Subtenant Estoppel Letter
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SUBTENANT ESTOPPEL LETTER
By Sublease dated January 17,2001, as amended by Addendwn dated January 17,2001,
by Second Addendwn dated June 7, 2002 and by Third Addendwn dated November 2003,
(collectively the "Sub]ease"), the undersigned ("Subtenant") leased from Pelican Development
L.L.C., a Florida limited liability company, or its predecessors in interest ("Sublandlord"), the
premises located at ]039-1041 Collins Avenue, Miami Beach, Florida which are more
r particularly described in the Sublease(the "Subleased Premises"). Sublandlord, as the current
owner of the property of which the Subleased Premises are a part (the "Prooerty"), intends to
sell the Property to Ocean Blvd II, LLC, an Indiana limited liability company (the "Buver") who,
as a condition to the purchase of the Property, has required this Subtenant Estoppel Letter.
In consideration of Buyer's agreement to purchase the Property, Subtenant agrees and
certifies to the Sublandlord and to the Buyer as follows:
1.
A true and co~ect copy of the Sublease is attached hereto as Exhibit A. and
except as reflected therein, there are no other agreements between Sublandlord
and Subtenant pertaining to the Subleased Premises.
2. The ~!:l.ble~eq Premises have been accepted by Sut>t~~!]t l!!l4 ~1,lbt~nant i~
currently in the possession thereof and all work required to be done by
Sublandlord has been completed and accepted.
3. The term of the Sublease began on September 1,2002 and ends on August 31,
2012, subject to any renewal options expressly provided in the Sublease. Tne
Sublease is in full force and effect.
4. Subtenant claims no present charge, lien or claim of offset against rent.
5. Rent has been paid for the current month but has not been paid and will not be
paid for more than one month in advance. Rent is currently $11,673.00 per
month and is due on the 1st day of each month. A security deposit in the amount
of$O has been paid to Sublandlord,
6. There are no existing defaults by reason of any act or omission of the Sublandlord
except as follows: n o/) ~
SUBlENANT:
E. Levy Corporation, Inc., a Florida
OO'J'Or.moo ~ .
By:
Name: YO~~I J. I.ok,,,
Title: ~ rt!. ~ ; .t.." tl
Date: . $" . 1 ~. 0..'1
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EXHIBIT A
to Subtenant
Estoppel Letter
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TIllS LEASE, made as of the \ f7 of~ 200d, by and between Pelican
Development L.L.C., a Florida limited liability comparf.j (herein called "Landlord"), and E.
Levy COIporation, Inc. a Florida cOIporation (herein called "Tenant").
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ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1.01; FUNDAMENTAL LEASE PROVISIONS, Certain fundamental provisions
are presented in this Section ("Fundamental Lease Provisions") in summary form to facilitate
convenient reference by the parties hereto. In the event of any conflict between the contents
of Article 1 and the remaining provisions of this Lease; the Lease provisions shall govern.
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A)
Building: Part of the first floor of a garage building to be constructed on 1039-
1041 Collins A venue, Miami Beach, Florida, as shown on Exhibit A. (herein
called the "Building"), (See Exhibit A attached hereto).
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B) Tenant's Trade Name: (See Section 6.01) Surf Style.
C) Term: Ten (10) LEASE YEARS (As defined; in Section 1.01E) and two (2) Five
(5) year options (As defined in Section 3.02).
D) Tenant Space approximately 3,602 square feet identified in red on Exhibit A.
E) Square footage and Minimum Rent of Demised Premises: Square footage:
GROUND FLOOR - 3,602 square feet approximately more or less.
1ST LEASE YEAR
2ND LEASE YEAR
3RD LEASE YEAR
4TIi LEASE YEAR
5TIi LEASE YEAR
6TIi LEASE YEAR
7TIi LEASE YEAR
8TIi LEASE YEAR
9TIi LEASE YEAR
10TIi LEASE YEAR
Monthly Rent
14,166
14,591
15,029
15,480
15,944
16,423
16,915
17,423
17,945
18,484
Annual Rent
170,000
175,100
180,353
185,764
191,337
191,077
202,989
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First Option Period
11 TIi LEASE YEAR
12TIiLEASE YEAR
13TH LEASE YEAR
14TH LEASE YEAR
15TH LEASE YEAR
19,923
20,521
21,137
22,271
22,424
239,085
246,257
253,645
261,254
269,092
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Second Option Period
16TIi LEASE'YEAR market rent as established but no less than $277,165 annually.
Minimum Rent (as defmed ill Section 4.02) is based upon the ground floor of the Premises
containing approximately 3,602 square feet (measured to the outside surface of exterior walls
and to the center of the south interior demising wall) and is stipulated to be a minimum of
3,602 square feet. If the actual square footage of the floor of the premises is less than 3,500
square feet, then Minimum Rent (both monthly and annual) shall be adjusted by multiplying
the Minimum Rent as set forth above by a fraction, the numerator of which will shall be the
actual square footage of the Premises, as determined -in the preceding sentence, and the
Qenominator of which shall be 3,602 square feet, as set forth in the above table.
.Notwithstanding the foregoing it is acknowledged by Landlord and Tenant that the three
'" thousand five hundred (3,500) minimum square feet aforementioned will include no more
than eighty-one (81) square feet of area located outside the two (2) entrances to the Premises,
F) Percentage Rent: N/ A
G) Lease Year Break Point: N/A
11) Tenant's Proportionate Sliiife: stipulated at 8-% (eight percent) (S"ee Section 5.01
(a) (i)).
I) Facility Type: Retail facility for sale of clothing and soft goods. No food or
beverage sales shall be permitted by tenant under this Lease,
1) Security Deposit: $50,000 (Fifty Thousand Dollars) in the form of cash or letter
of credit drawn on a banking institution with offices in Miami-Dade County.
K) Guaranty: Letter of Credit drawn on a banking institution with offices in Miami-
Dade County in the amount of$90,000 (Ninety Thousand Dollars) in the form
provided for on Exhibit G to this Lease.
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Address for Rental Payments:
PELICAN DEVELOPMENT, LLC
601 Poydras Street, Suite 201 I
New Orleans, LA 70130
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Landlord's Legal Notice
Address:
PELICAN DEVELOPMENT, LLC
60 I Poydras Street, Suite 201 I
New Orleans, LA 70130
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Tenant's Legal Notice:
E. LEVY CORPORATION, INC. .
4100 North 28th Terrace
Hollywood, FL 33021
0) Market Rent to be paid by Tenant for the 2nd option period shall be determined
by rents charged for by other properties for comparable space of similar or
smaller size within a five block radius of the property but in no event shall the
rent paid for year 16 be less than $277,165. The rental established in year 16
shall be increased by 3% for each year for years 17, 18, 19 and 20.
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$ection 1.02: REFERENCES AND CONFLICTS. References appearing in Section 1.01
'i1ie to designate some of the other places in this Lease where additional provisions applicable
;;' to the particular Fimdamental Lease Provisions appear. Each reference in this Lease to any
of the Fundamental Lease Provisions contained in Section 1.01 shall be construed to
incorporate all of the terms provided for under such provisions, and such provisions shall be
read in conjunction with all other provisions of this Lease applicable thereto. Ifthere is any
conflict between any of the Fundamental Lease Provisions set forth in Section 1.01 and an)'
other provision of this Lease, the latter shall control.
Sectlon-l.03:EXHIBTTS. 'llie fOlloWIng draWiligs and special provIsions are attacned
hereto as exhibits and hereby made a part of this Lease.
(a) EXHIBIT A - Site Plan of Building and Premises
(b) EXHIBIT B - Landlord's Construction
(c) EXHIBIT B-1 - Rendering of the Building's west elevation
(d) EXHIBIT C - Tenant's Work
(e) EXHIBIT D-N/A
(f) EXHIBITE-Memorandum of Lease
(g) EXHIBIT F - The Agreement of Lease ("Ground Lease'') and Development
Agreement between Pelican Development L.L.C. and the City of Miami Beach dated
as of December 1, 1999, which shall be deemed incorporated as an exhibit without
attachment hereto
(h) EXHIBIT G - Letter of Credit form
ARTICLE 2: PREMISES: CONSTRUCTION
Section 2.01: LEASE OF PREMISES, Landlord hereby leases to Tenagt,_ and Tenant.
hereby leases from Landlord the "Premises" (as defined in Section 2.02 below), for the term,
at the rental, and upon the covenants and conditions herein set forth.
Section 2.02: PREMISES DEFINED. The term "Premises" means the space situated on the
first floor of the Building and in the location marked on Exhibit A, and shall consist of the
space within the walls, structural floor and the bottom of the ceiling of the Premises. The
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Premises will be constructed by Landlord in accordance with the provisions of this Lease,
including without limitation Exhibit B, Tenant shall not construct any mezzanines
(including stock me=::mine), without Landlord's written consent, which may be given or
withheld in Landlord's sole discretion.
Section2,03: LANDLORD'S CONSTRUCTION: DELIVERYOFPREMISES. Landlord,
at its sole cost and expense, will construct the Building and perform such work as set forth
in Exhibit B and will deliver the Premises "as is" . To be attacbed bereto as Exhibit B-1 is
a rendering of the west elevation of the Building showing the design and location of the
Premises. Landlord represents that if it shall substantially modifY the Building elevation as
reflected on Exhibit B-1, it shall promptly notify Tenant of same and Tenant shall have the
'light to terminate this Lease upon written notice to Landlord delivered fIfteen (15) days from
;2 Tenant's receipt of a copy of the revised Building elevation should Tenant not approve the
- revised elevation. Furthermore, if Tenant does not approve the initial plan of the west
elevation of the Building to be attached as Exhibit B-1, Tenant shall have the right to
terminate this Lease in the manner set forth in the immediately preceding sentence.
Section 2,04: TENANT'S CONSTRUCTION. Within thirty (30) days after delivery of
possession of the Premises to Tenant, Tenant shall commence the work specifIed in Exhibit
e and.dtligently and contInually proceed-tIle same completion ill accoroance Willi llie
requirements of this Lease ("Tenant' s Work"). Landlord shall provide 15 days prior written
notice of the date that the Premises will be turned over to Tenant. Landlord and Tenant
mutually agree that they will not interrupt, delay or prevent the work to be performed by the
ot.'ler. During the period of construction, Landlord and Tenant shall use their best efforts to
cooperate with one another and cause their respective agents to cooperate with one another
so as to promote the timely and efficient completion of the Premises and scheduling of all
work to be performed. Subject to unavoidable delays described in Section 21.06 below.
Tenant shall complete, or cause to be completed, Tenant's Work and open its business (fully
stocked) to the public in the Premises on or before one hundred and twenty (120) days after
delivery of possession of the Premises by Landlord to Tenant (the "Operiing Date''). Rental
payments (Minimum Rent and Additional Rent) shall commence 90 days after deliveIJ of
premises by Landlord to Tenant, Prior to Tenant commencing construction of the Tenant's
. Work or any other construction at the Premises, Tenant shall submit to Landlord for
Landlord's approval, detailed working plans, drawings and specifications with respect to all
structural, electrical and mechanical improvements and all exterior details, signs and facades
(the "Construction Plans''), said approval not to be unreasonably withheld or delayed beyond
ten (1 0) days from submission of the Construction Plans by Tenant; and all co~ction shall
be done pursuant to the Construction Plans as approved by Landlord in writing (such
approval not to be unreasonably withheld or delayed). Tenant shall not change or modify
the Construction Plans after their final approval in any material respect without Landlord's
prior written consent, which consent shall not be unreasonably withheld or delayed beyond
ten (10) days from delivery to Landlord of said modifIcations. All of Tenant's Work and
Landlord's Construction shall be in accordance with the approved Construction Plans and
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all applicable Federal, State, municipal and local laws, codes, ordinances and regulations and
in conformance with all requirements of the Florida Construction Lien Law, Tenant shall
provide Landlord with a copy of all construction contracts Within five (5) days after
execution of same by both Tenant and the applicable contractor. Each contract for over
$20,000.00 must be supported by an unconditional payment, completion and performance
bond, both for the full amount thereof, issued by a surety licensed to do business in Florida,
in favor of Landlord and Tenant as dual obligee, unless the contractor under the applicable
contract has delivered to Landlord an agreement, in form and content acceptable to Landlord,
under which said contractor agrees that it shall not claim any lien upon Landlord's interest
in the Premises, waives any right to claim such lien and agrees to immediately discharge and
mdemnify Landlord against, and hold Landlord harmless from, any lien filed by any
i~ubcontractor dealing with said contractor, Upon the completion of Tenant's Work, Tenant
'" shall furnish Landlord with a copy of a final and unconditional certificate of completion or
occupancy, as applicable, issued by the appropriate governmental agency and a written
certification from Tenant's architect to Landlord stating whether floor area has changed as' ~
a result of such improvements and, if so, the new square footage. Landlord agrees to
cooperate with Tenant and execute any necessary documents in connection with Tenant
obtaining said certificate of completion or occupancy, provided that Landlord shall not incur
.Eny cost or liability in connection therewith, In the event that Tenant is delayed in obtaining
its certificate ofcomplefiOn or OCCUP8D.cya.s a resiift oIllie acts orLiuidloro or its agents or
contractors, then for each such day which Tenant is delayed, then Minimum Rent and
Additional Rent shall abate.
Section 2.05: DELAY IN LAl'l'DLORD'S CONSTRUCTION. Tenant is aware that the
Premises are not yet under construction and the project has not received final approval from
. a number of municipal agencies of both the City of Miami Beach and Miami-Dade CoUnty.
Landlord is pursuing such approvals and intends to commence construction of the project on
or before January 10,2001. It is anticipated that the Premises will be delivered to Tenant,
and completion of the Building prior to December 31, 2001. Tenant understands and
acknowledges the Premises may not be constructed and the project abandoned and Landlord
is under no obligation to commence construction, In the case Landlord determines to
abandon the project, Landlord shall provide notice to Tenant which will render this Lease
Agreement null and void and relieve all obligations of all parties covered under the Lease.
Because of delays in construction Landlord reserves the right to deliver the Premises to
Tenant as late as December 31,2001 without any penalty on part of.the Landlord, failing
which, the Tenant shall have the right to terminate this Lease and the security deposit and
Guaranty Letter of Credit shall be refunded to Tenant forthwith, IfLandlorrltt:rminates this
Lease pursuantto its rights under this Section 2.05 or if the City of Miami Beach terminates
the Ground Lease prior to commencement of construction of the Building, then Tenant shall
be relieved of all its obligations hereunder and the security deposit and Guaranty Letter of
Credit shall be refunded to Tenant forthwith,
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Section 2.06: RIGHTS OF LANDLORD OCCUPANCY, The Premises if constructed will
be constructed on land owned by the City of Miami Beach under the Ground Lease and
Development Agreement between the City and Pelican Development Both the Ground
Lease and Development Agreement are designated as Exhibit F, This Lease is subject to the
terms of the Ground Lease and Development Agreement. Pursuant to the Ground Lease, the
Tenant is entitled to the issuance, from the City of Miami Beach, of an Attornment and Non-
Disturbance Agreement ("ANDA"). Within fifteen (15) days from the execution of this
Lease, Landlord agrees to deliver to the City of Miami Beach its request in writing for the
issuance of such ANDA in favor of the Tenant hereunder and shall take such steps as are
necessary to cause the issuance of said ANDAat the earliest practical time.
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'Section 2,07: ROAD IMPACT FEES & MITIGATION CHARGES: Tenant hereby
l acknowledges the fact that traffic and impact fees will be assessed against the project for
additional pedestrian and vehicular trips generated by the Premises under this Lease. Metro .
Dade County will assess a fee based on ordinance 0#-88-112 dated 12/6/88. Pursuantto the .
Dade County road impact fee calculations, it is estimated that the fee charged for the retail
component of the project will be approximately $6,000. The City of Miami Beach may
assess a charge for impact mitigation or require participation in a TCMA to mitigate the
impact of the retail component and based on the number of trips generated by the retail
. .space. LanCllofd Will negotiate with tne CIty of Miami Beach and. Miami-Dade County to
reduce the amount of charges/fees assessed, but there is no guarantee as to the final amount
that will be charged by Miami-Dade County or the City of Miami Beach, The combined fee
could be as low as $10,000 or as high as $35,000. Landlord shall be responsible for the
payment of all such traffic impact fees, and such other development or impact fees arising
. from the development and construction of the Building assessed by the City of Miami Beach
and Miami-Dade County except suchJees as will be assessed to Tenant by the City of Miami
Beach and Miami-Dade County relative to the Tenant's improvements to the Premises or the
operation of Tenant's business, such as occupational licenses and building permit fees.
Although Landlord shall be responsible for all of the traffic impact fees and other
development or impact fees arising from the initial development and construction of the
Building, as stated in the foregoing paragraph, the Tenant shall be responsible for any such.
fees which may be assessed to the Landlord or the Tenant as a result of a future subdivision
of the Premises by Tenant or any action by Tenant.
ARTICLE 3: TERM
Section 3.01(a): TERM OF THIS LEASE. The "Term of this Lease", (sometimes herein
called the "Term") shall mean the period starting on the Rent Date (as defined in Section
4.03 below) and continuing for the number of Lease Years set forth in Section 1.01 (C). The
first lease year means the period beginning on the Rent Commencement Date and ending on
the last day of the twelfth full calendar month thereafter. "Lease Year" means each
successive twelve (12) month period after the first Lease Year occurring during the Term.
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Section 3.02: OPTION TO RENEW AND EXERCISE THEREOF: Tenant shall have two
(2) options to renew this Lease, each option for a period of five (5) years at the Minimum
Rent set forth in Section 1.01 (E) above. These options shall be exercised by the delivery
by Tenant to Landlord of a written notice of its election to exercise such option, Such notice
. shall be delivered no later than one hundred and eighty (180) days prior to the expiration of
the initial five year lease and one hundred and eighty (180) days prior to the expiration of the
first option period. If the Tenant fails to exercise either option as indicated above, and ifby
reason of such failure, Landlord has been materially adversely affected, then Tenant's option
to extend this Lease shall expire immediately, but in no event shall Tenant be permitted to
exercise its option later than ninety (90) days prior to expiration of either renewal term.
J.Yi1:lrin fifteen (I5) days from Landlord's receipt ofT enant' s notice to renew as to the Second
. ':.option Period, Landlord shall deliver to Tenant, in writing, the amount of Tenant's new
i: Minimum Rent based on market rent for similar retail premises located within the "South
Beach" area and Tenant shall have fifteen (15) days thereafter within which to notify
Landlord in writing nit wishes to revoke its election to renew based upon the unacceptability
of the market rent and if such notice is timely delivered to Landlord, then Tenant shall be
. deemed to have revoked its exercise of its option to renew and the Lease shall terminate upon
the expiration of the then current term.
ARTICLE 4: RENT
Section 4.01: TENANT'S AGREEMENT TO PA YRENT. Tenant hereby agrees to pay
Minimum Rent (as defined in Section 4.02 below), and Additional Rent (as defined in
Section 5.01 below). The term "Rent" includes the Minimum Rent, and Additional Rent.
Section 4.02: MINIMUM RENT. The minimwn amount of rent Tenant shall pay Landlord
for each Lease Year is the amount set forth in Section 1.01(E) (herein called "Minimwn
Rent''), Rent for the period from the Rent Commencement Date to the first day of the month
following such date shall be prorated on a daily basis and shall be payable with and in
addition to the second installment ofMinimwn Rent. The Minimum Rent for each Lease
Year shall be payable in twelve (12) equal monthly installments, (together with all applicable
taxes, in advance no later than the fifth (5th) business day of each calendar month. The first
installment ofMinimwn Rent and Additional Rent for the first month of occupancy shall be
due upon delivery of the Premises to Tenant.
Section 4.03: RENT COMMENCEMENT DATE. As used in this Lease, the term "Rent
Commencement Date" shall mean the earlier of Tenant' s opening for business or ninety (90) .
days from Landlord's delivery of the Premises to the Tenant
Section 4,04: PERCENTAGE RENT. N/A
Section 4.05: MONTHLY PAYMENT OF PERCENT RENT; YEAR-END
ADJUSTMENT, N/A
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Section 4.06: GROSS SALES, For the first five (5) years of the Lease Term, 60 days after
the end of each calendar year, Tenant shall submit to Landlord a statement of Gross Sales
from the Premises reported by month for the prior calendar year,
Section 4.07: TENANT'S RECORDS AND STATEMEN!'S OF GROSS SALES, N/A
Section 4.08: ADDITIONAL AUDIT RIGHTS. N/A
Section 4.09: PAYMENT BY TENANT. Tenant shall pay, as Rent, all sums of money or
charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to this
:Lease, whether or not the same is designated as "Rent".
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,,' Section 4.10: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTION, Rent
payable by Tenant under this Lease shall be' piud when due without prior demand therefore
(except where such prior demand is expressly provided for in this Lease},-'without any
deduction, setoff or counter claims whatsoever, to Landlord at the address set out in Section
1. 0 1 (L) or to such payee and at such address as may be designated by Landlord to Tenant in
writing, If any payment of Rent or other charges due hereunder is not made within five (5)
calendar days after its due date, such payment shall bear interest at the lesser of fifteen
percent (i5%) or the highest iawfulrate, Under paId.
ARTICLE 5: TAXES, INSURANCE AND OPERATING EXPENSES
Section 5.01: ADDITIONAL RENT
(a) In addition to the Minimum Rent provided in Article 4 above, and commencing on the
Rent Commencement Date, Tenant shall pay to Landlord "Additional Rent", which is
an amount equal to "Tenant's Proportionate Share" of all "Taxes", "Insurance", and
"Operating Expenses", as hereinafter defmed:
(i) "Tenant's Proportionate Share" shall be the percentage set forth in Section
1.01 (H) hereof, stipulated to be 8% with no adjustment.
(ii) "Taxes" shall mean all imposition, taxes, assessments (special or otherwise), and
other governmental liens or charges of any and every kind, nature and sort
whatsoever, ordinary and extraordinary, foreseen and unforeseen, and substitutes
therefore (except only income, franchise and estate taxes) attributable in any
manner of the Building and/or the land on which the Building isJQCated or any
part thereof, or any use thereof, or any equipment, fixtures or other facility
located therein or thereon or used in conjunction therewith. and all rentals or
other receipts produced there from and including all reasonable costs incurred by
Landlord in contesting same and/or negotiating with public authorities as to
same, but only to the extent attributable to the period of time falling within the
Term.
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(iii) "Insurance" shall mean the cost to Landlord of all casualty (including all
extended coverages), liability, flood hazard, workmen's compensation, rent loss,
and other insurance maiDtained by Landlord (in Landlord's reasonable discretion)
and applicable to the Building and the land upon which the Building is located.
(iv) "Operating Expenses" shall mean all costs; expenses, and disbursements incurred
in operating, repairing, maintaining the Building, excluding only "Taxes",
"Insurance", the cost of mortgage financing, tenant. improvements, and
commissions or fees paid in connection with Landlord's leasing activities, but
specifically including, within limitation, gardening and landscaping, the cost of
repairs, maintenance, lighting, sanitary control, removal of trash, rubbish,
ir '. garbage and other refuse, sewerage facilities, utility lines and drainage facilities
f;' and water and other utilities or directly paid for by tenants of the Building,
i' depreciation of machinery and equipment used in such maintenance, the cost of
management, and the cost of personnel to implement such services. Such charges
shall be uniform and competitive and shall not include any profit to Landlord
Operating Expenses as provided in this Section will not contain the initial capital
improvements to the Building nor additional capital improvements which will not
result in a reduction of Operating Expenses. There shall be no duplication of any
costs or expenses,
The following shall also be excluded from Operating Expenses:
1. The cost of any work performed by Landlord for any tenant in connection
with preparing space of such tenant's occupancy or otherwise or any
tenant concessions;
2. Cost of items reimbursed by insurance proceeds, construction warranty
or otherwise;
3, Franchise and income taxes;
4, Legal fees in connection with other tenants;
5, Fines imposed on Landlord for failure to comply with any laws and costs
of bringing the Building into compliance with such laws; _
6, Salaries and other expenses in respect of executive officers or partners of
Landlord;
7. Costs of any transaction with an affiliate of Landlord to the extent it
exceeds the customary cost of siniilar transactions between unrelated
parties;
8. Cost of restoration or repair following fire or water_ casualty or
condemnation;
9. Interest or costs in the nature or expenses of financing;
10. Costs of goods or services not provided to tenants gener~y;
11. Cost of repairing or correcting any defect in construction or
noncompliance with law or governmental regulations;
12. Leasing commissions and other leasing expenses; and
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13. Damage awards against Landlord.
(b) Upon the Commencement Date, Landlord shall submit to Tenant a statement of the
anticipated monthly Additional Rent for the period between such Commencement Date
and the following January and Tenant shall pay same on a monthly basis on the first day
of each month during the term Tenant shall continue to make said monthly payments
until notified by Landlord of a change thereof, By January 31 st of each year Landlord
shall endeavor to give Tenant a statement showing the total "Taxes", "Insurance", and
"Operating Expenses" for the Building for the prior calendar year and Tenant's
Proportionate Share thereof, prorated from the. Commencement Date. Such statement
t _ shall not be delivered to Tenant later than March 1 st of each year. In the event the total
Co" of the monthly payments which Tenant has made for the prior calendar year shall be less
jf than Tenant's actual Additional Rent due, then Tenant shall pay the difference in a lump
sum within thirty (30) days after receipt of such statement from Landlord and shall
concurrentlYJl.aythe difference in monthly payments made in the then calendar year ana "-
the amount" of monthly payments which are then calculated as monthly Additional Rent
based on the prior year's. eXperience. Any overpayment by Tenant shall be credited
towards the monthly Additional Rent next coming due. The anticipated; monthly
Additional Rent billed to Tenant may be changed from time to time by Landlord based
uponllie pno(years actuaI 8tateirieiiis or LaIiaf6:i-a-'-s anticIPated costs. Even-though the
Term has expired and Tenant has vacated the Premises, when the final determination is
made of Tenant's share of said Additional Rent for the year in which this Lease
terminates, Tenant shall immediately pay any increase due over the estimated Additional
Rent previously paid and, conversely, any over-payment made shall be immediately
rebated by Landlord to Tenant. Failure of Landlord to submit statements as called for
herein shall not be deemed to be a waiver ofT enant' s requirement to pay sums as herein
provided. Notwithstanding the foregoing, in no event shall the increase in Operating
Expenses for any calendar year exceed five (5%) percent of the Operating Expenses
(exclusive of Taxes and Insurance) for the immediately preceding calendar year.
Section 5.02: RENT TAX. Together with each payment of Rent, Tenant shall pay all sales
. taxes and/or any other taxes charges and/or Impositions in the nature of sales taxes assessed
by any governmental authority thereon and any other charges collected by Landlord from
Tenant there under. Should any governmental taxing authority acting under any present or
future law, ordinance, orregulation, levy, assess, or impose a tax, excise or assessment (other
than an income or franchise tax) upon or against the Rent, or any part of it, Tenant shall pay
Such tax, excise and/or assessment when due, or shall on demand reimburse L~dlord for the
amount thereof, as the case may be.
Section 5.03: TENANT'S BUSINESS TAXES. Tenant shall pay when due all taxes,
assessments, license fees and public charges levied, assessed or imposed upon its business
operation, as. well as upon its leasehold interest, trade fixtures, fi.Irztishings, equipment,
leasehold improvements, alteration, changes and additions made by Tenant, merchandise and
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personal property of any kind owned installed or used by Tenant in, on or upon the Premises.
ARTICLE 6: USE OF PRE.MISES
Section 6.01: SOLE USE AND TRADE NAME, Tenant shall use the Premises for the
purpose specified in Section 1.01 (I) ("Permitted Use") and for no other purpose whatsoever
and shall conduct its business in the Premises solely under the trade name specified in
Section 1.01(B). If Tenant wishes to conduct it's business in the Premises under any other
trade name, Tenant shaH obtain the prior written consent of Landlord, which shall not be
unreasonably withheld. Tenant shall, at its expense, procure all governmental licenses and
~ts required for the conduct of Tenant's business on the premises and shall, all times,
f&omply with the requirements of each such license and permit.
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Section 6.02: TENANT'S OPERATION. Ibroughout the Term of this Lease, the decor and
fixturing of the Premises, Tenant's merchandise and.the,.operation of Tenant's business
conducted in the Premises shall be consistent with the operation of a "first-class" retail
facility. Tenant shall operate its business at the Premises in a respectable, reputable, tasteful,
competent and dignified manner in order to enhance the image of the area surrounding the
Premises as a whole and its reputatio.ll as a desirable place to shop. The foregoing
" ,- -aescripuon is not-i.ntendea-15y I:anCUord-roiCrWill not De enforceo to affect the retall-selling
price of Tenant's merchandise or services. Tenant further covenants with Landlord as
follows:
(a) Tenant shall not at any time throughout the term ofthis Lease abandon, leave vacant or
desert the Premises;
(b) From and after the Rent Commenceme.llt Date, Tenant will keep the Premises
continuously and uninterruptedly open for business at least from the hours of 1 0:00 a,m.
to 8:00p.m, Mondaythru Friday, 11:00 a.m. to 8:00p.m. 0.11 Saturday, and Tenant shall
not be required to open the Premises for business on Sundays or nationally recognized
holidays.
(c) From and after the Rent Commencement Date, Tenant shall continuously and without
interruption, in good faith, actively use, occupy and operate the entire Premises, with an
inventory of goods and merchandise and a staff of personnel adequate, sufficient and
appropriate to operate the Premises in accordance with the standards contained in this
Section 6.02;
(d) Intentionally Omitted.
(e) Tenant shall have completed Tenant's Work and shall have provided ~dlord with
written evidence of payment of same in the form of paid bills, paid invoices and lien
waivers, by no later than fifteen (15) days after the Opening Date;
(f) Tenant will not cO.llduct or permit to be conducted any auction, fire, bankruptcy or going
out of business sales;
(g) Tenant will not use or permit the use of any apparatus for sound reproduction or
transmission or of any musical instrume.llt in such manner that the sounds so reproduced,
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transmitted or produced shall be audible beyond the interior of the Premises;
(h) Tenant will keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the Premises; will not cause or permit strong, unusual,
offensive or objectionable noises, odors, fumes, dust or vapOrs to emanate or be dispelled
from the Premises nor bum trash or store or permit accumulations of any trash, garbage,
rubbish or other refuse outside of the Premises except in compactors or other receptacles,
if any, provided by Landlord;
(i) Tenant will not paint or decorate any part of the exterior of the Premises, or change the
architectural treatment thereof;
G) Tenant will keep the inside and outside of all glass in the doors and windows of the
1, Premises clean; onthe footwaIks adjacent thereto or elsewhere on the exterior thereof,
i;/ will maintain the Premises at its own expense in a clean, orderly and sanitary condition
? and free of insects, rodents, vermin and other pests; and will keep refuse in proper
containers on the interior of the Premises until removed from the Premises. At a
minimum, tenant shall cle{ID all exterior glass in and out once every two weeks, hose and ..
sweep front walks and setbacks located directly in front of the Premises at least once per
week and police front of Premises for trash on a daily basis.
0.) Tenant will comply with all applicable governmental laws, rules, regulations, orders and
guidelines, and all requirements of any public or private agency having authority over
insurance rares Willi respect to flle USe of occupancy ofllie Pi'eiriises&y Tenant, ana wiIl
not use or permit the use of any portion of the Premises for any unlawful or unpermitted
purpose; Tenant's compliance with respect to any goveQlIllental law that changes after
the Rent Commencement Date shall be limited to $15,000.00 per occurrence with the
Landlord covering any additional expenses required to bring the Premises to compliance
with the pew law. However, Landlord shall be responsible for all structuraI changes to
the Premises or changes or modifications to Landlord's Building other than the Premises
required by any such laws, rules, regulations, orders, guidelines or requirements,
(1) Tenant will comply with and observe the reasonable rules and regulations promulgated
by Landlord, provided the rules and regulations are uniformly enforced against all
tenants of the Building.
(m)Tenant will not use the sidewalks adjacent to the Premises, or any other space outside of
the Premises, for the sale or display of any merchandise or for other business, occupation
or undertaking without the express written consent of Landlord, which may be given or
withheld in Landlord's sole discretion.
(n) Should Tenant not comply with the foregoing covenants Landlord shall undertake the
work and shall be reimbursed for any and all expenses incurred by the failure of Ten ant
to comply with these coverages.
Section 6.03. SIGNS, AWNINGS AND CANOPIES. Tenant hereby agrees that it will not
place or suffer to be placed or maintained on any exterior door, wall or window of the
Premises, any signs, awning or canopy, or advertising matter on the glass of any window or
door of the Premises without first obtaining Landlord's written approval and consent, which
shall not be unreasonably withheld provided that Tenant's signage does not exceed twenty
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(20) square feet, is in compliance with City code and does not impede the visibility of the
Garage signage of the Building. Tenant further agrees to maintain any such'sign, awning,
canopy, decoration, lettering, advertising matter or other thing as may be approved or
provided by Landlord in good condition and repair at all times, Notwithstanding the
foregoing, Landlord shall consent to exterior lettering using Tenant's standard Logo, so long
as Tenant obtains all governmental permits and approvals,
Section 6.04. EFFECT ON LANDLORD'S INSURANCE. Tenant shall not do or suffer to
be done, or keep or suffer to be kept, anything in, upon or about the Premises which will
contravene Landlord's policies insuring against loss. Of damage by fire or other hazards, or
}\;'hich will prevent Landlord from procuring such policies in companies acceptable to
~tandlord, or which will cause an increase in the insurance rates upon any portion of the
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f Building. If Tenant violates any prohibition provided for in the first sentence of this Section,
Landlord may, without notice to Tenant, correct the same at Tenant's expense. Tenant
, agrees to pay to Landlord as Rent on demand the amount of any increase in premiums for
insurance resulting from any violation of the first sentence of this Section, even if Landlord
shall have consented to the doing of, or keeping of, anything on the Premises which
constitutes such a violation (but the payment of such Rent shall not entitle Tenant to violate
the provision.ofthe first sentence of this Section).
ARTICLE 7: ALTERATIONS TO PREMISES
Section 7.01: ALTERATIONS; DAMAGES. Tenant shall make no structural alterations,
. additions or changes in or to the Premises (excluding non-structural alterations costing less
than $15,000 and excluding interior, cosmetic changes such as floor or waIl coverings)
without Landlord's prior written consent, which consent shall not be unreasonably withheld.
Further, Landlord agrees that Tenant shaIl have the right to subdivide the Premises provided
that any improvements or alterations to the Premises in connection with such subdivision
shall be in accordance with local building codes and all appropriate permits will be obtained
relating thereto. In no event shall Tenant make or cause to be made any penetration through
any roof, floor or exterior or corridor wall without the prior written consent of Landlord.
Tenant shall be directly responsible for any and all damages resulting from any alteration,
addition or changer Tenant makes whether ornot Landlord's consent therefore was obtained.
Any and all alterationS additions and changes made to the Premises which are required to be
consented to by Landlord shall be made under the supervision of a competent architect or
competent licensed structural engineer and in accordance with plans and specifications,
approved by Lender and all necessary governmental approvals and permits, which approvals
and permits Tenant shall obtain at its sole expense, All work done by Tenant-with respect
to any alterations, additions and changes must be done in a good and workmanlike manner
and diligently prosecuted to completion to the end that the Premises shall at all times be a
complete unit except during the period of the work. Tenant shall also satisfy all requirements
of Section 2.04 with respect to any work done by Tenant. Any work done by Tenant without
Landlord's consent shall be returned to its original condition at Tenant's expense upon
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request by Landlord.
Section 7.02: CHANGES BY LANDLORD. Tenant agrees that Landlord shall at all times
have the right and privilege of making such changes, rearrangements, additions or reductions
to the Building from which in its opinion are desirable (provided such changes do not
unreasonably adversely affect the visibility of the facade of or access the Premises), or which
are as a result of any federal, state or local environment protection or other law, rule,
regulation, guideline or order, provided Landlord shall not unreasonably interfere with
Tenant's business or use.
~~ction 7.03: COMPLIANCE WITH LAWS. Any permitted changes, alterations and
'iillditions made by Tenant shall be performed strictly in accordance with applicable laws,
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;; rules, regulations and building codes relating thereto.
Section 7.04: INSURANCE AND RECONSTRUCTION. In the event Tenant shall make
any permitted alterations, additions or changes to the Premises under the terms and
provisions of this Article, none of such alterations, additions or changes need e insured by
Landlord under such insurance as Landlord may cany upon Landlord's Building, nor shall
Landlord be required under any provisions of this Lease fo.r reconstruction of the Premises
. 1oreconstrUCl or iemSfiilfaiiysucn alteratIons, additions or chiiiiges,
ARTICLE 8: INSURANCE
Section 8.01 (A): INSt.JRANCE. Tenant shall maintain at its expense throughout the term
of this Lease the following insurance coverages (which may be carried through "Blanket
Policies"): (i) liability insurance for bodily injury and property damage to protect both
Landlord and Tenant against damage, costs and attorneys' fees arising out of accidents or
occurrences of any kind occurring in the Premises with combined single limit liability
coverage of not less than $5,000,000 and property damage coverage of not less than
$500,000; (ii) fire and extended casualty insurance with sufficient coverage to reimburse the
loss of all ofT enant's improvements to the Premises, and all of Tenant' s fixtures, equipment,
personal property and inventory; (Ui) plate glass insurance to protect both Landlord and
Tenant covering the repiacement value of all plate glass in or about the Premises; and (iv)
appropriate workmen's compensation and any and all other insurance required by law. In
addition, Tenant agrees that it will to keep, use, sell or offer for sale in or upon the Premises
any article which may be prohibited by the standard form offire insurance policy. Tenant
agrees to pay any increase in premiums for fire and extended coverage insUl'liIlce that may
be charged to Landlord during the term of this Lease on the amount of such insurance which
may be carried by Landlord on the Premises, resulting from the type of merchandise sold by
Tenant in the Premises, whether or not Landlord has consented to the same, provided
however, if the merchandise sold is consistent with the Permitted Use hereunder, Tenant
shall not be responsible for increases in premiums.
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Landlord shall maintain, at its expense throughout the term of this Lease, the following
insurance coverages (which may be carried through "Blanket Policies"): (i) liability
insurance for bodily injury and property damage to protect both Landlord and Tenant against
damage, costs and attorneys' fees arising out of accidents of any kind occurring on or about
the Building with combined single limit liability coverage of not less than $5,000,000 and
property damage coverage of not less than $500,000; (ii) fire and extended casualty
insurance with sufficient coverage to reimburse Landlord for the loss of the Building and all
of Landlord's fixtures, equipment and personal property; (iii) appropriate workmen's
compensation and any and all other insurance required by law or the Ground Lease.
:,Section 8.01(B): MUTUAL WAIVER OF SUBROGATION RlGHTS, Anything in this
(tease to the contrary notwithstanding, Landlord and Tenant each hereby waive any and all
i rights of recovery, claim, action or cause of actions against the other, its agents, partners,
officers, directors or employees, for any death or injury to any person or loss or damage that
may occur 10 the Building, Premises or part thereof, or to any personal property of such party
therein, by reason of fire, the elements or any other cause(s) which are insurable under a
standard fire and eXtended coverage "all risk" property insurance policy to the extent such
death, injury or loss or damage is covered by any policy of insurance required to be carried
by the waiving party hereunder. Landlord and Tenant shall each obtain an endorsement to
aIrortlierr msurance policies to effect the proviSIOns ortllls Section 8.01(8), provided that
su::h endorsements are available at no additional cost.
Section 8.02: INDEMNIFICATION OF LANDLORD. Tenant will indemnify Landlord and
save it harmless from and against any and all claims, actions, damages, liability and expense
in connection with the loss of life, personal injury and/or damage to property arising from
or out of any occurrence in, upon, or at the Premises, or the occupancy or use by Tenant of
the Premises, or occasioned wholly or in part by any negligent act or omission of Tenant, its
agents, contractors, employees, servants, tenants, invitees or concessionaires except to the
extent such claims, actions, damages, liability and expense are the result of any negligence
or intentional acts of the Landlord or its agents, employees or contractors, Landlord shall
similarly indemnify Tenant and save it harmless from and against any and all claims actions,
damages, liability and expense in connection with the loss of life, personal injury and/or
damage to. property arising from or out of any occurrence in, upon, or at the Premises
occasioned wholly or in part by any negligent act or omission of Landlord, its agents,
employees or contractors except to the extent such claims, actions, damages, liability and
expense are the result of the negligence or intentional acts of Tenant its agents, employees
or contractors, In case Landlord shiill be a party to any litigation involving_a third party
commenced by or against Tenant with respect to an indemnified claim, then Tenant shall
protect and hold Landlord harmless and shall. pay all costs, expenses and reasonable
attorneys fees incurred or paid by Landlord in connection with such litigation, except if
Landlord is found to be negligent in such litigation. If either Landlord or Tenant brings an
action against the other to enforce any of the covenants or agreements in this Lease, the
prevailing party (which includes the part in whose favor settlement of any claim is reached)
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shall be entitled to recover all reasonable costs, expenses and reasonable attorneys fees
incurred in brining such an action from the other party. Landlord shall indemnify, Tenant
with respect to liability for claims for occurrences in the common area, except to the extent
such claims are the result of any action omission or negligence by the Tenant or it's agents,
contractors, employees, servants, Tenants, invitees, concessionaires or assigns. The
indemnifications by Tenant and Landlord of each other hereunder shall be subject to and
conditioned upon the provision of Section 8.01 (B) dealing with mutual waiver of subrogation
rights.
Section 8.03: PLATE GLASS, Tenant shall replace; at the expense of Tenant, any and all
llllate and other glass damaged or broken from any cause whatsoever in and about the
'Premises. Tenant shall insure, and keep insured, at Tenant's expense, all plate and other
f glass in the Premises for and in the name of Landlord.
Section 8.04: LIMIT OF LANDLORD'S RESPONSIBILITY. Except to the extent of .
Landlord's (or it's contractors, employees or agents) negligent or intentional acts, Landlord
shall not be liable: for death of of injury to Tenant or others arising from or out of any
occurrence in, upon, at or relating to the Building; for the loss of or damage to property of
Tenant or others by theft or otherwise; for the death, injury, loss or damage of or to persons
. or -property restiUfug from lire, eXplosion, fallIng pTlister, steam. gas, electricity, water
(including sewer backup), rain snow or leaks from any part of the Building or from any
pipes, appliances or plwnbing works thereof or from the roof, street or sub-surface of any
floor or ceiling, or from any other place, or from dampness or :freezing, or resulting from
construction, alterations or repairs, or from any other cause of any kind; for loss or damage
howsoever caused including, without limitation, loss or damage caused by other tenants,
persons in the Building, occupants of property adjacent thereto and the public, or caused by
construction or any private, public or quasi-public work; for damage suffered to the Premises
or the contents thereof by reason of Landlord or those for whom it is responsible at law
entering the Leased premises to undertake any expropriation thereof as provided at law or
under this Lease, or in the case of an emergency; and for .damage required to be insured by
Tenant under Section 8,01.
ARTICLE 9: RECONSTRUCTION
Section 9.01 RECONSTRUCTION. In the event the Premises or the Building are damaged
by fire or other perils or casualties covered and paid for by extended coverage insurance and
Landlord's repairs can be completed within six (6) months from the date of such casualty
(using reasonable estimates for completion of building plans, issuance o:(permits and
adjusting the casualty loss by the insurer as well as a reasonable time for completion of
construction), Landlord agrees to forthwith repair same (exclusive of Tenant's leasehold
improvements, fixtures, etc.) provided further Landlord's lender makes the insurance
proceeds available for such purposes, and this Lease shall remain in full force and effect
except that Tenant shall be entitled to a proportionate abatement of the Rent from the date
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of damage and while such repairs are being made, such proportionate abatement to be based
upon the extent to which the damage and making of such repairs shall interfere with the
business carried on by Tenant in the Premises. If the Premises or the Building cannot be
repaired within six (6) months as indicated above, Landlord or Tenant may elect to terminate
this Lease in writing in which event each party will, at each other's request, execute an
instrument in recordable from containing a release and surrender of all rights, title and
interest in and to this Lease. If such damage is due to the fault or neglect of Tenant or its
employees, however, there shall be no abatement of Rent provided Landlord is not also
receiving compensation for loss of rent from insurance coverage. Landlord agrees to give
Tenant notice if Landlord obtains insurance coverage for loss of rent for the Premises.
~otwithstanding anything to the contrary contained in this paragraph, Landlord shall not
i.bave any obligation whatsoever to repair, reconstruct or restore the Premises and both
,;: Landlord and Tenant shall have the right to terminate this Lease when the damage resulting
. from any casualty covered under this paragraph occurs during the last twenty-four (24)
months of the term of~ Lease or any extension thereof. Landlord shall not be required to
, repair any injury or damage by fire or other cause, or to make any repairs or replacements
of any leasehold improvements, fixtures, or other personal property of Tenant.
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- ARTICLE 10: MAINTENANCE OF PREMISES
Section 1 om: LANDLORD'S DUTY TO MAINTAIN STRUCTIJRE. Landlord will keep
the roof, exterior walls, structural columns, structural floor or floors (excluding other floor
and floor covering, walls iru..ialled at the request of Tenant, doors, windows and gla<;s)
common areas and electricai, plumbing and other systems outside the Premises, clean and
in good,repair except the maintenance items required to be perfomied by Tenant under
Section 6.02. Notwithstanding the foregoing provisions of this Section, Landlord shall not
in any way be liable to Tenant on account ofits failure to make repairs unless Tenant shall
have given Landlord written notice of the necessity for such repairs and has afforded
Landlord a reasonable opportunity to effect the same after such notice, and provided that any
damage arising there from shall not have been caused by the negligent or willful act or
omission of Tenant, its concessionaires, officers, employees, licensees or contractors (in
which event, subject to Section 8.01(B) hereof, Tenant shall be responsible therefore unless
Landlord is reimbursed by insurance proceeds in which case Landlord shall be so obligated)
or have been caused by any of the items Tenant is required to insure pursuant to Article 8,
Landlord shall have no liability for repair, maintenance, alteration or any other action with
respect to the Premises or any part thereof, or any plumbing, electrical or the mechanical
installations therein, except as expressly set out in this Section 10,01, Interruption of utility
services shall not entitle Tenant to any abatement of Rent-unless caused by- Landlord its
contractors, employees or agents.
Section 10,02: TENANT'S DUTY TO MAINTAIN. Except to the extent Landlord is
obligated to make any repairs or structural changes hereunder, Tenant will, at its own cost
and expense, maintain the Premises in good and tenantable condition, ordinary wear and tear
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excepted, and make all repairs to the Premises and every part thereof as needed Tenant's
obligations under this Section shall include, but not be limited to, repairing and maintaining
items as are required by any governmental agency having jurisdiction thereof (whether the
same is ordinary or extraordinary, foreseen or unforeseen), interior walls and the interior
portions of exterior walls, ceilings, utility meters, pipes and conduits within the Premises and
a utility meters, pipes and conduits outside the Premises which are installed by Tenant or at
Tenant's expense, all electrical systems, air conditioning, fixtures, sprinkler equipment and
other equipment within the Premises, the store fronts, all Tenant's signs locy.s and closing
devices, and all window sash, casement or frames, doors and door frames, provided that
Tenant shall make no adjustment, alteration or repair of any part of the sprinkler or sprinkler
1!fann system in or serving the Premises without Landlord's prior approval. In maintaining
. '.the Premises in the foregoing condition, Tenant shall not be obligated to paint or refurbish
!. the Premises more frequently than every three (3) years of the Lease Term. All glass, both
exterior and interior, is at the sole risk of Tenant and any glass broken shall be promptly
replaced by Tenant, with glass of the same kind, size and qualitY.-Tenant shall permit no
waste, damage or injury to the Premises and Tenant shall initiate and carry out a program of
regular maintenance and repair of the Premises, including the painting or refinishing of all
areas of the interior and the store front, so as to impede, to the extent possible, deterioration
by ordinary wear and tear and to keep the same in attractive condition. Tenant will not
. - overload tIie eTectricaI Wiring serving the Premises, and will install at Its expense, but only
after obtaining Landlord's written approval, any additional electrical wiring which may be
required in connection with Tenant's apparatus,
Section 10.03: LANDLORD'S REPAIR OF PREMISES. Landlord shall be under no
. obligation to make any repairs, replacements, reconstruction, alterations, renewals, or
improvements to or upon the Premises or themechanica1 equipment exclusively serving the
Premises except as expressly provided for herein or required by any ordinance, code
provision, regulation, rule, law or order of any applicable governmental agency or as may
be ordered by a court exercising competent jurisdiction,
Section 10.04: LANDLORD'S RIGHT OF ENTRY AND USE, Landlord and its authorized
representatives may enter the Premises at any and all-reasonable times following reasonable
prior notice for the purpose of inspecting the same. Tenant further agrees that Landlord may
from time to time go upon the Premises and make any repairs to the Premises or to any
utilities, systems or equipment located in, above or under the Premises which Landlord may
deem necessary to prevent waste or deterioration in connection with the Premises if Tenant
does not make or cause such repairs to be made or performed promptly after~emand from
Landlord, Nothing herein shall imply any duty on the party of Landlord to perform any such
work which under any provision of this Lease Tenant may be ~equired to do, nor shall it
constitute a waiver of Tenant's default in failing to do the same. In the event Landlord
performs or causes any such work to be performed, Tenant shall pay the cost thereof to
Landlord forthwith as Rent upon receipt of a bill therefore. Any and all reasonable times
following reasonable prior notice, Landlord may install pipes, ducts, conduits, wires and
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other mechanical equipment serving other portions, tenants and occupants of the Building,
under or above the Premises, without the same constituting anactual or'constructive eviction
of Ten ant. Upon reasonable prior notice, Landlord may also go in the Premises at all times
for the purpose of showing the Premises to prospective purchasers, mortgagees and, ifT enant
is in default or during the last six (6) months of the Term, prospective tenants. No exercise
by Landlord or any rights provided in this Article 10 shall entitle Tenant to any damages for
any inconvenience, disturbance, loss of business or other damage to Tenant occasioned
thereby, nor to any abatement of Rent. Landlord will exercise its rights under this Section
in a manner that will not cause unreasonable interference with Tenant's business.
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ARTICLE 11: lJITLmES
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i Section 11.01: UTILITIES. Tenant shall pay for all water, gas, light, power, sewer charges,
telephone service and all other services and utilities supplied to the Premises, together with
any taxes thereon. If any suchsePvlces are not separately metered to Tenant, Tenant shall.
pay its proportion of all charges jointly metered with other premises. Cold Water and a
sanitary sewer line have been stubbed to the Premises by Landlord.
ARTICLE 12: hIENS
Section 12.01: NO LIENS PERMITTED; DISCHARGE. Landlord's property shall not be
subject to liens for work done or materials used on the Premises made at the request of, or
on ord~r of or to discharge an obligation of Ten ant. If any lien or notice of lien on account
of an alleged debt of Tenant or any notice of contract by a party engaged by Tenant or
Tenant's contractor to work on the Premises shall be filed againstthe Building or any part
thereot: Tenant, within ten (10) days after notice of the filing thereof, will cause the same to
be discharged of record by payment, deposit, and, order of a court of competent jurisdiction
or otherwise. If Tenant shall fail to cause such lien or notice of lien to be discharged within
the period aforesaid, then, in addition to any other right of remedy, Landlord may discharge
the same either by paying the amounts claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings.. Any amount so paid by Landlord and all
cost and expenses, including attorney's fees, incurred by Landlord in connection therewith,
and including interest thereon at the rate of eighteen percent (18%) per annum for the highest
lawful rate of interest, whichever is lower shall constitute Rent and shall be paid by Tenant
to Landlord on demand, Nothing herein contained shall obligate Tenant to payor discharge
any lien created by Landlord,
ARTICLE 13: FIXTURES AND PERSONAL PROPERTY
13.01: TENANT'S PROPERTY: REMOVAL. Any trade fixtures, signs and other personal
property, of Tenant not permanently affixed to the Premises shall remain the property of
Tenant. Tenant shall have the right, provided Tenant is not in default under the terms of this
Lease, at any time and from time to time during the Term, to remove any and all of its trade
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fixtures, signs and other personal property which it may have stored or installed in Premises;
including but not limited to, counters, shelving, inventory, sho~cases, mirrors and other
movable personal property, provided (except at the expiration of the Term) that the same is
immediately replaced with similar personal property of comparable or better quality. Tenant
at its expense shall immediately repair any damage occasioned to the Premises by reason of
installation or removal of any such trade fixtures, signs and other personal property. If this
Lease expires oris terminated for any reason and Tenant fails to remove such items from the
Premises prior to such expiration or termination, then in an, such event all such trade
fixtures, signs and other personal property shall thereupon become the property of Landlord.,
without further act by either party hereto, unless Landlord elects to require their removal in
~hich case Tenant agrees to promptly remove same and restore the Premises to its prior
fe-ondition at Tenant's expense.
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Section 13.02: IMPROVEMENTS TO PREMISES. All improvements to the Premises by
l'en,ant, including, but not limited to, the items furnished pursuant to. Tenant's Work,
alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions,
but excluding trade fixtures and signs, shall become the property of Landlord upon expiration
of earlier termination of this Lease; provided, however, that Landlord may designate by
written notice to Tenant given to Tenant concurrently with Landlord's approval of such
alterations, changes and adifitions, or no rater than ninety (9"0) days prior to expiration or
termination of the Lease, those alterations, changes and additions which shall be removed.
by Tenant at the expiration or termination of this Lease in which event Tenant shall, at the
termination or expiration of this Lease, at its expense promptly remove the same and repair
any damage to the Premises caused by such removal. Notwithstanding the foregoing,
Landlord may require Tenant to remove those alterations which Tenant did not ask Landlord
to approve. Further notWithstanding the foregoing to the contrary, in no event will Tenant
be required to remove any of Tenant's Work.
ARTICLE 14: ASSIGNMENT AND SUBLETTING
Section 14.01: RESTRICTIONS OF ASSIGNMENT, The terms of this Lease, including
the provisions relating to Rent and Use have been negotiated by Landlord and Tenant on the
assumption that Tenant will be the sole occupant of the Premises for the full term. The
parties have therefore agreed that Tenant shall have no right to tranSfer, assign, subdivide,
sublet, enter into license or concession agreements, or mortgage or hypothecate this Lease
or Tenant's interest in the Premises or any part thereof without Landlord's prior written
consent except where otherwise provided in this Lease. Any attempted transfer, assignment,
subletting, subdividing license or concession agreement or hypothecation, Wiihout Tenant
first obtaining Landlord's written consent where required hereunder, shall be void and confer
no rights upon any third person, Any transfer of this lease from Tenant by merger,
consolidation, liquidation or otherwise by operation oflaw, including, but not limited to, an
assignment for the benefit of creditors, shall be included in the term "assignment" for the
purpose of this Lease and any attempted unauthorized assignment shall be a violation of this
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Section. Notwithstanding any of the foregoing to the contrary, without being released of any
liability hereunder (except where otherwise provided hereunder), Tenant may, as long as it
is not in default under this Lease, assign this Lease or sublet the Premises, upon giving
Landlord ten (10) days prior written notice, to any parent, subsidiary or affiliate entity which
controls, is controlled by, or is under common control with, Tenant, to any entity which
controls, is controlled by, or is under common control with, Tenant, to any entity resulting
from a merger or consolidation with Tenant, to any person or entity which acquires
substantially all of the assets of Tenant in the Miami Beach metropolitan area or to any
franchisee of Tenant (each of the foregoing is referred to as a "Permitted Assignment"). Any
allowable assignment or subletting detailed in the preceding sentence will only be permitted
if the entity which is the assignee or sub tenant operates the Premises at the same first-class
rjevel as the Tenant and continues to operate under the same Permitted Use as the Tenant.
..".1
Landlord's consent to any other assignment or subletting, not included in the definition of
Permitted Assignment shall not be unreaso..'1.ably withheld or delayed provided that: (i}the
. proposed assignee is financially capable of assuming the; monetary obligations of this Lease, .
in the Landlord's reasonable opinion; (ii) the proposed assignee has at least five (5) years
, retail apparel experience; (iii) the proposed assignee enjoys a reputation which shall be
consistent with the quality and character of Tenant's reputation; and (iv) the proposed
- assignee or suDIesse:e Slliilr riot in1eDa loUse ffie Yieriiisesfor wnlitis typicaJ.ly rererrecrti> as
a 'T-Shirt" store. Within fifteen (15) days from Landlord's receipt of all background
information on such assignee or sublessee reasonably requested by Landlord, Landlord shall
issue its approval or disapproval in writing to Tenant and if such proposed assignee or
sublessee is not approved, the reasons why. It is the intent of the parties hereto that
inasmuch as the Tenant is still responsible for its obligations under this Lease in the event
of a sublease, that the foregoing (i), (ii) and (iii) do not apply to a proposed sublease and the
Landlord shall consent to a prop'osed sublease provided that the proposed sublessee complies
with (iv).
Provided an assignee has a net worth at least equal to Surf Style, Inc.' s net worth at the time
of Tenant's execution of this Lease, or provides a guarantor which meets such criteria, and
such assignee otherwise meets the criteria set forth in this Section 14.01, the Tenant and all
of its guarantors, if any, shall be released from this Lease upon such assignment.
Section 14.02: CHANGE OF OWNERSIDP. If Tenant or Tenant's guarantor is a
corporation, unincorporated association or partnership, a transfer, assignment or
hypothecation of any stock or interest in such corporation, association or Partn..ership by any
stockholder or partner so as to result in a change in the control thereof by the person, persons
or entities owning a majority interest therein as of the date of this Lease, shall be deemed to
be an assignment of this Lease and shall be subject to the limitation set forth in Section 14.01
above, The foregoing will not be applicable to Tenant to the extent Tenant's stock is
publicly traded on a generally recognized stock exchange.
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ARTICLE 15: DEFAULTS BY TENANT
Section 15.01: EVENTS OF DEF AUL T. This Lease is made upon the condition that Tenant
shall punctually and faithfully perform all of the covenants, conditions and agreements by
it to be performed. The following shall each be an even to default (each of which is
sometimes referred to as an "Event of Default") in this Lease: .
(a) Any part of the Rent required to be paid by Tenant under this Lease shall at any time be
unpaid for five (5) days after written demand as required by Section 21,03, with the same
written demand to be sent via facsimile to Tenant at 305-538-5309. Notwithstandingthe
7. foregoing however, if Tenant is late in the payment of Rent more than three (3) times in
,p any twelve (12) month period, then no written demand for the payment of Rent shall be
i . required by Landlord thereafter, except as such may be required under Florida statutory
.. law.
(b) T enantJails in the observance or performance of any of its other covenants, agreements
or conditions provided for in this Lease, and said failure shall continue for a period often
(10) days after written notice thereof from Landlord to Tenant (unless such failure cannot
reasonably be cured within ten (10) days and Tenant shall have commenced to cure said
} failure within said ten (10) days, in which case Tenant shall have such an additional
penoo of nme 10 cure su.m failure as may. De reasonably requrrea \I1lderffie
circumstances so long as Tenant continuously and diligently attempts to prosecute the
cure to completion;
(c) Tenant fails to open for business on or before the date on which it is required by this
Lease to open the Premises for business with the appropriate permits and fully stocked,
except to the extent such failure is due to the acts of Landlord, its agents or contractors.
(d) If Tenant is in any plan of liquidation, composition or reorganization, or should any
involuntary proceedings be filed against Tenant or any such Guarantor under any such
insolvency or bankruptcy law (and such proceedings not be removed within ninety (90)
days thereafter). If any insolvency proceedings, subh as those referred to in this Section
15.01(d),are instituted against Tenant, -the Premises shall not become an asset in any
such proceedings;
(e) Tenant does or permits to be done, any act which creates a mechanic's lien or clairi:t
therefore against the Premises and fails to remove same or bond it within ten (10) days;
(f) Tenant fails to furnish Landlord with a copy of any insurance policy required to be
furnished by Tenant to Landlord when due, and such default shall continue for ten (10)
days after written notice from Landlord.
(g) Tenant does not renew the Letter of Credit Security Deposit or deliver the cash
equivalent to Landlord at least five (5) business days prior to its expiration date,
(h) Tenant does not renew the Guaranty Letter of Credit or deliver the cash equivalent to
Landlord at least five (5) business days prior to its expiration date.
Section 15.02: REMEDIES FOR TENANT'S DEFAULT. If an Event of Default shall
occur, Landlord, to the fullest extent permitted by law, shall have the right to pursue any and
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all remedies available at law or in equity, including the right to: (i) declare the balance 0 the
entire Rent for the entire Term of this Lease to be immediately due and payable (in which
event Landlord may then proceed to collect all of such unpaid rent called for by this Lease
by distress or otherwise and all damages caused by such Event of Default), (ii) sue for and
collect the Rent and/or all damages caused by such Event of Tenant' s Default, (iii) terminate
this lease, (iv) terminate Tenant's right to possession of the Premises without termination of
this Lease, and/or (v) specifically enforce Landlord's rights and/or to enjoin Tenant. Any
such termination of this Lease shall apply to any extension or renewal of the Term herein
demised. Nothing herein contained shaIl be construed precluding Landlord from having such
remedy as may be and become necessary in order to preserve Landlord's right or the interest
"f Landlord in the Premises and in this lease, even before the expiration of the grace or
'i1otice periods provide for in this Lease, if under particular circumstances then existing, the
;f allowance of such grace periods or the giving of such notice will prejudice or endanger the
rights in the estate of Landlord in this Lease or in the Premises, In the event of an emergency
Landlord need only give such notice as is reasonable under the circumstances before
exercising it's right to cure a default of Ten ant. Any and all reasonable expenses incurred
by Landlord in curing an Event of Default shall accrue interest from the date of such
incurrence at the Default Rate and shall be deemed Additional Rent.
-NotWltlfstahaing the foregomg, iran EVent of DefaUU Sfuill occUr iuid Laridlord SliaII seek
to recover Rent or any other sum due by Tenant hereunder (which together shall be deemed
"Rent" for purposes of this paragraph) from the Tenant as a result therefrom, then the
following limitations on Landlord's right to the recovery of Rent against Tenant shall apply:
(i) During the first five (5) Lease Years of this Lease, Landlord shall have the right to recover
Rent from Tenant as a result of Tenant's Event of Default. However, if Landlord applies the
Guaranty Letter of Credit, or any part thereof, in payment of Rent due after Tenant vacates
the Premises, then to the extent that Landlord relets the Premises and recovers any rent from
another tenant, then Landlord shall reimburse Tenant for such amount so recovered up to
the amount of sums of Minimum Rent, Operating Expenses, Taxes and Insurance received
by Landlord from the Guaranty Letter of Credit within fifteen (15) days from receipt of such
rent by the new tenant (ii) after the frrst five (5) Lease Years of this Lease, Tenant's liability
for Rent, in the Event of Default shall be limited to the Guaranty Letter of Credit and
Landlord shall have no recourse to Tenant for any Rent and if Landlord terminates the Lease,
or ifT enant elects to terminate the Lease for any reason, Landlord shall be entitled to the full
amount of the Guaranty Letter of Credit as agreed upon and liquidated damages and as
Landlord's sole remedy against Tenant and Tenant shall have no further obligations under
this Lease. Landlord shall have no obligation to repay to Tenant any of said Guaranty Letter
of Credit, notwithstanding that Landlord may relet the Premises and collect rent from another
tenant. Notwithstanding the foregoing however, the Security Deposit may be used by
Landlord in payment of any of Landlord's damages as a result of Tenant's failure to deliver
the Premises in the condition required by this Lease at the expiration or termination of the
Lease.
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Section 15.03: TENANT'S PROPERTY TO REMAIN. In the Event of Default, all of
Tenant's fixtures, furniture, equipment, improvements, additions, alterations, and other
personal property shall remain on the Premises, and in the event, and continuing during the
length of said default, Landlord shall have the right to peaceably take the exclusive
possession of same, in accordance with the requirements of Florida law, and to use same,
without cost, until all defaults are cured or, at its option, at any time during the Term, to
require Tenant, to forthwith remove same.
Section 15.04: LANDLORD'S DEFAULT.
~) Default by Landlord, The failure of Landlord to perform any of the covenants;
',;: ' conditions or agreements which are to be performed by Landlord under this Lease, and
>; the continuance of such failure for a period of thirty (30) consecutive days after ",Titten
notice in adequate detail to Landlord by Tenant (except in the event of an emergency or
such other condition which would worsen ifleft unchecked during such thirty [30] day
period, in which case Landlord shall be afforded a lesser reasonable time to perform):
provided, however, if such failure cannot reasonably be cured within said thirty (30) day
period, and Landlord shall have commenced and thereafter continued diligently to
. prosecute the cure of such failure and shall have cured said failure within an additional
ffiii'fY (30) days, sala failure SlialT not coii.<ititute a demUIfOy LaIidrora~
(b). Remedies for Landlord's Default. Landlord shall have no personal liability with respect
to its obligations under this Lease. Tenant shall look solely to Landlord's interest in the
Building and the rents and profits derived there from and any applicative insurai:tce and
condemnation proceeds for the satisfaction of any judgment or decree resulting the
payment of money by Landlord,.based upon any default hereunder, and no other property
or asset of Landlord shall be subject to levy, execution or other enforcement procedure
forthe satisfaction of such judgment or decree, provided Tenant may also recover from
Landlord's shareholders to the extent, but only to the extent, of cash distributions to such
shareholders by Landlord after notice by Tenant to Landlord of the breach giving rise to
Tenant's claim, .
In the event that Landlord fails to cure its default under the provisions of Section 15.04(a),
then Tenant shall have the right to do so and all costs advanced by Tenant shall be setoff
against the next ensuing payments of Minimwn Rent and Additional Rent due to the
Landlord until Tenant shall have received a full credit for all amounts so advanced.
ARTICLE 16: SUBORDINATION AND ATIORNMENT
Section 16.01: SUBORDINATION OF LEASE. This Lease is subordinate to the lien of all
mortgages, deeds of trust and security instruments ("Mortgage") now or hereafter covering
all or any part of the Building, and to all modifications, consolidations, renewals,
replacements and extensions of any Mortgage provided as a condition to such subordination
Tenant shall be delivered a commercially reasonable non-disturbance agreement providing
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that, so long as no Event of Default is outstanding under this Lease Tenant's possession of
the Premises pursuant to this Lease will not be disturbed in the event of the foreclosure of
any such Mortgage. It shall be a condition to the subordination of this lease that Tenant shall
be furnished with such a commercially reasonable non-disturbance agreement from the
Mortgagee under any existing or future Mortgage. Tenant also agrees that if the holder of
a Mortgage ("Mortgagee") elects to have this Lease prior to the lien of its Mortgage and
signifies such election in the instrument creating its lien, or by separate recorded instrument,
this Lease shall be prior in dignity to such Mortgage.
Section 16,02: TENANT'S ATTORNMENT. In the event of any proceedings brought for
.~~ enforcement of any Mortgage, Tenant, shall upon demand by the Mortgagee, attorn to
'.;aDd recognize such Mortgagee as Landlord under this Lease or in the Premises and Tenant
t. shall attorn to and recognize such purchaser or assignee of such Mortgagee as Landlord
under this Lease without further act by Landlord or such purchaser or assignee. Tenant will
give pr::>mpt written notice to Mortgagee of any default by Landlord under this Lease, if such
default is alleged by Tenant to be of a nature as to (i) give Tenant right to terminate this
Lease, (ii) reduce the amount of Rent due hereunder, or (iii) offset any amounts against
. future installments of any Rent payable hereunder, provided that Tenant shall not be
obligated to give such notice to any Mortgagee who shall not have advi~ed Tenant in writing
orus status as Mortgagee which writing snaIl. further adviseienant of the requirement of
such notices to Mortgagee. In the event of any such default any such Mortgagee shall be
given thirty (30) days from the date of the above notice during which to cure any such
default, or if such default is of such nature that it cannot be completely remedied within such
thirty (30) day period, or reasonable time thereafter except that Mortgagee shall have such
lesser period of time to cure as is commensurate with. the time afforded to Landlord under
the provisions of Section 15.04(a), not to exceed a total of sixty (60) days. Tenant agrees
that neither a Mortgagee nor its designee upon obtaining title to the Premises shall have any
liability for any act or omission, be subj ect to any offsets or defenses which Tenant may have
or claim, or be bound by any advance rents which may have been paid by Tenant to any other
person, firm or entity, including without limitation, any prior landlord for more than the
current period in which such rents come due.
Section 16.03: INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, in order
to confirm the provisions of this Article, but in no way limiting the self-operative effect of
said provisions, Tenant shall, execute and deliver whatever instruments may be required for
such purposes, and in the event Tenant fails to do so within fifteen (15) days after demand
in writing,
ARTICLE 17: ESTOPPEL CERTIFICATES
Section 17.01: TENANT'S AGREEMENT TO DELIVER Within fifteen (15) days after
Tenant opens for business in the Premises, and from time to time thereafter, within fifteen
(15) days after request in writing therefore from Landlord, Tenant agrees to execute and
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deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and
any such addressee may rely thereon), a statement in writing certifying (if true) that this
Lease is in full force and effect and unmodified or describing any modifications that there
are no defenses or offsets against the enforcement of this Lease or stating with particularity
those claimed by Tenant; stating the date to which Rent has been paid, and making such
other true representations as may be reasonably requested by Landlord.
ARTICLE 18: QUIET ENJOYMENT
Section 18.01: FAITHFUL PERFORMANCE. .So long as no Event of Default is
~utstimding under this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises
'for the Term without hindrance or interruption by Landlord or any other person or persons
IJ lawfully or equitably claiming by, through or under Landlord, subject nevertheless, to the
..tenns and conditions of this Lease.
ARTICLE 19: SURRThTIER AND HOLDING OVER
Section 19.01: DELIVERY AFTER TERM. Tenant shall deliver up and surrender to
Landlord possessions.ofthe Premises upon the expiration or earlier termination of the term,
-Bfoom Clean, nee Ofdeons, ill good order, condItion and state cfrepair, ordfuaiy wear and
tear or are damage by, casualty which Tenant is not obligated to repair excepted.
Section 19.02: EFFECT OF HOLDING OVER' RENT. lfTenant or any party claiming
under Tenant remains in possession of the Premises, or any part thereof, after any
termination of this Lease, no tenancy or interests in the Premises shall result there from but
such holding over shall be an unlawful detainer and all such parties shall be subject to
immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as
liquidated damages, a sum equal to all minimum rent and additional rent provided for in this
Lease during any period which Tenant shall hold the Premises after the Term has expired
plus an amOunt computed at the rate of 125% the minimum rent for such period.
ARTICLE 20: CONDEMNATION
Section 20.01: ALL OF PREMISES TAKEN. lfthe whole of Premises shall be taken
permanently (which shall be any taking with a duration of the six (6) months or more) by any
right of imminent domain or conveyance and lieu thereof (each being hereinafter referred to
as "Condemnation'), this lease shall terminate as of the day possession shall ~ taken by the
condemning authority and Tenant shall pay rent and perform all ofits other obligations under
this Lease up to that date with a proportionate refund by Landlord of any rent as of shall been
paid in advance for a period subsequent to the date of the taking.
Section20.02: LESS.THAN ALL OF PREMISES TAKEN. lflessthan.all but more than
20% (20%) of the leasable area in the Premises is taken by condemnation, or if (regardless
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of the percentage of the leasable area in the Premises which is taken) the remainder of the
Premises is not one undivided parcel of property, then, in either event Tenant shall have the
right to terminate this Lease upon notice in writing to Landlord within 90 days after
possession is taken by such condemnation. If this Lease is so terminated; it shall tenmnate
as of the day possession shall be taken by such authority and Tenant shall pay rent and
perform all of its other obligations under this Lease up to that date with a proportionate
refund by Landlord of any rent that may have been paid in advance for a period subsequent
to the date of the taking. If this Lease is not so terminated, it shall terminate only with
respect to the parts of the Premises so taken as of the day possession shall be taken by such
. authority, and Tenant shall pay rent up to that day witira proportionate refund by Landlord
~f any rent as may have been paid for period subsequent to the date of the taking and,
ithereafter, the rent shall be based on the square footage of the Premises. Landlord agrees,
Ii at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the
land remaining to a complete unit of right quality and character as existed prior to such
appropriatiDn or taking: provided that Landlord shall not be required to extend on more such
restoration than the condemnation reward received by Landlord (less all expenses, costs,
legal fees, and court costs incurred by Landlord in connection with such award).
Section 20.D3: OWf..'ERSHIP OF AWARD. All dama~~s for any condemnation of all_or
.. any..part of the building inCluding out not Hn:ilted to all damages as compensation for
diminution in value of the leasehold, reversion, and fee, shall belong to Landlord without any
deduction there from for any present or future estate or Tenant, and Tenant hereby assigns
to Landlord all its right, title and interest to any such reward. Although all damages in the
event of any condemnation are to belong to Landlord, Tenant shall have the right to claim
and recover from the condemning Authority but not from Landlord, such compensation as
maybe separately awarded or recoverable by Tenant in Tenants own right for relocation
expenses, for the unamortized value of the leasehold improvements made to the premises at .
the expense of Tenant and on account of any and all damage to Tenants business by reason
of the condemnation and for or on account of any costs or loss which Tenant might incur in .
removing Tenant's merchandise, furniture, fixtures, leasehold improvements.
ARTICLE 21: MISCELLANEOUS
Section 21.01 : INTERPRETATION. The captions, Table of Contents and Index of defined
terms appearing in this Lease are inserted only as a matter of convenience and in no way
amplify, define, limit, construe, or describe the scope or intent of such sections of the Lease
or in anyway affect this Lease,
(a) The neuter, feminine or masculine pronoun when used herein shall each include each
of the other genders and the use of the singular shall include the plural.
(b) Although the printed provisions of this Lease were drawn by Landlord, this Lease
shall not be construed for or against Landlord or Tenant, but this Lease shall be
interpreted in accordance with the general tenor of the language in an effort to reach
the intended results,
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Section21,02: RELA TIONSIDP OF PARTIES. Nothing herein contained shall be construed
as creating any relationship between the parties other than the relationship of Landlord and
Tenant nor cause either party to be responsible in any way for the acts, debts or ~bligations
of the other.
Section 21.03: NOTICES. Any notice, demand, request, approval, consent, or other
instrume!lt which may be or is required to be given under this Lease shall be in writing and,
shall be deemed to have been given upon (i) hand delivery; or (ii) if mailed, three (3) days
after mailing by United States Certified Mail, Return Receipt Requested, postage, prepaid;
9r (iii) the next business day when delivered by nationally recognized overnight courier,
,".'
iitddressed: if to Landlord, as set out in Section 1.01 (M), or to such other address as
~ Landlord may from time to time designate to Tenant by notice in accordance with this
section and, if to Tenant, to the address for Tenant set forth in section 1.01(N) of this Lease
or to such other address as Tenant may from time to ti~e designate to Landlord by notice in
accordance with this section.
Section 21.04: SUCCESSORS. This Lease shall in inure to the benefit of and be binding
- .upon Landlord, its successors and liljsigns, and shall be binding upon T.enant, its successors
- -andasstgnsana-shaU mure tollie -oeflefir6fTenanf ana oilly sucn assigns OfT enanffo wnom
the assignment by Tenant has been made and consented to in accordance with the provisions
of this Lease.
Section 21.05: BROKERS COM.\1ISSION. Each of Landlord and Tenant warrants to the
other that the only broker involved in this transaction is The F elenstein Koniver Stem Realty
Group to whom Landlord shall be obligated to pay a brokerage fee pursuant to a separate
agreement between the Landlord and the broker. This commission obligation continues for
a period of thirty (30) months,
Section 21.06: UNAVOIDABLE DELAYS. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance from any act required hereunder
by reason of strikes, lockouts, labor troubles, inability to procure labor or materials, failure
of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or other
casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the
party delayed in performing work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay and the period of the
performance of any such act shall be extended for a period equivalent to the.~riod of such
delay. The provisions of this section shall not operate to excuse Tenant from prompt
payment of rent or any other payments required by the terms of this Lease and shall not
extend the term. Delays or failures to perform resulting from lack of funds shall not, be
deemed delayed beyond the reasonable control ofa party.
Section 21.07: SEVERABILITY. It is the intention of the parties hereto that if any
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provision of this Lease is capable of two constructions, one of which would render the
provision invalid and the other of which would render the provision valid, then the provision
shall have the meaning which renders it valid, If any term or provision, or any portion
thereof, of this Lease, or the application thereof to any person or circumstances shall to any
extent, be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
Section 21.08: ENTIRE AGREEMENT. There are no'Oral agreements between the parties
~ereto affecting this Lease and this Lease supercedes and cancels any and all negotiations,
'MTangements, letters of intent, lease proposals, brochures, agreements, representations,
} promises, warranties and understandings between parties hereto are displayed by Landlord
to Tenant with respect to the subject matter thereof, and none thereof shall be used to
interpret or construe thisJ"ease.
This Lease including the exhibits hereto any addenda hereto sets forth all the covenants,
. promises, agreements, conditions and understanding, between Landlord and Tenant
concenpng the Premises and the Building, No alterations, amendment, change or addition
.to tI:llsLeaseshaltoe oinClingtipofi UUldlora or Te,nant ililless reduced in writThg, slgfleaby
them and mutually delivered between them.
Section 21.09: APPLICABLE LAW. The laws of the State of Florida shall govem the
validity, performance and enforcement of this Lease,
Section 21.10: WAIVER. The waiver by Landlord or Tenant of any term, covenant,
agreement or condition herein shall not be deemed to be a waiver of any subsequent breach .
of the same or any other term, covenant, agreement or condition. The acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any prior default by Tenant,
other than the failure ofT enant to pay the particular rent so accepted, regardless of Landlords
knowledge of such prior default at the time of acceptance of such rent. No covenant, term,
agreement or condition of this Lease shall be deemed to have been waived by Landlord or
Tenant, unless such waiver be in writing by Landlord or Tenant.
No waiver of any covenant, term, agreement or condition of this Lease or legal right or
remedy shall be implied by the failure of Landlord or Tenant to declare forfeiture, or for any
reason. No waiver by Landlord with respect to one or more Tenants or OCC!lpants of the
building shall constitute a waiver in favor of any other Tenant. Landlord's consent to, or
approval of any act by Tenant requiring Landlord's consent or approval shall not be deemed
to waive orrender unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant.
Section 21.11: ACCORD AND SATISFACTION. No payment by Tenant or receipt by
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Landlord of a lesser amount than the rent herein stipulated shall be deemed to the other than
on account of the earliest stipulated rent nor shall any endorsement or statement or any check
or any letter accompanying any such check or payment as rent be deemed and accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy provided for
in this Lease or available at law or in equity.
Section 21.12: LANDLORD'S SELF - HELP, In addition to LaTldlords rights of self-help
set forth elsewhere in this lease, if Tenant at any time fails to perform any of its obligations
under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the
fi~tbut not the obligation, upon giving Tenant at least ten (10) days prior written notice of
\iiS election to do so (in the event of an emergency no prior notice shall be required) to
t-. perform such obligations on behalf of and for the accoWlt of Ten ant and take all such action
necessary to perform such obligations. In such event, Landlords costs and expenses incurred
therein shall be paid for by Tenant as rent, forthwith, upon demand therefore, with interest
thereon from the date Landlord performed such rate at 18% per annum. or the highest lawful
rate, whichever is lower. The performance by Landlord of any such obligation shall not.
constitute a release or waiver of Tenant there from.
. Section 21.13: RECDRDING. Tenant agrees that it will not record the Lease. Landlord
may at its option and expense record the Lease or a short form of Lease, a copy of which is
attached hereto as Exhibit E. If Landlord so requests, Tenant and Landlord shall,
simultaneously ~ith execution and delivery of this Lease, execute a memorandum of Lease
in the form attached hereto as Exhibit E, which shall be recorded by Landlord among the
public record of Miami-Dade County Florida.
Section 21.14: JOINT AND SEVERAL LIABILITY. If two or more indi"iduals,
corporations, partnerships or other business associations, (or any combination of two or more
thereof) shall assign this lease as Tenant or Guarantor of this Lease, the liability of each of
these shall be joint and several. In like manner, if Tenant named in the Lease shall be a
partnership or other business association, the members of which are, by virtue of statute or
general law, subject to personal liability, the liability of each such member shall be joint and
several.
Section 21,15: EXECUTION OF LEASE. This Lease shall become effective as a lease only
upon execution and legal delivery thereof by the parties hereto, together with the execution
and delivery to Escrow Agent of a Guaranty Letter of Credit (pursuant to Artic.Je 26 below)
in the form annexed hereto as Exhibit G. This Lease may be executed in more than one
counterpart, and each such counterpart shall be deemed to be an original document.
Section 21.16: TIME OF ESSENCE. Time is of the essence under this Lease,
Section 21.17: RADON GAS NOTICE. Pursuant to Florida Statutes Section 404.056, (B),
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Landlord hereby makes, and Tenant hereby acknowledges, the following notification:
RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS TIIA T,
WHEN IT HAS ACCUMULATED IN A BUILDING, IN SUFFICIENT QUANTITIES,
MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER
TIME. LEVELS OF RADON TIIA T EXCEED FEDERAL AND STATE GUIDELINES
HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION
REGARDING RADON AND RADON TESTING MAYBE OBTAINED FROM YOUR
COUNTY PUBLIC HEALTH UNIT.
Section 21.18: A TIORNEY'S FEES. If either party defaults in the performance of any of
the terms provisions, covenants and conditions of this Lease and by reason thereof, the other
'parties employs the services of an attorney to enforce performance of the covenants, or to
j perform any service based upon such default, than in any of said events the prevailing party
shall be entitled to receive from the other party reasonable attorney's fees and all expenses
and costs incurred by the prevailing party pertaining thereto (including costs and fees related
to any appeal) and enforcement of any remedy.
Section 21.19: ENVIRONMENTAL LAWS. Any substance defined or classified or
identified as "hazardous substances", "hazardous wastes", "hazardous mat.erials", "tOyjc
. suDstances" or oilier cbntam.iD.ants or pollUtion under any app1icalJle federal or state law
ordinance, rules or regulation now or hereafter in effect shall hereinafter be referred to as
<'hazardous substances". Any applicable federal, state. or local laws, ordinances, rules or
regulations pertaining to Hazardous and Substances or industrial hygiene or environmental
conditions shall hereinafter be referred to as "Environmental Laws", Tenant and Landlord
have not and shall not cause or permit the Premises or Building to use for the generation,
handling, storage, transportation, disposal or release or any Hazardous Substances except as
exempted or permitted under applicable Environmental Laws, and have not and shall not
cause .or permit the Premises or Building or any activities conducted and hold the other and
its directors, officers, employees, successors and assigns harmless from and against any and
all claims, losses, damages (including. all foreseeable and unforeseeable consequential
damages), liabilities, fines, penalties, charges, interests, administrative or judicial
proceedings and order, j udgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including without
limitation attorney's fees and expenses), directly or indirectly resulting in whole or in part
from the violation of Environmental Laws applicable to the Premises or Building or any
activity conducted thereon, or from any use, generation, handling, storage, transportation,
disposal or release or Hazardous Substances at or in connection the Premist:s or Building,
or any decontamination, detoxification, closure, cleanup or other remedial measures required
with respect to Premises or Building under any Environmental Laws to the extent caused by
the indemnifying party. All sums paid and costs incurred by the indemnified party with
respect to the foregoing matters shall bear interest, shall be deemed additional rent. This
indemnity shall survive the termination or any earlier cancellation of this Lease.
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Section 21.20: JURISDICTION - WAIVER OF JURY TRIAL. Landlord and Tenant
hereby voluntarily, knowingly and intentionally waive any and all rights to trial by jury in
any legal action or proceeding arising out of this Lease, or pertaining to any transaction
related hereto. Tenant and Landlord hereby submit to the exclusive jurisdiction of the state
and federal courts for purpose of any action arising from or growing out of this Lease and
further agree that the venue of any action shall be made in Miami-Dade County Florida.
Section 21.21: AMERICANS WITH DISABILITIES ACT (ADA). Tenant agrees to
comply with the ADA in constructing all improvements and/or alterations to the Premises.
The requirements are contained in the ADA accessibility guidelines (28 CFR 36-Appendix
1~")' In the event Tenant fails to comply and Landlord is held responsible, Tenant shall
i3ndemnify Landlord for all reasonable costs and expenses incurred by Landlord, It shall be
~ the responsibility of Landlord to cause the remainder of the Building (excluding the
Premises) to comply with the ADA, at the sole expense of Landlord and not as a part of the
corgponent Operating Expense. <
Section 21.22: PLlJMBING AND ELECTRIC. Tenant shall be fully responsible for the
maintenance of all toilets, sinks, plumbing, water installations, electrical Vviring and the
electrical system of its demised Premises, Tenant agrees not to use the plumbing for any -
purpose other tlian that ror wl:iiCli it waS constrUcft:aana agrees, fuitlleT, not to pernill any
food, waste, chemicals, human hair or other foreign substances to be throvm or drawn into
the pipes. Tenant agrees to maintain the plumbing in good repair and working condition and
to promptly repair any damage resulting from any violations of this Section 21.22. Tenant
fur-iller agrees to make any repairs to otl)er plumbing in the Building if the damage results
from Tenants use of such plumbing, In addition to any other remedy available to Landlord,
Landlord shall have the right, upon five (5) days prior written notice to Tenant, to make any
repair necessary due to Tenants default hereunder, and to charge the costs and expense
thereof to Tenant, which amount shall be paid by Tenant within five (5) days after demand
as Additional Rent.
ARTICLE 22: SECURITY DEPOSIT
Section 22.01: SECURITY. As security for the faithful performance by Tenant of all the
terms and conditions of this Lease on Tenants part to be performed, other than the payment
of Rent and any other sums due hereunder (it being understood that the Guaranty Letter of
Credit shall secure Tenant's obligation for the payment of Rent and any other sums due
hereunder), Tenant will deposit with Landlord the Security Deposit requir~<i by Section
1.01(1) which shall be paid as follows: (i) The Security Deposit shall be held in escrow by
the law firm of Atkinson, Diner, Stone, Mankuta & Ploucha, PA ("EscroW Agent'') upon
full execution of this Lease; and (ii) the entire Security Deposit shall be delivered to
Landlord upon delivery of possession of the Premises to Tenant in accordance with the terms
of this Lease, The Security Deposit can either be in the form of cash or by a Letter of Credit
in substantially the same form as the form attached hereto as Exhibit G issued by a lending
-32-
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institution having offices in Miami-Dade County, Florida, At any time during the Term
hereof, Tenant can substitute the form of the security deposit with either cash or the Letter
of Credit. Thirty (30) days after the expiration of the term herein if Tenant is not in uncured
default of any of the obligations ofthis Lease other than the payment of Rent or any other
sums due hereunder, then said Security Deposit shall be returned to Tenant. Landlord shall
have the right to apply any part of said deposit to the payment of monies due to Landlord
hereunder by Tenant, arising out of Ten ant's default in its obligations hereunder other than
the payment of Rent or any other sums due hereunder, after expiration of any applicable
notice and cure period, but such application shall not remedy the default and Tenant must
replace such monies drawn upon within ten (10) days;-
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1f is agreed that the duties of Escrow Agent herein (including those set forth in Article 26)
J are purely ministerial- in nature and that Escrow Agent shall incur no liability whatsoever
except for willful misconduct or gross negligence as long as the Escrow Agent has acted in
good faith. The Landlord and Tenant each release and bold the Esorow Agent harmless from
any act done or omitted to be done by the Escrow Agent in good faith in the performance of
its duties hereunder, except as to the Escrow Agent's willful misconduct or gross negligence.
In the event of a dispute arising out of the deposit being held by Escrow Agent. Escrow
~Agent may hold the deposit monies until settlement between the parties or the issuance of .
lfnon al'pealable :f'IDat order d1reCLIDg IDe disposition ofilie deposit or Escrow Agent may
bring an appropriate action or proceeding in Miami-Dade County to interplead such deposit.
Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding
including reasonable attorneys fees and disbursements, to be charged to the party determined
to have vyTongfully disputed Escrow Agent's authority to disburse. Landlord ackllowledges
that Escrow Agent is legal counsel to Tenant and Landlord hereby agrees that Escrow Agent
can represent Tenant and itself hereunder in the event of any dispute concerning the deposit
which Escrow Agent is holding, and waives any right to object to same.
Section 22.02: TRANSFER OF DEPOSIT. In the event of the sale of the Building or lease
of the Building or the land on which it stands, subject to this Lease, Landlord shall have the
right to transfer this security to the vendee or Tenant and Landlord shall there upon be
released by Tenant from all liability for the return of such security and Tenant shall look to
the new Landlord solely for the return of the said security. This provision shall apply to
every transfer or assignment made of this security to a new Landlord. The security deposited
under this Lease shall not be mortgaged, assigned or encumbered by Tenant without the
written consent of Landlord. In the event of any authorized assignment of this Lease, the
said Security Deposit shall be deemed to be held by Landlord as a deposit made by the
assignee and Landlord shall have no further liability with respect to the return of said
Security Deposit to Tenant.
ARTICLE 23: PARKING
Section 23.01 : PARKING. Landlord shall provide three (3) parking spaces in the Building
. -33-
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within close proximity to the Premises for use by the Tenant until 11 :00 am. each morning.
Further, Landlord will make every effort to accommodate more than three (3) spaces prior
to 11 :00 am. each morning if the utilization of those spaces would not interfere with the
revenue producing parking operation. Landlord shall direct its parking contractor to place
cones in three (3) to five (5) spaces in the early morning hours after those spaces are vacated
by evening parking patrons. Tenant agrees to properly identify any users of the spaces so
designated, The identification shall be approved by Landlord's parking contractor and that
identification could include validations, stamps attached to the tickets, or other means of
identifying that the cash ticket is used by Tenant. It is the intent that the~e spaces v::ill be
used primarily for deliveries and short-term operations, but not for customers. Tenant
}'ecogmzes the fact that there are a number of special event periods in the South Beach area.
fwhich include boat shows, Art Deco Celebrations and other major events where the garage
$ will be occupied at all times and during thos~ special events the spaces so designated may
not be available, Any vehicles of Ten ant or Tenant invitees on the premises after 11 :00 a.m.
shall be charged the regular rate unless other arrangements are mutually agreed to between
the Landlord and Tenant.
ARTICLE 24: RIGHT OF FIRST REFUSAL; EXCLUSIVE RIGHTS
Section 24.01: RIGHt OIl FIRST REFUSAL. Should Landlord decide to lease other space
in the Building for retail use, it shall offer the Tenant the right of first refusal to lease said
space upon the same terms and conditions as being offered to a third party and Tenant shall
have fifteen (15) days from receipt of Landlord ' s written notice within which to exercise its
. right offirst refusal, tiriling which, Landlord shall have the right to lease the Premises to the
third party only upon the same terms and conditions as offered to Tenant. If the terms of the
lease offered to the third party are changed in imy material respect, Tenant shall again have
the right of first refusal to lease the space upon the foregoing terms and conditions.
Landlord's written notice shall include the salient terms of the lease for the new premises.
If Tenant elects to exercise its right of first refusal, then Landlord shall prepare a lease and
. the parties shall use reasonable diligence to finalize same at the earliest practical time.
Section 24.02: EXCLUSIVE RIGHTS. Landlord agrees that it shall not lease premises to
any other party in the Building which shall be used for the sale, at wholesale or retail, of
beachwear (including bathing suits, beach coverups and beach footwear) or souvenir gift
items.
ARTICLE 25: USE OF TENANT'S RESTROOMS BY LANDLORD'S EMPLOYEES
Section 25.01: NON EXCLUSIVE USE. Tenant shall permit the use of its restroom
facilities by Landlord's employees provided that (i) such use is on an non-exclusive basis
with Tenant and its employees and customers; and (ii) Landlord pays to Tenant in advance
on the first day of each month the sum of$100 (One Hundred Dollars) per day for each day
that an employee( s) of Landlord shall use such restroom facilities. There shall be no refund
-34-
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to Landlord in the event that such facilities are not used by Landlord's employees on any day
for which Landlord has paid the fee, It is acknowledged that such fee is a reasonable fee for
the use of such facilities since Tenant is responsible for the maintenance and repair of such
facilities. Notwithstanding Tenant's obligation to maintain and repair such facilities,
Landlord indemnifies and holds the Tenant hannless from and against any and all costs,
damages, expenses and liabilities whatsoever incurred by Tenant as a result of damage or
injury to persons or property arising out of Landlord's employees use of such restroom
facilities. Tenant shall have no obligation to permit Landlord's employees to use such
restroom facilities if Landlord has not paid the fees set forth hereinabove. Landlord shall
prepare a written statement designating the days of the month which Landlord desires for the
~e of such restroom facilities by its employees. Both Landlord and Tenant acknowledge
i,that the restroom facilities are private facilities and are not subject to any local, state or
iI federal law, regulation, rule or ordinance governing charges or fees for the use of such
facilities, it being understood that Landlord's employees have the use of alternate facilities.
~(atany time, any law, regulation, ntle or ordinance enacted by any local, s.tate or federal
authority shall require Tenant to make any modifications or additions to such restroom
facilities by reason of Landlord's employees use of same, then Tenant shall have the right
to terminate Landlord's employee's use of such facilities upon thirty (30) days advance
written notice to Landlord, unless Landlord agrcf;s within said thirty (30) days to pay for any
such ll-ctditiuns or alteratIons. Use of the fesrroom. facilities 0)' Landlord's employees snaIl
. be solely during business hours and entry to same shall be through the front doors of the
Premises, Tenant reserves the right to terminate Landlord's employees use of the restroom
. facilities at any time should Tenant believe, in its reasonable discretion, that the use of same
. by said employees is creating a security or safety risk to Tenant's employees, customers or .
invitees or should any local, state or federal law, regulation, rule or ordinance declare that
any of the provisions of this Article 25 are void or unenfOlceable.
ARTICLE 26: GUARANTY LETTER OF CREDIT
. Section 26.01 In lieu of a third party guaranty of this Lease, Landlord has agreed to accept
from Tenant a Letter of Credit ("Guaranty Letter of Credit"), in the form attached hereto as
Exhibit G, in the amount of $90,000 (Ninety Thousand Dollars) (with the QUOTE being
amended to read "as a result of the following default in the payment of Rent or any other
sums due by Tenant") which shall be held in escrow by Escrow Agent referenced in Article
22 above upon full execution of this Lease until Landlord delivers possession of the Premises
to Tenant in accordance with the terms of this Lease, at which time Escrow Agent shall
deliver the Guaranty Letter of Credit to Landlord. If an Event of Default in the payment of
Rent or other sums due by Tenant shall occur beyond any applicable Ci.lre or grace period,
then Landlord shall have the right to apply any part of said Guaranty Letter of Credit to the
payment of such Rent or other sums due hereunder by Tenant in accordance with Section
15.02 above, At any time during the Term hereof, Tenant can substitute the Guaranty Letter
of Credit with cash or a letter of credit.
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IN WI1NESS WHEREOF Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
Signed, sealed and delivered
m our presence:
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i,Name:c:.HAP...~J\J DVC'T~
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Name: A dele:r s~~
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Name: t4ck Lt -r S h{(
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LANDLORD:
PELICAN DEVELOPMENT, L.L.C.,
a Florida limited liability company
By:
W e C. Ducote
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TENANT:
E. LEVY CORPORATION, INC.
a Florida corporation
By:
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EXHIBIT "B"
LANDLORD'S WORK.
LANDLORD IS RESPONSIBLE FOR NO TENANT IMPROVEMENTS
Landlord has or will supply the premises with the following:
] . Two, 2" electric conduits stubbed to Premises from meter room and rated for a maximum
.1'. of 400 amperes service and one 400 disconnect switch located in meter room. .
'2';. An empty 1" inch diameter conduit from main telephone panel in meter room to the
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prermses.
3, Fresh air supply from the roof of the premises, location for HV AC units and sleeving
through roof for Tenant's HV AC contractor to install freon lines, HV AC units and
electric lines.
4. Interior concrete block demising walls.
5. Storefront with fixed display windows, entrance door and rear exit door.
6. Fire sprinklers system.
I. LocaffonIor- onemextenor SIgn.
8, Copper I 'h"cold water line stubbed to Premises,
9. Sanitary sewer line stubbed to Premises,
] O. Rear door with security lock hardware.
-37-
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EXHIBIT "C"
TENANT'S WORK
Tenant's work shall include build-out of the Premises into a first class retail facility, Tenant
will be responsible for all of the improvements to the Premises. All work must be done by
a licensed and insured General Contractor with all the necessary permits and in compliance
with construction requirement set forth in the Development Agreement between the City of
Miarill Beach and Pelican Development (Exhibit F) and the Ground Lease.
~coimection with the Building's life safety system, Tenant must contract with the following
~siib contractors/installers to perfonn this work so that the Building can retain it's life safety
i product warranty:
Swink1er System and Fire Alann System - Tenant shall use the same subcontractors for these
systems as is used by Landlord's general contractor, so long as such subcontractors are
competitively priced. If Tenant deems the Landlord's subcontractor's pricing not to be
competitive, Tenant can use its own subcontractor provided that the subcontractor's plans
and specifications for the sysieros are compatible with those used in the construction of
I:afiOloro's"BUlrum.g.
-38-
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EXHIBIT "E"
MEMORANDUM OF LEASE
NAME AND ADDRESS OF LANDLORD: Pelican Development Company, Ltd., a Florida
limited partnership, having an address at , Miami, FL 33139
NAME AND ADDRESS OF TENANT:
PREMISES: The land shown and/or described in Exl..Jbit A annexed hereto and make a part
9ereof, together with all improvements thereon.
=-....
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'J DATE OF LEASE:
TERM OF LEASE: Ten (10) years, with twg. (2) five (5) year options.
LIENS:
The Lese contains the following provision:
Section 2.04: TEN.AJ'H'S CONSTRUCTION: Tenant shall provide
Ls::n:dlurd-with-a: copy ofaI:I- construction contracts wit:llID five (Sjaays-after
execution of same by both Tenant and the applicable contractor. Each
contract for over $20,000.00 must be supported by an unconditional payment,
completion and performance bond, both for the full amount thereof, issued
by a slU'ety licensed to do business in Florida, in favor of Landlord and
Tenant as dual obligee, unless the contractor under the applicable contract has
delivered to Landlord an agreement, in form and content accepted to
Landlord, under which said contractor agrees that it shall not claim any lien
upon Landlord's interest in the Premises, waives any right to claim such lien,
and agrees to immediately discharge and indemnify Landlord against, and
hold Landlord harmless from, any lien field by any subcontractor dealing
with said contractor.
And
Section 12.01: NO LIENS PERMITTED; DISCHARGE. Landlord's
property shall not be subject to liens for work done or materials used on
the Premises made at the request of, or on order of or to discharge llI!_
obligation of Tenant.
-39-
c
This Memorandum is for informational purposes only and nothing contained herein
shall be deemed to in any way modify or otherwise affect any of the terms and conditions
of the Lease. Upon the expiration or sooner termination of the term of the Lease, Landlord
is hereby authorized by Tenant to record among the Public Records of Miami-Dade County,
Florida an instrument canceling this Memorandum.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
as of the date of the Lease specified above.
Signed, sealed and delivered
r our presence:
it"'.,:
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LANDLORD:
i
PELICAN DEVELOPMENT, L.L.C.,
a Florida limited liability company
Name:
(type or print)
By: GRA VIER DEVELOPl-vlliNT, L.L.C.,
. ,-~
a Louisiana limited liability company,
Managing Member
:~
By: Wayne G. f)ucete, Managing- Member
By:
David 1. Ducote, Managing Member
Name:
(type or print)
TENANT:
E. LEVY CORPORATION, INC.
a Florida corporation
Name:
(type or print)
By:
Doron Malinasky, Vice President
Its:
Name:
(type or print)
-40-
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"
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledge before me this day of
2000, by , as President of PELICAN DEVELOPMENT, L.L.C., a Florida
limited liability company, on behalf of said corporation.
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NOTARY PUBLIC
~
My Commission Expires:
STATE OF
COUNTY OF
Thei'oregoinginstrumentwa:s-aclmowledgelYefureme t::bis clay of
2000, by , as ofE. Levy Corporation, Inc.,
a Florida Corporation, on behalf of said. corporation.
Notary Public
My Commission Expires:
S:\OO055\Pclican vcr 06,wpd
-41-
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EXHIBIT G
FORM OF LEITER OF CREDIT
ORIGINAL
DATE OF ISSUE
NUMBER
AMOUNT: $50,000.00
+
~....... .
NAME OF BANK
IRREVOCABLE STANDBY LETTER OF CREDIT
BENEFICIARY: APPLICANT:
EXPIRY DATE:
-";
(one year from DateofIssue)
(Specific date needed) at our counters,
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G\1lntlemen:
We hereby open our Irrevocable
and
at sight presented to us no later than
following documents:
The original Letter of Credit and all amepdments thereto, if any. _
An affidavit purportedly signea--oath.-by an authorized officer of the-beneficiary on-
beneficiary's letterhead reading as tollows:
QUOTE:
$__ is due to Sublessor by Sublessee under that certain Lease between PELICAN
DEVELOPJv1ENT COMPANY, L.L.C. and E, LEVY CORPORATION, INC.) dated
, 2000, as a result of the following non-monetary default by Tenant under
the Lease: (identify default) UNQUOTE
Standby Letter of Credit Number for
USD in you: favor, available by your draft(s), dravvll onus
. when aCcompanied by the
SPECIAL CONDmONS:
It is a condition of this Letter of Credit that the Beneficiary may draw upon the Letter of
Credit up to the fuli amount then available within ten (10) days prior to its expiry date if this
Letter of Credit is not extended.
Partial drawings:Allowed.
The number and date of the credit and the name of our bank must be quoted on all draft(s) .
required.
Each draft presented hereunder must be accompanied by this original Letter of Credit for our
endorsement thereon of the amount of such draft.
Communications with respect to this Letter of Credit shall be in writing and shall be
addressed to us at
Except so far as otherwise expressly stated, this Standby Credit is subject 10 the "Uniform Customs and Practice for DocumentaJy Credits" (1993
Revision) International Chamber of Commerce (Publication 500) or revision concurrcntlv in effect
We hereby engage with you that drafts drawn and negotiated in conformity with the tcnns of this credit wiU be cIuIy honored on presentation,
(Two signatures required)
AUTHORIZED SIGNATURE
AUTHORIZED SIGNATURE
S:\OO055\exbibit G letter of credit rev.wpd
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ADDENDUM TO LEASE
TIlls Addendum to that certain Lease ("Lease") dated as of the -.ll day of ~PNLLM.-!f ,
2001. by and between Pelican Development LLC, a Florida limited liability company ("Landlord")
andE. Levy Corporation Inc., a Florida corporation ("Tenant") shall read as follows:
1. Section 2.05 shall be amended to provide that, if applicable, Landlord shall give
Tenant written notice ("Landlord's Notice") on or before November 151 2001 (i) that in Landlord's
reasonable opinion, the Building shall not be, substantially completed with the garage to be operated
therfin open for business by December 31,2001 and said notice shall set forth a new completion date
for'ffie Building and the garage opening ("New Completion Date") and (ii) whether or not the
Undlord elects to extend the Completion Date for up to two periods of thirty (30) days each, which
if Landlord makes such election, the Landlord's Notice shall be accompanied by Landlord's check
made payable to Tenant for the sum of Three Thousand ($3,000.00) Dollars for each 30-day
extension period which Landlord elects. If Landlord does not elect to extend the Completion Date
and pay Tenant the aforedescribed extension fee, Tenant, within fifteen (15) days from its receipt of
such Landlord's Notice, shall have the right ("Tenant's Election") to either notify Landlord in
writing (i) that Tenant elects to terminate the Lease, whereupon the security deposit and Guaranty
-1ettel~of.Gredkshall-ee-retumed-to-1=enant-upon-demand-or{ii}tha:t~enant-elects-t-o-keep-me:bease-
in full force and effect. Notwithstanding that Landlord fails to deliver such Landlord's Notice to
Tenant, Tenant shall still have the right to terminate the Lease as a result of Landlord's failure to
substantially complete the Building and open the garage for business on or before December 31,
2001. If Tenant fails to timely notify Landlord of Tenant' s Election, then Tenant will be deemed to
have agreed to keep the Lease in full force and effect. The parties shall have the same. rights and
obligations with respect to any successive New Completion Date ie, Tenant shall have the right to
terminate this Lease at any time Landlord is unable to complete the Building and open the garage
for business on or before any New Completion Date subj ect to Landlord's right to deliver to Tenant
the Landlord's Notice at least 45 days in advance of the New Completion Date, in which case, the
foregoing procedure regarding Tenant's Election shall control, but Landlord shall have no further
right to extend the Completion Date beyond March 1,2002 unless Tenant agrees to such extension.
2. The second paragraph of Section 2.07 shall be amended to provide that any traffic
impact fees or other cievelopment or impact fees arising from the actions of the Tenant in the futUre,
such as the subdivision of the Premises or any change in the Tenant's use of the Premises from that
which is permitted under the Lease, shall be the responsibility of Tenant except that Landlord shall
be solely responsible for any such fees assessed in connection with the development and
construction of the Building, including those attributable to the retail business of-Tenant, as more
fully set forth in the first paragraph of Section 2.07.
3. As to Section 4.03, Tenant shall not be required to open for business and pay Rent
any earlier than the date the Building is substantially completed and the garage operated therein
opens for business, notwithstanding the date the Premises were delivered to Tenant.
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4. The first full paragraph of Section 14.01 on page 21 shall be amended by the deletion
of (iv) and the substitution in its place with the following: (iv) the proposed assignee or sublessee
shall not use the Premises for what is typically referred to as a "T-Shirt" store.
5. The first full paragraph of Section 15.02, on page 23 shall be amended to provide that
if Landlord elects to terminate the Lease in the Event of Default by Tenant and delivers to Tenant
written notice that Tenant must surrender possession of the Premises, then if Tenant fails to so
surrender possession of the Premises within thirty (30) days from receipt of said notice, Landlord
shall have the right to use the Security Deposit toward the payment of any unpaid Rent to the extent
that the Guaranty Letter of Credit is not sufficient to compensate Landlord for its loss of the Rent
dueJo a failure to relet or in the event of a reletting, due to a lesser rent being paid by the new tenant.
Ex~~pt in accordance with the foregoing sentence, during the Term of the Lease, the Security
D~posit shall not be used by Landlord for Rent.
6. Because of the modification to Section 15,02, as provided for in paragraph 5 above,
Exhibit "G" shall be modified by the deletion of "non-monetary" in the "Quote."
7. In all other respects, where not in conflict herewith, the terms of the Lease shall
remain in full force and effect and the parties hereto affirm each and every provision of said Lease,
.including the exhibits, except where modified hereby.
IN WI1NESS WHEREOF, Landlord and Tenant have executed this Lease as of the 17
dayofDeec,uber, 200~. .
:::rA-tJ~
Signed, sealed and delivered LANDLORD:
In our presence:
PELICAN DEVELOPMENT, L.L.c.,
a Florida limited liability company
Name:
(type or print)
efLI She
By: GRA VIER DEVELOPMENT, L.L.c.,
a Louisiana limited liability company,
Managing. Member
By:lI~ _
ayne C. DuCote, Managing Member
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Name: CI.JAI....A,.J UU('IlTE'
(type or print)
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Name: Ad ~ :r Sne
(type or print)
4)q~
Nafir~:_G "'c..\~ ~. tf... .l..A:s
if (type or pnnt)
S:\00055\Addendum to Lease2.wpd
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TENANT:
E. LEVY CORPORATION, INC.,
a Florida corporation
BY:y ~~.
OSS1 tp n, rest ent
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