R-2012-121-2012-10-01 RESOLUTION NO. R2012-121
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A LEASE AGREEMENT FOR THE WESTSIDE LIBRARY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Lease Agreement by and between the City of Pearland
and AmREIT SPF Shadow Creek, LP, a copy of which is attached hereto as Exhibit "A"
and made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a Lease Agreement for the Westside Library.
PASSED, APPROVED and ADOPTED this the 1st day of October A.D., 2012.
TOM REID
MAYOR
ATTEST:
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APPROVED AS TO FORM:
61,----
DARRIN M. COKER
CITY ATTORNEY
AmREIT
<ei?v+ay Plaza
safe 1000 November 13 2012
Houston Texas 77046
Toi-free 800 888 4400
FAY 711 R5n r".anx
The City of Pearland
Attention: Bill Eisen, City Manager
3519 Liberty Drive
Pearland, TX 77581
RE: Shadow Creek Ranch Town Center—Pearland, Texas
Ladies and Gentlemen:
Attached for your records is the fully executed Lease between AmREIT SPF
Shadow Creek, LP, as Landlord; and The City of Pearland, as Tenant; regarding
leased premises in the above-reference shopping center.
Thank you for your assistance in this matter. If you have any questions or need
further information, please contact your property manager, Craig Vance, at 713-
860-4958, or email cvance@amreit.com.
Yours very truly,
0.6(VL
Deb Korkm s
Paralegal
The Irreplaceable Corner'Company www.amreit.corn
Resolution No. R2012-121
Exhibit "A"
LEASE
THIS LEASE(the"Lease")is made as of the p day of� x ,2012,by and between AmREIT
SPF Shadow Creek, LP, a Delaware limited partnership ("Landlord"), and The City of Pearland, a Texas
home rule municipality("Tenant").
The parties hereto,for themselves,their heirs,executors,administrators,legal representatives,successors and
assigns,hereby covenant and agree as follows:
1. DEFINITIONS. The following terms shall have the meanings hereinafter set forth throughout this
Lease:
A. "Base Rent"-The base rent payable by Tenant during the Term,as follows:
MONTHS PSF ANNUALLY MONTHLY
1 -6 $-0- $-0- $-0-
7—42 $17.00 $102,000.00 $8,500.00
43—66 $18.00 $108,000.00 $9,000.00
67—90 $19.00 $114,000.00 $9,500.00
Renewal Option 1:
Years 1 -3 $20.50 $123,000.00 $10,250.00
Renewal Option 2:
Years 1 -2 $22.00 $132,000.00 $11,000.00
B. "Broker"—Scott Gardner, Senior Vice-President, UCR moodyrambin Page
C. "CAM Payment" - the monthly payment by Tenant for Tenant's Pro Rata Share of CAM Expense.
The initial monthly CAM Payment is estimated by Landlord to be $2,750.00; however, the CAM Payment is
subject to adjustment from time to time during the Term.
D. "Commencement Date"—the date that this Lease shall commence, being the date Landlord delivers
possession of the Premises to Tenant in the condition required herein,estimated by Landlord to be on or before
November 1,2012.
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E. "Common Area"-the areas of the Shopping Center designated from time to time by Landlord for use
in common by tenants, including the surface parking area in front of the Premises.
F. "Effective Date" - the date this Lease is duly executed by Landlord and Tenant and Landlord's
delivery of same to Tenant.
G. "Expiration Date" -the date which is the last day of the ninetieth(90th)full calendar month after the
Rent Commencement Date.
H. "Guarantor"—N/A.
I. "Initial Alterations" - the modifications to the Premises to facilitate Tenant's use of the Premises as
approved by Landlord and performed in accordance with Landlord's Construction Requirements outlined in
Exhibit C. Initial Alterations shall mean only fixtures, paint, wall coverings, floor coverings, electrical,
HVAC, and/or plumbing upgrades and shall not include furniture, removable trade fixtures, and/or
equipment.
J. "Land" - that certain real property on which the Shopping Center is situated, located in the City of
Pearland,County of Brazoria,and State of Texas,further defined in Exhibit A.
K. "Landlord's Notice Address" - 8 Greenway Plaza, Suite 1000, Houston, Texas 77046, Attention:
Legal Department,Facsimile Number 713-850-0498.
L. "Permitted Use"—Except as otherwise expressly provided in the third sentence hereof,the Premises
shall be used solely and continuously by Tenant for (i) the operation of a public library, and (ii) within such
public library, for internal administrative meetings, meetings of the Friends of the Westside Library, and
meetings of the Pearland Library Board. Except for meetings of the Pearland Library Board, meetings
conducted on the Premises shall be closed to the general public and not be subject to Chapter 551 of the Texas
Government Code (Texas Open Meetings Act); provided however,notwithstanding the foregoing, no meeting
shall be conducted within the Premises if Tenant has a reasonable, good faith, basis to believe that such
meeting will or might involve any form of public assembly, demonstration (for or against) or protest,
anywhere in the Shopping Center, but for no other use or purpose. Tenant shall also be allowed to utilize the
Premises as an early voting location for City of Pearland and Brazoria County elections; provided however,
Landlord reserves the right, in its sole discretion, following the May 2013 election, to prohibit the use of the
Premises as an early voting location if it is determined by Landlord, in its sole discretion, that the use of the
Premises as an early voting location is disruptive to any other tenant or occupant of the Shopping Center. In
the event Landlord elects to prohibit the use of the Premises as an early voting location, Landlord shall provide
Tenant with one hundred twenty (120) days written notice of such prohibition to allow Tenant adequate time
to locate an alternate early voting location. Notwithstanding the foregoing Permitted Use, or any term or
provision to the contrary in this Lease, in no event shall Tenant sell or offer any item or product, or use the
Premises,in violation of the exclusive use and prohibited use provisions set forth in Exhibit I hereto.
M. "Premises" -that space shown hatched on the floor plan(s) attached hereto as Exhibit A-2, located in
the Shopping Center deemed to be 6,000 rentable square feet for the purposes of this Lease.
N. "Prepaid Rent"—N/A.
O. "Property" - collectively, the Premises, the Land, the Shopping Center and any other building or
improvements now or hereafter constructed on the Land,as further defined in Exhibit A.
P. "Rent Commencement Date"—the date on which Rent shall commence,which shall be the earlier to
occur of(i)the date Tenant commences business operations within the Premises or(ii)April 1,2013. Payment
of the CAM Payment will commence on the Rent Commencement Date. For avoidance of doubt, payment of
the CAM Payment will commence on the earlier to occur of (i) the date Tenant commences business
operations within the Premises or(ii)April 1,2013.
Q. "Security Deposit"-N/A.
R. "Shopping Center" -the retail shopping center known as Shadow Creek Ranch Town Center located
at State Highway 288 and FM 518(Broadway),Pearland,Texas,as shown on Exhibit A-1,attached hereto.
S. "Tenant Improvement Allowance" - $30.00 per square foot contained in the Premises; for a total of
$180,000.00;payable to Tenant in accordance with Exhibit C.
T. "Tenant's Notice Address" — 3519 Liberty Drive, Pearland, TX 77581;
Phone: Fax: ;email:
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U. "Tenant's Pro Rata Share"-The percentage for allocation of expenses of the Shopping Center to the
Premises, which shall be computed by multiplying the whole of the CAM Expenses, including Taxes and
Insurance, by a fraction, the numerator of which is the total square footage of floor area of the Premises and
the denominator of which is the total square footage of leasable floor area of all buildings on the Property as of
the first day of the calendar year to which such CAM Expenses relate; however there shall be excluded from
the denominator of such fraction (i) the floor area of non-selling mezzanines (if any), passageways, service
corridors, Shopping Center offices, storage areas, utility rooms, sprinkler rooms and other non-selling areas
that are not a part of any specific tenant's demised premises; and (ii) the square footage of floor area of any
premises with no customer entrance that are not a part of a specific tenant's demised premises.
V. "Term"-the period commencing on the Commencement Date and ending on the Expiration Date.
W. "Trade Name" - The name utilized by Tenant in its business in the Premises, which is "City of
Pearland Public Library".
2. PREMISES AND TERM. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises located in the Shopping Center for the period commencing on the Commencement Date
and ending on the Expiration Date. The Premises shall be used and occupied by Tenant solely for the
Permitted Use and for no other purpose without Landlord's prior written consent. Tenant shall execute an
Acknowledgment of Delivery upon receipt of keys to the Premises and within ten (10) days after the Rent
Commencement Date, Tenant shall execute an acceptance letter in the form of Exhibit B annexed hereto(the
"Acceptance Letter"), however Tenant's failure to execute the Acceptance Letter shall not affect the
Commencement Date or the Rent Commencement Date.
3. RENT.
A. Base Rent. Tenant shall pay Landlord monthly installments of Base Rent at the Landlord's Notice
Address or at such other place designated by Landlord, monthly, in advance, on the first day of each calendar
month during the Term, without notice or demand and without any setoff, abatement or counterclaim. All
sums of money required to be paid under this Lease, including Base Rent, the CAM Payment and all other
payments required to be made by Tenant hereunder(sometimes collectively referred to herein as"Additional
Rent"), shall be considered rent(and are sometimes collectively referred to herein as "Rent") whether or not
specifically designated as such. If the Rent Commencement Date does not occur on the first day of a calendar
month or if the Term does not expire or terminate on the last day of a calendar month, Base Rent and any
Additional Rent payable hereunder shall be prorated for such partial month on the basis of a thirty (30) day
month.
B. Additional Rent. Tenant shall pay to Landlord, as Additional Rent, in the same manner as the Base
Rent, Tenant's Pro Rata Share of the CAM Expenses. Further, Tenant shall pay, as Additional Rent, the cost
of any additional services provided by Landlord to Tenant that are requested by Tenant in writing.
C. Late Charges and Returned Checks Fee. If any installment of Base Rent or Additional Rent or any
other payment of Rent under this Lease shall not be paid when due, a Late Charge ("Late Charge") of five
cents ($0.05) per dollar so overdue may be charged by Landlord to defray Landlord's administrative expense
incident to the handling of such overdue payments. Each Late Charge shall be payable on demand. In
addition to any applicable Late Charge, any payment checks received from Tenant and returned to Landlord
from the depository bank marked "not sufficient funds" shall be subject to an additional fee of$200.00 per
check so returned.
4. COMMON AREAS AND EXPENSES.
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A. Access to Common Areas. During the Term, Tenant and its customers are entitled to the
nonexclusive use (in common with others entitled thereto) of the Common Areas, subject to the terms of this
Lease and any rules and regulations promulgated by Landlord. Subject to the terms of this Lease with respect
to Tenant's Protected Area(as defined in Section 32),all Common Areas which Landlord elects or is obligated
to provide and maintain are subject to the exclusive control and management of Landlord, and Landlord shall
have the right from time to time to establish, modify and enforce rules and regulations with respect to all such
facilities and areas. Landlord may, in its sole discretion, change the number, restripe, redesign, relocate, or
modify the entrances and exits, to and from the parking areas, and the parking spaces. Landlord may change
from time to time the dimensions and location of the Common Areas and to construct additional buildings or
additional stories on existing buildings or other improvements in the Property. However, Landlord will not
rearrange the Common Areas in a way which prohibits access to the Premises or removes substantially all the
existing parking spaces in the proximity of the Premises. Tenant shall not conduct, solicit business or display
merchandise within the Common Areas, or distribute handbills therein, or take any action which would
interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part
of the Common Areas for such periods of time as Landlord deems necessary to prevent the public from
obtaining prescriptive rights,or to make repairs or alterations.
B. Common Area Maintenance Expenses. Landlord agrees to operate, maintain and repair the
Common Areas throughout the Term. The Shopping Center Common Area operating, maintenance and repair
expenses (the "CAM Expenses") include the aggregate of all costs and expenses paid or incurred by or on
behalf of Landlord, whether structural, non-structural, foreseen or unforeseen, relating to the ownership,
maintenance and operation of the Shopping Center, Common Areas, parking facilities, roofing systems,
sidewalks, or any other areas related to the Property for which Landlord shall have a repair or maintenance
obligation. CAM Expenses shall be determined on an accrual basis in accordance with generally accepted
accounting principles consistently applied. Without limiting the generality of the foregoing, CAM Expenses
shall include the cost of: (i) replacing and repairing any facilities of the Common Areas, (ii) policing and
protecting the Common Area, (iii) cleaning, painting, inspecting, landscaping of the Common Areas, (iv)
premiums for worker's compensation and employer's liability insurance, wages, unemployment taxes and
social security taxes for all on-site employees at the Property,(v) personal property taxes, licenses and permits
levied or chargeable against the Shopping Center, (vi)supplies, sound equipment, electricity, lighting fixtures
and bulbs, seasonal and/or holiday decorations for the Shopping Center(vii)rentals paid for equipment rented
or leased or used in the operation and maintenance of the Shopping Center, (viii)traffic control, watchman or
security service(if Landlord in its sole discretion elects to provide same),(ix)a management fee not to exceed
four percent(4%)of the Base Rent and Additional Rent for the management and operation of the Property,(x)
fees to Landlord or Landlord's designee for the administrative expense of maintaining the Common Areas and
Property as set by Landlord provided that such administrative fees shall not exceed ten percent(10%) of the
Total CAM Expenses,(xi)all ad valorem taxes,taxes in lieu of ad valorem taxes(irrespective of what such tax
is called, including, without limitation, any tax imposed upon or measured by Landlord's income or profits as
part of the same legislation or related series of legislation adopted in the same legislative session, linked to a
mandated reduction in real estate ad valorem taxes, whether such mandate is included in the legislation
imposing such tax or in any one of the related series of legislation adopted in the same legislative session),and
other taxes, fees, assessments and governmental charges levied against or taxing the Property or its operation
("Taxes") for any whole or partial tax year or period occurring during the Term, and all costs and expenses
directly incurred by Landlord in contesting the validity of, in seeking a reduction in, or in seeking to prevent
an increase in any such Taxes or assessments, and (xii) all insurance that Landlord is obligated or deems
necessary to carry("Insurance")covering the Shopping Center and the Property. The maintenance and repairs
for the Common Areas includes only those repairs and replacements, and the supplies and materials therefor
which in Landlord's reasonable judgment, are necessary to enhance and preserve the utility of the Common
Areas. Taxes shall include, but not be limited to the tax imposed under Chapter 171 of the Texas Tax Code
(the "Texas Margin Tax"), which taxes shall be considered imposed as revenues are earned during the
measurement period on which the tax is based notwithstanding anything contained herein to the contrary,
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whether otherwise belonging to or chargeable against Landlord or Tenant. The Texas Margin Tax shall be
presumed to be equal to(i)the ratio of(A)total rents and other amounts paid by Tenant to Landlord during a
measurement period on which a Texas Margin Tax report is based to(B)total rents and other related amounts
received by Landlord from all Texas tenants during that period multiplied by (ii) the Texas Margin Tax
liability incurred by Landlord with respect to total rents and other related amounts received during that period,
including the Texas Margin Tax liability of a combined reporting group of which Landlord is a member that is
attributable to rents and other related amounts received by Landlord, and where Texas Margin Tax liability is
incurred as revenues are earned during the measurement period on which the tax is based.
Notwithstanding anything set forth above to the contrary, CAM Expenses shall not include costs or expenses
which properly constitute capital expenditures under generally accepted accounting principles consistently
applied;provided,however, Landlord may include in CAM Expenses those capital expenditures or other costs
or expenses incurred by Landlord(the "Authorized Capital Expenditures") relating to, associated with or in
connection with Landlord's compliance with applicable laws, rules and regulations, whether now existing or
hereafter enacted, specifically including the Americans With Disabilities Act of 1990 (the "ADA") and any
Life Safety Appendix to any municipal building code (the "Life Safety Code") with respect to the Common
Areas. The costs of any such Authorized Capital Expenditures shall be amortized on a straight line basis
beginning in the year of installation and continuing for the useful life thereof, but not less than ten(10)years,
using a per annum interest factor equal to two percent (2%) above the prime rate in effect on the date of
installation. The amount of amortization for such Authorized Capital Expenditures shall be included in CAM
Expenses for each year to which the amortization relates. Additionally, CAM Expenses shall not include the
following: (i)the cost of any work which Landlord performs solely for any other tenants and the costs of any
services rendered or costs reimbursed to a tenant which are not generally rendered or reimbursed to other
tenants; (ii) the cost of repairs or maintenance costs necessitated by the negligence of Landlord, or its agents,
contractors or employees, in the initial construction of the Shopping Center or the Premises or any defect
thereof; (iii) legal and other fees, leasing commissions, advertising expenses and other costs incurred in
connection with development or leasing of the Shopping Center; (iv) any amounts for which Landlord is
reimbursed by insurance or otherwise compensated, including direct reimbursement by any tenant; (v)
replacement or repairs covered by construction contracts or contractor's warranties; (vi) expenses relating to
vacant or vacated space; (vii) the costs, including without limitation any fees, taxes or costs, for furnishing
water, sewer, gas, fuel, electricity, janitor or trash removal service or other utilities or services to those
portions of the Shopping Center which are leased to tenants; (viii)the costs of acquiring property and/or new
construction or renovation of the Shopping Center or the Premises; (ix) any bad debt or rental loss and any
reserves or insurance for such losses; (x)the cost of Landlord's federal,state or local income taxes;(xi)interest
or principal payments on any mortgage or deed of trust or any ground lease payments; (xii) reserves for
anticipated future expenses; and (xiii) with respect to any personnel costs included by Landlord in CAM
Expenses, if such personnel do not work exclusively for the Shopping Center, the portion of such costs
equivalent to the percentage of time spent by such personnel on matters other than the Shopping Center.
Notwithstanding the foregoing, for the purposes of calculating Tenant's CAM Payment obligations for each
calendar year after the first full calendar year of the Term, the aggregate Controllable CAM Expenses
(hereinafter defined)that may be included in CAM Expenses shall not increase by more than five percent(5%)
per year, on a cumulative and compounding basis. For avoidance of doubt, Landlord is entitled to the benefit
of the full amount of any unused cap room from prior years when calculating the applicable cap amount for the
then current year. The term "Controllable CAM Expenses" means only those CAM Expenses within the
reasonable control of Landlord,thus excluding insurance premiums, taxes, utilities, security(if any), any costs
incurred to comply with applicable laws, and all other costs beyond Landlord's reasonable control. Nothing in
this provision shall cap, or otherwise apply to reduce, Tenant's obligations with respect to(i) CAM Expenses
which are not Controllable CAM Expenses, for any year, or (ii) Controllable CAM Expenses for the first
calendar year of the Term of this Lease.
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Tenant agrees to pay, as Additional Rent, Tenant's Pro Rata Share of the CAM Expenses. During the period
from the Commencement Date to the end of the first calendar year of the Term, Tenant's monthly payment
toward this obligation (individually a"CAM Payment" and cumulatively the "CAM Payments") shall be in
the amount set forth in Section 1 and is payable in advance upon the first day of each calendar month.
Thereafter,Tenant shall pay monthly, during the Term, as Additional Rent, one-twelfth(1/12th)of Landlord's
estimate of Tenant's CAM Payment for the then-current calendar year. Landlord shall give Tenant written
notice of such estimated amounts,and Tenant shall pay such amounts monthly to Landlord at the same time as
monthly Base Rent. Following the end of each calendar year, Landlord will submit to Tenant a statement
showing CAM Expenses for the preceding calendar year along with a reconciliation of Tenant's estimated
payments as compared to Tenant's actual CAM Payment for such calendar year("CAM Statement"). Within
thirty(30) days after receipt of a CAM Statement, Tenant shall pay Landlord any additional amounts owed as
shown on the CAM Statement. If Tenant's CAM Payments paid to Landlord during the previous calendar year
exceeds Tenant's Pro Rata Share of the actual CAM Expense, then Landlord shall credit the difference to
Tenant against the next due CAM Payments or refund such amount to Tenant if the Lease Term has expired.
Any CAM Payments shall be prorated for any partial calendar year. Tenant's obligation to pay any amounts
due under this Section shall survive the Expiration Date or earlier termination of this Lease. Landlord shall
retain the right for up to two (2) years after delivery of a CAM Statement to make revisions to such CAM
Statement to reflect corrections to the data contained therein. Any additional amounts shown as being owed
by the Tenant on such corrected CAM Statement shall be paid within thirty (30) days after receipt thereof.
Tenant shall also pay, before delinquency, any taxes levied or assessed upon all of Tenant's leasehold
improvements,equipment,furniture,fixtures and other personal property within the Premises.
Landlord shall keep separate books of account and records covering all CAM Expenses for at least one (1)
year after the close of each Lease Year. Tenant and its duly authorized representatives shall have the right to
audit and inspect Landlord's books and records relating to CAM Expenses only to the extent expressly
provided herein. Any such audit(a) shall be conducted at Tenant's sole cost and expense, except as provided
otherwise below; (b) shall be conducted only within ninety(90)days after the date Landlord has delivered the
CAM Statement to Tenant for any applicable Lease Year; (c) shall concern only one (1) Lease Year; (d) shall
be conducted where such records are customarily maintained during regular business hours and upon five (5)
business days advance written notice to Landlord; and(e) shall be performed by a certified public accountant
applying generally accepted accounting principles and who shall not be employed, engaged, or compensated
on a contingency fee basis. If Tenant's audit of such records shall disclose that Tenant's aggregate annual
payments on account of CAM Expenses was greater than Tenant's actual Pro Rata Share thereof, Landlord
shall, within twenty(20)days after written notice thereof, refund any excess paid by Tenant. If Tenant's audit
shall disclose that Tenant's aggregate annual payment was greater than Tenant's actual Pro Rata Share by more
than five percent (5%), Landlord shall also pay to Tenant, within five (5) days after written demand from
Tenant,the reasonable costs of the audit.
5. TENANT'S INITIAL ALTERATION.
Tenant hereby agrees to accept the Premises "AS IS". All costs of the Initial Alterations (including
architectural, engineering and supervision fees) shall be paid by Tenant. Landlord agrees to reimburse Tenant
the Tenant Improvement Allowance as defined in Section 1 of this Lease. Said Tenant Improvement
Allowance shall be due and payable to Tenant pursuant to the terms and conditions outlined in Exhibit C.
6. PREMISES-TENANT MATTERS.
A. Condition. No representations, except as contained herein, have been made to Tenant respecting the
condition of the Premises or the Property. Tenant hereby acknowledges and agrees that Tenant has
inspected the Premises and the Property and accepts such Premises and the Property in their "AS IS,
WHERE IS" conditions,with all faults and defects. In addition, Tenant acknowledges and agrees that the
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Property and the Premises are suitable for the purposes for which they are being leased. Tenant hereby waives
any and all losses, costs, claims or liabilities which Tenant may incur which are in any way related to any
change in the condition of the Premises or the Property. The taking of possession of the Premises by Tenant
shall constitute Tenant's acknowledgment that the Premises or the Property are in satisfactory condition.
B. Alterations. Tenant shall not make any alterations, additions or improvements (collectively,
"Alterations") to the Premises without Landlord's prior written consent, which consent shall not be
unreasonably withheld. If Landlord consents to any Alterations, including the Initial Alterations, to the
Premises, such Alterations shall be performed at Tenant's expense by a contractor licensed and insured in the
State of Texas and approved by Landlord, and subject to any covenants and conditions required by Landlord,
including, without limitation, any construction rules and regulations promulgated by Landlord for the
Shopping Center. Tenant shall give Landlord thirty (30) days' prior notice before commencing any
Alterations. Tenant shall be responsible for any alterations, additions or improvements required by law to be
made by Landlord to or in the Shopping Center as a result of Tenant's proposed Alterations. Upon the
Expiration Date or sooner termination of the Term, any Alterations to the Premises, including the Initial
Alterations, except movable furniture and trade fixtures, shall become Landlord's property and shall be
surrendered with the Premises, unless Landlord directs Tenant to remove its Alterations, whereupon Tenant
shall remove same at its expense and restore the Premises to the condition existing prior to such Alterations,
normal wear and tear excepted. Tenant shall keep the Premises and the Property free from liens arising out of
any work performed on Tenant's behalf and shall not affect any interest of Landlord in the Premises or the
Property. Prior to the commencement of any Alterations to the Premises, including the Initial Alterations,
Tenant shall deliver to Landlord written acknowledgments from all materialmen, contractors, artisans,
mechanics, laborers and any other persons furnishing any labor, services, materials, supplies or equipment to
Tenant with respect to the Premises that they will look exclusively to Tenant to obtain payment of all sums due
in connection therewith and that Landlord shall have no liability for such costs. All Alterations to the
Premises, including the Initial Alterations, made or requested by Tenant shall be at Tenant's sole cost and
expense subject to any Tenant Allowance provided for in this Lease. NOTICE IS HEREBY GIVEN THAT
INDEMNITEES ARE NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED TO TENANT OR ANYONE HOLDING THE PREMISES, AND THAT NO
MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL
ATTACH TO OR AFFECT LANDLORD'S INTEREST IN THE PREMISES OR THE PROPERTY.
C. Maintenance and Repair. Subject to any specific provisions herein to the contrary, Tenant shall
maintain and repair the Premises and preserve same in the condition delivered to Tenant on the Rent
Commencement Date, normal wear and tear excepted. Tenant's responsibilities therein include the repair and
replacement of all lighting, heating, ventilation and air conditioning ("HVAC"), the storefront and all entry
doors, plumbing and other electrical, mechanical and electromotive installation, equipment and fixtures and
also include all utility repairs in ducts, conduits, pipes and wiring, and any sewer stoppage located in, under
and above the Premises. Tenant shall be responsible for repainting and redecorating the Premises,and making
repairs, replacements and alterations as needed in a good and workmanlike manner in accordance with the
terms herein. In addition, Tenant shall label its computer and telecommunications cabling upon installation of
the same and, at Landlord's option shall remove such cabling upon the expiration of the Term or earlier
termination of the Lease. Landlord shall repair or replace, at Tenant's expense, any damage to the Property
caused by Tenant or Tenant's agents, employees, contractors, invitees or visitors. Upon the expiration of the
Term or earlier termination of this Lease, Tenant shall peaceably surrender to Landlord the Premises, broom
clean, in the same condition as existed on the Rent Commencement Date, excepting only ordinary wear and
tear.
All maintenance and repairs shall be done with materials and equipment of good quality and shall be in
accordance with the then existing federal, state and local regulations regarding accessibility,health and safety.
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All such repairs and replacements shall constitute a part of the fee estate remainder subject to this Lease, and
Tenant's rights,title and interest therein shall be limited to its right of possession and use during the Term.
Tenant shall be solely responsible, at Tenant's expense, to maintain and repair the HVAC unit serving the
Premises at all times during the Term. Further, Tenant shall obtain an HVAC maintenance agreement, at
Tenant's expense, with a maintenance contractor acceptable to Landlord, which maintenance agreement shall
be kept and maintained in effect at all times during the Term of this Lease, and Tenant shall provide Landlord
with evidence of such maintenance agreement, upon Landlord's request. Such agreement shall provide that it
will not be cancelled or modified without at least thirty (30) days prior written notice to the Landlord. If
Tenant shall neglect and/or fail to observe, keep or perform any of its obligations to maintain and repair the
Premises in the time and manner provided in this Article and if such neglect and/or failure shall continue for
ten(10)days after notice thereof, Landlord shall have the right to perform said maintenance and repairs. In the
event Landlord does so perform Tenant's responsibilities for said maintenance and repairs, Landlord shall
furnish Tenant a statement of the actual cost thereof which statement shall be immediately payable by Tenant,
as Additional Rent.
D. Utilities. Tenant shall not install, without Landlord's prior written consent, any equipment in the
Premises (i) requiring an electrical current other than 120 volt, single phase, (ii) requiring special circuits or
grounding or (iii) singularly consuming more than 1.5 kilowatts at rated capacity per Rentable Square Foot.
All installation and maintenance costs of special electrical facilities shall be paid by Tenant, as Additional
Rent, upon demand. Tenant shall separately arrange with, and pay directly to, a telephone service provider for
the furnishing, installation and maintenance of all telephone services and equipment required by Tenant in the
Premises.
Tenant is responsible, at its own expense, for the repair, replacement or relocation of all lines, conduits and
pipes under the foundation of the Premises, and for any repairs and replacements caused by damage, stoppage
or conditions which are the fault of Tenant, or Tenant's employees, agents, contractors, customers,
concessionaires, invitees or licensees. Tenant is responsible for and shall pay, throughout the Term and until
the rendering of the final bill, all meter installation charges and other charges for public or private utility
and/or sanitary sewer services, including, without limitation, garbage pickup, gas, electricity, water, telephone
and other utilities used or consumed in or about the Premises. Tenant shall be solely responsible for and shall
pay to Landlord, as Additional Rent, within ten (10) days after receipt of Landlord's statement therefor, all
costs and expenses incurred by Landlord, including, without limitation, fines, fees, charges and repair,
replacement or installation costs, which result from the acts of Tenant or Tenant's business operations and are
incurred by Landlord because of federal, state, county or municipal legislation, rules or regulations relating to
environmental control; provided, however, that in the event Tenant is ordered directly by any governmental
authority to comply with any such federal, state, county or municipal legislation, rules or regulations, Tenant
shall proceed promptly and expeditiously to fully comply with such order and Tenant shall be solely
responsible for, and shall bear all costs and expenses incurred in connection with, Tenant's compliance.
Landlord is not liable for interruptions or failure in the supply of any such utilities,relocation of any line, lead
or service, the relocation of which is required by Tenant's relocation of outlets in the interior of the Premises;
maintenance of any lines,pipe or conduit in the interior of the Premises and connected to any such lead,line or
service; or interruption of Tenant's business or damage to Tenant's property due to the stoppage or break in or
the repair,replacement or relocation of any such lead,line or service.
If water and sewer service is not separately metered to the Premises,Tenant shall pay to Landlord, monthly,as
billed, Landlord's good faith estimate of Tenant's share of the cost of water and sewer service furnished on
such common water line, including the cost of third-party meter reading and billing services. Landlord
reserves the right to require Tenant to install, at Tenant's expense, a water sub-meter if Tenant objects to such
billings or if Landlord determines that Tenant uses more than its proportionate share of water compared with
other tenants billed on such common water line.
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E. Signs. Tenant shall have the right, at Tenant's sole cost and expense, to install two (2) signs, (1) one
on the outside of each store front of the building in which the Premises are located(the North and West sides).
The size,design,and exact location of all signs installed by Tenant shall be mutually agreed upon by Landlord
and Tenant and shall be in accordance with the Sign Criteria attached hereto as Exhibit H. Tenant shall not,
without Landlord's prior written consent, install any exterior or interior window or door sign,or any other type
of sign or placard visible from outside the Premises, wherever located. All signs and placards must comply
with the sign criteria promulgated by Landlord for the Property and all applicable governmental laws and
ordinances. Tenant shall pay all costs of fabrication, installation, and maintenance of all permitted signs and
placards. Prior to vacating the Premises, Tenant shall, at its sole cost and expense, remove its sign(s) and
placards and restore the surface beneath such signs or placards to the condition existing prior to installation of
same.
F. Use of Premises.The Premises shall be used and occupied by Tenant solely for the Permitted Use.
7. PREMISES- LANDLORD MATTERS.
A. Utilities. Landlord agrees to cause to be provided and maintained the necessary mains, conduits and
other facilities necessary to supply water, gas, electricity, telephone service and sewerage service to the
Shopping Center.
B. Operation of the Property. Landlord shall operate and maintain the Property in accordance with the
standards generally prevailing in the operation and maintenance of similar retail shopping centers situated in
the general vicinity of the Shopping Center and in accordance with all applicable laws and regulations.
Landlord is responsible for all capital expenditures for the foundations, structure and roof of the Shopping
Center, as determined by Landlord. Landlord shall not be liable to Tenant, its employees, agents, invitees or
licensees for damages or in any other way for losses due to any criminal act or for damage caused by
unauthorized persons in the Premises or on the Property. Tenant shall reimburse Landlord for the cost of any
repairs or maintenance performed by Landlord if caused by the negligence or criminal or willful misconduct of
Tenant or its agents,employees,contractors,invitees,licensees,or visitors.
C. Alterations,Repairs and Changes. Landlord may do any of the following:
(1) Make repairs, replacements, changes or additions to the structure, systems, facilities and equipment in
the Premises where necessary to service the Premises or other parts of the Property;
(2) Make changes in or additions to any part of the Property not in or forming part of the Premises;
(3) Change or alter the location of any areas of the Property which may be designated by Landlord for use
during normal business hours by Tenant in common with other tenants and persons in the Shopping
Center but under Landlord's exclusive control;
(4) Grant easement(s)on, over,under and above the Premises or Property;
(5) Change the Rentable Square Footage of the Premises in order to comply with applicable laws so long
as Tenant's use of the Premises is not materially,adversely affected;
(6) Change the name or numbers of the Shopping Center;and
(7) Enlarge the Property by constructing improvements on the Land and by including within the Land
other adjacent properties owned by Landlord or its affiliates, in which event, all such additions and
improvements shall be treated as though they are part of the Property and, at Landlord's option, all
CAM expenses, real property taxes and other pro rata payments required of Tenant hereunder shall
apply to such additions and improvements.
D. Entry. Landlord may enter the Premises at any time in an emergency without notice, or at all
reasonable times upon prior notice (which notice may be by telephone) for any purpose permitted hereunder,
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including,without limitation, showing the Premises to prospective tenants during the last six(6)months of the
Term and showing the Premises to purchasers or lenders and posting notices at any time during the Term.
Landlord shall use reasonable efforts to minimize interference with Tenant's conduct of business in connection
with Landlord's performance of any work.
8. ASSIGNMENT AND SUBLETTING.
A. Limits. Tenant shall not (i) assign or otherwise transfer this Lease; (ii) permit the Premises or any
part thereof to be used by anyone other than Tenant;or(iii)sublet the Premises or any portion thereof; in each
instance without(1)giving Landlord the notice required herein and otherwise complying with the terms hereof
and (2) obtaining Landlord's prior written consent. In addition, Tenant shall not mortgage or encumber this
Lease without Landlord's prior written consent,which may be withheld in its sole discretion. For the purposes
of this Section, the transfer or issuance of stock ultimately resulting in ownership of a majority of the issued
and outstanding capital stock of any corporate tenant or subtenant, or the transfer of a majority of the total
interest in any partnership tenant or subtenant shall be an assignment of this Lease or such sublease,as the case
may be; provided, however, that the transfer of the outstanding capital stock of any corporate tenant or
subtenant shall not include the sale of such stock by persons or parties through the "over-the-counter market"
or through any recognized stock exchange, other than by a "control person" within the meaning of the
Securities Exchange Act of 1934, as amended. The provisions of this Section shall not apply to transactions
(x) with a corporation into or with which Tenant is merged or consolidated or to which substantially all of
Tenant's assets are transferred,or(y)with any entity controlling, controlled by, or under common control with
Tenant; provided that, in each case,Tenant's successor has a net worth computed in accordance with generally
accepted accounting principles at least equal to the net worth of Tenant herein named on the date of this Lease
and Landlord shall have received satisfactory proof of such net worth at least thirty (30) days prior to the
effective date of such transaction.
B. Landlord's Option. If Tenant desires to assign this Lease or sublet all or part of the Premises,then,at
least thirty(30)days, but not more than one hundred twenty(120)days, prior to the date when Tenant desires
an assignment or subletting to be effective(the "Transfer Date"),Tenant shall give Landlord a written notice
("Tenant's Notice") stating the name, address and business of the proposed assignee or sublessee, detailed
financial statements for the proposed assignee or sublessee(including its most recent audited balance sheet and
income statement),the number of rentable square feet proposed to be sublet, the Transfer Date, the fixed rent
and/or other consideration, written consent from such proposed assignee or sublessee to a credit check and any
other information Landlord may require. Tenant shall reimburse Landlord for Landlord's reasonable out-of-
pocket expenses incurred in connection with Tenant's request for such consent. Tenant's Notice shall be
deemed to be an offer (a) to terminate the Lease in the case of a proposed assignment or a sublease of all or
substantially all of the Premises, or(b) in the case of a proposed sublease of less than all or substantially all of
the Premises,to eliminate from the Premises such portion of the Premises which Tenant proposes to sublease
as of the Transfer Date (the "Eliminated Space"). If Landlord elects to terminate this Lease pursuant to the
provisions of clause (a) of this Subsection (B), Tenant's obligations hereunder shall cease as of the date of
termination, provided that Tenant shall not be relieved of any obligations that have accrued prior to the date of
termination. Upon a surrender of the Eliminated Space, Tenant's obligations with respect to the Eliminated
Space shall cease as of the date of surrender of the Eliminated Space, provided that Tenant shall not be
relieved of any obligations that have occurred prior to the date of surrender. In addition, the Base Rent shall
be reduced as of the Transfer Date by an amount equal to the lesser of(1)the product of(xx) the Base Rent,
and (yy) a fraction, the numerator of which is the number of rentable square feet in the Eliminated Space and
the denominator of which is the number of rentable square feet in the Premises, or (2) the proposed base or
fixed rent which would have been payable pursuant to the proposed sublease. Further, the CAM Payment
shall be proportionately reduced as of the Transfer Date to reflect the deletion of the Eliminated Space from
the Premises. If Landlord elects a surrender of the Eliminated Space, Landlord, at Tenant's expense, may
make such alterations as Landlord deems necessary to physically separate the Eliminated Space from the
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balance of the Premises. Tenant shall pay all costs associated with this elimination and execute all necessary
documentation required in connection with any such termination or surrender.
C. Conditions to Assignment or Subletting. If Landlord does not exercise the option provided pursuant
to Subsection(B)above within thirty(30)days after Landlord's receipt of Tenant's Notice,and Tenant is not in
default hereunder as of the time of Landlord's consent and as of the Transfer Date, Landlord's consent to the
proposed assignment or subletting set forth in Tenant's Notice shall not be unreasonably withheld, provided,
and each assignment or subletting will be subject to the following:
(1) the proposed assignee or sublessee: (i) continues to use the Premises for the Permitted Use in a manner
consistent with the standards for the Property; (ii)does not violate any covenants contained in any other
lease or agreement affecting Landlord or the Property; (iii) is not entitled to diplomatic or sovereign
immunity; (iv) is a reputable entity with sufficient credit worthiness considering the obligations of
Tenant hereunder; (v) assumes all obligations of Tenant under the Lease for the Premises or the
Eliminated Space;and(vi)satisfactory proof of the foregoing is delivered to Landlord;
(2) the assignment or sublease is on the same terms set forth in Tenant's Notice;
(3) Landlord has received a copy of the sublease or assignment and assumption agreement pursuant to
which such assignee or sublessee assumes and agrees to be bound by all of the covenants and conditions
of this Lease;and
(4) no assignee or sublessee has a right to further assign or sublet.
D. Effect of Assignment or Subletting. Tenant shall not be released from its obligations hereunder as a
result of any assignment or subletting, and the Tenant named herein and any assignee or sublessee of such
Tenant who assumes the obligations of the named Tenant under this Lease,from and after an assignment, shall
be jointly and severally liable for performance of all of Tenant's obligations under this Lease. Tenant shall
promptly pay to Landlord as and when received any rent and other sums paid by an assignee or sublessee in
connection with an assignment or sublease which exceeds the Rent provided for in this Lease (allocated on a
per square foot basis).
E. Assignment Processing Fee. In the event that Tenant desires to either assign this Lease or sublet
the Premises as permitted by this Section,then Tenant shall pay to Landlord, on or before the effective date of
any such assignment or sublease, a fee in the amount of One Thousand Five Hundred and 00/100 Dollars
($1,500.00)(the"Assignment Processing Fee")to cover Landlord's costs and expenses in administering such
assignment or sublease.
9. TENANT'S INSURANCE.
A. Required Insurance. Tenant shall maintain throughout the Term,at its expense:
(1) Commercial general liability insurance on an occurrence basis providing coverage for bodily injury
(including death), property damage, personal injury, and products liability (where such exposure
exists) with a combined single limit of at least One Million Dollars ($1,000,000.00) per occurrence
and Two Million Dollars($2,000,000.00)in the aggregate for all occurrences within each policy year.
(2) Property insurance (all risk—special form) including flood covering Tenant's personal property,
fixtures, furniture, merchandise, equipment and all leasehold improvements equal to the replacement
value with Agreed Amount Endorsement or No Coinsurance and containing the waiver of subrogation
required in this Section;and
(3) State worker's compensation insurance in statutorily mandated limits and employer's liability
insurance with limits of at least $1,000,000 each accident, $1,000,000 each person for disease and
$1,000,000 aggregate for disease.
B. Requirements for Tenant's Insurance.
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(1) The policies(with the exception of worker's compensation insurance to the extent not available under
statutory law and business interruption insurance) shall name Landlord and any party designated by
Landlord as an additional insured as their respective interests may appear. With respect to property
damage coverage, such policies shall provide that any loss shall be payable to Landlord and any
additional insured as their respective interests may appear;
(2)Tenant shall deliver original certificates of all such policies prior to the Rent Commencement Date
and each anniversary date thereafter, which shall provide that no cancellation or non-renewal of such
policies shall be effective without thirty (30) days prior written notice from the insurer to Landlord;
and
(3) Landlord and Tenant shall each, in their respective insurance policies, obtain a waiver of subrogation
or consent to a waiver of right of recovery against the other party, and each hereby agrees that it will
not make any claim against or seek to recover from the other party for any loss or damage covered by
such fire and extended coverage insurance. Landlord shall not be required to carry insurance on any
leasehold improvements within the Premises, alterations or Tenant's fixtures, furnishings, equipment
or other property or business interruption insurance. Tenant shall not do any act or thing in the
Premises or at the Property or store anything therein which will adversely affect any insurance policies
covering the Property and Tenant shall promptly reimburse Landlord for all increases in Landlord's
fire insurance premiums attributable to such acts or omissions.
10. EMINENT DOMAIN.
A. Total Taking. If all of the Premises are taken by a public authority pursuant to the exercise of the
power of eminent domain, this Lease shall terminate on the date on which the condemning authority takes
possession of the Premises("Date of Taking").
B. Substantial Taking. If more than one-third (1/3) of the rentable square feet in the Premises is taken,
either Landlord or Tenant may terminate this Lease by written notice to the other within thirty(30) days after
the Date of Taking and this Lease shall terminate on the last day of the month immediately following the
month in which notice is given.
C. Taking Requiring Substantial Alterations. If part of the Property is taken such that, in Landlord's
opinion, substantial alteration of the Property is necessary, whether or not the Premises are affected, Landlord
may terminate this Lease by thirty(30)days prior written notice to Tenant.
D. Effect of Taking Without Termination. Upon a partial taking which does not result in a termination
of this Lease: (i) Base Rent and Additional Rent shall be adjusted to reflect the reduced number of rentable
square feet in the Premises; and (ii) Landlord shall restore the Premises, but only to the extent of funds
available to Landlord from the consideration paid for such taking. Landlord shall not be obligated to replace
or restore any Alterations, or any of Tenant's leasehold improvements, personal property, furniture, fixtures or
equipment.
E. Awards. Upon any taking,Landlord shall be entitled to any resulting damages,awards or any interest
therein, and Tenant shall have no claim for the value of any unexpired term of the Lease or otherwise. Tenant
may independently claim for the value of its furniture, fixtures and equipment or moving expenses, provided
that such claim shall not diminish Landlord's claim.
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11. CASUALTY.
A. Notice. Tenant shall give Landlord immediate written notice of any damage to the Premises by fire or
other casualty.
B. Landlord's Right to Terminate. Landlord may, within one hundred eighty (180) days after fire or
other casualty to the Shopping Center, give Tenant notice of termination of this Lease, and the Term shall
expire ten(10)days after such notice is given effective as of the date of the casualty if:
(1) the Premises are significantly damaged or rendered wholly untenantable by fire or other casualty;
(2) Landlord's architect certifies that the damage to the Shopping Center or Property cannot be repaired
within ninety(90)days after the date of notice;
(3) more than 25% of the insurance proceeds are retained by the lessor under any underlying lease or the
holder of any Mortgage; or
(4) the Shopping Center is damaged to an extent which precludes Landlord from providing Landlord's
Services for more than ninety(90)days.
C. Repairs. If the Lease is not terminated, Landlord shall repair the Premises, but only to the extent of
the insurance proceeds actually paid to Landlord. Landlord's obligations to restore are strictly limited to the
replacement of the basic building area and Landlord shall not be obligated to restore any leasehold
improvements, Alterations, personal property, furniture, fixtures or equipment. If Landlord does not
substantially complete restoration of the Premises within one (1) year after the date of such fire or other
casualty, Tenant may terminate this Lease by delivering a notice of termination to Landlord within ten (10)
days after the expiration of such one(1)year period,time being of the essence. If Tenant has timely delivered
such notice,this Lease shall automatically terminate as of the thirtieth(30th)day after the giving of the notice,
unless the restoration of the Premises has been substantially completed within such thirty(30)day period.
D. Abatement of Rent. Rent shall abate for the portion of the Premises which is untenantable until
repairs are substantially completed. If the Premises are wholly untenantable, all Rent shall abate until the
Premises (excluding leasehold improvements, Alterations, personal property, furniture, fixtures and
equipment)are repaired.
E. End of Term. The foregoing notwithstanding, if any fire or other casualty occurs within the last
twelve (12) months of the Term, Landlord may give notice to Tenant within thirty (30) days after the date of
such fire or other casualty of termination of this Lease and the Lease term shall expire effective with the date
of fire or other casualty.
12. INDEMNIFICATION AND WAIVER
A. TENANT INDEMNIFICATION OF LANDLORD. TO THE EXTENT ALLOWED BY LAW,
TENANT SHALL DEFEND, INDEMNIFY AND HOLD LANDLORD AND ITS PARTNERS, THEIR
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS (COLLECTIVELY, THE
"INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL DEMANDS, CAUSES OF
ACTION, JUDGMENTS, COSTS, EXPENSES, LOSSES, DAMAGES, CLAIMS, OR LIABILITY FOR
ANY DAMAGE TO ANY PROPERTY OR INJURY, ILLNESS OR DEATH OF ANY PERSON (A)
OCCURRING IN THE PREMISES AT ANY TIME FROM ANY CAUSE WHATSOEVER CAUSED IN
WHOLE OR IN PART BY ANY ACT OR OMISSION OR WILLFUL OR CRIMINAL MISCONDUCT OF
TENANT OR ANY EMPLOYEE, CONTRACTOR, LICENSEE, INVITEE, VISITOR, OR AGENT OF
TENANT; (B) OCCURRING IN OR ON THE PROPERTY OTHER THAN THE PREMISES, WHEN
SUCH DAMAGE, INJURY, ILLNESS OR DEATH SHALL BE CAUSED IN WHOLE OR IN PART BY
ANY ACT OR OMISSION OR WILLFUL OR CRIMINAL MISCONDUCT OF TENANT OR ANY
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EMPLOYEE, CONTRACTOR, LICENSEE, INVITEE, VISITOR, OR AGENT OF TENANT; (C)ARISING
OUT OF OR IN ANY WAY RELATED TO CLAIMS FOR LABOR PERFORMED OR MATERIALS
FURNISHED TO TENANT OR THE PERFORMANCE OF ANY WORK DONE BY OR FOR THE
ACCOUNT OF TENANT, WHETHER OR NOT TENANT OBTAINED LANDLORD'S PERMISSION TO
HAVE SUCH WORK DONE, LABOR PERFORMED OR MATERIALS FURNISHED; OR (D) ARISING
OUT OF OR IN ANY WAY RELATED TO ANY BREACH OF A COVENANT OR CONDITION IN THIS
LEASE TO BE PERFORMED BY TENANT. THE PROVISIONS OF THIS SUBSECTION SHALL
SURVIVE THE EXPIRATION DATE OR SOONER TERMINATION OF THIS LEASE.
B. WAIVER OF CLAIMS. TO THE EXTENT ALLOWED BY LAW,THE INDEMNITEES SHALL
NOT BE LIABLE FOR ANY CLAIMS WITH RESPECT TO (A) ANY DEATH OR INJURY SUFFERED
BY TENANT OR ANY EMPLOYEE, CONTRACTOR, LICENSEE, INVITEE, VISITOR, AGENT OR
CUSTOMER OF TENANT (EACH, A "TENANT PARTY") OR ANY OTHER PERSON, FROM ANY
CAUSES WHATSOEVER (B) ANY LOSS OR DAMAGE OR INJURY TO ANY PROPERTY OUTSIDE
OR WITHIN THE PREMISES BELONGING TO TENANT, ANY TENANT PARTY OR ANY OTHER
PERSON. IN ADDITION, INDEMNITEES SHALL NOT BE LIABLE FOR INTERFERENCE WITH
ANY UTILITY, SERVICE, VENTILATION OR ANY LATENT DEFECT IN THE PREMISES, OR ANY
LOSS OR DAMAGE FOR WHICH TENANT IS REQUIRED TO INSURE OR RESULTING FROM ANY
CONSTRUCTION, ALTERATIONS OR REPAIR REQUIRED OR PERMITTED TO BE PERFORMED
BY TENANT HEREUNDER.
C. TENANT SPECIFICALLY ACKNOWLEDGES THAT LANDLORD AND/OR
INDEMNITEES HAVE NO DUTY TO PROVIDE SECURITY FOR ANY PORTION OF THE
SHOPPING CENTER, INCLUDING, WITHOUT LIMITATION THE PREMISES AND THE
COMMON AREA, AND TENANT HEREBY AGREES TO ASSUME SOLE RESPONSIBILITY AND
LIABILITY FOR THE SECURITY OF ITSELF AND ITS EMPLOYEES, AGENTS,
CONTRACTORS, CUSTOMERS, CONCESSIONAIRES, SUBTENANTS, INVITEES AND
LICENSEES AND THEIR RESPECTIVE PROPERTY, IN, ON OR ABOUT THE SHOPPING
CENTER, INCLUDING WITHOUT LIMITATION THE PREMISES AND THE COMMON AREA.
NOTWITHSTANDING ANY TERM OR PROVISION TO THE CONTRARY HEREIN, TENANT
EXPRESSLY ACKNOWLEDGES AND AGREES THAT TO THE EXTENT LANDLORD AND/OR
INDEMNITEES ELECT TO PROVIDE ANY SECURITY, LANDLORD AND/OR INDEMNITEES
ARE NOT WARRANTING THE EFFICACY OF ANY SUCH SECURITY PERSONNEL,SERVICES,
PROCEDURES OR EQUIPMENT AND THAT TENANT IS NOT RELYING AND SHALL NOT
HEREAFTER RELY ON ANY SUCH PERSONNEL,SERVICES,PROCEDURES OR EQUIPMENT.
LANDLORD AND/OR INDEMNITEES SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY
MANNER FOR FAILURE OF ANY SUCH SECURITY PERSONNEL, SERVICES, PROCEDURES
OR EQUIPMENT TO PREVENT OR CONTROL, OR APPREHEND ANY ONE SUSPECTED OF,
PERSONAL INJURY OR PROPERTY DAMAGE IN,ON OR AROUND THE SHOPPING CENTER.
13. COMPLIANCE WITH LAWS AND RULES.
A. Property Rules. Tenant shall comply with the rules and regulations for the Property established by
Landlord (the "Rules and Regulations"), a copy of which are attached as Exhibit D. The Rules and
Regulations may be amended by Landlord in any reasonable manner, from time to time and at any time, by
notice to Tenant. Tenant's failure to comply with the revised Rules and Regulations within two (2) business
days after notice from Landlord shall constitute an Event of Default.
B. Applicable Laws. Tenant, at its expense, shall comply with all laws, orders and regulations and with
any related directive with respect to the Premises or the Property or the use or occupancy thereof("Applicable
Laws"), including, without limitation, Fire/Life Safety laws, Environmental Law (as defined herein) and any
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easement agreements, deed restrictions, restrictive covenants and similar encumbrances now or hereafter
affecting the Premises and/or the Property. Tenant shall directly pay any fines or penalties resulting from
Tenants noncompliance with Applicable Laws.
C. ADA/Architectural Barriers. Landlord shall maintain the Common Areas in compliance with Title
III of the Americans with Disabilities Act of 1990, the Texas Architectural Barriers Act and all regulations
promulgated thereunder(the"Acts"). If alterations to the Common Areas are required in order to comply with
the Acts as a result of Tenant's changes or Alterations within the Premises or Tenant's use of the Premises,the
cost thereof shall be paid by Tenant within twenty(20)days after demand by Landlord. Tenant shall maintain
the Premises in compliance with the Acts at its cost and expense.
D. Environmental Law. "Environmental Law" shall mean any governmental law or statute, rule,
regulation, ordinance,code, policy or rule of common law now or hereafter in effect relating in any way to the
environment, health, safety or any substances, materials or wastes regulated by any governmental authority
including medical wastes ("Hazardous Materials"). The Tenant Parties shall comply with Environmental
Law in its use of the Premises and Property. The Tenant Parties shall not use or store any Hazardous Materials
in the Premises except for small quantities of chemicals typical to household or office use which are stored in
accordance with Environmental Laws. Tenant shall provide Landlord with copies of all communications
regarding the Premises from any governmental agency relating to any Environmental Law or any person with
respect to any claim or violation relating to any Environmental Law(each, an"Environmental Claim"). To
the extent allowed by law,Tenant shall defend, indemnify and hold harmless the Indemnitees from and against
all obligations, losses, claims, suits,judgments, liabilities, penalties, damages, costs and expenses (including
attorneys' and consultants' fees and expenses) of any kind or nature whatsoever that may be incurred by, or
asserted against, the Indemnitees resulting from (a) the actual or alleged presence of Hazardous Materials on
the Premises or in the Property which is caused or permitted by the Tenant Parties (b) any Environmental
Claim relating to the operation or use of the Premises or the Property by a Tenant Party (c)the Tenant Parties'
violation of the Rules and Regulations (d) the Tenant Parties' failure to comply with the Acts and (e) the
Tenant Parties failure to comply with the Applicable Laws. The provisions of this Section shall survive the
Expiration Date or sooner termination of this Lease.
E. Tenant Indemnification of Landlord. To the extent allowed by law,Tenant shall defend, indemnify
and hold harmless the Indemnitees from and against all obligations, losses, claims, suits,judgments, liabilities,
penalties,damages, costs and expenses(including attorneys'and consultants'fees and expenses)of any kind or
nature whatsoever that may be incurred by,or asserted against,the Indemnitees resulting from(a)violation of
any Landlord promulgated rules and regulations by the Tenant Parties,(b)the Tenant Parties failure to comply
with the Acts or (c) The Tenant Parties failure to comply with the Applicable Laws. The provisions of this
Section shall survive the Expiration Date or sooner termination of this Lease.
14. QUIET ENJOYMENT AND SUBORDINATION.
A. Quiet Enjoyment. Landlord covenants and agrees that, upon Tenant's performance of all the terms,
covenants and conditions hereof on Tenant's part to be performed,Tenant shall enjoy the Premises,subject and
subordinate to the terms,covenants and conditions of this Lease.
B. Subordination. This Lease is subject and subordinate to:
(1) any easement agreements,restrictive covenants,deed restrictions and similar encumbrances;
(2) all ground and underlying leases;
(3) any mortgage, deed of trust or deed to secure debt now existing or that may be granted in the future
(each,a"Mortgage");and
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(4) any renewals, modifications, extensions, replacements, and substitutions of any of the foregoing, now
or hereafter affecting the Premises and/or the Property.
This provision shall be self-operative and no further instrument of subordination shall be required, but Tenant
shall execute and deliver an instrument,at Landlord's option and upon Landlord's request,either in the form of
Exhibit F or on the form(s)required by any mortgagee within 10 days of Tenant's receipt of such form. Upon
refinancing, Tenant shall execute reasonable subordination agreements with any new lender in a form
substantially equivalent to Exhibit F,with such changes as may be reasonably required by a new lender.
15. EVENTS OF DEFAULT. In addition to any other event specified in this Lease as an event of
default, the occurrence of any one or more of the following events during the Term (each, an "Event of
Default") shall constitute a breach of this Lease by Tenant and Landlord may exercise the rights set forth
hereinafter or as otherwise provided at law or in equity:
A. Landlord shall not have actually received any sum payable hereunder when due, and such amount
shall remain unpaid for a period of five (5) days after written notice from Landlord to Tenant; provided
however, that Landlord shall not be required to provide written notice more than two (2) times in any
consecutive twelve(12)month period;or
B. A Tenant Party fails to perform or violates any of the other covenants, terms or conditions of this
Lease to be performed by Tenant(other than any monetary default), and, unless expressly provided elsewhere
in this Lease that Tenant shall have no or lesser notice and/or opportunity to cure such default, such default
shall continue for twenty(20) days after written notice thereof from Landlord to Tenant; provided however, if
such default cannot reasonably be cured within such twenty (20) day period, Tenant shall be allowed
additional time to cure such default so long as: (i)Tenant commences to cure the default within the twenty
(20)day period,and(ii)Tenant diligently and continuously pursues a course of action that will cure the failure
and bring Tenant back into compliance with this Lease; or
D. Any portion of the Premises shall be effectively vacated or abandoned by Tenant or Tenant fails to
continuously operate from the Premises;or
E. A mechanic's or any other lien is filed against the Premises or the Property arising out of any work
performed by or on behalf of Tenant and Tenant fails to discharge such lien within thirty (30) days after the
filing thereof.
16. LANDLORD'S REMEDIES.
A. Alternative Remedies. Upon the occurrence of an Event of Default, Landlord may pursue any one or
more of the following remedies without notice or demand whatsoever, in addition to, or in lieu of, any
remedies available to Landlord under the laws of the state of Texas:
(1) Landlord may give Tenant written notice of its election to terminate but not forfeit this Lease,
whereupon Tenant's right to possession of the Premises shall cease on the day specified therein,and this Lease,
except as to Tenant's liability determined hereinafter, shall be terminated;
(2) Landlord and its agents may immediately re-enter and take possession of the Premises, or any part
thereof, either by summary proceedings, or by any other applicable action or proceeding, or by force or
otherwise and may repossess same and expel Tenant and remove its effects without being deemed guilty in
any manner of trespass, and without prejudice to any remedies for arrears of rent or Tenant's breach of
covenants or conditions;
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(3) If Landlord elects to re-enter as provided herein, or if Landlord takes possession pursuant to legal
proceedings or otherwise, Landlord may,without terminating this Lease, relet the Premises or any part thereof
in Landlord's or Tenant's name and at Tenant's sole cost, but for Tenant's account, for such terms and on such
conditions as Landlord, in its sole discretion, may determine, and, whether or not Landlord elects to terminate
this Lease, Landlord may collect and receive the rents thereof without affecting Tenant's liability hereunder.
Landlord shall have no obligation to relet the Premises and shall not be liable for failure to relet the Premises
or, upon any such reletting, for failure to collect any rent due upon such reletting, and no such failure shall
affect Tenant's liability under this Lease. If the Premises,or any part thereof, shall be relet together with other
space in the Property, the rents collected or reserved under any such reletting and the expenses of any such
reletting shall be equitably apportioned.Tenant shall not be entitled to any rents collected or payable under any
reletting, whether or not such rents shall exceed the Rent reserved in this Lease. Landlord's re-entry or
repossession of the Premises shall not be construed as a termination of the Lease unless a written notice of
such intention is given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer
statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice
specifically states. Landlord reserves the right following any such re-entry and/or reletting to terminate this
Lease by giving Tenant written notice thereof;and
(4) Landlord may enter upon the Premises by use of a master key or other peaceable means, and change,
alter,and/or modify the door locks on all entry doors of the Premises,thereby excluding Tenant,and its agents,
employees, representatives and invitees therefrom without being liable for prosecution or any claim of
constructive eviction or for damages of any kind, and such re-entry shall not release Tenant, in whole or in
part, from Tenant's obligations under this Lease. In the event that Landlord has either terminated Tenant's
right of possession or terminated this Lease by reason of Tenant's default, Landlord shall not thereafter be
obligated to provide Tenant with a key to the Premises at any time, regardless of any amounts subsequently
paid by Tenant; provided, however, at Landlord's option during Landlord's normal business hours and at the
convenience of Landlord, and upon receipt of written request from Tenant accompanied by such written
waivers and releases for damage to Tenant's property and business as Landlord may require, Landlord may
either (i) escort Tenant to the Premises to retrieve any personal effects or other property of Tenant, or its
employees not subject to the Landlord's Liens described hereinafter, or (ii) obtain a list from Tenant of its
personal effects which are not covered by said Landlord's Lien, whereupon Landlord shall remove such
property and make the same available to Tenant at a time and place designated by Landlord. However, no
such property shall be removed from the Premises until such time as Tenant furnishes to Landlord
documentary evidence satisfactory to Landlord that such property is not subject to said Landlord's Lien. Also,
Tenant shall pay to Landlord upon demand all moving, remodeling, brokerage, and/or storage charges
theretofore incurred by Landlord with respect to such property. If Landlord elects to exclude Tenant from the
Premises without permanently repossessing the Premises or terminating this Lease,then Landlord shall not be
obligated to provide Tenant a key to reenter the Premises until such time as all delinquent Base Rent and
Additional Rent due under this Lease have been paid in full and all other defaults, if any, have been
completely cured to Landlord's satisfaction and Landlord has been given assurance reasonably satisfactory to
Landlord evidencing Tenant's ability to satisfy its remaining obligations under this Lease.
B. Re-entry. Tenant waives the service of any notice of intention by Landlord to re-enter or to institute
legal proceedings to that end which may otherwise be required under law. Tenant, on its own behalf and on
behalf of all persons claiming through Tenant, including all creditors, further waives any rights which Tenant
and all such persons might otherwise have under any law to redeem the Premises, or to re-enter or repossess
the Premises, or to restore the operation of this Lease, after (i) Tenant shall have been dispossessed by a
judgment or by warrant of any court or judge, or (ii) any re-entry by Landlord, or (iii) any expiration or
termination of this Lease and the Term, whether such dispossess, re-entry, expiration or termination shall be
by operation of law or pursuant to the provisions of this Lease. The words "re-enter", "re-entry" and "re-
entered" as used herein shall not be restricted to their technical legal meanings. Upon a breach or threatened
breach by Tenant, or any persons claiming through Tenant,of any term, covenant or condition of this Lease to
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be performed by Tenant, Landlord may enjoin such breach and invoke any other remedy allowed by law or in
equity as if re-entry, summary proceedings and other special remedies were not provided in this Lease for such
breach.
C. Rent. Even though an Event of Default has occurred,this Lease shall continue in effect and Landlord
may terminate Tenant's right to possession, and enforce its rights and remedies hereunder, including, without
limitation(i)recovering Base Rent and any Additional Rent as it becomes due hereunder, (ii)engaging in acts
of maintenance or preservation or efforts to relet the Premises or(iii) appointing a receiver upon the initiative
of Landlord to protect Landlord's interest under this Lease. If Tenant fails to perform any act or make any
payment required of Tenant hereunder (other than monthly Base Rent), Landlord may, without waiving
Tenant's performance of its obligations hereunder, make such payment or perform such act on Tenant's behalf.
All costs incurred by Landlord in taking such action shall be deemed Additional Rent and shall be paid to
Landlord on demand. Tenant shall reimburse Landlord for all expenses incurred by Landlord (including
attorneys'fees and disbursements), by reason of any failure to perform or violation by any Tenant Party of any
covenant or provision of this Lease. In addition, all amounts payable hereunder which remain unpaid for five
(5)days after their respective due dates shall bear interest from the date that the same became due and payable
through and including the date of payment, whether or not demand is made therefor, at the lesser of (i)
eighteen percent (18%) per annum or (ii) the maximum legal interest rate allowed by the state in which the
Property is located.
17. LANDLORD'S LIEN AND SECURITY INTEREST. To secure the payment of all rent that may
become due to Landlord under the terms of this Lease, Tenant grants to Landlord an express,valid, preference
security interest upon all the goods, wares, merchandise, furniture, fixtures, machinery, equipment and all
other personal property of Tenant in the Premises or that may be placed or kept therein during the Term, and
this express security interest shall not be construed as a waiver of the statutory Landlord's lien, but is
cumulative thereof and in addition thereto. This Lease is a security agreement under the Uniform Commercial
Code of the State of Texas which shall secure the security interest of Landlord herein retained which shall at
all times be a valid lien for all Rent and other sums of money becoming due hereunder from Tenant, upon all
goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated on the Premises
and the proceeds therefrom. Tenant's personal property will not be subject to any lien for the benefit of a third
party and such property shall not be removed from the Premises without the consent of Landlord until all
arrearages in Rent,as well as any and all other sums of money then due to Landlord hereunder, shall first have
been paid and discharged. Tenant shall execute and deliver to Landlord any instrument(including a UCC-1 or
other form of financing statement) necessary or desirable to carry out the terms of this paragraph. Tenant
authorizes Landlord to file on behalf of Tenant with or without signature any financing statement(s) necessary
or desirable to evidence the security interest under this Lease. Upon the occurrence of an Event of Default by
Tenant as defined in this Lease, Landlord shall have the option, in addition to any other remedies provided
herein or by law, (i)to enter upon the Premises without the permission of Tenant and take possession of any
and all goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated on the
Premises without demand or legal process and without liability for trespass or conversion, (ii) to sell or
otherwise dispose of the same with or without taking possession at private or public sale in accordance with
law,with or without having such property at the sale, and(iii)to apply the proceeds therefrom, less any and all
expenses in connection with the taking of possession and sale of the property, as a credit against any sums due
by Tenant to Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to promptly pay any
deficiency. Landlord may also enforce the lien hereby granted in any other manner provided by law and may
exercise all rights and remedies granted by law.
18. HOLDING OVER. If Tenant remains in possession of the Premises after the expiration or other
termination of the Term,then, at Landlord's option, Tenant shall be deemed to be occupying the Premises as a
month-to-month tenant only, at a monthly rental equal to two (2) times the Base Rent payable hereunder
during the last month of the Term. Tenant shall also pay all Additional Rent payable under this Lease,
18
prorated for each month during which Tenant remains in possession. Tenant shall defend, indemnify and hold
Landlord harmless from and against all claims, losses and liabilities for all costs and damages incurred by
Landlord resulting from failure to surrender possession upon the Expiration Date or sooner termination of the
Term, and such obligations shall survive the expiration or sooner termination of this Lease.
19. NOTICES. All notices given hereunder (each, a "Notice") shall be in writing and delivered to
Landlord's Notice Address or Tenant's Notice Address, as applicable, by one or more of the following
methods, (i) given by certified or registered mail, postage prepaid, return receipt requested, and shall be
deemed given on the third (3rd)business day after the date of posting in a United States Post Office,(ii)given
by a nationally recognized overnight courier and shall be deemed given one day after delivery to the overnight
courier, (iii) given by personal delivery and shall be deemed given upon receipt by the notified party, or(iv)
given by confirmed telefax and shall be deemed given on the date of the telefax, so long as the confirmation
reflects a time before 5:00 o'clock p.m. Houston time and on the next business day if the confirmation reflects
transmission after 5:00 o'clock p.m. Houston time (in both cases reference to 5:00 o'clock p.m. Houston time
shall be to the time of the notified party). Either party may designate a different notice address at any time and
any Notice given hereunder shall be effective if delivered by either party in accordance with this Section.
20. BROKERS. Tenant represents to Landlord that it has dealt with no broker in connection with the
negotiation and/or execution of this Lease other than Broker. To the extent allowed by law, Tenant shall
defend, indemnify and hold Landlord harmless from and against any and all liability, loss, damage, expense,
claim, action, demand, suit or obligation arising out of or relating to a breach by Tenant of this representation
and such obligations shall survive the expiration or sooner termination of this Lease.
21. FORCE MAJEURE. Any obligation of Landlord which is delayed or not performed due to acts of
God, strike, riot, shortages of labor or materials, war, acts of terrorism, governmental laws or action, or lack
thereof, inaction by any governmental authority with respect to the issuance of any licenses or permits
necessary to perform an act of Landlord hereunder or any other causes of any kind whatsoever which are
beyond Landlord's reasonable control (each, a"Force Majeure"), shall not constitute a default hereunder and
shall be performed within a reasonable time after the end of such cause for delay or nonperformance.
22. NO SETOFF. All agreements, covenants and activities to be performed by Tenant hereunder shall be
at Tenant's expense and without any abatement of Rent. Tenant shall not be entitled to any setoff, offset or
abatement of any Rent due Landlord hereunder if Landlord fails to perform its obligations hereunder. In no
event shall Landlord, any holder of a Mortgage and/or lessor under an underlying lease be responsible for any
consequential damages incurred by Tenant resulting from a default by Landlord.
23. LIMITATION OF LANDLORD LIABILITY.
A. Transfer of the Property. The term "Landlord" as used herein shall mean only the owner of the
Property. Upon a transfer of title to or lease of the Property, the transferor shall be relieved of all covenants
and obligations of Landlord hereunder arising after the date of transfer and Tenant shall look solely to the
successor in interest of the transferor as Landlord hereunder and it shall be deemed and construed that such
transferee has assumed and agreed to carry out all of such covenants and obligations of Landlord hereunder,
and, further,the transferor shall be deemed entirely freed of all obligations of Landlord hereunder arising prior
to the date of transfer to the extent of an actual assumption by the transferee. Tenant agrees to attorn to the
transferee or assignee, such attornment to be self-operative.
B. Actions of Tenant. In no event shall Landlord be liable to Tenant for any failure of other tenants in
the Property to operate their businesses, or for any loss or damage caused by the acts or omissions of other
tenants.
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C. No Personal, Partnership or Corporate Liability. Notwithstanding anything to the contrary
contained herein, neither Landlord, nor any general or limited partner in or of Landlord, whether direct or
indirect, nor any direct or indirect partners in such partners, nor any disclosed or undisclosed officers,
shareholders, principals, directors, employees, partners, servants or agents of Landlord, nor any of the
foregoing, nor any investment adviser or other holder of any equity interest in Landlord, their successors,
assigns,agents, or any mortgagee in possession shall have any personal liability with respect to any provisions
of this Lease and, if Landlord is in breach with respect to its obligations,Tenant shall look solely to Landlord's
interest in the Property for satisfaction of Tenant's remedies.
24. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS. Tenant shall deliver within, ten(10)
days after Landlord's written request therefor, (i) a certificate to the party designated in such request, in the
form of Exhibit E, certifying that this Lease is unmodified and in full force and effect (or stating any
modifications then in effect),that there are no defenses or offsets thereto(or stating those claimed by Tenant),
the dates to which Base Rent and Additional Rent have been paid, and as to any other information reasonably
requested, and (ii) Tenant's most current financial statements prepared in accordance with recognized
accounting principles,and certified to be true and correct by a principal or senior officer of Tenant.
25. MISCELLANEOUS.
A. Non-Waiver. Landlord's failure to exercise its rights with respect to a breach of any term,covenant or
condition contained herein shall not be a waiver by Landlord of such term, covenant or condition or any
subsequent breach of the same or any other term,covenant or condition contained herein.
B. Non-Merger. The voluntary or other surrender of possession of the Premises by Tenant, or a mutual
cancellation of this Lease, shall not result in a merger of Landlord's and Tenant's estates, and shall, at
Landlord's option, either terminate any existing subleases or subtenancies, or operate as an assignment to
Landlord of any such subleases or subtenancies.
C. Attorney's Fees. If either party brings an action against the other, the prevailing party may recover
court costs and attorneys' fees and disbursements (whether at the administrative, trial or appellate levels) in
such amount as the court or administrative body deems reasonable. D. Authorization. Each
individual executing this Lease on behalf of Tenant represents and warrants that such individual is duly
authorized to execute and deliver this Lease on behalf of Tenant and that this Lease is binding upon Tenant in
accordance with its terms. If this Lease is executed by more than one tenant, Tenant's obligations hereunder
shall be the joint and several obligations of each tenant executing this Lease. Nothing contained herein shall
create any relationship between the parties hereto other than that of landlord and tenant,and Landlord shall not
be deemed to be a partner or a joint venturer of Tenant in the conduct of its business.
In addition, for the purposes of complying with this Lease,Tenant hereby stipulates that appropriations held as
unencumbered fund balances in any fund or account shall be deemed to be available and authorized for
transfer to the appropriate expenditure accounts to insure fulfillment of all of Tenant's covenants, duties and
obligations under this Lease.
E. No Representation. Tenant acknowledges that it has not relied on any representations or
agreements except those expressed herein, and that this Lease contains the entire agreement of the parties.
Landlord's duties and warranties are limited to those expressly stated in this Lease and shall not include any
implied duties or any implied warranties (including, without limitation, any implied warranty of suitability of
the Premises or the Property), whether now or in the future. Except as expressly contained herein, neither
Landlord nor Landlord's agent have made representations, warranties or promises with respect to the
Premises,the Property or this Lease.
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F. Modification. No modification of this Lease shall be binding or valid unless in writing and executed
and delivered by both parties and Tenant shall not record this Lease or a memorandum hereof without
Landlord's prior written consent.
G. Binding Effect. Except as otherwise specifically provided herein,the terms,covenants and conditions
contained in this Lease shall bind and inure to the benefit of the respective heirs, successors, executors,
administrators and assigns of each of the parties hereto.
H. Effective Date. The submission of this document for review does not constitute an option, offer or
agreement to lease space. This document shall be effective only upon Landlord's and Tenant's execution and
Landlord's delivery of same to Tenant. Except as expressly contained herein, neither Landlord nor Landlord's
agent have made representations, warranties or promises with respect to the Premises, the Property or this
Lease.
I. Representation by Counsel. Landlord and Tenant each acknowledge that each has been represented
by independent counsel and has executed this Lease after being fully advised by said counsel as to its effect
and significance. Any rule of construction that this Lease should be construed against Landlord is waived.
J. Remedies. Any remedy or election given pursuant to any provision in this Lease shall be cumulative
with all other remedies at law or in equity unless otherwise specifically provided herein.
K. Applicable Law. This Lease shall be construed in accordance with the laws of the State of Texas.
Tenant hereby stipulates, agrees and acknowledges, for the specific reliance of Landlord, that this Lease is
authorized by statute and/or the Texas Constitution for Tenant to enter into for goods and services as a
proprietary function,and Tenant hereby waives sovereign immunity for the purpose of adjudicating a claim for
breach of contract subject to the terms and conditions of Texas law.
L. Time of the Essence. Where Tenant is required by this Lease to pay any sum of money or to do any
act within an indicated period or by a particular date, it is understood that time is of the essence.
M. Invalidity. If any term or provision of this Lease shall, to any extent, be illegal, invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and all other terms and provisions of
this Lease shall be valid and enforceable to the fullest extent permitted by law.
N. Waiver of Tenant's Rights and Benefits under Section 93.012, Texas Property Code. Landlord
and Tenant are knowledgeable and experienced in commercial transactions and agree that the provisions of
this Lease for determining charges, amounts, and additional rent payable by Tenant are commercially
reasonable and valid even though such methods may not state a precise mathematical formula for determining
such charges. Accordingly, Tenant waives all rights and remedies of a tenant under Section 93.012, Texas
Property Code(i.e., the codification of H.B. 2186, 77th Texas Legislature) as such section relates solely to the
computation of charges that are permitted under this Lease and shall rely instead and exclusively on the
remedies that provided to Tenant under this Lease with regard to such matter.
O. Confidentiality. Subject to the Texas Public Information Act,Tenant hereby agrees not to disclose the
terms and provisions of this Lease or any amendment of this Lease to anyone other than Tenant's attorneys,
accountants,officers and directors. This restriction on disclosure shall survive the termination of the Lease.
26. Jury Trial. Landlord and Tenant hereby waive trial by jury in any action,proceeding or counterclaim
brought by either of the parties hereto against the other or their successors in respect of any matter arising in
connection with this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises,and/or any claim for injury or damage,or any emergency or statutory remedy.
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27. Guaranty. N/A
28. Other Provisions. This Lease is subject to the additional provisions attached hereto as Exhibits A,
A-1,A-2,B,C,D,E,F,G,H,I and J which shall be construed as if incorporated in the body of the Lease.
29. Security Deposit. Intentionally Omitted.
30. Relocation of the Premises. Intentionally Omitted.
31. Renewal Options. Subject to the condition that there shall not then exist an Event of Default(as such
term is defined in this Lease) by Tenant, Tenant shall have the option (each, a "Renewal Option") to renew
the Term of this Lease for two (2) additional consecutive terms (each, a "Renewal Term"), the first such
Renewal Term shall be for thirty-six (36) months commencing on the date immediately following the
expiration of the original Term of this Lease,and the second such Renewal Term shall be for twenty-four(24)
months commencing on the date immediately following the expiration of the first Renewal Term. Each
renewal of this Lease shall be subject to all the same terms, covenants and conditions of this Lease, except
Base Rent payable by Tenant to Landlord during each Renewal Term shall be at the rates stated in Section lA
hereof. Tenant agrees to accept the Premises during the Renewal Terms in its"AS-IS"condition and Landlord
shall not be obligated to make any alterations or install or modify any improvements therein, nor shall
Landlord be obligated to pay any leasing commissions to any broker representing Tenant in connection with
such leasing. Tenant shall not have any right to exercise the second Renewal Option unless Tenant exercises
the first Renewal Option, and Tenant shall have no further Renewal Options after the expiration of the second
Renewal Term. In order to exercise a Renewal Option, Tenant shall advise Landlord in writing ("Tenant's
Exercise Notice") of its intent to exercise the applicable Renewal Option, with respect to the first Renewal
Option, no later than six(6) months nor earlier than twelve (12) months prior to the end of the primary Term
of this Lease, and with respect to the second Renewal Option, no later than six (6) months nor earlier than
twelve (12) months prior to the end of the first Renewal Term. Time is of the essence with respect to the
delivery of Tenant's Exercise Notice. Each renewal shall apply to all of the space in the Shopping Center that
Tenant is then leasing from Landlord.
32. Tenant's Protected Area. Notwithstanding any term or provision to the contrary herein,but expressly
subject to (i) the rights of tenants and occupants of the Shopping Center (and their successors, assigns and
subtenants)that have executed leases or occupancy agreements for space within the Shopping Center prior to
the Effective Date of this Lease, (ii) any governmental or quasi-governmental regulation, law, code, statute,
ordinance, court order, condemnation or transfer in lieu of condemnation, and(iii)the terms and provisions of
the second and third sentences of this provision,Landlord shall not(x)make changes to Tenant's Protected Area,
as identified on Exhibit J, that would materially and adversely affect access to, or visibility of, the Premises, or
(y) permit a kiosk, cart of similar item to be situated within the Tenant's Protected Area unless it is part of a
promotion for the Shopping Center sponsored by Landlord, or(z)reduce the number of parking spaces available
in Tenant's Protected Area by more than five (5) spaces, in any of the foregoing three (3) instances without
Tenant's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
Notwithstanding the preceding sentence, or any other term or provision in this Lease to the contrary, Landlord
shall have the right, from time to time, to close all or any portion of the Common Areas (including within
Tenant's Protected Area) (x) to conduct maintenance and repairs thereto, and (y) to such extent as may, in
Landlord's opinion, be reasonable necessary to prevent a dedication thereof or any diminution of the rights of
Landlord with respect thereto,provided Landlord's actions do not preclude access to the Premises and Landlord
uses good faith,commercially reasonable efforts,to minimize interference with Tenant's use of the Premises for
the Permitted Use. Notwithstanding the foregoing, or any other term or provision in this Lease to the contrary,
all seats, benches,trashcans,dumpsters(but only in the service areas), directional signage, fountains, light poles,
trees, landscaping and other obstructions currently existing within Tenant's Protected Area (collectively, the
22
"Exempt Obstructions")and replacements of Exempt Obstructions in generally the same location,size and shape,
shall be permitted within Tenant's Protected Area,and shall be deemed acceptable at all times.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the date(s) set forth below and
this Lease shall be effective as of the latter of such dates and Landlord's delivery of same to Tenant.
LANDLORD:
AMREIT SPF SHADOW CREEK,LP,
a Delaware limited partnership
By: AmREIT SPF Shadow Creek GP, LLC, its general partner
By: Shadow Creek Holding Company LLC, its Sole Member
By: AmREIT Shadow Creek Acquisition,LLC, its Managing Member
By:
VName: Brett Treadwell
4,Title: Vice President
EXECUTED the 1 a day of'ir kt;►u bm ,2012.
TENANT:
THE CITY OF PEARLAND,
a Texas home rule municipality
By:
Name: /� Pr7
(��Title: 'AI "met geP—
EXECUTED the .a/ day/of blT ,2012.
List of Exhibits:
Exhibit A—Legal Description
Exhibit A-1 —Site Plan of the Shopping Center
Exhibit A-2—The Premises
Exhibit B—Tenant Acceptance Letter
Exhibit C—Construction Requirements
Exhibit D—Rules and Regulations
Exhibit E—Estoppel Certificate
Exhibit F—Subordination,Non-Disturbance and Attomment Agreement
Exhibit G—Intentionally Omitted.
Exhibit H—Sign Criteria
Exhibit I—Existing Exclusives and Prohibited Uses
Exhibit J-Tenant's Protected Area
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METES AND BOUNDS DESCRIPTION
27.2074 ACRES (1,185,154 SQUARE FEET)
SECOND AMENDING PLAT OF SHADOW CREEK TOWN CENTER
T.C.R.R. CO. SURVEY, SECTION 4, ABSTRACT NUMBER 675
BRAZORIA COUNTY, TEXAS
Being a tract or parcel containing 27.2074 acres (1,185,154 Square Feet) of land
situated in the T.C.R.R. Co. Survey, Section 4, Abstract Number 675, Brazoria County,
Texas, and being out of and a portion of the 88.4906 acre tract as described in the deed
to Shadow Creek Retail, LP, recorded under Brazoria County Clerk's File Number 06-
010816, said 27.2074 acre tract also being all of Lots B and F and a portion of Lot C in
Block 3 of the Second Amending Plat of Shadow Creek Town Center, according to the
plat thereof recorded under Brazoria County Clerk's File Number 08-005566; said
27.2074 acre tract being more particularly described by metes and bounds as follows
(all bearings are based on the record bearings of said Second Amending Plat of
Shadow Creek Town Center):
COMMENCING at a 5/8-inch iron rod found in the westerly right-of-way line of State
Highway 288 marking the northeast corner of said Second Amending Plat of Shadow
Creek Town Center common with the northeast corner of the 21.9194 acre tract as
described in the deed recorded under Brazoria County Clerk's File Number 03-078160;
THENCE, South 03°00'20" West. along said westerly right-of-way line, a distance of
1,077.58 feet to a Texas Department of Transportation Concrete Monument found
marking the Point of Curvature of a curve to the left;
THENCE. continuing along said westerly right-of-way line, along said curve to the left
having a central angle of 00°02'23", an arc distance of 8.09 feet, a radius of 11,669.21
feet, and a chord which bears South 02°51'35" West, a distance of 8.09 feet to a 5/8-
inch iron rod with plastic cap stamped "TERRA SURVEYING" set marking the south
corner of said 21.9194 acre tract common with the POINT OF BEGINNING of the herein
described tract and a point on a curve to the left;
THENCE, continuing along said westerly right-of-way line the following six (6) courses
and distances;
Along said curve to the left having a central angle of 01°08'28", an arc distance
of 232.43 feet, a radius of 11,669.21 feet, and a chord which bears South
02°16'10"West, 232.43 feet to a Texas Department of Transportation Concrete
Monument found marking the end of said curve common with a point on a
curve to the right;
Along said curve to the right having a central angle of 45°22'19", an arc
distance of 789.08 feet. a radius of 996.45 feet, and a chord which bears South
24°33'31" West, 768.62 feet to a Texas Department of Transportation Concrete
Monument found marking the end of curve;
HOUSTON.0018492.00054:12355 72v2
South 47'12'01" West, a distance of 163.98 feet to a Texas Department of
Transportation Concrete Monument found marking the Point of Curvature of a
curve to the left;
Along said curve to the left having a central angle of 37°37'36", an arc distance
of 293.19 feet, a radius of 446.46 feet, and a chord which bears South
28°34'39" West, 287.95 feet to a Texas Department of Transportation Concrete
Monument found marking the end of curve;
South 44°47'35" West, a distance of 144.27 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking an angle corner in said
westerly right-of-way line;
South 86°39'17" West, a distance of 128.31 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking the south corner of the
northeast right-of-way cutback line at the intersection of said State Highway
288 and Business Center Drive (100 feet wide) common with the southwest
corner of the herein described tract;
THENCE, North 48°15'37" West, along said northeast right-of-way cutback line, a
distance of 47.99 feet to an "X" set in concrete in the east right-of-way line of said
Business Center Drive marking the north corner of said northeast right-of-way cutback
line common with the an angle corner of the herein described tract;
THENCE, along said east right-of-way line the following five (5) courses and distances;
North 03°14'20" West, a distance of 199.74 feet to an "X" set in concrete
marking the Point of Curvature of a curve to the left;
Along said curve to the left having a central angle of 25°00'00", an arc distance
of 388.34 feet, a radius of 890.00 feet, and a chord which bears North
15°44'20" West, a distance of 385.26 feet to a 5/8-inch iron rod with plastic cap
stamped "TERRA SURVEYING" set marking the end of said curve;
North 28°14'20" West, a distance of 117.21 feet to an "X" set in concrete
marking the Point of Curvature of a curve to the right:
Along said curve to the right having a central angle of 25°00'00", an arc
distance of 344.70 feet, a radius of 790.00 feet, and a chord which bears North
15°44'20"West, a distance of 341.97 feet to an "X" set in concrete marking the
end of said curve;
North 03'14'20" West, a distance of 423.01 feet to an "X" set in concrete
marking the south corner of the southeast right-of-way cutback line at the
intersection of said Business Center Drive and Memorial Hermann Drive (100
1OUCTON:0018492.00054: 1235572v2
feet wide) as dedicated to the public by the aforesaid plat of Shadow Creek
Town Center;
THENCE, North 42°00'41" East, along said southeast right-of-way cutback line, a
distance of 21.12 feet to an "X" set in concrete marking the north corner of said
southeast right-of-way cutback line;
THENCE, North 87°15'42" East, along the south right-of-way line of said Memorial
Hermann Drive, a distance of 1,057.62 feet to a 5/8-inch iron rod with plastic cap
stamped "TERRA SURVEYING" set marking the Point of Curvature of a curve to the
right;
THENCE, continuing along said south right-of-way line, along said curve to the right
having a central angle of 03°23'45", an arc distance of 32.60 feet, a radius of 550.00
feet, and a chord which bears North 88°57'34" East, 32.59 feet to a 5/8-inch iron rod
with plastic cap stamped "TERRA SURVEYING" set marking the intersection of said
south right-of-way line and the south line of the aforesaid 21.9194 acre tract common
with the northeast corner of the herein described tract and a point on a curve to the
right;
THENCE, along said south line and said curve to the right having a central angle of
39°08'08", an arc distance of 126.36 feet, a radius of 185.00 feet, and a chord which
bears South 17°23'20" East, 123.92 feet to the POINT OF BEGINNING and containing
27.2074 acres (1,185,154 Square Feet) of land. This description is based on the Land
Title Survey prepared by Terra Surveying Company, Inc., dated December 05, 2007.
TSC Project Number 2540-0722-S.
REVISED 02/15/08 - REFERENCE TO LOT F
REVISED 02/14/08 - PLAT REFERENCE
Compiled by: Mark J. Piriano, RPLS
Terra Surveying Company, Inc.
MB272074.doc
HOUSTON 0018492.00054.12355?2v2
METES AND BOUNDS DESCRIPTION
38.6636 ACRES (1,684,186 SQUARE FEET)
SECOND AMENDING PLAT OF SHADOW CREEK TOWN CENTER
T.C.R.R. CO. SURVEY, SECTION 4, ABSTRACT NUMBER 675
BRAZORIA COUNTY, TEXAS
Being a tract or parcel containing 38.6636 acres (1,684,186 Square Feet) of land
situated in the T.C.R.R. Co. Survey, Section 4, Abstract Number 675, Brazoria County,
Texas, and being out of and a portion of the 88.4906 acre tract as described in the deed
to Shadow Creek Retail, LP, recorded under Brazoria County Clerk's File Number 06-
010816, said 38.6636 acre tract also being all of Lots D and E in Block 1 of the Second
Amending Piat of Shadow Creek Town Center, according to the plat thereof recorded
under Brazoria County Clerk's File Number 08-005566; said 38.6636 acre tract being
more particularly described by metes and bounds as follows (all bearings are based on
the record bearings of said Second Amending Plat of Shadow Creek Town Center):
COMMENCING at a 5/8-inch iron rod found in the westerly right-of-way line of State
Highway 288 marking the northeast corner of said Second Amending Plat of Shadow
Creek Town Center common with the northeast corner of the 21.9194 acre tract as
described in the deed recorded under Brazoria County Clerk's File Number 03-078160;
THENCE, South 86'45'40" West, along the north line of said Second Amending plat of
Shadow Creek Town Center, a distance of 1,001.34 feet to a 5/8-inch iron rod with
plastic cap stamped 'TERRA SURVEYING" set marking the intersection of said north
line and the west right-of-way line of Business Center Drive (100 feet wide);
THENCE, along said west right-of-way line the following ten(10) courses and distances
South 37°15'09" West, a distance of 168.83 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking the Point of Curvature
of a curve to the left;
Along said curve to the left having a central angle of 31°54'05", an arc distance
of 473.30 feet, a radius of 850.00 feet, and a chord which bears South
21'18'07" West, 467.20 feet to a 5/8-inch iron rod with plastic cap stamped
"TERRA SURVEYING" set marking the end of said curve;
South 05'14'35" West, a distance of 6.45 feet to a 5/8-inch iron rod with plastic
cap stamped "TERRA SURVEYING" set marking the northeast corner and
POINT OF BEGINNING of the herein described tract;
South 05°14'35" West, a distance of 259.36 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking the Point of Curvature
of a curve to the left;
HOUSTON.0018492.000 4.1235572v2
Along said curve to the left having a central angle of 08°28'55", an arc distance
of 125.83 feet, a radius of 850.00 feet, and a chord which bears South
01°00'07" West, 125.72 feet to a 5/8-inch iron rod with plastic cap stamped
"TERRA SURVEYING" set marking the end of said curve;
South 03°14'20" East, a distance of 444.82 feet to an "X" set in concrete
marking the Point of Curvature of a curve to the left;
Along said curve to the left having a central angle of 25°00'00", an arc distance
of 388.34 feet, a radius of 890.00 feet, and a chord which bears South
15°44'20" East, 385.26 feet to an "X" set in concrete marking the end of said
curve;
South 28°14'20" East, a distance of 117.21 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking the Point of Curvature
of a curve to the right;
Along said curve to the right having a central angle of 25°00'00". an arc
distance of 344.70 feet, a radius of 790.00 feet, and a chord which bears South
15°44'20" East, a distance of 341.97 feet to an "X" set in concrete marking the
end of said curve;
South 03°14'20" East, a distance of 199.75 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking the north corner of the
northwest right-of-way cutback line at the intersection of said Business Center
Drive and County Road 92 (width varies);
THENCE, South 41°44'23" West, along said northwest right-of-way cutback line, a
distance of 63.72 feet to a 5/8-inch iron rod with plastic cap stamped 'TERRA
SURVEYING" set in the north right-of-way line of said County Road 92 marking the
south corner of said northwest right-of-way cutback line;
THENCE, along said north right-of-way line the following five (5)courses and distances
South 86°43'06" West, a distance of 403.01 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking an angle corner of
said north right-of-way line;
North 89°05'15" West, a distance of 150.40 feet to a 5/8-inch iron rod with
plastic cap stamped 'TERRA SURVEYING" set marking an angle corner of
said north right-of-way line:
South 86°43'06" West, a distance of 155.36 feet to an "X" set in concrete
marking an angle corner of said north right-of-way line:
HOUSTON_001 S492.00054 1235'7v2
South 03°14'22" East, a distance of 11.00 feet to an "X" set in concrete marking
an angle corner of said north right-of-way line;
South 86'43'06" West, a distance of 455.63 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set in the east line of Shadow
Creek Ranch, SF-16B, according to the plat thereof recorded in Volume 23.
Page 273 of the Brazoria County Plat Records marking the southwest corner of
the herein described tract;
THENCE, North 03°14'22" West, along the east line of said Shadow Creek Ranch. SF-
16B, passing at a distance of 573.29 feet a 1/2-inch iron pipe found in said east line and
continuing along said east line and then along the east line of Shadow Creek Ranch,
SF-16A, according to the plat thereof recorded in Volume 23, Page 269 of the Brazoria
County Plat Records, passing at a distance of 1,198.26 feet a capped 5/8-inch iron rod
found in said east line and continuing along the east line of said Shadow Creek Ranch,
SF-16A, for a total distance of 1,466.55 feet to a 5/8-inch iron rod with plastic cap
stamped "TERRA SURVEYING" set marking the southwest corner of Restricted
Reserve "A" of the aforesaid Second Amending Plat of Shadow Creek Town Center
common with the northwest corner of the herein described tract;
THENCE, along the south and east lines of said Restricted Reserve "A" the following
five (5)courses and distances;
North 86°45'40" East, a distance of 802.11 feet to a 54'8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking an angle corner of the
herein described tract;
North 03°14'20" West, a distance of 40.17 feet to a 5/8-inch iron rod with plastic
cap stamped 'TERRA SURVEYING" set marking the Point of Curvature of a
curve to the right
Along said curve to the right having a central angle of 08'28'55", an arc
distance of 155.44 feet, a radius of 1,050.00 feet, and a chord which bears
North 01°00'07" East, 155.30 feet to a 5/8-inch iron rod with plastic cap
stamped "TERRA SURVEYING" set marking the end of said curve;
North 05°14'35" East, a distance of 229.53 feet to a 5/8-inch iron rod with
plastic cap stamped "TERRA SURVEYING" set marking an angle corner of the
herein described tract;
North 86°45'38" East, a distance of 202.21 feet to the POINT OF BEGINNING
and containing 38.6636 acres (1,684,186 Square Feet) of land. This description
is based on the Land Title Survey prepared by Terra Surveying Company, Inc.,
dated December 05, 2007, TSC Project Number 2540-0722-S.
liousTON:001asv2.00054.1235572v2
REVISED 02/27/08—3rd COMMENCING CALL
REVISED 02/26/08 - PLAT REFERENCE
REVISED 02/25/08 - PLAT REFERENCE, COMMENCING CALL
REVISED 01/08/07- PER ATTORNEYS COMMENTS
REVISED 12/21/07 - 10th & 11th CALLS
Compiled by: Mark J. Piriano, RPLS
Terra Surveying Company, inc.
MB386636.doc
HOUSTON 0018443.0054. 12355'72%2
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EXHIBIT B
TENANT ACCEPTANCE LETTER
AmREIT SPF Shadow Creek,LP
c/o AmREIT
8 Greenway Playa, Suite 1000
Houston,Texas 77046
Re: Lease (the "Lease") dated as of , 2012, between AmREIT SPF Shadow Creek, LP
("Landlord")and The City of Pearland("Tenant")
Premises: 6,000 square feet of retail space in the Shadow Creek Ranch Town Center
State Highway 288 and FM 518(Broadway),Pearland,Texas
The undersigned, as Tenant, hereby confirms as of the day of , 2012, the
following:
1. Tenant took possession of the Premises on , 2012 and is currently occupying same.
2. The Commencement Date, Rent Commencement Date and Expiration Date, as each is defined in the
Lease,are as follows:
Commencement Date:
Rent Commencement Date:
Expiration Date:
3. The obligation to commence the payment of rent commenced or will commence on
,2012.
4. As of the date hereof,Landlord has fulfilled all of its obligations under the Lease.
5. The Lease is in full force and effect and has not been modified, altered, or amended, except pursuant
to any instruments described above.
6. 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 terms of the Lease.
NOTICE: Tenant shall have five (5) days after the Commencement Date stated above to have
the electricity service to the Premises switched from Landlord's name to Tenant's name.
Very truly yours,
THE CITY OF PEARLAND,
a Texas home rule municipality
By:
Name:
Title:
B - 1
EXHIBIT C
CONSTRUCTION REQUIREMENTS
ARTICLE I. CONSTRUCTION OF BUILDING AND OTHER IMPROVEMENTS
Intentionally Omitted.
ARTICLE II. GENERAL SPECIFICATIONS
A. All plans, diagrams, schedules, specifications and other data required to be furnished by Tenant (at
Tenant's sole expense) under this Exhibit C must be submitted to Landlord complete, sufficient to obtain a
building permit,and ready for Landlord's consideration and final approval within sixty(60)calendar days after
the execution of this Lease. Upon review, Landlord shall, in writing, accept or notify Tenant of its objections
to said plans and specifications within ten(10)calendar days after receipt. Tenant shall reimburse Landlord for
any loss or extra cost which may result to Landlord by reason of failure on the part of Tenant to submit any
such plans, diagrams, schedules, specifications and/or other data within said period of time, or alternatively
and at Landlord's sole option, Landlord may elect to immediately terminate this Lease by reason of such
failure by giving written notice of such election to Tenant (whereupon Landlord shall have no further
obligations to Tenant hereunder).
B. Tenant shall secure Landlord's written approval of all designs, plans, specifications, contracts
and contractors for work to be performed by Tenant before beginning the work and shall secure all
necessary licenses and permits to be used in performing the work. Tenant's contractor must carry applicable
insurance acceptable to Landlord and provide full-time project supervision. Tenant shall submit one full
size (24" x 36") set of plans and one set on computer disk for approval by Landlord. Changes to said plans
and specifications shall be made only after written approval by Landlord. Tenant's finished work shall be
subject to Landlord's approval and acceptance, which shall be a condition to any reimbursement hereinafter
provided.
C. As soon as said plans and specifications have been approved by Landlord, Tenant shall commence
construction(and shall be required to diligently pursue said construction)no later than sixty(60)calendar days
after the date upon which Landlord approves Tenant's plans and specifications. If Tenant has not commenced
construction within said time period, Landlord shall have the option to declare this lease null and void; or, if
Tenant has not completed construction of such improvements within one hundred twenty (120) calendar days
after the date upon which Tenant's plans and specifications have been approved by Landlord, then Landlord
shall have the option to declare this lease null and void and in either such event,Tenant shall forfeit all prepaid
rent and security deposits made under this lease.
ARTICLE III. DESCRIPTION OF LANDLORD'S SHELL WORK—"As-is"
ARTICLE IV. DESCRIPTION OF LANDLORD'S WORK AS PROVIDED TO THE PREMISES—
"As-is"
ARTICLE V. DESCRIPTION OF TENANT'S WORK
A. Signs: Tenant shall pay for all signs and the installation thereof,subject to the provisions of Paragraph
6E of the Lease.
B. Utilities: All meters or other measuring devices in connection with utility services shall be provided
by Tenant,including installing an in-line meter downstream of the water line tap into the water main
for the building. All service deposits shall be made at Tenant's expense.
C - 1
C. Storefront: Tenant shall be responsible for the storefront,exterior doors and weatherproofing.
D. Interior Work: The Work to be done by Tenant shall include, but not limited to, the purchase and/or
installation and/or performance of the following:
1. Electrical panel,wiring,and fixtures. Tenant shall paint all new conduits and equipment on the
exterior wall to match existing wall color. Consult with Landlord on color before proceeding.
2. Interior partitions including finishing, electrical wiring,and connections within the Premises.
3. Light covers and special hung and furred ceilings.
4. Interior painting.
5. Store fixtures and furnishings.
6. Display window enclosure.
7. Plumbing fixtures within the Premises.
8. Ceiling to include insulation R-19 installed no lower than the storefront glass.
9. Heating,air conditioning and ventilating equipment, including electrical and gas hookup,duct
work and roof penetrations. All roof penetrations shall be done by roofing contractor specified by
Landlord at Tenant's expense.
10. Floor coverings.
E. All work undertaken by Tenant shall be Tenant's expense and shall not damage the building or any
part thereof. Any roof penetration shall be sealed by Landlord's approved roofer and shall be performed only
after Landlord has given consent, which consent shall in part be conditioned upon Tenant's plans to include
materials acceptable to Landlord and to include roof top curbs to spread the weight of the equipment being
installed in order to prevent damage to the roof. Tenant shall also be responsible for obtaining,and paying for,
professional inspections of any structural work and/or mechanical work (including, without limitation, any
roof work or concrete work)as required by Landlord.
F. All of Tenant's work to the Premises made by Tenant shall be in good and workmanlike manner and
shall be in conformity with the applicable building code or other applicable governmental requirements of the
city in which the Shopping Center was built.
G. Upon completion of the Initial Alterations to the Premises,Tenant shall furnish to Landlord all of the
following prior the reimbursement of the Tenant Improvement Allowance:
1. A Certificate of Occupancy issued by the municipality in which the Premises are located or other
evidence satisfactory to Landlord that such improvements have been approved by such
municipality;
2. A notarized affidavit executed by Tenant or its authorized representative, stating that all work and
materials performed or used in connection with the Initial Alterations to the Premises have been
paid for by Tenant;
3. True and correct original releases or waivers of lien executed and notarized from general
contractor and all sub-contractors;
4. Evidence of all costs of construction of the Initial Alterations to the Premises.
5. Certificate from Landlord's roofing contractor for all roof work performed;
6. Tenant's executed Tenant Acceptance Letter establishing, among other things, Rent
Commencement Date;
7. Tenants Certificate of Insurance as required by the Lease (please coordinate with Property
Manager);
8. Tenant's As Built plans;
9. Tenant has opened for business in the entire Premises and has paid the first month's rent.
10. Evidence of Texas Accessibility Standards Compliance within 60 days of construction
completion.
C -2
Upon receipt and approval of documentation set forth in subsections 1 through 10 above, completion of all
Initial Alterations to Landlord's satisfaction, and commencement of business in the Premises, Landlord shall
reimburse Tenant within thirty (30) working days after Landlord's approval of said documentation in the
amount of the lesser of(i) the Tenant Improvement Allowance specified in the Lease for Tenant's Initial
Alterations,or(ii)the actual cost of construction of the Initial Alterations to the Premises paid by Tenant. The
Tenant Improvement Allowance may not be used to reimburse Tenant for furniture, removable trade fixtures,
signs, or equipment. Contractors' fees in an amount not to exceed ten percent (10%) of such contract price
may be included in the Tenant Improvement Allowance but Tenant shall be solely responsible for paying any
contractors' fees in excess of ten percent(10%)of the contract price.
If Tenant fails to request reimbursement of the Tenant Improvement Allowance within one hundred eighty
(180) days of receiving its certificate of occupancy for the Premises, then this Section shall be deemed
terminated and null and void. Tenant may request an extension of the one hundred eighty (180) days upon
thirty(30)days prior written notice to Landlord.
C - 3
EXHIBIT D
RULES AND REGULATIONS
Operations by Tenant
A. The term"Tenant"as used in this Exhibit D shall include,where appropriate,Tenant's employees, agents,
licensees, contractors, concessionaires and subtenants. In regard to use and occupancy of the Premises,
Tenant shall at its expense:
1. Replace promptly any cracked or broken glass of the Premises with glass of like grade and quality;
2. Have any garbage,trash, rubbish and refuse removed from the Premises consistently to avoid collection
of the same on the Premises,and shall not burn any trash or garbage of any kind;
3. Light the show windows of the Premises and exterior signs during all hours of darkness;
4. Conduct its business, so long as it operates its business, in a manner consist with other first-class retail
stores;
5. Devote the maximum possible floor area of the Premises to selling and display space, and shall not use
any portion of the Premises for storage or other services, including, but not limited to,business offices,
except as is necessary for its operations in the Premises;
6. Shall pay before delinquency all license or permit fees and charges of a similar nature for the conduct
of Tenant's business in the Premises;
7. Shall use the Shopping Center name in a manner approved in writing by Landlord, in referring to the
location of the Premises in all newspaper, radio, television or other advertising. However, Landlord
will not be responsible for monitoring the contents of any advertising with respect to any laws or
requirements of any authority for content of advertisement;
8. Shall not obstruct sidewalks, doorways, vestibules, halls, stairways and other similar areas for purpose
other than ingress and egress to and from the Premises and for going from one to another part of the
Shopping Center;
9. Agrees not to install any exterior lighting, outside aerials, amplifiers or similar devices not to use in or
about the Premises any advertising medium which may be heard or seen outside the Premises, such as
flashing lights,search lights, loud speakers,phonographs or radio broadcasts;
10. Shall not perform any act or carry on any practice which may damage, mar or deface the Premises or
any other part of the Shopping Center;
11. Shall not suffer, allow or permit any vibration, noise, light, odor or other effect to emanate from the
Premises, or from any machine or other installation therein, or otherwise suffer, allow or permit the
same to constitute a nuisance, disturb the quiet enjoyment of any person, or otherwise interfere with
the safety,comfort and convenience of Landlord or any of the other occupants of the Shopping Center
or their customers, employees, agents, licensees, concessionaires, subtenants, or invitees in the
Shopping Center. Without limiting the generality of the foregoing, it is agreed that Tenant shall pay
any extra expense incurred by Landlord in eliminating such vibration, light, odor, loud noise or
nuisance;
12. Shall maintain the Premises (including, without limitation, exterior and interior portions of all
windows, doors and all other glass), and adjoining sidewalks or service areas in a clean, orderly and
sanitary condition and shall cause the Premises to be treated for and free of insects, rodents, vermin
and other pests;
13. Shall provide its own locks and keys for doors into the Premises at the time of acceptance of the
Premises. No keys will be retained or furnished by Landlord after acceptance of the Premises;
14. Shall exercise reasonable precautions in the protection of its personal property from loss or damage by
keeping doors to any unattended areas locked. Tenant shall also report any thefts or losses to the
property manager, if any,as soon as reasonably possible after discovery;
D - 1
15. No portion of the Premises shall at any time be used for sleeping or lodging quarters. No animals or
pets of any type, with the exception of guide dogs accompanying visually handicapped persons, shall
be brought into or kept in,on or about the Premises;and
16. Plumbing, fixtures and appliances shall be used only for the purposes for which designed, and no
sweepings, rubbish, rags or other unsuitable material shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant shall be paid by Tenant.
B. In regard to the use of the Common Area,Tenant shall not: •
1. Place or maintain any merchandise, trash, refuse or other articles in any vestibule or entry of the
Premises, on the footwalks or corridors adjacent thereto or elsewhere on the exterior of the Premises
so as to obstruct any driveway,corridor,footwalk,parking area,or any other Common Area;
2. Use or permit the use of loudspeakers, phonographs, public address systems, sound amplifiers, radios
or televisions outside its Premises or that are in any manner audible or visible outside the Premises;
3. Permit undue accumulations of or burn garbage, trash, rubbish or other refuse within or without the
Premises;
4. Cause or permit objectionable odors to emanate or be dispelled from the Premises;
5. Solicit business in the parking area or any other Common Area;
6. Distribute handbills or other advertising matter to, in or upon any automobiles parked in the parking
areas or in any other Common Area;
7. Permit the parking of vehicles so as to unreasonably interfere with the use of any driveway, corridor,
footwalk,parking area or other Common Areas;
8. Receive or ship articles of any kind outside the loading areas approved by Landlord;
9. Use the walkway, corridor or any other Common Area adjacent to the Premises for the sale or display
of any merchandise or for any other business, occupation or undertaking or for the use or storage of
any shopping carts;
10. Conduct or permit to be conducted any auction, fire,going out of business, bankruptcy or other similar
type sale in or connected with the Premises (but this provision shall not restrict the absolute freedom
of Tenant in determining its own selling prices, nor shall it preclude the conduct of periodic seasonal,
promotional or clearance sales);
11. Place a load upon any floor that exceeds the floor load that the floor was designed to carry;
12. Operate its heating or air conditioning in a manner that drains heat or air conditioning from the
premises of any other tenant or other occupant of the Shopping Center; or
13. Sell,distribute,display or offer for sale:
(a) Any paraphernalia commonly used in the use or ingestion of illicit drugs; or
(b) Any pornographic or lewd newspaper, book, magazine, film, picture, representation or
merchandise of any kind.
II. Common Area
A. Maintenance: Landlord shall exercise reasonable efforts to keep the Common Area in a neat, clean
and orderly condition, lighted and landscaped, and shall repair any damage thereto after written notice by
Tenant to Landlord of the nature and extent of the damage, such repairs to be included as part of the Tenant's
Share of Expenses of the Common Area.
B. Employee Parking: Tenant shall require its employees and licensees to park only in the areas
designated from time to time by Landlord as employee parking. Tenant shall at all times furnish Landlord
with an up-to-date list of vehicle license plate numbers of all of its employees and licensees. All vehicles
found by Landlord not to be parked in the designated locations shall be subject to towage at Tenant's expense.
No vehicles, unless specifically approved by Landlord, will be permitted to park on the Common Area
overnight or during the hours the Shopping Center is not open other than employees or licensees coming to or
leaving work at the Premises.
D -2
C. Deliveries: Tenant shall require all delivery vehicles making delivery to the Premises to use the area
approved by Landlord.
D. Fire Lane: The front drive adjacent to the front of the Shopping Center is a Fire Lane. No vehicles
shall be permitted to park,stop or drop off in the Fire Lane Area.
E. Traffic Signs and Markings: Tenant shall obey and use its best efforts to cause its employees and
licensees to obey all traffic signs and markings in the Common Area and use only the designated access drives
to the Common Area. All vehicles shall be driven in a slow and safe manner to a maximum of fifteen (15)
miles per hour.
F. Trucks:No trucks, other than two-axle pickups and vans will be permitted on the front parking area of
the Common Area for any purpose whatsoever. Tenant shall use its best efforts to enforce this restriction
relative to its employees and licensees and,with respect to its invitees,notify them of the restriction and report
any violation to Landlord. All vehicles in violation of this restriction shall be subject to towage at owner's
expense and liable for any damages to the parking lot area. Landlord shall reserve the right to install height
restriction bars at all access points to the front parking area of the Common Area if in Landlord's opinion,
violations of this restriction are sufficient to render damage or potential damage to the front parking area of the
Common Area. The cost of such height restriction bars shall be part of Tenant's Share of Expenses for the
Common Area.
NOTE: LANDLORD RESERVES THE RIGHT TO ADOPT OTHER REASONABLE RULES AND REGULATIONS
AND TO AMEND OR SUPPLEMENT THE SAME AT LANDLORD'S DISCRETION. NOTICE OF SUCH RULES,
REGULATIONS,AMENDMENTS,AND SUPPLEMENTS SHALL BE GIVEN TO TENANT AND TENANT SHALL COMPLY.
D- 3
EXHIBIT E
ESTOPPEL CERTIFICATE
This Estoppel Certificate is executed by Tenant pursuant to Section 24 of the Lease.
1. DEFINITIONS. In this certificate the following terms have the meanings given to them:
(a) Landlord/Landlord Notice Address:
(b) Tenant/Tenant Notice Address:
(c) Lease: Retail Lease dated the day of , , between Landlord and
Tenant.
(d) Premises: Shopping Center, located at .
(e) Property Legal Description-See Exhibit A attached.
2. The Rent Commencement Date of the Lease is , , and the
Expiration Date is ,
3. The Rentable Square Feet of the Premises is square feet.
4. Tenant's Pro Rata Share for allocation of expenses of the Shopping Center to the Premises is stipulated to
be percent.
5. Tenant has accepted possession of the Premises as provided in the Lease.
6. Any Improvements required to be furnished by the Landlord in accordance with the Lease have been
furnished to the satisfaction of Tenant(subject to any corrective work or punch-list items submitted previously
to Landlord).
7. Rent has been paid through , ,and no prepayment of Rent has been made.
8. All terms and conditions to be performed by Landlord under the Lease have been satisfied and on this date
there are no existing defenses or offsets which Tenant has against the full enforcement of the Lease by
Landlord.
9. The Lease is in full force and effect and has not been modified,altered,or amended,except as follows:
10. There are no setoffs or credits against, Rent, and no Security Deposit or prepaid Rent has been paid except
as provided by the Lease.
Tenant has executed this Estoppel Certificate as of the date set forth below.
Tenant:
By:
Name:
Title:
Date:
E- 1
EXHIBIT F
RECORDING REQUESTED
BY AND WHEN
RECORDED RETURN TO:
,Esq.
SUBORDINATION
NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT RESULTS IN YOUR LEASEHOLD
ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF
LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR
LATER SECURITY INSTRUMENT.
DEFINED TERMS
Execution Date: As of ,20
Beneficiary& Address:
Metropolitan Life Insurance Company, a New York corporation, and its affiliates, as
1 applicable
10 Park Avenue
Morristown,New Jersey 07962
Attn: Senior Vice President
Real Estate Investments
with a copy to:
Tenant& Address:
Landlord & Address:
F - I
Loan: A first mortgage loan in the original principal amount of$
from Beneficiary to Landlord.
Note: A Promissory Note executed by Landlord in favor of Beneficiary in the amount of the
Loan dated as of
Deed of Trust: A Deed of Trust, Security Agreement and Fixture Filing dated as of
executed by Landlord,to as Trustee, for the benefit of Beneficiary securing
repayment of the Note to be recorded in the records of the County in which the Property is
located.
Lease and Lease Date: The lease entered into by Landlord and Tenant dated as of
covering the Premises.
[Add amendments]
Property: [Property Name]
[Street Address 1]
[City, State, Zip]
The Property is more particularly described on Exhibit A.
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT (the "Agreement") is made by and among Tenant, Landlord, and Beneficiary
and affects the Property described in Exhibit A. Certain terms used in this Agreement are
defined in the Defined Terms. This Agreement is entered into as of the Execution Date with
reference to the following facts:
A. Landlord and Tenant have entered into the Lease covering certain space in
the improvements located in and upon the Property (the "Premises").
B. Beneficiary has made or is making the Loan to Landlord evidenced by the
Note. The Note is secured,among other documents, by the Deed of Trust.
C. Landlord, Tenant and Beneficiary all wish to subordinate the Lease to the
lien of the Deed of Trust.
D. Tenant has requested that Beneficiary agree not to disturb Tenant's rights
in the Premises pursuant to the Lease in the event Beneficiary forecloses the Deed of Trust, or
acquires the Property pursuant to the trustee's power of sale contained in the Deed of Trust or
receives a transfer of the Property by a conveyance in lieu of foreclosure of the Property
(collectively, a "Foreclosure Sale") but only if Tenant is not then in default under the Lease and
F -2
Tenant attorns to Beneficiary or a third party purchaser at the Foreclosure Sale (a "Foreclosure
Purchaser").
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein,the parties agree as follows:
1. Subordination. The Lease and the leasehold estate created by the Lease
and all of Tenant's rights under the Lease are and shall remain subordinate to the Deed of Trust
and the lien of the Deed of Trust, to all rights of Beneficiary under the Deed of Trust and to all
renewals, amendments, modifications and extensions of the Deed of Trust.
2. Acknowledgments by Tenant. Tenant agrees that: (a) Tenant has notice
that the Lease and the rent and all other sums due under the Lease have been or are to be
assigned to Beneficiary as security for the Loan. In the event that Beneficiary notifies Tenant of
a default under the Deed of Trust and requests Tenant to pay its rent and all other sums due
under the Lease to Beneficiary, Tenant shall pay such sums directly to Beneficiary or as
Beneficiary may otherwise request. (b)Tenant shall send a copy of any notice or statement under
the Lease to Beneficiary at the same time Tenant sends such notice or statement to Landlord. (c)
This Agreement satisfies any condition or requirement in the Lease relating to the granting of a
nondisturbance agreement.
3. Foreclosure and Sale. In the event of a Foreclosure Sale,
(a) So long as Tenant complies with this Agreement and is not in
default under any of the provisions of the Lease, the Lease shall continue in full force and
effect as a direct lease between Beneficiary and Tenant, and Beneficiary will not disturb
the possession of Tenant, subject to this Agreement. To the extent that the Lease is
extinguished as a result of a Foreclosure Sale, a new lease shall automatically go into
effect upon the same provisions as contained in the Lease between Landlord and Tenant,
except as set forth in this Agreement, for the unexpired term of the Lease. Tenant agrees
to attorn to and accept Beneficiary as landlord under the Lease and to be bound by and
perform all of the obligations imposed by the Lease, or, as the case may be, under the
new lease, in the event that the Lease is extinguished by a Foreclosure Sale. Upon
Beneficiary's acquisition of title to the Property, Beneficiary will perform all of the
obligations imposed on the Landlord by the Lease except as set forth in this Agreement;
provided, however, that Beneficiary shall not be: (i) liable for any act or omission of a
prior landlord (including Landlord); or (ii) subject to any offsets or defenses that Tenant
might have against any prior landlord (including Landlord); or (iii) bound by any rent or
additional rent which Tenant might have paid in advance to any prior landlord (including
Landlord) for a period in excess of one month or by any security deposit,cleaning deposit
or other sum that Tenant may have paid in advance to any prior landlord (including
Landlord); or (iv) bound by any amendment, modification, assignment or termination of
the Lease made without the written consent of Beneficiary; (v) obligated or liable with
respect to any representations, warranties or indemnities contained in the Lease; or (vi)
liable to Tenant or any other party for any conflict between the provisions of the Lease
F -3
and the provisions of any other lease affecting the Property which is not entered into by
Beneficiary.
(b) Upon the written request of Beneficiary after a Foreclosure Sale,
the parties shall execute a lease of the Premises upon the same provisions as contained in
the Lease between Landlord and Tenant, except as set forth in this Agreement, for the
unexpired term of the Lease.
(c) Notwithstanding any provisions of the Lease to the contrary, from
and after the date that Beneficiary acquires title to the Property as a result of a
Foreclosure Sale, (i) Beneficiary will not be obligated to expend any monies to restore
casualty damage in excess of available insurance proceeds; (ii) tenant shall not have the
right to make repairs and deduct the cost of such repairs from the rent without a judicial
determination that Beneficiary is in default of its obligations under the Lease; (iii) in no
event will Beneficiary be obligated to indemnify Tenant, except where Beneficiary is in
breach of its obligations under the Lease or where Beneficiary has been actively
negligent in the performance of its obligations as landlord; and (iv) other than
determination of fair market value, no disputes under the Lease shall be subject to
arbitration unless Beneficiary and Tenant agree to submit a particular dispute to
arbitration.
Delete if Not Applicable [(d)If Beneficiary acquires title to the Property
as a result of a Foreclosure Sale, the Lease shall be automatically amended as set forth in Exhibit
B.]
4. Subordination and Release of Purchase Options. Tenant represents that it
has no right or option of any nature to purchase the Property or any portion of the Property or
any interest in the Grantor. To the extent Tenant has or acquires any such right or option, these
rights or options are acknowledged to be subject and subordinate to the Mortgage and are waived
and released as to Beneficiary and any Foreclosure Purchaser.
5. Acknowledgment by Landlord. In the event of a default under the Deed of
Trust, at the election of Beneficiary, Tenant shall and is directed to pay all rent and all other
sums due under the Lease to Beneficiary.
6. Construction of Improvements. Beneficiary shall not have any obligation
or incur any liability with respect to the completion of tenant improvements for the Premises
[Note, add the following if applicable — , except with respect to tenant improvements for
renewal and/or expansion as set forth in Section of the Lease.]
7. Notice. All notices under this Agreement shall be deemed to have been
properly given if delivered by overnight courier service or mailed by United States certified mail,
with return receipt requested, postage prepaid to the party receiving the notice at its address set
F -4
forth in the Defined Terms (or at such other address as shall be given in writing by such party to
the other parties)and shall be deemed complete upon receipt or refusal of delivery.
8. Miscellaneous. Beneficiary shall not be subject to any provision of the
Lease that is inconsistent with this Agreement. Nothing contained in this Agreement shall be
construed to derogate from or in any way impair or affect the lien or the provisions of the Deed
of Trust. This Agreement shall be governed by and construed in accordance with the laws of the
State of in which the Property is located.
9. Liability and Successors and Assigns. In the event that Beneficiary
acquires title to the Premises or the Property, Beneficiary shall have no obligation nor incur any
liability in an amount in excess of$3,000,000 and Tenant's recourse against Beneficiary shall in
no extent exceed the amount of$3,000,000. This Agreement shall run with the land and shall
inure to the benefit of the parties and, their respective successors and permitted assigns including
a Foreclosure Purchaser. If a Foreclosure Purchaser acquires the Property or if Beneficiary
assigns or transfers its interest in the Note and Deed of Trust or the Property, all obligations and
liabilities of Beneficiary under this Agreement shall terminate and be the responsibility of the
Foreclosure Purchaser or other party to whom Beneficiary's interest is assigned or transferred.
The interest of Tenant under this Agreement may not be assigned or transferred except in
connection with an assignment of its interest in the Lease which has been consented to by
Beneficiary.
10. OFAC Provisions Tenant and Beneficiary hereby represent, warrant and
covenant to each other, either that (i) it is regulated by the SEC, FINRA or the Federal Reserve
(a"Regulated Entity"), or is a wholly-owned subsidiary or wholly-owned affiliate of a Regulated
Entity or (ii) neither it nor any person or entity that directly or indirectly(a) controls it or(b) has
an ownership interest in it of twenty-five percent (25%) or more, appears on the list of Specially
Designated Nationals and Blocked Persons ("OFAC List") published by the Office of Foreign
Assets Control ("OFAC")of the U.S. Department of the Treasury.
[Include the following if there is a Guarantor of the Lease:]
With respect to each Guarantor of Tenant's obligations under this Lease, Tenant further
represents, warrants and covenants either that (i) any such Guarantor is a Regulated Entity or a
wholly-owned subsidiary or wholly-owned affiliate of a Regulated Entity or (ii) neither
Guarantor nor any person or entity that directly or indirectly (a) controls such Guarantor or (b)
has an ownership interest in such Guarantor of twenty-five percent (25%) or more, appears on
the OFAC List.
F - 5
IN WITNESS WHEREOF, the parties have executed this Subordination,
Nondisturbance and Attornment Agreement as of the Execution Date.
IT IS RECOMMENDED THAT THE PARTIES CONSULT WITH THEIR ATTORNEYS
PRIOR TO THE EXECUTION OF THIS SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT.
BENEFICIARY: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By
Its
State of
County of
On , 20 before me, personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence)to be the person whose name is subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature (Seal)
F -6
TENANT:
a
By
Its
State of
County of
On , 20 before me, , personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence)to be the person whose name is subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature (Seal)
F - 7
LANDLORD:
a
By
Its
State of
County of
On , 20_ before me, , personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence)to be the person whose name is subscribed to the within instrument and acknowledged
to me that he/she executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature (Seal)
F - 8
EXHIBIT A
PROPERTY DESCRIPTION
1
EXHIBIT B
In the event of foreclosure of the Deed of Trust, or upon a sale of the Property
pursuant to the power of sale contained therein, or upon a transfer of the Property by conveyance
in lieu of the foreclosure, the Lease shall be amended as follows:
2
The undersigned Guarantor to the Lease hereby consents to the foregoing Subordination,
Nondisturbance and Attornment Agreement and reaffirms that the Guaranty of Lease dated
remains in full force and effect as of the date of the foregoing
Subordination,Nondisturbance and Attornment Agreement.
GUARANTOR:
a
By
Its
3
EXHIBIT G
Intentionally Omitted.
G- 1
EXHIBIT "H"
Shadow Creek Ranch Town Center
Sign Criteria
Effective October 11, 2008
The purpose of these instructions is to outline the criteria which have been established to control the
design, fabrication and installation of tenant signs in this shopping center. The reason for
establishing certain basic guidelines which must be followed by sign companies serves two purposes;
1) it will protect you, the tenant, from purchasing a sign which does not meet good standards of
material workmanship, and appearance, and 2) it will assure the tenants, the Landlord, the shopping
center's customers, and the surrounding property owners of an attractive shopping center, unmarred
by poorly designed and badly proportioned signs.
Important Note:
Landlord shall not be responsible for the cost of re-fabrication of any sign fabricated,
ordered, or constructed that does not conform to the sign criteria or local codes and
requirements. In addition, Landlord will not be responsible for timely submission of
signs to local agencies for approval. It is Tenant's responsibility to submit drawings to
Landlord in sufficient time to receive Landlord's comments and approval in advance of
required submission to local agencies.
A. General Requirements:
1. AmREIT recommends facade and monument signs to be fabricated and installed by the
following sign company:
State Sign
7630 Hansen
Houston,Texas 77061
Phone: (713)943-1831
Fax: (713)943-9771
Attn: Danny Zoch
Landlord has no ownership or contractual relationship with State Sign. Landlord reserves the
right to designate another sign company as the designated sign company for the center at any
time if State Sign does not provide satisfactory work to Tenant and Landlord at competitive
rates.
H- 1
2. Each tenant shall submit or cause to be submitted to the Landlord for written approval before
fabrication detailed drawings indicating the location, size, layout, design, and color of the
proposed signs, including all lettering and/or graphics.
Sign shop drawings should:
a) provide an elevation of the store's entire exterior façade in color;
b) show the dimensions of each sign location imposed on an actual digital picture of the
center;
c) provide a section or sections through the sign relative to the storefront lease line;
d) have a minimum scale of/a"= 1'-0".
3. All permits for Tenant's signs and their installation shall be obtained by Tenant or their
representative and will be subject to the governing authority's changes.
4. Tenant shall be responsible for the fulfillment of all requirements of these criteria.
B. Stipulations:
1. No animated or audible sign will be permitted.
2. No exposed lamps or tubing will be permitted.
3. All signs and their installations shall comply with all local building and electrical codes.
4. All conductors,transformers, and other equipment shall be concealed behind the building
façade.
5. Electrical service to all signs shall be on Tenant's meter.
6. All attached bolts will be of non-ferrous metal to prevent corrosion.
7. Background panels or"backer boards" are prohibited.
8. Brand name signs or logos that deviate from the tenant's trade name (dba) are prohibited.
9. Tag lines, secondary signs, or additional verbiage beyond tenant's dba is prohibited.
C. Location of Signs:
1. Signs on the exterior of the Building shall be permitted only for those tenants having exterior
public entrances. Signs must be located within the sign areas designated for each façade
condition as indicated on Exhibits D-1 through D-4 as attached hereto. Final placement,
however, shall be subject to written approval by landlord.
H -2
D. Design Requirements:
1. All tenant storefront entrance and store identification designs shall be subject to the written
approval of landlord.
2. Tenants are encouraged to have signs designed as an integral part of the storefront design,
with letter size and location appropriately scaled and proportioned to the overall storefront
design. The design of all signs, including style and placement of lettering, size, color,
material and method of illumination, shall be subject to the written approval of the Landlord.
3. a) Wording of the fascia sign is limited to Tenant's trade name (dba) and logo. Each Tenant's
customary signature or logo, hallmark, insignia, or other trade identification will be respected
and reviewed on a case-by-case basis by Landlord. Graphic representations are not limited in
content although they should incorporate imagery consistent with the store theme or product
line.
b) Wording of signs shall not include the product sold, except as part of Tenant's trade name
or insignia. Tenants can use a variety of fonts but all are subject to Landlord's final approval.
The exclusive use of capital letters is discouraged.
2. One horizontal line of copy is preferred unless Tenant's name is too long to fit. The sign copy
cannot exceed two lines and no more than 80%of store frontage.
3. a) All Tenants' signs shall be no closer than 2'-0"from each tenant's storefront lease line and
maximum height of signage shall not exceed 48"nor be less than 24" in height.
b) The maximum overall height of any double line sign shall be 56" with a minimum of 18"
on each line.
4. Letters to be plastic faced, 3/16" thick "Plexiglas" or approved equal. Channel letter
construction to be prefinished aluminum. No "Channelume" or equal will be permitted.
Jewelite trim to be 1"wide Duranodic Dark Bronze 313.
5. Letter returns to be 5" deep, .040" thick aluminum pre-finished Duranodic Dark Bronze. The
insides of letters shall be painted white. Subject to Landlord's prior written approval, letter
faces may be any color; however, all letter faces must be the same color Plexiglas. National
logos may be a different color subject to Landlord's prior written approval.
6. Letter style to be of Tenant's choice with approval of landlord.
7. Lighting to be 15 M.M. 6500 K. White, 30 MA neon, outline neon (Double Tube).
8. Letters must be pop-riveted to the back. Welding shall not be accepted. Corners and seams to
be caulked to prevent light and water leaks. Bottom of each letter to have '/o" weep hole.
H - 3
9. All letters to be mounted individually directly to fascia using non-corrosive Y2" spacers. All
spacers to be painted to match the fascia. Each letter to be grounded individually using
Greenfield connectors. All letters to meet UL specifications.
10. Illuminated signs must be connected to a 7-day, 24-hour time clock set to the hours specified
by the Shopping Center's management.
11. All electrical signage is to bear the UL label and must comply with all governing city and
neighborhood codes.
12.Any wiring necessary for sign connections shall be concealed either inside the sign letters or
behind the building façade.
13. Sign manufacturers' names or decals shall not be visible unless it is required by code.
E. Miscellaneous Requirements:
1. Permanent door signs are not permitted. Permanently painted window signs are permitted as
follows:
a) Tenant Name:
1. Size— 1 %2" maximum with 24" length
2. Color—White
3. Style— Arial Rounded Bold
b) The Hours of Operation:
I. Size— 1"maximum with 18" length centered at 1 V2'
2. Color—White
3. Style—Arial Rounded Bold
4. Placement—Below Tenant Name
c) Tenant address,which identifies Tenant space
1. Size—6"maximum with maximum 24' length
2. Color—White
3. Style—Arial Rounded Bold
4. Placement—Centered 12"above the front door frame
2. No advertising placards, banners, pennants, names insignia, trademarks or other descriptive
material shall be affixed or maintained upon the glass and supports of the windows and doors,
or within the area that is 24"or less behind the window line.
3. Trailer or mobile type signs will be not permitted.
4. Sign contractors shall repair any damage to building and ground caused by the work done.
H -4
5. Tenant shall be fully responsible for the operations of the Tenant's sign contractor if such
contractor is not the designated sign company for the center.
6. All mounting hardware shall be non-corrosive and neatly concealed from public. All
penetrations of the building structure required for the sign installation shall be sealed neatly in
watertight condition.
7. Note: All signage must conform with local codes.
Upon lease termination, Tenant is responsible for removing all signage installed by Tenant and for
repairing any damage caused by the original installation of the signage or the removal thereof.
H - 5
Exhibit I
SHADOW CREEK RANCH—EXCLUSIVES AND PROHIBITED USES
Updated June 2012
1. Academy - Landlord shall not operate or permit to be operated within the Shopping Center
any other store in the business of selling sporting goods or sports apparel, athletic footwear, or sports
accessories. The incidental sale of such items does not violate the lease. Incidental sale shall mean less
than 10%of gross sales and less than 500 SF of display area.
7.4 Landlord (and Tenant as to the Premises) shall not lease or permit the use of space in the
Shopping Center for the following: (i)any bowling alley; (ii)any arcade; (iii)any tavern or bar,except to
the extent incidental to a restaurant operated primarily for on-premises consumption (i.e., less than 35%
alcohol sales); (iv) any health club, spa or gymnasium, except one (1) health club, spa or gymnasium
containing not more than thirty-three thousand seven hundred (33,700) Leasable Square Feet shall be
permitted if located within the location shown on Exhibit "B", which the sole customer entrance located
no more than fifty feet (50') from the southern demising wall of such space; (v) any night club or
discotheque; (vi) any second hand store; (vii) any mobile home park or trailer court (except that this
provision shall not prohibit the temporary use of construction trailers); (viii) any dumping, disposing,
incineration or reduction of garbage (exclusive of appropriately screened dumpsters located in the rear of
any building);(ix)any fire sale, bankruptcy sale(unless pursuant to a court order),(x)any central laundry
or dry cleaning plant or laundromat(except that this prohibition shall not be applicable to on-site service
provided solely for pickup and delivery by the ultimate consumer); (xi) any automobile, truck, trailer or
R.V. sales, leasing, display or repair; (xii) any skating rink; (xiii)any living quarters, sleeping apartments
or lodging rooms; (xiv) any veterinary hospital, animal raising facilities or pet shop (except that this
prohibition only prohibits a pet shop if it is adjacent to the Premises); (xv) any mortuary; (xvi)any pawn
shop; (xvii) any bingo club; (xviii) any auction house; (xix) any flea market; (xx) any restaurant in any
area of the Shopping Center located west of Business Center Drive (the area which is west of Business
Center Drive is referred to herein as"Shopping Center West")except within(a)the outparcels depicted as
"Pad H", "Pad I', "Pad J", "Pad K", "Pad L", and Pad"M" on Exhibit B, (b)the area depicted on Exhibit B
as the "Permitted Restaurant Area" and ( c) one or more "limited service" restaurants (which shall be no
larger than 2,500 Leasable Square Feet and which shall be prohibited from serving alcohol)located in the
retail building identified on Exhibit B as "Retail"4" (xxi) any movie theater; (xxii) any establishment
selling or exhibiting pornographic materials; (xxiii) any place of religious worship; (xxiv)any training or
educational facility,including but not limited to: beauty schools,barber colleges,reading rooms,places of
instruction or other operations catering primarily to students or trainees rather than to customers; (xxv)
any "dollar store" or "big lots" discount store or other similar operation selling merchandise at less than
full retail price; (xxvi) any tanning salon or nail salon within three hundred feet (300') of the Premises
(except however,a tanning salon or nail salon may be located in the northernmost or next to northernmost
space in Retail #2 which is depicted on Exhibit B); or (xxvii) any use which is a public or private
nuisance.
7.5 Landlord, and its successors and assigns, shall not operate or permit under any
circumstances to be operated within the Shopping Center any other store in the business of selling
sporting goods or sports apparel,athletic footwear or sports accessories. The incidental sale of such items
in connection with the overall business of another operator or tenant shall not be deemed a violation of
this Paragraph 7.5. As used herein, "incidental sale" shall mean less ten percent(10%)of such operator's
or tenant's gross sales and less than five hundred (500) square feet of such operator's or tenant's display
area(inclusive of allocable aisle space).
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17.1 Landlord agrees that, during the term of this Lease, it will not construct or permit to be
constructed, without Tenant's prior written consent any building, sign, tower or other structure or vertical
improvement, or make any other change whatsoever, in the Common Areas depicted on Exhibit B within
Shopping Center West, which consent may be withheld in Tenant's sole discretion with respect to any
such matter affecting the "Main East-West Driveway" within Shopping Center West as depicted on
Exhibit B or the areas north of the Main East-West Driveway, but which consent shall not be
unreasonably withheld, delayed or conditioned with respect to any such matter only affecting areas south
of the Main East-West Driveway. In addition, no buildings or other structures within the Shopping
Center shall be constructed or placed outside of the "Permissible Building Areas" shown on Exhibit B. In
no event shall any improvements exceed(i)twenty-eight feet(28') in height on the outparcels depicted as
"Pad D, Pad E, Pad F, Pad G, Pad H, Pad I, Pad J, Pad K, Pad L and Pad M", as shown on Exhibit B or
(ii)twenty-eight feet (28') in height for the building depicted as "Retail#2" on Exhibit B or (iii)twenty-
eight feet(28')in height, plus architectural elements up to thirty-two feet(32') in height covering no more
than fifteen percent(15%) of linear width of any building facade, for any other building within Shopping
Center West not set back from Broadway at least as far as the Premises. Furthermore, all entrances to
Retail#2 must face east and no single occupant of Retail#2 shall exceed 6,000 Leasable Square Feet(in
the aggregate), except that two (2)tenants no greater than six thousand (6,000) Leasable Square Feet, in
the aggregate, in Retail#2 may face south or southeast. Landlord shall not permit any tenant within the
Shopping Center, other than Tenant and HEB, to conduct a sale or otherwise place inventory,
merchandise or display items on any portion of the Common Areas; provided, however, that(x)sidewalk
sales immediately in front of an occupant's premises shall be permitted if such sales do not interfere with
pedestrian access and (z)any tenant within the Shopping Center, other than Tenant and HEB, of greater
than 25,000 Leasable Square Feet may conduct outside sales in the Common Areas if such sales are
limited to areas comparable in size to Tenant's outside sales area and there is no interference with ingress
and egress.
2. Ashley Furniture - Sec 6(1) - Subject to the provisions of this subsection, Landlord, its
successors and assigns, shall not enter into any lease, sell or permit the use of any space (A) in the
Shopping Center, (B) in the HEB Premises to the extent Landlord, its successors or assigns, now or
hereafter become entitled by any means to consent to or control occupancy thereof, or(C)at any property
Landlord or an Affiliate of Landlord owns adjacent to the Shopping Center, for a store engaged in the
business of Tenant's Normal Use (as defined in Section 1(1) above) from and after the Effective Date
hereof(for purposes of convenience in this paragraph, such use is referred to as sale of"Furniture").
Notwithstanding the foregoing, Tenant agrees that the provision set forth above shall not (y) limit
Landlord's ability to lease, sell or permit the use of any space in the Shopping Center for use by a tenant
selling such items as art,televisions, electronics,appliances, linens or any other items not set forth as part
of Tenant's Normal Use, or(z) prevent Landlord from permitting Furniture sales as an incidental portion
of other retail activity by any tenant of the Shopping Center or the HEB Premises, as applicable(such use
is referred to as "Incidental Furniture Sales"), provided the display or sales space for Furniture does not
exceed five percent (5%) of the total square feet of such tenant; provided, however, that Landlord may
lease space in the Shopping Center to Office Depot, Staples or Office Max notwithstanding the restriction
set forth above so long as(1)their respective business concepts and models(including,without limitation,
product lines and product mix as well as leasehold space requirements) remain materially the same as
their respective business concepts and models as of the Effective Date in Houston, Texas, and (2) the
display or sales space for Incidental Furniture Sales does not exceed twelve percent (12%) of the total
square feet of any such retailer. Tenant acknowledges Landlord may not be entitled at present to enforce
this restriction (i) against HEB, as ground lessee in a prior ground lease from Landlord, and if not so
entitled, this restriction cannot be enforced against, and will not be deemed applicable to, such premises
until such time that Landlord or its successors,assigns or affiliates takes or assumes control by any means
over the HEB Premises or HEB Tract, or (ii) against occupants in the Shopping Center (and other
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successors and assigns)with leases in existence as of the date hereof(for so long as their respective leases
are in effect) (collectively, "Existing Occupants") to the extent such respective leases permit uses that
would otherwise be prohibited by the exclusive use rights herein granted to Tenant, but shall apply to
transactions after the Effective Date (including, without limitation, agreements which increase the space
leased to, or otherwise used by, an Existing Occupant, but excluding any such agreements which the
landlord under the Existing Occupant's lease is obligated to enter into pursuant to the express terms of
such lease as such lease is presently written)which permit the use of space in the Shopping Center, at the
HEB Tract or at any property Landlord or an Affiliate of Landlord owns adjacent to the Shopping Center,
for a store engaged in the business of the sale of Furniture; and provided further that, if a change in use
under an existing lease requires Landlord's approval or consent (whether in connection with a proposed
subletting or lease assignment or otherwise), Landlord shall not grant such approval or consent if it has
the discretion to deny any change or its discretion permits denial due to the existence of Tenant's rights
hereunder.
The operation of(i) a retail store and/or outlet for the sale of(1) furniture (household and office) and
other home and office furnishings and/or accessories, including, without limitation, bedding, headboards,
trundle beds, brass beds, bed frames, bed rails,water beds and component parts for each of the foregoing,
mattresses, mattress covers, box springs and their component parts, plus, without limitation, storage,
office, lunchroom and/or break room, customer accommodation areas, and other uses ancillary thereto
which are customary in retail furniture establishments (such use is herein referred to as "Tenant's
Normal Use").
Landlord shall not during the Lease Term permit the use of any portion of the Shopping Center for the
following uses: bowling alley; "Second hand" store; "Dollar store" or "big lots" discount store or other
similar operation selling merchandise at less than full retail price; "Wholesale" or"factory outlet" store, a
"surplus" store or a store commonly referred to as a"discount house" unless a retailer operating a business
generally considered to be one of the foregoing has been leased space within at least two (2) other first-
class shopping centers of comparable size located in the Houston, Texas area (by way of example only,
the use of space by a retailer such as "Off 5th by Saks" or "CardsMart" would not constitute a prohibited
use); funeral home or mortuary; flea market; tattoo parlor or body piercing; theatre; billiard parlor; adult
video store and/or night club; arcade; tavern or bar (provided, however, the foregoing shall not prohibit
the operation of a restaurant where the sale of alcoholic beverages therein comprises less than 35%of the
annual gross sales of such restaurant); mobile home park or trailer court; skating rink;veterinary hospital;
pawn shop; bingo club; place of religious worship; establishment selling or exhibiting pornographic
materials; liquor store except provided such store doesn't exceed 5,000sf; discount tobacco store; lawn
and garden products; pet store exceeding 3,000sf; assembly halls; schools; museum; amusement park;
dancehall; warehouse; automobile body and repair shop; car wash except that a car wash operated at the
location shown on the Site Plan attached as Exhibit "A" to this Lease as the "HEB OUTPARCEL" shall
be permitted; health club, spa, or gym exceeding 3,000sf except that a health club, spa and gym
containing not more than 33,700 square feet of space shall be permitted if located within the location
shown on the Site Plan attached as Exhibit "A" to this Lease as "PERMITTED HEALTH SPA AREA"
with the sole customer entrance located not more than 50 feet from the southern demising wall of such
space; auction house; living quarters, sleeping apartments,lodging rooms.
3. Burlington Coat Factory - No portion of the Protected Parking Area may be modified
without Tenant's prior consent; except for premises and outparcels in the Shopping Center marked on
Exhibit A of the Lease as Permitted Restaurant Areas, no restaurant or other premises for on-premises
food or beverage consumption may be erected within 150' of any part of the Demised Premises; no
premises in the Shopping Center shall be leased to a baby goods store such as Babies R Us, Buy Buy
Baby Superstore, Geoffrey and USA Baby, or primarily as a linens store such as, but not limited to,
Linens N Things and Bed Bath & Beyond. Height of buildings on Pads H through M as shown on
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Exhibit A of the Lease shall be no more than the heights of the respective buildings on those pads on the
Effective Date.
4. Carl's Jr - So long as no Tenant event of default exists and is continuing beyond any
applicable cure period and Tenant continuously operates its business on the Premises for the Permitted
Use (except to the extent Tenant is closed but rebuilding after a casualty or due to remodeling or other
work being performed on the Premises, or due to any other matter beyond Tenant's reasonable control,
e.g., utility failure, war, etc.), Landlord shall not sell, lease or permit a sublease of space within that
portion of the Center shown as the "Restricted Area" on Exhibit 4.3.1 attached hereto and commonly
referred to as freestanding pads H, I, K, L and M, or any pad hereafter created on that portion of the
Center located west of Business Center Drive (the "Restricted Property")to another party that will use
its premises in the Restricted Property primarily for the sale of hamburger based sandwiches.
5. Cartridge World - Landlord will not lease any space in the Shopping Center to any other
tenant leasing less than 10,000 SF specializing in refilling ink and toner cartridges.
6. Compass Bank - 9.3 Operation of the Development. Landlord shall not allow any use
within the Development and Tenant shall not use or permit the use of the Premises for the following:
funeral establishment; automobile, boat or other motor vehicle sale, leasing, repair or display
establishment or used car lot, including body repair facilities and/or service stations; auction or
bankruptcy sale; pawn shop; outdoor circus, carnival or amusement park; shooting gallery; off-track
betting (provided that state sponsored lottery tickets shall not be prohibited); any theater, amusement
facility and/or facility selling or displaying books, magazines, literature, or videotapes containing Adult
Material ("Adult Material" is defined as any printed and/or pictorial work that appeals to a prurient
interest in sex, is patently offensive according to contemporary community standards, and has no serious
literary, artistic, political,or scientific value, and any printed and/or pictorial work rated X,XX, XXX(or
of a rating assigned to works containing material more sexually explicit than) XX),and, notwithstanding
anything to the contrary contained in this Lease, no material shall be considered Adult Material if: (1)it
is available, or of the type to be available to the community, through a broadcast network (i.e., NBC,
ABC or CBS); or(2)it is such a material that is, or has been in a cinema or theater for public viewing in
the community where the Premises is located;provided,however,that any material rated X,XX,XXX,or
rated for more sexually explicit content than XXX, shall be considered Adult Material and restricted
regardless of its availability to the general public));any residential use, including but not limited to living
quarters, sleeping apartments or lodging rooms; auditorium, meeting hall, ballroom, or other place of
public assembly; unemployment agency, service or commission; gymnasium, health club, dance hall;
cocktail lounge,disco,after-hours club,or night club;bingo or similar games of chance,but lottery tickets
and other items commonly sold in retail establishments may be sold as an incidental part of business;
video game or amusement arcade, except as an incidental part of another primary business; skating or
roller rink; car wash, car repair; second hand store, auction house, or flea market; dry cleaning plant;
storage facility (except as incidental to and in support of retail use); truck rental; outdoor amusement
facility;wholesale and/or distribution operation; sporting event or other sports facility;massage parlor.
7. Denny's - Lessor will not lease any space in the Shopping Center to any other full-service, sit-
down restaurant whose primary business is all-day breakfast service (such as IHOP, Grandy's, Kettle,
Waffle House or similar restaurants excluding La Madeleine and McDonald's).
Shopping Center Exclusives granted are listed on Ex G.
8. Dental Etc.-Provided Tenant is not in default under this Lease and has continuously operated
its business at the Premises, and subject to the provisions of Section 5.1, Landlord will not lease any
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space in the area shown as Retail#4 of the Shopping Center to any other tenant whose business is a dental
office.
9. Dive Zone SCUBA - Landlord shall not lease space within the Shopping Center to another
tenant primarily for providing scuba diving training/instruction.
110. Dream Flowers-Within Retail Bldg 2 depicted on Exhibit J, Landlord shall not lease
space to another florist.
11. Dynamic Fitness Club- So long as Tenant is not in default and is operating its business in
the SC, Landlord shall not lease to another Tenant whose premises exceed 2,500 sf for use as a health
club facility offering weight training, aerobic training and free weights.
12. Eyes & Optics - Provided Tenant is not in default under the Lease and has continuously
operated its business in the Premises, and subject to the provisions of Sec 5.1, Landlord will not lease any
space in the Shopping Center to (i) any other private or franchise optometry or ophthalmology clinic as
tenants in retail centers #1, #2, #3 or #4, or (ii) a dry cleaning plant, nail salon or restaurant directly
adjacent to the Leased Premises for the duration of the Lease.
13. FedEx Kinkos - Subject to the terms and conditions of this Lease, Tenant shall have the
exclusive right upon the Property and within the Shopping Center to provide, offer and/or sell the
following goods and services to the public for remuneration: photocopying (color and black and white
copying) of documents (but not photographs, whether or not digital); large format printing such as
banners and cut vinyl signs; overnight courier services (provided Landlord may locate one [1] United
States Postal Service mailbox at the Shopping Center, but not within 200 feet of any portion of the
Premises); and packaging and shipping services (excluding any gift wrapping, packaging, shipping or
similar services that tenants provide in the normal course of their businesses in shipping customer orders
or purchases) (collectively, "TENANT'S CORE EXCLUSIVE USES"). In addition, subject to the terms and
conditions of this Lease, Tenant shall have the exclusive right to offer the following goods and services to
the public for remuneration: printing of documents (but not photographs, whether or not digital); digital
printing of documents (but not photographs, whether or not digital); digital imaging of documents (but
not photographs, whether or not digital); binding of documents (but not photographs, whether or not
digital); mounting of documents (but not photographs, whether or not digital); laminating of documents
(but not photographs, whether or not digital); blueprinting; desktop publishing; retail art and graphic
design; video teleconferencing; mail and facsimile services, on-site computer rentals (but excluding
rentals of other forms of technology, including, without limitation, gaming systems, phones, and
televisions, or rentals made as a part of any furniture rental operation); on-site computer learning and
training for services in connection with computer software and hardware; internet access; document
exchange; passport photography and film processing; digital photo processing; and word processing and
typing services(collectively "TENANT'S SECONDARY EXCLUSIVE USES" and collectively with Tenant's
Core Exclusive Uses "TENANT'S EXCLUSIVE USES"). Notwithstanding anything contained herein to the
contrary,Tenant agrees that the provisions set forth above relating to Tenant's Exclusive Uses shall not in
any manner whatsoever(a)limit, prohibit or restrict Landlord's ability to lease, sell or permit the use of
any space in the Property for use by a tenant operating as an office supply store(such as, but not limited
to, Office Depot, Office Max or Staples), "specialty" office supply store (such as, but not limited to,
Cartridge World) or store whose primary use is the sale of stationary, (b)limit, prohibit or restrict
Landlord's ability to lease,sell or permit the use of any space in the Property for use by a tenant operating
as a camera or photo store(including, without limitation, Ritz Camera, Wolf Camera or any similar local,
regional or national retailer) or a photography studio, (c)apply to any tenant leasing or occupying 15,000
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square feet or more,regardless of use, (d)limit,prohibit or restrict another tenant from performing any of
such activities in connection with the operation of its business (such as, but not limited to, computer
training for employees or photocopying for business purposes), (e)limit, prohibit or restrict the
placement, use or operation of automated teller or advanced financial services machines or kiosks or (f)
limit,prohibit or restrict Landlord's ability to lease, sell or permit the use of any space in the Property for
use by a tenant for any of Tenant's Secondary Exclusive Uses, goods or services as an "incidental
portion"of total retail activity by any tenant of the Property.
14. H & R Block —Landlord shall not lease space in Retail 1 to another tenant who will use the
space for the preparation of tax returns.
15. HEB - Exclusives. Landlord has not, and so long as this Lease shall be in effect, will not
directly or indirectly lease,rent, occupy or permit to be occupied or used any part of the Shopping Center
(other than the Leased Premises) for the purpose of or in connection with the conduct of a food store
business or food department, or for the storage, display, or sale of(i) edible groceries, including but not
limited to meats, poultry, seafood, produce, frozen foods, dairy products, bakery products, wine, malt,
alcoholic or nonalcoholic beverages, and any other items of food and beverage, (ii) health and beauty
products, including but not limited to hair products and supplies, cosmetics, skin and body products,
vitamins,herbs, and nutritional supplements, (iii)pet food and supplies,(iv)greeting cards, gift wrapping
supplies, and party products, (v) baby apparel, supplies, and furniture, (vi) tobacco products, (vii) lawn
and garden products, (viii) fresh flowers, plants, floral supplies and products, (ix) non-prescription
pharmaceuticals, (x) prescription pharmaceuticals or other products which are required by law to be
dispensed by a registered pharmacist, (xi)gasoline or other fuel for vehicles or(xii) a car wash, or any of
them; provided,however,that this restriction shall have no application to the following:
(a) the Incidental Sale(as defined below) by a store(the principal business of which
is not a food store) of(x) candy, cookies, gum, nuts, dietetic foods, ice cream, popcorn, non-alcoholic
beverages and other items of food(except fresh meat,poultry, seafood and produce),and/or(y)any of the
items set forth in subparagraphs 9(b)(1)(ii)through(ix)above;
(b) the operation of a specialty ice cream and/or frozen yogurt store;
(c) a liquor store on Shopping Center West,provided that the total Floor Area of any
such store does not exceed 5,000 square feet;
(d) the sale of tobacco or tobacco products by a specialty tobacco store such as that
currently operated as "Humidor", but not a store whose principal business is the discount sale of tobacco
products or any such store with a drive-thru facility;
(e) the operation of a specialty coffee store;
(f) one or more restaurant(s) located more than three hundred feet (300') from the
Building; provided that(i)no individual restaurant on each of Pad A and Pad B shall exceed 5,000 square
feet of Floor Area in the aggregate and the front door of any such restaurant shall face State Highway 288,
and (ii) all restaurants in the Shopping Center shall not exceed 75,000 square feet of Floor Area in the
aggregate;provided, however,that all restaurants in Shopping Center East shall not exceed 25,000 square
feet of Floor Area in the aggregate. In any event, any restaurant permitted hereby shall have no more than
twenty percent (20%) of the Gross Sales from such operation derived from the sale of alcoholic
beverages;
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(g) the operation of a diet specialty store such as"WeightWatchers";
(h) the operation of a pet store, provided that the total Floor Area of any such store
does not exceed 3,000 square feet;
(i) the operation of a specialty card store on Shopping Center West such as that
currently operated as "Hallmark"; provided that the total Floor Area of any such store does not exceed
3,000 square feet;
(j) the sale of baby apparel, supplies and/or furniture on Shopping Center West by a
retailer such as that currently operated as "Beall's" or"Marshall's" whose primary business is not the sale
of baby apparel,supplies or furniture;
(k) the sale of lawn and garden products by a hardware store on Shopping Center
West such as that currently operated as "Ace Hardware" or "Tru Value", provided that the total Floor
Area devoted to the sale or display of barbeque grills and related equipment and supplies shall not exceed
the lesser of(i)five percent(5%)of the Floor Area of such premises,or(ii) 1,000 square feet;
(1) the operation of a retail flower store on Shopping Center West, provided that the
total Floor Area of any such store does not exceed 2,500 square feet; and the sale of fresh flowers, plants,
floral supplies and products on Shopping Center West by a nursery such as that currently operated as
"Calloway's", provided that any such nursery may not be closer than 400 feet from the Building as
depicted on the Site Plan; or
(m) the operation of a retail health and beauty products store on Shopping Center
West which sells, by way of example, hair products and supplies, cosmetics, skin and body products,
vitamins,herbs,and nutritional supplements; provided that the total Floor Area of any such store does not
exceed 5,000 square feet of Floor Area.
The stores permitted under subparagraphs(b)through(1)above shall not have a common door or
be operated as a common enterprise, but the foregoing shall not preclude the sale of items permitted in
one of such paragraphs in a store permitted under a different subparagraph, provided that the square foot
area limitations for such store, if any, as set forth above shall not thereby be increased due to any such
sales. Furthermore,any restaurant uses permitted hereby, except for a takeout or delivery pizza store,or a
sandwich shop (such as that currently operated as a Subway or Quizno's) must have as their principal
business the sale of prepared food for on-premises consumption; provided that the Incidental Sale of
prepared food for off-premises consumption(as defined in this paragraph)and the operation of a fast-food
restaurant such as McDonald's, Taco Bell or Wendy's on a Pad shall also be permitted; but it is expressly
understood that the operation of a meals-to-go business such as that currently operated by Eatzi's, Luby's
Meals-to-Go, Dean and Deluca's shall not be permitted. For purposes of this paragraph 9(b)(1), (i)
"Incidental Sale" shall mean ten percent (10%) or less of gross sales from such premises attributable to
the sale of any of the items set forth in paragraph 9(b)(1)(a) above, and (ii) "Incidental Sale of prepared
food for off-premises consumption" shall mean thirty percent (30%) or less of gross sales from such
premises.
(2) Prohibited Office, Other Uses. Landlord will not permit the use of any portion of the
Shopping Center for any purpose other than retail,office and service establishments common to first-class
shopping centers of comparable size located in the Houston, Texas area. Notwithstanding the foregoing,
office use shall not exceed twenty percent (20%) of the Shopping Center buildings. Service
establishments shall include, but not be limited to, the business of financial institutions, investment, real
estate, and insurance offices, cleaners, barber and beauty shops, shoe repair shops, optical stores and
optician offices, and travel agencies. No store occupying more than 20,000 square feet of Floor Area and
primarily engaged in the sale of office products and supplies (such as that currently operated as "Office
Depot" or "Office Max"), and no store occupying more than 25,000 square feet of Floor Area and
primarily engaged in the sale of consumer electronics equipment and supplies (such as that currently
operated as a"Circuit City" or"Best Buy")may be situated on Shopping Center East and in no event shall
any such store be closer than 400 feet from the Building as depicted on the Site Plan.No use or operation
will be made, conducted or permitted on or with respect to all or any part of the Shopping Center, which
is obnoxious to or out of harmony with the development or operation of the Leased Premises, including,
but not limited to, any of the following uses (collectively, the "Prohibited Uses"): any nuisance; any use
which violates laws or requirements of governmental authorities having jurisdiction over the Shopping
Center; the primary use of any building as a warehouse; an assembly hall; distillation operation; a
telecommunications tower; mobile home or trailer park; the drilling for and/or removal of subsurface
substances; kennel or veterinary clinic where animals are kept overnight; school (except that the
foregoing shall not prohibit cooking classes, wine classes or other instructional classes on the Leased
Premises); church; assembly hall; museum; pawn shop; movie theatre; game room or amusement park;
skating rink; pool hall or billiard parlor; bowling alley; dancehall; saloon, cocktail lounge, nightclub or
bar (including a restaurant which derives more than twenty percent (20%) of its annual gross revenues
from the sale of alcoholic beverages); mortuary or funeral home; automobile body and repair shop; flea
market; or adult book store or store selling sexually explicit material.
(3) Adjacent Property of Landlord. If at any time during the Term of this Lease, Landlord,
or any entity in which Landlord owns a legal or beneficial interest or any entity which owns a legal or
beneficial interest in Landlord, now owns or hereafter acquires real property within a one (1) mile radius
of the Shopping Center (the "Adjacent Property"), Landlord covenants and agrees as follows: (i) such
Adjacent Property shall not be used for the operation of(x) a food store business or food department in
excess of 10,000 square feet of Floor Area; (y) a pharmacy or the sale of products which are required by
law to be dispensed by a registered pharmacist; and/or(z)a fuel service station; (ii)any buildings or other
improvements (including pylon or monument signs) constructed on such Adjacent Property shall not
materially interfere with or alter the visibility of and public access to the Leased Premises or the visibility
of any Shopping Center and/or Leased Premises pylon or monument signage permitted under this Lease;
(iii) Landlord shall not place, or allow the placement of, any telecommunications towers on the Adjacent
Property; and (iv) any building constructed on an outparcel (each an "Outparcel") located on such
Adjacent Property and within two hundred fifty feet(250') of the boundary of the Shopping Center shall
additionally comply with the restrictions set forth in paragraph 9(b)(4)below.
(4) Outparcel Restrictions. Landlord covenants and agrees that, in addition to the restrictions
set forth in paragraph 9(b)(3)above, any buildings constructed on an Outparcel shall also be subject to the
following restrictions: (i) no more than one (1) building shall be constructed on any Outparcel; (ii) no
building shall exceed one (1) story in height; (iii) no building shall exceed twenty-eight (28') feet in
height; (iv)the Floor Area of any building constructed on an Outparcel shall be limited to the extent that
the number and size of on-grade automobile parking spaces required by all applicable rules, regulations,
ordinances, and laws can be constructed and maintained within the boundaries of such Outparcel without
reduction in such size and number by virtue of the granting of a variance or special exception to such
rules, regulations, ordinances, or laws by the governmental authority having jurisdiction thereof and
without reliance on any other property; (v) each building shall comply with all governmental rules,
regulations, ordinances, and laws; and(vi) in the event any improvements located on any Outparcel shall
be damaged or destroyed, and the owner of such Outparcel elects not to repair or restore such
improvements, such Outparcel owner shall promptly raze and remove such damaged or destroyed
improvements and either landscape or pave the same, and thereafter maintain such Outparcel (including
concealment of any exposed slab or foundation thereof) in a manner consistent with the Common Areas.
For purposes of this paragraph, the Floor Area of any building constructed on an Outparcel shall also be
8
deemed to include outdoor balconies, patios, or other outdoor areas utilized for retail sales or food or
beverage service (exclusive of areas utilized exclusively for drive through or walk-up take-out food or
beverage service).
16. Hobby Lobby - Exclusive/Restrictions - The Shopping Center will be used solely for
promoting and operating a retail shopping center and LL will not erect or raze any building or permit any
obstruction of any portion of the common areas shown on Exhibit"A"except as reserved and designated
for future expansion. Tenancy is restricted to (a) retail stores selling quality merchandise, (b) financial
institutions, (c)service shops,(d)professional offices,and(e)parking areas. No arts and craft or fabric
store, no bowling alley, second-hand store, funeral home, flea market, tattoo parlor, theater, billiard
parlor, adult video store or book store, or night club is permitted within the shopping center. No package
store selling liquor, beer/wine, health club, exercise studio, spa or other place of recreation or amusement
shall be operated within 300 feet of the Leased Premises. Tenant has the right to abate all rental
obligations during the period of any such violation.
17. Houston Swim Club- Landlord shall not allow another tenant of the Shopping Center to
primarily use the premises for swimming lessons, swimming practice, swimming instruction, swimming
competitions or swimming birthday parties.
18. Jamba Juice-Provided Tenant is not in default under the Lease beyond any applicable cure
period and has continuously operated its business at the Premises, Landlord will not lease any space in the
Shopping Center to any other tenant whose primary business derives greater than twenty-five percent
(25%) of its revenues from the sale of juices and blended juice drinks (including, but not limited to,
smoothies (hot or cold) and juice health supplements. The foregoing exclusive use right granted to
Tenant shall not apply to the sale of milk shakes, malts, blended coffee drinks, tea, ice cream or blended
yogurt drinks or to ice cream retailers (including but not limited to Baskin Robbins, Marble Slab, Cold
Stone Creamery, and Maggie Moo's)or coffee retailers(including, but not limited to, Starbucks, Caribou
Coffee,Coffee Bean&Tea Leaf;the Coffee Beanery,and Seattle's Best).
19. Jenny Craig - So long as no Event of Default exists and is continuing and Tenant
continuously operates its business in the Premises for the Permitted Use, Landlord shall not lease space in
the HEB portion of the Shopping Center, as outlined on Exhibit A-3, to another tenant that will use its
premises in the Shopping Center for a weight loss center (the "Exclusive Use"). Notwithstanding
anything to the contrary herein,Tenant acknowledges and agrees that this provision shall not apply in any
way to (a) to the Medifast Weight Control Center currently operating in the Shopping Center or any
tenant or other occupant leasing or occupying space in the Shopping center under a lease or other
agreement as of the Commencement Date, or to such tenants or occupants successors, assigns, or
subtenants, or (b) any other property owned by Landlord or an affiliate of Landlord other than the
Shopping Center. "Weight loss center"shall be defined as only those businesses that(1)derive more than
ten percent (10%) of their total sales from the sale of pre-packaged food products utilized as part of a
weight-loss program,and(2)such food products are not advertised to the public as a weight loss product.
Examples of tenants that would violate this Exclusive Use provision include, but are not limited to,
Weight Watchers,Quick Weight Loss,and Medifast.
20. Longhorn Steakhouse - so long as (i) no Tenant event of default exists and is continuing
beyond any applicable cure period and (ii) Tenant is operating a steakhouse restaurant at the Premises,
Landlord shall not(a)sell or lease space within the Center to another party that will use its premises in the
Center as a full service sit down restaurant(service by waiter or waitress)serving primarily steaks and/or
prime rib, or(b) sell or lease space within the Center to any of the following operators that are currently
9
known as "Chop House", "Golden Corral", "Logan's Roadhouse", "Lone Star", "Texas Land & Cattle",
"Original Roadhouse Grill", "Outback", "Roadhouse Grill", "Ryan's Steakhouse", "Sagebrush",
"Saltgrass Steakhouse", "Sizzler", "Smokey Bones", "Steak and Ale", "Ted's Montana Grill", "Texas
Roadhouse", "Texas Steakhouse", "Trail Dust Steakhouse", "Tumbleweed", "Fogo de Chao", "Texas De
Brazil"(the"Exclusive Use").
21. Massage Heights - Solely for a lawfully operated massage clinic, performing Swedish,
trigger point, soft and deep tissue, sports, cranial sacral myofascial release, effleurage, friction, petrissage
and reflexology massage, performed by licensed massage therapists only, in conformance with all
applicable governmental, medical, and industry codes laws, rules and regulations; and retail sales
pertaining to massage therapy use and other ancillary purposes associated therewith (no sauna or
whirlpool activities allowed), and for no other purpose. In no event shall Tenant use the Premises as a
"massage parlor"or any other use inconsistent with a family-oriented shopping center.
Exclusive- Section 1.1 p—Provided Tenant is not in default under the Lease(beyond any applicable cure
period) and has continuously operated its business at the Premises, Landlord will not lease any space in
the Shopping Center to any other tenant whose primary use is the sale of professional therapeutic massage
services, which may or may not be membership oriented, provided however, that a medical spa may be
located in the Shopping Center. Landlord shall not allow any other party in the Shopping Center to offer
massage services exceeding 15%of the tenant's gross sales.
22. McDonald's - Sec 4 F — Exclusive: Landlord agrees that no property other than Tenant's
Premises within that portion of the Shopping Center as shown on Ex C shall be used as a restaurant, food
service establishment, drive-in, drive-thru or walk-up eating facility which shall mean an establishment
which offers,on its menu more than(i)2 hamburger based sandwiches,plus a hamburger sandwich based
kids meal(for a total of 3 hamburger sandwich based offerings. Exclusive shall not apply to any grocery
store in the Houston area including HEB. The exclusive excludes restaurants with waiter/waitress service
including Denny's, Red Robin, Logan's, Chili's, Cheddar's Casual Café and Applebee's. The exclusive
prohibits restaurants such as Arby's, Big Boy, Burger Chef, Burger King, Carl's Jr., Culver's, A&W,
Back Yard Burger, Fuddrucker's, Hardee's, In and Out Burgers, Jack in the Box, Steak N Shake, Dairy
Queen,Johnnie Rocket, Rally's, Rax, Sonic,Wendy's,White Castle, Whataburger,and Rocket's.
23. McGrory Orthodontics - Landlord will not lease any space in the Shopping Center to
any other orthodontic office, but does not apply to any uses by a current tenant. Landlord may lease to a
dental or medical office.
24. Men's Wearhouse - Landlord represents and warrants that Tenant has the exclusive right
within the Shopping Center to (a) rent or sell men's formalwear in the Shopping Center; and (b) to sell
Restricted Items; provided however, that other tenants and occupants of the Shopping Center shall be
permitted to sell Restricted Items, in the aggregate, in any manner that does not constitute a Use
Violation. For purposes of this Lease, a "Use Violation" means (a) the use by any tenant or other
occupant of the Shopping Center, including a Temporary Store, of thirty percent (30%) or more of its
sales area for the aggregate sale of Restricted Items,or(b)the rental of men's formalwear by any tenant or
other occupant of the Shopping Center, including a Temporary Store. "Restricted Items" means men's
suits, men's formalwear, men's sports coats, and men's dress slacks. "Temporary Store" means (a) a
store or business in the Shopping Center operated by a tenant(or any assignee or subtenant), licensee, or
occupant under a lease, license or agreement, oral or written, for a term less than one (1) year; or (b) a
store or business that is not expected or required to operate continuously for at least twelve (12)
consecutive months.
10
25. Pacific Dental -Landlord shall not lease space in the Shopping Center East(as depicted on
Exhibit A-2) to another tenant for general or specialty dentistry (including orthodontics, pediatric
dentistry, oral surgery,periodontics,endodontics,and cosmetic surgery)services or operations.
26. Pearl Dynasty - Provided Tenant is not in default under the Lease and has continuously
operated its business in the Premises, and subject to the provisions of Section 5.1, Landlord will not lease
any space in the Shopping Center to any other restaurant on the East side of Business Center Drive whose
primary use is as a Chinese restaurant.
27. Rising Sun Karate-Landlord shall not lease space in the Shopping Centre to another
tenant that will use its premises in the Shopping Center primarily as a karate instructional
facility. Primarily means 25%or more of such tenant's annual gross sales.
28. Roosters Men's Grooming - Provided Tenant is not in default under this Lease and has
continuously operated its business at the Premises, and subject to the provisions of Section 5.1, Landlord
will not lease any space in the Shopping Center to any other upscale men's barbershop offering haircuts
and shaves. Notwithstanding the foregoing, the exclusive use granted herein shall not prohibit Landlord
from leasing premises in the Shopping Center to any discount hair salon such as Super Cuts, full service
salons or spas, hair salons or barbershops catering to children such as Cartoon Cuts or salons catering
primarily to women.
29. Sakura Japanese Steakhouse - Landlord shall not lease space to a restaurant offering
Japanese cuisine, which is sushi and Japanese food prepared on a hibachi grill. Tenant's sole remedies
are to terminate the lease or reduce base rent by 50%.
30. Snip-Its Haircuts for Kids-So long as no Event of Default exists and is continuing and
Tenant continuously operates its business in the Premises for the Permitted Use, Landlord shall not lease
space in the Shopping Center to another tenant that will use its premises in the Shopping Center primarily
for children's haircutting and grooming. Notwithstanding anything to the contrary herein, Tenant
acknowledges and agrees that this provision shall not apply to (a) any tenant or other occupant leasing or
occupying space in the Shopping Center under a lease or other agreement as of the Commencement Date,
including, but not limited to, Supercuts, Roosters, or Aisha's Salon, or to such tenant's or occupant's
successors, assigns,or subtenants,or(b)any other property owned by Landlord or an affiliate of Landlord
other than the Shopping Center.
31. Subway-Landlord shall not lease space within the Restricted Property outlined on Exhibit I of
the Lease to another tenant who will use the premises primarily for the sale of made to order submarine
sandwiches prepared and sold in counter-service setting.
32. Supercuts—Provided Tenant is not in default under this Lease, and is operating its business at
the Premises, Landlord will not lease any space within that portion of the Shopping Center cross hatched
on Exhibit"A-2" attached hereto and incorporated herein to any other tenant operating a hair salon or
barber shop.
33. Taco Cabana - As material inducement for Lessee to enter into this Lease, Lessor and its
respective successors and/or assigns, shall not convey,assign, license,sell or lease any property adjoining
the Premises or within the Shopping Center, whether now owned by, leased by, or hereafter acquired by
Lessor, without first prohibiting the use of such property to be conveyed, assigned, licensed, sold or
11
leased for the operation of a restaurant with gross revenues of 15% or more from the sale of quick-serve
Mexican food, exclusive of taxes, beverages and dairy product sales (the "Restriction"). The Restriction
shall apply only as long as all of the following conditions exist: (i)Lessee is occupying the Premises and
operating as a Mexican food restaurant, and (ii) Lessee is not in default exclusive of any cure period
under this Lease. This provision shall not prohibit (and the Lessor shall not be in default hereunder if
there is)(i)the operation of a Lupe Tortilla restaurant within the Shopping Center; or(ii)a full service sit
down restaurant (as opposed to a "quick serve" Mexican food restaurant) that has less than 35% of its
gross sales from Mexican food; and(iii)this provision shall not apply to HEB Grocery Store or Academy
Sports and Outdoors.
34. Thai Cottage - Provided Tenant is not in default under this Lease and has continuously
operated its business at the Premises, and subject to the provisions of Section 5.1, Landlord will not lease
any space in the Shopping Center to any other person or entity that has a primary use as a Thai restaurant.
35. T-Mobile - Landlord shall not allow any use within that portion of the Shopping Center
labeled as Pad Sites D, E, F and G on the site plan attached hereto and Tenant shall not allow any use in
the Premises which (i) causes or creates a nuisance, (ii) is obnoxious, (iii) generally detracts from the
first-class retail nature of the Shopping Center, or (iv) materially interferes with Tenant's business,
provided, however,that nothing contained in this Lease shall prohibit or in any manner limit Landlord in
leasing premises within the Shopping Center to other tenants for the same as Tenant's Permitted Uses. In
the event that Landlord enters into such a lease or leases, the same shall not constitute a default or
otherwise breach Landlord's obligations under this Lease. Such prohibited uses shall exclude existing
tenants of the Shopping Center as of the date hereof and shall include, but not be limited to, (a)flea
markets,(b)storage of motor vehicles,boats or trailers,(c)automobile repair operations,(d)"head shops"
or other similar type uses, (e)automobile sales,(f)intentionally omitted(g)vocational schools or training
classes unrelated to a primary retail use,(h)manufacturing or assembly facilities,(i)churches or places of
religious congregations,and(j) intentionally omitted.
36. Tutti Frutti - Landlord shall not lease space to another tenant in the portion of the
Shopping Center described on Exhibit J that will use its premises primarily for the sale of self
serve frozen yogurt. Primarily means more than 25%of such tenant's gross sales.
37. VeriZon - Landlord agrees that neither it nor any related or affiliated entity shall enter into any
agreement giving any third party the right, nor permit any third party during the Lease Term the right,to
conduct any business which is the same or substantially the same, in whole or in part, as the furnishing of
wireless and/or wireline communications services (including, without limitation, voice, data, paging, text
messaging, television, video, fiber optic cable and internet access) and the sale and servicing of wireless
and/or wireline communications equipment and related accessories with Pad B of the Shopping Center.
38. Which Wich - Provided Tenant is not in default under the Lease beyond any applicable
notice and cure periods and has continuously operated its business at the Premises, Landlord will not
lease any space within Retail Building#3 of the Shopping Center to any other quick service or fast-casual
restaurant that has a primary permitted use of selling sandwiches. For the purposes of this lease, a quick
service or fast- casual restaurant shall not include any restaurant that utilizes wait staff in serving its
patrons. For purposes of the Lease, a Tenant shall be considered to have a primary purpose of selling
sandwiches only if the sale of sandwiches from such premises exceeds thirty percent (30%) of the gross
sales from such premises. For the purposes of the Lease, "Sandwiches" shall not include burgers made
from any meat, including, but not limited to, beef, poultry, fish, or vegetables, nor shall "Sandwiches"
include pitas,burritos,or wraps made with tortillas or other flat breads.
12
PROHIBITED USES
• Bowling alley
• "Second hand"store
• Funeral home or mortuary
• "Wholesale"or"Factory Outlet"store,a"Surplus"store or a store commonly referred to as a
"Discount house"unless a retailer operating a business generally considered to be one of the foregoing
has been leased space within at least two(2)other first-class shopping centers of comparable size located
in the Houston,TX area. By way of example only,the use of space by a retailer such as"Off Fifth by
Saks"or"CardsMart"would not constitute a prohibited use.
• Flea market
• Tattoo parlor or body piercing
• Theatre
• Billiard parlor
• Adult video store and/or night club
• Tavern or bar(provided,however,the foregoing shall not prohibit the operation of a restaurant
where the sale of alcoholic beverages therein comprises less than 35%of the annual gross sales of such
restaurant).
• Mobile home park or trailer court
• Skating rink
• Veterinary hospital
• Pawn shop
• Bingo club
• Place of religious worship
• "Dollar store"or"Big Lots"discount store or other similar operation selling merchandise at less
than full retail price.
• Establishment selling or exhibiting pornographic materials
• Liquor store except provided such store doesn't exceed 5,000 square feet
• Discount tobacco store
• Lawn and garden products
• Pet store exceeding 3,000 square feet
• Assembly halls
• Schools
• Museum
• Amusement park
• Dance hall
• Warehouse
• Automobile body and repair shop
• Car wash except that a car wash operated at the HEB Outparcel shall be permitted
• Health club, spa,or gym exceeding 3,000 square feet except that a health club, spa and gym
containing not more than 33,700 square feet of space shall be permitted if located within the"Permitted
Health Spa Area"
• Auction house
• Living quarters,sleeping apartments,lodging rooms.
13
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