2003-113
FILE REFERENCE FORM
2003-113
FILE(S) Date Initials
Lease Amendment - Ordinance No. 2006-294 10/03/06 JR
S:\Our Documents\Ordinances\03\City Hall in the Mall.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A LEASE
AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON MALL
COMPANY, L.P. FOR THE CITY HALL IN THE GOLDEN TRIANGLE MALL;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute a lease
agreement between the City and the Denton Mall Company, L.P. for the City Hall in the Golden
Triangle Mall in substantially the form of the lease agreement attached hereto and made a part of
this ordinance for all purposes (the "Lease Agreement").
SECTION 2. The City Manager, or his designee, is authorized to make the expenditures
as set forth in the Lease Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
/./
PASSED AND APPROVED this the /,ff day of ,2003.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
HERBERT L. PROUTY, CITY ATTORNEY
.
.
GOLDEN TRIANGLE MALL
LEASE
THIS LEASE made this ,}.S~ day of ,. '!ltfllC" , 2003, by and between DENTON
MALL COMPANY, L.P., a Texas limited partnership fLa lord") having a business address of P.O. Box 7033.
Indianapolis, Indiana 46207 and CITY OF DENTON ("Tenant") having a business address of 215 East McKinney,
Denton, Texas 7620 I;
WITNESSETH THAT, in consideration of the rents, covenants and agreements hereinafter set forth, such
parties enter into the following agreement:
ARTICLE I
The exhibits listed below and attached to this Lease are incorporated herein by this reference:
EXHIBIT "A"
Plan of existing and proposed improvements (the "Center"). This
Exhibit is provided for informational purposes only, and shall not be
deemed to be a warranty. representation or agreement by Landlord that
the Center or buildings and/or any stores will be exactly as indicated on
the Exhibit. or that the other tenants which may be drawn on said
Exhibit will be occupants in the Center. Landlord reserves unto itself
the unlimited right to modify the configuration of the Center at any time
for the purpose of incorporating additional Major Tenants and other
buildings within the Center.
Rules and Regulations applicable to Tenant.
Tenant Information Package.
Sign Criteria applicable to Tenant.
TOFlRRt'o ",H8rh.
EXHIBIT "B"
EXHIBIT "B-1"
EXHIBIT "C"
~XIIIRIT "P"
ARTICLE II
A. Leased Premises. Landlord hereby leases to Tenant and Tenant hereby rents from L:mdlord, in its "as is"
condition, the space (in the Center) designated as Room L-22A as crosshatched on Exhibit "A" (herein~lftcr called "the
Premises"), measured to the center line of all party or common walls, to the exterior faces of all other walls and to the
building line where there is no wall, containing approximately 1,762 square feet (hereinafter called the "Store Floor
Area"). Any further alterations of this room, done upon Tenant's sole election, will be at the Tenant's sole expense and
deemed to be Tenant's Work, subject to the prior written approval of Landlord. Landlord shall have the exclusive right
to use any part of the roof, side and rear walls of the Premises for any purpose. Tenant shall have no right whatsoever in
the exterior of exterior walls or the roof of the Premises or any portion of the Center uutside the Premises. Landlord, its
agents and employees shall have the right to enter the Premises from time to time at reasonable times to examine the
same, show them to prospective purchasers and other persons, and make such repairs, alterations, improvements or
additions as Landlord deems desirable. Rent shall not abate while any such repairs, alterations, improvements, or
additions are being made. In addition, during any apparent emergency, Landlord or its agents may enler the Premises
forcibly without liability therefor.
B. Lease Term. The term of this Lease (hereinafter called "Lease Term") shall commence upon tLl [Jarlier (f (i)
~B8rli[Jr of (a) tkirt~ (J9) SIl~1.l RAor thl! BRtB hRFlahsm;j Rao ai!Ii"i!FiH~ tRU PrBmioBB to TSFlUllt, flR8 O~) October l, 2003t
aR~ (ii) 8ntB TSRRRt ElJ30Rll for ~YBiRo[j[j in tRB PFemiBGEi (being hereinafter called "Commencement Date"), and shall end
on September 30, 2006 unless sooner terminated as herein provided. If Tenant holds over with or without Landlord's
written consent Tenant shall, at Landlord's option, occupy the Premises on a tenancy from month to month and all other
terms and provisions of this Lease shall be applicable to such period.
C. Lease Year Defined. "Lease Year," as used herein, means a period of twelve (12) consecutive months during
the Lease Term, the first Lease Year commencing on the Commencement Date, or, in the event slIch Commencement
Date is other than the first day of the month, the Lease Year shall commence on the first day of the first month
immediately following such Commencement Date. "Partial Lease Year" means that portion of the Lease Term following
the last full Lease Year.
ARTICLE III
A. Minimum ntH! PllrlJi!RtRl?:O Rent. Tenant covenants and agrees to pay to Landlord, without notice or demand, at
Landlord's address for notice (Landlord's and Tenant's notice addresses being the addresses set fonh above). as rent for
the Premises:
~ A "Minimum Annual Rent" of $10.00 per square foot of Store Floor Area, or Seventeen
Thousand Six Hundred Twenty and 0011 00 Dollars ($17,620.00) per annum (based upon
the approximated Store Floor Area), payable in equal monthly installments, in advance
upon the first day of each and every month of the Lease Term commencing upon the
Commencement Date and continuing for the remainder of the term hereof (such monthly
installment being hereinafter called "Minimum Monthly Rent"). ~
-1-
.
.
8i) ? fllrlrl3BRt (71\) Elf ~r~[]o f:ull3o (kl3fl3ifHl.fHlr d(!fiNI3~) duriRg [!(l[!R h9RfH! Year or Purtiul
l.eaBo YrHlf iN BIl138fi8 sf tRs [DlcHl Yrl3alcf3siRt FO:- fHfLlR t3SriOB (R8f(lifU1Ml3f L'tilles
"Pere8Rtago ~(!Rt") TN€! Salas 'Qreal:fJoifH o'~all ~8 $: ~(!r fiRFl.MFR fsr thld b.cnfG! TLlHtt
(f3f8rat8~ ~r 8.N:' Partial b,[Jll[](! Y BRr)
If tuhiitioRul t1ujQf TUFUlRt8 an adEloB 18 the ':I3RtBf Sf fiR lllliotiRg t1ajnf Tl1FHlRt eft] dsfiFllJ!3 tHlroiR) in H!f~]af,H!€l
8:. II Hajef TSRRNt Elf RigA!!f qM!llitj, the HiAimHfR ARANU! ReFIt flRB t1inimMR-1 H0F1thl:, RCAl ~[!reiR prlcl idua hI' cM#U
RUt8""!ltiB'ull:, BB iR13fBR08B teR f3snHmt (120/) at tkG! tiR'\(! [!flO~ UBsiti0fUd ~r high!!f E[MRlitj t1&jBf Tal1tUH Cl3fHUi fElf
bMSiR8B!J IN !uleitisR 18 tRB fsregsiFlg, if haRSI[;1fS BRall, (Ii fiR:' tiA'\8 BuriAl; dH! tum sf t~iJ hI!UDQ, nHW atf! or (! :ptKWi
tAIil ~(!RH!f, tAB BeDt sf 'Ril3~ enCl[JoB!l TiJR Hilli8R [,(lIluo (fIQ,Qgg,ggg gQ), t~e HiRimulfi ReFIt HerBin flrl; iettHI (€oW
BRall lltltBRllltiBull~ hI] itUln!ll!HHi taR f3sraoRt (lQ!;:) LJflBR tho fimt BR~ llf tho RHIRtR fslls "iRg tRJ (lOmfllBti~Hl of 811~h
rlJRC 'atis" Dr f!1lJ3RAoiBFl
B. Miscellaneous Rent Provisions. If Tenant shall fail to pay any installment of Minimum Rent. P;ardJRtueJ ROllt
or any item of additional rent within five (5) days after the date the same became due and payable, then Tenant shall pay
to Landlord a late payment service charge ("Late Charge") covering administrative and overhead expenses equal to the
greater of (a) $250.00 or (b) 5~ per each dollar so overdue. Provision herein for payment of the Late Charge shall not be
construed to extend the date for payment of any sums required to be paid by Tenant hereunder or to relieve Tenant of its
obligation to pay all such sums at the times herein stipulated. If the Commencement Date is other than the first day of a
month, Tenant shall pay on the Commencement Date a prorated partial Minimum Monthly Rent for the period prior to
the first day of the next calendar month, and thereafter Minimum Monthly Rent payments ,;hall be made not later than
the first day of each calendar month.
C. Percentage Rent. INTENTIONALLY DELETED,
D, Gross Sales Defined. INTENTIONALLY DELETED.
E. Raul ~GtAtB Taxes. Landlord shall payor cause to be paid. upon the discretion of Landlord but before
delinquent, all Taxes (as hereinafter defined) levied, assessed, imposed, become due and payable. or liens arising in
connection with the use, occupancy or possession of or become due and payable out of or for, the Center or any pari
thereof during the Lease Term. As used in this Section the term "Taxes" shall mean and include all property taxes, both
real and personal, public and governmental charges and assessments, and all other taxes which Landlord is obligated to
pay with respect to the development of the Center, including all extraordinary or special assessments or assessments
against any of Landlord's personal property now or hereafter located in the Center, all costs and expenses including, hut
not limited to consulting, appraisal and attorneys' fees incurred by Landlord in researching, reviewing, evaluating,
contesting, appealing or negotiating with public authorities (Landlord having the sole authority to conduct such a contest
or enter into such negotiations) as to any of the same and all sewer, water and other utility taxes and impositions, but
shall not include taxes on Tenant's machinery, equipment, inventory or other personal property or assets of Tenant, if
any, , TBRKAt Il.gf8i:!iFlg t8 J3A~ 811 t8rU!!ll:lfHH\ or llttriEnttnEd~ to !lIOR BHBlu8~8 f3r€!fH!rt~ itR[XJLt l.(JfI€HtiBRFFlI:lRt
Taxes shall not include interest and penalties due on delinquent Taxes, but shall include inll:rest on Taxes
withheld by virtue of Landlord making partial payment under protest in the event such partial payment is permitted in
connection with a tax appeal proceeding.
Tenant shall pay to Landlord, as additional rent, its proportionate share of all calendar year or fiscal year Taxes,
such proportionate share to be prorated for periods at the beginning and end of the Lease Term which do not constitute
full calendar months or years. Tenant's proportionate share of any such Taxes shall be that portion of such taxes which
bears the same ratio to the total Taxes as the Store Floor Area bears to the average rentable floor area rented or occupied
in the Center (hereinafter called "Rented Floor Area") during the calendar year or fiscal year in which such Taxes
constitute a lien upon the Center. The floor area of (i) Major Tenants (defined as a sing'le tenant occupying at leasl
40,000 contiguous square feet of store floor area in the Center), and (ii) any tenant in a free standing premises, and (iii)
Common Areas, as hereinafter defined, shall not be included in the Rented Floor Area, and any contributions to Taxes
received by Landlord from such tenants (less any tax payments recaptured against any other rents or payments due
Landlord) shall be deducted from Taxes prior to the calculating of Tenant's proportionate shore.
Tenant's proportionate share of Taxes shall be paid in monthly installments commencing with the
Commencement Date, in amounts initially estimated by Landlord, one (1) such installment being due on the first day of
each full or partial month during the Lease Term. Upon notice from Landlord, such monthly instullments shall increase
or decrease from time to time to reflect the then current estimate of the amount of any Taxes due. When the actual
amount of any such Taxes is determined by Landlord, Landlord will notify Tenant of such a,;tual amount (in a format to
be determined by Landlord) and of any excess or deficiency in the amount theretofore paid by Tenant as its share of
such Taxes. Any such excess will be credited to Tenant's account. Tenant will pay the amount of any deficiency to
Landlord within ten (10) days following Landlord's notice thereof. Tenant acknowledges and stipulates that Landlord
has made no representations or agreement of any kind as to the total dollar amount of such Taxes, actual or estimated, or
Tenant's dollar share thereof.
Tenant's proportionate share of any governmental tax or charge (other than income lax) levied, assessed, or
imposed on account of the payment by Tenant or receipt by Landlord, or based in whole or in part upon, the rents in this
Lease reserved or upon the Center or the value thereof shall be paid by Tenant including any new direct or indirect tax
or surcharge against the Center, the parking areas, or the number of parking spaces in the Center or any new direct or
indirect tax or surcharge in addition to or by way of substitution for any existing tax or assessment which Landlord
becomes obligated to pay with respect to the Center.
If the land under the Center is a part of a larger parcel of land for assessment purposes (the "Larger Parcel"),
the taxes and assessments allocable to the land in the Center for the purpose of determining Taxes under this Section
shall be deemed a fractional portion of the taxes and assessments levied against the Larger Parcel, the numerator of
which is the acreage in the Center and the denominator of which is the acreage in the Larger Parcel.
-2-
e
e
F. Additional Rent. All amounts required or provided to be paid by Tenant under this Lease other than Minimum
Annual Rent and PBfiJiJRlagi! R@Flt shall be deemed additional rent and Minimum Annual Rent, P~nH!Rt(lg(J P ~I t and
additional rent shall in all events be deemed rent.
G, Sprinkler Svstem. INTENTIONALLY DELETED.
H. Landlord's Expenses. If Landlord pays any monies or incurs any expense to correct a brcach of this Lease by
Tenant or to do anything in this Lease required to be done by Tenant, or incurs any expense (including, but not limited
to. attorneys' fees and court costs), as a result of Tenant's failure to perform any of Tenant's obligations under this Lease,
all amounts so paid or incurred shall, on notice to Tenant, be considered additional rent payable by Tenant with the first
Minimum Monthly Rent installment thereafter becoming due and payable, and may be collected as by law provided in
the case of rent.
ARTICLE IV
A, Common Areas. All areas and improvements provided by Landlord for the general use in common of tenants
and their customers and department stores in the Center (all herein called "Common Areas") shall at all times be subject
to the exclusive control and management of Landlord, and Landlord shall have the right, from time to time, to establish,
modify and enforce reasonable rules and regulations with respect to all Common Areas. Landlord shall have the
absolute right from time to time to change or modify and add to or subtract from the ~;izes, locations, shapes and
arrangements of the Common Areas.
. Tenant and its business invitees. employees and customers shall have the nonexclusive right, in common with
Landlord and all others to whom Landlord has granted or may hereafter grant rights, to use the Common Areas subject
to such reasonable regulations as Landlord may from time to time impose and the rights of Landlord set forth above.
Tenant shall pay Landlord. upon demand, $25.00 for each day on which a car of Tenant, a concessionaire, employee or
agent of Tenant is parked outside any area designated by Landlord for employee parking. Tenant shall abide by all rules
and regulations and cause its concessionaires, officers, employees, agents, customers ancl invitees to abide thereby.
Landlord may at any time close temporarily any Common Areas to make repairs or changes, prevent the acquisition of
public rights therein, discourage noncustomer parking, or for other reasonable purposes. Tenant shall furnish Landlord
license numbers and descriptions of cars used by Tenant and its concessionaires, officers and employees. Tenant shall
not interfere with Landlord's or other tenants' rights to use any part of the Common Areas.
ARTICLE V
A. Expense of Ooeratinl! and Maintaining the Common Facilities. Landlord will opc:::rate, manage, maintain and
repair or cause to be operated, managed, maintained or repaired, the Common Areas of the Center. to the extent the
same is not done by any Major Tenant. "Landlord's Common Area Costs" shall mean all costs of operating and
maintaining the Common Arcas in a manner deemed by Landlord appropriate for the best interests of (enants and other
occupants in the Center. Tenant will pay Landlord. in addition to all other amounts in this Lease provided, $5.00 per
square foot of Store Floor Area per year as Tenant's share of Landlord's Common Area Costs. Such share shall be paid
in monthly installments, one (I) such installment being due on the first day of each month of each calendar year.
B, Heating, Ventilating, Air Conditioning Charges (Common Areas). As additional rent, Tenant will pay Landlord
annually, in equal monthly installments due on the first day of each month in advance, for providing heating. ventilaling
and air conditioning, including the <.:ost of electricity used in providing the same (but not inspecting, repairing, or
maintaining the same, which are among Landlord's Common Area Costs) of the Common Areas of the mall, the base
HV AC charge of $ill per square foot of Store Floor Area per year.
ARTICLE VI
A. Utilities. Tenant shall not install any equipment which can exceed the capacity of any existing utility facilities.
Tenant shall be solely responsible for and promptly pay all charges for use or consumption of sewer, gas, trash.
electricity, water and all other utility services. Landlord may make electrical, domestic ""'ater or other utility service
available to the Premises, and so long as Landlord continues to provide such service Tenant agrees to purchase Ihe same
from Landlord and pay Landlord for the service (based upon Landlord's determination from time to time of Tenant's
consumption), as additional rent, on the first day of each month in advance (and prorated for partial months),
commencing on the Commencement Date at the same cost as would be charged to Tenant from time to time by the utility
company which otherwise would furnish .such services to the Premises.
Landlord's initial billing for any utility being provided by Landlord hereunder and not separately metered
and directly billed by Landlord to Tenant hereunder, as the case may be, shall be accompanied by evidence
reasonably satisfactory to Tenant of the applicable rate or rates of such public or municipal utility and a statement in
reasonable detail setting forth the computation of the amount of Landlord's billing together with Sllch additional
information as Tenant may reasonably require to verify that Landlord's billing does not exceed the amount which
Tenant would otherwise be required to pay such public or municipal utility for the services being provided. . Any
subsequent increase or decrease in Landlord's billing for any such services shall include a statement in reasonable
detail setting forth the basis for such increase or decrease and the computation thereof
B. Enforcement and Termination. Landlord shall not be liable to Tenant in damages or otherwise if any utilities or
services, whether or not furnished by Landlord hereunder, are interrupted or terminated because of repairs, instalt~.ltion
or improvements, or any cause beyond Landlord's reasonable control, nor shall any such termination relieve Tenant of
any of its obligations under this Lease. Tenant shall operate the Premises in such a way as shall not waste fuel. energy or
natural resources. Landlord may cease to furnish anyone or more of said utilities or services to Tenant without liability
for the same, and no discontinuance of any utilities or services shall constitute a constructive eviction.
-3-
e
e
ARTICLE VII
A. Use of Premises. The Premises shall be occupied and used by Tenant solely for the purpuse of conducting
therein the business of the City of Denton offices, along with City of Denton Utilities clIstomer service center. and
Tenant shall not use or permit or suffer the use of the Premises for any other business or purpose.
B. Conduct of Business. Such business shall be conducted ~ under the name CITY OF DENTON 'JTIUTII<E
unless another name is previously approved in writing by the Landlord. Such business operations .,hall be conducted
under standard mall operating hours unless other hours are approved by Landlord's on-site management. ; al1a (8)
iF! 8ljBk maNRCle itEl oArdl [l!HlNfl3 tl:le tF8.R860tisFl of n rR8::imum nlliRH! 131' 8l:HliRIHJD iF! I1AB !l.t 11'1E! Pn:!miol3c TeRl1Flt'8 stlt-1f8
flh!ill Bt! BR8 reFRaiN OfHIR ~ht(l"iFlg 811 aajB, RigktD aRB HAMra (iFwhuliFlg EHfUbjD liD fH!fR'lilti38 Bj la, ) f!DUIBliuIH<!8 Bj
l8Rslsf8 TeNoRt ill floNtiRNiHHil~ sf3enu8 llF!.S OOREhwt iN all sf tALl PFBmioBEl sMriRg OlHlA otRRsLlra moll sfer~ Amn
tHO \:<JHDiRi!Bfl p3BFlflittSB HABsr SeatisR A Rbo' 0, itk a F.i11 otn.~ BRS ~ull 01001: Elf mBr8HRI'U~.i['O, .17tH t F1j Bfl~ tkut Tf!RuRt
808l] Rot full~' oBmf3I~' "ith the f3re ioioRD sf thio SSfdtioR, tAll t1iFlifflHI>R RON', f3rSrHtea ElF!. n dail~ l~ltlBio, oRHl1 AD
iRiJf131HHHI @~' kft~ f3srOQRt (.5"Q"K), BNsk iR8raflL108 OHm rli!f3reB8RtiRg t~B BRmagSEi Rioh tRe f3flnicl[] agrBB haRa.l&riJ ill
!:JMf><fl3r ~~' TeRRRt'o ROR[l0mf3linRo@
C. ODeration bv Tenant. Tenant covenants and agrees that it will: not place or maintain any merchandise,
vending machines or other articles in any vestibule or entry of the Premist:s or outside th~ Prt:mises, except fur City
/lall Kiosk, or such other articles as may be approved by Landlord's on~site management; store garbage, trash,
rubbish and other refuse in ratMproof and insectMproof containers inside the Premises, and remove the same frequently
and regularly and, if directed by Landlord, by such means and methods and at such times and intervals as are designated
by Landlord, all at Tenant's costs; not permit any sound system audible or objectionable advertising medium visible
outside the Premises; keep all mechanical equipment free of vibration and noise and in good working order and
condition; not commit or permit waste or a nuisance upon the Premises; not permit or cause odors [0 emanate or be
dispelled from the Premises; not solicit business in the Common Areas nor distribute advertising matter to, in or upon
any Common Area; not permit the loading or unloading or the parking or standing of delivery vehicles outside any area
designated therefor, nor permit any use of vehicles which will interfere with the use of any Common Areas; comply with
all laws, recommendations, ordinances, rules and regulations of governmental, public, private and other authorities and
agencies, including those with authority over insurance rates, with respect to the use or occupancy of the Premises, and
including but not limited to the Americans with Disabilities Act of 1990 and the Williams-Steiger Occupational Safety
and Health Act; light the show windows of the Premises and all signs each night of the year for not less than one (1)
hour after the Premises is permitted to be closed; not permit any noxious, toxic or corrosive fuel or gas, dust, dirt or fly
ash on the Premises; not place a load on any floor in the Shopping Center which exceeds the floor load per square foot
which such floor was designed to carry, Tenant shall store in the Premises only merchandise which TenD-nt intends to
sell at, in or from the Premises, within a reasonable time after receipt thereuf. Landlord may make additional services,
including but not limited to, pest contro!, trash removal, cleaning, and security, available to the Premises and, in such
event, Tenant shall utilize such services, at Tenant's expense.
Tenant is solely responsible to comply with all regulations of the Texas Architectural Barriers Act. This
includes review and approval of plans, and the inspection of the space at the conclusion of constructiun.
Tenant will not paint, decorate or change the architectural treatment of any part of the exterior of the Premises
nor any part of the interior of the Premises visible from the exterior. Tenant will maintain merchandise displays in the
show windows on the Premises consistent with the character and standards of the Center.
No public or private auction or any fire, "going out of business," bankruptcy or similar sales or auctions shall
be conducted in or from the Premises and the Premises shall not be used except in a dignified and ethical manner
consistent with the general high standards of merchandising in the Center and not in a disreputable or immoral manner
or in violation of national, state or local laws.
Tf!RRRt ill not, sNriFlg tRB 1.13808 Term, E1inHHI~ Ar iR8irlliJtl~ of3srflt8, mURRgE! 131 Ra' 8 tl~: iFlti3l'f![.t RUILiBu"8r
in ll.Fl~' 13ther steH! llI" BtwiN@OD oflli!rRt8E1 fer R ~Nrp€10E! 8r hl:loiRODO oimilar t8 81' iR 00Fllt3St'.tiol itk nil 8] f'lart c I' thl3
MiFlli!8fi f3erR"litteB MA8C!r Arti[lle "II Rar8sf itAiR fi' 8 (5) m.ilc![j UfllR~ E1l.JHABflr~ HAl! 0ftRsCen.'or IfTeRRAt qHHHlo',
mORaglJO or kno OM OR iRtl3rsfJt iF!. RA~ ElNah otsrl3 sr BMSiRODO itkiA GMBh MOll, 1 QQ~ 13f RlI OUlll!'] AHlEll! frRRl HI: OM!:!I utHl3r
6te'lrli! sr hUBiNoo[] [JAfilll3a iRehf,88B iR thi.:! (!Bm~Mtfiti8R of ~r80El EalBo fElr tlu flNrflEiDO l1f E1JtBrmiRiRg PlJrOQRtf'!;4 R.eRI
MABelI' this haRBll ao ~R€lMgR flaie CrsBll ~a.I(JD RnB Rl3tliall~ BOOR mues at, iA Elf KOFl. t~s Pn!ll-1i~OD 1.!ln8hm~ okall 11(\ Jail
rigRHl Elf inBf81.HisR Elf 8El81:0 aRB fi!i!Dl'Bfl . 'ill-! reDrcwt t8 OtlOR stSfC!O sr BMliiReBElt:1a no it RUO itk ri!OfHwt tEi tAS Promioll[,\
llnEJ TllRftFlt fiR-ulI ~FRi8R tB l.nR8lBra ['YBR rBflsrtEi itA. rl3flrBBt to ~rooo gRloo from mH~R Bthar atslB sr 13l:1LiiREDfl fir it in
RSI'8iR Ta~ ,iTa.l t8 f [TRiBR ill'! f8[j~aat bJ tN8 Pn!T+liOelJ
D. Hazardous Materials. Tenant shall not, without the prior written consent of Landlord, calise or permit,
knowingly or unknowingly, any Hazardous Material (being any substance which is or becomes regulated by any federal,
state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement, and shall
include asbestos and petroleum products) to be brought or remain upon, kept, used, discharged, leaked. or emitted in or
about, or treated at the Premises. Tenam shall remove from the Premises all Hazardous Materials at the termination of
this Lease, In addition to, and in no way limiting, Tenant's duties and obligations as set forth in Article X (F) of this
Lease. should Tenant breach any of its duties and obligations as set forth in this Article VII (D), or if the presence of any
Hazardous Material on the Premises results in contamination of the Premises, the Center, any land other than the CCllIer,
the atmosphere, or any water or waterway (including groundwater), or if contamination of the Premises or of the Center
by any Hazardous Material otherwise occurs for which Tenant is otherwise legally liable to Landlord for damages
resulting therefrom, Tenant shall indemnify, save harmless and, at Landlord's option and with attorneys approved in
writing by Landlord. defend Landlord, and its contractors, agents, employees, partners, officers, directors, and
mortgagees, if any, from any and all claims, demands, damages, expenses, fees, costs, fines, penalties, suits,
proceedings, actions, causes of action, and losses of any and every kind and nature (including, without limitation,
diminution in value of the Premises or the Center, damages for the loss or restriction on use of the rentable or usable
space or of any amenity of the Premises or the Center, damages arising from any adverse impact on marketing space in
-4-
.
.
the Center, and sums paid in settlement of claims and for attorney's fees. consultant fees and expert fees. which may
arise during or after the Lease Term or any extension thereof as a result of such contamination). Without limiting the
foregoing, if the presence of any Hazardous Material on or about the Premises or the Center caused or permitted hy
Tenant results in any contamination of the Premises or the Center, Tenant shail. at its sole expense, promptly take all
actions and expense as are necessary to return the Premises and/or the Center to the condition existing prior to the
introduction of any such Hazardous Material to the Premises or the Center: provided, hO\vevcr, that Landlord's approval
of such actions shall first be obtained in writing.
Tenant shall be solely responsible for compliance with the Texas Asbestos Health Protection Act and all local
ordinances and rules relating thereto, including, but not limited to, conducting any asbestos survey of the Premises
required for renovation or demolition permits. Tenant shall provide a copy of any such asbestos survey to Landlord's
on-site management.
ARTICLE VIII
A, Maintenance bv Landlord. Landlord shall keep or cause tu be kept the foundations, roof and structural portions
of the walls of the Premises in good order, repair and condition except for damage thereto due to the acts or omissions of
Tenant, its agents, employees or invitees. This Section shall not apply in case of damage or destruction by fire or other
casualty or condemnation or eminent domain, in which events the obligations of Landlord shall be controlled by Article
XV. All other repairs, replacements or improvements of any kind upon the Premises shall be Tenant's responsibility.
B. Maintenance bv Tenant. Tenant shall at all times, at Tenant's sole cost and expense, keep the Premises
(including all entrances and vestibules) and all partitions, window and window frames and mouldings, glass, store fronts,
doors, door openers, fixtures, equipment and appurtenances thereof (including lighting, heating, electrical, plumbing,
ventilating and air conditioning fixtures and systems and other mechanical equipment and appurtenances) and all parts of
the Premises, and parts of Tenant's Work not on the Premises, not required herein to be maintained by Landlord, in good
order, condition and repair and clean, orderly, sanitary and safe, damage by unavoidable casualty excepted (including
but not limited to doing such things as are necessary to cause the Premises to comply with applicable laws, ordinances,
rules, regulations and orders of governmental and public bodies and agencies, such as but not limited to the Americans
with Disabilities Act of 1990 and the Williams-Steiger Occupational Safety and Health Act). If replacement of
equipment, fixtures and appurtenances thereto is necessary, Tenant shall replace the same with new or completely
reconditioned equipment, fixtures and appurtenances, and repair all damages done in or by such replacement.
At the expiration of the Lease Term, Tenant shall surrender the Premises in the same condition as they were
required to be in on the Required Completion Date, reasonable wear and tear and damage by unavoidable casualty
excepted. and deliver all keys for the Premises to the office of the Center's general manag'~r. All alterations, changes
and additjons and all improvements, including leasehold improvements, made by Tenant whether part of Tenant's Work
or not, shall remain Tenant's property for the Lease Term, but shall immediately upon the termination of this Lease
become Landlord's property, be considered part of the Premises, and not be removed withoUl Landlord's written consent.
If Tenant fails to remove any shelving, decorations, equipment, trade fixtures or personal property from the Premises
prior to the end of the Lease Term, they shall become Landlord's property and Tenant shall repair or pay for the repair of
any damage done to the Premises resulting from removing same but not for painting or redecorating the Premises.
ARTICLE IX
A. Tenant's Liens. Tenant shall not suffer any mechanics' or materialmen's lien to be filed against the Premises or
the Center by reason of work, labor, services or materials performed or furnished to Tenant or anyone holding any part
of the Premises under Tenant. If any such lien shall at any time be filed as aforesaid, Landlord may remove said lien by
any manner Landlord deems appropriate, without investigating the validity thereof, and Tenant, upon demand, shall pay
Landlord the amount so paid out by Landlord in connection with the discharge of said lien, together with interest thereon
and expenses incurred, including attorneys' fees, which amounts are due and payable to Landlord as additional rent on
the first day of the next following month. Nothing contained in this Lease shall be construed as a consent on the part of
Landlord to subject Landlord's estate in the Premises to any lien or liability under the lien laws of the State where the
Center is located. Tenant's obligation to observe and perform any of the provisions of this Section shall survive the
expiration of the Lease Term or the earlier termination of this Lease.
Tenant shall not create or suffer to be created a security interest or other lien against any improvements,
additions or other construction made by Tenant in or to the Premises or against any equipment or fixtures installed by
Tenant therein (other than Tenant's property), and should any security interest be created in breach of the foregoing,
Landlord shall be entitled to discharge the same by exercising the rights and remedies afforded it under the first
paragraph of this Section.
ARTICLE X
A. Insurance Bv Landlord. Landlord shall carry public liability insurance on the Common Areas owned or
controlled by Landlord. Landlord shall also carry insurance for fire, extended coverage, vandalism, malicious mischief
and other endorsements de~med advisable by Landlord, insuring all improvements in the Center, including the Premises
and all leasehold improvements thereon and appurtenances thereto (excluding Tenant's merchandise, trade fixtures,
furnishings, equipment, personal property and excluding plate glass) fur the full insurable value thereof, with such
deductibles as Landlord deems advisable, and Tenant agrees to pay Landlord, as additional rent, sixtv cents (2.Q;c) per
year for each square foot of Store Floor Area payable in equal installments on th~ first day of every calendar month
during the Lease Term, as Tenant's share of the cost of the premiums for such insurance described above in this
sentence.
-5-
.
.
B. Insurance Bv Tenant Tenant agrees to carry public liability insurance on the Premises during the Lease Term,
covering the Tenant and naming the Landlord as an additional named insured with terms and companies satisfactory to
Landlord, for limits of not less than $250,000,00 for bodily injury, including death, and personal injury for anyone (1)
person and $500,000. 00 for anyone (1) occurrence, and $100,000.00 property damage insurance. OJ!" 0 iJOR1SiRI;!ij oiRgl€!
liR'lit sf H:l,999,ggg Qg TSR!lRt'8 iRB IfRROB ill iFlShHill o(><JRtra8tl>talli!l.bilit~ Be Clfogll rBi.H"lf,FliBiNg tkio b..~HUj8, ~n ehHHD
8ftd OfJA'!pl8toe flJHuatisRB IiRBilit~ [1"8 fiTS" isiRg that b..IlFuHsfB nR8 Tenant shall be given a minimum of sixty (60) days
written notice by the insurance company prior to cancellation, termination or change in such insurance. Tenant also
agrees to carry insurance against fire and such other risks as are from time to time required by Landlord, including. but
not limited to, a standard "All-Risk" policy of property insurance protecting against all risk of physical loss or damage.
including without limitation, sprinkler leakage coverage and plate glass insurance covering all plate glass in the Premises
(including store fronts), in amounts not less than the actual replacement cost. covering all of Tenant's merchandise. trade
fixtures. furnishing. wall covering, floor covering, carpeting, drapes, equipment and all items of personal property of
Tenant located on or within the Premises. Upon the Commencement Date and annually thereof, Tenant shall provide
Landlord with certificates of the policies. evidencing that such insurance is in full force and effect and stating the terms
thereof, including all endorsements, Notwithstanding the foregoing requirements, Landlord and Tenant acknowledge
Tenant is a self-insured public entity as permitted by the State of Texa.<, Claims for which Tenant i,' liable will be
paid from the Risk Retention Fund established for that purpose,
C. Mutual Waiver of Subrogation Rights. Landlord and Tenant and all parties claiming, by, through or under
them mutually release and discharge each other from all claims and liabilities arising from or caused by any casualty or
hazard covered or required hereunder to be covered in whole or in part by insurance on the Premises or in connection
with property on or activities conducted on the Premises. and waive any right of subrogation which might otherwise
exist in or accrue to any person on account thereof and further agree to evidence such w<.i:.iver by endorsement to the
required insurance policies.
D. Waiver. Landlord. its agents and employees, shall not be liable for, and Tenant "aives all claims for, loss or
damage, including but not limited to consequential damages. to person, property or othenvise, sustained by Tenant or
any person claiming through Tenant resulting from any accident, casualty or occurrence in or upon any part of the
Center. All property of Tenant kept in the Premises shall be so kept at Tenant's risk only and Tenant shall save Landlord
harmless from claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier.
E. Insurance - Tenant's Operation. Tenant will not do or suffer to be done anything which will contravene
Landlord's insurance policies or prevent Landlord from procuring such policies in amounts and companies selected by
Landlord. If anything done, omitted to be done or suffered to be done by Tenant in, upon or about the Premises shall
cause the rates of any insurance effected or carried by Landlord on the Premises or other property to be increased
beyond the regular rate from time to time applicable to the Premises for use for the purpose permitted under this Le:.lse,
or such other property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon
Landlord's demand and Landlord shall have the right to correct any such condition at Tenant', expense.
F. Indemnification. To the extent permitted by law, Tenant shall save harmless, indemnify, and at Landlord's
option. defend Landlord, its agents and employees, and mortgagee, if any. from and against any and all liability, liens,
claims, demands, damages, expenses, fees, costs, fines. penalties, suits, proceedings, actions and causes of action of any
and every kind and nature arising or growing out of or in any way connected with Tenant's use, occupancy, management
or control of the Premises or Tenant's operations, conduct or activities in the Center.
ARTICLE XI
A. Offset Statement. Within ten (10) days after Landlord's written request Tenant shall deliver, executed in
recordable form a declaration to any person designated by Landlord stating such truthfitl information as Landlord
reasonably requires pertaining to this Lease. Persons receiving such statements shall be entitled to rely upon them.
Tenant's failure to execute instruments or certificates provided for in this Article Xl within fifteen (15) days after the
mailing by Landlord of a written request shall be a default under this Lease.
n. Attornment. Tenant shall. in the event of a sale or assignment of Landlord's interest in the Premises or the
building in which the Premises is located or this Lease or Landlord's Tract, or if the Premises or such building cumes
into the hands of a mortgagee. ground lessor or any other person whether because of a mortgage foreclosure, exercise of
a power of sale under a mortgage, termination of the ground lease, or otherwise, attorn to the purchaser or such
mortgagee or other person and recognize the same as Landlord hereunder. Tenant shall execute, at Landlord's request,
any attornment agreement required by any mortgagee, ground lessor or other such person to be executed, containing
such provisions as such mortgagee. ground lessor or other person requires.
Subordination. The Lease shall be prior, senior and superior at all times to the lien of any first mortgage or
mortgages which now or hereafter are a lien upon any part of Landlord's Tract. However. upon Landlord's request,
Tenant will subordinate its rights hereunder to the liens of any mortgages or any lien resulting from any method of
financing or refinancing (hereinafter collectively referred to as "mortgage") now or hereafter existing against all or a part
of Landlord's Tract, and to all renewals, modification. replacements. consolidations and extensions thereof, and shall
execute and deliver all documents requested by a mortgagee or security holder to effect such subordination. provided the
mortgagee or security holder agrees in writing that if Landlord defaults under the mortgage, said mortgagee or security
holder shall not disturb Tenant's possession while Tenant is not in default hereunder. If Tenant fails to execute and
deliver any such document requested by a mortgagee or security holder to effect such subordination, Landlord is hereby
authorized to execute such documents and take such other steps as are necessary to effect sllch subordination on behalf
of Tenant as Tenant's duly authorized irrevocable agent and attorney-in-fact.
Ooeratin!2 Al!reements. This Lease is subject and subordinate to one (1) or more construction, operation,
reciprocal easement or similar agreements (hereinafter referred to as "Operating Agreements") entered into or hereafter
to be entered into between Landlord and other owners or lessees of real estate within or near the Center and to any and
all easements and easement agreements which may be or have been entered into with or granted to any persons
-6-
.
.
heretofore or hereafter, whether such persons are located within or upon the Center or not, and Tenant shall execute such
instruments as Landlord requests to evidence such subordination.
ARTICLE XII
A. Consent Reauired. Tenant shall not sell, assign or in any manner transfer this Lease or any interest therein, nor
sublet any part of the Premises, nOf license concessions nor lease departments therein without Landlord's prior written
consent. Under no circumstances shall Tenant mortgage, pledge or otherwise collaterally transfer its interest in this
Lease. Tke fen! for fJfBB8S8iFlg hflFlfllElfe'S f!0RfilHH Dhall iRitiflll~ Be 11 ,gQg QQ, itk RRRluli f 1 99 Qg in@nHC;;!U
Notwithstanding any transfer, Tenant shall remain futly liable on this Lease and for the performance of all terms.
covenants and provisions of this Lease. Neither Tenant nor any other person having an intl:rest in the possession, use.
occupancy or utilization of the Premises shall enter into any lease, sublease. license, conc'~ssion. assignment or other
agreement for use. occupancy or utilization for space in the Premises which provides for rental or other payment for
such use, occupancy. or utilization based in whole or in part on the net income or profits derived by any person from the
party leased. used. occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or
sales), and that any such proposed lease, sublease, license, concession, assignment or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in the possession. use" occupancy or utilization of
any part of the Premises.
ARTICLE XIII
A. Provisions Relating to Promotional Fund. Landlord may, at its option, create and maintain an adverti'sing and
promotional fund (hereinafter referred to as the "Fund"), the primary purpose of which is to provide sums necessary for
professional advertising and promotional services which benefit the tenants in the Center. In the event the Landlord
does create and maintain the Fund. Tenant agrees to contribute to such Fund. beginning upon the later to occur of (a) the
Commencement Date, or (b) the date the Fund is created, ten cents (~) per square foot of Store Floor Area during each
calendar year of the Lease Term (hereinafter referred to as "Fixed Contribution") payable in equal monthly installments,
in advance. on the first day of each and every month (pro rated for partial months). Landlord shall contribute an amount
equal to one-fourth (114) of the monies collected from all tenants in the Center during each calendar year, which sum
may be paid in whole or in part by Landlord, at its option, by providing the services of a Marketing Director or other
person or persons under Landlord's exclusive control to help organize and implement advertising and promotional
programs using assets Irom the Fund. The failure of any other tenant or any Major Tenant to contribute to the Fund
shall not affect Tenant's obligations hereunder.
B. Media Fund. Landlord may, at its option, create and maintain a Media Fund, the exclusive purpose of which
shall be to pay all costs and expenses associated with the purchase of electronic, print or outdoor advertising for the
promotion of the Center. In the event Landlord does create and maintain the Media Fund. Tenant agrees to contribute to
such Fund, beginning upon the Commencement Date a sum equal to ten cents (~) per square foot of Store Floor Area
during each calendar year of the Lease Term (hereinafter referred to as "Media Fund Charge"), payable in equal monthly
installments, in advance, on the first day of each and every month (pro rated for partial months). Tenant hereby
authorizes Landlord to use Tenant's trade name and a brief description of Tenant's business in connection with any
media advertising purchased pursuant to this Section.
ARTICLE XIV
A, Securitv Deposit. INTENTIONALLY DELETED.
ARTICLE XV
A. Damage and Destruction. If the Center or the Premises are hereafter damaged or destroyed or rendered
partially untenantable for their permitted use by fire or other casualty, then Landlord or Tenant shall have the right 10
terminate this Lease effective as of the date of such casualty by giving to the other party, ~ within sixty (60) days
after the happening of such casualty, written notice of such termination. If such notice be given, this Lease shall
terminate and Landlord shall promptly repay to Tenant any rent theretofore paid in advance which was not earned at the
date of such casualty. Any time that Landlord repairs or restores the Premises after damage or destruction, then Tenant
shall promptly repair or replace its stock in trade, fixtures, furnishings, furniture, carpeting, wall covering, tloor
covering, drapes. equipment and Premises to the same condition as they were in immediately prior to the casualty, and if
Tenant has closed its business, Tenant shall promptly reopen for business upon the completion of such repairs.
B. Eminent Domain. If any portion of the Center shall be acquired or condemned by right of eminent domain for
any public or quasi public use or purpose, then Landlord at its election may terminate this Lease by giving notice to
Tenant of its election. and in such event rentals shall be adjusted as of the date of termination. If the Lease shall not be
terminated as aforesaid. then Landlord shall within a reasonable time after possession is physically taken repair or
rehuild what remains of the Premises for Tenant's occupancy; and a just proportion of the Rent shall be abated,
according to the nature and extent of the injury to the Premises for the balance of the Lease Term. Landlord reserves,
and Tenant assigns to Landlord, all rights to damages on account of any taking or condemnation or any act of any public
or quasi public authority for which damages are payable. Tenant shall execute such imtruments of assignment as
Landlord requires, join with Landlord in any action for the recovery of damages, if requested by Landlord, and turn over
to Landlord any damages recovered in any proceeding. However, Landlord does not reserve any damages payable for
trade fixtures installed by Tenant at its own cost which are not part of the realty.
-7-
e
e
If ten percent (10%) or more of the Premises is taken by such condemnation, Tenant may, 011 sixty (60) day,\'
notice to Landlord given lVithin sixty (60) days of such taking, terminate this Lease, and rents shall be adjusted as of
the date of termination.
ARTICLE XVI
A. Default Bv Tenant. The following shall be considered for all purposes to be defaults under and breaches of this
Lease: (a) any failure of Tenant to pay any rent or other amount when due hereunder; (b) any failure by Tenant to
perform or observe any other of the terms, provisions, conditions and covenants of this Lease for more than ten (10)
days after written notice of such failure; (c) a determination by Landlord that Tenant has submitted any false report
required to be furnished hereunder; (d) if Tenant abandons or vacates or does not do business in the Premises; or (e) this
Lease or Tenant's interest herein or in the Premises or any improvements thereon or any property of Tenant are executed
upon or attached; or (f) the Premises come into the hands of any person other than expressly permitted under this Lease,
or (g) any claim or lien is asserted or recorded against the interest of Landlord in the Premises or Center, or any portion
theleof, on the account of, or extending from any improvement or work done by or at the instance, or for the benefit of
Tenant, or any person claiming by, through or under Tenant or from any improvement or work the cost of which is the
responsibility of Tenant. In any such event, and without grace period, demand or notice (the same being hereby waived
by Tenant), Landlord, in addition to all other rights or remedies it may have, shall have the right thereupon or at any
time thereafter to terminate this Lease by giving notice to Tenant stating the date upon which such termination shall be
effective, 'and shall have the right, either before or after any such termination, to re-enter and take possession of the
Premises, remove all persons and property from the Premises, store such property at Tenant's expense, and sell such
property if necessary to satisfy any deficiency in payments by Tenant as required hereunder, all without notice or resort
to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage occasioned
thereby. If Landlord terminates this Lease for any breach. in addition to any other remedies it may have. it may recover
from Tenant all damages incurred by reason of such breach or default. including deficiency in rent. brokerage rees and
expenses of placing the Premises in rentable condition, and attorneys' fees, all of which shall be immediately due and
payable by Tenant to Landlord.
B. Counterclaim. If Landlord commences any proceedings for non-payment of rent (Minimum Annual Rent,
PBrtH!F1.tage ReNt or additional rent), Tenant will not interpose any counterclaim of any nature or description in such
proceedings. This shall not, however. be construed as a waiver of Tenant's right to assel't such claims in a separate
action brought by Tenant. The covenants to pay rent and otht:r amounts hereunder are independent covenants and
Tenant shall have no right to hold back, offset or fail to pay any such amounts for default by Landlord or any other
reason whatsoever.
C. Default Bv Landlord. Landlord shall in no event be charged with default in any of its obligations hereunder
unless and until Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as
is reasonably required to correct any such default) after written notice to Landlord by Tenant, specifically describing
such failure. If the holder of the first mortgage covering the Premises shall have given wrilten notice to Tenant of the
address to which notices to such holder are to be sent, Tenant shall give such holder written notice simultaneously \vith
any notice given to Landlord of any default of Landlord, and if Landlord fails to cure any default asserted in said nmice
within the time provided above, Tenant shall notify such holder in writing of the failure to cure, and said holder shall
have the right but not the obligation. within thirty (30) days after receipt of such second notice. to cure such default
before Tenant may take any action by reason of such default.
ARTICLE XVII
A. Taxes on Leasehold. Tenant shall be responsible for and shall pay before delinquent all municipal. county.
federal or state taxes coming due during or after the Lease Term against Tenant's interest in this Lease or against
personal property of any kind owned or placed in, upon or about the Premises by Tenant.
B. Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall bind
and inure to the several respective heirs, successors, administrators, executors and assigns of the parties and if Tenant is
more than one (I) person, they shall be bound jointly and severally by this Lease. Landlord. at any time and from time
to time, may make an assignment of its interest in this Lease and, in the event of such assignment, Landlord and its
successors and assigns (other than the assignee of Landlord's interest in this Lease) shall be released from any and all
liability thereafter accruing hereunder.
C. Landlord's Covenant. If Tenant pays the rents and other amounts herein provided, observes and performs all
the covenants, terms and conditions hereof, Tenant shall peaceably and quietly hold and enJoy the Premises for the
Lease Term without interruption by Landlord or any person or persons claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease.
D. \Vaiver. No waiver by Landlord or Tenant of any breach of any term, covenant or condition hereof shall be
deemed a waiver of the same or any subsequent breach of the same or any other term, covenant or condition. The
acceptance of rent by Landlord shall not be deemed a waiver of any earlier breach by Tenant of any term, covenant or
condition hereof, regardless of Landlord's knowledge of such breach when such rent is acce:pted. No covenant, term or
condition of this Lease shall be deemed waived by Landlord or Tenant unless waived in writing.
E. Accord and Satisfaction. Landlord is entitled to accept, receive and cash or deposit any payment made by
Tenant for any reason or purpose or in any amount whatsoever, and apply the same at Landlord's option to any
obligation of Tenant and the same shall not constitute payment of any amount owed except that to which Landlord has
applied the same. No endorsement or statement on any check or letter of Tenant shall be deemed an accord and
satisfaction or otherwise recognized for any purpose whatsoever. The acceptance of any such check or payment shall be
without prejudice to Landlord's right to recover any and all amounts owed by Tenant hereunder and Landlord's right to
pursue any other available remedy.
-8-
.
.
F. Entire A2reement. There are no representations, covenants, warranties, promises, agreemems, conditions or
undertakings. oral or written, between Landlord and Tenant other than herein set forth. Except as herein otherwise
provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless in writing and signed by them. Tenant acknowledges that it has independently investigated the potential
for the success of its operations in the Center and has not relied upon any inducements or representations on the part of
Landlord or Landlord's representatives, other than those contained in the Lease.
G. No Partnership. Landlord does not, in any way or for any purpose, become a partner, employer, principal.
master, agent or joint venturer of or with Tenant.
H. Force Majeure. If either party hereto shall be delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure m~Herial, failure of power.
restrictive governmental laws or regulations, riots, insurrection, war, environmenlJ.l remediation work whether ordered
by any governmental body or voluntarily initiated or other reason of a like nature not the fault of the party del.1yed in
performing work or doing acts required under this Lease, the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, the provisions of this
Section shall at no time operate to excuse Tenant from any obligations for payment of Minimum Annual Rent,
P@riJBNtago RONt, additional rent or any other payments required by the terms of this Lease when the same are due, and
all such amounts shall be paid when due.
I. Submission of Lease. Submission of this Lease to Tenant does not constitute an offer to lease; this Lease shall
become effective only upon execution and delivery thereof by Landlord and Tenant. The effective date of this Lease
shall be the date filled in on Page I hereof by Landlord, which shall be the dale of execution by the last of the parties to
execute the Lease.
J. Notices. All notices to be given hereunder by either party shall be written and sent by registered or certified
mail. return receipt requested. postage pre-paid or by an express mail delivery service, addressed to the party intended to
be notified at the address set forth above. Either party may, at any time, or from time to time, notify the other in writing
of a substitute address for that above set forth, and thereafter notices shall be directed to such substitute address. Notice
given as aforesaid shall be sufficient service thereof and shall be deemed given as of the date received or the date on
which delivery is first refused, as evidenced by the return receipt of the registered or certified mail or the express mail
delivery receipt, as the case may be,
K. Caotions and Section Numbers. This Lease shall be construed without reference to titles of Articles and
Sections, which are inserted only for convenience of reference.
L. Number and Gender. The use herein of a singular term shall include the plural and use of the masculine,
feminine or neuter genders shall include all others.
M. Obiection to Statements. Tenant's failure to object to any statement, invoice or bi,lling rendered by Landlord
within a period of ninety (90) days after receipt thereof shall constitute Tenant's acquiescence with respect thereto and
shall render such statement, invoice or billing an account stated between Landlord and Tenant.
N, Representation bv Coroorate Tenant. INTENTIONALLY DELETED,
O. Joint and Several Liability. If Tenant is a partnership or other business organization the members of which are
subject to personal liability, the liability of each such member shall be deemed to be joint ancl several.
P. Limitation of Liabilitv. Anything to the contrary herein notwithstanding, no general or limited partner of the
Landlord, or any general or limited partner of any partner of the Landlord, or any shareholder of any corporate partner
of any partner of the Landlord, or any other holder of any equity interest in the Landlord, or in any entity comprising the
Landlord or its partners, shall be personally liable with respect to any of the terms, covenants, conditions and provisions
of this Lease, or the performance of Landlord's obligations under this Lease, nor shall Landlord or any of said
constituent parties have any liability to Tenant for any consequential damages such as, but not limited 10, lost profils.
The liability of Landlord for Landlord's obligations under this Lease shall be limited to Landlord's interest in the Center,
and Tenant shall look solely to the interest of Landlord, its successors and assigns, in the Center, for the satisfaction of
each and every remedy of Tenant against Landlord. Tenant shall not look to any of Landlord's other assets seeking
either to enforce Landlord's obligations under this Lease, or to satisfy any money or deficiency judgment for Landlord's
failure to perform such obligations, such exculpation of personal liability is and shall be absolute and without any
exception whatsoever.
The term "Landlord" shall mean only the owner at the time in question of the present Landlord's interest in the
Center. In the event of a sale or transfer of the Center (by operation of law or otherwise) or i:1 the event of the making of
a lease of all or substantially all of the Center, or in the event of a sale or transfer (by operation of law or otherwise) of
the leasehold estate under any such lease, the grantor, transferor or lessor, as the case may be, shall be and hereby is (to
the extent of the interest or portion of the Center or leasehold estate sold, transferred or leased) automatically and
entirely released and discharged, from and atier the date of such sale, transfer or leasing of all liability with respect of
the performance of any of the terms of this Lease on the part of Landlord thereafter to be per!(Jrmed; provided that the
purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to have assumed and agreed to perform,
subject to the limitations of this Section (and without further agreement between the other parties hereto, or among such
parties and the Transferee) and only during and in respect of the Transferee's period of ownership of the Landlord's
interest under this Lease, all of the terms of this Lease on the part of Landlord to be performed during such period of
ownership, it being intended that Landlord's obligations hereunder shall, as limited by this Section, be binding on
Landlord, its successors and assigns only during and in respect of their respective, successive periods of ownership.
Q. Broker's Commission. Each party represents and warrants that it has caused or incurred no claims for
brokerage commissions or finder's fees in connection with the execution of this Lease, and each party shall indemnify
and hold the other harmless against and from all liabilities arising from any such claims caused or incurred by it
(including without limitation, the cost of attorneys' fees in connection therewith).
R. Partial Invaliditv. If any provision of this Lease or the application thereof to any person or circumstance shall
to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or
-9-
.
.
circumstances other than those as to which it is invalid or unenforceable, shall not be affected fhereby and each
provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
S. Recordine.. The parties agree 110t to place this Lease of record.
T. Aoolicable Law. This Lease shall be construed under the laws of the State in which the Center i~ located.
U. Unrelated Business Taxable Income. If at any time and from time to time during the term of this Lease,
Landlord is advised by its counselor counsel to a tax exempt partner of the managing partner of Landlord that any
provision of this Lease, including without limitation the provisions relating to the payment of rent and additional rent, or
the absence of any provision might give rise to unrelated business taxable income within the meaning of sections 512 of
the Internal Revenue Code of 1986, as amended, or the regulations issued thereunder, or may jeopardize the tax-exempt
status of any partner in Landlord or any partner in a partnership that is a partner in Landlord, or may prevent any such
partner from obtaining such tax-exempt status, then this Lease may be unilaterally amended by Landlord in such manner
as shall meet the requirements specified by counsel for Landlord and Tenant agrees that it will execute all documents or
instruments necessary to effect such amendments, provided that no such amendment shall result on an estimated basis in
Tenant having to pay in the aggregate more on account of its occupancy of the Premises than it would be required to pay
under the terms of this Lease, or having to receive fewer services or services of lesser quality than it is presently entitled
to receive under this Lease.
Any services which Landlord is r~quired to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of Landlord or the managing agent of the
Center or its employees or by one or more third persons hired by Landlord or the managing agent of the Center. Tenant
agrees that upon Landlord's written request it will enter into direct agreements with the managing agent of the Center or
other parties designated by Landlord for the furnishing of any such services required to be furnished by Landlord herein,
in form and content approved by Landlord, provided, however, that no such contract shall result on an estimated basis in
Tenant having to pay in the aggregate more money on account of its occupancy of the Premises under the terms of this
Lease, or having to receive fewer services or services of a lesser quality than it is presently entitled to receive under this
Lease.
V. Relocation. After the first two (2) Lease Years of the Lease Term, If'!. tRE.! tl BAt hUR81~rel e ["H.neD or
I'OB8Rt4gHrec tAB CBRter, Landlord may SARli Ma B tM!! right t8 require Tenant to relocate its operation, at Landlord's
T31 URt'o expense, to a mutually agreed upon location (the "New Premises"). If p€!IBijatiBR in nl~blirea f0r UR~ 0thur
naRBeFl, it Bkall ~(! at hUFlEllonl'D srlfHIFlLlB Landlord shall notify Tenant at least one hundred and fifty (ISO) days prior to
the intended relocation, and the New Premises shall be substantially the same size and configuration as the Premises
described herein. Tenant's failure to notify Landlord that the New Premises are unacceptable within thirty (30) days of
receipt of Landlord's relocation notice shall be deemed a waiver with respect thereto and confirmation thar the New
Premises are acceptable to Tenant.
W. Non.Aoorooriation and Ri1!ht of Termination. The obligations of Tenant to pay rent and to make any other
payments to Landlord (or to any other person) pursuant to this Lease are subject to appropriation by the Tellam of
fUllds tha~ are lawfully available to be applied for such purpose. lfTenantfails to make sllch all apprapriatiall prior
to a fiscal period of Tenant for rent and charges scheduled in such fiscal period, Tenalll shall givell notice to
Lalldlard that the funds will not be aI'ailable and Tellant may terminate this Lease by providillg written lIatice of
such termination to Landlord not less thall forty-five (45) days prior to the first day of the lIext fallowillg fiscal
period. Despite any such election to terminate, Tenant shall remain 1mble for the performance of all the terms,
covenants and conditions contained in this Lease until the effeL'tive date of such terminatiolJ.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease as 01' the day and year first
above written.
(LANDLORD)
DENTON MALL COMPANY, L.P., a Texas limited partnership
By: GT MALL, INC., a Delaware corporation, its general
partner
By:
(TENANT)
APPROVED AS TO FORM:
CITY ATTO 1(
CITY OF
BY:
-10-
GOLDEN TRIANGLE
Anchor
MALL
TSD# L22A
Level: 01
SIMONTM
SIMON PROPERTY GROUP
115 W. WASHINGTON ST.
INDIANAPOLIS, IN 46204
2,700¢
2,490¢
The information in this document is confidential and a proprietary trade secret of the Simon Property Group (SPG) and may not be copied, distributed,
published or disclosed without prior written permission. The intormation contained herein is subject to change without prior written notice and does not
constitute any contract er obligation by SPG, it is the responsibility of the tenant or the tenant's contractor to field verify existing site conditions and dimensions.
DBA Name: Date: 01/02/03 20:33
Unit No. L22A EXHIBIT "A" ;cale: 1" = 20'
Leasing Agent: No. 0705
10.
RULES AND REGULATIONS
Tenant shall advise and cause its vendors to deliver all merchandise before noon on Mondays through Fridays,
not at other times.
All deliveries are to be made to designated service or receiving areas and Tenant shall request delivery trucks to
approach their service or receiving areas by designated service routes and drives.
Tractor trailers which must be unhooked or parked must use steel plates under dolly wheels to prevent damage
to the asphalt paving surface. In addition, wheel blocking must be available for use. Tractor trailers are to be
removed from the loading areas after unloading. No parking or storing of such trailers will be permitted in the
Center.
Except for small parcel packages, no deliveries will be permitted through the malls anless Tenant does not have
a rear service door. In such event, prior arrangements must be made with the Resident Mall Supervisor for
delivery. Merchandise being received shall immediately be moved into Tenant's Premises and not be left in the
service or receiving areas.
Tenant is responsible for storage and removal of its trash, refuse and garbage. Tenant shall not dispose of the
following items in sinks or commodes: plastic products (plastic bags, straws, boxes); sanitary napkins; tea
bags; cooking fats, cooking oils; any meat scraps or cutting residue; petroleum products (gasoline, naptha,
kerosene, lubricating oils); paint products (thinner, brushes); or any other item which the same are not designed
to receive. All Store Floor Area of Tenant, including vestibules, entrances and returns, doors, fixtures,
windows and plate glass, shall be maintained in a safe, neat and clean condition.
Other than as permitted under the provisions of this Lease, Tenant shall not permit or suffer any advertising
medium to be placed on mall walls, on Tenant's mall or exterior windows, on standards in the mall, on the
sidewalks or on the parking lot areas or light poles. No permission, expressed or implied, is granted to exhibit
qr display any banner, pennant, sign, and trade or seasonal decoration of any size, style or material within the
Center, outside the Premises.
Tenant shall not permit or suffer the use of any advertising medium which can be heard or experienced outside
of the Premises, including, without limiting the generality of the foregoing, flashing lights, searchlights, loud
speakers, phonographs, radios or television. No radio, television, or other communication antenna equipment
or device is to be mounted, attached, or secured to any part of the roof, exterior surface, or anywhere outside
the Premises, unless Landlord has previously given its written consent.
Tenant shall not permit or suffer merchandise of any kind at any time to be placed, exhibited or displayed
outside its Premises, nor shall Tenant use the exterior sidewalks or exterior walkways of its Premises to display,
store or place any merchandise. No sale of merchandise by tent sale, truck load sale or the like, shall be
permitted on the parking lot or other common areas.
Tenant shall not permit or suffer any portion of the Premises to be used for lodging purposes, nor conduct or
permit any unusual firing, explosion or other damaging or dangerous hazard within the Premises or the
Common Area.
Tenant shall not permit or suffer any portion of the Premises to be used tbr any warehouse operation, or any
assembling, manufacturing, distilling, refining, smelting, industrial, agricultural, drilling or mining operation,
adult bookstore or cinema, peepshow, entertainment or sale of products of an obscene or pornographic nature
or predominately sexual nature.
11. Tenant shall not, in or on any part of the Common Area:
(a)
Vend, peddle or solicit orders for sale or distribution of any merchandise, device, service, periodical,
book, pamphlet or other matter whatsoever.
(b)
Exhibit any sign, placard, banner, notice or other written material, except for activities as approved in
writing by Landlord.
(c)
Distribute any circular, booklet, handbill, placard or other material, except for activities as approved in
writing by Landlord.
(d) Solicit membership in any organization, group or association or contribution tbr any purpose.
(e) Create a public or private nuisance.
(f)
Use any Common Areas (including the Enclosed Mall) for any purpose when none of the other retail
establishments within the Center is open for business or employment, except for activities as approved
in writing by Landlord.
EXHIBIT "B"
Page -1-
(g)
(h)
Throw, discard or deposit any paper, glass or extraneous matter of any kind except in designated
receptacles, or create litter or hazards of any kind.
Deface, damage or demolish any sign, light standard or fixture, landscaping materials or other
improvement within the Center, or the property of customers, business invitees or employees situated
within the Center.
EXHIBIT "B"
Page -2-
TENANT INFORMATION PACKAGE
(Tenant Information Package incorporated herein by reference.)
EXHIBIT "B- 1"
SIGN CRITERIA
Tenant will not erect any signs except in conibrmity with the following policy and sign types set [brth in the
Criteria Infbrmation Handbook:
(a)
(b)
(c)
Wording on large scale signs shall be limited to store or trade name only. Each party's customary
signature or logo, hallmark, insignia, or other trade identification will be respected.
Signs with exposed lamps and signs of the flashing, blinking, rotating, moving, or animated types or
audible type signs are not permitted.
The size of all Tenant's signs shall be limited. The scale and concept of the enclosed mall requires the
use of signs which are not larger than necessary to be legible from within the mall. Thus, except for
department store signs, Tenant's signs shall be located within the limits oF its storefront and shall not
project more than six inches (6") beyond the storefront and shall conform to the following
proportionate height criteria:
(1) 30' storefront: 18" capitals 12" body
(2) 30' to 60' storefront: 24" capitals 18" body
(3) 60' and over storefront: 30" capitals 24" body
(d)
(e)
(0
(g)
(h)
O)
(J)
(k)
(1)
(m)
(n)
(o)
(p)
(q)
In addition to complying with the above criteria, signs in the enclosed malls shall be limited in length
of 70% of Tenant's frontage on the mall, and shall in no case exceed a length of thirty feet (30'0").
Painted or printed signs on the exterior surface of any building shall be prohibited, except small-scale
signs relative to store name and stating store hours which are neatly lettered on the glass of the
storefront but subject to Landlord's written approval and in addition, any non-customer door
receiving merchandise may have in 2-inch block letters, the name of Tenant.
Public safety decals or artwork on glass in minimum sizes to comply with applicable Code, subject to
the approval of Landlord, may be used, as required by building codes or other governmental
regulations.
Paper signs, stickers, banners or flags are prohibited.
No exposed raceways, ballast boxes or electrical transfbrmers will be permitted except as required by
Code.
Sign company names or stamps shall be concealed (Code permitting).
Except as otherwise approved in writing by Landlord, only one (1) sign for Tenant will be permitted
within the enclosed mall areas, except the corner tenants may have 2 such signs.
Sign letters may be back-lighted with lamps or tubes entirely concealed within the depth of the letter
or may be opaque or translucent plastic face with no visible openings. Maximum brightness allowed
for interior (enclosed mall) signs will be 100 foot lamberts taken at the letter face and must comply
with all building and electrical codes.
Exposed sign illumination or illuminated sign cabinets or modules are not permitted.
Signs and identifying marks shall be placed entirely within the boundaries of Tenant's Premises with
no part higher than 12 feet above the finished floor line, nor shall any projecting sign be located
closer than 8 feet to the finished floor line, but in no event shall such a sign extend above the wall or
parapet upon which it is mounted.
Tenant shall not install any roof top signs.
Tenant shall install no pylon signs.
No signs will be permitted at the rear of any building.
All signs shall be lighted and subject to the Landlord's written approval before fabrication.
Three (3) complete sets of sign drawings must be submitted to the Landlord for written approval
before fabrication. Tenant's sign drawings must include the following:
1. Elevation view of storefront showing sign (drawn to accurate scale) with dimensions of height
of letters and length of sign.
EXHIBIT "C"
Page - 1 -
2. Color sample of sign panel.
3. Color sample of sign letters (unless they are to be WHITE).
4. Cross section view through sign letter and sign panel showing location of sign relative to the
storefront line and showing the dimensioned projection of the face of the letter fi'om the face of
the sign panel.
The Landlord shall not be responsible for the cost of refabrication of signs fabricated, ordered or constructed,
that do not conform to the sign criteria.
EXHIBIT "C"
Page -2-