Preview
FILED
4/6/2022 9:34 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS DEPUTY
CAUSE NO. DC-21-17105
HAMPTON & 12TH, L.P., SUCCESSOR- § IN THE DISTRICT COURT
IN-INTEREST TO HOMER J. RADER, §
JR., d/b/a RADER PROPERTIES, §
§
Plaintiff, §
§ 116th JUDICIAL DISTRICT
vs. §
§
CLIFF’S CHECK CASHING STORES, §
INC., §
§
Defendant. § DALLAS COUNTY, TEXAS
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE COURT:
Plaintiff Hampton & 12th, L.P. (“Landlord”) moves for summary judgment against
Defendant Cliff’s Check Cashing Stores, Inc. (“Tenant”).
INTRODUCTION
1. This case is a breach of a commercial lease. Tenant defaulted under a written
Shopping Center Lease dated October 1, 2001 (“Lease”) (EX. 1-A) with Landlord. Tenant owes
monthly rental obligation, interest, maintenance and other fees to Landlord under that Lease.
Landlord sues in contract. It moves for summary judgment on that claim. Tenant does not, and
cannot, dispute its liability and amounts owed to Landlord under the Lease. Landlord moves for
summary judgment because there are no disputed fact issues on its contract claim.
SUMMARY JUDGMENT STANDARD AND EVIDENCE
2. Under Rule 166a(c), summary judgment is proper to dispose of claims when no
genuine issues of material fact are present and/or the controversy involves the determination of a
question of law only. Landlord relies on the following summary judgment evidence, on file herein,
in addition to all pleadings, papers, and other evidence that is on file with the Court at the time of
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 1
the hearing on its Motion for Summary Judgment, all of which is incorporated herein by reference:
• The Affidavit of Geena C. Piwetz and attached exhibits, true and correct copies of
which are attached hereto as Exhibit “1;”
• The Declaration of James M. McCown and attached exhibits, true and correct
copies of which are attached hereto as Exhibit “2;” and,
• Defendant’s Responses to Plaintiff’s Interrogatories, a true and correct copy of
which is attached hereto as Exhibit “3.”
SUMMARY JUDGMENT GROUNDS
A. Landlord is entitled to summary judgment on its breach of contract claim.
3. The summary judgment evidence conclusively establishes that Landlord is entitled
to judgment as a matter of law against Tenant in the principal amount of $114,703.96. To prove
that Tenant breached the Lease, Landlord must show: i) a valid lease; ii) performance under that
lease by granting possession to the premises; iii) breach by, among other items, the defendant’s
failure to pay rent and other amounts due; and, iv) damages from that breach. AutoSource Dallas,
LLC v. Addison Aero., LLC, 2017 Tex. App. LEXIS 5299, at *5 (Tex. App.--Dallas June 9, 2017,
no pet.). Landlord’s summary judgment proof establishes each of these elements.
4. Landlord is a commercial property owner in Dallas. (EX. 1, ¶ 3). On or about
October 1, 2001, Landlord entered into the written Lease with Tenant. (EX. 1, ¶ 3). Tenant was
obligated to make monthly rental and other payments on the Lease. (EX. 1-A). Tenant defaulted
in making its monthly and other payments no later than August 11, 2019. (EX. 1, ¶ 4). The
principal amount Tenant owes to Landlord for breach of the Lease, as of April 2, 2022, is
$114,703.96. (EX. 1, ¶ 7) (EX. 1-C).
5. Tenant does not dispute these facts. Landlord tendered interrogatories to Tenant
asking, among other items, for Tenant’s theories as to why it does not owe Landlord under the
Lease and disclosure of the amount that Tenant contends is owed. (EX. 3 at 3-6). Tenant provided
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 2
a single conclusion in response to those queries:
RESPONSE: In addition to the reasons laid out in our pleadings, before our original
landlord passed away and the business was inherited by his children, we never
received any "special" charges because the original landlord did not interpret the
lease agreement to include "special" charges like those assessed by his children.
The children sought to charge us for expenses that were traditionally the
responsibility of the landlord and had been interpreted as such since the business
relationship began. They began trying to charge us late fees for items they knew
were in dispute and refused to work with us to resolve the disputes. Because they
then forced us to vacate the premises before the lease was up, we do not believe we
owe money for rent on a building we are not allowed to occupy. Further, we do not
believe the Plaintiffs [sic] have made any good faith efforts to mitigate any of their
claimed damages. Visual inspections of the premises since we were forced to vacate
have not revealed any effort to market the premises or attract new tenants.
(EX. 3 at 3). Tenant incorporated the same response to interrogatories about the “reasons laid out
in” the pleadings, including abandonment, fraud, election of remedies, and waiver. (EX. 3 at 3-
5). The Lease is an integrated, written contract. Tenant’s interpretation, or its theories about the
Landlord’s prior interpretation of that document are irrelevant. Cook Composites v. Westlake
Styrene Corp., 15 S.W.3d 124, 131 (Tex. App.--Houston [14th Dist.] 2000, pet. dism’d) (“in
determining the intention of the parties, we look only within the four corners of the agreement to
see what is actually stated”). Under the Lease’s four corners, Landlord is entitled to payments for
rent, CAM fees, interest, service charges and other items. (See EX. 1, ¶ 8) (EX. 1-C); see also
Cook Composites, 15 S.W.3d at 131 (“We must interpret an unambiguous contract as a matter of
law.”).
6. With respect to Landlord’s duty to mitigate, if pleaded, Tenant bears the burden to
create a fact issue on that defense. Levertov v. Hold Props., Ltd., 2014 Tex. App. LEXIS 2244, at
*11 (Tex. App.--Eastland Feb. 27, 2014, no pet.). Tenant offers no argument, much less evidence,
that Landlord failed to market the premises after Tenant’s default. On the contrary, the record
establishes Landlord’s marketing efforts, and conclusively negates Tenant’s failure to mitigate
claim (assuming one is asserted, which Landlord disputes). (See EX. 1, ¶ 10) (EX. 1-G, H).
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 3
7. In sum, there is no genuine issue of material fact on this record that Tenant breached
the Lease, and that it owes Landlord the principal sum of $114,703.96 for that breach. Landlord
requests summary judgment on its breach of contract claim for this principal amount.
B. Landlord is Entitled to its Attorneys’ Fees as a Matter of Law.
8. Landlord retained Vassar, McCown, Dear & Sicotte, L.L.P. to enforce its rights
against Tenant under the Lease and agreed to pay that firm a reasonable fee for such services. (EX.
1, ¶ 11). Landlord is entitled to its attorneys’ fees incurred in prosecuting this claim against Tenant
under the Lease, including Landlord forcible entry and detainer suit. (EX. 1-A, ¶ 11.4). Landlord
requests its reasonable and necessary attorneys’ fees in the amount of $15,162.50, up to and
through the hearing on this Motion for Summary Judgment. (EX. 2 ¶ 8). Landlord also requests
attorneys’ fees in the amount of $15,000.00 in the event Plaintiff’s Motion for Summary Judgment
is unsuccessfully appealed; and an additional $15,000.00 if a petition for review is filed with the
Texas Supreme Court and Landlord is required to submit any briefing in response to that petition
(EX. 2 ¶ 10) and the judgment is not overturned.
9. Landlord is further entitled to pre-judgment and post-judgment interest on the full
amount of damages under Texas law.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Hampton & 12th, L.P. prays that its
Motion for Summary Judgment be granted, that Plaintiff have and recover judgment against
Defendant in the principal amount set forth above, plus all other damages, attorneys’ fees, and pre-
judgment and post-judgment interest as allowed by law, all costs of court, as well as any and all
other relief, both general and special, at law or in equity, to which it may be entitled.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 4
Respectfully submitted,
VASSAR, MCCOWN, DEAR & SICOTTE, L.L.P.
15851 Dallas Parkway, Suite 525
Addison, Texas 75001
(972) 371-2411
Telecopier - (972) 371-2410
By: /s/ Jim McCown
James M. McCown
State Bar No. 00788002
jmccown@vmdslaw.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was served by
electronic mail on this 6th day of April, 2022 to all counsel of record in this proceeding.
/s/ James M. McCown
James M. McCown
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 5
CAUSE NO. DC-21-17105
HAMPTON & 12TH, L.P., SUCCESSOR- § IN THE DISTRICT COURT
IN-INTEREST TO HOMER J. RADER, §
JR., d/b/a RADER PROPERTIES, §
§
Plaintiff, §
§ 116th JUDICIAL DISTRICT
n. §
§
CLIFF'S CHECK CASIDNG STORES, §
INC., §
§
Defendant. § DALLASCOUNTY,TEXAS
AFFIDAVIT OF GEENA C. PIWETZ
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned notary public appeared Geena C. Piwetz, who being by me
duly sworn, testified on her oath as follows:
1. "My name is Geena C. Piwetz. I am over 18 years of age, have never been convicted
of a felony, and I am fully competent and authorized to make this Affidavit. I have personal
knowledge of the facts stated herein and they are true and correct.
2. I am the Chief Financial Officer for RP Texas Mgt, LLC ("RP Texas"). RP Texas
manages and leases the Property, as defined below, for PlaintiffHampton & 12th, L.P. ("Landlord")
pursuant to a contract between RP Texas and Landlord.
3. Landlord currently owns, and at all times pertinent to the facts of this lawsuit, has
owned either through itself or its predecessor in interest, the real property commonly described as
318 S. Hampton Road, Dallas, Texas 75208 ("Property"). Landlord leased the Property to
Defendant Cliff's Check Cashing Stores, Inc. ("Tenant"), pursuant to a written Shopping Center
Lease dated October 1, 2001 , as amended and extended ("Lease"). A true and correct copy of the
AFFIDAVIT OF GEENA C. PIWETZ - Page J
EX. 1
Lease is attached hereto as Exhibit A.
4. Tenant breached the Lease before August 2, 2019 for failure to pay Landlord for
amounts due under the Lease. Landlord notified Tenant by written Jetter dated August 2, 20 19 of
those breaches and demanded payment for those amounts. A true and correct of Landlord ' s August
2, 2019 demand letter is attached hereto as Exhibit B. As shown in Exhibit B, Landlord provided
Tenant with nine (9) days' notice to cure Tenant's breaches under the Lease. Tenant did not tender
payment in full to Landlord, and did not remedy or cure those breaches listed in Exhibit B, by
August 11 ,20 19, i.e., within nine (9) days ofthe letter's date. Tenant was therefore in default of
the Lease no later than August 11, 2019.
5. Landlord thereafter applied Tenant's Security Deposit, in the amount of$2,826.90,
to Tenant's outstanding monetary obligations in accordance with Paragraph 3.6 of Part Three of
the Lease. Tenant fai led to restore the full amount of its Security Deposit, as Paragraph 3.6 of Part
Three of the Lease requires. Tenant still owes Landlord for the amount of this Security Deposit,
as shown in Exhibit C, referenced below. Tenant also owed Landlord since that time, and
continues to owe, Landlord Monthly Rental, Service Charges, Interest and other charges.
6. Due to Tenant's multiple defaults under the Lease, Landlord terminated Tenant's
possession under the Lease and filed legal action on or about March 30, 2021 to remove Tenant
from the Property. The Justice of the Peace Court entered a Judgment for Forcible Detainer on or
about April 12, 2021, granting Landlord possession of the Property. Tenant vacated the Property
shortly thereafter, and, in any event, no later than April 21, 2021. By that legal action, Tenant' s
possession rights were terminated without termination of the Lease, as allowed by Paragraph
11.2.2 of Part Three of the Lease. Tenant continues, under that paragraph, to be liable to Landlord
for rent and other payment obligations and expenses during the Lease term.
AFFIDAVIT OF GEENA C. PIWETZ- Page 2
EX. 1
7. Tenant owes Landlord Monthly Rental , Service Charges, Interest and other charges
under the Lease, as set forth on Exhibit C and explained below, for a total amount of$114,703 .96
in principal damages as of April 2, 2022. An itemization of those charges and amounts is contained
in the statement, attached hereto as Exhibit C. Exhibit C is a true and correct itemization of all
principal amounts that Tenant owes to Landlord under the Lease as of April 2, 2022. Landlord
seeks to recover those principal amounts from Tenant in this lawsuit.
8. Exhibit C contains charges for the following codes, as stated in that document, in
the respective amounts set forth in Exhibit C:
•"CAM" is common area maintenance costs, i.e., Tenant's Pro Rata Share of Operating
Costs as defined in the Lease and estimated in accordance with the Lease;
• " INT" is interest accrued on Tenant's payment obligations as described in the Lease. A
true and correct copy of the calculation of Tenant's interest charges is included in Exhibit
D, attached hereto;
• "RNT" is Tenant's monthly installment of rent, which is net rental as defined in the Lease,
as li sted in Exhibit C;
•"MIS" includes the Service Charges defined in paragraphs 10 of Part One of the Lease
and 3.7 of Part Three of the Lease. A true and correct copy of the calculation ofTenant's
Services Charges is included in Exhibit 0 ;
•"OPC" are reconciliations of Tenant's 2019 and 2020 actual share of Operating Costs in
excess of(or less than) Tenant' s 20 19 and 2020 estimated share of Operating Costs, as
described in Paragraph 3.2.5 of Part Three of the Lease. A true and correct copy of the
calculation ofTenant's Operating Costs reconciliations are included in Exhibit E, attached
hereto;
•"TBB" is the abbreviation for Tenant billbacks - costs billed back to Tenant as described
in the Lease. A true and correct copy of the supporting documents and invoices for costs
billed back to Tenant are included in Exhibit F, attached hereto.
• Each of the foregoing categories are, again, summarized, and totaled in the attached
Exhibit C.
9. Landlord will continue to suffer additional damages after April 2, 2022, and
reserves and does not waive its right to seek those damages in the future.
AFFIDAVIT OF GEENA C. PIWETZ - Page 3
EX. 1
10. Landlord's commercial real estate broker, Venture Commercial Real Estate
("Venture"), marketed the Property for re-letting shortly after Tenants eviction from the Property
including, showing the Property to at least one potential new tenant in June, 2021. A true and
correct copy of the leasing flyer that Venture prepared and distributed for the Shopping Center
after Tenanfs vacating of the Property is attached hereto as Exhibit G. Attached hereto as Exhibit
H are true and correct copies of pictures of the Property, the first taken on July 7, 202 1, and the
second taken on March 28, 2022, showing Venture's "For Lease" signage in the Property's
window. Venture is still marketing the Property for lease as ofthe date of this Affidavit. Landlord
is uti lizing the same efforts to market the Property that it does for all other spaces in the Shopping
Center in which the Property is located.
11. Landlord retained Vassar, McCown, Dear & Sicotte, L.L.P. to enforce its rights
against Tenant and agreed to pay Vassar, McCown, Dear & Sicotte, L.L.P. a reasonable fee for
such services. Landlord seeks to recover its reasonable and necessary attorneys ' fees owed to
Vassar, McCown, Dear & Sicotte, L.L.P. from Tenant in this lawsuit pursuant to paragraph 11.4
of Part Three ofthe Lease and Texas law.
12. I am a custodian of records for RP Texas, on Landlord's behalf. Exhi bits A thru F
are true and correct copy of the originals. RP Texas keeps these documents in the ordinary course
of business, or, with respect to Exhibit C, were generated in the ordinary course of business from
RP Texas' business records. They are exact duplicates of the originals. Exhibits A thru F, and the
information contained therein, are from RP Texas' s records for the Property. RP Texas keeps and
maintains Exhibits A thru F in the regular course of its business, and it is in Landlord's regular
course of business for an employee or contractor, i.e., RP Texas, with knowledge of the act, event,
condition, opinion or diagnosis recorded to make the records or to transmit the information thereof
AFFIDAVIT OF GEENA C. P IWETZ - Page 4
EX. 1
to be included in such records, and the records were made at or near the time or reasonably soon
thereafter, or, with respect to Exhibit C, generated from such records.
FURTHER, AFFIANT SAYETH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME on this 5~ay of April, 2022, to
certify which witness my hand and seal of~---- !:n A. '-
~~%~~:;%,;.. RAMONA NORRIS ~ f____jy vv.,.....-
§f:'~--~~Notary Public, State of Texas Notary Public in and for the State
;").·-.:~.-~:;~ Comm . Expires 08-16-2022
-::.;~·m;~,~ Notary 10 13168499-8 ofTexas
My Commission Expires: ~a mo,vA (\.}<.0 (2_(0; \
Typed or Printed Name ofNotary Public
A FF1DAVIT O F GEE NA C. PI WETZ- Page 5
EX. 1
SHOPPING CENTER LEASE
In consideration of the mutual covenants and upon the terms and conditions set forth in
Parts One, Two and Three of this Shopping Center Lease and other attachments and exhibits
thereto (collectively, "Lease"), HOMER J. RADER, JR., an individual doing business as "Rader
Properties" ("Landlord"), hereby leases to the Tenant named below and Tenant hereby leases
from Landlord, certain Demised Premises described below.
PART ONE
BASIC LEASE PROVISIONS
1. TENANT: Cliff's Check Cashing Stores, Inc., a Corporation organized under the laws
of the State of Texas, doing business as "Cliffs Check Cashing".
2. SHOPPING CENTER: Hampton Village, a shopping center constructed on that certain
tract or parcel of land described in Exhibit A hereof.
3. DEMISED PREMISES: Retail space delineated on the site plan attached hereto as
Exhibit B, containing approximately 2480 square feet, located in the Shopping Center, and
known locally as 212._ S. Hampton Rd., Dallas, Texas.
4. TERM: Beginning on the earlier of (i) 90 calendar days after the Date of Completion (as
defined on attached Exhibit E) of the shell of the Demised Premises and the Additional
Improvements; or (ii) the date on which Tenant opens Tenant's operation in the Demised
Premises for business with the public ("Commencement Date") and ending on the 3 lst day of
December, 2006 ("Expiration Date").
5. TOTAL INITIAL MONTHLY INSTALLMENT OF RENT: $3086.57
5.1 Portion of initial Monthly Rental which is net rental: $2712.50
5.2 Portion of initial Monthly Rental allocated to Operating Costs (as defined in
Paragraph 6 below): $374.07
5.3 Monthly Rental will be due and payable on or before the first day of each
calendar month.
6. TENANT'S SHARE OF CERTAIN COSTS:
6.1 Operating Costs: Determined annually by the difference between (i) the
Premises' Pro Rata Share of Operating Costs and (ii) the product obtained by multiplying an
"Expense Stop" of $1.81 per square foot times the number of square feet space in the Demised
Premises. Tenant's Pro Rata Share of Operating Costs will be estimated by Landlord and
payable by Tenant in advance on a monthly basis.
6.2 Electricity: By Tenant
6.3 Water and Sewage: By Tenant
6.4 Gas: By Tenant
7. PERCENTAGERENT: NONE
8. PREPAID RENT: $3086.57 applicable to the first full month of the Term.
9. SECURITY DEPOSIT: $3086.57.
10. SERVICE CHARGES:
10.1 Late Payment Charge: An amount equal to $0.10 for every $1.00 which is
past due for 9 days and an additional $0.15 for every $1.00 which is past due for 29 days or more,
for a total of $0.25.
10.2 Returned Checks: $50.00
11. PREMISE USE: The Premises shall be used for the following purposes: check cashing,
money order sales, wire transfer service, lottery sales, pager, cellular, and all telecommunications
Rader/Cliffs Check Cashing EX. A
Shopping Center Lease (9/21/01) 1 Part One
Rader 001
. ~
products, loans, postal services, payment collection services, income tax preparation and
electronic tax filing, jewelry sales, vending machines (soft drinks, candy), any other products or
services related to check cashing and NO OTHER USES.
12. TENANT'S MINIMUM INSURANCE REQUIREMENTS:
12.1 Special form (formerly "all risks"): Full replacement cost
12.2 Commercial general liability: $1,000,000 combined single limit
12.3 Workers' Compensation: Statutory Amount
12.4 Employer's Liability: $100,000
12.5 Business income: $75,000.00
13. ADDRESSES FOR NOTICES AND PAYMENT OF RENT:
TO TENANT: TO LANDLORD:
Cliffs Check Cashing Stores, Inc. Homer J. Rader, Jr.
PO Box 700115 12342 Inwood Road
Dallas, Texas 75370 Dallas, TX 75244
972 466 2332 phone
972 466 4495 fax
14. BROKER: NONE
15. ATTACHMENTS AND EXHIBITS: The Lease consists of the following components:
Part One: Basic Lease Provisions
Part Two: Special Lease Provisions
Part Three: General Lease Provisions
Exhibit A: Legal Description of Shopping Center
Exhibit B: Site Plan of Shopping Center
Exhibit C: Rules and Regulations
Exhibit D: Sign Criteria
Exhibit E: Additional Improvements
ExhibitF: Renewal Option
Exhibit G: Certificate of Acceptance
Exhibit H: Ladder Signage
Exhibit I: Ladder Signage
16. INCORPORATION OF OTHER PROVISIONS: All of the provisions, covenants and
conditions set forth in Part Two and Part Three of this Lease and all exhibits and attachments
described in paragraph 15 of this Part One are by this reference incorporated into this Part One as
fully as if the same were set forth at length in Part One. Each reference in Part Two, Part Three
and other exhibits and attachments to any provision in Part One will be construed to incorporate
all of the terms provided under such provision.
This Lease has been executed by Landlord and Tenant as of a~ / '2001.
LANDLORD: TENANT:
CLIFF'S CHECK CASHING STORES, INC.
By:
Title:
Rader/Cliffs Check Cashing EX. A
Shopping Center Lease (9/21/01) 2
Rader 002
PART TWO
SPECIAL LEASE PROVISIONS
1. Landlord represents that upon the Commencement Date of this Lease the heating system
and the air conditioning equipment at the Demised Premises existing on the date of this Lease or
to be provided by Landlord, will be in operating condition; provided, however, Landlord shall
not be obligated to repair or replace any such items unless Tenant notifies Landlord in writing of
the need of any such repairs or replacements before the first anniversary of the Commencement
Date. Except for any needed repairs or replacements specified in a written notice delivered by
Tenant to Landlord before the first anniversary of the Commencement Date, Tenant shall be
responsible for all repairs and replacements to the heating system and the air conditioning
equipment at the Demised Premises. Landlord's limited obligation to repair or replace the
heating system and the air conditioning equipment described in this paragraph does not include
the replacement of filters.
2. Tenant will be responsible for obtaining all city permits for finishout of Tenant's portion
of the Demised Premises and the certificate of occupancy. All work must be done in a good and
workmanlike manner subject to Landlord's inspection. All contractors and subcontractors
involved with Tenant's finishout work must provide Landlord with certificates of insurance
showing commercial general liability coverage in an amount satisfactory to Landlord, containing
a waiver of subrogation and showing Landlord as additional insured. The certificates must be
delivered to Landlord before any work begins.
3. So long as Tenant is not in default of any term or condition of the Lease, Landlord agrees
not to lease space in the Shopping Center to a tenant who engages in the business of check
cashing or wire transfer (transfer of monetary funds) for a fee. This exclusive DOES NOT
APPLY to existing Tenants who now offer or who have the right under their leases to offer such
services.
4. If the Date of Completion (as defined in attached Exhibit E) has not occurred within six
months after the date of execution of this Lease, Tenant shall have the right to terminate this
Lease at any time thereafter before the occurrence of the Date of Completion, and if Tenant elects
to so terminate this Lease, all amounts deposited by Tenant with Landlord promptly shall be
refunded to Tenant by Landlord.
5. Within twelve (12) months of the Commencement Date of the Lease, Landlord agrees to
construct either (i) an approximately 400 square foot, double face, tenant ladder sign, or (ii) a
square, quad face, tenant ladder sign. The location of Tenant's identification sign on each of the
sign possibilities is designated on the attached Exhibits H and I respectively.
6. Landlord agrees that the audit referred to in Paragraph 5.5.6, Part Three, is an
environmental audit only and not a financial audit.
7. Notwithstanding the prohibitions contained in Paragraph 5.7, Part Three, Landlord agrees
that Tenant may place tasteful signs in the windows of the Demised Premises advertising check
cashing, money orders and wire transfer services.
8. Landlord agrees to give Tenant 24 hours advance notice of any inspection by Landlord
pursuant to Paragraph 5.8, Part Three, and Landlord agrees that Landlord will not place any signs
in the windows of the Demised Premises pursuant to Paragraph 5.8, Part Three, if Tenant has
exercised a renewal option or if Landlord and Tenant are negotiating a renewal of the term of this
Lease.
9. Landlord agrees that all security equipment and teller windows placed in the Demised
Premises by Tenant are trade fixtures which may be removed from the Demised Premises in
compliance with Paragraph 6.4.1, Part Three.
10. Landlord agrees that Landlord will not, without Tenant's prior written consent, disclose
any of the terms of this Lease or of any future modification of this Lease or of any waiver by
Tenant of Landlord's obligations under this Lease to any other tenant or prospective tenant or
other third party; provided, however, that this provision shall not preclude disclosures to
Landlord's attorneys or accountants as reasonably required to permit Landlord to enforce this
Lease or to prepare tax returns or other reports required by law, or to prospective lenders or
purchasers of the Shopping Center.
EX. A
Rader/Cliffs Check Cashing
Shopping Center Lease (9/21/01) 1 Rader 003
PART THREE
GENERAL LEASE PROVISIONS
1. DEMISED PREMISES.
1.1 Area of Demised Premises. The area of the Demised Premises shall be the
interior area measured in square feet from the outside of any exterior walls (typically the front
and back walls) and from the centerline of any interior demising walls (typically side walls).
1.2 Ceilings, Walls, Floors. Tenant acknowledges that pipes, ducts, conduits,
wires and equipment serving other parts of the Shopping Center may be located above acoustical
ceiling surfaces, below floor surfaces or within walls of the Demises Premises.
1.3 Common Areas. "Common Areas" will mean all areas, spaces, facilities, and
equipment in the Shopping Center made available by Landlord for the non-exclusive, common
and joint use of Landlord, Tenant and other occupants and customers of the Shopping Center,
including, without limitation, parking lots, sidewalks and alleys. Tenant and Tenant's
employees, agents, servants, customers and other invitees shall have the non-exclusive right to
use the Common Areas provided by Landlord from time to time for use in connection with the
Demised Premises, such use to be in common with Landlord, other tenants and such other
tenants' employees, agents, servants, customers and other invitees, and other parties permitted by
Landlord to use the same. In no event shall Tenant or Tenant's employees, agents, servants,
customers or invitees use the parking lot in the Shopping Center for auto repair, overnight
storage of any vehicle or for the display of any vehicle or other item advertised for sale. Such
Common Areas shall at all times be under the exclusive control and management of Landlord
and may be rearranged, modified and changed from time to time at Landlord's sole discretion.
Landlord shall be responsible for the operation and maintenance of the Common Areas, and the
manner of operation and maintenance and expenditures therefor shall be in the sole discretion of
Landlord.
1.4 Quiet Enjoyment. Upon payment of the rents herein reserved, and
performance of the terms, conditions, covenants and agreements herein contained, Tenant shall
peaceably and quietly have, hold and enjoy the Demised Premises during the full term of this
Lease and any extension or renewal thereof against any party claiming by or through Landlord;
provided, however, that Tenant accepts this Lease subject and subordinate to any recorded
mortgage, deed of trust or other lien or matter of title presently encumbering the Demised
Premises.
1.5 Parking. If Landlord designates an employee parking area, Tenant and
Tenant's employees shall not park motor vehicles or bicycles in parking areas provided for
customers. In no event shall Tenant or Tenant's employees park motor vehicles or bicycles at the
rear of the Demised Premises where there is a rear entrance. Tenant agrees that upon written
notice from Landlord Tenant will furnish Landlord with the state automobile license numbers
assigned to Tenant's motor vehicles and the motor vehicles of all Tenant's employees and of any
changes to such list. In the event that Tenant or Tenant's employees park in other than
designated employee parking areas, Landlord shall have the right to charge Tenant Ten Dollars
($10.00) per day for each day or partial day each such vehicle is parked in the improper areas
and/or to have said vehicle towed away from such areas at Tenant's expense.
2. TERM.
2.1 Term. The term of this Lease will begin on the Commencement Date set forth
in item 4 of Part One, Basic Lease Provisions, and end on the Expiration Date set forth in item 4
of Part One, Basic Lease Provisions, unless sooner terminated in accordance with the provisions
of this Lease. After the Commencement Date, Tenant upon the request of Landlord promptly
will sign and deliver a certificate in the form attached hereto as Exhibit G.
2.2 Delay in Commencement. If Landlord fails for any reason to deliver
possession of the Demised Premises to Tenant on any contemplated delivery date set forth in
Rader/Cliffs Check Cashing EX. A
Shopping Center Lease (9/21/01) 1
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item 4 of Part One, Basic Lease Provisions, (i) Landlord will not be liable to Tenant for any
direct or consequential loss resulting to Tenant from the delay, (ii) the validity of this Lease will
not be affected, and (iii) the term of this Lease will not be extended.
2.3 Effective Date of Lease. Although rental and other monetary obligations shall
begin to accrue only upon the Commencement Date, all other terms of this Lease are effective
upon the execution hereof.
2.4 Holding Over. Should Tenant, or any of Tenant's successors in interest, fail
to surrender the Demised Premises, or any part thereof, on the expiration of the term of this
Lease or any earlier termination of this Lease, such holding over shall constitute a tenancy at
sufferance only, subject to all the terms and provisions of this Lease, terminable at any time by
Landlord at a daily rental of the greater of (i) one-thirtieth (1/30th) of one hundred fifty percent
(150%) of the Monthly Rental paid by Tenant in the last month of the term of this Lease, or
(ii) the daily fair market rental value of the Demised Premises. Tenant also shall be liable for any
loss or damage incurred by Landlord arising or resulting from Tenant's failure to timely
surrender the Demised Premises to Landlord, including, without limitation, loss or damage from
Landlord's inability to deliver the Demised Premises to a new tenant.
3. RENTAL/ADDITIONAL RENTAL.
3.1 Monthly Rent. Tenant agrees to pay to Landlord, without offset or deduction,
rent ("Monthly Rental") for the Demised Premises as set forth in item 5 of Part One, Basic Lease
Provisions and the Special Lease Provisions, if applicable, in advance on the first day of each
calendar month, in lawful money of the United States. The first installment of Monthly Rental
shall be due on the Commencement Date. In the event the term hereof shall commence or end
during a calendar month, the Monthly Rental for any fractional calendar month following the
Commencement Date or preceding the Expiration Date of this Lease shall be prorated on a daily
basis.
3.2 Tenant's Share of Operating Costs. In addition to all other sums due under
this Lease, Tenant will pay to Landlord in the manner and at the time set forth in this Paragraph 3
any increases in the Premises' Pro Rata Share of Operating Costs over an amount equal to the
product of the Expense Stop set forth in item 6.1 of Part One, Basic Lease Provisions multiplied
by the number of square feet in the Demised Premises.
3.2.1 As used in this Lease, the term "Operating Costs" includes: (i) all ad valorem
and personal property taxes payable by Landlord with respect to the Shopping Center (including
the Common Areas); (ii) the costs of all insurance (property, liability, rental or otherwise) paid by
Landlord with respect to the Shopping Center (including the Common Areas); (iii) all utility
charges paid by Landlord with respect to the Shopping Center (including the Common Areas);
(iv) the costs incurred by Landlord in performing all of Landlord's maintenance, repair or
replacement obligations with respect to the Shopping Center; (v) all costs incurred by Landlord
in maintaining, repairing and making replacements and improvements to the Common Areas;
(vi) garbage collection fees paid by Landlord with respect to the Shopping Center; (vii) any
management fee paid to property manager(s) other than Landlord's employee(s) or a reasonable
imputed charge for management of the Shopping Center by Landlord's personnel at competitive
rates; (viii) the costs incurred by Landlord for security; and (ix) all other costs incurred by
Landlord in operating the Shopping Center (including the Common Areas) except for those costs
which by definition are excluded. The following costs are by definition excluded from Operating
Costs: (i) mortgage costs of Landlord with respect to the Shopping Center; (ii) costs of
construction of improvements within an individual tenant space in connection with new leases in
the Shopping Center; (iii) brokerage, advertising and similar costs incurred by Landlord in
connection with leasing space in the Shopping Center; and (iv) general overhead costs of
Landlord except for the imputed management charge included in Operating Costs.
3.2.2 "Premises' Pro Rata Share of Operating Costs" will be computed by
multiplying the total amount of Operating Costs for the Shopping Center by a percentage derived
from the fraction, the numerator of which fraction is the rentable area of the Demised Premises
and the denominator of which fraction is the total rentable area in the Shopping Center.
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Shopping Center Lease (9/21/01) 2
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3.2.3 Tenant's share of Operating Costs for the remainder of the first calendar year
(whether full or partial) and for each subsequent calendar year of the term will be estimated by
Landlord, and notice of such estimated amounts will be given to Tenant prior to the
Commencement Date or the beginning of each calendar year, as the case may be. For the partial
calendar year, if any, after Commencement Date, Tenant will pay to Landlord each month, at the
same time the monthly installment of Monthly Rental is due, an amount equal to Tenant's
estimated share of Operating Costs for the remainder of the calendar year divided by the number
of months remaining in the calendar year. For each full calendar year of the term, Tenant will
pay to Landlord each month, at the same time the monthly installment of Monthly Rental is due,
an amount equal to one-twelfth (1/12) of Tenant's estimated share of Operating Costs due for the
calendar year. If the Expiration Date does not occur on December 31, for the partial calendar
year preceding Expiration Date, Tenant will pay to Landlord, each month, at the same time the
monthly installment of Monthly Rental is due, an amount equal to the amount of such Tenant's
estimated share of Operating Costs for the partial calendar year divided by the number of full
calendar months of the partial calendar year.
3 .2.4 At any time and from time to time during the term, Landlord will have the
right, by notice to Tenant, to change the monthly amount then payable by Tenant for Tenant's
estimated share of Operating Costs to reflect more accurately, in the reasonable judgment of
Landlord, Tenant's actual share of Operating Costs for the then current calendar year. Tenant
will begin paying the revised estimated amount together with the next monthly payment of
Monthly Rental due after receipt by Tenant of Landlord's notice.
3.2.5 On or before April 1 of each calendar year, or within a reasonable period of
time thereafter, Landlord will prepare and deliver to Tenant a statement setting forth the
calculation of Tenant's actual share of Operating Costs for the previous calendar year. Within
ten (10) days after receipt of the statement of Tenant's actual share of Operating Costs, Tenant
will pay to Landlord, or Landlord will credit against the next rental or other payment or payments
due from Tenant, as the case may be, the difference between Tenant's actual share of Operating
Costs for the preceding calendar year and Tenant's estimated share of Operating Costs actually
paid by Tenant during such year.
3.2.6 If the term will expire or this Lease has been terminated prior to a final
determination of Tenant's actual share of Operating Costs, the amount of adjustment between
Tenant's estimated share and Tenants actual share of Operating Costs payable for the preceding
calendar year and/or the final partial calendar year of the term will be estimated by Landlord
based upon the best data available to Landlord at the time of the estimate. Prior to the Expiration
Date or as soon as possible after an earlier termination date, an adjustment will be made between
Landlord and Tenant. The obligations set forth in the preceding sentence will survive the
Expiration Date or earlier termination of this Lease.
3 .2. 7 If during the term of this Lease any taxes or other charges shall be levied or
assessed against the Demised Premises or charged to Landlord either as a rent tax or in lieu of or
as a substitute for all or part of any present or contemplated ad valorem taxes on the Demised
Premises or the Shopping Center, then for the purposes of this Lease such levies and assessments
shall be treated the same as ad valorem taxes on the Demised Premises or the Shopping Center,
as the case may be.
3.3 Percentage Rental. INTENTIONALLY DELETED
3.4 Utility Services. Tenant shall pay the cost of all utility services, including, but
not limited to, initial connection charges, all charges for gas, water, sewer, telephone and
electricity used on the Demised Premises, and for all electric light lamps and tubes. In addition,
Tenant hereby acknowledges and agrees that it is Tenant's obligation to contact such utility
companies for such initial connection to the Demised Premises. There shall be no abatement of
rental by reason of any interruption in utility services, and Landlord shall not be liable for any
interruption in utility service.
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Shopping Center Lease (9/21/01) 3
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3.5 Prepaid Rent. Concurrently with Tenant's execution of this Lease, Tenant
will pay to Landlord the sum specified in item 8 of Part One, Basic Lease Provisions as "Prepaid
Rent", which sum will be credited toward Monthly Rental in the manner set forth in item 8 of
Part One, Basic Lease Provisions.
3.6 Security Deposit. Tenant has deposited with Landlord, upon Tenant's
execution of this Lease, the amount set forth in item 9, Part One, Basic Lease Provisions as a
Security Deposit. The Security Deposit shall be held by Landlord without interest as security for
the performance by Tenant of Tenant's covenants and obligations under this Lease. The Security
Deposit is not an advance payment of Monthly Rental or a measure ofliquidated damages in case
of default by Tenant. Upon the occurrence of any event of default, Landlord may, from time to
time, without prejudice to any other remedy provided herein or provided by law, use the Security
Deposit to the extent necessary to make good any arrearages of rent and any other damage,
injury, expense or liability caused to Landlord by such event of default. Following any such
application of the Security Deposit, Tenant shall pay to Landlord, on demand, the amount so
applied in order to restore the Security Deposit to its required amount. If Tenant is not then in
default hereunder, any remaining balance of such Security Deposit shall be returned by Landlord
to Tenant upon expiration or termination of this Lease; provided that Landlord, at Landlord's
option, may deduct from the Security Deposit upon termination or expiration of this Lease the
current calendar year's Operating Costs reimbursement estimated as set forth in Paragraph 3.2.6
above. If the Monthly Rental is increased during the term of this Lease, Tenant shall deliver to
Landlord the amount necessary to increase the Security Deposit to an amount equal to the then
current Monthly Rental within thirty (30) days after the increase in Monthly Rental is effective,
and Tenant's failure to do so shall be an event of default under this Lease.
3.7 Service Charges. In the event any installment of Monthly Rental is not
received by the close of Landlord's business on the ninth (9th) day following the due date thereof
for any reason whatsoever, such installment of Monthly Rental shall be increased by the amount
set forth in item 10.1 of Part One, Basic Lease Provisions as a "Service Charge". If any
installment of Monthly Rental is not received by the close of Landlord's business on the
twenty-ninth (29th) day following its due date, such installment shall be further increased by the
amount set forth in item 10.1 of Part One, Basic Lease Provisions as a Service Charge. Such
Service Charges shall be additional rental hereunder, shall not be considered as a deduction from
Percentage Rental (if applicable) and shall be due and payable on demand. The Service Charges
are agreed by Landlord and Tenant to be a reasonable estimate of the extra administrative
expenses incurred by Landlord in handling such delinquencies.
3.8 Returned Check Charge. In the event Landlord receives a check from Tenant
which is not honored by Tenant's bank, such check shall not be considered as payment of
Tenant's installment of Monthly Rental for purposes of Paragraph 3.1 hereof or for purposes of
the application of the Service Charges described in Paragraph 3.7 and Tenant shall pay an
additional amount, as additional rent, in the amount set forth in item 10.2 of Part One, Basic
Lease Provisions, to Landlord in order to compensate Landlord for extra administrative and other
overhead expenses incurred by Landlord as a res
Preview
FILED 4/6/2022 9:34 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CAROLYN SELLERS DEPUTY CAUSE NO. DC-21-17105 HAMPTON & 12TH, L.P., SUCCESSOR- § IN THE DISTRICT COURT IN-INTEREST TO HOMER J. RADER, § JR., d/b/a RADER PROPERTIES, § § Plaintiff, § § 116th JUDICIAL DISTRICT vs. § § CLIFF’S CHECK CASHING STORES, § INC., § § Defendant. § DALLAS COUNTY, TEXAS PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE COURT: Plaintiff Hampton & 12th, L.P. (“Landlord”) moves for summary judgment against Defendant Cliff’s Check Cashing Stores, Inc. (“Tenant”). INTRODUCTION 1. This case is a breach of a commercial lease. Tenant defaulted under a written Shopping Center Lease dated October 1, 2001 (“Lease”) (EX. 1-A) with Landlord. Tenant owes monthly rental obligation, interest, maintenance and other fees to Landlord under that Lease. Landlord sues in contract. It moves for summary judgment on that claim. Tenant does not, and cannot, dispute its liability and amounts owed to Landlord under the Lease. Landlord moves for summary judgment because there are no disputed fact issues on its contract claim. SUMMARY JUDGMENT STANDARD AND EVIDENCE 2. Under Rule 166a(c), summary judgment is proper to dispose of claims when no genuine issues of material fact are present and/or the controversy involves the determination of a question of law only. Landlord relies on the following summary judgment evidence, on file herein, in addition to all pleadings, papers, and other evidence that is on file with the Court at the time of PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 1 the hearing on its Motion for Summary Judgment, all of which is incorporated herein by reference: • The Affidavit of Geena C. Piwetz and attached exhibits, true and correct copies of which are attached hereto as Exhibit “1;” • The Declaration of James M. McCown and attached exhibits, true and correct copies of which are attached hereto as Exhibit “2;” and, • Defendant’s Responses to Plaintiff’s Interrogatories, a true and correct copy of which is attached hereto as Exhibit “3.” SUMMARY JUDGMENT GROUNDS A. Landlord is entitled to summary judgment on its breach of contract claim. 3. The summary judgment evidence conclusively establishes that Landlord is entitled to judgment as a matter of law against Tenant in the principal amount of $114,703.96. To prove that Tenant breached the Lease, Landlord must show: i) a valid lease; ii) performance under that lease by granting possession to the premises; iii) breach by, among other items, the defendant’s failure to pay rent and other amounts due; and, iv) damages from that breach. AutoSource Dallas, LLC v. Addison Aero., LLC, 2017 Tex. App. LEXIS 5299, at *5 (Tex. App.--Dallas June 9, 2017, no pet.). Landlord’s summary judgment proof establishes each of these elements. 4. Landlord is a commercial property owner in Dallas. (EX. 1, ¶ 3). On or about October 1, 2001, Landlord entered into the written Lease with Tenant. (EX. 1, ¶ 3). Tenant was obligated to make monthly rental and other payments on the Lease. (EX. 1-A). Tenant defaulted in making its monthly and other payments no later than August 11, 2019. (EX. 1, ¶ 4). The principal amount Tenant owes to Landlord for breach of the Lease, as of April 2, 2022, is $114,703.96. (EX. 1, ¶ 7) (EX. 1-C). 5. Tenant does not dispute these facts. Landlord tendered interrogatories to Tenant asking, among other items, for Tenant’s theories as to why it does not owe Landlord under the Lease and disclosure of the amount that Tenant contends is owed. (EX. 3 at 3-6). Tenant provided PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 2 a single conclusion in response to those queries: RESPONSE: In addition to the reasons laid out in our pleadings, before our original landlord passed away and the business was inherited by his children, we never received any "special" charges because the original landlord did not interpret the lease agreement to include "special" charges like those assessed by his children. The children sought to charge us for expenses that were traditionally the responsibility of the landlord and had been interpreted as such since the business relationship began. They began trying to charge us late fees for items they knew were in dispute and refused to work with us to resolve the disputes. Because they then forced us to vacate the premises before the lease was up, we do not believe we owe money for rent on a building we are not allowed to occupy. Further, we do not believe the Plaintiffs [sic] have made any good faith efforts to mitigate any of their claimed damages. Visual inspections of the premises since we were forced to vacate have not revealed any effort to market the premises or attract new tenants. (EX. 3 at 3). Tenant incorporated the same response to interrogatories about the “reasons laid out in” the pleadings, including abandonment, fraud, election of remedies, and waiver. (EX. 3 at 3- 5). The Lease is an integrated, written contract. Tenant’s interpretation, or its theories about the Landlord’s prior interpretation of that document are irrelevant. Cook Composites v. Westlake Styrene Corp., 15 S.W.3d 124, 131 (Tex. App.--Houston [14th Dist.] 2000, pet. dism’d) (“in determining the intention of the parties, we look only within the four corners of the agreement to see what is actually stated”). Under the Lease’s four corners, Landlord is entitled to payments for rent, CAM fees, interest, service charges and other items. (See EX. 1, ¶ 8) (EX. 1-C); see also Cook Composites, 15 S.W.3d at 131 (“We must interpret an unambiguous contract as a matter of law.”). 6. With respect to Landlord’s duty to mitigate, if pleaded, Tenant bears the burden to create a fact issue on that defense. Levertov v. Hold Props., Ltd., 2014 Tex. App. LEXIS 2244, at *11 (Tex. App.--Eastland Feb. 27, 2014, no pet.). Tenant offers no argument, much less evidence, that Landlord failed to market the premises after Tenant’s default. On the contrary, the record establishes Landlord’s marketing efforts, and conclusively negates Tenant’s failure to mitigate claim (assuming one is asserted, which Landlord disputes). (See EX. 1, ¶ 10) (EX. 1-G, H). PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 3 7. In sum, there is no genuine issue of material fact on this record that Tenant breached the Lease, and that it owes Landlord the principal sum of $114,703.96 for that breach. Landlord requests summary judgment on its breach of contract claim for this principal amount. B. Landlord is Entitled to its Attorneys’ Fees as a Matter of Law. 8. Landlord retained Vassar, McCown, Dear & Sicotte, L.L.P. to enforce its rights against Tenant under the Lease and agreed to pay that firm a reasonable fee for such services. (EX. 1, ¶ 11). Landlord is entitled to its attorneys’ fees incurred in prosecuting this claim against Tenant under the Lease, including Landlord forcible entry and detainer suit. (EX. 1-A, ¶ 11.4). Landlord requests its reasonable and necessary attorneys’ fees in the amount of $15,162.50, up to and through the hearing on this Motion for Summary Judgment. (EX. 2 ¶ 8). Landlord also requests attorneys’ fees in the amount of $15,000.00 in the event Plaintiff’s Motion for Summary Judgment is unsuccessfully appealed; and an additional $15,000.00 if a petition for review is filed with the Texas Supreme Court and Landlord is required to submit any briefing in response to that petition (EX. 2 ¶ 10) and the judgment is not overturned. 9. Landlord is further entitled to pre-judgment and post-judgment interest on the full amount of damages under Texas law. WHEREFORE, PREMISES CONSIDERED, Plaintiff Hampton & 12th, L.P. prays that its Motion for Summary Judgment be granted, that Plaintiff have and recover judgment against Defendant in the principal amount set forth above, plus all other damages, attorneys’ fees, and pre- judgment and post-judgment interest as allowed by law, all costs of court, as well as any and all other relief, both general and special, at law or in equity, to which it may be entitled. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 4 Respectfully submitted, VASSAR, MCCOWN, DEAR & SICOTTE, L.L.P. 15851 Dallas Parkway, Suite 525 Addison, Texas 75001 (972) 371-2411 Telecopier - (972) 371-2410 By: /s/ Jim McCown James M. McCown State Bar No. 00788002 jmccown@vmdslaw.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing was served by electronic mail on this 6th day of April, 2022 to all counsel of record in this proceeding. /s/ James M. McCown James M. McCown PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT --Page 5 CAUSE NO. DC-21-17105 HAMPTON & 12TH, L.P., SUCCESSOR- § IN THE DISTRICT COURT IN-INTEREST TO HOMER J. RADER, § JR., d/b/a RADER PROPERTIES, § § Plaintiff, § § 116th JUDICIAL DISTRICT n. § § CLIFF'S CHECK CASIDNG STORES, § INC., § § Defendant. § DALLASCOUNTY,TEXAS AFFIDAVIT OF GEENA C. PIWETZ STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned notary public appeared Geena C. Piwetz, who being by me duly sworn, testified on her oath as follows: 1. "My name is Geena C. Piwetz. I am over 18 years of age, have never been convicted of a felony, and I am fully competent and authorized to make this Affidavit. I have personal knowledge of the facts stated herein and they are true and correct. 2. I am the Chief Financial Officer for RP Texas Mgt, LLC ("RP Texas"). RP Texas manages and leases the Property, as defined below, for PlaintiffHampton & 12th, L.P. ("Landlord") pursuant to a contract between RP Texas and Landlord. 3. Landlord currently owns, and at all times pertinent to the facts of this lawsuit, has owned either through itself or its predecessor in interest, the real property commonly described as 318 S. Hampton Road, Dallas, Texas 75208 ("Property"). Landlord leased the Property to Defendant Cliff's Check Cashing Stores, Inc. ("Tenant"), pursuant to a written Shopping Center Lease dated October 1, 2001 , as amended and extended ("Lease"). A true and correct copy of the AFFIDAVIT OF GEENA C. PIWETZ - Page J EX. 1 Lease is attached hereto as Exhibit A. 4. Tenant breached the Lease before August 2, 2019 for failure to pay Landlord for amounts due under the Lease. Landlord notified Tenant by written Jetter dated August 2, 20 19 of those breaches and demanded payment for those amounts. A true and correct of Landlord ' s August 2, 2019 demand letter is attached hereto as Exhibit B. As shown in Exhibit B, Landlord provided Tenant with nine (9) days' notice to cure Tenant's breaches under the Lease. Tenant did not tender payment in full to Landlord, and did not remedy or cure those breaches listed in Exhibit B, by August 11 ,20 19, i.e., within nine (9) days ofthe letter's date. Tenant was therefore in default of the Lease no later than August 11, 2019. 5. Landlord thereafter applied Tenant's Security Deposit, in the amount of$2,826.90, to Tenant's outstanding monetary obligations in accordance with Paragraph 3.6 of Part Three of the Lease. Tenant fai led to restore the full amount of its Security Deposit, as Paragraph 3.6 of Part Three of the Lease requires. Tenant still owes Landlord for the amount of this Security Deposit, as shown in Exhibit C, referenced below. Tenant also owed Landlord since that time, and continues to owe, Landlord Monthly Rental, Service Charges, Interest and other charges. 6. Due to Tenant's multiple defaults under the Lease, Landlord terminated Tenant's possession under the Lease and filed legal action on or about March 30, 2021 to remove Tenant from the Property. The Justice of the Peace Court entered a Judgment for Forcible Detainer on or about April 12, 2021, granting Landlord possession of the Property. Tenant vacated the Property shortly thereafter, and, in any event, no later than April 21, 2021. By that legal action, Tenant' s possession rights were terminated without termination of the Lease, as allowed by Paragraph 11.2.2 of Part Three of the Lease. Tenant continues, under that paragraph, to be liable to Landlord for rent and other payment obligations and expenses during the Lease term. AFFIDAVIT OF GEENA C. PIWETZ- Page 2 EX. 1 7. Tenant owes Landlord Monthly Rental , Service Charges, Interest and other charges under the Lease, as set forth on Exhibit C and explained below, for a total amount of$114,703 .96 in principal damages as of April 2, 2022. An itemization of those charges and amounts is contained in the statement, attached hereto as Exhibit C. Exhibit C is a true and correct itemization of all principal amounts that Tenant owes to Landlord under the Lease as of April 2, 2022. Landlord seeks to recover those principal amounts from Tenant in this lawsuit. 8. Exhibit C contains charges for the following codes, as stated in that document, in the respective amounts set forth in Exhibit C: •"CAM" is common area maintenance costs, i.e., Tenant's Pro Rata Share of Operating Costs as defined in the Lease and estimated in accordance with the Lease; • " INT" is interest accrued on Tenant's payment obligations as described in the Lease. A true and correct copy of the calculation of Tenant's interest charges is included in Exhibit D, attached hereto; • "RNT" is Tenant's monthly installment of rent, which is net rental as defined in the Lease, as li sted in Exhibit C; •"MIS" includes the Service Charges defined in paragraphs 10 of Part One of the Lease and 3.7 of Part Three of the Lease. A true and correct copy of the calculation ofTenant's Services Charges is included in Exhibit 0 ; •"OPC" are reconciliations of Tenant's 2019 and 2020 actual share of Operating Costs in excess of(or less than) Tenant' s 20 19 and 2020 estimated share of Operating Costs, as described in Paragraph 3.2.5 of Part Three of the Lease. A true and correct copy of the calculation ofTenant's Operating Costs reconciliations are included in Exhibit E, attached hereto; •"TBB" is the abbreviation for Tenant billbacks - costs billed back to Tenant as described in the Lease. A true and correct copy of the supporting documents and invoices for costs billed back to Tenant are included in Exhibit F, attached hereto. • Each of the foregoing categories are, again, summarized, and totaled in the attached Exhibit C. 9. Landlord will continue to suffer additional damages after April 2, 2022, and reserves and does not waive its right to seek those damages in the future. AFFIDAVIT OF GEENA C. PIWETZ - Page 3 EX. 1 10. Landlord's commercial real estate broker, Venture Commercial Real Estate ("Venture"), marketed the Property for re-letting shortly after Tenants eviction from the Property including, showing the Property to at least one potential new tenant in June, 2021. A true and correct copy of the leasing flyer that Venture prepared and distributed for the Shopping Center after Tenanfs vacating of the Property is attached hereto as Exhibit G. Attached hereto as Exhibit H are true and correct copies of pictures of the Property, the first taken on July 7, 202 1, and the second taken on March 28, 2022, showing Venture's "For Lease" signage in the Property's window. Venture is still marketing the Property for lease as ofthe date of this Affidavit. Landlord is uti lizing the same efforts to market the Property that it does for all other spaces in the Shopping Center in which the Property is located. 11. Landlord retained Vassar, McCown, Dear & Sicotte, L.L.P. to enforce its rights against Tenant and agreed to pay Vassar, McCown, Dear & Sicotte, L.L.P. a reasonable fee for such services. Landlord seeks to recover its reasonable and necessary attorneys ' fees owed to Vassar, McCown, Dear & Sicotte, L.L.P. from Tenant in this lawsuit pursuant to paragraph 11.4 of Part Three ofthe Lease and Texas law. 12. I am a custodian of records for RP Texas, on Landlord's behalf. Exhi bits A thru F are true and correct copy of the originals. RP Texas keeps these documents in the ordinary course of business, or, with respect to Exhibit C, were generated in the ordinary course of business from RP Texas' business records. They are exact duplicates of the originals. Exhibits A thru F, and the information contained therein, are from RP Texas' s records for the Property. RP Texas keeps and maintains Exhibits A thru F in the regular course of its business, and it is in Landlord's regular course of business for an employee or contractor, i.e., RP Texas, with knowledge of the act, event, condition, opinion or diagnosis recorded to make the records or to transmit the information thereof AFFIDAVIT OF GEENA C. P IWETZ - Page 4 EX. 1 to be included in such records, and the records were made at or near the time or reasonably soon thereafter, or, with respect to Exhibit C, generated from such records. FURTHER, AFFIANT SAYETH NOT. SUBSCRIBED AND SWORN TO BEFORE ME on this 5~ay of April, 2022, to certify which witness my hand and seal of~---- !:n A. '- ~~%~~:;%,;.. RAMONA NORRIS ~ f____jy vv.,.....- §f:'~--~~Notary Public, State of Texas Notary Public in and for the State ;").·-.:~.-~:;~ Comm . Expires 08-16-2022 -::.;~·m;~,~ Notary 10 13168499-8 ofTexas My Commission Expires: ~a mo,vA (\.}<.0 (2_(0; \ Typed or Printed Name ofNotary Public A FF1DAVIT O F GEE NA C. PI WETZ- Page 5 EX. 1 SHOPPING CENTER LEASE In consideration of the mutual covenants and upon the terms and conditions set forth in Parts One, Two and Three of this Shopping Center Lease and other attachments and exhibits thereto (collectively, "Lease"), HOMER J. RADER, JR., an individual doing business as "Rader Properties" ("Landlord"), hereby leases to the Tenant named below and Tenant hereby leases from Landlord, certain Demised Premises described below. PART ONE BASIC LEASE PROVISIONS 1. TENANT: Cliff's Check Cashing Stores, Inc., a Corporation organized under the laws of the State of Texas, doing business as "Cliffs Check Cashing". 2. SHOPPING CENTER: Hampton Village, a shopping center constructed on that certain tract or parcel of land described in Exhibit A hereof. 3. DEMISED PREMISES: Retail space delineated on the site plan attached hereto as Exhibit B, containing approximately 2480 square feet, located in the Shopping Center, and known locally as 212._ S. Hampton Rd., Dallas, Texas. 4. TERM: Beginning on the earlier of (i) 90 calendar days after the Date of Completion (as defined on attached Exhibit E) of the shell of the Demised Premises and the Additional Improvements; or (ii) the date on which Tenant opens Tenant's operation in the Demised Premises for business with the public ("Commencement Date") and ending on the 3 lst day of December, 2006 ("Expiration Date"). 5. TOTAL INITIAL MONTHLY INSTALLMENT OF RENT: $3086.57 5.1 Portion of initial Monthly Rental which is net rental: $2712.50 5.2 Portion of initial Monthly Rental allocated to Operating Costs (as defined in Paragraph 6 below): $374.07 5.3 Monthly Rental will be due and payable on or before the first day of each calendar month. 6. TENANT'S SHARE OF CERTAIN COSTS: 6.1 Operating Costs: Determined annually by the difference between (i) the Premises' Pro Rata Share of Operating Costs and (ii) the product obtained by multiplying an "Expense Stop" of $1.81 per square foot times the number of square feet space in the Demised Premises. Tenant's Pro Rata Share of Operating Costs will be estimated by Landlord and payable by Tenant in advance on a monthly basis. 6.2 Electricity: By Tenant 6.3 Water and Sewage: By Tenant 6.4 Gas: By Tenant 7. PERCENTAGERENT: NONE 8. PREPAID RENT: $3086.57 applicable to the first full month of the Term. 9. SECURITY DEPOSIT: $3086.57. 10. SERVICE CHARGES: 10.1 Late Payment Charge: An amount equal to $0.10 for every $1.00 which is past due for 9 days and an additional $0.15 for every $1.00 which is past due for 29 days or more, for a total of $0.25. 10.2 Returned Checks: $50.00 11. PREMISE USE: The Premises shall be used for the following purposes: check cashing, money order sales, wire transfer service, lottery sales, pager, cellular, and all telecommunications Rader/Cliffs Check Cashing EX. A Shopping Center Lease (9/21/01) 1 Part One Rader 001 . ~ products, loans, postal services, payment collection services, income tax preparation and electronic tax filing, jewelry sales, vending machines (soft drinks, candy), any other products or services related to check cashing and NO OTHER USES. 12. TENANT'S MINIMUM INSURANCE REQUIREMENTS: 12.1 Special form (formerly "all risks"): Full replacement cost 12.2 Commercial general liability: $1,000,000 combined single limit 12.3 Workers' Compensation: Statutory Amount 12.4 Employer's Liability: $100,000 12.5 Business income: $75,000.00 13. ADDRESSES FOR NOTICES AND PAYMENT OF RENT: TO TENANT: TO LANDLORD: Cliffs Check Cashing Stores, Inc. Homer J. Rader, Jr. PO Box 700115 12342 Inwood Road Dallas, Texas 75370 Dallas, TX 75244 972 466 2332 phone 972 466 4495 fax 14. BROKER: NONE 15. ATTACHMENTS AND EXHIBITS: The Lease consists of the following components: Part One: Basic Lease Provisions Part Two: Special Lease Provisions Part Three: General Lease Provisions Exhibit A: Legal Description of Shopping Center Exhibit B: Site Plan of Shopping Center Exhibit C: Rules and Regulations Exhibit D: Sign Criteria Exhibit E: Additional Improvements ExhibitF: Renewal Option Exhibit G: Certificate of Acceptance Exhibit H: Ladder Signage Exhibit I: Ladder Signage 16. INCORPORATION OF OTHER PROVISIONS: All of the provisions, covenants and conditions set forth in Part Two and Part Three of this Lease and all exhibits and attachments described in paragraph 15 of this Part One are by this reference incorporated into this Part One as fully as if the same were set forth at length in Part One. Each reference in Part Two, Part Three and other exhibits and attachments to any provision in Part One will be construed to incorporate all of the terms provided under such provision. This Lease has been executed by Landlord and Tenant as of a~ / '2001. LANDLORD: TENANT: CLIFF'S CHECK CASHING STORES, INC. By: Title: Rader/Cliffs Check Cashing EX. A Shopping Center Lease (9/21/01) 2 Rader 002 PART TWO SPECIAL LEASE PROVISIONS 1. Landlord represents that upon the Commencement Date of this Lease the heating system and the air conditioning equipment at the Demised Premises existing on the date of this Lease or to be provided by Landlord, will be in operating condition; provided, however, Landlord shall not be obligated to repair or replace any such items unless Tenant notifies Landlord in writing of the need of any such repairs or replacements before the first anniversary of the Commencement Date. Except for any needed repairs or replacements specified in a written notice delivered by Tenant to Landlord before the first anniversary of the Commencement Date, Tenant shall be responsible for all repairs and replacements to the heating system and the air conditioning equipment at the Demised Premises. Landlord's limited obligation to repair or replace the heating system and the air conditioning equipment described in this paragraph does not include the replacement of filters. 2. Tenant will be responsible for obtaining all city permits for finishout of Tenant's portion of the Demised Premises and the certificate of occupancy. All work must be done in a good and workmanlike manner subject to Landlord's inspection. All contractors and subcontractors involved with Tenant's finishout work must provide Landlord with certificates of insurance showing commercial general liability coverage in an amount satisfactory to Landlord, containing a waiver of subrogation and showing Landlord as additional insured. The certificates must be delivered to Landlord before any work begins. 3. So long as Tenant is not in default of any term or condition of the Lease, Landlord agrees not to lease space in the Shopping Center to a tenant who engages in the business of check cashing or wire transfer (transfer of monetary funds) for a fee. This exclusive DOES NOT APPLY to existing Tenants who now offer or who have the right under their leases to offer such services. 4. If the Date of Completion (as defined in attached Exhibit E) has not occurred within six months after the date of execution of this Lease, Tenant shall have the right to terminate this Lease at any time thereafter before the occurrence of the Date of Completion, and if Tenant elects to so terminate this Lease, all amounts deposited by Tenant with Landlord promptly shall be refunded to Tenant by Landlord. 5. Within twelve (12) months of the Commencement Date of the Lease, Landlord agrees to construct either (i) an approximately 400 square foot, double face, tenant ladder sign, or (ii) a square, quad face, tenant ladder sign. The location of Tenant's identification sign on each of the sign possibilities is designated on the attached Exhibits H and I respectively. 6. Landlord agrees that the audit referred to in Paragraph 5.5.6, Part Three, is an environmental audit only and not a financial audit. 7. Notwithstanding the prohibitions contained in Paragraph 5.7, Part Three, Landlord agrees that Tenant may place tasteful signs in the windows of the Demised Premises advertising check cashing, money orders and wire transfer services. 8. Landlord agrees to give Tenant 24 hours advance notice of any inspection by Landlord pursuant to Paragraph 5.8, Part Three, and Landlord agrees that Landlord will not place any signs in the windows of the Demised Premises pursuant to Paragraph 5.8, Part Three, if Tenant has exercised a renewal option or if Landlord and Tenant are negotiating a renewal of the term of this Lease. 9. Landlord agrees that all security equipment and teller windows placed in the Demised Premises by Tenant are trade fixtures which may be removed from the Demised Premises in compliance with Paragraph 6.4.1, Part Three. 10. Landlord agrees that Landlord will not, without Tenant's prior written consent, disclose any of the terms of this Lease or of any future modification of this Lease or of any waiver by Tenant of Landlord's obligations under this Lease to any other tenant or prospective tenant or other third party; provided, however, that this provision shall not preclude disclosures to Landlord's attorneys or accountants as reasonably required to permit Landlord to enforce this Lease or to prepare tax returns or other reports required by law, or to prospective lenders or purchasers of the Shopping Center. EX. A Rader/Cliffs Check Cashing Shopping Center Lease (9/21/01) 1 Rader 003 PART THREE GENERAL LEASE PROVISIONS 1. DEMISED PREMISES. 1.1 Area of Demised Premises. The area of the Demised Premises shall be the interior area measured in square feet from the outside of any exterior walls (typically the front and back walls) and from the centerline of any interior demising walls (typically side walls). 1.2 Ceilings, Walls, Floors. Tenant acknowledges that pipes, ducts, conduits, wires and equipment serving other parts of the Shopping Center may be located above acoustical ceiling surfaces, below floor surfaces or within walls of the Demises Premises. 1.3 Common Areas. "Common Areas" will mean all areas, spaces, facilities, and equipment in the Shopping Center made available by Landlord for the non-exclusive, common and joint use of Landlord, Tenant and other occupants and customers of the Shopping Center, including, without limitation, parking lots, sidewalks and alleys. Tenant and Tenant's employees, agents, servants, customers and other invitees shall have the non-exclusive right to use the Common Areas provided by Landlord from time to time for use in connection with the Demised Premises, such use to be in common with Landlord, other tenants and such other tenants' employees, agents, servants, customers and other invitees, and other parties permitted by Landlord to use the same. In no event shall Tenant or Tenant's employees, agents, servants, customers or invitees use the parking lot in the Shopping Center for auto repair, overnight storage of any vehicle or for the display of any vehicle or other item advertised for sale. Such Common Areas shall at all times be under the exclusive control and management of Landlord and may be rearranged, modified and changed from time to time at Landlord's sole discretion. Landlord shall be responsible for the operation and maintenance of the Common Areas, and the manner of operation and maintenance and expenditures therefor shall be in the sole discretion of Landlord. 1.4 Quiet Enjoyment. Upon payment of the rents herein reserved, and performance of the terms, conditions, covenants and agreements herein contained, Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises during the full term of this Lease and any extension or renewal thereof against any party claiming by or through Landlord; provided, however, that Tenant accepts this Lease subject and subordinate to any recorded mortgage, deed of trust or other lien or matter of title presently encumbering the Demised Premises. 1.5 Parking. If Landlord designates an employee parking area, Tenant and Tenant's employees shall not park motor vehicles or bicycles in parking areas provided for customers. In no event shall Tenant or Tenant's employees park motor vehicles or bicycles at the rear of the Demised Premises where there is a rear entrance. Tenant agrees that upon written notice from Landlord Tenant will furnish Landlord with the state automobile license numbers assigned to Tenant's motor vehicles and the motor vehicles of all Tenant's employees and of any changes to such list. In the event that Tenant or Tenant's employees park in other than designated employee parking areas, Landlord shall have the right to charge Tenant Ten Dollars ($10.00) per day for each day or partial day each such vehicle is parked in the improper areas and/or to have said vehicle towed away from such areas at Tenant's expense. 2. TERM. 2.1 Term. The term of this Lease will begin on the Commencement Date set forth in item 4 of Part One, Basic Lease Provisions, and end on the Expiration Date set forth in item 4 of Part One, Basic Lease Provisions, unless sooner terminated in accordance with the provisions of this Lease. After the Commencement Date, Tenant upon the request of Landlord promptly will sign and deliver a certificate in the form attached hereto as Exhibit G. 2.2 Delay in Commencement. If Landlord fails for any reason to deliver possession of the Demised Premises to Tenant on any contemplated delivery date set forth in Rader/Cliffs Check Cashing EX. A Shopping Center Lease (9/21/01) 1 Rader 004 item 4 of Part One, Basic Lease Provisions, (i) Landlord will not be liable to Tenant for any direct or consequential loss resulting to Tenant from the delay, (ii) the validity of this Lease will not be affected, and (iii) the term of this Lease will not be extended. 2.3 Effective Date of Lease. Although rental and other monetary obligations shall begin to accrue only upon the Commencement Date, all other terms of this Lease are effective upon the execution hereof. 2.4 Holding Over. Should Tenant, or any of Tenant's successors in interest, fail to surrender the Demised Premises, or any part thereof, on the expiration of the term of this Lease or any earlier termination of this Lease, such holding over shall constitute a tenancy at sufferance only, subject to all the terms and provisions of this Lease, terminable at any time by Landlord at a daily rental of the greater of (i) one-thirtieth (1/30th) of one hundred fifty percent (150%) of the Monthly Rental paid by Tenant in the last month of the term of this Lease, or (ii) the daily fair market rental value of the Demised Premises. Tenant also shall be liable for any loss or damage incurred by Landlord arising or resulting from Tenant's failure to timely surrender the Demised Premises to Landlord, including, without limitation, loss or damage from Landlord's inability to deliver the Demised Premises to a new tenant. 3. RENTAL/ADDITIONAL RENTAL. 3.1 Monthly Rent. Tenant agrees to pay to Landlord, without offset or deduction, rent ("Monthly Rental") for the Demised Premises as set forth in item 5 of Part One, Basic Lease Provisions and the Special Lease Provisions, if applicable, in advance on the first day of each calendar month, in lawful money of the United States. The first installment of Monthly Rental shall be due on the Commencement Date. In the event the term hereof shall commence or end during a calendar month, the Monthly Rental for any fractional calendar month following the Commencement Date or preceding the Expiration Date of this Lease shall be prorated on a daily basis. 3.2 Tenant's Share of Operating Costs. In addition to all other sums due under this Lease, Tenant will pay to Landlord in the manner and at the time set forth in this Paragraph 3 any increases in the Premises' Pro Rata Share of Operating Costs over an amount equal to the product of the Expense Stop set forth in item 6.1 of Part One, Basic Lease Provisions multiplied by the number of square feet in the Demised Premises. 3.2.1 As used in this Lease, the term "Operating Costs" includes: (i) all ad valorem and personal property taxes payable by Landlord with respect to the Shopping Center (including the Common Areas); (ii) the costs of all insurance (property, liability, rental or otherwise) paid by Landlord with respect to the Shopping Center (including the Common Areas); (iii) all utility charges paid by Landlord with respect to the Shopping Center (including the Common Areas); (iv) the costs incurred by Landlord in performing all of Landlord's maintenance, repair or replacement obligations with respect to the Shopping Center; (v) all costs incurred by Landlord in maintaining, repairing and making replacements and improvements to the Common Areas; (vi) garbage collection fees paid by Landlord with respect to the Shopping Center; (vii) any management fee paid to property manager(s) other than Landlord's employee(s) or a reasonable imputed charge for management of the Shopping Center by Landlord's personnel at competitive rates; (viii) the costs incurred by Landlord for security; and (ix) all other costs incurred by Landlord in operating the Shopping Center (including the Common Areas) except for those costs which by definition are excluded. The following costs are by definition excluded from Operating Costs: (i) mortgage costs of Landlord with respect to the Shopping Center; (ii) costs of construction of improvements within an individual tenant space in connection with new leases in the Shopping Center; (iii) brokerage, advertising and similar costs incurred by Landlord in connection with leasing space in the Shopping Center; and (iv) general overhead costs of Landlord except for the imputed management charge included in Operating Costs. 3.2.2 "Premises' Pro Rata Share of Operating Costs" will be computed by multiplying the total amount of Operating Costs for the Shopping Center by a percentage derived from the fraction, the numerator of which fraction is the rentable area of the Demised Premises and the denominator of which fraction is the total rentable area in the Shopping Center. Rader/Cliffs Check Cashing EX. A Shopping Center Lease (9/21/01) 2 Rader 005 3.2.3 Tenant's share of Operating Costs for the remainder of the first calendar year (whether full or partial) and for each subsequent calendar year of the term will be estimated by Landlord, and notice of such estimated amounts will be given to Tenant prior to the Commencement Date or the beginning of each calendar year, as the case may be. For the partial calendar year, if any, after Commencement Date, Tenant will pay to Landlord each month, at the same time the monthly installment of Monthly Rental is due, an amount equal to Tenant's estimated share of Operating Costs for the remainder of the calendar year divided by the number of months remaining in the calendar year. For each full calendar year of the term, Tenant will pay to Landlord each month, at the same time the monthly installment of Monthly Rental is due, an amount equal to one-twelfth (1/12) of Tenant's estimated share of Operating Costs due for the calendar year. If the Expiration Date does not occur on December 31, for the partial calendar year preceding Expiration Date, Tenant will pay to Landlord, each month, at the same time the monthly installment of Monthly Rental is due, an amount equal to the amount of such Tenant's estimated share of Operating Costs for the partial calendar year divided by the number of full calendar months of the partial calendar year. 3 .2.4 At any time and from time to time during the term, Landlord will have the right, by notice to Tenant, to change the monthly amount then payable by Tenant for Tenant's estimated share of Operating Costs to reflect more accurately, in the reasonable judgment of Landlord, Tenant's actual share of Operating Costs for the then current calendar year. Tenant will begin paying the revised estimated amount together with the next monthly payment of Monthly Rental due after receipt by Tenant of Landlord's notice. 3.2.5 On or before April 1 of each calendar year, or within a reasonable period of time thereafter, Landlord will prepare and deliver to Tenant a statement setting forth the calculation of Tenant's actual share of Operating Costs for the previous calendar year. Within ten (10) days after receipt of the statement of Tenant's actual share of Operating Costs, Tenant will pay to Landlord, or Landlord will credit against the next rental or other payment or payments due from Tenant, as the case may be, the difference between Tenant's actual share of Operating Costs for the preceding calendar year and Tenant's estimated share of Operating Costs actually paid by Tenant during such year. 3.2.6 If the term will expire or this Lease has been terminated prior to a final determination of Tenant's actual share of Operating Costs, the amount of adjustment between Tenant's estimated share and Tenants actual share of Operating Costs payable for the preceding calendar year and/or the final partial calendar year of the term will be estimated by Landlord based upon the best data available to Landlord at the time of the estimate. Prior to the Expiration Date or as soon as possible after an earlier termination date, an adjustment will be made between Landlord and Tenant. The obligations set forth in the preceding sentence will survive the Expiration Date or earlier termination of this Lease. 3 .2. 7 If during the term of this Lease any taxes or other charges shall be levied or assessed against the Demised Premises or charged to Landlord either as a rent tax or in lieu of or as a substitute for all or part of any present or contemplated ad valorem taxes on the Demised Premises or the Shopping Center, then for the purposes of this Lease such levies and assessments shall be treated the same as ad valorem taxes on the Demised Premises or the Shopping Center, as the case may be. 3.3 Percentage Rental. INTENTIONALLY DELETED 3.4 Utility Services. Tenant shall pay the cost of all utility services, including, but not limited to, initial connection charges, all charges for gas, water, sewer, telephone and electricity used on the Demised Premises, and for all electric light lamps and tubes. In addition, Tenant hereby acknowledges and agrees that it is Tenant's obligation to contact such utility companies for such initial connection to the Demised Premises. There shall be no abatement of rental by reason of any interruption in utility services, and Landlord shall not be liable for any interruption in utility service. Rader/Cliffs Check Cashing EX. A Shopping Center Lease (9/21/01) 3 Rader 006 3.5 Prepaid Rent. Concurrently with Tenant's execution of this Lease, Tenant will pay to Landlord the sum specified in item 8 of Part One, Basic Lease Provisions as "Prepaid Rent", which sum will be credited toward Monthly Rental in the manner set forth in item 8 of Part One, Basic Lease Provisions. 3.6 Security Deposit. Tenant has deposited with Landlord, upon Tenant's execution of this Lease, the amount set forth in item 9, Part One, Basic Lease Provisions as a Security Deposit. The Security Deposit shall be held by Landlord without interest as security for the performance by Tenant of Tenant's covenants and obligations under this Lease. The Security Deposit is not an advance payment of Monthly Rental or a measure ofliquidated damages in case of default by Tenant. Upon the occurrence of any event of default, Landlord may, from time to time, without prejudice to any other remedy provided herein or provided by law, use the Security Deposit to the extent necessary to make good any arrearages of rent and any other damage, injury, expense or liability caused to Landlord by such event of default. Following any such application of the Security Deposit, Tenant shall pay to Landlord, on demand, the amount so applied in order to restore the Security Deposit to its required amount. If Tenant is not then in default hereunder, any remaining balance of such Security Deposit shall be returned by Landlord to Tenant upon expiration or termination of this Lease; provided that Landlord, at Landlord's option, may deduct from the Security Deposit upon termination or expiration of this Lease the current calendar year's Operating Costs reimbursement estimated as set forth in Paragraph 3.2.6 above. If the Monthly Rental is increased during the term of this Lease, Tenant shall deliver to Landlord the amount necessary to increase the Security Deposit to an amount equal to the then current Monthly Rental within thirty (30) days after the increase in Monthly Rental is effective, and Tenant's failure to do so shall be an event of default under this Lease. 3.7 Service Charges. In the event any installment of Monthly Rental is not received by the close of Landlord's business on the ninth (9th) day following the due date thereof for any reason whatsoever, such installment of Monthly Rental shall be increased by the amount set forth in item 10.1 of Part One, Basic Lease Provisions as a "Service Charge". If any installment of Monthly Rental is not received by the close of Landlord's business on the twenty-ninth (29th) day following its due date, such installment shall be further increased by the amount set forth in item 10.1 of Part One, Basic Lease Provisions as a Service Charge. Such Service Charges shall be additional rental hereunder, shall not be considered as a deduction from Percentage Rental (if applicable) and shall be due and payable on demand. The Service Charges are agreed by Landlord and Tenant to be a reasonable estimate of the extra administrative expenses incurred by Landlord in handling such delinquencies. 3.8 Returned Check Charge. In the event Landlord receives a check from Tenant which is not honored by Tenant's bank, such check shall not be considered as payment of Tenant's installment of Monthly Rental for purposes of Paragraph 3.1 hereof or for purposes of the application of the Service Charges described in Paragraph 3.7 and Tenant shall pay an additional amount, as additional rent, in the amount set forth in item 10.2 of Part One, Basic Lease Provisions, to Landlord in order to compensate Landlord for extra administrative and other overhead expenses incurred by Landlord as a res