ofthe Premises, or if applicable, the Project) even if such removal would requireLessee to perform or pay for work that exceeds statutory requirements. TradeFixtures shall remain the property of Lessee and shall be removed by Lessee. Anypersonal property of Lessee not removed on or before the Expiration Date or anyearlier termination date shall be deemed to have been abandoned by Lessee andmay be disposed of or retained by Lessor as Lessor may desire. The failure byLessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) withoutthe express written consent of Lessor shall constitute a holdover under theprovisions of Paragraph 26 below.8. Insurance; Indemnity.8.1 Payment For Insurance. Lessee shall pay for all insurance requiredunder Paragraph 8 except to the extent of the cost attributable to liabilityinsurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 peroccurrence. Premiums for policy periods commencing prior to or extending beyondthe Lease term shall be prorated to correspond to the Lease term. Payment shallbe made by Lessee to Lessor within 10 days following receipt of an invoice.8.2 Liability Insurance.(a) Carried by Lessee. Lessee shall obtain and keep in force aCommercial General Liability policy of Insurance protecting Lessee and Lessor asan additional insured against claims for bodily injury, personal injury andproperty damage based upon or arising out of the ownership, use, occupancy ormaintenance of the Premises and all areas appurtenant thereto. Such insuranceshall be on an occurrence basis providing single limit coverage in an amount notless than $1,000,000 per occurrence with an annual aggregate of not less than$2,000,000, an "Additional Insured-Managers or Lessors of Premises Endorsement"and contain the "Amendment of the Pollution Exclusion Endorsement" for damagecaused by heat, smoke or fumes from a hostile fire. The policy shall not containany intra-insured exclusions as between insured persons or organizations, butshall include coverage for liability assumed under this Lease as an "insuredcontract" for the performance of Lessee's indemnity obligations under thisLease. The limits of said insurance shall not, however, limit the liability ofLessee nor relieve Lessee of any obligation hereunder. All insurance carried byLessee shall be primary to and not contributory with any similar insurancecarried by Lessor, whose insurance shall be considered excess insurance only.(b) Carried by Lessor. Lessor shall maintain liability insurance asdescribed in Paragraph 8.2(a), in addition to, and not in lieu of, the insurancerequired to be maintained by Lessee. Lessee shall not be named as an additionalinsured therein however, any changes in coverage must be approved in writing byLessee.8.3 Property Insurance - Building, Improvements and Rental Value.(a) Building and Improvements. The Insuring Party shall obtain andkeep in force a policy or policies in the name of Lessor, with loss payable toLessor, any ground-lessor, and to any Lender insuring loss or damage to thePremises. The amount of such insurance shall be equal to the full replacementcost of the Premises, as the same shall exist from time to time, or the amountrequired by any Lender, but in no event more than the/s/ IllegibleInitials Page 4 of 12 Initialscommercially reasonable and available insurable value thereof. If Lessor is theInsuring Party, however, Lessee Owned Alterations and Utility Installations,Trade Fixtures, and Lessee's personal property shall be insured by Lessee underParagraph 8.4 rather than by Lessor. If the coverage is available andcommercially appropriate, such policy or policies shall insure against all risksof direct physical loss or damage (except the perils of flood and/or earthquakeunless required by a Lender), including coverage for debris removal and theenforcement of any Applicable Requirements requiring the upgrading, demolition,reconstruction or replacement of any portion of the Premises as the result of acovered loss. Said policy or policies shall also contain an agreed valuationprovision in lieu of any coinsurance clause, waiver of subrogation, andinflation guard protection causing an increase in the annual property insurancecoverage amount by a factor or not less than the adjusted U.S. Department ofLabor Consumer Price Index for All Urban Consumers for the city nearest to wherethe Premises are located. If such insurance coverage has a deductible clause,the deductible amount shall not exceed $25,000 per occurrence, and Lessee shallbe liable for such deductible amount in the event of an Insured Loss.(b) Rental Value. The Insuring Party shall obtain and keep in force apolicy or policies in the name of Lessor with loss payable to Lessor and anyLender, insuring the loss of the full Rent for one year with an extended periodof indemnity for an additional 180 days ("Rental Value Insurance"). Saidinsurance shall contain an agreed valuation provision in lieu of any coinsuranceclause, and the amount of coverage shall be adjusted annually to reflect theprojected Rent otherwise payable by Lessee, for the next 12 month period. Lesseeshall be liable for any deductible amount in the event of such loss.(c) Adjacent Premises. If the Premises are part of a larger building,or of a group of buildings owned by Lessor which are adjacent to the Premises,the Lessee shall pay for any increase in the premiums for the property insuranceof such building or buildings if said increase is caused by Lessee's acts,omissions, use or occupancy of the Premises.8.4 Lessee's Property; Business Interruption Insurance.(a) Property Damage. Lessee shall obtain and maintain insurancecoverage on all of Lessee's personal property, Trade Fixtures, and Lessee OwnedAlterations and Utility Installations. Such insurance shall be full replacementcost coverage with a deductible of not to exceed $25,000 per occurrence. Theproceeds from any such insurance shall be used by Lessee for the replacement ofpersonal property, Trade Fixtures and Lessee Owned Alterations and UtilityInstallations. Lessee shall provide Lessor with written evidence that suchinsurance is in force.(b) Business Interruption. Lessee shall obtain and maintain loss ofincome and extra expense insurance in amounts as will reimburse Lessee fordirect or indirect loss of earnings attributable to all perils commonly insuredagainst by prudent lessees in the business of Lessee or attributable toprevention of access to the Premises as a result of such perils.(c) No Representation of Adequate Coverage. Lessor makes norepresentation that the limits or forms of coverage of insurance specifiedherein are adequate to cover Lessee's property, business operations orobligations under this Lease.8.5 Insurance Policies. Insurance required herein shall be by companiesduly licensed or admitted to transact business in the state where the Premisesare located, and maintaining during the policy term a "General PolicyholdersRating" of at least B+, V, as set forth in the most current issue of "Best'sInsurance Guide", or such other rating as may be required by a Lender. Lesseeshall not do or permit to be done anything which invalidates the requiredinsurance policies. Lessee shall, prior to the Start Date, deliver to Lessorcertified copies of policies of such insurance or certificates evidencing theexistence and amounts of the required insurance. No such policy shall becancelable or subject to modification except after 30 days prior written noticeto Lessor. Lessee shall, at least 30 days prior to the expiration of suchpolicies, furnish Lessor with evidence of renewals or "insurance binders"evidencing renewal thereof, or Lessor may order such insurance and charge thecost thereof to Lessee, which amount shall be payable by Lessee to Lessor upondemand. Such policies shall be for a term of at least one year, or the length ofthe remaining term of this Lease, whichever is less. If either Party shall failto procure and maintain the insurance required to be carried by it, the otherParty may, but shall not be required to, procure and maintain the same.8.6 Waiver of Subrogation. Without affecting any other rights or remedies,Lessee and Lessor each hereby release and relieve the other, and waive theirentire right to recover damages against the other, for loss of or damage to itsproperty arising out of or incident to the perils required to be insured againstherein. The effect of such releases and waivers is not limited by the amount ofinsurance carried or required, or by any deductibles applicable hereto. TheParties agree to have their respective property damage insurance carriers waiveany right to subrogation that such companies may have against Lessor or Lessee,as the case may be, so long as the insurance is not invalidated thereby.8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct,Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessorand its agents. Lessor's master or ground lessor, partners and Lenders, from andagainst any and all claims, loss of rents and/or damages, liens, judgments,penalties, attorneys' and consultants' fees , expenses and/or liabilitiesarising out of, involving, or in connection with, the use and/or occupancy ofthe Premises by Lessee. If any action or proceeding is brought against Lessor byreason of any of the foregoing matters, Lessee shall upon notice defend the sameat Lessee's expense by counsel reasonably satisfactory to Lessor and Lessorshall cooperate with Lessee in such defense. Lessor need not have first paid anysuch claim in order to be defended or indemnified.8.8 Exemption of Lessor from Liability. Lessor shall not be liable forinjury or damage to the person or goods, wares, merchandise or other property ofLessee. Lessee's employees, contractors, invitees, customers, or any otherperson in or about the Premises, whether such damage or injury is caused by orresults from fire, steam, electricity, gas, water or rain, or from the breakage,leakage, obstruction or other defects of pipes, fire sprinklers, wires,appliances, plumbing, HVAC or lighting fixtures, or from any other cause,whether the said injury or damage results from conditions arising upon thePremises or upon other portions of the building of which the Premises are apart, or from other sources or places. Lessor shall not be liable for anydamages arising from any act or neglect of any other tenant of Lessor nor fromthe failure of Lessor to enforce the provisions of any other lease in theProject. Notwithstanding Lessor's negligence or breach of this Lease, Lessorshall under no circumstances be liable for injury to Lessee's business or forany loss of income or profit therefrom.8.9 Failure to Provide Insurance. Lessor shall give written notice ofLessee's alleged failure to carry required insurance and twenty (20) days tocure.9. Damage or Destruction.9.1 Definitions.(a) "Premises Partial Damage" shall mean damage or destruction to theimprovements on the Premises, other than Lessee Owned Alterations and UtilityInstallations, which can reasonably be repaired in 6 months or less from thedate of the damage or destruction. Lessor shall notify Lessee in writing within30 days from the date of the damage or destruction as to whether or not thedamage is Partial or Total.(b) "Premises Total Destruction" shall mean damage or destruction tothe Premises, other than Lessee Owned Alterations and Utility Installations andTrade Fixtures, which cannot reasonably be repaired in 6 months or less from thedate of damage or destruction. Lessor shall notify Lessee in writing within 30days from the date of the damage or destruction as to whether or not the damageis Partial or Total.(c) "Insured Loss" shall mean damage or destruction to improvements onthe Premises, other than Lessee Owned Alterations and Utility Installations andTrade Fixtures, which was caused by an event required to be covered by theinsurance described in Paragraph 8.3(a), irrespective of any deductible amountsor coverage limits involved.(d) "Replacement Cost" shall mean the cost to repair or rebuild theimprovements owned by Lessor at the time of the occurrence to their conditionexisting immediately prior thereto, including demolition, debris removal andupgrading required by the operation of Application Requirements, and withoutdeduction for depreciation.(e) "Hazardous Substance Condition" shall mean the occurrence ordiscovery of a condition involving the presence of, or a contamination by, aHazardous Substance as defined in Paragraph 6.2(a), in, on, or under thePremises which requires repair, remediation, or restoration.9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is anInsured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage(but not Lessee's Trade Fixtures or Lessee Owned Alterations and UtilityInstallations) as soon as reasonably possible and this Lease shall continue infull force and effect; provided, however, that Lessee shall, at Lessor'selection, make the repair of any damage or destruction the total cost to repairof which is $10,000 or less, and, in such event, Lessor shall make anyapplicable insurance proceeds available to Lessee on a reasonable basis for thatpurpose. Notwithstanding the foregoing, if the required insurance was not inforce or the insurance proceeds are not sufficient to effect such repair, theInsuring Party shall promptly contribute the shortage in proceeds (except as tothe deductible which is Lessee's responsibility) as and when required tocomplete said repairs. In the event, however, such shortage was due to the factthat, by reason of the unique nature of the improvements, full replacement costinsurance coverage was not commercially reasonable and available. Lessor shallhave no obligation to pay for the shortage in insurance proceeds or to fullyrestore the unique aspects of the Premises unless Lessee provides Lessor withthe funds to cover same, or adequate assurance thereof, within 10 days followingreceipt of written notice of such shortage and request therefor. If Lessorreceives said funds or adequate assurance thereof within said 10 day period, theparty responsible for making the repairs shall complete them as soon asreasonably possible and this Lease shall remain in full force and effect. Ifsuch funds or assurance are not received, Lessor may nevertheless elect bywritten notice to Lessee within 10 days thereafter to: (i) make such restorationand repair as is commercially reasonable with Lessor paying any shortage inproceeds, in which case this Lease shall remain in full force and effect, or(ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitledto reimbursement of any funds contributed by Lessee to repair any such damage ordestruction. Premises Partial Damage due to flood or earthquake shall be subjectto Paragraph 9.3, notwithstanding that there may be some insurance coverage, butthe net proceeds of any such insurance shall be made available for the repairsif made by either Party.9.3 Partial Damage- Uninsured Loss. If a Premises Partial Damage that isnot an Insured Loss occurs, unless caused by a negligent or/s/ IllegibleInitials Page 5 of 12 Initialswillful act of Lessee (in which event Lessee shall make the repairs at Lessee'sexpense), Lessor may either: (i) repair such damage as soon as reasonablypossible at Lessor's expense, in which event this Lease shall continue in fullforce and effect, or (ii) terminate this Lease by giving written notice toLessee within 30 days after receipt by Lessor of knowledge of the occurrence ofsuch damage. Such termination shall be effective 60 days following the date ofsuch notice. In the event Lessor elects to terminate this Lease. Lessee shallhave the right within 10 days after receipt of the termination notice to givewritten notice to Lessor of Lessee's commitment to pay for the repair of suchdamage without reimbursement from Lessor. Lessee shall provide Lessor with saidfunds or satisfactory assurance thereof within 30 days after making suchcommitment. In such event this Lease shall continue in full force and effect,and Lessor shall proceed to make such repairs as soon as reasonably possibleafter the required funds are available. 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