Exhibit 10.18
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This Lease agreement ("Lease") is made and entered into by and between TIAA
Realty, Inc., a Delaware Corp. hereinafter referred to as "Landlord," and
Educational Products, Inc., hereinafter referred to as "Tenant," upon the
following terms and conditions:
AGREEMENT
1. Leased Premises.
In consideration of the rents reserved and the covenants and
agreements herein contained on the part of Tenant to be observed and performed,
Landlord hereby demises, lets and leases unto Tenant, and Tenant hereby rents
from Landlord, those certain premises consisting of a space containing an area
of approximately 95,600 square feet, also know as Suite 100 (hereinafter called
the "Leased Premises") and constituting a part of the office/warehouse building
(hereinafter called the "Building") located at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx which Building is located upon the lot, tract or parcel of land
more particularly described on Exhibit "A" attached hereto and made a part
hereof for all purposes. If the Building is in a development containing one or
more other buildings, such buildings together with all related site land,
improvements, parking facilities, common areas, driveways and landscaping,
together with the Building, shall be referred to as the "Project."
The purpose of the site plan attached as Exhibit "A" is to show the
approximate location of the Leased Premises. Landlord reserves the right at any
time to relocate, vary and adjust the size of the various buildings, covenants,
automobile parking areas, and other common areas as shown on said site plan.
The use and occupancy by Tenant of the Leased Premises shall include the use, in
common with others entitled thereto, of the common service areas, loading
facilities, pedestrian walks, automobile driveways and parking areas, all as
shown on the site plan attached hereto as Exhibit "A."
In determining the number of square feet of area of the Leased
Premises, Tenant acknowledges that the Leased Premises includes the usable area,
without deduction for columns or projections, multiplied by a load factor to
reflect a share of certain areas, which may include lobbies, corridors,
mechanical , utility, janitorial, boiler and service rooms and closets,
restrooms and other public, common and service areas of the Building.
2. Term.
To have and to hold the Leased Premises for a term commencing on
January 1, 2000 ("Commencement Date") and ending on December 31, 2005. However,
if for any reason, Landlord is unable to deliver possession of the Leased
Premises on the Commencement Date, Landlord shall not be liable for any damage
caused by the delay, nor shall this Lease be void or voidable, but, rather, it
is agreed that the Lease term shall commence upon the date Landlord tenders
possession of the Leased Premises to Tenant, and unless Landlord elects
otherwise, the expiration date of the Lease shall be extended by the number of
days delayed from the original Commencement Date as set out above. If this
Lease is executed before the Leased Premises become vacant or otherwise
available and ready for occupancy, or if any present tenant or occupant of the
Leased Premises holds over, and Landlord cannot acquire possession of the Leased
Premises prior to the date above recited as the Commencement Date of this Lease,
Landlord shall not be deemed to be in default hereunder, and Tenant agrees to
accept possession of the Leased Premises at such time as Landlord is able to
tender the same, which date shall thenceforth be deemed the Commencement Date,
and Landlord hereby waives payment of rent covering any period prior to the
tendering of possession to Tenant hereunder.
3. Acceptance of Leased Premises.
Tenant acknowledges that Landlord has not made any representations or
warranty with respect to the condition or quality of the Leased Premises or
Building. Tenant has inspected and accepts the Leased Premises and Building in
their present condition as suitable for the purpose for which the Leased
Premises are leased. Taking of possession by Tenant shall be deemed
conclusively to establish that the Leased Premises, Building and common areas
are in good and satisfactory condition as of when possession was taken. Tenant
further acknowledges that no representations as to the repair of the Leased
Premises or Building nor promises to alter, remodel or improve the Leased
Premises or Building have been made by Landlord, unless such are expressly set
forth in this Lease. After the Commencement Date Tenant shall, upon demand,
execute and deliver to Landlord a letter of acceptance of delivery of the Leased
Premises.
4. Base Rent and Security Deposit.
a) Tenant agrees to pay to Landlord rent for the Leased Premises in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
See Addendum One (_____) per month. One such monthly installment shall be due
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and payable on or before October 1, 1999 and a likely monthly installment shall
be due and payable on or before the first day of each calendar month succeeding
the Commencement Date recited above during the hereby demised term, except that
the rental payment for any fractional calendar month at the commencement or end
of the Lease period shall be prorated.
b) In addition, Tenant agrees to deposit with Landlord on the date hereof the
sum of THIRTY TWO THOUSAND FIVE HUNDRED FOUR AND 00/00 Dollars ($32,504.00),
which sum shall be held by Landlord, without obligation for interest, as
security for the performance of Tenant's covenants and obligations under this
Lease, it being expressly understood and agreed that such deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Tenant's
default. Upon the occurrence of any event of default by Tenant, Landlord may,
from time to time, without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make good any arrears
of rent or other payments due Landlord hereunder, and any other damage, injury,
expense or liability caused by such event of default, and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit shall be deemed
the property of Landlord any remaining balance of such deposit shall be returned
by Landlord to Tenant within sixty (60) days after all of Tenant's obligations
under this Lease have been fulfilled.
5. Use.
The Leased Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or
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distributed by Tenant and for such other lawful purposes as may be incidental
thereto. Outside storage, including, without limitation, trucks and other
vehicles, is prohibited without Landlord's prior written consent. Tenant shall
be allowed to park up to seventeen (17) licensed operable trucks in front of the
Leased Premises. Tenant shall at its own costs and expense obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental orders and directives for the correction, prevention and abatement
of nuisances in or upon, or connected with, the Leased Premises all at Tenant's
sole expense. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise or vibrations to emanate from the Leased Premises, nor
take any other action which would constitute a nuisance or would disturb or
endanger any other tenants of the Building or Project or unreasonably interfere
with the use of their respective premises. Without Landlord's prior written
consent, Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly inflammable. Tenant will
not permit the Leased Premises to be used for any purpose or in any manner
(including, without limitation, any method of storage) which would render the
insurance thereon void or the insurance risk more hazardous or cause the State
Board of Insurance or other insurance authority to disallow any sprinkler
credits.
6. Operating Expense Stop.
a) In the event the operating expenses (as defined below) of Landlord for the
Building or Project if applicable, in any calendar year during the term of this
Lease, exceed the sum of the greater of $0.88 per square foot per year or the
1999 actual base year level, Tenant agrees to pay as additional rental Tenant's
proportionate share of such excess operating expenses. Tenant's proportionate
share as used in this Lease shall mean a fraction, the numerator which is the
space contained in the Leased Premises and the denominator of which is the
entire space contained in the Project. Landlord shall, within nine (9) months
following the close of any calendar year for which additional rental is due
under this paragraph, invoice Tenant for the additional rental. The invoice
shall include in reasonable detail all computations of the additional rental,
and Tenant agrees to pay the additional rental within ten days following receipt
of the invoice upon receipt. If this Lease shall terminate on a day other than
the last day of a year, the amount of any additional rental payable by Tenant
applicable to the year in which such termination shall occur shall be prorated
on the ratio that the number of days from the commencement of such year to and
including such termination date bears to 365. If at any time during the term of
this Lease, Landlord has reason to believe the per square foot operating
expenses for the calendar year will exceed [the sum set forth] above, Landlord
may by invoice direct Tenant to prepay monthly one-twelfth of an amount equal to
the additional rental paid in the previous year, or if no additional rental was
paid in the previous year, then Tenant shall prepay monthly one-twelfth of the
amount Landlord reasonably estimates for Tenant's additional rental for such
calendar year. If the invoice delivered within nine (9) months following the
close of a calendar year in accordance with this subparagraph shows an amount
owing by Tenant that is less than the sum of the monthly payments made by Tenant
in the previous calendar year, the invoice shall be accompanied by a refund of
the excess by Landlord to Tenant, or, at its option, Landlord may credit such
amount toward the next sums due hereunder as additional rent. If such invoice
shows an amount owing by Tenant which is more than the sum of the monthly
payments made by Tenant in the previous calendar year, Tenant shall pay such
deficiency to Landlord within ten days after receipt of the invoice. For the
year in which this Lease terminates, Landlord shall have the option to charge
Tenant for Tenant's proportionate share of the excess operating
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expenses based upon the previous year's excess operating expenses, in which
event Landlord shall invoice Tenant within thirty (30) days prior to the
termination of this Lease or at any time up to nine (9) months thereafter.
Tenant shall have the right, at its own expense and at a reasonable time, but
not more than once per calendar year, to audit Landlord's books relevant to the
additional rentals due under this paragraph, upon at least ten (10) days prior
written notice.
b) The term "operating expenses" as used above includes all expenses incurred
with respect to the maintenance and operation of the Project, including but not
limited to, maintenance and repair costs, management fees, wages and fringe
benefits payable to employees of Landlord whose duties are connected with the
operation and maintenance of the Building and common areas, and the costs of all
services, supplies, repairs, replacements or other expenses for maintaining and
operating the Project. The term "operating expenses" also includes all taxes
and installments of special or general assessments (excluding any assessments
for municipal or county street repairs, widening or replacement) upgrades,
changes in, or additions to water and sewage, including special assessments due
to deed restrictions and/or owners' associations, which accrue against the
Project of which the Leased Premises are a part during the term of this Lease as
well as all insurance premiums Landlord is required to pay or deems appropriate
to pay, including public liability insurance, with respect to the Project.
Except as stated herein, the term "operating expenses" shall not include any
other capital improvement to the Project of which the Leased Premises are a
part, nor shall it include repairs, restoration or other work occasioned by
fire, windstorm or other casualty covered by applicable insurance in excess of
the applicable deductible amount, income and franchise taxes of Landlord,
expenses incurred in leasing to or procuring of tenants, leasing commissions,
advertising expenses, expenses for the renovating of space for new tenants,
interest or principal payments on any mortgage or other indebtedness of
Landlord, compensation paid to any employee of Landlord above the grade of
building superintendent nor any depreciation allowance or expense.
c) Notwithstanding the foregoing, Tenant shall be responsible for and shall
pay to Landlord a monthly common area maintenance reimbursement which includes
Tenant's proportionate share of landscape maintenance, parking lot maintenance,
security (if any), pest control, water, sewer and general project utilities.
These monthly reimbursement expenses shall be excluded from the general
calculations for determining "base year level" expenses as discussed above.
This payment is approximately $1,075.50 per month, and is based upon estimated
common area expenses for the current year and shall be increased or decreased
annually to reflect the projected actual cost of all such common area
maintenance items. If Tenant's total common area expense payments are less than
Tenant's actual proportionate share of all such items, Tenant shall pay the
difference to Landlord within thirty (30) days after demand. If Tenant's total
payments are more than Tenant's actual proportionate share of all such items,
Landlord shall retain such excess and credit it against Tenant's future payments
and shall notify Tenant of such credits promptly.
d) The Landlord shall have the right to employ a tax consulting firm to
attempt to reduce the value or to assure a fair tax burden on the Building
and/or Project within the applicable taxing jurisdiction. Tenant shall pay to
Landlord upon demand from time to time, as additional rent, the amount of
Tenant's "proportionate share" of the costs of such service.
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7. Landlord's Repairs.
Landlord shall at its expense maintain only the roof, foundation and
the structural soundness of the exterior walls of the Building in good repair,
reasonable wear and tear excepted. Tenant shall repair and pay for any damage
caused by Tenant, or Tenant's employees, agents or invitee, or caused by
Tenant's default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office entries.
Tenant shall immediately give Landlord written notice of defect or need for
repairs, after which Landlord shall have reasonable opportunity to repair same
or cure such defect. Landlord's liability with respect to any defects, repairs
or maintenance for which Landlord is responsible under any of the provisions of
this Lease shall be limited to the cost of such repairs or maintenance or the
curing of such defect.
8. Tenant's Repairs.
a) Tenant shall at its own cost and expenses keep and maintain all parts of
the Leased Premises (except those for which Landlord is expressly responsible
under the term of this Lease) in good condition, promptly making all necessary
repairs and replacements, including but not limited to, windows, glass, plate
glass doors, any special office entry, interior walls and finish work, floors
and floor covering, downspout, gutters, heating and air conditioning systems,
lighting, electrical systems, dock boards, truck doors, door bumpers, paving,
plumbing lines, equipment, and fixtures, termite and pest extermination, regular
removal of trash and debris, including rail spur areas, keeping these areas,
parking areas, driveways, alleys and the whole of the Leased Premises in a clean
and sanitary condition, and if applicable, maintain any spur track serving the
Leased Premises (Tenant agrees to sign a joint maintenance agreement reasonably
acceptable to Tenant, with the railroad company servicing the Leased Premises,
if requested by the railroad company. Tenant shall not be obligated to repair
any damage caused by fire, tornado or other casualty covered by the insurance to
be maintained by Landlord pursuant to subparagraph 14(a) below, except that
Tenant shall be obligated to repair all wind damage to glass except with respect
to tornado or hurricane damage.
b) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitee.
c) In the event the Leased Premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers and licensees shall have
the exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's [exclusive parking rights] against any third parties. Further, in
multiple occupancy buildings, Landlord shall perform the paving and landscape
maintenance, and reserve the right to perform exterior painting and common
sewage line plumbing which are otherwise Tenant's obligations under subparagraph
(a) above with respect to such items, and Tenant shall be liable for its
proportionate share (as defined in subparagraph 6(a) above) of the cost and
expense of the care for the grounds around the Building, including but not
limited to the mowing of grass, care of shrubs, general landscaping, maintenance
of parking areas, driveways and alleys, exterior
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repainting and common sewage line plumbing; provided, however, that Landlord
shall have the right to require Tenant to pay such other reasonable proportion
of said mowing, shrub care and general landscaping costs as may be determined by
Landlord in its sole discretion; and further provided that if Tenant or any
other particular tenant of the Building can be clearly identified as being
responsible for obstructions or stoppage of the common sanitary sewage line,
then Tenant, if Tenant is responsible, or such other responsible tenant, shall
pay the entire cost thereof, upon demand, as additional rent. Tenant shall pay
its share, determined as aforesaid, of such costs and expenses in the event
Landlord elects to perform or caused to be performed such work which sum shall
be due and payable ten (10) days after receipt of a statement thereafter.
d) In the event the Leased Premises constitute a portion of a multiple
occupancy building, Landlord shall have the right to coordinate any repairs and
other maintenance of any rail tracks serving or to serve the Building, and if
Tenant uses the rail tracks, Tenant shall reimburse Landlord from time to time
upon demand, as additional rent, for a share of the costs of the repairs and
maintenance and any other sums specified in any agreement to which Landlord is a
party respecting the tracks, such share to be a fraction, the numerator of which
is the space contained in the Leased Premises, and the denominator of which is
the entire space occupied by rail users in the Building which sum shall be due
and payable ten (10) days after receipt of a statement thereafter.
e) Tenant shall, at its own costs and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Leased Premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within the operation/ maintenance manual and must
become effective (and a copy thereof delivered to Landlord) within thirty (30)
days of the date Tenant takes possession of the Leased Premises and provide for
service not less than a semi-annually basis.
9. Tenant Improvements and Alterations
Tenant shall not make any alterations, additions or improvements to
the Leased Premises (including, but not limited to roof and wall penetrations)
or Building without the prior written consent of Landlord. All Tenant
alterations, additions and/or improvements shall comply with insurance
requirements and with all applicable laws, ordinances, and regulations.
Additionally, all Tenant alterations, additions and/or improvements shall be in
accordance with Landlord's specifications. All Tenant alterations, additions
and/or improvements shall be constructed in a good and workmanlike manner. All
plans and specifications for Tenant's alterations, additions and/or improvements
shall be submitted to Landlord for Landlord's written approval. Tenant agrees
that Landlord may monitor all phases of Tenant's construction. Tenant shall
reimburse Landlord for Landlord's reasonable expenses for reviewing plans and
documents and in monitoring construction. Landlord's review of plans and
monitoring construction shall be solely for Landlord's own benefit and shall
impose no duty or obligation on Landlord to confirm that the plans and
specifications and/or construction comply with applicable laws, codes, rules, or
regulations. At Landlord's request, Tenant shall obtain payment and performance
bonds approved by Landlord, for any Tenant construction which bonds shall be
delivered to Landlord prior to commencement of construction. Upon completion of
Tenant's construction, Tenant shall
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deliver to Landlord sworn statements setting forth the names of all contractors
and subcontractors who performed work along with final lien waivers from such
contractors and subcontractors. Tenant may, without the consent of Landlord, but
at its own cost and expense and in a good workmanlike manner, erect such
shelves, bins, machinery, and trade fixtures as it may deem advisable, without
altering the basic character of the Building or improvements and without
overloading or damaging such Building or improvements, and in each case
complying with all applicable governmental laws, ordinances, regulations and
other requirements. All alterations, additions, improvements and partitions
erected by Tenant shall be and remain the property of Tenant during the term of
this Lease and Tenant shall, unless Landlord otherwise elects as hereinafter
provided, remove all alterations, additions, improvements and partitions erected
by Tenant and restore the Leased Premises to its original condition by the date
of termination of this Lease or upon earlier vacating of the Leased Premises;
provided, however, that if Landlord so elects prior to termination of this Lease
or upon earlier vacating of the Leased Premises, such alterations, additions,
improvements and partitions shall become the property of Landlord as of the date
of termination of this Lease or upon earlier vacating of the Leased Premises and
shall be delivered up to the Landlord with the Leased Premises. All shelves,
bins, machinery and trade fixtures installed by Tenant may be removed by Tenant
prior to the termination of this Lease if Tenant so elects, and shall be removed
by the date of termination of this Lease or upon earlier vacating of the Leased
Premises if required shall be accomplished in a good workmanlike manner so as
not to damage the primary structure or structural qualities of the buildings and
other improvements situated on the Leased Premises.
10. Signs
Tenant shall have the right to install two (2) signs upon the Leased
Premises as outlined on Exhibit "A" only when first approved in writing by
Landlord and subject to any applicable governmental laws, ordinances,
regulations, Landlord's or other architectural controls, and other requirements.
Tenant shall remove all such signs by the termination of this Lease. Such
installations and removals shall be made in such manner as to avoid injury or
defacement of the Building and other improvements, and Tenant shall repair any
injury or defacement, including, without limitation, discoloration, caused by
such installation and/or removal.
11. Inspection
Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Leased Premises and Building at any reasonable
time during business hours, for the purpose of ascertaining the condition of the
Leased Premises or in order to make such repairs as may be required or permitted
to be made by Landlord under the terms of this Lease. During the period that is
six (6) months prior to the end of the term hereof, Landlord and Landlord's
agents and representatives shall have the right to enter the Leased Premises at
any reasonable time during business hours for the purpose of showing the Leased
Premises and shall have the right to erect on the Leased Premises a suitable
sign indicating the Leased Premises are available. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the Leased
Premises and shall arrange to meet with Landlord for a joint inspection of the
Leased Premises prior to vacating. In the event of Tenant's failure to give
such notice or arrange to meet with Landlord for a joint inspection of the
Leased Premises prior to vacating and shall arrange to meet with Landlord for a
joint inspection of the Leased Premises prior to vacating the Leased
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Premises, Landlord's inspection at or after Tenant's vacating the Leased
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
12. Utilities
Landlord agrees to provide at Landlord's cost water, electricity and
telephone service connections into the Leased Premises; but Tenant shall pay for
all water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the Leased Premises, together with
any taxes, penalties, surcharges or the like pertaining thereto and any
maintenance charges for utilities, as well as shall furnish all electric light
bulbs and tubes. If any such services are not separately metered to Tenant,
Tenant shall pay Tenant's reasonable proportion, as determined by Landlord, of
all charges jointly metered with other premises. Landlord shall in no event be
liable for any interruption or failure of utility services on the Leased
Premises.
13. Assignment and Subletting
a) Tenant will not assign this Lease, or allow same to be assigned by
operation of law or otherwise, or sublet the Leased Premises or any part thereof
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Notwithstanding any permitted assignment or subletting,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent herein specified and for compliance with all
of its other obligations under the terms, provisions and covenants of this
Lease. If the Leased Premises or any part thereof are then assigned or sublet,
Landlord, in addition to any other remedies herein provided or provided by law,
may at its option collect directly from such assignee or subtenant all rents
becoming due to Tenant under such assignment or sublease and apply such rent
against any sums due to Landlord from Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations thereunder.
b) If Tenant shall propose to sublet or assign this Lease, it shall so notify
Landlord in writing not less than thirty (30) days prior to the date of the
proposed assignment or subletting. The notice shall set forth the name of the
proposed subtenant or assignee, the term, use, rental rate and other particulars
of the proposed subletting or assignment, including without limitation, proof
satisfactory to Landlord that the proposed subtenant or assignee is financially
responsible and will immediately occupy and hereafter use the entire Leased
Premises (or any sublet portion thereof) for the remaining term of this Lease
(or for the entire term of the sublease, if shorter).
c) Landlord shall have the option, in the event of any proposed assignment or
subletting, to cancel this Lease as of the date the subletting or assignment
described in Tenant's notice is to be effective. The option shall be exercised,
if at all, by Landlord's giving Tenant written notice thereof within twenty (20)
days following Landlord's receipt of Tenant's written request. Upon
cancellation, Tenant shall pay to Landlord all costs or charges which are the
responsibility of Tenant hereunder through the date of cancellation, and Tenant
shall, at Tenant's own cost and expense, discharge in full any outstanding
commission obligation on the part of Landlord with respect to this Lease.
Further, upon any such cancellation Landlord and Tenant shall have no
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further obligations or liabilities to each other under this Lease, except with
respect to obligations or liabilities which accrue hereunder as of the
cancellation date in the same manner as if such cancellation date were the date
originally fixed for the expiration of the term hereof. Without limitation,
Landlord may lease the Leased Premises to the prospective subtenant or assignee,
without liability to the Tenant. Landlord's failure to exercise any right
hereunder shall not waive Landlord's right as to any subsequent proposed
sublease or assignment, nor shall any such failure be deemed to constitute
Landlord's right as to any subsequent proposed sublease or assignment, nor shall
any such failure be deemed to constitute Landlord's approval of the proposed
sublease or assignment.
d) If Landlord does not cancel this Lease, Landlord agrees to approve any
assignment by Tenant to any corporation succeeding to substantially all the
business and assets of Tenant by merger, consolidation, purchase of assets or
otherwise, or any assignment or subletting to a corporation which is an
affiliate of tenant. In other cases, provided that there is no event of default
on the part of Tenant (or circumstances which, with the passing of time, giving
of notices, or both, would constitute an event of default), Landlord agrees not
to unreasonably withhold approval of any proposed subletting or assignment as to
which Landlord declines its rights of cancellation hereunder provided the
proposed transaction is consummated within thirty (30) days after Landlord's
approval, is upon the same terms and conditions disclosed to Landlord in
Tenant's notice, and the assignment or subletting is with another financially
responsible party whose use of the Leased Premises will not depreciate the value
of the Leased Premises, or the value of the property adjacent thereto, or will
not be extra hazardous with reference to the risk of fire or other hazards, and
shall not result in any additional environmental risk for the Project. Any
assignment or subletting without Landlord's approval, where required hereunder,
shall be void and of no effect.
e) Landlord shall have the right to transfer and assign, in whole or in part,
any of its rights under this Lease, and in the Building or Project referred to
herein, and to the extent that such assignee assumes Landlord's obligations
hereunder, Landlord shall by virtue of such assignment be released from such
obligation.
14. Fire and Casualty Damage
a) Landlord agrees to maintain standard fire and extended coverage insurance
covering the Building of which the Leased Premises are a part in an amount not
less than 80% (or such greater percentage as may be necessary to comply with the
provisions of any co-insurance clauses of the policy, of the "replacement costs"
thereof. Landlord may also maintain such other types or amounts of insurance
with respect to the Building and/or Project as Landlord may from time to time
determine appropriate, and the premiums for such insurance shall be part of
operating expenses. Subject to the provisions of subparagraphs 14(c), 14(d) and
14(e) below, such insurance shall be for the sole benefit of Landlord and under
its sole control.
b) If the Building should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall give immediate written notice thereof to Landlord.
c) If the Building should be totally destroyed by fire, tornado or other
casualty, or if they should be so damaged thereby that rebuilding or repairs
cannot in Landlord's estimation be
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completed within one hundred fifty (150) days after the date upon which Landlord
is notified by Tenant of such damage, this Lease shall terminate and the rent
shall be abated during the unexpired portion of this Lease, effective upon the
date of the occurrence of such damage.
d) If the Building should be damaged by any peril covered by the insurance to
be provided by Landlord under subparagraph 14(a) above, but only to such extent
that rebuilding or repairs can in Landlord's estimation be completed within one
hundred fifty (150) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall not terminate, and Landlord shall at its
sole costs and expense thereupon proceed with reasonable diligence to rebuild
and repair the Building to substantially the condition in which it existed prior
to such damage, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in, on or about the Leased Premises by Tenant.
Landlord shall provide Tenant notice of Landlord's intent to rebuild or repair
within forty-five (45) days of the casualty. If the Leased Promises are
untenantable, the rent owed by Tenant shall not be abated but shall be reduced
to such extent as may be fair and reasonable under all of the circumstances. In
the event that Landlord shall fail to complete such repairs and rebuilding
within one hundred fifty (150) days after the date upon which Landlord is
notified by Tenant of such damage, Tenant may at its option terminate this Lease
by delivering written notice of termination to Landlord within thirty (30) days
after expiration of such one hundred fifty (150) day period as Tenant's
exclusive remedy, whereupon all rights and obligations hereunder shall cease and
terminate. Failure by Tenant to timely terminate this Lease as set forth in the
preceding sentence shall be deemed a waiver by Tenant of its right to do so.
e) Notwithstanding anything herein to the contrary, in the event the holder of
any indebtedness secured by a mortgage or deed of trust covering the Leased
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
f) Each of Landlord and Tenant hereby releases the other from any loss or
damage to person or property caused by fire or any other perils insured through
or under them by way of subrogation or otherwise for any loss or damage to
person or property caused by fire or any other perils insured in policies of
insurance covering the loss to the extent of the insurance, even if such loss or
damage shall have been caused by the fault or negligence of the other party, or
anyone for whom such party may be responsible; provided, however, that this
release shall be applicable and in force and effect only with respect to loss or
damage occurring during such times as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
there under and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant agree that it will request its insurance
carriers to include in its policies as such a clause or endorsement. If extra
cost shall be charged therefor, each party shall advise the other thereof and of
the amount of the extra cost, and the other party, at its election, may pay the
same, but shall not be obligated to do so; provided, however, if a party elects
not to pay such additional costs, then such party shall not be entitled to
benefits of the waiver of subrogation set forth herein.
10
15. Liability; Tenant's Insurance
a) Tenant agrees that Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Leased Premises,
resulting from and/or caused in part or whole by the negligence or misconduct of
Tenant, its agents, servants or employees, or of any other person entering upon
the Leased Premises, Building or Project, or caused by the Buildings and
improvements located on the Project becoming out of repair, or caused by leakage
of gas, oil, water or steam or by electricity emanating from the Leased
Premises, or due to any cause whatsoever, and Tenant hereby covenants and agrees
that it will at all times indemnify and hold safe and harmless Landlord
(including without limitation the trustee and beneficiaries if Landlord is a
trust), Landlord's agents and employees from any loss, liability, claims,
lawsuits, costs, expenses, including, without limitation, attorney's fees and
damages, both real and alleged, arising out of any such damage or injury, except
injury to persons or damage to property resulting from the sole cause of which
is the negligence of Landlord or the failure of Landlord to repair any part of
the Leased Premises which Landlord is obligated to repair and maintain hereunder
after a reasonable time after the receipt of written notice from Tenant of
needed repairs.
b) Tenant shall procure and maintain throughout the term of this Lease a policy
or policies of insurance, at its sole cost and expense, insuring both Landlord
and Tenant against all claims, demands or actions arising out of or in
connection with: (i) the Leased Premises; (ii) the condition of the Leased
Premises; (iii) Tenant's operations in and maintenance and use of the Leased
Premises; and (iv) Tenant's liability assumed under this Lease, the limits of
such policy or policies to be in the amount of not less than $1,000,000 per
occurrence in respect of injury or destruction, including loss of use thereof.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certified copies of such policies, together
with receipt evidencing payment of premiums therefor, shall be delivered to
Landlord prior to the Commencement Date of this Lease. Not less than fifteen
(15) days prior to the expiration date of the policies, certified copies of the
renewals thereof (bearing notations evidencing payment of renewal premiums)
shall be delivered to Landlord. Tenant's policies shall further provide that
not less than thirty (30) days written notice shall be given to Landlord before
the policy may be canceled or changed to reduce insurance provided thereby.
16. Condemnation
a) If the whole or any substantial part of the Leased Premises should be taken
from any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Leased Premises for the purposes for which they are being used, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective when the physical taking of the Leased Premises shall occur.
b) If part of the Leased Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this Lease is not terminated
as provided in the subparagraph above, this Lease
11
shall not terminate but the rent payable hereunder during the unexpired portion
of this Lease shall be reduced to such extent as may be fair and reasonable
under all of the circumstances.
c) In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portions of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings.
17. Holding Over
Tenant agrees that at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant holds over after
the expiration or termination of this Lease, unless the parties hereto otherwise
agree in writing on the terms of such holding over, the hold over tenancy shall
be subject to termination by Landlord at any time upon not less than five (5)
days advance written notice, or by Tenant at any time upon not less than thirty
(30) days advance written notice. During the hold over, all of the other terms
and provisions of this Lease shall be applicable during that period, except that
Tenant shall pay Landlord from time to time upon demand, as rental for the
period of any holdover, an amount equal to one and one half (1 1/2) times the
rent in effect on the termination date, computed on a daily basis for each day
of the hold over period. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this paragraph shall not be
construed as Landlord's consent for Tenant to hold over.
18. Quiet Enjoyment
Landlord convenants that it now has, or will acquire before Tenant
takes possession of the Lease Premises, good title to the Leased Premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this Lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record. In the event this Lease is a
sublease, then Tenant agrees to take the Leased Premises subject to the
provisions of the prior leases. Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the rentals herein set forth and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the Leased
Premises for the term hereof without hindrance or molestation from Landlord,
subject to the terms and provisions of this Lease.
19. Events of Default
The following events shall be deemed to be events of default by Tenant
under this Lease:
a) Tenant shall fail to pay any installment of the rent herein reserved when
due, or any payment with respect to taxes hereunder when due, or any other
payment or reimbursement to Landlord required herein when due, and such failure
shall continue for a period of five (5) days from the date such payment was due.
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b) Tenant shall become insolvent or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
c) Tenant shall be adjudged bankrupt or insolvent in proceedings filed against
Tenant.
d) A receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant.
e) Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than the foregoing in this Paragraph, and shall not cure such
failure within twenty (20) days after written notice thereof to Tenant.
f) If the term of any lease, other than this Lease, heretofore or hereafter
made by Tenant for any space in the Building or the Project, if applicable,
shall be terminated or terminable after the making of this Lease because of any
default by Tenant under such other lease.
20. Remedies
Upon occurrence of any such events of default described in Paragraph
19 hereof, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever.
a) Terminate this Lease, or terminate Tenant's right to possession of the
Leased Premises under this Lease (but not the Lease itself), and in either event
Landlord shall have the right to immediate possession of the Leased Premises and
may reenter the Leased Premises, change the locks and remove all persons and
property therefrom using all force necessary for this purpose without being
guilty in any manner of trespass or otherwise; and any and all damages to
Tenant, or persons holding under Tenant, by reason of such re-entry are hereby
expressly waived; and any such termination or re-entry on the part of Landlord
shall be without prejudice to any remedy available to Landlord for arrears of
rent, breach of contract, damages or otherwise, nor shall the termination of
this Lease or of Tenant's right of possession under this Lease by Landlord
acting under this subsection be deemed in any manner to relieve Tenant from the
obligation to pay the rent and all other amounts due or to become due as
provided in this Lease for and during the entire unexpired portion then
remaining of the Lease term. In the event of termination of this Lease or of
Tenant's right of possession under this Lease by Landlord as provided in this
subparagraph, Landlord shall have the further right (but not the obligation) to
relet the Leased Premises upon such terms, conditions and covenants as are
deemed proper by Landlord for the account of Tenant, and in such event, Tenant
shall pay to Landlord all costs of renovating and altering the Leased Premises
for a new tenant or tenants in addition to all brokerage and/or legal fees
incurred in connection therewith. Landlord shall credit Tenant only for such
amounts as are actually received from such reletting during the then remaining
Lease term. Alternatively, at the election of Landlord, Tenant covenants and
agrees to pay as damages to Landlord, upon any such termination by Landlord of
this Lease or of Tenant's right of possession under this Lease, such sum as at
the time of such termination equals the amount of the excess, if any, of the
then present value of all the rent which would have been due and payable
hereunder during the remainder of the full Lease term (had Tenant kept and
performed all agreements and covenants of Tenant set forth in this Lease) over
and above the then present rental value of the Leased Premises for said
13
remainder of the Lease term. For purposes of present value calculations,
Landlord and Tenant stipulate and agree to a discount rate of six (6) percent
per annum.
b) Without terminating this Lease, to enter upon the Leased Premises and
without being guilty in any manner of trespass or otherwise and without
liability for any damage to Tenant or persons holding under Tenant by reason of
such re-entry, all of which are hereby expressly waived, and to do or perform
whatever Tenant is obligated hereunder to do or perform under the terms of this
Lease; and Tenant shall reimburse Landlord on demand for any expenses or other
sums which Landlord may incur or expend plus fifteen percent (15%) thereof to
cover Landlord's overhead and administrative cost, pursuant to this
subparagraph, and Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by the negligence of Landlord or
otherwise; provided, however, nothing in this subsection shall be deemed an
obligation or undertaking by Landlord to remedy any such defaults of Tenant.
c) Without waiving such event of default, apply all or any part of the security
deposit to cure the event of default or to any damages suffered as a result of
the event of default to the extent of the amount of damages suffered. Tenant
shall reimburse Landlord for the amount of such depletion of the security
deposit on demand.
d) In addition to any of the remedies noted above or hereinafter, Landlord is
entitled and authorized to enter upon and take possession of the Leased Premises
and remove any property that may be found within the Leased Premises. Landlord
shall have the right to change any and all locks and other security devices
restricting access to the Leased Premises. To the extent permitted by law,
Tenant hereby waives: (i) any notices of Landlord's intent to re-enter or re-
take possession of the Leased Premises; (ii) any notice provided by statute or
otherwise of such re-entry or repossession or changing of locks; (iii) any claim
or cause of action, whether based on trespass, conversion, or otherwise, against
Landlord or Landlord's agents, employees, officers, or contractors for any
damages caused by the alteration of any locks or re-entry or repossession by
Landlord, whether or not caused by the negligence of Landlord or otherwise; and
(iv) any right of redemption, re-entry, or repossession of Tenant and any notice
of legal proceeding for re-entry, including actions for forcible detainer and
entry.
Provided that Landlord has not terminated the Lease in writing or
permanently excluded Tenant from the Leased Premises, Landlord shall not be
obligated to provide a new key to Tenant except during Landlord's normal
business hours, and only after the following: (1) Tenant cures all events of
default existing at the time of lock-out, including payment of late charges and
reasonable expenses of lock-out (which shall include the cost of security
services and removal of old locks and installation of new locks), and (2) Tenant
has provided Landlord additional security or further assurances of Tenant's
future performance of all Tenant's obligations arising under the Lease, such
security or assurances to be satisfactory to Landlord in the exercise of
Landlord's sole and absolute discretion, which security may include, but is not
limited to, a requirement that the security deposit be increased to an amount
equal to three (3) months rent. Such lock-out should not be deemed to be a
termination of the Lease unless Landlord gives a written notice of termination
to Tenant. It is agreed that if Tenant abandons or vacates the Leased Premises,
Landlord may take such steps as Landlord deems necessary, appropriate, or
desirable to protect the Leased Premises and the property therein from
deterioration, including but not limited to, the lock-out of Tenant as described
herein.
14
In the event Tenant fails to pay any installment of rent or any
reimbursement, additional rental, or any other payment hereunder as and when
such payment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment,
reimbursement, additional rental or any other payment and the failure to pay
such late charge within ten (10) days after demand therefor shall be an event of
default hereunder. The provision for such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
Pursuit of any of the forgoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No act or thing done by the Landlord or its agents
during the term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the Leased Premises, and no agreement to
terminate this Lease or accept a surrender of the Leased Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall
constitute a waiver by Landlord of any of its rights with respect to any future
violation or breach thereof. Landlord's acceptance of the payment of rental or
other payments hereunder after the occurrence of an event of default shall not
be construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default or of Landlord's right to enforce any such remedies
with respect to such default or any subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with any attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable
attorney's fees so incurred.
All sums due and owing by Tenant to Landlord under this Lease shall
bear interest from the date due until paid at the lesser of (a) the maximum non-
usurious rate permitted by law or (b) the greater of (i) two percent (2%) above
the "prime rate" per annum of Texas Commerce Bank National Association or its
successor in effect on said due date or (ii) eighteen percent (18%) per annum.
In either case, such interest to be compounded daily; provided, however, in no
event shall the rate of interests hereunder exceed the maximum non-usurious rate
of interest (hereinafter called the "Maximum Rate") permitted by the applicable
laws of the State of Texas or the United States of America, whichever shall
permit the higher non-usurious rate, and as to which Tenant could not
successfully assert a claim or defense of usury. To the extent that the Maximum
Rate is determined by reference to the laws of the State of Texas, the Maximum
Rate shall be the indicated rate ceiling (as defined and described in Texas
Revised Civil Statutes, Article 5069-1.04) as amended at the applicable time in
effect.
15
21. Landlord's Lien
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have and Tenant hereby grants to Landlord a continuing security
interest for all rentals and other sums of money becoming due hereunder from
Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, receivables, chattel paper and other personal
property of Tenant situated on the Leased Premises, and such property shall not
be removed therefrom without the consent of Landlord until all arrearage in rent
as well as any and all other sums of money then due to Landlord hereunder shall
first have been paid and discharged. In the event of a default under this Lease,
Landlord shall have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this paragraph at
public or private sale upon five (5) days notice to Tenant. Tenant hereby agrees
to execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
Landlord hereby agrees to subordinate Landlord's contractual and statutory lien
to Tenant's lender, Chase Bank on Landlord's standard form.
22. Subordination
This Lease and all rights of Tenant hereunder are subject and
subordinate (i) to any mortgage or deed of trust, blanket or otherwise, which
does now or may hereafter affect the Building (and which may also affect other
properties) and (ii) to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any such mortgage or deed of
trust. This provision is hereby declared by Landlord and Tenant to be self-
operative and no further instruments shall be required to affect such
subordination of this Lease. Tenant shall, however, upon demand at any time or
times execute, acknowledge and deliver to Landlord any and all instruments and
certificates that may be necessary or proper to more effectively subordinate
this Lease and all rights of Tenant hereunder to any such mortgage or deed of
trust or to confirm or evidence such subordination. In the event Tenant shall
fail or neglect to execute, acknowledge and deliver any subordination agreement
or certificate, Landlord in addition to any other remedies it may have, as the
agent and attorney in fact of Tenant, execute, acknowledge and deliver the same
and Tenant hereby irrevocably nominates, constitutes and appoints Landlord
Tenant's proper and legal agent and attorney in fact for such purposes. Such
power of attorney shall not terminate on disability of the principal. Tenant
covenants and agrees, in the event any proceedings are brought for the
foreclosure of any such mortgage or if the Building is sold to any purchaser, to
attorn to and recognize such purchaser as the Landlord under this Lease. Tenant
agrees to execute and deliver at any time and from time to time, upon the
request of Landlord or of any holder(s) of any of the indebtedness or other
obligations secured by any of the mortgages or deeds of trust be necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence such
attornment. Tenant hereby irrevocably appoints Landlord and the holders of the
indebtedness or other obligations secured by the aforesaid mortgages and/or
deeds of trust jointly and severally the agent and attorney shall not terminate
or disability of the principal. Tenant further waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or purport to
give Tenant any right or election to terminate or otherwise adversely affect
this Lease and the obligation of Tenant
16
hereunder in the event any such foreclosure proceedings is brought or trustee's
sale occurs and agrees that this Lease shall not be affected in any way
whatsoever by any such foreclosure proceeding or trustee's sale unless the
holder(s) of the indebtedness or other obligations secured by said mortgages
and/or deeds of trust shall declare otherwise.
23. Landlord's Default
Landlord shall only be deemed to be in default on the terms of the
Lease in the event Landlord shall violate, neglect, or fail to observe, keep or
perform any covenant or agreement which is not observed, kept, or performed by
Landlord within thirty (30) days after the receipt by Landlord of Tenant's
written notice of such breach which notice shall specifically set out the
breach. Landlord shall not be considered in default so long as Landlord
commences to cure the breach in a diligent and prudent manner and is allowed
such additional time as reasonably necessary to correct the breach.
Notwithstanding any provisions to the contrary contained in this Lease, no
personal liability of any kind or character whatsoever shall attach or at any
time hereafter attach under any conditions to Landlord or any subsidiary,
affiliate or partner of Landlord or their respective officers, directors,
shareholders, or employees for payments of any amounts due under this Lease or
for the performance of any obligation under this Lease. The exclusive remedies
of Tenant for failure of Landlord to perform any of its obligations under this
Lease shall be to proceed against the interest of Landlord in and to the Leased
Premises it being understood that in no event shall a judgment for any
deficiency or monetary claim be sought, obtained or enforced against Landlord or
any subsidiary, affiliate, or partner of Landlord or their respective officers,
directors, shareholders or employees. In no event shall Landlord be liable for
any consequential, special, punitive or exemplary damages.
24. Mechanic's Liens
Tenant shall have no authority, express or implied, to create or place
any lien or encumbrance of any kind or nature whatsoever upon, or in any manner
to bind, the interest of Landlord in the Leased Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Leased Premises
on which any lien is or can be validly and legally asserted against its
leasehold interest in the Leased Premises or the improvements thereon and that
it will indemnify, defend and save and hold Landlord harmless from any and all
loss, cost or expense based on or arising out of asserted claims or liens
against the leasehold estate or against the right, title and interest of the
Landlord in the Leased Premises or under the terms of this Lease.
25. Notices
Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any notice or the making of any payment by
Landlord to Tenant or with reference to the
17
sending, mailing or delivery of any notice or the making of any payment by
Tenant to Landlord shall be deemed to be complied with when and if the following
steps are taken.
a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent and any
other amounts to Landlord under the terms of this Lease shall not be deemed
satisfied until such rent and other amounts have been actually received by
Landlord.
b) All payments required to be made by Landlord to Tenant hereunder shall be
payable to Tenant at the address hereinbelow set forth, or at such other address
within the continental United States as Tenant may specify from time to time by
written notice delivered in accordance herewith.
c) Any notice or document required or permitted to be delivered hereunder shall
be deemed to be delivered whether actually received or not, when deposited in
the United States Mail, postage prepaid. Certified or Registered Mail,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have heretofore specified by written notice delivered
in accordance herewith:
Landlord: Tenant:
-------- ------
TIAA Realty, Inc. Educational Products, Inc.
c/o Transwestern Commercial Services 0000 Xxxxxx Xxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000
Xxxxxxx, Xxxxx 00000
If and when included within the term "Landlord," as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for their receipt of notices
and payments to Landlord, if and when included within the term "Tenant" as used
in this instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address within the
continental United States for the receipt of notices and payments to Tenant.
All parties included within the terms "Landlord" and "Tenant," respectively,
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
26. Miscellaneous
a) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural unless the context otherwise requires.
b) The terms, provisions and covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein
18
expressly provided. Each party agrees to furnish to the other, promptly upon
demand a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease.
c) The captions inserted in this Lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this Lease, or any
provision hereof, or in any way affect the interpretation of this Lease.
d) Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
e) This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
f) All obligations of Tenant hereunder not fully performed as of the expiration
or earlier termination of the term of this Lease shall survive the expiration or
earlier termination of the term hereof, including, without limitation, all
payments obligations with respect to taxes and insurance and all obligations
concerning the condition of the Leased Premises. Upon the expiration or earlier
termination of the term hereof, and prior to Tenant vacating the Leased
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Leased Premises, including without limitation
all heating and air conditioning systems and equipment therein, in good
condition and working order. Tenant shall also, prior to vacating the Leased
Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for real estate taxes and insurance premiums for the year
in which the Lease expires or terminates. All such amounts shall be used and
held by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have been
determined and satisfied, as the case may be. Any security deposit held by
Landlord shall be credited against the amount payable by Tenant under this
Paragraph.
g) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
h) Because the Leased Premises are on the open market are presently being
shown, this Lease shall be treated as an offer with the Leased Premises being
subject to prior lease and such offer to withdrawal or non-acceptance by
Landlord or to other use of the Leased Premises
19
without notice, and this Lease shall not be valid or biding unless and until
accepted by Landlord in writing.
i) All referenced in this Lease to "the date hereof" or similar referenced
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
j) It is expressly stipulated and agreed that none of the obligations to be
undertaken by Landlord hereunder shall constitute any form of warranty, express
or implied, all such obligations being contractual covenants of performance.
Without limiting the generality of the foregoing, THERE IS NO WARRANTY AS TO
SUITABILITY, HABITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
GIVEN IN CONNECTION WITH THE LEASE. This disclaimer of express and implied
warranties and the provisions of Paragraph 8 under which Tenant assumes
responsibility for repairs, are provisions bargained for by the parties entering
in this Lease. Were warranties undertaken by the Landlord hereunder or were the
Landlord to have agreed to perform repairs beyond that contemplated to be
performed by Landlord hereunder, the economics of this Lease would have been
affected and it would require an increase in Minimum Rent from that payable
hereunder.
27. Exhibits and Attachment
All Exhibits, attachments, riders and addenda referred to in this Lease
are incorporated in this Lease and made a part hereof for all intents and
purposes.
28. Hazardous Materials
a) Tenant shall not, without Landlord's prior written consent, cause or permit
any Hazardous Materials (hereinafter defined) to be stored, used or disposed of
in or about the Leased Premises or Project by Tenant, its agents, employees,
contractors or invitees, nor shall the use which Tenant makes of the Leased
Premises result in any Hazardous Materials Contamination (hereinafter defined).
For purposes of this Lease, the following terms shall have the meanings herein
specified:
(1) "Hazardous Materials" shall mean (i) any "hazardous waste" as defined
by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.A.
(S)(S) 6901 et seq.), as amended from time to time and regulations
promulgated thereunder ("RCRA"); (ii) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C.A. (S)(S) 9601 et seq.) as amended from
time to time, and regulations promulgated thereunder ("CERCLA"); (iii)
any hazardous substances as defined by the Texas Natural Resource
Conservation Commission ("TNRCC"); (iv) asbestos, polychlorinated
biphenyls or other substances specifically regulated under the Toxic
Substances Control Act (15 U.S.C. (S)(S) 2601 et seq.) as amended from
time to time, and regulations promulgated thereunder ("TSCA"); (v)
pesticides specifically regulated under the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C.A. (S)(S) 125 et seq.), as
amended from time to time, and regulations promulgated thereunder
("FIFRA"); (vi) storage tanks, whether or not underground and whether
empty, filled or partially filled with any substance; (vii)
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the presence of oil, petroleum products, and their by-products; (viii)
any substance the presence of which in or about the Property is
prohibited by any governmental authority or which is hereafter
classified by any governmental authority as a hazardous or toxic waste,
material, substance or similar phraseology; and (ix) any other
substance which by any governmental authority requires special handling
or notification of any governmental authority in its collection,
storage, treatment, or disposal.
(2) "Hazardous Materials Contamination" shall mean the spillage, leakage,
emission or disposal of Hazardous Materials (whether presently existing
or hereafter occurring) in or about the buildings, facilities, soil,
groundwater, air or other elements in or about the Project or any other
property as a result of Hazardous Materials at any time emanating from
the Leased Premises.
b) Notwithstanding the foregoing, Tenant shall be permitted to store, use and
dispose of deminimis amounts of Hazardous Materials which are incidental to
Tenant's business so long as such amounts does not increase the Landlord's
insurance or change the occupancy class of the Building. Such Hazardous
Materials and all containers therefore, shall be stored, used and disposed of in
a manner that complies with all federal, state and local laws or regulations
applicable to such Hazardous Materials. Tenant shall be liable for all costs
and expenses related to the storage, use and disposal of such deminimis amounts
of Hazardous Materials incidental to Tenant's business and shall indemnify,
defend and hold Landlord harmless from any claims or liabilities relating
thereto.
c) At the commencement of each "Lease Year" (the term "Lease Year" as used in
this Lease shall mean any twelve (12) month period beginning with the
Commencement Date and each twelve (12) month period beginning on any anniversary
date thereof). Tenant shall disclose to Landlord the names and approximate
amounts of all Hazardous Materials which Tenant intends to store, use or dispose
of in or about the Leased Premises in the coming Lease Year. In addition, at
the commencement of each Lease Year (beginning with the second Lease Year),
Tenant shall disclose to Landlord the names and amounts of all Hazardous
Materials that to Tenant's knowledge were actually stored, used or disposed of
in or about the Leased Premises, if such materials were not previously
identified to Landlord at the commencement of the previous Lease Years.
d) Tenant shall give written notice to Landlord immediately upon Tenant's
acquiring knowledge of the presence of any Hazardous Materials in or about the
Leased Premises (subject to the provisions of paragraph b, hereof) or of any
Hazardous Materials Contamination with a full description thereof. Landlord
shall have the right, but not the obligation, without in any way limiting
Landlord's other rights and remedies under the Lease, to enter onto the Leased
Premises or to take such other actions as it deems necessary or advisable to
cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any
Hazardous Materials or Hazardous Materials Contamination on the Project
following receipt of any notice from any person or entity asserting the
existence of any Hazardous Materials or Hazardous Materials Contamination
pertaining to the Leased Premises or any part of the Project which, if true,
could result in an order, suit, imposition of a lien on the Project, or other
action and/or which, in Landlord's sole opinion, could jeopardize Landlord's
security under the Lease.
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e) TENANT HEREBY AGREES THAT TENANT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS
LANDLORD, ITS AGENTS AND EMPLOYEES FROM AND AGAINST ANY CLAIMS, DEMAND,
PENALTIES, FINES, LIABILITIES, SETTLEMENTS, DAMAGES, COSTS OR EXPENSES
(INCLUDING WITHOUT LIMITATION, ATTORNEYS' AND CONSULTANTS' FEES, COURT COSTS AND
LITIGATION EXPENSES) OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, CONTINGENT OR
OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO (a) THE PRESENCE, DISPOSAL,
RELEASE OR THREATENED RELEASE AND SUBSEQUENT REMEDIATION OF ANY HAZARDOUS
MATERIALS OR ANY HAZARDOUS MATERIALS CONTAMINATION FROM THE LEASED PREMISES; (b)
ANY PERSONAL INJURY (INCLUDING WRONGFUL DEATH) OR PROPERTY DAMAGE (REAL OR
PERSONAL) ARISING OUT OF OR RELATED TO SUCH HAZARDOUS MATERIALS OR HAZARDOUS
MATERIALS CONTAMINATION; OR (c) THE APPLICABILITY OF ANY LAWS RELATING TO
HAZARDOUS MATERIALS ON THE LEASED PREMISES OR CAUSED BY TENANT. THE PROVISIONS
OF THIS PARAGRAPH E, SHALL BE IN ADDITION TO ANY OTHER OBLIGATIONS AND
LIABILITIES TENANT MAY HAVE TO LANDLORD AT LAW OR IN EQUITY AND SHALL SURVIVE
THE EXPIRATION OF THIS LEASE OR THE TERMINATION THEREOF.
29. Mitigation of Damages
---------------------
a) General Duty to Mitigate. Both Landlord and Tenant shall each use
------------------------
commercially reasonable effort so mitigate any damages resulting from a default
of the other party under this Lease.
b) Landlord's Duty to Mitigate Damages. Landlord's obligation to mitigate
-----------------------------------
damages after a default by Tenant under this Lease shall be satisfied in full if
Landlord undertakes to lease the Leased Premises to another tenant (a
"Substitute Tenant") in accordance with the following criteria:
(i) Landlord shall have no obligation to solicit or entertain negotiations
with any other prospective tenants of or the Leased Premises until
Landlord obtains full and complete possession of the Leased Premises
including, without limitation, the final and unappealable legal right
to relet the Leased Premises free of any claim of Tenant.
(ii) Landlord shall not be obligated to offer the Leased Premises to a
prospective tenant when other premises in the Project suitable for
that prospective tenant's use are (or soon will be) available.
(iii) Landlord shall not be obligated to offer the Leased Premises to a
Substitute Tenant for a rental less than the current fair market
rental then prevailing for similar space in comparable
office/warehouse buildings in the same market area as the Project, nor
shall Landlord be obligated to enter into a new lease under other
terms and conditions that are unacceptable to Landlord under
Landlord's then current leasing policies for comparable space in the
Project.
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(iv) Landlord shall not be obligated to enter into a lease with any
proposed tenant whose use would:
a. Violate any restriction, covenant, or requirement contained in the
lease of another tenant of the Project;
b. Adversely affect the reputation of the Project; or
c. Be incompatible with the operation of the Project as a first-class
office/warehouse building.
(v) Landlord shall not be obligated to enter into a lease with any
proposed Substitute Tenant which does not have, in Landlord's
reasonable opinion, sufficient financial resources or operating
experience to operate the Leased Premises in a first-class manner.
(vi) Landlord shall not be required to expend any amount of money to altar,
remodel, or otherwise make the Leased Premises suitable for uses by a
proposed Substitute Tenant unless:
a. Tenant pays any such sum to Landlord in advance of Landlord's
execution of s Substitute Lease with such Substitute Tenant (which
payment shall not be in lieu of any damages or other sums to which
Landlord may be entitled as a result of Tenant's default under this
Lease); or
b. Landlord in Landlord's sole discretion, determines that any such
expenditure is financially justified in connection with entering into
any such Substitute Lease.
c) Effect of Releasing. Upon compliance with the above criteria regarding the
-------------------
releasing of the Leased Premises after a default by Tenant, Landlord shall be
deemed to have fully satisfied Landlord's obligation to mitigate damages under
this Lease and under any law or judicial ruling in effect on the date of this
Lease or at the time of Tenant's default, and Tenant waives and releases, to the
fullest extent legally permissible, any right to assert in any action by
Landlord to enforce the terms of this Lease, any defense, counterclaim, or
rights of set-off or recoupment respecting the mitigation of damages by
Landlord, unless and to the extent Landlord maliciously or in bad faith fails to
act in accordance with the requirements of this Paragraph 29.
d) Tenant's right. Tenant's right to seek damages from Landlord as a result of
--------------
a default by Landlord under this Lease, shall be conditioned on Tenant taking
all actions reasonably required under the circumstances to minimize any loss or
damage to Tenant's property or business or to any of Tenant's officers,
employees, agents, invitees, or other third parties that may be caused by any
such default of Landlord.
THE PARTIES EXECUTING this Lease represent and warrant that each such
party possess all lawful rights and authority to enter into this Lease; that
there are no judgments, decrees, or outstanding orders or any court prohibiting
the execution of this Lease; and that all required approvals, consents and
resolutions necessary to effectuate the terms and provisions of this Lease have
been obtained.
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EXECUTED in multiple counterparts, each of which shall have the full
force and effect of an original, on the latter of the dates mentioned below.
LANDLORD:
--------
TIAA REALTY, INC. A Delaware Corp.
By, Teachers Insurance and Annuity Association of
America, & New York corporation, its authorized
representative
By: /s/ Xxxx X. Xxxx
-----------------------------------
Its: Xxxx X. Xxxx
-----------------------------------
Date: Assistant Secretary
-----------------------------------
TENANT:
------
EDUCATIONAL PRODUCTS, INC.
By: /s/ Xxx Xxxxxx
-----------------------------------
Its: Vice President
-----------------------------------
Date: 4/15/99
-----------------------------------
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ADDENDUM ONE
TO LEASE AGREEMENT BETWEEN
TIAA REALTY, INC. A DELAWARE CORP. AND EDUCATIONAL PRODUCTS, INC.
1. BASE RENT Months 1-24 $29,636.00 per month
25-36 $31,548.00 per month
37-72 $32,504.00 per month
2. BUILDING STANDARD IMPROVEMENTS. As part consideration for Tenant's
acceptance of the Leased Premises "AS IS", "WHERE IS", Landlord will
provide Tenant a construction allowance specifically for leasehold
improvements to the Leased Premises of up to a total amount of
$78,000.00. It is agreed that Tenant shall submit all loans for such
leasehold improvements to Landlord for Landlord's approval and all
such leasehold improvements shall be constructed in accordance with
all terms and conditions of the Lease. The leasehold improvements
shall be in accordance with the attached scope of work identified in
the document attached hereto as Exhibit "B" or for other non
structural leasehold improvements to the Leased Premises. Any amount
in excess of $78,000.00 for Tenant improvements shall be at Tenant's
sole cost and expense. Such construction allowance of up to $78,000
shall be due and payable by Landlord to Tenant within thirty (30) days
of the completion of such leasehold improvements outlined herein. As
additional consideration for the construction allowance, Tenant
acknowledges that Tenant has accepted the Leased Premises in "AS IS",
"WHERE IS", condition.
3. EXTENSION OPTION ADDENDUM. Provided Tenant is not in default under
the terms of this Lease at the time that Tenant gives notice thereof,
Tenant shall have one (1) option to extend the term of this Lease for
a period of sixty (60) months, provided that Tenant give Landlord
written notice of the exercise of such option no earlier than January
1, 2005, and no later than March 31, 2006. The base rental rate
during such option period shall be the fair market rental rate of the
Leased Premises as determined by Landlord as of the commencement of
the option period. Landlord shall provide Tenant with such
determination in a written notice delivered to Tenant within thirty
(30) days after Landlord's receipt of Tenant's notice of Tenant's
exercise of the extension option. If Tenant disagrees with Landlord's
determination of the fair market rental rate as set forth in
Landlord's notice, Tenant shall notify Landlord thereof within thirty
(30) days after Tenant's receipt of Landlord's notice, and the giving
of such notice by Tenant shall cause the cancellation of the extension
option herein granted. If Tenant agrees with and accepts Landlord's
determination of the fair market rental rate for the Leased Premises
during the option period as set forth in Landlord's notice and
notifies Landlord of same or if Tenant fails to notify Landlord by the
above stated deadline that Tenant disagrees with Landlord's
determination as set forth in Landlord's notice, the extension option
herein granted and exercised by Tenant shall continue in full force
and effect and shall commence immediately
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upon the expiration of the original term of this Lease on January 1,
2006. All references in this Lease to the "term" of this Lease shall
be understood to apply to the original term of this Lease and also to
the option period referred to in this Addendum One. Paragraph 3 (after
Tenant has effectively exercised its option for same) unless, in any
case, such interpretation is expressly negated in this Lease or in any
amendment of this Lease, and all rights and obligations of Landlord
and Tenant during the option period shall be the same as the rights
and obligations of Landlord and Tenant during the original term of
this Lease, except to the extent they are expressly modified by the
terms of this Lease or any amendment hereto.
4. It is agreed and acknowledged that Xxx Xxxxxxx of Xxxxxxx & Company is
the broker of record (hereinafter referred to as "Broker") and has
represented Tenant in this lease transaction. In consideration for
the execution of this Lease, it is agreed that Broker shall be paid a
commission of 4% of the base rental consideration of this Lease
outlined in Paragraph four. One-half of such commission shall be paid
to Broker by Landlord within thirty (30) days from the date of full
execution of this Lease and the balance shall be paid upon Tenant's
occupancy. Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any claim by any other broker, agent, or
other person claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this lease
transaction.
If the Lease is renewed or extended or the Tenant leases additional
space in the Project from Landlord and Xxxxxxx & Company (the
"Broker") remains available to assist, is the exclusive representative
of Tenant as designated in a letter of representation, from the Tenant
and delivered to Landlord, and no other individual or entity is
designated by Tenant as Tenant's agent, the additional commission
amount shall be determined by Landlord and Broker (but in no event
less than 2% of the base rental consideration of such renewal or
expansion) at such time of such renewal or expansion and set forth in
writing and executed by both parties. Such commission will be paid in
a lump sum upon the earlier to occur or (i) a document stipulating the
renewal, extension, and/or expansion executed by Landlord and Tenant;
or (ii) the renewal or extension term commences or the additional
space is occupied, as applicable. If however, the Tenant appoints
another broker subsequent to the effective date of the lease, no
commission will be payable to Broker under this paragraph
notwithstanding anything to the contrary hereinbefore contained. If
the lease contains a cancellation right by the Tenant, the commission
shall be calculated only through the period until such cancellation
right is first exercisable. In the event no such cancellation right
is exercised, then the balance of any remaining unpaid commission
which is not paid because of the existence of such cancellation right
shall be paid at that time, however, if the Tenant's Lease contains a
cancellation fee that includes payment of all unamortized commissions
to Landlord at the time of cancellation, then Broker will be paid the
entire commission due for the full Lease Term at the time of the
Renewal, Extension or Expansion.
26
ADDENDUM ONE (continued)
TO LEASE AGREEMENT BETWEEN
TIAA REALTY, INC. A DELAWARE CORP. AND EDUCATIONAL PRODUCTS, INC.
5. EARLY OCCUPANCY. Landlord shall provide Tenant access to the Leased
Premises on December 1, 1999 subject to the availability of the Leased
Premises. If Tenant occupies the Leased Premises prior to the
Commencement Date, such occupancy shall be upon the same terms and
conditions contained in the Lease except no rent shall be due.
6. Landlord shall warrant the mechanical, electrical (excluding light
bulbs) and plumbing systems against any major repair in excess of
$250.00 unless such repairs are made necessary due to the negligence
of Tenant, its agents, employees, invitees or contractors through
December 15, 1999 and Tenant shall be solely responsible thereafter
for all such systems as required under the Lease.
7. PARKING. So long as Tenant is not in default on the terms of the
Lease, Landlord agrees to provide Tenant fifty (50) reserved parking
spaces as highlighted on the Site Plan attached hereto as Exhibit "A".
Tenant understands and agrees that Landlord shall have no
responsibility or obligation to police or monitor the reserved
parking. Tenant agrees to be fully responsible for the enforcement of
Tenant's reserved parking, consistent with all local laws and
ordinances. Additionally, Tenant agrees not to enforce the reserved
parking unreasonably so as to disturb or disrupt the other tenants in
the Project or such reserved parking shall be revoked by Landlord.
27
