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THIS SUBLEASE (the "Sublease"), dated the <6 day of Se(j'l.J... ,1999, is made between
MB REDEVELOPMENT, INC" a Florida corporation (the "Sublandlord"), and, ABKEY NO. 17, INC., a Florida
corporation d/b/a Fuddruckers Grill & Bar (or Fuddruckers) (the "Subtenanr').
RECITALS:
A Miami Beach Redevelopment Agency, a public body corporate and politic (the "Agency"), and
Sublandlord have entered into that certain Garage Easement Agreement, dated as of September 20, 1996
(the "Garage Easement Agreement"), recorded in Official Records Book 17362, at Page 130, of the Public
Records of Miami,Dade County, Florida, pursuant to which the Agency has granted certain rights and easements
to Sublandlord in connection with that certain facility (the "Faciiity") 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 Streel,
City of Miami Beach, Miami-Dade County, Florida, as more particularly described in Exhibit "A," attached hereto and
made a part hereof (the "Land"), The Agency is the fee simple owner of the Land and (upon completion) the Facility.
B, In accordance with the Garage Easement Agreement, the Agency and Sublandlord have entered
into that certain Retail Space Master Lease, daied as of September 20, 1996 (the "Master Lease"), pursuant to
which the Agency and Sublandlord have agreed that Sublandlord shall operate and manage the Retail Space on
behalf of the Agency,
C. Sublandlord and Subtenant desire to enter into this Sublease 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, Sublandlord and
Subtenant hereby agree as follows:
ARTICLE I. TERM,
1.1 Grant; Initial Term, In consideration of the performance by Subtenant of its obligations under this
Sublease. Sublandlord leases to Subtenant, and Subtenant leases from Sublandlord, for the Initial 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 "B." The gross rentable
area of the Premises and Retail Space shown on the Sublease Summary do not represent accurate
measurements of the square footage contained in the Premises or the Retaii Space, but are mere estimates.
The "Initial Term" of the Sublease is the period from the Commencement Date as spec.ified in the
Sublease Summary, through the Expiration Date, as specified in the Sublease Summary, "Term" means the Initial
Term and any renewals or extensions thereof.
1.2, Sublandlord's Work and Anchor Hotel Improvements, Subtenant acknowledges and agrees that it
is accepting possession of the Premises in as,is condition and that, except as otherwise expressly hereinafter set
forth, Sublandlord and/or the Agency have no obligation to furnish, render, or supply any money. work, labor,
material, fixtures, equipment, or decorations with respect to the Premises, Sublandlord has caused or will cause
the completion by the Agency 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 prepared for the Retail Space by the Agency's architect and engineer (the "Project Plans and
Specifications") and made available to Subtenant prior to the date hereof,
In addition, as required by Order of the Design Review/Historic PreselVation Board, City of Miami Beach,
Florida, the Agency's architect has prepared full architectural details and restoration plans, as more particularly
described on Exhibit "B-2," attached hereto and made a part hereof (the "Anchor Hotel Plans") for certain
improvements to a portion of the Premises known as the Anchor Hotel Building (the "Anchor Hotel
Improvements"), Subtenant hereby acknowledges receipt of a copy of the Anchor Hotel Plans. Sublandlord has
caused or will cause the completion by the Agency of a portion of the Anchor Hotel Improvements as more
particularly described on Exhibit "B-3," attached hereto and made a part hereof (the "Sublandlord's Anchor Hotel
Improvements"). Subtenant will cause the completion of the remainder of the improvements described in the
Anchor Hotel Plans, including, without limitation, the first noor ceiling (and re-creation of the original moldings).
interior partitions on the first and second noors, refurbishing and painting of existing stair railings, refurbishing and
repair of the terrazzo nooring. keystone and wainscoting, the electrical and mechanical scope, and the restoration
and re,painting of the front desk (the "Subtenant's Anchor Hotel Improvements"), pursuant to the Anchor Hotel
Plans, Sublandlord reselVes the right to modify the plans and specifications for the Shell Improvements and/or
the Anchor Hotel Improvements in response to building code requirements, Design Review Board and/or Historic
PreselVation Board requirements, and/or construction conditions. Subtenant is responsible for any and all utility
impact fees and connection fees, charges, and/or deposits as may be required, in connection with Subtenant's
Work, as hereinafter defined.
Within five (5) business days following the date the Agency completes each of the Shell Improvements
and the Sublandlord's Anchor Hotel Improvements, the parties shall schedule a meeting to jointly inspect the Shell
Improvements and Sublandlord's Anchor Hotel Improvements in order to prepare a punchlist idenlifyi~g any
contended defects in the Shell Improvements and Sublandlord's Anchor Hotel Improvements, Sublandlord shall
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use commercially reasonable efforts to cause all punchlist items to be completed within forty-five (45) days after
the parties have finalized the punch list for the Shell Improvements and Sublandlord's Anchor Hotel Improvements,
as applicable.
1,3 Conditions Precedent. This Sublease, and the obligations of the parties hereunder. are expressly
made subject to the satisfaction, within the time period set forth below, of the following conditions precedent:
(a) Subtenant shall be in a position to have the City of Miami Beach issue a building permit for the
Premises within one hundred fifty (150) days after the Commencement Dale,
The permit process shall be at Subtenant's expense, and Sublandlord, at Subtenant's expense, shall
cooperate with Subtenant in order to facilitate such process. Subtenant shall diligently pursue such process using
its besl efforts, If the condition precedent set forth above has not been duly and timely satisfied as provided
above, then either party may terminate this Sublease by written notice to the other delivered wilhin ten (10) days
after the expiration of such one hundred fifty (150) day period, whereupon Sublandlord shall return the prepaid
rent to Subtenant, and both parties shall be relieved of all further obligations under this Sublease,
(b) Subtenant shall obtain the written approval of ils franchisor wilhin thirty (30) days after the
Commencement Date.
If the condition precedent set forth above have not been duly and timely satisfied as provided above, then
Subtenant may terminate this Sublease by written notice to Sublandlord within ten (10) days after the expiration of
such thirty (30) day period, whereupon Sublandlord shall return the prepaid rent to Subtenant, and both parties
shall be relieved of all further obligations under this Sublease.
ARTICLE II, RENT.
2.1 Covenant to Pay, Subtenant shall pay to Sublandlord 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 Sublease, payments other than Subtenant.s regular monthly payments
of Minimum Rent shall be payable by Subtenant to Sublandlord within ten (10) business days following demand.
All rent or other charges that are required to be paid by Subtenant to Sublandlord shall be payable at
Sublandlord's address indicated. on the Sublease Summary. Minimum Rent and additional rent (which is all sums
payable to Sublandlord other than Minimum Rent) for any "Sublease Year" consisting of more than or less than
twelve (12) months shall be prorated on a per diem basis, based upon a period of 365 days, "Sublease Year"
means the first twelve (12) full calendar months commencing on the Rent Commencement Date, plus additional
time, if applicable, based on the date Subtenant actually opens for business, as described in item 13 of the
Sublease Summary, and each successive twelve (12) calendar month period thereafter, However, the final
Sublease Year may contain less than twelve (12) months due to expiration or sooner termination of the Term.
Subtenant agrees that its covenant to pay rent and all other sums under this Sublease 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 Sublease, Rent shall mean the Minimum Rent and all other
sums due and payable by Subtenant under the Sublease, including. but not limited to. any Percentage Rental.
For purposes of the Sublease, all sums due from Subtenant shall be deemed to be "rent" whether or not
specifically designated as such.
2,2 Minimum Rent. Subject to any escalation which may be provided for in the Sublease Summary or
Rider Number One, as applicable, Subtenant shall pay Minimum Rent for the Term in the amount specified in the
Sublease Summary and Rider Number One, 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 Sublease Summary and
Rider Number One, The first monthly installment of Minimum Rent shall be pre,paid on the date of this Sublease,
The Minimum Rent described above shall be adjusted during the Term of this Sublease as provided in the
Sublease Summary and Rider Number One,
Notwithstanding the foregoing, commencing on the later of (a) the Rent Commencement Date or
(b) the first day of the calendar month immediately following the date that Subtenant completes the Subtenant's
Anchor Hotel Improvements, Minimum Rent shall be abated in the amount of the actual costs incurred by
Subtenant for the Subtenant's Anchor Hotel Improvements (as opposed to Subtenant's specific leasehold
improvements). Such abatement shall be prorated over a six (6) month period so that the Minimum Rent
abatement will be fully amortized in equal monthly amounts over such six (6) month period. Upon Substantial
Completion (as hereinafter defined) of the Subtenant's Anchor Hotel Improvements, Subtenant shall certify to
Sublandlord the actual amount incurred by Subtenant for the Subtenant's Anchor Hotel Improvements, However,
in no event shall the Minimum Rent abatement exceed a total of Sixty, Three Thousand Seven Hundred Fifty-One
and 02/100 ($63,751.02) Dollars (which equals six (6) months' of Minimum Rent payable during the first Sublease
Year), Sublandlord and Subtenant shall execute an amendment to this Sublease in order to confirm the exact
amount of the Minimum Rent abatement. I
2.3, Percentage Rental,
(a) In addition to the Minimum Rent, Subtenant shall pay to Sublandlord for each Sublease Year
during the Term of this Sublease, as percentage rental ("Percentage Rental"), a sum equivalent to the product or
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(i) the amount, if any, by which the Gross Sales, as hereinafter defined, exceeds the Breakpoint set forth in
item 17 of the Sublease Summary or Rider Number One, as applicable, and (Ii) the percentage of Gross Sales set
forth in item 16 of the Sublease Summary. Percentage Rental shall be paid in monthly installments as follows:
From and after the date of each Sublease Year that the Breakpoint is reached, then, on or before the tenth (10th)
day of each month or portion thereof during such Sublease Year, Subtenant shall pay to Sublandlord a sum of
money equal to the product of the Percentage Rental rate set forth in the Sublease Summary multiplied by the
total Gross Sales made in or from the Premises during the preceding calendar month, If the total of the payments
of Percentage Rental for any Sublease Year is not equal to the annual Percentage Rental computed on the
amount of Gross Sales for such Sublease Year in accordance with the specified rate or rates, then Subtenant
shall pay to Sublandlord any deficiency or Sublandlord shall refund to Subtenant any overpayment, as the case
may be, within thirty (30) days after the end of such Sublease Year In no event shall the rent to be paid by
Subtenant and retained by Sublandlord for any Sublease Year be less than the annual Minimum Rent herein
specified.
(b) The term "Gross Sales" as used herein shall be construed to include the entire amount of
the sales price, whether for cash or otherwise, of all sales of food, beverages (both alcoholic and non,alcoholic),
merchandise (including gift and merchandise certificates), services, and other receipts and charges whatsoever of
all business conducted (including, without limitation, interest, time price differential, finance charges, service
charges, credit, and lay, away sales) in or from the Premises, including mail or telephone orders received or filled
at the Premises, deposits not refunded to purchasers, orders taken (although said orders may be filled
elsewhere), sales to employees, sales through vending machines, amusement machines, or other devices
(including, without limitation, sales of lottery tickets), sales by any sublessee, concessionaire, or licensee or
otherwise in the Premises and any items leased or licensed by Subtenant Each sale upon installment or credit
shall be treated as a sale for the full price in the month during which such sale was made, irrespective of the time
when Subtenant receives payment from its customer. No deduction shall be allowed for uncollected or
uncollectible credit accounts. Gross Sales shall not include, however, merchandise used or donated for
advertising purposes, charitable gifts of merchandise, any sums collected and paid out for any sales or direct
excise tax imposed by any duly constituted governmental authority, nor shall it include the exchange of
merchandise between the stores of Subtenant, if any, where such exchanges are made solely for the convenient
operation of the business of Subtenant and not for the purpose of consummating a sale which has theretofore
been made in or from the Premises and/or for the purpose of depriving Sublandlord of the benefit of a sale which
otherwise would be made in or from the Premises, nor the amount of returns to shippers or manufacturers, nor the
amount of any cash or credit refund made upon any sale where the merchandise sold, or some part thereof, is
thereafter returned by purchaser and accepted by Subtenant, nor sales of Subtenant's fixtures, nor the discounted
portion of sales to Subtenant's employees.
(c) For the purpose of computing the amount of Subtenant's liability under Article IX of this
Sublease for Percentage Rental after default, the periodic Percentage Rental for which Subtenant shall be liable
after termination of Subtenant's right to possession shall be the total of all the amounts Subtenant was obligated to
pay as Percentage Rental during the entire period before. such termination divided by the number of Percentage
Rental payment periods in such entire time. Subtenant shall also pay a pro rata part of such periodic Percentage
Rental based upon the length of time between the previous payment of Percentage Rental and the date of
termination, and upon such termination, Subtenant will be obligated to submit to Sublandlord a statement
accurately showing Gross Sales made since submission of its last previous statement, together with such
additional supporting financial records as Sublandlord may require, The provisions of this section, relating to
Percentage Rental, if any, payable by Subtenant hereunder are included solely for the purpose of providing for the
payment of rental in excess of the Minimum Rent and providing for a method whereby such additional rental is to
be measured, ascertained, and paid, and shall be cumulative with and not in limitation of all other remedies
provided for Sublandlord in this Sublease,
(d) On or before the fifteenth (15th) day of each month or portion thereof during the Term,
Subtenant shall prepare and deliver to Sublandlord at the place designated by Sublandlord a statement of Gross
Sales made during the immediately prior calendar month, certified to be correct by a duly authorized officer of
Subtenant In addition, within ninety (90) days after the expiration of each calendar year and within ninety (90)
days after termination of this Sublease, if this Sublease should not terminate at the end of a calendar year,
Subtenant shall prepare and deliver to Sublandlord at the place designated by Sublandlord a statement of Gross
Sales during the preceding calendar year (or partial calendar year), prepared by an independent certified public
accountant in accordance with generally accepted accounting principles, consistently applied, and certified to be
correct by a duly authorized officer of Subtenant Subtenant shall furnish similar statements for its licensees,
concessionaires, and subtenants, if any. All such statements shall be in such form as Sublandlord may require
and shall be accompanied by copies of Subtenant's Florida sales tax reports and cash register tapes or point.of,
sale computer printouts showing sales receipts. If any such certified statement discloses error in the calculation of
the Percentage Rental for any period, appropriate adjustment of the Percentage Rental shall be made, subject,
however, to Sublandlord's rights under subsection (f), below.
(e) Subtenant shall keep in the Premises, or at Subtenant's address set forth in item 5 of the
Sublease Summary, a permanent, accurate set of books and records of all sales of merchandise and revenue
derived from business conducted in the Premises, and all supporting records such as tax reports, banking
records, either cash register tapes or point,of,sale computer printouts showing sales receipts, sales slips, and
other sales records. Subtenant shall use a cumulative, nonresettable cash register system for the transaction of
business in the Premises. All such books and records shall be retained and preserved for at least thirty.six (36)
months after the end of the calendar year to which they relate, and shall be subject to inspection and audit by
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Sublandlord and its agents at all reasonable times during regular business hours and no more than three (3) times
per year. Sublandlord shall have the right to disclose information regarding Subtenant's financial condition and
Gross Sales to parties having an interest or prospective interest in purchasing or making a loan with respect to the
Premises, Subtenant's obligation to maintain books and records shall survive the expiration or any termination of
the Sublease,
(I) If Sublandlord is not satisfied with any monthly statement or certified annual statement of
Gross Sales submitted by Subtenant, Sublandlord shall have the right (upon ten (10) days' written notice to
Subtenant of such dissatisfaction) to have its auditors make a special audit of all books and records, wherever
located, pertaining to sales made in or from the Premises during the period in question, During such ten (10) day
period, the parties shall work together to achieve a satisfactory resolution of the discrepancy, failing which
Sublandlord may conduct such audit. If such statements are found to be incorrect to an extent of more than
three (3%) percent over the figures submitted by Subtenant, Subtenant shall pay for such audit. Within ten (10)
days following Sublandlord's notice of any deficiency in Subtenant's payment of Percentage Rental, as
established by Sublandlord's audit, Subtenant shall promptly pay to Sublandlord an amount equal to the product of
1,25 times such deficiency, Should Sublandlord's audit indicate an overpayment of Percentage Rental,
Sublandlord shall promptly refund to Subtenant t~e full amount of such overpayment.
2.4 Operating Costs; Taxes. Intentionally Omitled,
2.5 Payment of Personal Property Taxes; Sales Tax Reports, Subtenant shall pay, when due, all
taxes attributable to the personal property, trade fixtures, business, occupancy, or sales of Subtenant or any other
occupant of the Premises and to the use of the Retail Space by Subtenant or such other occupant Subtenant
shall provide Sublandlord with copies of Subtenant's sales tax reports provided to the State of Florida, as and
when such reports are provided to the State, Sublandlord shall have the right to disclose such reports to the
Agency, current or prospective lenders or purchasers (and their representatives), Sub landlord's parent company
and affiliates, and as required by law.
2,6 Rent Past Due. If any payment due from Subtenant shall be overdue more than five (5) days after
written notice, a late charge of five (5%) percent of the delinquent sum may be charged by Sublandlord, If any
payment due from Subtenant shall remain overdue for more than fifteen (15) days after the initial notice: 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
Sublandlord, 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 Sublandlord,
2,7 Security Deposit Intentionally Omitted,
2,8 Sublandlord's lien. Nothing contained in this Sublease shall be deemed to waive any statutory
lien rights available to Sublandlord. However, Sublandlord agrees to subordinate its statutory lien to a bona fide
institutional lender providing acquisition financing or lease financing for Tenant's furniture, fixtures, and equipment,
so that Sublandlord will have a second lien on such furniture, fixtures, and equipment.
ARTICLE /II. USE OF PREMISES.
3.1 Permitted Use. As required by Order of the Flood Plain Management Board of the City of Miami
Beach, File Number FP98-04 (the "Flood Order"), Tenant acknowledges and agrees that the use of the portion of
the Premises described in Exhibit "B" of this Sublease as the "Anchor 1 FL" is Iimiled to use for lobby, wailing
area, reception/pre-function area or building access. The remainder of the Premises shall be used and occupied
only for the purpose as specified in item 12 of the Sublease Summary; provided however, Subtenant may use the
Premises for a different first,c1ass restaurant, subject to the Sublandlord's prior written consent, which consent
shall not be unreasonably withheld or delayed, The business of Subtenant in the Premises shall be carried on
under the name specified in the Sublease Summary and under no other name unless approved by Sublandlord in
writing, which approval shall not be unreasonably withheld or delayed. Subtenant 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 result in a nuisance, hazard, or bring about a breach of any provision of this Sublease or any
applicable municipal or other governmental law or regulation. Subtenant shall observe all reasonable rules and
regulations established by Sublandlord from time to time for the Retail Space provided that any new rules or
amendments to the existing rules and regulations shall not materially adversely impair Subtenant's rights under
this Sublease and shall not be applied in a discriminatory manner as to Subtenant The rules and regulations in
effect as of the date hereof are attached to and made a part of this Sublease as Exhibit "C." Sublandlord will
provide a copy of any new rules or amendments to the rules and regulations at least seven (7) days prior to the
effective date of any such new rules or amendments, Subtenant shall display such name as Sublandlord 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 Subtenant. Subtenant shall promote such name in any advertisements
or promotional material published or initiated by Subtenant 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 Sublandlord may from time
to time adopt, and every name or mark adopted by Sublandlord in connection with the Retail Space shall be used
by Subtenant only in association with the business carried on in the Premises during the Term and Subtenant's
use thereof shall be subject to such reasonable regulation as Sublandlord may from time to time impose.
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Subtenent Ihell operete III bUllne.. In eccordenoe with the lime Itenderds II other Fuddruckerl
restaurants located In Mlaml,Dade County. Florida with respect to the quality of food, quality of service and the
like, including, without limltetion, thet Subtenent shell ue. fletwlre with "epect to on,Premle.e coneumptlon
(Subtenant being expressly prohibited from using paper or plastic plates or utensils with respect to on-Premises j
consumption, but being expressly permitted to use paper or plastic plates or utensils with respect to off,Premises
consumplion).
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, executive 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 Subtenant under this
Sublease. If due to Subtenant's use of the Premises, repairs, improvements, or alteralions are necessary to
comply with any of the foregoing, Subtenant shalt pay the entire cost thereof,
3,3 Signs, Subtenant, at Subtenant's expense, shalt erect and maintain identification signage upon
the storefront of the Premises. The design and specification of such signage shalt be subject to Sublandlord's
sign criteria as adopted from time to time and such design and specification (including camera.ready artwork)
shall be submitted for Sublandlord's prior approval, which shall not be unreasonably withheld or delayed if in
compliance with Sublandlord's signage criteria. Except with the prior written consent of Sublandlord, which shall
not be unreasonably withheld or delayed, Subtenant 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 Subtenant's
storefront or storefront window, Sublandlord's signage criteria is attached hereto and made a part hereof as
Exhibit "E,"
3.4 Environmental Provisions,
(a) Subtenant 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 (I.e., as with office or cleaning supplies), (ii) notice of and
a copy of the current material safety data sheet is provided to Sublandlord for each such Hazardous Material
(except for Hazardous Materials used by Subtenant in the ordinary course of business (I.e" as with office or
cleaning supplies)), and (i1i) such materials are handled and disposed of in accordance with all applicable
governmental laws. rules, and regulations, If Sublandlord or Subtenant 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 Sublease, "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, 9 9061 et
seq,; the Hazardous Materials Transportation Act, as amended, 49 U,S.C, 9 1801, ~ seq.; the Resource
Conservation and Recovery Act, as amended, 42 U,S.C, 9 6901, ~ seq.; the Federal Water Pollution Control Act, as
amended, 33 U,S.C, 9 1251, ~ seq.; and Florida Statutes, Chapters 376 and 403; and (d) any other chemical,
material, gas, or substance. the exposure to or release of which is regulated by any govemmental or
quasiilovemmental entity having jurisdiction over the Retail Space or the operations thereon.
(b) If Subtenant or its employees, agents, or contractors shall ever violate the proviSions of
subsection (a), above, then Subtenant shall clean-up, remove, and dispose of the Hazardous Malerial 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 Sublandlord. provided that such work shall commence not later than
thirty (30) days from such notice and be diligently and continuously carried to completion by Subtenant or
Subtenant's designated contractors. Subtenant shall notify Sublandlord of its method, time, and procedure for any
c1ean,up or removal of Hazardous Materials under this provision; and Sublandlord 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 (i.e., holidays) if reasonably required for the protection of
other tenants or occupants of the Retail Space,
(c) Subtenant agrees to defend, indemnify, and hold harmless Sublandlord, the Agency, and
the City of Miami Beach (the "City") against any and all claims, costs, expenses, damages, liability, and the like,
which Sublandlord 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
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the part of Subtenant, its agents, employees, or assigns, Subtenant's liability under this section 3.4 shall survive
the expiration or any termination of this Sublease.
3,5 Hours; Continued Occupancy, During the Term, Subtenant shall conduct its business in the
Premises on all days and during all hours established by Subtenant in its reasonable judgment in order 10
maximize sales from the Premises, al Subtenant's sole expense. Subtenant shall open the whole of the Premises
for business to the public, fully fixtured, stocked, and staffed on Ihe Completion Date set forth in item 24 of the
Sublease Summary, subject to section 14,1, and shall continuously, actively, and diligently carry on Ihe 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 (as that term is described in section
14.1). Sublenant shall have the right to close the Premises for remodeling one time every three (3) years, for no
more than thirty consecutive (30) days. Subtenant acknowledges that its continued occupancy of the Premises
and the regular conduct of its business therein are of utmost importance to neighboring tenants and 10
Sublandlord in the renting of space in the Retail Space, the renewal of other leases therein, the efficient and
economic supply of services and utilities, Subtenant acknowledges that Sublandlord is executing this Sublease in
reliance thereupon and that the same is a material element inducing Sublandlord to execute this Sublease,
Subtenant shall not keep or display any merchafldise on or otherwise obstruct the common areas and shall not
sell, advertise. conduct, or solicit business anywhere within the Retail Space other than in the Premises.
Subtenant shall ship and receive supplies, fixtures, equipment, furnishings, wares, and merchandise only through
the appropriate service and delivery facilities provided by Sublandlord; and shall not park its trucks or other
delivery vehicles or allow 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 allocated by Sublandlord for
such purpose. Subtenant shall maintain available a substantial stock of goods, wares, and merchandise adequate
to ensure successful operation of Subtenant's business, and shall employ and maintain sales and other personnel
sufficient at all times for proper service to customers. In recognition of Subtenant's monetary contribution to
Sublandlord (in the form of rent) and Subtenant's general contribution to commerce within the Retail Space (also
important in Sublandlord's determination to execute this Sublease with Subtenant), Subtenant agrees that during
the Term neither Subtenant. or any guarantor or affiliate, parent, or subsidiary of Subtenant will own, lease, or
operate another store, department within a store, or any structure or site for retail business conducting the same
business as described in item 12 of the Sublease Summary within three (3) miles of any point in the Retail Spa~e,
3,6 Prohibited Uses, Notwithstanding any other provisions of this Sublease, Subtenant shall not use
the Premises nor permit them to be used for any of the following purposes: (A) for the sale by Subtenant, as its
principal business purpose, of any merchandise which Subtenant, 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; (6) for the sale of second-hand goods, war surplus articles, insurance salvage stock, fire sale 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 Subtenant is in fact in bankruptcy or is going out of business or is in liquidation, in which case such
sate shall 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 Subtenant is engaged in intentionally deceptive or fraudulent
advertising or selling practices or any other act or business practice contrary to honest retail practices,
3,7 Exclusive Use, Sublandlord covenants that, so long as Subtenant is in actual occupancy of the
Premises and using the Premises for the permitted use set forth in the Sublease Summary, Sublandlord will not
enter into any leases for space in all or any portion of the Retail Space with persons or entities whose primary
business at the Retail Space would be as a hamburger ..themed" restaurant.
3,8 Approved Menu. The approved menu for the Premises (including a breakfast menu) is attached I
hereto and made a part hereof as Exhibit "F." No substantial and material changes shall be made to such
approved menu or to any of the services provided by Subtenant at the Premises without the prior written consent
of the Subtenant's franchisor and Sublandlord, which consent shall not be unreasonably withheld or delayed,
ARTICLE IV. ACCESS AND ENTRY,
4.1 Right of Examination. Subtandlord or the Agency shall be entitled at all reasonabte times and
upon reasonable notice (but no notice is required in emergencies) to enter the Premises to examine them; to
make such repairs, alterations, or improvements thereto as Sublandlord or the Agency 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 c1imale
control systems. Sublandlord reserves to itself (and others acting on behalf of Sublandlord including, without
limitation, the Agency) the right to install, maintain, use, and repair pipes, ducts, conduits, vents, wires, and other
installations leading in, through, over, or under the Premises and for this purpose, Sublandlord may take all
material into and upon the Premises which is required therefor, Subtenant shall not unduly obstruct any pipes,
conduits, or mechanical or other electrical equipment so as to prevent reasonable access thereto, Sublandlord
reserves the right to use all exterior walls and roof area, Sublandlord shall exercise its rights under this seclion, 10
the extent possible in the circumstances, in such manner so as to minimize interference with Subtenant's use and
enjoyment of the Premises.
4.2 Right to Show Premises. Sublandlord and its agents have the right to enter the Premises at all
reasonable times and upon reasonable notice to show them to prospective purchasers, lenders, or anyone ha~ing
M1990680.054
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a prospective interest in the Retail Space, and, during the last six (6) months of the Initial Term (or the last six (6)
months of any renewal term if this Sublease is renewed), to show Ihem to prospective tenants, Sublandlord shall
exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to
minimize interference with Subtenant's use and enjoyment of the Premises,
ARTICLE V, INITIAL CONSTRUCTION; MAINTENANCE, REPAIRS, AND ALTERATIONS.
5.1. Subtenant's Construction Obligations,
(a) Subject to the provisions hereof, Subtenant shall, at its expense, cause the construction
and installation of all improvements to the Premises in accordance with Subtenant's Plans, as hereinafter defined,
and as necessary to permit Subtenant to occupy same and conduct normal business operations (such
improvements being referred to herein as "Subtenant's Work"). Without limiting the foregoing, Subtenant
acknowtedges and agrees that Subtenant's Work shall include the completion of the interior concrete slab
pursuant 10 the Project Plans and Specifications,
(b) AttaChed hereto as Exhibit "G" is a preliminary schedule of finishes and conceptual pian
for the Premises which has been approved by Sublandlord provided Ihat the portion of the Premises shown on
Exhibit "G" as the "Bakery & Ice Cream Shop" is reconfigured to comply with the Anchor Hotel Plans and the
Flood Order.
(c) Within thirty (30) days after the date of the Sublease, Subtenant, at Subtenant's expense,
agrees to furnish to Sublandlord a set of schematic drawings (including an initial space plan), which shall also
include as an attachment a schedule of finishes and Subtenant's proposed construction budget (the "Schematic
Drawings") for Subtenant's Work, The construction budget shall include detaited descriptions of the scope of work
and provide for a minimum expenditure by Subtenant for Subtenant's Work, The Schematic Drawings shall be
subject to Sublandlord's review and approval, not to be unreasonably withheld. Sublandlord shall notify Subtenant
in writing of its acceptance or of its objections to the Schematic Drawings, Should Subtenant fail to submit the
Schematic Drawings within the time period set forth above, or should Subtenant fail to make any reasonable
modifications Sublandlord may require within seven (7) business days of notice thereof, then either such event
shall be deemed to be a default under this Sublease, Subtenant acknowledges that submission of satisfactory
Schematic Drawings is a condition to Sublandlord's entering into this Sublease with Subtenant and that if
Subtenant fails to furnish Schematic Drawings acceptable to Sublandlord within the time periods set forth herein,
then, in such event, Subtenant shall be in default under this Sublease, and Sublandlord shall have the option to
declare this Sublease null and void. The Schematic Drawings, as approved by Sublandlord, shall be incorporated
herein by reference and made part of this Sublease,
(d) Within thirty (30) days after the date Sublandlord has approved the Schematic Drawings,
Subtenant, at Subtenant's expense, agrees to furnish to Sublandlord a complete, detailed set of plans and
specifications through the design development stage ("Subtenant's Plans") for Subtenant's Work, which shall
include, without limitation, all working drawings, elevations, finish selections, and sign age schematics, along with
a separate schedule detailing Subtenant's estimated expenditures in connection with Subtenant's Work (based on
the construction budget described above as supplemented to renectthe approved Schematic Drawings) and a list
of the proposed architect and engineer(s), interior design team, general contractor, and subcontractors.
Subtenant'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, Subtenant's Plans shall be prepared by Subtenant's architect and engineer(s).
which architect and engineer(s) shall be subject to Sublandlord's prior written approval, not to be unreasonably
withheld. If Subtenant elects to retain Sublandlord's architect and/or engineer(s), such architect and/or
engineer(s) shall nonetheless be considered to be Subtenant's agent(s) for purposes of this section 5.1.
Subtenant's Plans shall be subject to Sublandlord's reasonable review and approval. Sublandlord shall notify
Subtenant in writing of its acceptance or of its objections to Subtenant's Plans. Should Subtenant fail to submit
Subtenant's Plans within the time period set forth above, or should Subtenant fail to make any reasonable
modifications Sublandlord may require within five (5) business days of notice thereof, then either such event shall
be deemed to be a delay caused by Subtenant Notwithstanding Sublandlord's review and approval of
Subtenant's Plans, Sublandlord 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 Subtenant Sublandlord hereby approves Morris Lapidus and Ira Sklar as
Subtenant's architects.
(e) Once Sublandlord approves Subtenant's Plans, Subtenant shall, within five (5) business
days, provide Sublandlord with two (2) sets of Subtenant's Plans. Unless the change is required by the City, any
changes to Subtenant's Plans shall be made only by written addendum signed by both parties, However, so long
as Subtenant does not deviate from the approved Subtenant's Plans, and subject to section 5.1 (m). Subtenant
may change the approved construction budget without the Sublandlord's consent Subtenant's Plans, as
approved by Sublandlord, shall be incorporated herein by reference and made part of this Sublease,
(I) Within thirty (30) days after the date Sublandlord has approved Subtenant's Plans,
Subtenant, at Subtenant's express, agrees to furnish to Sublandlord a complete and detailed set of construction
documents (but not including the Subtenant's contract with its general contractor), in AlA form, including all
exhibits ("Subtenant's Construction Documents") for Subtenant's Work, which shall be prepared by Subtenant's
architects. Subtenant's Construction Documents shall be subject to Sublandlord's prior written approval, and
Subtenant shall receive written notification of Sublandlord's approval or objections to Subtenant's Construction
M1990680.054
7
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Documents. Should Subtenant fail to submit Subtenant's Construction Documents with the period set forth above
or should Subtenant fail to make any reasonable modifications, Sublandlord may request within five (5) business
days of notice hereof, then either such event shall be deemed a delay caused by Subtenant. Notwithstanding
Sublandlord's review of Subtenant's Construction Documents, Sublandlord assumes no responsibility whatsoever
and shall not be liable with respect to any item contained therein,
(g) Once Sublandlord approves Subtenant's Construction Documents. Subtenant shall,
within five (5) days, provide Sublandlord with two (2) sets of Subtenant.s Construction Documents (and any
changes to Subtenant's Construction Documents and/or the approved construction budget shall be made only by
written addendum signed by both parties).
(h) Subtenant shall use only licensed contractors and subcontractors approved in writing by
Sublandlord to complete the construction and installation of Subtenant's Work, Prior to the commencement of the
construction of Subtenant's Work, Subtenant shall provide to Sublandlord certificates of insurance evidencing that
Subtenant has the required comprehensive general liability insurance required of Subtenant under the Sublease,
In addition, Subtenant shall provide to Sublandlord certificates of insurance evidencing that Subtenant'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 Sublandlord and Subtenant); 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 Sublandlord and Subtenant and that any other insurance maintained by
Sublandlord or Subtenant is excess and non-{;ontributing 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, Sublandlord and Subtenant are to be included as an additional insured for insurance coverages
required of the general contractor, Subtenant shall inform its contractor, subcontractors, and material suppliers
that Sublandlord'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 Subtenant's behalf and that Sublandlord has filed a notice
in the public records of Miami-Dade County, Florida, to that effect. All inspections and approvals necessary and
appropriate to complete Subtenant's Work in accordance with Subtenant's Plans and as necessary to obtain a
certificate of use and occupancy as hereinafter provided are the responsibility of Subtenant and its general
contractor, Subtenant shall arrange a meeting prior to the commencement of construction between Sublandlord
and Subtenant's contractors for the purpose of organizing and coordinating the completion of Subtenant's Work.
(i) Once Subtenant's Plans have been approved by Sublandlord, Subtenant shall diligently
pursue the issuance of a building permit therefor, Subtenant shall commence Subtenant's Work (and shall be
required to diligently pursue same) upon receipt of the building permit. If Subtenant has not commenced
Subtenant's Work by such date, or if Subtenant has not achieved Substantial Completion of Subtenant's Work in
accordance with Subtenant's Plans, as approved by Sublandlord, by the date set forth in the Sublease Summary,
subject to section 14,1, then, in either such event, Subtenant, subject to applicable notice and cure periods, shall
be in default under this Sublease, and Sublandlord shall have the option to declare this Sublease null and void
and exercise any remedies available under this Sublease. Should this Sublease be declared null and void
pursuant to this paragraph, Subtenant shall forfeit all rights to any deposits, advance rent, and any other payments
made under this Sublease, and Sublandlord shall have no further liability to Subtenant under this Sublease,
"Substantial Completion" of Subtenant's Work shall mean that Subtenant's Work has been completed in
accordance with the approved Subtenant's Plans and thaI the Premises are approved for use and occupancy by
the appropriate governmental authorities and are in suitable condition for the operation of Subtenant's business,
Ol All of Subtenant'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, Miami,Dade Edition, Upon
completion of Subtenant's Work, Subtenant shall furnish Sublandlord:
(1)
satisfactory to Sublandlord
occupancy; and
a certificate of use and/or occupancy issued by the City and other evidence
that Subtenant' has obtained the governmental approvals necessary to permit
(2) a notarized affidavit from Subtenant's contractor(s) that all amounts due for work
done and materials furnished in completing Subtenant's Work have been paid; and
(3) releases of lien from any subcontractor or material supplier that has given
Sublandlord 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
Subtenant, at its expense. and all such work shall be done to Sublandlord's satisfaction, If any patched and
painted area does not match the original surface, then the entire surface shall be repainted at Subtenant's
expense, Subtenant agrees to indemnify and hold harmless Sublandlord, its agents. and employees from and
M1990680.054
8
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 allerations by Subtenant pursuant to this Sublease, Subtenant, at its
expense, shall be responsible for the maintenance, repair, and replacement of any and all items constructed by
Subtenant's contractor,
(I) Subtenant shall not alter the existing fire alarm system in the Premises or the Retail
Space, Subtenant's Plans shall include detailed drawings and specifications for the design and installation of
Subtenant's 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 Subtenant's expense, be integrated into
Sublandlord's fire alarm system for the Retail Space, (Sublandlord is not required to provide any security system.)
Sublandlord's electrical contractor and/or fire alarm contractor shall, at Subtenant's expense, make all final
connections between Subtenant's and Sublandlord's fire alarm systems, Subtenant shall insure that all work
performed on the fire alarm system shall be coordinated at the job site with the Sublandlord's representative.
(m) Subtenant hereby certifies to and covenants with Sublandlord that, in connection with
Subtenant's Work, (i) Subtenant shall incur no less than Eight Hundred Fifty Thousand and No/100 ($850,000.00) /
Dollars (the "Minimum Budget"), which amount includes the "hard" and "soft" construction costs (including, without 'If ,\
limitation, architectural, engineering, and permitting fees), and includes furniture, fixtures, and equipment and (ii) C (I}",'
Subtenant shall incur no less than Five Hundred Thousand and No/100 ($500,000,00) Dollars of the Minimum 1!1I
Budget in connection with the "hard" construction costs, ' ~l n'~
.,;'
5,2 Maintenance and Repairs by Sublandlord. It is hereby acknowledged and agreed that
Sublandlord shall have no direct obligation to maintain or repair any portion of the Retail Space or the Premises,
and that the Agency is solely responsible to maintain and repair certain portions of the Retail Space in accordance
with the provisions of the Garage Easement Agreement, the Master Lease, and the nondisturbance agreement
from the Agency described in section 10,2 of this Sublease. Sublandlord shall use all reasonable efforts (but at no
cost or expense to Sublandlord) to request that the Agency fulfill its maintenance and repair obligations in
accordance with the provisions of the Garage Easement Agreement and the Master Lease, Subtenant will notify
Sublandlord in writing of any necessary repairs that are the obligation of the Agency to perform, and Sublandlord
will notify the Agency accordingly, If Sublandlord fails to cause Agency to perform such repairs within forty,five
(45) days after written request by Subtenant, Subtenant may, upon five (5) business days written notice, cause the
repairs to be made and bill Sublandlord for the actual, reasonable costs thereof, together with reasonable
supporting documentation, If Sublandlord fails to pay such bill within thirty (30) days after receipt thereof (together
with such reasonable supporting documentation), then Subtenant may have the repairs made and deduct the
costs thereof from the Subtenant's next monthly installment(s) of Minimum Rent until fully credited, Sublandlord
shall not be responsible for any damages caused to Subtenant by reason of failure of any equipment or facilities
serving the Retail Space or delays in the performance of any work for which the Sublandlord is responsible to
cause the Agency to perform pursuant to this Sublease, unless caused by the gross negligence or willful
misconduct of Sublandlord. Notwithstanding any other provisions of this Sublease, if any part of the Retait Space
is damaged or destroyed or requires repair, replacement, or alteration as a result of the act or omission of
Subtenant, its employees, agents, invitees, licensees, or contractors, and such damage or destruction is not
repaired within thirty (30) days atler written notice, then Sublandlord shall have the right to perform same and the
cost of such repairs, replacement, or alterations shall be paid by Subtenant to Sublandlord upon demand, In
addition, if. in an emergency, it shall become necessary to make promptly any repairs or replacements required to
be made by Subtenant, Sublandlord may re,enter the Premises and proceed forthwith to have the repairs or
replacements made and pay the costs thereof, Within thirty (30) days after written demand, Subtenant shall
reimburse Sublandlord for the cost of making the repairs.
5.3 Maintenance and Repairs by Subtenant. Subtenant shall. at its sole cost, repair and maintain the
Premises exclusive of structural components and 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 pursuant to this Sublease and the nondisturbance agreement from the Agency described in section
10.2 of this Sublease, Without limiting the generality of the foregoing, Subtenant 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) Subtenant's sign; (iv) any heating
or air conditioning equipment serving the Premises ("HV AC") (which shall include, withoutlimitalion, a preventive
maintenance HVAC service contract. Such service contract shall include, without limitation, preventive HVAC
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 Subtenant, or the failure of Subtenant to perform its obligations under this
Sublease. All repair and maintenance performed by Subtenant in the Premises shall be performed by contractors
or workmen designated or approved by Sublandlord, At the expiration or earlier termination of the Term,
Subtenant shall surrender the Premises to Sublandlord in as good condition and repair as Subtenant is required to
maintain the Premises throughout the Term, reasonable wear and tear and damage from casualty or
condemnation excepted. Subtenant shall also furnish, maintain, and replace all electric light bulbs, tubes, and
tube casings located within or serving the Premises and Subtenant's signage, all at Subtenant's sole cost and
expense.
Subtenant shall keep the Premises and sidewalks. service,ways and loading areas adjacent to the
Premises neat, clean and free from dirt, rubbish, insects and pests at all times. Subtenant will store all trash and
garbage within the areas designated by Sublandlord for such trash storage, pickup and removal and only in
MI990680,054
9
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receptacles of the size, design, and color approved by Sublandlord. The cost, operation and maintenance of such
receptacles, as well as any waste storage facilities used by Subtenant, including, without limitation, (i) the costs of
installation of electricity and an air conditioning unit in such waste storage facilities. and (ii) the costs for pest
control of such waste storage facilities, shall be paid by Subtenant. Suhtenant shall keep any and all wet garbage
enclosed or under refrigeration so as to prevent odors from emanating from the Premises or from such designated
waste removal areas.
5,4 Approval of Subtenant's Alterations, No alterations (including, without limitation, improvements,
additions, or modifications to the Premises) shall be made by Subtenant to the Premises without Sublandtord's
prior written approval, not to be unreasonably withheld or delayed, but which, as to exterior or structural alterations
may be withheld in Sublandlord's sole discretion. Any alterations by Subtenant shall be performed at the sole cost
of Subtenant, by contractors and workmen approved by Sublandlord (not to 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 Sublease become Sublandlord's property. Subtenant may, during the Term, in the
usual course of its business, remove its trade fixtures, provided that Subtenant is not in default under this
Sublease; and Subtenant shall, at the expiration or earlier termination of the Term, at its sole cost, remove such
trade fixtures in the Premises as Sublandlord shall require to be removed and restore the Premises to the
condition existing prior to such removal. Subtenant shall at its own expense repair any damage caused to the
Retail Space by such removal. If Subtenant does not remove its trade fixtures at the expiration or earlier
termination of the Term, the trade fixtures shall, at the option of Sublandlord, become the property of Sublandlord
and may be removed from the Premises and sold or disposed of by Sublandlord in such manner as it deems
advisable without any accounting to Subtenant
5.6 Liens, Subtenant shall promptly pay for all materials supplied and work done in respect of the
Premises by, through. or under Subtenant so as to ensure that no lien is recorded against any portion of the Retail
Space or against Sublandlord's or Subtenant's interest therein, If a lien is so recorded, Subtenant shall discharge
it promptly by payment or bonding. If any such lien against the Retail Space or Sublandlord's interest therein is
recorded and not discharged by Subtenant as above required within fifteen (15) days following written notice to
Subtenant, Sublandlord shall have the right to remove such lien by bonding or payment and the cost thereof shall
be paid immediately from Subtenant to Sublandlord, Sublandlord and Subtenant expressly agree and
acknowledge that no interest of Sublandlord or the Agency in the Premises or the Retail Space shall be subject to
any lien for improvements made by Subtenant in or for the Premises, and Sublandlord shall not be liable for any
lien for any improvements made by Subtenant, such liability being expressly prohibited by the terms of this
Sublease, In accordance with applicable laws of the State of Florida, Sublandlord has filed in the public records of
Miami-Dade County, Florida, a public notice containing a true and correct copy of this paragraph, and Subtenant
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,
5.7 Utilities, Subtenant shall pay directly to its utility suppliers, all gas, electricity. water, and ether
utility charges applicable to the Premises as separately metered. In addition, Subtenant's electrical equipment
and lighting shall be restricted to that equipment and lighting which individually does not have a rated capacity
and/or design load greater than the rated capacity and/or design load of the Retail Space. If Subtenant's
consumption of electrical services exceeds either the rated capacity and/or design load of the Retail Space, then
Subtenant shall remove the equipment and/or lighting to achieve compliance within ten (10) days after receiving
written notice from Sublandlord, or such equipment and/or lighting may remain in the Premises, so long as
(a) Subtenant shall pay for all costs of installation and maintenance of submeters, wiring, air-conditioning, and
other items required by Sublandlord, in Sublandlord's reasonable discretion, to accommodate Subtenant's excess
design loads and capacities; and (b) Subtenant shall pay to Sublandlord, within thirty (30) days after rendition of a
bill, the cost of the excess consumption of electrical service at the rates charged to Sub landlord by Florida Power
& Light, which shall be in accordance with any applicable laws.
ARTICLE VI. INSURANCE AND INDEMNITY,
6.1 Subtenant's Insurance, Subtenant shall, throughout the Term (and any other period when
Subtenant 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 Subtenant's
insurers may have against Sublandlord and against those for whom Sublandlord is in law responsibte including,
without limitation, its directors, officers, agents, and employees, and (except with respect to Subtenant's chattels)
incorporating a standard New York mortgagee endorsement (without contribution). Such insurance shall insure
property of every kind owned by Subtenant in an amount not less than the full replacement cost thereof (new),
with such cost to be adjusted no less than every three (3) years, Such policy shall include as additional insureds
Sublandlord and its affiliates and any mortgagee of Sublandlord. the City, the Agency, and any mortgagee of the
Agency 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 Sublease Summary; provide for severability of interests;
and include as additional insureds Sublandlord and its affiliates and any mortgagee of Sublandlord, the City, the
Agency, and any mortgagee of the Agency in connection with a mortgage on the Facility,
MI990680,054n
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".;
(C)
legal requirements,
Worker's compensation and employer's liability insurance in compliance with applicable
(D) Business interruption insurance, sufficient to insure Subtenant for no less than one (1) full
year of loss of business,
(E) Any other form of insurance which Subtenant or SUblandlord, 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 carned by comparable retail establishments in Miami ,Dade County, Flonda,
All policies referred to above shall: (i) be taken out with insurers licensed to do business in
Florida and reasonably acceptable to Sublandlord; (ii) be in a form reasonably satisfactory to Sublandlord; (iii) be
non-contributing with, and shall apply only as primary and not as excess to any other insurance available to
Sublandlord or any mortgagee of Sublandlord; (iv) contain an undertaking by the insurers to notify Sublandlord 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 Sublandlord's standard form or, if required by a mortgagee, copies of
such insurance policies certified by an authonzed officer of Subtenant's insurer as being complete and current,
shall be delivered to Sublandlord promptly upon request If Subtenant 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 Sublandlord or
any mortgagee, and Subtenant does not commence and continue to diligenlly cure such default within
forty-eight (48) hours after written notice by Sub/andlord to Subtenant specifying the nature of such default, then
Sublandlord has the right, without assuming any obligation in connection therewith, to effect such insurance at the
sole cost of Subtenant and all outlays by Sublandlord shall be paid by Subtenant to Sublandlord as additional rent
without prejudice to any other rights or remedies of Sublandlord under this Sublease. Subtenant 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 Damage, Subtenant acknowledges that the Agency, and not Sublandlord. will be
performing any maintenance and repairs required of the Agency and/or Sublandlord hereunder. Sublandlord 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 Subtenant 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 Subtenant or others from any cause,
unless such death, injury, loss, or damage results from the gross negligence or willful misconduct of Sublandlord,
Without limiting the generality of the foregoing, Sublandlord 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, spnnklers. 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 Sublandlord, Subtenant agrees to indemnify Sublandlord 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), unless caused by the gross negligence or willful misconduct of Sublandlord, ansing from any occurrence
in, upon, or at the Premises, or the occupancy, use, or improvement by Subtenant or its agents or invitees of the
Premises or any part thereof, or occasioned wholly or in part by any act or omission of Subtenant its agents,
employees, and invitees or by anyone permitted to be on the Premises by Subtenant
6,3 Waiver of Subrogation, Sub/andlord and Subtenant 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
otherwise) 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 Sublease, 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. Sublandlord and Subtenant 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 subrugation which the insurer of one party might have
against the other party, and Sublandlord and Subtenant shall each indemnify, defend, and hold harmless the other
against any loss or expense, including reasonable attorneys' fees (appellate or otherwise) resulting from the
failure to obtain such waiver.
ART/CLE VII. DAMAGE AND DESTRUCTION.
7,1 Damage to Premises. Subtenant 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 Ihe Retail Space will
be performed by the Agency (and not by Sublandlord) and in any event only to the extent that the Agency is required
10 repair or rebuild the Retail Space pursuant to the Garage Easement Agreement, the Master Lease, and the
nondisturbance agreement from Ihe Agency described in section 10.2 of this Sublease. Sublandlord shall use
reasonable efforts (but at no cost or expense to Sublandlord) to request that the Agency fulfill its repair obligations
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in accordance wilh the provisions of the Garage Easement Agreement, the Master Lease. and the nondisturbance
agreement from the Agency described in section 10,2 of this Sublease. If the Agency 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, Subtenant shall diligently perform all other work required to fully
restore the Premises for use in Subtenant's business, in every case at Subtenant's cost and without any
contribution to such cost by Sublandlord, whether or not Sublandlord has at any time made any contribution to the
cost of supply, installation, or construction of leasehold improvements in the Premises, Subtenant 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 Subtenant or Subtenant's agents, guest, or
invitees, rent and all other charges shall not abate.
7.2 Termination for Damage, 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 Sublandlord or the Agency
such reconstruction or repair cannot be completed within one hundred twenty (120) days of the happening of the
damage or destruction, Sublandlord may, at its option, terminate this Sublease on notice to Subtenant given within
thirty (30) days after such damage or destruction and Subtenant shall immediately deliver vacant possession of
the Premises in accordance with the terms of this Sublease.
In addition, if (i) the Agency 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), or (ii) the
damage occurs during the last year of the Term, then Subtenant shall have the right to terminate this Sublease by
written notice to Sublandlord delivered, as applicable, within thirty (30) days after the expiration of such nine (9)
month period (or as extended) or, if the damage occurs during the last year of the Term, within thirty (30) days of
the damage (whereupon both parties shall be relieved of all further obligations hereunder, except as otherwise
expressly set forth herein),
If the Sublease is terminated pursuant to this section 7,2, Subtenant shall be entitled to the proceeds of
Subtenant's insurance.
ARTICLE VIII. ASSIGNMENT, SUBLEASES, AND TRANSFERS,
8,1 Transfer by Subtenant. Subtenant shall not enter into, consent to, or permit any Transfer, as
hereinafter defined, without the prior written consent of Sublandlord and the Agency in each instance, which
consent may be granted or withheld in Sublandlord's or the Agency's sole and absolute discretion for any reason
or for no reason. For purposes of this Sublease, "Transfer" means an assignment of this Sublease in whole or in
part; a sublease of all or any part of the Premises; any transaction whereby the rights of Subtenant under this
Sublease or to the Premises are transferred to another; any mortgage or encumbrance of this Sublease or the
Premises or any part thereof or other arrangement under which either this Sublease or the Premises become
security for any indebtedness or other obligations; and if Subtenant 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, Sublandlord 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 Sublease but no acceptance by
Sublandlord of any payments by a transferee shall be deemed a waiver of any provisions hereof regarding
Subtenant. Notwithstanding any Transfer, Subtenant shall not be released from any of its obligations under this
Sublease, Sublandlord'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
Sublease, the amount of such excess shall be paid to Sublandlord. If, pursuant to a permitted Transfer,
Subtenant 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, Subtenant shall, upon receipt
thereof, pay to Sublandlord an amount equivalent to such consideration,
Notwithstanding the foregoing, Subtenant shall have the right, without the prior written consent of
Sublandlord and the Agency, to grant a purchase money security inlerest in its furniture, fixtures, and equipment
in the Premises, subject to section 2,8 of this Sublease,
8.2 Assignment by Sublandlord, Sublandlord shall have the unrestricted right to transfer, lease,
convey. or otherwise dispose of Sublandlord's interest in the Master Lease and this Sublease or any interest of
Sublandlord in this Sublease. To the extent that the transferee or assignee from Sublandlord assumes the
obligations of Sublandlord under this Sublease, Sublandlord shall thereupon and without further agreement be
released of all further liability under this Sublease.
ARTICLE IX, DEFAULT,
9.1 Defaults. A default by Subtenant shall be deemed to have occurred hereunder, if and whenever:
(i) any Minimum Rent or Percentage Rental is not paid within three (3) business days after written demand has
been made by Sublandlord; (ii) any other additional rent is in arrears and is not paid within five (5) days after
written demand by Sublandlord; (iii) Subtenant has breached any of its obligations in this Sublease (other than the
payment of rent) and Subtenant fails to remedy such breach within fifteen (15) days (or such shorter period as
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may be provided in this Sublease), or if such breach cannot reasonably be remedied within fifteen (15) days (or
such shorter period), then if Subtenant fails to immediately commence to remedy and thereafter proceed diligently
to remedy such breach, in each case after notice in writing from Sublandlord; or (iv) Subtenant becomes bankrupt
or insolvent.
9.2 Remedies, In the event of any default hereunder by Subtenant, then without prejudice to any
other rights which it has pursuant to this Sublease or at law or in equity, Sublandlord shall have the following
rights and remedies, which are cumulative and not alternative: '
(A) Sublandlord may cancel this Sublease by notice to Subtenant and retake possession of
the Premises for Sublandlord's account, or may terminate Subtenant's right to possession of the Premises without
terminating this Sublease, In either event, Subtenant shall then quit and surrender the Premises to Sublandlord.
If Sublandlord terminates Subtenant's right to possession of the Premises without terminating this Sublease,
Subtenant's liability under all of the provisions of this Sublease shall continue notwithstanding any expiration and
surrender, or any re,entry, repossession, or disposition hereunder
(B) Sublandlord may enter the Premises as agent of Subtenant to take possession of any
property of Subtenant on the Premises, to store 'such property at the expense and risk of Subtenant or to sell or
otherwise dispose of such property in such manner as Sublandlord may see fit without notice to Subtenant.
Re,entry and removal may be effectuated by summary dispossess proceedings, by any suitable action or
proceeding, or otherwise, Sublandlord 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 Sublandlord terminates Subtenant's right to possession of the Premises without
terminating this Sublease under subsection (A) above, Subtenant shall remain liable (in addition to accrued
liabilities) to the extent legally permissible for all rent and all of the charges Subtenant would have been required
to pay untitthe date this Sublease would have expired had such cancellation not occurred, Subtenant's liability for
rent shall continue notwithstanding re,entry or repossession of the Premises by Sublandlord, In addition to the
foregoing, Subtenant shall pay to Sublandlord such sums as the court which has jurisdiction thereover may
adjudge as reasonable attorneys' fees with respect to any successful lawsuit or action instituted by Sublandlord 10
enforce the provisions of this Sublease, .
(D) Sublandlord may relet all or any part of the Premises for all or any part of the unexpired
portion of the Term of this Sublease 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, Sub landlord shall be under no obligation to
relet or to attempt to relet the Premises, except as expressly set forth below.
(E) If Sublandlord terminates Subtenant's right to possession of the Premises without
terminating this Sublease under subsection (A) above, and Sublandlord so elects. the rent hereunder shall be
accelerated and Subtenant shall pay Sublandlord damages in the amount of any and all sums which would have
been due for the remainder of the Initial Term or Renewal Term, as applicable (reduced to present value using a
discount factor equal to the stated prime lending rate on the date of Subtenant's default by Sublandlord's then
existing mortgagee or, if there is no mortgagee, by Citibank, NA, New York), Prior to or following payment in full
by Subtenant of such discounted sum promptly upon demand, Sublandlord shall use good faith efforts to relet the
Premises, If Sublandlord receives consideration as a result of a reletting of the Premises relating to the same
time period for which Subtenant has paid accelerated rent, such consideration actuallY received by SUblandlord,
less any and all of Sublandlord'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 Subtenant as called for herein, or if Subtenant has paid such
discounted sum, such credited amount shall be repaid to Subtenant by Sublandlord (provided said credit shall not
exceed the accelerated amount),
(F) Sublandlord may remedy or attempt to remedy any default of Subtenant under this
Sublease for the account of Subtenant and to enter upon the Premises for such purposes upon prior written
notice, Subtenant shall pay to Sublandlord all reasonable expenses incurred by Sublandlord in connection with
remedying or attempting to remedy such default. Any such reasonable expenses incurred by Sublandlord shall
accrue interest from the date of payment by Sublandlord until repaid by Subtenant at the highest rate permitted by
law.
9.3 Costs, Subtenant shall pay to Sublandlord on demand all reasonable costs incurred by
Sublandlord, including attorneys' fees and costs at all tribunal levels, incurred by Sublandlord in enforCing any of
the obligations of Subtenant under this Sublease, In addition, upon any default by Subtenant, Subtenant shall be
also liable to Sublandlord for the reasonable expenses to which Sublandlord 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; pulling the Premises in proper repair; protecting and preserving the
Premises by placing watchmen and caretakers therein; retetting the Premises (including attorneys' fees and
disbursements, marshall's fees, and brokerage fees, in so doing); and any other expenses reasonably incurred by
Sublandlord, Notwithstanding anything to the contrary contained in this Sublease, in the event of any litigation
between Sublandlord and Subtenant arising out of this Sublease or Subtenant's use and occupancy of the
Premises, the prevailing party shall be entitled to recover its costs and expenses incurred in such litigation,
including attorneys' fees. at all levels, including appeals.
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9.4 Additional Remedies; Waiver, The rights and remedies of Sublandlord 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 Sublandlord 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 Sublandlord, In the event of any default by Sublandlord, Subtenant's exclusive remedy
shall be an action for damages or injunction, but prior to any such action Subtenant will give Sublandlord written
notice specifying such default with particularity, and Sublandlord 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, Sublandlord shall have a reasonable time to cure such default, provided
Sublandlord commences to cure within such thirty (30) day period and thereafter diligently prosecutes such cure
to completion). Notwithstanding any provision of this Sublease, Sublandlord shall not at any time have any
personal liability under this Sublease, In the event of any breach or default by Sublandlord of any term or
provision of this Sublease, Subtenant agrees to look solely to the equity or interest then-owned by Sublandlord in
the Retail Space, and in no event shall any deficiency judgment be sought or obtained against Sublandlord. It is
expressly understood that the obligations of Sublandlord under this Sublease 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 Sublandlord, or of any
successor corporation, or any of them. under or by reason of the obligations, covenants, or agreements of
Sublandlord contained in this Sublease 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 Sublease
or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the
execution of this Sublease.
ARTICLE X, ESTOPPEL CERTIFICATE; SUBORDINATION,
10.1 Estoppel Certificate. Within ten (10) days after written request by Sublandlord, Subtenant shall
deliver in a form supplied by Sublandlord. an estoppel certificate to Sublandlord as to the status of this Sublease,
including whether this Sublease is unmodified and in full force and effect (or, if there have been modifications, that
this Sublease 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 Sublease
as to which Sublandlord shall request such certificate, Sub landlord, and any prospective purchaser, lender. or
ground lessor shall have the right to rely on such certificate,
10.2 Subordination; Attornment. This Sublease and all rights of Subtenant 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 thereol), and to the Master Lease and any
and all ground leases, made or arranged by Sublandlord 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, Subtenant shall
further evidence its agreement to subordinate this Sublease and its rights under this Sublease to any and all
documents and to all advances made under such documents. The form of such subordination shall be made as
required by Sublandiord, its lender, ground lessor, or the Agency, Subtenant shall, if requested by the Agency, 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
the Agency, such mortgagee, owner, or purchaser, automatically attorn to and become the tenant of the Agency or
any such mortgagee, owner, purchaser, or successor-in,interest, without any change in the terms or other
provisions of this Sublease; provided, however, that the Agency, 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 the Agency, such mortgagee. owner, or purchaser, or
successor, or (c) any amendment or modification in this Sublease made without the consent of the Agency, 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 othelWise available against Sublandlord, or (I) any
act or omission of any prior landlord (including Sublandlord). Upon request by the Agency, said mortgagee,
owner, or purchaser, or successor, Subtenant shall execute and deliver an instrument or instruments confirming
its attornment.
Notwithstanding the foregoing, any such subordination of this Sublease shall be conditioned on the
Sublandlord obtaining a non disturbance agreement in favor of Subtenant from the Agency, all mortgagees and
ground lessors regarding any financings or overieases with respect to the Retail Space, all in form and con lent
reasonably satisfactory to Subtenant, and no subordination shall be effective without a corresponding
nondisturbance agreement. Sublandlord represents that, as of the date hereof, there is no mortgage of the
Sublandlord's interest in the Retail Space,
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If the non disturbance agreement from the Agency has not been obtained within thirty (30) days after the
date hereof, then Subtenant may terminate this Sublease by written notice to Sublandlord within ten (10) days
after the expiration of such thirty (30) day period, whereupon Sublandlord shall return the prepaid rent and security
deposit to Subtenant, and both parties shall be relieved of all further obligations under this Sublease; provided,
however, that if the nondisturbance agreement from the Agency is obtained within fifteen (15) days after delivery
of Subtenant's termination notice, then the termination shall be void and of no further force or effect, and this
Sublease shall continue in full force and effect
ARTICLE XI. CONTROL OF RETAIL SPACE BY LANDLORD,
11.1 Use and Maintenance of Common Areas. Subtenant and those doing business with Subtenant
for purposes associated with Subtenant'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 Sublandlord, Sublandlord shall use reasonable efforts (but at
no cost or expense to Sublandlord) to request that the Agency keep the common areas in good repair and
condition and shall clean the common areas when necessary, Subtenant acknowledges that any common areas
of the Retail Space shall at all times be under the exclusive control and management of Sublandlord and/or the
Agency, For purposes of this Sublease, "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 Sublandlord to be
leased. from time to time, or which are provided or designated from time to time by Sublandlord and/or the Agency
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, Subtenant acknowledges that the Garage portion of the Facility is
not a part of the Retail Space, and that Subtenant has no right or license to use the Garage pursuant to this
Sublease, Any use by Subtenant or its invitees of the Garage is SUbject to the rules and regulations in connection
therewith imposed by the Agency (or successor owner) and/or the operator of the Garage, No portion of the
garage is under Sublandlord's control or supervision, and Sublandlord 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 by Sublandlord, Sublandlord and/or the Agency may (but shall not be obligated to)
(i) aller, 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 Sublandlord and/or the Agency, in the use of good business judgment
determines to be advisable, provided that notwithstanding anything contained in this section 11.2, access to the
Premises shall be available at all times, Subtenant's rights under this Sublease shall not be materially impaired,
and interference with Subtenant's business shall be minimized. Provided Sublandlord complies with the
foregoing, Sublandlord 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 Subtenant due to any of the foregoing.
11.3 Subtenant Relocation. Intentionally Omitted,
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 Sublandlord 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 Subtenant shall pay rent and other
charges up to the Taking Date, with appropriate credit by Sublandlord (toward the next installment of rent due
from Subtenant) of any rent or charges paid for a period subsequent to the Taking Date, Minimum Rent and other
charges payable to Sublandlord shall be reduced in proportion to the amount of the Premises taken, Any repairs
to or rebuilding of the condemned portions of the Retail Space will be required only to the extent that the Agency is
required to repair or rebuild the Retail Space pursuant to the Garage Easement Agreement, the Master Lease, and
the nondisturbance agreement from the Agency described in section 10.2 of this Sublease; provided however, if
the Agency does not commence to repair or rebuild the condemned portion of the Premises within ninety (90) days of
the Taking Date, or complete such repairs within nine (9) months of the Takin9 Date, then Subtenant may terminate
this Sublease by giving Sublandlord written notice of its election to terminate.
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
Sublandlord without any participation by Subtenant; Subtenant shall have no claim to any such award based on
Subtenant's leasehold interest. However, nothing contained herein shall be construed to preclude Subtenant, at
its cost, from independently prosecuting any claim allowed by Florida law directly against the condemning
authority or participating in Sublandlord's claim in such condemnation proceeding for damage to, or cost of
removal of, stock, trade fixtures, furniture, and other personal property belonging to Subtenant and for Subtenant's
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moving expenses; provided, however, that no such claim shall diminish or otherwise adversely affect
Sublandlord'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 Delay, Whenever a period of time is herein prescribed for the taking of any action by Sublandlord
or Subtenant. as applicable (including, without limitation, the Completion Date for Subtenant's Work), Sublandlord
or Subtenant, 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 Sublandlord or Subtenant, as applicable, From and after the Rent
Commencement Date, the foregoing shall not apply to any payments of money due under this Sublease,
14.2 Holding Over, If Subtenant remains in possession of the Premises after the end of the Initial
Term without having exercised its rights with respect to the Renewal Term in accordance with Rider Number One,
or after the Renewal Term, without having executed and delivered a new lease or an agreement extending the
Term, there shall be no tacit renewal of this Sublease or the Term, and Subtenant shall be deemed to be
occupying the Premises as a Subtenant 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 Initial Term or the Renewal Term, as applicable. and otherwise upon the same terms as are set forth in this
Sublease, so far as they are applicable to a monthly tenancy,
14,3 Waiver; Partial Invalidity. If Sublandlord excuses or condones any default by Subtenant of any
obligation under this Sublease, 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 Sublease are to be construed
as covenants even though not expressed as such, If any provision of this Sublease is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Sublease and the remaining provisions of
this Sublease shall remain in force and bind the parties as though the illegal or unenforceable provision had never
been included in this Sublease,
14.4 Recording, Neither Subtenant nor anyone claiming under Subtenant shall record this Sublease or
any memorandum hereof in any public records without the prior written consent of Sublandlord,
14.5 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Sublease 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 Sublandlord, at the address set forth in the
Sublease Summary; and (ii) if to Subtenant, at the address set forth on the Sublease 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 Sublease extend
to and bind the successors and assigns of Sublandlord and the heirs, executors, administrators, and permitted
successors and assigns of Subtenant. 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 Subtenant or more than
one person constituting Subtenant, their covenants shall be considered to be joint and several and shall apply 10
each and every one of them,
14.7 Captions and Section Numbers, The captions, section numbers, article numbers, and table of
contents appearing in this Sublease are inserted only as a matter of convenience and in no way affect the
substance of this Sublease.
14,8 Extended Meanings, The words "hereof," "hereto," "hereunder," and similar expressions used in
this Sublease relate to the whole of this Sublease and not only to the provisions in which such expressions
appear, This Sublease shall be read with all changes in number and gender as may be appropriate or required by
the context, Any reference to Subtenant includes, when the context allows, the employees, agents, invitees, and
licensees of Subtenant and all others over whom Subtenant might reasonably be expected to exercise control.
This Sublease 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 Agreement; Governing Law; Time, This Sublease and the Exhibits and Riders, if any,
attached hereto are incorporated herein and set forth the entire agreement between Sublandlord and Subtenant
concerning the Premises and there are no other agreements or understandings between them. This Sublease
and its Exhibits and Riders may not be modified except by agreement in writing executed by Sublandlord and
Subtenant. This Sublease shall be construed in accordance with and governed by the laws of the State of Florida,
Time is of the essence of this Sublease,
MI990680,054
16
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14.10 No Partnership, The parties hereby acknowledge that it is not their intention under this Sublease
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
Sublease. 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 En/oyment. If Subtenant pays rent and other charges and fully observes and performs all of
its obligations under this Sublease, Subtenant shall be entitled to peaceful and quiet enjoyment of the Premises
for the Term without interruption or interference by Sublandlord or any person claiming through Sublandlord,
14,12 Brokerage. Sublandlord and Subtenant each represent and warrant one to the other that except
as set forth in the Sublease Summary, neither of them has employed any broker In connection with the
negotiations of the terms of this Sublease or the execution thereof. Sublandlord and Subtenant 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.
Sublandlord recognizes the broker(s) specified in the Sublease Summary as the sole broker(s) with whom
Sublandlord 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 radoh 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 Master lease. If the Master lease is ever terminated because Sublandlord has become the fee
simple owner of the Retail Space, then those obligations under this Sublease that the Sublandlord is to request'the
Agency to perform (including, without limitation, the repair and maintenance obligations described in sections 5,2 and
11.1 of this Sublease), shall automatically and without further instrument become the obligations of Sublandlord to
perform under the Sublease from and after the date that the Master lease is so terminated,
14,15 Execution, This Sublease has been submitted for discussion purposes only and shall not be
deemed an offer by either party to the other to enter into this Sublease unless and until this Sublease shall have
been executed by both parties, indicating their acceptance of the terms and conditions contained herein,
14.16 TRIAL BY JURY. SUBLANDLORD AND SUBTENANT EACH HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS SUBLEASE.
EXECUTED as of the day and year first above written.
WITNESSES:
SUBLANDLORD:
MB
ElOPMENT, INC" a Florida corporation
);Z~~
By:
Name:
Tille:
SUBTENANT:
ABKEY NO, 17, INC., a Florida corporation
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M1990680.054
17
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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 Miami,Dade County, Florida, together with all of 16th
Street (Avenue "C"), less and except the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat; thence
North 88' 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 07' 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 90' 00' 00". an arc distance of 39,27 feet, to a point of tangency; thence North 82' 24' 52" West, a
distance of 24.75 feet; thence South 88' 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
Easterty Right-of-Way line of Washington Avenue; thence North 01' 59' 11" West along said Easteriy
Right-of.Way line, a distance of 62.00 feet to the Southwest comer 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,
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1555 Washington Avenue, Suites 1-3
o Tenant Space L, which is approx. 3,748 sq. ft. (and includes the approx. 754 sq. ft.
known as Anchor I FLl, Tenant Space M, and Tenant Space N, are the First Floor Space.
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EXHIBIT "B-1"
ANCHOR SHOPS AND GARAGE
Descrlpllon of Sublandlord's Work
April 9, 1998
Sublandlord will minimally provide the following Improvements, consistent with the Project Plans and
Speclflcatlons (a copy of which has been provided to Subtenant):
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 Subtanant),
. Entry doors to be provided with hardware (not to modified by Subtenant).
. Rear service door to be provided.
(Storefront sills are excluded.)
2. Ceiling
. Exposed to structure except bathroom,
. Ceiling Included in bathroom (2'x 2' acoustic tile suspended),
3. Exterior Walls (Interior Face)
. Exposed, unfinished masonry or concrete as per Project Plans and Specifications,
4. Plumbing
, Includes three ADA compliant bathrooms with:
a, Standard lavatory and water closet.
b. VCT fiooring,
c, 36" 1 Yo" dia. grab bar and 42" 1 Yo" dia, grab bar.
d. Walls to be painted drywall.
e, Accessories (mirror, paper dispenser, soap dispenser),
, Cold water domestic service (%" line),
, Grease waste connection (except spaces along 16"' Street).
, 2,000 gallon grease trap with 2 traffic bearing manholes
, Condensate drainage (1 X" line).
, Natural gas service (except spaces along 16"' Street), valve not
included.
5. Electrical
. For typical space, Includes electric service as follows:
Food service lenant:
a, Two 4-3/0 CU in 2"C,
b, One 200 amp fusible disconnect switch with fuses 600 voit.
c, Four "Polaris" gulter taps (UL listed),
d, One sq. "0" NEHB 277/489 volt., 42 pole panel 225A,
e, Two sq. "0" NQOO 120/208 volt. MCB 225A panel,
f, Two 75 'rWA transformer 480 to 120/208 volt.
g, Greenfield- 1 - X" + 2" with feeders to transformer,
h, Grounding conductor (transformer to CWP),
i. Nipples, lockouts, and fasteners at meter room.
. Lighting is excluded,
. Exit signs are included,
6. MechanIcal
. Bathroom exhaust as per Project Plans and Specifications.
. Air conditioning system (either split OX or package system with determination dependent upon tenant
space and as per Project Plans and Specifications) based upon one ton cooling per 300 sq. It" based
upon the following criteria (with Trane or equivalent assumed):
a, Split OX Unit Equipment (Quantity: 2)
1, Air handling units shall be fully insulated draw through type, with direct drive blower and
filter rack,
M1990680.054
'-
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, internal 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 manufacturer's recommendations,
- Proper size refrigerant piping as per manufacturer's recommendations to provide listed
total and sensible MBH.
- Condensate drains with trap as per plans,
- 11," thick armaflex fire retardant piping insulation on NC condensate lines and 0;." thick
on refrigerant suction lines (paint white when exposed to sun light),
- Service valves on suction and liquid lines.
b, Rooftop Package Equipment (Quantity: 1)
1. Combination heating and cooling rooftop units shall be completely factory assembled as a
unitary package cons.isting 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 compress<;lrs
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 ileating
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 RIA section of units,
. Excluded is any distribution (i.e., ductwork) and all electrical work in connection with this
subparagraph (b) (including, without limitation, power feed, thermostat wiring, disconnection,
and cabling)
7. FIre Sprlnklel1l
. Lines and heads as required by code, with layout as per Project Plans and Specifications, (Changes,
if any, are Subtenant's obligation.)
8. Exterior Awnings
, Per Project Plans and Specifications, (Not to be modified by Subtenant.)
9. Exterior Signs
. As per Signage Guidelines established by Sublandlord,
. Electrical junction box provided within storefront, to provide power with conduit from exterior box to
interior of Subtenant space,
Sublandlord reserves the right to modify its Project Plans and Specifications in response to building code
requirements and/or construction conditions,
Subtenant is to assume full responsibility for any/or utility impact fees. connection fees/charges and/or deposits as
may be required in connection with Subtenant's Work,
M1990680.054
ii
....
EXHIBIT "B-2"
ANCHOR HOTEL RESTORATION
Drawing List
Prepared by: Zyscovich and Associates Architects
I O~~"g I
Till.
Oat. I Revilla" "
A 000 ,",over Sheet 1/5/99
A 100 First & Second Floors - Floor Plan 1/5/99
1\ 200 First Floor Reflective Ceiling & Roof Plan 1/5/99
1\ 300 nterior Elevations 1/5/99
fA, 400 rMndow Details Schedules 1/5/99
MOO Existing Conditions 1/5/99
fA, 501 Existing Conditions 1/5/99
M1 First & Second Floors - Mechanical Plan 2/16/99
M 301 Partial Ground Floor Plan - HVAC West 12/21/98 10
M303 Partial Second Floor Plan - HVAC West 12/21/98 10
FP 1 First & Second Floors - Sprinkler Plan 1/19/99
P 200 Second level Plan - Sprinkler 12/18/98 1
FP301 Partial Ground Floor - Sprinkler 12/18/98 2
E3 First & Second Floors - Electrical Plan and Riser Diagram 12/16/98 1
E201 Second Floor - Electrical 12/17/98 1
E301 Partial Ground Floor Electrical 4/30/99 17
E 505 Electrical Panel Schedules 12/17198 5
1
MI990680,054
"""
EXHIBIT "B-3"
ANCHOR PLACE SHOPS AND PARKING
ANCHOR HOTEL BUILDING
Description of Sublandlord', Anchor Hotellmprovementa
1. Existing structure is supported by new foundation.
2, Cap all utilities so that all utilities are inactive,
3. Exterior walls to be stuccoed, painted and finished.
4, Provide reinforcing steel, epoxy dowels, filled cells, steel angles, 2x6' bearing walls, 2x12 joists, blocking,
plywood decking, clips, straps, nalls, equipment and shoring as per required by drawings,
5, Joists to be No. 1 Southern Pine as per structural drawings - no fire retardant lumber Included,
6, Replace existing landing, threads and risers and repair existing structural members at staircase,
7, Protect existing ftooring, interior wainscoting and finishes,
8, Provide epoxy pressure Injection to all exterior wall cracks.
9, Existing bearing partitions to remain, remove plaster from each face,
10. Add 2x6 studs to existing bearing partitions,
11, Existing steel beam to remain, connect bearing partitions to beams.
12, Connect new joists to existing steel beams,
13, Add wood joist to each existing 2x12 ftoor joist.
14, Add angle A and clip angles to each joist.
15. Provide shoring for roof system,
16, Provide %' plywood sheathing exterior grade for nailing,
17, Remove existing roof rafters and leave ceiling joists at 2nd ftoor,
18, Provide hurricane clips and Hughes straps at existing wood beams,
19, Add straps to existing bearing partitions,
20. Provide steel dowels to connect reinforced concrete columns to existing roof tie beam, and to existing grade
beams.
21, Provide plywood decking.
22, Provide scuppers and tapered Insulation and install roof membrane,
23, Complete facade scope of work as to stucco, paint, keystone, storefront, windows, doors and roofing and :ts
drainage,
24, Provide RTU.7 Trane TCC048Fl00B, 208/1/60 (4 ton)
25, Panell03LA circuit 40-42,2 pole, 60 amp, breaker for RTU-7
M1990680.054
.
''''''
EXHIBIT "C"
RULES AND REGULATIONS
1, Security. Sublandlord may from time to time adopt appropriate systems and procedures for Ihe
security or safety of the Retail Space, any persons occupying, using. or entering the same, or any equipment,
furnishings, or contents thereof, and Subtenant shall comply wilh Sublandlord's reasonable requirements relative
thereto,
2, Return of Keys. At the end of the Term, Subtenant shall promptly return to Sublandlord all keys
for the Retail Space and Premises which are in the possession of Subtenant. In the event any Subtenant fails to
return keys, Sublandlord may retain $100,00 of Subtenant's security deposit for locksmith work and
administration,
3, Repair, Maintenance, Alterations, and Improvements, Subtenant shall carry out Subtenant's
repair. maintenance, alterations, and improvements in the Premises only during times agreed to in advance by
Sublandlord and in a manner which will not interfE!re with the rights of other Subtenants in the Retail Space.
4. Water Fixtures. Subtenant 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 Subtenant shall be paid for by Subtenant.
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. Subtenant shall not place in or move about the Premises without Sublandlord's
prior written consent any safe or other heavy article which in Sublandlord's reasonable opinion may damage the
Premises, and Sublandlord may designate the location of any such heavy articles In the Premises, Subtenant
may place a safe and related equipment in the Premises, subject to Sublandlord's review and approval of the
specifications therefor in connection with its review of the Subtenant's Plans, '
7, Bicycles, Animals, Subtenant 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 Sublandlord for such purposes.
,
8, Deliveries, Subtenant shall ensure that deliveries of supplies, fixtures, equipmetlt, 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 Sublandlord, and shall promptly payor cause to be paid to
Sublandlord the cost of repairing any damage in the Retail Space caused by any person making improper
deliveries,
9, Solicitations, Sublandlord reserves the right to restrict or prohibit canvassing, soliciting, or
peddling in the Retail Space.
10. Refuse, Subtenant shall place all refuse in proper receptacles provided by Subtenant at ils
expense in the Premises or in receptacles (if any) prOVided by Sublandlord 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,
11. Obstructions. Subtenant 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 Sublandlord's prior written consent.
Sublandlord may remove at Subtenant's expense any such obstruction or thing caused or placed by Subtenant
(and unauthorized by Sublandlord) without notice or obligation to Subtenant.
12. Proper Conduct. Subtenant 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 Subtenants in the Retail Space,
13. Employees. Agents, and Invitees, In these Rules and Regulations, "Subtenant" includes Ihe
employees, agents, invitees. and licensees of Subtenant and others permitted by Subtenant to use or occupy the
Premises,
14, Pest Control. In order to maintain satisfactory and uniform pest control throughout the Retail
Space, Subtenant shall engage for its own Premises and at its sole cost, a qualified pest extermination contractor
either designated or approved by Sublandlord, who shall perform pest control and extermination services in the
Premises at such intervals as reasonably required or as may be directed by Sublandlord,
M1990680,054
"'"
EXHIBIT "0"
Prohibited Uses
" 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-<:alled "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,
6, In no event may the primary business allhe Premises be the sale of flowers.
MI990680,054
"-'
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Exhibit "E"
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AN(WO~ S~OPS
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T'MANT SIGN STANDADDS
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ColllnI AYlL 11dIh Scree' Com. Areada '
Jtecll/llllllr aJull'li"u.. .111\ mouello, 1'Ii1. ora JIfO"l4" ia ~ NY ~(- ...... - 6001 to provWa
.uppGR and n:l&IId eI...lried po.- (lilt 1....11& tI"'.... .
"-n.. slllll .IIeUIM illClhldual ... l:tftlbol. lilt d_lIlvo cJ=uIlI. iIIullll"''' ...... ....10
tha a1umlaUftllllOllnlil,1'Ii1l ud =0-..4 14 oIOGlriee1 ".- ...,pl.... eroup ....
TenUlt.lpI.lla11 notallceed IA ane of ,'.0. . 10'.0",
l)a lba bay., '..,....." Ie Iba d~
O"e I'" lIOv... cJaccrica1 clrail II. ailo been pIOYIW 1"'" NJot.......I.lIlIIlMII- sip....
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16111 SInI& aad WublnllOft Ave.. P~la'"
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T.u. .1",... 1. 10 be IocIIe4 In dM /I'.rr wide ~ paM ~'lhiI_ ... to .." .-
One 13", 110..... &I.ulcal cllC1lil bu II-. PflIvldtd Ildll"ulplIellllp IOCIIioI."Ihe.._..-.
for IRlIlIIialll*llenlllt sIIu...n.. ...oldie dID IUIIIlClt __ ~ Ill. tt. ($a JItIilA ...t.II#w.., ,.,.).
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Tllne Nbulll a1l111l1aam mllll1\lIIIlIIII lie praoidld all die _ rn.u.c. I. 6'0lIl"" JIuI u...
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tlo boll Ilana an lIIow'" so at ID aIIIawn IIIWmIllll ~ of die IlIfthM 11M.
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lodIYldwol lIulWl.., ...d~I...... :
Tt1IIIll sllll shall be ladIY\dutl 0pCl\ c:hund IaMn or d~.w-. wldllIJlllMlI... Ulq,ool-OIlo1.
mov."'" III nu4........ 010lIl die &aM cqe of.. __ .~.. II.... I.... -- till ....iq.
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TENANT NAME u
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LAYOUT. RECEIVING DOOR SIGN
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EXHIBIT .. Ft'
BREAI{FAST MENU
I BEVERAGES ~
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Julcts - Assort.d
Coff..
T.I
MUll
Soft Drlalls
lot Claocollt.
Milaosas
Bloody Marys
St.all . Eggs
SerVed 'III Bull Bro'llllS or Crits . Tout
Two Eggs, lay Styl.
S,m11 'III Cbollll oIIaCOD or Saua,.,
Bull lro'llllS or Crits . Tout
I GMEI.mES ~
I CEREW ,
Plaia
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Ia. . Ch.ts.
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Issort.d Dry C.r.als
I SmES I
I PANCAKES ,
Bag.1 , Crea. Chees.
Mumas -Issort.d
DlDlsIa - Issort.d
Toast
lasla.d Browas
Fruit - S.asoaal
Bacoa
Sauslg.
R.guIar Stacll
Short Stacll
.
lIGUlE SPECIALTIES ~
Fr.ach Toast
Grouad B..rlasla 'II/ Eggs
fruit . Yogurt
Z-Z-Z-Z Special
Two Eggs, Two Blcoa Strips, two Sausag.,
Two PaaclII.s
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Crlapy Onion Ring.............. ~.... 1.75
O,lglnal Fudd Fri.................... 1.30
Ch.... Frl.. with Spicy R...... D.....ng . . . . . . .. 1.69
Bacon Ch.... FrI.a with Spicy Rlncb D........ .. 1.99
Chili Ch.... Fri...................... 1.98
Double
2.811
2.110
3.211
3.911
3.911
Cholc. olr
Col. Slaw, Com or BBQ Baked B.ana. . . . . .
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Fudd Dlnn.r Salad. . . . . .. . . . . . . . . . . . . . . . . .. 2.48
Bowl of Soup with Fudd Gullo Broad ........ 2.49
c... 01 Soup............................. 1.81
Idaho Baked PotMO ......... . . . . . . . . . . . . .. 2.00
with Ch.... and Bacon add.............. .78
Shak.. . Mafta. . . . . .. . . . . . . . . .. . . II . . . . . . .. 2.4.
Chocolate, Str.wberry, Vanlll.. OI'llCl . Mocha
Speclaltylhall.. ........................2."
Root .... FI.t. .. .. .. .. .. .. .. . .. .. .. .. . . .. .. . .. .. . . . . ... 2.ge
~ loft Drink. UnllmItlldRMII&I........................ 1.40
IIIIk, Co"'" or T.a....................................... 1.40
BOTTLED BEER
Dom..tloB.., ...............2.50
PremIum ....................2.95
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1
RIDER NUMBER 1 TO LEASE
dated
,1999
Abkey No, 17, Inc.
OPTION TO RENEW
A. Sublandlord hereby grants Subtenant the option to renew (the "Renewal Option") the Initial Term
(not to include, for purposes of this Rider only, the Renewal Term, as hereinafter defined) for one (1) additional
term of ten (10) years (the "Renewal Term"), commencing as of the date Immediately following the expiration of
the Initial Term, such option to be subject to the covenants and conditions hereinafter set forth in this Rider.
B, Subtenant shall give Sublandlord written notice (the "Renewal Notice") of Subtenant's election to
exercise its Renewal Option not later than one hundred eighty (180) days prior to the expiration of the Initial Term
of the Sublease; provided that Subtenanfs failure to give the Renewal Notice by said date, whether due to
Subtenanfs oversight or failure to cure any exis'ting defaults or otherwise, shall render the Renewal Option null
and void.
C, Subtenant shall not be permitted to exercise the Renewal Option at any time during which
Subtenant is in default under the Sublease, subject to applicable notice and grace periods (if any). If Subtenant
fails to cure any default under the Sublease prior to the commencement of the Renewal Term, subject to
applicable notice and grace periods, the Renewal Term shall be Immediately canceled, unless Sublandlord elects
to waive such default, and Subtenant shall forthwith deliver possession of the Premises to Sublandlord as of the
expiration or eartler termination of the Initial Term of the Sublease.
0, Subtenant shall be deemed to have accepted the Premises In "as-Is" condition as of the
commencement of the Renewal Term, subject to any other repair and maintenance obligations of Sublandlord
under the Sublease, it being understood and agreed that Sublandlord shall have no additional obllgatio'1 to
renovate or remodel the Premises or the Retail Space as a result of Subtenant's renewal of the Sublease, .
E. The covenants and conditions of the Sublease in force during the Initial Term, as the same may
be modified from time to time, shall continue to be in effect during the Renewal Term, except as follows:
(1) The "Commencement Date" and the "Rent Commencement Date" for the purpose of the
Sublease shall be the first day of the Renewal Term.
(2) The Minimum Rent for the Renewal Term shall be an amount equal to the greater of (i)
then Fair Market Rental Value of the Premises or (II) the following:
First Floor Space
PERIOD
ANNUAL MINIMUM RENT
MONTHLY PAYMENT
(PLUS SALES TAX)
Rent Commencement Date.
Expiration of the fifth (5th)
Sublease Year
$153,842,00
$12,820,17
Beginning of the sixth (6th)
,Sublease Year.
Expiration of the Renewal Term
$177,510,00
$14,792,50
Second Floor Space
PERIOD
ANNUAL MINIMUM RENT
MONTHLY PAYMENT
(PLUS SALES TAX)
Rent Commencement Date.
Expiration of the fifth (5th)
Sublease Year
$4,543,00
$378,58
Beginning of the sixth (6th)
Sublease Year-
Expiration of the Renewal Term
$5,192.00
$432,67
(3) "Fair Market Rental Value" of the Premises shall be an amount determined by
Sublandlord on the basis of the then-prevailing market rental rate for retail space comparable to the Premises as
MI990680.054
-1-
.
.....-'
reflected In one or more subleases executed by Sublandlord with new subtenants of the Retail Space within the
twelve-month period Immediately preceding commencement of the Renewal Term. If Sublandlord has not
executed any lease with new subtenants within said twelve-month period, the new prevailing market rental rate
determination shail be based on new leases for premises comparable to the Premises herein, as executed within
said twelve,month period by owners of other comparable retail properties located in Miami Beach, Florida,
Between one (1) year and nine (9) months prior to the Expiration Date of the Initial Term, Subtenant shail
have the right to request Sublandlord's determination of the Fair Market Rental Value for the Renewal Term.
Sublandlord shall notify Subtenant of its determination no later than eight (8) months prior to the Expiration Date
of the Initial Term so that Subtenant shail have sufficient time to decide whether to elect to renew the Sublease,
if such amounts are greater than the amounts set forth in subsection E(2), above, If, despite good faith
negotiation, Sublandlord and Subtenant cannot agree on the Minimum Rent for the Renewal Term on or before
seven (7) months prior to the expiration date of the Initial Term, then within five (5) business days, Sublandlord
and Subtenant shail each select an Independent disinterested MAl appraiser, If either party fails to select and
engage an appraiser within such time. the Fair Mar1<et Rental Value will be determined by the appraiser
engaged by the other party, Each appraiser shall prepare an appraisal report and submit it to both Sublandlord
and Subtenant within ten (10) business days after each has been selected, Each party shall pay the costs of its
appraiser, If the higher of the two appraisals of Fair Market Rental Value does not exceed 105% of the lower of
the two appraisals of Fair Market Rental Value, then the average of the two appraisals shall be the Fair Mar1<et
Rental Value for the Premises. If the higher of the two appraisals of Fair Mar1<et Rental Value exceeds 105% of
the lower of the two appraisals of Fair Mar1<et Rental Value, then within seven (7) days after receipt by
Sublandlord and Subtenant of both appraisal reports, the appraisers selected by Sublandlord and Subtenant
shall agree on a third appraiser to determine Fair Market Rental Value, If the appraisers are unable to agree on
the third appraiser within such time, then the third appraiser shall be chosen by the President of the Appraisal
Institute for Miami-Dade County, The third appraiser shall not perform a third appraisal, but shall, within ten (10)
days of designation) select only one of the appraisers' appraisals as the Fair Mar1<et Rental Value of the
Premises, The decision of such third appraiser shail be final and binding on the parties and the fees and costs
of such third appraiser shall be borne by the unsuccessful party, At a minimum, each of the MAl appraisers
shall be disinterested commercial real estate appraisers in Miaml,Dade County experienced In the commercial
leasing field, It is the parties' intent to complete such arbitration process prior to the deadline for Subtenant to
provide its Renewal Notice for the Renewal Term, However, the submission of such dispute to such arbitration
process shall In no event relieve Subtenant of its obligation to provide its Renewal Notice not later than one
hundred eighty (180) days prior to the expiration of the Initial Term of the Sublease, and if the dispute is not yet
resolved, Subtenant must nonetheless elect to exercise its Renewal Option and be bound by the result of such
arbitration process, If such dispute is not finally resolved as of the commencement of the Renewal Term, then
Subtenant shall pay the Minimum Rent for the Renewal Term as determined by Sublandlord. until such dispute
Is finally resolved, Should Subtenant ultimately prevail, then Subtenant shall receive a credit against Minimum
Rent to become due during such Renewal Term, such credit to be equal to the difference between the Minimum
Rent then being paid by Subtenant and the Minimum Rent that Subtenant would have been paying, as
determined by such arbitration process,
(4) If Minimum Rent is the rental set forth in subsection E(2), above, then the Breakpoint for
each year of the Renewal Term shail be as follows:
PERIOD
BREAKPOINT
Rent Commencement Date -
Expiration of the fifth (5th) Sublease
Year
$2,639,750.00 PER SUBLEASE
YEAR
Beginning of the sixth (6th)
Sublease Year-
Expiration of the Renewal Term
$3,045,033.33 PER SUBLEASE
YEAR
If the Minimum Rent is the Fair Mar1<et Rental Value determined by the procedures set forth in
subsection E(3). above, then the Breakpoint for each year of the Renewal Term shall be the natural breakpoint
determined by dividing the annual Minimum Rent for the Premises by the percentage set forth in item 16 of the
Sublease Summary,
(5) Following expiration of the Renewal Term as provided herein, Subtenant shall have no
further right to renew or extend the Sublease.
F, Subtenant's option to renew the Sublease shall not be transferable by Subtenant, except in
conjunction with a permissible Transfer in accordance with the applicable provisions of the Sublease,
M1990680.054
-li-