HomeMy WebLinkAboutContract 37785 (2)CITY SECRETARY 311
EASE AGREEMENT Cori i � ACT NO.
This Lease Agreement (this "Lease") is made as of the ( day of OC=f(jb j,�,� 2008, by
and between JPMCC2005-CIBC13 MCCART AVENUE, LLC, a Texas limited liability company
("Landlord"), and CITY OF FORT WORTH ("Tenant").
1. BASIC LEASE PROVISIONS:
1.1
1.2
1.3
Shopping Center Name: McCart Village
Address: 7650 McCart Avenue
Fort Worth, Texas
as more particularly described in Schedule 1.
Unit/Suite No.: 7650
Premises: 6,587 square feet of Net Rentable Area (defined below) as reflected on the
site plan attached hereto as Schedule 2 (the "Site Plan").
1.4. Commencement Date of this Lease: the earlier to occur of (i) October 1, 2008 or
(ii) five days after substantial completion of the Work as set forth in the Construction
Rider attached hereto as Schedule 3 and made a part hereof.
1.5. Expiration Date of this Lease: 60 full months after the first calendar day of the month
following the Commencement Date.
1.6. Tenant's Percentage Share: Initially, Tenant's Percentage Share will be 20.07% based
upon a fraction of which the numerator is the Net Rentable Area (defined below)
contained within the Premises and the denominator is the total square feet of Net
Rentable Area in the Shopping Center. However, Tenant's Percentage Share shall vary
each time that either the Net Rentable Area of the Premises changes and/or the Net
Rentable Area of the Shopping Center changes in the same manner as determined above.
1.7. Security Deposit: $8,AAA .00. (See Paragraph 23).
1.8. Base Rent:
DATE $/RSF ANNUAL RENT MONTHLY RENT
Months 1 — 30 $9.00 $59,283.00 $4,940.25
Months 31 — 60 $10.00 $655870400 $5,489.17
1.9. Operating Expense Rent: Tenant's Percentage Share of Operating Expenses. The
estimated monthly charge for Operating Expense Rent during the first calendar year of
the Term (or portion thereof) is $5.50 per square foot annually. (See Paragraph 6).
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1.10. Address for payment of Rent and notices:
Landlord: Tenant:
JPMCC2005-CIBC13 McCart City of Fort Worth
Avenue LLC Real Property Services Division
Trinity Interests Fort Worth, Texas 76102
Preston Royal Office Park Attn: Cloyde Jordan
5924 Royal Lane, Suite 250
Dallas, Texas 75230
Attn.: David van Etten
With a copy of Notices only With a copy of Notices to:
(not Rent payments) to:
JPMCC2005-CIBC 13 McCart City of Fort Worth
Avenue LLC Police Department
LNR Partners, Inc. 350 W. Belknap, Room 205A
1601 Washington Avenue, Suite 700 Fort Worth, Texas 76102
Miami Beach, Florida 33139 Attn: Kathy Hinz
Attn: Director of Real Estate Asset Mgmt.
1.11. Broker: Landlord's Broker is Fletcher Johnson Realty. Tenant is not represented by a
broker. (See Paragraph 39.)
1.12. Permitted Use: Tenant shall use the Premises solely for use as a police department
substation (which shall contain no arrestees) and as a community resource/meeting
center.
1.13. Renewal Option: Tenant shall have the right, subject to the terms and conditions of
Paragraph 50 below to renew its tenancy of the Premises for one renewal option (the
"Renewal Option") for a period of 60 months.
2. DEFINITIONS: Unless the context otherwise specifies or requires, the following terms will
have the meanings set forth below:
2.1 . "Common Areas" shall mean all areas and facilities outside the Premises and within the
exterior boundaries of the Shopping Center that are not leased to other tenants and that
are provided and designated by Landlord, in its sole discretion from time to time, for the
general use and convenience of Tenant and other tenants of the Shopping Center and
their authorized representatives, entities, invitees and the general public. Common Areas
include, but are not limited to, areas within and outside of the buildings on the Shopping
Center, such as pedestrian walkways, patios, landscaped areas, sidewalks, service
corridors, elevators, restrooms, stairways, decorative walls, plazas, mall throughways,
loading areas, parking areas and roads.
2.2. "Lease Year": The first Lease Year will commence upon the Commencement Date and
will end on the next succeeding December 31S`. Thereafter, each 12-month period during
the Term ending on December 31", shall be a Lease Year, and the last Lease Year will
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end on the Expiration Date (unless this Lease is earlier terminated as provided for
herein).
2.3. "Net Rentable Area" shall mean all floor area within the Premises measured at floor
level from the midpoint of all demising walls to the exterior surface of all exterior walls
and exterior glass separating the Premises from the Common Areas (without deduction
for columns or projections necessary to the Shopping Center or Premises) plus Tenant's
Percentage Share of the Common Areas.
2.4. "Operating Expenses" shall mean all costs of operating, servicing, administering,
repairing and maintaining the Shopping Center (excluding costs paid directly by Tenant
and other tenants in the Shopping Center or otherwise reimbursable and actually
reimbursed to Landlord), the landscaping of Common Areas and the parking lot within
and/or adjacent to the Shopping Center (provided such adjacent parking lot serves the
Shopping Center). All costs of operating, servicing, administering, repairing and
maintaining the Shopping Center including any and all reasonable and necessary costs of
operation, maintenance and repair performed by or at the direction of Landlord to
maintain the Shopping Center in a condition that is consistent with similarly situated
shopping centers in the metropolitan center in which the Shopping Center is located. For
example, Operating Expenses shall include, but shall not be limited to: (a) wages,
salaries, fringe benefits and payroll burden for employees on -site utilized in the day-to-
day operation of the Shopping Center; (b) Landlord's Insurance (defined below),
including any amounts that would be charged as premiums if Landlord self -insures any
of the insurance risks; (c) liability disclaimers; (d) water, sewer, heating, air
conditioning, ventilating and all other utility charges (other than with respect to utilities
separately metered and paid directly by Tenant or other tenants); (e) Taxes (defined
below), including, but not limited to, the good faith, reasonable cost of contesting the
validity or amount of such Taxes (regardless of whether such efforts succeed or not); (f)
janitorial services; (g) access control; (h) window cleaning; (i) elevator maintenance, if
applicable; 0) fire detection and security services; (k) landscaping costs; (1) all costs of
snow and ice removal; (m) trash, rubbish, garbage and other refuse removal; (n) pest
control; (o) painting; (p) facade maintenance; (q) lighting; (r) exterior and partition
(demising) wall repairs; (s) roof repairs; (t) maintenance of all steam, water and other
water retention and discharging piping, lakes, culverts, fountains, pumps, weirs, lift
stations, catch basins and other areas and facilities, whether or not on -site; (u) canal
embankment and related maintenance; (v) maintenance, repair and repainting of
sidewalks and general resurfacing and maintenance of parking areas; (w) sanitary
control; (x) depreciation of any and all capital items used in any of such maintenance and
repair activities; (y) repair, maintenance and replacement of signage located in the
Shopping Center; (z) management fees; (aa) the costs (amortized together with a
reasonable finance charge) of any capital improvements that are: (i) made to the
Shopping Center by Landlord primarily for the purpose of reducing Operating Expenses
(regardless of whether such reduction occurs or not); or (ii) made to the Shopping Center
by Landlord to comply with any Legal Requirements (defined below) that was not
required of Landlord on the Commencement Date; and (bb) the costs of supplies,
materials and tools used for any of the above.
Operating Expenses shall not include: (a) depreciation on the Shopping Center or any
Common Areas; (b) costs of space planning, tenant improvements, marketing expenses,
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finders fees and real estate broker commissions; (c) any and all expenses for which
Landlord is reimbursed (either by an insurer, condemnor, tenant or other person or
entity), but only to the extent of such reimbursement; (d) that portion of the salaries for
on or off site personnel to the extent any of them work for other projects owned by
Landlord or the Shopping Center's managing agent; (e) costs in connection with services
or benefits of a type that are not otherwise Operating Expenses and are not available to
Tenant, but are available to another tenant or occupant; (f) mark-ups on utilities in excess
of Landlord's costs therefor; (g) Landlord's general overhead and administrative expenses
not directly allocable to the operation of the Shopping Center; (h) attorneys' fees and cost
related to negotiating or enforcing any tenant lease, or resolving disputes with any lender
of Landlord or obtaining any financing for the Shopping Center; (i) cost of capital
improvements unless expressly provided for in the foregoing paragraph; 0) interest on
debt or amortization payments on any mortgage/deed of trust, or rent on any ground
lease; and (k) federal and state taxes on income, death, estate or inheritance; or franchise
taxes.
2.5. "Ready for Occupancy": The Premises shall be "Ready for Occupancy" as of the date
on which Landlord shall have substantially completed all work to be performed by it
pursuant to Schedule 3 attached hereto.
2.6. "Taxes" shall mean all real and personal property taxes, assessments (whether they be
general or special), sewer rents, rates and charges, transit taxes, taxes based upon the
receipt of Rent and any other federal, state or local government charge, general, special,
ordinary or extraordinary (but not including income or estate taxes), which may now or
hereafter be levied or assessed against the land upon which the Shopping Center stands
or the Shopping Center for such year or the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances used in connection with the Shopping Center for
the operation thereof.
2.7. "Environmental Law" shall mean any law, statute, ordinance or regulation pertaining to
health, industrial hygiene or the environment including, without limitation, CERCLA
(Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended), RCRA (Resources Conservation and Recovery Act of 1976) and SARA
(Superfund Amendments and Reauthorization Act of 1986).
2.8. "Hazardous Substance" shall mean any substance, material or waste that is or becomes
designated, classified or regulated as being "toxic" or "hazardous°' or a '°pollutant,'° that
is or becomes similarly designated, classified or regulated, under any Environmental
Law, including asbestos, petroleum and petroleum products, or that becomes hazardous
to the health and welfare of any occupants in the Shopping Center.
2.9. "Legal Requirements" shall mean any and all statutes, ordinances and requirements of
all local, municipal, state and federal authorities now in force, or that may hereafter be in
force, pertaining to the Premises and/or the Shopping Center occasioned by or affecting
the use thereof by Tenant, including, but not limited to, the Americans With Disabilities
Act; as amended from time to time.
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3.
2.10. "Schedules" shall mean the Schedules attached hereto and incorporated herein by
reference. This Lease contains the following Schedules:
Schedule I Legal Description of Shopping Center
Schedule 2 Site Plan
Schedule 3 Construction Rider
Schedule 4 Tenant Acceptance Letter
Schedule 5 Rules and Regulations
Schedule 6 Sign Criteria
2.12. "Term" shall mean the period of Tenant's occupancy of the Premises pursuant to the
terms and conditions of this Lease. It shall commence as of the Commencement Date and
end as of the Expiration Date, unless sooner terminated as provided herein or extended
pursuant to the terms of this Lease.
PREMISES:
3.1. Lease of Premises: Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, for the Term and subject to the agreements, covenants, conditions and
provisions set forth in this Lease, to which Landlord and Tenant hereby mutually agree,
the Premises. The parties hereby stipulate the number of square feet of Net Rentable
Area in the Premises and both parties waive the right either may have to remeasure the
same. Upon occupancy of the Premises by Tenant, Tenant shall promptly execute and
deliver to Landlord the Tenant Acceptance Letter attached hereto as Schedule 4. If
Landlord is unable to deliver possession of the Premises Ready for Occupancy, on the
Commencement Date, Landlord shall not be liable for any damage caused thereby, nor
shall this Lease be void or voidable, but Tenant shall not be liable for any Rent and the
Commencement Date shall be delayed until possession is delivered Ready for
Occupancy, at which time the Term shall commence and the Expiration Date shall be
extended so as to give effect to the full stated Term. Notwithstanding the foregoing, if
the delay in delivering the Premises is due to a Tenant Delay as defined in Schedule 3,
the Commencement Date and the Expiration Date shall be adjusted in accordance with
the provisions of Schedule 3. By occupying the Premises and conducting its business
therein, Tenant shall be deemed to have accepted the Premises, acknowledged that the
Premises are Ready for Ocupancy hereunder, and agreed that the obligations of Landlord
under Schedule 3 have been fully performed.
3.2. Shopping Center: The Premises are a part of the Shopping Center. Landlord may
increase, reduce or change the number, dimensions or locations of the walks, buildings,
mall areas, parking and other Common Areas and other improvements located in the
Shopping Center in any manner that Landlord, in its sole discretion, shall deem proper.
Landlord further reserves the right to make alterations and/or additions to and to build or
cause to be built additional stories on the building in which the Premises are situated and
to add any buildings adjoining the Premises or elsewhere in the Shopping Center.
Without limiting the generality of the foregoing, Landlord reserves the right to, in its sole
discretion, at all times, and from time to time throughout the Term, without incurring any
liability to Tenant and without it constituting an eviction: (a) install, maintain, use, repair
and replace pipes, ducts, conduits and wires leading through the Premises and serving
other parts of the Shopping Center, (b) add additional tenants, retail shops, buildings,
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parking facilities anywhere in the Shopping Center (as may be expanded in accordance
with this Subparagraph), (c) to renovate the Shopping Center (such renovation shall
include, but not be limited to, the right to erect scaffolding, alter the configuration of all
interior and exterior portions of the Common Areas); (d) change the size and layout of
the Shopping Center; (e) build and/or demolish structures and buildings, expand and/or
alter the parking facilities, relocate existing buildings and structures; and (f) and install
or move columns, pipes, and utility lines. Landlord shall use reasonable efforts (which
shall not include any obligation to employ labor at overtime rates) to avoid unreasonable
disruption of Tenant's use of the Premises during such renovation, except in the case of
an emergency. Once Landlord commences any such renovation, Landlord shall
diligently pursue such renovation to completion. Any addition or reduction of the Net
Rentable Area of the Shopping Center resulting from Landlord's actions provided for
above shall result in recalculating Tenant's Percentage Share in accordance with
Paragraph 1 above.
Furthermore, Landlord shall have the right to change the Shopping Center's name
without notice, to change the Shopping Center's street address upon 90 days' prior notice,
to grant to any person or entity the exclusive right to conduct any business or render any
service in or to the Shopping Center, provided such exclusive right shall not operate to
prohibit Tenant from using the Premises for the purpose set forth in Paragraph 7, to
retain at all times master keys or passkeys to the Premises, and to place such signs,
notices or displays as Landlord reasonably deems necessary or desirable upon the roof
and exterior of the Shopping Center,
3.3. Relocation of Tenant: Landlord expressly reserves the right after the execution and
during the term of this Lease, or any extension or renewal thereof, at its sole cost and
expense, to remove the Tenant from the Premises and relocate the Tenant to some other
space of Landlord's choosing of approximately the same size within the Shopping
Center, which other space shall be decorated by Landlord at Landlord's expense and
Landlord may in its discretion use such decorations and materials from the existing
Premises or other materials, so that the space in which Tenant is relocated is comparable
in its interior design and decoration to the Premises from which Tenant is removed.
Landlord shall provide to Tenant, at Landlord's sole cost and expense, tenant
improvements in the space in which Tenant is relocated that are comparable to the
Premises from which Tenant is removed. Tenant, by the execution of this Lease,
acknowledges the foregoing right of Landlord, and no rights granted in this Lease to
Tenant, including, but not limited to, the right of peaceful and quiet enjoyment, shall be
deemed to have been breached or interfered with by reason of Landlord's exercise of the
right of relocation reserved in this Subparagraph. Landlord's sole obligation for costs
and expenses of removal and relocation shall be the actual cost of the renovations or
alterations necessary to make the new premises substantially conform in layout and
appointment with the original Premises and the reasonable costs of moving Tenant
actually incurred in connection with same, and Tenant agrees that Landlord's exercise of
its election to remove and relocate Tenant shall not terminate this Lease or release the
Tenant, in whole or in part, from the Tenant's obligation to pay the Rent and perform the
covenants and agreements hereunder for the full Term.
3.4. Funding Non -Appropriation and Termination: This Lease shall terminate in the event
Tenant shall fail to appropriate sufficient funds to satisfy any of Tenant's obligations
hereunder. Termination shall be effective as of the last day of the fiscal period for which
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sufficient funds were appropriated (the "Termination Date"). Tenant agrees to give
Landlord written notice of Tenant's election to terminate this Lease, which notice shall
be given upon the later to occur of (i) 90 days prior to the Termination Date and (ii) two
business days after annual budget appropriations are officially approved by City Counsel
vote; provided, however, that in no event shall such notice be given later than 45 days
prior to the Termination Date. Upon such termination, Tenant agrees to peaceably
deliver the Premises including the systems and equipment on the Premises, to Landlord
in as good condition as received, normal wear and tear excepted. Tenant's failure to
vacate the Premises in such condition on the Termination Date shall be deemed to be
holding over and the provisions of Paragraph 30 shall apply. As consideration for this
termination right, Tenant shall pay to Landlord a termination fee in the amount of the
unamortized value of the leasehold improvements and leasing expenses (including
brokerage commissions and attorneys' fees), which amortization shall be done on a
constant principal basis with 10% interest imputed thereon (the "Termination Fee").
Except for payment of the Termination Fee, Tenant's termination of this Lease pursuant
to the terms hereof shall be without further penalty or expense to either party; provided,
however that Tenant shall continue to be liable for any deficiency and Landlord shall
continue to be liable for any overpayment of Operating Expense Rent, as the case may
be, for the calendar year in which the Termination Date occurs, which deficiency shall be
paid to Landlord or overpayment shall be refunded to Tenant, as the case may be, within
30 days after delivery of the statement described in Subparagraph 6.3.
4. COMMON AREAS:
4.1. Tenant's Right to Use Common Areas: Landlord grants Tenant and its authorized
representatives and invitees the non-exclusive right to use the Common Areas with
others who are entitled to use the Common Areas subject to Landlord's rights as set forth
in this Lease.
4.2. Landlord's Control: In addition to the rights Landlord maintains concerning the
Shopping Center described in Subparagraph 3.2, Landlord has the right to: (a) establish
and enforce reasonable rules and regulations applicable to tenants of the Shopping
Center concerning the maintenance, management, use and operation of the Common
Areas, the initial rules and regulations are attached to the Lease as Schedule 5; (b) close,
if necessary, any of the Common Areas to prevent dedication of any of the Common
Areas or the accrual of any rights of any person or of the public to the Common Areas;
(c) close temporarily any of the Common Areas for maintenance purposes or for health
and safety purposes (e.g., bomb threat, hurricane); (d) select a person, firm or
corporation, which may be an entity related to Landlord, to maintain and operate any of
the Common Areas; and (e) designate other lands outside the exterior boundaries of the
Shopping Center to become part of the Common Areas. Notwithstanding the provisions
of this Subparagraph, in exercising its rights hereunder, Landlord shall provide Tenant
with a means of reasonable access to and from the Premises.
5. BASE RENT:
5.1. Base Rent: Tenant will pay to Landlord as Rent for the use and occupancy of the
Premises at the times and in the manner provided below, Base Rent in the amount
specified in Paragraph 1 payable in U.S. funds, in advance starting on the
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Commencement Date and on or before the first day of each and every successive
calendar month thereafter during the Tenn without demand or deduction. The obligation
of Tenant to pay all Rent and other sums hereunder provided to be paid by Tenant and
the obligation of Tenant to perform Tenant's other covenants and duties hereunder
constitute independent, unconditional obligations to be performed at all times provided
for hereunder, save and except only when an abatement thereof or reduction therein is
hereinabove expressly provided for and not otherwise. Tenant waives and relinquishes
all rights that Tenant might have to claim any nature of lien against or withhold, or
deduct from or offset against any Rent and other sums provided hereunder to be paid
Landlord by Tenant.
5.7. Sales Tax: Additional Rent: In addition to the Base Rent and Percentage Rent, Tenant
agrees to pay Landlord monthly all sales or use taxes or excise taxes imposed or levied
by the State in which the Shopping Center is located or any other governmental body or
agency against any Rent or any other charge or payment required hereunder to be made
by Tenant to Landlord, but only if any such taxes are charged. All sums of money as
shall become due and payable by Tenant to Landlord under this Lease, including,
without limitation, sales tax and Tenant's Percentage Share of Operating Expenses, shall
be Additional Rent that Tenant shall be obligated to pay. Landlord shall have the same
remedies for default in the payment of additional rent as are available to Landlord in the
case of a default in the payment of Base Rent and Percentage Rent. All charges to
Tenant by Landlord accruing under this Lease, shall be considered as "Additional Rent"
and be collectible in the same manner as all other components of Rent hereunder. Base
Rent, Percentage Rent, Additional Rent and all other sums payable by Tenant to
Landlord hereunder shall be collectively referred to herein as "Rent."
5.8. Taxes Pa ay ble by Tenant: Tenant shall be directly responsible for taxes upon, measured
by or reasonably attributable to the cost or value of Tenant's equipment, furniture,
fixtures and other personal property located in the Premises or by the cost or value of any
leasehold improvements made in or to the Premises by or for Tenant other than the initial
improvements to be installed at Landlord's expense regardless of whether title to such
improvements is in Tenant or Landlord.
5.9. Late Fee /Default Interest. Any installment of Rent not paid when due and payable shall
bear interest at 18% per annum from the date due until paid and shall be subject to a late
charge in the amount equal to 5% of the amount due. In the event any check, bank draft
or negotiable instrument given for any payment under this Lease shall be dishonored at
any time for any reason whatsoever not attributable to Landlord, Landlord shall be
entitled, in addition to any other remedy that may be available, to an administrative
charge of $25.00. No late fee, default interest or the like chargeable by Landlord
hereunder shall exceed those charges permitted by the applicable Legal Requirements.
5.10. First Month's Rent. The Base Rent installment due for the first full calendar month and
any partial month occurring at the beginning of the Lease Term and the Security Deposit,
if applicable, shall be delivered as soon as practicable following the full execution of this
Agreement and the filing of the Agreement with the City of Fort Worth's City Secretary's
Office.
6. OPERATING EXPENSES:
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6.1. Operating Expenses Rent: In addition to Base Rent and Percentage Rent, Tenant shall
pay Operating Expenses Rent as provided for in this Lease. In addition to Operating
Expenses Rent, Tenant shall also pay to Landlord an administrative charge equal to 15%
of the Operating Expenses Rent, to be paid concurrently and in the same manner with
Tenant's payment of Operating Expenses Rent. If the Shopping Center consists of more
than one building, the Landlord reserves the right to contract for services an/or utilities
on a building wide or Shopping Center wide basis. In such instance, Tenant's Percentage
Share for such services, utilities or other costs shall be calculated based upon the Net
Rentable Area of the building in which the Premises is located compared to the Net
Rentable Area of the Shopping Center or vice versa.
6.2. Payment: During December of each calendar year or as soon thereafter as practicable,
Landlord shall provide Tenant with a written notice of its estimate of Operating
Expenses Rent for the ensuing calendar year. On or before the first day of each month
during the ensuing calendar year, Tenant will pay to Landlord 1/12`h of such estimated
amounts, provided that if such notice is not given in December, Tenant will continue to
pay on the basis of the prior year's estimate until the month after such notice is given.
6.3. Statement: Within 120 days after the close of each calendar year or as soon after such
120-day period as practicable, Landlord will deliver to Tenant a statement of amounts of
Operating Expense Rent payable under this Lease for such calendar year. If such
statement shows an amount owing by Tenant that is more than the estimated payments
for such calendar year previously made by Tenant, Tenant will pay the deficiency to
Landlord within 30 days after delivery of the statement. If the total of the estimated
monthly installments paid by Tenant during any calendar year exceeds the actual expense
adjustment amount due from Tenant for such calendar year and provided Tenant is not in
default hereunder, such excess shall, at Landlord's option, be either credited against
payments next due hereunder or refunded by Landlord to Tenant, or if such adjustment
occurs at the expiration of the Term, Landlord shall refund Tenant's overpayment within
30 days after Tenant vacates the Premises in full accordance with this Lease.
6.4. Gross Up. Notwithstanding any provision of this Subparagraph to the contrary, if the
building in which the Premises is located (in the event that Operating Expense Rent is
determined by the Net Rentable Area of such building as provided above) or the
Shopping Center (as applicable) is less than 95% leased and/or occupied during any
calendar year, an adjustment shall be made so that Operating Expense Rent shall be
computed for such year as though 95% of the building or Shopping Center, as
appropriate, had been leased and occupied during the entire Lease Year.
6.5. Proration: If for any reason other than the default of Tenant, this Lease terminates on a
day other than the last day of a calendar year, the amount of Operating Expenses Rent
payable by Tenant applicable to the calendar year in which such termination occurs will
be prorated on the basis that the number of days from the commencement of such
calendar year to and including such termination date bears to 365.
6.6 Audit Rights. Tenant has the right, exercisable no more than once each Lease Year on
reasonable notice and at a time reasonably acceptable to Landlord, to cause an audit to be
performed by a certified public accountant, working on a non -contingency basis, at
Tenant's sole cost and expense of Landlord's operations and/or books and records
pertaining to Operating Expense Rent for the preceding calendar year. In the event
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Landlord has overstated Operating Expense Rent by more than 5%, and provided Tenant
is not in default hereunder, within 30 days after demand therefore by Tenant
accompanied by Tenant's commercially sufficient verification of such overcharges and
paid invoices delivered and accepted by Landlord, Landlord will reimburse Tenant for
all overcharges and the reasonable out-of-pocket costs of such audit and verification
incurred by Tenant.
7. iJSE OF PREMISES:
7.1. Quiet Enjoyment. Tenant shall, and may peacefully have, hold, and enjoy the Premises,
subject to the other terms hereof, provided that Tenant timely pays the Rent within any
applicable notice and grace period, and timely performs all of Tenant's covenants and
agreements herein contained.
7.2 Use Restrictions: Tenant will use and occupy the Premises for the Permitted Use
specified in Paragraph I and for no other use or purpose. Tenant shall comply with the
Rules and Regulations set forth in Schedule 5 hereto. Furthermore, Tenant shall not
suffer or permit the Premises or any part of them to be used in any manner, or suffer or
permit anything to be done in or brought into or kept in the Premises that would in any
way: (a) violate any Legal Requirements; (b) cause injury to the Shopping Center or any
part thereof; (c) constitute a public or private nuisance; (d) alter the appearance of the
exterior of the Shopping Center or of any portion of the interior other than the Premises
pursuant to the provisions of this Lease; (e) involve the use, generation, storage or
disposal of Hazardous Substances, or (f) use any portion of the Premises for purposes
that will increase the existing rate of insurance upon the Shopping Center, or cause
cancellation of insurance policies covering the Shopping Center. If Landlord's rates
increase because of Tenant's activities, Tenant shall pay the difference to Landlord
within 10 days of demand.
In addition Tenant agrees to use and maintain the Premises in compliance with all Legal
Requirements from time to time in force that shall affect (a) Tenant's use of the Premises,
(b) the manner or conduct of Tenant's business or operation of Tenant's installations,
equipment or other property therein, (c) any cause or condition created by or at the
instance of Tenant, and Tenant shall pay all the costs, expenses, fines, penalties and
damages that may be imposed upon Landlord by reason of or arising out of Tenant's
failure to fully and promptly comply with and observe such laws or that Landlord may
incur as a result of Tenant's breach of the above covenants. Tenant shall give prompt
notice to Landlord of any notice Tenant receives of the violation of any Legal
Requirements with respect to the Premises or the use or occupancy thereof. If Landlord
shall be required under this Lease or pursuant to any Legal Requirements to take
measures to comply with such Legal Requirements affecting the Premises, Landlord
may, at Landlord's option, elect to terminate this Lease by giving not less than 30 days'
notice thereof to Tenant unless Tenant shall give evidence satisfactory to Landlord
within 15 days after the giving by Landlord of such notice of termination, that Tenant
has commenced steps reasonably calculated to comply with Laws and Regulations at
Tenant's sole cost and expense. Furthermore, all personal property placed or moved into
the Premises shall be at the risk of Tenant or other owner and Landlord shall not be
liable for any damage to personal property, or to Tenant, arising from the bursting or
MIAMI 1598638.E 7249630783 - I O -
leaking of water pipes or otherwise from any act or omission of any cotenant or occupant
of the Shopping Center or of any other person.
7.2 Continuous Operation: Tenant will not leave the Premises unoccupied or vacant and will
continuously conduct and carry on in the Premises the Permitted Use.
Landlord may at any time and from time to time modify the Shopping Center hours
and/or designate additional Shopping Center hours. Landlord acknowledges that Tenant's
use of the Premises shall be on a 24-hour, seven -day -per -week basis, and under no
circumstances shall Tenant be required to request of Landlord the approval for the
opening of the Premises for Tenant's utilizing the Premises during any or all holidays.
8. PARKING:
8.1. Tenant's Parking Ri lg�ts: Within the Common Areas, Landlord will provide parking
areas with necessary access. Only motorcycles, automobiles and pickup trucks will be
permitted on the parking areas. Landlord reserves the right to establish parking charges
with appropriate provisions for parking ticket validation by Tenant.
8.2. Landlord's Control Over Parkin: Tenant and its authorized representatives will park
their cars only in areas specifically designated for that purpose by Landlord. If Tenant or
its authorized representatives fail to park their cars in the designated parking areas,
Landlord may charge Tenant, as and for liquidated damages, $30 per each day or partial
day for each car parked in area other than those designated. Tenant will not park or
permit the parking of any vehicles adjacent to loading areas so as to interfere in any way
with the use of such areas. Landlord shall have the right, in Landlord's sole discretion, to
designate parking spaces for the exclusive use of a particular tenant or particular tenants.
No more than two marked police vehicles shall be parked in the front parking lot of the
Shopping Center at any time. Tenant agrees that on -duty police personnel shall park
their personal vehicles in the rear parking lot in the event that Landlord determines, in its
sole judgment, that the front parking lot is routinely overcrowded, and Landlord shall
ensure, by whatever means Landlord deems appropriate, that Tenant shall have parking
in the rear parking lot that is adequate to meet its reasonable parking needs. Landlord
will have the right to institute reasonable procedures and/or methods to enforce the terms
of this Subparagraph.
9. SIGNS
9.1. Exterior Sig�a�e: Subject to Tenant: (i) complying with all applicable Legal
Requirements, (ii) obtaining all necessary approvals, permits and consents from the
applicable governmental authorities, and (iii) obtaining Landlord's prior reasonable
approval to the plans and specifications, Tenant shall have the right to install one sign on
the exterior of the Premises ("Exterior Signage"), which Exterior Signage shall be
erected within 30 days after the Commencement Date. The cost of design, fabrication,
installation, removal and governmental approvals for the Exterior Signage shall be at
Tenant's sole cost and expense. Landlord shall review and approve the plans and
specifications for the Exterior Signage prior to submission to any governmental authority
and shall also have the right to approve any changes to the plans and specifications. The
Exterior Signage shall not create any structural issues for the Shopping Center and shall
MIAMI 1598638.E 7249630783 - 11 -
be of a design, color scheme and type consistent with the appearance of the Shopping
Center as determined by Landlord and all signs and decorations shall conform to the sign
criteria attached as Schedule 6. Landlord may designate a uniform type of sign for the
Shopping Center to be installed and paid for by Tenant. Landlord shall reasonably
cooperate with Tenant in connection with Tenant obtaining any necessary permits,
approvals and consents for the Exterior Signage; however, Tenant shall reimburse
Landlord for any reasonable costs incurred by Landlord in connection with such
cooperation. Tenant shall be responsible for maintaining, insuring and repairing the
Exterior Signage throughout the Term and any extension thereof. Tenant shall, at its sole
cost and expense, also be responsible for removing the Exterior Signage upon
termination of the Term and restoring any damage caused by the removal of the same. If
Tenant fails to timely remove the Exterior Signage, Landlord shall have the right, but not
the obligation to remove the same, restore any damage caused thereby, and charge
Tenant, as Additional Rent hereunder, the cost of the removal and the restoration plus a
10% administrative fee. Tenant's inability to obtain the necessary permits, approvals or
consents for the Exterior Signage shall not entitle Tenant to terminate this Lease, seek a
reduction in Rent or obtain any other concessions from Landlord. The parties
acknowledge that the Tenant's ability to install the Exterior Signage is at Tenant's sole
risk. The obligations of Tenant under this Subparagraph of the Lease shall survive any
expiration or termination hereof.
9.2. In addition, Tenant shall not, without Landlord's prior written consent make any changes
to or paint the front of the Premises; or install any exterior lighting, decorations or
paintings; or erect or install any other signs, banners, window or door lettering, placards,
decorations or advertising media of any type visible from the exterior or interior of the
Premises. All signs, decorations and advertising media shall conform to the sign criteria
attached as Schedule 6. Landlord may designate a uniform type of sign for the Shopping
Center to be installed and paid for by Tenant. For all Tenant signs, at the end of the
Term or upon termination of Tenant's right to possess the Premises, or upon the removal
or alteration of a sign for any reason, Tenant shall repair, paint, and/or replace the
building fascia surface where signs are attached.
10. ASSIGNMENT AND SUBLETTING; ENCUMBRANCE
Prohibition. Tenant shall not assign this Lease or sublet any portion of the Premises
without prior written consent of the Landlord, which consent shall will not be
unreasonably withheld, provided Tenant is not in default under the Lease at the time of
such request. The parties agree that it shall be reasonable for Landlord, among other
things to withhold consent if (i) Landlord is not satisfied with the financial condition,
identity, reputation or business character of the proposed assignee or sublessee, (ii) if
Landlord or its agents have shown any space in the Shopping Center to or attempted to
negotiate lease terms with such proposed assignee or sublessee regarding other available
space in the Shopping Center within the proceeding six months of the proposed
amendment, or (iii) if such proposed assignee or the sublessee desires to change the
Permitted Use. Any change in the majority ownership, interest or control of Tenant, if
Tenant is a corporation, partnership, limited liability company or other similar type
entity, shall constitute an assignment for purposes of this Subparagraph.
Notwithstanding any consent by Landlord, Tenant shall remain jointly and severally
liable (along with each approved assignee and sublessee, which shall automatically
MIAMI 1598638.E 7249630783 - 12 -
become liable for all obligations of Tenant hereunder with respect to that portion of the
Premises so transferred), and Landlord shall be permitted to enforce the provisions of
this Lease directly against Tenant or any assignee or sublessee without proceeding in any
way against any other party. In the event of an assignment, contemporaneously with the
granting of Landlord's consent, Tenant shall cause the assignee to expressly assume in
writing and agree to perform all of the covenants, duties and obligations of Tenant
hereunder and such assignee shall be jointly and severally liable therefore along with
Tenant. No usage of the Premises different from the Permitted Use shall be permitted,
and all other Terms and provisions of the Lease shall continue to apply after such
assignment or sublease.
Furthermore, Tenant shall not permit any leasehold, inventory or other financing that
may encumber Tenant's rights under this Lease or any personal property or FF&E of
Tenant located in the Premises, without first obtaining the prior written consent of
Landlord. Landlord may condition such consent upon the lender of tenant entering into
an agreement with Landlord regarding conditions for removal of such personal property
and/or FF&E and other reasonable Landlord protections.
10.2. Consent Process. If Tenant requests Landlord's consent to an assignment of this Lease or
subletting of all or part of the Premises, Landlord may, at its option: (i) approve such
sublease or assignment (subject to Subparagraph 10.1 above regarding liability under
this Lease); (ii) negotiate directly with the proposed subtenant or assignee and, in the
event Landlord is able to reach agreement with such proposed subtenant or assignee,
upon execution of a lease with such subtenant or assignee, terminate this Lease (in part
or in whole, as appropriate) upon 30 days' notice; (iii) recapture the Premises or
applicable portion thereof, as appropriate, from Tenant and terminate this Lease (in part
or in whole, as appropriate) upon 30 days' notice in which case Landlord shall be
permitted to lease the Premises to any third party; or (iv) if Landlord should fail to notify
Tenant in writing of its decision within a 30-day period after Landlord is notified in
writing of the proposed assignment or sublease, Landlord shall be deemed to have
refused to consent to such assignment or subleasing, and to have elected to keep this
Lease in full force and effect.
10.3. No Profit. All cash or other consideration received by Tenant as the proceeds of any
assignment or sublease of Tenant's interest in this Lease and/or the Premises, whether
consented to by Landlord or not, shall be paid to Landlord, notwithstanding the fact that
such proceeds exceed the Rent due hereunder, unless retention of such funds is in
violation of any Governmental Requirements or Landlord agrees to the contrary in
writing, and Tenant hereby assigns all rights it might have or ever acquire in any such
proceeds to Landlord. This covenant and assignment shall benefit Landlord and its
successors in ownership of the Shopping Center and shall bind Tenant and Tenant's
heirs, executors, administrators, personal representatives, successors and assigns. Any
assignee, sublessee or purchaser of Tenant's interest in this Lease, by occupying the
Premises and/or assuming Tenant's obligations hereunder, shall be deemed to have
assumed liability to Landlord for all amounts paid to persons other than Landlord in
consideration of any such sale, assignment or subletting, in violation of the provisions
hereof.
11. MAINTENANCE, REPAIRS, ALTERATIONS:
MIAMI 1598638.E 7249630783 - 13 -
11.1. Tenant's Obligations: At Tenant's sole cost, Tenant will comply with all Legal
Requirements. The commencement or pendency of any state or federal court abatement
proceeding affecting the use of the Premises shall, at the option of the Landlord, be
deemed a breach thereof. Except as may be set forth on Schedule 3, Tenant has agreed
to accept the Premises in its "AS IS" condition without any representation or warranty of
any kind. Upon entry into the Premises, Tenant acknowledges that the Premises are in
good order and repair. Tenant shall, at its own expense and at all times, maintain the
Premises in good and safe condition, including plate glass, electrical wiring, plumbing
and and any other systems or equipment upon the Premises and shall surrender the same,
at termination hereof, in as good condition as received, normal wear and tear excepted.
As part of its air conditioning maintenance obligation, Tenant shall enter into an annual
contract with an air conditioning repair firm that is fully licensed to repair air
conditioning units in the State in which the Shopping Center is located. No later than 30
days after to the Commencement Date and annually thereafter, Tenant shall deliver to
Landlord a copy of the air conditioning maintenance contract and proof that the annual
premium for such contract has been paid. Such air conditioning maintenance firm shall
(i) regularly service the air conditioning unit(s), changing belts, filters and other parts as
required, (ii) perform emergency and extraordinary repairs on the air conditioning units,
and (iii) keep a detailed record of all services performed at the Premises and prepare a
yearly report to be furnished to Landlord promptly at the end of each calendar year.
In addition, Tenant, at Tenant's expense, shall be responsible for all repairs required to
the Premises, except those set forth in Subparagraph 11.5 that are the responsibility of
Landlord, the cost of which are included in Operating Expenses,
11.2. Limitations: Tenant may not make any improvements or alterations to the Premises
without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant
may make any improvements or alterations to the Premises if they are nonstructural, do
not affect any system, cost less than $5,000.00 (in the aggregate), cannot be seen from
the exterior of the Premises, and otherwise comply with all Legal Requirements and the
following provisions of this Subparagraph. Prior to the commencement of any repair,
improvement, or alteration, Tenant shall give Landlord at least two business days' written
notice in order that Landlord may post appropriate notices to avoid any liability for liens.
All repairs, improvements or alterations will be made by a licensed and insured
contractor, which contractor has been consented to by Landlord, and shall be performed
in a good and workmanlike manner. All materials used shall be of a quality comparable
to or better than those in the Premises and shall be in accordance with plans and
specifications approved by Landlord.
Tenant will not place or suffer to be placed or maintained on the exterior of the Premises
or in any part of the Shopping Center any sign, advertising matter or any other thing of
any kind, and will not place or maintain any decoration, letter or advertising matter on
the glass of any window or door of the Premises or interior sign visible from outside the
Premises without first obtaining Landlord's prior written approval. Tenant will, at its
sole cost and expense, maintain such sign, decoration, lettering, advertising matter or
other thing as may be permitted hereunder in good condition and repair at all times.
Under no circumstances shall Tenant be permitted to place hand -lettered advertising on
the exterior of the Premises or any glass of any window or door of the Premises.
MIAMI 1598638.E 7249630783 - 14 -
Tenant will not paint or decorate any part of the exterior of the Premises, or any part of
the interior visible from the exterior thereof, without first obtaining Landlord's written
approval.
11.3. Liens: Tenant will pay all costs of construction done by it or caused to be done by it on
the Premises as permitted by this Lease. Tenant will keep the Shopping Center free and
clear of all construction; mechanic's, materialman's, laborer's and supplier's liens,
resulting from construction done by or for Tenant. The interest of Landlord in the
Premises and the Shopping Center shall not be subject to liens for improvements made
by Tenant. Any lien filed by any contractor, materialman, laborer or supplier performing
work for Tenant shall attach only to Tenant's interest in the Premises. Tenant agrees to
indemnify, defend and hold harmless Landlord from and against any and all costs and
liabilities (including attorneys' fees and expenses) and any and all construction,
mechanic's, materialman's, laborer's or supplier's liens arising out of or pertaining to any
improvements or construction done by Tenant. All persons and entities contracting or
otherwise dealing with Tenant relative to the Premises or the Shopping Center are hereby
placed on notice of the provisions of this Subparagraph, and Tenant shall further notify
in writing such persons or entities of the provisions of this Subparagraph prior to
commencement of any Tenant work in the Premises. If any construction, mechanic's,
materialman's, laborer's or supplier's lien is ever claimed, fixed or asserted against the
Premises or any other portion of the Shopping Center in connection with any such
Tenant work, Tenant shall, within 10 days after receipt by Tenant of notice of such lien,
discharge same as a lien either by payment or by posting of any bond as permitted by
law. If Tenant shall fail to discharge any such lien, whether valid or not, within 10 days
after receipt of notice from Landlord, Landlord shall have the right, but not the
obligation, to discharge such lien on behalf of Tenant and all costs and expenses incurred
by Landlord associated with the discharge of the lien, including, without limitation,
attorneys' fees, shall constitute Additional Rent hereunder and shall be immediately due
and payable by Tenant.
1 1.4. Surrender of Premises: On the last day of the Term hereof or on any earlier termination,
Tenant shall surrender the Premises to Landlord in the same condition as when received,
ordinary wear, tear and casualty excepted, and clear and free of debris. Tenant shall
repair any damage to the Premises occasioned by the installation or removal of Tenant's
trade fixtures, furnishings and equipment.
11.5. Landlord Repairs. Landlord will maintain the roof (exclusive of flashing around the
rooftop air conditioning unit), foundations, and exterior walls of the Premises (except
those exterior walls that contain an entrance to or exit from the Premises) and utility
lines (other than those exclusively serving the Premises) outside the exterior walls of the
Premises, the Common Areas and Parking Facilities; provided that in each case Landlord
shall have received prior written notice of the necessity of such repairs from Tenant.
Notwithstanding the foregoing, if any such repair is required by reason of Tenant's
failure to comply with any of Tenant's obligations in this Lease or the negligence of
Tenant or any of Tenant's agents, concessionaires, officers, employees, licensees, burglar
or vandal, or other person using the Premises with or without the consent of Tenant or
anyone authorized by Tenant, or the result of Tenant's acts or the installation of its
equipment and property, Tenant shall, at its expense, promptly make such repairs. Tenant
shall promptly give Landlord written notice of any damage to the Premises requiring
repair by Landlord. Landlord shall not be liable for any damages resulting from its
MiAMI 1598638.E 7249630783 - 15 -
failure to make repairs. In no event shall Landlord be liable for any damages resulting
from any such damage. Except as expressly set out in this Lease, Landlord shall have no
obligation to repair, maintain, alter, replace, or modify the Premises or any part thereof,
or any plumbing, heating, electrical, air conditioning, or other mechanical installation
therein, or serving same. Tenant hereby grants to Landlord such licenses and easements
in and over the Premises or any portion or portions thereof as shall be reasonably
appropriate for the installation or maintenance of mains, conduits, pipes, or other
facilities to serve the Shopping Center or any part thereof. Landlord will have the right
to enter the Premises at any reasonable time to inspect the condition thereof, to make
necessary repairs or improvements.
l 1.6. Trash: Tenant shall keep any garbage, trash, rubbish or other refuse in containers (safe
from rodents and other vermin) within the interior of the Premises, and shall deposit such
trash, on a daily basis, in designated receptacles provided by Landlord or Landlord's
trash removal agent, or trash receptacle or receptacles to be provided by Tenant at
Landlord's direction and pursuant to Landlord's specifications, hereinafter collectively
referred to as the "trash receptacles." Landlord shall arrange for the collection of trash
from the trash receptacles, and Tenant shall pay a portion of the costs thereof as provided
in this Subparagraph. Tenant's share of trash removal expense ("Trash Removal
Charge) shall be calculated by multiplying such Landlord's trash removal costs by
Tenant's Percentage Share. Tenant's Trash Removal Charge shall be payable to Landlord
as Additional Rent (either as a portion of Tenant's Percentage Share of Operating
Expenses or as a separate assessment, as determined by Landlord). In addition, Tenant
shall comply with all laws, ordinances, regulations and rules regarding recycling of trash,
including any rules and regulations of Landlord with respect thereto. Tenant shall pay
the costs associated with recycling in conformity with Tenant's share of trash removal set
forth above.
12. ENTRY AND INSPECTION: Tenant shall permit Landlord or Landlord's agents to enter upon
the Premises at reasonable times upon verbal notice for the purpose of inspecting the same,
performing any services required of Landlord hereunder and showing the Premises to potential
and existing mortgagees and purchasers and prospective tenants of other space in the Shopping
Center. Notwithstanding the foregoing, Landlord is not required to give notice to Tenant if
Landlord must enter the Premises because of an emergency or for the provision of janitorial
services. Tenant will permit Landlord at any time within 180 days prior to the expiration of this
Lease, to place upon the Premises any usual "To Let" or "For Lease" signs, and permit potential
tenants to inspect the Premises.
13. INDEMNIFICATION:
13.1. Tenant agrees to and shall indemnify, defend and hold Landlord harmless from and
against any and all claims, demands, losses, damages, costs and expenses (including
attorneys' fees and expenses) or death of or injury to any person or damage to any
property whatsoever arising out of Tenant's acts or ornissions, or relating to Tenant's
breach or default under this Lease, including, but not limited to, Tenant's use or
occupancy of the Premises or caused by Tenant or its agents, employees or invitees.
Landlord shall not be liable to Tenant for any damage by or from any act or negligence
of any co -tenant or other occupant of the Shopping Center or by any owner or occupant
of adjoining or contiguous property. Tenant agrees to pay for all damage to the
MIAMI 1598638.E 7249630783 - 16 -
Shopping Center as well as all damage to tenants or occupants thereof caused by misuse
or neglect of said Premises, its apparatus or appurtenances or the Common Areas or the
Shopping Center, by Tenant or Tenant's employees, agents and invitees. The provisions
of this Subparagraph shall survive the expiration or earlier termination of this Lease.
13.2 Release. Tenant, for itself and its legal representatives, successors and assigns, does
hereby fully and forever release, remise, acquit and discharge the Landlord and all its
property management agent(s), currently Trinity Interests, and their respective partners,
managers, members, officers, directors, employees, agents, attorneys, affiliates,
subsidiaries, parents, heirs, legal representatives, successors and assigns, and each of
them, of and from any and all claims, demands, debts, obligations, liabilities, bonds,
notes, guaranties, controversies, agreements, actions, causes of action, suits, damages
(including direct, special, consequential, remote, foreseeable, unforeseeable, and
punitive damages), legal fees and other responsibilities of any nature or kind whatsoever,
at law, in equity, or otherwise, liquidated or unliquidated, known or unknown, sounding
in tort, in contract, or under any other legal theory, or arising under statute or under any
other law or regulation (including, without limitation, the Texas Deceptive Trade
Practices -Consumer Protection Act), and whether contingent or matured (specifically
excluding, without limitation, damage and liabilities allegedly arising as a result of the
released parties' own gross negligence or willful misconduct) that the releasing parties,
or any of them, now have or has or could have against or involving the released parties,
or any of them, heretofore having arisen, or arising hereafter, out of or in any way in
connection with any act or omission or alleged act or omission of any of the released
parties in connection with the Lease, the termination of the Lease, publication of any
information relating to any dispute with Tenant (if any), threats of legal action to obtain
possession of the Premises or otherwise, and the negotiation and execution of this Lease.
The provisions of this Subparagraph 13.2 shall survive the termination of this Lease.
13.3. Limitation. Notwithstanding anything to the contrary contained in this Lease, Tenant's
obligation to indemnify Landlord shall be limited to the extent allowed by law. Neither
Tenant nor any any governmental entity shall be required to create a sinking fund or to
access, levy or collect taxes to fund Tenant's indemnification obligations set forth in this
Lease.
14. TENANT'S INSURANCE: Landlord acknowledges that (i) Tenant is basically aself-funded
entity subject to statutory tort laws; (ii) Tenant does not maintain a commercial policy of general
liability insurance and/or auto liability insurance; (iii) damage for which Tenant would ultimately
be found liable would be paid directly by Tenant and not by a commercial insurance company;
(iv) Tenant -owned property is covered under Tenant's Fire and Extended coverage program by a
commercial insurance policy; and (v) for statutory workers' compensation insurance, coverage is
self -funded to a $750,000.00 retention limit per incident over which commercial coverage
responds with no upper cap and employer's liability coverage is maintained at a $1,000,000.00
policy limit.
15. LANDLORD'S INSURANCE
15.1. All Risk. Landlord (or its principals naming Landlord as an additional insured) shall, as
part of the Operating Expenses, maintain fire and extended coverage insurance on the
Shopping Center and the Premises (which may include vandalism and malicious mischief
MIAMI i598638.6 7249630783 - 17 -
coverage) and such endorsements as Landlord may require or is otherwise reasonably
consistent with other similarly situated shopping centers) in an amount not less than the
fu11 replacement value thereof (which may be exclusive of foundations), or in such
amounts as any mortgagee of Landlord shall require, with such deductibles as shall be
determined by Landlord from time to time. Landlord (or its principals naming Landlord
as an additional insured) reserves the right to self -insure the Shopping Center. Landlord
or its principals naming Landlord as an additional insured) also reserves the right to
provide the insurance required hereunder as part of a blanket policy. All insurance
obtained by Landlord in connection with the Shopping Center shall be passed through to
the tenants of the Shopping Center, including Tenant, as part of the Operating Expenses,
and payments for losses thereunder shall be made solely to Landlord or Landlord's
mortgagee as their interests shall appear. In the event of self-insurance, the premium
cost equivalency of such policy or policies shall be a part of the Operating Expenses. In
the event of blanket insurance, Landlord shall reasonably allocate the portion of the
blanket premium to the Operating Expenses for the Shopping Center.
15.2. Liabili Landlord shall, as part of the Operating Expenses, maintain a policy or
policies of commercial general liability insurance with respect to the Common Areas and
the activities thereon in such amounts as Landlord or any mortgagee of Landlord may
require. In the event of self-insurance (as referenced above), the premium cost
equivalency of such policy or policies shall be part of the Operating Expenses.
15.3. Other. Landlord may purchase insurance for windstorm, flood, plate glass, sign,
automobile, sinkhole, business income, Rent loss, liquor liability, terrorism, earthquake
and such other insurance that Landlord or any mortgagee of Lender may require in their
sole discretion and with such deductibles as Landlord may desire. The costs of all such
insurance shall be part of the Operating Expenses. Landlord may hereafter raise or lower
such coverage in such amounts as may from time to time be prudent to Landlord within
its sole discretion or as Landlord's mortgagee may require.
16. UTILITIES AND SERVICES:
16.1. Standards. Landlord will provide, at points in or near the Premises, the facilities
necessary to enable Tenant to obtain for the Premises water, electricity, telephone and
sanitary sewer service. Tenant shall pay for all water, electricity, gasoline and other
utilities consumed in the Premises. Tenant shall not at any time over burden or exceed
the capacity of the mains, feeders, ducts, conduits, or other facilities by which such
utilities are supplied to, distributed in or serve the Premises. If Tenant desires to install
any equipment that shall require additional utility facilities or utility facilities of a greater
capacity than the facilities provided by Landlord, such installation shall be subject to
Landlord's prior written approval of Tenant's plans and specifications therefor. If
Landlord approves such installation and if Landlord provides such additional facilities to
accommodate Tenant's installation, Tenant agrees to pay Landlord, on demand, the cost
for providing such additional utility facilities or utility facilities of greater capacity.
Landlord shall have the option to supply such utilities to the Premises. If Landlord shall
elect to supply such utilities to the Premises, Tenant will purchase its requirements for
such service tendered by Landlord, and Tenant will pay Landlord, within 10 days after
mailing by Landlord to Tenant of statements therefor, at the applicable rates determined
by Landlord fi-om time to time, which Landlord agrees shall not be in excess of the
MIAMI ] 598638.E 7249630783 - 18 -
public utility rates for the same service, if applicable. If Landlord so elects to supply
such utilities, Tenant shall execute and deliver to Landlord, within 10 days after request
therefor, any documentation reasonably required by Landlord to effect such change in
the method of furnishing of such utilities.
16.2. Temporary Interruption. Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder, to stop or interrupt or
reduce any of the services listed in this Subparagraph or to stop or interrupt or reduce
any other services, required of Landlord under this Lease, whenever and for so long as
may be necessary, by reason of (i) accidents, emergencies, strikes or the occurrence of
any of the other events of force majeure, (ii) the making of repairs or changes that
Landlord is required by law or is permitted by this Lease to make or in good faith deems
necessary, or (iii) any other cause beyond Landlord's reasonable control, whether similar
or dissimilar to the foregoing. Landlord does not warrant that the services provided for
in this Lease will be free from interruption or stoppage resulting from the above causes,
and specifically no reduction, interruption or stoppage of any such services for any
reason for a period of less than thirty (30) days, shall ever be construed as an eviction of
Tenant nor shall the same cause any abatement of the Rent payable hereunder or in any
manner or for any purpose relieve Tenant from any of Tenant's obligations hereunder,
and in any event, Landlord shall not be liable for any loss, cost or damage, direct or
consequential, of any nature arising in connection with interruption or stoppage of any of
such services or for any damage to persons or property resulting therefrom; provided,
however, Landlord agrees to use reasonable diligence to resume the service or to cause
the same to be resumed. Furthermore, Landlord shall not be liable under any
circumstances for a loss of, or injury to, property or for injury to, or interference with,
Tenant's business, including, without limitation, loss of profits, however occurring,
through or in connection with or incidental to a failure to furnish any of the services or
utilities as set forth in this Subparagraph. Whenever possible, Landlord shall give
Tenant as much prior notice as reasonably possible of any shutdown of utilities.
16.3. Securi Landlord shall have no obligation to provide any security whatsoever for the
Premises, the Shopping Center and/or Tenant's business therein. Tenant does hereby
acknowledge and agree that it shall provide and be solely responsible for its own
security, at Tenant's sole cost and expense, as may be required for the operation of
Tenant's business within the Premises and Landlord shall have no liability to any Tenant
and its employees, agents or invitees for losses due to theft or burglary, or for damages
done by unauthorized persons in the Premises, any parking facility, or the Shopping
Center or for any injury, trauma or other harm to any person, and neither shall Landlord
be required to insure against any such losses. Tenant shall be responsible for all repairs
and replacements of damage and/or destruction of the Premises necessitated by burglary
or attempted burglary, or any other illegal or forcible entry into the Premises.
Notwithstanding the foregoing, Tenant acknowledges and agrees Landlord may, but will
not be required to, adopt and provide security services for the Shopping Center from time
to time. Tenant shall cooperate fully in any efforts of Landlord to maintain security in the
Shopping Center and shall follow all rules and regulations promulgated by Landlord with
respect thereto. However, any security services that are voluntarily undertaken by
Landlord may be changed or discontinued from time to time in Landlord's sole and
absolute discretion, without liability to any Tenant and its employees, agents or invitees.
Tenant or any of its employees, agents or invitees waive any claims it may have against
Landlord arising out of any security services provided by Landlord, or the inadequacy or
MIAMI 1598638.E 7249630783 - 19 -
absence thereof, specifically including Landlord's negligence with respect to the
providing or failure to provide such services.
16.4. Release of Landlord: Landlord shall not be responsible or liable to Tenant, or to those
claiming by, through or under Tenant, for any loss or damage that may be occasioned by
or through the acts or omissions of persons occupying space adjoining, adjacent to or
connecting with the Premises or any other part of the Shopping Center, or otherwise, or
for any loss or damage resulting to Tenant, or those claiming by, through or under
Tenant, or its or their property, from the breaking, bursting, stoppage or leaking of
electrical cable and wires, and water, gas, sewer or steam pipes or from theft or burglary.
To the maximum extent permitted by law, Tenant agrees to use and occupy the Premises
and to use such other portions of the Shopping Center as Tenant is herein given the right
to use, at Tenant's own risk.
i7. CONDEMNATION: if the whole or substantially the whole of the Shopping Center or the
Premises should be taken for any public or quasi -public use, by right of eminent domain or
otherwise or should be sold in lieu of condemnation, then this Lease shall terminate as of the date
when physical possession of the Shopping Center and/or Premises is taken by the condemning
authority. If less than the whole or- substantially the whole of the Shopping Center or the
Premises is thus taken or sold, Landlord (whether or not the Premises are affected thereby) may,
at its option, terminate this Lease by giving written notice thereof to Tenant; in which event this
Lease shall terminate as of the date when physical possession of such portion of the Shopping
Center or the Premises is taken by condemning authority. If this Lease is terminated upon any
such taking or sale, and if the Premises are affected, the Base Rent payable hereunder shall be
diminished by an equitable amount, and Landlord shall, to the extent Landlord deems feasible,
restore the Shopping Center and, if affected, the Premises to substantially their former condition,
but such work shall not exceed the scope of the work done by Landlord in originally constructing
the Shopping Center and installing any work, if constructed by Landlord pursuant to Schedule 3
in the Premises, nor shall Landlord in any event be required to spend for such work an amount in
excess of the amount received by Landlord as compensation for such taking. All amounts
awarded upon a taking of any part or all of the Shopping Center or Premises shall belong to
Landlord, provided that Tenant shall not be entitled to and expressly waives all claim to any such
compensation. All sums that may be payable on account of any condemnation shall belong
solely to the Landlord, and Tenant shall not be entitled to any part thereof, provided however,
that Tenant shall be entitled to retain any sum awarded to it for its trade fixtures or moving
expenses, provided that such Tenant award shall not reduce Landlord's award.
18. TRADE FIXTURES: Any and all improvements made to the Premises during the Term hereof
shall, unless Landlord requests their removal, belong to the Landlord without compensation,
allowance or credit to Tenant, except movable trade fixtures of the Tenant that can be removed
without defacing the Premises or any portion of the Shopping Center. Tenant shall be directly
responsible for taxes upon, measured by or reasonably attributable to the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located in the Premises or by
the cost or value of any leasehold improvements made in or to the Premises by or for Tenant
other than the initial improvements to be installed at Landlord's expense regardless of whether
title to such improvements is in Tenant or Landlord.
19. DESTRUCTION OF PREMISES:
MIAMI 1598638.E 7249630783 - 20 -
19.1. Termination or Repair. If fire or other casualty thereof shall damage the Premises or any
part, Tenant shall give prompt written notice thereof to Landlord if Landlord does not
otherwise have actual knowledge thereof. In case the Shopping Center shall be so
damaged that substantial alteration or reconstruction of the Shopping Center shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have been
damaged by such casualty), or in the event any mortgagee of Landlord's interest in the
Shopping Center should require that the insurance proceeds payable as a result of a
casualty be applied to the payment of the mortgage debt, or in the event of any material
uninsured loss to the Shopping Center, Landlord may, at its option, terminate this Lease
by notifying Tenant in writing of such termination within 90 days after the date of such
casualty. If Landlord does not elect to terminate this Lease, Landlord shall commence
and proceed with reasonable diligence to restore the Shopping Center and any work
constructed by Landlord pursuant to Schedule 3, if any; except that Landlord's
obligation to restore shall not require Landlord to spend for such work an amount in
excess of the insurance proceeds actually received by Landlord as a result of the
casualty. Notwithstanding anything to the contrary contained in this Subparagraph,
Landlord shall not have any obligation whatsoever to repair, reconstruct, or restore the
Premises when the damage resulting from any casualty contained under this
Subparagraph occurs during the last 12 months of the Term.
19.2. Abatement of Rent. Landlord shall not be liable for any inconvenience or annoyance to
Tenant resulting in any way from such casualty damage or the repair thereof; except that,
subject to the previous provisions of this Lease and of the next sentence, Rent will be
reduced in proportion to the area of the Premises unfit for occupancy by Tenant for the
duration of the time the Premises are unfit for occupancy by Tenant. If the Premises or
any other portion of the Shopping Center be damaged by fire or other casualty resulting
from the fault or negligence of Tenant or any of Tenant's agents, contractors, employees,
or invitees, the Rent hereunder shall not be diminished during the repair of such damage,
and, additionally, Tenant shall be liable to Landlord for the cost of the repair and
restoration of the Shopping Center caused thereby to the extent such cost and expense is
not covered by insurance proceeds.
19.3 Last Year of Tenn. If any material damage or destruction occurs to the Premises (or the
Building materially impairing use of the Premises) during the last year of the Term,
Tenant may terminate the Lease upon written notice to Landlord within 30 days after the
occurrence of the damage or destruction.
20. HAZARDOUS SUBSTANCES:
20.1. Tenant's Responsibilities: At its own expense, Tenant will procure, maintain in effect
and comply with all conditions of any and all permits, licenses and other governmental
and regulatory approvals required for Tenant's use of the Premises. Tenant will not
cause or permit any Hazardous Substance to be brought upon, kept or used in or about
the Shopping Center by Tenant, its agents, employees, contractors or invitees without the
prior written consent of Landlord except for the routine cleaning supplies that may be
deemed Hazardous Substances provided such Hazardous Substances are stored, used and
removed in compliance with all Legal Requirements and Environmental Laws. Tenant
will cause any and all Hazardous Substances brought upon the Premises by Tenant to be
removed from the Premises and transported solely by duly licensed haulers to duly
licensed facilities for final disposal of such materials and wastes. Tenant will, in all
MIAMI 1598638.E 7249630783 - 21 -
respects, handle, treat, deal with and manage any and all Hazardous Substances in, on,
under or about the Premises in total conformity with all applicable Environmental Laws
and prudent industry practices regarding management of such Hazardous Substances.
Upon expiration or earlier termination of the Term of the Lease, Tenant will cause all
Hazardous Substances placed on, under or about the Premises by Tenant or at Tenant's
direction to be removed and transported for use, storage or disposal in accordance and
compliance with all applicable Environmental Laws. Tenant will not take any remedial
action in response to the presence of any Hazardous Substances in or about the Premises
or the Shopping Center, nor enter into any settlement agreement, consent decree or other
compromise in respect to any claims relating to any Hazardous Substances in any way
connected with the Premises without first notifying Landlord of Tenant's intention to do
so and affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interests with respect thereto.
20.2. Indemnification: If Tenant has knowledge that the Premises or the Shopping Center have
become contaminated in any manner for which Tenant is legally liable, Tenant shall
immediately notify Landlord of the release or discharge of the Hazardous Substance, and
Tenant shall indemnify, defend and hold harmless Landlord from and against any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses (including,
without limitation, a decrease in value of the Shopping Center or the Premises, damages
caused by loss or restriction of rentable or usable space, or any damages caused by
adverse impact on marketing of the space, and any and all sums paid for settlement of
claims, attorneys' fees and expenses, consultant fees and expert fees) arising during or
after the Tenn of this Lease and arising as a result of such contamination, release or
discharge. This indemnification includes, without limitation, any and all costs incurred
because of any investigation of the site or any cleanup, removal or restoration mandated
by federal, state or local agency or political subdivision. This provision of this
Subparagraph shall survive termination of this Lease.
21. EYENTS �F DEFAULT: If one or more of the following events ("Event of Default") occurs,
such occurrence constitutes a breach of this Lease by Tenant:
21.1. Abandonment/Vacation: Tenant abandons or vacates the Premises or removes furniture,
fixtures or personal property from the Premises, except in the normal course of business;
or
21.2. Rent: Tenant fails to pay any monthly Base Rent or Operating Expenses Rent, if
applicable, as and when the same becomes due and payable, and such failure continues
for more than five days; or
21.3. Other Sums: Tenant fails to pay any Additional Rent, other sum or charge payable by
Tenant hereunder as and when the same becomes due and payable, and such failure
continues for more than 15 days after Landlord gives written notice thereof to Tenant; or
21.4. Other Provisions: Tenant fails to perform or observe any other agreement, covenant,
condition or provision of this Lease to be performed or observed by Tenant as and when
performance or observance is due (or immediately if the failure involves a hazardous
condition), and such failure continues for more than 15 days after Landlord gives written
notice thereof to Tenant, or if the default does not involve a hazardous condition and
cannot be reasonably cured within said 15-day period and Tenant fails promptly to
M1AMI 1598638.E 7249630783 - 22 -
commence with due diligence and dispatch the curing of such default within said 15-day
period or, having so commenced, thereafter fails to prosecute or complete with due
diligence and dispatch the curing of such default, provided such cure does not take more
than 45 days in the aggregate; or
21.5. Insolvency: Tenant (a) files or consents by answer or otherwise to the filing against it of
a petition for relief or reorganization or arrangement or any other petition in bankruptcy
or liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction; (b) makes an assignment for the benefit of its creditors; (c) consents to the
appointment of a custodian, receiver, trustee or other officer with similar powers of itself
or of any substantial part of its property; or (d) takes action for the purpose of any of the
foregoing; or
21.6. Receiver: A court or governmental authority of competent jurisdiction, without consent
by Tenant, enters an order appointing a custodian, receiver, trustee or other officer with
similar powers with respect to Tenant or with respect to any substantial power of its
property, or constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or insolvency law of any jurisdiction,
or ordering the dissolution, winding up or liquidation of Tenant, or if any such petition is
filed against Tenant and such receivership or petition is not dismissed within 60 days; or
21.7. Attachments: This Lease or any estate of Tenant hereunder is levied upon under any
attachment or execution and such attachment or execution is not vacated within 60 days;
21.8. Assignment/Sublease; Tenant assigns this Lease or subleases all or any portion of the
Premises in violation with the terms and conditions of this Lease.
22. REMEDIES UPON DEFAULT:
22.1. Termination: In the event of any breach of this Lease by Tenant, Landlord may, at its
option, terminate the Lease and repossess the Premises pursuant to the laws of the State
in which the Shopping Center is located and recover from Tenant as damages:
(a) the unpaid Rent and other amounts due at the time of termination plus interest
thereon at the maximum lawful rate per annum from the due date until paid;
(b) the present value of the balance of the Rent for the remainder of the Term after
termination less the present value of the fair market value rental of the Premises
for said period (both determined by applying a discount rate of the Wall Street
Journal Prime Rate); and
(c) any other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform its obligations under the Lease
or that in the ordinary course of things would be likely to result therefrom,
including, without limitation, the cost of recovering the Premises.
Landlord's Options: Landlord may, in the alternative, (i) continue this Lease in effect, as
long as Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under the Lease, including the right to recover the
MIAMI 1598638.E 7249630783 - 23 -
Rent as it becomes due under the Lease; or (n) terminate Tenant's right of possession
but not this Lease) and repossess the Premises pursuant to the laws of the State in which
the Shopping Center is located in which event Landlord may, but shall be under no
obligation to do so (except to the extent required by the laws of the State in which the
Shopping Center is located), relet the Premises for the account of Tenant for such rent
and upon such Terms as shall be satisfactory to Landlord. For purpose of such reletting
Landlord is authorized by Tenant to decorate or to make any repairs, changes, alterations
or additions in or to the Premises that may be necessary or convenient, at Tenant's
expense. Tenant shall also be responsible for Rent for the period that the Premises are
vacant and all costs of re -letting, including, without limitation, brokerage commissions
and attorneys' fees. Tenant shall be liable for any deficiency of such rental below the
Rent and all other payments herein provided for the unexpired balance of the Term of
this Lease. If said breach of the Lease continues, Landlord may, at any time thereafter,
elect to terminate the Lease; or (iii) exercise any and all other rights and remedies
available to Landlord at law or in equity.
22.3 Landlord Default: If Landlord. defaults in the performance or observance of any
covenant or agreement of this Lease, which default is not cured within 30 days after the
giving of notice thereof by Tenant unless such default is of such nature that it cannot be
cured within such 30-day period, in which case no Event of Default shall occur so long
as Landlord shall commence the curing of the default within such 30-day period and
shall thereafter diligently prosecute the curing of same within a commercially reasonable
time, a "Landlord Default" shall be deemed to exist.
(a) Upon the occurrence of a Landlord Default, Tenant may, at Tenant's option, cure
the Landlord Default; provided, however, that Tenant shall give Tenant the
following notice prior to commencing such cure ("Tenant's Notice"): "IF
LANDLORD SHALL FAIL TO COMMENCE CURATIVE ACTION AS
SOON AS COMMERCIALLY REASONABLY PRACTICABLE AND
DILIGENTLY AND EXPEDITIOUSLY PROSECUTE THE SAME TO
COMPLETION WITHIN 30 DAYS, TENANT AT ITS OPTION SHALL
HAVE THE RIGHT TO EXERCISE ITS REMEDIES UNDER THE
LEASE, INCLUDING SELF-HELP.", and upon the conclusion of such
additional 30-day period, Tenant may commence curing such Landlord Default.
(b) Notwithstanding the foregoing, if a Landlord Default results in circumstances or
conditions that constitute a threat to human health or safety or materially impede
the conduct of Tenant's business at the Premises, Tenant shall have the right to
give the following Tenant's Notice to Landlord, which notice shall indicate the
specific nature of the problem and shall include the following language in bold-
face type. "IF LANDLORD SHALL FAIL TO COMMENCE CURATIVE
ACTION AS SOON AS COMMERCIALLY REASONABLY
PRACTICABLE AND DILIGENTLY AND EXPEDITIOUSLY
PROSECUTE THE SAME TO COMPLETION, TENANT AT ITS
OPTION SHALL HAVE THE RIGHT TO EXERCISE ITS REMEDIES
UNDER THE LEASE, INCLUDING SELF-HELP." For the purpose of the
Tenant's Notice in the event of and only an event described in this Subparagraph
(b), the curative period described herein shall not commence until such time as
the Tenant's Notice is delivered by Tenant to Landlord during normal business
MIAMI 1598638.E 7249630783 - 24 -
hours. If, within a commercially reasonable time after Landlord's receipt of
Tenant's Notice, Landlord fails to commence action to correct such condition or
thereafter fails to diligently and expeditiously pursue such correction until such
condition is cured, then Tenant shall be entitled to take immediate action to the
extent necessary to eliminate such threat or impediment.
(c) The reasonable cost of the cure of a Landlord Default by Tenant pursuant to this
Paragraph 22 shall be payable by Landlord to Tenant within 30 days after
written demand therefor by Tenant. Such costs must be actually and reasonably
incurred and must not exceed the scope of the Landlord Default. Such costs
must be reasonably documented and copies of such documentation shall be
delivered to Landlord with the written demand for reimbursement.
(d) Nothing contained in this Paragraph 22 shall create or imply the existence of
any obligation by Tenant to cure any Landlord Default.
23. SECURITY DEPOSIT: The Security Deposit set forth in Paragraph 1, if any, shall secure the
performance of the Tenant's obligations hereunder. Landlord may, but shall not be obligated to,
apply all or portions of the Security Deposit on account of Tenant's obligations hereunder. In the
event that Landlord applies all or a portion of the Security Deposit to Tenant's obligations
hereunder, Tenant shall be obligated, within 10 days of receipt of notice from Landlord, to
deposit cash with Landlord in an amount sufficient to restore the Security Deposit to the full
amount stated in above. Failure to deposit such cash shall be a default under the terms of this
Lease. Provided Tenant is not in default, any balance remaining upon the expiration of the Term,
shall be returned to Tenant within a reasonable time. Tenant shall not have the right to apply the
Security Deposit in payment of the last month's rent. No interest shall be paid by Landlord on
the Security Deposit. In the event of a sale of the Shopping Center, Landlord shall have the right
to transfer the Security Deposit to the purchaser, upon such transfer Landlord shall have no
further liability with respect thereto, and Tenant agrees to look solely to such purchaser for the
return of the Security Deposit. Landlord shall not be required to keep the Security Deposit in a
segregated account, and the Security Deposit may be commingled with other funds of Landlord.
24. LIEN FOR RENT: Tenant hereby grants to Landlord a lien and security interest on all
furnishings, equipment, fixtures, licenses and other personal property of any kind of Tenant now
or hereafter placed in or upon the Premises, and such property shall be and remain subject to
such lien and security interest of Landlord for payment of all Rent and other sums agreed to be
paid by Tenant herein. The provisions of this Paragraph relating to such lien and security
interest shall constitute a security agreement under and subject to the laws of the State in which
the Shopping Center is located so that Landlord shall have and may enforce a security interest on
all property of Tenant now or hereafter placed in or on the Premises, in addition to and
cumulative of the Landlord's liens and rights provided by law or by the other Terms and
provisions of this Lease. Notwithstanding anything contained herein to the contrary, Landlord's
lien rights granted hereunder shall automatically be subordinate to the rights of any equipment or
personal property lessor with respect to the equipment or personal property leased by it to
Tenant. Tenant agrees to execute as debtor such financing statement or statements and other
documents as Landlord may now or hereafter request. Landlord may at its election at any time
file a copy of this Lease as a financing statement. Notwithstanding the above, Landlord shall
neither sell nor withhold from Tenant, Tenant's business records and Landlord's lien rights shall
not apply with respect to any property that is leased to Tenant.
MIAMI 1598638.E 7249630783 - 25 -
25. LIMITATION ON LANDLORD'S PERSONAL LIABILITY: Tenant specifically agrees to
look solely to Landlord's interest in the Shopping Center for the recovery of any judgment from
Landlord, it being agreed that Landlord (and any officers, shareholders, partners, members,
managers, directors or employees, affiliates, subsidiaries or parents of Landlord) shall never be
personally liable for any such judgment. Landlord shall have the right to transfer and assign, in
whole or in part, all its rights and obligations hereunder and in the Shopping Center and/or
Premises referred to herein, and in such event and upon such transfer, Landlord shall be released
from any further obligations hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations.
26. ATTORNEYS' FEES: In the event Tenant defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease and Landlord places the
enforcement of this Lease or the collection of any Rent due or to become due hereunder or
recovery of the possession of the Premises in the hands of an attorney, Tenant agrees to pay
Landlord reasonable attorneys' fees and costs. If there is any legal action or proceeding between
Landlord and Tenant to enforce any provision of this Lease or to protect or establish any right or
remedy of either Landlord or Tenant hereunder, the unsuccessful party to such action or
proceeding will pay to the prevailing parry all costs and expenses, including reasonable attorneys'
fees (including allocated costs of Landlord's in-house attorney), incurred by such prevailing party
in such action or proceeding and in any appearance in connection therewith, and if such
prevailing party recovers a judgment in any such action, proceeding or appeal, such costs,
expenses and attorneys' fees will be determined by the court handling the proceeding and will be
included in and as a part of such judgment.
27. WAIVER: No failure of Landlord to enforce any term hereof shall be deemed to be a waiver.
The failure of Landlord to insist at any time upon the strict performance of any covenant or
agreement contained herein or to exercise any option, right, power, or remedy contained in this
Lease shall not be construed as a waiver or a relinquishment thereof for the future. No payment
by Tenant or receipt by Landlord of a lesser amount than the applicable Rent payment due under
this Lease shall be deemed to be other than on account of the earliest rent due hereunder, nor
shall any endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this Lease provided.
28. SEVERABILITY: If any cause or provision of this Lease is illegal, invalid or unenforceable
under present or future laws effective during the Term hereof, then it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the
intention of both parties that in lieu of each clause or provision that is illegal, invalid or
unenforceable, there shall be added as a part of this Lease, a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
29. NOTICES: All notices or other communications required or permitted hereunder must be in
writing, and be (i) personally delivered (including by means of professional messenger service),
(ii) sent by overnight courier, with request for next business day delivery, or (iii) sent by
registered or certified U.S. mail, postage prepaid, return receipt requested, to the addresses set
forth in Paragraph 1. All notices sent by U.S. mail will be deemed received three days after the
date of mailing. Notices given by an attorney for either pasty shall be deemed effective notices.
MIAMI 1598638,E 7249630783 - 26 -
30. HOLDING OVER: Any holding over after the expiration or termination of this Lease shall be
construed as a tenancy at sufferance at a rental of twice the Base Rent and Operating Expense
Rent for the month of the Lease preceding the month in which the expiration or termination
occurred. In the event Tenant shall be or become a holdover tenant, Tenant shall also indemnify
Landlord against all claims for damages against Landlord as a result of Tenant's possession of the
Premises, including, without limitation, claims for damages by any tenant to whom Landlord may
have leased the Premises, or any portion thereof, for a term commencing after the expiration or
termination of this Lease.
31. TIME: Time is of the essence with respect to the obligations of any party under this Lease.
32. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to the benefit of the
assigns and successors in interest of Landlord and is binding upon and inures to the benefit of
Tenant and Tenant's heirs and successors and, to the extent assignment may be approved by
Landlord hereunder, Tenant's assigns. Any intention to create a joint venture or partnership
relation between the parties hereto is hereby expressly disclaimed. Nothing contained in this
Lease shall be construed so as to confer upon any other party the rights of a third party
beneficiary except rights contained herein for the benefit of a mortgagee of Landlord.
33. SUBORDINATION: This Lease is and shall always be subject and subordinate to the lien of
any mortgages that are now or shall at any future time be placed upon the Shopping Center, the
Premises or Landlord's rights hereunder, and to any renewals, extensions, modifications or
consolidations of any such mortgage. This clause shall be self -operative and no further
instrument of subordination need be required by any mortgagee. In confirmation of such
subordination, however, Tenant, at Landlord's request, shall execute promptly any appropriate
certificate or instrument that Landlord may reasonably request.
34. ESTOPPEL CERTIFICATE:
34.1. Content: Tenant shall at any time upon not less than 20 days' prior written notice from
Landlord execute, acknowledge and deliver to Landlord a statement in writing: (i)
certifying that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease, as so modified, is
in full force and effect), the amount of any security deposit, and the date to which the
Rent and other charges are paid in advance, if any; and (ii) acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed. Any such statement may be conclusively
relied upon by a prospective purchaser or encumbrancer to the Premises.
34.2 At Landlord's option, Tenant's failure to deliver such statement within such time shall be
a material breach of this Lease or shall be conclusive upon Tenant: (i) that this Lease is
in full force and effect, without modification, except as may be represented by Landlord;
(ii) that there are no uncured defaults in Landlord's performance; and (iii) that not more
than one month's Rent has been paid in advance or such failure may be considered by
Landlord as a default by Tenant under this Lease. Any such statement may be
conclusively relied upon by a prospective purchaser or encumbrancer to the Premises.
35. AUTHORIZATION:
MIAMI 1598638.E 7249630783 - 27 -
35.1. Tenant. Tenant represents and warrants that: (i) there are no proceedings pending or, to
the knowledge of Tenant, threatened before any court or administrative agency that
would materially adversely affect the ability of Tenant to enter into this Lease or the
validity or enforceability of this Lease; (ii) there is no provision of any existing
mortgage, indenture, contract or agreement binding on Tenant that would conflict with or
in any way prevent the execution, delivery or performance of the Terms of this Lease;
(iii) if Tenant is a corporation, limited liability company, partnership or other legal
entity, the person executing this Lease on behalf of Tenant represent and warrant that
this Lease has been authorized and approved by the appropriate officers, members,
managers, partners, beneficiaries, shareholders or other beneficial owner(s) of Tenant as
may be required by law; and (iv) Tenant has full right, power and lawful authority to
execute, deliver and perform its obligations under this Lease, ill the manner and upon the
Terms contained herein, and to grant the estate herein demised, with no other person
needing to join in the execution hereof in order for this Lease to be binding on Tenant.
35.2. Landlord. Landlord represents and warrants to Tenant that Landlord has full right,
power and lawful authority to execute, deliver and perform its obligations under this
Lease, in the manner and upon the Terms contained herein, and to grant the estate herein
demised.
36. JOINT AND SEVERAL LIABILITY: In the event that more than one person or entity
executes the Lease as Tenant, all such persons and entities shall be jointly and severally liable for
all of Tenant's obligations hereunder.
37. FORCE MAJEURE: The parties shall be excused for the period of any delay in the
performance of any obligations hereunder when prevented from doing so by cause or causes
beyond the parties' absolute control, which shall include, without limitation, all labor disputes,
civil commotion, civil disorder, riot, civil disturbance, war, war -like operations, invasion,
rebellion, hostilities, military or usurped power, sabotage, governmental regulations, orders,
moratoriums or controls, fire or other casualty, inability to obtain any material, services or
financing or Acts of God. Notwithstanding anything herein contained to the contrary, the
provisions of this Paragraph 37 shall not be applicable to Tenant's obligations to pay Rent or
any other sums, monies, costs, charges or expenses required to be paid by Tenant under this
Lease.
38. RECORDING: Tenant shall not record this Lease, or any memorandum or short form thereof,
without the written consent and joinder of Landlord, which may be withheld in Landlord's sole
discretion.
39. BROKERS: Landlord and Tenant each represent and warrant one to the other that except as the
Brokers set forth in Paragraph 1, neither of them has employed any broker in connection with
the negotiations of the Terms of this Lease or the execution thereof. Landlord and Tenant hereby
agree to indemnify and hold each other harmless against any loss, expense or liability with
respect to any claims for commissions, finder's fees or brokerage fees arising from or out of any
breach of the foregoing representation and warranty. Landlord shall be responsible for paying
any commission due Landlord's Broker in connection with this transaction pursuant to a separate
written agreement between them. Landlord's Broker shall be responsible for any payment due to
Tenant's Broker pursuant to a separate written agreement between Landlord's Broker and
Tenant's Broker.
MIAMI 1598638.E 7249630783 - 28 -
to. ENTIRE AGREEMENT: The foregoing, together with all Exhibits and Schedules attached
hereto, constitutes the entire agreement between the parties and may be modified only by a
writing signed by both parties.
41. GOVERNING LAW: This Lease shall be construed in accordance with the laws of the State in
which the Shopping Center is located.
42. EFFECT OF DELIVERY OF THIS LEASE: LANDLORD HAS DELIVERED A COPY OF
THIS LEASE TO TENANT FOR TENANT'S REVIEW ONLY, AND THE DELIVERY
HEREOF DOES NOT CONSTITUTE AN OFFER TO TENANT OR OPTION TO LEASE.
THIS LEASE SHALL NOT BE EFFECTIVE UNTIL A FULLY EXECUTED COPY OF THIS
LEASE HAS BEEN DELIVERED TO BOTH LANDLORD AND TENANT.
43. WAIVER OF THE RIGHT TO TRIAL BY JURY: LANDLORD AND TENANT' HEREBY
KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT LANDLORD OR TENANT MAY HEREINAFTER
INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS LEASE OR THE LEASED PREMISES WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE.
44. BANKRUPTCY: Landlord and Tenant understand that, notwithstanding certain provisions to
the contrary contained herein, a trustee or debtor in possession under the United States
Bankruptcy Code may have certain rights to assume or assign this Lease. Landlord and Tenant
further understand that, in any event, Landlord is entitled under the United States Bankruptcy
Code to adequate assurances of future performance of the provisions of this Lease. The parties
agree that, with respect to any such assumption or assignment, the term "adequate assurance"
shall include at least the following:
(a) In order to assure Landlord that the proposed assignees will Have the resources with
which to pay all Base Rent, Operating Expense Rent or other sum payable by Tenant
pursuant to the provisions of this Lease, any proposed assignee must have, as
demonstrated to Landlord's satisfaction, a net worth (as defined in accordance with
generally accepted accounting principles consistently applied) of not less than the net
worth of Tenant on the date this Lease became effective, increased by 7%, compounded
annually, for each year from the Commencement Date through the date of the proposed
assignment. It is understood and agreed that the financial condition and resources of
Tenant were a material inducement to Landlord in entering into this Lease.
(b) Any proposed. assignee must have been engaged in the conduct of business for the five
years prior to any such proposed assignment, which business does not violate the
Permitted Use, and such proposed assignee shall continue to engage in the Permitted Use
and will not cause Landlord to be in violation or breach of any provision in any other
lease, financing agreement, operating agreement or other agreement relating to the
Shopping Center. It is understood and agreed that Landlord's asset will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease makes any use of the
Premises other than the Permitted Use.
(c} Any proposed assignee of this Lease must assume and agree to be personally bound by
the provisions of this Lease.
MIAMI 1598638.E 7249630783 - 29 -
45. SURVIVAL: Anything contained in this Lease to the contrary notwithstanding, the expiration
or earlier termination of the Term of the Lease, whether by lapse of time or otherwise, shall not
relieve Tenant from Tenant's obligations accruing prior to the expiration or termination of the
Term, all of which shall survive the same, whether or not same is expressly stated in the
particular paragraph of this Lease, including, without limitation, Tenant's obligations with
respect to: (a) the payment of Rent; (b) any provisions of this Lease with respect to indemnities
of Landlord made by Tenant; and (c) the removal of all property of Tenant required to be
removed hereunder and the repair of all damage to the Premises caused by such removal at the
expiration or termination of this Lease to the extent required hereunder.
46. COUNTERPARTS: This Lease may be executed in any number of counterparts, which when
taken together shall constitute one complete document.
47. CONFIDENTIALITY: Tenant agrees, on behalf of Tenant and Tenant's employees, agents,
contractors, consultants, partners, affiliates, assignees and subtenants, not to disclose the terms of
this Lease or the results of any audit of Landlord's books and records under this Lease to any
third party except (i) legal counsel to Tenant, (ii) any assignee of Tenant's interest in this Lease
or any subtenant of Tenant relative to the Premises (or any portion thereof), (iii) as required by
applicable law or by subpoena or other similar legal process, or (iv) for financial reporting
purposes. Landlord agrees that this Paragraph shall be subject to the Public Information Act,
Texas Government Code Chapter 552.
48. OFAC REPRESENTATION: For purposes hereof, "List" shall mean the Specially Designated
Nationals and Blocked Persons List maintained by OFAC and/or on any other similar list
maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and
"OFAC" shall mean the Office of Foreign Assets Control, Department of the Treasury. Each
party represents and warrants to the other that (i) each Person owning a 10% or greater interest in
such party is (A) not currently identified on the List, and (B) is not a person with whom a citizen
of the United States is prohibited to engage in transactions by any trade embargo, economic
sanction, or other prohibition of United States law, regulation, or Executive Order of the
President of the United States and (ii) each party has implemented procedures, and will
consistently apply those procedures, to ensure the foregoing representations and warranties
remain true and correct at all times. Each party shall comply with all requirements of law
relating to money laundering, anti -terrorism, trade embargos and economic sanctions, now or
hereafter in effect and shall use reasonable efforts to notify the other in writing if any of the
forgoing representations, warranties or covenants are no longer true or have been breached or if
such party has a reasonable basis to believe that they may no longer be true or have been
breached. In addition, at the request of a party, the other party shall provide such information as
may be requested by the requesting to determine the other party's compliance with the terms
hereof.
49. DISCLAIMERS:
49.1 LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY
THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED
COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT
HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES
OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER,
MiAMI 1598638.E 7249630783 - 30 -
AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT
SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, DEMAND,
SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD
OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR
IMPLIED.
49.2 IT IS UNDERSTOOD AND AGREED BY TENANT THAT LANDLORD AND
LANDLORD'S AGENT HAVE MADE NO REPRESENTATIONS OR PROMISES
WITH RESPECT TO THE PREMISES OR THE MAKING OR ENTRY INTO THIS
LEASE EXCEPT AS IN THIS LEASE EXPRESSLY SET FORTH AND THAT NO
CLAIM OR LIABILITY, OR CAUSE FOR TERMINATION SHALL BE ASSERTED
BY TENANT AGAINST LANDLORD FOR, AND LANDLORD SHALL NOT BE
LIABLE BY REASON OF, BREACH OF ANY REPRESENTATIONS OR PROMISES
NOT EXPRESSLY STATED IN THIS LEASE.
50. RIENEWAL OPTION: Provided Tenant is not in default as of the date of exercise of the
Renewal Option nor at the date of the commencement of the Renewal Option, and Tenant has not
done anything nor failed to do anything that, with the passage of time and/or the giving of notice,
would constitute a default hereunder, Tenant shall have the right to exercise the Renewal Option
specified in Subparagraph 1.16. During the Renewal Option, all of the terms and conditions of
this Lease except for Base Rent shall be the same. Tenant shall exercise its Renewal Option by
furnishing Landlord written notice not later than 90 days before the end of the original Term.
For all purposes hereof, the Fair Market Rental Value of the Premises will be the rental rate as
determined by Landlord in its sole and absolute discretion, based upon the then prevailing rent
for premises comparable in size and use to the Premises, located in buildings comparable in size
and use to, and in the general vicinity of, the Shopping Center taking into consideration all
allowances for tenant improvements, moving expenses, landlord expenses, rent abatement,
brokerage expenses, tenant benefits or any other market concessions that may be commonly
available at the commencement of such extension period. Landlord will not be required to
consider the highest and best use for the Premises, or the Shopping Center where the Premises
are located or the underlying land. Notwithstanding anything to the contrary contained in this
Paragraph, the Base Rent for any Renewal Option shall never be less than the Base Rent paid by
Tenant during the year immediately preceding the Renewal Option.
Landlord shall, within. 1.5 days of receipt of Tenant's notice, deliver a Lease amendment
containing the current market rental rates for the applicable Renewal Option; all of the other
terms and conditions shall remain as provided in this Lease. Tenant shall have 30 days to
execute the amendment, thus exercising the Renewal Option. Should Tenant disagree with
Landlord's interpretation of the current market rent, Tenant's sole remedy shall be to decline to
exercise the Renewal Option. If Tenant fails to execute the amendment within the 30-day time
frame set forth above, Tenant shall conclusively be deemed to have declined to exercise the
Renewal Option and the Lease shall end as of the end of the Term (including the Renewal Option
period, if the first Renewal Option had been previously exercised).
51. POLICE PROTECTION: Landlord agrees and understands that Tenant in no way promises to
provide increased police protection or more rapid emergency response time because of this
Lease. No special relationship shall exist between Landlord and Tenant other than that of
MIAMI 1598638.E 7249630783 - 31 -
landlord and tenant. Tenant shall provide no greater police protection to Landlord than is
provided to all other residents and businesses of the City of Fort Worth.
[Signature Page I olIows]
MIAMI 1598638.E 7249630783 - 32 -
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year
first above written.
Approved as to Form and Legality:
Assistant City Attorney
xxr,�„o��•
MIS
Print Name: �- �"U1 L i,I �Yi iJI-i 1.SE�yp
S
Print Name: 1 1 ((� L .S (1) (/�I �S
MIAMI 1598638.E 7249630783
TENANT
CITY OF FORT WORTH
By:
Joe Paniagua, First Assistant City Manager
Attest:
City Secretary
M&C No:
Date:
JPMCC2005-CIBC13 MCCART AVENUE,
LLC, a Texas 11m1ted liability company
By: LNR Texas Partners, Inc., a Texas
corporation, its Eger
By: '
Steven D. Ferreira
Title: Vice President
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, 7X
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year
first above written.
Approved as to.F/orm and Legality:
Assistant City
Witness:
Print Name:
Print Name:
TENANT
CITY OF FOR
By:
City Manager
Attest:
City Secretary
M&C No:
Date:
LANDLORD
JPMCC2005-CIBC13 MCCART AVENUE,
LLC, a Texas limited liability company
By: LNR Texas Partners, Inc., a Texas
corporation, its manager
By:
Steven D. Ferreira
Title: Vice President
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
MIAMI 1598638.E 7249630783
I ► r
Legal Description
Lot 2, Block 3, DABNEY ADDITION, an Addition to the City of Fort Worth, Tarrant County,
Texas, according to the plat recorded in Cabinet B, Slide 2605, Plat Records, Tarrant County,
Texas.
SCHEDULE 2
LEGEND — MCCART VILLAGE TENANTS
Unit Tenant SF
7630 Chase Dank 3475
7632 Pompeif Sason & Day Spa 1560
7636 VACANT 2400
7640 Domino's Pizza 1600
7642 VACANT 1550
7644 VACANT 1200
7646 Crest Clips 1200
7650 . VACANT (City Ft. Worth .S87 <
7654 Nails Inc. 1350
7658 Very Well Wine Chicken 2760
7664 VACANT 3200
7668 VACANT 2060
7670 VACANT 1400
7674 Tastebuds 2480
SCnEDULE 3
CONSTRUCTION RIDER
• • • 1'' 'LIAZARLM
' • •, •
1.1. Building Shell and Existing Improvements: The parties acknowledge that the building shell
has been completed and certain improvements are currently located in the Premises (the
"Existing Improvements").
1.2. Additional Improvements: Landlord agrees to furnish and install within the Premises
certain additional improvements in the Premises in accordance with the Tenant's approved
Space Plan, as hereafter defined (collectively, the "Work"). All costs and expenses of the
Work shall be paid for by Tenant within 15 days after receipt of a written demand from
Landlord and shall include without limitation the items defined in Schedule A.
1.3. Construction Representatives: Landlord hereby appoints and Tenant hereby approves the
following person(s) as Landlord's representative ("Landlord's Representative") to act for
Landlord in all matters covered by this Construction Rider. Tenant hereby appoints and
Landlord hereby approves the following person(s) as Tenant's representative ("Tenant's
Representative") to act for Tenant in all matters covered by this Construction Rider.
Landlord Representative(s) Tenant Representative(s)
Donna Blumberg (Trinity Interests)
All inquiries, requests, instructions, authorizations and other communications with respect
to the matters covered by this Construction Rider shall be made to Landlord's
Representative(s) or Tenant's Representative(s) as the case may be. Authorization made by
Tenant's Representative(s) shall be binding and Tenant shall be responsible for all cost
authorized by Tenant's Representative(s). Either party may change its representative(s)
under this Construction Rider at any time by written notice to the other party.
II. CONSTRUCTION PLANS FOR PREMISES:
2.1. Floor Plan: Tenant and Landlord have agreed on the basic floor plan for the Premises.
2.2. Preparation of Working Drawings: Based on the approved floor plan, Landlord shall cause
its architect (the "Architect"), in consultation with Landlord's engineer(s), to prepare
complete architectural, electrical, mechanical, plumbing, life safety and structural drawings
and specifications, (including all fmishes) desired by Tenant, and any internal or external
communications or special utility facilities that will require conduit or other improvements
within common areas (collectively, the "Working Drawings"). The Working Drawings
shall be forwarded to Tenant for reasonable approval. If Tenant shall disapprove of any
portion of the Working Drawings, Tenant shall advise Landlord in writing of such
disapproval and the reasons thereof. Landlord shall then submit to Tenant for Tenant's
reasonable approval, a redesign of the Working Drawings, incorporating those revisions
MIAMI 1598638.E 7249630783
reasonably required by Tenant.
2.3. Permits: The Landlord's contractor in cooperation with the Architect shall be responsible
for filing, monitoring and obtaining the permits. By Landlord obtaining the permits and/or
approving the Working Drawings shall not be deemed that Landlord confirms that the
Working Drawings comply with all applicable Legal Requirements. Such responsibility
shall be Tenant's and/or the Architect's.
2.4. Changes to the Working Drawings: With respect to any changes after Landlord approval of
the Working Drawings, Tenant shall be responsible for all costs relating thereto, which
shall include, without limitation, all architectural and engineering re -design fees and
expenses, contractor's fees, cost of materials no longer usable, costs of new labor and
materials, costs resulting from any delays or schedule acceleration costs to avoid delays
incurred by Landlord as a result of such changes. In the event that Landlord must perform
Tenant's Changes (as defined below), Landlord shall deliver to Tenant written notice of the
estimated cost of such additional work, as reasonably determined by Landlord, its
architects, engineers and contractors.
III. CONSTRUCTION OIF WORK:
Landlord's contractor shall commence and diligently proceed with the construction of the Work,
subject to delays beyond the reasonable control of Landlord or its contractor and events of force
majeure. Promptly upon the commencement of the Work, Landlord will furnish Tenant with a
construction schedule setting forth the projected completion dates therefor and showing the
deadlines for any actions required to be taken by Tenant during such construction, and Landlord
may from time to time during the prosecution of the Work modify or amend such schedule due to
unforeseeable delays encountered by Landlord. Landlord shall make a reasonable effort to meet
such schedule as the same may be modified or amended. Tenant may make changes ("Tenant's
Changes") in the Work at any time prior to the date of delivery of Working Drawings.
IV. CERTAIN PROVISIONS RELATING TO CONSTRUCTION:
Landlord shall prepare the Premises in accordance with the Working Drawings. For additional
costs incurred, as applicable, Tenant shall pay to Landlord all amounts due Landlord from Tenant
under the terms of this Construction Rider within 10 days following delivery of Landlord's notice
therefor, which notices or invoices shall be rendered monthly or at such other intervals as Landlord
shall determine. Such amounts shall be deemed additional rental payable hereunder for all purposes
of this Lease.
Construction of the Improvements will be completed in a good and workmanlike manner, and in
accordance with the Working Drawings (as revised, if applicable). Landlord shall promptly notify
Tenant in writing of the substantial completion of construction of the improvements.
Tenant agrees that in the event Tenant shall (i) make any changes in the Working Drawings or work
or improvements required thereby (notwithstanding Landlord's approval of such changes), or (ii)
directly or indirectly through any person, firm or corporation employed by Tenant, unreasonably
interfere with or delay the work of Landlord's contractor, or (iii) request materials, finishes, or
installations that require a longer delivery time or construction period than normal office
improvements would require and which were not specified and authorized by Tenant in time to be
timely received and installed so as to timely permit subsequent construction or fails to provide
MIAMI 1598638.E 7244630783 - 2 -
alternative finishes to those not commercially reasonably available, or (iv) cause any delay in
Landlord's completion of the Premises through any fault or negligence of Tenant or its agents,
thereby delaying Landlord's tendering of possession of the Premises, or Tenant's occupancy of the
Premises, beyond the date that would have been the Commencement Date of this Lease but for such
changes or delays, then Tenant shall commence payment of all rentals provided for herein on the
date that would have been the Commencement Date of this Lease, but for such changes or delays,
and such date shall be the Commencement Date of this Lease for all purposes.
Tenant shall be entitled to enter the Premises from time to time during the course of construction as
may be reasonably necessary for Tenant's space planning or inspection purposes, or for the
installation by Tenant of its fixtures or equipment provided (i) Tenant notifies Landlord in advance
of such proposed entry and coordinates such entry so as to be accompanied by Landlord or
Landlord's Representative, (ii) Tenant does not hinder or interfere with construction of the Premises
or the activities of Landlord's contractors, and (iii) Tenant takes such reasonable protective
precautions or measures for Landlord and/or Tenant as Landlord may reasonably request, given the
stage of construction of the Building and/or the Premises at the time of such entry, including (if
appropriate) execution of releases from liability for Landlord or Landlord's contractors from
injuries sustained by Tenant in the Building during such entry.
Within five days after substantial completion of the construction of the Premises and prior to
Tenant's installation of its fixtures, equipment and furnishings in the Premises, Tenant and Landlord
shall reasonably agree upon a "punch list" of errors (if any) and omissions (if any) in the
construction of the Premises. Landlord shall promptly correct (or cause the contractor to correct)
such punch list items. A failure by Tenant to include on the punch list any error or omission
reasonably apparent upon reasonable inspection and inquiry shall constitute a waiver and release by
Tenant of any claim or cause of action for damages from Landlord resulting from such error or
omission. Except for punch list items that materially interfere with Tenant's ability to operate its
business on and from the Premises, the existence of the punch list (and completion of the items
listed thereon) shall not delay the Commencement Date as the commencement of the Term of this
Lease nor affect Tenant's obligation to occupy the Premises and to pay rentals in accordance with
the provisions of this Lease.
Any failure of Tenant to comply with the requirements of this Construction Rider shall constitute a
default by Tenant under the Lease and Landlord shall have and may pursue all remedies available to
Landlord under the Lease, at law or in equity.
MiAMI 1598638.E 7249630783 - 3 -
SCHEDULE 4
TENANT ACCEPTANCE LETTER
This declaration is hereby attached to and made part of the
2008 entered into by and between JPMCC2005-CIBC 13
limited liability company, as Landlord and City of Fort Worth as Tenant.
1. The undersigned as Tenant, hereby confirms as of the
following:
2. Tenant has accepted possession of the Premises on
able to occupy the same.
3. The Commencement Date as defined in the Lease is
4. The Expiration Date of the Lease is
Lease Agreement dated as of
McCart Avenue, LLC, a Texas
day of the
and is currently
5. All alterations and improvements required to be performed by Landlord pursuant to the terms of
the Lease to prepare the entire Premises for Tenant's initial occupancy have been satisfactorily
completed, except for the following:
6. As of the date hereof, Landlord leas fulfilled all of its obligations under the Lease.
7. The Lease is in full force and effect and has not been modified, altered, or amended, except
pursuant to any instruments described above, if any.
8. There are no offsets or credits against Base Rent or Additional Rent, nor has any Base Rent or
Additional Rent been prepaid except as provided pursuant to the Terns of the Lease.
9. Tenant has no notice of any prior assignment, hypothecation, or pledge of the Lease or any Rent
due under the Lease.
TENANT:
CITY OF FORT WORTH
Name:
Title:
MIAMI 1598638.E 7249630783
SCHEDULE 5
RULES AND REGULATIONS
1. In the event of any conflict between the terms of these rules and regulations and the express
provisions of the Lease, the express, applicable provisions of the Lease shall control. Landlord reserves
the right, with notice to Tenant and without the approval of Tenant, to rescind, add to and amend any
rules or regulations, to add new reasonable rules or regulations and to waive any rules or regulations with
respect to any tenant or tenants. Tenant shall provide a copy of these rules and regulations to each of its
employees located at the Premises to facilitate compliance with these standards.
2. The sidewalks, walks, plaza entries, con idors, ramps, staircases and elevators of the Shopping
Center shall not be obstructed, and shall not be used by Tenant, or the employees, agents, servants,
visitors or invitees of Tenant, for any purpose other than ingress and egress to and from the Premises. No
skateboards, roller skates, roller blades or similar items shall be used in or about the Shopping Center.
3. No freight, furniture or other large or bulky equipment of any description will be received into
the Shopping Center or carried into the elevators, if any, except in such a manner, during such hours and
using such elevators and passageways as may be approved or designated by Landlord, and then only upon
having been scheduled in advance. The requirements of the preceding sentence shall not apply to
deliveries of normal office supplies, which cannot be scheduled in advance with the Landlord. Any hand
trucks, carryalls, or similar equipment used for the delivery or receipt of equipment shall be equipped
with rubber tires, side guards and such other safeguards as Landlord shall reasonably require. Although
Landlord or its personnel may participate or assist in the supervision of such movement, Tenant assumes
financial responsibility for all risks as to damage to articles moved.
4. Landlord shall have the right to prescribe the weight, position and manner of installation of safes
or other heavy equipment, which shall, if considered necessary by Landlord, be installed in a manner
which shall insure satisfactory weight distribution. All damage done to the Shopping Center by reason of
a safe or any other article of Tenant's equipment being on the Premises shall be repaired at the expense of
Tenant. The time, routing and manner of moving safes or other heavy equipment shall be subject to prior
approval by Landlord.
5. Only persons authorized by Landlord will be permitted to furnish newspapers, ice, drinking
water, towels, barbering, shoe shining, janitorial services, floor polishing and other similar services and
concessions within the common areas of the Shopping Center, and only at hours and under regulations
fixed by Landlord.
6. Tenant, or the employees, agents, servants, visitors or invitees of Tenant, shall not at any time
place, leave or discard any rubbish, paper, articles or object of any kind whatsoever outside the doors of
the Premises or in the corridors or passageways of the Shopping Center.
7. Tenant shall not place, or cause or allow to be placed, any sign, placard, picture, advertisement,
notice or lettering whatsoever, in, about or on the exterior of the Premises or Shopping Center, except in
and at such places as may be designated by Landlord and consented to by Landlord in writing. Any such
sign, placard, advertisement, picture, notice or lettering so placed without such consent may be removed
by Landlord without notice to and at the expense of Tenant. All lettering and graphics on doors and
windows shall conform to the building standard prescribed by Landlord.
MIAMI 1598638.E 7249630783
8. Tenant shall not place, or cause or allow to be placed, any satellite dish, communications
equipment, computer or microwave receiving equipment, antennae or other similar equipment about or
on the exterior of the Premises or Shopping Center. Any such equipment so placed may be removed by
Landlord without notice to and at the expense of Tenant.
9. Canvassing, soliciting or peddling in the Shopping Center is prohibited and Tenant shall
cooperate reasonably to prevent same.
10. Landlord shall have the right to exclude any person from the Shopping Center, and any person in
the Shopping Center will be subject to identification by employees and agents of Landlord. If Tenant
desires additional security service for the Premises, Tenant shall have the right (with advance written
consent of Landlord) to obtain such additional service at Tenant's sole cost and expense. Tenant shall
keep doors to unattended areas locked and shall otherwise exercise reasonable precautions to protect
property from theft, loss or damage. Landlord shall not be responsible for the theft, loss or damage of any
property or for any error with regard to the exclusion from or admission to the Shopping Center of any
person. In case of invasion, mob, riot or public incitement, the Landlord reserves the right to prevent
access to the Shopping Center during the continuance of same by taking measures for the safety of the
tenants and protection of the Shopping Center and property or persons therein.
11. Only workmen employed, designated or approved by Landlord may be employed for repairs,
installations, alterations, painting, material moving and other similar work that may be done in or on the
Shopping Center. However, Landlord understands that Tenant is subject to the state and local laws
governing purchasing, and Landlord shall not unreasonably withhold its approval from Tenant to utilize
on the Premises workmen who have been authorized pursuant to said laws.
12. Tenant shall not bring or permit to be brought or kept in or on the Premises or Shopping Center
any inflammable, combustible, corrosive, caustic, poisonous, or explosive substance, or cause or permit
any odors to permeate in or emanate from the Premises, or permit or suffer the Shopping Center to be
occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Shopping
Center by reason of light, radiation, magnetism, noise, odors and/or vibrations.
13. Tenant shall not mark, paint, drill into, or in any way deface any part of the Shopping Center or
the Premises. No boring, driving of screws, cutting or stringing of wires shall be permitted, except with
the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed.
Tenant shall not install any resilient tile or similar floor covering in the Premises, except with the prior
approval of Landlord, which approval shall not be unreasonably withheld or delayed.
14. No additional locks or bolts of any kind shall be placed on any door in the Premises and no lock
on any door therein shall be changed or altered in any respect; provided, however, Tenant may install and
maintain, at its sole cost and expense, electronic keypad locks on the Premises. Tenant shall not make
duplicate keys. All keys shall be returned to Landlord upon the termination of this Lease and Tenant
shall give to Landlord the explanations of the combinations of all safes, vaults and combination locks
remaining with the Premises. Landlord may at all times keep a pass key or electronic code to the
Premises. All entrance doors to the Premises shall be left closed at all times and left locked when the
Premises are not to use.
15. Tenant shall give immediate notice to Landlord in case of known theft, unauthorized solicitation
or accident in the Premises or in the Shopping Center, or of known defects therein or in any fixtures or
equipment, or of any known emergency in the Shopping Center.
MiAMI 1598638.E 7249630783 - 2 -
16. Tenant shall not use the Premises or permit the Premises to be used for photographic, multilith or
multigraph reproductions, except in connection with its own business and not as a service for others
without Landlord's prior written permission.
17. No animals or birds shall be brought or kept in or about the Shopping Center, with the exception
A guide dogs accompanying visually handicapped persons.
18. No awnings, draperies, shutters or other interior or exterior window coverings that are visible
from the exterior of the Premises may be installed by Tenant without Landlord's prior written consent.
19. Tenant shall not place, install or operate within the Premises or any other part of the Shopping
Center any engine, stove, or machinery, or conduct mechanical operations therein, without the written
consent of Landlord.
% No portion of the Premises or any other part of the Shopping Center shall at any time be used or
occupied as sleeping or lodging quarters.
21. Tenant shall at all times keep the Premises neat and orderly.
22. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other
than that for which they were constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expenses of any breakage, stoppage or damage, resulting from the violation of this
rule shall be borne by the Tenant who (or whose employees or invitees) shall have caused such damage.
23. All tenant modifications resulting from alterations or physical additions in or to the Premises
must conform to all applicable building and fire codes. Tenant shall obtain written approval from the
management office prior to commencement of any such modifications and shall deliver as built plans to
the management office upon completion.
24. Tenant agrees to place all indoor potted plants requiring water within a container capable of
collecting any water overflow, such containers to be approved and/or supplied by Landlord, at Tenant's
sole expense. Tenant agrees to use caution so that indoor plants do not damage or soil the Premises.
25. Tenant shall not park (arid shall insure that Tenant's employees, agents, and invitees do not park)
in any reserved parking space other than those reserved parking spaces, if any, specifically assigned to
Tenant. Any vehicle improperly parked, or parked in any unauthorized parking area in the Shopping
Center, shall be towed at the vehicle owner's expense and without further or additional notice.
26. Persons using the Parking Areas do so at their own risk. Landlord specifically disclaims all
liability, except when caused solely by its gross negligence or willful misconduct, for any personal injury
incurred by users of the Parking Areas, their agents, employees, family, friends, guests or invitees, or as a
result of damage to, theft of, or destruction of any vehicle or any contents thereof, as a result of the
operation or parking of vehicles in the Parking Areas.
MiAMI 1598638.E 7249630783 - 3 -
SCHEDULE 6
SIGN CRITERIA
The required type sign is internally illuminated, individual channel letters. The individual letters shall be
raceway mounted. Raceways are to house the powering transformers and wiring between letters.
1. Raceways are to be constructed using continuous internal steel structure. Structure to be
skinned using a minimum 22-gauge paint grip or .063 aluminum. Raceways shall be 8" x 10"
x length of sign. Multiple rows of letters shall be mounted on individual raceways and letters
are to be centered vertically on the raceway. Raceways shall have full service access panels
sealing out water with ''/2" diameter weep holes spaced a maximum of 4' apart on the bottoms.
Raceways shall be painted per selected color by management to match base building.
2. Channels shall be constructed using formed and welded aluminum only. The backs shall be
22-gauge paint grip and pop rivets on top seams of .063 minimum thickness with returns
being 4.5" deep of .050 minimum thickness. Each bottom portion of a stroke shall have a'/4"
diameter weep hole.
3. Letter heights shall be a minimum of 12" and a maximum of 24". Two rows or more of
letters may be used not to exceed the maximum of 28" in overall height.
4. A sign shall not extend over more than 75% of the front of the Premises and be centered on
that front. A sign may not exceed the square foot envelope area determined by multiplying
the front of the Premises by two (per City of Fort Worth codes).
5. The tenant is responsible for removal of any signs in the event a lease is terminated and
repairing any damage to the facade during installation and removal of a sign. Upon vacating
the premises, the raceway must remain fixed to the building.
6. No temporary signs, flags, banners or hand -painted signs will be permitted. Management
must approve any special banners or signs in windows or on the front of the Premises.
7. Flashing, moving or audible signs will not be permitted. All electrical signs will bear the UL
label and their installation must comply with all local building and electrical codes.
8. No exposed tubing will be permitted. All conduits, conductors, transformers and other
equipment are to be concealed.
9. Electrical service to all signs will be on the tenant's meters. McCart Village Shopping Center
requires all tenants' signs that are lighted to remain on from dusk until 10:00 p.m., or until
business close, if hours of operation exceed that time.
10. Signs will be permitted only upon the graphic sign band as designed by the McCart Village
Shopping Center property manager and as shown on the approved improvement plans.
I1. Landlord will review and approve all sign shop drawings prior to construction and/or
installation. Two copies of drawings and specifications for proposed signage must be
submitted and a copy will be signed off and returned to the tenant as written approval.
MIAMI 1598638.E 7249630783
The tenant shall submit two sets of professionally prepared drawings, to scale by the sign company, for
Landlord's approval prior to fabrication and permit submission to the City of Fort Worth. Signs installed
without approval shall be removed and brought into compliance at the tenant's expense. Drawings shall
be submitted to:
JPMCC2005-CIBC 13 McCart Avenue LLC
Trinity Interests
Preston Royal Office Park
5924 Royal Lane, Suite 250
Dallas, Texas 75230
Attn.: Donna Blumberg
JPMCC2005-CIBC13 McCa►-t Avenue LLC
LNR Partners, Inc.
1601 Washington Avenue, Suite 700
Miami Beach, Florida 33139
Attn: R. William Ohlsen
MIAMI 1598638.E 7249630783 2