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FOURTH AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT

(RETAIL PARCEL)
This Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) (this
"Amendment") is made and entered into thisday of, 2014 ("Effective Date"),
by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and
BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to
Bayside Center Limited Partnership ( "Developer").
WITNESSET,:Ii
WHEREAS, City and Developer are the current landlord and tenant, respectively, under
that certain Amended and Restated Lease Agreement: dated as of October 15, 1985, as amended by
that certain First Amendment to Amended and Restated Lease Agreement
, dated as of August 19,
1986, as further amended by that certain Second, Amendment to Amended. and Restated Lease
Agreement dated as of November 24, 1987, as further
, amended:by that cert i :Third Amendment
to Amended and Restated Lease Agreement dated as of Apel 15, 1993 and
as` further amended by
that certain Release and Settlement Agreement dated as of December 30, 2008 (collectively and
together with any attachments, exhibits o r riders thereto, the ":Lease") for certain premises located
at Bayside Marketplace in Miami, Florida, as more particularly described in the Lease (the "Leased
Property").
A memorandum of the Lease was recorded in Bogk 12684, at Page 157, and
supplemented in Book 13492, at Page 3199,'. both of the Public Records of Miami-Dade County,
Florida;
WHEREAS, Developer sub ground leased a`part of the Leased Property to SkyRise Miami,
LLC ("SkyRise") pursuant to that eertam Sub Ground Lease dated as of March 29, 2013, as
amended by First Amendment to Tower Sublease dated as of
, 2014 (the "Tower
Sublease"). A short form of the Tower Sublease Was recorded in Book, at Page, of the
Public Records of Miami-Dade County, Florida; and
WHEREAS, City and Developer desire to modify certain provisions of the Lease, and City
desires to recognize the Tower Sublease, on the terms and conditions set forth herein, and subject
to approval from the Miami City Commission, approval of a referendum and any required
regulatory and land development permits for construction of the 1000 foot mixed use commercial
and recreational tower contemplated by the Tower Sublease (the "Tower")
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer
hereby agree that the foregoing recitals are true and correct, and further agree as follows:
1.

Defmitions.
All capitalized terms used in this Amendment shall have the definitions ascribed to such
terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to
the Lease (as defined in the first recital above), as modified by this Amendment. The term "Lease
^ t^ l4-13,.s-
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Term" shall refer to the Original Term (as modified in this Amendment) and any applicable Renewal
Terms.
2.

Original Term.
The Original Term, as currently defined in Section 2.1(b) of the Lease, commenced on
December 1, 1985 and is scheduled to terminate on November 30, 2030. The Original Term is
hereby amended and extended such that the Original Term now expires on November 30, 2060. All
references in the Lease to the Original Term shall refer to tl e''"Original Term as extended by this
Amendment.
Within thirty (30) days after the Effective Date, the City Manager and Developer,
upon request of City or Developer, shall execute one or moxe written memoranda for the Lease or
amendments to any existing memoranda for the Lease in such form as will enable them to be
recorded in the Public Records of Miami-Dade County, Florida setting forth the beginning and
termination dates of the modified Original Term.
3.

Renewal Terms.
(a)
Subject to approval of the Ground Lease Referendum (as hereinafter defined) by the
City's electorate, Section 2.1(c) of the Lease is hereby amended and restated in its entirety as
follows:
(c)
Renewal Terms. Developer is hereby granted;four (4) options to
renew this Lease' (each, a' Renewal Option") fiomraime to time upon the same
terms and conditions, except as otherwise expressly provided in this Lease, for
up to four (4) additional consecutive terms (each called a "Renewal Term"), with
the first three (3) additional Renewal Terms being for fifteen (15) years each and
the final Renewal Term being for eight(8) years, commencing at the expiration
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the Original 'Perm or the previous Renewal Term, as the case may be. So long
as Events of Developer's Default shall not have occurred and be continuing at
the time Developer exercises a Renewal Option, Developer may exercise each
Renewal Option by giving the City express written notice thereof on or before
the latter of (i) the date that is two (2) years before the date on which such
Renewal Term is to commence or (ii) thirty (30) days following written notice
from City advising Developer that Developer has failed to furnish notice of its
exercise of the applicable Renewal Term by the date set forth in the preceding
clause (i), which notice shall state in bold capitalized large font letters that such
notice constitutes the final notice to Developer of its right to exercise the
applicable Renewal Option. Within sixty (60) days after commencement of a
Renewal Term, the City Manager and Developer, upon request of either party
shall execute one or more written memoranda in such form as will enable them to
be recorded among the Public Records of Miami-Dade County setting forth the
beginning and termination dates of the Renewal Term, determined in accordance
with this Lease. The total of all Renewal Terms, if all Renewal Options are
validly exercised, is fifty three (53) years.
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(b)
Notwithstanding anything in the Lease or in this Amendment to the contrary,
Minimum Base Rental (as defined below) for the first Rental Year of each Renewal Term shall be
reset at Fair Market Rent, as defined and determined in accordance with the terms and conditions
provided in Exhibit "A" attached hereto, and shall not be subject to adjustment by the CPI
Escalation (as defined below). Minimum Base Rental may be increased after the first Rental Year of
any Renewal Term by the CPI Escalation, as provided in Section 4(c) below. In no event shall the
Minimum Base Rental for the second, third or fourth Renewal Terms increase by more than fifteen
percent (15%) over the Minimum Base Rental then applicable.
4.

Rental.
Section 2.5 of the Lease is hereby deleted m its ,entirety. From and after the
Effective Date, the only scheduled rental payments
Rental") due to City under the Lease shall be
the following:
(a) Amount of Rental.
Developer covenants that it shall pay to City as Rental for the
Leased Property Minimum Base Rental, Percentage Rent (as defined below): and, to the extent
applicable, Tower Rent (as defined below).
Developer shall pay the monthly Rental to the City of
Miami, Department of Finance at the address noted below:
City of Miami
Department of Finance
Attention: Treasury Management/Receipts
444 SW 2"d Avenue, 6th Floor
Miami, Florida 33130-1910
(b) = Minimum Base Rental.
Mmin rim Base= Rental shall be payable by Developer on the
Effective Date, and thereafter on the first (1 't)' :day .of each calendar month for the balance of the
Original Term in equal monthly installments. Minimum Base Rental shall be $1,540,000 per annum
("Minimum Base Rental"), as it may be increased by the CPI Escalation, as provided in Section 4(c)
below.
Minimum Base Rental for any partial calendar month during the Lease Term shall be
prorated based upon the number of days in the partial calendar month within the Lease Term against
the total number of clays in the applicable calendar month. All references in the Lease to "Annual
Basic Rental" shall hereinafter refer solely to Minimum Base Rental, as set forth herein.
(c) Consumer Price Index (CPI) Escalation.
(i) Developer agrees that Minimum Base Rental and Tower Fixed Rent, as
applicable, shall be increased every Rental Year during the Lease Term (each, a "CPI Escalation
Year") following the Effective Date by an amount equal to the percentage increase during the year
immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the
monthly index published by the Bureau of Labor Statistics of the United States Department of
Labor as the Consumer Price Index for All Items, Miami-Ft. Lauderdale, Florida, Base Year 1982-
84= 100. The CPI adjustment to Minimum Base Rental or Tower Fixed Rent, as applicable, shall be
hereinafter referred to as the "CPI Escalation."
The amount of the CPI Escalation to Minimum
Base Rental and Tower Fixed Rent shall be capped at three percent (3%) each time the CPI
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Escalation is made (the "Maximum CPI Percentage"). The CPI adjustment set forth herein shall not
result in a reduction of Minimum Base Rental or Tower Fixed Rent. Notwithstanding anything to
the contrary set forth herein, the first CPI Escalation Year with respect to Minimum Base Rental
shall be the Rental Year commencing January 1, 2016 and the first CPI Escalation Year with
respect to Tower Fixed Rent shall commence on January 1st of the second (2
nd) full Lease Year (as
such term is defined in the Tower Sublease) of the Tower Sublease.
(ii)
The CPI Escalation of Minimum Base Rental or Tower Fixed Rent, as
applicable, for the CPI Escalation Year shall be equal to Minimum Base Rental or Tower Fixed
Rent, as applicable, in effect for the Rental Year immediately preceding the CPI Escalation Year
multiplied by the "CPI Percentage" (as defined below).
not to exceed the Maximum CPI
Percentage. The CPI Percentage shall equal the fraction (i) whose;. numerator equals the monthly
Index published immediately prior to the CPI Escalation Year (or the nearest reported previous
month), and (ii) whose denominator is the same monthly Index published immediately prior to the
Rental Year that preceded the CPI Escalation Year (or the nearest reported previous month). If the
Index is discontinued with no successor Index, City shall select a commercially reasonable
comparable index.
(iii)
City shall compute the .CM Escalations and send a notice, with calculations, to
Developer setting forth the adjusted Minimum Base Rental or Tower Fixed Rent within sixty (60)
days of the commencement of each CPI Esc`itlation Year or as
soon gas such Index is available. In the
event Minimum Base Rental of
Tower Fixed Rent increases, Developer shall pay to City within
thirty (30) days of receiving such notice, the additional Mnumm Base Rental or Tower Fixed Rent
owed for the months that have elapsed in the cuttent'Rental Year.
(d) PercentageRent.
Percentage , Rent shall be due and payable to City pursuant to the
terms and conditions set forth on Exhibit "B" attached hereto.
As. used herein, the term
"Percentage Rent" means those amounts described in Exhibit "B" attached hereto.
(e) Independent Operating Entity and Bank Account.
Developer will establish (if not
currently established) an operating entity that is unique and distinct to the operations of Developer
at the Leased Property, as well as:
one or more bank accounts through which deposits of Gross
Receipts (as defined in Exhibit "B" attached hereto) generated from such operations will be made.
These particular deposits of Gross Receipts will not be commingled with those from any other
operations of Developer ol: any other affiliated organizations.
City acknowledges and agrees that
Bayside Marketplace, LLC is an independent operating entity for purposes of this provision.
(f) Tower Rent.
Commencing on the date that the Tower opens to the general public
for business (the "Opening Date"), Developer shall pay the following amounts to City (collectively,
"Tower Rent") in the manner set forth below:
(i)
$1,059,082 per annum ("Tower Fixed Rent"), as it may be increased
pursuant to Section 4(c) above, payable in equal monthly installments on the first (1
St) day
of the first (1 st
) full calendar month following the Opening Date and thereafter, on the first
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(1 St)
day of each calendar month during the balance of the term of the Tower Sublease.
Tower Fixed Rent for any partial calendar month during the Lease Term shall be prorated
based on the number of days in a particular calendar month within the Lease Term against
the total number of days in the applicable calendar month. On the tenth (10 th) anniversary
of the Opening Date and every ten (10) years thereafter during the term of the Tower
Sublease, the Tower Rent shall be determined by an appraisal in accordance with Exhibit
"A" attached hereto (the "Tower Fixed Rent Adjustments"). In no event shall . Tower
Fixed Rent increase by an amount greater than ten percent (10%) over Tower Fixed Rent
for the prior year.
(ii)

"Tower Percentage Rent", as deemed in Exhibit "B" attached hereto,


pursuant to the terms and conditions set forth in Exhibit
Notwithstanding the foregoing or anything to the coptrary set forth in this
Amendment, Developer's obligation to pay Tower Percentage Rent to City shall be null and void
and of no further force and effect upon the expiration or any sooner termination of the Tower
Sublease; provided, however that if Developer enters into a Sublease with a new Tower operator,
then Developer's obligation to pay Tower Percentage Rent as provided herein, shall renew as of
the date the new Tower operator resumes operation of the Tower and the Tower is open to the
general public for business.
(g)
Submerged Land Fees. In addition to the Rental described above, commencing upon
the effective date of an agreement with the Florida Department of Environmental Protection
("DEP") acting on behalf of the Board of Trustees
`'of the Internal Improvement Trust Fund (the
"State"), for use of any submerged lands at the Leased Property (the "Submerged Lands"),
Developer shall be obligated to pay alliees as determined by DEP for the use of the Submerged
Lands and pay for all;
expenses incurred in obtaining the State's approval and waiver ("Submerged
Land Fees').
The annual Submerged Lands Fee ,shall be paid to the City at the same location as
Minimum Base Rental and the City shall remit payment to DEP. Developer shall remit the annual
Submerged Lands Fees to the City within thirty (30) business days of the Developer being billed by
the City for the same. Developer shall further be obligated to submit to the Lessor for remittance to
DEP any and all documents required by DEP which may include, but is not limited to, disclosure of
any income from wet slips for the Submerged Lands.
City shall promptly notify Developer of any
intention by DEP to impose Submerged Land Fees with respect to the use of any Submerged Lands
at the Lease Property (the "Submerged Land Notice"); it being understood and agreed that (i)
Developer shall have the right, in its sole and absolute discretion to terminate this Amendment and
the corresponding Fourth Amendment to Bayside Parking Garage Lease Agreement of even date
herewith (the "Garage Parcel Amendment") upon written notice to City given within one hundred
eighty (180) days following Developer's receipt of the Submerged Land Notice or any similar
notice from DEP or the State and (ii) if Developer has not received a Submerged Land Notice from
City or any similar notice from DEP or the State within one hundred eighty (180) days following
the formal certification of the Ground Lease Referendum, then this Section 4(g) shall be deemed
null and void and of no further force and effect with respect to the Lease.
Notwithstanding the
foregoing or anything to the contrary set forth in the Lease or this Amendment, if Developer
procures a waiver of Submerged Land Fees or confirmation from the State or DEP that no
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Submerged Land Fees will be imposed during the Lease Term, as it may be extended, then upon
delivery of such waiver or confirmation to City, this Section 4(g) shall be deemed null and void and
of no further force and effect with respect to this Lease. Developer agrees to use commercially
reasonable efforts to procure such a waiver or confirmation from the State or DEP prior to the date
of the Ground Lease Referendum.
(h) Late Charge. Notwithstanding anything to the contrary set forth in the Lease, any
installment of Minimum Base Rental, Percentage Rent, Tower,Rent or any rent component or
expenses due to City pursuant to the Lease, as amended hereby, which is not paid within ten (10)
days following written notice of Developer's failure to pay 'w en due, shall accrue interest at an
annual rate equal to two percent (2%) over the prime rate charged. by Citibank, N.A. from time-to-
time, but in no event in excess of the maximum interest rate permitted by law (the "Default Rate"),
from the date such payment was due until the dare such payment is paid to the City and an
administrative overhead charge of 0.5% of the installment of Rental that : _ hasnot been timely paid.
It is agreed that the foregoing administrative charge is not a penalty but is regulatory fee. From
and after the Effective Date, all references in the Lease to the "Default Rate" shall mean the Default
Rate as defined herein. If Developer fails to cure a ` late payment within ten days following
written notice of such failure from City, as provided herdmore than once in'any Rental Year,
then commencing with the second late payment ,that that is not imely cured by Developer, the Default
Rate shall be adjusted for the balance of'such Rental Year to be twelve percent (12%) per annum,
but in no event in excess of the maximum interest rate emitted bylaw.
(a) Alterationsand.Renovations. Section 3.14 of the Lease is hereby amended and
restated in its entirety as folio-ws,
Section 3.14. Alterations and Renovations. After the completion of
construction of the Developer Improvements, Developer from time to time may
make such alterations or renovations;thereof as it shall deem desirable; provided,
however, that no renovation or alteration which materially affects the exterior
appearance of the Improvements or the overall character and appearance of the
public circulation areas shall be made until such time as the City Manager shall
have approved, in writing, definitive construction plans and specifications
therefor, in compliance with all applicable codes, rules and regulations, which
approval shall not be unreasonably withheld or delayed. Developer must secure
and pay for any and all permits and approvals required to perform any of the
contemplated alterations or renovations.
(b) Renovation Work. Developer, at its sole cost and expense, shall complete the
construction and installation of certain Capital Improvements to the Retail Parcel and the Garage
Parcel that are consistent with' the Capital Improvements depicted or described on Exhibit "C"
attached hereto and made a part hereof (the "Renovation Work"). The Renovation Work is hereby
approved by City and shall not require any further approvals or consents from City, except for any
required building and land development permits and approvals which must be applied for by
Renovations
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Developer. Developer covenants that by the earlier to occur of (i) five (5) years from the Effective
Date or (ii) the grand opening of the tower contemplated by the Tower Sublease, Developer shall
expend no less than Twenty-Two Million Dollars ($22,000,000) (the "Minimum Level of
Investment") in connection with the Renovation Work, which shall include, without limitation, all
third party soft and hard costs and expenses incurred by Developer to complete all Renovation
Work. Upon completion of the Renovation Work, Developer shall furnish to City copies of
invoices and receipts in connection therewith as shall be required to reasonably demonstrate
Developer's achievement of the Minimum Level of Investment.
(c) Bonding. Developer agrees to post (orcauseits contractor(s) to post) payment
and performance bond(s) in favor of City, in substantially the form.prescribed by 255.05, Fla. Stat.
for the full amount (i.e., 100%) of the cost of all alterations, reeonstruction, additions, and other
renovations performed by Developer; it being understood and agreed that Developer shall have no
obligation to post payment and performance bonds in connection withle construction, alteration,
reconstruction, addition and other renovations to be performed by SkyRise with respect to the
Tower pursuant to the terms of the Tower Sublease. The bond shall be issued by a Florida licensed
surety company rated A: V or better per A.M. Best's Key Rating Guide aril shall be subject to
approval as to form by City's Risk Manager and City Attorney. Both City and Miami Dade County
shall be listed as obligees.
(d) Operating Standard. In Section 4.2 of the Lease, the reference to "Harborplace in
Baltimore" is hereby deleted and replaced with''Faneuit Halt in Boston".
(e) Tower Building Height/Maximum Allowable Square Footage. The Tower building
height and maximum allowable square footage shall be as permitted in the applicable land
development regulations, as per approved development warrant file number 13-0077 dated January
13, 2014 and attached hereto as Exhibit "D" (the `Tower Warrant") which modifies approved Class
II Special Permit 10-0141
(f) Retail Parcel Maximum Allowable Square Footage for Retail Parcel and Garage
Parcel. Developer may only build up to the maximum allowable Leaseable Area of 267,000 square
feet of enclosed retail space, including restaurants, at the Retail Parcel and Garage Parcel,
collectively. The foregoing maximum allowable Leasable Area does not include the allowable
square footage for the "1ower, as set forth in the Tower Warrant, which shall be in addition to the
maximum allowable Leaseable Area for the Retail Parcel and Garage Parcel. Developer agrees to
expand the Parking Garage as part of the Renovation Work to add 448 additional parking spaces at
the Parking Garage. In addition, Developer shall have the right to further expand the Parking
Garage, in its sole and absolute discretion, to provide up to an additional 296 parking spaces at the
Parking Garage.
6.

Transfers.
(a)

Section 5.1(a) and (b) of the Lease are hereby amended and restated in their entirety
as follows:
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"Transfer" means:
(i) any partial or total sale, assignment, gifting or conveyance (other
than in connection with any financing or refinancing contemplated
by the Lease) of Developer's leasehold estate in the Lease or any
contract or agreement to do any of the same;
any transfer of membership interests in Developer resulting in the
direct or indirect beneficial ownership `of General Growth
Properties, Inc. being less than fifty-.percent (50%) of Developer
(a "Change of Control");
any merger or consolidation 01. Developer with any other person
that is not an affiliate of Developer, or the ;sale of all or
substantially all of the assets of Developer to any person that is
not an affiliate of Developer.' For purposes hereof, "affiliate"
shallmean any person or entity eoritrolling, controlled byor under
common control with Developer (with the term "control" and
correlative terms tneanug the possession, directly or indirectly, of
the power to direct or cause
,the
direction, of management and
policies of the business and affairs of Developer by reason of the
ownership of voting nntetests, b\Lonti IL 01 otherwise).
any person, firm corporation or other entity which owns, directly
or indirectly; legally of beneficially, more than fifty percent (50%)
of the membership or other equity interests in Developer, but shall
not include any :'equity holder of an Owner whose shares are
publicly traded.
(b) In Section 5.2(c) of the Lease, the reference to "stock of the General Partner of
Developer" shall be deleted and replaced with "the membership interests of Developer" and the
reference to "stock" shall be deleted and replaced with "membership interests".
(c) In Section 5.3 of the Lease, (i) all references to "limited partner" or "partner" shall
be deleted and replaced with "member" and (ii) the word "limited liability company" shall be added
to Section 5.3(e) following the word "joint venture"; (iii) the reference to "subparagraphs (a)
through (j)" in the first paragraph of Section 5.3 shall be deleted and replaced with "subparagraphs
(a) through (1)"; and (iv) the following permitted Transfers shall be added to the end of Section 5.3:
(k) Any Transfer resulting from the pledge of any direct or indirect ownership
interests in Developer as security for a loan made by an Institutional Investor to
Developer or any direct or indirect beneficial owner of Developer.
()
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(1)
Any Transfer of direct or indirect ownership interests in Developer that does not
result in a Change of Control.
(d)
Section 5.4(b) of the Lease is hereby deleted in its entirety and shall be deemed
inapplicable and of no further force and effect from and after the Effective Date.
(e)
Section 5.8 of the Lease is hereby deleted in its entirety and shall be deemed
inapplicable and of no further force and effect from and after the Effective Date.
(f)
In the event of a Transfer Fee Transaction (as hereinafter defined), Developer or
transferee shall pay to City a fee (the "Transfer Fee"), iu connection with such Transfer Fee
Transaction as follows: during the initial five (5) years following the Effective Date, the Transfer
Fee shall be 2% of the Gross Sale Amount (as hereinafter defined); between the fifth (5 th
)
anniversary and the tenth (loth
) anniversary of the Effective Date, the Transfer Fee shall be 1.5% of
the Gross Sale Amount; between the tenth (10
fl ') anniversary of the Effective Date and the twentieth
(20th)
anniversary of the Effective Date, the Transfer Fee shall be 1% of the Gross Sale Amount;
and after the twentieth (20th
) anniversary of the Effective Date, the Transfer Fee :,shall be 0.75% of
the Gross Sale Amount of such transaction. Developer shall pay to City the Transfer Fee at the
time the Transfer Fee Transaction closes` and the Gross Sale Amount has been received by
Developer. A "
Transfer Fee Transaction" shall mean any Transfer other than a permitted Transfer
pursuant to Section 5.3 of the Lease, as amended herein . "Grass Sale Amount" shall mean the
gross sale proceeds actually received by Developer upon`= the consummation of any Transfer Fee
Transaction.
Developer shall furnish to City a copy of a financial statement, a closing statement, a
Transfer document, or other similar document
in
connection therewith as shall reasonably
demonstrate the Gross Sale mount.
(a)
The second sentence of Section 6.1(a) pertaining to a cap on any financing or
refinancing equal to the amount of the Development Costs is hereby deleted in its entirety and shall
be deemed inapplicable and of no
further force and effect from and after the Effective Date.
Developer agrees that the amount of any financing or refinancing procured by Developer from and
after the Effective Date to be secured by a Leasehold Mortgage shall in no event exceed eighty
percent (80%) of the fair market value of Developer's leasehold interest in the Leased Property and
fee interest in the Improvements to be encumbered by the lien of a Leasehold Mortgage, as
determined by an appraisal conducted by Developer's Leasehold Mortgagee.
(b)
If Developer engages in any new financing or refinancing with respect to the
Retail Parcel or the Garage Parcel (or both), then City shall have the one-time right to participate in
such financing or refinancing in an amount equal to three percent (3%) of the first $125,000,000 of
Loan Proceeds (as hereinafter defined), for a maximum total participation interest of $3,750,000
(the "Participation Interest").
By way of clarification, if, for example, Developer engages in a
financing or refinancing which results in Loan Proceeds of $100,000,000 with respect to
Developer's interest in the Retail Parcel and Loan Proceeds of $25,000,000 with respect to
Developer's Interest in the Garage Parcel, the Loan Proceeds threshold of $125,000,000 will be
achieved based upon the sum of the Loan Proceeds for both the Retail Parcel and the Garage Parcel
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financings. However, if Developer's first financing transaction results in Loan Proceeds that are
less than $125,000,000, then the difference between $125,000,000 and the amount of the Loan
Proceeds from the first financing shall be considered the "Loan Proceeds Differential" (e.g., if
Developer's first financing transaction results in Loan Proceeds equal to $110,000,000, then the
Loan Proceeds Differential shall be equal to $15,000,000). In the event of a Loan Proceeds
Differential, City shall be entitled to participate in the subsequent refinancing by Developer in an
amount equal to three percent (3%) of the Loan Proceeds Differential. The Participation Interest
(or the applicable portion thereof if the Participation Interest is not otherwise paid from one
financing transaction) shall be paid to City upon the consumrriation of the applicable financing or
refinancing transaction(s). City acknowledges and agrees ,;that::in no event shall City be entitled to
participate in any subsequent financing or refinancing once
'
tke P articipation Interest has been paid
in full and that the provisions of this Section 7(b) shall be deemed null and void and of no further
force and effect upon such payment in full. If requested by Developer, City agrees to certify in
writing for the benefit of Developer, any prospective Lender or any prospective purchaser of all or
any portion of Developer's interest in the Retail Parcel and Garage Parcel;.,that the Participation
Interest has been paid in full. For purposes of ibis Section 7(b), "Loan Proceeds" shall mean the
net proceeds available to Developer from any financing or refinancing after deduction of (i) all third
party costs and expenses incurred by Developer in connection with the financing or refinancing
transaction, including, without limitation, all fees, costs and expenses imposed by Developer's
Lender and any rating agencies, as well as title and survey costs, escrow fees, appraisal costs,
consultant costs and attorneys' fees and costs and (ii}all amounts required to repay then-existing
debt being refinanced or to repurchase Developer's estate rn the Retail Parcel or Garage Parcel, , as
applicable, if previously conveyed in a Sale-Leaseback `Transaction.
(c) City further acknowledges and agrees that in addition to the rights set forth in
Section 6.1(a) of theLease, as amended hereby, Developer shall have the right to procure financing
with respect lo the Leased Property, t:he Improver eats or Developer's leasehold interest that is
secured by collateral other than a Leasehold Mortgage encumbering Developer's leasehold interest
in the Leased Property, including without limitation, a pledge of direct or indirect ownership
interests in Developer so long as the such financing is provided by an Institutional Investor.
(d) The definition of "Institution Investor" in Section 6.1(b) of the Lease is hereby
deleted in its entirety and replaced with the following:
"Institutional Investor": shall mean:
(i) any real estate investment trust, bank, savings and loan association,
savings bank, trust company, insurance company, investment bank,
commercial credit corporation, pension trust, pension plan, pension
fund or pension advisory firm, retirement trust, retirement plan,
retirement fund or retirement advisory firm, welfare trust, welfare
plan, welfare fund or welfare advisory firm, mutual fund,
government entity or plan, investment company, money
management firm or "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act of 1933, as
amended, or an institutional "accredited investor" within the
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meaning of Regulation D under the Securities Act of 1933, as
amended;
any investment fund, limited liability company, limited partnership
or general partnership where an entity that is otherwise an
"Institutional Investor" under clause (i) of this definition acts as the
general partner, managing member or fund manager and at least
fifty percent (50%) of the equity interests in such investment vehicle
are owned, directly or 'indirectly, by one or more entities that are
otherwise Institutional Investors under clause' (i);
any entity (A) with a long-term unsecured debt rating from any of
Standard & Poor's, Moody's, or Fitch' . ,.(or the successor
organization of any of them) of`at least investment grade or (B)
who owns or operates at least three (3) shopping centers of similar
size and quality to Bayside Marketplace, Miami, Florida'
(iv)
any Qualified Trustee (as defined below) in connection with A) a
securitization of, (13) the creation of collateralized debt obligations
("CDO") secured by, or (G) a financing through an "owner trust".
"Qualified Trustee" means (x)any corporation, national bank,
national banking association or a trust coripauy, organized and
doing business under the Jaws of any state or the United States of
America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred, subject to supervision or
examination by federal or state authority, (y) an institution insured
by the Federal Deposit Insurance Corporation or (z) an institution
whose long-term senior unsecured debt is rated at least investment
grade by any of Standard & Poor's, Moody's, or Fitch (or the
successor organization of any of them);
any entity or stitutioii substantially similar to any of the foregoing
entities described in clauses (i), (u), (iii) or (iv) immediately above;
(vi) any entity controlled by any of the entities described in clauses (i),
(ii), (iii), (iv) or (v) above.
(e)
The definition of "Lender" in Section 6.1(b) of the Lease shall be separated from the
definition of "Leasehold Mortgagee" and amended to mean any Leasehold Mortgagee or other
Institutional Investor that provides financing to Developer or its members.
(f) Section 6.1(c) (xii) of the Lease is hereby deleted in its entirety and shall be deemed
inapplicable and of no further force and effect from and after the Effective Date.
8.

Payment to City.
11
Developer and City acknowledge that this Amendment is conditioned upon approval from
the City's electorate either at an August 26, 2014 or November 4, 2014 referendum (the "Ground
Lease Referendum").
Subject to the terms of this Section 8, Developer agrees to deposit into
escrow with Developer's attorney the sum of Ten Million Dollars ($10,000,000) ("Developer's
Payment") by wire transfer of immediately available federal funds, not less than thirty (30) days
prior to the date of the Ground Lease Referendum, pursuant to the terms of an escrow agreement
to be mutually agreed between Developer and City (through the City Manager and City Attorney)
and otherwise consistent with the terms of this Section 8 (the "Escrow Agreement"). The Escrow
Agreement shall provide that if the Ground Lease Referendum is"approved, Developer's attorney
shall be authorized to release the Developer's Payment
to C ty upon the later to occur of (a)
Developer's receipt of an original counterpart of this
Amendment duly signed by City and (b) the
expiration of the 30-day period to appeal the Ground lease Referendum (the "Appeal Period") so
long as no appeal has been filed. Provided the Grourd'Lease Referendum is approved by the City's
electorate,
Developer and City agree to sign this Amendment and' exchange original signed
counterparts of same within ten (10) days following formal
, certification ; of the Ground Lease
Referendum. If an appeal is filed prior toa the expiration of the Appeal Period, then Developer's
attorney shall have no obligation to release Developer's .Payment to City, ,and shall hold
Developer's Payment in escrow, until such time as a court of competent jurisdiction renders a final,
binding and unappealable ruling that this Amendment is valid, binding and enforceable.
Developer
shall have the right, in its sole discretion, 10 cause .
Developez's attorney to invest Developer's
Payment and any interest earned on such iuuvestment shall be solelyfor the benefit of Developer. If,
following City's receipt of Developer's Payment, any legal :challenge results in all or any portion of
this
Amendment being declared null and void by a dourt of competent jurisdiction, then unless
Developer notifies city that it desires to terminate this Amendment within thirty (30) days following
such ruling (in which case, Developer shall also have the right to terminate the Garage Parcel
Amendment, the unchallenged, valid portions of this A mendment shall remain in full force and effect
without any further action by the parties hereto,' If Developer timely elects to terminate this
Amendment and the Garage Parcel Amendment, as provided in the preceding sentence, then
Developer's Payment shall be returned to Developer within thirty (30) days following City's receipt
of Developer's termination notice and the ;Lease shall remain in full force and effect as if this
Amendment never existed.
If the Ground Lease Referendum is not approved by the City's
electorate, then Developer's attorney shall be authorized to immediately release Developer's
payment, together with any interest earned thereon, to Developer. City acknowledges and agrees
that Developer's Payment is one
single payment that applies to both this Amendment and the
Garage Parcel Amendment.
9.

Easements.
Subsection 2.3(b) (ii) of the Lease is hereby amended to delete the words "service and
emergency vehicles" and replace same with "all vehicles including, without limitation, service and
emergency vehicles".
10.

Tower Sublease Recognition.


12
City and Developer acknowledge that SkyRise's ability to construct the Tower is
conditioned upon approval from the City's electorate either at an August 26, 2014 or November 4,
2014 referendum (the "Tower Referendum"). City agrees that following the passage of the Tower
Referendum, City shall deliver to SkyRise a duly signed and notarized original counterpart of the
Ground Lease Recognition and Non-Disturbance Agreement attached hereto as Exhibit "E". Any
deviations from Exhibit "B", or subsequent modifications thereto, and any subsequent modifications
to the Tower Sublease, will require only the written approval of the City Manager.
11. Indemnity. Section 8.2 of the Lease is hereby deleted 'in its entirety and replaced with the
following:
Section 8.2 Indemnity and Hold Harmless Developer shall indemnify,
defend (at Developer's sole cost an -expense) and- lave harmless City, its
officials, servants, employees and agents, from and against any and all
claims, actions, damages, liability acid expenses in connection. with the loss
of life, personal injury or damage to or destruction of property arising from
or out of any occurrence in, upon or at the leased Properly, or the
occupancy or use by Developer of the Leased Property, or any part
thereof, occasioned by the negligence or willful misconduct of Developer,
its agents, contractors, employees, servants customers, invitees,
Subtenants, licensees or c,oncessionaules, except to the extent any of the
foregoing claims, actions, damages, liability or expenses arise in whole or
in part out of the negligence or willful misconduct of City, its officials,
employees, agents, servants, employees, contractors, licensees or
concessionaires; provided that with respect to any alleged negligence or
willful misconductby City if pursuant to litigation, arbitration or other
judicial or administrative process, City is found not responsible for such
loss, then Developer shall pay City's reasonable attorneys' fees and costs.
Developer shall also pay all costs, expenses and reasonable attorneys' fees
that may be incurred or paid by City in enforcing the covenants and
agreements of this Section 8.2.
12. Insurance. Article IX of the Lease is hereby modified to amend the preamble of Section 9.1,
replace Sections 9.1(a) through (d) in their entirety and add Section 9.12, as provided below.
Section 9.1` Insurance Requirements. Beginning on the Effective Date
and during Lease Term, Developer, at its sole cost and expense shall maintain
or cause to be maintained the following insurance coverage:
(a) Commercial Property Insurance. Insurance on the Improvements
and leasehold interests against all risks of direct physical loss or damage,
including coverage for windstorm, hail, earthquake, flood, and proving for
coverage for debris removal, sprinkler leakage, boiler and machinery, and
coverage for glass breakage, as a result of damage by an insured peril.
Coverage shall be written on all risk form, or special causes of loss including
13
theft. The insurance shall be written on a replacement cost valuation basis. If
the policy or policies of insurance contain a co-insurance requirement, the
policy or policies shall contain or stipulate agreed valued endorsement. During
any construction period, property insurance may be provided on a Completed
Value Builder's Risk form. City and Developer shall be listed as named
insureds on such Builder's Risk Policy. The term "Improvements", as used in
this Article IX, shall be deemed to include all personal property furnished, or
installed on the Leased Property and owned by Developer, and the insurance
herein provided shall cover the same; provided, however that notwithstanding
the foregoing, the term "Improvements" as usemthis Article IX shall not
include the tower contemplated by the Tower ublease or any personal
property furnished or installed by SkyR se` orh any of kyRise's subtenants,
licensees or concessionaires in connection therewith: the event that
insurance proceeds are inadeque to rebuild and restore. the damaged
Improvements to substantially their
at
previous condition before a i.hisurable loss
occurred, and the cause of the deficiency tn nsuranee.proceeds is tie failure of
the Developer to adequately insure the Improvements as required
by
this
Agreement, Developer must nevertheless rebuild and restore such
Improvements pursuant to the terms hereof and :must pay the entire cost of
same notwithstanding the fact that such insurance proceeds are inadequate.
(b) TimeElement/BusinessInterruptionorBusinessIncome.
Developer shall insure against loss of business income, including rental value,
leasehold interests, and extra expense coverage, arising out of the direct
physical damage resulting in suspension of business operations. Period of
restoration must be endorsed to reduce the waiting period to 24 hours, with a
one (1) year extended period of indemnity, including Ordinance or Law
Increased Period of Restoration, and Utility Services Interruption Time
Element coverage, if commercially available. City, as lessor under this Lease,
shall be covered to the extent' earned, in an amount equal to the total of Annual
Basic Rental payable during said period of business interruption.
(c) Automobile` " Liability Insurance. Automobile liability insurance
covering all owned autos, including non-owned and hired auto exposures used
in connection with any work arising out of this Agreement. Such insurance
shall afford protection to at least a combined single limit for bodily injury and
property damage liability of One Million Dollars ($1,000,000) per occurrence
or accident. The excess layer of coverage or umbrella liability should be excess
follow form over this coverage. City must appear listed as an additional
insured on the primary and excess layer of coverage.
(d) Commercial General Liabilit Insurance. Commercial General
Liability, affording coverage against any all claims for bodily injury, including
death, and property damage occurring on or about the Leased Property, the
Improvements, or any elevator, escalator or hoist thereon. Such insurance shall
14
have limits of at least Fifteen Million Dollars ($15,000,000) per occurrence,
Thirty Million Dollars ($30,000,000) policy aggregate. Primary and excess
layers, such as an umbrella excess follow form policy may be used in
connection with the structure of limits on this coverage. The policy or
certificate must afford coverage for contingent and contractual exposures,
personal and advertising injury, premises and operations liability, products and
completed operations, liquor liability with full liability limits as required herein.
The certificate or policy must further afford coverage for damages to rented
premises, and must reflect City of Miami as an additional insured on both the
primary limits and excess umbrella liability policies ._ It is City's intent that any
liability insurance provided pursuant to this Section shall be deemed primary
insurance coverage in the event of any loss arising ^fxom the premises and
operations covered by this Agreement. Therefore, the cert Cates or policies of
insurance must be properly endorsed to reflect primary and non-contributory
language.
The City Manager reserves the right to review the adequacy of the
insurance coverage provided in Section 9.1 of the' Lease once every 'ten (10)
years during the balance of the Lease Term and rnayrequire that Tenant adjust
Tenant's insurance coverage to the extent the City Manager deems any of the
coverage required in the Lease to be :inadequate, in ; .the City Manager's
reasonable discretion, based upon then current market requirements for
comparable commercial properties in the Miami metropolitan area.
Section 9.12 Subtenant Requirements. For Subleases entered
into from and after the Effective Date, Developer shall contractually require all
of its Subtenants to indemnify City, its officials, servants employees and agents
and provide certificates of liability insurance naming "City of Miami" as an
additional insured with minim im limits as set forth on Exhibit "F-1" attached
hereto with respect to Subtenants other than SkyRise and with minimum limits
as set forth on Exhibit "F-2" attached hereto with respect to SkyRise. The
Exhibit "F-2" requirements shall be applicable only during the initial
construction of the Tower and, once such initial construction is completed,
City acknowledges and agrees that the insurance requirements set forth in
Section 9.01 of the Tower Sublease are acceptable to City. Developer shall
cause SkyRise to provide evidence of such insurance to City as and when
required pursuant to the terms of the Tower Sublease.
12.

Arbitration.
Notwithstanding anything to the contrary set forth in the Lease, including Section 10.5
thereof, City and Developer hereby agree that any dispute, disagreement or controversy arising
under the Lease, or with respect to the interpretation or enforcement of the Lease may be settled by
arbitration if and to the extent City and Developer are not able to resolve any such dispute,
disagreement or controversy within thirty (30) days following notice from one party to the other
15
party of the nature of any such dispute, disagreement or controversy. If, after such thirty (30) day
period, City and Developer are unable to resolve such dispute, disagreement or controversy, either
party may request to arbitrate the matter by providing written notice to the other party setting forth
the nature of the request to arbitrate. The terms and conditions of Section 10.5 of the Lease shall
then govern the arbitration procedure.
13.

Foundation Contribution.
Notwithstanding anything to the contrary set forth Section 5.3 of the Minority
Participation Agreement dated as of January 14, 1985 (as aimmended, collectively, the "WA"), from
and after the Effective Date, Developer shall pay a Fotzt elation Contribution in the amount of
$350,000 (the "Foundation Contribution") in quarterly installments on the last day of March, June,
September and December. of each calendar year i:during the Lease Term in lieu of the Foundation
Contribution set forth in Section 5.3 of the
M
PA ,' The Foundation Contribution for any partial
Rental Year during the Lease Term after the Effective Date shall be prorated. based on the number
of days in the partial Rental Year against the total number of days in the applicable Rental Year.
The Foundation Contribution shall increase each Rentalear ' by two percent. (2%) over the
Foundation Contribution for the immediately preceding Rental Year commencing''with the first CPI
Adjustment Year for Minimum Base Rental as provided above.. The Foundation Contribution for
periods prior to the Effective Date shall continue to be paid as provided in Section 5.3 of the MPA;
it being understood and agreed that the Foundation Contribution forthe period between January 1,
2014 and the Effective Date shall be based solely on Net Income Available for Distribution for the
Retail Parcel for such period. City and Developer agree to sign and exchange original counterparts
of the Second Amendment to Minority Participation Agreement in the form attached hereto as
Exhibit "G" within ten (l 0) days following formal certification of the Ground Lease Referendum.
14.

Modifications or Amendments to Certain Definitions.


(a) The definition of "Auditor" as set forth in Section 1.2 of the Lease is hereby
amended and restated as follows: "Auditor" means Deloitte LLP or such other nationally
recognized and reputable firm of certified public accountants authorized to do business in the State
of Florida, as may be used from time to time by Developer for purposes of certifying the annual
reports of its financial condition required by law.
(b) All references in the Lease to the term "Cumulative Credit Balance Account",
including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their
entirety and shall be deemed inapplicable and of no further force and effect from and after the
Effective Date; it being understood and agreed that the Cumulative Credit Balance Account shall
cease to exist as of the Effective Date and the waiver thereof by Developer is part of the material
consideration for City's entry into this Amendment. Notwithstanding the foregoing, the Cumulative
Credit Balance Account shall continue in full force and effect with respect to any and all payments
of Annual Basic Rental due to City under the Lease for periods prior to the Effective Date.
16
(c)
All references in the Lease to "Debt Service Payments", including, without
limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be
deemed inapplicable and of no further force and effect from and after the Effective Date.
(d)
All references in the Lease to "Developer Equity Investment", including, without
limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be
deemed inapplicable and of no further force and effect from and after the Effective Date.
(e)
All references in the Lease to "Net Income Available for Distribution", including,
without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall
be deemed inapplicable and of no further force and effect from an.after the Effective Date.
(f) All references in the Lease to "Operating Losses",-" including, without limitation, the
definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed
inapplicable and of no further force and effect from `and after the Effective bate.
(g) All references in the Lease to the capitalized terms "Refinancin and "Refinancing
Proceeds", including,
without limitation, the respective definitions thereof m Section 1.2, are
deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and
after the Effective Date.
15.

Areas A-4 and A-5.


City and Developer agree that the Lease has terminated with respect to Area A-4 and Area
A-5, as more fully described in the Lease. All references in the Lease to "Area A-4" and "Area A-
5", including, without limitation, all provisions and exhibits pertaining thereto, are hereby deleted in
their entirety and shall be deemediiiapplicable and ofno further force and effect from and after the
Effective Date.
16.

Notices.
Wherever any notice is required (Sr permitted under the Lease, such notice shall be in
writing.
Any notice or document required or permitted to be delivered under the Lease shall be
deemed to be delivered when it is actually received by the designated addressee or, if earlier and
regardless of whether actually received or not, when it is either (i) deposited in the United States
mail, postage prepaid, certified inail, return receipt requested, or (ii) delivered to the custody of a
reputable messenger service or overnight courier service, addressed to the applicable party to whom
it is being delivered at the respective address for such party as is set out below, or at such other
address as such applicable party may have theretofore specified to the delivering party by written
notice:
If to City at:
City of Miami
If to Developer at:
Bayside Marketplace, LLC
17
444 SW 2nd Avenue, 10th Floor
Miami, FL 33130-1910
Attention: City Manager
with a copy to:
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, FL 33130-1910
Attention: Public Facilities Director
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, IL 60606
Attention: Chief Legal Officer
with a copy to:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
1245 Worcester Street
Suite 1218
atick MA 01760
Attention= John Charters
17.

Miscellaneous.
(a) Each of City and Developer hereby acknowledges and agrees that neither is
presently aware of any continuing defaults by reason of any act or omission on the part of the other
party under the Lease and that as of the date of execution each party has fulfilled all of its duties and
obligations under the Lease to date.
(b) This Amendment shall be construed and governedh accordance with the laws of
the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami-
Dade County, Florida. In. order to expedite such actions or proceedings the parties knowingly and
voluntarily waive their right to a jury trial in any such actions or proceedings. Developer and City
each agree to pay their own attorneys' fees hi connection with any such actions or proceedings.
(c) This Amendment may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed an original, but all
of which shall constitute one arid the same ustrument.
(d) Each party hereby represents and warrants to the other party that (i) it has the full
right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid
document enforceable in accordance with its terms.
(e) This Amendment shall be deemed a part of, but shall take precedence over and
supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of
the provisions of the Lease, which are not in conflict with the terms of this Amendment, shall
remain in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed in
all respects.
(f) This Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns.
18
(g)
At the request of Developer, City agrees to enter into a memorandum of this
Amendment to be placed of record in the Public Records of Miami-Dade County in such form as
Developer and City shall mutually agree. Developer shall be responsible for all recording costs with
respect to such memorandum.
(h)
The terms "business day" or "business days", as used herein, shall mean,
individually or collectively, as the case may be, each calendar day of the week other than Saturday,
Sunday and any nationally recognized legal holidays.
[Remainder of Page Lef t Blank Intentionally]
8
19
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective
CITY OF MIAMI, a municipal corporation of
the State of Florida
Date.
ATTEST:
By:
Todd Hannon
City Clerk
The foregoing instrument was acknowledged before me thisday of
, 2014. by Daniel I Alfonso, the City Manager, and
the City Clerk, of the City of Miami, ;a'Florida municipal corporation, in the capacity aforesaid;
each such person is personally known to men
APPROVED AS TO LEGAL FORM

APPROVED AS TO INSURANCE
AND CORRECTNESS:

REQUIREMENTS
An-Marie Sharpe
Acting Risk Management
My Commission Expires
[NOTARIAL SEAL]
Sign Name:
Print Name:
Notary Public
Serial No. (none if blank):
20
WITNESSES:

BAYSIDE MARKETPLACE, LLC, a


Delaware limited liability company
Print Name:
Title:
The foregoing instrument was acknowledged before me thisday of
2014, by _ as
of Bayside Marketplace, LLC, in the
capacity aforesaid, such person is personally known
to me.
Sign Name:
Print Name:
Notary Public
Serial No. (none if blank):
My Commission Expires:
[NOTARIAL SEAL]
21
EXHIBIT"A"
DETERMINATION OF FAIR MARKET RENT
Minimum Base Rental for the first Rental Year of each Renewal Term and the Tower
Fixed Rent Adjustments per Section 4(f)(i) shall be evaluated= iaccordance with the procedures
set forth in this Exhibit (each, a "Scheduled Appraisal") to deteimme the current Fair Market Rent
(as defined below) for Minimum Base Rental or Tower Fixed Rent, as applicable, and the required
adjustments to these values for the applicable Renewal q^Term or rower Fixed Rent Adjustment, as
applicable.
1. Appraisers. No later than three hundred and sixty-five (365) days prior to the end of
the Original Term, Renewal Term or each Tower Fixed Rent Adjustment as referenced in Section
4(f)(i) as applicable, City shall deliver, to Developer a determination of the Faiz Market Rent, in
accordance with the criteria set forth herein applicable to the determination of Fair Market Rent.
The determination of Fair Market Rent provided by Crty shallbe conducted by an independent
commercial real estate appraiser who is a member of the American Institute of Real Estate
Appraisers and who has not less than ten (10) years' experience in appraising properties
comparable to the Leased Property (a "Qualified Appraiser") City shall pay for the appraisal.
City shall select its Qualif ied Appraiser from the City's general appraisers' services list. In no
event shall an appraisal result in a reduction in the Minimum Base Rental or Tower Fixed Rent
due to the City. The Qualified Appraiser shall be hired the year prior to the Rental Year that the
newly appraised Minimum Base Rental and/or Tow, er_ Rent shall commence to take effect (each
an "Adjustment Rental Year"). In the even^'that Developer shall dispute the determination of Fair
Market Rent
made by City's Qualified Appraiser, then, Developer shall, within thirty (30) days
following its receipt of the determination made by City's Qualified Appraiser, select its own real
estate appraiser, who shall also be a Qualified Appraiser (though Developer's Qualified Appraiser
shall not be required to be on th' City's general appraisers' service list). Developer shall pay the
costs of Developer's Qualified Appraiser. The City's Qualified Appraiser and the Developer's
Qualified Appraiser shall then have a period of thirty . (30) days following the selection of
Developer's Qualified Appraiser within
h
e to attempt, n good faith, to reach agreement on the
Fair Market Rent for the Paroperty. If City's Qualified Appraiser and Developer's Qualified
Appraiser are unable to agree upon the Fair Market Rent within such thirty (30) day period, then
the Fair Market Rent shall be determined in accordance with the methodology set forth below:
Within fifteen (15) days following the expiration of such thirty (30) day period, City's
Qualified Appraiser and Developer's Qualified Appraiser shall endeavor to mutually agree upon
an independent commercial real estate appraiser who shall be a Qualified Appraiser. If the
Developer elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's
general appraiser's service list. If the City's Qualified Appraiser and Developer's Qualified
Appraiser are unable to agree on such third Qualified Appraiser, City and Developer shall apply to
the American Arbitration Association for designation of an appropriate third Qualified Appraiser.
The Qualified Appraiser so selected or designated by the American Arbitration Association is
hereinafter referred to as the "Third Appraiser."
Within ten (10) days following the selection of the Third Appraiser, City's Qualified
Appraiser and Developer's Qualified Appraiser shall each submit to the Third Appraiser their
respective final determinations of the Fair Market Rent. Within thirty (30) days thereafter, the
Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by City's
Qualified Appraiser or the determination submitted by Developer's Qualified Appraiser. The
Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount
submitted by either the City's Qualified Appraiser or the amount submitted by the Developer's
Qualified Appraiser.
The Third Appraiser shall notify both City and Developer, in writing, which of the two
determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the
Third Appraiser shall be final and binding on both City and Developer and the Fair Market Rent,
as selected by the Third Appraiser, shall be the Minimum Base Rentaor Tower Fixed Rent, as
applicable, which shall take effect commencing' of the beginning of the applicable Adjustment
Rental Year.
2. Method. Each Qualified Appraiser shall determine ;tl eFair Market Rentor Tower Fixed
Rent, as applicable, based on the parameters set forth m:the definition thereof set forth in Section
1 above. Each Qualified Appraiser, in its discretion, may dispense with formal hearings, it being
agreed that his task will be solely that of appraisal
3. Effect of Appraisal. The Fair Market
Rent
determued n accordance with the procedures
set forth in this Exhibit shall be binding and conclusive on Crty and Developer, except that in no
event shall (a) the Fair Market Rent be adjusted below the then applicable Minimum Base Rental
or Tower Fixed Rent, as applicable, for such Rental Year or Tower Fixed Rent Adjustment (b)
the Minimum Base Rental for the second, third or fghrth Renewal Terms increase by more than
fifteen percent (15%)over the Minimum Base Rental 'then applicable at the time of such appraisal
or (c) the Tower Fixed Rent increase by more than ten percent (10%) over the Tower Fixed Rent
then applicable at the time of such appraisal.
4. Appraisal Fee. Developer shall be responsible for one hundred percent (100%) of the
costs associated with the hiring of the Developer's Qualified Appraiser and City shall be
responsible for one hundred percent (100%) of the. costs associated with the hiring of the City's
Qualified Appraiser. In theevent the Developer dsputes the first appraisal, the costs associated
with the hiring of the Third Appraiser shall be paid by the party whose Qualified Appraiser's
determination of Fair Market Rent is not selected by the Third Appraiser; provided, however, if
Developer elects to exclude from the pool of Qualified Appraisers any appraiser on the City's
general appraisers service list, then Developer shall pay fifty percent (50%) of the cost of the
Third Appraiser.
5. Delayed Appraisal. If prior to the commencement of the Adjustment Rental Year, the
adjusted Minimum Base Rental or Tower Fixed Rent, as applicable, has not been determined by
independent appraisal in accordance with the procedures set forth in this Exhibit, Developer shall
continue to pay all then applicable Minimum Base Rental or Tower Fixed Rent, as applicable, as
may have been previously adjusted pursuant to the terms of this Amendment.
Following the determination of the Fair Market Rent by independent appraisal, in
accordance with the procedures set forth in this Exhibit, Minimum Base Rental or Tower Fixed
Rent will be adjusted as provided retroactively to the commencement of the subject Adjustment
Rental Year, and, if necessary, the Developer shall pay to the City with the next installment of
Minimum Base Rental or Tower Fixed Rent due, the amount, if any, by which Minimum Base
Rental and/or Tower Rent, as adjusted, exceeds Minimum Base Rental or Tower Fixed Rent, as
applicable, that has been paid by the Developer for the retroactive period.
6.

Fair
Market Rent. For purposes of this Amendment, "Fair Market Rent" means the rent
that a similar property with the entitlements currently applicable to the Leased Property, without
consideration of the Improvements constructed by De veloper or any Subtenant, would bring in a
competitive and open market under all conditions requisite to an arm's length transaction, the
parties each acting prudently, knowledgeably, and assuming the
` rent is not affected by undue
stimulus. Implicit in this definition are the following assumptions:
(a)
(b)

Both parties are well informed or well advised and acting in what they
consider their own best mterest;
(c)
(d)

Payment is made in terms of cash in U.S. Dollars m terms of financial


arrangements comparable thereto; and
The rent represents,,the normal consideration for property leased, under
current market conditions (as of any date as of which Fair Market Rent is
determined) unaffected by special or creative financing or concessions
granted by anyone associated with the Lease.
EXHIBIT "B"
PERCENTAGE RENT
1. Percentage Rent Calculations.
(a)
Commencing on the Effective Date and continuing throughout the Lease Term,
Percentage Rent shall be due and payable to the City, in arrears;.; on the first (1 St) day of the first
(1 St
) full calendar month following the Effective Date and thereafter on the first (1
st) day of each
calendar month of the Lease Term for the prior month, as proytded herein. Percentage Rent shall
be equal to the following:
Six percent (6%) of Gross Receipts (as defined below) over the initial annual
breakpoint of $25,659,000, which annual breakpoint shalt adjust each Rental Year
commencing with the first CPIEscalation Year for the adjustment of Minimum
Base Rental. Each such annual adjustment of the breakpoin t shall be equal to the
natural breakpoint (i.e., the adjusted annual Minimum Base Rental for the subject
Rental Year divided by six percent (6%))
The breakpoint for any partial Rental
Year during the Lease Term shall be reduced to, _ an amount equal to the product of
(i) the then-applicable breakpoint tines (ii) a fraction, the numerator of which is
the number of days in such Rental Year and denominator of which is 365. Each
Rental Year shall
be considered; an independent accounting period for the purpose
of computing I'ercen"tage Rent due, if any. The amount of Gross Receipts of any
Rental Year shall not be carried over into any other Rental Year.
"CrrossReceipts" shall mean al l
Ope atmg Income actually collected and received by
Developer at
the Leased Property (ext. luding any Operating Income received by Developer from
SkyRise pursuant to the terms of the Power Sublease or any successors or permitted assigns of
SkyRise under the Tower Sublease or uzider a new' ew Sublease of the Tower premises), together
with Operating Income actually collected andreceived by Developer from Subtenants of the retail
liner to be constructed by Developer at the Garage Parcel as part of the Renovation Work;
provided, however that Gross Receipts shall not include the following:
(i)
any sums collected and paid out by Developer for any sales, use or
excise tax imposed by any federal, state or governmental authority
directly on sales and collected from customers and accounted for by
Developer and/or Subtenants;
(ii)
proceeds from the sale of trade fixtures, operating equipment or similar
assets after use thereof in the conduct of Developer's business on the
Leased Property;
(iii) funds collected with regard to the Leased Property which are not actually
related to the day-to-day business of the Leased Property such as, but
not limited to the financing of the Developer's interest in the Leased
Property;
(iv) collection of insurance proceeds;
(v) collection of eminent domain proceeds;
(vi)
monies collected for events, to the extent such monies collected are
paid or delivered to the sponsor, so long as sponsor is not affiliated
with Developer;
(vii) all gratuities paid to employees;
(viii)
amounts received by Developer as reimbursements of expenses and
cost sharing (for example, reimbursement of taxes, maintenance,
insurance or utility bills);
(ix)
any grants, subsidies, rebates, credits or similar benefits received by
Developer from any federal, state, regional or' local body, agency,
authority, department or organization;
(x)
interest earned on Developer's deposit ac eounts,.,earnings or profits on
Developer's investments;
(xi) interest income from loans or credit facilities granted. by Developer and
similar passive or investment income of Developer related to
Developer's liquid assets, investments or loans/credit facilities granted
by Developer;
(xii) rents or percentage rents and commissions paid to Developer iby any
Subtenants where City collecting rent based on a percentage of
subtenant's Gross Receipts,
(xiu) Amounts received by a valet parking concessionaire when Developer is
remitting the respective percentage due to City `as..provided pursuant
to Section 4(d) of this Amendment, b
(xiv) An yrestricted donations or contriutions whdse Gross Receipts are
earmarked for capital expenditures, as approved by City, to the Leased
Property; and
Interest and finance charges charged by Developer.
(b)
Commencing on the date that the Tower is open to the general public for business
(the "Opening Date"), and continuing throughout the Lease Term (so long as the Tower is open
to the general public for business), addit onal percentage rent with respect to the Tower shall be
due and payable to City, in arrears, within 150 days following the last day of each Lease Year (as
defined in the Tower Sublease). `Tower Percentage Rent" shall be equal to the following:
From the actual Opening Date through the end of the first full twelve month Lease
Year thereafter, Percentage Rent Component 2 (as defined in the Tower Sublease)
shall be based on 1.0% of Tower Gross Receipts above $55,000,000.00.
Thereafter, as Fixed Rent Component 2 increases, the Applicable Breakpoint for
Percentage Rent Component 2 shall increase from the immediately prior amount by
an amount equal to the same percentage adjustment to Fixed Rent Component
Rent 2 for the corresponding Lease Year. For example, if Fixed Rent Component
2 increases by 3% in the second full 12 month Lease Year, the Percentage Rent
Component 2 Applicable Breakpoint will increase by 3% (to $56,650,000.00).
"Tower Gross Receipts" shall mean all Operating Income actually collected and received
by Developer from SkyRise pursuant to the terms of the Tower Sublease; provided, however that
Gross Receipts shall not include the items described in Subsection 1(a)(i) through (xv) above.
2. Gross Receipts Report. Developer shall use a Gross Receipts Report, a sample of which
is attached herewith and incorporated herein as Schedule to itemize any and all reportable
Gross Receipts and/or Tower Gross Receipts as described in this Exhibit.
3. Developer's Records. Developer shall prepare and keep full, complete and proper books
and source documents in accordance with generally accepter ,accounting principles, of Gross
Receipts received by Developer in connection with the operation of the Leased Property. The
books and source documents to be kept by Developer shall include, without limitation, sales
records of each Subtenant paying percentage rent to Developer and records of any other
transactions conducted in or from the Leased Property by Developer.
4. Reports by Developer. Within ninety (90) days after the end of each Rental Year,
Developer shall also furnish to City a certified financial report (i.e. a gross Receipts audit) by an
Auditor (the "Annual Report"), showing in all reasonable detail of the amount of such Gross
Receipts received by Developer from the Leased Property during the preceding Rental Year.
Developer shall in all events furnish to City within fifteen (15) days after the end of each calendar
month of the Lease Term a written statement of Gross Receipts covering the preceding month,
the statement to be in such form and style and contain such details and breakdown as City may
reasonably require. City acknowledges and agrees that, with respect to Gross Receipts generated
by any Subtenant paying percentage rent to Developer, Developer shall rely on the reporting
made by each such Subtenant with respect to its gross Receipts and shall have no liability
whatsoever for reporting errors made by any such Subtenant.
5. Right toExamineBooks. Notwithstanding the acceptance by City of payments of
Minimum Base Rental, Tower Relit, 1 ower Percentage Rent and Percentage Rent, City shall have
the right to all
Rental and other charges actually due hereunder, and the right to examine, make
extracts from and copy, at the Leased Property or Developer's main accounting office,
Developer's books, source documents, accounts, records, bank statements and sales and income
tax reports filed with applicable governmental agencies by Developer in order to verify the
amount of Gross Receipts and/or Tower Gross Receipts received by Developer in and from the
Leased Property. For a period of three (3) years after the expiration of each Rental Year,
Developer shall make all documents and records evidencing Gross Receipts and/or Tower Gross
Receipts available at the Leased Property or Developer's main accounting of f ice upon ten (10)
business days' prior written notice from City. The Developer will establish one or more bank
accounts to deposit all Gross Receipts recognized from the operations on the Leased Property,
which bank account deposits will not be comingled with the Receipts from any other operations of
the Developer or any other affiliated companies.
6.

Audit.
(a) At its option, City may at any time, upon ten (10) business days' prior written
notice to Developer but no more than once each Rental Year, arrange for an auditor selected by
City from either the City's Auditor General's Office or a nationally recognized firm of certified
public accountants that is not paid on a contingency basis to conduct a complete audit (including a
physical inventory) of the applicable records and operations of Developer evidencing Gross
Receipts from. the Leased Property during the period covered by any statement issued by
Developer. Developer shall make available to the City's auditor at the Leased Property or
Developer's main accounting office on the day set forth in Cit i.5' 'notice, requiring such audit, all
of the applicable books, source documents, accounts and records referred to in this Exhibit and
any other materials which such auditor reasonably deems necessary or desirable for the purpose of
making such audit. Developer shall promptly pay to City the amount of any deficiency in
Percentage Rent payments disclosed by any such , audit. If suck,;audit shall disclose that
Developer's statement of Gross Receipts is understated to the extent of five percent (5%) or
more, then, unless Developer shall dispute the results of such audit, City nay bill to Developer the
cost of such audit, which shall be paid by Developer within thirty (30) das' after Developer's
receipt of City's invoice.
(b) In the event that any such audit shall disclose that Developer's records and other
documents as referred to in this Exhibit and such other materials provided by Developer to City's
auditor are inadequate, in the opinion of an independent auditor serving as City's auditor, to
disclose accurately Developer's Gross Receipts, then Developer shall have thirty (30) days to cure
any deficiencies raised by City's auditor and shall then notify.City so that City's auditor can
continue its audit. City's exercise of the foregoing'remedy shall in no way limit or otherwise affect
City's ability to exercise other remedies available to it, nor shall Developer's obligations pursuant
to the terms, covenants and conditions of this Lease (including, without limitation, Developer's
obligation with respect to reporting Gross Receipts and payment of Percentage Rent) be in any
manner reduced or diminished by the exercise of such remedy. Notwithstanding anything herein
to the contrary, to the extent that Developer shall fail to provide to City any required reporting or
records with respect to Gross Receipts as a consequence of any Subtenant's failure to timely
furnish to Developer any required reporting or records with respect to the gross Receipts
generated by such Subtenant, then, provided that Developer shall take all commercially
reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements
of such sublease with respect to producing such reports or records, Developer shall have no
liability to City in connection therewith.
EXHIBIT "C"
RENOVATION WORK
At a minimum, on the lower level, Developer will install new awnings, repaint and re-clad
column covers in porcelain veneer or similar material, and replace decorative light fixtures. On
the upper level, Developer will install new flooring, repaint, re-clad column covers to match the
lower level, and provide new light sconces and fixtures in the canopy structure to improve
illumination in the upper walkway. The railing system will be :.;refurbished including replacement
as needed. In addition, Developer will refurbish public bathrooms which will include the
replacement of tile, partitions and fixtures. Stair cases arid stairs will be replaced or repaired.
The food court will be refurbished, which will include new flooring, furniture, light
fixtures and wall treatments. The existing corrugated roof in the vendor marketplace area will be
replaced with an updated design and modern material. Corroded vents and electrical receptacles
will be replaced.
The Parking Garage will be expanded to include additional spaces; and exterior
architectural facade treatments will be added as well as a retail liner. Developer will modify the
main entry area including new Bayside N1 rice tplace identification signage at the entry facade and
the installation of furniture including benches with integrated planters.
The foregomg eiiovation Work w substaritiallyconform to the renderings attached
hereto.
EXHIBIT "D"
TOWER DEVELOPMENT WARRANT
[see attached]
Final Decision:
K Approval
Approval with conditions
K Denial
FINDINGS AND CONDITIONS
The subject proposal has been reviewed for Warrant Permit pursuant toArticle 7, Section 7.1.3.5.d.1 of
Miami 21 Code, as adopted, the Zoning Ordinance of the City of Miami, Florida, which stated that an
applicant may modify a special permit approved under a previous zoning code, as a minor modification
through the Warrant process..
Pursuant to Section 7.1.3.4 of the above-cited Zoning Ordinance, the Planning and Zoning Department
has made referrals to the following Departments and Boards.
Office of Zoning, Planning and Zoning. Department
+ Downtown NET Office, Neighborhood Enhancement Team
Their comments and recommendations have been duly considered in this final decision. This application
has been reviewed, pursuant to Section 7.1.2.4 (d) of the Zoning Ordinance; the following findings have
been made:
FINDINGS
The applicant is proposing modifications to the approved Class II Special Permit 10-0143 "Solar
Universe Miami", in order to bring the project more in compliance with Miami 21 Code.
+ On January 8E" , 2013, the applicant submitted modified plans to the originally approved Class II
Special Permit 10-0143, specifically consisting of:
a) Increase of the FAR from 164,181 sq ft to 195;920 sq ft.
b) Decrease the office area from 8,695 sq ft to 8,265 sq ft.
c.) Decrease the retail area from 33,331 sq ft to 14,547 sq ft.
d) Decrease the restaurant area from 33,333 sq ft to 19,845 sq ft.
e) New Flying Theater of 5,678 sq ft area.
Re No. 13-0077 * R E V ISE D
SE TAK

TICE TH T.A FIN SION HAS BEEN REACHED ON THE FOLLOWING MATTER:
stantial Modification to the approved Class II Special Permit 10-0143
Universe Miami" located in Transect Zone T6-8-O.
ress:

401 Biscayne Blvd., Downtown NET.


File No, 13-0077 * R E V ISE D
New Observation Deck of 28,263 sq. ft. area.
New Exhibit Space of 7,092 sq ft area.
New Meeting Room/Ballroom/Event Space of 25,271 sq ft area.
Retail liner building and additional parking floors to face garage along with a new liner space at
the ground level fronting Biscayne Blvd.
No changes on the building height, footprint and intensity are being, requested as part of this
modification.
The Zoning Administrator has determined that the proposed changes, pursuant to the June 7 t", 2013
submittal, do not exceed the parameters described in Section 2202.1 of the 11000. City of Miami
Zoning Ordinance and are therefore non-substantial.
It is found that proposed modifications do not constitute a substantial change to the original approved
project.
No Landscape Plan has been submitted with this application.
Pursuant to' Sec. 7.1,2.4 (d) of the Miami 21 Code, the City of Miami Zoning Ordinance, the
application has been reviewed and found sufficient except for the issues listed above and contained
in the condition.
Based on the above findings and the considered advice of the officers and agencies consulted on this
matter and pursuant to Section 7.1.12 of the Zoning Ordinance, the subject proposal is hereby
approved with' conditions subject to the plans submitted by the applicant and on file with the Planning
and Zoning Department as well as the following limitation:
CONDITIONS
1. The applicant shall provide the Planning and Zoning Department with a temporary construction
parking plan, with an enforcement policy and a construction noise management plan with an
enforcement policy.
2. A complete Landscape Plan in compliance with Article 9 of Miami 21 Code shall be submitted to
the Planning and Zoning Department prior to issuance of any building permit.
3. The design plans for the proposed retail liner building, to be located on the west facade of the
Bayside parking garage, shall be submitted prior to the issuance of a building permit for the
expansion of the Bayside parking garage, The design plans for the proposed retail liner building
shall be reviewed pursuant to the process set forth in' Art. 7, Sect. 7.1.2.4, of Miami' 21,
4. The proposed retail liner building to be located on the west facade of the Bayside parking garage,
shall:
i. Have a minimum average depth of 30 feet;
il. Have a minimum of two pedestrian walkways connecting the front of the retail liner building
to the existing sidewalk along Biscayne Boulevard;
iii. Have a minimum of 70 percent of the retail frontage glazed with clear glass, pursuant to the
requirements set forth in Miami 21.
5. The applicant, and any successors-in-interest, shall not post nor affix, or allow others by sale,
lease, contract, or agreement, to post or affix, to the exterior of the building, which is the subject
of this Warrant application, any LED' digital commercial or non-commercial Onsite or Offsite
advertising signs as the terms are defined in Miami 21, Article 1, and which include digital media
displays or media arrays that allow for changes to a sign copy. The current technology for this
type of sign herein prohibited is known as LED digital signs. The prohibition shall cover successor
technology replacing LED digital media signs which are used for commercial advertising
purposes. Further the applicant and any successors-in-interest, shall not request that this project,
tower, or building, be designated as a media tower pursuant to Miami 21, Article 1, and shall
f)
g)
h)
i)
j)
2
File No..13. 0077 * R E V ISE D
conform to all applicable federal, state, Miami-Dade and municipal laws and regulations, as they
now exist.
This does not preclude the use of special effects lighting, from either internal, external, or
projected sources for the purpose of defining the environmental character of the project, or for
providing project identification signs anywhere on the building or onsite signs, including
directional, or regulatory information or promotional signage at the functional level (Le., the levels
of the pedestal facing south and west) or at the grade level of the tower as may be appropriate to
the requirements of the project or elsewhere on the site, provided the copy is permitted under the
current zoning code,
6. Conform to the design review criteria set forth in Art. 4, Table 12, and Art. 5, Sect. 5.6, of
Miami 21.
7. Any structure above ground shall be subject to setback requirements.
NOTICE
The final decision of the Director may be appealed to the Planning, Zoning, and Appeals Board by
any aggrieved party, within, fifteen (15) days of the date of issuance by filing a written appeal and
appropriate fee with the Office of Hearing Boards, located at 444 SW
2nd
Ave., 3 Floor, Miami,
FL33130. Telephone number (305) 416-2030
Signature 06(4 A.
9l Francisco J. Ga cla, Director
\"^ Planning and Z. ing Department
Date
.3 'ilSt\l k
i
k -t
3
File No. 13-0077 * R E V ISE D
ARTICLE 4, TABLE 12,
DE SIGN R E V IE W CR ITE R IA
I)BUILDING DISPOSITION:

Applicability

Compliance
(1) Respond to the physical context taking into

Yes

Yes
consideration natural features, existing urban
form and Transect Zone intentions.
(2) For Buildings on Corner. Lots., design Facades to

N/A.
acknowledge all Frontages.
(3) For modifications of nonconforming Structures.

N/A
See Article 7, Section 7.2 for specific regulations
(4) Create transitions in Height and mass with

Yes

Yes
Abutting properties and Transect Zones.
II)BUILDING CONFIGUR ATION:

Applicability

Compliance
(1) Articulate the Building Facade vertically and

Yes.

Yes
horizontally in intervals appropriate to the existing
Neighborhood and Transect Zone.
(2) Articulate the Building Facade at street level to

Yes

Yes
recognize pedestrian continuity and interest, and
at upper levels to recognize long views of
Buildings
(3) Use architectural styles and details (such as roof

Yes

Yes
lines and fenestration), colors and materials
derivative from surrounding area..
(4) Design Facades that respond primarily to human

Yes

Yes
scale.
(5) Promote pedestrian interaction.

Yes

Yes
(6) Design all walls as active Facades, with doors

Yes

Yes
and windows; when not possible, embellish walls
with architectural design treatment.
(7) Provide usable Open Space that allows for visible

Yes

Yes
and convenient pedestrian access from the public
sidewalk.
(8) Building sites should locate service elements,

Yes

Yes
such as trash dumpsters, utility meters, loading
docks,. backflow preventers, siamese connections
and electrical, plumbing, mechanical and
communications equipment away from a street
front. All service elements shall be situated and
screened from view to the street and adjacent
properties.
4
File No, 13. 0077 R E V ISE D
Ill)BUILDING FUNCTION&DE NSITY:

Applicability

Compliance
(1) Respond to the Neighborhood context and

Yes

Yes
Transect Zane.
IV)PAR KINGSTANDARDS:,

Applicability

Compliance.
(1) Minimize the impact of automobile parking and

Yes

Yes
driveways on the pedestrian environment and
adjacent properties, especially T3 areas.
(2) For pedestrian and vehicular safety minimize

Yes

Yes
conflict points such as. the number and width of
driveways and curb cuts.
(3) Minimize off-street parking adjacent to a

Yes

Yes
thoroughfare front and where possible locate
parking behind the Building.
(4). Design landscaping or surface parking areas as

N/A
buffers between dissimilar Uses.
(5) Screen parking garage structures with Habitable

Yes

Yes*
Space. Where Habitable Space is not provided,
architectural treatments and landscaping shall
screen the garagestructure.
V)LANDSCAPE STAND ARDS:

Applicability

Compliance
(1) Preserve existing vegetation and/or geological

Yes

Yes*
features whenever possible.
(2) Reinforce Transect Zone intention by integrating

Yes

Yes*
landscape and hardscape elements.
(3) Use landscaping to. enhance Building design and

Yes

Yes*
continuity of Streetscape.
(4) Use landscape material, such as plantings,

Yes

Yes*
trellises, pavers., screen walls, planters. and
similar features, to enhance building design and
continuity of streetscape.
(5) Provide landscaping that screens undesirable

Yes

Yes*
elements, such as surface parking lots, and that
enhances open space and architecture,
VI)SIGNSTANDARDS:

Applicability

Compliance
(1) Provide signage appropriate for the scale and

N/A
character of the project and immediate
Neighborhood.
(2) Provide functional and aesthetic signage

N/A

.
identifying Building addresses at the entrance(s).
5
File No, 13-0077 * R E V ISE D
Vll)AMBIE NT STANDAR DS

Applicability

compliance
(1) Provide lighting appropriate to the Building and

Yes

Yes
landscape design in a manner that coordinates
with signage and street lighting.
(2) Orient outdoor lighting to minimize glare to the

N/A
public realm and adjacent properties.
(3) Protect residential areas from excessive noise,

NIA
fumes, odors, commercial vehicle intrusion, traffic
conflicts and the spillover effect of light,
.6
EXHIBIT "E"
GROUND LEASE RECOGNITION AND NON-DISTURBANCE AGREEMENT
[see attached]
GROUND LEASE RECOGNITION AND NON-DISTURBANCE AGREEMENT
THIS GROUND LEASE RECOGNITION AND NON-DISTURBANCE AGREEMENT
("AGREEMENT"), made as of theday of

, 2014, by and between


the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, whose address
is 3500 Pan American Drive, Miami, Florida 33133, Attn: City Manager ("Landlord") and
SkyRise Miami, LLC, a Florida limited liability company, having its principal office at c/o
Berkowitz Development, 2665 South Bayshore Drive, Coconut Grove, Florida, 33133, Attn:
Jeffrey L. Berkowitz ("Sub-Ground Tenant").
A. Landlord is lessor under that certain lease with Bayside Marketplace, LLC, a
Delaware limited liability company ("Ground Tenant"), successor by merger to Bayside Center
Limited Partnership, a Maryland limited partnership, as lessee, dated October 15, 1985, as
amended by First Amendment dated August 19, 1986, Second Amendment dated November 24,
1987, a Third Amendment dated April 15, 1993 and a Fourth Amendment executed
contemporaneously with this Agreement (the "Ground Lease"), which demises certain real
property (the "Premises") commonly known as Bayside, located in Miami, Florida. A
memorandum of the Lease was recorded in Book 12684, at Page 157, and supplemented in Book
13492, at Page 3199, both of the Public Records of Miami-Dade County, Florida.
B. Ground Tenant sub-ground leased a part of its lessee's interest under the Ground
Lease to Sub-Ground Tenant pursuant to that certain Sub-Ground Lease dated March 29, 2013
(attached hereto as Exhibit A-1), as amended by First Amendment thereto dated, 2014
and by(the "Sub-Ground Lease"), which portion is more particularly described on Exhibit
A attached hereto (such Exhibit A is subject to tweaking or minor adjustment//completion to
accurately describe the Demised Premises, as finally agreed upon between Ground Tenant and
Sub-Ground Tenant) and made a part hereof (the "Demised Premises"). A short form of the Sub-
Ground Lease was recorded in Bookat Pageof the Public Records of Miami-Dade
County, Florida.
NOW, THEREFORE, it is agreed as follows:
1. Landlord acknowledges that it has received a copy of, and has no present
objection to, the subletting by Ground Tenant to Sub-Ground Tenant under, the Sub-Ground
Lease; and for so long as Sub-Ground Tenant is not in default of any of its obligations under the
Sub-Ground Lease beyond any applicable notice and cure periods as would permit Ground
Tenant to terminate the Sub-Ground Lease (including, without limitation, notice, cure period and
other rights available to a Leasehold Mortgagee, as defined in the Sub-Ground Lease, under
Article XXX of the Sub-Ground Lease), Landlord shall not knowingly disturb or deprive Sub-
Ground Tenant in. or of its possession or its rights to possession of the Demised Premises or of
any right or privilege granted to or inuring to the benefit of Sub-Ground Tenant under the Sub-
Ground Lease, nor will Landlord bring any action against Sub-Ground Tenant to accomplish
same. Ground Tenant and Sub-Ground Tenant acknowledge and agree that the Landlord shall be
afforded not more than thirty (30) days following the date of City Commission approval of this
Agreement to request changes on matters impacting the landlord's interest in the Sub-Ground
Lease, and the consent of Tenant and Sub-Ground Tenant to such changes will not be
unreasonably withheld, denied or delayed. If no request is timely made, Landlord shall be
deemed to have approved the Sublease without change. If request is timely made, the Sublease
as so changed will be deemed to have been approved by Landlord.
2. If the Ground Lease terminates for any reason, including its natural expiration
date, and provided Sub-Ground Tenant attorns to Landlord, the Sub-Ground Lease (as
supplemented/modified by this Agreement) shall continue in full force and effect,
notwithstanding such termination of the Ground Lease, as a direct lease (such a direct lease
would be in replacement of or substitution for the Ground Lease) between Landlord and Sub-
Ground Tenant for the remainder of the term of the Sub-Ground Lease, including all renewal
options that are available to be exercised under the Ground Lease, whether exercised or not,
without the necessity of executing a new lease, and on the same terms and conditions as are in
effect under the Sub-Ground Lease immediately preceding the termination of the Ground Lease,
but as supplemented/modified by this Agreement, as it may be amended in the event of a
termination of the Ground Lease with the approval (in their sole discretion) of Sub-Ground
Tenant, Landlord and the holder of any mortgages on their respective interests in the fee or
leasehold estate that is the subject matter of the Sub-Ground Lease.
3. The term of the Sub-Ground Lease shall be coterininous with the term of the
Ground Lease, including all available renewal options (the Ground Lease has a current term that
runs through November 30, 2030, with two (2) fifteen (15) year options to extend the term
through November 30, 2060), whether now existing or hereafter granted and whether or not
exercised. For clarification purposes, if a currently existing or subsequently granted renewal
option under the Ground Lease is not exercised, the Sub-Ground Lease shall nonetheless
continue as a direct lease (such a direct lease would be in replacement of or substitution for the
Ground Lease) between Landlord and Sub-Ground Tenant until the expiration date of the last
renewal period under the Ground Lease as if all renewal options under the Ground Lease had
been timely and effectively exercised (the term of the Sub-Ground Lease shall be deemed
automatically so extended). Further, the easements granted for the benefit of Ground Tenant
under the Ground Lease (including the "Developer Vehicular Access Easement" granted in
Section 2.3(b)(ii) of the Ground Lease, which is hereby expanded to include unobstructed access
by all vehicles), the obligations of Landlord under the Ground Lease related to the City
Improvements and Bayfront Park (as such terms are defined in the Ground Lease), and the
obligations contained in Section 11.6 of the Ground Lease for Landlord to join in certain matters,
and the remedies contained in the Ground Lease that are available in the event of a default by
Landlord pertaining thereto, shall continue for the benefit of Sub-Ground Tenant under the Sub
Ground Lease during the entire term thereof, including extensions, to the extent applicable to the
Demised Premises or the use and enjoyment thereof.
4.
As to the Demised Premises, compliance by or on behalf of Sub-Ground Tenant
with the terms of the Sub-Ground Lease shall be deemed compliance by or on behalf of Ground
Tenant
with terms of the Ground Lease that address the same or comparable matters
notwithstanding deviations between the provisions of the Sub-Ground Lease and the Ground
Lease. In furtherance of the foregoing, but without limiting same, the development, construction,
operation and uses permitted by the Sub-Ground Lease shall be permitted (including the height
and size of improvements subject to compliance with applicable laws) notwithstanding any
restrictions thereon contained in the Ground Lease; the insurance required under the Sub-Ground
Lease shall be applicable notwithstanding different insurance requirements contained in the
Ground Lease; the provisions related to insurance and condemnation (including the allocation of
proceeds or awards) shall be applicable notwithstanding different provisions pertaining thereto
contained in the Ground Lease; there shall be no art in public places requirement pertaining to
the Demised Premises (the parties acknowledge that, due to the unique design of the Tower to be
constructed, it in and of itself can be considered a work of art); transfers of the leasehold estate
created by the Sub-Ground Lease shall be freely transferable and sublettable notwithstanding any
provisions of the Ground Lease to the contrary; and the minority participation provisions of the
Ground Lease shall be inapplicable to the Sub-Ground Lease, the premises demised thereunder
and the activities contemplated thereby. Landlord acknowledges and agrees that the equipment
liens provision contained in Article XXXIX of the Sub-Ground Lease shall be applicable to and
binding on Landlord, and that Landlord shall have no consent rights in respect of, and no right to
participate in any manner in the, financing or refinancing of the leasehold estate existing
pursuant to the Sub-Ground Lease in the Demised Premises.. Notice of the name and address of a
Leasehold Mortgagee, which shall be sufficient to satisfy the provisions of Section 30.01 of the
Sub-Ground Lease as to Landlord, shall be provided to Landlord at the following address: 3500
Pan American Drive, Miami, Florida, 33133, Attn: City Manager.
5. Landlord acknowledges that, in its capacity as property owner (but not in its
governmental capacity), it has reviewed and approved the plans described on Exhibit B attached
hereto and made a part hereof, and that no further approval of plans for the development,
reconstruction or alteration of the Demised Premises shall be required, either under the Ground
Lease or under the Sub-Ground Lease, if the latter becomes a direct lease between the parties
hereto as provided in this Agreement. The foregoing shall not limit Landlord in its review and
approval of matters in its governmental authority capacity.
6. Landlord acknowledges and agrees that any financing of its fee interest in the
Demised Premises is and shall remain subordinate to the leasehold estate created by the Sub-
Ground Lease (and any New Lease, as defined in the Sub-Ground Lease, regardless of when
same is entered into) and the lien of any leasehold financing encumbering such leasehold estate;
and all parties who may acquire any interest in financing encumbering Landlord's fee interest in
the Demised Premises are hereby put on notice of this provision.
7. Any matter requiring or permitting the approval, consent or entering into of a
written instrument by the City Manager under the Ground Lease shall be satisfied if approved,
consented to or entered into by the City Manager or approved by the City Commission, as
applicable, or the successor to either of such position/body, with the approval or consent of the
City Commission being required only to the extent specifically required by the Ground Lease or
applicable law.
8. Landlord agrees, from time to time upon written request of Sub-Ground Tenant,
to provide for the benefit of Sub-Ground Tenant the joinders contemplated by Section 11.6 of the
Ground Lease, as they relate to the Demised Premises, or the development, use or operation
thereof, a Sublease Recognition and Non-Disturbance Agreement for subleases of the Demised
Premises that may from time to time be entered into (in the form attached hereto as Exhibit C,
with such changes as may be requested by Sub-Ground Tenant and are reasonably acceptable to
Landlord), and a customary estoppel letter containing such truthful information as Sub-Ground
Tenant may reasonably request regarding the Sub-Ground Lease.
9. Sub-Ground Tenant, prior to the commencement of its initial development of the
Demised Premises (excluding the "Foundation Work" provided for in the Hold Harmless and
Indemnification Agreement between Landlord, Ground Tenant and Sub-Ground Tenant), will (i)
pay the City of Miami Seven Hundred Thousand Dollars ($700,000.00) which represents
estimated lost revenues for the marina operation due to the development of the Demised Premises
(all additional amounts due to the City to cover any lost revenue shall be due immediately upon
the City's demand to Sub-Ground Tenant, and City shall reimburse Sub-Ground Tenant for any
overpayment, if any, of the lost stream of revenue immediately following a determination of the
amount thereof); (ii) relocate the existing Dock Master's Office, restrooms and showers into a
temporary trailer facility to be located on the Premises, but outside the Demised Premises, at a
location to be determined and reasonably acceptable to Landlord, as evidenced by the written
consent of the City Manager or his designee, and (iii) demolish the existing Dock Master's
Office, restrooms, showers and other facilities on the Demised Premises. After the work
described in subparts (ii) and (iii) has been performed and as part its initial development of the
Demised Premises, Sub-Ground Tenant shall construct and build-out, substantially as depicted
and described on the. plans described on Exhibit B attached hereto, the following facilities (the
"Facilities"): (a) a new Dock Master's Office/Marina offices (including dedicated stairs), to be
located on level L1M, containing square footage not less than seven hundred seventy (770)
square feet, (b) Marina amenities consisting of new restrooms, laundry/lockers, storage and
shower facilities, to be located on level L1, containing square footage not less than eight hundred
sixty four (864) square feet, (c) a City of Miami fire substation, to be located on Level 2,
containing square footage not less than two thousand (2,000) square feet, (d) City of Miami
Dept. of Fire Rescue Utility Area, to be located in the basement level, containing square footage
not less than six hundred sixty seven (667) square feet, (e) Marina storage area, to be located in
the basement level, containing square footage not less than one thousand one hundred thirty two
(1,132) square feet and (f) no less than 42 parking spaces in the below grade parking structure to
be erected as part of the initial improvement to the Demised Premises. The minimum square
footage figures set forth in subparts (a), (b), (c), (d) and (e) shall be subject to construction
tolerances of up to 5% (shortage). The square footage figures set forth in subparts (c) and (d)
shall also be subject to reduction, if any, based on Fire Department review of space allocation
and suggestions based on what is being implemented in similar projects under way in the City.
Said Facilities shall be available for use for the designated purposes only by the City of Miami
(but not an assignee or transferee) without any payment to Sub-Ground Tenant, but such
Facilities and the marina itself (which shall be reconfigured as reasonably agreed to and set forth
in a separate agreement to be entered into between the City of Miami, Ground Tenant and Sub-
Ground Tenant) shall be subject to such standards for management, operation and maintenance
as are reasonably agreed to and set forth in a separate agreement to be entered into between the
City of Miami, Ground Tenant and Sub-Ground Tenant (modeled after the management,
operation and maintenance standards currently provided for in the Miamiarina Agreement dated
October 24, 1985 between Bayside Center Limited Partnership (currently Ground Tenant) and
the City of Miami, as amended, which shall be superseded by such new separate agreement with
the written consent of the Ground Tenant).
10. Sub-Ground Tenant agrees to post (or cause its contractor(s) to post) payment
and performance bond(s) in favor of Landlord, in substantially the form prescribed by 255.05,
Fla. Stat. for the full amount of the construction, as that term is defined by the AIA Glossary of
Construction Industry Terms, latest edition, for the cost of all initial construction of the Project
(as defined in the Sub-Ground Lease) to be performed by Sub-Ground Tenant. The bond shall
be issued by a Florida licensed surety company rated A: V or better per A.M. Best's Key Rating
Guide and shall be subject to approval as to form by Landlord's Risk Manager and City
Attorney. Landlord and, at Sub-Ground Tenant's option, Ground Tenant, shall be listed as
obligee.
11. Sub-Ground Tenant agrees to indemnify, defend (at Sub-Ground Tenant's
expense) and hold harmless Landlord, its officials, officers, and assigns, servants, agents and its
employees, from any claims, demands, liabilities, losses, causes of action of any nature
whatsoever arising out of or in connection with the Project (as defined in the Sub-Ground Lease),
from any injuries to property and persons during the construction of the Project, the granting of
any building permits or other required governmental approvals for the Project, from and against
all costs, fees, expenses, liabilities, any orders, judgments or decrees which may be entered in
from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of such
claim or in the investigation thereof, in each case other than those claims, demands, liabilities,
losses, causes of action or injuries, if any, caused by the acts or omissions of Landlord, its
officials, officers, agents, servants, employees, representatives, assigns and contractors. This
indemnity shall survive the issuance of a certificate of occupancy or its equivalent for the Project
and shall continue in effect for the applicable Statute of Limitations period prescribed by Chapter
95, Florida Statutes. Further, all liability (including liquor liability) insurance maintained by or
for the benefit of Sub-Ground Tenant under Section 9.01 of the Sub-Ground Lease shall include
Landlord as an additional insured, to the same extent as Ground Tenant is so named.
12.
Sub-Ground Tenant shall pay to Landlord a one time "Transfer Fee" in the
following amount upon the first "Transfer" of the Sub-Ground Tenant's leasehold interest in the
Sub-Ground Lease:
a.
3% of gross sales price of the Sub-Ground Tenant's leasehold interest in the Sub-Ground
Lease if the sale occurs during the 5 year period commencing on date of approval of the Ground
Lease Referendum (as defined in the Fourth Amendment to the Ground Lease).
b.
2% of gross sales price of the Sub-Ground Tenant's leasehold interest in the Sub-Ground
Lease if the sale occurs during years 6-10 immediately following the date of Referendum
approval.
c.
1.5% of gross sales price of the Sub-Ground Tenant's leasehold interest in the Sub-
Ground Lease if the sale occurs during or after years 11 immediately following the date of
Referendum approval).
A Transfer shall mean a total full or partial assignment of all of the leasehold interests of Sub-
Ground Tenant in the Sub-Ground Lease (other than in connection with any financing or
refinancing contemplated by the Sub-Ground Lease), or one or more transfer in the aggregate
which result in a transfer to an unaffiliated third party of more than 50% of the membership or
other ownership interests of the Sub-Ground Tenant entity.
A Transfer shall not include (i)
transfers between the initial members or their affiliates, or to or among their principals, family
members, or trusts or other entities which they control, in one or more steps, of SkyRise Miami,
LLC as of the time it closes on its initial construction financing for the Project, (ii) as to any
other entities that
may succeed to the leasehold interests of Sub-Ground Tenant, transfers
between holders of ownership interests or their affiliates, or to or among their principals, family
members, or trusts or other entities which they control, as of the time the entity in which they
hold ownership interests acquires its leasehold interest in the Sub-Ground Lease, (iii) transfers
upon death of individuals to their heirs or devisees, (iv) transfers to trusts or other entities
controlled at the time of the transfer by the party making the transfer into the trust, (v) transfers
to a lender or its affiliate(s) by reason of foreclosure, the giving of a deed in lieu thereof or other
realization of a security interest in the Sub-Ground Lease (or the subsequent transfer by such
lender or its affiliate(s)) or (vi) any other transfer that is not a bona fide arms length transaction
with an unaffiliated third party.
Once a transaction has occurred for which a Transfer Fee is
payable, the provisions of this Section 12 shall be void and of no further force or effect.
13. Landlord shall, within 30 days of request of Sub-Ground Tenant, from time to
time memorialize in a recordable writing its approval of any further amendments to the Sub-
Ground Lease, if applicable (whereupon the definition of Sub-Ground Lease in this Agreement
will be automatically expanded to include such future amendments) to address, among other
things, the granting or confirmation of rights appurtenant to the Demised Premises related to
access roads serving Demised Premises, allocation of responsibility between Ground Tenant and
Sub-Ground Tenant for compliance with certain title documents, allocation of rights and
responsibilities between Ground Tenant and Sub-Ground Tenant related to the private sewage
facilities serving the Demised Premises, and the granting or confirmation of rights appurtenant to
the Demised Premises related to parking rights off of the Demised Premises.
14. Any notices, consents, approvals, submissions, demands or other communications
(hereinafter collectively referred to as "Notice) given under this Agreement shall be in writing.
Unless otherwise required by law or governmental regulation, Notices shall be deemed given if
sent by registered or certified mail, return receipt requested, postage prepaid (a) to Landlord, at
the address of Landlord as hereinabove set forth or such other address as Landlord may designate
by notice to the other parties hereto, with a copy to City of Miami Director of Public Facilities,
444 SW 2nd Av., 3rd Floor, Miami, Fla. 33130-1910, (b) to Sub-Ground Tenant, then in
duplicate under separate cover, one copy to the address of Sub-Ground Tenant as hereinabove set
forth and one copy to John Sumberg, Esq., Bilzin Sumberg Baena Price & Axelrod LLP, 1450
Brickell Avenue, Suite 2300, Miami, FL 33131 or such other addresses or persons as Sub-
Ground Tenant may designate by Notice to the other parties hereto.
Delivery by nationally
recognized overnight courier service or by hand delivery, with all charges prepaid, may be
substituted for registered or certified mail.
All Notices shall be deemed served or given on the
date received (as evidenced by the return receipt or courier's receipt for delivery) or the date
delivery was refused or unavailable due to an unnoticed change of address.
15.

No modification, amendment, waiver or release of any provision of this


Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or
binding for any purpose whatsoever unless in writing and duly executed by an authorized
representative of the party against whom the same is sought to be asserted.
16. This Agreement shall run with the Demised Premises and shall, while the Sub-
Ground Lease remains in full force and effect (either as a sub-ground lease
between Ground Tenant and Sub-Ground Tenant, or as a direct ground lease between Landlord
and Sub-Ground Tenant), be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors, assigns and subleases. This Agreement
shall survive termination of the Ground Lease, unless the Ground Tenant has rightfully
terminated the Sub-Ground Lease.
17.

Either party may record this Agreement amongst the Public Records of Miami-
Dade County, Florida, at its cost.
18. Either party agrees, from time to time within fifteen (15) days of request
therefore, to provide an estoppel certificate to the other setting forth such truthful information as
the requesting party may reasonably request. The Developer shall pay the City a fee of Seven
Hundred and Fifty Dollars ($750.00) for each estoppel.
Balance of page is intentionally blank
IN WITNESS WHEREOF, Landlord has caused this Ground Lease Recognition and
Non-Disturbance Agreement between Landlord and Sub-Ground Tenant to be executed under
seal the date first above written.
WITNESSES (as to City Manager and City THE CITY OF MIAMI, a municipal
Clerk):

corporation of the State of Florida


By:By:
Print Name:

Print Name: Daniel J. Alfonso


Title: Witness

Title: City Manager


By:

Print Name:
Title: Witness
APPROVED AS TO LEGAL FORM

ATTEST:
AND CORRECTNESS:
By:By:_
Print Name: Victoria Mendez

Print Name: Todd Hannon


Title: City Attorney

Title: City Clerk


STATE OF FLORIDA

)
) SS.:
COUNTY OF MIAMI-DADE

)
The foregoing instrument was acknowledged before me thisday of
, 2014, by Daniel J. Alfonso, the City Manager, and Todd Hannon, the City
Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforestated; each
such person is personally known to me.
Sign Name:
Print Name:
Notary Public
My Commission Expires

Serial No. (None if blank):


[NOTARIAL SEAL]
IN WITNESS WHEREOF, Sub-Ground Tenant has caused this Ground Lease
Recognition and Non-Disturbance Agreement between Landlord and Sub-Ground Tenant to be
executed under seal the date first above written.
WITNESSES: Sk yRise Miami, LLC, a Florida limited
liability company, by Berkowitz Development
Group, Inc., a Florida corporation and its
manager
By:By:
Print Name:

Print Name: Jeffrey L. Berkowitz


Title: Witness

Title: President
By:
Print Name:
Title: Witness
[Entity Seal]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me thisday of
, 2014, by Jeffrey L. Berkowitz, as President of Berkowitz Development
Group, Inc., as manager of SkyRise Miami, LLC, in the capacity aforestated; such person is
personally known to me.
Sign Name:
Print Name:
Notary Public
My Commission Expires

Serial No. (None if blank):


[NOTARIAL SEAL]
Exhibit A-1 to Ground Lease Recognition and Non-Disturbance Agreement
Sub-Ground Lease
[See Attached]
1

Dated as of

M
2011
by and between
:BAYSJDE MARKETPLACE, LLC
as Landlord
and
SKYHIGH MIAMI, LLC
as Tenant
BAYSIDE MARKETPLACE
SUB-GROUND LEASE
TAB L OIC CONTENTS
Page
ARTICLE 1-- DEFINITIONS ,,,
ARTICLE 1.1 GRANT AND TERM
6
Section 2,01

Grant6
Section 2,02

Tower 'Pa rkin r7


Section 2,03

Title to I3ayside Property7


Section 2,04

Site Plan8
Section 2.05

Acceptance of Demised Premises,,,,.,,,,8


Section 2,06

Term,,,.9
ARTICLE . CONSTRUCTION OF IMPROV1 MENTS 9
Section 3 ,0

Utilities9
Section 3,02

Tenant's Plans9
Section 3,03

Const r uction of 'Tomcat's Improvements11


Section 3,01

Expenses16
Section 3,05

Other Improvements16
Section 3.06

Signage
1C
ARTICLE IV RENT
17
Section 4,01

PreopeningRent17
Section 4.02

Fixed Rent17
Section 4.03

Percentage Rent18
Section 4,04

Interest on Late Payments20


Section 405

Maintenance Charge20
ARTICLE V
w
CONDUCT OF BUSINESS BY TENANT20
Section 5.01

Use of Demised Premises20


Section 5.02

Project Manager
22
Section 5 .03

Tenant's Covenant to Open, 23


Section 5.04

Continuous Operation2.3
Section 5.05

Compliance with Laws and Regulations 23


Section 5.06

Business `Tlorus
23
Section 5.07

Common Areas,,73
Section 5.08

Fireworks Displays
24
ARTTICLI VI. UTILITIES24
ARTICLE VII . IMPOSITIONS
Section 7.01

Creation of Separate Tax Parcel 2G1


Section 7.02

Payment of Separately-Assessed Taxes25


Section 7.03

Taxes without Separate 'Tax Parcel From and Al per Completion of the Initial
Tenant's Improvements
25
TABLE OF CONTENTS
Page

Section 7.04

Taxes Without Separate Tax Parcel Prior to C^^^^^^e Initial levant


Improvements
26

Section '7.05

Interest and Penalties


26
ARTICLE Vitt -INSPECTION, MAINTENANCE AND REPAIR OF 'HIE DEMISED PREMISES ..
..2 6

Section 8.01

Maintenance by Landlord-~26

Section 8,02

Maintenance byTenant
-~20

Section 8,03

Alterations byTenant
2J

Section 8.04

Tenant's Right to Inspect

....~
27
ARTICLE IX -INSURANCE AND INDEMNITY
2 J
Section 9.01

Tenant's Insurance
27

Section 9.02

Indemnification of Landlord
~3O

Section 9.03

Indemnification of Tenant ~
31
ARTICLE X-D&k4AG88YCASDAl]Y
31

Sedan Ito]

Restoration
~8

Section 10.02

Damage Near EndofTerm ,....'`-~32


ARTICLE XI -00NDEK4NATlON
' ._ 32

Section \|.0]

Taking for 7wxponuy the


32

Section |L02

Total Taking
]2

Section 11.03

Substantially Total TuhQ


33

Section ||.04

Partial Taking~~--'33

Section 1 1A5

TuNn*or Tna|Taking (O8m/1YmnToking Nn


Temporary

'^

Section 11,06

E)oumgnNear End of Term


~.~34
ARTICLE X|1~ASMUNN<GN7AND Si9IETTD1O^ ] S
Section 12A

Consent Krqukod _
-35
ARTICLE X ]D-TENANT'S DEFAULT
26

Section 13.01

Events of Default
88

800hmn 13,02
37

Section ]=

Computation of Rent
~'^~37

Section 13.04

Comm Expenses and Attorneys' Fees ~3U


ARTICLE XIV -HOLDING OVER
38
ARTICLE XV --ACCESS BY LANDLORD~
38
ARTICLE, XVI -- LANDLORD'S DEFAULT ~^-~~~'---^-~'~-~-^^--~~^^~~
9x
ARTICLE XVII -R8k403KSS CUMULATIVE ..--....---'^---
39
ARTICLE XVIII -AUTHORIZATION
39

Section l&0i

Landlord's Authorization~.^
2V

Section 18.02

Tenant's Authorization
39
U
TABLE OF CONTENTS
(continued)
Page

ARTICLE XIX as

QUIET POSSESSION
39

Section 19,01

Covenant of Quiet Enjoyment


39

Section 19,02

Recognition Agreement
40

ARTICLE XX ....

INTENTIONALLY OMITTED,,,610
ARTICLE XX[ MISCELLANEOUS PROVISIONS
40

Section 21,01

Relationship of Parties
40

Section 2 1.02

Construction
40

Section 21,03

Parties Bound
40

Section 21,04

Entire Agreement
40

Section 21.05

Brokers
AO

Section 21,06

Savings and Governing Law/Venue _ 41

Section 21,07

Force Majeure
41

Section 21.08

Recording of Lease
41

Section 21,09

Statements and Inv oices


412

Section 21.10

No Option
42

Section 21.1 1

Notices
41>
Section 21,12

Assignment to Mortgagee,,,,,413

Section 21.13

Landlord's Liability
43

Section 21.14

Not Lease
43

Section 21.15

Right to Perform Tenant's Covenants 44

.
Section 21.16

Public User
041

Section 21.17

Estoppel Certificates
44

Section 21.18

Execution of Documents
44

Section 21.19

Ownership
44

Section 21.20

Waiver of Redemption
45

Section. 21.21

Confidentiality
45

Section 21.22

Disputes/independent Export ,
41J
ARTICLE X.hll -

TITLE TO IM.1'ROVT. M1 N"SURRENDER46

ARTICLE XXIII wM

MECHANICS' LIENS 4 1 E>


ARTICLE XX IV ..-

PRESENT CONDITION OF DEMISED PREMISES417

ARTICLI XXV

HAZARDOUS MATERIALS,,48

Section 25,01

Prohibition of Hazardous Materials


48

Section 25.02

Envir onmental Indemnities


48

Section 25.03

Remediation
448

Section 25.04

Providing Information
49

Section 25,05

Existing Environmental Audit


49

ARTICLE X.XVI ,..

SPECIAL PROVISIONS ,
49
TABLE OF CONTENTS
(continued)
Page
Section 26.01

Florida State Sales Tax


49
Section 26,02

Mechanics Liens >

,,,,,,,,,,,,,,,,,,,,,,,,,,,,619
Section 26.03

Radon Gas,
-49
Section 26.04

No Withholding of Rent
49
Section 26.05

Conflict of Interest
49
ARTICLE XXVII .., CONTINGENCIES
49
Section 27.01

Construction Commencement
50
Section 27.02

Construction Completion
50
Section 27.03

Termination Rights ,,< ,51


A RTICLE XXVIII RENEWABLE ENERGY
51
ARTICLE XXIX REPRESENTATIONS AND WARRANTIES
51
Section 29.01

Landlord's Representations--
51
Section 29,02

Tenant's Representation
52
ARTICLE XXX FINANCING
53
Section 30,01

Notice to Landlord
53
Section 30,02

Right to Cure
53
Section 30,03

Assignment by the Leasehold Mor tSn cc54


Section 30.04

New Lease
54
Section 30,05

Impairment
54
Section 30.06

No Merur
55
Section 30,07

Multiple Leasehold Mortgages


55
Section 30.08

Liability of the Leasehold Mortgagee"55


Section 30,09

Leasehold Mortgagee Action


55
Section 30.10

Tenant Covenants
5'5
ARTICLE XXXI - NAMINC.3 RIG'H'I'S
55
ARTICLE XXXII -- PATRIOT ACT AND SIMILAR REQUIREMENTS 56
ARTICLE XX;XIII - 2013 U.S, DOLLA.RS
56
ARTICLE XXXIV TERMINATION OF CITY RIGHTS CC.IN'rING.I NCY
56
ARTICLE XXXV -- LANDLORD MORTGAGE LENDER APPROVAL CONTINGENCY 56
ARTICLE XXXVI - PRIME LANDLORD APPROVAL CONTINGENCY
57
ARTICLE XXXVII
W
GOVERNMENTAL API.'ROVALS AND FINANCING CONTINGENCY55
ARTICLE XXXVIII . REASONABLENESS AND GOOD FAITII
58
ARTICLE XXXIX - EQUIPMENT LIENS
58
iv
"A"

Site Plan showing, BayvNvMarketplace (including Pier, Demised Promises, Parking (brag() and Marina)
[Recital A]
"13"

Preliminary Sketch of Tenant's improvements [Recital 8]


"C"

Legal Description or Masai Promises 'Article 11


Plan Submittals [Section 3.02]
O"

Form of Payment and Performance Guaranty of Jo[0ayL.Berkowitz 'Section 3.031


F

Exclusive Lisa Re.9(hChnsIS oofloo5.0l)


"O"

Landlord Approved Form or Subtenant NDA [Section 12.01(a)]


GROUND LEASE
ti
THIS SUB-GROUND LEASE (this "Lease") is made and entered into as of_ AQ,sL01'ag 2013 (the
"Execution Daie") by and between RAYSIDE MARKETPLACE, LLC, a Delaware limited liability company
("Landlord") and SKYHfGH MIAMI, LLC, a Florida limited liability company ("Tenant").
&cltals
A.
Pursuant to that certain Retail Parcel Lease and that certain Parking Garage Lease (as such learns
are hereinafter defined), Landlord is the ground lessee of certain real property located in Miami, Florida, known as
Bayside Marketplace (the "Bayside Property"), as generally depicted on the site plan attached hereto as Exhibit "A"
(the "Site Plan").
13,

Tenant wishes to sublease from Landlord the Demised Premises (as hereinafter defined and
generally depicted on the Site Plan) in order to construct on the Demised Premises a tower structure (tile "Tower")
and related improvements
the "Tenant's Improvements") and to operate the 'Tenant's Improvements
on the Demised Promises as a retd/restaurantlentarluinmentlflying theater tourist attraction (the "Project"),
A
preliminary conceptual rendering of the Tenant's Improvements is attached hereto as Exhibit "13"
Landlord is willing to lease the Demised Premises to imam upon the terms and subject to the
conditions set forth herein for such purposes.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged,. Landlord and Iona agree as follows:
ARTICLE I t- DEFINITIONS
For purposes of this Lease, and in addition. to terms defined elsewhere in this Lease, the following defined
terms shall have the meanings ascribed thereto in this Article 1.
"Additional Rent" moans any and all payments that Tenant is obligated to make to Landlord under the
terms of this Lease other than Preopening Rent, Fixed Rent and Percentage Rent.
"Affiliate"
means, with respect to any Entity, an Entity Controlling, Controlled by, or under common
Control with such Entity.
"Allocated Condemnation Proceeds" is defined in Section 11,05(a) of this. Lease.
"Applicable Breakpoint" is defined in Section 4,03 of this Lease.
"Bay front Park Owner" means the owner of record of .13ayfiiont Park.
"Bayfaont Park Parking Garage" is defined in Section 2.02 of this Lease.
"13ayfiiont Park Parking Garage Lease" is defined in Section 2.02 of this Lease,
"Bayside Property" is defined in the recitals of this Lease,
"Below Tower Parking" is defined in Section 2.02 of this Lease,
"Business Day" or "Business Days" means individually or collectively, each calendar day of the week
other Man Saturday, Sunday and nationally or State of Florida recognized holidays.
"Commencement Contingency" is defined in Section 27,01 of this Lease.
"Completion Contingency" is defined in Section 27.02 of this Lease.
"Construction Commencement Date" means the date as of which Tenant commences the construction of
the Tenant's Improvements, which shall be evidenced by the commencement of the installation of foundations,
footers, pilings or the like (site clearing and the mobilization of equipment and resources therefor shall not be
considered for purposes of determining the Construction Commencement Date)i
"Control" (and the coa'relaiiv'e terms, "Controlled by" and "Controlling") moans the possession, directly of
indirectly, of the power to direct or cause the direction of management and policies of tlae business and affairs of the
Entity in question by reason of the ownership of voting interests, by contract or otherwise.
"Default late" is defined in Section 4.04 of this Leas
"l: enaised Premises" is that portion of the I3ayside Property located on the Pier and generally depicted on
the Site Plan, together with all Easements as provided fir in this Lease. The exact legal description of the Demised
Premises shall be determined pursuant to an ALTA. survey (the "Survey") prepared by Tenant, at "T'enant's sole
expense, and submitted to Landlord as part of the Site Development Plan Package described In Section 3.02(a)
below. Once approved as part of the Site Development Plan Package, the legal description of the Demised Promises
shall be added to this Lease as Exhibit "C"
"Demolition Estimate" is defined in Section 3.03(a)(vi) of this Lease.
"Easements" is defined in Section 3,030 of this Lease.
"I T3
.
5 Funds" means those Rands, if any, to be provided through' an E13-S Regional Center to finance the
Project.
"ED-5 Regional Center" means the investment vehicle formed pursuant to the dictates of the USC1S'
program commonly refen'ed to as the E R-5 immigrant investor program under 203(b)(5) of the Immigration Act of
1990; S U.S.C. 1153(b)(3).
"Energy Credits" is defined in Article XXVI'fl of this Lease.
"Entity" means any individual, corporation, limited liability company, partnership (general, limited or
limited liability), joint venture, association, joint stock company, trust or other business entity, organization or
association.
"Event of Default" is defined in Section 13.01 of this Lease,
"Evidence of Commencement of Construction" is defined in Section 3.03(c) of this Lease;.
"Evidence; of Completion of Construction" is defined in Section 3.03(c) of this Lease.
"Expenses" is defined inSection 3.04 of this Lease.
"Expiration Date" is defined in Section 2.06(a) of this Lease.
"P"F&E" is defined, in Article XXXIX.
"Fixed Rant" is defined in Section 4,02 of this Lease.
"Guarantor " means.leffrey L. Berkowitz, individually.
2
"Guarantor Financial Statements" is defined in Section 3,0,3(a)(vi) ofthis Lease,
"Governmental Approvals" is defined in Section 3.03(b) hereof.
"Gross Sales" means the dollar aggregate of (i) all gross revenues directly And actually received by or on
behalf of Tenant (but not by Tenant's subtenants, licensees and concessionaires) for all goods, wares, merchandise,
services and rentals sold, leased, licensed or delivered by or on behalf of Tenant on, to or in connection with, the
Demised Premises, including, without limitation, all revenue from the sale of admission tickets, from the sale or
lease of signage rights or naming rights, from the sale of sponsorships, from the tale of energy generated or
produced on the Project and from parking fees generated from parking on the Demised Premises, whether made for
cash, by check, on credit, charge accounts or otherwise, including, but not limited to, transactions (A) where the
orders originate at or are accepted by Tenant at or on the Demised Premises, but delivery or performance thereof is
made f.'rorn or at any other place; a'll sales made and orders received on or at the Demised Premises shall be deemed
as made and completed therein, oven though the payment of account may be transferred to another office for
collection, and all orders which result front solicitation off the Demised Premises but which are conducted by
personnel operating from or reporting to or under the control or supervision of any employee of Tenant located on
the Demised Premises shall be deemed part of Gross Sales; (I3) pursuant to mail, telephone, telegraph or other
similar orders received or billed at or from the Demised Premises (including, but not limited I:o, orders which are
accepted or transmitted by moans of electronic, telephonic, video, computer or other electronic or technology based
system, regardless of whether the orders are accepted or filled at the Demised Premises or accepted or filled by
Tenant or its parent, subsidiary or Affiliate at any other location); (C) by means of mechanical or other vending
devices (except to the extent: any such mechanical or vending devices are not owned or operated by Tenant, then
only the commission or fee received by Tenant shall be included in Gross Sales); and (1.) originating from whatever
source, and which Tenant in the normal and customary course of Tenant's operations would credit or attribute to
Tenant's business conducted in the Demised Premises, (ii) all rent, percentage rent, additional rent, license fees and
any other revenue paid or payable to "Tenant from Tenant's subtenants, licensees, concessionaires or any other
occupants of the Demised Premises and Oil) all monies and the monetary value of all other things of value received
by Tenant from Tenant's operations at, upon or from the Demised Premises which are neither included in nor
excluded from Gross Sales by the other provisions of this definition, but without any duplication, including, without
limitation, finance charges, cost of gift or merchandise certificates and all deposits not refunded to customers. Each
charge or sale upon installment or credit shall be treated as a sale fhr purposes hereof in any month in which a partial
or full payment is made in an amount equal to the actual payment received by 'Tenant therefor in such month. Each
lease or rental of merchandise shall be treated as a sale in any month in which a partial or hell payment is made in an
amount equal. to the actual payment received by Tenant, For the purpose of ascertaining the amount of Gross Sales
upon which the payment of Percentage Rent is to be computed hereunder, the following may be deducted from
Gross Sales: (a) the exchange of merchandise between the businesses operated by Tenant or its Affiliates or their
respective subsidiaries where such exchanges are made solely for the convenient operation of Tenant's business and
not for the purpose of consummating a sale which hasbeen made at, upon or from the Demised Prem lees; (b) returns
to shippers or manufacturers; (c) sales of trade fixtures after use thereof, which are not part of Tenant's stock in
trade and not sold in the ordinary course of Tenant's business; (d) cash or credit refunds made upon transactions
included within Gross Sales but not exceeding the selling price of the merchandise returned by the purchaser and
accepted by Tenant; (e) the amount of any local, county, state or federal sales, luxury or excise lax on snob sales
provided such tax is both added to the selling price (or absorbed therein) and paid to the taxing authority by Tenant
(but not by any vendor of Tenant); provided, however, no franchise or capital stock tax and no income or similar tax
based upon income, profits or gross sales as such, shall be deducted from Gross Sales in any event whatsoever; (f)
all pass through payments received by Tenant'. from others to reimburse Tenant for the Maintenance Charge and
Impositions actually paid by Tenant to Landlord pursuant to the terms of He Lease, and all pass-through . payments
received by Tenant from others to reimburse Tenant for Impositions, insurance or operating expenses of the
Demised Premises; (g) the amount of any Energy Credits (as such term is defined in Section XXVII below); (h) any
amount received in connection with the development or operation of the i3ayfront Park Parking Garage, or otherwise
relating to the Bayf'ont Park Parking Garage; and (1) any amounts received in connection with the reconfiguration of
or redevelopment of the Marina, or otherwise relating to the Marina, For the purposes of determining Tenant's
Gross Sales, the term "Tenant" shall include any Affiliates of Tennant,
"Hazardous Material" means any hazardous, radioactive or toxic substance, material or waste, including,
but not limited to, those substances, materials and wastes (whether or not mixed commingled or otherwise
combined with other substances, materials or wastes) listed in the United States Department of Transportation
Hazardous Materials Table (49 C,F.R, Section 172,101) or by the Environmental Protection Agency as hazardous
substances (40 C.F,R. Part 302 and amendments thereto), or substances, materials and wastes which are or become
regulated under any applicable local, state or federal law including, without limitation, any material, waste or
substance which is (i) a petraletun product, crude oil or any faction thereof, (ii) asbestos, (iii) polychlorinated
biphenyls, (iv) designated as a "hazardous substance" pursuant to Section 3) I of the Clean Water Act, or listed.
pursuant to Section 307 of the Clean Water Act, (v) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, or (vi) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act,
"Impositions" means all taxes (including personal property taxes, Welty), assessments, sewer rents, water
rents and charges, duties, impositions, license and permit fees, charges for public utilities of any kind, and payments
and other dharges of every kind and nature whatsoever, ordinary or extraordinary, foreseen or unforeseen, general or
special that, during the Term, pursuant to present or future law or otherwise, shall have been or be levied, charged,
assessed or imposed upon, or become due and payable out of or for, or become or have become a lien on, the
Demised Premises or any part thereof, or any Leasehold Improvements now or hereafter located thereon, or the
appurtenances thereto, or any franchises as may be appurtenant to the use and occupation of the Demised Premises.
"initial'Construct:ion" means the construction of the following components of 'ate Tenant's Improvements:
(i) the Below Tower Parking, (ii) the Tower, and (iii) the Observation Deck,
"Initial Contingency Date" means the date that is 180 days following the Execution .Date.
"Institutional Lender" means (i) a savings bank, (ii) a ,savings or building and loan association, (iii)
commercial bank or trust company (whether acting individually or in any fiduciary capacity), (iv) an insurance
company, (v) an educational institution, (vi) a state, municipal or similar public employees' welfare, pension or
retirement fund or system, (vii) a charitable or other eleemosynary institution, (Viii) a real estate investment truust, ci'
(ix) any other Entity which, in each of the foregoing (i) through (ix), has assets (capital and surplus) in excess of
One Billion Dollars ($1,000,000,000) in 2.013 U.S, Dollars (as such term is defined in Article XXXIIJ.) and whose
principal businesses include, among other things, interim or permanent financing secured by real estate (or
ownership interests in real estate). A wholly owned subsidiary of an institutional Lender shall be deemed to be an
Institutional Lender for purposes of this Lease, Following the Opening Date, the term "Institutional Lender" for
purposes of the definition of Leasehold Mortgagee only shall include any Entity (other than an Affiliate of Tenant or
an Affiliate of any of Tenant's members or managers) providing financing for the Project even if such Entity would
not otherwise qualify as art Institutional Lender prior to such Opening Date,
"Lease Year" means (i) as to the first Lease Year, the period beginning on the Rent Commencement Date
and ending on the last day of the twelfth (12d' ) full calendar month thereafter and (ii) as to each succeeding Lease
Year, each twelve (12) calendar month period. commencing on the first clay of the first calendar month immediately
following the end of the preceding Lease Year; provided that the 'final Lease Year shall terminate on the Expiration
Date. Notwithstanding the foregoing, 'tenant may, in its sole discretion, elect on a one time basis, which election
shall be made in writing and than be made, if at all, prior to the Opening Date, for each Lease Y ear to coincide with
a calendar year. In such event, the first Lease Year shall include the partial calendar year starting with the Opening
Date and ending on December 31 51 of that calendar year, Annual Fixed Rent and the Breakpoint will be prorated for
any partial Lease Year.
"Leasehold improvements" means Tenant's Improvements and any other buildings, fixtures or other
improvements on the Demised Premises.
"Leasehold Mortgage" means any mortgage or deed of trust constituting a lien upon this Lease and the sub-
leasehold estate hereby created and Tenant's title to Tenant's improvements for the benefit ofan Institutional
Lender, and any modifications, extensions, consolidations or replacements thereto or thereof, and any future
advances thereunder.
"Leasehold Mortgagee" means an Institutional Lender that is the holder of a Leasehold Mortgage,
including any successor, assignee or designee, including the Succe,esful bidder at a foreclosure sale.
4
"Major Subcontracts" is defined in Section 3.03(a)(viii) of this Lease,
"M'arina'
means that parcel so identified on the Site Plan, The Marina is that included in the real property
leased pursuant to the Retail Parcel Lease or the Parking Garage Lease.
"Net Condemnation Proceeds" is defined in Section. 11,05(a) of this Lease,
"Net Insurance Proceeds" is defined in Section 10,02 of this Lease,
"Net Worth" moans Guarantor's total assets whether held directly by C3unrentor of through any entity in
which Guarantor has direct or indirect ownership Interests or control less Guarantor's total liabilities (including
contingent liabilities),
"Observation Deck" is defined in Section 5,01 of this Lease. Whenever the term Observation Deck is used
in this Lease, it shall be deemed to refer to at least one or, at Tenants sole option, more than one observation decks.
"Opening Dam" is the date that Tenant actually first opens both the Below Tower Ptiarking and the
Observation Deck f`or business to the general public in accordance with the terms or this Lease.
"Outside Completion Date" meaans the date that is two (2) years following the Scheduled Construction
Completion Date.
"Outside Contingency Date" mean, the date that is one (1) year following the Execution Date,
"Parking facilities" is defined hi Section 2.01 of this Lease,
"Parking 'Garage" means that portion ofthe Bayside Property so identified on the Site Plan,
"Parking Garage Lease" is defined in Section 2.03 of this Lease.
"Percentage .Rent:" is defined in Section 4.03(a) of this Lease.
"Permitted Uses" is defined hi Section .01 ofthis Lease.
"Pier" means that portion of the Bayside Property so identified on the Site Plan. The Pier is included in the
real property leased pursuant to the Retail Parcel Lease.
"Possession Date" is defined in Section 2,01 of this Lease.
"reconstruction Deliveries" is defined in Section 3.03(a) of this Lease,
"Preopening Rent" is defined in Section 4.01 of this Lease.
"Prime Landlord" is defined in Section 2.03 of this Lease,
"Prime Rate" means, at any time, the rate of interest most recently published as the "Prime Rate" in the
Money Rates section of The Wall Street Journal; provided, however, that if at any point during the term, the Wall
Street Journal shall cease publication or shall cease ,publication of the "Prime Rate," the "Prime Rate'" shall mean the
"Prime Rate" as most recently published by a substantial and responsible periodical selected by Landlord in its
reasonable discretion, and as determined in a manner which reasonably approximates the "Prime Rate " as now
published in the Money Rates section of the Wall Street .Journal,
"Project Manager" is defined in Section 5,02 of this Lease.
"Public Records" is defined in Section 2.03 of this Lease.
"REA" is defined in Section 2,03 of this Lease,
"Rent. Cornrnencement Date" is the seine date as the Possession Date,
"Retail Parcel Lease" is defined in Section 2:03 of this Lease.
"Scheduled. Construction Commencement Date" is defined in Section 3,03(c) of this Lease.
"Scheduled Construction Completion Date" is defined in Section 3,03(c) of this Lease,
"Scheduled Opening Date" is the seine date as the Scheduled Construction Completion Date.
"Shopping Center" means, for purposes of this Lease, the l3ayside Property excluding the Demised
Premises.
"Site Development Plan Package" is defined in Section 3.02(aa) of this .Lease,
"Site Plan" is defined in the recitals of this Lease.
"Tenant's Improvements" is defined in the recitals of this Lease.
"Tenant's Signage" is defined in Section 106 of this Lease.
"Term" and "Term of this Lease" are defined in Section 2,06(a) of this (,.ease,
"Title Restrictions" is defined in Section 2,03 of this Lease.
"Tower" is defined in 'the recitals of this Lease.
"GSC1;S" means the United States Citizenship and Immigration Service,
ARTICLE II -- GRANT AND TERM
Section 2.01 GI:a t, Effective as of the Possession Date, .Landlord does hereby demise and lease the
Demised Premises to Tenant, and Tenant does lease and take the Demised Premises from Landlord, Tenant shall
notify Landlord in writing not less than forty-five (45) days prior to the date Tenant desires to take possession of the
Demised Premises in advance of the commencement of construction (the "Possession Date"). Landlord further
grants to Tenant during the Term, the non-exclusive right, privilege and easement, for Tenant, its subtenants, and
their respective concessionaires, licensees, employees, agents, customers and invitees ("Tenant's Permittees"), to
use the pedestrian pathways and the pedestrian/vehicular access roads in the Shopping Center from time to time
made available by Landlord for pedestrian and vehicular ingress and egress to and from the Demised Premises to the
public streets to which such pedestrian pathways and pedestrian/vehicular access roads connect, in common with the
other tenants, concessionaires and licensees of the Shopping Center and the respective officers, employees, agents,
customers and invitees of each (the "Common Areas "), without payment of any 'fee or other charge. In addition,
Landlord grants to Tenant and Tenant's :Permittees the non-exclusive right, privilege and easement to use such areas
or the Shopping Center from time to time used for the parking of vehicles, including, without limitation, any aurae
parking field or the Parking Garage serving the Shopping Center (collectively, the "Parking Facilities") in common
with the other tenants, concessionai r es and licensees of the Shopping Center end the respective officers, employees,
agents, customers and invitees of each, subject to such uniformly and consistently applied parking fees as Landlord.
charges from time to time at the Parking Facilities for diffbrent categories of users (including customers and
subtenant employees) and otherwise on the same terms as others who use the Parking Facilities. Landlord retains
any existing easements over and across the portions of the Demised Premises that do not lie beneath any building
constituting the Tenant's Improvements, as will enable Landlord to maintain utilities which serve the adjoining
Shopping Canter and to perform Landlord's maintenance obligations pursuant to Section 8,01 of this Lease.
Landlord retains the right to use the pedestrian pathways and pedestrian/vehicular access fonds in or on the Demised
6
Promises from time to time nude available by Tenant for pedestrian and vehicular ingress/egress, and to use the
parking on the Demised Premises, subject to such uniformly and consistently applied parking fees as Tenant charges
from time to time for different categories of users (ieelud iing customers and subtenant employees) and otherwise on
the same terms as other using same:.
Section 2,02 Dyca'MPtt3,ki17; g. Tenant intends to construct garage parking below the Tower (the "Below
'l'ower Parking"), as well as use commercially reasonable efforts to negotiate a lease with the L3ayfront Park Owner
for the construction of a parking garage at Bayfeent Park (the "13ayforrt Park Parking Garage") in order to satisfy
any additional minimum parking requirements for the Tower pursuant to the local zoning code (the "Bay front Park
Perking Garage Lease").
Without limiting the. generality of the foregoing, Tenant shall be responsible, at its sole
cost and expense, for replacing (a) the actual number' of parking spaces required by Prime Landlord to replace the
surface parking spaces presently located on the Pier that service the Marina (not to exceed 47 spaces), and (b) if
required by Prime Landlord, up to the 89 surface parking spaces presently located in "Lot 55" on the Pier that
primarily service the Shopping Center, in each case either in the Below Tower Parking or in the Bayi out Park
Parking Garage. Landlord agrees to provide the number specified in Sections 2,02(a) above, and if required by
Pr'Irne Landlord during the period of the initial Construction, the number specified. in Section 2.02(b) above, of
temporary parking passes (at no charge fol' the Section 2.02(a) sprees arid at the trnifomily and consistently applied
charge for the Section 2.02(b) spaces) for the benefit of the patrons of the Marina commencing on the date that the
surface parking on the Pier servicing the Marina is unavailable through the Opening Date.
Section 2.03 Tait fg .,8yside Pxgpar'ty, Landlord and Tenant acknowledge that landlord leases the
Wayside Property pursuant to: (a) Amended and Restated Lease Agreement dated October 15, 1985, between the
City of Miami, Florida ("Prime Landlord"), as landlord, and 1.3rryside Center Limited Partnership, a Mruyltnad
limited partnership (" T3ays.ide") (predecessor-in-interest to Landlord), as tenant, a memorandum of which lease was
recorded on October 29, 1985 under Clerk's File Number 858337869 in the Public Records of: Dade County,
Florida (the 'Public Records"), as modified by that certain First Amendment to Amended and Restated Lease
Agreement dated August 19, 1986, as further modified by that certain Second Amendment to Amended and
Restated Lease Agreement dated November 24, 1987 and Memorandum of ivlorlification of Lease dated November
24, 1987 recorded on December 1, 1987, lender Vile Cleric's Number 450816 in the Public. 'Records, as hart:her
modified by that certain Third Amendment to Amended and Restated Lease Agreement dated as of April 15, 1993
mid also modified by that certain Tri-Party Agreement regarding Port Boulevard dated July 19, 1988 and. recorded in
O.R.B. 13849 at Page 1003 in the Public Records, as amended by Agreement dated December 8, 1997 and further
amended by Second Amendment to 1A-Party Agreement dated December 29, 2003 and recorded in O.R.B. 22060 at
Page 2591 in the Public Records (the "Tri .Party Agreement") and as further modified by that certain Release and
Settlement Agreement dated December 30, 2008 (the "Settlement Agreement" and together with the l"rr Party
Agreement and all of the lease and memoranda of lease documents listed in this clause (a), collectively, the "Retail
Parcel Lease"); and (b) Lease Agreement dated January 14, 1985, between the City of Miami, as landlord, and
l3ayside, as tenant, as modified by that certain First Amendment of Agreement of Lease dated October 17, 1985, arid
as Nether modified by, the Tri-Party Agreement, and as further modified by that certain Second Amendment to
Bayside Parking Garage Lease Agreement dated September 13, 1988 and recorded in O,R.3 13849 at Page 1012 of
the Public Records, and as further modified by that certain Third Amendment to 13ayside Parking Garage Lease
Agreement dated as of April 15, 1993, and as further modified by the Settlement Agreement (collectively, the
"Parking Garage Lease") with respect to the Parking Garage. Accordingly, Thpat end i.,atr 1k '' here

x are sly
ackio,,clgr -emelea i Llaa dais Lease is actually a sublease and is sicker and subordinate to the tercets and
conditions of the RRtaailPavel Lease and the Pam kin r Ctmei rnrmscm,..,Tim foregoing grants and Ole leaischZesstate
created thereby are also subject to the following: (I) Resolution No. 84-724 by the City of Miami ("Resolution") and
the Major Use Special Permit attached to the Resolution ("MUSP"); and (ii) the Miamm'ina Agreement dated
October. 24,
1995 by and between T3ayside and the City ofMiemi ("Marina Agreement:"). The Retail Parcel Lease,
the. Parking Garage Lease, the Resolution, the MUSP and the Marina Agreement, as amended, restated, assigned or
otherwise modified lien time to time (but' not without the reasonable approval of Tenant to the extent any of same
would materially adversely affect Tenant's rights under this Lease), are collectively referred to as the "RBA".
Landlord agrees that it shall not enter into any covenants, easements, or other agreements after the date of this Lease
that prohibit or restrict Tenant's use of the Demised Premises for the Permitted Use or construction of the Tenant's
ltnprovements or materially adversely affect Tenant's rights wider this Lease, without Tenant's prior written
consent, which may be withheld in Tenant's sole discretion (airy such covenants, testaments or other agreements that
either do not require Tenant's consent or if required, in respect of which Tenant's consent is given, are collectively
7
referred to as the "New Title Matters"). Landlord acknowledges that, i, NfUSP and the Marina Agreement may
require modification in connection with thr'' rotes inlicsdrat Tenant rrray jitirst:ie siriii niocl icafro. ,s
tmr1lottP'sprror'rarritteneappro'v i'i'tt' " .i'i"c " tiw T01a nova sTiFl i ifO lieunreasonaT tiaiilhekl, conditioned or
delayed so long as Landlord's rights with respect to the Shopping Center (including, without limitation,
development rights and entitlements) ore not materially adversely impacted and its obligations to Prime Landlord are
not materially increased or expanded by any such modifications.
Jjils ,ease shall be subject in all i s petsw to a) the Retail Parcel Lease, (b) ail nor,tgrr44s_ s^rls.i Lt.;lrarayi-riGw^-.
encumber the riTtiffl I t rr dr-t't aecl ici^an.y and all renciev lTs; .it7cliTiurttto' f t;onsolidations, replacements and
extensions of any of this foregoing, the last;; told estate or estates thereby created or the real property of which the
Demised Premises form a part, and (e) all covenants, egreemeni:s, easements and other matters of record currently
affecting title to the Shopping Center or the Demised Premises and any New Title Matters (the "Title Restrictions"),
Except as otherwise expr'essly set forth herein, Tenant shall keep, observe and perform or cause to be kept, observed
and performed, faithfully all those terms, covenants and conditions required of Landlord hereunder, under the terms
and conditions of the Retail Parcel Lease and all Title Restrictions, to the extent they relate or pertain to the Demised
Premises, except as otherwise expressly provided heroin (which terms, covenants and conditions of the Retail Parcel
Lease and all Title Restrictions are hereby incorporated by reference into this Lease as if completely set forth
herein). Tenant : stroll not cause or permit any act: which would cause a dei'ault under or a violation of, any term,
condition or provision of the term of the Retail Parcel lease or any Title Restrictions and, to the extent claims are
asserted against Landlord as a result of Tenant's breach of the foregoing obligations, Tenant shall indemnify, defend
and hold Landlord harmless from and against all such claims, liabilities, costs and expenses (including reasonable
attorneys' fees at all tribunal levels), Promptly after the date hereof, Tenant shall order a commitment for title
insurance from a title company reasonably acceptable to Landlord (the "Title Company") covering the Demised
Premises (the "Title Commitment"), and Landlord and Tenant shall cooperate with each other and the Title
Company to identify In writing what obligations, if any, under the Title Restrictions relate or pertain to the Demised
Premises and memorialize same in writing, To the extent any of the Title Restrictions impose obligations that do
not relate or pertain to the Demised Premises and the Title Company will not remove same from the Title
Commitment or Insure over the same, Landlord shall not cause or permit any act which would cause a default under
or a violation of, any term, condition or provision of such Title Restrictions, and Landlord shall keep, observe and
perform or cause to be kept, observed and performed, firlthfi.rily such terms, covenants and conditions required of
Landlord under the terms and conditions of such Title Restrictions and, to the extent claims are asserted against
Tenant as a result of Landlord ' s breach of the foregoing obligations, Landlord shall indemnify, defend and hold
Tenant harmless from and against all such claims, liabilities, costs and expenses (including reasonable attorneys'
fees at all tribunal levels).
Section 2.04 S_ jl Pj ,. The Site Plan is not intended as a representation to Tenant that all matters
appearing on the Site Plan are exactly as shown thereon and Landlord reserves the right at any time to subdivide the
Shopping Center, to make alterations or additions to any existing improvements on the Shopping Center, to
construct additional 'buildings on the Shopping Center, or to construct additional stories on the buildings located
within the Shopping Center or on the outparceis thereto within the Shopping Center, or to construct additional
improvements on parcels adjoining the Shopping Center (other than the Demised. Premises), or to reconfigure the
Common Areas of the Shopping Center, as long as said alterations or additions do not materially and adversely
disturb Tenant's quiet enjoyment of the Demised Premises or materially and adversely interfere with the
construction, operation, or access to the Tenant's Improvements. Landlord also reserves the right at any time to
demolish all or any portion of the Shopping Center and construct other buildings, structures or improvements
including, but not limited to, surface, elevated or multi-deck parking facilities and to and temporary scaffolds and
ocher aids to construction as long as said construction does not materially and adversely disturb Tenant's quiet
enjoyment of the 'Demised Premises or materially and adversely interfere with the construction, operation, or access
to the Tenan't's 'Improvements. Landlord will use commercially reasonable efl'ta'rts to minimize inconvenience to and
disruption of the Demised Premises, the occupants thereof and the operations thereon during any of the foregoing
construction activities. Notwithstanding and without limiting the ibregoing, there will be no material adverse impact
in pedestrian and vehicular access and traffic now between the Demised Premises and the Shopping Center during
the Term from what currently exists.
Section 2.05

A:c usg elf g asec] i :atpi, Tenant accepts the Demised Premises in its "AS-1S",
"WHERE-IS" condition "WITH ALL FAULTS" without any representation or warranty, express or implied, in fact
0
or by law, on the part of Landlord, and without recourse to Landlord, except as otherwise expressly set forth in this
Lease,
Section 2.O6 7; m:t.The term of this Lease (the "Term" or the "Tenn of this Lease") shall commence
on the Execution Data and shall expire on the expiration date of the term of the Retail Parcel Lease, including any
extensions thereof, whether pursuant to the exercise of any renewal options thereunder or otherwise, which are
exercised or otherwise entered into by Landlord. in Landlord's sole and ttbsolu'te discretion (the. "Expiration 'mate"),
Landlord shall provide Tenant with written notice, no later than one (I) year prior to the expiration of the Retail
Parcel Lease (including any extensions thereof), advising whether Landlord intends to exercise any renewal option
or has otherwise entered into an extension of the term of the Retail Parcel Lease.
(b)
Tenant shall have the right to negotiate directly with Prime Landlord for a direct lease, or
direct outright purchase, of the Demised Premises, to be effective at or following the expiration or termination of the
Retell Parcel Lease,
subject in all events to Landlord's rights under the Retail Parcel lease prior to its expiration or
termination, and Landlord agrees to cooperate with Tenant in this regard, at no unaffiliated third party out-oi-pocket
cos( or expense to Landlord.
ARTICLE UT CONSTRUCTION OF IMPROVEMENTS
Section 3,01 ,ljt tjt .
Tenant shall be responsible to supply any utilities to the Demised Premises
(including,
without limitation, electricity, water, natural gas, storm sewer and sanitary sewer) required for the
Project pursuant to the Approved Plans,

Section 3,02

fenarrt:''. Plans.
(a)

LIII: 'ame lopmentlean Pael,aa e, Tenant shall submit to Landlord. each of the Items listed
on Exhibit "D" attached hereto (collectively, the "Site Development Plan Package") in the form of a CAD file,
together with a pdf copy, by email, and two (2) hard copy prinks sent by overnight delivery, in accordance with
Section21,11 of this Lease. The Site Development Plan Package and any revisions thereto shell be subject to the
prior written approval of Landlord, in its safe and absolute discretion through the Opening Date and thereafter in
Landlord's reasonably exercised business judgment.
Landlord shall have a period of th.irty (30) days following
receipt of the entire Site Development Plan Package and ten (10) Business Days following receipt of any revisions
thereto within which to review and approve or disapprove Tenant' s Site Development Plan Package or any revisions
thereto; provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's written
approval or disapproval of Tenant's Site Development Plan Package or any revisions thereto within such thirty (30)
day period (or as to revisions, such ten (10) Business Day period) and provided further Tenant has submitted any
such approval request in an overnight delivery envelope (and an email) in accordance with Section 21.11 hereof,
with the following caption at the top of the first page of the transmittal letter/memo or e-mail in hold lettering
"LANDLORD'S RESPONSE IS REQUIRED
WITHIN THIRTY (30) DAYS [OR WI'l'HIN
TEN (10)
BUSINESS DAYS IN THE CASE OF REV!SIONSj FOLLOWING RECEIPT OF THIS NOTICE
PURSUANT TO THE TERMS OF THE LESS` E"Landlord shall be deemed to have approved such Site
Development Plan Package or the subject revisions thereto. if ('i) Landlord disapproves any element of the Site
Development Plan Package, or any revisions thereto, or (ii) Tenant notifies Landlord or Landlord otherwise becomes
aware that an:y element of th..e Site Development Plan Package previously approved by Landlord cannot he
im.plementecl. in the manner originally contemplated (e.g., concrete pipeline through Biscayne Bay from the Port of
Miami property), and in the case of either (i) or (ii) above, Tenant is unable to modify the Site Development Plan
Package or any subsequent pions approved (or deemed approved) by Landlord. as contemplated by Section 3.02(b),
(c)' or (d) below to the satisfaction of Landlord, in its sole and absolute discretion, within thirty (30) days following
the occurrence of (i) or (ii) above, then Landlord shall have the right to terminate this Lease by notice to Tenant in
writing at any time thereafter whereupon, Landlord and Tenant shall have no further obligation or liability to each
other, except pursuant to the provisions of this Lease that explicitly survive the termination of this Lease; provided
however, that this termination provision in favor of Landlord shall terminate and be of no further force or effect
following the Opening Date.
(b)

is si.
gtl
Developrra aL.,pltans.
Following the approval of the Site Development Plan
Package by Landlord, Tenant shall submit to Landlordthe plans and specifications consisting solely of architectural
Ind. civil plans for the Tenant's Improvements as listed on Exhibit. "l;t" attached hereto (the "Design Development
Plans") in the form of a CAD file, together with a pdf copy, by email, and two (2) hard copy prints sent by overnight
delivery, in accordance with Section 21,11 of this Lease,
Tenant may submit the Design Development Plans to
Landlord in two portions, one portion comprising the architectural plans and the other portion comprising the civil
plans.
The Design Development Plans and any revisions thereto shall be subject to the prior written approval of
Landlord,
Landlord's approval of the Design Development Plans or any revisions thereto shall not be unreasonably
withheld so long as the portion of the Design Development Plans or any revisions thereto addressing the Tower shall
not materially deviate from the rendering of the Tower approved by Landlord as part of the Site Development Plan
Package,
Landlord shall have a period of thirty (30) days following receipt of the Design Development Plans or
portion thereof and Can (10) &arsianess Days following receipt of any revisions thereto within which to review and
approve or disapprove the Design Development Plans or any revisions thereto, or the applicable portion thereat
provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's written approval
or disapproval of the Design Development Plans or any revisions thereto within such thi
r ty (30) day period (or as to
revisions, such ten (10) Business Day period) and provided further Tenant has submitted any such approval request
in an overnight delivery envelope (and an email) in accordance with Section 21,11 hereof, with the following
caption at the top of the first page of the transmittal letter/memo or e-mail in bold lettering "LANDLORD'S
RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS [OR WITHIN TEN (10) BUSINESS DAYS IN
THE CASE OF RI VISIONS] FOLLOWING RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS
OF THE LEASE",
Landlord shall be deemed to have approved such Design Development Plans or the subject
revisions thereto or the applicable portion thereof
Notwithstanding the foregoing, (i) wind tunnel test report(s)
("Wind Reports") shall also be included as part of the Design Development Plans, (ii) the Wind .Reports may be
submitted by Tenant to Landlord as a separate submission, and (iii) Landlord's approval of the Wind Reports shall
be at Landlord's sole and absolute discretion.
(c)
GO% Pisms. hollowing the approval of the Design Development Plans by Landlord and,
Tenant shall submit to Landlord plans and specifications consisting solely of architectural and civil plans, for the
Tenant's Improvements at 60% completion in the Ibrm ofa CAD file together with a pdf copy, by email, and two (2)
hard copy
prints by overnight delivery, in accordance with Section 21.11 of this 'Lease, including, without limitation,
all
of the plans specifically identified in subsections (a) and (b) above, as well as a final landscape plan, final
hardscape plan and final site plan (the "60% Plans"). Tenant 'nay submit the 60% Plans to Landlord in two portions,
one portion comprising the architectural plans and the other portion comprising the civil plans. The 60% Plans and
any revisions (hereto shall be subject to the approval of Landlord. Landlord shall not unreasonably withhold its
approval of the 60% Plans' or any revisions thereto to the extent that such 60% Plans snbstantielly conf orm in all
material respects to the Design Development Plans or any revisions thereto approved by Landlord, Landlord shall
have a period of thirty (30) days following receipt of the 60% Plans or portion thereof and ten (10) Business Days
following receipt of any revisions thereto within which to review and approve or disapprove the 60% Plans or any
revisions thereto or portion thereof; provided, however, that in the event Landlord shall not have responded to
Tenant with Landlord's written approval or disapproval of Tenant's 60% Plans or any revisions thereto or the
applicable portion thereof within such thirty (30) day period (or as to any revisions, such ten (10)
Business Day
period) and provided farther Tenant has submitted any such a approval request in an overnight delivery envelope (and
an email) in accordance with Suction 21,11 hereof, with the following caption at' the top of the first page of the
transmittal letter/memo or e-mail in bold lettering "LANDLORD'S
RESPONSE IS REQUIRED WITHIN
THIRTY (30) DAYS
[OR WITHIN TEN (10) BUSINESS DAYS IN THE CASE OF REVISIONS]
FOLLOWING RECEIPT OF THIS NOTICE PU.RSU.ANT TO TT-1E TERMS
OF THE LEASE", Landlord
shall be deemed to have approved such 60% Plans, or the subject revisions
thereto or the applicable portion thereof
(Cl)
', ,gL, jg S, Following the approval of the 60% Plans by Landlord, Tenant shall submit
to Landlord plans and specifications consisting solely of architectural and civil plans, for Tenant's Improvements at
100% completion in the form of a CAD file together with a pdf copy, by omen, and two (2) hard copy prints by
overnight delivery, in accordance with Section 21.11 of this Lease, including, without limitation, all of the plans
specifically identified in subsections (a), (h) and (e) above (the "Final Plans"). Tenant may submit the Final Plans to
Landlord in two portions, one portion comprising the architectural plans and the other portion comprising the civil
plans. The Final Plans and any revisions thereto shall be subject lo the approval of Landlord. Landlord shall not
unreasonably withhold its approval of the Final Plans or any revisions thereto to the extent that such Final Plans
substantially conform in all material respects to the 60% Plans or any revisions thereto approved by Landlord.
Landlord shall have a period of thirty (30) days following receipt of the Final Plans or portion thereof and ten (10)
10
Business Days following receipt of any revielons thereto or portion thereof within which to review and approve or
disapprove the Final Plans or any revisions thereto, or the applicable portion thereof-, provided, however, that in the
event Landlord shall not have responded to Tenant with Landlord's written approval or disapproval of Tenant's Final
Plans or any revisions thereto or the applicable portion thereof within such thirty (30) day period (or as to revisions,
such ten (10) Business Day period) and provided further Tenant has submitted any such approval request in an
ovemight delivery envelope (and an emaii) in accordance with Section 21.11 hereof, with the following caption at
the top of the first page of (he transmittal letter/memo or e-mail In bold lettering "LANDLORD'S RESPONSE IS
REQUIRED WITHIN T8lR[Y (30) DAYS k]&YV}T8IN TEN (10) BUSINESS DAYS IN TW-JE, CASE OF
RQWI8D] N81 FOLLOWING RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE
LEASE", Landlord shall be deemed to have approved such Final Plans or the subject revisions thereto or the
applicable pmrt/noWuCThmP'fimlP\mmA the Tenant's Qrovementos, as so approved by Landlord are herein
referred to in this Lease as the "Approved Plans". After obtaining Landlord's approval, the Approved Plans shall not
be changed without the written approval of Landlord. Landlord shall not unreasonably withhold its approval to any
revisions to the Approved Plans which do not constitute material changes to the Approved Pinns, provided,
however, to the extent such proposed revisions entail materiel changes to the Approved Plans, Landlord's approval
thereof shall be at the sole and absolute discretion of Landlord,
(e) Tenant agrees that in connection with each of the submivals to
Landlord as described in Sections 3.02(a) through (d) above, Tenant will schedule a development meeting with
Landlord's representatives to be held in Miami Florida (or such other location as mutually agreed) on a mutually
convenient date and at a mutually convenient time for the purpose of discussing the subject submittal (each a
"Development Meedng")i Landlord and Tenant shall endeavor to schedule each Development Meel lag within two
(2) weeks following to Tenant'sdelivery of each of the submWals outlined in Sections 3,02(a) through (d) above.
Landlord shall have the right to request that additional Development Meetings be scheduled as Landlord deems
reasonably necessary throughout the plan approval proo= '3 and Tenant shall cooperate with Landlord in scheduling
such additional Development Meetings, Weept in connection with a material casualty or condemnation where the
Tenant's I III provenlent8 cannot be restored and rpbuHt as nearly as possible to the condition they were in prior to
such casualty or condemnation and Tomtit proposes to replace the same with improvements that will elifial , (i) have
a material adverse effect on the views R-orn the Shopping Center as such views existed at the time of the casualty or
condemnation or (ii) comprise more than two hundred percent (200%) of the gross loaseable area that existed at the
time of the casualty or condemnation (a "Material Rebuild") then this subsection (e) and subsections 3.02 (a)-(d)
shall not be applicable after the Opening Date and, thereafter, construction related matters shall be governed by the
other provisions of this Lease including, where required, a one step m6mission and approval process, For the
avoidance, of doubt, the parties acknowledge and agree that all the provisions of this Section 3.02 shall apply in
connection with a Material Rebuild except that the standard for Landlord's review of the Site Development Plan
Package shall be a commercially reasonable standard, not a sole and absolute discretion standard.
0l
Construction Qrawingq, Tenant agrees that if' requested by Landlord, Tenant shall
provide Landlord with access to, or copies of, the, C0110-1.100011 drawings at any stage of the plan approval process
outlined in this Section 3,02 or at any time following Landlord's approval of the Approved Plans and (luring the
Term of this Lease, Cme, delivered pursuant to Section 3A3(e) in connection with !he initial construction of the,
Tenant's Improvements or any Material Rebuild, Tenant's obligation under this subsection (f) shall be to provide
whatever is then in Tenant's possession or control, with no representation or warranty of the accuracy or
completeness Mawr.
4gCJ22. Landlord's review of the Site Development
Plan Package, the Design Development Plans, the 60% Plans, and the Final Plans shall be strict]), for Landlord's
purposes. Such review shall not constitute an evaluation of the, quality of Tenant's designs or methods, the qualily,
fitness, safety or soundness of the Tenant's Improvements, or the compliance of the Approved Plans or any such
Tenant's Improvements with any applicable requirements of law. Tenant acknowledges and sigma that the
development and construction of the Project shall be at the solo risk, east and expense of Tenant. Except in
connection with Landlord's review and approval of the Site Development Plan Padmg % Landlord shall have no
approval rights whomever in respect of any physical characteristics of the Project that are not visible them a
location within the shopping Center.
1|
(a)

C oaist ttcti r 1 'r. Cttcitr ; I? ,hymnt. nn jIgglQJ tag

gnds, , Tenant shall not commence


the Initial Construction (including, without limitation, the mobilization of equipment and resources therefor on the
Demised Premises) until Tenant has provided to Landlord the following:
(i) a construction timeline for the construction and development of the Tenant's
Improvements, satisfactory to Landlord, in Landlord's reasonable business
judgment (the " Construction Timeline " );
(ii) a construction budget for the construction and development of the Project,
satisfactory to Landlord, In Landlor'd's reasonable business judgment (the
"Construction Budget");
(iii) a construction loan commitment (the "Loan Commitment " ), in form and content
reasonably satisfactory to Landlord Phone an Institutional [,ender ("Tenant's
Lender"). The Loan Commitment shall be for a term of not less than three (3)
years or such greater period of time as is required for completion of the Project
pursuant to the Construction Timeline;
(iv) if Tenant pursues financing through an ELt 5 Regional Center, such 1.,13
.
5
Regional Center shall have been approved by the LISCIS and the United States
Department of Homeland Security, The term sheet with the EB-5 Regional
Center shall be satisfactory to Landlord in its reasonable business judgment (the
".G13-3 Commitment"). The 1313-5 Commitment shall provide that at !carat ten
percent (10%) of the E B-5 Funds shall be held in escrow at a United States
financial institution that qualifies as an Institutional Lender with the balance
either being hold in such escrow or used for the purpose of financing the
construction of the Project pursuant to the approved Construction Budget;
(v) evidence reasonably satisfactory to Landlord that Tenant has and has deposited
with Tenant's Lender sufficient funds ("Tenant's Equity") to pay for that portion
of the costs of the construction and development of the Tenant's Imp rovements
in excess of the amount of the Loan Conunitment. and EB5 Funds actually
deposited with the 13B-5 Regional Center in the aggregate ("Evidence of
Tenant's Equity"), The Loan Commitment, the 1;13-5 Funds (if applicable), and
Tenant's Equity shall be, in the reasonable business judgment of Landlord,
sufficient to finance the construction of the Tenant's Improvements and are
heroin sometimes collectively referred to as the "Project Financing";
(vi) a guarantee from Guarantor for the payment and performance of all of' Tenant ' s
Initial Construction obligations and Tenant:'s demolition obligations as required
pursuant to Sections 3,03(i) (Demolition) and 27,03 (Termination Rights) of this
Lease in the form attached hereto as Exhibit "13" (the "Payment and Performance
Guaranty"), an estimate reasonably acceptable to Landlord of the cost to
demolish and remove, Tenant's Improvements (the "Demolition Estimate"), and
financial statements reasonably acceptable to Landlord evidencing that
Guarantor has a then Net Worth equal. to not less than two hundred percent
(200%) of the Demolition Estimate only (anti, for clarification, not the cost of
the Initial Construction) (the " Guarantor Financial Statements");
(vii) a copy of Tenant's construction contract for the Tenant ' s Improvements (the
"General Construction Contract") with a general contractor satisfactory to
Landlord in its reasonable discretion; it being understood and agreed that the
General Construction. Contract shall be a guaranteed maximum price contract
that is consistent: with the Const r uction Budget;
12
copies of all subcontracts for the Tenant ' s Improvements than in place iii the
amount of Five Million Dollars ($5,000,000) or greater (the "Major
Subcontracts"); and
(ix)
payment and performance bonds for the General Construction Contract in
statutory form and from a surety or sureties satisfactory to Landlord, in its
reasonable discretion, which bands shall guarantee the full completion or and
payment of all costs in connection with the construction of all of the Tenant's
Improvements, in accordance with the Approved Plans and the Governmental
Approvals therefor (the "Payment and Performance .Bonds", and together with
the Construction Timeline, the Construction Budget, the Loan Commitment, the
1:135
Commitment, the Evidence of Tenant's Equity, the Payment and
Performance Guaranty, the Demolition Estimate, the Guarantor Financial
Statements, the General Construction Contract, and the Major Contracts, herein
collectively referred to as the " Preconetruction Deliveries").
Tenant shall furnish to Landlord all of the Preconstruction Deliveries by no later than thirty (30) clays prior to the
Scheduled Construction Commencement Date (as such term is defined in Section 3.03(c), below). Landlord shall
have a period of thirty (30) days following receipt: of each component of the Preconstruction Deliveries or ten (10)
Business Days fallowing receipt of any revisions thereto within which to request all supporting materials Landlord
shall reasonably request in connection therewith and to review and approve or disapprove (with specificity as to
reasons for disapproval) the Frecanstraction Deliveries or any revisions thereto or the applicable portions thereof;
provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's written approval
or disapproval of Tenant's Preconsh m uction Deliveries or any revisions thereto within such thirty (30) flay period (or
in the case of revisions, such ten (10) Business Day period) end provided rather Tenant has submitted any such
approval request in an envelope (or an email) in accordance with Section 21.1 I hereof, with the following caption at
the top of the first page of the transmittal letter/memo or e-mail in bold lettering "LANDLORD'S
RESPONSE IS
REQUI'REI) WITHIN THIRTY (30) DAYS [OR WITHIN TEN (10) BUSINESS DAYS LN
THE CASE OF
REVISIONS} FOLLOWING RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE
LEASE", Landlord shall be deemed to have approved such Preconstruetion Deliveries or the
subject revisions
thereto or the applicable portions thereof'
(b) Qoy jpjrrent.al Approoyals, Tenant shall diligently pursue acquisition of all approvals and
permits required for the Approved Plans and the development,
construction and occupancy of the Tenant's
Improvements pursuant thereto, and for all other work contemplated hereby from Prime Landlord, Miami-Dade
County, the State of :Florida, the United States and all agencies, subdivisions and departments thereof' and from
all
other applicable governmental or quasi-governmental bodies having jurisdiction ("Governmental Approvals").
Landlord agrees to cooperate with Tenant (at no unaffiliated third party out-of-pocket expense to Landlord) to the
extent that Tenant may request or need such cooperation to obtain any such Governmental Approvals and
in all
other respects to the end that the Tenant's Improvements may be constructed and the fixtures and equipment
therein
may be installed as efficiently and expeditiously as possible.
Tenant shall make application for all applicable
Governmental Approvals, and furnish to Landlord evidence of such application reasonably satisfactory to Landlord
as soon as reasonably possible ager the approval of the Approved Plans by Landlord, Tenant Will deliver to
Landlord evidence of such Governmental Approvals reasonably satisfactory to Landlord in form and content,
promptly upon obtaining same. Subject to Section 3.02(a)(ii) above, to the extent that
any such Government
Approvals are conditioned on changes or revisions to the exterior aspects of the Project as detailed in the Approved
Plans, such changes or revisions shall be subject to Landlord's prior written approval, which approval shall be in
Landlord's reasonable business judgment.
(c) (, ongruction ;Date.
Tenant shall commence and diligently proceed with the Initial
Construction (including signage) on the Demised Premises in accordance with the Approved Plans no later than 180
days following the date as of which Tenant receives the Governmental Approvals (the
" Scheduled Construction
Commencement Date"). Commencement. of construction of the Tenant's Improvements shall be evidenced by the
issuance and/or delivery to Landlord of: (i) the Payment and Performance Bonds; (ii) copies of all Governmental
Approvals required. for the construction of the Tenant's Improvements; and (iii) commencement of the installation of
the footers, foundations, pilings or the like (the items described in subparts (i) through (iii) above. in this sentence,
13
being herein collectively referred to as the "Evidence of Commencement of Construction").
Tenant shall
substantially complete the Initial Construction on or before the date that is thirty-six (36) months following the
Scheduled Construction Commencement Date (the "Scheduled Construction Completion .Date"), Completion of the
Initial Construction shall be evidenced by the issuance and/or delivery to "Landlord of: (A) ifpermitted by applicable
low, a temporary certificate of occupancy for the Initial Construction, and all other governmental. certificates or
approvals required in order to open the Below Tower 'Parking and Observation Deck to the public on a fully
fixtured, inventoried and staffed basis, and (13) an ATA or comparable 'form Certificate of Substantial Completion
from Tenant's architect as to the Below Tower Parking and Observation Deck (the items described in clauses (A)
and (B), above, in this sentence, being herein collectively referred to as the "Evidence of Completion of
Construction").
For clarification, the time frames in this subsection (c) shall be extended by reason of Force
Majeurc, but this statement shall not suggest that other applicable time frames in the Lease are not so extended.
(d) Ay,.gWug of Ubo IDrsptiteg, Work performed by Tenant or on behalf of Tenant by
Tenant's general constructor or any subeontractors shall be performed so es to avoid a. labor dispute, to the
maximum extent reasonably possible. Tenant shall, at all times, enforce strict discipline and good order among
^ ts
employees and the contractors hired to construct the Tenant ' s Improvements, if there is any Tabor dispute, Tenant
shall immediately undertake whatever commercially reasonable action maybe necessary or appropriate, in Tenant's
reasonable business judgment, to eliminate or minimize the effects of the dispute at the Shopping Center, including,
but not limited (to the extent reasonably feasible under the circumstances) to: (i) filing appropriate un.fah' labor
practice charges in the event or a union jurisdictional dispute, and (ii) seeking judicial intervention in the case of
illegal labor activities. If any labor dispute or laborrelated protest interferes with or disrupts Landlord's business
operations at the Shopping Center, then Tenant shall use such commercially reasonable efforts as Tenant deems
necessary or appropriate in Tenant ' s reesonatble business judgment to eliminate or minimize slid impacts to
Landlord ' s business operations and shall consult and cooperate with Landlord in determining the necessary and
appropriate course of action.
(c') Per planee,of! cana,^. Work performed hereunder shall be at Tenant's sole cost and
expense,
Tenant shall construct the Tenant's Improvements in substantial conformance with the Approved Plans, in
a. first-class workmanlike manner and in compliance with the terms and conditions of the Retail Parcel Lease and the
Title Restrictions applicable or pertaining to the Demised Premises and with all applicable building, zoning and
other laws, ordinances, rules and regn1ations and requirements of all federal, state and municipal governments and
the appropriate departments, commissions, boards and officers thereof Without limiting the foregoing, neither the
construction nor the operation of the Tenant's improvements shall cause or entail any violation of the terms or
conditions of the Retail Parcel Lease or the Title Restrictions applicable or pertaining to the Demised premises or
any provisions of the zoning codes, or otherwise affect the zoning for the Shopping Center. Tenant shall deliver to
Landlord as-built' plans and specifications and an as-built survey of the Demised Premises certified to Landlord and
satisfying AUTA standards within thirty (30) days following completion of the Tenant's Improvements, or as soon
thereafter as is reasonably feasible. Tenant shall coordinate the construction of the Tenant's Improvements with any
work being performed by Landlord or its contractors or any tenants of the Shopping Center so that the construction
of the Tenant's Improvements will rnot unreasonably interfere with or delay any other construction within the
Shopping Center, Landlord shall coordinate any construction work being performed at the Shopping Center by
Landlord or its contractors or any tenants of the Shopping Center with the construction of the Tenant's
improvements so that the construction work at the Shopping Center will not unreasonably interfere with or delay the
construction of the Tenant's Improvements.
(k) hart&,, gress atndl lJi lll'y I ertss;g , Landlord hereby grants to Tenant easement's for
ingress, egress, and utilities over amid portions of the Common Areas of the Shopping Center reasonably required
for construction and maintenance of the Tenant's Improvement on the Demised Premises, for the installation,
construction, and maintenance of underground telephone, cable, power linos and all cables, pipes, lines and
connections relating to renewable energy sources in connection with its use of the '.Demised Premises, and for
pedestrian and vehicular access to the Demised 'Premises, as reasonably approved by Landlord (the "Easements"),
The term of the Easements shall commence upon the Execution Date as to access, subject to Section 5.04 below, and
the Scheduled Construction Commencemnent: Date as to the remaining Easements and shall continue until the
expiration of the Term. The location and configuration of the Easements shall be included in Tenant's Survey and
the as-built survey to the extent plottable.
(g) Cl,tgaj. Tenant shall, and shall cause each of Tenant's contractors and subcontractors
to, remove, haul away from the Demised Premises and adjoining areas and dispose of all debris and rubbish caused
by or resulting from the construction of the 'tenant's improvements on a reguler basis. No construction waste, di
r t,
supplies or machinery and equipment may be placed in arty areas of the Bayside Property outside of the Demised
Premises (except while actually performing work In the Easements) and in no event
shall any of' the foregoing be
placed in any areas or space exposed to the public unless reasonably fenced, barricaded or the like.
Upon
completion of the Tenant's Improvements, Tenant shall, and shall cause its contractors and subcontractors to,
remove all temporary structures, surplus materials, machinery and equipment, debris and rubbish of whatever kind
I'emainin ; on the Demised Premises, If Tenant fails t'o comply with the foregoing responsibilities after notice and
ten (10) clays opportunity to cure, then Landlord may cause the removal of all debris, rubbish, material and
equipment, and charge the cost thereof to Tenant, who agrees to pey for the same within thirty (30) days after
billing,
(Ir)
:Lm, ou g, , Adj twpiL,r, l t;SL. Tenant shall, and shall cause each of Tenant's
contractors and subcontractors to, maintain continuous protection of adjacent premises in a manner as to minimize
the likelihood of any damage to adjacent property and improvements by reason of the construction of the Tenant ' s
Improvements and shall use lights, guard rails, and barricades, as described in the Staging flans and as otherwise'
may be necessary or appropriate to secure all parts of the Tenant's Improvements, the Demised Premises and
adjoining areas against accident, disturbance and any other hazard.
(i) .l2e'= uilolition, Tenant shall be responsible for the demolition and removal of the Project if
and to the extent required under Section 27.03 (Termination Rights) of this Lease.
(j) Sttdg, ,gg. During the construction of the Tenant's Improvements, Tenant shall be
responsible for maintaining on the Demised Premises, or elsewhere outside of the dropping Center, such area as
shall be required in order to accommodate parking of trucks, construction worker automobiles and construction
vehicles, and for the staging and storage of building and construction materials and supplies (the "Staging Area"),
Tenant acknowledges and agrees that Landlord shall not provide any Staging Area within the Shopping Center,
except for such Staging Area within the Shopping Center for the temporary Marina office as described in subsection
(n) below, the location of which shall be specifically set forth in the Site Development Plan Package or other
materials provided to and approved by Landlord..
(k) .w a7 tarotiorl_ . C; ,g h r,li , To permit proper coordination, Tenant shall furnish
Landlord, prior to the commencement of the Initial Construction of the 'Tenant's Improvements, a work schedule of
work to be performed by Tenant's contractors and material subcontractors, as well as a list containing the names,
addresses, telephone numbers or such then known contractors and material subcontractors, which schedule and list
shall be periodically updated, Tenant and Landlord shall each appoint one (1) authorized representative for the
purpose of coordinating all construction matters. Tenant shall, throughout the initial Construction of the Tenant's
improvements, furnish to Landlord's authorized representative, reasonable advance notice (by telephone or email,
and the Section 21.1. I notice requirements shall not be applicable to this notice) of any regularly scheduled meetings
between Tenant and Tenant's general contractor or constr uction manager and major contractors and Landlord and
Landlord's representatives shalt have the right to be present at and participate in such meetings in person or by
telephone
(I) .f^' ac(C,prd'sAetalf4,g. At all limes during the Initial Construction of the Tenant's
Improvements, Landlord and Landlord's representatives, including, without limitation, any commotion manager
engaged by Landlord, shall have the right to enter upon the Demised Premises (inside the construction fence) to
inspect the Tenant's improvements; provided that Landlord's representatives shall not interfere with the construction
of the Tenant's Improvements,
(m)

.h O.e
. IAtY 1 rrtilr' j'o . t'jrirraQ1fi . Landlord agrees to cooperate with Tenant In
finding a mutually acceptable location adjacent to the Demised Premises (on the Shopping Center) for a. temporary
trailer to be used by Prime Landlord as its Marina office from and alter the date that Prime Landlord vacates the
existing
Mar'irra. office on the Pier until such time as the new Marina office in the Tower becomes available for
occupancy by Prime Landlord,
15
(n) ;rNrwataslrtrlc; l,i,on_ ?GILIe. Notwithstanding anything to the contrary contained in this Lease,
Landlord agrees to consider a proposal by Tenant to perform certain preconstruet.ion work (such as relocating
utilities and stubbing existing utilities, installing the temporary Marine office and reconfiguring the Marina) prior to
the Possession Date so long as all of the contingencies set forth in Articles XXXIV and XX.XVT of this Lease have
been satisfied and such work will not otherwise materially interfere with access to the Shopping Center or the Pier,
or any surface parking located on the Pier other than temporarily for small portions of such parking at any given
time; it being understood and agreed that any such proposal shall be subject to Landlord's sole and absolute
discretion.
Section 3.04 e g nscg, Tenant shall be responsible for paying and/or reimbursing to Prime Landlord,
and any third parties engaged by Prime Landlord and the f3ayfiont. Park Owner, within thirty (30) clays following
receipt of any invoice therefor, all costs and expenses incurred by the Prime Landlord, such third parties or the
Baytliont Park Owner in connection with this Lease (but only to the extent Prime Landlord is entitled to payment or
reimbursement from Landlord under the Retail Parcel Lease or Prime Landlord or Bayfrout Park Owner requires
(end Tenant agrees) that either or both will be paid as a condition to granting its approvals required for this Lease
(or, in the ease of the l3ayfiont Park Owner, to entering into the 13ayfront Park Parking Garage Lease and the
Easement Confirmation) and to proceed with the Project, including, without limitation: (i) all attorneys' fees and
expenses incurred in connection with the preparation, negotiation and/or review of this Lease or any amendments
thereto; (ii) all fees and expenses of third party consultants engaged in connection with the review of the plans under
Article ill of the Retail Parcel Lease; end (iii) all fees and expenses of third party professionals (including, without
limitation, a construction manager) engaged in connection with the constr ' uction, oversight or inspection of the
Tenant's improvements, or any subsequent alterations thereto (the cost and expenses described 'herein being
collectively referred to as the " Expenses"). Landlord shall be responsible fbr all Expenses incurred by Landlord and
its mortgagee in connection with the negotiation and implementation of the provisions of and approval under this
Lease and the Project, The terms of this Section 3,04 shall survive the expiration or earlier termination of the Term
of this Lease,
Section 3.05 Other irnpspyerttcn is, . Except as expressly permitted herein, Tenant shall not construct
any improvements (other than the Tenant's Improvements) without first obtaining the written approval of Landlord,
which approval shall be at the solo and absolute discretion of the Landlord up to the Opening Date and thereafter in
the reasonable business judgment of Landlord. The time periods within which Landlord may review and approve or
disapprove Tenant's plans and specifications for any such improvements shall be the same as provided in Section
3,02, above.
Section 3.06 tiigngge. . Tenant shall not erect any exterior signs or interior signs visible from the
exterior of the Project ("Tenants Signage " ) on the Demised Premises (including, without limitation, electronic
"media" signage), except as described in the Approved Plans, without fi r st obtaining the written approval of
Landlord, which approval shall be in Landlord's reasonable business judgment. The time periods within which
Landlord may review and approve or disapprove any such plans for Tenant's Signage shall be the same as provided
in Section 3,02 above. Without limiting the foregoing, Landlord may condition its approval of Tenant's signage on
Landlord's retainirg a continuing right of reasonable approval of the content from time to time displayed on such
Tenant's Signage; provided, however, that Landlord shall not have the right to approve the content of advertising on
electronic "media" or other signage so long as such signage does not include any of the following:
(a)

Any advertisement containing images or text that promotes unlawful or illegal goods,
services or activities;
(b)

Any advertisement that contains explicit or obscene Images or text;


(c)

Any advertisement that contains images or text that demeans an individual or group of
individuals on account of race, religion, national origin, ancestry, gender, age, disability or sexual orientation;
(d)

Any advertisement of tobacco or firearm products; or


16
*4,
(e)
Political advertisements, which shall include those that espouse or oppose the election of
any caodidate or party or public office whether at the federal, state or local level and/or espouse or oppose the
position or policy of any political party,
Landlord's approval is not required for (i) traffic safety signs, (ii) signs that are required by law, (iii)
interior signage that is not visible from the exterior of the Tower, or (iv) identification signage, including the names
of the Project or Tenant's occupants, colors, logos or other matters except size and location. if requested by Tenant,
Landlord agrees to list and depict the location of the Tower on any directory of tenants located at the Shopping
Center in a manner comparable to the listing/depicting of tenants of the Shopping Center. Landlord and Tenant
further agree that the other party's consent shall not be required for use of the names May:side" or "Sk.yHigh
Miami", respectively, solely for the purpose of directional signage or for identifying the location of the Shopping

Center or the Tower,

as the case may be, in promotional materials.

other uses of the name "Baysida" by Tenant .11


shall be subject to Landlord's prior written approval, in its sole and absolute discretion, and the use of "SkyNigh
Miami" by Landlord shall be subject to Tenant's prior written approval, in its sole and absolute discretion, except as
otherwise provided for in Section 5,01 below.
ARTICLE TV -ii RENT
Section 4.01 Prop,min Ren. Commencing as of the Rent Commencement Date t Tenant shall be
obligated to pay to Landlord, without any prior demand therefor and without any deduction or setoff whatsoever,
preopening rent in the amount of $400,000 per year or $33,333 per month ("Preopening Rent") in the manner set
forth in Section 11.02 below.
Section 4.02

Fixed MI. Tenant shall pay to Landlord, without any prior demand therefor and without
any deduction or setoff whatsoever, fixed rent ("Fixed Rent") as follows:
Lease Year Annual Fixed Rent Monthly Fixed Rent
Scheduled Opening Date-5 $1,350,000 $112.500
6-10 $1,485,000 $ 123.750
11-15 $ 1,633,500 $136,125
6-20*'* $ ,796,850 $149,738
21-25" $B76,535 $164,711
26-30" $2,174,189 $181,182
31-35**
$2,39I,607 $199,30
36-40" $2,630,768 $219,231
41-45" $2,893,845 $241,154
46-50" $3.183.229' $265:269
50+"'**
The extension of the Term antis Lease for any period after November 30, 2030 shall be contingent upon
the exercise by Landlord of any extension options under the Retail Parcel Lease or Landlord otherwise
extending the term of the Retail Parcel Lease, with respect
such period, such exercise of any extension
option or other extension of the term of the Retail Parcel Lease to be at the sole and absolute discretion of
I,andlord.
**a
The annual Fixed Rent for each. period of five (5) Lease Years during any portion of the Term Ilion) and
after Lease Year 50 shall be equal to the annual Fixed Rent for the immediately preceding five (5) Lease
Year period increased by ten percent (10%),
Preopening Rent and Fixed Rant for' each month during the Term shall be due and payable monthly in advance on
or before the first day of such month and shall be prorated for any partial month during the Termt All Preopening
Rent, Fixed Rent, Percentage Rent, Additional Rent and any other. sums due Landlord under this Lease (the
foregoing sometimes collectively referred to herein as the "rent") shall be paid to Landlord, together with all
applicable sales tax thereon (or any tax assessed in lieu or in substitution therein) by the State of Florida, at l3aysido
Marketplace, LLC, Sf35 12-2880, P.O. Box 86, Minneapolis, MN 55486-2880 (if gent by

mail) or l3ayside
17
Marketplace, LLC, U.S, Bank Operations Center, SDS 12-2880, 1200 Energy Park Drive, St. Paul, MN 55108 (if
sent by overnight courier), or such other address as Landlord may notify Tenant in nddig.
Section 4,03

2^MILI&Lhm1
(n)

Tenant shall pay to Landlord percentage rent rPercnta&

Rent")
for each Lease Year or partied 'Lease Year during MmWn uo(b}lows:
Leese Year Percentage Applicable Breakpoint
Scheduled Opening Date ^j
3.606666667% *16
`
818.178
610 3.666666667% $40,499,996
11-15 3.666666667% $44,549.996
16-20** 316666666670% $49,004,996
21-25** 3.666666867% $53,905,495
2640** 3.666666667% $59,296,045
3115** 16688866679% $65.215,640
3640** 3.6666686674% %71,748.2141
4145** 3.666666667% $78,923,035
4650** 3,66688666796 $86,815,339
The extension of the Term of this Lease for any period after November 30, 2030 shall be
contingent upon the exercise Landlord of any extension opt:ions under the Retail %mW Lease
or Landlord otherwise extending the term of the Retail Parcel Lease, with respect to such period,
such exercise of any extension option or other extension of the term of the Retail Parcel Lease to
be at the sole and absolute discretion of Landlord,
The, Applicable Breakpoint for each period of five (5) lAaSe, Y earsduring any portion of the Term
from and after Lease Year 50 shall be equal to the annual Fixed Rent for such 6^om period
divided by 3.666666667%,
To the extent that Gross Sales exceed $75,000,000 in any Lease Year during the Turn, Tenant
shall be entitled to withhold all Percentage Rent otherwise due to Landlord pursuant to this Section 4.03 for
Gross Sales in excess of $75,000,000 only until such time as Tenant has withheld Percentage Rent in an
amount equal to $3,000,000 in the aggregate (the "Site Construction Credit"). Once Tenent hag withheld
Percentage Rent in an amount equal to the Site Construction Credit, Tenant shall resume paying
percentage
Rent due and owing to Landlord for Gross Solos in excess of $75,000,000 pursuant to
the, terms of this
Section 4.03 For such Lease Year it being understood and agreed that if the Site Construction Credit
accrues over more than one Leese Year, Tenant shall remain obligated to make all Percentage Rent
payments due to Landlord pursuant to this Section 4.03 for Gross Sales equal to or less than $75,000,000
A each Lease Year,
=
**
18
The Applicable Breakpoint for any Lease Year which shall be less than twelve (12) full calendar
months shell be reduced to an amount equal to the product of (x) the Applicable Breakpoint limos (y) rr
fraction the numerator of which is the number of days in such Lease Year and the denominator of which is
365.
Each Lease Year shall be considered as an independent accounting period for the purpose of
computing the Percentage Rent due, if any, The amount of Grosse Sales of any Lease Year shall not be
carried over into any other Lease Year.
(b)

:firnoflayrneaj Percentage Rent shall be determined and. paid, without any prior
demand therefor, within one hundred twenty (120) (lays after the last day of each Lease Year during the Term in
respect of which Gross Sales for the applicable Lease Year have exceeded the Applicable Breakpoint,
(o) T3ect:t3.. fll;g , _ $K}fcs.
Tenant shall prepare and keep for a period of not less than
thirty-six (36) months following the end of each Lease Year, true and accurate books of account incl records in
accordance with generally accepted accounting principles consistently applied, including, but not limited to, sales
lax and other reports filed with governmental agencies. all purchases and receipts of admission tickets, merchandise,
inventories and all sales and other transactions by Tenant from which Gross Sales and Percentage Rent can be
determined.
Tenant agrees to record all sales, at the time each sale is made, in the manner that is customary in the
industry from time to time.
(d) gm
_ Spies (gLoan Pts, Tenant shall submit to Landlord on or betinre the thirtieth (301h)
day following the end of each calendar month during the Term (including the thirtieth (30th[) day of the month
following the end of the Term, as to which Tenant's obligation shall survive the expiration of the Term) a written
statement, signed by Tenant (or by an authorized officer, if Tenant is an Entity) and certified to be true, and correct in
all
material respects by the chief financial officer of Tenant, showing the amount of Gross Sales for such month, and
an itemization of all permissible deductions therefrom.
Tenant shall submit to Landlord on or before the one
hundred twentieth (120th) day fallowing tare end of each Lease Year or partial Lease Year a written statement,
signed by Tenant, showing the amount of Gross Sales for such Lease Year or partial Lease Year and an itemization
of all permissible deductions therefrom, Said annual statement shall also be duly certified to be true and correct in
all
material respects with the definition of Gross Sales set forth herein by the chief financial officer of Tenant and by
an independent certified public accounting firm reasonably satisfactory to Landlord, in accordance with sound and
accepted accounting practice consistently applied.
Landlord agrees that the firm of Berkowitz Politick Brant is
hereby approved to serve as (he independent certified public accounting firm, even though Richard Berkowitz (who
is one of many partners of such firm) or any Affiliate(s) of Richard Berkowitz is a member or beneficial owner of
Tenant.
The statements referred to in this Section 4.03(d) shall be in such form and style and shall contain such
details and information as Landlord may reasonably designate,
The acceptance by Landlord of payments of
Percentage Rent or reports thereofshall be without prejudice and shall in no event constitute a waiver of Landlord's
right to claim a deficiency in the payment of Percentage Rent or to audit Tenant's books and records, as hereafter set
forth.
The Gross Sales for any portion of a calendar month before the commencement of the first full calendar
month, shall be included in the monthly report, next succeeding any such partial month, Any information Tenant:
provides to Landlord shall be treated as confidential, except in any litigation or proceeding between the patties and,
except (farther, that Landlord may disclose such information to its attorneys and accountants and their respective
staff, to prospective purchasers, to prospective or existing lenders, to prospective or existing ground leasers
(provided each of such parties agrees to maintain such information confidential) and in any statement filed with the
Securities and Exchange Commission, Internal Revenue Service, or other similar governmental agency (but only to
the extent such confidential information is required by law to be so filed, and Landlord shall take all reasonable
steps to minimize disclosure in such dings of slid confidential information) or pursuant to any subpoena or judicial
process (but only after notice to Tenant and a reasonable opportunity for Tenant to contest by appropriate legal
proceedings, at Tenant's sole cost and expense, with Landlord's reasonable cooperation).
(e) Landlord's Au4,i;,ghts. Landlord shall have the right, upon thirty (30) days' notice to
Tenant. (no more than once per Lease Year for no more than the prior two (2) Lease Years) to cause a complete audit
of all statements of Gross Sales and. in connection with such audit, to examine Tenant's books of account and
records (including all supporting data and any other reemels from which Gross Sales may be tested or determined) of
Gross Sales disclosed in any statement given to Landlord by Tenant; and Tenant shall make all such records
available for such examination at the office where such records are regularly maintained during normal business
hours.
Landlord agrees that it shall not engage a certified public accounting :tine, that charges on a contingency fee
19
basis to perform any such audit, Landlord shall have the right to copy and duplicate such information as Landlord
may require at Landlord's solo cost and expense. If any such audit discloses that the actual Gross Sales transacted
by Tenant exceed those reported, then Tenant shall pay Landlord such additional Percentage Rent as may be so
shown to be payable (provicledt however, Tenant may dispute such findings pursuant to Section 21,22 below and, if
successful, shall have the rights provided. for therein), and if the excess so disclosed shall be more than 3%, Tenant
shall also then pay the reasonable cost of such audit and exnnnination. If any such audit discloses that the actual
Gross Sales transacted by Tenant are less than those reported, then Landlord shall reimburse Tenant such excess
Percentage Rent as may be so shown to be paid. If any audit shall be commenced by Landlord or if there shall arise
a difference or dispute concerning Gross Sales, then and in any such event, Tenant's books of account and records
(including all supporting data and any other records from which Gross Sales may be tested or determined) shall be
preserved and retained by Tenant until a final resolution or final determination of such dispute or difference. Any
information Tenant provides to Landlord shall be treated as confidential, except in any litigation or proceeding
between the parties and, except Nether, that Landlord may disclose such information to its attorneys and aocountants
and their respective staff, to prospective purchasers, lo prospective or existing lender's, to prospective or existing
ground lessors (provided each of such parties agrees to maintain such information confidential) and in any statement
filed with the Securities and l3xchange Commission, Internal Revenue Service, or other similar governmental
agency (but only to the extent such confidential information is required by law to be so filed, and. Landlord shall take
all reasonable steps to minimize disclosure in such filings of such confidential information) or pursuant to any
subpoena or judicial process (but only alien notice to Tenant and a reasonable opportunity for Tenant to contest by
appropriate legal proceedings, at Tenant's sole cost and expense, with Landlord's treasonable cooperation).
Section 4,04

Into ry, t
otit
Late Ida yme_ ts. All past due Peeopening Rent, Fixed Rent, Additional Rent,
and other stuns due Landlord under this Lease shall bear interest from the due date until paid by Tenant, at the rate
of 2% above the Prime Rate, not to exceed the maximum rate of interest allowed by law in the State of Florida. (the
"Default Rate"). The interest shall be deemed to be Additional Rent.
Section 4.05 Hunt;fit ipe_ c Beginning as of the Scheduled Opening Date and continuing
throughout the Term, Tanana also agrees to pay to Landlord a "Maintenance Charge" calculated as follows: (a) for
the first Lease Year following the Scheduled Opening Date, the Maintenance Charge shall be $1250,000, paid in
equal monthly installments together with payments of Fixed Rent in the manner provided for in Section 4.02 above
(and shall be prorated for any partial Lease Year in which the Scheduled Opening Date occurs); and (b) for each
subsequent Lease Year or portion thereof following the Scheduled Opening Date, the Maintenance Charge shall
increase by 2.5% over the Maintenance Charge for the immediately preceding Lease Year, paid in equal monthly
installments together with payments of Fixed Rent in the manner provided for in Section 4,02 above (and shall be
pt'orat:ed. for any partial Lease Year). The Maintenance Charge shall constitute a partial. reimbursement to Landlord
for common area maintenance expenses and operating expenses for the Shopping Center and, as applicable, the
Demised Premises.
ARTICLE V _ . CONDUCT OF BUSYNESS BY TENANT
Section 5.01 ear ofDGrxrise,j rerri ,, ,s, s. Tenant shall use the Demised Premises during the Term for a
retail/restaurant/entettaininrnt/flying theater (similar to Disney's Sonia attraction) tourist attraction initially known
as Skyhligh Miami (or such other name as Tenant may elect thorn time to time, subject to Landlord's prior written
approval, not to be unreasonably withheld arid limited to verification that such. other name is not derogatory,
obscene, the name of a direct competitor of Landlord who is in the business of developing, owning and operating
regional shopping centers as Its primacy business, or any other name that would, in Landlord's reasonable business
judgment, be considered infringement upon the intellectual property of any third party), which may include, without
limitation, one or more observation deck(s) (the "Observation Deck"), a restaauant(s), a bar(s) / nightclub(s), a retail
store(s) (which retail use(s) shall be iacidental but not primary uses at the Demised Premises),
administrative/management/security/Marina offices and facilities/amenities, nightly illumination and music shows
(including, potentially fireworks, subject to the terms of this Lease, and those utilizing built-in LED lights and
speakers on the Tower), ballroom(s), amusements (such as bungee jump, sky plunge, sky walk), outdoor
entertainment, and/or entertainment venue(s) including video games or so called "coin box entertainment" (which
term shall not include video poker or other gambling games or devices), exhibition hall(s) and/or museums (in either
case, for temporary or permanent exhibitions), meeting room(s), private club(s), corntnunicetions devices and
equipment, banquet lrall(s)(inoluding those for weddings and other business or social functions), wedding chapel
20
kiosk(s), ATMs, such other uses as are from time to time consistent with the foregoing and customarily found at
fcilities comparable to the Project or facilities that have an observation tower or deck (sore, or all of which may
include an outdoor component as are compatible with the foregoing) provided same are otherwise permitted under
the Retail Parcel Lease and do not violate the existing exclusive uses granted by Landlord at the Shopping as set
forth on Exhibit "P" attached hereto, and such other ancillary uses as are hereafter approved by Landlord in its
reasonable business judgment (the "Permitted Uses "). Notwithstanding the foregoing, no use or operation will be
made, conducted or permitted on or with respect to the Demised Premises or the Shopping Center, which use or
operation is inconsistent with a first class mixed use, retail, restaurant, entertainment and, in thee case of the Demised
Premises, flying theater facility, including the following:
(a)

Any public or private nuisance;


(h)

Any noise or sound that is objectionable due' to intermittence, beat, frequency, '.shrillness
or loudness and can be heard beyond the boundaries of the Demised Premises;
(c) Any obnoxious odor that can be smelled beyond the boundaries of the Demised Premises
(and as to the Shopping Center, Landlord agrees to enforce the terms of its existing tenant leases with respect to
obnoxious odors emanating from the Shopping Center, to assure against such smells emanating from the Common
Area of the Shopping Centex and to include and enforce a prohibition on obnoxious odors in future leases); it being
understand. and agreed that ordinary cooking odors emanating from any properly vented and operated restaurants a.t.
the Demised Premises or the Shopping Center shall not be considered obnoxious for purposes of this provision;
(ct)

Any noxious, toxic, caustic, or corrosive fuel or gas, except for reasonable quantities of
customarily used goods (e.g., cleaning supplies) that are safeguarded as required by law;
(e) Any dust, dirt or fly ash in unreasonably excessive quantities;
(f) Any unusual fire, explosion or other damaging or dangerous hazard including the storage,
display or sale of explosives or fireworks (but this shall not preclude the display of fireworks in accordance with the
terms of this Lease);
(g) Any warehouse (but any area for the storage of goods intended to be sold at any retail,
restaurant, food service, entertainment or other on site establishment in the Demised Premises, except as otherwise
provided in this Lease, or the remaining portions of the T3aysicle Property or that is for storage of products or materials
used for the maintenance, repair, replacement or operation of the Project or other portions of the Bayside Properly
shall not be deemed to be a warehouse), assembly, manufacture, distillation, refining, smelting, agriculture or mining
operations;
(h) Any dumping of garbage or refuse by Landlord or Te'nant, or any of their respective
agents, employees or contractors, but this shall not restrict t'r'ash receptacles, dumpsters, compactors and the like as
are typically Pound in comparable facilities, provided they are screened from public view at ground level and
equipped so as to prevent odors from emanating therefrom (but shall not be requi red to be maintained in a climate
controlled environment), in the ease of receptacles not intended for the use of the general public (whether during
construction or thereafter);
(i) Gaming devices, gaming parlors, bookmaking ostablishrnents, but this shall not restrict
the sale of lottery tickets; it being understood and agreed that if gaming becomes lawful in Miami, Florida, Landlord
will entertain a proposal from Terra.rtt to establish a private gaming club at the 'Demised Premises, which proposal
shall be subject to the prior written approval of Landlord, in its sole and absolute discretion, and shall be conditioned
upon, among other things, (1) the prior written approval of Prime Landlord, (ii) a mutually agreed upon revenue
sharing arrangement as between Tenant, Landlord and Prime Landlord and (iii) Tenant providing evidence
satisfactory to Landlord, in its reasonable business judgment, that Tenant will be able to procure all necessary
licenses, permits and approvals required by any governmental authority in connection with any such private gaming
club; provided further, however, that this provision shall not preclude any such use by or through Landlord if
permitted pursuant to the Retail Parcel Lease or otherwise approved by Prime Landlord.
71.
(j)

Sleeping quarters or lodging facilities; provided-, however, that this shall not preclude any
such use by or through Landlord if approved by Prime Landlord;
(k) Any use not expressly permitted by this Lease which would violate, suspend, void or
materially increase the premium of any policy or policies of insurance at the i)ar.yside Property; provided, however,
that this shall not preclude any such use by or through Landlord if permitted pursuant to the Metall Parcel Lease or
otherwise approved by Prime Landlord; and

(I)

The display ofany X-rated or otherwise explicit pornographic films, movies, or other
materials.
Tenant's right to use the Demised Premises for the Permitted Uses shall be subject to all applicable laws, codes,
ordinances and other restrictions. Landlord makes no representation or warranty whatsoever that either this Lease or
the Project or the Permitted Uses are permitted pursuant to such laws, codes, ordinances or other restric'tions.
Tenant agrees that use of the Demised Premises for the Pe rmitted Uses shall be limited to the Tower and those areas
specifically identified in the Approved Plans. Notwithstanding the foregoing, Landlord hereby approves up to two
(2) kiosks (which term, for purposes of this Lease, shall also mean carts) that may only be used to sell food and
beverages and up to two (2) kiosks that may only be used to sell souvenirs that include the name of the Project, each
such kiosk to be located in the stairway and/or entranceway to the Tower and shall not be larger than one hundred
fifty (150) square feet in size. In no event shall "reliant. be entitled to conduct or permit any sales or other activities
or events on or about the Pier or otherwise outside of the Tower including the stairway and/or entranceway (e,g., no
carts, no kiosks), except as otherwise provided in the Approved Plans or as above provided or as otherwise approved
by Landlord in its reasonable business judgment; provided, however, activities or other events may be conducted on
the stairway and/or entranceway to the Tower consistent with what is available at other facilities comparable to the
Project subject to the foregoing limitations on kiosks. Tenant shall endeavor to cause the Project to be constructed
in a manner to utilize renewable energy production (such as solar panels); provided, however, that the production of
any such renewable energy (other than solar panels) is subject to Landlord's commercially reasonable approval of
the means and methods of the production thereof and Tenant is not a guarantor of any specific level of renewal
energy production,. if any. The sale at, from or in connection with the Demised Premises of any apparel or other
items with the word " l,3arysidet9 imprinted thereon is prohibited, unless approved by Landlord in its sole and absolute
discretion and subject to the terns of a licensing agreement (which addresses, among other things, reasonable
licensing fags) reasonably accelat:abie to Landlord and Tenant; provided, however, that the terms (including license
fee, ifany) for the granting of a license by Landlord for the use of the words "at Bayside" as a locational reference
shall only be subject to Landlord's reasonable approval and shall be no more onerous (including no higher license
tea, if any) than those pursuant to which anyone else is licensed to use such words. The sale at, thorn ur in
connection with the Shopping Center of any apparel or other items with the words "Skylligh Miami" (or such other
tradenameby which Tenant may be operating the Project Porn time to time as provided in this Lease) imprinted
thereon is prohibited unless approved by 'T'enant hi its absolute and sole discretion and subject to the, terms of a
licensing agreement (which addresses, among other thing, reasonable licensing fees) reasonably acceptable to
Landlord and Tenant.
Section 5.02 Projq, Lf(anaoer. The Project shall at all times be operated and managed by a
management company with sufficient experience in managing world-class educational and entertainment projects of
comparable size, cost and scope, which company shall be satisfactory to Landlord, in its reasonable discretion (the
"Project Manager"), international Theme Park Services, Inc. is hereby approved by Landlord as Project Manager.
In the event Tenant desires to replace the than approved Project Manager, Tenantt. shall notify Landlord thereof hi
writing, which notice shall include information evidencing the proposed Project Manager's qualifications as
required pursuant to this Section. 5.02 ("New Manager Package"). Landlord shall have a period of ten (10) Business
Days following receipt of the New Manager Package to review and approve or disapprove the proposed Project
Manager; provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's written
approval or disapproval of the proposed Project Manager within such ten 00) Business Day period and provided
further Tenant has submitted any such approval request in an envelope (or an email) in accordance with Section
21.11 hereof, with the following caption at the top of the fleet page in bold lettering "LANDLORD'S RESPONSE
IS I ' ,QUIRCD) WITHIN TEN (10) DIMNESS DAYS FOLLOWING RECEIPT OF THIS NOTICE
PURSUANT TO THE TERMS OF THE LEASE", Landlord shall be deemed to have approved such proposed!
fi
22
Project Manager, Tenant agrees to cooperate with Landlord in promptly providing such additional information as
Landlord may reasonably request regarding any proposed Project Manager,

Section 5.03

logesCovenant to..S li en. Tenant shall substantially complete the initial Construction
and shall open the Below Tower Parking and the Observation Deck For business to the general public on or before
the Scheduled Opening Date, sulyject to a day for day extension In accordance with Section 21,07 of this Lease by
reason of Force Mejeure, Notwithstanding anything herein seemingly to the contrary, Tenant shall not open any
portion of the Project for business to the general public prior to Landlord's receipt of all Evidence of Completion of
Construction of the initial Construction as required by Section 3.03(c) above, If Tenant shall fail to complete the
initial
Construction and fails to open the Below Tower Parking and Observation Deck to the public by the
Scheduled Opening Date, subject to a day for day extension in accordance with Section 21.07 of this Lease by
reason of force iVlajeura, then the terms of Section 27,02 shall apply,

Section 5,04

Cnatlr7uous i )paratiola,
(a) "emirs.C:oyinant. Tenant shall, from and. after the Opening Date and thereafter
throughout the Tern i, Continuously Operate on the Demised Premises the Project. For purposes of this Section 5.04,
"Continuously Operate" means at a minimum to keep open to the public for business at least eight (8) hours per tiny,
seven (7) days a week, all or a portion of the Project on a fully fixtured, inventoried and staffed basis with no
interruptions except for periods of time reasonably required for reconstruction, renovation, repair, alteration or due
to Force Majeure, Tenant has the right to operate the Project beyond the hours during which other business in the
Shopping Comer are open to the public. This provision is subject to the protections afforded to a Leasehold
Mortgagee in Attic:le XXX,
(b)

L. 1 1Lr
reemedie s, If Telmer at any time ceases to continuously operate as required in
Section 5.04(e) for twelve (12) consecutive months, Landlord, In addition to its other remedies, may elect at any
time thereafter while the breach continues to terminate the Term of this Lease by, delivery of written notice to Tenant
("Termination Notice"), which termination shall be effective on the date that is ninety (90) days after Landlord's
delivery of the Termination Notice to 'tenant; provided, however, that if Tenant resumes continuous operations of
the Project prior to the end of the aforementioned 90-day period, then the Termination Notice shall be deemed null
and void and of no further fierce or effect:, if the Term of this Lease is so terminated, the Demised Premises shall
revert: back to Landlord and all improvements located on the Demised Premises shall become the sole and absolute
property of Landlord,
If the Term of this Lease is so terminated, Tenant may remove from the Demised Premises
such trade fixtures and equipment as it desires and shall repair any damage to any improvement caused by such
removal, by or before the effective date ofsuelt termination.
Section 5.05 Ca;glpp.jiat?ce with ,Ltvs ap.cl Re ;rltttiopg. Tenant. shall comply with all laws, ordinances,
codes, orders and regulations applicable to the Demised Premises or to Tenant's activities or business relating to the
Demised Premises.
Tenant shall also comply with the regulations, requirements and recommendations of any
insurance ]nderwriter, inspection bureau ar similar agency having jurisdiction over Tenant or the Demised
Promises.
Tenant shall notify Landlord if Tenant has received notice of, or has knowledge of any condition or
occurrence that might result le liability to Landlord,
Section 5,06
jla,`;jj lless Hippest Tenant shall keep all or a portion of the Demised Premises open for
business to the public at least: eight (8) hours per (fay, seven (7) clays a week. Nothing contained herein, however,
shall prevent Tenant from maintaining more business hours than herein set forth. 'Landlord hereby represents and
warrants to Tenant that the Parking Garage shall remain open during all business hours maintained by Tenant at the
Tower. Tenant hereby represents and warrants to Landlord that the Below Tower Parking shall remain open for
business during all business hours maintained by Landlo rd.
Section 5.0`7 _ ,o l n Ai,e ts.
Landlord shall not cause the access to the Demised Premises by way of
the Easement for ingress and egress over the Common Areas of the Shopping Center (to be depicted on the Survey
and the as"built survey to the extent plottable) to be materially and adversely reduced or altered; provided the
foregoing shall not apply in the case of damage or destr uction by reason of casualty (until restoration occurs), or
during reasonable periods of time required to provide necessary maintenance or repairs or to prevent public
dedication or as otherwise required by applicable authorities having jurisdiction. In the event of any such
medal
23
and adverse interference to access by way
or the Easement for ingress and egress to the Premises, which extends for'
a period of more than sevenlytiwo (72) hours following delivery of written notice thereof by Tenant to Landlord
(except in the ease of damage or destruction by reason of casually, or during reasonable periods of time required to
provide necessary maintenance or repairs or to prevent public dedication), and in addition to any other rights or
remedies available to Tenant at law or in equity, all rent (including the Fixed Rent, Percentage (tent and the
Maintenance Charge) otherwise payable by Tenant hereunder shall he equitably abated based on the degree of
interference
with Tenant's operations in the Demised Premises for so long as Landlord is unable to provide
reasonable alternate access to and From the Demised Premises, Landlord shall use its best efforts to provide
alternate access to and From the Demised Promises, including after, and during restoration following, damage or
destruction by reason of casualty or during periods of time required to provide necessary maintenance or repair or to
prevent public dedication.
Section 5,013 Ejyewcrt;lcs 17rslsirr,ys.
Tenant shall have. the right to permit periodic fireworks displays at
or in the Marina or bay adjacent to time Demised Promises subject to
the following conditions: (a) Tenant shall have
obtained the prior written approvel of Prime Landlord and submitted a copy of same to Landlord; (b) Tenant shall
have procured all required permits and licenses and shrill have submitted copies of same to Landlord (and if such
permits end licenses are subject. to periodic renewal, Tenant shall have submitted evidence of all renewals); (c)
Tenant shall engage only professional, fully licensed and insured pyrotecl'rniaians and shall have provided evidence
of same reasonably satisfactory to Landlord, together with certificate(s) evidencing commercial general liability
insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the
Property, such insurance to be on the so-called "occurrence" form with a limit of not less than $10,000,000 per
occurrence) and $10,000,000 in the aggregate per location plus excess or umbrella insurance with a minimum limit
of $ 10,000,000 per occurrence and in the aggregate and to cover at least the following hazards; (A) premises and
operations; (B) products and completed operations on an "if any" basis; (C) independent contractors; and (D)
contractual liability for
socalled
"insured contracts", or such other insurance far such vendors as is customary and
reasonably acceptable to Landlord (and evidence of all renewals of such insurance); (d) Tenant and any
pyrotechnicla.n(s) engaged by Tenant. shall comply with all applicable federal, state and local laws, rules, regulations
and ordinances, including all stote and local fire codes; (e) Tenant shell provide such security personnel, barricades
and local police department services as may be reasonably necessary to preclude individuals other than those
authorized by Tenant, from entering the area for set:-up and discharge of the fireworks production, including a fallout
area reasonably satisfactory to Landlord and Tenant where the fireworks may safely rise and debris may safely full;
it
being understood that if the fallout area is within Biscayne l:3ay, such area shall have been approved by Prime
Landlord and any other governmental authorities with jurisdiction over Biscayne Bay; (l
Tenant shall be
responsible for all cost!.; and expenses associated with any such fireworks displays; and (g) in no event shall any
fireworks or other explosives be stored al; the Demised Premises or elsewhere at the Bayside Property.
ARTICLE VI 'UTILITIES
Tenant shall be solely responsible for and promptly pay all charges for heat, water (including sewerage
charges and/or taxes or other charges based on water consumption), gas, electricity and any other utility used or
consumed exclusively in or for the benefit of the Demised Premises,
Without limiting the foregoing, Tenant shall be
responsible for contracting with all applicable utility providers providing such utility services and for installing, at
Tenant's sole cost and expense, all meters for such utility services, to dire extent such meters are applicable.
Notwithstanding the foregoing, Landlord shall be responsible, from and after the Scheduled Opening Date, for all
lighting costs (including electric consumption costs and repair, maintenance and, when necessary replacement costs
of bulbs, ballasts and light fixtures) associated with the exterior areas of the Demised Premises (i.e., driveways and
pedestrian walkways on the Demised Premises but not the interior of the Tower building, on the Tower building or
at the Bayfront Park Parking Garage); it being understood and agreed that (i) the lighting plan shall be included in
the design drawings to be submitted. to Landlord for approval pursuant to Section 3,01 and (ii) Tenant shall arrange
to have the lighting for which Landlord. is responsible separar;ely metered from the balance of Tenant's electrical
systems at t'he Demised Premises.
ARTICLE Vll -- IMPOSITIONS
Section 7,01

C.iw ;obi g
i_ n. 1?lnditlte l;gN
, ,( flit l_ . Landlord and Tenant will cooperate with each other in
seeking to have the Demised Premises separately assessed, and Landlord will join with Tenant in any application
24
that is reasonably necessary for Tenant to Rake to the taxing authorities to have the Demised Premises and the
Leasehold Improvements separately assessed. Landlord and Tenant shall share equally in all costs and expenses
incurred by either party in pursuing the separate tax parcel including, without limitation, any administrative fees
charged by the taxing authority, costs associated with a formal subdivision, If required by the taxing authority in
order obtain the separate tax parcel and attorneys' fees and costs; it being understood and agreed that Landlord may
designate the law firm/attorney(s) to assist in pursuing such separate tax parcel, subject to Tenant's reasonable
approval. Joe Goldstein of Holland & Knight (and his associates and/or paralegals) are approved by Tenant
undertake the foregoing tax parcel work.

Section 7.02

.Paymetll .g.0 1c r :tr, ly 1, ti sec 1, s.


(a) l yrnonts by Landii. If the Demised Premises are separately assessed, Landlord shall
pay or cause to be paid to Tenant (who she combine same with its l .tymon( and remit same to the taxing
authorities) prior to delinquency the prorated portion of all Impositions applicable to the Demised Premises to the
extent allocable with respect to any portion of such tax year ("Tax Year ") preceding the !tent Commencement Date
and Landlord shall pay or cause to be paid the prorated portion of all 'Impositions applicable to the Demised
Premises to the extent allocable with respect to any portion of the Tax Year following the expiration or earlier
termination of this Lease occurs.
(b) > ym lts,by Tengj . If the Demised premises are separately assessed!, Tenant shall pay
or cause to be paid prior to delinquency all Impositions applicable to the Demised Premises for any Tax Year falling
wholly within the Term of this Lease end the prorated portion of all Impositions applicable to the Demised Premises
for any Tax Year in which the Rent Commencement Date or the expiration or earlier termination of this Lease
occurs, with respect to that portion of such Tax Year following the Rent Commencement Date or preceding such
expiration or earlier termination of this Lease, as applicable. Notwithstanding the foregoing, may Impositions on the
land component of the assessed value of the Demised Premises, if any, relating or pertaining to the period of time
preceding the Opening Date shall be paid or caused to be paid by Landlord without contribution by Tema, the
parties agreeing that any such payment obligation is covered by Preopenlrag Rent.
(c) l+ It ? p c lP r g.gt, Each party shall deliver to the other a copy or copies of a
receipted tax bill or bills showing payment of the Impositions that such party is required to pay and discharge under
the provisions of this Section 7.02 within thirty (30) days after the other party shall have requested the same, or
within thirty (30) days after the Net Clay upon which such tax is due and payable without penalty whichever is later.
(dl) ,4lrtcsiin, 1,. gplai 1p1,y s .esseci l"gxp,s. If the Demised Premises are separately assessed,
and if Tenant, in good raid), shall desire to contest the validity or amount of any Impositions to be paid by Tenant,
Tenant shall notify Landlord of Tenant's intention to contest the same (but failure to do so shall not restrict Tenant's
right to contest or constitute a default or, with notice, Event of Default, and shall not entitle Landlord to exercise any
remedies against Tenant). Tenant shall not (unless applicable law shall require payment as a condition precedent to
the contest or to stay enforcement of collection proceedings for such contested Impositions) he required to pay,
discharge or remove any lien for such Impositions so long as Tenant shall, in good faith, at. Tenant's own expense,
diligently contest the same or the validity thereof by appropriate proceedings. Such delay by Tenant in paying the
same until final determination of such disputed matter shall not be deemed a default in the conditions of this Lease,
provided Tenant shall at all times effectually stay or prevent an official or judicial sale of the Demised Premises for
such iron-payment under execution or otherwise, and pay any final judgment enforcing the Impositions so contested,
"T"hereafter promptly upon receipt, Tenant shall furnish Landlord evidence of satisfaction of such judgment,

Section 03

;'.s't
es.
1'.itrlat,_ _
Glasarali
....Tna
T
?itl;,4.u,(.ls.c
ra7
71J4(_ ..M.c...Q9.mpigti.A?. caf tl7f
,1i:tjt ia
l.
C, "onsuurgtic21i. If for all or any part of the "t"erm after the completion of the Initial Construction the Demised
Premises are not separately assessed but are included within an assessment of all or part of a larger tax parcel (the
"Tax Parcel"), Landlord will pay or cause to be paid. all Impositions applicable to the Tax Parcel prior to
delinquency. Tenant shall, within ten (10) Business Days following Landlord's demand therefor, in writing,
accompanied by a copy of the tax bill and the method of calculating the amount owed. by Tenant, reimburse
Landlord for all impositions allocable to the Demised Premises from and after the completion of the initial
Construction, equal to the sum on (i) Impositions allocable to the Tenant's Improvements (and if not a separate line
item on the tax bill f or the Tax Parcel, then an equitable adjustment shall be made by the parties between the
25
Impositions allowed to the Tenant's Improvements and the Landlord's improvements): plus (ii) the product of (x)
the Impositions for the land component of the Tax Parcel (if any, the parties acknowledging that the land may be
exempt by virtue of its ownership by a governmental authority) times (y) a fraction, the numerator of which is the
square footage of the area itt the Demised Premises and the denominator of which is the square footage of the area. in
the Tax Parcel. An official certificate or statement issued or given by any sovereign or municipal authority, or any
agency thereof, or any public utility, showing the existence of any Imposition, or interest or penalties thereon, the
payment of which is the obligation of Tenant as herein provided, shall be conclusive evidence for all purposes of
this Lease of the existence and amount of such Imposition, interest and penalties. Tenant (at Tenant's sole cost and
expense) shall have the right to challenge the assessed value of the Tenant's Improvements and the land value ()li the
Demised Premises and Landlord shall join ire any application rehnt:lve thereto and the parties shall cooperate if both
are appealing. Tenant shall pay all of Landlord's reasonable unaffiliated third-party out of pocket costs in
connection with an appeal by Tenant, if any, but only if Landlord is not jointly appealing.
Section 7.04

Tax es ltardtlrput Sepaaracf 1 ,1?< arrel_ l'r ran;


Aclrtlnl7. gl tlir.p(
the Initial G.oaastra.actinn.
Notwithstanding anything herein to the contrary, to the extent that Impositions applicable to the Tax Parcel prior to
the completion of the initial Construction shall increase solely as a result of the construction of the Tenant's
Improvements and the value thereof (as opposed to the Preopening Rent payments) at any time from and after the
date as of which Tenant shall commence construction of the Tenant's Improvements, then Tenant shall, within ten
(10) Business Days tbllowin'g Landlord's demand therefor in writing, accompanied by a copy of the tax bill and (he
method of calculating the amount owed by Tenant, reimburse Landlord for all such increases.
Section 7.05 IInjerest . lri_ 1,gnailties, If the Demised Premises are separately assessed and rennet falls
to pay all or any portion of the Impositions applicable to the Demised Premises prior to delinquency, then Landlord
shall have the right to pay such Impositions directly to the taxing authorities and Tenant shall reimburse Landlord
upon demand for the amount of such delinquent Impositions, including all interest and penalties imposed by the
faxing enthoritiet's thereon, together with interest on the eggreggal'.e amount paid by Land lord at the Default Rate, from
the date Landlord pays such delinquent Impositions on Tenant ' s behalf 1.ntil the date Landlord is reimbursed by
Tenant. if the Demised Premises are not separately assessed and Tenant falls to pay to Landlord any tlnnpositions
applicable to the Demised Promises pursuant to this Article Vii ra:t least' thirty (30) Clays prior to delinquency or as
required in Sections 7.03 or 7,04, if later, then Tenant. shall reimburse Landlord upon demand for the amount of such
delinquent Impositions applicable to the Demised Premises. together with interest on such amount at the Default
Rate from the date Landlord pays all imp ositions due with respect to the Tax Parcel until the date Landlord is
reimbursed by Tenant. All sums paid by Landlord on behalf of Tenant, as well as all interest payable to Landlord.
pursuant to this Section 7,05 shall be Additional Rent.
ARTICLE VIII -.. INSPECTION, MAINTENANCE AND REPAIR OF 'I IE DEMISED PREMISES
Section 8.01 Ma iantet-afY, ;,i I,andlorci, Landlord shall have no responsibility for any repairs or
maintenance relating to the Demised Premises except as and to the extent expressly provided in this Lease,
Notwithstanding the foregoing-, (a) Landlord shall, at Its sole cost, repair and maintain the Shopping Center in first
class condition and repair, clean,. sanitary and safe, and otherwise in a manner so as to avoid unreasonable
interference with or disruption ofTenaant's use of the Demised Premises for the Permitted Uses and Tenant's use of
the Easements In the manner contemplated by the Approved Plans and this Lease and (b) Landlord shell, at no cost
to Tenant other than the Maintenance Charge, provide the following limited services in the exterior areas of the
Demised Promises (but not the interior of the Tower building or any portion or the i3ayfiont Park Parking Garage)
from and aftpr the Opening .Date: (I) limited security patrols which shall not include line management or crowd
control, (Ii) maintenance of landscaping as approved by Landlord so long as Tenant is properly irrigating such
landscaping (but not replacement thereof unless required due to Landlord's failure to so maintain), and (iii) periodic
litter patrol to pick up ;tray Jitter and deposit in designated trash receptacles. In no event shall Landlord be obligated
to improve or upgrade any portion of the Shopping Center; provided, however, that Tenant may submit a proposal to
Landlord for exterior improvements to the Shopping Center, which proposal Landlord may accept, reject, or
conditionally accept in Landlord's sole and absolute discretion,
Section 8.02 Ma'netggjrg yyJhjjat. Tenant shall maintain (including repair and replacement) and
keep the Demised Premises, the Tenant's 'improvements and any other building and other improvements on the
Demised Premises in first class condition and repair, clean, sanitary and safe, If Tenant fails to do so, Landlord shall
26
have the right, upon giving Tenant not less than ten (10) clays prior written nodes., (except in the case of en. imminent
threat to human health or safety or damage to properly in which case no advance notice shell be required), to make
the repairs or perform the maintenance on behalf of Tenant. Tenant shall reimburse Landlord promptly upon receipt
of a bill. The performance of that work by Landlord shall not constitute a waiver of Tenant's default,
Section 8,03 Alt:ea'ations I
t
ly:Nnant. From time to time during the Term, Tenant may make, at' its own
cost and expense, any reasonable alterations or changes to the Tenant's 'Improvement's, including, without limitation,
alterations or changes to modernize the Tenant's Improvements or to offi:r amenities similar to those offered at
projects comparable to the Project, in a good and workmanlike man= in compliance with all applicable
requirements of law; provided, however, that any material. exterior changes to the Tenant's improvements or
material interior changes that would be visible from the exterior, shall be subject to Landlord's written approval,
which approval shall not be unreasonably withheld, Without limiting the generality of the foregoing, no approval
from Landlord shall be required for any interior alterations within the Tower, including the storef r onts or front
facades of subtenant spaces within the Tower (including entry features or signage), that are not otherwise visible
from the exterior of the Tenant's Improvements nor any non material changes to the exterior of the Tenant's
improvements. Landlord shall have a period of thirty (30) days lbllowing receipt of the plans and specifications for
any material alterations and ten (10) Business Days following receipt of any revisions thereto within which to
review and approve or disapprove such plans and specifications or any revisions thereto; provided, however, that in
the event Landlord shall not have responded to Tenant with Landlord's written approval or disapproval of such plans
and specifications or any revisions thereto within such thirty (30) day period (or as to revisions, such ten (10)
Business Day period) and provided further Tenant has submitted any such approval request in an envelope (or an
email) in accordance with Section n 21,11 hereof, with the following caption at the top of the first page in bold
lettering "LANDLORD'S RESPONSE IS REQUIRED WITHIN T'1'IIRTY (30) DAYS OR TEN ('10)
BUSINESS DAYS IN THE CASE OF REVISIONS] FOLLOWING RECEIPT OF THIS NOTICE
PURSUANT TO THE TERMS OF THE LEASE", Landlord shall be deemed to have approved plans and
specifications or the Subject revisions thereto. Landlord agrees to cooperate with Tenant for the purpose of securing
necessary permits for any changes, alterations or additions permitted under this Section 8.03 without: unaffiliated
third party out-of-pocket expense to Landlord,

Section 8,04

I9pinpt's Righttt^Inspect sjdTesting. Provided that Tenant shall first furnish to


lLandlord evidence of the comprehensive general liability insurance coverage required pursuant to this Lease, 'format
and its agents, employees, and representatives shall have a continuing right of reasonable access to the Demised
Premises beginning on the Execution Date for the purpose of conducting surveys, engineering, soil tests,
geotechnical, and environmental inspections and tests (including intrusive inspection and sampling),, and any other
inspections, studies, or tests reasonably desired by Tenant, in connection with the Project; provided that such tests
end the timing, duration. staging and conduct of such tests (including, without limitation, the means and methods
therefor) shall be subject to the prior written approval of Landlord, which shall not be unreasonably withheld.
conditioned or delayed. Tenant shall promptly repair any dtunage to the Demised Premises caused by such
inspections or tests. In the course of its investigations Tenant may make inquiries to third parties including, without
limitation, lenders, contractors, adjacent landowners, tenants, and municipal, local, and other government officials
and representatives, and Landlord consents to such inquir ies, Landlord shall cooperate (at no unaffiliated third party
out-of-pocket cost: to Landlord) with Tenant in connection with any such inspection or investi g ation requested by
Tenant.
ARTICLE IX
T_
INSURANCE; AND IND EM1NJT"Y

Section 9.0I

fet tgSXahsutFtr4 i
(a) At all times during the construction of the Tenant's Improvements, Tenant shall cause to
be maintained and kept in effect (by insurance maintained by it, its subtenants, contractors or others, at Tenant's sole
option) with insurance companies licensed to do business in the State of Florida including State approved surplus
lines insurers Builder's Risk Insurance with completed operations coverage, covering Landlord, Prime Landlord,
and any Landlord affiliates (including General Growth Management, ].LC) reasonably' having an insurable interest,
Landlord's lender and Tenant and Tenant's contractors, as their interest may appear, against loss or damage by fire,
vandalism. and All Other Perils ("AOP") as are customarily covered "extended coverage endorsements" upon all of
the Tenant's Improvements in place and till materials stored at the site of Tenant's Improvements and all materials,
27
equipment, supplies and temporary structures of all kinds, incident to the Tenant's Improvements, and builder's
machinery, t:oois, equipment, all while ft?1'!17111 part of, or contained in, such improvements or temporary structures
while on the premises or when adjacent thereto, while on malls, drives, sidewalks, streets or alleys, The valuation
clause on such policy shall be replacement cost, Said Builder's Risk insurance shall contain an express waiver of
any right of subrogation by the insurance company against the Landlord: and Prime Landlord, and their respective
agents, employees and con tractors,
(b) At all times during the Term of this Lease, including during the construction of the
't'enant's Improvements, Tenant shall cause to be maintained and kept in effect (by insurance maintained by it, its
subtenants, contractors or others, at Tenant's sole option) the following policies of insurance with insurance
companies licensed to do business in the State of Florida including State approved surplus lines insurers:
(i)
To the extent not covered under (a) above, property insurance on the Tenant's
Improvements and. personal property insuring against any peril now or hereafter
included within the classification of "All Risk " or "Special Perils" including
Wind, on a replacement cost basis with no coinsurance (A) in an amount equal
to 100% of the Replacement Cost, which for purposes of this Agreement shall
mean the actual replacement value (exclusive of lasts of excavations,
foundations, underground utilities, pilings and footings and exclusive of interior
build-out and PF&E,); (l3) containing an "Ordinance of Law Coverage" or
"Enforcement" endorsement including loss to the undamaged portion,
demolition costs and increased casts of construction endorsement in amounts
reasonably acceptable to Landlord if any of the 'T'enant's Improvements or the
use of the Demised Premises shall at: any time constitute legal nonconforming
structures or uses and (C) containing an agreed amount endorsement with
respect to the improvements and personal property waiving all co-insurance
provisions or to be written on a no co-Murat= fount; and (0) providing for no
deductible in excess of $50,:000 (except that any deductible for windstorm
coverage shall not exceed 3% of insured value) unless higher deductibles are
customary for commercial properties in South Florida:
(ii) Business income insurance in an mourn at least equal to one hundred percent
(100%) of the amounts payable, by Tenant to Landlord under this Lease for
Fixed Rent, Maintenance Charge and Impositions for a period of no less than
eighteen (18) months, (A) covering "All Risk" or "Special Perils" required to be
to be covered by the insurance provided for in subsection (i) above; and
(B) containing an extended period of indemnity endorsement which provides
that after the physical loss to the improvements and personal property has been
repaired, the continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the expiration of twelve
(12) months from the date that the Project is repaired or replaced and. operations
are resumed, whichever first occurs, and notwithstanding that the policy may
expire prior to the end of such period.
(iii) comprehensive boiler and machinery insurance, if steam boilers or other
preesure4flxed vessels are in operation, in amounts as shall be reasonably
required by Landlord on terms consistent with the commercial property
insurance policy required under .tbsC:
gt%t?rt.il;
(iv) commercial general liability insurance against claims for personal injury, bodily
injury, death or property damage occurring upon, in or about the Demised
Premises such insurance to be on the so-called "occurrence" form with a limit of
no less than $3,000,000 per occurrence and no less than $5,000,000 in the
aggregate per location plus excess or umbrella insurance with a minimum limit
of $50,000,000 per occurrence and in the aggregate and to cover at 'least the
following hazards. (A) premises and operations; (8) products and completed
28
operations on an "if any" basis; (C) independent contractors; and (D) contractual
liability for so-called "insured contracts";
(v) if applicable, automobile liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits per
occurrence of $1,000,000;
(vi) if applicable, worker's compensation and employer's liability subject to the
worker's compensation laws of the applicable state;
(vii) if bear, wine or other alcoholic beverage, sales for cm-promises consumption
occur on the Demised Premises, liquor liability (dram shop) insurance with a
minimum limit of liability in an amount of $4,000,000 per occurrence, covering
bodily in ury, death and property damage,
(viii) if any portion of the Demised Promises is currently or at any time in tha Altura
located in a ibderally designated "special flood hazard area", flood hazard
insurance in an amount equal to the maximum amount: of such Insurance
available unnder the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the Notional Flood insurance Reform Act of 1994 as
each may be amended (the "Flood Acts") plus excess limits as reasonably
approved by Landlord (but in no event more than $10,000,000, with a deductible
not greater than Twenty-five Thousand and No/100 Dollars ($25,000.00) or such
higher amount as may be customary for commercial properties in South Florida
and;
(ix) if any policy described in platis's'(, OD, MI, ), or .(y), above shall contain an
exclusion from coverage under such Policy for loss or damage incurred as a
result of an act of terrorism or similar acts ofsabot'age, terrorism coverage to the
extent available at an additional cost not to exceed $ , 1. 50,001) in 2013 U.S.
Dollars;
(c)

Additional Provisions.
(i) Evidence of commercial general liability insurance must be on file with
Landlord before Tenant takes possession of the Demised Premises and must be
kept current at all times. All other coverages shall be on file with Landlord
before commencement of construction of the Tenant's Improvements and must
be kept current at all times, If Tenant shall fall to effect or maintain (or fail to
cause to be effected or maintained) such insurance and provide Landlord with
copies of till policies and certificates evidencing the same at least ten (10) days
before the date that. Tenant is required to have any such insurance in effect, than,
upon five (5) days' prior written notice to Tenant, Landlord may effect the same
and Tenant agrees to pay, within thirty (30) days after demand, any amount paid
by Landlord for such purpose, together with interest thereon, and, in case of its
failure to so pay, the same shall be added to and become part of the installment
of rant next due under the terms of this Lease, Landlord shall not be limited in
the proof of any damages which Landlord may claim against Tenant arising out
of or by reason of Tenant's failure to provide and keep in force; (or cause to be
provided and kept in force) Insurance policies as aforesaid, to the amount of the
insurance premium or premiums not paid or incurred by Tenant which would
have been payable upon such Insurance but also shall be entitled to recover as
doiziages for such breach, the uninsured amount of any loss, liability, damages,
claims, costs and expenses of suit, judgments and interest, suffered, or incurred
by Landlord by reason of any casualty or accident or disaster occurring on the
Demised Premises which should have been insured hereunder. Tenant shall not
29
violate or permit to be violated any condition of any of said policies, and Tenant
shall so perform and satisfy (or cause to be performed and satisfied) the
requirements of the companies writing each policies so that at all times
companies or good standing shall be willing to write such insurance,
(ii) All policies of insurance procured by Tenant shall be insured by insurance
companies with general policyholder's rating of not less limn A and a financial
rating of Class Viii as rated in the most current available "Best's Insurance
Reports" or Moody's A2 or Fitch A, and licensed to do business in the State of
Florida, or a State approved surplus line insurer, and authorized to issue such
policy or policies, or equivalent. The commercial general liability policy shall
contain a provision that the coverage shall be primary and non-contributing with
respect to any policy carried by Landlord, and that any policy carried by
Landlord, shall be excess insurance. All commercial general liability insurance
procured by Tenant shall contain an endorsement that Landlord, although named
as an additional insured, nevertheless shall be entitled to recover under said
policies for any loss or damage occasioned to it, its servants, agents and
employees by reason of the negligence of Tenant, All policies of insurance
procured by Tenant shall contain an endorsement (to the extent commercially
reasonably available) providing as follows: that such insurance may not be
materially changed, amended or canceled with respect to Landlord except after
endeavoring to provide thirty (30) days' prior written notice from the insurance
company to Landlord and Landlord's mortgagee. All such policies, to the extent
commercially reasonably available, shall contain. cross-liability endorsements
and name Prime Landlord, Landlord, Landlord's mortgagees, beneficiaries and
additional Individuals and entities which Landlord may from time to time
reasonably designate, as additional insureds, Landlord may, f rom time to time,
increase the minimum amounts of all insurance required to be maintained by
Tenant under this Lease, in the exercise of Landlord's commercially reasonable
discretion, by notice in writing to Tenant but not more frequently than once
every five (5) years,
(iii)
Tenant hereby releases Landlord and anyone claiming by or through Landlord
by way of subrogation or otherwise, from any and all loss of or damage to the
Demised Premises, the Tenant's Improvements, the Project or the personal
property of Tenant or any subtenant, licensee or concessionaire thereon which
are covered by any insurance policies actually maintained by Tenant (or any
such subtenant, licensee or concessionaire) or which would be covered by the
insurance coverages required to be obtained and maintained under this Lease,
whether or not caused by the negligence or fault of landlord but excluding
Landlord's gross negligence or willful misconduct. in addition, all policies
procured by Tenant (or any subtenant, licensee, contractor, or concessionaire)
shell contain an endorsement containing an express waiver of any right of
subrogation by the insurance company against Landlord (whether named as an
insured or not).
(iv) Given the fact that the types and availability of insurance coverages change from
time to time, Landlord acknowledges that Tenant may desire to eliminate or
reduce coverage if certain insurance coverage required to be maintained by this
Lease becomes commercially unavailable at commercially reasonable east, and
Landlord agrees that it shall not unreasonably withhold its approval of any such
request to eliminate or reduce coverage.
Section 9.02 Ins. ! ; n . ,fj. gn ofauand,4,l oj'd. For matters arising during the Term of this Lease, Tenant
shell indemnify, defend (by counsel reasonably acceptable to Landlord; provided that to the extent a. claim is
covered by insurance, the insurance company's designated counsel shall not be objectionable), and hold harmless
30
Landlord, its Affiliates, and collectively, their respective members, managers, officers, directors, shareholders,
partners, employees, contractors, beneficiaries, lenders, legal representatives, successors and assigns (the "Landlord
Indemnified Parties"), horn and against liability, claims, demands, expenses, fees, fines, penalties, suits,
proceedings, actions, and causes of action arising out of or connected with Tenant's use, occupancy, management or
control of the Demised Premises or any of Tenant ' s operations or activities at the Bayside Property (whether or not
occurring or resulting in damage or injury within the Demised Premises or the Shopping Center), except to the
extent same result in whole or in part, directly or indirectly, from the willful misconduct or gross negligence of the
Landlord Indemnified Parties or any of thorn. Tenant's indemnification obligation shall survive the expiration or
earlier termination of the Term of this Lease,
Section 9.03 1 . nrlemni!'icAlx_ trC'i'enertt. For matters arising during the Term of this Lease, Landlord
shall indemnify, defend (by counsel reasonably acceptable to Tenant; provided. that to the extent a claim is covered
by insurance, the insurance company's designated counsel shall no( . be objectionable), and hold harmless Tenant, its
Aff'Tliaates, and collectively, their respective members, managers, officers, directors, shareholders, partners,
employees, contractors, be1ne'(1GIaries, lenders, legal representatives, successors and assigns (the "Tena'nt
Indemnified Parties"), from and against liability, claims, demands, expenses, fees, fines, penalties, suits.
proceedings, actions, and causes of action arising out of or connected with Landlord's use, management or control
of the portions of the Shopping Center that are not exclusively occupied by third parties, except to the extent sense
remit in whole or in part, directly or indirectly, from the willftinl misconduct or gross negligence of the Tenant
Indemnified Parties or any of them, Landlord's indemnification obligation shall survive the expiration or miler
termination of the Term of this Lease.
ARTICLE X - DAMAGE BY CASUALTY
Section 10.01

1?.ctnretimr. Except as otherwise provided in Section 10,02 hereof, if any of the Talent's
Improvements now or hereafter situated on the Demised Premises (except F'F&l) should at any time during the
Term be damaged or destroyed by fire or otherwise, Tenant shall restore and rebuild the some as nearly as possible
to the condition they were in immediately before such damage or destruction (with such changes as Tenant: may
desire and are permitted by the provisions of this Lease, including, without limitation, any prior approval required
from Landlord), and such restoration and rebuilding, prosecuted with due diligence, shall be completed as soon as
reasonably possible. If, due to reasons outside of Tenant's control, Tenant is unable to restore and rebuild the
Tenant's Improvements in substantially the same manner that. 'Tenant originally constructed the Tenant's
Improvements pursuant to the Site Development Plan Package approved by Landlord and the Approved Plans, then
Landlord agrees that its approval shall not be unreasonably withheld so long as Tenant's proposed modifications to
the Site Development Plan Package or the Approved Plans, as the case may be, are commercially reasonable, No
damage or destruction shall be grounds for the termination of the Term of this Lease of relieve Tenant from any
obligation created or imposed by virtue of this Lease, any laws of the state in which the Demised Premises is located
to the contrary notwithstanding, including, but without limiting the generality of the foregoing, Tenant's obligation
to make payment of the rent and all other charges on the part of Tenant to be paid, and "Tenant's obligation to
perform all other covenants and agreements on the part of renant: to be performed. All Net Insurance Proceeds (as
such t.enn is defined below) payable on account of sr.rch damage arising from insurance required under the
provisions of this Lease shall be paid to Tenant (or to its Leasehold Mortgagee to the extent required under its
Leasehold Mortgage) in the case of any particular casualty resulting in a loss payment not exceeding $1,000,000 (in
2013 U.S. Dollars) in the aggregate. In case of any particular casualty resulting in a loss payment in excess of
$1,000,000 (in 2013 U.S. Dollars) in the aggregate, the entir e amount of the Net Insurance Proceeds shall be
deposited with the Leasehold Mortgagee; if there is no Leasehold Mortgagee at such time, such Net Insurance
Proceeds shall be deposited with an institutional Lender reasonably and mutually acceptable to both Landlord and
Tenant, pursuant to a reasonably and mutually acceptable trust agreement (the "Insurance Proceeds Trust
Agreement" ), Provided Tenant conducts the restoration of the Tenant's Improvements on the Demised Premises in
accordance with this Lease and the terms of the Leasehold Mortgage (or, if there is none, the Insurance Proceeds
Trust Agreement), the Leasehold Mortgagee (or, if there is none, such mutually agreed upon Institutional Lender)
shall disburse the Net Insurance Proceeds fl'om. time to time upon receipt of a request from Tenant to cover amounts
due to contractors, subcontractors, rnateriaimen, engineers, architects or other persons who have rendered services or
furnished materials in connection with such restoration or as otherwise provided for in the Leasehold Mortgage or
Insurance Proceeds Trust Agreement, as applicable. In the event any surplus orNet Insurance Proceeds shall remain
after repairs or replacement of the Tenant's Improvements shall have been made, such excess shall forthwith be paid
31
to and. become the property of Tenant, if the Net Insurance Proceeds are insufficient to complete the restoration,
rebuilding or repair, then Tenant shell comply with the requirements of the Leasehold Mortgage (or, if none, the
mutually agreed upon Insurance Proceeds Trust Agreement),
Section 10.02 DaI: ggaeINea land of ; e teat. If any of the Tenant's Improvements are partially or totally ,
damaged or destroyed during the lee(( five (5) years of the Term, as same may have been extended, then Tenant may
elect not to repair and restore such improvements by giving Landlord notice of such election within 120 days after
the date on which such damage or destruction occurs (the "Restoration Notice"), If Tenant makes such election,
than Landlord shall have the right to elect to restore the Tenant's improvements by notifying Tenant thereof within
fifteen (15) Business Days following receipt of the Restoration Notice, whereupon this Lease shall be terminated as
of the date on which such damage or destruction occurred and Tenant shall promptly assign to Landlord all of its
rights to the insurance proceeds. If both Tenant and Landlord elect: not to restore the Tenant's Improvements as
provided herein, then this Lease shall be terminated as of the date on which such damage or destruction occurred
provided, however, that, at Tenant's solo election, either (1) Landlord shall be entitled to retain the Net Insurance
Proceeds, or (ii) Tenant shall, prior to the effective date of the termination of this Lease (or as soon thereafter as is
reasonably possible), and in any event, as soon as reasonably possible, put the Project in a lawful, safe and operable
condition, raze the damaged or destroyed Tenant ' s Improvements andremove all debris from the Demised Premises.
"Not Insurance Proceeds" shall mean the total amount of insurance proceeds payable (or which would have been
payable had Tenant: maintained the Insurance coverage required hereunder) from which amount shall be deducted
the costs of collection thereof, including appraisers' and attorneys' fees (which costs of collection shall be paid to
and belong to Tenant if and to the extent that Tenant is the sole party pursuing collection). If Tenant shall have
defaulted in its obligation to maintain the insurance required hereunder, then Tenant shall be obligated to pay the
amount of insurance proceeds that would have been payable under the required policy.
ARTICLE .ACT *i. CONDEMNATION
Section 11,0 I

Takigg CieT lnil rtau:t, tie. If the whole or any part of the Demised Premises shall be
taken at any time during the Term for temporary use and occupancy for any public or quasi-public purpose by any
lawful power or authority, by the exercise of the right of condemnation or eminent domain, or by agreement under
the threat of condemnation between Landlord. Tenant and those authorized to exercise such right (a "Temporary
Taking"), Tenant shall give prompt notice thereof to Landlord, and the Term of this Lease shall not be reduced or
affected in any way. In such case, Tenant shall continue to pay in full all rent and other charges provided to be paid
by Tenant. Tenant shall be entitled to the entire award for such Temporary Taking (whether paid by way of
damages, rent, or otherwise), except to the extent the Term of Ellie Leese expires prior to the termination of the
Temporary Taking in which case, the award shall be equitable apportioned between Landlord and Tenant, At the
termination of any such use or occupation of the Demised Premises, Tenant will, at its solo cost, repair and restore
the Tenant's Improvements to the condition, as nearly as may be reasonably possible, in which such Tenant's
Improvements were at the time of such Temporary Taking (with such changes as Tenant may desire to make subject
to the terms of this Lease, including, without limitation, any prior approval required from Landlord). Tenant shalt
not be required to make such repairs and restoration if the Term of this Lease shall expire before the date of
termination of such taking, and, in any such event, Landlord shall be entitled to recover all damages and awards
arising out of the lai.lure of the condemning authority to repair and restore the 'T'enant's Improvements at the
expiration of such Temporary Taking. Any recovery or sum received. by "tenant as an award or compensation for
physical damage to the Demised Premises or the Tenant's Improvements caused by and during such Temporary
Taking (including amounts allocated to the value of the Tenant ' s Improvements and the cost to repair and restore the
Tenant's Improvements) shall be handled in accordance with the terms of the Leasehold Mortgage,
Notwithstanding the foregoing, if a Temporary Taking occurs during thi n last five (5) years of (he Term, as it may be
extended, then the terms of Section 11.06 below shall apply.
Section I.1.02 Tcit7,lwjeJ irgrg. If the entire Demised Premises shall be taken at any time during the Term
of this Lease for any public or quasi .public purpose by any lawful power or authority, by the exercise of right of
condemnation or eminent domain, or by agreement under the threat of condemnation between Landlord. Tenant and
those authorized to exercise such right (a "Total Taking"), then the Term of this Lease shall terminate as or the date
possession shall be taken by such authority and the rent and other charges payable by Tenant to Landlord under this
Lease shall be apportioned and paid to the date of such termination. Without limiting the foregoing, the Applicable
Breakpoint for the calculation of Percentage Rent for the final partial Lease Year of the Term shall be reduced
ti
32
proportionately and, no later than thirty (30) days after the effective date of the termination of this Lease, Tenant
shall fray to Landlord all Percentage Rent for such partial Lease Year, as so calculated on the basis of such adjusted
Applicable Breakpoint.
Section i 1.03

Soil . rtrr ia.11y_ l;.pt'o]Taking, If a Substantially Total Taking (as such term is defined
below) occu s, then Tenant may terminate the Term of this 1. ;ease as of the date possession shall be taken by such
authority, by written notice to Landlord given within one hundred twenty (120) days after the effective date of such
taking and the rent and other charges payable by Tenant to Landlord under this Lease shall be apportioned and paid
to the date of such termination. Without limiting the foregoing, the Applicable Breakpoint tor the calculation of
Percentage Rent fear the final partial Lease Year of the Term shall be reduced proportionately and, no later than
thirty (30) days after the effective date or termination of this Lease, Tenant shall pay to Landlord all Percentage Rent
for such partial Lease Year, as so calculated on the basis of such adjusted Applicable Breakpoint. The term
"Substantially Total Taking," as used herein, shall mean a taking of such scope that the portion of the Demised
Premises (for clarification, Demised Premises specifically includes Tenant's rights in respect of the easements) and
the Tenant's Improvements not subject to such taking are insufficient, in Tenant's reasonable business judgment, to
permit the restoration of the existing Tenant's Improvements so as to constitute a complete economical project and
resume normal business operations,
Section 11.04 'arttjlol"raidng. If a portion of the Demised Premises is taken For any public or quasi-
public purpose by any Iawfbl power or authority, by the exercise of right of conclenarratlon or eminent domain, or by
agreement under the threat of condemnation between Landlord, Tenant. and those authorized to exercise such right,
in lieu thereof: which does not'. constitute a Temporary Taking or a Total Taking or Substantially Total Taking as
defined in Sections 1 1.01, 11,02 and 11.03 he'eof' (a "Partial Taking"), this Lease shall terminate as to the portion of
the Demised Premises so laken, on the effective date orsuch Partial Taking, and shall remain in full force and effect
as to the portion of the Demised Premises remaining immediately after such Partial Taking, with an equitable
abatement or reduction area The Applicable Breakpoint shall also be reduced on anequil:able busts to account for
the permanent reduction, If any, of the Commercial Space (as such term is defined below) in the Demised Premises
due to the Partial 'faking. The term "Commercial Space" means that portion of the Demised Premises which,
pursuant to the Permitted Uses described in the Approved Plans, is contemplated to generate Gross Sales.
Notwithstanding the foregoing, if a Partial Taking occurs during the last five (5) years of the Term, as it may be
extended, the terms of Section 11.06 below shall apply.
Section 11,05

jpp ie,kntiono1

w0,ii; l f ^oa' rPrr'ti^7T^Im ici^^tY or' 'total Tnj jOth i' Them,, Tal it1k,for.
TtIMPoraa y it 6,
0.
(a) In the event ora Partial Taking, as defined herein, the Allocated Condemnation Proceeds
(as such term is defined below) shall be deposited with the Leasehold Iviortgagee, [or if there is no Leasehold
Mortgagee at such time, with an Institutional Lender reasonably and mutually acceptable to both Landlord and
Tenant, pursuant to a trust agreement in form and content reasonably and mutually acceptable to both Landlord and
Tenant (the "Condemnation Proceeds Trust Agreement"")]. Provided 'Tenant conducts the restoration or the Tenant's
Improvements on the Demised Premises in accordance with this Lease and the terms ()l i the Leasehold Mortgage [or,
if there is none, the Condemnation Proceeds Trust Agreement], Leasehold Mortgagee (or if there is none, such
mutually agreed upon Institutional Lender) shall disburse the Allocated Condemnation Proceeds from time to time
upon receipt of a request. from Tenant: to cover amounts clue to contractors, subcontractors, materialmen, engineers,
architects or other persons who have rendered services or furnished materials In connection with such restoration or
as otherwise provided for in the Leasehold Mortgage or Condemnation Proceeds Trust Agreement, as applicable,
The Allocated Condemnation Proceeds shall be used to restore and rebuild such Tenant's Improvements as nearly as
possible to the condition they were in immediately before such damage or destruction (with such changes as 't'enant
may desire subject to the terms of this Lease, including, without limitation, any prior approval required from
Landlord). The term "Allocated Condemnation Proceeds" shall mean that portion of the Net. Condemnation
Proceeds (as such term is defined below) as are allocated in the condemnation proceeding (or in a separate
proceeding) in the award of such Net Condemnation Proceeds for the restoration. and rebuilding of the Tenant's
Improvements to as nearly as possible the condition they were in immediately before such taking (and shall include
amounts allocated to the value of the Tenant's Improvements, as well as the costs to repair and restore the Tenant's
Improvements). The. team "Net Condemnation Proceeds" shall mean the total amount of the award rendered in
33
connection with any such taking,. after the deduction therefrom of the caste of collection thereof, including
appraisers' and attorneys' fees.
(b) Subject to Section 11.06 below as to a Partial Taking during the last five (5) years of the
Term, as it may be extended, in the event of a Partial Taking, Tenant shall restore and rebuild the Tenant's
Improvements as nearly as possible to the condition they were in immediately before such taking (with such changes
as Tenant may desire subject to the terms of this Lease, including, without limitation, any prior approval required
Scm Landlord), and such restoration and rebuilding shall be prosecuted with due diligence and shall be completed
an reasonably possible. Tenant ' s obligation to restore and rebuild the Tenant's improvements shall be subject to
receipt of the Allocated Condemnation Proceeds. In the event the Allocated Condemnation Proceeds shall not be
reasonably sufficient for the restoration and rebuilding of the Tenant's Improvements to such condition, then Tenant
shall be entitled to deem such taking to be a Substantially Total Taking and shall be entitled to terminate the Tenn of
this Lease by written notice to Landlord given within 120 days after such determination.
(c) In the event of a Partial Taking where the Lease is not terminated but a portion of the,
Tenant's Improvements have been taken and the Net Condemnation Proceeds and other payments on account of
such taking exceed the Allocated Condemnation Proceeds, such en= Net Condemnation Proceeds and other
payments shall be equitably allocated by the court with respect to the parties' respective interests; it being
understood that with respect to the Demised Premises, Landlord shall be entitled to make a claim for the loss of
Landlord's leasehold interest for the unexpired. term of the Retail Parcel Lease (including any extension options) and
Tenant shall be entitled to make a claim for the value of the Tenant's Improvements (including the value of any
immovable fixtures), as well as the loss of Tenant's leasehold interest for the unexpired term of this Lease (including
any extension options) and business damages.
(ti) In the event of a. Total 'raking or a Substantially Mell Taking, as defined herein, resulting
in the termination of this Lease, the Net Condemnation Proceeds and other payments on account of such taking shall
be equitably allocated by the court with respect to t:he parties ' respective interests; it being understood that with
respect to the Demised Premises, Landlord shall be entitled to make a claim for the loss of Landlord's leasehold
interest for the unexpired term of the Retail Parcel Lease (including any extension options) and Tenant shall be
entitled to make a claim for the value of the Tenant's Improvements (including the value of any immovable
fixtures), as well as the loss of Tenant's leasehold interest for the unexpired term of this Lease (including any
extension options) and business damages.
Section 11,06 tJariaatca etuj3r> d o Term, If any of the Tenant's Improvements are partially or totally
damaged or destroyed in connection with a Temporary Taking or Partial Taking that occurs during or extends into
the last five (5) years of the Term, as same may have been extended, then Tenant may elect not to repair and restore
such improvements by giving Landlord notice of such election within one hundred twenty (120) days after the date
of a Temporary "raking or Partial Taking or when five (5) years or less remains of the Term and the Temporary
inking continues (the "Taking Restoration Notice"). If Tenant makes such election, than Landlord shall have the
right to elect to restore the Tenant's Improvements by notifying Tenant thereof within fifteen (;15) Business Days
following receipt. of the Taking Restoration Notice, whereupon this Lease shall be terminated as of the date on
which such Temporary Taking or Partial Taking occurred or the date of the Taking Restoration Notice in the case
when five (5) years or less remains of the Term and the Temporary Taking continues, and Tenant shall promptly
assign to Landlord all of its rights to the Net. Condemnation Proceeds allocable to restoration of the Tenant 's
Improvements (Tenant shall retain its rights in respect of the Net Condemnation Proceeds allocable to loss of
Tenant's leasehold estate and business damages). If both Tenant and Landlord elect not to restore the Tenant's
improvement, as provided herein, then this Lease shall be terminated as of the date on which such Temporary
Taking or Partial Taking occurred or the date of the Taking Restoration Notice in the case when five (5) years or less
remains of the Term and the Temporary Taking continues, provided, however, that, at Tenant's sole election, either
(I) Landlord shall be entitled to retain the Net Condemnation Proceeds allocable to rcetoration of the Tenant's
Improvements, or (II) Tenant M IMI. prior to the effective date of the termination of this Lease (or as soon thereafter
as is reasonable possible), and in any event, as soon as reasonably possible, put the Project in a lawful, safe and
operable condition, raze the damaged or destroyed Tenant's improvements and remove all debris from the Demised
Premises. In either event, Tenant shall retain its rights in respect of the Net Condemnation Proceeds allocable to
lose of Tenant's leasehold estate and business damages).
34
ARTICLE XII s- ASSIGNMENT AND SUBLETTING
Section 12.01
coll.
e11t Requirue,,l. Except as otherwise provided herein, Tenant shall not directly or
indirectly transfer, assign, sublet, change ownership, or hypothecate this Lease or Tenant's interest in and to the
Demised Promises, in whole or in part, or otherwise permit occupancy of all or any part of the Demised Premises by
anyone by, through or under it, or enter into any license or concession agreement with respect to any portion of the
Demised Premises, without first. procuring the written consent of Landlord, which may be granted or withheld in the
sole and absolute discretion of Landlord. The transfer of a direct or indirect Controlling interest in Tenant shall be
deemed to be a transfer requiring landlord's consent, if Tenant is not a publicly traded corporation; provided,
however, that for purposes of this Lease, the death of Jeffrey I'3erkowitr, and any change of Control that results
therefrom shall not be deemed to be a transfer in violation of this Article Xli. The general prohibition contained
herein against assigning or subletting shall be construed to include a prohibition against any assignment or subletting
by operation of law. Any attempt at a transfer without Landlord's prior written consent shall be null and void and
confer no rights on any third person, Landlord shall have a period of fifteen (15) Business Days within which to
review and approve or disapprove of any written request by Tenant. for approval of any such proposed transfer, in
writing; provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's written
approval. or disapproval of Tenant's proposed transfer within such fifteen (15) Business Day period and provided
further Tenant has submitted any such approval request in an envelope (or an email) in accordance with Section
21,11 hereot with the following caption at the top of the first page in bold littering "LANDLORD'S RESPONSE
IS REQUIRED WITIITN FIFTEEN (IS) BUSINESS DAYS FOLLOWING RECEIPT OF THIS NOTICE
PURSUANT TO THE TERMS OF THE LEASE", Landlord shall be deemed to have approved such transfer
request. Tenant shall cooperate in promptly providing such information as Landlord may reasonably request in
connection with any proposed transfer. To the extent any financial information with respect to any potential
assignee or subtenant is provided to Landlord, Landlord shall treat same as confidential, subject to and in a manner
consistent with the provisions of Section 4 03(d) above.
(a) Subs olti g. Notwithstanding the foregoing, Tenant shall have the right to sublease. (to
include licenses or concessionaire agreements whenever the term "sublease" is used in this subsection) portions (but
not all) of the Demised Premises for a. Permitted Use, without Landlord's prior written consent, provided that (i) the
proposed subtenant (to include licensees end concessionaires whenever the term "subtenant" is used in this
subsection) has experience in the operation of the business proposed to be conducted within the sublease premises
and capital or resources to conduct such business (such experience and capital requirements to be determined by
Tenant in its reasonable business judgment) and (:ii) the economic terms and conditions of the proposed sublease arc
on Commercially Reasonable Terms. The term "Commercially Reasonable Terms" means the net economic terms
(including, without limitation, base rent, percentage rent (if any), maintenance charges, rental abatements and tenant
improvement allowances) under which a willing landlord would lease the subject subleased premises to a willing
unrelated third party tenant on an arm's-length Wsic, taking into account all appropriate factors, at the time of the
proposed sublease. Any sublease of any portion of the Demised Premises shall be subject to the ter ms and
conditions of this Lease, and shall be in writing (which writing shall incorporate en express acknowledgment. by the
subtenant thereunder that such sublease is subject and subordinate to this Lease). Tenant shall furnish to' Landlord a
copy of any such sublease within thirty (30) clays following the execution thereof. Any revenues 'received . by Tenant
from or pursuant to any sublease, license or concession, shall, be included in Gross Sales for purposes of computing
Percentage Rent. Landlord agrees to enter into a non-disturbance agreement with any subtenant of Tenant leasing
not less than 7,500 square feet of gross lensable area in the Tower in such form as shall be reasonable acceptable to
Landlord, Tenant. and, the subtenant (the "Subtenant NDA"); provided that Landlord has approved the proposed
sublease, which approval shall not be unreasonably withheld, conditioned or delayed so long as the parameters set
forth in clauses (i) and (ii) above are satisfied. The form of Subtenant NDA attached hereto as Exhibit "Ci' is
acceptable to Landlord., If Tenant or any subtenant desir es to negotiate the forma of SubtenantNDA attached hereto
as Exhibit "0" then Landlord's execution and delivery of the Subtenant SNDA shall be conditioned upon Tenant or
such subtenant paying Landlord $2,500 as an administrative fen,
(b) Atois, 1nn .D. toj; souaeA ti.,g (,ae.ping)'77to,. Notwithstanding the foregoing, from and after
the date that is two (2) years following the Opening Date and provided no Event of Default is continuing, Tenant
may 'freely assign or t aansfir the Lease without the consent of t..andlord; provided. however that such assignee or
transferee assumes in writing all of Tenant's obligations under this Lease accruing from and after the date of such
assignment or other transfer, In no event shall any such assignment or other transfer relieve Tenant from any of its
36
obligations under this Lease accruing prior to the dare of such assignment or other transfer. Tenant shall furnish to
Landlord a copy of any such assignment and assumption agreement or notice of such other transfer as permitted
herein within thirty (30) days following the execution or effective date thereof, as the case may be.
(c) Other Permitted Tratas)i rs. Notwithstanding anything to the contrary contained in this
Lease, without Landlord's prior written consent, (1) 'Tenant may assign this Lease or sublet all or a portion of the
Demised Premises (or Tenant may enact a change of Control of Tenant) if such assignment or sublease is to (or
such change of control is in connection with a transaction with), (A) any Entity into which Tenant may merge or
which may result in the consolidation of Tenant with another Entity or (B) any Affiliate of Tenant, or (ii) any
Leasehold Mortgagee (as such term is defined in Article XXX, below) may exercise its remedies under a Leasehold
Mortgage resulting in a transfer, Notwithstanding the foregoing, in the event of any sublease, the economic terms
thereof shall be on Commercially Reasonable Terms. No stuck transfer shall relieve Tenant from any of its
obligations under this Lease. Tenant shall notify Landlord of any such milder within thirty (30) daysfollowing the
effective data thereat
ARTICLE MIT TENANT'S DEFAULT
Section 13.01

X..venfe A1 ofn,tflc, The following events shall be deemed to be "Events of Default" by


Tenant under this Lcasc:
(a) Tenant shall have tidied to pay any installment: of rent or any other amount or charge
(including, without limitation, any expenses described in Section 3.04, above) required to be paid by Tenant
hereunder, or any portion thereof when the same shall be due and payable, and the same shall remain unpaid for a
period of five (5) days after Tenant's receipt of written notice from Landlord; or
(b) Tenant shall have failed to comply with any other provision of this Lease, if the failure
continues for thirty (30) days after written notice to Tenant setting forth in reasonable detail the nature and extent of
the failure and identifying the applicable Lease provision; provided however, if any default by 't'enant is of such a
nature which cannot reasonably be rectified or cured within the foregoing :30 . .day period, then so long as Tenant is
otherwise in compliance with all of its monetary obligations under this Lease, Tenant. shall have an additional
reasonable period of time to rectify and cure such default provided that Tenant shall have commenced the
rectification and curing thereof within the original 30'dny cure period and shall continue Ihereaficr with due
diligence to cause such rectification and caning. In no event shall the cure rights set forth in this subsection (b)
apply to any failure by Tenant to continuously operate as provided 'ht subsection (c) below or to otherwise extend the
Commencement Contingency or the Completion Contingency as provided for in this Lease,
(c) Tenant shall, for reasons other than those specifically permitted in this Lease, cease to
Continuously Operate, as defined in Section 5.04(r), for the Permitted Uses in the Demised Premises for a period in
excess of twelve (1) consecutive months; or
(d) The making by Tenant of a general assignment for the benefit of creditors; or the filing
by Tenant of a petition to have Tenant adjudged bankrupt, or of a petition for reorganization or arrangement under
any law relating to bankruptcy; or
(e) The filing against Tenant of a petition to have Tenant adjudged a bankrupt, or of a
petition fbr reorganization or arrangement under any law relating to bankruptcy, unless any such petition filed
against Tenant is dismissed within 140 days; the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Demised Premises or of Tenant's interest in this Lease if possession
is not restored to Tenant within 140 days; or the attachment, execution or other judicial seizure of substantially all of
'T'enant's assets located at the Demised Premises, or of Tenant's interest in this Lease, if the seizure is not discharged
within 180 days; or
(f) Any default under the Payment and Performance Guaranty.
36
Section 13,02 Rpms ;;d es, Upon the occurrence of any Event of Default, Landlord may pursue any one
or more of the following remedies, subject to all applicable legal requirements in connection with the exercise of any
such remedy, without any notice or demand whatsoever, except as required by such applicable legal requirements:
(a)
Termination,of' .Right ,of hgsijession,, .

Landlord nrcty terminate Tenant's right of


possession of the Demised Premises without terminating the Term of this Lease, Upon such termination, Landlord
may, at Landlord's option, enter into the Demised Premises and take and hold possession thereof, without such entry
into possession terminating the Term of this Lease or releasing Tenant in whole or in part from Tenant's obligation
to pay Fixed Rent and Additional Rent for the full Term. Upon such re-entry, Landlord may remove all persons and
property from the Demised Premises, and More such property in a public warehouse or elsewhere at the cost of and
for the account of 'T'enant, all in accordance with law, Landlord may make repairs and redecorate the Demised
Premises to the extent deemed by Landlord necessary or desirable in connection with reletting the Demised
Premises or otherwise, and Tenant shall, upon demand, pay the costs thereof, together with Landlord's expense of
reletting. The amount, if any, by which cash consideration actually received by Landlord upon any such reletting,
exceeds Landlord's expenses incident thereto, including reasonable brokerage fees and legal expenses, shall be
credited to Tenant's rental obligations hereunder. Landlord may not cancel or terminate the Term of this Lease upon
tine occurrence of an Event of Dei`tu'lt unilaterally without judicial intervention but may pursue termination through
judicial proceedings to the extent such remedy is lawfully available and may also pursue any other remedy at law or
in equity that may be available to Landlord.
(b) t7lll r Rewtirucijes, Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law (all such remedies being
cumulative), nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent or other
payments clue to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants heroin contained, No net or thing clone by Landlord or Its agents during the Term of
this Lease shall be deemed a termination of the Term ofthis Lease or an acceptance of the surrender of the Demised
Premises, and no agreement to terminate the Term of this Lease or accept a surrender of the Demised Premises shall
be valid. unless in writing signed by Landlord. 'No waiver by Landlord of any violation or breach of any of the
terms, provisions and covenants herein contained shall be deemed or construed, to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants herein contained, Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of a default shall not be construed as a waiver or
such default, unless Landlord so notifies Tenant in writing, Forbearance by Landlord in enforcing one or more of
the remedies herein provided upon a default shall not be deemed or construed to constitute a waiver of such default
or of Landlord's right to enforce tiny such remedies with respect to such & Ault or any subsequent default,
(o) A,a tgrs byJ^'cgnu t, To the extent permitted by applicable law,
Tenant
waives notice of
reentry (or institution of legal proceedings), including the right to receive notice pursuant to any statute or judicial
decision of law (but does not waive notices required under this Leese). Notwithstanding anything to the contrary
contained herein, any written notice, other than as specifically set forth in this Article Kill or elsewhere in this
Lease, required by a. statute or law enacted now or later is waived by Tenant, to the extent permitted under that
statute or law. Tenant expressly waives any right or defense it may have to claim a merger, and neither the
commencement of an action or proceeding nor the settlement of or entering of judgment for any action or
proceeding shall bar Landlord from bringing subsequent actions or proceedings. based upon other or subsequently
accruing claims, or based upon claims or everrtaewhich have previously accrued, and not been resolved in any prior
action, proceeding or settlement,
(d) Jury,Tl;,%hi. The parties waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties against the other with respect to matters arising under this Lease.
(e) 1]ttgj, (je Daum.* Landlord and Tenant hereby waive the right to seek or recover
punitive damages in any action pertaining to this Lease,
Section 13,03 cornputation,,gf R.cnt. The parties covenant and agree that because of the difficulty or
impossibility of determining Landlord's damages by way of' lose of the anticipated Percentage feat from Tenant or
other tenants or occupant's in or adjoining the Shopping Center, or by way of loss of value in the properly because of
diminished salability or mortgage-ability or adverse publicity or appearance by Tenant's actions, should Tenant
37
(a) vacate, abandon or desert the Demised Premises, or (b) cease operating or conducting Tenant's business therein
as required under Section 5.04 hereof, or (c) Out or refuse to maintain business hours on such daysor nights or any
part thereof as provided in Section 5.04 hereof, then, and in any of such events (hereinafter collectively referred to
as "failure to do business"), Landlord shall have the right, at its option (i) to collect not only Fixed Rent and other
rents and charges herein reserved, but also Additional Rent equal to fifteen percent (15%) of the Fixed Rent reserved
for the period of Tenant's failure to do business, computed at a daily rate for each and every clay or pari: thereof
during such period; and such Additional Rent shall be deemed to be liquidated damages in lieu of any Percentage
Rent that might have been earned by Landlord during such period (and no Percentage Rent shall be earned, due or
payable during such period that Tenant is not operating the Project), end, in addition, at Landlord's option, (ii) to
treat such failure to do business as an Event of Default within the meaning of Section 13.01 of this Lease, As used
herein the terms "vacate" "abandon" or "desert" shall not be defeated because Tenant may have haft all or any part
of its trade fixtures or other personal property in the Demised Premises.
Section 13.04

gists,I3x meanLMtorneys' , laees, If Landlord shall, without fault on its part, be


made a party to any litigation commenced by or against Tenant, then Tenant shall pay all costs, expenses and
reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation. If Tenant shall, without
fault on. its part, be made a party to any litigation commenced by or against Landlord, then Landlord shall pay all
costs, expenses and reasonable attorneys' fees incurred or paid by Tenant in connection with such litigation. If
litigation results from any dispute, claim or controversy arising out of this Lease, the prevailing party shell be
entitled to recover from the other all reasonable costs and reasonable attorney's fees at the trial and appellate levels.
The provisions of this Article XIII shall survive the expiration or earlier termination of the Term of this Lease.
ARTICLE XIV HOLDING OVER
If Tentmt, with Landlord ' s written consent, remains in possession of the Demised Premises after the
expiration of the Term and without the execution of a new lease, it shall be deemed to be occupying the Demised
Promises as a. tenant from month to month at a rental equal to the rent (including any Additional Rent) herein
provided for the period immediately before the expiration of the Term and otherwise subject to all the conditions,
provisions and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy. If Tenant
fails to surrender the Demised Promises on the termination of this Lease without Landlord's written consent, the
monthly rental shall be computed as follows: I/Ie multiplied by 200% of the aggregate rental payable to Landlord
during the last twelve (12) month period of the Term, Tenant shall, in addition to other liabilities to Landlord,
indernnniI , defend and hold Landlord harmless from loss and liability resulting from that leilur'e including, but not
limited to, claims made by a succeeding tenant and Prime Landlord. The exercise of Landlord's rights shall not be
interpreted to allow Tenant to continue in possession, nor shell it be deemed an election to extend the Term beyond a
month-toamonth basis, If Landlord, in its sole discretion, determines to permit Tenant to remain in the Demised
Premises on a month-to-month basis, the month-to-month tenancy shall be terminable on thirty (30) days' prior
written notice given by either party to the other party.
ARTICLE XV ACCESS BY LANDLORD
Provided that Tenant's business operations are not unreasonably interfered with, and upon no less than 48
hours prior written notice, Landlord or Landlord's agents shall have the right to enter the Demised Premises at all
reasonable times during normal business hours to examine the same and to show them to prospective lenders, or
during the last eighteen (18) months of the Term, prospective purchasers or lessees; provided, however, that during
the continuance of an Event of Default, Landlord shall have the unfettered right to show the Demised Premises to
prospective purchasers or lessees. If 'tenant shall not be personally present to open and permit an entry upon the
Demised Premises at any time when f or any reason an entry therein shall be necessary to protect the Demised
Premises From damage, Landlord or Landlord's agents may enter the same, without rendering Landlord a trespasser
and without, in any manner, affecting the obligations and covenants of this Lease. Landlord shall repair any damage
caused by its entry. Nothing contained herein, however, shall be deemed or construed to impose upon Landlord any
additional obligation, responsibility or liability whatsoever, for the care, maintenance or repair of the Project or any
part thereof, except as otherwise herein specifically provided.
ARTICLE XVI -.. LANDLORD'S DEFAULT
Landlord shall bo in default under the Lease if it has failed to comply with any provision of this Lease and
the failure continuos for thirty (30) days after written notice from Tenant setting forth in reasonable detail the nature
and extent of the failure and identifying the applicable Lease provision; provided, however, if any default by a
Landlord is of such nature that it cannot. be rectified or cured within such thirty (30) day period, then such default
will be deemed rectified or cured if Landlord within such period of thirty (30) days shall have commenced the
rectification and curing thereat' and shall continue thereafter with due diligence to cause such rectification and
curing. Tenant shall have all remedies available at law and equity, together with those expressly provided herein,
for instances of Landlord's default. If Landlord fails to rectify or cure any default pertaining to Landlord's
obligations with respect to the Demised Premises (as opposed to the Shopping Center) or any de'farult. in respect of
those matters benefitting the Demised Premises that were installed on the Shopping Center after the date of this
Lease at Tenant's request and are the obligation of Landlord, if any (the "Tenant Requested Enhancements"), and
the cure period set forth above, as it may be extended, has elapsed, them Tenant shall have the right to perform such
obligation of Landlord on Landlord's behalf and Landlord shall promptly reimburse Tenant, upon Tenant's written
request, for all reasonable costs Incurred by Tenant in performing such obligation of Landlord. together with interest
at the Default Rate from the date such costs are incurred by Tenant until the date reimbursed by Landlord. Tenant
hereby acknowledges and agrees that Landlord shell be under no obligation to make any Tenant Requested
Enhancements and that Landlord may approve, conditionally approve or reject any Tenant Requested Enhancements
in Landlord's sole and absolute discretion. The provisions of this Article XVI shall survive the expiration or earlier
termination of the Term of this Lease,
ARTICLE XVII -REMEDIES CUMULATIVE
No 'waiver by Landlord or Tenant of a breach of any covenants, agreements, obligations or conditions of
this Lease shall be construed, to be a waiver of any future breach of the same or other covenant, agreement,
obligation or condition hereof', No receipt of money by Landlord from Tenant after notice of d.ei'ault, or a'ft'er
termination of the Term of this Lease, or after the commencement of any suit or after final judgment of possession
of tire Demised Premises, shell reinstate, continue or extend the Term of this Lease or affect any notice, demand or
suit. This provision shall survive the expiration or earlier termination of the Term of this Lease.
ARTICLE Will AUTHORIZATION
Section 18.01

L ,tt?; r lc Td's Autl,eyri

ii. Le ndlord covenants, represents and warrants that it has full


right and power to execute and perform this Lease.
Section 18,02

I' ;rk?r7ts rg. h9r;j, gf an. Tenant covenants, represents and warrants that it has full right
and power to execute and perform lhis Lease.
Section 18,03 NoAd^y.erse_ Ylpendil tent of pr,jlq'fe.. Lena . Landlord shall not agree to any amendment of
the Prime Lease which would materially and adversely affect Tenant's rights under this Lease. If Prime Landlord
shall fail to perform any of its material obligations under the Prime Lease, or any Entity obligated under any Title
Restriction or REA broaches such Title Restriction or REA,, and such failure shall materially and adversely affect
Tenant ' s rights under" this Lease, In Tenant ' s reasonable discretion, then, upon the request of Tenant hereunder, in
writing, Landlord ;shall, at Landlord's sole cost and expense, use commercially reasonable effort's to enforce such
rights and remedies as Landlord may have under the Retail Parcel Lease, Title Restriction, REA or at law or in
equity, in order to cause Prime Landlord or such other party to perform such obligations under the Retail Parcel
Lease, Title Restriction or R.EA,
ARTICLE XIX .. QUIET POSSESSION
Section 19,01

C,oyenpnp,f ,pjet aa'n I cut, Landlord covenants that Tenant, on paying the rents
reserved heroin and performing the covenants and agreements hereof, shall peaceably and quietly have, hold and
enjoy the Demised Premises and all rights, easements, appurtenances and privileges therounto belonging or in any
wise appertaining, during the Term hereof. Anything herein to the contrary notwithstanding, the transferor Landlord
shall not be liable for any breach of the covenant of quiet enjoyment or any other breaches occurring after the
transferor Landlord shall have transferred ownership of the Demised Premises, but such liability shall be that of the
transferee Landlord.
39
Landlord agrees to cooperate with the reasonable requests of Tenant's title insurance underwriter who is
issuing title insurance insuring Tenant's sub-leasehold interest in the Demised Premises, including providing
evidence of the existence, authority and good standing of Landlord and providing an owner's affidavit reasonably
acceptable to Tenant's title insurance underwriter regarding pa r ties in possession and construction lions or potential
claims therefor as a result of any work performed on the Demised Premises by or on behalf of Landlord.
Section 19.02
i:199i0iiiuIIAtgm
tt, Tenant shall use commercially reasonable efforts to obtain from
Prime Landlord, at. no unaffiliated. third patty out-of pocket expense to Landlord, a recognition agreement, in
recordable tarn, whereby Prime Landlord agrees that, provided no Event of Default shall have occurred under this
Lease, then in the event of the termination of the Retail Parcel 'Lease. Prime Landlord shall recognize this Lease and
the rights of Tenant hereunder; provided that as a condition thereto, tenant shall adorn to Prime Landlord and pay
all rent required hereunder directly to Prime Landlord (the "Recognition Agreement").
ARTICLE XX ..< INTENTIONALLY OMITTED
ARTICLE XX1
-m
MISCELLANEOUS PROVISIONS
Section 21,01 Mati
Osihlin
of.-P. Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that neither the method of computation of rent,
nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any
relationship between the parties hereto other than the relationship of landlord and tenant. This Lease shall not confer
rights or benefits, including third-party beneficiary rights or benefits to anyone that is not a named party to this
Lease, including any individual, corporation, partnership, trust, unincorporated organization, governmental
organization or agency or political subdivision, The provisions of this Section 21,01 shall survive the expiration or
earlier termination of this Lease.
Section 21,02 C. or trilctinn. Tenant has react and understands this Lease. The rule of construction that
a document should be construed most strictly against the party which prepared the document shall not be applied,
because both parties have participated in the preparation of this Lease. The necessary grammatical changes required
to make the provisions of this Lease apply in the plural sense where there is more than one tenant and to either
corporations, associations, partnerships or individuals, males or females, shall, in all instances, be assumed as
though fully expressed. The captions used in this Lease are for convenience only and do not in any way limit or
amplif1 the terms and provisions hereof. The parties acknowledge that certain charges, fees and other payments are
deemed "Additional Rent" in order to enforce Landlord's remedies, and shall not be construed to be " rent" if rent
controls are imposed. The printed provisions of this Lease and written or typed additions shall be given equal
weight for the interpretation of this Lease. The provisions of this Section 21,02 shall survive the expiration or
earlier termination of this Lease.
Section 21,03 Parti.es keel. It is agreed that this Lease, and each and all the covenants and obligations
hereof, shall be binding upon and inure to the benefit of, as the case may be, the parties hereto, their respective heirs,
executors, administrators, successors and assigns, subject to all agreements and restrictions herein contained with
respect to assignment or other transfer of Tenant's interest herein, The provisions of this Section 21.03 shall survive
the expiration or sooner termination of this Lease.
Section 21.04 I nt:ire, Agf pent. This Lease; contains the entire agreement between the parties
regarding the Project, and no other discussions or agreements, whether in writing or otherwise shall have any 'face
or effect whatsoever. No agreement shall be effective to change, modify or terminate this Lease ire whole or in part
unless such agreement: is in writing and duly signed by the party against whom enforcement of such change,
modification or termination is sought. The provisions of this Section 21,04 shall survive the expiration or earlier
termination of this Lease,
Section 21,05311.1. Each of Landlord and Tenant: covenants, warrants and represents that no
brokers or advisors represented them with respect to this transaction. Each party agrees to and hereby does defend,
indemnify and hold the other harmless against and from any brokerage commissions or finder's fees or claims
therefor by a party claiming to have dealt with the indemnifying party and all costs, expenses and liabilities in
40
connection therewith, including, without limitation, reasonable attorneys' fees and expenses, for any breach of the
foregoing, The foregoing indemnification shall survive the expiration or earlier termination of this Lease,
Section 21.06 Savjms as _ Dinar, rain lgyZVcrrue. If any provision of this Lease or any paragraph,
sentence, clause, phrase or word is judicially or administratively held invalid or unenfb vceable, that shall not affect,
modify or impair any other pa.ra?rrph. sentence, clause, phrase or word. The laws of the state of Florida shall
govern the interpretation, validity, performance and enforcement of this Lease, Venue for any disputes related to
this Lease shall rest exclusively with the state courts (or federal courts but only if the federal court jurisdiction is
exclusive), sitting in MimniDade County, Florida. The provisions of this Section 21,06 shall survive the expiration
or sooner termination of this Lease.
Section 21.07 D i st
.aj
elt
g,
Neither party shall be liable to the other nor deemed in default under this
Lease ifand to the extent that such party's performance is prevented by reason of Force Majeure, For purposes
hereof, "Force Majeure" means a strike; lockout or other industrial disturbance (provided, however, that strikes,
lockouts or industrial disturbances caused by employees of the party claiming the right to a force majeure delay shall
not be considered a Force Majeure); civic disturbance; future valid order of any governing authority, court or
regulatory body having jurisdiction and declaring a disaster or similar emergency situation; act of public enemy;
riot; sabotage; blockade; embargo; inability to secure materials or labor by reason of governmental. regulation or
order of any governing authority or regulatory body; lightening; earthquake; fire; hurricane; flood; explosion; Act of
Clod; unusual governmental permitting or inspection delay, or any other cause beyond the reasonable control of the
party asserting Force Majeure (specifically including delay caused by the other party hereto) whether or not similar
to any of the foregoing causes. In the event of Force Majeure, the time `.within which with Landlord or Tenant shall
be required to perform any act under this Lease, shell be extended by a period of time equal to the number of days
during which the performances. of such act is delayed by Force Majeure, Notwithstanding the foregoing, in no event
shall the unavailability of capital or any change in market conditions or the capital markets constitute Force
Majeure, The party claiming a &lay caused by Force Majeure shall endeavor to give the editor panty written notice
of such delay as soon as reasonably practicable after its initial occurrence; it being understood that a failure to notify
the other party of a delay due to Force Majeure shall not prejudice the, rights of such party in claiming a Force
Majeure delay hereunder. Notwithstanding the foregoing, each party shall have the right to request, in writing, no
more frequently than every sixty (60) days that the other party confirm the then current existence of a Force Majeure
delay and the actual or anticipated duration (if known) of such delay at any time and fi'ola time to time (each a
"Force Majeure Request"), and the party to whom the Force Majeure Request is made shall have thirty (30) days
following receipt of the Force Majeure Request to respond in writing to the requesting party, flailing which and
provided the request. is sent in an envelope (or an email) in accordance with Section 21,11 hereof, with the following
caption at the top of the first page in bold lettering "TENANT'S 10R. LANDLORD'S, if applicable,' RESPONSE
IS REQUIRED WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT OF THIS NOTICE PURSUANT
TO THE TERMS OF THE LEASE", the party to whom the Force Majeure Request is made shall be deemed to
have no pending Force Majeure claims as of the expiration of the aforementioned 30-day period, if a party
previously communicated the existence of a Force Majeure event the failure to raise such Force Majeure event in
response to a subsequent Force Majeure Request shall not preclude such party from claiming the delay caused by
such !:p rior reported Force Majeure event, but if not raised again in response to the subsequent Force Majeure
Request such previously colaniunicated Force Majeure event shall. be deemed to no longer be continuing, The
provisions of this Section 21,07 shall not operate to excuse Tenant from prompt payment of P reopening Rent, Fixed
Rent, Percentage Rent or any other payments required by the terms of this Lease,
Section 21.08 I .cctxrclirlg cat f:. a5, ', The parties agree to execute, in recordable farm, a short form
memorandum of this Lease describing the Demised Premises, the Term and the parties hereto sufficient for the
issuance of a leasehold title insurance policy for the benefit of Tenant (e "Memorar'Idun of Lease"), The
Memorandum of Lease shall not in any circumstance be deemed to modify or change any of' the provisions of this
Lease, the provisions of which shall in all instances prevail, The party so requesting such shoal form lease shall be
responsible for preparation and recording thereof, and release thereof after termination of this Lease, However, the
Memorandum of Lease shall continue in full force and effect after the Term until the time for entering into a New
Lease shall have expired and, should a New Lease be entered into, it shall relate back to the date of this Lease.
Without limiting the foregoing, by accepting a mortgage from Landlord, Landlord's mortgagee agrees that any New
Lease shall be superior to such mortgagee's mortgage and shall remain superior unless and until, as to a first lien
held by an fnstitutionai Lender only, such lender executes and delivers the subordination, non-
41
disturbance/recognition and attonnent agreement that Landlord has agreed in the second paragraph of Section
30.04 to use commercially reasonable efforts to obtain (for clarification, Landlord's mortgagee who at any time is
not a first lien holder or not an Institutional Lender shall at all times be and remain subordinate to any New Lease
and the estate created thereby). The Memorandum of Lease shall provide that Landlord's interest shall not be
subject to liens for improvements made by or for the benefit of Tenant. Upon the expiration or sooner termination
of this Lease, and the expiration of the period for entering into a New Lease, Tenant agrees to enter into a
termination agreement, in recordable form, within ten (10).days following Landlord's request therefor. The
substance of the provisions set forth in this Section 21.08 shall be included in the Memorandum of Lease. The
provisions of this Section 21.08 shall survive the expiration or earlier termination of this Lease,
Section 21,09

2ALem,giiAlindinyoices, Tenant ' s failure to object to a statement, invoice or billing


within cme (1) year after receipt shall constitute Tenant's acceptance thereof. Tenant shall be required to provide
Landlord with a specific and detailed list or Tenant's objections at the time Tenant makes its objection to Landlord.
The statement, invoice or billing shall be an account stated between Landlord and Tenant. The provisions of this
Section 21.09 shall survive the expiration or sooner termination of this Lease.
Section 21.10 No Oak. The , submission of this Lease for exemination or execution does not
constitute a reservation of or option for the Demised Premises, and this Lease becomes effective as a lease only
upon execution and delivery thereof by Landlord and Tenant.
Section 21,11 Notts 5. Wherever any notice or submission is required or permitted hereunder, such
notice or submission shell be in writing. Any notice or submission required or permitted to be delivered hereunder
shall be deemed to be delivered (a) when mailed to the applicable party and such party has confirmed receipt or
rejection (which each party agrees to do by reply email promptly after the request for confirmation from the other
polity), (b) one (1) Business Day Mar being deposited with a nationally r'ecogni'zed overnight delivery service with
proof of receipt or rejection thereof or (c) five (5) Business Days after being deposited in the United States Mail,
postage prepaid, Registered or Certified Mail, Return Receipt Requested, addressed to the parties hereto at the
addresses hereinafter set forth, or at such other addresses as they have theretofore specified by written notice
delivered in accordance herewith. The provisions of this Section 21.11 shall survive the expiration or sooner
termination of this Lease.
Landlord prior to completion of the Initial Construction ()l i the Project:
I3AYSIDE MARXETPLACE, LLC
c/o General Growth Properties, Inc.
1245 Worcester Road, Suite 1218
Natick. Massachusetts 01760
Attention: John Charters
Email: John.Charters@ggp.com
With a copy to: BAYSJDE MARKETPLACE, LLC
c/a General Growth Properties, Inc,
110 North Wacker Drive
Chicago, Illinois 60606
Attention: Marjorie,Zessar
Email:. ivlarjorie.Zessar@ggp.00m
If to Landlord following completion of the Initial Construction of the Project:
BAYSIDE MARKETPLACE, LLC
c/o General Growth Properties, Inc,
110 North Wacker Drive
Chicago, Illinois 60606
Attention: Chief Legal Officer
Marvin.i ievine@gg.com
4.2
With a copy to:

BA YS DE MARKETPLACE, LLC
401 Biscayne Blvd,
Miami, Florida 33132
Attn: General Manager
Email: Pamela, Weller ct,ggp.com
If to Tenant:

SKYHIGH MIAMI, LLC


c/o Berkowitz Development. Group, Ina.
2665 South Bayshore Drive
Suite 1200
Coconut Grove, Florida 33133
Attention: Jeff Berkowitz
Email: , jrlb.crlig.v t? 4 .tko.w%t clev,l
n
With a copy to:

Blizin Sumberg Bona Price ea Axelrod L.LP


M50 Brief:ell Avenue
Suite 2300
Miami, Florida 3;3131
Attention: John C. Sumberg
Email: jsIlIberg@bilxi.co
Section 21,12 Asst, ,>7eft tq(ri .g gagoe. With reference to any assignment by Landlord of its interest
in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to or held
by a bank, trust company, insurance company or other lender holding a mortgage on the Demised Premises, Tenant
agrees that the holder of such financing shall be treated as having assumed Landlord's obligations thereunder only
upon holder taking possession of the Demised Premises through foreclosure or assignment in lieu of foreclosure,
Section 21.13 Landlord's Liability. Anything contained in this L,eal.se to the contrary notwithstanding,
Tenant agrees that Tenant shall look solely to the estate and property of Landlord in the land. and buildings
comprising the l3ayside Property (including the Parking Facilities, ), the rentals therefrom and any insurance and
condemnation proceeds thereil'om, for the collection of any judgment (or other judicial process) requiring (he
payment o:f money by Landlord in the event of any default or broach by Landlord with respect to any o.fthe terms
and provisions of this Lease to be observed and/or performed by Landlord, and no other assets of Landlord shall be
subject to levy, execution or other judicial process for the satisfaction of t'enant's claims. in the event Landlord
conveys or transfers its interest in the Demised Premises or in this Lease, except as collateral security for a loan,
upon such conveyance or transfer, Landlord (and in the case of any subsequent conveyances or transfers, the then
grantor or transferor) shall be entirely released and relieved from all liability with respect to the performance of any
covenants and obligations on the part of Landlord to be performed hereunder from and after the date of such
conveyance or transfer, provided that any amounts than due and payable to Tenant by Landlord (or by the then
grantor or transferor) or any other obligations then to be performed by Landlord. (or by the then grantor or transferor)
for Tenant under any provisions of this Lease, shall either be paid or performed by Landlord (or by the then grantor
or transferor) or such payment or performance assumed by the grantee or transferee; it being intended hereby that
the covenants and obligations on the part of Landlord to be performed hereunder shall, subject as aforesaid, be
binding on Landlord, its successors and assigns only during and in respect of their respective period of ownership of
an interest in the Demised Premises or in this Lease. This provision shall not be deemed, construed or interpreted to
be or constitute any agreement, express or implied, between Landlord and Tenant that Landlord's interest hereunder
and in. the Demised Premises shall he subject to impressment of an equitable lion or otherwise. The provisions of
this Section 21.13 shall survive the expiration or earlier termination of this Lease,
Section 21,14
45,11
This is an absolutely net lease and Landlord shall not be required to provide
any services or do any act or thing with respect to the Demised Premises, or the buildings Crud improvements
thereon, or the appurtenances thereto, except as may be specifically provided herein, and the rent reserved herein
shall be paid to Landlord without any prior notice and without any claim on the part of Tenant for diminution, set-
off or abatement and nothing shall suspend, abate or reduce any rent to be paid. hereunder, except as may be
otherwise expressly provided herein.
.43
Section 21, IS 1 gh l; . l: 'er, rttm T'eneltfws Coyelaa. i. if"t"enant shall fail to make any payment or
perform any act required hereunder to be made or performed by Tenant, then Landlord may, but shall be under no
obligation to, make such payment or perform such net with the same effect as if made or performed by Tenant so
long as notice and opportunity to cure have been provided to Tenant to the extent set forth in Article Xlil or as
elsewhere provided in this Lease, Entry by Landlord upon the Demised Premises for such purpose shall not
discharge or release Tenant from any obligation or default hereunder. Tenant shall reimburse (with interest at the
Default Rate) Landlord for all sums so paid by Landlord and all costs and expenses incurred by Landlord in
connection with the payment of moneys or the performance of any such act. The interest shall be deemed to be
Additional Rent. The provisions of this Section 21.15 shall survive the expiration or earlier termination of this
Lease.
Section 21,16 illc,. ^ gs, Tenant shall not suffer or permit any portion of the Demised. Premises to be
used by the public, as such, in such manner as might reasonably make possible a claim or claims of adverse user or
adverse possession by the public, as suclh, or of implied dedication, of the Demised Premises or any portion thereof;
and any such portion of the Demised Premises shall, at all times, be subject to such reasonable rules or direc't'ions as
Landlord may from time to time make or give in writing, for i'he sole purpose of Landlor'd ' s protection in its
reasonable business judgment against: possible claim or claims of adverse user, adverse possession or implied
dedication by the public, as such; Tenant hereby acknowledges that Landlord does not hereby consent, expressly or
by implication, to the unrestricted use or possession of the whole or any portion of the Demised Premises by the
public, as such; and Tenant covenants and agrees that all such reasonable rules and directions so given shall be fully
and promptly performed and enforced by Tenant at its own cost and expense.. Landlord shall not impose
requirements under this Section that are more onerous than Landlord adopts for the Shopping Center.
Section 21.1'7

E st o
giNi
Cprti fietttet, Both Landlord and Tenant agree, upon request of the other patty,
et any time and from time to time upon ten (10) days ' prior written notice, to execute and deliver to the requesting
party, without charge, a written declaration, in recordable form: (i) ratifying this Lease, (ii) confirming the
commencement and expiration dates of the Terns; (iii) certifying that Tenant is in occupancy of the Demised
Premises, and that this Lease is in Mil force and effect and has not been assigned, modified, supplemented or
amended, except by such writings as shall be stated; (iv) that there are no defenses or offsets against the enforcement
of this Lease, or stating those claimed; (v) reciting the amount of advance rental, if any, paid by Tenant and the date
to which rental has been paid and (vi) setting forth such other truthful factual infbrmat.ion as the requesting party
may reasonably request.
Section 2.1,18 E,xecGifjgrn of 1'Jec01qlits. Tenant shall reimburse Prime Landlord, if requested by Prime
Landlord, for all reasonable administrative and legal expenses for the review, preparation and processing of any
document sent at Tenant's request, whether or not the document is executed by Landlord or otherwise consented to
by Prime Landlord.
Section 21,19

Qwngrs t ' p. If the leasehold estate of Landlord in the Bayside Property (pursuant to the
ail Parcel Lease) is held in a real estate investment trust, then Landlord and Tenant agree that Preopening Rent,
Fixed .Rent., Percentage Rent and all Additional Rental paid to Landlord under this Lease (collectively referred to in
this Section 21,19 as "Rent") is intended to qualify as "rents from real property" within the meaning of Section
856(d) of the internal Revenue Code of 1986, as amended (the "Code"), and the. U.S. Department of Treasury
Regulations (the "Regulations"). Should the Code or the Regulations, or interpretations of them by the Internal
Revenue Service contained in Revenue Rulings, be changed so' that any Rent no longer qualifies es "rent from real
property" for the purposes of Section 856(d) of the Code and the Regulations, other than by reason of the application
of Section 856(d)(2)(1:3) or 856(d)(5) of the Code or the Regulations, then this Lease shall be amended to adjust Rent:
so that It will qualify (provided however that any adjustments required pursuant to this Section 21.19 shall be made
so as to produce the equivalent (in economic terms) Kent as payable before the adjustment). ' Tenant understands and
agrees that any. revenue based rent or fee structure (e.g., percentage rent) contained in its subleases, license,
concession or other occupancy agreements, as permitted by this Lease, shall be based solely upon gross sales or
gross revenue and not upon net revenue or net profits of the respective subtenant, licensee, concessionai re or other
occupant of the Demised Premises, The provisions of this Section 21.19 shall survive the expiration or earlier
termination of this Lease.
44
Section 2.1.20

WA:
iso(Redlem born'. Tenant waives any right of redemption if Tennant is evicted or
dispossessed for any cause, or if Landlord. obtains possession of the Demised Premises because of the default of
Tenant or otherwise. Tii tights given to Landlord are in addition to rights that may be given to Landlord by statute
of
otherwise. The provisions of this Section 21.20 shall survive the expiration or earlier termination of this Lease.
Section 21.21 Colan.iality.
Landlord and Tenant hereby agree to keep the material terms of this
Lease confidential and not to disclose same to any other Entity, without the prior consent of the other Iaart)n
provided, however, that the terms hereof may be disclosed without such consent to a party's accountants, attorneys,
employees, agents, prospective buyers and actual or prospective lenders, and others in privity with such party, to the
extent reasonably necessary for such party's business purposes, or in connection with ra dispute hereunder or to
comply with law or judicial process (subject to the limitations and protections for con
pdentin.lity contained
elsewhere in this Lease),
With respect to all confidentiality provisions contained in this Lease, the parties
acknowledge that, once any material is provided to Prime Landlord, it will become a public record (so long as Prune
Landlord, is a governmental entity) and, accordingly, shall thereafter be exempt from the confidentiality
requirements of this Lease to the extent such material is not exempt from becoming a public record by law. The
provisions of this Section 21.21 shall survive the expiration or earlier termination oftthi's Lease.
Section 21.22 Q spJ,1(: ss/jildo,iacndept .figpeft. Notwithstanding anything to the contrary contained in this
Lease, in the event there is a dispute between Landlord and Tenant as to (a) Landlord's approval of (i) any of the
plans and specifications or architectural approvals to he approved by Landlord pursuant to Sections 3.02(b), (c) on'
(d) (or 3.02(e) after the Opening Date), 5,03 or otherwise under the Lease, (ii) Tenant's Preconstruct'ion Deliveries
pursuant to Section 3,03, (iii) approval of signage under Section 3.06 or otherwise, (iv) Tenant's performance of the
work in substantial conformance with the Approved
Plans, (b) the equitable adjustment of the improvements portion
of any tax bill for the Tax Parcel pursuant to Section 7.03 If the Demised Promises are not otherwise separately
assessed and the tax bill does not contain a. separate lino item for the assessed value of the Tenant's Iml.n r ovements;
(c) adjustment of Fixed Rent and the Applicable Breakpoint pursuant to Section 11,04, (d) adjustment of insurance
requirements as contemplated in Article XXXI:LI of this Lease or elsewhere in this Lease (including Section
9.0i(c)(iv) of this Lease), (e) whether the terms of any sublease permitted by this Lease are Commercially
Reasonable Terms, (l whether or not Landlord is entitled to withhold giving an NDA, and (g) Gross Sales
calculation and issues raised by an audit under Section 4.03(e), and Lendlord.and Tenant are tumble to resolve such
dispute within thirty (30) days following. the commencement of such dispute (Landlord and Tenant agree to use
good faith efforts to resolve such dispute between themselves within such 30 day period), or either Landlord or
Tenant sooner determines that it is unlikely they will be able to resolve their dispute, then the matter(s) in question
shall be resolved in accordance with this Section 21.22,
During the pendency of the dispute resolution procedure
under this Section 21.22, neither party shall declare the other in default of I:h,is Lease solely by virtue of the dispute
and the other party's failure to perform the disputed obligations. In the event of any such disagreement, Landlord
and. Tenant shall promptly select an independent Expert (as defined below) and notify the Independent Expert of
such disagr
eement and their desire to have such disagreement resolved by the Independent Expert. If Landlord and
Tenant cannot reasonably agree upon the selection of the independent Expert within five. (5) Business Days
following the expiration of the aforementioned 30-day (or sooner) period, then each of Landlord and Tenant shall
immediately select an expert oftheir choosinng, respectively, who would qualify as an Independent Expert hereunder
and the two experts selected by Landlord and Tenant shall promptly select the independent Expert. Once selected,
the Independent Expert shall be instructed to render its decision within thirty (30) days (or any shorter time
reasonably agreed to by Landlord and Tenant) after such notification, Each of Landlord and
"t"enant shall be entitled
to present evidence and arguments to the Independent Expert, which evidence and arguments may include the
relevant provisions of this Lease and such evidence shall simultaneously be presented to the other party to the
dispute resolution procedure, During the pendency of such dispute-resoha.tion procedure, Landlord and Tenant shall
continue thei r
performance under this Lease, Including with respect to the matter that is the subject of such
procedure, unless duo i:o'the nature of the disputed matter, resolution of the dispute is necessary prior to performance
by Landlord or Tenant, as the case may be, The determination of the Independent Expert acting as above provided
shall be conclusive and binding upon Landlord and Tenant as to the disputes referenced in clauses (a), (e) and (f)
above.
With respect to the disputes referenced in clauses (b), (c), (d) and (g) above, the determination of the
independent Expert shall be conclusive and binding and payments due pursuant to the terms of this Lease shall be
merle upon the basis of such determination; provided, however, that each party retains the right to file a lawsuit,
de
now),
with respect to such dispute and in such event, the final, non-appealable judgment of tire court shall be
conclusive and binding on the parties as to the matter in dispute (and any prior payments made, or insurance limits
it
X15
modified, based upon the determination of the independent Expert shall be adjusted a:ceordhtf;ly together with
interest at the Default Rate and, in the case of insurance, with a payment by Landlord to Tenant of any excess
premiums incurred as a result of Landlord's wrongful position). The. Independent Expert shall be required to give
written notice to Landlord and Tenant stating its determination, and shall furnish to each party a signed copy of such
determination. Landlord and Tenant shall each pay one-half (1/2) of the fees and expenses of the Independent
Expert and all other expense of the above-described dispute resolution procedure (not including attorneys ' fees,
witness fees and similar expenses of Landlord and Tenant, respectively, which shall be borne by each of the parties).
As used herein, the "Independent Expert shall mean (a) with respect to any dispute pertaining to architectural or
engineering matters, an appropriately licensed and/or registered (as applicable) and independent architect or
engineer, (b) with respect to any dispute pertaining to insurance, a.reputabl.e and independent person with experience
in commercial real estate insurance and (c) with respect to any other dispute, a licensed, reputable and independent
certified public accountant, In all events, the independent Expert shall (i) not be affiliated with either Landlord or
Tennent (or any Affiliate of either party) or any mortgagee (or any Affiliate of any mortgagee) and (ii) have at least
ten (10) years of relevant experience and expertise with respect to large commercial real estate projects in the
Miami, Florida area,
ARTICLE XX1I TITLE TO IMPROVEMENTS; SURRENDER.
Tenant covenants and agrees that its interest in the improvements to be constructed on the I.)ennised
Premises shall become subject to the terms and conditions of this Lease and that any grantees or assignees of its
interest in the improvements or this Lease shall take subject to and be bound by the terms and conditions of this
Lease, expressly including the following provisions:
(a) Upon expiration or earlier termination of the Term of this Lease (but not prior thereto),
Landlord shall be the sole and absolute owner of the Tenant's Improvements, :flee of any right, title, interest or estate
of Tenant therein without the execution of any 'farther instrument and without payment. of any money or other
consideration thereof. 'Tenant shall execute such 1bl-01rr assurances of title as may be required. Tenant hereby
grants, releases, transfers, sets over, assigns and conveys to Landlord all of its right, title and interest in and to the
Tenant's improvements upon the expiration or earlier termination of the Term of this Lease.
(b) Tenant shall, upon such expiration or earlier termination of the Term of this Lease,
surrender and deliver the Demised Premises and deliver the improvements, excepting Tenant's FFAE and personal
properly (without any payment or allowance whatever to Tenant on account of, or for, the improvements or any pail:
thereof) to the possession and use of Landlord, without delay and in good working order, condition and repair,
ordinary wear and tear excepted.
(c) Tenant shall not execute and deliver or renew any sublease to a subtenant which would
extend beyond the Term of this Lease (including any extensions provided for herein), it being the intention of' the
parties that Landlord at the termination of the Tenn of this Lease shall be the sole owner of the improvements, as
well as the land and air rights (subject to the rights of Prime Landlord under the Prime Lease), not subject to any
lease, or subtenant's rights deny kind,
(d) Landlord, upon termination of the Term of this Lease for ally reason, may, without notice
(any notice to quit or intention to reenter required by law being expressly waived by Tenant), re-enter upon the
Demised Premises and possess itself thereof by summary proceedings, ejectment, or other lawful means, and may
dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises and may enjoy
the Demised Premises and improvements and have the right. to receive all rents and other income from the same.
Any personal property of Tenannt, remaining on the Demised Premises after termination or expiration of this Lease
shall be deemed abandoned by it and be retained by Landlord as its sole properly or be disposed of, without liability
or accountability, as Landlord sees fit,
Notwithstanding the foregoing, Landlord's exercise of the rights set forth in this Article '..= = I prior to the
entering into of a New Lease shall be void. rely inn/r/o as to a New Lease if such New Lease is entered into pursuant to
the terms of Article XXX.
ARTICLE X:Xll -- MECHANICS' LIENS.
46
Notice is hereby given that Landlord shall not be liable NI. any work performed or to be performed on the
Demised Premises, or in any building or improvement. thereon, or in connection with any appurtenance thereto, for
Tenant or any subtenant, or for any materials furnished or to be furnished at the Demised Promises for 'enant or any
subtenant (except for any work being performed by or on behalf of Landlord at the Demised Premises pursuant to
the terms of this Lease), and that no mechanic's or other lien for such work or materials shall attach to the
reversionary or other interest of Landlord. if, in connection with any work being performed by Tenant or anyone
claiming by, through or under Tenant. or in connection with any materials being furnished to Tenant or anyone
claiming by, through or under Tenant, any mechanic's lien or other lien or charge shall be p led or made against the
Demised Premises or any mart thereof or any buildings or improvements now or hereafter erected and maintained
thereon or on any appurtenances thereto, or if any such lien or charge shall be filed or made against Landlord as
owner, then Tenant, at Tenant's cost and expense, within ten (10) clays after such lien or charge shall have been filed
or made, shall cause the same to be canceled and discharged of record by payment thereof, by transfer to security as
permitted under Florida law, by the filing of a bond in form and with a surety reasonably satisfactory to Landlord, or
otherwise, and shall also defend, at Tenant's cost and expense, any action, suit or proceeding which may be brought.
for the enforcement of such lien or charge, and shall pay any damages suffered or incurred therein by Landlord and
shall satls(' and discharge any judgment entered therein. In the event of the failure of Tenant to afoot the foregoing
within the above-mentioned 10-day period any mechanic ' s lien or other lien or charge herein required to be paid or
discharged by Tenant, Landlord may transfer such lien to security as per'mitttoci. by Florida law or, if no longer
permitted by Florida law, pay such items or discharge such liability by payment or bond, or both, and Tenant will
repay to Landlord upon demand any and all amounts paid by Landlord therrefor,. or by reason of any liability on any
cash bond, and also any and all incidental expenses, including counsel fees in reasonable amount, incurred by
Landlord in connection therewith together with interest thereon at the Default Rate; provided, however, Tenant shall
have the right to contest or cause to be contested any such mechanic's lien or other lien without cancelling or
discharging such lien of record so long as (a) Tenant diligently continues or causes to be continued such contest in
good faith, (b) Tenant promptly pays or transfers (or causes to be paid or transferred) to security if permitted by
Florida law, such contested lion if the protection of the Demised Premises and the Tenant's improvements or of
Landlord's interest therein from forfeiture of title on account of such lien or claim shall, in the reasonable judgment
of Landlord, require such payment. and (c) Landlord shall not be required to join in any proceedings referred to
herein.
if, in connection with any work being performed by Landlord or anyone claiming by, through or under
Landlord, or in connection with any materials being furnished to Landlord or anyone claiming by, through or under
Landlord, any mechanic's lien or other lien or charge shall be filed or made against the Landlord's interest in the
Demised Premises, the 't'enant's interest In the Demised Promises or any part thereof or any buildings of
improvements now or hereafter elected and maintained thereon or on any appurtenances thereto, of if any such lien
or charge shall be tiled or made against Tenant as owner, then Landlord, at Landlord's cost and expense, within ten
(10) days after such lien or charge shall have been filed or made, shall cause the same to be canceled and discharged
of record by payment thereof, by transfer to security as permitted under Florida law, by the filing of a bond in form
and with a surety reasonably satisfactory to Tenant, or otherwise, and shall also defend, at Landlord's cost and
expense, any action, suit or proceeding which may be brought for the enforcement of such lien or charge, and shall
pay any damages suffered or incurred therein by Tenant and shall satisfy and discharge any judgment entered.
therein. En the event of the failure of Landlord to effect the foregoing within the above-mentioned I0 dey period
any mechanic's lien or other lien or charge herein required to be paid or discharged by Landlord, Tenant may
transfer such lien to security as permitted by Florida law or, if no longer permitted by Florida law, pay such items or
discharge such liability by payment or bond, or both, and Landlord will repay to Tenant upon demand any and all
amounts paid by Tenant theref or, or by reason of any liability on any cash bond, and also any and all incidental
expenses. including counsel fees in reasonable amount, incurred by Tenant in connection therewith together with
interest thereon at the Default Rate.
ARTICLE XXIV -- PRESENT CONDI'T'ION OF DEMISED PREMISES
Tenant hereby acknowledges and agrees that it accepts the Demised Premises and the subsurface conditions
thereof in the condition or state in which they or any of them now are, without representation or warranty by
Landlord, express or implied, in fact or by law, as to the nature, condition or usability thereof or as to the use or uses
to which the Demised Premises or any part thereof may be put or as to the prospective income from, and expense of
operation of, the Demised Premises, except as expressly set forth in this Lease, and that Tenant waives all right of
^4 "7
recourse against Landlord in connection therewith, "Tenant agrees that Landlord, its employees and agents have
made ao representations, inducements or promises about the Demised Promises, the Bayside Property or this Lease,
or about the characteristics or conditions re garding or pertaining to the Demised Premises or the Bnyside Property,
unless the representations, inducements and promises are in this Lease, Therefore, no claim or liability, or cause for
termination, shall be asserted by Tenant against Landlord, its employees and agents, for, mid they shall not be liable
because oft the breach or ally representations, inducements or promises not expressly In thisLease.
ARTICLE XXV -- HAZARDOUS MATERIALS
Section 25,01

lj flib Lion of .r',lgmrdou;s Materials, Tenant shall not cause or permit any hazardous
Material to be brought upon, transported through, stored, kept, used, discharged or disposed in or about the Demised
Premises or the Bayside Property by Tenant, its agents, employees or contractors, except such limited quantities as
may be reasonably required in connection with the operation of the Project in full compliance with all applicable
laws.
Section 25.02

Ilnv
r, J.i.ingig ,l (g Ie, mntsa.
(a,) T' ggIndemnity, Tenant shall indemnify, defend, protect and hold harmless the.
Landlord Indemnified Parties (collectively "'T'enant indemnity") from any and all claims, sums paid in settlement of
claims, judgments. damages, clean-up costs, penalties, fines, costs, liabilities, losses or expenses (including, without
limitation, attorneys', consultants' and experts' fees and any other fees incurred by Landlord to enforce the Tenant
indemnity) which arise during or after the Term as a result of Tenant's breach of its obligations as set forth in this
Article XXV or the release of Hazardous Material at, or contamination of, the Bayside Property, in violation of
applicable law, by Tenant, any of the other Tenant Indemnified Parties, or any of its subtenants, licensees,
concessionaires or any other party claiming by, through or under Tenant.
(b) Dthdl,orcl Indemnity, Landlord shall indemn.iI', defend, protect and hold harmless the
Tenant Indemnified Parties (collectively, the "Landlord Indemnity") iron and against any and all claims, sums paid
in settlement of claims, judgments, damages, clean-up costs, penalties, fines t costs, liabilities, losses or expenses
(including, without limitation, attorneys , consultants' and experts' fees and any other fees incurred by Tenant to
enforce the Landlord indemnity) which arise out of or result from the release of Hazardous Material onto the
Demised Premises as a result of Landlord's broach of its obligations as set forth In this Article XXV, or in violation
of applicable law, caused or permitted by Landlord or any of the Landlord Indemnified Parties, or tiny of Landlord's
subtenants, licensees, concessionaires or any other party claiming by, through or under Landlord,
The foregoing indemnities shall survive the expiration or earlier termination of this Lease.
Section 25.03

1 j

uclietit?,l. Without limiting the generality ofthe foregoing,.


(a) if the presence of Hazardous Material at the Demised Premises in violation of applicable
law caused or permitted by Tenant or any of the 'Tenant Indemnified Parties results in the. contaminatioa, release or
threatened release of Hazardous Material in violation of applicable law on, from or under the Bayside Property or
other properties, Tenant shall promptly take all actions at. its sole cost and expense which are necessary to remediate
the sane as required by applicable law; provided that Landlord's written approval of the actions shall be obtained
first, which approval shall not be unreasonably withhold, conditioned or delayed so long as such actions rio not have
or would not potentially have any material, adverse Iong .term or short-term effect on Landlord or on the Bayside
Property, the Shopping Center or any other properties. This provision shall survive the expiration or earlier
termination of the Term of this Lease and shall survive any transfer of Landlord ' s interest in the Bayside Property,
(b) if the presence of Hazardous Material at the Shopping Center in violation of applicable
law caused or permitted by Landlord or any ofthe Landlord Indemnified Panics results in the contamination, release
or threatened release of Hazardous Material In violation of applicable law on, from or under the Demised Premises
or other properties, Landlord shall promptly take all actions at its sole cost and expense which are necessary to
remediate the sauce as required by applicable law; provided that Tenant's written approval of the actions shall be
obtained first, which approval shall not: be unreasonably withheld, conditioned or delayed so long as such actions do
not have or would not potentially have any material, adverse long-term or short-term effect on Tenant or on the
Demised Premises or such other properties. This provision shall survive the expiration or earlier termination of the
Term of this Lease but shall riot survive any transfer of Landlord's interest in the l3ayside Property.
Section 25,04 Ji'oyidinp lar rm ice. Each party shall provide the other party, upon request,
information regarding the environmental condition of the Demised Premises, or the Shopping Center, respectively,
so that the requesting party can determine if it must comply with any rule, regulation, order, act, law or statute
pertaining to the environmental condition of the Demised Premises or the Shopping Center, respectively, and for
Landlord to accurately complete a form or otherwise provide information requi r ed under any rule, regulation, order,
act, law or statute. Tenant shall permit Landlord to comply with those recommendations and requirements
pertaining to the Demised Premises and the Shopping Center.
Section 25.05

j xis:in Lr?t+ironmcLrl1 Audit. Landlord has furnished to Tenant, prior to the Execution
Date of this Lease, a copy of that cartel() Phase I 'Environmental Site Assessment prepared by EDT Consulting, dated
September 5, 2008, captioned "Project'. No. 11082459." Landlord makes no warranty or representation whatsoever
to Tenant with respect t:o the presence or absence of Hazardous Materials upon the Demised Premises or with
respect to whether there presently exists any violation of any applicable environmental laws with respect to the
Demised Premises.
ARTICLE XXV'l - SPECIAL. PROVISION'S
Section 26.01 j ri11q. ,stptc Salles",a . Tenant, and not Landlord, shall pay, when due and payable, the
Florida. State Sales Tax and any other sales or excise tax or assessment now or later levied or assessed in substitution
or in lieu thereof upon or against the rental and Additional Rental to be paid under this Lease, or any portion of' it.
Should the appropriate taxing authority require that any sales or excise tax and/or assessment be collected by
Landlord for or on behalf of the taxing authority, then the sales or excise tax and/or assessment shall be paid by
Tenant to Landlord as Additional Rental in accordance with the terms of' any written notice fi rorn Landlord to
Tenant. Landlord will recognize and accept any lawful exemption certificate; it being understood that pyramiding of
sales tax is not required by applicable law.
Section 26,02

fyie.g17angg, i..,lsm. The Memorandum of Lease shall provide that 'Landlord's interest
shall not be subject to liens for improvements made by Tenant:.
Section 26.03

ltgtlpjiGm. The following disclosure is required by Florida ,Statutes, Section 4041,056(6):


"Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida, Additional information regarding radon and radon testing may
be obtained from your county public health unit." Landlord has not conducted radon testing for the Shopping Center
or the Demised Premises, and Landlord disclaims any and all representations and warranties regarding the absence
of radon gas or radon gas-producing conditions in connection with the Demised Premises.
Section 26.01 1Vu,Mhholdi1lgl, gnt. Anything to the contrary contained herein notwithstanding,
Tenant may not withhold rent for any reason hereunder, including without limitation, Landlord's failure to maintain
those poi Nona of the Shopping Center adjacent to the Demised Promises to the extent required pursuant to the. terms
of Section 8.01 above, except to the extent that Tenant has received a final, non-appealable judgment in Tenant's
favor as to any overpayment of rent to Landlord. Failure to pixy a disputed amount during the pendency of dispute
resolution under Section 21.22 shall not be deemed withholding of rent.
Section 26.05 'pn Piet trl.'. merest, Tenant covenants and agrees that, by execution Mills Lease, neither
Tenant nor any member, manager or collectively, their respective shareholders, officers, directors, members,
managers, partners or employees violate, nor during the 'Perm of this Lease shall Tenant or any of the
aforementioned parties violate, the conflict of In1eaest. provisions of the City of Miami Code, the Miami-Dade
Connie Code and Chapter 11?, Part III, of the Florida Statutes, as the same may be amended f rom time to time.
ARTICLE XXVtI CC7NTINC I NCIES
49
't'enant shall proceed with the preparation of the Site Development Plan Package upon the Execution Date
and thereafter diligently pursue the preparation of the Design Development Plans, the 60% Plans and the Final
Plans, in accordance with the terms of Section 102, and submitting same to Landlord once prepared, 'runt shall
'also make application to the applicable governmental authorities for all Governmental Approvals, including, without
limitation, all necessary building permits and other permits and. consents required for the development of the Project,
and furnish evidence of such application satisfactory to Landlord, in form and content, as soon as reasonably
possible following the approval attic Approved Plans by Landlord, Tenant agrees to timely submit the Approved
Plans to such governmental authorities and to diligently pursue in good faith obtaining all Governmental Approvals
therefor.
Section 17,01 gp
,sttuit trt?J?..._ Cplllt'1'.p
nc:mnent. This Lease is contingent upon Tenant commencing
construction of the Project and delivering to Landlord the Evidence of Commencement or Construction by the
Scheduled Construction Commencement Date (the "Commencement Contingency"), which for clarification
purposes is subject to extension by reason of Force lulajeuee, Tenant agrees to diligently pursue in good faith
con'unencing construction of the Project by the Scheduled Construction Commencement Date, Tenant
acknowledges and agrees that Tenant shall not commence construction until Landlord shall have approved Tenant's
Preconstruction Deliveries, as provided in Section 3,03(a) above, in the event that Tenant has not commenced
construction of the Project and delivered to I..,andiord the Evidence of Commencement of Construction by the
Scheduled Construction Commencement Date, then Landlord may terminate this Lease at any time thereafter until
Tenant has commenced construction or this Project and delivered to Landlord the Evidence of Commencement of
Construction. Notwithstanding the Foregoing, if Landlord is reviewing Tenant ' s ?reconstruction Deliveries or any
revisions thereto as of the Scheduled Construction Commencement Date, then landlord ahall not have the right to
terminate this Agreement and the Scheduled Construction Commencement Date shall be extended until thirty (30)
daysafter Landlord and Tenant reach agreement upon the ?reconstruction Deliveries (or an independent Export has
otherwise reached a conclusive head binding decision as to any dispute between Landlord and Tenant relating to the
Prer' onstruction Deliveries and any delay occasioned by the foregoing shall, be deemed Force Majeure and shall 'also
extend the Outside Completion Date).
Section 27.02 ;onstructiorL, Cpmpletj, ,a. Tenant shall complete the construction of the Initial
Construction and deliver to Landlord the Evidence of Completion of Construction on or before the Scheduled
Construction Completion Date (which for clarification is also subject to extension by reason of Force Maieure), and
open the Below Tower Parking and Observation Deck for business to the general public on a holly fixtured and
staffed basis on or before the Scheduled Opening Date (which for clarification is also subject to extension by reason
of Force Majeure), in the event that Tenant has not completed construction of the initial Construction and delivered
to Landlord the Evidence of Completion of Construction on or before the Scheduled Construction Completion Date
and opened the Below Tower Parking and Observation Deck for business to the general public on a fully natured
and staffed basis on or before the Scheduled Opening Date (the "Completion Contingency"), then l,a.ndlor'd may
terminate this Lease at any time therea'fi:er until Tenant has completed construction of the Initial Construction and
delivered to Landlord the Evidence of Completion of Construction and opened the Below Tower Parking and
Observation Deck for business to the general public on a fully 'fixtured and staffed basis, whereupon the parties shall
have no further liability to each other under this Lease., except pursuant; to those provisions that explicitly survive
any termination of this Lease. Notwithstanding the foregoing, if `tenant has not satisfied the Completion
Contingency for reasons other than Force Iviajeure ('for clarification, Force Majeure delays in satisfying the
Completion Contingency shall not trigger the termination right or the following payment obligations) but is
diligently pursuing completion of construction of the Initial Construction, then Landlord may not exercise its right to
terminate this Lease based upon a failure of the Completion Contingency so long as (a) during the that twelve (12)
month period following the Scheduled Construction Completion Date, Tenant pays to Landlord Fixed Rent and all
other amounts due and owing to Landlord. as of the Scheduled Opening Data and continues to make such payments
as and when due pursuant to the terms of this Lease, and (b) at any point following the aforementioned 12-month
period through the Outside Completion Date, Tenant pays an amount equal to 125% of Fired Rent and all other
amounts due and owing to Landlord and continues to make such payments as and when due pursuant to the terms of
this Lease? it being understood and agreed that Landlord's right to terminate this Lease as provided in this Section
27.02 shall be reinstated if and when (i) Tenant ceases to diligently pursue (subject to Force Majeure) completion of
the. construction of the Initial Construction for a period of two (2) months following the Scheduled Construction
Completion Date, (ii) Tenant fails to pay in a timely manner all amounts due and owing to Landlord as provided in
clauses (a) or (b) above, as applicable, or (iii) Tenant fails to complete the construction of the Initial Construction,
50
deliver to Landlord Evidence of Completion of Const r uction and open the Below Tower Parking -and Observation
Deck on a fully fixtured and staffed basis on or before the Outside Completion Date (whether or not the delay is due
to Force Majeure or reasons other than Force lvfajeure (but the Outside Completion Date shall be extended by reason
of any delays caused by Landlord)).
Section 27.03 whatr_ . thiiiiag,..l iglus. Without otherwise limiting the respective rights of the parties
hereto, in the event that Landlord terminates this Lease on the basis of the tbilure or either of the Commencement
Contingency or the Completion Contingency, then upon such termination, the parties shall thereupon have no further
liability to each other corder this Lease, except pursuant to those provisions that explicitly survive any termination of
this Leese; provided, however, that if required by Landlord by notice to Tenant given within ninety (90) days of
such f:erminetion (failure of Landlord to timely provide such notice shall constitute a waiver of the following
obligation that would otherwise exist under this Section to demolish, remove end restore), Tenant shall be obligated,
at Tenant's sole cost and expense, for the demolition and removal of the Tenant's Improvements theretofore
installed or constructed (other than the Below Tower Parking which may remain in place provided the same is
functional for lawful parking purposes) and shall be responsible to restore the Demised Premises to the condition the
Demised Premises were in as of the Execution Date (other than the Below Tower Parking which may remain in
place provided the same is functional for lawful parking purposes). Tenant shall be solely responsible for repairing
any and all damage caused by such removal of any such Tenant's Improvements.
ARTICLE XXVIIf -- RENEWABLE ENERGY
Tenant. intends that the Project will be Partially powered by solar energy; provided, however, this shall not
be a condition to the effectiveness of this Lease and there shall be no adverse consequences if this intention is not
realized, Tenant may, in its sole and absolute discretion, provide Landlord with the opportunity to purchase excess
power generated by the Project, which Landlord may purchase, or decline to purchase, in Landlord's sole and.
absolute discretion. Landlord agrees that Tenant shall have the right to sell and/or assign any excess power
generated by the Project to third parties and Tenant shall be entitled to all revenues derived therefrom (provided that
said revenues shall be included within the meaning of "Gross Sales" for purposes of the calculation of Percentage
Rent). Landlord agrees that Tenant shall be entitled to any local, state or federal renewable energy rebates,
incentives or credits or any nature gener ated as a result of the Tenant's Improvements or the construction of the
Project ("Energy Credits") and that such Energy Credits shall be excluded from the definition of "Gnus Sales".
Landlord shall cooperate with 'tenant and shall execute and deliver to Tenant all reasonable documents, at no cost to
Landlord, to the extent necessary to allow the assignment, transfer or sale of the Energy Credits, if requested by
Tenant.
ARTICLE XXIX
e_
REPRESENTATIONS AND WARRANTIES
Section 29.01

Lit o
clLo.r.cls'aalresentaf rrs,
(a) Duo Foiltua pn anti Authority. Landlord is a duly formed limited liability company,
validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the
State of Florida, Landlord has the corporate .power, right end authority t:o eater into and perform all of the
obligations required under [his Lease. The individual executing this Lease on behalf of Landlord has the power,
right and authority to bind Landlord.
(b) No l.,.itir trtippg. There is no pending or, to the best of Landlord's actual knowledge,
threatened litigation, lawsuit, action or proceeding before any court or administrative agency affecting Landlord, any
constituent Entity of Landlord, or the Demised Premises that would, if adversely determined, materially adversely,
affect Landlord, the Demised Pre= mises, this lease, the leasehold estate created by this Lease, or Tenant's ability to
develop and operate the Demised Premises for the Permitted Use.
(c) i .p.,.i'bra,tt,({ 2&...,(. rral hipaiiit ora, , There is no existing, or to the best of Landlord's actual
knowledge, pending or threatened condemnation affecting any portion of the Demised Premises or any pending
public improvements in, about, outside, or appurtenant to the Demised Premises that will materially adversely affect
the use and operation of the Demised Premises as a whole or accessto the Demised Premises.
51
(d)

FllZ.P' f'A. Landlord is not a "foreign person" within the meaning of the United States
internal Revenue Code 1445(f)(3).
(c) Proof. S onlit:iart, Landlord, to the best of its actual knowledge, is not aware of any
:nation concerning the physical condition of the Demised Premises that would materially adversely affect the Project,
except as disclosed herein; it being understood and agreed that Tenant will be relying solely upon its own due
diligence investigations to assess the physical condition and usability of the Demised Premises l'or the Project.
(1) I ^ ),l la T
C^ nter^j, jam. There are no exclusive use (except as set forth on Exhibit "F"
attached hereto), prohibited use, no build or other restrictions or other limitations in the leases, licenses or other
occupancy agreements between Landlord and its subtenants, licensees and other occupants at the Shopping Center
that would prohibit, restrict or limit in any way the Tenant's ability to develop, construct and operate the Project at
the Demised Premises as contemplated in this Lease.
(5) lyo C.t er ?art:ies T r^l tic d to 1'o,y es5j Except for the rights of Prime Landlord under
the Retail Parcel Lease and the rights reserved to Landlord pursuant to this Lease, and except as otherwise provided
in any Title Restrictions, Tenant and those claiming under Tenant are currently and shall remain (luring the Term the
only party entitled to possession of the Demised Premises and no other person has or will have any right to Iease,
use, have possession of or occupy the Demised Premises.
All references in this Agreement to Landlord's "knowledge" or words of similar import shall refer only to the actual
knowledge (as opposed' to imputed knowledge) of John Charters, Vice President, Development and Pamela Weller,
Senior General. Manager (the "Designated Parties") and shall not be construed to refer to the knowledge of any other
officer, member, manager, agent or employee of Landlord or any Affiliate thereof, or to impose or have. imposed
upon the Designated. Parties any duty to. investigate the matters to which such, knowledge, or the absence thereof,
pertains, There shall be no personal liability on the part of the Designated Parties arising out of any representations
or warranties made herein.

Section 29.02

Tam.itE`s. hareseiat9tiolts.
(a) Due; Tolmn nt tion at Authority. Tenant is a duly formed limited liability company, validly
existing and in good standing under the laws or the State of Florida. Tenant has the corporate power, right and
authority to enter into and perform all of the obligations required under this Lease. The individual executing this
Lease on behalfof Tenant has the power, right and authority to bind Tenant.
(b)

No t, ttjgicon. There is no pending or, to the best of Tenant's actual knowledge,


threatened litigation, lawsuit, action or proceeding before any court or administrative agency affecting Tenant, any
constituent Entity or Tenant or any of their respective assets that would, if adversely determined, materially
adversely affect Tenant, this Lease, the leasehold estate created by this Lease, or Tenant's ability to develop and
operate. the Demised Premises for the Permitted Use.
(c) to
AG. Tenant (a) is not acting, directly or indirectly for, or on behalf of, any Entity
or nation named by any Executive Order (including Executive Order No, 13224 on Terrorist Financing effective
September 24, 2001) or the United States Treasury Department as a terrorist, "Specially Designated National and
Blocked Person," or other banned or blocked Entity or nation pursuant to any law that is enforced or administered
by the Office of'Foreign Assets Control, and is not engaging in the transactions contemplated by this Lease, directly
or indirectly, on behalf of, or instigating or facilitating this Lease, directly or indirectly, on behalf of; any such Entity
or nation; (b) is not engaging in the transactions contemplated by this Lease, directly or indirectly, in violation of
any laws relating to drug trafficking, money laundering or predicate crimes to money laundering; (c) none of the
funds of Tenant have been or will be derived ,.from any unlawful activity with the result that the investment of direct
or indirect equity owners in Tenant is prohibited by law or that the transactions or this Lease is or will be in
violation of law. and (d) Tenant has and will continue to implement procedures, and has consistently and will
continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true
and correct at all times during the Term of this Lease,
52
ARTICLE XXX FINANCING
Without the prior written consent of Landlord, Tenant shall have the right, from. time to time, to execute
and deliver a. Leasehold Mortgage granting a lien or security interest in Tenant's leasehold estate and the Tenant ' s
improvements (the "Leasehold Interest"), to an Institutional Lender; provided that any such Leasehold Mortgage
shall satisfy the conditions set forth herein and provided that, notwithstanding any provision to the contrary in this
Article XXX, Tenant shall remain liable hereunder for the payment of all rent payable hereunder and for the
performance of all of the obligations of Tenant under this Lease. Any such Leasehold Mortgage shall be subject and
subordinate to the Retail Parcel Lease and subject to the terms of any subordination, non-disturbance/recognition
and at-torment agreement provided for in Article XXXV of this Lease. In no event shall any such Leasehold
Mortgage encumber Landlord's interest in the Demised Premises or the Baysicle Property or Prime Landlord's
interest in the lend demised pursuant to the Retail Parcel. Lease.
Section 10.01 Nntics,,. cl.. ,L,anclior4. If either Tenant or any Leasehold Mortgagee delivers notice to
Landlord. in writing of the existence of such Leasehold Mortgagee and address of the holder thereof (which notice
shall be accompanied. by a copy of the executed and recorded Leasehold Mortgage), such holder shall be deemed to
be a "Leasehold Mortgagee" and the provisions of this Article XXX shall apply, Tenant shall furnish to Landlord a
copy of each recorded amendment or other moditica:tlon to any such Leasehold Mortgage, promptly following the
execution of same, together with a certification by Tenant that same constitutes a true teal correct copy of the
original thereof. Landlord shall be under no obligation under this Article XXX to any holder of a Leasehold
Mortgage of whom Landlord has not received such notice.
Section 30.02 iplr its C t. rc, If an Event of Default by Tenant under this Lease occurs, Landlord shall
give written notice thereof to any Leasehold Mortgagee and any such Leasehold Mortgagee, without prejudice to its
rights against Tenant, shall have the right to cure such Event of Default within a period equal to the. applicable cure
period provided to Tenant heroin with respect to such Event of Default in this Lease, plus thirty (30) days (the
"Leasehold Mortgagee Cure Period"). If any Leasehold Mortgagee cannot reasonably cure the Event of Default
within such Leasehold Mortgagee Cure Period under the preceding sentence, it shall have such Miter time as is
reasonably needed so long as it commences to cure the Evert! of Default (luring such Leasehold Mortgagee Cure
Period and thereafter proceeds with reasonable diligence to cure the same; provided, however, the foregoing
extended cure rights shall not apply to any monetary Event of Default so long as the amount is reasonably
ascertainable (egg with respect to Percentage Rent payments, the Gross Sales upon which Percentage Rent is
payable must be reasonably ascertainable).
(a) Anything contained in this Section 30,02 to the contrary notwithstanding, (i) if any
Leasehold Mortgagee cannot. reasonably cure the Event of Delamlt without taking possession of the Demised
Premises or otherwise foreclosing its Leasehold Mortgage (the obligation to Continuously Operate constituting,
without limitation, one such matter), or (ii) if any Tenant Specific Default (defined below) occurs, such Leasehold
Mortgagee shall be entitled, to such additional time as it reasonably needs to consternate a foreclosure or
assignment in lieu thereof and obtain possession of the Demised Premises, so long as such Leasehold Mortgagee (X)
timely cured all other Events of Default (including but not limited to payment of Preopening Rent, Fixed Rent,
Impositions, Percentage Rent and Additional Rent to the extent that same i e due and reasonably ascertainable), (Y)
promptly takes such steps as shall reasonably be required in order to acquire Tenant's Leasehold Interest by
f rreclosure of the Leasehold 'M'ortgage, or otherwise, and (Z) thereafter prosecutes such Leasehold Mortgage
foreclosure to completion with reasonable diligence.
(h) If any Leasehold Mortgagee obtains the Tenant's Leasehold Interest by foreclosure of its
Leasehold Mortgage or by assignment in lieu of foreclosure of its Leasehold Mortgage, all Tenant Specific Defaults,
if any, shall be deemed automatically waived, For purposes of this Lease, the term "T"enant Specific, Defaults" shall
mean such Events of Default as are personal to Tenant and which cannot reasonably be cured by Leasehold
Mortgagee, such as (but not limited to) Tenant's filing for bankruptcy or an impermissible transfer of Tenant's
interest in this Lease.
(c) With respect to any Event of Default which can reasonably be cured by any !;,easehold
Mortgagee, Landlord shall accept such perfarmarrce done, perforated or tendered by such Leasehold Mortgagee, as
though the same had been done, performed or tendered by Tenant. For such purpose, Landlord and Tenant hereby
53
authorize such Leasehold Mortgage to enter upon the Demised Premises and to exercise any of its rights and powers
under this Lease, subject to the provisions of this loose; provided, however, that neither this right nor its exercise
shall be deemed to give such Leasehold Mortgagee possession of Me Demised Promises,
(d) Unless and until such time as all Leasehold Mortgagees time to cure an Event of Default
or obtain the Tenant's Leasehold Interest by foreclosure of its Leasehold Mortgage or by assignment of this Lease in
lieu thereof has expired, Landlord shall not terminate this Lease, accelerate any rent, or otherwise interfere with
Tenant ' s or such Leasehold Mortgagee's possession and quiet enjoyment ()l i the Leasehold Interest,
Section 30.03 Assignnvgt by the Lease told prtgagee, If any Lmmubn|dMortgagee shall acquire title
to the Leasehold Interest under this Lease and become the owner of such Leasehold feterest, either upon the
foreclosure Of such Leasehold Mortgage or a transfer in lieu thereof, or shall enter into a New Lease (es such term is
defined below) witli Landlord, then such Leasehold Mortgagee shall have the right to assign such interest or such
New Lease to an assignee of its choosing without the consent of Landlord, provided the assignee assume the
obligation of the assignor arising from and after the date of such assignment and a copy cif such assignment is
furnished to Landlord within Udrty(3O) day thereafter. Notwithstanding the foregoing, Tenant shall remain liable
under this Lease, as if such foreclosure or other transfer of the Lease or interest or Tenant hereunder or such New
Lease or any subsequent assignment had never occurred.
Section 30.04 lsloy Legg. , If this Lame terminates as uresult, of an Event of Defbult by Tenant
hereunder or is rejected u,diyoHbivod pursuant to bankruptcy law or other law affecting creditors' rights, any
Leasehold Mortgagee shall have the debt, exercisable by notice to Landlord, within thirty
(30)
days after the
effective date of such Ceoniuu800
`
to order into a now lease for the Demised Premises with Landlord (a "Now
Lease"), The term of said New Lease shall begin on the due of the termination of this Leese and shall continue For
the rmma|udwrof the Torn Such New Lease shall otherwise wontaill the same terms and conditions as so set Ford)
herein; provided, however, that such Now Lease shall require and be conditioned upon the cure of all Events of
Default then existing hereunder (other than Tenant Specific Defaults), within Mc cure periods applicable thereto.
The Leasehold Mortgagee shall execute and deliver such New [.auao to Landlord which conforms with the foregoing
requirements, within thirty (30) days following the receipt of the New Lease, (consistent in form and content with the
requirements of this Article XXX) from Landlord, together with reasonable expenses, including reasonable
attorneys' fees, which Landlord shall incur by reason of such termination and the execution and delivery of the 0a` p
Lease. Thin provision shall survive he termination of this Lease and shall continue in full force and effect thereafter
to the same extent as if this provision were nm*puinate and independent contract among Landlord, Tenant and such
LoamohmNK8o,4go8ee.
If Leasehold Mortgagee timely requests a New Lease in conformity with this Lease, then from the date this
Lease terminates until the earlier of (a) the data the parties execute and deliver a New Lease and (b) the time period
for Leasehold Mortgagee to execute and return the New Lease expires, Landlord shall not: (1) to the extent it takes
possession or control of the Demised Premises, operate the Demised Premises in n commercially unreasonable
manner; (if) terminate sublease(s) for any reason other than a material subtenant default; or (111) lease all or any
portion of the Domisod Premises except to Leasehold Mortgagee, When the parties sign a New Lean, Landlord
shall MAW to the tenant under the Now Lease MI of Landlord's interest, if any, in and to subbases [including any
subbase security deposits Landlord held, if any], service contents, promises operations, and net income Landlord
collected limns the Demised Premises during the period described in the previous sentence, and Landlord ehall use
commercially reasonable efforts to cause Landlord ' s mortgagee, if any, to enter into a subordination, non-
disturbeneehiecognition and attornment agreement as provided For in Article XXXV of this Lease. Notwithstanding
(lie foregoing, Landlord shall not be required to take poeeession of', or operate, the Demised Premises during the
Term nor shall Landlord be deemed to have taken possession, or responsibility for the operation, of the Demised
Premises by virtue of this Section 30A4.
Section 30,05 jjpngitmtg, Any Lease Implement (as defined below) made without Leasehold
Mortgagee's, consent shall (at Leasehold Mortgagee'soption) be null, void, and of no force or effect, and not bind
Tenant, Leasehold Mortgagee, or the tenant under any New Lease, "Lease Impairment" means Tenant's; (a)
canceling, modifying. restating, surrendering, or terminating this Lease, including upon casualty or condemnation
(Tenant hereby acknowledging and agreeing that Landlord will not enter into any citicelation, modification,
rClAstORIellt, surrender, or termination of this Lease without Tenant first providing Landlord written evidence of
A
Leasehold Mortgagees consent thereto); (b) determining that a Substandal `fowl Taking has occurred; (c) exercising
any bankruptcy termination option; and/or (d) subordinating this Lease or the Leasehold interest to any other estate
or Interest in the Demised Premises except as and to . the extent expressly provided in. this Lease.
Section 30,06 NAMe, rgy., . If the Leasehold Interest And the fee estate in the Demised Premises are ever
commonly held, they shall remain separate and distinct estates (and not merge) without Leasehold Mortgagee's
consent.
Section 30.0'7 htlultipkLiteasehold Mortgages. If at any time multiple Leasehold Mortgages exist: (a)
the consent by or notice to Leasehold Mortgagee refers to all Leasehold Mortgagees that. have notified Landlord
thereof in accordance with the notice requirements set forth in this Article XXX; (b) except under clause (a), the
most senior Leasehold Mortgagee may exercise all rights of Leasehold Mortgagee(s), to the exclusion of junior
Leasehold Mortgagee(s); (o) to the extent that the most senior Leasehold Mortgagee declines to do so, any other
Leasehold Mortgagee, may enrolee those rights, in order or priority; and (d) if the Leasehold Mortgagees do not
agree on priorities, a written determination of priority issued by a title Maumee underwriter licensed in Florida shall
govern and Landlord may rely solely upon such determination to the exclusion of junior Leasehold Mortgagee(s).
Section 30.08ofthe Leaseholdortgageg, Leasehold Mortgagee shall not become personally
liable for the performance or observance of any covenants or conditions to be perfbemed or observed by Tenant
hereunder, unless and until such Leasehold Mortgagee becomes the owner of 'fount's Leasehold Interest hereunder
upon the exercise of any remedy provided in any Leasehold Mortgage, or enters into a New Lease. Thereafter, such
Leasehold Mortgagee shall be liable for the performance and observance of such covenants end conditions for the
period from and after such Leasehold Mortgagee becomes the owner of Tenent i s Leasehold Interest and only for so
long as such Leasehold Mortgagee owns such interest or is a lessee under such New Lease.
Section 30,09 NigaggmAgioll. Notwithstanding anything to the contrary contained in this
Lease, Leasehold Mortgagee may: (a) exercise its rights through an affiliate, a servicer or such other Entity acting in.
Leasehold Mortgagee's name or on the Leaaehold Mortgagee's behalf (and anyone acting under this clause (a) shall
automatically have the same protections, rights, and limitations of liability as Leasehold Mortgagee so long as
Leasehold Mortgagee has provided Landlord with written notice that such Entity is acting on Leasehold
Mortgagee's behalf); (b) refrain from curing any Event of Default: (c) abandon such cure at any time; or (d)
withhold consent or approval for any reason or no reason, except where this Lease states otherwise. Any such
consent or approval must be written. To the extent any Leasehold Mortgagee's rights under this Lease apply after
this Lease terminates, they shall survive such termination. Notwithstanding the foregoing or anything to the,
contrary set forth in this Article XXX., if Leasehold Mortgagee elects not to cure any Event of Default or abandons
such cure at any time, then Landlord's right to pursue remedies for default under this Lease shell be reinstated,
Section 30,10 Tenant Covenants, Tenant hereby covenants and agrees that each Leasehold Mortgage
shall contain, or shall be deemed to contain, a provision obligating the holder of such Leasehold Mortgage to release
insurance proceeds arid in the event of condemnation or conveyance in lieu thereof. to release condemnation
proceeds, to pay for repairs, rebuilding, replacement and/or restoration (or to reimburse Tenant for amounts
expended by Tenant for liepairs, rebuilding, replacement and/or restoration), subject to customary lender
disbursement provisions as may be provided for in the applicable Leasehold Mortgage.
Leasehold Mortgagee shall be a third. party beneficiary of the provisions of this Article, XXX.
ARTICLE. XXXI NAlviliNG RIGHTS
Tenant shall have the sole naming rights to the Project. Notwithstanding, the f oregoing, except asexpressly
sot forth in this Lease, Tenant. shall not, under any circumstances, be allowed to use or incorporate any intellectual
property owned by Landlordi its Affiliates, successors or assigns, including, without limitation, the names "Bayside
Marketplace", "Bayside Center". "General Growth Properties, lne,". "GGP" or any derivations of any of the
foregoing without Landlord's prior written consent, which may be withheld in Landlord's sole and absolute
discretion, nor shall the Project he sponsored by any direct competitor of Landlord or any of its Affiliates,
successors or assigns who, in either case, are in the business of developing, owning or operating regional shopping
centers as their primary business. Any consideration received by Tenant for signage or naming rights shall be
55
considered as Gross Sales for purposes of computing Percentage Rent. Tenant shall have sole rights to all
intellectual property relating to the Project and the Tenant's Improvements, Landlord agrees that, except as
expressly set forth in this Lease, Landlord shall not, under any circumstances, be allowed to use or lacer"porate any
intellectual properly owned by Tenant, its Affiliates, successors or assigns, 'including without Ihnitation, the name
"Skyifigh Miami" (or any subsequent name of the Project), without Tenant's prior written consent, which may be
withheld in Tenant's sole and absolute discretion,
ARTICLE XXXII -., PATRIOT ACT AND SIMILAR REQUIREMENTS
`T'enant agrees to provide Landlord with any and all documentation and information necessary for Landlord
to comply with its obligations under any and all laws relating to terroriser or money laundering, including, without
limitation, Executive Order No, 13224 on Terrorist Financing (effective September 24, 2001) and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 02001
(Public I..,aw 107 56).
ARTiCI.,L, XXXIII
M.
2013 U.S. DOLLARS
As used throughout this Lease, the term "2013 U.S. Dollars" shell be computed by multiplying the dollar
amount to be adjusted. by a fraction, the numerator- of which Is the Current Index Number and the denominator of
which is the Base Index Number, As used herein, the term "Bette Index Number" shall mean the level of the Index
last published for 2013; the "Current Index Number" shall be the level of the Index most recently published prior to
the adjustment in question; and the "Index" shall be the Consumer Price Index Per All Urban Consumers, published
by the Bureau. of Labor Statistics of the United States Department of Labor for C.I.S. City Average, All Items (1982..
84 equals 100) or any successor index thereto to hereinafter provided, If publication of the index is discontinued, or
if the basis of calculating the Index is materially changed, then Landlord shall substitute for the Index comparable
statistics as computed by an agency of the United States government, or if none, by a substantial and responsible
periodical or publication of recognized authority most. closely 'approximating the result that would have been
achieved by the Index.
ARTICLE XXXIV TERMINATION OF CITY RIGHTS CONTINGENCY
Tenant acknowledges that Prime Landlord presently retains certain rights with respect to portions of the
Demised Premises, including, without limitation, the right to maintain dock master facilities, parking for the Marina
and dockage for charter boats alongside portions of the Demised Premises (collectively, the "City Rights"). In
addition, Tenant must enter into a separate lease or other occupancy arrangement with Prime Landlord on such
terms as Tenant and Prime Landlord may agree for the relocation of the Marina office to within the Tower building.
This Lease, in its entirety, is subject to the termination or modification (or waiver, wherever the term "modification
is used in this Article) of the City Rights, and to entering into such separate lease or other occupancy arrangement in
writing, Notwithstanding the foregoing, Tenant acknowledges that (a) Prime Landlord has no obligation whatsoever
to grant the termination or modification of the City Rights or enter into such lease or other occupancy agreement,
and (b) Landlord makes no warranty or representation whatsoever as to whether Prime Landlord will grant the
termination or modification of the City Rights or enter irr.t'o such lease or other occupancy agreement. In the event
that (i) Prime Landlord. shall not grant the termination or modification, as applicable, of the City Rights or enter into
such lease or other occupancy agreement or any of the Prime Landlord Estoppel, the Recognition Agreement or the
Prime Landlord Approval as contemplated in Article XXXVI below or (ii) Bayfront Park Owner has not entered into
the I3ayfr'ont Park. Parking Garage Lease or the Easement Confirmation as contemplated in Article XXXVI below,
by the Initial Contingency Date, then the Initial Contingency Date shall automatically be extended for an additional
reasonable period of time to satisfy any of the aforementioned outstanding contingencies, but in no event later than
the Outside Contingency Date, so long as Tenant continues to use diligent, good faith efforts to satisfy such
outstanding contingencies on or before the Outside Contingency Date. If any of the aforementioned contingencies
remains outstanding as of the Outside Contingency Date, then either Landlord or Tenant may terminate this Lease
by notice to the other, in writing, at any time thereafter and prior to the satisfaction of all such contingencies,
whereupon the parties shall have no further liability to each other under this Lease, except pursuant to those
provisions that explicitly survive any termination of this Lease.
ARTICLE XXXV .,,. LANDLORD MORTGAGE LENDER APPROVAL CONTINGENCY
56
Landlord and Tenant, acknowledge that La'ndlord's interest in the 13ayside Property is not, as of the
Execution Date, encumbered by financing. However, Landlord intends to reflna.nce the i:3ayside Property and as
such, Tenant agrees that if required by Landlord's mortgagee, end if and only to the extent Landlord's mortgagee
holds a first lien position on Landlord 's interest in the F3ayslde Property and i.s an institutional Lender, Tenant agrees
to subordinate its Leasehold interest (which subordination sha11 not be automatic but shall require a separate
document) and enter into a subordination, non-disturbance/recognition and attainment agreement reasonably
acceptable to Tenant, Tenant's Leasehold Mortgagee and Landlord's mortgagee; it being understood and agreed that
f ,andlord's mortgagee shall not be entitled to exercise any of the rights of Landlord under this Lease until such time
as Landlord's mortgagee, or any of its successors or assigns, as applicable, has acquired Landlord ' s interest: under
this Lease. All costs and expenses incurred by Landlord's lender in connection with this Article X;XV shall be the
responsibility of landlord. Anything in this Lease to the contrary notwithstanding, no input or approval by
Landlords mortgagee shall constitute grounds for mr extension or the time frames for approval of any matter that
Landlord is permitted to approve, nor shall Landlord's mortgagee's failure to Approve In and of itself constitute
reasonable grounds for Landlord to disapprove any matter.
ARTICLE XXXV1-- PRIME LANDLORD APPROVAL CONTINGENCY
This Lease, in its entirety, is subject to (a) Prime Landlord's delivery of an estoppel certificate with respect
to the Retail Parcel Lease, in form and content reasonably satisfactory to Landlord and Tenant ((he "Prime Landlord
Estoppel'"); (b) Prime Landlord's delivery of a Recognition Agr eement reasonably satisfactory to Tenant and
Landlord; (e) the approval of Prime Landlord, which approval shall include, without limitation, confirmation by
Prime Landlord that neither the execution of this Lease, nor the development, construction or operation of the
Project shall have any impact whatsoever on the liabilities or obligations of Landlord under the Retail Parcel Lease,
either economically or otherwise (the "Prime Landlord Approval"); (ci) Bayfront Park Owner's entry into the
13ayfront Park. Parking Garage Lease with Tenant; and (e) Tenant's receipt of confirmation from the Bayfront Park
Owner or the Title Company that Tenant has unrestricted access for all vehicles over the access road at the rear of
the Shopping Center that provides vehicular arcwess to the Demised Premises (the "Easement Confirmation"), The
Prime Landlord Approval shall be In writing and in form and content reasonably acceptable to each of Landlord and
Tenant and shall include, without limitation, approval by Primo Landlord of any provisions of this Lease that
conflict with the provisions of the Prime Lease, together with confirmation that the exorcise: by Tenant of rights
granted by any such conflicting provisions of this Lease shall not constitute a default or breech of the Prime Lease.
Tenant hereby agrees that Tenant shall promptly deliver a copy of this 'Lease to Prime Landlord and shall use
commercially reasonable efforts to obtain the Prime Landlord Approval, the Prime Landlord Estoppel, the
Recognition Agreement, the Bayfront Park Parking Garage Lease and the Easement Confirmation; provided,
however, that all costs and expenses incurred by Prime Landlord and the Bayhont Park Owner in connection
therewith shall be deemed Expenses as and to the extent provided for in Section 3,04, above, and Tenant shall be
liable for same in accordance with the terms of Section 3,01, Tenant acknowledges that (I) Prime Landlord has no
obligation whatsoever to grant its approval to this Lease, as such approval is within the sole and absolute discretion
of Prime Landlord, (ii) Landlord makes no warranty or representation whatsoever as to whether Prime Landlord will
grant the Prime Landlord Approval or otherwise provide the Prime Landlord Estoppel, the Recognition Agreement
or whether the l3ayfi'ont Park Owner will enter into the Boyfront Park Parking Garage Lease and the Easement
Confirmation. and (iii) in the event that Prime Landlord conditions its approval on the amendment of certain
provisions of this Lease, Tenant shall not unreasonably withhold, delay or condition its consent to such amendments
(a request for a change in the economic terms, including a request for payment or compensation, shall be deemed a
reasonable basis for Tenant to withhold Its consent). In the event that Prime Landlord has not delivered the Prime
Landlord Estoppel, the Recognition Agreement, the Prime Landlord Approval. or the Bayfront Park Owner has not
delivered the 'Bayfront Park Parking Garage Lease and the 'Easement Confirmation, by the Initial Contingency Date
(or the Outside Contingency Date, if applicable, as provided in Article XXXIV above), then either Landlord or
Tomtit may terminate this Lease, by notice to the other, in writing, at any time thereafter prior to receipt of the
outstanding document(s), whereupon the parties shall have no further' liability to each other under this Lease, except
pursuant to those provisions that explicitly survive any termination of this Lease. Notwithstanding the foregoing or
anything to the contrary set forth in this Lease, if the 13ayfiont Park Owner fails to enter into the Bayli'ont Park
Parking Garage Lease but has entered into the Easement Confirmation and Prima Landlord has otherwise provided
the Prime Landlord Estoppel, the Recognition Agreement and the Prime Landlord Approval by the Initial
Contingency Date (or the Outside Contingency Date, if applicable, as provided in Article XXXEV above), then
Landlord and Tenant agree to forego their respective rights to i:etnnianate this Lease as provided in this Article
57
XXXVI, as well as Article XXXIV, and. shall use good faith efforts to agree upon the terms ofa parking garage
lease providing for the expansion of the Parking Facilities as necessary to accommodate any additional parking
required by Prime Landlord in connection with the Project, If Landlord and Tenant are unable to reach agreement in
their sole and absolute discretion, on the terms ()li the aibrementioned parking garage lease on or before the later to
occur of (A) date that sixty (60) days following the Initial Contingency Date or (3:3) if applicable, as provided in
Article XXXIV above, sixty (60) days following the Outside Contingency Date, then either Landlord or Tenant may
terminate this Lease by notice to the other in writing, at any time thereafter, whereupon the parties shall have no
further liability to each other under this Lease, except pursuant to those provisions that explicitly survive any
termination of Mis Lease.
ARTICLE XXXVTI
se
GOVERNMENTAL APPROVALS AND FINANCING CONTINGENCY
Landlord and Tenant agree that this Lease is contingent upon Tenant having obtained all applicable
Governmental Approvals (excluding those Governmental Approvals specifically provided for in Articles XXXIV
and XXXVI above) and arranged for Project Financing acceptable to Tenant in its sole discretion (and otherwise
acceptable to Landlord. as provided in this Lease) by the Scheduled Construction Commencement Date. If Tenant is
unable to satisfy the foregoing contingencies by or before the Scheduled Construction Commencement Date, then
either Landlord or Tenant may terminate this Lease, by notice to the other in writing, at any time following the
Scheduled Construction Commencement Date and prior to satisihcti'on of the fbregoing contingencies, whereupon
the parties shall have no further liability to each other under this Lease, except pursuant' to those provisions that
explicitly survive any termination of this lease.
ARTICLE XXXViII REASONABLENESS AND GOOD FAITH'
Wherever in this Lease consent or approval of a parry is required, except as and to the extent expressly
provided in this Lease that consent or approval may be in the sole and absolute discretion of a party (or words of
similar import), such consent or approval will not be unreasonably withheld, delayed or conditioned. In all matt'er's
pertaining to this Lease, the parties shall have an obligation of good Can and fair dealing, Whenever either party's
reasonable approval under this Lease is requi red, if approval is denied, the denial shall specify with specificity the
reasons for denial and if the other party disputes the denial as being unreasonable, the requesting party shall not be
deemed to be in default under this Lease until the matter is conclusively resolved in the denying party's favor by
non-appealable dispute resolution procedure as provided in this Lease, cowl: order or judgment'. This provision shall
survive the expiration or sooner termination of this Lease.
ARTICLE XXXIX -- EQUIPMENT LIENS
Landlord shall have no rights in respect of any FF&E, and Landlord hereby waives any statutory, landlord's
or other liens on FPx.01,. From time to time promptly upon request, Landlord shall confirm to Tenant or any
subtenant (at any level., including concessionaires and licensees whenever the term "subtenan't'" is used in this
Article) the waiver contained in this Article as to particular FF&E, If at any time or from time' to time Tenant or any
such subtenant desires to enter into or grant any equipment lion on Its FF&E, then upon Tenant ' s request Landlord
shall enter Into such customary documentation, reasonably satisfactory to Landlord, regarding the financed FMB as
Tenant reasonably requests, providing for matters such as: (a) waiver of any right to take possession of such.
financed PF&d upon an Event of Default; (b) waiver or any other right, title, or interest in the financed EF&E; and,
(c) agreements to enable the holder of such equipment lien to repossess such financed FF&E if such holder exercises
remedies under its equipment lien. in no event shall Landlord permit the holder of any equipment 'lien to sell the
financed IP F&E from the Demised .Premises, Any rights of access granted by Landlord shall be for the limited
purpose of removing the financed "FF&E"; it being understood and agreed that all damage to the Demised Premises
as a result of such removal shall be repaired by Tenant or any such subtenant or the holder of such equipment lien.
"FF&E' means all movable furniture, furnishings, equipment:, and personal property of Tenant, including the
systems and equipment in connection with the flying theater or any successor operation, or any subtenant that may
be removed without material damage to the Demised Premises and without adversely affecting: (i) the structural
integrity of the Demised Premises; (if) any electr ical, plumbing, mechanical, or other system in the Demised
Premises; (iii) the present or future operation of any such electrical, plumbing, mechanical or other system; or (iv)
the present or (inure; provision of any utility service to the Demised Premises. FF&I includes items such as factory
equipment, furniture, movable equipment, telephone, telecommunications and facsimile transmission equipment,
point of sale equipment, televisions, radios, network racks, and computer systems and peripherals.
[SIGNATURES FOLLOW ON NEXT PAGE]
59
IN WETNESS WHEREOF, the parties hereto have duly executed and delivered this Lease as of the day and
year first above written,
TENANT:
SKYFIiGI MIAMI, LLC,
a Florida limited liability company
By;
Printed Name;
Title:
WITNESSES:
Signature
Printed Name
Signature
Printed Name
LANDLORD:
TIAYSIDE MARKETPLACE, LLC,
a Delaware lim^itcd2 liabiI y company
Marvin If,

Ce
Executive

President
Signature
Printed Name
Sign to e
Printed Nam
IN WITNESS WIIEREOE. the parties hereto rave duly executed arid delivered this Lease as of the day and
year first above written.
Printed Name:
Title:
WITNBSSE
Signature
AR NOLD A. BROWN
TENANT:
a Florida Iirnitec

warty
Printed Name
LNNDLORD:
BAYSME MARKETPLACE, LLC,
a Delaware limited liability company
By:_
Marvin 3, Levine
Executive Vice President
WITNESSES:
Signature
Printed Name
Signature
Printed Name
kMilUEA.21
SITE PLAN
!See attached)
Rxbibit A

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EXHIBIT "B"
PRELIMINARY SKETCH OF TENANT'S IMPROVEMENTS
[See attached'
Exhibit B
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A;lX ` II3I k{ "C"
LEGAL DESCRIPTION OF DEMISED PREMISES
[Tu. be attached upon approval by Landlord]
Exhibit C
lrl: ';i11131tT
PLAN SUBMITTALS
Site Development Plan Package
Survey sealed and signed by licensed surveyor,
Preliminary Civil Engineering Design plans including such things as:
Overall Site Plan including context of adjacent Shopping Center and Marina, Ali Tenant work
must be clearly defined.
Demolition Plan(s).
Utility Platt(s) including identification (gait easements whether existing, proposed and any
relocations.
0
Grading Plan showing topography in minimum I toot increments.
Overall section indicating extent of sulagrede construction for levels below grade,
Overall section through site of proposed Prcaiect showing the surrounding context of Hard i itock and
Shopping Center buildings.
Area Circulation Study with respect to the impact of the development, construction and operation of the
Project, including such things as:
u

Pedestr ian and vehicular traffic both within the Shopping Center and upon surrounding st r eets.
Truck access, maneuvering and turning movement including identification of semi-trailer truck
and trash removal truck route from highway access point to loading dock and reverse route.
Fire truck access, maneuvering and turning movements from highway access point to Project and
reverse route.
Garage circulation plan Indicating pedestrian and vehicular traffic circulation (including valet
circulation and management) within and around the Below Tower Parking.
Construction Staging Plans, the identification of construction phasing, logistics and staging for the
construction of temporary and/or permanent Tenant Improvements including such things as:
Plan indicating all lay down or construction staging areas proposed on Dodge Island,
Plan indicating the number, placement and dimension(s) o fbarges for any staging and/or lay down
areas.
Plan indicating location and overall dimension(s) of concrete batch plant and underwater pipeline
delivery system or other doll-my system, serving batch plant,
Construction worker transport (water taxi) circulation plan indicating routes of taxi service and
proposed hours of operation,
Preliminary Landscape/Harclscape Design Plan for the 'Project with materials narrative,
Site Lighting Design, Lighting Analysis and Photometrics,
Oeotecliaaical reports.
Kiosk Plan indicating overall dimensions and 3 dimensional rendering illustrating scale of the kiosks.
Exhibit D
Preliminary Signage Design for Project (which will be a separate submittal)
Design Development Plans
Coordinated plans and specifications illustrating the size, scope and character of the entire Project and
the kinds of materials, structure and systems including such. things as:
Floor Plans of each level (which may be shell Floor Plans) including such things as identification of
a passageway through the Demised Premises for vehicular and pedestrian access to the Marina, the
Parking Garage and other portions of the Shopping Center.
Building Sections
a

Building Elevations
Typical Exterior Wall Section(s) and Details
Typical Canopy Section(s) and Details
m

Renderings
Reflections and shading (shadows) study identifying the impact of the Tenant's Improvements on
the Shopping Center in terms of reflection of building materials and shading (shadows) created by
Project,
Exterior 'Building Lighting Design
Exterior Building Signage (which will be a separate submittal)
Sustainable Design Features Systems Narrative (if applicable)
Wind Tunnel Test report(s) determining the effects of the Tower and podium mass on the Shopping
Center buildings (which may be a separate submittal),
Exhibit D
M)eETI'AN,pigL02PRMANCEQUATAIgY
[See attached]
Exhibit B
z' ^'r
I N.. A> ,f Qc n Ar
c.&cauA?A
SKYfIICH MIAMI
'T'INS PAYMENT AND PERFORMANCE GUARANTY (this "Guaranty") is made as of the

day of
2013, by JEFFREY 1,, .131 RKOWI'II having an address do Berkowitz Development Group, Inc
2665 South I3ayshore Drive, Suite 1200, Coconut Grove, Florida 331.33 ("Guarantor") in favor of C3AYSIDE
MARKETPLACE, LLC, a Delaware limited liability company, having an address elo General Growth Properties,
Inc 110 North Wacker Drive, Chicago, Illinois 60606, Attention: Chief Legal Officer ("Landlord"),
RECITALS:
A,

Landlord and Skyl{ igh Miami, LLC, a Delaware limited liability company ("Tenant"), have
entered into that certain Sub-Ground Lease dated ^,. 2013 (as amended from time to time, collectively, the
"Lease") for certain premises located at the property commonly known as l3eyside Marketplace in Miami, Florida
and more filly described in the Lean (the "Demised Premises").
13, Te'nant intends to construct on the Demised Premises a tower structure (the "Tower") and related
improvements (collectively, the "Tenant's Improvements") for the operation of a retail, restaurant, entertainment
and flying theater tourist attraction (the "Project") in accordance with the terms of the Lease.
C, Pursuant to the terms of the Lease, Tenant is obligated, among other things, to (i) complete, at
Tenant's sole cost and expense, the initial Construction of the Tenant's Improvements, subject to the satisfaction of
certain contingencies as set forth in the Lease, by the Scheduled Construction Completion 'Date (as it may be
extended in accordance with the Lease) (the "Construction Obligation") and (ii) demolish and remove the Tenant's
Improvements (including, without limitation, the Tower) from the Demised Premises under certain circumstances as
set forth in Sections 3.03(i) (Demolition) and 27.03 ('t'ermination Rights) (tithe Lease (the "Demolition Obligation"
and together with the Construction Obligation, collectively, the "Lease Obligations"),
D.

Guar antor mars a direct or indirect ownership interest in Tenant and will benefit from the Project
contemplated by the Lease.
C.

A_ s a material inducement and condition to Landlord entering into the Lease with Tenant,
Guarantor agreed to enter into this Guaranty for the benefit of Landlord on the terms and conditions stilted herein,
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby duly acknowledged, Guarantor agrees as follows:
I,

Recitals, Each and all of the foregoing recitals are true and correct and are incorporated herein by
reference.
2. CTajiitalized,Terrg. All initially capitalized terms utilized herein, unless specifically otherwise
defined herein, shall have the meanings assigned to such terms in the Lease,
3. ;naafi antepfl Obla^t
,
,i, Guarantor hereby absolutely, irrevocably and unconditionally guarantees
(as primary obligor and not merely as surety) to Landlord, its successors and assigns, the full and prompt payment
when due and performance of the Guaranteed Obligations (as hereinafter defined). As used herein, "Guaranteed
Obligations" shall mean:
(a) the completion of', and payment in full for, the Lease Obligation s, to the extent required
under the Lease, free from any and all liens or claims of any and all persons or entities performing labor thereon or
furnishing materials therefor, or both; and
(b) all costs, expenses and fires, including but not limited to court costs and reasonable
attorneys' f ees, arising in connection with, or as a consequence of the nonpayment, non-performance or non-
observance of the Lease Obligations by Tenant or Guarantor as described in item (a) of this Section 3.
b4,

Big
ht to..,Jcaccec1C7ittiet:ily. ainst , G, rltlinatgt; Landlord may, at its option, proceed against
Guarantor in the first instance, without first: resorting Co any other security held by it or to any What' remedies Mat
Landlord may have against Tenant under' the Lease, at the same or different times, as it may deem advisable in its
sole and absolute discretion; and the liability of the Guarantor hereunder shall be in no way affected or impaired by
an acceptance by Landlord of any security for, or other guarantors upon, any indebtedness, liability or obligation of
Guarantor to Landlord hereunder, or by any failure, delay, neglect or omission by Landlord to realize upon or
protect any such indebtedness, liability or obligation or any collateral or security therefor,
5. igl)t,.. ka_ S, l 44irp l erfirpttu.1 . Landlord shall have, and may exercise, in addition to all other
rights, privileges, or remedies available to it under this Guaranty and by law, the specific rights and remedies to sue
for and obtain specific performance by the Guarantor of the Guarantor's covenants and agreements set forth herein,
all at the cost and expense of the Guarantor.
d. Waivers b., ,Sitiaraattgi;, Guarantor hereby waives: (a) notice of acceptance of this Guaranty by
Landlord or of the reliance of Landlord. upon this Guaranty; (b) demand. of payment from any person indebted in any
manner for any of the liabilities or obligations hereby guaranteed; (c) any defense arising by virtue of(i) the lack of
authority, death, or disability of Guarantor or any other party, or revocation hereof by any other party or (ii) the
failure of Landlord l.0 file or enforce a claim of any kind; (d) notice of" l"enant's nonpayment, nonperi%'mance or
nonobservance of the Lease Obligations; and (e) any defense based upon an election of remedies by l,andlord,
1. ,t wcr,, is end . kpenses of f tyforc ltap^ 1. Guarantor agrees to pay any and all costs and expenses
incur red by Landlord in enforcing any rights or remedies under this Guaranty, including, without limitation, all
reasonable foes and expenses of Landlord's attorneys (including paralegal fees), as well as the reasonable fees and
expenses of any appeals, regardless of whether any specific legal proceedings should be commenced or initiated,
8. l ,,, 1!aivat; No failure on the part of Landlord to pursue any remedy hereunder or under the
Lease, shall constitute a waiver on its part of the right to pursue said remedy, nor shall such failure give rise to an
estoppel against Landlord, nor excuse the Guarantor from its obligations hereunder. No extension, modification,
amendment, or permitted assignment or other transfer of the Lease shall discharge the Guarantor from any
obligation herein contained in this Guaranty, in whole or in part, except to the extent expressly provided by
Landlord in writing.
9. (i hni?'tylifteptl ni:. Guarantor agrees that its obligations hereunder are independent of and in
addition to the undertakings of Tenant under the Lease and any other obligations of Guarantor to Landlord. A
separate action may be brought to enforce the provisions hereof against Guarantor.
10. titaro abut), Notwithstanding anything to the contrary contained herein, Guarantor hereby
irrevocably waives all rights it may have at law or in equity (including, without limitation, any law subrogat:ing
Guarantor to the rights of Landlord) to seek contribution, indenrnifitat.ion, or any other form of reinibursement from
Tenant or any other person now or hereafter primarily or secondarily liable for any obligations of Guarantor to
Landlord, for any payment or disbursement made by Guarantor under or in connection with this Guaranty or
otherwise while the Lease Obligations remain outstanding. If any amount shall be paid to Guarantor on account of
such subrogation rights at any time, such amount shall be held in trust for the benefit of Landlord and shall forthwith
be paid to Landlord to be credited and applied to any outstanding obligations hereunder, in such order as Landlord,
in its sole and absolute discretion, shall determine. Guarantor waives the benefit of; and any right to participate in,
any security now or hereafter held by Landlord from Tenant.
I I.

it.r yese-ntstJ. rrr , hd Warrarati s. Guarantor hereby represents and warrants the following:
(a)

V;a, lirll(y,
(i) 'tires Guaranty constitutes the legal, valid and binding obligation of Guarantor,
enforceable against him in accordance with its terms. The execution, delivery and performance of this Guaranty by
Guarantor does not result in a breach or constitute a default (with due notice and/or lapse of time) under any
agreement or instrument to which Guarantor is a party.
2
(ii) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution, delivery and performance by
Guarantor of this Guaranty.
(b) Q(;l1t3t 'Jilbfillft1,Q,fi, All other reports, papers and written data and information given to
Landlord by Guarantor with respect to Guarantor are accurate and correct in all material respects and complete
insofar as completeness may be necessary to give Landlord a true and accurate knowledge of the subject matter
thereof.
(c} l.,itigr . n. There is not now pending against or affecting Guarantor, nor to the
knowledge of Guarantor, is there threatened, any action, snit or proceeding at law or in equity or by or before any
administrative agency or arbitrator of any kind or before any governmental department, commission, board, bureau,
agency or instrumentality (domestic or foreign) which, if adversely determined, would have a material adverse effect
on the financial condition or assets of Guarantor or would otherwise impair his ability to perform his obligations
under this Guaranty.
(d)

1Ij< towiedgA. Guarantor does not know of any facts that would, in any manner,
indicate that the representations and warranties contained in this Section I 1 are not true and complete in all material
respects,
(a) rlar;ant'Qr,; ipanciaj,, litfiternenls. The most recent financial statements of Guarantor that
were previously provided to Landlord were true, correct and complete in all material respects as of the data thereof,
and all financial statements of Guarantor subsequently provided to Landlord will be true, correct and complete in all
material respects as of the date of such subsequent financial statements.
1 2 , An r1.cijnentt,s,,. rc. No amendment or waiver of any provision of this Guaranty nor consent to any
departure by Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by
Landlord, and then such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which such waiver or consent has been given.
13, ;ilZ uca,, t.2cltl d tit lL)tlsejgst',runsen , All notices, offers, acceptances, rejections, consents,
requests arid other communications hereunder shall be in writing and shall be deemed to have been given; (a) when
delivered in person; or (b) on receipt after being sent by express mail or delivery service guaranteeing overnight
delivery, in each case addressed to the intended recipient at their respective addresses set forth on the first page of
this Guaranty.
I4, .leans In f at kt'Gtl7, 'Cy. in the event of receivership, bankruptcy, reorganization, arrangement,
debtor' s relief, or other insolvency proceedings involving Tenant, as debtor, Landlord shall have the right to prove
its claim in ally such proceeding so as to establish, its rights hereunder and receive directly from the receiver, trustee
or other court custodian dividends and payments which would otherwise be payable to Guarantor. Guarantor hereby
assigns such dividends and payments to Landlord.
15,clitiontl(4afpypl,. In the event that Guarantor shall now or hereafter furnish a letter of credit,
cash or other collateral to Landlord as additional security for Guarantor's obligations to Landlord hereunder, such
additional collateral shall not diminish, limit or otherwise modify Guarantor's liability to Landlord hereunder. Any
such letter of credit, cash or other collateral, to the extent remaining, shall be released to the Guarantor at such time
as all of Guarantor's obligations hereunder have been satisfied in full.
16. Lert;;t Ar. ra, Guarantor expressly agrees that Landlord may, in its sole and absolute discretion,
without notice to or further consent of Guarantor and without waiving, releasing, affecting or impairing the
obligations and liabilities of Guarantor hereunder, exercise any rights to which Landlord is entitled in connection
with the Lease, including without limitation, the bellowing;
(a)

'Waive compliance by Tenant with any of the team of the Lease;


7,
(b) Modify, amend or supplement any provisions of the Lease by agreement with. Tenant;
(c) Effect any release, compromise or settlement in connection with the Lease;
(ca)

Assign or otherwise transfer all or any portion of Landlord's interest in the Lease, this
Guaranty or any interest therein or herein; and
(e) Consent to any assignment, sublease, conveyance or other transfer of all or any portion of
Tenant's interest in the Lease or the Demised Premises, if and to the extent such consent is required pursuant to the
terms of the Lease,

17,

]yt ,iscllanent^,.
(a) This Guaranty shall be governed by and construed in accordance with the laws of the
State of Florida without regard to principles of conflicts of law, and venue shall be exclusi vely in the applicable
court(s) sitting in Miami-Dade County, Florida.
(b) Time is of the essence hereof with respect to the Guaranteed Obligations hereunder.
(c) If any term, provision, covenant or condition hereof or any application thereof should be
head by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and
conditions hereof, and all applications thereof not held invalid, void or unenforceable shall continue in full force and
effect and shall in no way be affected, impaired or invalidated thereby,
(cl) The title of this Guaranty and the headings of the paragraphs of this Guaranty are for
convenience of reference only, and are not to be considered a part of the substance of this Guaranty, and shall not
limit or expand or otherwise affect any of the terms hereof
(e) This Guaranty creates a. continuing obligation and the obligation of Guarantor hereunder
shall be binding upon Guarantor and its successors, heirs, representatives and assigns, and shall inure to the benefit
of and be enforceable by Landlord, its parents, subsidiaries and other affiliates, successors and assigns.
(0

This Guaranty is solely for the benefit of Landlord, its successors and assigns and is not
intended to, nor shall it be deemed to, be made for the benefit ofany third party.
(g) This Guaranty may be executed in counterparts, all of which taken together shall
constitute a single document,
(h) GUARANTOR AND LANDLORD HL'RL:L3Y AGREE NOT TO ELECT A TRIAL BY
JURY OP' ANY ISSUE RIAI3LI OF I IGUT BY JURY, AND 'WAIVE ANY RICH"Ir '1"O TRIAL BY JURY
1UL..LV TO THE EXTENT I . HAT ANY SU(J'l RIGHT SHALL, NOW OR HEREAFTER LXIST WITH REGARD
TO THIS GUARANTY, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION MUSING IN
CONNECTION THEREWITH, THIS WACVER OF RIGHT "1"O TRIIAI.. 13Y JURY IS GIVEN KNOWLINGLY
AND VOLUNTARILY BY EACH OF GUARANTOR AND LANDLORD, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE I:.UGIIT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE, LANDLORD IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OP TILLS WAIVER 13Y
GUARANTOR.

,
118i. Effh Lvene, . This Guaranty shall remain effective until the earlier to occur of (a) the date of any
termination of the Lease prior to commencement of construction of the Project, (b) the date that the Construction
Obligation is satisfied in accordance with the terms of the Lease or (c) the date that the Demolition Obligation is
satisfied or waived in accordance with the terms of the Lease, end shall thereafter expire. Promptly after request of
Guarantor following the expiration of this Guaranty, Landlord shall confirm same in a written document delivered to
Guarantor.
4
IN WITNESS WHEREOF, Guarantor his duly executed this Guaranty as of the day and year first above
wriaen.
GUARANTOR:
,flsFF.RF\' L. IiI RKOW.ITZ
5
EXl'lii.' 11T "F"
Peterson's Miami Beach Harley-Davidson (Space12S0) - .Restriction on the operation of Harley-
Davidson merchandise store exclusively selling Harley-Davidson name or logo providing the following products: (i)
apparel; (II) clothing; (iii) souvenirs; (iv) collectibles; . (v) housewares; or (vi) as an incidental and secondary use,
other Harley-Davidson logo items typically sold in tenant's other retail stores, and similar logo'd items,
i.?ayside Cigars (Space 1185) .-. Restriction on the operation of a business for a primary use for the sale of
cigars and other tobacco related items.
Starbucks Cof f ee (Space 1270) -- Restriction on any other occupant installing storefront or prominent
interior signage which advertises the sale of gourmet branded coffee in itspremises,
1
Exhibit a
x. CkI B l T,'j 1 '^Y ..I..I
t,ANDL!OIt, >

)'Vl. _ .D
M,. ) SC!
, ENAN' NA
SIJ13GROUND LEASE NON- DISTURBANCE AGREEMENT
THIS AGREEMENT, made as of the

day of

20_ , by and between the Beyside


eta_
IVlarketplace, LLC, a Delaware limited liability company, whose address is
("Landlord")

and

having

its

principal

office

at
. ("Space Lessee;"),
A. City of Miami is lessor under that certain lease (the "Ground Lease") with Landlord, as lessee, dated

_ _ , 201_ , which demises certain real property (the "Premises") commonly known as I3ayside,
located in Miami, Florida, A short form of the Oround Lease was recorded in Book _ at Page

_ of the
Public Records of Mimed-Dade County, Florida,
B. Landlord sub-ground leased a part of its lessee's interest under the Ground Lease to Skylligh Miami, LLC,
a Florida limited liability company ("Tenant") pursuant to that certain SubG.3rouncl Lease (the " Sub-Ground Lease")
dated
2013, which. portion is more particularly described on Exhibit A attached hereto and made a
part hereof (collectively, the "SkyHigh Phase"). A short form of the Sub-Ground Lease was recorded in Book
aat Page _ _ of the Public Records of Nliami'Dade County, Florida.
C. Pursuant to a Lease dated as of_ _ _ 20_ , by and between Tenant and Space Lesser (the "Space
Lease"), Tenant leased to Space Lessee a portion of the SkyHigh Phase, which portion is designated as the
"Demised Premises" on Exhibit B annexed hereto and made a paint: hereof; for an initial term of , years
(commencing as provided in the Space Lease), withoptions to renew thereafter foryears each.'
NOW, TI EREFOR:E, it is agreed as follows:
1. For so long as Space Lessee is not in default of any of its obligations under the Space Lease
beyond any applicable notice and cure periods as would permit Tenant to re-enter the Demised Premises and/or
terminate the Space Lease, Landlord shall not disturb or deprive Space Lessee in or of its possession or its rights to
possession of the Demised Premises or ofatty right or privilege granted to or inuring to the benefit oC Space Lessee
undo): the Space Lease, nor will Landlord bring any action against Space Lessee to accomplish same.
2. If the Sub-Ground Lease terminates for any reason other than (x) on the expiration date of the
Ground Lease on November 30, 2061 (or November 30, 2076, if the renewal option contained in the Ground Lease
is timely and properly exercised) or (y) after a casualty or condemnation where the improvements are not
reconstructed. and provided Space Lessee attorns to Landlord, the Space Lease shall continue in full force and
effect, notwithstanding such termination of' the Sub-Ground Lease, as a direct space lease between Landlord. and
Space Lessee for the remainder of the term of the Space Lease, without the necessity of executing a now space lease,
and on the same t:ertns and conditions as are in effect under the Space Lease immediately preceding the termination
of the Sub-Ground Lease.
3. Any notices, consents, approvals, submissions, demands or other communications (hereinafter
collectively referred to as 'Notice") given under this Agreement shall be in writing. Unless otherwise required by
law or governmental regulation, Notices shall be deemed given if sent by registered or certified mail, return receipt
requested, postage prepaid (a) to Landlord, at the address of Landlord as hereinabove set Forth or such other address
as Landlord may designate by notice to the other parties hereto, (b) to Space Lessee, then in duplicate under separate
cover,

one

copy

to

_ and

one

copy

to
or such other addresses or persons as Space Lessee
_ ..._ ._ -
may desi gnate by Notice to the other parties hereto, Delivery by nationally recognized overnight courier service or
by hand delivery, with all charges prepaid, may be substituted for registered or certified mail. All Notices shall be
deemed served or given on the date received (as evidenced by the return receipt or courier's receipt for delivery) or
the date delivery was refused or unavailable due to an unnoticed change of address.
Exhibit C
No modification, amendment, waiver or release of any provision of this Agreement or of any right,
obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in
writing and duly executed by the party against whom the same is sought to be asserted,
5.

This Agreement shall run with the Demised Premises and be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, legal representatives, successors, assigns and subleases.
6.

Either party may record a copy of this instrunicnt among the Public Records of Miami-Dade
County, Florida, at its cost.
Balance of page is intentionally blank
Exhibit C
-N WITNESS WHEREOF, Landlord has caused this Sub-Ground Lease Non-Disturbance Agreement
between Landlord and

to be executed under seal the data first above written.


WITNESSES:
Print Nome:
Print Name:
STATE

)
)Sl/
COONTY0F>
The Foregoing instrument was acknowledged before m* this

day or

20~~
by
as

Bayside Marketplace, LLC, in the capacity


aOreotRfed such person is personally known to me.
Sign Name:_
BAYSIDE M&KXEDPLAC'D,oDelaware limited
liability company
[SEAL)
Print . m
~
n
Notary Public
My Commission Expires

Serial No, (none


[NOTARIAL SEAL)
IN \VITNESS WHEREOF, Space Lessee has caused this Sub-Ground Lease Non-Disturbance Agreement
between to be executed under seal the date First above written,
WITNESSES :
By:
Print Name: _
Title'
[SEAL]
Print Name:
STATE OF
COUNTY OF
The, ibregoing instrument was acknowledged before me thisday of, 20_ , by
as

_ ,

the capacity ...


aforestated; such person is personally known to me,
Sign Narne:_ ._
-
Print Name:
My Commission Expires:
[NOTA'R.i AL SEAL]
Notary Public
Serial No, (none it' blank):
Exhibit (3
Exhibit A to Ground Lease Recognition and Non-Disturbance Agreement
Legal Description of Demised Premises (including appurtenant easements)
Parcel 1 (Retail Sub-Lease):
A Sub-Leasehold interest created by the Sub-Lease from Bayside Center Limited
Partnership, a Delaware limited partnership to SkyHigh Miami, LLC, now known as SkyRise
Miami, LLC, a Florida limited liability company, dated March 29, 2013, as Memorandum of
which is recorded, in Official Records Book, Page,, of the Public Records of
Miami-Dade County, Florida, subject to the terms and provisions contained therein,
demising the following described parcel of land:
Commence at the Northeast corner of Block 61 North of the A.L. Knowlton Map of Miami, as
recorded in Plat Book "B" at Page 41, of the Public Records of Miami - Dade County, Florida;
thence run North 8958'18" East along the Easterly prolongation of the Northerly line of
Block 61 North of said A.L. Knowlton Map of Miami for a distance of 703.43 feet to a point;
thence run South 0008'11" West for a distance of 100.00 feet to a point of intersection
with the South line of Port Boulevard as recorded in Official Records Book 6811, at Page
240, of the Public Records of Miami - Dade County, Florida; said point being the Point of
Beginning of the parcel known as Property "A" (A.K.A. Retail Parcel) hereinafter described;
thence run South 0008'11" West for a distance of 181.09 feet to a point; thence run South
8951'49" East for a distance of 23.83 feet to a point; thence run South 0008'11" West for
a distance of 41.50 feet to a point; thence run North 8951'49 West for a distance of 23.83
feet to a point; thence run South 0008'11" West for a distance of 174.50 feet to a point;
thence run South 8951'49" East for a distance of 23.83 feet to a point; thence run South
0008'11" West for a distance of 41.50 feet to a point; thence run North 8951'49" West for
a distance of 179.58 feet to a point; thence run South 0008'11" West for a distance of
25.00 feet to a point; thence run North 8951'49" West for a distance of 157.27 feet to a
point of intersection with a line 210 feet Easterly of and parallel with the city monument line
of Biscayne Boulevard (North); thence run South 1651'29" East along a line parallel with
the city monument line for a distance of 57.78 feet to a point; thence continue along a line
210 feet Easterly of and parallel with the city monument line South 0933'21" East for a
distance of 139.74 feet to a point; thence run South 8951'49" East for a distance of 140.96
feet to a point; thence run South 5658'03" East for a distance of 604.49 feet to a point;
thence run South 6550'46" East for a distance of 470.52 feet more or less to a point of
intersection with the West line of the Baywalk Area as described in the Warranty Deed dated
July 16, 1985, and filed July 31, 1985, under Clerk's File No. 85R-231126 of the Public
Records of Miami - Dade County, Florida; thence run North 2713'14" East along the West
line of said Baywalk Area for a distance of 148.28 feet to a point designated PL-14 in said
Warranty Deed, said point bears South 5716'29" West and is 77.25 feet distance from a
U.S. Army Corp of Engineers Station BFP-1, said station being a chiseled "X" in a concrete
bulkhead; thence run South 8527'43" East along the North line of said Baywalk Area for a
distance of 49.24 feet more or less to a point of intersection with a line 65.00 feet
Northwesterly of the Metropolitan Dade County Bulkhead line as recorded in Plat Book 74,
at Page 18, of the Public Records of Miami - Dade County, Florida; thence run North
2717'27" East along said line parallel with the Metropolitan Dade County Bulkhead line for
a distance of 276.54 feet, to the Point of Beginning (POB), of a tract of land to be known as
"Sky High Miami" thence continue aforementioned bearing of North 2717'27" East for a
distance of 437.78' to a point of intersection with the existing bulkhead of the Miamarina;
thence run North 4020'40" West along said existing bulkhead for a distance of 185.10 feet
to a point of intersection in the existing bulkhead; thence run South 2712'22" West for a
distance of 508.47 feet to a point, thence South 6247'38" East for a distance of 170.43 to
the Point of Beginning (POB).
Parcel 2A and Parcel 2B and Parcel 2C (Easement):
A non-exclusive easement for ingress and egress over and across the following described
lands, being a portion of the "Retail" parcel leased by the City of Miami, Lessor, to Bayside
Center Limited Partnership, Lessee, by that certain Amended and Restated Lease dated
October 15, 1985, a Memorandum of which was recorded in October 29, 1985, in Official
Records Book 12684, Page 157, as modified by Memorandum of Modification of Lease
recorded in Official Records Book 13492, Page 3199, and Agreement recorded in Official
Records Book 13849, Page 907, and in Official Records Book 17939, Page 1026, and in
Official Records Book 22060, Page 2591, subject to the terms and provisions contained
therein, of the Public Records of Miami-Dade County, Florida):
2A: AS SHOWN ON ATTACHED SKETCH OF PROPOSED EASEMENT PARCELS PREPARED BY
SCHWEBKE-SHISKIN & ASSOCIATES, INC., LEGAL DESCRIPTION TO BE PROVIDED AND
INSERTED HERE.
2B: AS SHOWN ON ATTACHED SKETCH OF PROPOSED EASEMENT PARCELS PREPARED BY
SCHWEBKE-SHISKIN & ASSOCIATES, INC., LEGAL DESCRIPTION TO BE PROVIDED AND
INSERTED HERE.
2C. As shown on the attached drawing as Parcel 2C
Parcel 3A:
A non-exclusive easement for ingress and egress to benefit Parcel 1 from the United States
of America to(the Proposed Insured Owner) recorded in Official Records Book
, Page, and subject to the terms and provisions contained therein, described as
follows:
LEGAL DESCRIPTION TO BE PROVIDED AND INSERTED HERE.
Parcel 3B:
A non-exclusive easement to benefit Parcel 1 from the City of Miami, a municipal
corporation of the State of Florida to(the Proposed Insured Owner) recorded in
Official Records Book, Page, subject to the terms and provisions contained
therein, shown as the attached drawing as Parcel 3B.
Parcel 4 (Easement):
The non-exclusive right, privilege and easement to use the pedestrian pathways and the
pedestrian/vehicular access roads from time to time made available for pedestrian and
vehicular ingress and egress to and from the Demised Premises to the public streets to
which such pedestrian pathways and pedestrian/vehicular access roads connect, and the
non-exclusive right, privilege and easement to use such areas from time to time used for
the parking of vehicles over the "Retail" parcel leased by the City of Miami, Lessor, to
Bayside Center Limited Partnership, Lessee, by that certain Amended and Restated Lease
dated October 15, 1985, a Memorandum of which was recorded in October 29, 1985, in
Official Records Book 12684, Page 157, as modified by Memorandum of Modification of
Lease recorded in Official Records Book 13492, Page 3199, and over the "Garage Parcel"
leased by the City of Miami, Lessor, to Bayside Center Limited Partnership, Lessee, as set
forth in that certain Lease dated January 14, 1985, a Memorandum of which was recorded
November 4, 1985, in Official Records Book 12690, Page 159, as modified by Memorandum
of Modification of Lease recorded in Official Records Book 13849, Page 1004, and as said
Lease(s) are affected by the Agreement recorded in Official Records Book 13849, Page 907,
and in Official Records Book 17939, Page 1026, and in Official Records Book 22060, Page
2591, of the Public Records of Miami-Dade County, Florida, the aforementioned non-
exclusive easement rights being set forth in the Sub-Lease, a Memorandum of which is
recorded in Official Records BookPage, subject to the terms and provisions
contained therein.
Exhibit B to Ground Lease Recognition and Non-Disturbance Agreement
Description of Approved Plans
DRAWING INDEX
SKYRISE MIAMI
SHEET NUMBER DESCRIPTION
SCALE
nil
al 3
n
'ARCHITECTURAL ARCHITECTURAL
---
A0.001
-
COVER
- DRAWING INDEX ____
- -- --
-" -
-
-

_*
A (0.O02
003
- -
GENERAL NOTES
-- -

--
.
_7/32"_
--

affE PLAN
-..-----
....--
A1.lOQ
,A7.701M
---------- --
LAt.102
- 'BASEMENT LEVEL PD-N--
--- --
1116.
LEVEL 7 PLAN
LEVEL1 PLAN
th 6---e -
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1/16'
i

----LEVEL1MPlAN _
A1.103- -

- LEVEL 2 PLAN

- -

-`-

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A1.104
LEVEL4PLAN

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--- 1/16
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.__ _._._....---
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-
11
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-

--

^A7.202
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-
- -
BASEMENT LEVEL PLAN (PART B) --
-

- - -

-
- ----
- -

- /
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A7.203
- `
BASEMENT LEVEL PLAN (PART C)
-
7/g
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-
LEVEL 7 PLAN (PART Aj - 7!@^
_
A1.205. LEVEL 7 PLAN (PART B)
7/$^_
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A1.206
IA1.20T
LEVEL 1 PLAN (PART C)
1!8" i - - _
LEVEL 1 M PLAN (PART A)

- 118
Al208 LEVEL 1M PLAN (PART B) ``-
_
1J8"" -

. --
A1.209

LEVEL 1M PLAN (PART 0)- --- 1/8 -


1210 - - .. LEVEL 2 PLAN ____ _
Al211

LEVEL 2 PLAN (PART BT - 1/8^ J_


_.-
-
JA7.212
- -

--`- - LEVEL 2 PLAN (PART C) .__ -- 1/8 a


----- A1.215
- --

----

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-
3 PLAN (PART O)

- -- ----
118"__
A1.216
--
------ -
-

LEVEL 4 PLAN {PART


1!8
A1.217
A1.218
- -
-
--

-- LEVEL 4 PLAN
--

(PART B)
-
LEVEL 4 PLAN (PART C)
178^
_

A1.219 `
- --

-
LEVEL 5 PLAN
- -
--

-
1!8" "

^
A1.220 _-
--

-
LEVEL 6-11 PIAN - -_EMERGENCY ACCESS LEVELS

-
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LEVEL 6-11 R
- -
OOF PLAN - EMERGENCY ACCESS LEVELS 178"
rA1.222
LEVEL 12 PLAN SKYJUMP
A223
A1.224
_
-
_

- LEVEL 13 PLAN -FLYING THEATRE EQUIPMENT


LEVEL 14 PLAN FLYING THEATRE
-
------
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-
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A1.225 LEVEL 15 PLAN - SUCTURAL! SERVICE --

- - 118'_ _-r

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-
A1.226
LEVEL 16 PLAN OBSERVATION DECK 1/8" i_
A1.227
- __._. __-LEVEL 17 PLAN

085ERVATIONDECK 118" a
A1.228 LEVEL 18 PLAN - OBSEf1VATi0N
_
DECK 7/8
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LEVEL 18 ROOF PLAN
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LEVEL 20 PLAN_@ALLROOM
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Al233_ LEVEL 22 PLAN - NIGHTCLUB
-
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-LEVEL 24 PLAt7 VIPOBSE AV AFON DECK
_--- -j!$----;
-` LEVEL 25 PL AN -VIP PREMIUM CLUB

_-_-__ -.-_.__
A7.237
- LEVEL 25 MEZZANINE PLAN /LEVEL 26 =ELEVATOR MACHINE ROOM _ 1/8^
rA1.238
- --
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_ LEVEL 226 ROOF PLAN -ELEVATOR MACHINE Ro
-_ __
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- - - - - -

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--
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L A3101
-
NORTH AND EAST ELEVATIONS
1/32
A3.162
- .. _._.. 30UTH ANb WEST ELEVATIONS
- -

--- - - ---- -
7132'- e
A3.201 ENLAR GED PODIUM EAST ELEVAT ION 1176 e
A3.202 ENLARGED TOP OFTOWER E ASTELEVA IION - -

- j/76
A3.203 __ __ _--
-
ENLARGED PODIUM SOUTH ELEVATION --__ 118" e
A3.204 ___
-
ENLARGED TOP OF TOWER SOUTH E-EEVATION -
_
_ 1116"
AL3.205
_
E NLARGED PODIUM NORTH ELEVATION
-__
U8 o
,A3.206
ENLARGED TOP OF TOWER NORTH ELEVATION 7116 e
A4.101
NORTH -SOUTH SECTION 1/32
A4.102 EAST-WEST SECTION 7132
A4.201 PODIUM SECTION 7ti6
Exhibit C to Ground Lease Recognition and Non-Disturbance Agreement
SUBLEASE RECOGNITION AND NON-DISTURBANCE AGREEMENT
THIS AGREEMENT, made as of the day of, 20_ , by and
between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida,
whose

address

is

("Landlord")

and
having

its

principal

office

at
("Space Lessee").
A.
Landlord is lessor under that certain lease (the "Ground Lease") with Bayside
Marketplace, LLC, a Delaware limited liability company ("Ground Tenant"), successor by
merger to Bayside Center Limited Partnership, a Maryland limited partnership, as lessee, dated
October 15, 1985, as amended by First Amendment dated August 19, 1986, Second Amendment
dated November 24, 1987, and Third Amendment dated April 15, 1993, which demises certain
real property (the "Premises") commonly known as Bayside, located in Miami, Florida. A short
form of the Ground Lease was recorded in Bookat Pageof the Public Records of
Miami-Dade County, Florida.
B.
Ground Tenant sub-ground leased a part of its lessee's interest under the Ground
Lease to SkyRise Miami, LLC, a Florida limited liability company ("Sub-Ground Tenant")
pursuant to that certain Sub-Ground Lease (the "Sub-Ground Lease") dated March 29, 2013,
which portion is more particularly described on Exhibit A attached hereto and made a part hereof
(collectively, the "SkyRise Phase").
A short form of the Sub-Ground Lease was recorded in
Bookat Pageof the Public Records of Miami-Dade County, Florida.
C. Pursuant to a Ground Recognition Agreement between Landlord and Sub-Ground
Tenant, the term of the Sub-Ground Lease is coterminous with the term of the Ground Lease,
including all available renewal options (the Ground Lease has a current term that runs through
, withoptions to extend the term through), whether now existing
or hereafter granted and whether or not exercised, and the Sub-Ground Lease becomes a direct
lease between Landlord and Sub-Ground Tenant if the Ground Lease naturally expires prior to
the natural expiration of the Sub-Ground Lease.
D. Pursuant to a Lease dated as of , 20, by and between Sub-Ground
Tenant and Space Lessee (the "Space Lease"), Sub-Ground Tenant leased to Space Lessee a
Exhibit D - 12
portion of the SkyRise Phase, which portion is designated as the "Demised Premises" on Exhibit
B annexed hereto and made a part hereof, for an initial term ofyears (commencing as
provided in the Space Lease), withoptions to renew thereafter foryears each.
NOW, THEREFORE, it is agreed as follows:
1. For so long as Space Lessee is not in default of any of its obligations under the
Space Lease beyond any applicable notice and cure periods as would permit Sub-Ground Tenant
to re-enter the Demised Premises and/or terminate the Space Lease, Landlord shall not disturb or
deprive Space Lessee in or of its possession or its rights to possession of the Demised Premises
or of any right or privilege granted to or inuring to the benefit of Space Lessee under the Space
Lease, nor will Landlord bring any action against Space Lessee to accomplish same.
2. If the Ground Lease (or the Sub-Ground Lease, to the extent it has become a
direct lease (such direct lease being in replacement of or substitution for the Ground Lease)
between Landlord and Sub-Ground Tenant) terminates for any reason other than on
(or such later date as the Ground Lease or Sub-Ground Lease may terminate as
referenced in Recital C above), and provided Space Lessee attorns to Landlord (which it shall
only do if the Sub-Ground Lease has also terminated), the Space Lease shall continue in full
force and effect, notwithstanding such termination of the Ground Lease (or the Sub-Ground
Lease, to the extent it has become a direct lease between Landlord and Sub-Ground Tenant), as a
direct space lease (such a direct space lease would be in replacement of or substitution for the
Ground Lease) between Landlord and Space Lessee for the remainder of the term of the Space
Lease, without the necessity of executing a new space lease, and on the same terms and
conditions as are in effect under the Space Lease immediately preceding the termination of the
Ground Lease (or the Sub-Ground Lease, to the extent it has become a direct lease between
Landlord and Sub-Ground Tenant).
3. Any notices, consents, approvals, submissions, demands or other communications
(hereinafter collectively referred to as "Notice) given under this Agreement shall be in writing.
Unless otherwise required by law or governmental regulation, Notices shall be deemed given if
sent by registered or certified mail, return receipt requested, postage prepaid (a) to Landlord, at
the address of Landlord as hereinabove set forth, with a copy to City of Miami Public Facilities
Director, 444 SW 2nd Av., 3rd Floor, Miami, Fl. 33130-1910, or such other address as Landlord
may designate by notice to the other parties hereto, (b) to Space Lessee, then in duplicate under
separate cover, one copy toand one copy to
or such other addresses or
persons as Space Lessee may designate by Notice to the other parties hereto. Delivery by
nationally recognized overnight courier service or by hand delivery, with all charges prepaid,
may be substituted for registered or certified mail. All Notices shall be deemed served or given
on the date received (as evidenced by the return receipt or courier's receipt for delivery) or the
date delivery was refused or unavailable due to an unnoticed change of address.
4. No modification, amendment, waiver or release of any provision of this
Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or
binding for any purpose whatsoever unless in writing and duly executed by the party against
whom the same is sought to be asserted.
5. This Agreement shall run with the Demised Premises and be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs, legal representatives,
successors, assigns and subleases.
6.

Either party may record a copy of this instrument among the Public Records of
Miami-Dade County, Florida, at its cost.
Balance of page is intentionally blank
IN WITNESS WHEREOF, Landlord has caused this Sublease Recognition and Non-
Disturbance Agreement between Landlord andto be executed under seal the
date first above written.
NOTE. Exhibit
C
is not being at this time. It is being attached as an Exhibit to have
concurrence as to the format.
WITNESSES (as to City Manager and City THE CITY OF MIAMI, a municipal
Clerk):

corporation of the State of Florida


By:By:
Print Name:

Print Name:
Title: Witness

Title: City Manager


By:
Print Name:
Title: Witness
APPROVED AS TO FORM

ATTEST:
AND CORRECTNESS:
By:By:
Print Name:

Print Name:
Title:

Title: City Clerk


STATE OF FLORIDA

)
) SS.:
COUNTY OF MIAMI-DADE

)
The foregoing instrument was acknowledged before me thisday of
20_ , by _ , the City Manager, and
, the City Clerk, of the City of Miami, a Florida municipal corporation,
in the capacity aforestated; each such person is personally known to me.
Sign Name:
Print Name:
Notary Public
Serial No. (None if blank): My Commission Expires
[NOTARIAL SEAL]
IN WITNESS WHEREOF, Space Lessee has caused this Sublease Recognition and Non-
Disturbance Agreement between to be executed under seal the date first above written.
WITNESSES:

, a
By:
By:
Print Name:

Print Name:
Title: Witness

Title:
By:
Print Name:

[Entity Seal]
Title: Witness
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me thisday of
20

by

as

of
in the capacity aforestated; such person is
personally known to me.
Sign Name:
Print Name:
Notary Public
My Commission Expires:

Serial No. (None if blank):.


[NOTARIAL SEAL]
MIAMI 3618280.12 71982/40643
EXHIBIT "F-1 "
INSURANCE REQUIREMENTS FOR SUBTENANTS
I. Commercial General Liability
A.

Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations $1,000,000
Personal and Advertising Injury $1,000,000
Damage to Rented Premises $ 100,000
B.

Endorsements Required
City of Miami listed as an additional insured
Contingent Liability & Contractual Liability
Premises & Operations Liability
Additional Insured Endorsement required
Primary and Non Contributory Liability
II.

Business Automobile Liability


A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non-Owned Autos
Any One Accident

$1,000,000
B. Endorsements Required
City of Miami listed as an Additional Insured
III.

Work er's Compensation


Limits of Liability
Statutory-State of Florida
Waiver of subrogation
Employer's Liability
A.

Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
IV. Business Personal Property
Subtenant shall maintain and afford coverage for business personal property, including
leased hold improvements subject to special form causes of loss (All Risk) including wind and hail
with a valuation option of replacement cost, including coverage for business interruption, loss of
income and extra expense coverage on an actual loss sustained basis, or alternate coverage form,
covering the interruption or suspension of business operations, the necessary extra expense
incurred, and any loss of income with consideration to the continuation of all normal charges and
continuing expenses, including continuing expenses acquired through contractual obligations, and
payroll resulting from a covered cause of loss. Subtenant shall also maintain in place coverage for
flood insurance, if applicable.
V. Liquor Liability (to the extent Subtenant serves liquor)
A. Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami listed as an additional insured
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or material
change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance approval.
Subtenant shall make available, and provide the City upon request, with copies of all
insurance policies, including any and all applicable endorsements.
EXHIBIT "F-2"
INSURANCE REQUIREMENTS FOR TOWER CONSTRUCTION
SkyRise shall maintain or cause its contractors and subcontractors to maintain the
insurance coverages outlined in this exhibit. With the exception of professional liability insurance,
which may be written on a claims-made basis, all policies shall be written on an occurrence basis
and be issued by companies lawfully authorized to write insurance under the laws of the State of
Florida, including an authorized surplus lines insurer. Each insurer shall have a current financial
strength rating of not less than "A-" VIII as assigned by A.M. Best, or equivalent rating assigned
by a similar rating agency acceptable to SkyRise.
I. OCIP/CCIP/Traditional General Liability COVERAGE
A.

Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence/Aggregate

$ 50,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Developer listed as an additional insured
Completed Operations 10 Years or Statute of Repose
Employees included as insured
Contractual exposures
Waiver of Subrogation in favor of City of Miami and Developer
Premises/Operations liability
Explosion, Collapse and Underground Hazard
Loading and Unloading Mobile
Equipment (Contractors Equipment) whether owned, leased,
Borrowed, or rented by the contractor or employees of the
contractor (not applicable if OCIP property damage to
contractors equipment would be covered by each individual
contractor working on-site. If a contractor's mobile equipment
causing third party property damage while working on-site, the
OCIP coverage could apply).
Terrorism Coverage Included
IL

Business Automobile Liability (to the extent applicable)


A.

Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non-Owned Autos
Any One Accident

$ 1,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Developer listed as an additional insured
III.

Work er's Compensation


Limits of Liability
Statutory-State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV.

Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 15,000,000
Aggregate $ 15,000,000
City of Miami and Developer listed as an additional insured,
Umbrella insurance above only pertains as to excess limits for the auto
insurance maintained by the owner.
VI. Lead Design Professional Liability/Error's &Omissions
Primary Limit

$5,000,000
VII. Builders' Risk
Causes of Loss: All Risk-Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $100,000 All other Perils
5% Wind & Hail, Earthquake and Flood
City of Miami & Developer listed as an additional insured/Loss Payees
The above policies shall provide the City of Miami with written notice of
cancellation or material change from the insurer not less than (30) days prior to any such
cancellation (1 0 days in the case of non-payment of premium).
EXHIBIT "G"
SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT
SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT
This Second Amendment to Minority Participation Agreement (this "Amendment") is
made and entered into thisday of, 2014 ("Effective Date") by and between
the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and BAYSIDE
MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to Bayside
Center Limited Partnership ("Developer").
WHEREAS, City and Developer entered into . 'that :certain Minority Participation
Agreement dated as of January 14, 1985, as amended by that^`_ _ certain First Amendment to
Minority Participation Agreement dated as oft;Octoier 17, 1985 further amended by that
certain Release and Settlement Agreement dated as of December 30;;::;2008 (collectively the
"Minority Participation Agreement") setting forth Developer's obliga#ions with regard to
minority participation in connection . with the develapmerit of the project known as Bayside
%side Specialty Center; Marketplace and formerly known as Ba....
nd Developer are entering into
ease Agreement (Retail Parcel)
ease Term of the Retail Lease and
;t and
WHEREAS, City Arid Developer desire to amend certain financial terms of the Minority
Participation Agreement as' t`ohows
All capitalized terms used in thisAmendment shall have the definitions ascribed to such
terms in the Minority Participation Agreement or the Retail Lease (as amended from time to
time), unless defined or amended in this Amendment. The term "Minority Participation
Agreement" shall refer to the Minority Participation Agreement, as amended hereby.
2. Foundation Contribution.
Section 5.3 of the Minority Participation Agreement is hereby deleted in its entirety and
replaced with the following:
Section 5.3 Foundation Contribution. From and after the
Effective Date, Developer shall pay a Foundation Contribution in
the amount of $350,000 (the "Foundation Contribution") in
quarterly installments on the last day of March, June, September
and December of each Rental Year during the Lease Term of the
1
Retail Lease. The Foundation Contribution for any partial Rental
Year during the Lease Term after the Effective Date shall be
prorated based on the number of days in the partial Rental Year
against the total number of days in the applicable Rental Year.
The Foundation Contribution shall increase each Rental Year by
two percent (2%) over the Foundation Contribution for the
immediately preceding Rental Year commencing with the first CPI
Adjustment Year for Minimum Base Rental, as provided in the
Retail Lease Amendment. Notwithstanding theforegoing, should
the Foundation cease to be a 501(c)(3) taxreempt organization,
the Foundation Contribution shall either (i) be placed in an interest
bearing escrow account and paid to the Foundation., at such time as
the Foundation shall satisfactorily prove to Developer that it has
qualified as a 501(c)(3) tax-exempt organization or (iu) at the
written request of the City, be; paid to such other non:-profit
organization qualified as a 501(c)(3) tax-exempt organtzation
which is reasonably acceptable to De elope and which has goals
and purposes similar to , the Foundation. The Foundation
Contribution shall be the :only financial obligation that Developer
shall have to the Foundation or such other non profit organization
specified in (iz) above.
The Foundation Contribution for the period prior to the Effective Date shall continue to
be paid as provided in Section 5.3 of the Minority Contribution Agreement; it being understood
and agreed that the Foundation contribution for they: period between January 1, 2014 and the
Effective Date shall e based solely on Net ;In come Available for Distribution for the Retail
Parcel for such period.
3. Notices.
Wherever any:., notice is required or permitted under the Minority Participation
Agreement, such notice shallbe in writng. Any notice or document required or permitted to be
delivered under the MinortP`articipation Agreement shall be deemed to be delivered when it is
actually received by the designated addressee or, if earlier and regardless of whether actually
received or not, when it is either (i) deposited in the United States mail, postage prepaid, certified
mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or
overnight courier service, addressed to the applicable party to whom it is being delivered at the
respective address for such party as is set out below, or at such other address as such applicable
party may have theretofore specified to the delivering party by written notice:
2
If to City at:
City of Miami
444 SW 2"d Avenue, 10th Floor
Miami, FL 33130-1910
Attention: City Manager
If to Developer at:
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, IL 60606
Attention: Chief Legal Officer
(a) Each of City and Developer hereby acknowledges and agrees that neither is
presently aware of any contmum'gdefaults by reason of any act or` omission on the part of the
other party under the Lease and that as of the date of execution'each party has fulfilled all of its
duties and obligations under the Minority Participation Agreement to date.
(b) This flmendment . shall` be construed;and governed in accordance with the laws
of the State of Florida. Venue in any actions or' :;proceedings between the parties shall be in
Miami-Dade County, Florida. In order to expedite such actions or proceedings the parties
knowingly and voluntarily Waive their right to a jury trial in any such actions or proceedings.
Developer and City each agree t.0 pay their own attorneys' fees in connection with any such
actions or proceedings.
(c) This Amendment may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
(d) Each party hereby :represents and warrants to the other party that (i) it has the
full right and authority to enter into this Amendment, and (ii) this Amendment is a binding and
valid document enforceable in accordance with its terms.
(e) This Amendment shall be deemed a part of, but shall take precedence over and
supersede any provisions to the contrary contained in the Minority Participation Agreement.
with a copy to:
City of Miami
444 SW 2"d Avenue, 3rd Floor
Miami, FL 33130-1910
Attention: Public Facilities Director
4. Miscellaneous.
e Marketplace, LLC
eneral Growth Properties, Inc.
5f* oxcester Street
Suite 12
Natick, MA
Attention: John Charters
3
Except as modified hereby, all of the provisions of the Minority Participation Agreement, which
are not in conflict with the terms of this Amendment, shall remain in full force and effect, and, as
modified hereby, the Minority Participation Agreement is hereby ratified and confirmed in all
respects.
(f)

This Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns.
4
IN WITNESS WHEREOF; the parties have executed this Amendment as of the
Effective Date.
ATTEST:
By:
Print Name:Todd B. Hannon
Title:City Clerk
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Print Name:Daniel J. Alfonso
Title:City Manager
The foregoing instrument was acknowledged ,be#ore me thisday of
2014, byDaniel J. Alfonso, the City Manager,
the City of Miami, a Florida municipal corporation,
eysonally known to me.
APPROVED AS TO LEGAL FORM

AP,I'ROVED TO INSURANCE
AND CORRECTNESS:

IQUIREME
By:
Print Name: Victoria Mendez

Pnnt Namc Ann-Marie Sha r,


Title:City Attorney

Title Acting Director, RiskManagement


and
the City Cler
m the capacity aforesaid; each such person .i
My Commission. Expires
[NOTARIAL SEAL]
Serial No. (none if blank):
5
WITNESSES:

BAYSIDE MARKETPLACE, LLC, a


Delaware limited liability company
By:
Print Name:
Title:
By:
Print Name:
Title:
The
Marketplace, LLC, in
foregoingthe instrument was acknowledged
, 2014, by

ass
Sign Name:
6

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