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361-2000 RDA RESOLUTION 361-2000 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE LEASE AGREEMENT WITH ARTCONNECTION SWISS DESIGN, L.C. D/B/A ARTCONNECTION, FOR SUITE #K IN THE ANCHOR SHOPS AT SOUTH BEACH; TO EXECUTE THE CORRESPONDING LEASING COMMISSION AGREEMENT WITH DYNAMIC REALTY GROUP, INC., IN AN AMOUNT NOT-TO-EXCEED $16,841.96, FOR PROCURING THE AFOREMENTIONED LEASE; AND APPROPRIATING AVAILABLE, NON-TAX INCREMENT REDEVELOPMENT AGENCY FUNDS FROM CITY CENTER, FOR PAYMENT OF THE SAID LEASING COMMISSION. WHEREAS, since May 24, 2000, the Administration has been negotiating a Lease Agreement with Artconnection Swiss Design, L.C., to lease approximately 721 square feet in the Anchor Shops at South Beach (Anchor Shops); and WHEREAS, the proposed Lease Agreement, which involves Suite K, located on the 16th Street side of the building, is now being submitted for approval and subsequent execution by the Redevelopment Agency (RDA) Board; and WHEREAS, since the termination of the Retail Space Master Lease Agreement, the Administration has assumed the responsibility of managing and leasing the retail space at the Anchor Shops; and WHEREAS, as Landlord of the Anchor Shops, the RDA must approve (in its reasonable judgement) the terms and conditions of any proposed lease agreement; and WHEREAS, said Lease Agreement calls for the tenant to develop a store to exhibit and sale fine custom-made jewelry, to be called Artconnection; and WHEREAS, the proposed Lease Agreement is for a term of fifteen years, with no renewal options, starting at $21,630 per year, or a rate of $30/sq.ft., to be adjusted yearly by CPI with a cap of 3% per year; and WHEREAS, the costs associated with the construction of the Tenant improvements of the retail space and other connections and services are the responsibility of the Tenant; and WHEREAS, the Tenant will execute an unconditional completion warranty for the retail space improvements with the Lease Agreement; and WHEREAS, the rent commencement date starts three months (90 days) after the Lease commencement date, to allow for the design, permitting and construction of the space improvements; and WHEREAS, the associated total commission structure of $16,841.96, payable to Dynamic Realty Group, Inc., is as follows: 6% of the aggregate annual rent for years 1 through 5 years, or $6,886.95; 4% of the aggregate annual rent for years 5 through 10, or $5,325.08; and 3% of the aggregate annual rent for the remaining 5 years or $4,629.92; and WHEREAS, of the total commission amount, one-quarter will be due upon execution of the lease; one-quarter will be due upon the Tenant's commencement of business operations at the Premises; one-quarter will be due three (3) months following the Tenant's commencement of business operations; and one-quarter will be due six (6) months following the Tenant's commencement of business operations at the premises; and WHEREAS, funding for this expense may be appropriated from available non-tax increment revenues from the City Center Redevelopment Area. NOW, THEREFORE BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairman and Members of the Miami Beach Redevelopment Agency authorize the Chairman and the Secretary to execute a Lease Agreement with Artconnection Swiss Design, L.C. d/b/a Artconnection, for Suite #K in the Anchor Shops at South Beach; to execute the corresponding leasing commission agreement with Dynamic Realty Group, Inc., in an amount not-to-exceed $16,841.96, for procuring the aforementioned Lease; and to appropriate available, non-tax increment Redevelopment Agency funds from City Center, for payment of the said leasing commission. ASSED AND ADOPTED this 26th day of July, 2000. ATTEST: ifill CHAIRMAN _~~rf~ SECRETARY T:\AJePda\2OOO\1UL26OlllA,\IDdIk:II APPROVED AS to FORM & LANGUAGE & FOR EXECUTION ~ IAgenC'f G.",,,,' Cov~"..\ 7-/0-dI Dole Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673- 7295 Fax: (305) 673- 7772 REDEVELOPMENT AGENCY MEMORANDUM NO. 00- 5"2- DATE: July 26, 2000 TO: FROM: Chairman and Members of the Miami Beach Redevelopment Agency LawrenceA.~eVY ~ Executive Direct A RESOL ON OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE LEASE AGREEMENT WITH ARTCONNECTION SWISS DESIGN, L.C. D/B/A ARTCONNECTION, FOR SUITE #K IN THE ANCHOR SHOPS AT SOUTH BEACH;TO EXECUTE THE CORRESPONDING LEASING COMMISSION AGREEMENT WITH DYNAMIC REALTY GROUP, INC., IN AN AMOUNT NOT-TO-EXCEED $16,841.96, FOR PROCURING THE AFOREMENTIONED LEASE; AND APPROPRIATING AVAILABLE, NON-TAX INCREMENT REDEVELOPMENT AGENCY FUNDS FROM CITY CENTER, FOR PAYMENT OF SAID LEASING COMMISSION. SUBJECT: ADMINISTRATION RECOMMENDATION: Adopt the resolution. BACKGROUND: Since May 24, 2000 the Administration has been negotiating an Agreement of Lease with Artcounection Swiss Design, L.C. to lease 721 square feet in the Anchor Shops at South Beach (Anchor Shops). The proposed Lease Agreement which involves Suite K, located on the 16th Street side of the building, is now being submitted for approval and subsequent execution by the Redevelopment Agency (RDA) Board. AGENDA ITEM 37> DATE -, -'2.." -ou S()UTti I)()I/Ilffl: l2edevel()pment I)istrict UIT CI:,...TI:I2 l2edevel()pment I)istrict Mr. Mario Provenzano, the Owner of the company, is a Swiss artist with extensive training in plastic arts, who has participated in exhibitions in Washington, San Francisco, New York, as well as in several cities in Switzerland and Germany. The business proposal for this retail location involves the exhibition and sale of Mr. Provenzano's designs of fine custom-made jewelry. The jewelry, which is of contemporary design, using precious stones and metals, is assembled in Europe and Miami. ANALYSIS The proposed lease agreement is for a term of fifteen years, with no renewal options, starting at $21,630 per year, or a rate of$30/sq.ft., to be adjusted yearly by CPI with a cap of3% per year. All costs associated with the construction of the tenant improvements of the retail space and other connections and services are the responsibility ofthe Tenant. The Tenant will also be required to execute an unconditional completion warranty for the retail space improvements. The rent commencement date starts three months (90 days) after the lease commencement date, to allow for the design, permitting and construction of the interior improvements. Leasing Commissions: As in the case of certain other leases at the Anchor Shops, the proposed subject Lease was delivered by an outside broker. Historically, when Loews was the Master Tenant, Loews offered a leasing commission of 6% of the aggregate annual rent for the first 5 years; 4.5% ofthe aggregate annual rent for the subsequent 5 years; and 3% for any remaining term of the lease. The Administration is proposing a similar commission structure as follows: 6% of the aggregate annual rent for years 1 through 5 years or $6,886.95; 4% of the aggregate annual rent for years 5 through 10 or $5,325.08; and 3% of the aggregate annual rent for the remaining 5 years or $4,629.92. The total commission, payable to Dynamic Realty Group, Inc., would be $16,841.96, of which one- quarter will be due upon execution of the lease; one-quarter will be due upon the Tenant's commencement of business operations at the Premises; one-quarter will be due three (3) months following the Tenant's commencement of business operations; and one-quarter will be due six (6) months following the Tenant's commencement of business operations at the premises. The Administration recommends that the Chairman and the Members of the Miami Beach Redevelopment Agency authorize the Chairman and the Secretary to execute a Lease Agreement with Artconnection Swiss Design, L.C. d/b/a Artconnection, for Suite #K in the Anchor Shops at South Beach; to execute the corresponding leasing commission agreement with Dynamic Realty Group, Inc., in an amount no-to-exceed $16,841.96, for procuring the aforementioned Lease; and to appropriate available, non-tax increment Redevelopment Agency funds from City Center, for payment of said leasing commission. LAL: :KOB:~ A \AnchProMemo.doc attachments Exhibit "A" Mr. Mario Provenzano Resume Lebenslauf/ Curriculum Vi,.. personliche DatenlPanonal d.ta, Nachname/sumume Provenzano (ehem, Eidunann) Mario Steinenvorstadt 46, 4051 Basel (Schweiz) 004161/2811500 004176/3849999 04112/1952 311.52212,111 verheiratet GommiswaldlSt. Gallen/Schweiz V ornamelFim nume Adressel Address T elefon/Fax/T<I"1'ho.<,Fux MobilteL/c<ll.phone GeburtsdatumlDate ofbUth AHV Nr.l Zivilstand/civilian Heimatortlcitizmship SchulenlS<hools: 1959 - 1966 1966 - 1968 . -- L ;. . Primarschule, Heerbrugg, Schweiz Abschlussschule. Heerbrugg, Schweiz SprachenlLanl""cas, Schweizer - Deutsch/swiss-GennanMuttersprache Deutsch/Gennan sehr gute Kenntnisse Englisch/English gute Kenntnisse Franzosisch/FrOO\ch gute Kenntnisse ItalieniscMtali", Kenntnisse Ausbildung und berufliche Tlitigkeiten:APprantleasmp and workexperl.nea, Apr, 1968 - Apr, 1971 Lehre als Herrencoiffeur Franz Krebs, Olten, Schweiz DJ & Konfektionsverkaufer, Boutique Dschingis, Basel, Schweiz Griindung der Firma artconnection, Basel, Schweiz Geschaftsfuhrer & Besitzer, artconnection, Basel, Schweiz Antiquitatenhandel, Kunsthandel, Rahmenatelier, Spiege1herstellung, Geschenkartikel , Schmuckherstellung - Schmuckherstellung, Schmuckkreationen, Schmuckhandel 1971 - 1972 1972 1972 - bis heute seit 1998 zusiitzliche Ausbildungenl Additlon.1o...di." China-Lack Bearbeitung, Meister Rahrnenproduktion, Meister Gold- Silberschmuck Herstellung Restaurationen AusstellungenJ mhltlo.., [983 [983 1984 [984 1985 Robert Brown Contemporary Art, Washington, USA Galerie Atrium, Basel, Schweiz Galerie Patric Cramer, Genf, Schweiz - ,,Fifo Stricker" Galerie Patrie Cramer, Genf, Schweiz - ,,Hommage au miroir" ,Aut 8 5. Basel, Schweiz 1985 1986 1986 1985 1987 1987 1992 Galerie 20, Wolf Uecker, Hamburg, Deutschland Harcourts, San Francisco, USA Gewerbemuseum, Basel, Schweiz Galerie Schafer, Giessen, DeutscWand Galerie Strau Hof, Zurich, Schweiz Gallerie Susanne Firestone, New York, USA Galerie des Schweizer Heimatwerks, Rennweg, Zurich, Schweiz Die Aufstellung der Austellungen ist nicht vollsandig - kann dokumentiert werden Die Unterlagen der Kunstwerke sind nicht vollsandig - kann dokumentiert werden Radio- und Fernsehberichte - kann dokumentiert werden (Videokas~ette vorhanden) / . \ Miami Beach Redevelopment Agency 1700 Convention Center Drive, Miami Beach, Fl. 33139 http:\\ci.miami-beach.fl.us Telephone (305) 673.7193 Facsimile (305) 673-7772 g~ ,2000 Dynamic Realty Group, Inc. 1111 Kane Concourse, Suite 201 Bay Harbor Islands, FL 33154 GentlemeniLadies: This will confirm our agreement regarding our services as a broker in connection with the proposed lease (the "Lease") between MIAMI BEACH REDEVELOPMENT AGENCY, as the landlord (the "Agency"), and ARTCONNECTION SWISS DESIGN, 1. c., a Florida Limited Liability Company as the tenant (the "Tenant"), for retail space to be situated in a municipal parking garage at an area bounded by Washington and Collins Avenues in the proximity of 16th Street, Miami Beach, Florida (the "Premises"). 1. Subject to the conditions and limitations hereinafter set forth, the comnusslOn (the "Commission") for your services in connection with the foregoing shall be an amount equal to the aggregate of the following percentages of the Minimum Rent (as such term shall be defined in the Lease) paid by the Tenant to the Agency during the following years of the term of the Lease: (i) Six (6%) percent of the Minimum Rent for years one (1) through five (5) of the term of the Lease, plus (ii) Four (4%) percent of the Minimum Rent for years six (6) through ten (10) of the term of the Lease, plus (iii) Three (3%) percent of the Minimum Rent for the remaining years of the term of the Lease. The term "Minimum Rent" shall exclude additional rent or other charges of any type or nature whatsoever paid or payable by the Tenant under the Lease including amounts payable on account of increases in real estate taxes, operating expenses, any escalations, utility payments or other charges for any services, if any. 2. Your right to the payment of the Commission shall be subject to the following conditions and limitations: (a). The Commission shall be deemed earned and payable to you only if and when, and not unless and until, all of the following conditions have been fulfilled: (i) the Lease for the Premises is executed by both the Agency and the Tenant; (ii) the Tenant has taken actual possession of the Premises for the use and purposes specified in the Lease; (iii) all conditions specified in the Lease for commencement of the Tenant's business operations (including the construction of the Premises as specified in the Lease) have been fulfilled; and (iv) the Tenant has commenced its business operations at the Premises and has commenced payment of the Minimum Rent. (b). Subsequent to the Tenant's taking possession of the Premises, should the Tenant's possession of the Premises terminate for any reason whatsoever, you shall be entitled only to the portion of the Commission paid through such date of termination. (c). The Agency reserves the right, in its sole discretion without any liability to you, to refuse to enter into any lease or negotiation with the Tenant or any other party, determine all terms and conditions of any proposed Lease or sublease, and refuse to sublet the Premises or permit the Tenant to take possession of the Premises for any reason whatsoever. 3. The Commission shall be payable to you as follows: (a). one-quarter of the Commission upon the Lease being executed by both parties (it being understood and agreed that such payment constitutes a payment in advance of your earning the Commission, and that no part of the Commission has been earned until all of the conditions specified in paragraph 2(a) above have been fulfilled); (b). one-quarter of the Commission following the Tenant's commencement of business operations at the Premises; (c). one-quarter of the Commission in three (3) months following the Tenant's commencement of business operations at the Premises; and (d). one-quarter of the Commission in six (6) months following the Tenant's commencement of business operations at the Premises. (e). You agree that if, subsequent to the execution of the Lease by both parties, the Tenant fails to take possession of the Premises and commence its business operations at the Premises, any portion of the Commission paid to you shall be immediately refunded, inasmuch as the conditions for your earning the Commission would not have been fulfilled in accordance with paragraph 2(a). In addition, you agree that if, subsequent to the commencement of the Tenant's . business operations at the Premises, the Lease is cancelled or the Tenant vacates the Premises for any reason whatsoever, you shall be entitled to keep any portion of the Commission paid to you through such date, but you shall have no further claim with respect to any subsequent payment of the Commission. The Commission due under this agreement shall be adjusted automatically to reflect the provisions of this paragraph 3. 4. You shall not be entitled to, nor shall there be payable, any commission or fee in the event of: (a). any extension or renewal of the original term of the Lease, whether or not the extension or renewal is the result of the Tenant's exercise of an option to extend or renew contained in the Lease; or (b). any expansion of the Premises, whether or not the addition results from the Tenant's exercise of an option to expand contained in the Lease; or (c) any of the transactions described in (a) and (b), above, involving any parent, subsidiary, or affiliate of the Tenant. 5. You represent and warrant that you are and will be, to the best of your knowledge, the only broker or finder involved in obtaining a tenant for the Premises. You hereby agree to indemnify and hold the Agency, the City of Miami Beach, and their respective affiliates, agents, and employees, harmless from and against any liability or expense, including reasonable attorneys' fees, arising directly or indirectly out of any person claiming to have acted with, by, or through you as a broker, co-broker, subagent, or finder in connectipn with the Sublease and the transactions contemplated thereunder. 6. If you should deal, or in any way communicate with, any other broker or finder in connection .with the Premises, such broker or finder shall be deemed to be a co-broker. You agree that the Agency shall not be liable for the payment of any Commission or other amount whatsoever to any co-broker, it being expressly recognized and agreed that the Agency shall be obligated only for a single Commission payable to you pursuant to this Agreement. In such event, you shall be responsible for payment of a, commission or fee to the co-broker pursuant to separate agreement between you and the co-broker, and you hereby indemnify and hold the Agency, the City of Miami Beach, and their respective affiliates, agents, and employees harmless from and against any liability or expense, including reasonable attorneys' fees, arising directly or indirectly out of any claim brought by such co-broker. 7. You hereby represent that you are a duly licensed real estate broker and will remain so throughout the receipt of any commission. 8. This letter agreement represents the entire agreement and understanding between the Agency and you, and there are no additional agreements or understandings of any kind, either written or oral, which relate to this agreement. This agreement supersedes all prior . agreements relating to the subject matter hereof. This agreement may be amended or waived only by an instrument in writing signed by the party against whom the enforcement of such amendment or waiver is sought. You may not assign any of your rights under this agreement without the prior written consent of the Agency. This agreement shall be construed in accordance with and governed by the laws of Florida. Please confirm your agreement to the foregoing by signing the enclosed copies of this letter in the space provided below and returning them to the undersigned. Very truly yours, MIAMI BEACH REDEVELOPMENT AGENCY By: Jl1 l'Iame: Neisen Kasdin, Chairman ATTEST: ~ f~ Robert Parcher, Secretary Agreed To: DYNAMIC REALTY GROUP, INC. M~ APPROVED AS TO fORM & LANGUAGE & FOR EXECUTION By: Title: HPr:<ION DTT _pn....s:rJe.nt - &o~r r ()7/'J-7/n~ , 11~1L- _IOf)rnenl Agency General Counsel Q~/7~dIJ Dot< Name: Date: F:\DDlfP\SAl..L\Alexmdra\Arlchor Ganp\Commission Ageemem.doc LANDLORD: Miami Beach Redevelopment Agency, a public body corporate and politic 1700 Convention Center Drive Miami Beach, Florida 33139 TENENAT: Artconnection Swiss Design, L.C" a Florida Limited Liability Company c/o Alexander Reus, Esq, Becker & Poliakoff, PA 5201 Blue Lagoon Drive, Suite 100 Miami. Florida 33126 DATE OF EXECUTION: h~ .2000 ANCHOR SHOPS AT SOUTH BEACH RETAIL LEASE , . lea$El Final - Provenzano.doc (i) LEASE SUMMARY The following is a summary of basic lease provisions with respect to the Lease, It is an integral part of the Lease, and terms defined or dollar amounts specified in this Summary shall have the meanings or amounts as stated. unless expanded upon in the text of the Lease and its Exhibits, which are attached to and made a part of this Summary. 1. Date of Lease Execution: .2000. 2, "Landlord": Miami Beach Redevelopment Agency 3, Landlord's Address: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Ms, Christina Cuervo, Assistant Director with a copy to: City of Miami Beach Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Legal Department 4, liT enanf': Artconnection Swiss Design, L.C" a Florida Limited Liability Company 5. Tenant's Address: Attn: Mr. Mario Provenzano c/o Alexander Reus, Esq, Becker & Poliakoff, PA 5201 Blue Lagoon Drive, Suite 100 Miami, Florida 33126 6, "Guaranto~': Mario Provenzano 7, Guaranto~s Address: c/o Alexander Reus, Esq. Becker & Poliakoff, P.A. 5201 Blue Lagoon Drive, Suite 100 Miami, Florida 33126 8. Premises (section 1, 1\: 100 16th Street - Suite #6 Miami Beach, FL 33139 As shown on Exhibit "B" 9. Gross Rentable Area of Premises (section 1.1): Approximately 721 square feet 1 O. Gross Rentable Area of Retail Soace (section 1,1 ): Approximately 20,500 rentable square feet 11 , Tenant's Prooortionate Share (section 2.4): N/A Lease Final- Provenzano.doc (ii) 12, Permitted Use of Premises (section 3,1): First-class retail store selling upscale fine custom-made jewerly (and subject to the prohibited uses described in Exhibit "D" to the Lease) Approximately fifteen (15) years and three (3) months 13. Term of Lease (section 1.1): "Commencement Date": The date that Landlord delivers possession of the Premises to Tenant for purposes of Tenant performing Tenant's Work, as hereinafter defined, which is intended to be simultaneous with Landlord's execution and delivery of the Lease "Rent Commencement Date": Ninety (90) days following the earlier of (i) the date Tenant opens for business or (ii) the Completion Date for Tenanfs Work (i.e., three (3) months after the Commencement Date) "Expiration Date": Fifteen (15) years after the Rent Commencement Date 14, "Minimum Renf' (section 2,2): MONTHLY PAYMENT (PLUS SALES TAX) MONTHS ANNUAL MINIMUM RENT Commencement Date - Rent Commencement Date Rent Commencement Date - next succeeding twelve months' $0.00 $0.00 $1,802.50 $21,630.00 . Beginning with the thirteenth (13th) month after the Rent Commencement Date, and thereafter at the beginning of each succeeding year during the Term of the Lease, the Minimum Rent shall be adjusted by multiplying the Minimum Rent then being paid by a fraction, the numerator of which shall be the Consumer Price Index - U,S, City average for urban wage earners and clerical workers all items (1982-84 equals 100) ("CPI") for the third month-preceding the month of adjustment, and the denominator of which shall be the CPI for the fifteenth month preceding the month of adjustment. Anything herein to the contrary-notwithstanding, in no event shall Minimum Rent in any year be less than the Minimum Rent paid for the immediately prior year. Should the CPI become unavailable. a reasonable substitute prepared by the U,S. Department of Labor or other source, as designated by Landlord, shall be used. Minimum Rent shall continue to be payable in monthly installments as otherwise described above until Landlord notifies Tenant of the new monthly Minimum Rent installment amount. Landlord shall attempt to so notify Tenant prior to the commencement of each adjustment date. However. failure of Landlord to timely notify Tenant of the new monthly Minimum Rent installment amount shall not be deemed a waiver by Landlord of the increased rental; the new monthly amount (or any portion to previously paid) shall be payable, retroactive to the commencement of the new adjustment date, upon notification by Landlord to Tenant of the new monthly Minimum Rent installment amount. Notwithstanding the foregoing. the annual Minimum Rent shall not be increased by more than three percent (3%) from the Minimum Rent payable for the immediately prior year, 15. Percentaae Rental (section 2,3): N/A l.... Final- Provenzano.doe (iii) 16. Preoaid Rent (section 2,2): $1,919,66 (includes sales tax) (due upon execution of Lease; to be applied to first full month Minimum Rent is due) 17. Security Deoosit (section 2.7): 18. Cost Pass- Throuahs (section 2.4): 19. Comprehensive General Liabilitv Insurance (section 6.1 ): 20. Manthly Promotional Charge (section 13.1): 21, Broker(s) (section 14.12): 22, Comoletion Date for Tenant's Work (section 5, 1): 23, Trade Name (section 3,1): $3,605,00 (excludes sales tax) (due upon execution of Lease) N/A $2,000,000.00 N/A Dynamic Realty Group, Inc. Ninety (90) days after the Commencement Date Artconnection SWiss Design, L.C. Lease Final- Provenzeno.Ooc (iv) Beach THIS LEASE (the "Lease"), dated the _ day of Redevelopment Agency, a public body corporate and (the "Tenant"), ,1999, is made between the Miami politic (the "Landlord"), and RECITALS: A The Landlord is the fee' simple owner of a certain facility (the "Facility") containing a municipal parking garage and appurtenances containing approximately eight hundred (800) parking spaces (the "Garage") and certain retail space (the "Retail Space") located in an area bounded by Washington and Collins Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more particularly described in Exhibit "A," attached hereto and made a part hereof (the "Land"), The Landlord is the fee simple owner of the Land and the Facility, B, Landlord .and Tenant desire to enter into this Lease for a portion of the Retail Space, on the terms and conditions hereinafter set forth, NOW, THEREFORE. in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows: ARTICLE I. TERM. 1,1 Grant: Term. In consideration of the performance by Tenant of its obligations under this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, for the Term, the "Premises," A site plan showing the location of the Retail Space within the Facility, as well as the location of the Premises within the Retail Space, is attached hereto and made a part hereof as Exhibit "8," The gross rentable area of the Premises and Retail Space shown on the Lease Summary do not represent accurate measurements of the square footage contained in the Premises or the Retail Space, but are mere estimates. The "Term" of the Lease is the period from the Commencement Date as specified in the Lease Summary, through the Expiration Date. as specified in the Lease Summary, 1,2, Landlord's Work, Tenant acknowledges and agrees that it is accepting possession of the Premises in as-is condition and that. except as otherwise expressly hereinafter set forth, Landlord has no obligation to furnish, render, or supply any money, work, labor, material. fixture, equipment. or decoration with respect to the Premises, Landlord has caused or will cause the completion of the shell improvements to the Retail Space as more particularly described on Exhibit "B-1," attached hereto and made a part hereof (the "Shell Improvements"), pursuant to plans and specifications therefor prepared by Landlord's architect and engineer (the "Project Plans and Specifications") and made available to Tenant prior to the date hereof, Landlord reserves the right to modify the plans and specifications for the Shell Improvements in response to building code requirements and/or construction conditions. Tenant is responsible for any and all utility impact fees and connection fees. charges, and/or deposits as may be required in connection with Tenant's Work, as hereinafter defined. Upon the expiration of five (5) business days following the Commencement Date, the Premises shall be conclusively deemed to be accepted by Tenant unless Tenant shall have given Landlord written notice of any contended defects in the Premises. ARTICLE II. RENT 2.1 Covenant to Pav, Tenant shall pay to Landlord all sums due hereunder from time to time from the Rent Commencement Date without prior demand, together with all applicable Florida sales tax thereon; however, unless otherwise provided in this Lease, payments other than Tenant's regular monthly payments of Minimum Rent shall be payable by Tenant to Landlord within five (5) days following demand, All rent or other charges that are required to be paid by Tenant to Landlord shall be payable at Landlord's address indicated on the Lease Summary, Minimum Rent and additional rent (which is all sums payable to Landlord other than Minimum Rent) for any "Lease Yea~' consisting of less than twelve (12) months shall be prorated on a per diem basis, based upon a period of 365 days, "Lease Yea~' means the twelve (12) full calendar months commencing on the Commencement Date, However, the final Lease Year may contain less than twelve (12) months due to expiration or sooner termination of the Term, Tenant agrees that its covenant to pay rent and all other sums under this Lease is an independent covenant and that all such amounts are payable without counterclaim, set-off, deduction, abatement, or reduction whatsoever, except as expressly provided for in this Lease. 2.2 Minimum Rent Subject to any escalation which may be provided for in this Lease, Tenant shall pay Minimum Rent for the Term in the initial amount specified in the Lease Summary, which, except for the first installment, shall be payable throughout the Term in equal monthly installments in advance on the first day of each calendar month of each year of the Term, such monthly installments to be in the amounts (subject to escalation) specified in the Lease Summary, The first monthly installment of Minimum Rent shall be due on the date of this Lease, The Minimum Rent described above shall be adjusted during the Term of this Lease as provided in the Lease Summary, 2,3, Percentaae Rental. Intentionally Omitted, 2,4 Operatina Costs: Taxes. Intentionally Omitted. 2.5 Pavment of Personal PropertY Taxes: Sales Tax Reports. Tenant shall pay, when due. all taxes attributable to the personal property, trade fixtures, business, occupancy, or sales of Tenant or any other occupant of the Premises and to the use of the Retail Space by Tenant or such other occupant Tenant shall provide Landlord with copies of Tenant's sales tax reports provided to the State of Florida, as and when such reports are provided to the State, Landlord shall have the right to disclose such reports to any person or entity having an interest or prospective interest in the Retail Space. 2.6 Rent Past Due, If any payment due from Tenant shall be overdue more than five (5) days, a late charge of five (5%) percent of the delinquent sum may be charged by Landlord. If any payment due from Tenant shall remain overdue for more than fifteen (15) days, an additional late charge in an amount equal to the lesser of the highest rate permitted by law or one and one-half (1 1/2%) percent per month (eighteen (18%) percent per annum) of the delinquent amount may be charged by Landlord, such charge to be computed for the entire period for which the amount is overdue and which shall be in addition to and not in lieu of the five (5%) percent late charge or any other remedy available to Landlord, 2,7 Security Deposit Landlord acknowledges receipt of a security deposit in the amount specified on the Lease Summary to be held by Landlord, without any liability for interest thereon, as security for the performance by Tenant of all its obligations under this Lease. Landlord shall be entitled to commingle the security deposit with Landlord's other funds, If Tenant defaults in any of its obligations under this Lease, Landlord may at its option, but without prejudice to any other rights which Landlord may have, apply all or part of the security deposit to compensate Landlord for any loss, damage, or expense sustained by Landlord as a result of such default If all or any part of the security deposit is so applied, Tenant shall restore the security deposit to its original amount on demand of Landlord, Subject to the provisions of section 2,4, within thirty (30) days following termination of this Lease. if Tenant is not then in default, the security deposit will be returned by Landlord to Tenant Notwithstanding the foregOing. for purposes of the security deposit described in the Lease Summary and the above paragraph, Tenant. at its option. shall have the right to post an irrevocable, unconditional. and transferable Letter of Credit, which Letter of Credit shall comply with the provisions of Exhibit "2,7," attached hereto and made a part hereof. If Tenant delivers the Letter of Credit to Landlord, then Landlord will return the cash security deposit promptly after Landlord's receipt of the Letter of Credit 2,8 Landlord's Lien, To secure the timely construction and installation of all improvements to the Premises by tenant and to secure the payment of all rent and other sums of money due and to become due hereunder and the faithful performance of this Lease by Tenant. Tenant hereby gives to Landlord an express first 2 and prior contract lien and security interest on all property now or hereafter acquired (including fixtures, equipment, chattels, and merchandise) which may be placed in the Premises and also upon all proceeds of any insurance which may accrue to Tenant by reason of destruction of or damage to any such property, Such property shall not be removed therefrom without the written consent of Landlord until all arrearages in rental and other sums of money then due to Landlord hereunder shall first have been paid; provided, Tenant may operate its business in the ordinary course and the removal of merchandise from the Premises by customers of Tenant shall not be a default under this section, All exemption laws are hereby waived in favor of said lien and security interest This lien and security interest is given in addition to Landlord's statutory lien and shall be cumulative thereto, Landlord shall, in addition to all of its rights hereunder, also have all of the rights and remedies of a secured party under the Uniform Commercial Code as adopted in the State in which the Premises is located, To the extent permitted by law, this Lease shall constitute a security agreement under Article 9 of the Florida Uniform Commercial Code, ARTICLE III. USE OF PREMISES. 3,1 Permitted Use, The Premises shall be used and occupied only for the sale at retail of goods or services as specified in the Lease Summary, The business of Tenant in the Premises shall be carried on under the name specified in the Lease Summary and under no other name unless approved by Landlord in writing. Tenant shall carry on its business on the Premises in a reputable manner and shall not do, omit, permit, or suffer to be done or exist upon the Premises anything which shall resuit in a nuisance, hazard, or bring about a breach of any provision of this Lease or any applicable municipal or other governmental law or regulation, or would otherwise be inconsistent with a first-class retail center or incompatible with retail uses ancillary to a first-class convention center hotel. Tenant shall observe all reasonable rules and regulations established by Landlord from time to time for the Retail Space, The rules and regulations in effect as of the date hereof are attached to and made a part of this Lease as Exhibit "C," Landlord will provide a copy of any amendments to the rules and regulations at least seven (7) days prior to the effective date of any such amendments, Tenant shall display such name as Landlord may from time to time designate for the Retail Space in its stationery used upon the Premises, and in material which is given, visible, or available to customers of Tenant Tenant shall promote such name in any advertisements or promotional material published or initiated by Tenant In regard to its business from the Premises, The names for the Retail Space and the project of which the Retail Space is a part, which Landlord may from time to time adopt, and every name or mark adopted by Landlord in connection with the Retail Space shall be used by Tenant only in association with the business carried on in the Premises during the Term and Tenant's use thereof shall be subject to such reasonable regulation as Landlord may from time to time impose, 3,2 Compliance with Laws, The Premises shall be used and occupied in a safe, careful, and proper manner so as not to contravene any present or future laws, rules, regulations, constitutions, orders. ordinances. charters, statutes, codes. executi'Je orders, and requirements of all governmental authorities having jurisdiction over the Premises or any street, road, avenue. or sidewalk comprising a part of, or lying in front of, the Premises or any vault in or under the Premises (including, without limitation, any of the foregoing relating to handicapped access or parking, the local building codes. and the laws, rules. regulations, orders, ordinances, statutes, codes. and requirements of any applicable Fire Rating Bureau or other body exercising similar functions), the temporary and/or permanent certificate or certificates of occupancy issued for the Premises as then in force, and any and all provisions and requirements of any property, casualty, or other insurance policy required to be carried by Tenant under this Lease, If due to Tenant's use of the Premises, repairs, improvements, or alterations are necessary to comply with any of the foregoing, Tenant shall pay the entire cost thereof. 3,3 Sians, Tenant, at Tenant's expense. shall erect and maintain identification signage upon the storefront of the Premises. The design and specification of such signage shall be subject to Landlord's sign criteria as adopted from time to time and such design and specification (including camera-ready artwork) shall be submitted for Landlord's prior approval. Except with the prior written consent of Landlord. Tenant shall not erect, install, display, inscribe, paint, or affix any signs, lettering, or advertising medium upon or above any exterior portion of the Premises or in or on Tenant's storefront or storefront window, Landlord's sign age criteria is attached hereto and made a part hereof as Exhibit "E." 3 3.4 Environmental Provisions. (a) Tenant .shall not knowingly incorporate into, use, or otherwise place or dispose of at the Premises or in the Retail Space (or allow others to incorporate into, use, or otherwise place or dispose of at the Premises or in the Retail Space) any Hazardous Materials. as hereinafter defined, unless (i) such Hazardous Materials are for use in the ordinary course of business (Le" as with office or cleaning supplies), (ii) notice of and a copy of the current material safety data sheet is provided to Landlord for each such Hazardous Material (except for Hazardous Materials used by Tenant in the ordinary course of business (Le" as with office or cleaning supplies)), and (Iii) such materials are handled and disposed of in accordance with all applicable governmental laws, rules, and regulations. If Landlord or Tenant ever has knowledge of the presence in the Premises or the Retail Space of Hazardous Materials which affect the Premises, such party shall notify the other thereof in writing promptly after obtaining such knowledge. For purposes of this Lease, "Hazardous Materials" shall mean: (a) petroleum and its constituents; (b) radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation. transformers or other equipment which contain dielectric fluid containing levels of pOlychlorinated biphenyls in excess of federal. state or local safety guidelines, whichever are more stringent; (c) any substance, gas. material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes," or words of similar import under any applicable governmental laws, rules. and regulations including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S,C. S 9061 et seq,; the Hazardous Materials Transportation Act, as amended, 49 U.S.C, S 1801. ~ seq,; the Resource Conservation and Recovery Act, as amended, 42 U.S,C, S 6901, et seq,; the Federal Water Pollution Control Act. as amended, 33 U,S.C, S 1251, et seq,; and Florida Statutes, Chapters 376 and 403; and (d) ariy other chemical, material, gas, or substance, the exposure to or release of which is regulated by any governmental or quasi-governmental entity having jurisdiction over the Retail Space or the operations thereon. (b) If Tenant or its employees, agents. or contractors shall ever violate the provisions of subsection (a), above. then Tenant shall clean-up, remove, and dispose of the Hazardous Material causing the violation, in compliance with all applicable governmental standards, laws. rules, and regulations and repair any damage to the Premises or Retail Space within such period of time as may be reasonable under the circumstances after written notice by Landlord, provided that such work shall commence not later than thirty (30) days from such notice and be diligently and continuously carried to completion by Tenant or Tenant's designated contractors, Tenant shall notify Landlord of its method, time, and procedure for any clean-up or removal of Hazardous Materials under this provision; and Landlord shall have the right to require reasonable changes in such method. time, or procedure or to require the same to be done after normal business hours or when the Retail Space is otherwise closed (Le" holidays) if reasonably required for the protection of other tenants or occupants of the Retail Space. (c) Tenant agrees to defend, indemnify, and hold harmless Landlord, and the City of Miami Beach (the "City") against any and all claims, costs, expenses, damages, liability, and the like, which Landlord may hereafter be liable for, suffer, incur, or pay arising under any applicable environmental laws, rules, and regulations and resulting from or arising out of any breach of the covenants contained in this section 3.4, or out of any act, activity, or violation of any applicable environmental laws, rules, and regulations on the part of Tenant, its agents, employees. or assigns, Tenant's liability under this section 3.4 shall survive the expiration or any termination of this Lease, 3,5 Hours: Continued Occuoancv, During the Term. Tenant shall conduct its business in the Premises. at a minimum, on all days and during all hours established by Landlord from time to time as store hours for the Retail Space, Tenant may conduct business on the Premises. in addition to the foregoing times, in Tenant's reasonable judgment in order to maximize sales from the Premises, at Tenant's sole expense, However, Landlord shall not be responSible for providing common area or other services during such additional hours, Tenant shall open the whole of the Premises for business to the public, fully fixtured, stocked, and staffed on the Completion Date set forth in item 22 of th~ Lease Summary, and shall continuously, actively, and diligently carry on the business specified in section 3,1 on the whole of the Premises during the Term, during such hours and upon such days as are herein required, except when prevented from doing so by force majeure, Tenant acknowledges that its 4 continued occupancy of the Premises and the regular conduct of its business therein are of utmost importance to neighboring tenants and to Landlord in the renting of space in the Retail Space, the renewal of other leases therein. the efficient and economic supply of services and utilities. Tenant acknowledges that Landlord is executing this Lease in reliance thereupon and that the same is a material element inducing Landlord to execute this Lease. Tenant shail not keep or display any merchandise on or otherwise obstruct the common areas and shail not seil, advertise, conduct, or solicit business anywhere within the Retail Space other than in the Premises, Tenant shail ship and receive supplies, fixtures, equipment, furnishings, wares. and merchandise only through the appropriate service and delivery facilities provided by Landlord; and shail not park its trucks or other delivery vehicles or ailow suppliers or others making deliveries to or receiving shipments from the Premises to park in the parking areas, except in those parts thereof as may from time to time be ailocated by Landlord for such purpose, Tenant shail maintain available a substantial stock of goods, wares, and merchandise adequate to ensure successful operation of Tenant's business, and shail employ and maintain sales and other personnel sufficient at ail times for proper service to customers, 3,6 Prohibited Uses, Notwithstanding any other provisions of this Lease, Tenant shail not use the Premises nor permit them to be used for any of the foilowing purposes: (A) for the sale by Tenant, as its principal business purpose, of any merchandise which Tenant, in the course of its normal business practice, purchases at manufacturers' clearances or purchases of ends-of-runs. bankruptcy stock, seconds, or other similar merchandise; (8) for the sale of second-hand goods, war surplus articles. insurance salvage stock, fire saie stock, merchandise damaged by or held out to be damaged by fire. except merchandise damaged by fire or smoke occurring in the Retail Space, and then only for thirty (30) days after the date of any such damage; (C) as an auction or flea market; (D) for a bankruptcy sale or going-out-of-business sale or liquidation sale or any similar sale, unless Tenant is in fact in bankruptcy or is going out of business or is in liquidation, in which case such sale shail not continue beyond thirty (30) days; (E) a business primarily used for an order office, mail order office. or catalogue store; or (F) any business in which Tenant is engaged in intentionaily deceptive or fraudulent advertising or selling practices or any other act or business practice contrary to honest retail practices. 3.7 Intentionaly Omitted, 3,8 Exclusive Use, So long as Tenant is in actual occupancy of the Premises and using the Premises for the permitted use set forth in the Lease Summary, Landlord agrees not to enter into any leases for space in the Retail Space with persons or entities whose primary business at the Retail Space would be the sale of upscale fine custom-made jewerly, ARTICLE IV, ACCESS AND ENTRY. 4.1 RiQht of Examination. Landlord shail be entitled at ail reasonable times and upon reasonable notice (but no notice is required in emergencies) to enter the Premises to examine them if Landlord reasonably believes that Tenant is not complying with any of its obligations hereunder; to make such repairs. alterations, or improvements thereto as Landlord considers necessary or reasonably desirable; to have access to underfloor facilities and access panels to mechanical shafts and to check, calibrate, adjust. and balance controls and other parts of the heating, air conditioning, ventilating, and climate control systems, Landlord reserves to itself (and others acting on behalf of Landlord including. without limitation, the City) the right to instail, maintain. use, and repair pipes, ducts, conduits. vents. wires, and other instailations leading in, through. over, or under the Premises and for this purpose, Landlord may take ail material into and upon the Premises which is required therefor. Tenant shail not unduly obstruct any pipes, conduits, or mechanical or other electrical equipment so as to prevent reasonable access thereto, Landlord reserves the right to use ail exterior wails and roof area, Landlord shail exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property, 4,2 RiQht to Show Premises, Landlord and its agents have the right to enter the Premises at ail reasonable times and upon reasonable notice to show them to prospective purchasers. lenders. or anyone having a prospective interest in the Retail Space, and. during the last six (6) months of the Term (or the last six (6) months of any renewal term if this Lease is renewed), to show them to prospective tenants. Landlord shail 5 exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to minimize interference with Tenanfs use and enjoyment of the Premises and Tenant's property, ARTICLE V, INITIAL CONSTRUCTION; MAINTENANCE, REPAIRS, AND ALTERATIONS, 5.1, Tenanfs Construction ObliQations. (a) Subject to the provisions hereof, Tenant shall, at its expense, cause the construction and installation of all improvements to the Premises in accordance with Tenant's Plans, as hereinafter defined, and as necessary to permit Tenant to occupy same and conduct normal business operations (such improvements being referred to herein as " Tenant's Work"). (b) Within fifteen (15) days after the date of this Lease, Tenant, at Tenant's expense, agrees to furnish to Landlord a preliminary schedule of finishes and conceptual plan for the Premises, The preliminary schedule of finishes and conceptual plan shall be subject to Landlord's review and approval, not to be unreasonably withheld or delayed, Landlord shall notify Tenant in writing of its acceptance or of its objections to the preliminary schedule of finishes and conceptual plan within ten (10) business days after such preliminary schedule has been provided to Landlord. Should Tenant fail to submit the preliminary schedule of finishes and conceptual plan within the time period set forth above, or should Tenant fail to make any reasonable modifications Landlord may require within five (5) business days of notice thereof, then either such event shall be deemed to be a default under this Lease, (c) Within thirty (30) days after the date that Landlord approves the preliminary schedule of finishes and conceptual plan, Tenant, at Tenant's expense, agrees to furnish to Landlord a set of schematic drawings (including an initial space plan). which shall also include as an attachment a schedule of finishes and Tenant's proposed construction budget (the "Schematic Drawings") for Tenant's Work. The construction budget shall include detailed descriptions of the scope of work and provide for a minimum expenditure by Tenant for Tenant's Work, The Schematic Drawings shall be subject to Landlord's review and approval, not to be unreasonably withheld or delayed, Landlord shall notify Tenant in writing of its acceptance or of its objections to the Schematic Drawings within ten (10) business days after the Schematic Drawings have been provided to Landlord, Should Tenant fail to. submit the Schematic Drawings within the time period set forth above. or should Tenant fail to make any reasonable modifications Landlord may require within five (5) business days of notice thereof. then either such event shall be deemed to be a default under this Lease. Tenant acknowledges that submission of satisfactory Schematic Drawings is a condition to Landlord's entering into this Lease with Tenant . and that jf Tenant fails to furnish Schematic Drawings acceptable to Landlord within the time periods set forth herein, then, in such event, Tenant shall be in default under this Lease. and Landlord shall have the option to declare this Lease null and void, The Schematic Drawings, as approved by Landlord. shall be incorporated herein by reference and made part of this Lease, (d) Within thirty (30) days after the date Landlord has approved the Schematic Drawings, Tenant. at Tenant's expense, agrees to furnish to Landlord a complete, detailed set of plans and specifications through the design development stage ("Tenant's Plans") for Tenant's Work, which shall include, without limitation, all working drawings, elevations, finish selections, and signage schematics. along with a separate schedule detailing Tenant's estimated expenditures in connection with Tenant's Work (based on the construction budget described above as supplemented to reflect the approved Schematic Drawings) and a list of the proposed architect and engineer(s), interior design team, general contractor, and subcontractors. Tenant's Plans shall be based on the approved Schematic,.Drawings and shall be in a form sufficient to obtain a building permit from the City, Tenant's Plans shall be prepared by Tenant's architect and engineer(s), which architect and engineer(s) shall be subject to Landlord's prior written approval, not to be unreasonably withheld or delayed, If Tenant elects to retain Landlord's architect and/or engineer(s), such architect and/or engineer(s) shall nonetheless be considered to be Tenant's agent(s) for purposes of this section 5,1, Tenant's Plans shall be subject to Landlord's reasonable review and approval. which approval shall not be unreasonably withheld or delayed, Landlord shall notify Tenant in writing of its acceptance or of its objections to Tenant's Plans within ten (10) business days after the Tenant's Plans have been provided to La~dlord, Should Tenant fail to submit Tenant's Plans within the time period set forth above, or should Tenant fail to make any reasonable modifications Landlord may require within five (5) business 6 days of notice thereof, then either such event shall be deemed to be a delay caused by Tenant. Notwithstanding Landlord's review and approval of Tenant's Plans, Landlord assumes no responsibility whatsoever, and shall not be liable, for the manufacturer's, architect's, or engineer's design or performance of any structural, mechanical, electrical, or plumbing systems or equipment of Tenant. (e) Once Landlord approves Tenanfs Plans, Tenant shall. within five (5) days, provide Landlord with two (2) sets of Tenant's Plans (and any changes to Tenant's Plans and/or the approved construction budget shall be made only by written addendum signed by both parties). Tenant's Plans, as approved by Landlord, shall be incorporated herein by reference and made part of this Lease, (I) Within thirty (30) days after the date Landlord has approved Tenant's Plans, Tenant. at Tenant's expense. agrees to furnish to Landlord a complete and detailed set of construction documents in AlA form, including all exhibits ("Tenant's Construction Documents") for Tenanfs Work, which shall be prepared by Tenant's architects, Tenanfs Construction Documents shall be subject to Landlord's prior written approval, which approval shall not be unreasonably withheld or delayed. and Tenant shall receive written notification of Landlord's approval or objections to Tenant's Construction Documents. Should Tenant fail to submit Tenanfs Construction Documents with the period set forth above or should Tenant fail to make any reasonable modifications. Landlord may request within five (5) business days of notice hereof, then either such event shall be deemed a delay caused by Tenant. Notwithstanding Landlord's review of Tenant's Construction Documents. Landlord assumes no responsibility whatsoever and shall not be liable with respect to any item contained therein. (g) Once Landlord approves Tenant's Construction Documents, Tenant shall. within five (5) days, provide Landlord with two (2) sets of Tenant's Construction Documents (and any changes to Tenant's Construction Documents and/or the approved construction budget shall be made only by written addendum signed by both parties). (h) Tenant shall use only licensed contractors and subcontractors approved in writing by Landlord to complete the construction and installation of Tenanfs Work, which approval shall not be unreasonably withheld or delayed, Within ten (10) days after the date hereof, Tenant shall provide to Landlord certificates of insurance evidencing that Tenant has the required comprehensive general liability insurance required of Tenant under the Lease. In addition. Tenant shall provide to Landlord certificates of insurance evidencing that Tenant's general contractor has in effect (and shall maintain at all times during the course of the work hereunder) workers' compensation insurance to cover full liability under workers' compensation laws of the State of Florida with employers' liability coverage; comprehensive general liability and builder's risk insurance for the hazards of operations, independent contractors, products and completed operations (for two (2) years after the date of acceptance of the work by Landlord and Tenant); and contractual liability specifically covering the indemnification provision in the construction contract. such comprehensive general liability to include broad form property damage and afford coverage for explosion, collapse and underground hazards, and "personal injury" liability insurance and an endorsement providing that the insurance afforded under the contractor's policy is primary insurance as respects Landlord and Tenant and that any other insurance maintained by Landlord or Tenant is excess and non- contributing with the insurance required hereunder, provided that such insurance may be written through primary or umbrella insurance policies with a minimum policy limit of $1,000,000,00. Landlord and Tenant are to be included as an additional insured for insurance coverages reqUired of the general contractor. Tenant shall inform its contractor, subcontractors. and material suppliers that Landlord's interest in the Premises and the Retail Space shall not be subject to any lien to secure payment for work done or materials supplied to the Premises on Tenant's behalf and that Landlord has filed a notice in the public records of Dade County, Florida, to that effect, All inspections and approvals necessary and appropriate to complete Tenant's Work in accordance with Tenant's Plans and as necessary to obtain a certificate of use and occupancy as hereinafter provided are the responsibility of Tenant and its general contractor. Tenant shall arrange a meeting prior to the commencement of construction between Landlord and Tenanfs contractors for the purpose of organizing and coordinating the completion of Tenant's Work, (i) Once Tenant's Plans have been approved by Landlord, Tenant shall diligently pursue the issuance of a building permit therefor. Tenant shall commence Tenant's Work (and shall be required to diligently pursue same) upon receipt of the building permit. If Tenant has not commenced Tenant's Work by such date, or if 7 Tenant has not achieved Substantial Completion of Tenant's Work in accordance with Tenanfs Plans, as approved by Landlord, by the date set forth in the Lease Summary, then, in either such event, Tenant shall be in default under this Lease. and Landlord shall have the option to declare this Lease null and void and exercise any remedies available under this Lease. Should this Lease be declared null and void pursuant to this paragraph. Tenant shall forfeit all rights to any deposits, advance rent, and any other payments made under this Lease, and Landlord shall have no further liability to Tenant under this Lease, "Substantial Completion" of Tenant's Work shall mean that Tenant's Work has been completed in accordance with the approved Tenant's Plans and that the Premises are approved for use and occupancy by the appropriate governmental authorities and are in suitable condition for the operation of Tenant's business. Gl All of Tenant's Work shall be completed in a good and workmanlike manner and shall be in conformity with the City's building codes and the South Florida Building Code, Dade Edition. and in accordance with Landlord's construction rules and regulations pertaining to contractors, Upon completion of Tenant's Work. Tenant shall furnish Landlord: (1) a certificate of use and/or occupancy issued by the City and other evidence satisfactory to Landlord that Tenant has obtained the govemmental approvals necessary to permit occupancy; and (2) a notarized affidavit from Tenant's contractor(s) that all amounts due for work done and materials fumished in completing Tenanfs Work have been paid; and (3) releases of lien from any subcontractor or material supplier that has given Landlord a Notice to Owner pursuant to Florida law; and (4) as-built drawings of the Premises, with a list and description of all work performed by the contractors, subcontractors, and material suppliers, (k) Any damage to the existing finishes of the Retail Space shall be patched and repaired by Tenant, at its expense, and all such work shall be done to Landlord's satisfaction. If any patched and painted area does not match the original surface, then the entire surface shall be repainted at Tenant's expense. Tenant agrees to indemnify and hold harmless Landlord. its agents. and employees from and against any and all costs. expenses, damage, loss, or liability, including, but not limited to, reasonable attorneys' fees and costs. which arise out of, is occasioned by, or is in any way attributable to the build-out of the Premises or any subsequent improvements or alterations by renant pursuant to this Lease. Tenant, at its expense. shall be responsible for the maintenance, repair, and replacement of any and all items constructed by Tenanfs contractor. (I) Tenant shall not alter the existing fire alarm system in the Premises or the Retail Space, Tenant's Plans shall include detailed drawings and specifications for the design and installation of Tenanfs fire alarm (and security) system(s) for the Premises, Such system(s) shall meet all appropriate building code requirements, and the fire alarm system shall, at Tenant's expense. be integrated into Landlord's fire alarm system for the Retail Space, (Landlord is not required to provide any security system.) Landlord's electrical contractor and/or fire alarm contractor shall, at Tenant's expense, make all final connections between Tenant's and Landlord's fire alarm systems. Tenant shall insure that all work performed on the fire alarm system shall be coordinated at the job site with the Landlord's representative. 5.2 Maintenance and Repairs bv Landlord, It is hereby acknowledged and agreed that Landlord shall maintain and repair certain portions of the Retail Space. Tenant will notify in writing of any necessary repairs that are the obligation of Landlord, Landlord shall not be responsible for any damages caused to Tenant by reason of failure of any equipment or facilities serving the Retail Space or delays in the performance of any work for which the Landlord is responsible to perform pursuant to this Lease, Notwithstanding any other provisions of this Lease, if any part of the Retail Space is damaged or destroyed or requires repair, replacement, or alteration as a result of the act or omission of Tenant. its employees. agents, invitees, licensees, or contractors, Landlord shall have the right to perform same and the cost of such repairs, replacement. or alterations shall be paid by Tenant to Landlord upon demand, In addition, if, in an emergency, it shall become necessary to make promptly any repairs or replacements required to be made by Tenant, Landlord may re-enter the Premises and proceed forthwith to have 8 the repairs or replacements made and pay the costs thereof. Upon demand, Tenant shall reimburse Landlord for the cost of making the repairs, Landlord shall exercise its rights under this section in a manner so as to minimize any disruption or interference with the operation of Tenant's business and property, 5,3 Maintenance and Repairs bv Tenant Tenant shall, at its sole cost, repair and maintain the Premises exclusive of base building mechanical and electrical systems, all to a standard consistent with a first class retail center. with the exception only of those repairs which are the obligation of the Agency Landlord pursuant to this Lease, Without limiting the generality of the foregoing. Tenant is specifically required to maintain and make repairs to (i) the portion of any pipes, lines, ducts, wires. or conduits contained within the Premises; (ii) windows, plate glass, doors, and any fixtures or appurtenances composed of glass (including, without limitation. interior and exterior washing of windows and plate glass); (Iii) Tenant's sign; (iv) any heating or air conditioning equipment serving the Premises ("HV AC") (which shall include, without limitation. a preventive maintenance HV AC service contract Such service contract shall include, without limitation. preventive HV AC maintenance no less than quarterly); and (v) the Premises or the Retail Space when repairs to the same are necessitated by any act or omission of Tenant, or the failure of Tenant to perform its obligations under this Lease, All repair and maintenance performed by Tenant in the Premises shall be performed by contractors or workmen designated or approved by Landlord, which approval shall not be unreasonably withheld or delayed, At the expiration or earlier termination of the Term, Tenant shall surrender the Premises to Landlord in as good condition and repair as Tenant is required to maintain the Premises throughout the Term, reasonable wear and tear excepted, Tenant shall also furnish, maintain, and replace all electric light bulbs, tubes, and tube casings located within or serving the Premises and Tenant's signage, all at Tenant's sole cost and expense. 5,4 Approval of Tenant's Alterations, No alterations (including, without limitation, improvements, additions, or modifications to the Premises) shall be made by Tenant to the Premises without Landlord's prior written approval, which, as to exterior or structural alterations may be withheld in Landlord's sole discretion, Any alterations by Tenant shall be performed at the sole cost of Tenant, by contractors and workmen approved by Landlord. which approval shall not be unreasonably withheld or delayed, in a good and workmanlike manner, and in accordance with all applicable laws and regulations. 5.5 Removal of Improvements and Fixtures, All leasehold improvements and fixtures (other than unattached, movable trade fixtures which can be removed without damage to the Premises) shall at the expiration or earlier termination of this Lease become Landlord's property, Tenant may, during the Term, in the usual course of its business, remove its trade fixtures. provided that Tenant is not in default under this Lease; and Tenant shall, at the expiration or earlier termination of the Term, at its sole cost, remove such of the leasehold improvements (except for improvements installed by Landlord prior to the Commencement Date) and trade fixtures in the Premises as Landlord shall require to be removed and restore the Premises to the condition existing prior to such removal. Tenant shall at its own expense repair any damage caused to the Retail Space by such removal. If Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures shall. at the option of Landlord. become the property of Landlord and may be removed from the Premises and sold or disposed of by Landlord in such manner as it deems advisable without any accounting to Tenant 5,6 Liens. Tenant shall promptly pay for all materials supplied and work done in respect of the Premises by. through, or under Tenant so as to ensure that no lien is recorded against any portion of the Retail Space or against Landlord's or Tenant's interest therein, If a lien is so recorded. Tenant shall discharge it promptly by payment or bonding, If any such lien against the Retail Space or Landlord's interest therein is recorded and not discharged by Tenant as above required within fifteen (15) days fOllowing written notice to Tenant, Landlord shall have the right to remove such lien by bonding or payment and the cost thereof shall be paid immediately from Tenant to Landlord, Landlord and Tenant expressly agree and acknowledge that no interest of Landlord in the Premises or the Retail Space shall be subject to any lien for improvements made by Tenant in or for the Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant, such liability being expressly prohibited by the terms of this Lease, In accordance with applicable laws of the State of Florida, Landlord has filed in the public records of Dade County, Florida. a public notice containing a true and correct copy of this paragraph, and Tenant hereby agrees to inform all contractors and material suppliers performing work in or for or supplying materials to the Premises of the existence of said notice. 9 5,7 Utilities, Tenant shall pay to Landlord, or as Landlord directs. all gas, electricity, water. and other utility charges applicable to the Premises as separately metered, Tenant shall, at its own cost, install. maintain and repair, as required, its electrical meter for the Premises, In addition, Tenant's eiectrical equipment and lighting shall be restricted to that equipment and lighting which individually does not have a rated capacity andlor design load greater than the rated capacity andlor design load of the Retail Space, If Tenant's consumption of electrical services exceeds either the rated capacity andlor design load of the Retail Space, then Tenant shall remove the equipment andlor lighting to achieve compliance within ten (10) days after receiving written notice from Landlord, or such equipment andlor lighting may remain in the Premises. so long as ( a) Tenant shall pay for all costs of installation and maintenance of submeters, wiring, air-conditioning, and other items required by Landlord, in Landlord's reasonable discretion. to accommodate Tenant's excess design loads and capacities; and (b) Tenant shall pay to Landlord. within thirty (30) days after rendition of a bill, the cost of the excess consumption of electrical service at the rates charged to Landlord by Florida Power & Light, which shall be in accordance with any applicable laws, ARTICLE VI. INSURANCE AND INDEMNITY, 6.1 Tenanfs Insurance, Tenant shall, throughout the Term (and any other period when Tenant is in possession of the Premises), maintain at its sole cost the following insurance: (A) All risks property insurance. containing a waiver of subrogation rights which Tenant's insurers may have against Landlord and against those for whom Landlord is in law responsible including, without limitation, its directors, officers, agents, and employees, and (except with respect to Tenant's chattels) incorporating a standard New York mortgagee endorsement (without contribution), Such insurance shall insure property of every kind owned by Tenant in an amount not less than the full replacement cost thereof (new), with such cost to be adjusted no less than annually, Such policy shall include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any mortgagee of the Landlord in connection with a mortgage on the Facility, (B) Comprehensive general liability insurance. Such policy shall contain inclusive limits per occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any mortgagee of Landlord in connection with a mortgage on the Facility, (C) legal requirements, Workers compensation and employer's liability insurance in compliance with applicable (D) Business interruption insurance. sufficient to insure Tenant for no less than one (1) full year of loss of business, with the Landlord named thereon as loss payee to the extent permitted by applicable law, (E) Any other form of insurance which Tenant or Landlord. acting reasonably. requires from time to time in form, in amounts, and for risks against which a prudent tenant would insure, but in any event not less than that carried by comparable retail establishments in Dade County, Florida, All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida and reasonably acceptable to Landlord; (iI) be in a form reasonably satisfactory to Landlord; (iil) be non-contributing with, and shall apply only as primary and not as excess to any other insurance available to Landlord or any mortgagee of Landlord; (iv) contain an undertaking by the insurers to notify Landlord by certified mail not less than thirty (30) days prior to any material change, cancellation, or termination, and (v) with respect to subsection (A), contain replacement cost, demolition cost, and increased cost of construction endorsements. Certificates of insurance on Landlord's standard form or, if required by a mortgagee, copies of such insurance policies certified by an authorized officer of Tenant's insurer as being compiete and current, shall be delivered to Landlord promptly upon request. If Tenant fails to take out or to keep in force any insurance referred to in this section 6.1, or should any such insurance not be approved by either Landlord or any mortgagee. and Tenant does not commence and continue to diligently cure such default within two (2) business days after written notice by Landlord to Tenant specifying the nature of such default, then Landlord has the right, without assuming any 10 obligation in connection therewith, to effect such insurance at the sole cost of Tenant and all outlays by Landlord shall be paid by Tenant to Landlord as additional rent without prejudice to any other rights or remedies of Landlord under this Lease, Tenant shall not keep or use in the Premises any article which may be prohibited by any fire or casualty insurance policy in force from time to time covering the Premises or the Retail Space. 6.2 Loss or Damaae, Tenant acknowledges that the Landlord will be performing any maintenance and repairs required of Landlord hereunder, Landlord shall not be liable for any death or injury arising from or out of any occurrence in, upon, at. or relating to the Retail Space or damage to property of Tenant or of others located on the Premises or elsewhere in the Retail Space, nor shall it be responsible for any loss of or damage to any property of Tenant or others from any cause, unless such death, injury, loss, or damage results from the gross negligence or willful misconduct of Landlord, Without limiting the generality of the foregoing, Landlord shall not be liable for any injury or damage to persons or property resulting from fire. explosion, falling plaster. falling ceiling tile, falling fixtures, steam, gas. electricity, water, rain, flood, or leaks from any part of the Premises or from the pipes, sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Retail Space or from the street or any other place or by dampness, or by any other cause whatsoever, unless resulting from the gross negligence or willful misconduct of Landlord. Tenant agrees to indemnify Landlord and hold it harmless from and against any and all loss (including loss of Minimum Rent and additional rent payable in respect to the Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including attorneys' fees and costs at all tribunal levels). unle5s caused by the gross negligence or willful misconduct of Landlord, arising from any occurrence in, upon, or at the Premises, or the occupancy, use, or improvement by Tenant or its agents or invitees of the Premises or any part thereof. or occasioned wholly or in part by any act or omission of Tenant its agents, employees, and invitees or by anyone permitted to be on the Premises by Tenant. 6,3 Waiver of SUbroaation, Landlord and Tenant each hereby waives on behalf of itself and its insurers (none of which shall ever be assigned any such claim or be entitled thereto due to subrogation or othelWise) any and all rights of recovery, claim, action. or cause of action, against the other, its agents, officers, or employees, for any loss or damage that may occur to the Premises, or any improvements thereto or the Retail Space, or any improvements thereto, or any personal property of such party therein, by reason of fire. the elements, or any other causes which are, or could or should be insured against under the terms of the standard fire and extended coverage insurance policies referred to in this Lease, regardless of whether such insurance is actually maintained and regardless of the cause or origin of the damage involved, including negligence of the other party hereto. its agents, officers, or employees. Landlord and Tenant shall each obtain from their respective insurers. under all policies of fire. theft, public liability, worker's compensation, and other insurance maintained by either of them at any time during the term hereof insuring or covering the Retail Space or any portion thereof or operations therein. a waiver of all rights of subrogation which the insurer of one party might have against the other party, and Landlord and Tenant shall each indemnify, defend, and hold harmless the other against any loss or expense. including reasonable attorneys' fees (appellate or othelWise) resulting from the failure to obtain such waiver. ARTICLE VII. DAMAGE AND DESTRUCTION. 7,1 Damaae to Premises. Tenant acknowledges that if the Premises are partially or totally destroyed due to fire or other casualty, any repairs to or rebuilding of the damaged portions of the Retail Space will be performed by Landlord and in any event only to the extent that Landlord is required to repair or rebuild the Retail Space, If Landlord repairs or rebuilds, Minimum Rent shall abate proportionately to the portion of the Premises, if any, rendered untenantable from the date of destruction or damage until the repairs have been substantially completed, Upon being notified that the repairs have been substantially completed, Tenant shall diligently perform all other work required to fully restore the Premises for use in Tenant's business. in every case at Tenant's cost and without any contribution to such cost by Landlord, whether or not Landlord has at any time made any contribution to the cost of supply. installation, or construction of leasehold improvements in the Premises, Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the extent practicable. If all or any part of the Premises shall be damaged by fire or other casualty and the fire or other casualty is caused by the fault or neglect of Tenant or Tenant's agents, guest. or invitees. rent and all other charges shall not abate. 11 7,2 Termination for DamaQe, Notwithstanding section 7,1, if damage or destruction which has occurred to the Premises or the Retail Space is such that in the reasonable opinion of Landlord such reconstruction or repair cannot be completed within one hundred twenty (120) days of the happening of the damage or destruction, Landlord may, at its option, terminate this Lease on notice to Tenant given within thirty (30) days after such damage or destruction and Tenant shall immediately deliver vacant possession of the Premises in accordance with the terms of this Lease, In addition, if Landlord undertakes the reconstruction or repair, and does not complete same within nine (9) months after the date of the fire or other casualty (subject to the time required to prepare plans for reconstruction, to obtain building permits. to receive distribution of insurance proceeds, and to complete the likely contract bidding process and all other relevant factors, but not to exceed an additional ninety (90) days), then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within thirty (30) days after the expiration of such nine-~9) month period (or as extended), whereupon both parties shall be relieved of all further obligations hereunder, except as otherwise expressly set forth herein. ARTICLE VIII. ASSIGNMENT, LEASES, AND TRANSFERS, 8.1 Transfer bv Tenant. Tenant shall not enter into. consent to, or permit any Transfer, as hereinafter defined, without the prior written consent of Landlord in each instance, which consent may be granted or withheld in Landlord's sole and absolute discretion for any reason or for no reason, For purposes of this Lease, ''Transfe~' means an assignment of this Lease in whole or in part; a sublease of all or any part of the Premises; any transaction whereby the rights of Tenant under this Lease or to the Premises are transferred to another; any mortgage or encumbrance of this Lease or the Premises or any part thereof or other arrangement under which either this Lease or the Premises become security for any indebtedness or other obligations; and if Tenant is a corporation or a partnership, the transfer of a controlling interest in the stock of the corporation or partnership interests, as applicable. If there is a permitted Transfer. Landlord may collect rent or other payments from the transferee and apply the net amount collected to the rent or other payments required to be paid pursuant to this Lease but no acceptance by Landlord of any payments by a transferee shall be deemed a waiver of any provisions hereof regarding Tenant. Notwithstanding any Transfer, Tenant shall not be released from any of its obligations under this Lease, Landlord's consent to any Transfer shall be subject to the further condition that if the Minimum Rent and additional rent pursuant to such Transfer exceeds the Minimum Rent and additional rent payable under this Lease, the amount of such excess shall be paid to Landlord, If, pursuant to a permitted Transfer, Tenant receives from the transferee, either directly or indirectly, any consideration other than Minimum Rent and additional rent for such Transfer, either in the form of cash, goods. or services, Tenant shall, upon receipt thereof, pay to LandlOrd an amount equivalent to such consideration. ARTICLE IX. DEFAULT, 9,1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever: (i) any Minimum Rent is not paid when due whether or not any notice or demand for payment has been made by Landlord; (ii) any other additional rent is in arrears and is not paid within five (5) days after written demand by Landlord; (iii) Tenant has breached any of its Obligations in this Lease (other than the payment of rent) and Tenant fails to remedy such breach within thirty (30) days (or such shorter period as may be provided in this Lease), or if such breach cannot reasonably be remedied within thirty (30) days (or such shorter periOd), then if Tenant fails to immediately commence to remedy and thereafter proceed diligently to remedy such breach, in each case after notice in writing from Landlord; (iv) Tenant becomes bankrupt or inSOlvent; (v) any of Landlord's policies of insurance with respect to the Retail Space are canceled or adversely changed as a result of Tenant's use or occupancy of the Premises; or (vi) the business operated by Tenant in the Premises shall be closed by governmental or court order for any reason, 9,2 Remedies, In the event of any default hereunder by Tenant. then without prejudice to any other rights which it has pursuant to this Lease or at law or in equity, Landlord shall have the following rights and remedies. which are cumulative and not alternative: 12 (A) Landlord may cancel this Lease by notice to Tenant and retake possession of the Premises for Landlord's account, or may terminate Tenant's right to possession of the Premises without terminating this Lease. In either event, Tenant shall then quit and surrender the Premises to Landlord. If Landlord terminates Tenant's right to possession of the Premises without terminating this Lease, Tenant's liability under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry, repossession. or disposition hereunder. (B) Landlord may enter the Premises as agent of Tenant to take possession of any property of Tenant on the Premises, to store such property at the expense and risk of Tenant or to sell or otherwise dispose of such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal may be effectuated by summary dispossess proceedings, by any suitable action or proceeding, or otherwise, Landlord shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its actions are in accordance with law. (C) If Landlord terminates Tenanfs right to possession of the Premises without terminating this Lease under subsection (A) above, Tenant shall remain liable (in addition to accrued liabilities) to the extent legally permissible for all rent and all of the charges Tenant would have been required to pay until the date this Lease would have expired had such cancellation not occurred, Tenant's liability for rent shall continue notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the foregoing, Tenant shall pay to Landlord such sums as the court which has jurisdiction thereover may adjudge as reasonable attomeys' fees with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease, (0) Landlord may relet all or any part of the Premises for all or any part of the unexpired portion of the Term of this Lease or for any longer period, and may accept any rent then attainable; grant any concessions of rent. and agree to paint or make any special repairs, alterations, and decorations for any new tenant as it may deem advisable in its sole and absolute discretion. Landlord shall be under no obligation to relet or to attempt to relet the Premises, except as expressly set forth below. (E) If Landlord terminates Tenanfs right to possession of the Premises without terminating this Lease under subsection (A) above, and Landlord so elects, the rent hereunder shall be accelerated and Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the remainder of the Term (reduced to present value using a discount factor equal to the stated prime lending rate on the date of Tenant's default by Landlord's then existing mortgagee or, if there is no mortgagee, by Citibank, NA, New York), Prior to or following payment in full by Tenant of such discounted sum promptly upon demand, Landlord shall use good faith efforts to relet the Premises. If Landlord receives consideration as a result of a reletting of the Premises relating to the same time period for which Tenant has paid accelerated rent, such consideration actually received by Landlord, less any and all of Landlord's cost of repairs. alterations, additions, redecorating, and other expenses in connection with such reletting of the Premises, shall be a credit against such discounted sum, and such discounted sum shall be reduced if not yet paid by Tenant as called for herein, or if Tenant has paid such discounted sum. such credited amount shall be repaid to Tenant by Landlord (provided said credit shall not exceed the accelerated amount), (F) Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the account of Tenant and to enter upon the Premises for such purposes, No notice of Landlord's intention to perform such covenants need be given Tenant unless expressly required by this Lease, Landlord shall not be liable to Tenant for any loss or damage caused by the reasonable acts of Landlord in remedying or attempting to remedy such default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection with remedying or attempting to remedy such default. Any expenses incurred by Landlord shall accrue interest from the date of payment by Landlord until repaid by Tenant at the highest rate permitted by law, 9,3 Costs. Tenant shall pay to Landlord on demand all costs incurred by Landlord, including attorneys' fees and costs at all tribunal levels. incurred by Landlord in enforcing any of the obligations of Tenant under this Lease, In addition, upon any default by Tenant. Tenant shall be also liable to Landlord for the expenses to which Landlord may be put in re-entering the Premises; repossessing the Premises; painting, altering, or dividing the Premises; combining the Premises with an adjacent space for any new tenant; putting the Premises in proper 13 repair; protecting and preserving the Premises by placing watchmen and caretakers therein; reletting the Premises (including attorneys' fees and disbursements, marshall's fees, and brokerage fees, in so doing); and any other expenses reasonably incurred by Landlord, 9.4 Additional Remedies; Waiver, The rights and remedies of Landlord set forth herein shall be in addition to any other right and remedy now and hereinafter provided by law, All rights and remedies shall be cumulative and non-exclusive of each other, No delay or omission by Landlord in exercising a right or remedy shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default 9.5 Default by Landlord, In the event of any default by Landlord, Tenanfs exclusive remedy shall be an action for damages or injunction, but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall have a period of thirty (30) days following the date of such notice in which to cure such default (provided, however, that if such. default reasonably requires more than thirty (30) days to cure, Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion), Notwithstanding any provision of this Lease, Landlord shall not at any time have any personal liability under this Lease, In the event of any breach or default by Landlord of any term or provision of this Lease, Tenant agrees to look solely to the equity or interest then-owned by Landlord in the Retail Space, and in no event shall any deficiency judgment be sought or obtained against Landlord. It is expressly understood that the obligations of Landlord under this Lease are solely corporate obligations, and that, except for conversion, fraud, or willful misconduct, no personal liability will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or employees, as such. of the Landlord, or of any successor corporation, or any of them, under or by reason of the obligations, covenants, or agreements of Landlord contained in this Lease or implied therefrom; and, except for conversion, fraud, or willful misconduct, that any and all such personal liability, either at common law or in equity or by constitution or statute. of. and any and all such rights and claims against. every such incorporator, stockholder, officer, director, or employee. as such, or under or by reason of the obligations, covenants or agreements contained in this Lease or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the execution of this Lease. ARTICLE X. ESTOPPEL CERTIFICATE; SUBORDINATION. 10,1 Estoooel Certificate, Within ten (10) days after written request by Landlord, Tenant shall deliver in a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this Lease, including whether this Lease is unmodified and in full force and effect (or, if there have been modifications. that this Lease is in full force and effect as modified and identifying the modification agreements); the amount of Minimum Rent and additional rent then being paid and the dates to which same have been paid; whether or not there is any existing or alleged default by either party with respect to which a notice of default has been served, or any facts exist which, with the passing of time or giving of notice, would constitute a default and, if there is any such default or facts, specifying the nature and extent thereof; and any other matters pertaining to this Lease as to which Landlord shall request such certificate. Landlord, and any prospective purchaser, lender, or ground lessor shall have the right to rely on such certificate, 10,2 Subordination; Attornment This Lease and all rights of Tenant shall be subject and subordinate to any and all mortgages. security agreements, or like instruments resulting from any financing, refinancing, or collateral financing (including renewals or extensions thereof). and to any and all ground leases, made or arranged by Landlord of its interests in all or any part of the Retail Space. from time to time in existence against the Retail Space, whether now existing or hereafter created. Such subordination shall not require any further instrument to evidence such subordination, However, on request, Tenant shall further evidence its agreement to subordinate this Lease and its rights under this Lease to any and all documents and to all advances made under such documents, The form of such subordination shall be made as required by Landlord, its lender, ground lessor, the City, Tenant shall. if requested by Landlord, or a mortgagee, owner. or purchaser, or by any person succeeding to the interest of such mortgagee, owner. or purchaser, as the result of the enforcement of the remedies provided by law or the applicable instrument held by Landlord. such mortgagee. owner, or purchaser, automatically attorn to and become the tenant of Landlord or any such mortgagee. owner, purchaser. or successor-in-interest, without 14 any change in the terms or other provisions of this Lease; provided, however. that Landlord, said mortgagee, owner, purchaser, or successor shall not be bound by (a) any payment of rent or additional rent for more than one (1) month in advance. or (b) any security deposit or the like not actually received by Landlord, such mortgagee, owner, or purchaser, or successor, or (c) any amendment or modification in this Lease made without the consent of Landlord, such mortgagee, owner, purchaser, or successor, or (d) any construction obligation, free rent, or other concession or monetary allowance, or (e) any set-off, counterclaim, or the like otherwise available against Landlord. or (I) any act or omission of any prior landlord (including Landlord), Upon request by Landlord, said mortgagee, owner, or purchaser, or successor, Tenant shall execute and deliver an instrument or instruments confirming its attornment. Notwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the Landlord obtaining a nondisturbance agreement in favor of Tenant from all mortgagees and ground lessors regarding any financings or overleases entered into by Landlord with respect to the Retail Space, and no subordination shall be effective without a corresponding nondisturbance agreement ARTICLE XI. CONTROL OF RETAIL SPACE BY LANDLORD. 11.1 Use and Maintenance of Common Areas, Tenant and those doing business with Tenant for purposes associated with Tenant's business on the Premises, shall have a non-exclusive license to use the common areas for their intended purposes during normal business hours in common with others entitled thereto and SUbject to any rules and regulations imposed by Landlord, Landlord shall use reasonable efforts to keep the common areas in good repair and condition and shall clean the common areas when necessary, Tenant acknowledges that any common areas of the Retail Space shall at all times be under the exclusive control and management of Landlord, For purposes of this Lease, "common areas" shall mean those areas, facilities, utilities, improvements, equipment, and installations of the Retail Space which serve or are for the benefit of tenants of more than one component of the Retail Space and which are not designated or intended by Landlord to be leased, from time to time, or which are provided or designated from time to time by Landlord and/or the City for the benefit or use of all tenants in the Retail Space. their employees, customers. and invitees, in common with others entitled to the use or benefit of same. Tenant aCknowledges that the Garage portion of the Facility is not a part of the Retail Space, and that Tenant has no right or license to use the Garage pursuant to this Lease, Any use by Tenant or its invitees of the Garage is subject to the rules and regulations in connection therewith imposed by Landlord (or successor owner) and/or the operator of the Garage, No portion of the garage is under Landlord's control or supervision, and Landlord shall not be liable for any damage to automobiles of any nature whatsoever to, or any theft of, automobiles or other vehicles or the contents thereof, while in or about the Garage, 11,2 Alterations bv Landlord, Landlord and/or the City may (but shall not be obligated to) (i) alter, add to. subtract from, construct improvements on, re-arrange. and construct additional facilities in, adjoining. or proximate to the Retail Space; (ii) relocate the facilities and improvements in or comprising the Retail Space or erected on the Land; (iii) do such things on or in the Retail Space as required to comply with any laws. by-laws, regulations, orders, or directives affecting the Land or any part of the Retail Space; and (iv) do such other things on or in the Retail Space as Landlord and/or the City, in the use of good business judgment determines to be advisabie. provided that notwithstanding anything contained in this section 11,2. access to the Premises shall be available at all times, Landlord shall not be in breach of its covenants for quiet enjoyment or liable for any loss, costs, or damages, whether direct or indirect, incurred by Tenant due to any of the foregoing; provided, Landlord shall exercise its rights under this section in a manner so as to minimize any disruption or interference with the operation of Tenant's business and property. 11,3 Tenant Relocation. Landlord shall have the right, at any time upon sixty (60) days' written notice to Tenant, to relocate Tenant into other space within the Retail Space comparable to the Premises, Upon such relocation, such new space shall be deemed the Premises and the prior space originally demised shall in all respects be released from the effect of this Lease, If Landlord elects to relocate Tenant as above described, (i) the new space shall contain approximately the same as. or greater usable area than the original space, (ii) Landlord shall improve the new space, at Landlord's sole cost, to at least the standards of the original space, (iii) Landlord shall pay the reasonable costs of moving Tenant's trade fixtures and furnishings from the original space to the new space, (iv) as total compensation for all other costs, expenses, and damages which Tenant may suffer in 15 connection with the relocation, including but not limited to. lost profit or business interruption, no Minimum Rent shall be due or payable for the first two (2) full calendar months of Tenant's occupancy of the new space, and Landlord shall not be liable for any further indirect or special expenses of Tenant resulting from the relocation, (v) Minimum Rent and all other charges hereunder shall be the same for the new space as for the original space, notwithstanding that the new space may be larger than the original space, and (vi) all other terms of this Lease shall apply to the new space as the Premises, except as otherwise provided in this paragraph, ARTICLE XII. CONDEMNATION, 12.1 Total or Partial Takina. If the whole of the Premises, or such portion thereof as will make the Premises unusable for the purposes leased hereunder, shall be taken by any public authority under the power of eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the day possession or title shall be taken by such public authority. whichever is earlier ("Taking Date"). whereupon the rent and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any rent and all other charges paid for a period subsequent to the Taking Date, If less than the whole of the Premises, or less than such portion thereof as will make the Premises unusable for the purposes leased hereunder, the Term shall cease only as to the part so taken as of the Taking Date, and Tenant shall pay rent and other charges up to the Taking Date, with appropriate credit by Landlord (toward the next installment of rent due from Tenant) of any rent or charges paid for a period subsequent to the Taking Date. Minimum Rent and other charges payable to Landlord shall be reduced in proportion to the amount of the Premises taken. 12,2 Award, All compensation awarded or paid upon a total or partial taking of the Premises or Retail Space including the value of the leasehold estate created hereby shall belong to and be the property of Landlord without any participation by Tenant; Tenant shall have no claim to any such award based on Tenant's leasehold interest However, nothing contained herein shall be construed to preclude Tenant, at its cost, from independently prosecuting any claim directly against the condemning authority in such condemnation proceeding for damage to, or cost of removal of, stock, trade fixtures, furniture. and other personal property belonging to Tenant and for Tenant's moving expenses; provided, however, that no such claim shall diminish or otherwise adversely affect Landlord's award or the award of any mortgagee. ARTICLE XIII. PROMOTION. 13.1 Promotional Fund; Merchants' Association. Intentionally Omitted, ARTICLE XIV, GENERAL PROVISIONS, 14.1 Delav, Whenever a period of tirne is herein prescribed for the taking of any action by Landlord or Tenant, as applicable, Landlord or Tenant, as applicable. shall not be liable or responsible for, and there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials. war, or governmental laws, regulations, or restrictions in the nature of a prohibition or moratorium, or any bona fide delay beyond the reasonable control of Landlord or Tenant, as applicable, The foregoing shall not apply to any payments of money due under this Lease, 14.2 Holdina Over, If Tenant remains in posseSSion of the Premises after the end of the Term without having executed and delivered a new lease or an agreement extending the Term, there shall be no tacit renewal of this Lease or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to month at a monthly Minimum Rent payable in advance on the first day of each month equal to twice the monthly amount of Minimum Rent payable during the last month of the Term, and otherwise upon the same terms as are set forth in this Lease, so far as they are applicable to a monthly tenancy, 14,3 Waiver; Partiallnvaliditv, If Landlord excuses or condones any default by Tenant of any obligation under this Lease, this shall not be a waiver of such obligation in respect of any continuing or subsequent default and no such waiver shall be implied, All of the provisions of this Lease are to be construed as covenants even though not expressed as such, If any provision of this Lease is held or rendered illegal or unenforceable it shall be 16 . considered separate and severable from this Lease and the remaining provisions of this Lease shall remain in force and bind the parties as though the illegal or unenforceable provision had never been included in this Lease, 14.4 Recordina. Neither Tenant nor anyone claiming under Tenant shall record this Lease or any memorandum hereof in any public records without the prior written consent of Landlord, 14.5 Notices, Any notice, consent. or other instrument required or permitted to be given under this Lease shall be in writing and shall be delivered in person, or sent by certified mail, return receipt requested, or overnight express mail courier, postage prepaid, addressed (I) if to Landlord, at the address set forth in the Lease Summary; and (iI) if to Tenant, at the Premises or, prior to Tenant's occupancy of the Premises, at the address set forth on the Lease Summary. Any such notice or other instruments shall be deemed to have been given and received on the day upon which personal delivery is made or, if mailed. then forty-eight (48) hours following the date of mailing. Either party may give notice to the other of any change of address and after the giving of such notice, the address therein specified is deemed to be the address of such party for the giving of notices. If postal service is interrupted or substantially delayed, all notices or other instruments shall be delivered in person or by overnight express mail courier. 14,6 Successors; Joint and Several Liability, The rights and liabilities created by this Lease extend to and bind the successors and assigns of Landlord and the heirs, executors, administrators, and permitted successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee unless such Transfer complies with the provisions of Article VIII. If there is at any time more than one Tenant or more than one person constituting Tenant, their covenants shall be considered to be joint and several and shall apply to each and every one of them, 14.7 Caotions and Section Numbers. The captions, section numbers, article numbers. and table of contents appearing in this Lease are inserted only as a matter of convenience and in no way affect the substance of this Lease. 14,8 Extended Meaninas. The words "hereof," "hereto," "hereunder," and similar expressions used in this Lease relate to the whole of this Lease and not only to the provisions in which such expressions appear. This Lease shall be read with all changes in number and gender as may be appropriate or required by the context. Any reference to Tenant includes, when the context allows. the employees, agents, invitees, and licensees of Tenant and all others over whom Tenant might reasonably be expected to exercise control. This Lease has been fully reviewed and negotiated by each party and their counsel and shall not be more strictly construed against either party. 14,9 Entire A!Jreement; Governina Law; Time. This Lease and the Exhibits and Riders. if any, attached hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant concerning the Premises and there are no other agreements or understandings between them, This Lease and its Exhibits and Riders may not be modified except by agreement in writing executed by Landlord and Tenant. This Lease shall be construed in accordance with and governed by the laws of the State of Florida, Time is of the essence of this Lease. 14.10 No Partnershio. The parties hereby acknowledge that it is not their intention under this Lease to create between themselves a partnership, joint venture, tenancy-in-common. joint tenancy, co-ownership. or agency relationship, Accordingly, notwithstanding any expressions or provisions contained herein. nothing in this Lease, whether based on the calculation of rental or otherwise, shall be construed or deemed to create, or to express an intent to create, a partnership. joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the parties hereto, The provisions of this section shall survive expiration of the Term. 14,11 Quiet Enjovment. If Tenant pays rent and other charges and fully observes and performs all of its obligations under this Lease. Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the Term without interruption or interference by Landlord or any person claiming through Landlord. 17 14,12 BrokeraCle. Landlord and Tenant each represent and warrant one to the other that except as set forth in the Lease Summary. neither of them has employed any broker in connection with the negotiations of the terms of this Lease or the execution thereof. Landlord and Tenant hereby agree to indemnify and to hold each other harmless against any loss, expense, or liability with respect to any claims for commissions or brokerage fees arising from or out of any breach of the foregoing representation and warranty, Landlord recognizes the broker(s) specified in the Lease Summary as the sole broker(s) with whom Landlord has dealt in this transaction and agrees to pay any commissions determined to be due said broker(s). 14,13 Radon Notice. Chapter 88-285, Laws of Florida, requires the following notice to be provided with respect to the contract for sale and purchase of any building, or a rental agreement for any building: "RADON GAS: Radon is a naturally occurring radioactive gas that, 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 that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 14,14 Execution, This Lease has been submitted for discussion purposes only and shall not be deemed an offer by either party to the other to enter into this Lease unless and until this Lease shall have been executed by both parties, indicating their acceptance of the terms and conditions contained herein, 14.15 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE. EXECUTED as of the day and year first above written. WITNESSES: LANDLORD: SECRETARY MIAMI BEACH REDEVELOPMENT AGENCY, a public :--~dilJ CHAIRMAN /Ukr f~ TENANT: , ~~ By' N~me: I R N2AI\J R. NNH..llON SWIZ2. Desl6 Title: ~Rt8DE'lJT .e APPROVED AS 10 FORM & lANGUAGE & FOR EXECUTION 18 1Ji.JidJ~ 2]-, j1fl; ent Agency Dote G:':">~ml Counsel EXHIBIT "A" Legal Description Lots 8.9,10.11,12 and 13. Block 57, Fisher's First Subdivision of Alton Beach. according to the Plat thereof, as recorded in Plat Book 2, Page 77 of the Public Records of Dade County. Florida, together with all of 16th Street (Avenue "C"), less and exceptlhe following described parcel: BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat; thence North 880 0' 53" East along the South line of said Block 54, a distance of 443,08 feet, to the Southeast corner of said Block 54; thence South 070 35' 04" West, a distance of 96,26 feet, to a point of cusp with a tangent curve concave to the Southwest; thence along the arc of said curve to the left, having a radius of 25,00 feet and a central angel of 900 00' 00", an arc distance of 39.27 feet, to a point of tangency; thence North 820 24' 52" West, a distance of 24,75 feet; thence South 880 00' 53" West along a line 8,00 feet North of and parallel with, as measured at right angles to the North line of Block 57 of said plat, a distance of 382,18 feet to a point on the Easterly Right-of-Way line of Washington Avenue; thence North 01" 59' 11" West along said Easterly Right-of-Way line, a distance of 62.00 feet to the Southwest corner of said Block 54 and the Point of beginning. Said lands lying and being in the City of Miami Beach and containing 65,910 square feet (1.5131 Acres) more or less, Lease Final- Provenm'1o.doc EXHIBIT "B" Site Plan of Retail Space and Location of Premises EXHIBIT "B-1" ANCHOR SHOPS AND GARAGE Description of Landlord's Work April 9, 1998 Landlord will minimally provide the following improvements, consistent with the Project Plans and Specifications (a copy of which has been provided to Tenant): 1. Storefront and Doors . As. shown on Project Plans and Specifications. . Interior of storefront and doors to be finished with standard color (not to be modified by Tenant). . Entry doors to be provided with hardware (not to modified by Tenant). . Rear service door to be provided. (Storefront sills are excluded,) 2. Cellin!! . Exposed to structure except bathroom. . Ceiling included in bathroom (2'x 2' acoustic tile suspended). 3. Demisin!! Walls (between tenant spaces) . Metal studs at 3 0;.", . Drywall with taped seams (UL Assembly U-485). 4. Exterior Walls . Exposed, unfinished masonry or concrete. 5. Floor Slab . Concrete slab included as per Project Plans and Specifications, 6. Plumbin!! . Includes one ADA compliant bathroom with: a. Standard lavatory and water closet. b. VeT flooring. c. 36" 1 y." dia. grab bar and 42" 1 y." dia. grab bar, d. Walls to be painted drywall. e. Accessories (mirror, paper dispenser, soap dispenser). . Cold water domestic service (0/." line). . Grease waste connection (except spaces along 16th Street), . Condensate drainage (1 X" line). . Natural gas service (except spaces along 16th Street). 7. Electrical . For typical space, includes electric service as follows: Food service tenant: a, Four 3/0 CU in 2"C, b. One 200 amp fusible disconnect switch with fuses 600 volt. c. Four "Polaris" gutter taps (UL listed). d. One sq, "D" NEHB 277/489 volt., 42 pole panel 225A. e. One sq. "D" NQOD 120/208 volt. MCB 225A panel. 1. One 75 I0J A transformer 480 to 1201208 volt. g. Greenfield- 1 - 14" + 2" with feeders to transformer. h. Grounding conductor (transformer to CWP). L Nipples, lockouts. and fasteners at meter room. Dry goods tenant: a. Four #3/0 CU in 2"C. b. One 100 amp fusible disconnect switch with fuses 600 volt. c. Same as above. d, Use 100 amp panel M.LO, e. Use 100 amp panel M.C,B, 1. Use 30 I0J A transformer. g. Use all 1- )4", h. Same as "h" above. i. Same as "i" above. . Lighting is excluded. . Exit signs are included, 8. Mechanical . Bathroom exhaust as per Project Plans and Specifications. . Air conditioning system (either split DX or package system with determination dependent upon tenant space and as per Project Plans and Specifications) based upon one ton cooling per 300 sq, ft., based upon the following criteria (with Trane or equivalent assumed): a. Split DX Unit Eauipment 1, Air handling units shall be fully insulated draw through type, with direct drive blower and filter rack, 2. Air handlers shall match characteristics and capacities specified on schedules and shall be provided with 1" throwaway filters, 3, Air cooled condensing units shall be of weatherproof construction, with galvanized steel cabinets. hermetic compressor, intemal high temperature motor overload protection. and high efficiency design, Units shall be supplied with sufficient refrigerant charge for a complete functional system, 4, The system shall be provided with the following: - Liquid line filter-dryer sight glass and solenoid valve. - Short cycle protection circuit for compressor, - Disconnect switch. - Proper vibration isolation as per plans or manufacture~s recommendations, - Proper size refrigerant piping as per manufacture~s recommendations to provide listed total and sensible MBH. - Condensate drains with trap as per plans. ii - Yz" thick armaflex fire retardant piping insulation on NC condensate lines and %" thick on refrigerant suction lines (paint white when exposed to sun light), - Service valves on suction and liquid lines. b, Rooftop Packaae Eauipment 1, Combination heating and cooling rooftop units shall be completely factory assembled as a unitary package consisting of electric cooling section, electrical heating section, air handling-filtering section and complete controls section, Cabinet shall be of galvanized weatherproof construction with floor providing backup protection to prevent water leakage, Service access panels shall be furnished as standard to allow service and inspection of internal components, 2, Cooling section shall be equipped with refrigerant circuits with multistage compressors and crankcase heaters. The refrigeration system shall be factory charged. providing stage cooling capacity, Minimum compressor protection shall include high pressure control, low pressure control and anticycle control. 3. The electrical heating section shall be of heavy duty nickel-chromium elements with automatic reset high limit control and unitary control processor staging. Electric heating modules shall be UL listed, 4, Each unit shall have permanently lubricated motors with multiple blade fans. Motors shall be equipped with overload protection and shall be mounted on removable panels for easy access. Condenser air shall discharge vertically, 5. Provide 2" thick throwaway type air filters, 6, Include automatic fan shutdown control installed in R/A section of units, . Excluded is any distribution (I.e., ductwork) 9. Fire SDrinklers . Lines and heads as required by code, with layout as per Project Plans and Specifications, (Changes, if any, are Tenant's obligation,) 10. Exterior Awninas . Per Project Plans and Specifications. (Not to be modified by Tenant) 11. Exterior Sians . As per Signage Guidelines established by Landlord. . Electrical junction box provided within storefront, to provide power with conduit from exterior box to interior of Tenant space, Landlord reserves the right to modify its Project Plans and Specifications in response to building code requirements and/or construction conditions, Tenant is to assume full responsibility for any/or utility impact fees. connection fees/charges and/or deposits as may be required in connection with Tenant's Work, iii EXHIBIT "C" RULES AND REGULATIONS 1, Security, Landlord may from time to time adopt appropriate systems and procedures for the security or safety of the Retail Space, any persons occupying, using, or entering the same, or any equipment, furnishings, or contenls thereof, and Tenant shall comply with Landlord's reasonable requirements relative thereto. 2. Return of Kevs. At the end of the Term, Tenant shall promptly return to Landlord all keys for the Retail Space and Premises which are in the possession of Tenant. In the event any Tenant fails to return keys, Landlord may retain $100,00 of Tenant's security deposit for locksmith work and administration, 3, Repair. Maintenance. Alterations. and Improvements, Tenant shall carry out Tenant's repair, maintenance. alterations, and improvements in the Premises only during times agreed to in advance by Landlord and in a manner which will not interfere with the rights of other Tenant's in the Retail Space, 4. Water Fixtures, Tenant shall not use water fixtures for any purpose for which they are not intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such misuse by Tenant shall be paid for by Tenant. 5. Personal Use of Premises. The Premises shall not be used or permitted to be used for residential, lodging, or sleeping purposes or for the storage of personal effects or property not required for business purposes. 6. HeaVY Articles, Tenant shall not place in or move about the Premises without Landlord's prior written consent any safe or other heavy article which in Landlord's reasonable opinion may damage the Premises. and Landlord may designate the location of any such heavy articles in the Premises. 7. Bievcles. Animals, Tenant shall not bring any animals or birds into the Retail Space, and shall not permit bicycles or other vehicles inside or on the sidewalks outside the Retail Space except in areas designated from time to time by Landlord for such purposes, 8. Deliveries, Tenant shall ensure that deliveries of supplies, fixtures. equipment, furnishings, wares, and merchandise to the Premises are made through such entrances, elevators, and corridors and at such times as may from time to time be designated by Landlord, and shall promptly payor cause to be paid to Landlord the cost of repairing any damage in the Retail Space caused by any person making improper deliveries. 9. Solicitations, Landlord reserves the right to restrict or prohibit canvassing, soliciting, or peddling in the Retail Space. 10. Food and Beveraaes. Only persons approved from time to time by Landlord may prepare, solicit orders for, sell, serve, or distribute foods or beverages in the Retail Space, or use the common areas for any such purpose. Except with Landlord's prior written consent and in accordance with arrangements approved by Landlord. Tenant shall not permit on the Premises the use of equipment for dispensing food or beverages or for the preparation. solicitation of orders for, sale, serving. or distribution of food or beverages. 11. Refuse, Tenant shall place all refuse in proper receptacles provided by Tenant at its expense in the Premises or in receptacles (if any) provided by Landlord for the Retail Space, and shall keep sidewalks and driveways outside the Retail Space, and lobbies, corridors. stairwells. ducts, and shafts of the Retail Space, free of all refuse. 12, Obstructions, Tenant shall not obstruct or place anything in or on the sidewalks or driveways outside the Retail Space or in the lobbies, corridors, stairwells, or other common areas, or use such locations for any purpose except access to and exit from the Premises without Landlord's prior written consent. Landlord may remove at Tenant's expense any such obstruction or thing caused or placed by Tenant (and unauthorized by Landlord) without notice or obligation to Tenant. 13, Prooer Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the character of the Retail Space as a first quality retail center or which will impair the comfort and convenience of other Tenant's in the Retail Space, 14, employees, Premises, Emolovees. Aoents. and Invitees. In these Rules and Regulations, "Tenant" includes the agents, invitees, and licensees of Tenant and others permitted by Tenant to use or occupy the 15. Pest Control. In order to maintain satisfactory and uniform pest control throughout the Retail Space. Tenant shall engage for its own Premises and at its sole cost. a qualified pest extermination contractor either designated or approved by Landlord. who shall perform pest control and extermination services in the Premises at such intervals as reasonably required or as may be directed by Landlord, EXHIBIT "D" Prohibited Uses 1, In no event may the primary business at the Premises be the sale of coffee beans, coffee by the cup, teas, espresso, or other related drinks containing coffee or tea (including, without limitation, so-called "coffee cocktails," which are coffee drinks which have an alcohol content). 2, In no event may the primary business at the Premises be the sale of swimwear. 3, In no event may the primary business at the Premises be the sale of (i) motorcycle-related clothing and accessories or (Ii) clothing sold under the following brand names: Dolce & Gabbana; Versace Jeans Couture; B,C,B,G.; Diesel; Replay; Polo Sport; Polo Jeans; and Ralph Lauren; and shoes sold under the following brand names: Charles David; Calvin Klein; Kenneth Cole; SoHo Shoes; Via Spiga; and Milano, 4, In no event may the primary business at the Premises be the sale of smoothies, fresh-squeezed juices, nutritional supplements or vitamins, 5, In no event may the primary business at the Premises be the sale of ice cream for take out consumption, EXHIBIT "E" Landlord's Signage Criteria F:\DDHP\SALl\Aleur'llh\Anch Ga'age\Leuing\Suite K\L.... 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