Professional Documents
Culture Documents
(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)
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.
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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.
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
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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.
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:
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)
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:
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
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):
Print Name:
Title: Witness
APPROVED AS TO LEGAL FORM
ATTEST:
AND CORRECTNESS:
By:By:_
Print Name: Victoria Mendez
)
) 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
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
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
Site Plan8
Section 2.05
Term,,,.9
ARTICLE . CONSTRUCTION OF IMPROV1 MENTS 9
Section 3 ,0
Utilities9
Section 3,02
Tenant's Plans9
Section 3,03
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
Maintenance Charge20
ARTICLE V
w
CONDUCT OF BUSINESS BY TENANT20
Section 5.01
Project Manager
22
Section 5 .03
Continuous Operation2.3
Section 5.05
Business `Tlorus
23
Section 5.07
Common Areas,,73
Section 5.08
Fireworks Displays
24
ARTTICLI VI. UTILITIES24
ARTICLE VII . IMPOSITIONS
Section 7.01
Taxes without Separate 'Tax Parcel From and Al per Completion of the Initial
Tenant's Improvements
25
TABLE OF CONTENTS
Page
Section 7.04
Section '7.05
Section 8.01
Maintenance by Landlord-~26
Section 8,02
Maintenance byTenant
-~20
Section 8,03
Alterations byTenant
2J
Section 8.04
....~
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
Section \|.0]
Section |L02
Total Taking
]2
Section 11.03
Section ||.04
Partial Taking~~--'33
Section 1 1A5
'^
Section 11,06
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
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
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
Section 21,07
Force Majeure
41
Section 21.08
Recording of Lease
41
Section 21,09
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
.
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 -
ARTICLE XXIII wM
ARTICLI XXV
HAZARDOUS MATERIALS,,48
Section 25,01
Section 25.02
Section 25.03
Remediation
448
Section 25.04
Providing Information
49
Section 25,05
SPECIAL PROVISIONS ,
49
TABLE OF CONTENTS
(continued)
Page
Section 26.01
,,,,,,,,,,,,,,,,,,,,,,,,,,,,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
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
New Lease
54
Section 30,05
Impairment
54
Section 30.06
No Merur
55
Section 30,07
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"
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)
.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 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)
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)
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 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
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
Section 8,04
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
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
BA YS DE MARKETPLACE, LLC
401 Biscayne Blvd,
Miami, Florida 33132
Attn: General Manager
Email: Pamela, Weller ct,ggp.com
If to Tenant:
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
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
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)
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
1
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BAYSIDE
40'1 BISCAY
MARKETPL ACE
NE BOULEVARD
MIAMI, FLORIDA 3 3 13 2
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W.-7.
EXHIBIT "B"
PRELIMINARY SKETCH OF TENANT'S IMPROVEMENTS
[See attached'
Exhibit B
SITE PLAN
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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)
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
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
)
)Sl/
COONTY0F>
The Foregoing instrument was acknowledged before m* this
day or
20~~
by
as
_ ,
_*
A (0.O02
003
- -
GENERAL NOTES
-- -
--
.
_7/32"_
--
affE PLAN
-..-----
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LAt.102
- 'BASEMENT LEVEL PD-N--
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1116.
LEVEL 7 PLAN
LEVEL1 PLAN
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1/16'
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----LEVEL1MPlAN _
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- LEVEL 2 PLAN
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LEVEL4PLAN
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BASEMEN
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-
T LEVEL
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8
-
--
^A7.202
}...-
-
- -
BASEMENT LEVEL PLAN (PART B) --
-
- - -
-
- ----
- -
- /
1/8"
A7.203
- `
BASEMENT LEVEL PLAN (PART C)
-
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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) ``-
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A1.209
----
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-- LEVE1
-
3 PLAN (PART O)
- -- ----
118"__
A1.216
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-- LEVEL 4 PLAN
--
(PART B)
-
LEVEL 4 PLAN (PART C)
178^
_
A1.219 `
- --
-
LEVEL 5 PLAN
- -
--
-
1!8" "
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A1.220 _-
--
-
LEVEL 6-11 PIAN - -_EMERGENCY ACCESS LEVELS
-
_ _
IAT-&
-
_
--
LEVEL 6-11 R
- -
OOF PLAN - EMERGENCY ACCESS LEVELS 178"
rA1.222
LEVEL 12 PLAN SKYJUMP
A223
A1.224
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-
_
- - 118'_ _-r
__
-
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
LA29____.-___...__.---...-
LEVEL 18 ROOF PLAN
11$_._ _'*
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___------._ .----. ..-.
fA1 . 231
LEVEL 20 PLAN_@ALLROOM
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- -------
Ai 32.
...._.__.
LEVE) 21 PLAN-SE _R V IC_E _/ STR UCTUR A_L__.. _ - 1%8
Al233_ LEVEL 22 PLAN - NIGHTCLUB
-
1!8
-
_-_-__ -.-_.__
A7.237
- LEVEL 25 MEZZANINE PLAN /LEVEL 26 =ELEVATOR MACHINE ROOM _ 1/8^
rA1.238
- --
--
_ LEVEL 226 ROOF PLAN -ELEVATOR MACHINE Ro
-_ __
7!8
-
- - - - - -
_
- -- -
--
_
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):
Print Name:
Title: Witness
ATTEST:
AND CORRECTNESS:
By:By:
Print Name:
Print Name:
Title:
)
) 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:
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.
$1,000,000
B. Endorsements Required
City of Miami listed as an Additional Insured
III.
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
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.
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.
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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
ass
Sign Name:
6