HomeMy WebLinkAboutContract 31736-EC1 CITY SECRETARY
CONTRACT NO.�17 3h-EC
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GROUND LESSOR ESTOPPEL CERTIFICATE AND AGREEMENT
The undersigned, CITY OF FORT WORTH, a home rule municipal corporation organized
under the laws of the State of Texas ("Landlord"), as ground lessor under that certain Ground Lease
Agreement dated as of April 27, 2005, by and between Landlord and Omni Fort Worth Partnership, L.P.,
a Delaware limited partnership ("Borrower"), as ground lessee, a memorandum of which is recorded
under Instrument Number D205136078 in the Real Property Records of Tarrant County, Texas, as
amended and modified by First Amendment to Ground Lease dated as of October 30, 2007 (as amended
and modified, the "Lease"), conveying a leasehold interest in and to certain land described in Exhibit A
attached hereto, in Tarrant County, Texas (the "Premises"), has been advised that Borrower's interest
under the Lease will be assigned to The Prudential Insurance Company of America ("Prudential') as
security in connection with a mortgage loan that may be made by Prudential to Borrower (the "Loan").
The undersigned hereby certifies to and covenants and agrees with Prudential as follows, with full
knowledge that Prudential, and its successors and assigns (collectively "Lender"), are relying upon the
truth, accuracy and completeness of such statements and the covenants and agreements hereinafter
contained:
1. Landlord is the owner of the fee simple estate in the Premises. Landlord has leased the
Premises to Borrower pursuant to the terms of the Lease, a true and complete copy of which Lease is
attached hereto as Exhibit B and by this reference made a part hereof. There has been no change,
modification, release, waiver or similar action with respect to the Lease or any term or condition thereof.
There is no other agreement between Landlord and Borrower respecting the use and occupancy of the
Premises or any payments with respect thereto.
2. A Memorandum of Ground Lease with respect to the Lease has been recorded as set forth
above.
3. The term of the Lease commenced on August 10, 2006 (the date on which the permit for
the construction of the Hotel, as defined in the Lease, was obtained) and shall terminate on August 9,
2105. The "Rent Commencement Date" under the Lease was January 17, 2009 (the date on which the
Hotel opened). The Hotel opened January 17, 2009; therefore, the "Option Period" under the Lease will
commence on January 17, 2019 and expire on January 16, 2020. The current total annual rental payable
by Borrower to Landlord for the use and occupancy of the Premises is $283,500 per year payable
annually in advance on each anniversary of the Rent Commencement Date (subject to reimbursement
pursuant to the 380 Agreement, as defined in the Lease), which annual installments have been paid
through and including January 17, 2013.
4. The Lease is in full force and effect and free from any default by either party. Landlord
has no knowledge of any default under the Lease that presently exists or of any condition that, with the
passage of time or giving of notice or both, would become a default under the Lease, either by Borrower
or Landlord.
5. All improvements to the Premises required to be built by Borrower have been fully and
satisfactorily completed by Borrower, including, without limitation, the Hotel and the Hotel Garage (as
defined in the Lease); all allowances and contributions (if any) payable by Landlord for Borrower's
improvements (or for any other purpose) have been paid; and Borrower has accepted the Premises and is
in full occupancy thereof, paying rent and actively conducting its business therein.
6. As of the date hereof, Borrower has no outstanding offsets or credits
deductions from its rent obligations under the Lease, or"free rent" period entitlements. C R pRY
GCS SEGR E
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7. There is no security deposit under the Lease.
8. Landlord has not assigned, hypothecated or pledged its interest in the Lease, and has not
received any notice of any assignment, hypothecation or pledge by Borrower of its interest under the
Lease. In the event that Landlord assigns, pledges or hypothecates its interest in the Lease, Landlord will
give Lender proper written notice of the same.
9. Landlord has been informed that Borrower intends to execute and deliver a Deed of
Trust, Security Agreement and Financing Statement, in favor of Lender, as mortgagee (the
"Instrument"), covering, among other things, all of Borrower's interest in the Premises and the Lease.
Landlord hereby consents to Borrower's execution and delivery of the Instrument to Lender and further
consents to the recordation of the Instrument in the applicable real property records. Landlord also
consents to the execution and delivery by Borrower, and the filing and/or recording in the appropriate
public records, of such additional documents and instruments as Lender may deem necessary or desirable
to establish, perfect and maintain a first-priority lien upon and against Borrower's leasehold interests in
the Premises, including, but not limited to, Uniform Commercial Code financing statements and such
other documents, instruments and agreements as Lender may hereafter deem necessary or desirable in
connection with the creation, grant, maintenance or enforcement of said lien, including, but not limited to,
any such documents and instruments executed in connection with any renewal, extension and/or
modification of such lien (collectively, the "Loan Documents"). In the event of any default by Borrower
under the Lease, Lender shall have the right, but not the obligation, to perform Borrower's covenants and
obligations under the Lease or to cure any defaults of Borrower or exercise any election, option or
privilege conferred upon Borrower by the terms of the Lease, and Landlord shall accept performance by
or at the instance of Lender as if the same had been made by Borrower. Landlord consents to the exercise
by Lender of any and all rights and remedies permitted under the Instrument and the other Loan
Documents in connection with the Loan, and to the exercise of such additional legal and equitable rights
and remedies as may be available to Lender (including, without limitation, foreclosure, exercise of any
power of sale, succession by deed in lieu or other conveyance), in the event of a default or an event of
default under the Loan.
10. Landlord expressly agrees that neither(i)the execution, delivery and/or recording of the
Instrument, nor the execution,delivery and/or recording or filing of any other instrument or agreement by
Borrower or Lender in connection with the Loan, nor(ii)any exercise of any rights or remedies available
to Lender under the Instrument or the other Loan Documents or at law or equity to the extent consistent
with the terms and conditions of the Lease or the provisions of this Estoppel Certificate, nor(iii)any other
matters to which Landlord has given its express consent herein, shall be deemed to constitute a default or
an event of default under the Lease.
11. Landlord hereby expressly recognizes(i)Lender as a permitted leasehold mortgagee for
all purposes under the Lease, and(ii)the Instrument as a permitted leasehold mortgage for all purposes
under the Lease. Further, Landlord hereby(a)approves Lender and/or any affiliate of Lender(or any
other party purchasing the Premises at foreclosure of the Instrument or pursuant to any power of sale or
any deed in lieu or other conveyance so long as such party assumes in writing all of Borrower's
obligations as Lessee under the Lease relating to the Hotel)as a permitted purchaser of the Premises for
all purposes under the Lease, and(b)agrees that Lender may(but shall not be required to)exercise and/or
consummate the Option(as defined in the Lease); provided, however, that Lender shall not be subject to
the Put Option(as defined in the Lease) unless Lender shall have succeeded to Borrower's interest under
the Lease or Lender has entered into a new lease pursuant to Section 14 or 16 hereof.
12. No agreement between Landlord and Borrower modifying, amending, canceling,
terminating or surrendering the Lease, or any part thereof, shall be effective without the prior written
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consent of Lender, which may be granted or denied in Lender's sole and absolute discretion, and any such
action taken without Lender's consent shall not be binding upon Lender.
13. The Lease shall be assignable to a purchaser at a foreclosure sale (or by power of sale,
deed in lieu of foreclosure or other conveyance) without the prior consent of Landlord, provided that such
assignee shall be subject to all of the terms and conditions as "Lessee" under the Lease. If Lender or any
other party succeeds to the interest of Borrower as Lessee under the Lease in any manner, including but
not limited to foreclosure, exercise of any power of sale, succession by deed in lieu or other conveyance
(a"Succession"), Lender(or such other party)shall not be liable for the performance of the obligations of
Borrower under the Lease, except for those obligations which arise during the period of Lender's or such
entity's or person's ownership of Borrower's interest under the Lease. Upon any Succession, the liability
of Lender (or any other party taking under a Succession) shall be limited to its interest in the Premises.
Upon any subsequent sale, lease, assignment or other transfer of Borrower's interest under the Lease,
Lender(or any other party taking under a Succession)shall be relieved of all further liability arising under
the Lease except for defaults that arose before such sale, lease, assignment or other transfer of Borrower's
interest under the Lease and during such party's period of ownership which remain uncured.
14. Landlord agrees that upon the early termination of the Lease for any reason (including,
without limitation, any termination or rejection of the Lease by Borrower or its trustee pursuant to Section
365(h) of the Federal Bankruptcy Code, 11 U.S.C. Sections 101, et M., as amended), at Lender's
request, Landlord shall enter into a new lease with Lender or any affiliate of Lender on the same terms
and conditions set forth in the Lease (including rights of renewal and options to purchase, if any), for the
then remaining term of the Lease following the termination of the Lease or, if applicable, the rejection of
the Lease by a bankruptcy trustee under applicable laws, in which case Lender (or its affiliate) shall be
obligated to perform the obligations of Borrower under the Lease, except for any indemnification
obligations with respect to matters occurring or arising prior to the execution and delivery of such new
lease. Landlord shall accept Lender's (or its affiliate's) request for a new lease at any time after Lender
receives notice of termination or rejection, as long as Lender (or its affiliate) proceeds to acquire or sell
Borrower's interest in the Lease by foreclosure, power of sale, deed in lieu or other appropriate means in
a reasonably timely manner, subject to Lender's obtaining any relief from the automatic stay in
bankruptcy as may be necessary to deliver such notice or accomplish such acquisition or sale by
foreclosure, power of sale, deed in lieu or other appropriate means. Lender (or its affiliate) shall not be
obligated to Landlord to perform the obligations of Borrower under the Lease unless and until Lender or
its affiliate,as the case may be, enters into such new lease.
15. Lessor acknowledges that the provisions of the Instrument and the other Loan Documents
relating to the disposition of any insurance proceeds resulting from casualties to the Premises and to
condemnation awards to Borrower for the taking of some or all of its leasehold estate in the Premises
and/or its ownership interest in the improvements located thereon shall govern the disposition thereof. To
the extent that Landlord may have any claim to or rights in such proceeds and awards pursuant to the
Lease, Landlord hereby subordinates all such claims and rights to such proceeds and awards. If Lender
enters into or approves any adjustment or settlement with respect to such proceeds, then Landlord shall
hereby be deemed to have approved such settlement or adjustment.
16. Notwithstanding anything to the contrary in the Lease, Landlord agrees that in the event
of any default by Borrower under the Lease, or in the event Borrower shall fail to perform or observe any
of the terms, conditions or agreements required to be performed by Borrower pursuant to the Lease,
Landlord shall give written notice thereof to Lender, at the address set forth below(or such other address
as Lender may indicate by notice hereafter to Landlord in writing) at the same time as Landlord provides
notice to Borrower. Lender shall have the right (but not the obligation) to cure any default within thirty
(30) days following receipt of such notice from Landlord; and Landlord shall not take any action with
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respect to such default under the Lease, including, without limitation, any action intended to terminate,
rescind or void the Lease, for such period of thirty (30) days after receipt of such written notice by
Lender, provided, however, that in the case of any non-monetary default which cannot with diligence be
cured within said thirty (30) day period, if Lender shall, following written notice to Landlord prior to the
expiration of such thirty (30) calendar day period, proceed promptly to initiate measures to cure such
default and thereafter prosecute the curing of such default with diligence and continuity, the time within
which such default may be cured shall be extended for such period as may be necessary to complete the
curing of such default; and provided further that if Lender is prevented by judicial process, administrative
process, law, ordinance, regulation, statute or rule from entering the Premises to cure the non-monetary
default, the non-monetary default cure period shall run from the date that Lender is permitted to enter the
Premises to cure said non-monetary default. Without limiting the foregoing, Landlord agrees that no
default and no termination of the Lease in connection therewith shall be effective unless notice shall first
have been given to Lender in accordance with the terms of this agreement. Landlord further agrees that,
in the event of any uncured default by Borrower under the Lease, which uncured default would result in
the termination of the Lease, and upon Lender's receipt of notice of such default from Landlord as
provided for in this Paragraph 16, if Lender (or its affiliate) cures all defaults by Borrower under the
Lease that Lender is capable of curing (but neither Lender nor any affiliate shall be required to cure any
default by Borrower under the Lease that Lender is legally incapable of curing, such as a bankruptcy),
then Lender (or its affiliate) shall be entitled to a new lease under the same terms and conditions as the
Lease for the balance of the unexpired term of the Lease, in which case Lender (or its affiliate) shall be
obligated to perform the obligations of Borrower under the Lease, except for any indemnification
obligations with respect to matters occurring or arising prior to the execution and delivery of such new
lease.
17. Landlord shall deliver to Lender copies of each notice to Borrower and any sublessees,
successors and assigns (including, without limitation, default notices and notices under Article IX
thereof), simultaneously with delivery of such notice thereto,at the following address:
The Prudential Insurance Company of America
c/o Prudential Asset Resources
2100 Ross Avenue, Suite 2500
Dallas, Texas 75201
Attention: Asset Management Department
Reference Loan No. 706108999
with a copy to:
The Prudential Insurance Company of America
c/o Prudential Asset Resources
2100 Ross Avenue, Suite 2500
Dallas,Texas 75201
Attention: Legal Department
Reference Loan No. 706108999
All notices to Landlord hereunder shall be delivered to:
City of Fort Worth
1000 Throckmorton
Fort Worth,Texas 76102
Attn: City Manager
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with a copy to:
City of Fort Worth
1000 Throckmorton
Fort Worth,Texas 76102
Attn: City Attorney
No notice to Borrower under the Lease shall have any force or effect whatsoever unless and until
such copies are delivered to Lender as provided in this Paragraph 17.
18. There are no bankruptcy, reorganization, arrangement, insolvency or liquidation actions
or proceedings (or any other proceeding for the relief of debtors), whether voluntary or otherwise,
pending against Landlord under the bankruptcy, debtor reorganization, moratorium or similar laws of the
United States, any state thereof or any other jurisdiction (any of the foregoing, an "Insolvency
Proceeding"). Landlord hereby covenants and agrees to provide Lender with immediate written notice in
the manner provided for in Paragraph 17 above if Landlord's interest in the Premises shall at any time
become an asset in any Insolvency Proceeding.
19. Landlord agrees that there shall be no merger of estates if Borrower acquires a fee
interest in the Premises or if Landlord, or any successor-in-interest to Landlord, acquires Borrower's
leasehold interest in the Premises. In the event both Landlord's and Borrower's estate under the Lease or
any portion thereof which constitutes a part of the Premises shall at any time become vested in Landlord,
the Instrument shall not be destroyed or terminated by application of the doctrine of merger unless Lender
so elects as evidenced by recording a written declaration so stating and, unless and until Lender so elects,
Lender shall continue to have and enjoy all of the rights and privileges of Lender as to the separate
estates.
20. This Ground Lessor Estoppel Certificate and Agreement shall be binding upon the
undersigned and its successors and assigns, and shall inure to the benefit of Borrower and Lender and
their respective successors and assigns. As used herein, the term "Lender" shall mean The Prudential
Insurance Company of America and its successors and assigns, including any subsequent holder of the
Loan.
[THIS SPACE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Landlord has executed this Ground Lessor Estoppel Certificate and
Agreement on the day and year set forth below.
LANDLORD:
ATTEST: CITY OF FORT WORTH
By: rite L�M��._---•
City Secretary ,r, *0000000c, n� Name: Fernando Costa
ja �0 °o , 0�1itle: Assistant City Manager
ate:
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APPROVED AS TO FORM ANA1 TY: o dd
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0000000°°° b
By:
Name: Peter Vaky
Title: Deputy City Attorney
M&C C-260751-29-13
OFFICIAL RECORD
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CITY SECRETARY
Prudential Loan No. 706108999 FT.WORTH,TX
Omni Fort Worth—Ground Landlord Estoppel Certificate
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f
Exhibit A
Legal Description
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Exhibit A
Lot 1, Section 8R, FORT WORTH CONVENTION CENTER ADDITION, an Addition to the City of
Fort Worth,Tarrant County,Teas, according to plat recorded in Cabinet A, Slide 11331, Deed Records of
Tarrant County,Texas.
Exhibit B
Lease
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CITY SECRETARY
CONTRACT No.
GROUND LEASE AGREEMENT
by and between
THE CITY OF FORT WORTH, TEXAS,
as Lessor
and
OMNI FORT WORTH PARTNERSHIP, L.P.,
as Lessee
Dated: April 27, 2005
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
SectionI.I. Definitions........................................................................................................ i
ARTICLE II REPRESENTATIONS AND WARRANTIES 4
Section 2.1. Representations and Warranties by Lessor.................................................. 4
Section 2.2. Representations and Warranties by Lessee.................................................. 5
ARTICLE III LEASE OF LEASED PREMISES 6
Section3.1. Term................................................................................................................. 6
Section3.2. Rent.................................................................................................................. 6
Section3.3. Permitted Uses................................................................................................. 6
Section 3.4. Compliance with Environmental and Other Laws....................................... 6
Section3.5. Title.............................».................................................................................... 7
Section 3.6. Obligations of Lessee Unconditional.............................................................. 7
ARTICLE IV BEGINNING CONDITION,ALTERATIONS AND IMPROVEMENTS 8
Section 4.1. Improvements and Alterations...................................................................... 8
Section 4.2. Compliance with Regulatory Requirements................................................. 8
Section 4.3. Lessor's Right of Inspection........................................................................... 8
Section4.4. Lessor's Work.................................................................................................. 8
Section4.5. Replat............................................................................................................... 8
ARTICLE V ADDITIONAL COVENANTS OF LESSOR AND LESSEE 9
Section 5.1. Maintenance of the Leased Premises............................................................. 9
Section 5.2. Taxes and Other Charges............................................................................... 9
Section 5.3. Liens and Encumbrances................................................................................ 9
Section 5.4. Warranty of Peaceful Possession.......................... ........ 10
...............................
Section 5.5. Surrender of Possession................................................................................ 10
Section5.6. Operation....................................................................................................... 10
Section 5.7. Condition of Leased Premises...................................................................... 10
Section5.8. Signage........................................................................................................... 10
Section 5.9. Hazardous Materials..................................................................................... 10
Section 5.10. Notification of Events of Default.................................................................. 12
ARTICLE VI INSURANCE 12
Section 6.1. Lessee's Insurance......................................................................................... 12
Section 6.2. Intentionally Deleted..................................................................................... 14
Section 63. Evidence of Insurance................................................................................... 14
Section 6.4. Insurance Requirements for Lessee's Contractors and Subcontractors.. 14
Section6.5. Release and Waiver....................................................................................... 14
Section 6.6. Survival; Right to Enforce............................................................................ 14
ARTICLE VII INDEMNIFICATION 15
Section 7.1. Indemnification............................................................................................. 15
44102531 V10-G ROUND LEASE(LAST REVISED4J11,05) Page i of ii
ARTICLE VIII ASSIGNMENTS; LEASEHOLD MORTGAGES 16
Section 8.1. Assignment and Subleasing.......................................................................... 16
Section 8.2. Sublease of Other Improvements; Conveyance of Units........................... 16
Section 8.3. Intentionally Deleted..................................................................................... 16
Section 8.4. Intentionally Deleted..................................................................................... 16
Section 8.5. Intentionally Deleted..................................................................................... 16
Section 8.6. Leasehold Mortgages.................................................................................... 16
ARTICLE IX OPTION TO PURCHASEIPUT 17
Section 9.1. Lessee's Option to Purchase......................................................................... 17
Section 9.2 Lessor's Put Option....................................................................................... 17
Section 9.3. Terms and Conditions of Purchase/Put....................................................... 17
Section 9.4. Reimbursement of Purchase Price............................................................... 18
ARTICLE X DEFAULT 18
Section 10.1. Events of Default........................................................................................... 18
Section 10.2. Remedies of the Lessor on Default............................................................... 18
Section 10.3. Intentionally Deleted..................................................................................... 18
Section 10.4. No Remedy Exclusive.................................................................................... 18
Section 10.5. No Additional Waiver Implied By One Waiver; Consents to Waiver...... 18
Section 10.6. Delay not a Waiver........................................................................................ 18
Section 10.7. Default by Lessor........................................................................................... 19
Section10.8. Arbitration..................................................................................................... 19
Section 10.9. Injunctive/Ancillary/Emergency Relief....................................................... 20
Section 10.10. Lessor's Remedy for Failure to Commence Construction of Hotel.......... 20
Section 10.11. Acknowledgment of Automatic Termination............................................. 20
ARTICLE XI MISCELLANEOUS 20
Section 11.1. Amendments,Changes and Modification................................................... 20
Section 11.2. Applicable Law.............................................................................................. 20
Section11.3. Severability.................................................................................................... 20
Section 11.4. Notices and Demands.................................................................................... 20
Section 11.5. References...................................................................................................... 21
Section 11.6. Successors and Assigns................................................................................. 21
Section 11.7. Multiple Counterparts.................................................................................. 21
Section11.8. Recordation................................................................................................... 21
Section11.9. Right of Entry................................................................................................ 21
Section11.10. Estoppel Agreements.................................................................................... 21
EXHIBIT A- DESCRIPTION OF THE LAND COMPRISING THE LEASED PREMISES
EXHIBIT B- PERMITTED EXCEPTIONS
EXHIBIT C- PLAT
EXHIBIT D- MEMORANDUM OF LEASE
EXHIBIT E- MEMORANDUM OF COMMENCEMENT DATE
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GROUND LEASE AGREEMENT
This Ground Lease Agreement ("Lease") is made and entered into as of April 27, 2005 (the "Effective
Date"),by and between the City of Fort Worth,Texas("Lessor"), a Texas home-rule city, and Omni Fort Worth
Partnership,L.P.("Lessee"), a limited partnership organized and existing under the laws of the State of Delaware;
WITNESSETH :
WHEREAS, Lessor owns in fee simple that certain tract of real property described in Exhibit "A",
together with any improvements located thereon and appurtenances thereto(herein called the"Leased Premises").
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor, the Leased
Premises,subject to and upon the terms and conditions set forth herein.
WHEREAS, Lessee has agreed to construct and operate an approximate 600-room luxury hotel to serve
Lessor's Convention Center.
WHEREAS, Lessee shall also construct a parking garage servicing the hotel and may, at its option, also
construct other improvements on the Leased Premises which compliment the hotel use, such as, without limitation,
residential condominiums and retail space.
NOW THEREFORE, in consideration of the rents herein required to be made by Lessee, and the
covenants and agreements hereinafter contained to be kept and performed by Lessee, Lessor does by these presents
demise, lease and let unto Lessee, for the term and upon the conditions hereinafter stated, the Leased Premises,
UNDER AND SUBJECT,however,to the Permitted Exceptions(as hereinafter defined);
SUBJECT to the following terms and conditions:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. In addition to terms defined elsewhere in this Lease, the following terms,
for the purposes of this Lease,shall have the meanings set forth below:
"Act"shall have the meaning ascribed to such term in Section 3.5(c).
"Act of Bankruptcy"means the commencement of a bankruptcy or similar proceeding by or against Lessee,
including, but not limited to, the following: the making of a general assignment for the benefit of creditors, the
commencing of a voluntary or involuntary case under the Federal Bankruptcy Code or the filing of a petition
thereunder, petitioning or applying to any tribunal for the appointment of, or the appointment of, a receiver,or any
trustee for Lessee or for a substantial part of the assets of the Lessee, commencing any proceeding under any
bankruptcy, reorganization, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in
effect.
"Acquisition Closing Date"shall have the meaning ascribed to such term in Section 93.
"Applicable Laws"shall have the meaning ascribed to such term in Section 2.1(f).
"Business Day" means any day which is not a Sunday, a Saturday, a legal holiday or a day on which
banking institutions in the City of Fort Worth,Texas,are authorized by law or executive order to close.
"Commencement Date" means the date upon which Lessee obtains a building permit from the applicable
governmental authorities relating to the construction of the hotel.
GROUND LEASE AGREEMENT- Page I
"Concession Agreement" means that certain Contract for Food and Beverage Service at the Fort Worth
Convention Center of even date herewith,by and between Lessor and Lessee.
"Convention Center" means the Fort Worth Convention Center, located at 1201 Houston Street, Fort
Worth,Texas.
"County"means the County of Tarrant,Texas.
"Damages"shall have the meaning set forth in Section 7.1.
"Declarations"shall have the meaning ascribed to such term in Section 3.5(c).
"Development Documents" means this Lease, the 380 Agreement, the Room Block Agreement, the Tax
Abatement Agreement, the Concession Agreement and any and all other agreements between Lessor and Lessee
relating to the development and operation of the Hotel and its relationship to the Convention Center.
"Effective Date"shall have the meaning ascribed to such term in the fust paragraph of this Lease.
"Environmental Law" means applicable federal, state, and local laws relating to protection of the public
health, welfare, and the environment, including, without limitation, those laws relating to the storage, handling and
use of chemicals and other hazardous materials, those relating to the generation, processing, treatment, storage,
transport, disposal, or other management of waste materials of any kind, and those relating to the protection of
environmentally sensitive areas.
"Event of Default"shall have the meaning ascribed to such term in Section 10.1.
"Fair Market Rental Value of the Leased Premises" shall have the meaning ascribed to such term in
Section 3.2.
"Fair Market Value of the Leased Premises"shall have the meaning ascribed to such term in Section 9.1.3.
"Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public
enemy,orders of any kind of the government of the United States of America,or of any state thereof,or any civil or
military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes,
storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions,
nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or transportation, or
any other cause not reasonably within the control of the party claiming inability to perform due to such cause.
"Guaranty' means that certain Guaranty to be executed by TRT Holdings, Inc., as guarantor, as further
described in the 380 Agreement.
"Hazardous Materials"shall have the meaning ascribed to said term in Section 5.9.
"Hotel" means the approximate 600-room hotel to be constructed by Lessee on the Leased Premises. As
used herein,the term"Hotel"specifically excludes the Residential Unit and the Hotel Garage.
"Hotel Garage"shall have the meaning ascribed to such term in Section 3.5(c).
"Hotel Parking Unit"shall have the meaning ascribed to such term in Section 3.5(c).
"Hotel Unit"shall have the meaning ascribed to such term in Section 3.5(c).
"Improvements" means the Hotel, Hotel Garage, Residential Unit, and all other improvements that may be
constructed upon the Leased Premises by Lessee from time to time.
"Indemnitee"and"Indemnitees"shall have the meaning ascribed to those terms in Section 7.1.1.
GROUND LEASE AGREEMENT- Page 2
"Leased Premises" shall have the meaning ascribed to such term in the first recital of this Lease. As used
herein, the term "Leased Premises" specifically excludes any Improvements. The legal description of the Leased
Premises is subject to change in accordance with Section 4.5 hereof.
"Lessee"means the party defined as"Lessee" in the first paragraph of this Lease,or any successor thereto
or assignee thereof.
"Lessor" means the party defined as"Lessor" in the fust paragraph of this Lease, or any successor thereto
or assignee thereof.
"Lessor's Work"shall have the meaning ascribed to such term in Section 4.4.
"Master Declaration"shall have the meaning ascribed to such term in Section 3.5(c).
"Master Units"shall have the meaning ascribed to such term in Section 3.5(c).
"Option"shall have the meaning ascribed to such term in Section 9.1.1.
"Option Period"shall have the meaning ascribed to such term in Section 9.1.2.
"Permitted Exceptions" means those certain liens, encumbrances, easements, restrictions and other matters
of record more specifically set forth in Exhibit"B"attached hereto and incorporated herein by reference.
"Person" means any association, individual, corporation, governmental entity, partnership, joint venture,
business association,estate or any other organization or entity.
"Prohibited Transfer Period"shall have the meaning ascribed to such term in Section 8.1.
"Put Option"shall have the meaning ascribed to such term in Section 9.2.
"Release"or"Released"shall have the meaning ascribed to such terms in Section 5.9(a).
"Rent Commencement Date"shall have the meaning ascribed to such term in Section 3.2.
"Rentals"shall have the meaning ascribed thereto in Section 3.2.
"Residential Declaration"shall have the meaning ascribed to such term in Section 3.5(c).
"Residential Parking Unit"shall have the meaning ascribed to such term in Section 3.5(c).
"Residential Sub-Units"shall have the meaning ascribed to such term in Section 3.5(c).
"Residential Unit"shall have the meaning ascribed to such term in Section 3.5(c).
"Response Action"shall have the meaning ascribed to such term in Section 5.9(b)(iii).
"Room Block Agreement" means that certain Room Block & Meeting Space Agreement of even date
herewith by and between Lessor and Lessee, relating to the reservation of Hotel guest rooms for specific periods of
time for attendees,participants and planners of conventions and/or trade shows at the Convention Center.
"State"means the State of Texas.
"Subsidiary" means, as to any Person, any corporation, association or other business entity in which such
Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient equity
or voting interests to enable it or them (as a group)ordinarily, in the absence of contingencies, to elect a majority of
the directors (or Persons performing similar functions) of such entity, and any partnership or joint 'venture if more
GROUND LEASE AGREEMENT- Page 3
than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries.
"Tax Abatement Agreement" means that certain Tax Abatement Agreement of even date herewith by and
between Lessor and Lessee,relating to certain tax abatements granted to Lessee in connection with the Hotel.
"Taxes"shall have the meaning ascribed to such term in Section 5.2.
"Term"shall have the meaning ascribed thereto in Section 3.1.
"380 Agreement"means that certain Economic Development Program Agreement of even date herewith by
and between Lessor and Lessee,relating to the development and operation of the Hotel.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties by Lessor. Lessor makes the following
representations and warranties as the basis for the undertakings on its part herein contained:
(a) Lessor has taken all action and has complied with all provisions of law with respect to the
execution, delivery and performance of each of the Development Documents to which it is a party and the due
authorization of the consummation of the transactions contemplated thereby, and each of the Development
Documents to which it is a party has been duly executed and delivered by, and constitutes the valid and legally
binding obligation of, Lessor,enforceable against Lessor in accordance with their respective terms.
(b) Neither the execution and delivery of any of the Development Documents to which it is a party,
the consummation of the transactions contemplated thereby, nor the fulfillment of or compliance with the terms and
conditions of the Development Documents, violate any law or regulation,or any judicial order,judgment,decree,or
injunction, conflict with or results in a breach of any of the terms, conditions or provisions of any restriction,
ordinance or any agreement or instrument to which Lessor is now a party or by which it is bound, or constitute a
default under any of the foregoing,or result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of Lessor under the terms of any instrument or agreement.
(c) Lessor has good and indefeasible title to the Leased Premises, subject only to the Permitted
Exceptions.
(d) There are no third parties in possession of any portion of the Leased Premises.
(e) There is no suit, action, legal or other proceeding pending, or to the best of Lessor's actual
knowledge,threatened, which materially and adversely affects the Leased Premises.
(1) To the best of the actual knowledge of Kirk Slaughter,the Leased Premises is not currently subject
to(i)any existing,pending or threatened investigation or inquiry by any governmental authority,or(ii)any remedial
obligations under any applicable law, statute, ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire underwriters (or other body exercising similar functions), or any
restrictive covenant or deed restriction affecting the Leased Premises which would prevent Lessee from developing
and using the Leased Premises for its intended use, including, without limitation, all applicable building codes, fire
codes,health codes, water codes, flood disaster laws and health and applicable Environmental Laws and regulations
(hereinafter sometimes collectively called the "Applicable Laws")_ Lessor has received no notice from any
municipal, state, federal or other governmental authority of any violation of any Applicable Laws issued in respect
of the Leased Premises which has not been heretofore corrected, and to the best of the actual knowledge of Kirk
Slaughter,no such violation exists.
(g) To the best of Lessor's actual knowledge, there is no judicial or other action by adjacent
landowners which would adversely affect, prevent, or limit the use of the Leased Premises as contemplated by
Lessee.
GROUND LEASE AGREEMENT-Page 4
(h) The Leased Premises is located within the Central Business("H")District and is not subject to any
other zoning ordinance or classification. The use of the Leased Premises for the operation of the Hotel and the other
purposes contemplated herein is permitted within the Central Business ("H") District, subject to all rules and
regulations governing the Urban Design District-Downtown.
Section 2.2. Representations and Warranties by Lessee. Lessee makes the following
representations and warranties as the basis for the undertakings on its part herein contained:
(a) Lessee is a limited partnership organized under the laws of Delaware and qualified to do business
in the State, is in good standing in the State, has power to execute and enter into each of the Development
Documents to which it is a party and by proper corporate action has been duly authorized to execute and deliver
such Development Documents.
(b) Each of the Development Documents to which Lessee is a party have been duly executed and
delivered by duly authorized officers of the Lessee, and constitute valid and binding obligations of Lessee,
enforceable against Lessee in accordance with their respective terms.
(c) No approvals or consents,other than those that have been or will in normal course be obtained,are
necessary in order for Lessee to execute and deliver any of the Development Documents to which it is a party.
(d) There is no litigation now pending or, to the best of Lessee's actual knowledge, threatened,
challenging the corporate existence of the Lessee and there is no pending, or to the best of Lessee's actual
knowledge, threatened action or proceeding before any court or administrative agency that individually (or in the
aggregate in the case of any group of related lawsuits) is expected to have a material adverse effect on the financial
condition of the Lessee or the ability of the Lessee to perform its obligations under any of the Development
Documents to which it is a party.
(e) The execution and delivery of any of the Development Documents to which it is a party, the
consummation of any of the transactions contemplated thereby or compliance with the terms and provisions thereof
do not and will not (i) violate any law or regulation or any order or decree of any court or governmental
instrumentality applicable to Lessee or any of its Subsidiaries,which violation would materially and adversely affect
the ability of Lessee to perform its obligations under any of the Development Documents to which it is a party, (ii)
conflict with or would result in the breach of, or constitute a default under, any of the Development Documents to
which it is a party, or any other contract, lease, indenture, loan agreement, mortgage, deed of trust or other
agreement or instrument to which Lessee is a party or by which Lessee or its property may be bound, which conflict,
breach or default would materially and adversely affect the ability of Lessee to perform its obligations under any of
the Development Documents to which it is a party; or(iii) violate the charter,articles of incorporation or bylaws of
Lessee. No consent, approval authorization or order of any governmental or regulatory authority, agency,
commission or board of arbitration was or will be required in connection with the execution and delivery by Lessee
of any of the Development Documents to which it is a party or the consummation of the transactions contemplated
thereby or compliance with the terms and provisions thereof,except such as have been obtained and are in full force
and effect.
(f) Lessee has obtained all material certificates, licenses and permits from all public authorities, both
federal and state, required to enable Lessee to carry on its business as it is now conducted and to enter into any of
the Development Documents to which it is a party.
(g) To the best of Lessee's actual knowledge,no event has occurred and no condition currently exists,
which constitutes or may, with the passage of time or the giving of notice, or both, constitute an Event of Default
with respect to or on the part of Lessee under any of the Development Documents to which it is a party or that could
materially adversely affect the ability of Lessee to perform its obligations thereunder.
GROUND LEASE AGREEMENT- Page 5
ARTICLE III
LEASE OF LEASED PREMISES
Section 3.1. Term. This Lease shall be effective as of the date hereof,but the term (the"Term")of
this Lease shall not commence until the Commencement Date and shall continue for ninety-nine (99) years
thereafter, unless earlier terminated in accordance with the terms hereof; provided, however, that the provisions of
Sections 5.9 and 7.1 hereof shall survive any termination of this Lease. Lessor shall deliver the Leased Premises to
Lessee on the Commencement Date with the Lessor's Work described in Section 4.4 completed. On or about the
Commencement Date, Lessor and Lessee shall execute a Memorandum of Commencement Date in the form of
Exhibit"E"attached hereto confirming the Commencement Date. Prior to the Commencement Date, Lessor shall
have the right to continue to use the Leased Premises for a parking lot(and for no other purpose without Lessee's
consent). Lessee shall have the right to enter the Leased Premises at any time prior to the Commencement Date as
may be necessary to prepare for Lessee's intended use and development of the Leased Premises, so long as such
entry does not unreasonably interfere with Lessor's use of the Lease Premises. Lessee's obligations under this Lease
(including, without limitation, Lessee's obligation to maintain insurance, indemnify Lessor, and pay any taxes or
other expenses)will not accrue prior to the Commencement Date.
Section 3.2. Rent. During the Term of this Lease,Lessee shall pay to Lessor a rental(the"Rentals")
payable without demand, commencing on the date the Hotel opens for business(the"Rent Commencement Date").
Rentals shall be paid annually in advance, due each year on or before the anniversary of the Rent Commencement
Date. The annual amount of Rentals for the first five (5) full years shall be $283,500.00. On the fifth (5'h)
anniversary of the Rent Commencement Date,and thereafter at five(5)year intervals, the amount of Rentals may,at
Lessor's sole option, be adjusted in accordance with the Consumer Price Index for all Urban Consumers, published
by the Bureau of Labor Statistics of the United States Department of Labor for Dallas-Fort Worth, Texas, All Items
(1982-84=100)(the"Consumer Price Index"),or any successor index thereto as hereinafter provided. If publication
of the Consumer Price Index is discontinued, or if the basis of calculating the Consumer Price Index is materially
changed, then Lessor will substitute for the Consumer Price Index comparable statistics as computed by an agency
of the United States Government or, if none,by a substantial and responsible periodical or publication of recognized
authority most closely approximating the result which would have been achieved by the Consumer Price Index. The
adjustment will be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which
is the level of the Consumer Price Index for the current calendar year (i.e., the calendar year preceding the
adjustment year) (the "Current Index Number"), and the denominator of which is the level of the Consumer Price
Index for the calendar year in which the effective date of this Lease occurs (the "Base Number Index"). For
example, assuming the Base Index Number equals 177.7, and the Current Index Number equals 201.0, the Rentals
for the sixth (6`h) through tenth (10'h) years of this Lease would increase in accordance with the Consumer Price
Index to $320,672.46 ($283,500.00 x [201.0/177.7] = $320,672.46). Following such example, if the Current Index
Number during the tenth (10th) year is 230.5, Rentals for the eleventh (11th) through fifteenth (15th) years would
increase in accordance with the Consumer Price Index to$367,736.32($283,500.00 x [230.5/177.7]=$367,736.32).
Lessor acknowledges and agrees that Lessor is bound by the 380 Agreement to make Lease-Based Grants to Lessee
in accordance with the terms thereof.
Section 3.3. Permitted Uses. Throughout the Term, Lessee shall use the Leased Premises for the
primary purposes of operating the Hotel, and may also use the Leased Premises for purposes related and incidental
thereto (including, without limitation, the operation of restaurant(s), bar(s), gift shops, coffee shops, meeting
facilities,catering services, fitness and spa facilities and other supporting facilities commensurate with a full-service,
convention-oriented hotel). Lessor acknowledges that a portion of the Leased Premises will consist of the
Residential Unit and, notwithstanding anything to the contrary set forth herein, agrees that Lessee may use the
Residential Unit for multi-family residential purposes and for purposes related and incidental thereto, so long as the
primary use of the Leased Premises is a Hotel. Lessee shall not use the Leased Premises for any purpose other than
expressly set forth in this Section 33 unless Lessee has received Lessor's prior written consent.
Section 3.4. Compliance with Environmental and Other Laws.
(a) Lessee shall, throughout the Tenn, and at no expense to Lessor, promptly comply or cause
compliance with all laws, ordinances, orders, rules, regulations and requirements of duly constituted public
authorities, which may be applicable from time to time to the Leased Premises and the ownership, use, operation,
GROUND LEASE AGREEMENT- Page 6
repair and alteration of improvements thereon. With regard to Lessor, Lessee accepts the Leased Premises in their
condition on the date of the commencement of the Term,and assumes all risks, if any, resulting from any present or
future, latent or patent defects therein or from the failure of the Leased Premises to comply with all legal
requirements, reserving,however,any and all rights of Lessee with respect to parties other than Lessor.
(b) Lessee shall not, however, be required to comply or cause compliance with such laws,ordinances,
orders, rules, regulations or requirements, if Lessee is,after prior written notice to Lessor,contesting the same or the
validity thereof in good faith, at Lessee's expense by appropriate proceedings; and provided further, such non-
compliance will not have a material adverse effect on the Leased Premises or the Lessee or the performance of its
obligations hereunder. Such contest may be made by Lessee in the name of Lessor or Lessee, or both, as Lessee
shall reasonably determine,and Lessor shall,at Lessee's expense,cooperate with Lessee in any such contest to such
extent as Lessee may reasonably request; provided, however, the Lessee may not contest in the name of Lessor any
law,ordinance,rule, regulation,order or requirement of Lessor,and the Lessor has no obligation to cooperate in any
such contest against Lessor. Lessor shall not, however, be subject to any liability for the payment of any costs or
expenses in connection with any such proceedings brought by Lessee, and Lessee covenants to pay, and to
indemnify and save Lessor harmless from, any such costs or expenses, including, but not limited to,court costs and
attorneys' fees.
Section 3.5. Title.
(a) During the Term, Lessor shall not mortgage or encumber the Leased Premises, without Lessee's
prior written approval, which may be withheld by Lessee in its sole and absolute discretion.
(b) From time to time during the Term, Lessor shall grant, or join in the granting of, such utility
easements, ingress and egress easements and similar easements on the Leased Premises as Lessee may reasonably
request in connection with its use of the Leased Premises. Any such easements granted by Lessor at Lessee's
request shall be additional"Permitted Exceptions"for all purposes under this Lease.
(c) Lessor acknowledges that Lessee's proposed development of the Leased Premises includes, in
addition to the construction of the Hotel, the construction of a parking garage for the benefit of the Improvements
(the "Hotel Garage") and the construction of residential condominiums. In that regard, Lessor acknowledges that
Lessee may enter into a condominium declaration (the "Master Declaration") for purposes of dividing the
Improvements situated on the Leased Premises into separate parcels of real property including the Hotel(the"Hotel
Unit"), the portion of the Hotel Garage used for Hotel purposes(the"Hotel Parking Unit"), the portion of the Hotel
Garage used for residential purposes (the "Residential Parking Unit"), and the residential condominiums (the
"Residential Unit") (collectively, the "Master Units"). In addition, the Residential Unit may be subdivided into
separate residential living units (the "Residential Sub-Units") pursuant to a sub-unit residential declaration (the
"Residential Declaration"). Both the Master Declaration and the Residential Declaration (collectively, the
"Declarations") shall be executed by the Lessor and shall include the matters set forth in Section 82.056(a) of the
Texas Uniform Condominium Act (the "Act"). Lessor agrees to cooperate with Lessee in any manner that is
reasonably necessary to create the condominium regime and file the Declarations of record. In addition, Lessor
hereby agrees to subordinate its interest in this Ground Lease to the provisions of the Declarations and the rights of
the owners of the Master Units and the Residential Sub-Units thereunder in accordance with the provisions of
Section 82.056 of the Act and will execute any and all documents evidencing such subordination and agreements as
may be reasonably requested by Lessee or owners of the Master Units.
Section 3.6. Obligations of Lessee Unconditional. The obligation of the Lessee to pay the Rentals,
to pay the premiums or charges necessary to maintain or cause to be maintained the insurance required by
Article VI, and to provide the indemnity required by Section 7.1 hereof shall be absolute and unconditional and
shall not be subject to any defense (other than payment) or any right of set-off, counterclaim, abatement or
otherwise,unless specifically permitted under the terms of this Lease or under any of the Development Documents.
GROUND LEASE AGREEMENT-Page 7
ARTICLE IV
BEGINNING CONDITION,ALTERATIONS AND IMPROVEMENTS
Section 4.1. Improvements and Alterations. Any alterations and additions to the Leased Premises
after the initial construction of the Hotel, the Hotel Garage and the Residential Units that Lessee may deem
necessary during the Term may be made by Lessee, at Lessee's sole cost and expense, but Lessor's prior written
consent (which may not be unreasonably withheld, conditioned or delayed) shall be required for any alterations
which fundamentally change the character or exterior appearance of the Hotel. Any Improvements constructed on
the Leased Premises during the term of this Lease will be the property of Lessee and will remain the property of
Lessee after the termination or expiration of this Lease.
Section 4.2. Compliance with Regulatory Requirements. Lessee agrees that all improvements and
alterations on or to the Leased Premises shall be constructed in accordance with all applicable ordinances and
statutes and in accordance with the requirements of all regulatory authorities. Lessee shall, at its sole cost and
expense, procure or cause to be procured all necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper construction, use, occupation, operation, and management of the
Leased Premises. Upon final completion of construction of the Hotel, Lessee shall deliver to Lessor at Lessee's
expense a current, "as-built" survey of the Leased Premises, showing the location of all improvements on the
Leased Premises,certified to Lessor.
Section 43. Lessor's Right of Inspection. Prior to Lessor giving or withholding its consent to any
proposed construction, alteration, or addition to the Leased Premises requiring such consent as set forth in Section
4.1,Lessor may review Lessee's conceptual design drawings and construction drawings for such construction work.
Upon completion of any new construction or alteration or addition to existing improvements for which Lessor's
approval is needed under the terms of this Lease, Lessee shall obtain a written certification addressed to Lessor from
a licensed architect or engineer reasonably acceptable to Lessor stating that the construction has been completed
substantially in accordance with the construction drawings and that the completed improvements are substantially in
compliance with all applicable ordinances, statutes, and the requirements of all regulatory authorities having
jurisdiction.
Section 4.4. Lessor's Work. On or before December 1, 2005, Lessor shall (i) relocate the AT&T
trunk line currently situated on the Leased Premises to a location off of the Leased Premises and repair any damage
to the Leased Premises caused by such relocation to the extent necessary for the Leased Premises to be in pad-ready
condition, and (ii) remove the underground storage tanks currently located on the Premises, complete any
remediation work required to be performed by any applicable governmental authority in connection with such
removal, and repair any damage to the Leased Premise caused by such removal and remediation to the extent
necessary for the Leased Premises to be in pad-ready condition(collectively,"Lessor's Work").
Section 4.5. Replat. Lessor and Lessee acknowledge that the Leased Premises will need to be
replatted once Lessor and Lessee have agreed upon the location of the Improvements to be constructed by Lessee
and the location of the public parking garage to be constructed by Lessor,both of which are anticipated to be located
on the property initially described as the "Leased Premises" on Exhibit "A" of this Lease. The plat referenced in
the legal description initially described on Exhibit "A" of this Lease is attached hereto as Exhibit "C". Lessor and
Lessee anticipate that the portion of Thirteenth Street that currently separates Sections 7 and 8 as shown on Exhibit
"C" will be closed, and a new connector road between Eleventh Street and Fourteenth Street will be located in an
area mutually acceptable to Lessee and Lessor on the property currently referred to as "Section 7". The proposed
location of the Improvements will be on all of Section 8,such closed portion of Thirteenth Street,and the portion of
Section 7 located to the south of the relocated Thirteenth Street. The proposed location of Lessor's public parking
garage will be on the portion of Section 7 located to the north of the relocated Thirteenth Street. Lessor and Lessee
agree to work in good faith using commercially reasonable efforts to agree upon the relocation of Thirteenth Street
and the final location of the Improvements and Lessor's public parking garage. Lessor will initiate the replat of the
Leased Premises and agrees to consult with Lessee throughout the replatting process so that the final replat of the
Leased Premises is reasonably acceptable to Lessee. Lessor will use its best efforts to cause the replat to be
finalized and recorded in the Real Property Records of Tarrant County, Texas on or before the date that is one
hundred twenty(120)days after the Effective Date of this Lease. All costs associated with the replat shall be borne
solely by Lessor. Upon completion of the replat, Lessor and Lessee will execute an amendment to this Lease
GROUND LEASE AGREEMENT- Page 8
substituting the legal description initially attached hereto as Exhibit "A" with the legal description of the land upon
which the Improvements are located.
ARTICLE V
ADDITIONAL COVENANTS OF LESSOR AND LESSEE
Section 5.1. Maintenance of the Leased Premises. Lessee shall, at its sole cost and expense, keep
and maintain the Leased Premises, including the interior and exterior, structural and non-structural portions of the
Hotel, in good repair and in compliance with all applicable laws, regulations, orders and other governmental
requirements applicable to the Leased Premises from time to time. Lessor has no maintenance and repair
obligations under this Lease.
Section 5.2. Taxes and Other Charges. Lessee shall pay prior to delinquency, in addition to the
payment of Rentals, each and every lawful cost, expense and obligation of every kind and nature, foreseen or
unforeseen, by reason of Lessee's estate or interest in the Leased Premises and the Improvements or by reason of or
in any manner connected with or arising out of Lessor's or Lessee's possession, operation, maintenance, alteration,
repair, rebuilding, use or occupancy of the Improvements,or any part thereof. Lessee shall pay and discharge,prior
to the delinquency thereof, all lawful assessments, ad valorem taxes, sales taxes, business and occupation taxes,
occupation license taxes, water charges, or sewage disposal charges, and all other governmental taxes, impositions,
and charges of every kind and nature, ordinary or extraordinary, general or special, foreseen or unforeseen, whether
similar or dissimilar to any of the foregoing, and all applicable interest and penalties, if any, which at any time
during the Term becomes due and payable by Lessee because of its rights or obligations under this Lease and which
is lawfully levied, assessed or imposed on Lessee, the Leased Premises or the Improvements under or by virtue of
any present or future law,statute,ordinance, regulation or other requirement of any governmental authority, whether
federal, state, county, city, municipal, school or otherwise (collectively, "Taxes"), imposed on the Leased Premises
and the Improvements and Lessee's use and occupancy of the Leased Premises and the Improvements or against
personal property, furniture or fixtures placed or situated in or on the Leased Premises during the Term Lessee,
upon written notice to Lessor, may contest in good faith any Taxes (other than water charges or sewage disposal
charges),and in such event may permit such Taxes(other than water charges or sewage disposal charges) to remain
unsatisfied during the period of such contest and any appeal;provided, however,that prior to the commencement of
such contest Lessee shall demonstrate to Lessor either (a) that Lessee will have sufficient funds to pay such
assessment if the contest is unsuccessful or(b) that Lessee has deposited into a separate escrow account funds equal
to the contested amount, together with the anticipated interest and penalties, if any, that would be incurred in the
event of an unfavorable disposition. Lessee also shall pay or cause to be paid all lawful charges for gas, water,
sewer,electricity, light,heat,power, telephone,and other utilities and services used, rendered or supplied to,upon or
in connection with the Improvements. Lessee shall furnish to Lessor promptly upon request proof of the payment or
timely contest of any Taxes or any utility charge which is payable by Lessee, or evidence of the deposit of such
funds into a reserve account, all as set forth above. Notwithstanding anything to the contrary contained in this
Section 5.2, Lessor and Lessee acknowledge and agree that ad valorem real property taxes and assessments levied
by the City of Fort Worth against the Hotel and certain other portions of the Improvements will be abated in
accordance with the terms of the Tax Abatement Agreement and ad valorem real property taxes and assessments(if
any) levied by the City of Fort Worth against the Leased Premises and paid by Lessee in accordance with this Lease
will be reimbursed to Lessee in the form of a grant pursuant to the 380 Agreement, but Lessor makes no
representation regarding the abatement of Taxes from any taxing authority other than the City of Fort Worth.
Section 53. Liens and Encumbrances. Lessee covenants and agrees that it will not create or suffer
to be created any lien, encumbrance or charge upon the Leased Premises or Lessee's interest in this Lease, except
for mortgages permitted under Section 8.6, the Declarations, and any other encumbrance expressly permitted under
this Lease or the Development Documents or which is necessary in order for Lessee to exercise its rights or perform
its obligations under this Lease or any of the other Development Documents. Lessee shall satisfy or cause to be
discharged, or will make adequate provision to satisfy and discharge, within sixty (60) days after the same occurs,
all claims and demands for labor, materials, supplies or other items which, if not satisfied, might by law become a
lien upon the Leased Premises or any part thereof. If any such lien is filed or asserted against Lessee or the Leased
Premises by reason of work, labor, services or materials supplied or claimed to have been supplied on or to Lessee
or the Leased Premises at the request or with the permission of Lessee or of anyone claiming under it, Lessee shall,
within sixty (60) days atter it receives notice of the filing thereof or the assertion thereof against the Leased
GROUND LEASE AGREEMENT- Page 9
Premises, cause the same to be discharged of record, or effectively prevent the enforcement or foreclosure thereof,
by contest, payment, deposit, bond, order of court or otherwise. Notwithstanding anything to the contrary set forth
herein, the terms of this Section 5.3 relating to deadlines for discharging or contesting liens and claims for labor,
materials, supplies and other matters shall not apply during the initial construction of the Improvements, but Lessee
hereby agrees to indemnify Lessor for, from and against any damages that Lessor may actually suffer or any liability
imposed upon Lessor arising under Section 2253.027 of the Texas Government Code as a result of Lessee's failure
to bond around any liens.
Section 5.4. Warranty of Peaceful Possession. Lessor covenants and warrants that if Lessee is in
compliance with its obligations and covenants under this Lease, Lessee may peaceably and quietly have, hold,
occupy, use and enjoy, and shall have the full and exclusive use and enjoyment of the Leased Premises during the
Term subject to the terms and conditions of this Lease. Lessor warrants and agrees to forever defend Lessee's
leasehold estate in the Leased Premises against the claims of any and all parties whomsoever lawfully claiming or to
claim the same or any part thereof by,through,or under Lessor,but not otherwise.
Section 5.5. Surrender of Possession. Upon the termination of this Lease (unless terminated as a
result of Lessee's purchase of the Leased Premises pursuant to Section 9.1 or Section 9.2 hereof or the Room Block
Agreement), Lessee shall surrender the Leased Premises (including all improvements thereon) to Lessor in a
condition which would have been in compliance with the maintenance requirements of Section 5.1 of this Lease had
the Lease not terminated,reasonable wear and tear,and damage by casualty or condemnation,excepted.
Section 5.6. Operation. This Lease does not contain or impose on Lessee any requirement to operate
the Improvements in accordance with any standard or to continuously operate the Improvements. Lessor and Lessee
acknowledge and agree that any requirement relating to the operation of the Hotel by Lessee is set forth in and
governed by the Room Block Agreement.
Section 5.7. Condition of Leased Premises. Lessee acknowledges that, except as set forth in this
Lease, neither Lessor nor any agent of Lessor has made any representation or warranty to Lessee with respect to the
suitability or fitness of the Leased Premises either for Lessee's intended use or for any other purposes. By taking
possession of the Leased Premises, Lessee (a) acknowledges that it has inspected the Leased Premises; (b)
establishes conclusively that the Leased Premises are at such time in satisfactory condition; and (c) accepts the
Leased Premises in its condition as of the date of such possession or use "AS IS" and subject to all faults and
infirmities, subject to the completion of Lessor's Work described in Section 4.4 above. Nothing contained in this
Section 5.7 shall affect the commencement of the Term or the obligation of Lessee to pay the Rentals as provided in
Section 3.2. Lessee represents and warrants to Lessor as follows: (i) Lessee does not intend to, and will not,use the
Leased Premises for any purpose other than that set forth in Section 3.3; and (ii) Lessee has undertaken and has
reasonably and diligently completed all appropriate investigations regarding the suitability of the Leased Premises
for Lessee's intended use. Lessee acknowledges and agrees that Lessor has no obligation with respect to such
completion of the Hotel except as expressly set forth herein or in any of the Development Documents.
Section 5.8. Signage. Lessee may display any signage or other visible media on the Leased Premises
or the Improvements,so long as such signage or other visible media complies with all applicable governmental rules
and regulations. Any advertising, documents or media information prepared by or within the control of Lessee
describing the Hotel must identify the City of Fort Worth as the location of the Hotel.
Section 5.9. Hazardous Materials.
(a) For purposes of this Lease,the following terms shall have the following meanings:(1)"Hazardous
Materials"shall mean(i) any petroleum or petroleum products,radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, transformers, or other equipment that contain dielectric
fluid containing polychlorinated biphenyls, and radon gas;(ii)any chemicals or substances now or hereafter defined
as or included in the definition of"hazardous materials", "hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any applicable Environmental Law; and (iii) any other chemical,
material, or substance, exposure to which is now or hereafter prohibited, limited, or regulated, by any applicable
Environmental Law or governmental authority; and (2) "Release" or "Released" means disposed, discharged,
injected, spilled, leaked, leached, migrated, dumped, emitted, escaped, emptied, seeped, or placed, in, on, or under
GROUND LEASE AGREEMENT- Page 10
any land, water, or air, or otherwise entered into the environment, and as otherwise more broadly defined in
applicable Environmental Law.
(b) Lessee covenants and agrees with Lessor as follows: (1) the construction and installation of all
improvements and the use and operation of the Leased Premises shall at all times be in material compliance with
applicable Environmental Law; (2) Lessee will obtain prior to the opening of the Hotel all environmental permits,
licenses, and approvals that are necessary or required by applicable Environmental Law to conduct its business and
operations on the Leased Premises, and Lessee shall at all times comply with such environmental permits, licenses,
and approvals; (3) neither Lessee nor any person claiming by, through, or under Lessee shall bring onto, use, store,
generate, treat, process, dispose of, recycle, incinerate or transport any Hazardous Materials in, on, or under the
Leased Premises except in compliance with applicable Environmental Law and in a reasonable and prudent manner
so as to prevent the Release or threat of Release of any Hazardous Material on, onto or from the Leased Premises;
(4) Lessee shall regularly inspect the Leased Premises to monitor and ensure that the Leased Premises are at all
times in material compliance with applicable Environmental Law; (5) Lessee shall use reasonable efforts to protect
the Leased Premises against intentional or negligent acts or omissions of third parties which might result, directly or
indirectly, in the Release of Hazardous Materials on the Leased Premises in violation of applicable Emvitorifnental
Law; and (6) if Lessee has actual knowledge that any Hazardous Materials are Released in,on, or under the Leased
Premises during the Term of this Lease:
(i) Lessee shall immediately notify all applicable governmental agencies having competent
jurisdiction of the occurrence of the Release of Hazardous Materials in accordance with the requirements of
applicable Environmental Law;
(ii) Lessee shall immediately notify Lessor of the occurrence of the Release of the Hazardous
Materials-and shall immediately furnish or make available to the Lessor such information, documents, and
other communications as Lessor shall reasonably request;
(iii) Lessee shall promptly and timely commence or cause to be commenced appropriate
actions required by applicable Environmental Law to clean up the Hazardous Materials that have been
Released on the Leased Premises (collectively referred to as "Response Action") and shall conduct and
perform all appropriate Response Action in accordance with applicable Environmental Law; and
(iv) Lessee, at its sole cost, shall contract for or perform all Response Action in the Lessee's
own name or cause the violator to do so in the violator's name.
(c) Lessee hereby covenants and agrees that it shall be responsible for, and waives, releases, and
forever discharges the Indemnitees from, and agrees to indemnify, defend, and hold the Indemnitees harmless from
and against, all expenses, costs (including reasonable attorneys' fees and court costs), losses, damages, penalties,
fines, and other expenditures of any nature arising from or in connection with any claims, demands, liens,
investigations, notices of violation, governmental directives, causes of action or any other administrative or legal
proceedings of any nature which result from, relate to,or arise out of(1) the breach of any covenant or agreement of
Lessee in this Section 5.9, (2) the presence or alleged presence of Hazardous Materials in, on, or under the Leased
Premises in violation of any Environmental Law which arose during the Term of this Lease, or (3) the violation of
any applicable Environmental Law with respect to the Leased Premises during the Term of this Lease;so long as, in
each instance, the presence of the Hazardous Material or the violation of any Environmental Law was not caused
directly or indirectly by Lessor or an Indemnitee. This release and indemnity specifically includes (a) all costs of
"removal" and/or "remedial action" and all other costs of "response" as those terms are defined and used in
applicable Environmental Law, and (b) all other costs and expenses of any nature incurred by, assessed against,
imposed upon, or charged to the Indemnitees relating to compliance with or enforcement of applicable
Environmental Law. If any Indemnitee incurs costs or expenses described in this indemnity, Lessee shall reimburse
the Indemnitee for those reasonable costs or expenses within thirty (30) days of the date of receipt by Lessee of
notice from the Indemnitee, including copies of invoices or other verification, that the costs or expenses have been
incurred. The foregoing release and indemnity shall survive the expiration or termination of this Lease.
(d) If(i) there exists any uncorrected violation by Lessee of an Environmental Law or any condition,
caused directly or indirectly by Lessee, which requires a cleanup, removal or other remedial action by Lessee under
any Environmental Law, and such cleanup, removal or other remedial action is not initiated within the time period
GROUND LEASE AGREEMENT-Page I I
required by Environmental Law or (ii) Lessor reasonably determines that (A) such uncorrected violation or
condition poses an imminent threat to the safety or well being of any other users of the Leased Premises, the citizens
of the City of Fort Worth or the County,or other persons,or(B)the Leased Premises is likely to be further damaged
or contaminated or other land on or in the vicinity of the Leased Premises is likely to be damaged or contaminated
by virtue of the continued failure to correct such violation or condition; and such cleanup,removal or other remedial
action is not initiated within ninety (90) days from the date of written notice from Lessor to Lessee, and diligently
pursued to completion, the same shall, at the election of Lessor, constitute an Event of Default as described in
Section 10.1(b) hereof; and provided, further, that Lessor will not consider any failure to initiate such cleanup,
removal or other remedial action within the aforesaid ninety(90) day period an Event of Default if such cleanup,
removal or other remedial action is of such a nature that it cannot readily be initiated within the ninety(90) days and
so long as Lessee commences in good faith to cure such uncorrected violation or condition and diligently pursues
the cure continuously thereafter.
(e) Lessee hereby grants to Lessor, its agents, employees, consultants, contractors, successors, and
assigns, an irrevocable license and authorization, upon reasonable notice, to enter upon and inspect the Leased
Premises (but not any facilities or improvements thereon), and perform such tests, including without limitation,
subsurface testing, soils and groundwater testing, and any other tests thereon, as the Lessor, in its sole discretion,
determines is necessary to protect its interest in the Leased Premises.
(f) During the term of the Lease, Lessee agrees to provide Lessor with copies of any environmental
reports Lessee obtains(without Lessee being obligated to obtain any such reports)relating to the Leased Premises.
(g) To the actual knowledge of Kirk Slaughter, Lessor represents and warrants (i)that it has never
placed, generated, stored, handled or disposed of any Hazardous Material in or about the Leased Premises; and
(ii)that Lessor is not aware of the existence, placement,generation,storage, handling or disposal of any Hazardous
Material in or upon the Leased Premises at any time by anyone else.
Section 5.10. Notification of Events of Default. Lessee covenants and agrees that it will promptly
notify Lessor of the occurrence of an Event of Default,or of the occurrence of any event that with notice or lapse of
time might become an Event of Default, under Section 10.1(b) or (c) hereof, after Lessee has notice of same,
specifying the details of such event or Event of Default and the action that Lessee proposes to take with respect
thereto.
ARTICLE VI
INSURANCE
Section 6.1. Lessee's Insurance. Lessee represents that it currently has in effect, and Lessee further
covenants that it shall maintain in effect at all times during the full Term of this Lease, insurance coverages with
limits not less than those set forth below with insurers licensed to do business in the State of Texas and reasonably
acceptable to Lessor and under forms of policies reasonably satisfactory to Lessor. Lessee shall maintain such
insurance coverages at its sole cost and expense. Lessor shall be under no obligation to maintain any such insurance
coverage should Lessee be found to be in default under this Article VI. None of the requirements contained herein
as to types, limits or Lessor's approval of insurance coverage to be maintained by Lessee are intended to and none
shall in any manner limit, qualify or quantify the liabilities and obligations assumed by Lessee under this Lease or
otherwise provided by law.
GROUND LEASE AGREEMENT- Page 12
Section 6.1.1. Schedule of Insurance Coverages.
COVERAGE MINIMUM AMOUNTS AND LIMITS
Section 6.1.1.1. Workers'Compensation.
Workers'Compensation Statutory Limits
Employers' Liability,or alternative $100,000
work-place injury or non-subscription
plan as may be permitted under
applicable law
This policy shall include a waiver of subrogation in favor of the Indemnitees.
Section 6.1.1.2. Commercial General Liability.
Bodily Injury/Property Damage $1,000,000 each occurrence
(Occurrence Basis) or equivalent;subject to a
$2,000,000 aggregate
Such commercial general liability policy shall be on an occurrence form reasonably acceptable to Lessor,
endorsed to include the Indemnitees as additional insureds, contain cross-liability and severability of interest
endorsements, state that this insurance is primary insurance as regards any other insurance carried by any
Indemnitee,and shall include the following coverages:
(a) Leased Premises/Operations;
(b) Independent Contractors;
(c) Broad Form Contractual Liability specifically in support of, but not
limited to,the Indemnification section of this Lease;and
(d) Personal Injury Liability with the employee and contractual exclusions
removed.
Section 6.1.13. Comprehensive Automobile Liability.
Bodily Injury/Property Damage $1,000,000 combined single limit
of liability
This policy shall be on a standard form written to cover all owned,hired and non-owned automobiles.
Section 6.1.1.4. Garagekeeper's Liability.
Physical Damage to Parked $100,000 combined single limit
Vehicles each occurrence
This policy shall be endorsed to include the Indemnitees as additional insureds and include a waiver of
subrogation in favor of the Indemnitees.
Section 6.1.1.5. Umbrella Excess Liability Insurance.
Bodily Injury/Property Damage $10,000,000 per occurrence
(Occurrence Basis) $10,000,000 aggregate
This policy shall be written on a following form umbrella excess basis above the coverages described in
Sections 6.1.1.2,6.1.13,and 6.1.1.4 above and shall include the Indemnitees as additional insureds.
Section 6.1.1.6. Property insurance. Such property insurance as Lessee, in its sole
discretion,deems appropriate.
GROUND LEASE AGREEMENT- Page 13
Section 6.2. Intentionally Deleted.
Section 63. Evidence of Insurance. Evidence of the insurance coverage required under Section 6.1,
represented by Certificates of Insurance issued by the insurance carrier,must be furnished to Lessor on the effective
date of this Lease. Certificates of Insurance shall specify the additional insured status required above as well as the
waivers of subrogation. Such Certificates of Insurance shall state that Lessor will be notified in writing thirty (30)
days prior to cancellation, material change or non-renewal of insurance. Lessee shall provide to Lessor a certified
copy of any and all applicable insurance policies upon request of Lessor. Timely renewal certificates will be
provided to Lessor as the coverage renews. In no event shall Lessee handle any materials which would void or
reduce the insurance coverage of Lessee required herein.
Section 6.4. Insurance Requirements for Lessee's Contractors and Subcontractors.
Section 6.4.1. General Requirements. Subject to Lessor's right to waive such requirements
for a contractor or subcontractor at Lessor's sole discretion, insurance similar to that required of Lessee with limits
reasonably acceptable to Lessor shall be provided by or on behalf of all contractors and their subcontractors to cover
their operations performed for Lessee. The Commercial General Liability policy outlined in Section 6.1.1.2 will be
extended to include Completed Operations coverage for any contractor doing construction work on the Leased
Premises. Lessee shall consult with Lessor with respect to such matters to determine if Lessor desires to waive such
requirements for a contractor or subcontractor. Lessee shall maintain Certificates of Insurance from all contractors
and their subcontractors enumerating, among other things, the waivers in favor of, and insured status of, Lessor and
the other Indemnitees as required herein, and Lessee shall provide to Lessor a copy of each Certificate of Insurance
from each contractor and subcontractor if requested by Lessor.
Section 6.4.2. Subcontractors. The term "subcontractor(s)" for the purposes of this Lease
shall include subcontractors,consultants,or sub-operators of any tier.
Section 6.5. Release and Waiver. LESSEE HEREBY RELEASES, AND SHALL CAUSE ITS
INSURERS, CONTRACTORS, THEIR SUBCONTRACTORS, AND EACH OF THEIR RESPECTIVE
INSURERS TO RELEASE, THE INDEMNITEES (AS DEFINED IN SECTION 7.1.1) FROM ANY AND
ALL CLAIMS OR CAUSES OF ACTION WHATSOEVER THAT LESSEE, ITS INSURERS, ITS
CONTRACTORS, THEIR SUBCONTRACTORS, AND/OR ANY OF THEIR RESPECTIVE INSURERS
MIGHT OTHERWISE POSSESS RESULTING IN OR FROM OR IN ANY WAY CONNECTED WITH
ANY LOSS COVERED OR WHICH SHOULD HAVE BEEN COVERED BY INSURANCE, INCLUDING
THE DEDUCTIBLE PORTION THEREOF, MAINTAINED AND/OR REQUIRED TO BE MAINTAINED
BY LESSEE AND/OR ITS CONTRACTORS OR THEIR SUBCONTRACTORS PURSUANT TO THIS
LEASE, EVEN IF SUCH CLAIMS OR CAUSES OF ACTION ARE CAUSED IN WHOLE OR IN PART
BY THE NEGLIGENCE OF ANY INDEMNITEE. THE FOREGOING WAIVER, HOWEVER, WILL
NOT APPLY TO ANY CLAIMS OR CAUSES OF ACTION WHICH ARE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE.
Section 6.6. Survival; Right to Enforce. The provisions of Section 6.5 shall survive the termination
of this Lease. In the event that Lessee shall fail to maintain full insurance coverage required by this Lease and such
failure continues for thirty (30) days after Lessee's receipt of written notice from Lessor, Lessor may (but shall be
under no obligation to) take out the required policies of insurance, pay the required premiums or otherwise comply
with the covenants set forth in this Article VI. All amounts advanced by Lessor in payment of the required
premiums for such insurance or otherwise to comply with the covenants set forth in this Article VI shall be paid by
Lessee to Lessor, together with interest thereon at the prime rate of interest charged its commercial customers from
time to time by Chase Bank-Fort Worth.
GROUND LEASE AGREEMENT- Page 14
ARTICLE VII
INDEMNIFICATION
Section 7.1. Indemnification.
7.1.1. Indemnity. Lessee shall indemnify, protect, defend, and hold harmless Lessor, Lessor's
officers, directors, affiliates, employees, agents, and council members (collectively, the "Indemnitee" or
"Indemnitees") for, from, and against any and all damages, losses, liabilities (joint or several), payments,
obligations, penalties, claims, litigation, demands, defenses,judgments, suits, proceedings, costs, disbursements or
expenses (including, without limitation, fees, disbursements and reasonable expenses of attorneys, accountants, and
other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature
whatsoever(collectively, the"Damages"),directly or indirectly resulting from,relating to or arising out of-
(a)
f(a) the design, installation, construction, development, maintenance,operation, use,
occupancy, or ownership of the Hotel, the Hotel Garage or the business of Lessee, and the other
Improvements, including, without limitation,any Damages with respect to contracts or attributable
to bodily injury, sickness, disease or death, to personal injury, or to injury or destruction of
property, including loss of use resulting therefrom; provided, however, that the foregoing
indemnity shall only apply during Lessee's ownership of the Hotel;
(b) the formation, organization and operation of Lessee, or any subsidiaries of
Lessee;
(c) any breach of or inaccuracy in any representation or warranty made or given by
Lessee or any of its agents, officers,or employees contained in this Lease;or
(d) any breach or non-performance, partial or total, by Lessee of any covenant or
agreement of Lessee contained in this Lease.
7.1.2. Indemnification Procedures. In case any claim shall be brought or,to the knowledge of
any Indemnitee, threatened against any Indemnitee in respect of which indemnity may be sought against Lessee,
such Indemnitee shall promptly notify Lessee in writing; provided, however, that any failure so to notify shall not
relieve Lessee of its obligations under Section 7.1 unless (i) such failure so to notify precludes Lessee's
investigation and defense of such claims as a matter of law, and (ii) Lessee does not otherwise have knowledge,
either actual or constructive, of such claim. Lessee shall have the right(and obligation, subject to the terms below)
to assume the investigation and defense of all claims, including the employment of counsel and the payment of all
expenses. Each Indemnitee shall have the right to employ separate counsel in any such action and participate in the
investigation and defense thereof,but the fees and expenses of such counsel shall be paid by such Indemnitee unless
(i)the employment of such counsel has been specifically authorized by Lessee, in writing,(ii)Lessee has failed after
receipt of notice of such claim to assume the defense and to employ counsel, or(iii) the named parties to any such
action (including any impleaded parties) include both an Indemnitee and Lessee, and the Indemnitee, after
consultation with its counsel, reasonably believes that there may be one or more legal defenses available to it which
are different from or additional to those available to Lessee (in which case, if such Indemnitee notifies Lessee in
writing that it elects to employ separate counsel at Lessee's expense, Lessee shall not have the right to assume the
defense of the action on behalf of such Indemnitee;provided,however,that Lessee shall not,in connection with any
one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same
general allegation or circumstances,be liable for the reasonable fees and expenses of more than one separate firm of
attorneys for the Indemnitee, which firm shall be designated in writing by the Indemnitees). Each Indemnitee shall
cooperate with Lessee in the defense of any action or claim. Lessee shall not be liable for any settlement of any
action or claim without Lessee's consent, but if any such action or claim is settled with the consent of Lessee or
there be final judgment or agreement for the plaintiff in any such action or with respect to any such claim, Lessee
shall indemnify and hold harmless the Indemnitees from and against any Damages by reason of such settlement or
judgment as provided in Section 7.1.
7.1.3. NeeliQence of Indemnitee. THIS INDEMNIFICATION REMAINS IN FULL
FORCE AND EFFECT EVEN IF ANY CLAIM DIRECTLY OR INDIRECTLY RESULTS FROM,ARISES
GROUND LEASE AGREEMENT- Page 15
OUT OF, OR RELATES TO OR IS ASSERTED TO HAVE RESULTED FROM, ARISEN OUT OF, OR
RELATED TO THE SOLE NEGLIGENCE OR CONCURRENT NEGLIGENCE OF AN INDEMNITEE.
THE ONLY CIRCUMSTANCES UNDER WHICH THIS INDEMNITY SHALL NOT APPLY SHALL BE
IN CONNECTION WITH LIABILITIES ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
7.1.4. Survival; Right to Enforce. The provisions of this Section 7.1 shall survive the
termination of this Lease. In the event of failure by Lessee to observe the covenants, conditions and agreements
contained in this Section 7.1, any Indemnitee may take any action at law or in equity to collect amounts then due
and thereafter to become due,or to enforce performance and observance of any obligation,agreement or covenant of
Lessee under this Section 7.1. The obligations of Lessee under this Section 7.1 shall not be affected by any
assignment or other transfer by the Lessor of its rights, titles or interests under this Lease and will continue to inure
to the benefit of the Indemnitees after any such transfer. The provisions of this Section 7.1 shall be cumulative with
and in addition to any other agreement by Lessee to indemnify any Indemnitee.
ARTICLE VIII
ASSIGNMENTS; LEASEHOLD MORTGAGES
Section 8.1. Assignment and Subleasing. Lessee may not assign its rights and duties hereunder
relating to the Hotel during the period of time commencing on the Effective Date and continuing until the expiration
of third (3rd) anniversary of the initial opening of the Hotel ("Prohibited Transfer Period"). Notwithstanding
anything to the contrary set forth in this Lease, Lessee may assign or sublet its interest in this Lease during the
Prohibited Transfer Period, without Lessor's consent, to any party that controls, is controlled by, or is under
common control with, Lessee, so long as Lessee remains fully liable under this Lease and the Hotel remains branded
as the Omni Fort Worth Hotel. After the Prohibited Transfer Period, Lessee may assign or sublet its interest in this
Lease or any of its rights or obligations hereunder relating to the Hotel without the prior written consent of Lessor so
long as the assignee or sublessee assumes in writing all of Lessee's obligations under this Lease relating to the
Hotel. Upon any such assignment, Lessee will be released from all further liability under this Lease occurring as of
or after the effective date of such assignment.
Section 8.2. Sublease of Other Improvements; Conveyance of Units. At all times during the Tetra,
Lessee shall have the right to sublease or develop portions of the Leased Premises for other Hotel-related purposes
(including, without limitation, the operation of restaurants, bars, gift shops and coffee shops), the costs of which are
paid for solely by Lessee and to be owned by Lessee during the Term hereof. All revenues generated by any such
Hotel-related purposes shall belong to Lessee. Notwithstanding the foregoing, Lessee shall not sublease the Leased
Premises in its entirety or master lease the Hotel during the Prohibited Transfer Period, but the foregoing shall not
preclude Lessee from creating the condominium regime described in Section 3.5 above. In addition, Lessee shall
have the right, without Lessors consent, to lease any portion of the Residential Unit or Hotel Garage at any time
during the Term of this Lease and Lessee may transfer,without Lessors consent,any subunits within the Residential
Unit to any person or entity at any time during the Term of this Lease. All revenues or rentals received by such
subletting or transfer shall belong to Lessee.
Section 8.3. Intentionally Deleted.
Section 8.4. Intentionally Deleted.
Section 8.5. Intentionally Deleted.
Section 8.6. Leasehold Mortgages. Without the requirement of any consent of Lessor, Lessee shall
have the right to place a loan on Lessee's entire interest under this Lease,the leasehold estate in the Leased Premises
arising hereunder and the improvements constructed thereon secured by a leasehold mortgage, and collaterally
assign this Lease and any subleases with respect to the improvements to the leasehold mortgagee in connection with
such leasehold mortgage. The execution and delivery of any such leasehold mortgage and the foreclosure of such
leasehold mortgage or a transfer in lieu of foreclosure shall not be deemed to constitute a transfer or assignment of
this ,Lease for purposes of Article VIII, nor shall the holder of any such leasehold mortgage be deemed (prior to a
foreclosure judgment or transfer in lieu thereof) an assignee or transferee of this Lease so as to require such holder
GROUND LEASE AGREEMENT- Page 16
to assume the performance of any of the terms, covenants or conditions on the part of Lessee to be performed
hereunder.
ARTICLE LSC
OPTION TO PURCHASE/PUT
Section 9.1. Lessee's Option to Purchase.
(a) Grant of Option.
Lessor grants to Lessee a one-time option (the "Option"), pursuant to and subject to the conditions of this
Article IX, to purchase the Leased Premises (excluding the Improvements thereon, which are owned by Lessee),
from Lessor for its then fair market value (which will be for the land only as if it were unimproved and no
improvements were located thereon). The fair market value shall be determined by a licensed real estate appraiser
selected by Lessor who has experience in the downtown Fort Worth market and who is reasonably acceptable to
Lessee.
(b) Exercise of Option.
(1) Lessee shall have the right to exercise the Option commencing on the tenth (10's)
anniversary date of the Hotel's opening and expiring one(1) year thereafter(the "Option Period"). Lessee
shall give notice of the exercise of the Option at least one hundred twenty(120)days prior to the expiration
of the Option Period; provided, however, if Lessee fails to exercise the Option within such time period,
Lessor shall deliver written notice to Lessee requesting, in conspicuous type, that Lessee notify Lessor
whether Lessee will exercise the Option set forth in this Section 9.1. Lessee will have sixty(60)days after
receipt of Lessor's notice to exercise the Option, even if such sixty (60) day period extends beyond the
Option Period. The giving of a notice by Lessee shall constitute Lessee's request for determination of the
fair market value of the Leased Premises.
(2) If Lessee has exercised the Option, then Lessee shall purchase the Leased Premises
within 60 days after the date of the determination of the fair market value, and shall pay as the purchase
price such fair market value,as defined in paragraph(a)of this Section 9.1,subject to Section 9.4 below.
Section 9.2 Lessor's Put Option. Lessee hereby grants to Lessor an option to put the Leased
Premises to Lessee (the "Put Option") during the Option Period for a price equal to the fair market value as
determined in accordance with Section 9.1(a) hereof, and Lessee shall be obligated to accept such conveyance
within sixty (60) days after the date of the determination of the fair market value. To exercise the Put Option,
Lessor must give notice of its exercise within one hundred twenty (120)days prior to the expiration of the Option
Period; provided, however, if Lessor fails to exercise the Put Option within such time period, Lessee shall deliver
written notice to Lessor requesting, in conspicuous type, that Lessor notify Lessee whether Lessor will exercise the
Put Option set forth in this Section 9.2. Lessor will have sixty (60) days following receipt of Lessee's notice to
exercise the Put Option,even if such sixty(60)day period extends beyond the Option Period.
Section 9.3. Terms and Conditions of Purchase/Put. In the event that the Leased Premises are to be
acquired by Lessee pursuant to Lessee's exercise of the Option or Lessor's exercise of the Put Option: (a) the
closing of such acquisition shall occur in such place as Lessor and Lessee mutually determine; (b) the closing shall
occur on a date designated by Lessee(by at least ten(10)days'advance written notice to Lessor)not later than sixty
(60)days after the determination of the fair market value(the"Acquisition Closing Date"); (c)the purchase price, in
the amount of the fair market value as defined and determined in accordance with Section 9.1(a) shall be paid in
cash; (d) the Leased Premises shall be conveyed to Lessee pursuant to a special warranty deed which includes the
provision in Section 9.1(a) regarding the Operating Standard, subject only to the Permitted Exceptions; (e) Lessor
and Lessee shall terminate this Lease and file a memorandum of termination in the Deed Records of Tarrant County;
(f) Lessor shall execute and deliver such other documentation as shall be necessary to vest title to the Leased
Premises and all appurtenances owned by Lessor in Lessee; and(g)all expenses of closing, including but not limited
to any title policy premiums, survey costs,and recording fees(but excluding attorneys' fees, which shall be borne by
the parry incurring such fees),shall be borne solely by Lessee.
GROUND LEASE AGREEMENT- Page 17
Section 9.4. Reimbursement of Purchase Price. Subject to the terms of the 380 Agreement, if
Lessee purchases the Leased Premises pursuant to Lessee's exercise of the Option or Lessor's exercise of the Put
Option, the acquisition of the Leased Premises will be subject to any provisions in the 380 Agreement requiring
Lessor to return to Lessee any amount of the purchase price that exceeds $1,000,000.00, with the result that the net
purchase price shall never exceed$1,000,000.00.
ARTICLE X
DEFAULT
Section 10.1. Events of Default. The occurrence of any of the following shall constitute an"Event of
Default"by Lessee hereunder:
(a) The failure of Lessee to pay when due any installment of Rentals pursuant to Section 3.2 hereof,
provided such failure continues for more than five (5) days after Lessee receives written notice from Lessor that
such installment is due.
(b) The breach by Lessee of any other covenant, condition, or agreement required to be performed or
observed hereunder,if such breach has not been cured within thirty(30)days of delivery of notice of such breach to
Lessee by Lessor, unless such breach, by its nature, cannot be cured within such thirty (30) day period, in which
case so long as Lessee is diligently, in Lessor's good faith judgment, proceeding to cure such breach and is making
reasonable progress in effectuating a cure,it shall not be deemed to be an Event of Default.
(c) The occurrence of an Act of Bankruptcy,provided that with respect to the filing of an involuntary
petition in bankruptcy or other commencement of a bankruptcy or similar proceeding against Lessee, such petition
or proceeding shall remain undismissed for ninety(90)days.
Section 10.2. Remedies of the Lessor on Default.
(a) If any Event of Default shall have occurred, Lessor may, as its sole and exclusive remedies, elect
to institute such action against Lessee as may appear necessary or desirable to collect such Rentals and any other
amounts then due under this Lease, or to enforce performance and observance of such covenant, condition or
obligation of Lessee hereunder, or to recover damages for Lessee's non-payment, non-performance or non-
observance of the same. In no event,however, will the occurrence of an Event of Default entitle Lessor to terminate
this Lease or terminate Lessee's possession of the Leased Premises, except as expressly set forth in Section 10.10
hereof Lessor shall use its best efforts to mitigate its damages after the occurrence of an Event of Default.
(b) Lessee shall pay all of Lessor's reasonable fees and expenses, including reasonable attorneys'
fees,in enforcing any covenant to be observed by Lessee or pursuing any remedy upon an Event of Default.
Section 10.3. Intentionally Deleted.
Section 10.4. No Remedy Exclusive. No remedy herein conferred upon Lessor is intended to be
exclusive of any other available remedy or remedies, and each such remedy shall be cumulative and shall be in
addition to every other remedy given under this Lease except as otherwise stated in this Lease to the contrary.
Section 10.5. No Additional Waiver Implied By One Waiver; Consents to Waiver. The waiver of
either party of any breach by the other party of any covenant, condition or obligation under this Lease shall not
operate as a waiver of any subsequent breach of the same or a waiver of any breach of any other covenant,condition
or obligation under this Lease,nor shall any forbearance by the non-defaulting party not breaching to seek a remedy
for any breach by the other party be a waiver by such non-defaulting party not breaching any of its rights and
remedies with respect to such breach or any subsequent breach of the same or with respect to any other breach.
Section 10.6. Delay not a Waiver. No delay or omission by Lessor of the exercise of any right or
power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver
of any such Event of Default or any acquiescence therein, and every power or remedy given by this Lease to the
GROUND LEASE AGREEMENT-Page 18
Lessor may be exercised from time to time and as often as may be deemed expedient. Lessor may waive any Event
of Default which in its opinion has been remedied before the entry of final judgment or decree in any suit, action or
proceeding instituted by it under the provisions of this Lease or before the completion of the enforcement of any
other remedies under this Lease. No such waiver shall extend to or affect any other existing or subsequent Event of
Default or impair any rights or remedies consequent thereon.
Section 10.7. Default by Lessor. Lessor will be in default under this Lease if Lessor fails to perform
any of its obligations hereunder and such failure continues for a period of thirty (30) days after Lessee delivers
written notice of such failure to Lessor. Lessee must also deliver written notice of such failure to the holder(s) of
any indebtedness or other obligations secured by any mortgage or deed of trust affecting Lessor's interest in the
Leased Premises,of which Lessee has received notice. If such failure cannot reasonably be cured within the 30-day
period, Lessor will not be in default hereunder as long as Lessor or such holder(s) commences the remedying of
such failure within the 30-day period and diligently prosecutes the same to completion.
Section 10.8. Arbitration. If the parties are in disagreement regarding any provision of this Lease, the
parties shall submit disputes to mandatory arbitration in accordance with the provisions of this Section 10.8. Each
of Lessor and Lessee waives the right to commence an action in connection with this Lease in any court and
expressly agrees to be bound by the decision of the arbitrator determined in this Section 10.8; provided, however,
the waiver in this Section 10.8 will not prevent Lessor or Lessee from commencing an action in any court for the
sole purposes of enforcing the obligation of the other party to submit to binding arbitration or the enforcement of an
award granted by arbitration herein. Any dispute between Lessor and Lessee as to the interpretation of any
provision of this Lease or the rights and obligations of any party hereunder shall be resolved through binding
arbitration as hereinafter provided in Fort Worth, Texas. Notwithstanding the foregoing, prior to submitting any
dispute hereunder to arbitration, Lessor and Lessee shall fust attempt in good faith, for thirty(30)days after the first
notice given under this Lease regarding such dispute, to resolve any such dispute promptly by negotiation between
executives of each party who have authority to settle the dispute, which shall include an in person meeting between
such executives in Fort Worth,Texas.
10.8.1. Selection of Arbitrator. If arbitration is required to resolve a dispute between Lessor
and Lessee, Lessor and Lessee shall agree upon one (1) arbitrator to resolve the dispute. The arbitrator must be a
neutral party having at least five (5) years experience in commercial real estate in general and hotel buildings in
particular in the Fort Worth,Texas area and must be mutually acceptable to both parties.
10.8.2. Rules of Arbitration. The arbitrator selected pursuant to Section 10.8.1 above will
establish the rules for proceeding with the arbitration of the dispute, which will be binding upon all parties to the
arbitration proceeding. The arbitrator may use the rules of the American Arbitration Association for commercial
arbitration but is encouraged to adopt the rules the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly,the arbitrator may(1)dispense with any formal rules of
evidence and allow hearsay testimony so as to limit the number of witnesses required, (2) minimize discovery
procedures as the arbitrators deem appropriate, and (3) limit the time for presentation of any party's case as well as
the amount of information or number of witnesses to be presented in connection with any hearing. In any event, the
arbitrator(A) shall permit each side no more than two (2) depositions (including any deposition of experts), which
depositions may not exceed four(4) hours each, one set of 10 interrogatories(inclusive of sub-parts) and one set of
five (5) document requests (inclusive of sub-parts), (B) shall not permit any requests for admissions, (C) shall limit
the hearing, if any, to two(2)days,and(D)shall render his or her decision within sixty(60)days of the filing of the
arbitration.
10.8.3. Costs of Arbitration. The arbitrators will have the exclusive authority to determine and
award costs of arbitration and the costs incurred by any party for its attorneys,advisors and consultants.
10.8.4. Award of Arbitrators. Any award made by the arbitrators shall be binding on Lessor,
Lessee and all parties to the arbitration and shall be enforceable to the fullest extent of the law.
10.85. Governin¢ Law; Actual Damages; Etc. In reaching any determination or award, the
arbitrators will apply the laws of the state in which the Leased Premises is located. Except as permitted under
Section 10.83 above, the arbitrators' award will be limited to actual damages and will not include consequential,
special, punitive or exemplary damages. Nothing contained in this Lease will be deemed to give the arbitrators any
GROUND LEASE AGREEMENT-Page 19
authority,power or right to alter,change,amend,modify,add to or subtract from any of the provisions of this Lease.
All privileges under state and federal law, including, without limitation, attorney-client, work product and party
communication privileges,shall be preserved and protected. All experts engaged by a party must be disclosed to the
other party within fourteen(14)days after the date of notice and demand for arbitration is given.
Section 10.9. Injunctive/AncWary/Emergency Relief. Notwithstanding any provision of
Section 10.8 of this Lease to the contrary, any party may seek injunctive relief or other form of ancillary relief at
any time from any court of competent jurisdiction in Tarrant County, Texas. In the event that a dispute or
controversy requires emergency relief before the matter may be resolved under the arbitration procedures of Section
10.8 above, notwithstanding the fact that any court of competent jurisdiction may enter an order providing for
injunctive or other form of ancillary relief, the parties expressly agree that such arbitration procedures will still
govern the ultimate resolution of that portion of the dispute or controversy not resolved pursuant to said court order.
Section 10.10. Lessor's Remedy for Failure to Commence Construction of Hotel. If Lessee (or the
guarantor under the Guaranty) does not commence construction of the Hotel by the date required under the 380
Agreement and Lessor does not enforce its rights under the Guaranty, then Lessor,as its sole and exclusive remedy
under this Lease, may terminate this Lease by delivering written notice to Lessee. If Lessee fails to commence
construction within fifteen (15) days after receipt of such notice from Lessor, this Lease will terminate upon the
expiration of such fifteen (15) day period, in which event neither party will have any further rights or obligations
under this Lease,except for those rights and obligations which by their express terms survive the termination of this
Lease.
Section 10.11. Acknowledgement of Automatic Termination. Lessor and Lessee acknowledge that
Section 4.4 of the 380 Agreement provides that this Lease and all other Development Documents will automatically
terminate if the Guaranty is not delivered to Lessor within the time period required under Section 4.4 of the 380
Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Amendments, Changes and Modification. No amendment, change, addition to or
waiver of any of the provisions of this Lease shall be binding upon the parties hereto unless in writing signed by
Lessee and Lessor.
Section 11.2. Applicable Law. The Lease shall be governed exclusively by the provisions hereof and
by the applicable laws of the State.
Section 113. Severability. If any provision of this Lease is held to be illegal, invalid,or unenforceable
under present or future laws effective during the Term such provision shall be fully severable and this Lease shall be
construed and enforced as if such illegal, invalid,or unenforceable provision had never comprised a part hereof,and
the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid,
or unenforceable provision or by its severance from this Lease. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this Lease a provision as similar in terms to
such illegal, invalid,or unenforceable provision as may be possible and still be legal,valid,or enforceable.
Section 11.4. Notices and Demands. Any notices or other communications required or desired to be
given to the other party hereto shall be given in writing and delivered by courier, overnight delivery service,
facsimile transaction or through the U.S. postal service, postage prepaid and by certified mail, return receipt
requested,at the following addresses:
To Lessor. City of Fort Worth
1000 Throckmorton
Fort Worth,TX 76102
Attention: City Manager
GROUND LEASE AGREEMENT-Page 20
With a copy to: City of Fort Worth
1000 Throckmorton
Fort Worth,TX 76102
Attention: City Attorney
To Lessee: Omni Hotels Corporation
420 Decker Drive
Irving,TX 75062
Attention: President
With a copy to: Omni Hotels Corporation
420 Decker Drive
Irving,TX 75062
Attention: Michael A.Garcia
With a copy to: Omni Hotels Corporation
420 Decker Drive
Irving,TX 75062
Attention: Michael G. Smith
With a copy to: Winstead Sechrest&Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas,TX 75270
Attention: T. Andrew Dow,Esq.
Section 11.5. References. All references in this Lease to particular Articles or Sections are references
to Articles or Sections of this Lease, unless otherwise indicated. Article and Section headings are furnished for
convenience only and do not constitute a part of this Lease. References in the singular number in this Lease shall be
considered to include the plural, if and when appropriate, and vice versa. Any times referred to herein shall be
deemed references to Fort Worth, Texas, time. Any capitalized terms not specifically defined herein shall have the
meanings ascribed to them in the Master Agreement.
Section 11.6. Successors and Assigns. The terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 11.7. Multiple Counterparts. This Lease may be executed in multiple counterparts, each of
which shall be an original but all of which together shall constitute but one and the same instrument.
Section 11.8. Recordation. Lessor and Lessee shall not record this Lease, but both parties agree, on
request of the other, to execute a memorandum of lease in the form attached hereto as Exhibit"D", which
memorandum of lease may be recorded by the requesting party.
Section 11.9. Right of Entry. Lessor shall have the right to enter upon the Leased Premises, the Hotel
and the Hotel Garage for purposes of inspecting same to confirm Lessee is in compliance with the terms and
conditions of this Lease,so long as Lessor delivers at least forty-eight(48)hours'prior written notice to Lessee and,
if required by Lessee,is accompanied by a representative of Lessee.
Section 11.10. Estoppel Agreements. Within twenty(20)days after receipt of written request from the
other party, Lessor and Lessee shall execute and deliver to each other(and to such other person as the requesting
party may designate)an estoppel certificate or agreement certifying that this Lease is unmodified and is in full force
and effect(or if there have been modifications,stating that this Lease is in full force and effect as modified),stating
that the requesting party is not in default(or stating the nature of any alleged default)and further stating any matters
reasonably requested by the other party. Notwithstanding anything to the contrary set forth in this Section l 1.10,
neither Lessor nor Lessee will be required to execute such an estoppel certificate more often than two (2) times in
any twelve(12)-month period.
GROUND LEASE AGREEMENT-Page 21
IN TESTIINONY WHEREOF,Lessor has caused its name to be subscribed below and attested by its City
Secretary,pursuant to a resolution duly adopted by its City Council; and Lessee has caused its corporate naive to be
subscribed by its duly authorized officer pursuant to a resolution duly adopted by its board of directors, as of the
year and day first above written.
LESSOR:
Approved as to form: CITY OF FOR O H
?I-
By:City Attorney C_2 6/8 3 -2 cj-0s City Man f
r
ATTEST:
Cn �����
City Secretary
LESSEE:
OMNI FORT WORTH PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its general partner
By. � , 1A
Name: cott Johnson
Title: Vice President
GROUND LEASE AGREEMENT-Page 22
EXHIBIT A
DESCRIPTION OF THE LAND COMPRISING THE LEASED PREMISES
Sections 7 and 8,TARRANT COUNTY CONVENTION CENTER, an addition to the City of Fort Worth, Tarrant
County, Texas, according to plat thereof recorded in Volume 388-59, Page 14, Plat Records of Tarrant County,
Texas.
NOTE: The land comprising the Leased Premises is subject to change pursuant to Section 4.5 of this Lease.
EXHIBIT A,Description of the Land Comprising the Leased Premises—Page l
EXHIBIT B
PERMITTED EXCEPTIONS
1. Fifteen foot (15') sanitary sewer easement as shown on plat recorded in Volume 388-59, Page 14, Plat
Records of Tarrant County,Texas.
2. Easement for utilities retained in City of Fort Worth Ordinance No. 6137 closing a portion of West 12'"
Street, as shown on plat recorded in Volume 388-59,Page 14,Plat Records of Tarrant County,Texas.
3_ Easement granted to Texas Electric Service Company dated August 31, 1970 and recorded in Volume
4951,Page 979,Deed Records of Tarrant County,Texas.
4. Easement granted to Texas Utilities Electric Company dated March 24, 1992 and recorded in
Volume 10626,Page 2316, Deed Records of Tarrant County,Texas.
EXHIBIT B,Permitted Exceptions—Page I
EXHIBIT C
PLAT
[A copy of the Plat recorded in Volume 388-59,Page 14,
Plat Records of Tarrant County,Texas follows this cover page.]
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EXHIBIT D
MEMORANDUM OF LEASE
This Memorandum of Lease (herein the"Memorandum") is executed by and between the CITY OF FORT
WORTH,TEXAS, a Texas home-rule city("Lessor") and OMNI FORT WORTH PARTNERSHIP, L.P., a limited
partnership organized and existing under the laws of the State of Delaware("Lessee").
RECITALS:
A. The parties hereto have made and entered into that certain Ground Lease Agreement(as described
and defined hereinbelow).
B. The parties desire to record a Memorandum of Lease to provide notice to third parties of the
Lease.
AGREEMENTS:
NOW,THEREFORE,Lessor and Lessee do hereby make and enter into this Memorandum for the purposes
described above:
1. Description of Leased Premises. Lessor and Lessee have made and entered into that certain
Ground Lease Agreement (as same may be hereafter renewed or amended, the "Lease") dated effective as of
April 2005,covering the Leased Premises described hereinbelow, providing for the lease by Lessee from Lessor
of such Leased Premises upon the terms and conditions set forth in such Lease. The Lease applies to all of that
certain tract or parcel of land situated in the City of Fort Worth, Tarrant County, Texas, which land is more
particularly described in Exhibit"A" attached hereto, incorporated herein by this reference, and made a part hereof
for all purposes(the"Leased Premises").
2. Term of Lease. The Term of the Lease commences on the date Lessee obtains a building permit
from the applicable governmental authorities relating to the construction of the Hotel and continues for ninety-nine
(99)years thereafter. Lessor and Lessee will execute a Memorandum of Commencement Date confirming the actual
Commencement Date and the expiration date of the Term.
3. Option to Purchase. Lessee has the option to purchase the Leased Premises commencing on the
tenth (10th) anniversary of the opening of the Hotel located thereon, and expiring one (1) year thereafter. Lessee's
option to purchase is subject to the terms and conditions more particularly described in Article IX of the Lease.
4. Lease Amendments. The Lease may not be orally amended.
5. General. Nothing contained in this Memorandum shall be deemed or construed to amend, modify,
change, alter, amplify, interrupt or supersede any of the terms or provisions of the Lease. In the event of a conflict
between the terms of the Lease and the terms of this Memorandum, the terms of the Lease shall prevail and be
controlling. This Memorandum may be executed in multiple counterparts, and each counterpart shall be deemed an
original hereof. Accordingly, this Memorandum shall become binding, notwithstanding the execution of separate
originals hereof, one by each of the parties hereto. Capitalized terms used but not defined in this Memorandum will
have the definitions ascribed to such terms in the Lease.
[The remainder of this page is intentionally left blank]
EXHIBIT D, Memorandum of Lease —Page 1
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum on the dates set forth in the
acknowledgments attached hereto,but to be effective as to the day of April,2005.
LESSOR:
CITY OF FORT WORTH,
a Texas home-rule city
By:
Name:
Title: City Manager
LESSEE:
OMNI FORT WORTH PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its general partner
By:
Name: Scott Johnson
Title: Vice President
EXHIBIT D, Memorandum of Lease — Page 2
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on the day of April, 2005 by
the City Manager of the CITY OF FORT WORTH,TEXAS, a Texas home-rule city, on
behalf of said city.
[SEAL]
Notary Public,State of Texas
My Commission Expires:
(Printed Name of Notary Public)
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of April, 2005 by Scott Johnson, the Vice
President of Omni Fort Worth GP Corporation, a Delaware corporation, the general partner of OMNI FORT
WORTH PARTNERSHIP, L.P., a Delaware limited partnership, on behalf of said corporation and limited
partnership.
[SEAL]
Notary Public, State of Texas
My Commission Expires: _
(Printed Name of Notary Public)
EXHIBIT D,Memorandum of Lease - Page 3
EXHIBIT A
Leased Premises
Sections 7 and 8, TARRANT COUNTY CONVENTION CENTER, an addition to the City of Fort Worth, Tarrant
County, Texas, according to plat thereof recorded in Volume 388-59, Page 14, Plat Records of Tarrant County,
Texas.
EXHIBIT A to EXHIBIT D, Memorandum of Lease - Page l
EXHIBIT E
MENIORANDUM OF COMNIENCENIENT DATE
This MEMORANDUM OF COMMENCEMENT DATE ("Memorandum") is entered into on
, 2005, between the CITY OF FORT WORTH, TEXAS ("Lessor"), and OMNI FORT WORTH
PARTNERSHIP, L.P.,a Delaware limited partnership("Lessee").
RECITALS
A. Lessor and Lessee entered into that certain Ground Lease Agreement dated April_, 2005
(the"Lease"), relating to the land described on Exhibit"A" attached hereto. The Lease is evidenced by that certain
Memorandum of Lease recorded in Volume , Page of the Real Property Records of Tarrant County,
Texas. All terms used but not defined herein have the meanings set forth in the Lease.
B. Lessor and Lessee wish to confirm certain matters relating to the Lease.
AGREEMENT
1. Commencement Date. Lessor and Lessee certify that the Commencement Date under the Lease is
2005 and the Lease Term is scheduled to expire on 12—.
2. Entire Agreement, No Amendment. The Lease constitutes the entire agreement between Lessor
and Lessee. The Lease has not been amended and is in full force and effect. This Memorandum supplements but
does not amend the Lease. This Memorandum may be recorded by either Lessor or Lessee in the Real Property
Records of Tarrant County, Texas.
EXECUTED as of the date set forth above.
LESSOR:
CITY OF FORT WORTH
By:
Name:
Title: City Manager
TENANT:
OMNI FORT WORTH PARTNERSHIP,L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its general partner
By:
Name:
Title:
EXHIBIT E, Memorandum of Commencement Date- Page l
STATE OF TEXAS §
COUNTY OF TARRANI' §
This instrument was acknowledged before me on the day of 200_ by
the City Manager of the CITY OF FORT WORTH,TEXAS, a Texas home-rule city, on
behalf of said city.
[SEAL]
Notary Public,State of Texas
My Commission Expires:
(Printed Name of Notary Public)
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of 200_ by
, the of Omni Fort Worth GP
Corporation, a Delaware corporation, the general partner of OMNI FORT WORTH PARTNERSHIP, L.P., a
Delaware limited partnership, on behalf of said corporation and limited partnership.
[SEAL]
Notary Public,State of Texas
My Commission Expires:
(Printed Name of Notary Public)
EXHIBIT E, Memorandum of Commencement Date—Page 2
EXHIBIT A
Leased Premises
Sections 7 and 8, TARRANT COUNTY CONVENTION CENTER, an addition to the City of Fort Worth, Tarrant
County, Texas, according to plat thereof recorded in Volume 388-59, Page 14, Plat Records of Tarrant County,
Texas.
EXHIBIT A to E, Memorandum of Commencement Date—Page I
Dallas-1 4102531v.10
CiTV' SECRETARY'''
CONTRACT NO. �nb Ito
FIRST AMENDMENT TO ORO:JND LEASE
THIS FIRST AMENDMENT TO GROUND LEASE (this "Amendment") is entered into
as of October 30, 2007 (the "Effective Date"), by and among the CITY OF FORT WORTH,
TEXAS, a Texas home-rule city ("Lessor"), and OMNI FORT WORTH PARTNERSHIP,
L.P., a Delaware limited partnership ("Lessee").
A. WHEREAS, effective as of April 27, 2005, Lessor and Lessee entered into a
Ground Lease Agreement, referred to as City Secretary Contract No. 31736, for certain Leased
Premises located in Fort Worth, Tarrant County, Texas, as more fully described therein (the
"Lease"); and
B. WHEREAS, Lessor and Lessee entered into that certain Memorandum of Ground
Lease dated April 27, 2005, and recorded under Instrument Number D205136078 in the Real
Property Records of Tarrant County, Texas, and also referred to as City Secretary Contract No.
31737, evidencing the Lease; and
C. WHEREAS, pursuant to Section 4.5 of the Lease, the parties have reached an
agreement regarding the location of the Improvements to be constructed by Lessee and the
location of the parking garage to be constructed by Lessor; and
D. WHEREAS, pursuant to Section 4.5, Lessor has caused the Leased Premises to be
replatted and has caused the replat to be recorded in Cabinet A, Slide 11331 of the Deed Records
of Tarrant County, Texas; and
E. WHEREAS, pursuant to Section 4.5, the parties desire to amend the Lease to
replace Exhibit A attached to the Lease with the legal description of the land upon which the
Improvements and the parking garage are to be located.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, Lessor and Lessee do
hereby agree as follows:
1. Defined Terms. Unless otherwise defined in this Amendment or the context
otherwise requires, each term used in this Amendment with its initial letter capitalized which has
been specifically defined in the Lease shall have the same meaning herein as given to such term
in the Lease.
2. Legal Description. The parties hereby agree that the legal description attached
hereto as Exhibit A shall replace Exhibit A of the Lease for all purposes. All references to
Leased Premises in the Lease are hereby amended to refer to the new Exhibit A.
3. No Other Effect. Except as expressly amended by this Amendment, no term or
provision of the Lease is or shall be amended, modified or supplemented, and the Lease, as
amended hereby, is hereby ratified and reaffirmed by the parties and shall continue in full force
and effect.
FIRST AMENDMENT TO GROUND LEASE—Page 1 114�S
4. Counterparts. To facilitate execution, this Amendment may be executed in as
many counterparts as may be convenient or required. It shall not be necessary that the signature
of, or on behalf of, each party, or that the signature of all persons required to bind any party
appear on each counterpart. All counterparts shall collectively constitute a single instrument. It
shall not be necessary in making proof of this Amendment to produce or account for more than a
single counterpart containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached to another counterpart
identical thereto except having attached to it additional signature pages. Delivery of an executed
counterpart of this Amendment by facsimile shall be binding upon the party so delivering.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
FIRST AMENDMENT TO GROUND LEASE—Page 2
IN WITNESS WHEREOF, the undersigned have executed this Amendment effective as
of the Effective Date.
LESSOR:
Approved as to form:
CITY OF FORT WORTH, a Texas home-rule city
By:
City AttorneyName:
C 6 Title: City Manager
3-2 q-vs
ATTEST:
City Secret
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIRST AMENDMENT TO GROUND LEASE-Signature Page 1
/r%�S
L
OMNI FORTH WORTH PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its General Partner
By:, 'r D
Name: A &e I C-5111i+t-1-
Title: V �r►tii �, "
FIRST AMENDMENT TO GROUND LEASE—Signature Page 2
%�l`1
1
EXHIBIT A
LEGAL DESCRIPTION
Lot 1, Section 8R, FORT WORTH CONVENTION CENTER ADDITION, an Addition to the
City of Fort Worth,Tarrant County, Texas, according to plat recorded in Cabinet A, Slide 11331,
Deed Records of Tarrant County, Texas.
Dallas_l�5101492�3
42379-19/26/2007
EXHIBIT A—Solo Page
irr�f