Resolution 175-1990
Monroe County Commission
RESOLUTION NO. 175 -1990
A RESOLUTION OF THE BOARD OF COUNTY COMMIS-
SIONERS OF MONROE COUNTY, FLORIDA, APPROVING A
LEASE BETWEEN GUARANTY FEDERAL SAVINGS BANK AND
THE MONROE COUNTY SHERIFF CONCERNING SPACE IN
THE BIG PINE KEY SHOPPING PLAZA FOR A MINI-
STATION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, that the Board hereby approves a
Lease between Guaranty Federal Savings Bank and the Monroe County
Sheriff, a copy of same being attached hereto and made a part
hereof, concerning space in the Big Pine Key Shopping Plaza for a
Mini-Station.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the Z!h day of March, A.D. 1990.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA_
BY. dL~
MAYOR/CHAIRMAN
(Seal)
DANNY 1.. KOLHAGE, Clerk
Attest: . . .
A!WIOVED AS TO FORM
AND LEGAL UFFICIENCY.
BY
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BIG PINE KEY' SIIOPPING PLAZA
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Big Pine Key. Monroe County. Florida
TillS LEASE is made botween the Landlord and the Tenant hereinarter identified in Section. 1.01(b) .nd
(c) hereof. roapectively. and constitutes a Luso botween the parties or the -Prellliaes. .s identiUed In
Saction 1.Ol(d)-hereor on tho termD ond conditions ond with ond subject to tho covonant. Gnd .groo~enl8 lie
the parties hereinaftor set forth.
WIT N E SSE T II
ARTICLE I
BASIC LEASE PROVISIONS
Section 1.01 Basic Leaso Provisions
Tho rOllowing aro certain loaso provisions which ore port or. and. in certain instances, reCerred to.
in subsoquent provisions. of this Loaao:
(0) Qato or LODSO: November 30, 1989
(b) Landlord: Guaranty Federal Savings Bank
(c) Tenant: Mc1nroe Cotmty Sheriff
(d) Premises: Unit C-3
(Soction 2.01)
(e) Tenant's Construction Poriod or Leale Commencement Date:
\~ect~on 2.uJ(bll
jZ.scr (r) Length or .1'orm: 1 VL Lease lean
(g) Mln~mum Ren~; $ 750. 00 \'LS G-
ISecr"", l.04)
(Sec'tion 3,01)
(h) Addr".. Lor Rental. l"ayments ana Notices to Landlord.:.23333 Eureka Road (Saction 3.0U
(1) percentoge Ront Factor: na Taylor I MI 48184 (Saction 3.02(.))
(j) Tenant's Uso: Sheriff's Mini-Station
(k) Tenant's Trade Namo: Monroe County Sheriff
(Section 7.011
(Sectio.. 20.01(0) I
(1) Annual Promotional Chargo: na
(m) Initiol Promotional Charge: na
(n) Security Deposit : na
(0) Tenont's Address ror Notices: 530 Whitehead street
Key West, FL 33040
(p) Guarantor: na
ARTICLE II
GRANT AND TERM: CONSTRUCTION
Section 2.01 Premises
(Section 20,03(0))
(Section 20.03(a))
(Sscticn 25.01)
(Section 26.05)
(a) Landlord. in consideration of the rent to be paid and the covenanta to be perrormod by
Tenant. does hereby demise ~nd lease unto Tenant, and Tenant hereby rents and hires trom Landlord, lhose
certain premises designated in Section 1.Ol(d) hereot (hereinaCter rererred to aa the -Premises-) in the
regional rotail dovelopmont commonly known as -Big Pine Key Shopping Plaza-, situated in 9ig Pine Key.
Monroe County, Florida, (horeinartor somotimes reCerred to os the "Shopping Center-), aUbject to covenants,
restrictions and oasements or record and such rules and rogulations that Landlord may hereinaCter imposes
from time to time. Said Premises ore legally described in Exhibit -9" attached hereto.
(b) Tho exterior wal.ls and the roor oC the PremiseD and the area beneath the Premises are not
demised hereunder. and tho usa thereor, together with tho right to locate, both verticelly and horizontally,
install, maintain, usa. repair and replace pipes. utility lines, ducts. conduits. rlues, rerrigerant linel.
drains, sprinkler moins snd volvos. access panelll, wiros and structural elements leeding through the
Premises serving othor partll or the Shopping Center. 1s hereby reserved unto Landlord. Landlord reserves an
easement above Tenant's Cinished coiling to tho roor. or to tho bottom or the rloor deck above the Premises.
Cor general acceDS purpooes end in connection with tho exercise or Landlord'a other righta under this Leoso.
(c) Landlord horeby reserves tho right at ony time prior to or during the term hereor to change
the location or tho Premises in tho Shopping Center. os the Dome may be expanded trom time to time: provided
such relocated Premises shall contain at loast the scms number or square teet .s the originsl Premises. In
the event Landlord eloctB to exerciso such right, it sholl 00 adviso Tenant by sixty (60) day. prior written
notice. and Tenant horeby agroes to be bound by such eloction and. further. to execute. upon receipt from
Landlord. whatever amendmento or other inatruments as may bo required to correctly reflect the foregoing.
Landlord sholl pay tho costs or renovating tho relocated Promises so that the same are comparable to the
original PremisoD (including lODoehold improvements) and oC moving end reinstalling Tenant's trade fixtures
and storeCront sign. Landlord sholl have no rurther or additionol obligotinns in connection therewith.
(d) Tho attached aito plan or Dig Pine Key Plaza. Exhibit "A", includes premises identified
thereon os tho Winn-Dixio Sito and the Gray-Drug Fair Sito. which SitJO are collectively herein reCerred to
as tho "Key Storo Sites" and/or ~Key Stores-, unleos otherwioo spocifically aet forth, In the eVent
Landlord electD to enlargo tho Shopping Center, any additional oraa may be included by Landlord in the
derinition or tho Shopping Canter ror purposes or this Looso. Landlord shall also hove tho right Cram time
to time to include within and/or to exclude Crom the deCined Shopping Center any exiating or Cuturo areBS,
and tho rloor oreo oC tho Shopping Center ohsll bo accordingly adjulted.
(el Landlord reserves the right at any time. cnd rrom time to time, to make alterationa to, and
to build additional stories on the building in which the Premises Iro located, and to conltruct other
buildings end improvements in tho Shopping Center, including any modiUcationa ot the common areas in
connection therewith, to enlargo or reduco tho Shopping Center. to odd decks or elevated parking facilities,
.-~.- - - _._.~ _.-.- ---- ----..-----.-- ---- -.'-r--:---..., --~._--. -- ..-...---.... _... __n..._&", .-n- f ....U~. ~na
construction thereon ()i:-a-b~il~ing(ll) to I.HI occupied by e Key Storels) which mayor may not be part oC the
Shopping Center. Landlord oj reserve. the right at any time. and t\. . .Itima to timo. to change. modUy. or
.abolish any tempornrv nrr-ai~tility serving the Shopping Center. ~e pur---- -t Exhibit .A" i. to .how
the. approximate le ot the Premises within the Shopping Center and Lon a.erve. the right at any
time to relocate. enlarge. or reconCigure the various buildings. parking areaa and other common are.. .hown
on Exhibit "A." Tanant hereby consents to the exercise by Landlord or tho rights set Corth in thie Section
2.01 (c) and agrees tho t the exercise oC such righto by Landlord sholl not diminiah Tenant' a obligation.
under this Lease.
Section 2.02
Con~truction by Lendlord
(a) Prior to the Commencement Date. os hereinarter detined.' Landlord has conetructed or w!.ll
conlltruct tho buildings designoted on E.lIhibit "A" on the Shopping Center and perCorm the work and make the
inatallationll in the Premisea Bubstantially os oet Corth on Exhibit .C" hereto. Landlord'. Obligation to
perCorm Landlord's Work ahall not require Landlord to incur overtime costa and expen.... Landlord .h.ll.
when construction progreuo .0 permita notiCy Tenant in advance oC the approximate date on which the Premi...
will be substantially completed in accordance with E.lIhibit "C" and ready Cor Tenant'. Work aa .at torth in
Exhibit "C" hereto and will notiCy Tenant when the Premises ore in roct so completed and r.ody. which later
notice sholl constitute delivery oC possession of the Premises to Tenant. 8ubject to the proviaiona of
Section 2.02(b) hereoL . If eny dispute ohall erise 00 to whether the Premises ore 8ubstantially completed
and ready tor Tenant's Work. 0 certiCicate furnished by Landlord'8 architect or contractor certifying the
date or substantial completion shsll be oonclusivo and binding oC that Cact and dote upon Landlord and
Tenon t . Any minor chanaes trom any plans or C rom Exhibi t "C" relating to Landlord' 8 Work which lIlay be
necessary during construction or the buildings. the common areas or the Premises shall not afCect or change
this Lease or inValidate the samo. Oy occupying the Premises as a tenant. Tenant Cormally accepts the .ama
and aCknOWledges that tho Premises ore in the condition requirod horounder. Failure oC Landlord to delivar
posselluion ot the Prcmiooo within the timo and in tho condition required horoin will not give ri.e to any
cluim Cor damages by Tonant against Landlord or Landlord's contractor.
(b) Notwithstanding tho provisions oC Section 2.02(a) hereOf. until such time 08 Tenant'. Cinal
~orking Drawings and SpociCications hove been approved by Landlord os herein provided. Tenant.s right to
enter upon the Premises sholl be solely ror the purpose of inspection. measuremont and obtaining information
necessary to prepare architectural drawings. Until Tenant is so deemed to hove taken pos8e8aion. in the
event or default by Tenant under this Section 2,02 or Section 2.03 hereof. Landlord. upon notice to Tenant.
shall have the right to declare thio Lease null and void and of no further Corea or efCect and thereoCter
may leaso the Premises Cree oC sny rights oC Tenant.
(c) In the event tho Premioes ore presently occupied by another tenant. p088e8eion or the
Premises shall not bo delivered to Tenant until 0 date after tho dote Landlord obtains pos.e.sion oC the
Premises, 'I 11"0
Section 2.03
Conotruction by Tenant: Opening.
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(a) Tenant agroes. prior to the commencement ot the term ot this Loose. ot Tenant.s
expen:Je. to provide 011 work ot whatsoever nature in accordance with its Obligations se t.th in Exhibit
"C. as "Tenant's Work". Tenant agrees to turnish to Landlord the Store Design Drowin nd Working Drawings
and Specifications with respect to the Premioes prepored in the monner and wit e time periods required
in Exhibit "Co. Ir such Store Dosign Drawings and Working Drowings and S ications are not furnished by
Tenant. to Landlord within the required time periods in form to per approval by Landlord. then Londlotd
may at its option at any time while Tenant io in deCault of thi oviaion. in addition to ony ond all other
remedies provided in this Lease. by not less thon ten (1 oys' notico to Tenant. declare this Lease null
and void and or no further force or effect. in whi ent this Leose Sholl coaoe. but Tenant shall.remain
lioble for 011 obligations orising during the nal stated term as provided in this Lease. In addition;
if Landlord detormines that Landloa:d arod nant oro unable to agree upon Store Des ion Drawings..' and/or
Working Drawing!! and Specifications. ndlord sholl hava the option. upon ton (10) days' priorwri~Un
notice to Tenant. to declare this oso null ond void ond or no turther torce or efCect. in which event thi.
Leoso shall cease and termi on tho dote speciried in ouch notice. in tho sarno mannor as provided in ~he
preceding sentenco. No otion from the Cinol set oC plans und specitications. once apprOved by Landlord.
shall be made by T t without Landlord's prior writtan consent. Approval oC the plans ~nd opecitication.
by Landlord s not constitute the assumption oC ony responsibility by Londlord or Londlord'. architec~
Cor thei curacy. efticacy or sufficiency. and Tenant shOll ba solely responsible Cor such ite.s. Unleas
Land otherwise directs in writing. Tenant shall not open the Premises Cor buoines8 until .11
SG::: structioll hao been completed purouant to the provisions oC txhibit "C".
(b) Tenant sholl complete tho perCormonce oC Tenant's Work ond open Cor business to the public
from tho Premises on or boCoro tho expiration oC Tenant's Construction Period 08 set torth in Section
1. 01 (e) hereoL Tenant's Conatruction Period to conunenco upon tho delivery ot tho Promises to Tenant
pursuant to Soction 2.02(s) horeoC. The term oC this Leoae shall commence upon the Lease Commencement Date
or the earlier to occur oC tile expiration oC Tenant.o Construction Period and the dote Tonant open. tor
business to the public trom the Premises (horeinafter referred to 00 tho "Commencement Dote"). If Landlord
makes a written request to Tenant that Tenant delsya itu store opening in ordor to efCect a joint opening
with other occupantu oC the Shopping Center. Tenont sholl open Cor busineos on the dote speciUed by
Landlord. and the Commoncement Date shall bo ond Tenant'o obligations to pay rent sholl commence upon the
date oC said joint opening.
Section 2.04
Length ot Term
Tho torm oC thio Loaso ohall commenco upon tho Commencement Date and sholl ond upon the expiration oC
tile number oC Leoso '{cars. os horoinaC ter doUned. cet forth in Soction 1.01 (t) horeof. unle.. sooner
terminated os herein provided. Notwithstanding onything to the controry herein containod. in th~ event that
tho Commencement Date sholl not have occurred on or beCore such dote os sholl bo one (1) yeor 'rom the date
ot . this Leaoo. then this Leaso sholl be outomaticollY terminilted without ony Curther Oct ot either party
hereto. and both portico hereto sholl be releaood Crom all obligations horounder,
Section 2.05
Landlord's and Tenant's Optional Right or Cancellation
It tor ony reason the Premioeo oro not ready Cor Tenant's Work on the dote four (4) month. fOllowing
the dote of this Lease. then. for 0 period ot thirty (30) dol'O thoraCter. Tenont oholl have the option. and
tor a period of forty-five (45) days following such Cour (4) month period. Londlord ~hQIl hove the option.
of cancelling and terminoting this Lease by written notice. ono to tho other. and. in the event that either
porty ahall exerdao auch option. thia Loose .hall ceose with neither party being liable to the other in
damogea or otherwise. and any money deposited purouont to Section 25.01 hereot sholl be return.d to Tenant.
In the event that neither Tenant nor Landlord gives such written notice of cenc.llation. then s.id option.
ahsll be null and void ond oC no further Coree or etfect. and this Lease .hall be con.1dored o. continUing
in Cull torce and etfect.
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RENT
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Sec(ion 3.01
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The fixed minimum annuQl rental (heroinofter reterred to QS the "Minimum Rent") during the term ot this
Lease 8hol1 be ~he amount Bot torth in Saction 1.01(g) hereot. which Bum &hall be payebl. by Tenent in equal
consecutive monthly inotallmento. on or botore the tirot day ot each month. fA a~'a~a.. payable to Landlord..
at the addn:sa oet torth in Section 1.01(h) hereot. or ouch other ploce oa Landlord moy deaignato. .uct....
poymento to be modo without any prior demand thoretor ond without ,any deduction. or .otort what.oever.
Should tho torm ot thi. Loaoo commonco on 0 day othor thon the tir~t day ot a calendar month. then the
Minimum Rent tor ouch month oholl bo prorated on a daily bauio bosod upon. 0 thirty (30) day calendar month.
Should ony Loaoo Yeor contain 100. thon twelve (12) calondar montho. aoid Minimum Rent ahall bo proratod.
3.02 Perccntolle Rent
0) In addition to the payment ot the Minimum Rent. os hereinbetore provided. Tenant shall pey to
Landlord tor . ch Lease YQar at tho torm horeot. QS Qnnuol percentQge rent. an amount equal to the
Percentage Rent tor Dot torth in Section 1.01(i) horeot multiplied by 011 Gros. Solea rasulting trom
business conductod in. n or tram tho Premises during such Lease Yoor. Subsequent to the dote upon which
Tenant io initially obli cd to open tor business in tho Premises. in addition to any and ell other
remedies ottorded to Landlord er this Lease by reason at deCQult. Gross Soles Bholl be reduced by 1/360th
Cor each day or portion thereat th Tenant doeo not operate its busineos pursuant to Section 7.02 hereot.
The annual percentogo rant sholl bo p 10 to Landlord at tho times and in the manner hereinacter set
Corth. at the addresu set torth in Section Ol(h) hereof or such other placo as Landlord may de.ignate.
auch payments to be without any prior demand the r and without any deductions or setoft whatsoever.
(b) Such annual percent ago rent shall be paid in uarter-annual installmentSl computed on all
CrOSB SaleB dur:1ng each quarter-annual period ot the term hereo Such quorter-annual period. .hall be
deCined as the tirst three-month period ot each Leaso Yesr and ch consecutive three-month poriod
thereatter. Such quarter-annual inotallments shall bo payablo ~ithin thir (30) daySl otter the expir.tion
ot each three (3) month poriod ot each Lease Yeor. In the event that the tol ot the quarter-annual
installments ot porcentago ront tor any Lease Year does not equal the snnual percen 0 rent computed on the
total amount ot Groos Sales tor such Leaso Year. then Tenant. at the time it submit. the nual atatement ot
CrosB Sales requirod under Section 4.02 hereot. ohall pay Landlord any deUcioncy. or Landl oholl ct"edit
any overpayment to the next installment ot percentage rent due Crom Tenant. as the case may In no
event. however. sholl tho aogregate ot the Minimum Rent Qnd annual percentage ront to bo paid by Ten and'
retained by Landlord for any Lease Year be leUD than the Minimum Rent specified heroin.
(c)
Leouo Yoars oha11 consiot or twelve (121 montho. commencing on the Commoncement Date.
Rsc,.
3.03
Gross Salcs
term "Grooo SQles" as used her~in shall bo conotrued to includo tho entire amount ot the actual
sales pric whether Cor cosh. credit or otherwise. ot Qll sales ot merchandise or Bervices and all other
receipts what vcr ot all busineos conducted in or trom the Premises by Tenant and/or any other person
conducting busine in the Preminos. inCluding. without limitation. mail. cataloguo or telephone order.
received or tilled at 0 Premises. or procured from the Premises by house to house or other convaaaing. and
all depositu not retunde purchasers. and orders token. although said orders may be tilled elsewhere. A
"sale" shall be deemed to hav een consUINllated for tho purposes of this Leaso. and the entire amount ot th~
sales price shall be included in ass Sales. at ouch timo that (i) tho transaction is initially retlected
in the LJooks or records ot Tenant J:........such other person making such sole). or (ii) Tenant or auch other
peraon receives all or IIny portion ot~ e Daleo price. or (l1i) tho applicable goods or aervices are
delivered to the customer. whichever tirot oc; rs. irrespective ot whether payment ia modo in inatallments.
the sale is tor cosh or tor credit. or otherwioe. roll or any portion at tho soles price has actually been'
paid at the time ot inclusion in Gross Sales or at 01 other time. No doduction sholl be allowed tor direct
or indirect diucounts. rebates. or other reductions 0 Doles to employoea or others. unlos. generally
ottered to the public on e unitorm basi.. In addition. n oduction shall be ollowed tor uncollacted or
uncollectible credit accounts. or Cor trQdo-ins or other credit n Boles to employees or otherB. The term
"Groos Sales" shall not include. however. any sums collected and po out by Tenant tor any 801.a or excise
tax impooed by and accounted tq,r by Tenont to any duly constituted 0 rnmental authority. nor .hall it
include tho exchange ot merchandise between the stores ot Tenant. it ony. ore auch exchange oC goods or
merchendiso is made oololy tor tho convenient operation ot the busineas ot Tono end not tor the purpose ot
consummating a solo which has theretotora been made in or from the Premises on r tor the purpo.e ot
depriving Landlord ot the bonefit ot 0 aale which otherwise would be made in or trom tti remi8ea. nor shall
the term include the amount ot roturns to ahippers or monuCacturers. nor proceoda trom aale ot trade
tixtures. There shall bo deductiblo tram Gross Soles tho amount ot any cosh or credit retund e upon any
sale in or trom the Premises.. previously included in "Gross Salos" hereunder. not to exceed t SUIll so
prcvioull1y included. whoro tho morchandioe sold is thereafter returned by tho purchaSler and accept by
Tenant. _
RS.G-
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s
Rental Adjustment
provi8ion8 to the contrary contained in this Lease. Tenant ehall pay'to
Lendlord as . urn Rent tor the sQcond LeoDe Yeor ot the term ot this Leaso. and tor each subsequent Lease
Year of said term. ut subject to turther increase pursuant to this Section 3.04 and other provi.ions ot
this Leese. tho groote t tho amounts calculated occording to tho tormula8 eet torth In SectIon 3.04(0)(1)
and (11) hereot.
(i) Minimum Rent tor
chenge between the Dose Indox ond
(as such terms ore de tined below).
o Leose Year in question sholl be increosed by the net percentage ot
Index published tor the tirst colendar month ot aucb Leas8 Year
(iil Minimum Rent tor the Leose Year in Jestion shall be increased by the amount ot annual
percentage rent payablo tor the immediately preceding se year pursuant to Section 3.02 hereot.
(b) For purposos ot tho toregoing calculations. shall be the "Conaumer'
Price Index tor All Urban Consumors (1967 . 100). U.S. City Avorsge. All s". publiBhedby the United
.Ststes Depsrtment ot Labor. Dureau ot Labor Statistics (tho "Index"). tor the mon uring which theterl1l ot
thi>> Lealle commonces (or. it the Index Is not publishou for such month. then the In published tor' the
month closest. but prior. to the Commencement Date). Following any increoBO in Minimum nt pursuant to
Section 3.04(0) horeo!. the "Doso Index" for tuture colculations oholl be redetined aa the in published
tor the first calendar month ot the Lease Year tor which the Minimum Ront hoa laat be.n increase suant
to Section 3.04(0) heroot. The Index tor the tirot calendar month of any given Leaae Year. it the lnde s
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~ nd~r month or such LeoDe V~ar. It the Lldex i9 not puulished' the Oureau of Labor Stathtica or
'anothe vernmental aoency a~,,'JY timo during tho term or this Lease.~~n the foregoing calculation. ahall
be m:olde un ho ;losoryv comparable statistics on the purchasing pc the conaumer dollar as
published by a res,,~ ___0 rinancial authority and salected by Landlord. Fv. ...~ purposes of this Section
3.04. the annuol percent rental payablo by Tenant for any Lease Yoar consiating of less than twelve (12)
tuli calendar months shall be ulated by dividing the annual percentage rental poyable by Tenant for auch
Lease Year pursuant to Section 3. eroot by the actual number of daya in such Lease Year. and by
multiplying the rcoultino quotient by 360. nndlord ahall notity Tenant ot tho increaaed Minimum Rent for
each Lease YeaE tollowina tho determination of s ~~Landlord. and Tenant shall pay auch incre..ed Mini~u.
Rent ror tho applicable Leaoe Year in the manner aet ~in Section'~.Ol hereof; provided. however. thnt
it Tenant shall tail to deliver the annuel atatement ot Geo ~oleo pursuant to Section ..02 hereof at the
time required. Landlord mol' estimate the percentaga rent puyable auch'Leoao Year by Tenant in order to
determine ouch increaoed Minimum Rent. In the event that the increo n Minimum Rent results trom the
calculation oct torth ebove in Section 3.04(0) hereot. then the Minimum CrosB a otherwiae applicable for
such period oholl be increooed by 0 percento(lo equal to the percentage increoB Minimum Rent. The
Minimum Rent ear any period os ateted in Section 3.01 hereot. if ditrerent than that he lIrUllediately
precedinQ period. shall be adjusted by the cumulative percentage increase in Minimum Rent 11 prior
periodo pursuant to this Section 3.04. subject to further adjustment as provided in thi. Section or
elsewhere in this Leaso.
Section 3.05
Tenant'o Tax Obligation
~'?&
Ten~nt shall pay to Landlord ito proportionate share of all taxeu and existing and futuro aa.essments
which may\ba levied or assesoed by any lawful authority during or for each calendar year of the term of this
Lease aga st the land. buildingo and improvements compri!ling the Shopping Center os well liS any such
existing as eSliments covering Dig Pine Key Shopping Plaza (hereinafter referred to as the "Taxea-). In the
event that ny prooent or tuture onactment ot Florida or any political subdivision theraof or sny
Qovernmental uthority having jurisdiction thercover impooeD a tax and/or asseDsment ot any kind or nature
upon. againot r with respect to the rentols and other chargeD payoble by tenanta in the Shopping Center to
Landlord deriv d trom the Shopping Center or with respect to the Landlord's. or the individuala' or
en t it ies' which torm the Landlord herein. owneruhip at tho land and buildinga comprising the Shopping
Center. ond/or i 000 a tax or surchargo ot any kind or nature upon. against or with respect to the parking
areas or the nu ber ot parking spaceD in the Shopping Center. either in addition to or by way ot
substitution tor 0 1 or any port at tho taxes and aODessments levied or aaaasaad ogainat such land and such
buildings. includin . without limitation. any net protito tax or any comparable tax impoaed on any portion
ot Landlord's revonu strom the Shopping Center. then tor the purpose of this Section 3.05. Tenont ahall be
obligated to pay ita ohare thereot 00 provided herein. In addition. Tenont aholl pay to Landlord together
with each installment ot rent under thio Leaoe. the amount ot the Florida soleD. usa or other tax. now or
hereaeter imvosed UpOI rents and other Charges payable with respect thereto. notwithll,.ta.nding that .uch
statute. ordinanco or nactment impooing tho uame mol' endeavor to impoDo such tax upon Londiord. for
purposes he root . the ter "Shopping Centor" shoil. in any event. be deemod to includo any land upon which
temporary or permanont ot -'lito utility ayotCIIl9 ond any woodell urea. lako. shoreline thereof or i.lanl.l park
servina the Shoppinu Cent r are located with 011 improvements oituoted thereon. TaxeD ahall be deemed
levied or asscsoed with re ect to the calendar year in which the same oro first due end payable without
regard to the calendar yea or other accounting perioll shown on the tox bills used by the local taxing
authority. Tenant's proporti note shore ot the Taxes shall be equal to tha product obtained by mUltiplying
the Taxes by a fraction. the numerator ot which Dhall be the number or square feet at tloor area in the
Premises and the denominetor 0 which sholl bo the total number of square feet ot gross leased and occupied
floor a~ea in tho Shopping Cent
Tenant's the TaXes levied or assessed for or during the term hereot. a.
aetermined by oid in monthly installments on or be foro the first day of each calendar
month. in advance. in on amount timated by Landlord: provided that Landlord sholl hove the right to
initially determine monthly estimat s from timo to time. and Gllall hove the right to apply such monthly
installments to tax billa according to the tormula being utilizod by Landlord from time to time. Upon
receipt ot ull tox bills and osseosme t bills attribut~blo to any calendar or tiDcal year during the term
hereot. Landlord shall turnioh Tena t with 0 written otatement of tho actual amount of Tenant's
propor t iona t e share of tho Taxes for ch year. In the event no tax bill io available. Landlord will
compute the amount ot such tax. If tho t tal amount paid by Tenant under this Section 3.05 for any calendar
or tiscal year during the term ot this Le se shall be less than the actual amount due from Tenant for such
year. as shown on such stotement. Tenent hall pay to Landlord tho difterence between the amount paid by
Tenant and the actual amount duo. such deti iency. to be paid witllin ten (10) days after demand theretor by
Landlord: and it the total amount puid by Ten nt hereunder Cor any auch Calendar or fiacal yeor ahall exceed
such actual amount due trom Tenant tor ouch ye r. oucll excess sholl be credited against the next installment
oC tuxes ond assessments due from Tenant to Lal lord hereunder. All amounts due hereunder shall be payable
to Landlord ut the place where the Minimum Rent payable. In the event Landlord contests any taxea levied
or assessed durina the term hereof upon. agains or with respect to the Shopping Conter or any portion
thereof or intereot therein. or in the event at L ndlord'o negotiotion with respoct to aooesaed valuation
tor the Shopping Center. Tenant sholl puy its I oportionate ohare of Landlord's costs. expenae. and
attorneys' teos in connection therewith calculated n the same basis as oct torth ebove in this Saction
3.05. For tho calendar yoar in which this Lease co ences and terminateu. the proviaions ot thia Section
3.05 shall apply. and Tenant's liability tor its propo tionete ohare at the Taxes for such yeara shall be
subject to a pro rota adjustment based on the number of ays of said calendar or fiacal yeara during which
the term oC this Lease ia in eCfect. 1\ copy of a tax ill or assessment bill submitted by Landlord to
Tenant shall at all timeD be sufficient evidence of the om unt of tho Taxes aasessed or levied against the
property to which such bill relatea. Prior to or at the c vnencement ot the term at this Lease and from
time to tima thereatter throughout tho term hereot. Landlord shall notity Tenant in writino ot Landlord's
e&timate of Tenant'a monthly inatallmenta due hereunder. Tenan 'a obligationa under this Section 3.05 ahall
survive the expiration at the term of this .Leasa. RSG-'
Section 3.06
Payments
Rent shall be det1ned n this Lease os (i) Minimum Rent OInd (H) PQrcQJlto~~~ Rent h
speciCically agreed by Tenant to bo a reasonable Use end occupancy charge tor: the Premises. All other
charges ot whatever nature req red to bo paid by Tenant under this Leaso. including the Exhibit. hereto
ahall. unless otherwise specific bo duo and payable ten (10) days otter demond, without any deduction a or
5etott whatsoever. in the manner a at tho place where Minimum Rent is payeble and Tenant.. failure to pay
any such chorges sholl carry with it the consequences set torth under Article XIX hereof. Landlord'. rights
and remedies pursuant to thiD Sectio 3.06 shell be in addition to any and all other rights .and remediea
provided under this Leaso or at lew. the event any sums required hereunder to ba p~id are not received
on or beeore the day the seme are due. t cn. for each and every such payment. Tenant shall immediately pay.
aa additional rent. a service charge ot 0 Ilundred Dollars ($100.00) and if such sums ore not received on
or betore the seventh day etter the same re due. then for each and every such payment. Tenant ahal1
immediately 1'01' cn additionol oervice charga n tho amount ot tive percent (5l) or the amount due. In the
event or Tenant' a tuilure to PQY the foregoi oervice charge. Landlord may deduct aoid charge from the
secur! t l' depoai t oct torth in Section 25.01 h eot. The provision. ot this Section 3.06 ahall not be
construed to extend the dute tor payment at any s required to be paid by Tenant under this Lea.e or to
{l. S G/
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...c ".,. .- '~" ilor Cullectlol1 il:!, L!.\.;...~,..,... '. L 1,,," :;")"i~"i. "cc.v...;" ,-' ll.cca pursuant to this Section 3.06
shall be construed all a cure Iny defaul n payment by Tenant. It \ ',aurced that the said 8ervice charge
.1s a tair and reasonable ch~\..,;.J under the rcumstanccs Rnd Shil11 norbe r-----"ed aa intere8t on a debt
payment. Any amo ! trom Tenant to Land d under this LeaBO which 11 laid when due (including.
without limitation, amounts due as reimbursemcn to Landlord tor coata incurred by Landlord in pertorming
obligationo of Tenant hereunder upon Tonant'o fail 0 to so perform) shall bear intereat at the higheat rate
then allo~ed under the usu.y laws ot Florida trom e date duo until poid. unless otherwise 8pecitically
provided herein. but the payment ot 8uch interest sha not excuse or curo any detoult by Tenant under thia I
Lease, In the event any chorge imposed hereunder or un any other.~ection ot thi8 Lease is either atated
to be or cono~rued 00 interest. then no such interest cha e ohall be'colculated at 0 rate which ia higher
than the maximum rate which io ollowod under the usury lows Florida. Which maximum rate ot interest ahall
be substituted (or tho rato in excess thereot. it any. compu d purouan~ to this Lease. In the event any
check received by LandOI'd trom Tenant in payment ot any amou ts payable by Tenant under this Lease is
returned by Tenant's bank, Tenant shall pay to Landlord a service argo ot Twenty-Fivo Dollars ($25.001 for
each such Check upon rcceipt or on invoice thoreCor. ~,
------- ~------ -- ---- - -~-- -- ----- ----- -----:------:
~~ ~~."~ ",n'C"';';;"
ARTICLE IV
1\~&:'
nEconos NID DOOKS OF ^CCOUNT
'~4.01 Tenant's Records
Tenonl;.....shall preparo and keep full. cQmplete cnd proper boolls and source documenta. in accordance with
generally acCe ed accounting principles. ot the Grosa Sales. whether tor cosh. credit or otherwi.e. ot each
5eparate departme at any timo operated in the Premiseo and of tho operations ot each person conducting
buainess in the Premise and shall require and causo all ouch parties to prepare and keep books. aourc.
documentll, recordo and occ ts sutticient to oubstantiate those Ilept by Tenant. Tho books and source
documents to be kept by Tenant 011 include, without limitation. true copies ot 011 Federal. State end
local tax returns and reporto. recor ot inventories and receipts ot merchandise. daily receipt. tro~ 011
lales and other pertinent original sales rds and records of any othor transactions conducted in or tro~
the Premises by Tenant and ony other person onducting business in or trom the Premisos. Pertinent
original sales records ohall include. without l1mJ. ion: (i) cash reohter tapes. including tapu frolll
temporary registers. (ii) serially pre-numbered sales
alips. (Hi) tho orioinal records ot all mail ond tolephone ers at and to the Premises. (iv) aettlement
report sheets ot transactions with any person conducting busine in the Premises. (v) original recorda
indicating that merchandise returned by customers waa purchased at Premiaea by auch cuatomera. (vi)
memorandum receipts or othor rocords ot merchandise takon out on approval. ii) detailed original recorda
ot any exclusiona or deductions trom Grosa Soles. (viiil oales tax records. d (ix) euch other aelea
records, if any. which would normally be examined by on independent accountant pureu to accepted auditing
standards in performing on audit or Tenant's aale8. Tenant 8holl record ot the time or h 8ale or other
transaction. in the presence ot the customer. all receipto from such sale or other transactio whether.for
cash. credit or otherwioe. in 0 ca9h reoister or cooh reoistars having 0 cumuletive total which 11
sealed in a manner approved by Landlord and which ohall pooaeos ouch other teaturea aa ahall be require
Landlord.
& .
neports by Tenont
all turnioh to Londlord within thirty (301 days aCter the expiration at each qUllrter-annual
o complete otatement (hereinatter reterrod to 08 the -quorterly report.).
certified by Tenant. 0 emount ot Groos Sale8. as defined in Section 3.03 hereot. mode in. on or from
the Premiaes during oaid perio. ailure ot Tenant to timely submit ony quorterly report 08 atoresai~ ahal~
entitle Landlord to estimate Gross based upon availablo data (with a reconciliation upon receipt ,o~
the annual reportl. and Tenont Dhall be ob ed to pay percentage rent. as sot torth in Section ~.~2. ~~
lIuch eatimnted Gross Soles. Tenont shall also !oh to Landlord within thirty (30) doys efh;>' ~he
expiration ot each full lease year Q complete stateme certified by an independont certitied public
accountant. sl~wing in all reaoonable dotail tho amount ot ouch . so Sales made by Tenant from the Premises
during the preceding Leaso Year. Tenant sholl in all events turnish andlord within ten (10) days after
the end of each month or tho term ot this Leaso 0 written statement ot Gro olea covering the preceding
month. the statement to be in auch torm and etylo and contain such details and down aa Landlord DIal'
reasonably requiro. Tenant shall require and caulle any person other than Tenant conduct usines. in the
Premises to furnish stotements at the times ond in the torm and content specitied in thia n 4.0~.
relating to their operationa within tho Premises. ( /"_
.. RSu-
ARTICLE V
,~ '.
~
5.01 night to Examine Dooks
withstanding tho acceptance by Landlord ot paymento o( percentooe rent. Landlord .hell have the
right to 1 rento and other chorges actually due hereunder. and the right to examine. make extracta frOm
and copy. at e Premiseo or Tenant' s main accounting of t ice. Tenant. a books. source documsnts. accounts.,
recorda and aalo ax reports tiled with epplicable oovernment agencies by Tenant end those ot ell person.
conducting buainess tho Premises in ord~r to verity the amount ot Cross Sales in end trom the Premiaes.
for a period ot tour (4) ars otter the expiration ot each Lease Year. Tenant shall make ell such document.,
Bnd records available at th remioeo or Tenant's main accounting ottice upon three (3) day.' prior written
notice rrom Landlord.
Section 5,02
~
At its option, Landlord may at sny on three (3) dayo' prior written notice to Tcnont. arrange
Cor ,nn auditor selected by Landlord to omplete audit (including a physical lnventoC'f) ot tli..
entire records and operations ot Tenant and/or any son conducting businos. in the Premises concerning
business transacted upon or includable in Gross Sales t the Promisee during the period coveC'ed by eny
statement issued by Tenant or such othor person as above set rth in Artic'e IV hareot. Tenent ahall make
availablo to Landlord's auditor at tho Premioes or Tanant's ma accounting ottice within throe (3) days
COllowing Landlord'o notice requiring such audit. all or the booka. ource documents. accounta and records
reCerred to in Ssction 4.01 hereot and any other materiols which Buch itor doems necosllary or desirabl.
tor the purp08e or making such audit. Tenant shall promptly pay to Londlor he amount of any deticiency in
percentage rent payments di~closed by any such audit. It such audit sholl die so that Tenant'. atatement
ot Cross Solea in at variance to the extent or one percent (1\1 or more. Londlo may bill to Tenant th_
cost ot such audit. which ~hall be paid by Tenant within ten (10) dayo attor Tenant'. coipt ot Landlord.s
invoice, If such audit shall disclose that Tenant's statement ot CroBa Saloa ia at var ce to the extent,
ot three percont (3\) or more. thon Landlord. in addition to the roreooino remedy Clnd her rCllIod!os
available to Landlord. 8holl have the option. upon at least ten (10) daya' notice to Tenant. to lare this
Leoae terminated and the term ended. in which event this Lease Bhall coase and torminate on date
speciried in Buch notico with the Bame torco and eetect os though the doto Bet Corth in .uch notice ~er. e
,
.1
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f. Sa-
--....~...-.\l~lIa....a.7 I litH; ,'ort.n ncrr~..... l:na t1Xbcr ;:~.." ::na cxp.tratlon or t:1e Cerrll. und Tenant ahall V':\CQto end
. surren<l~ the Premiae9 but IIhall romain lia'Jle ror all obligatiOfl. ..ari8ing during tho bal.nco at tho
. original st d term as prov~ in thio Lease. In addition to the ~jgoing. and in addition to .11 oth.r
,rem~di ell ove 11 a "' ndlo~/ in the event Landlord or Landlord' 8 audita L .chadule a d.t. tor .n
Budi t or Tenont' s - - . JlI in accordanco wi th this Section 5.02. and Tenant .IIU.... tail to be avanable or
sholl otherwiuo roil to c ly with tho requiromenta Cor such audit. Tenant shell pey all coata and expenaea
associoted with the scheduled it.
In oddition to all other remod in the event that any .uch audit ahall ,
disclose thot Tenant's records and other do ents as reCerred to in Afticles IV and V hereot .nd auch other
materials provided by Tenant to Landlord's cud are inadequate. in the opinion ot Landlord or Landlord'.
auditor. to accurotoly dincloso Tenant' a Grous then Landlord ahall be entitled to colloct aa
odditional rental Crom Tenant on omount equal to CiCty cent (50%) ot the Minimum Rent payable by Tenant
Cor the period in question. Landlord'o exercise ot the tore 19 remedy shall in no way limit or otherwi.e
aCCect Landlord' s ability to exercise other remedies avallabl 0 it. nor .hall Tenant'. oblig.tion.
pursuant to the terms. covenants and conditions oC this Leose (in ing. without limitation. Tenant..
obligation with respoct to reporting Gross Sales and poyment ot percentage t) be in any manner reduc.d or
diminishod by tho exerciae oC such remedy. In the event that Tenant shall. f wing tho exerci.. ot .uch
remedy. provide to Landlord all records and documentotion os roquired to be provi
ot this Leaae ao aa to permit Landlord'. auditor to occurately establish Tenant's Groas os tor the p.riod
in question. Tenant aholl bo permitted B credit with respoct to any amount oC additional ren
Landlord Crom Tenant pu(auant to thill Section 5.02. with auch credit to be epplied Urat
installment of percentage rent duo Crom Tenant for tho period in quostion. with any remaining
applied against the next installment oC perc~ntago rent payable by Tenant.
ARTICLE:: VI
Rso-
. ."
CO~lT'10tl AnEI\S
Saction 6.01
Operation and Maintenance oC Con~on Arcos
Landlord sholl cause to be operated Bnd maintained during the term oC this Lease all cOmmon ar...
within Big Pine Key Shopping Plaza. Tho manner in which such areas and tacilities shall be op.rat.d and
maintained. and the expenditurea thereCor. sholl bo at the Dole discretion ot Landlord and the use ot .uch
oreas and facilities ohall be aubject to ouch reosonable rules end regulations as Landlord shall ~ak. from
tima to timo.
Section 6.02
Use oC Common Areas
(a) Tha term .common areas.. os used in this Lease. shall mean (i) the fOllowing erea. within Big
Pine Key Shopping Plaza: parking areas. roadways. pedea trian sidewalks and walkways. pedestri.n plaza...
pedes t rian passago areos. driveways. public t ranaportation loading and unloading foci Ii tie.. truckw.y.,'
retaining walla. looding docko. delivery areas. landacaped arcaa. community rooma. ottice f.ciliti....ber~..
elevatora. escalators. atairs. romps and vertical transportation Cacilitles not contained within any l....d
premises. public restrooms and comfort, IItations. sorvice aroos. lIorvice and Ure and exit corridora~
passagewnys. retention ponds (it applicable). and other areas. amenities. decoration.. hcilities and
improvements providod by Landlord. (ii) thosa oreaa within Big Pine Key Shopping PIGza and areas adjac.nt to
Dig Pine Key Shopping Plaza which trom time to time may be provided by the owners of such ar.a. tor the
convenienco and use oC Landlord. the tenontll of the Shopping Center. the ownera ond occupants ot the Key
S tore Sit es. and their respective concessionaires. ngenta. employoes. customers. inviteea and all other
licenaees and others entitled to the use thereoC and (iii) any otller facilities or orca.. whether within or
outsido Dig Pino Key Shopping Plaza. 09 may be designated by Landlord trom time to time. The \lIe and
occupancy by Tenant oC tho PremiseD sholl include the use oC the common orODS in common with Landlord and
with all othera tor whooo convenience Dnd UGe the common areas have been or may horestter be providedtjy
Landlord or by the ownero ot common areas not within the Shopping Center. subject. however. to rule. lan4
regulationn for the UBe thereoC aa prescribed from timo to time by Landlord or the owner ot auch common
area. including tho right oC Landlord to determine the hourg and modo ot operation of tho tranaportation
!acilitiea serving the Shopping Center. and including tho right oC Landlord or such owner to impoae parking
churgea. whether by meter or otherwise. In no ovent. however. shall Tenant. its egente or employees. use
the common orells Cor the display or Dale oC merchandise.
~sf!
(b) Tenant and its employees shall pork their cora only in aroas specitically designated trom
time to time by Landlord Cor that purpose. Tenont covenants that it will entorce the parking by it. <"._
emplol'eell in auch deaignated arens. ...). ..._ldl ....I.L." - -. ~ If I'I~V^^_' --.- .h,QI'~"I".ftl_"_1 ....S
T~.._. . ~t ...a...Jd) UPUII I..UIIU...v[ a .. . ...~w~..4. In the event any vehicle is parked by en employe. ot Tenant in ~..,;,
II non-employee parking nrea. Landlord sholl have tho right to cnuse the vehicle to b. towed to a location. ,
designlltod by Landlord and Tenant ahall be obligated to roimburse Landlord for all towing charges. and. in
addition. Londlord may charge TOllant and Tenant shall pay to Landlord aa additional rent. Twenty-Fiv.
Dollars ($25.00) per day per outomobile 00 parked by on employee ot Tenant in a non-employee parking area.
Tenant shall hold harmleG8 Landlord and detend Landlord. ita agents and employees against any and all claima
of tho emplol'oe and/or owner oC the vehicle towed.
(c) Landlord moy at any time close temporarily any common DreG to make repair. or chang... to'
prevent the acquisition oC public rights in auch area, to discourage non-customer parking. to us. ar.a. tor
attendant or vnlet porking. nnd moy do such 9ther llCts in and to ~he convnon arella 1111 in itll judglllent lIIay bo,
desirable to improve tho convenience therooC.
6.03
Tenant's Pro Rata Share or Expenses
(0) Tenant agrees to pay to Landlord in the mllnner heroinatter provided. but not more.otten than
once each ndar month. Tenant's proportionate ahare ot: (1) 011 costa and expenao. of every kind and
natere paid or rrod by Landlord in operating. equipping. policing and protecting. lighting. heating. air
con~itioning, provld onitation and other services. providing a music and public addresa .yatom. insuring
(including selt-insurance the payment ot deductible omount. under insurance pOlicias). repaidng.'
replacing and maintaining the ( ommon areas (including any parking decka maintained by Landlord) and eii)
all buildings Dnd rooCa within the ping Center and (11i) all othor ucos. facilities and buildinga.
vertical transportation Cacilltie.. rete n pond. (it applicablo). and Gny and all facilities and
improvements connecting the Shopping Center to t-sit. buildingll or ereoa. which are u..4 in connection
with the mointenance and/or operation oC. and wheth ocated within or outaid. of. Dig Pine Key Shopping
Plazn (hereinafter collectively reterred to os .Project ~.): such coat. and expense. ahall.include. but
shall not be limited to. the full cost ot: illumination. re . deaign and maintenance of Big Pin. K.y
Shopping Plazo'u aigns and othor signs. inCormational or directiona. ether located on or otf 8ig Pin. Key
Shopping Plaza: roCuse disposal. water. gas. sewage. electricity and ot utilities (without limitation)..
inc ludinl;j any and all uaage. service. hook up. connection. availebility an 8 tandby tee. Or' charg..
pertaining to 8nme. end including all costs e8sociated with the provi.ion. maintano and op.ration of any
temporary or permanent utility. inClUding a sewage dillpoDnl aystem. within or without Dine Key Shopping
Plaza. built. operoted and/or maintained for the specitic purpoa. ot aervicing Big Pin. Key in; Plaza.
together with hook up or connoction fees and aervice chargea: compliance with rulea. ragulation. a rdora
- 6 -
or.;.~
.;,.~- ;r-S'G-
I~"
.......
~__"',,________'U______.i-_ - ~-~.'-_.._--- ....-.....---n.......v ....... n.r ::--::';,:--.l.I~~on c;:unci,-o,,:,. J.n;;;.:.;;cu.nv ;;;;ne coat or monitoI..ing air
qual1-/; ; cleaning. liQhting. striping and landscaping (intcr-ior 8f" '1xter-ior); curbs. gutter.. .idowalk..
droinaQ and irrigation tift, . s. conduito. pipao and canals locate~, or adjocent to Dig Pin. Key Shopping
P1aza; pr uma .~~ 'jabili~ casualty. and property insuranco (includin, in.uranc. and the expon...
incurred by d ,lative to inaurance appraisals. adjuoter. and con.~ I; personal property taxes:
licensing !ecs taxea; audit toeD and expenses; supplieD: all costD and expense. ot entorcing the rul.s
~nd regulations eat liahed by Landlord tor the Shopping Center: co.t. leaoe payment. or depreciation ot any
equipment uoed in the eration or maintonanco ot tho COlMlon llreos or projoct araaa: total compenaation and
beneUt. (including prol umo tor workors' componaotion Ot" any othor inaurance or othor rotirelllent or
employue beneUto. and inc ding 011 cooto incurt"ed in providing auch bcne!itll) poid to or on behelt or
employee. involved in tho pe rmanco ot tha work opeci!1ed in thll1 Saction 6.03 or employee. otherwi.e
pt"ovidino oot"vices to tcnunto or uotomero ot tho Shopping Center: (2) ,011 dues. IIssea.ment.. impo.itions.
chargos and other amounto allocablo Dig Pine Key Shopping Plaza payable to any association(a) ot prop.rty
owner-s ot propertieD which include Dig ino Key Shopping Plaza; and (3) an amount equal to titteen p.rcent
(15\) o! the total o! all or the toregoin osts and expenses tor Dig Pine Key Shopping Plaza. to camp.n.at.
LandlOt"d tor odministt"otion oet"viceo. The p ortionato oharo to be paid by Tenant aholl be that portion o!
the foregoing cooto end expensoo which tho numb ot squar-e teet ot floor area in the Premiae. beara to the
totel number o! oquaro feet ot gross leaood and oc ied floor area of all buildings in the Shopping Center.
(b) Tenant's proportionato shore or such costs expenDes tor each colendar year ahall be psid
in monthly installments ~n the tirat day o! each calendar nth. in advance. in on amount e.timatod by
Landlord f.om time to timo. Suboequent to the end of each alendar year (or ti.cal leaa. year. at
landlord's option). Landlord shall !ut"niph Tenant with 0 atote t of tho actual amount ot Tenant'a
pr-oportionate ohare of such costs and expenses tor such period. It t totol amount paid by Tenant under
this Section 6.03 tor any such yoat" shall be less than the actual amount IUD from Tenant tor auch year as
shown on such statement. TClnant sholl pay to Landlord the diUerence botweol the amount paid by Tenant and
the actual amount duo. such de!icioncy to be paid within ten (10) days aftor e furniShing ot each auch
statement. and it the total amount paid by Tenant hereunder for any such year all exceed auch actual
amount due from Tenant tor ouch year. such exceso shall be credited against the nox installment due trom
Tenant to Landlord under this Section 6.03. Landlord may estimate tho annual bud t and charge the
estimated share to Tenant on 0 monthly basia subjoct to revision by Landlord ot the budgot m time to time
and !inal annual adjustment booed upon actual expenoes. Neither the provisiona or thia Sect n 6.03. nor
any o! tho other requiremonts or reotrictions impooed upon Tenant under thill Leaso. ahall .xcu.e ant trom
its oblioation to comply with lawa and ordinances and other governmental requirement a aa ..t th in
Section 7.02 he.eot.
AHTlClE VII
~',,:.~
,;..' -7'P.S~
~ . .. ~. \
CONDUCT OF OUSItlESS UY TEl/liNT
Section 7.01
Une of Pr-cmises
. I II'"
'.1 ..
Tenant ohall continuouoly use alld occupy tho entit"e Premises during tho term ot this Laa... which u..
and occupancy ahall be sololy for tho purpose of conducting tho businoss specifically ..t forth in S.ction
1.01Ij) horeot and tor no other purpoao or purposes. It io agreed that tho use apecitled in Section 1.01(J)
hereof hoa been. and is. a moterial inducement to Landlord in entering into this Lease with Tenant. and that
Landlord would not enter into this Lease without this inducement. It any governmentol licena. or permit
ihall'be required tor tho proper ond lllWrul conduct or Tenant's business or other activity carried on in the
Premises or it e railure to procure ouch 0 license or permit might or would in any way etrect L.ndlo~d or
the Shopping Center. then Tenant. at Tenant's expense. shall duly procure and thereatter msintain ..uch
license or permit and submit the sarno tor inspection by Landlord. Tenant. at Tenant'a expena.. ah~l.l. at
all times. comply with the requirementa of each such license or permit. ",
Section 7.02
Operation of Ousiness
(0) Tenant sholl be open tor buoiness and operate continuously. during all day. and hours.
established by Landlord. in allot the Premises during the entire term ot this Lease. and shall conduct ita
business at all times in 0 rirut claas and reputable manner. In the event the maximum houra during which
the Shoppino Center is legally permitted to be open to the public are regulated by any lawtul authority.
then landlord sholl be tho sole Judge or which' days and houra aholl be Shopping Center business days and
houro.
(b) Because ot the !ticUlty or impooaibility or dotermining Landlord's damagas by way ot loa.
o! the anticipated percent ago rc t rrom Tenant or other tcnonto or occupants or the Shopping C.nter. or by'
way ot loss o! valuo of the Shopp a Center becouae ot diminished saleability or mortgageabi11ty or adver..
publicity Ot" appcat"onco by Tenont's ction. shOUld Tonant (1) foil to toko posses.ion and open tor buainss.
1n the P.emiscs tully tixtured. stock ond stot!ed on the Commencement Dato. or (il) abandon. leave vacant
ot" desert tho Premiaa9. or (iii) cosse perating or conducting Tenant's business in accordance with the
term. or this Section 7.02. or (iv) !ail 0 retuoe to maintain buainess hours on .uch day. or nights or any
part the reo! os provided in this Section . 2. then and in any ot such events (hereinaner collectively
referred to os "failure to do business"). Lan ord shall hove the right. in addition to any and all other
rights or remedies Landlord may hove under this easo or at low or in equity. at Landlord's option (i) to
collect not only Minimum Ront and all ite~B ot a ditional rent herein reserved. but also additional rent
equal to the amount of Minimum Rent reserved tor th period o! Tenant's failure to do business. computed at
a daily rote tor each and every day or part thereo during such period. Such additional rent ahall be
deemed to be liquidated damages in lieu or percentage ent that might have been earnod by Landlord during
s~,h period. ond in addition. at Landlord:o option (ii) t treat ouch tailure to do businesa aa a default by
Tenant hereunder. failure or Tenent to opan and operot as herein required shall. el!titl~. Landlord. in
ad~ition to all other remedieD provided in this LeoGe. to man tory injunctive reliot~ ._.'.~_.. ~
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(c) Tenant. nt Tonant's expenao. ohall promptly comply with all proBant snd tuture law~;
or-dinances. orders. rulas. regulations and rcquiroments ot 011 governmontol outlloritiou having Jurisdiction.
affecting or applicable to tho Premises or the cleanlinous. safety. occu~ancy nnd use ot the aame. wheth~r
or- not any such low. ordinance. ot"der. rule. rogulation or requiremant is substantial. or torea.en or
un!or-eseen. or ordinary or extraordinary. or shall nacessitate structural changea or improvemanta or
intet"!ero with the use and enjoyment or the Premisea. Tenant sholl not do or permit anything to be don. in
or about tho Pr-emioell. or bdng anything therein. which will in any WilY contlict with '.ny auch law.
ordinance. order. rule. regulation or requiremant a!!octing the occupancy or U80 ot the Premillea or 8ig P!ne
Key Shopping Plaza which io or may hereatter be enacted ot" promulgated by governmental autho~iti.s. or in
any way obst.uct or intertere with the rights ot others. nor Dhall Tenant uso or allow tho Premises to be
used tor any improper. immoral or objectionable purpoaes or the sol. ot any merchandise which i.
~~~ectio~~ble. ~8 dete~mincd by landlord. ~~t eh~t ~U((~~ ~. I'w....i~ ony ti~QU~m8 ~o 08 8Lg.~4 un
--. P....m. .Ie F'I'I" .~ ha. a ""'1.~.IIl" carr y TenanL w. _,~ 0;1:' r~.. l!...pfij~nir &:';:=OI,::;J."I R"l S'lrlfplllngo-
.~. Tenant 8hall comply with all state and local laws in eUect trom time to tima prOhibiting
discrimination or sogragation by reason ot race. color. ro11gion. sex or nationd origin. RfS6---'-:.-
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(d) No auction.' ~idation. ooing out or business. rire~bankruPtcy .ale. may be conducted or
advertised by i~" ~~ ~thQr~ in the Premises or in any advertising media lnt sh.ll di.pl.y .nd .ell
only Urat-qua i rrent-seoson merchandise and Tenant's sales prac'_ sh.ll be in .ccord witb
standards and p sctices generally acceptablo in enclosed rirat-class. rull-rotail-price rogional ahopping
centers. Tensnt Ghall permit returns or merchondiuo and cash retunds on such returns. except in connection
with special 801 and close outs. Tenant agrees that it will conduct its bU8ine8s in gOod faitb. and will
not do eny oct te~ding to injure the reputation or the Shopping Center os dotermined by Lendlord. ten.nt
shall not aoll or display any parapharnalia usod in the preparation or consumption of controlled .ub.tance..'
In the event-Landlo d has approved Tenant's remaining open for business artar normal Shopping Center hour..
then such approval 011 be conditioned upon Tenant's paying ror all additionol costs incurred by Landlord
os a reuult thereor. Tenant eholl not permit noise or odors in the 'Premioes which are obJ.cted to by
Landlord and. upon wr tten notice rrom Landlord. Tenant aholl immediately ceaso ond dasi.t from ceu.ing .ucb
noise or odor. roilin or which Landlord may deem the sumo 0 material breach or this Lea... Tenant .h.ll
not permit the operati or any coin operated or vending machines or pay telephones on the Premiae.. other
than in tho areou roser ed uololy ror tho use or Tenant's employees. Tenant ohall not aell or diapl.y .ny
merchondioo within rivo eot (5') ot the storerront leaoeline or opening unleoo euch aal. or diaplay .hall
be expressly approved on tho Store Deuicn Drowinou or otherwise approved by Londlord. in writing. except
that Tenant sholl be porm ted to display merchandise in the display window.. ir any. Tenant .holl not ua.
the areas adjacent to the remise. tor buaineso l'urpooeu. Tenant uhall not otore anything in .ervic. or
exit corridors. Tenant aor 00 that 011 receivinc and delivery or goodo and merchandiao. and all removal ot
merChandise. suppliou. oqui ent. trash and gorboce. and all otoraoe or traa~ and garbage. .hall b. DIode
only by way or or in the area provided thorefor by Landlord. Tenant aholl not use or pormit the U.e of any
portion ot tho Prcmisos au ole ping quartars. lodginG roomo. or for any unlowtul purposes. Tenant .hall not
install any radio or televiuio or other similar device exterior to the Premises and sholl not erect any
aerial on the root or exterior walls ot any building within Dig Pine Key Shopping Plaza. Landlord Jnay
direct the uso ot 011 peat exte mination contractors at the sole coat and expense ot Tenant and .t .uch
intervals as Landlord may require. Failure at Tenant to employ the pest extermination contractor deaignated
by Landlord ahall entitlo Landlord to employ such contractor with respect to the Premises and Tenant .hall
reimburoe Landlord tor tho cost thor ot. -
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(e) It requested by Landlo Tenant sholl keep tho display windows in tha Premi.a. well lighted
from dusk until ono hour atter Closing. or such other reasonable time as determinod by Landlord. during ..ch
and every day or the term ot this Lease. unless prevented by causes beyond the control ot Tenant.
Section 7.03
Competition
During tho term or thio Leo . in the event Tenant. its parent corporation or suboidiory corpor.tion.
or ita rronchisor or franchisee. or any person. r1rm. corporation or other entity which directly or
indirectly controls or is controll d by Tenant. sholl. directly or indirectly. either individually or .. .
partner or stockholder or otherwio . Own. operate or become tinoncially interested in any buaines. .imilar
to or in competition with the buoine s ot Tenant deucribed in Section 7,01 within 0 radius ot ten (10) Mile.
trom the closest point ot the outai e boundary ot Dig Pine Key Shopping Plaza to the aimllar or compeUng
business in question. then the Gross Sales (as detined in this Loose) oC any such buaines. or bu.in.....
wi thin ooid rodiuD sholl ba included in the Groaa Solos mode trom tho Premises and the percent.g. rent
hereunder shall ba computed upon the o~regata or the Gross Sales modo trom the Premises snd by .ny .uch
other business or buuinesses then condu ted within said radius and Tenant uhall report and maint.in record.
of such soles in the manner provided i Article IV hereor and Landlord sholl hove the right to .udit the
same as provided in Article V hereot. This Section 7.03 ohall not apply to any ouch businoss or bU.in...es
open and being Operated by Tenant within said radius os or the execution ot this Leose.
Section 7.04
Storage; Of rico Space
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Tenant shall warehouse. Dtore and/o in the Premises only ouch goods. wares ond merchandise ~s
Tenant intends to offer tor oale at ret 11 prices at. in. trom or upon tho Premises. Thi. sh.ll not
preclude occasional emergency transters at erchandise from tho other stores oC Tenant. it any. nO~'loc~ted
in the Shopping Center. Tenant shall use to otfice. clerical or other non-soiling purposes only .uch apace
in tho Premises os io Crom time to time reooon bly required ror Tenant's business in the Premise.. '
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Section 7.05
Core of Premises
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Tenant. at Tenant's expense. shall at all times koep the Premioes (includino the service aree. adj.cent
to the Premises. display windows. otorerront and signs) orderly. neat. sore. clean and tree trom rubbish and
dirt. and vermin. and shall otore all trash. garbage and other solid waste within the Premise.. Tenant
shall not burn any trash or garbage ot any tima in or about DiO Pino Key Shopping Plaza. Landlord lIIay.
direct the use by Tenant at Tenont'o expense or ell solid waste disposal contractors at such interval. ..
Landlord may require. Ir Landlord shall provide or contract Cor any services or tacilitios tor solid wIste
piCkup. then Tenant uboll be obligated to use the sarno and shall pay 0 proportionate shore or the .xpense
thereat within ten (10) days arter being billed theretor. It Landlord does not provide such service..
Tenant shall arrange ror the reGular pickup or all oolid waste at Tenant's expense.
I\.RTlCLE VIII
UTILITY' CHAnGES
Section 6.01
Utility Charges
(a) Tenant sholl be solely responsible for ond promptly pay 011 Charges ror water... glS. heat.
electricity. sewer and any other utility used upon or turnished to the Premises. Tenant shall contract
directly with ond .hall be solely responsible to the public utility companies for the instaUation of
service and the payment of all charges for Tenant's usago of such utility services. IC Landlord aball elect
to supply any of the forogoing utilitiea used upon or furnished to the Premisea. Tenant ogree. to purch..e
and pay Cor sarno 00 additional rent. within ten (10) days ot the prosentation by Londlord to Tenant of bill.
thereCor. at the rates which would be applicoble to Tenant as a direct customer oC the public utility
company. as uuch rates oro tiled by the utility company serving the. area with the proper r.gulating
authority and in efCect Crom time to time Covering such services. The obligation of Tenant to pay Cor .uch
utilities shall commence os of tho dote on which possession or the Premises is delivared to Tenant. without
regard to any free rental period or formal commencement doto or this Loose.
(b) Landlord aholl not be liable to Tenant ror any loss. damago or expe'nse which Tenant IlI.Y
lJustaln it the quality or charactor ot utilities used upon or turnished to tho Premiaes .re no longer
available or suitable for Tenont's requirements. or ir said utilities are interrupted .. a reault ot .ction.
uy the public utility companies or any couse other thon Landlord's negligence or willful detault.
(c) Any turnishing by Landlord ot light. heat. air conditioning or power shsll be conditioned
upon the availability or adequate energy sources. Landlord shall hava the right to reduce heat. lighting
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. and air conditioning within th _hopping Conter; as r;oquiL'cC: by af.y mi'-.' dtory or voluntary Cuol or onorgy
liaving allocation. or any sim.. . : statute. regulation. order or pro~!. without such action diminishing
Tcn~nt 's obligatic !under~
(d) Tenant oholl be r~onSible tor th'C paymont or th.. plent capacity and mdn ext.ndon chargo
and any other tapping. connectio and uso charges and tees imposed by any governmental units or utility
companies in connection with any ility oervico to the Premises. It Landlord hos paid tho Bamo. Tenant
shall reimburso Landlord theretor, I~
f\ ~ u'"
I\RTICLE IX
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Section 9.01
Signs
Tenant sholl atrix 0 sign to the exterior surtoce ot the storetront ot the Premises and shsll maintain
gaid sign in good condition and repair during the entiro term or thia Leoae. Said sign shall conform to the
criteria tor signg contained in Exhibit .C." and tho size. content, design and location thereof .hall be
subject to tho prior written approval ot Landlord. Except os hereinabove mentioned, Tenant shall not place
or cause to be placed. erectod or maintained on ony exterior door. wall. window or the roof of the Pr.mi....
or on tho glass ot ony window or door ot the Premises, or on any sidewalk or other locetion out.ide the
Premises. or within any dioplay window Space in the Premises. or within rive (5) feet of the front of the
storefront leaseline or opening. whother or not there is 0 display window space in ths premi.e.. or within
any entranco to tho Premisos. any sign ,nashing. moving. hanging. handwritten. or otherwi.e), decd.
placard, decoration. tlashing. moving or hanging liohts. lettering. or an~ other adverti.ing msttsr of any
kind or description. Tenant shall not utilizo ony displays which are not part of the fi~ture plen epproved
in writing by Landlord tor the Premioes. It Tenant ploces or cauweo to be placed or maintain.d any of the
foregoing. tho samo may be removed by Landlord without notice and without 8uch removel con.tituting a breach
of this Leaso or entitling Tenant to claim damages on account thereof. No symbol. design. name. merk or
insignia adopted by Landlord tor tho Shopping Center ohall be used without the prior written con.ent of
Landlord. No illuminated oign located in the interior ot the Premises and which i8 visible from the outaide
thereot shall be permitted without the prior written approval ot Landlord.
ARTICLE X
MAINTENANCE OF TilE PREMISES
Section 10.01 Landlord's Obligations tor Maintenance
Landlord sholl keep and maintain tho toundation. the outer walla and roof ot tha building in which the
Premises are located in good repair. except thot Landlord sholl not be collod upon to ~aka .n~ such rep.irs
occasioned by the oct or negligence or T.nant, ita egent.. employeea. invit.... licen..e. or contrector..
Landlord ahall not ba call.d upon to make any other improvements or repair. of eny kind upon the Prami.e.
and appurtenanceo. except 08 may be required under Article. XVI and XVII hereof. and nothing contained in
this Section 10.01 hereot ahall limit Landlord's right to reimbursement from Tenant for m.int.nence. repair
coata and replacement coota conterred elaowhere in thia Lease.
Section 10.02 Tenant's Obligations tor Maintenonco
(a) Except liS provided in Section 10.01 hereo!, Tenant. at Tenant's expenee. ahall keep end
maintain in tirst clasa appearance, in 0 condition at least equal to that which exhted when Tenant
initially opened tho Premisos tor business. and in good order. condition and repair as determined by
Landlord (including replacement of ports and equipment, it necessary) the Premisos and every part thereof
and any and all appurtenances thoreto wherever located. ond all other repairs. replacement.. renewal. end
restorations. interior and exterior. ordinary and extraordinary, foreseen and unforeseen. and all other work
pertormed by or on behaH ot Tenant purouant to Exhibit MC" and Section 10.03 horeof.
(b) Tenant ohall keep and maintain the Premises in a clllon, sanitary and safo condition in
accordance wi th the laws or Florida and in accordance wi th all directions, rules IInd regulation. of the
heolth otricer. tire marshall. building inspector. or other proper orriciole of the governmontol eoonci.s
having jurisdiction, end Tenant ohall comply with all t-equirements ot law. ordinance. ond otherwi.e.
atrecting the Premises. sll at tho solo cost and expenoe or Tenant. At the time or the oxpiration Or .oonar
termination or the tenancy created herein, Tenant ohall our render tho Premises in good order. condition ond
repair.
(c) Tenant ohall keep the Premises and all other ports or Dig Pine Key Shopping Plaza free fro~
ony and all liens arioing out ot any work pertormed. materials turnished or obligationa incurred by or for
Tenant. and agrees to bond against or dischargo any such lien (inclUding. without limLtation. any
construction. mechanic's or m.oteriolman's lien) within ten (10) doyo aftor writt.n reque.t therefor by
Landlord. Tenant shall reimburso Landlord ror any ond 011 costs and oxpansos which 1II0Y be Lncurred by
Londlord by reason of the tiling ot any ouch lions and/or the removal of Barno. such reimbursement to be ~.de
within ten (10) days attor written notice from Landlord to Tenant setting forth tho amount of auch coat. and
expenses, Landlord's interest in the Premices and the Shopping Center shsll not bo subject to a lion for
any improvements made by the Tenant. or tor any work done or materisls furnished to the Prami.e. or tho
Shopping Center at Tenant's roquest and Tenant sholl notity any contractor employed by Tenant to do wo.rk on
or turnish materials to tho Premises (or. ~ith Landlord's prior written consent only. other portion of the
Shopping Center). prior to Tenant's entering into 0 contract with eny such contrector. that Landloed'.
interest 1n tho Premises and the Shopping Centor is not subject to such a lion nnd the foilure of Tenant to
&0 notify any such contractor Dhall be deemed a de!ault hereunder.
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(d) Tenant. at its own exponse, shall install and maintain Ure extinguiahora and other Ure
pro\ection devices os may be required from timo to time by any aoency having jurisdiction thereof and/oe by
the insurance undorwriters insuring the building in which the Premises ore locatod.
(e) Tenant agrees to operate its heoting and its ventilating and air conditioning .ystell(s)
serVlng the Premises during regular Shopping Center business hours. to maintain comfortable conditions.
Temperatures in the Premises shall bo maintained in accordance with Landlord's requiremont..
(r) Tenant expressly waives all rights to make repairs at the expense of Landlord au provided for
in any Gtatute or law in ertect during the term or this Leoso.
Section 10.03 Alterations
(a) Tenant shall not meke or couse to be mode any alterationa. addition. or improvomont. to the
Premises without tho prior written approval oC Landlord in each instance. Tenant sholl pre.ent to Landlord
plana and speciricationo tor such work at the time approval is eought. in accordance with crLt.rLa and
procedures as provided in Exhibit "C.,
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. . . \ VI />1'.. oltCratlol111. .J\::ot'iHloll", tiGllit16(w unu improvement.. .,Iodo by Tenent shall bl) deemed to
'have attached to tho 10a.ohoJ'" and to have bdcome the property oC. ....dlord upon luch attachment, Upon
-expiration ot this LealO. l\..;....it shall not remove any oC such oVation.. decoration.. addition. or
l(llprQvementll, Tra uroa "Iiiatalled by Tenant llIay be removed 1C all renl other Charge. due herdn
are paid in Cull a..~ .~..dnt is not otherwise in deCault hereunder. provided tllat Tenant repair. any damage
to the Premises caused by such removal. Landlord may. however. designate by written notice to Tenant tho.e
alterations. decorations. additions. improvements. or trade Cixtures which shall be removed by Tenant at the
expiration or termination ot the Lease. and Tenant shall promptly remove the same and repair any daDags to
the Premises caused by such removal.
ARTICLE XI
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INSURANCE ANO INDEMNITY
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Section 11.01 Tenant's Insurance
(a) Tenant shall. at ite sole cost and expense. during the entire term hereot. procure. pay tor
and keep in tull Corce and eCCuct: (i) an occurrence for~ comprehenoive gonoral liability pOlicy. inCluding
insurance ouainut aS8umeu or contractual liability undor this Lease with respect to the Premiae. end the
operations ot Tenant and nny person conducting business in. on or about the Premisell in which the limits
with respect to personal liability and property damage ahall be not less than One Million Dollara
($1.000.000) per occurrence: (ii) all risk property insurance. including theCt and. it applicable, boUer
and maChinery coverage. written at replacement cost value in an adequate amount to avoid coinsurance and a
repl acemen t COll t endorllemen t insuring Tenan,t' a merchandise. t rsdo t ixtures. furnishings. equipment, plate
glass. signs and personal property of Tenant and including property ot Tenant's customers located on or in
the Premises: (iii) workers' compensation coverage as required by law: (iv) with respect to alteraUon..
improvements and tho like required or permitted to be made by Tenant hereunder. contingent liability and
builder's risk in~uranco. in amounts satisfactory to Landlord: and. (v) product liability coverage.
including. without limitation (iC this Loase covers Premisea in which tood and/or baverages are sold and/or
consumed). liquor liability coverage (if applicable to Tenant's business) and coverage tor liability ari.ing
out oC tho consumption ot tood and/or elcoholic beverages on or obtained at the Premises. ot not less than
One Million Dollara ($1. 000.000) per occurrence for personal injury and death and property dalllage. Froll
time to time during tho term ot this Lease. at Landlord'o request. Tenant shall (i) procure. pay for and
keep in tull forco and oCCect such other inourance as Landlord or Landlord'. mortgagees .hal1 r.quire and
(ii) increase tho limits ot 8uch insurance as Landlord or Landlord's mortgegee8 8hal1 require.
(b) All policies oC insurance required to be carried by Tenant pursuant to thia SecUon 11.01
shall be written by responsible insuranco companies authorized to do busine8s in Florida. Any .uch
insurance required oC Tenant herounder may be furnished by Tenant under any blanket policy carried by it or
under a soparate policy theretor. A copy ot each paid-up policy evidancing 8uch insurance or a certificate
oC the insurer. certiCying that Quch policy has been issued. providing the coverage required by this Section
11.01 and containing provisions specitied herein. shall be delivered to Landlord prior to the commencemont
of the term of thia Loaoo and. upon renewala. not lella thon oixty (60) days prior to the expiration oC auch
coverage. Landlord may. at ony time. and trom timo to time. inspect and/or copy ony ond all insurance
policios required to bo procurod by Tenant hercunuor.
(c) Each policy eVidencing inuurance required to bo carried by Tenant pursuant to this Section
11.01 shall contain tho Collowing provisions and/or clauses: (i) a cross-liability clause: (ii) a provision
that such policy and the coverago evidencod thereby shall be primary and non-contributing with re.pect to
any policies carried by Landlord. and that any covorage carried by Landlord shall be excess insurance: (iii)
a provision including Landlord and any othor parties in interest designated by Landlord as an additional
named insurcd (except with respoct to workers' compensation insurance): (iv) a severability clause: and (v)
a provision that the inuurer will not cancel. materially chango or Cail to renew tho coverage provided by
ouch policy without Cirut giving Landlord sixty (60) days' prior written notice.
(d) hall not corry any stock oC goods or do anything in or about the Premises which will
in any way tend to inc so tho insurance rates on the Shopping Center. Dig Pino Key Shopping Plaza. the
Premises and/or the buildil ot which they are a port and/or the contents thoraof. If Tonant installs ~ny
electric~ oquipment that over ds the linco in the Premises. Tenant shall at its own expense make whatever
changes ore necessary to compl with tho roquirements ot tho insurance underwriters and governmental
authorities having jurisdiction ove he Premises, If anything done. omitted to be done or suCCered to be
done by Tenant. or kept or suCCered b enant to bo kept. in. upon or about the Premises shall cause the
rate oC Cire or other insuranco on the Pisco or other property ot Landlord in companies acceptsble to
Landlord to bo increased beyond tha minimum e from time to timo applicablo to the Premisc8 tor the use
permitted under this Lease or to ony othor prope for the use or uaes mado thoreof. Tenant will pay the
amount oC any increascs.
Land10rd'u Insurance
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Section 11.02
During the term hereoC. Landlord sholl provide. to the extcnt the some is available from Landlord'.
insurance carrier. in nmounts and coverages determined by Landlord. with or without deductiblea. insurance
coverage againat such risks es are Crom time to time included in 0 standard extended coveraga endoraement.
insuring the improvements to the Premises provided by Tenant pursuant to this Lease (eXClusive of Tenant..
merchandise. trade Cixtures. furnishings. equipment. plate glaos. oigna and personal property) in an allount
determined by Landlord. Landlord moy also carry at ita option special extended coverage endoraementa.
Tenant shall submit to Landlord on 1temized'otatement setting forth the cost at such improvement. promptly
atter completion thoreot and Tenant oholl provide to Landlord. within thirty (30) d~ys atter the end 0' each
Leise Year. 0 written appraisal oC the then current replacement v~luo oC tho lea8ohold improvements to the
Premiaea. which appraisal sholl be certitied by on independent insuranco appraiser. In the event Tenant
toils to provido such itemized statemant Qr any such appraisol. Landlord sholl have the right .to estimate
the value of said improvemants. which estimate sholl be binding upon Tenant. Tenant aha1l pay Landlord for
the total cost ot so insuring such improvements (including the expenses incurred by Landlord relative to
insurance appraisala. adjusters and con&ultants). 8uch payments to be made in equal monthly install.ent. on
the tlrst dey ot each calendar month. in advance. in an amount estimoted by Landlord: provided however, that
Landlord may elect to bill Tenant tor such coot on a basis leas frequently than monthly. Subsequently to
the receipt by Landlord oC on invoice tor Buch insurance promium. Landlot"d shall furnish Tanant with .
written statement setting torth such cost. IC the total amount paid by Te~ant under this Section 11.0~ tor
any calendar. lease or Ciocal year (at Lsndlord's option) shall b. less than the actual amount due frolll
Tenant. tor such year aD shown on such statemont. Tenant shall pey to Lendlord the ditteronee between the
amount paid by Tenant and the ectual amount due. uuch doticiency to b. paid within thirty (30) daya atter
the Curnishing oC oach such otatement. and iC the total amount poid by. Tenant hereunder tor any .uch
calender year ahall excoed ouch actual amount due trom Tenant Cor such calandar Year, '.uch axce.. .ha11 be
credited against tho next installment due trom Tenant to Landlord under this Section 11.O~.
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boctlqn 11.03 W~ivcr DC Subro~ .on
Londlord ond Tenant .hall' ~o;h be releaoed trom ony liability res~ng ~-~M ~amag. by tire or caau.lty
("irl\upective ot loe ot~ch tire or caoualty) upon the express pre hat it at any tille their
reopective insurers Hug.l rotuse to pormit waivers ot subrogation. Landlord or Tenant may in each instance
revoke said waiver ot subrogation ettective thirty (30) days trom the date ot notice to tha other unlas.
within such thirty (30) day poriod. tho othor is able to oecure and turn ish without additionel expen..
insurance in other companieo with such waiver ot subrogation. or it such waiver can only be obtained at
additional expense. it the other agrees to pay ouch additional expense.
Section 11.04 Covenant to Hold lIat:mleall
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Ten8nt IIh811 indemnity Landlord. itll otUcers. directors. stockholders. ben.ticiarie.. partn.r..
roprellontatives. agants and employees. and sava them harmleos trom and against any and all clai... action..
dam.goll. liability. cout and expen.e. including attorneys' Cee.. in conn.ction with all 10..... inClUding
101111 of lite. perllona1 injury and/or damage to property. arising from or out ot any occurrence in. upon or
at the Premises or the occupancy or use by Tenant ot the Premise. or .ny port th.r.ot. or .ri.ing tro. or
out oC Tenant'o Coiluro to comply with any provision ot this Leos. or occasioned wholly or in p.rt by .ny
oct or omission of Tenant. ita agents. contractorll. Dupplieru. employeeD. aervllnte. custom.re or lic.n....
and any person conducting businesD in the PremiDell. For the purpose heraoC. the Premiaea .hall include the
service areas adjoining the Dome and the loading platform orca allocated to thll UDe ot Tenant. All property
kept. stored or maintain!ld in tho Premises shall be ao kept. stored or maintained at the ri.k ot Tenant
only.
ARTICLE XII
ESTOPPEL STATEMENT. ATTO~lENT AND SUOORDINATION
Section 12.01 Estoppel Statement
Tenant shall. without charge. at any time ond from time to time. within ten (10) day. att.r receipt by
Tenant ot written requeot thoretor from Landlord or frOm any mortgageo (or proapective mortgag.e) under any
mortgage or any benefiCiary (or prospectivQ boneficiary) under any deed of trust on the r.1I1 property on
which the building containing tho Premises iD located or ot which the Premiaes er. a part. deliver. in
recordable form. a duly executed and acknowledged certificate or 8tatement to the party reque.ting ..id
certiUcate or statement or to any other peraon. tirm or corporation designated by Landlord. certitying:
(II) that thill Lease 1s unmod1fied and in full force and effect. or. if thoro ho. boen eny moditication. that
the 8amo is in Cull force ond effect aa modified. and stat1ng any .uch
mod1Ucation: (b) the Commencement Date ond expiration date oC this Leoso: (c) that rent is paid currently
without any offaet or detenDe thoreto; (d) the dotes to which the ront and other charga. payable her.under
by Tenant have been paid. and the amount oC rent and other chargeD. it any. paid in Gdvanc.; (e). wh.ther or
not there is then exist1nl1 any claim of Landlord's default hereunder and. iC so. apecifying the nature
thereof: and (Cl ony other mattere relating to the otatuu of such Leaue os shall be reque.ted by Landlord or
any such mortgagee or beneticiory trom time to tima: provided that. in fact. auch tacta are accurat. .n4
ascertainable.
Section 12.02 Attornment
In the avent any procaedinga ore brought for the Coreclosure of. or in the event oC tha conveyance by
deed in lieu ot toreclosure ot. or in the event ot exercise ot the power oC Dale under. any mortgage andlor
deed oC' trust made by Landlord covering the Premises. or in the event Landlord sells. conveys or oth.rwi.e
transfers its interest in the Shopping Center or any portion thereot containing the Premi.... this L...e
shall remain in tull force end atCect and Tenant hereby attorns to. and covenants and agrees to exacute an
instrument in writing reasonably satisfactory to the new owner whereby Tenant attorns to auch successor in
interest and recognizes ouch successor 8S the Landlord under this Lease. Payment by or pertorm.nee ot thia
Lease by any person. tirm or corporation claiming an interest in this Loose or the Premises by. through or
under Tenant without Landlord's consent in writing shall not constitute on attornment or create 8ny intereat
in thiD Lease or tho Premises.
Section 12,03 Subordination
Tenant agrees that thio Lease ahall. at the request ot Landlord. be subordinate to any tirst mortgages
or deeds ot trust that ore now. or may hereafter be. placed upon the Premisea and to any and all advanc.. to
be made thereunder. and to the interest thoreon. and sll renewalD. replacements and .xtenaions ther.oC.
provided that the mortgagees or beneficiaries named in said mortgagos or truat daeda sh.ll agrae to
recognize the interest ot Tenant under this Lease in tho event ot toreclosure. it Tenant is not then in
deC Qult. Tenant also agreoo tt.lt any mortgagee or beneCiciary may elect to hove this L.ass constitute .
prior lien to itg mortgage or dood ot trust. and in the event of ouch election and upon notitication by auch
mortgagee or benoCiciary to Tenant to that effect. this LeoDe sholl be deemed prior in lien to auch mortgage
or deed oC trust. wheth__ thio Loaae io doted prior to or subsequent to the date ot said mortgage or da.d ot
trust. Tenant aorees that upon the request ot Landlord. or any mortgagee or ben.ficiary. Tenant ahall
execute whatever instruments may bo required by Landlord or by any mortgagee or boneticiary to carry out the
intent of this Section 12.03.
Section 12.04 RemedieD
Failure ot Tenant to execute any atatementa or instruments necessary or deairabl. to .CCectuate the
foregoing provisions of this Article XII. within ten (10) days after written request to do 10 by Landlord.
shell conDtitute 0 breach oC thia Leaoe. In the event ot ouch failure. Landlord. in addition to any othar
rig~ts or remedies it might havo. shell hqvo the right by not less than ten (10) days' notiee ~o Tenant to
declare thia Lease terminated and tho term onded. in which event this Leaso ahall cease and terminate on the
date spoc1tilld in such notice with the Bl1IIlO Corce Gnd ettect aD though the date Bet Corth in .uch noUce
were. the date originally set Corth horein and tixed for the expiration ot the torlll: upon such tarainaUo'n
Tenant shall VQcate and surrender the Premises. bu~ shall remain liable tor 011 obligations arisino ~uring
the original stated term ell. pro.'ided in ."ia LeaDO by .~e.as()"~' ~aid b~each. R.Sc.-. ~.-~,,_
...~
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Ml'J.CLl', Y;ni.
v
ASSIGNMENT AND SUBLETTING
\.-;
\
Section 13.01 No ,.~~..,..ment and Sublettinq
(a) Notwithstanding Bny provision herein to the contrary or reCerenc. h.r.in to conc...ion.ir..
or subtenants or otherwise. Tenant agree. not to assign or in any manner tran.t.r thi. L.... or any ..t.t.
or intereat therein. and not to lease or sublet the Premises or any part or part. th.r.ot or any right or
privilege appurtenant theroto. and not to allow enyone to conduct bu.ine.. .t. upon or trom the Premi.e.
(whether aB conceBaionaire. tranchiaeo. licenaee. permittee. subtenant. department operator or otherwi..).
either by voluntary or involuntary act ot Tenant or by operation ot law or oth.rwi.e without Landlord'.
prior written consent.
(b) The solo. issuance or transter oC any voting capital 8tock ot Tenant or T.nant'. Cu.r.ntor.
it any. or any voting capitol stock ot any corporate entity which directly or indir.ctly control. T.n.nt (it
Tenant or Tenant'. Guarantor. it any. or any auch controlling corporate entity i. a corporation the .tock ot
which is not tradad on the New York Stock Exchange or the American Stock Exchange). or any inter..t. in .ny
noncorporate entity which directly or indirectly controls Tenant or Tenant'. Cuarantor, if any, which
results in 0 change in tho direct or indirect voting control ot Tenant. or Tenant'. Cuarantor. if .ny. .hall
be deemed to bo on asuignment ot this leoso within tho moaning oC thia Section 13.01. If Tenant i. a
partnership. trust or on. unincorporated association. then tho solo. iasuance or tran.fer ot a controlling
interest therein. or tho transfer ot a majority interest in or a chango in the voting control of any
partnership. trust. unincorporated associat4on. or corporation which directly or indirectly control. Tenant.
or the tranafer ot any portion or any gene~al partnership or managing intereat in Tenant or in eny such
ent it y. shall be deemed to bo a prOhibited assignment oC this Leaso wi thin tho meaning ot thia Section
13.01.
(c) In the event Tenant desires to sublot all. or a portion or the Premises or assign this Lesse.
Tenant sholl give notico to landlord sotting torth the terms ot the proposed subletting or assignment.
Landlord shall have tho right. exercisable by written notice to Tenant within twenty (20) day. after receipt
or Tenant notico. (i) to conaent or reCuse to consont thereto. and ir Landlord toile to notity Tenant. it
shall be deemed to havo retused to consent thereto. (ii) to sublet such spaca trom Tenant at the rental and
other terms oct torth in Tenanta notice. or (iii) it the proposed subletting i8 tor the entire Premi... tor
the balanco ot tho term or in tho evont Tonant wishos to assign this Loaso. to terminate thi. Lee...
(d) In the evont Tenant shall requost tho consent ot landlord to any a..ignment or .ubletting.
then Tenant ahall pay Landlord' 0 reaaonable at torneya' teea and processing tee. incurred in connection
the~ewith.
ARTICLE XIV
ACCESS BY lANDLORD
Section 14.01 Riqht ot Entry
landlord or Landlord's ogents shall hove the right to enter the Premises at all reaaonabl. time. to
examine the samo and to show them to prospective cu.tomers or mortgagees. Landlord or Landlord'. .g.nt.
shall have the turther right to enter tho Premises to make such repairs. alterationll, improvement. or
additiona all Landlord may deem necessary or desirable. and Landlord lIhall be allowed to take all materi.l
into and upon the Premises that may bo required thereror without the same constituting an eviction of Tenant
in whole or in part. and tho rent and other charges reserved herein IIhall not abate while ..id r.pdra.
alterations. improvements. or additions are being mado. by reason oC 10es or interruption ot budn... ot
Tenant. or othe~wise. landlord may. st sny timo. exhibit the Premises to prospective tenant..
1\RTlCLE XV
~
Section 15.01 Waste or Nuisance
Tenant shall not commit or surrer to be co~itted any waste upon the Premises and ahall not place a
load upon any floor ot the Premises which exceeds the Cloor load per square foot which such floor waa
designed to carry. Tenant sholl not commit or sutter to be Committed any nuisance or other act or thing
which may disturb the quiet enjoyment or any other occupant or tenant ot Dig Pine Key Shopping Plaza.
Tenant sholl not use or permit to be used any medium that might constitute a nuissnce. .uch a. loud
speakers. sound amplitiers. phonographs. radios. telavisions. or any other sound prOducing or other device
which will car~y sound or odors outside the Premiaos. Tenant agrees that business machine. and mech.nical
equipment uaed by Tonant which cause vibration or noi80 that may be transmitted to the building or buildings
compr iaing Dig P illo Key Shopping Plaza or to the Prelniaes. to such a degree a. to be rea.onably
objectionable to Landlord or to any occupant. shall be placed and maintained by Tenant at it. expen.e in
settinga ot cork. rubber or spring-type vibration isolators sufficient to eliminate such vibrations or
noise. In the event Tonant shall be in default or tho foregoing provisions ot this S.ction 15.01. in
addition to all other rights and remedies at law and in equity and herein provided. TenBnt .hall pay as
additional rent Twenty-Fivo Dollars ($25.00) per day that Tenant shall 80 be in detault att.r verbal notice
from Landlord.
ARTICLE XVI
EMINENT DOMAIN
Section 16.01 Totol Conuemnation ot Premises
It the whole or the Premises shall be taken by any public authority under the power of eminent domain
or sold to a public authority under threat or in lieu or such a taking. then the term of this L.... ahall
cea.e aa or the day posseasion shall be taken by such public authority. and the rent .hall be paid up to
that day with a proportionate retund by Landlord of ouch rent and other charge. as may have ba.n peid ln
advance ror a period subsequent to the date or the taking.
Section 16.02 Partial Condemnation
(a) (i) It less than the whole but moro than twenty percent (20%) ot th."Pr.mise. or more than
fHty percent (50%) ot the COmmon areas shall be so tsken Under eminent domain, or sold to . public
authority under threat or in liou of auch e taking. Tenant sh.ll have the right .ith.r to t.rminate thi.
Leaae all ot the day pooseaalon is taken by the public authority, or. lIubject to Landlord'. right ot
termination a. .at torth in Section 16.02(b) hereof to continue in po..e.aion ot the remainder ot the
Premises. upon notirying Landlord in writing within ten (10) days atter lIuch taking ot Tenant'. lntention.
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Tllnont sholl pay rent and other, Irges up to that day. with oppropt"iat~ed1t by Landlord (tow.rd the next
installment ot such rent or cth-ges due trom Tenant) ot such rent o'J.....<h.rges .s lIIay have been paid in
adva~ce Cor a peric BQuent to the date oC the taking,
(iii) In the event ot such 0 taking which does not result in e termination oC this Lease. the
Minimum Rent and other chargas payable to Landlord shall be reduced in proportion to the Cloor ar.a oC the
Premi.es token and tho Minimum Gross Sales above which annual percentage rent i. computed and payable .hall
likewise be proportionately reduced, Landlord shall. at its expense. mllke ell necess.ry rep.ir. or
alteratione t~ the baaic building. eo es to constitute tha remaining Premises a complete architecturel unit.
end Tenon t. a t Tenant' s sole cost. ahall similarly sct with respect to Tenant'. improvement.. trade
Cixtures. Curniahings and equipment.
(b) It more thsn t1tty percent (50\) oC the building in which the Premi.e. ere located. or lIIOre
than titty percent (50\) ot the Premises. or more than fifty percent (50') ot the Shopping Center or of the
common areas. shall be token under power ot eminent domain. or sold to a public euthority under the thre.t
or in lieu ot such a taking. Lsndlord may. by written notice to Tenant delivered on or betore the tenth
(10th) day COllowing the dote ot surrendering possession to the public euthority. terminate this Leese as oC
the day possession is taken by public authority, The rent and other charges shall be paid up to the day
possession is token by public authority. with an appropriate refund by Landlord oC such rent aa may have
baen paid in advance for ~ period Bubsequent to that date.
Section 16.03 landlord's nnd Tenant's Damag~s
All damages awarded for such taking under the power ot eminent domain or sal~ under the threat or 1n
lieu oC such a taking, whether tor the whole or 0 part oC the Premises. ahall belong to and be the property
oC landlord. irrespective of whether such damages shall be awarded as compensation for diminution in value
to the leasehold or to the Cee oC the Premises. and Tenant shall hove no claim against either Landlord or
the condemning authority with respect thereto: provided. however. that Landlord shall not be entitled to eny
award speciCically designated as compensation Cor. depreciation to. and coat oC removal of. Tenant's stock
and trade tixtures. except to the extent landlord is so entitled pursuant to its security interest in such
it ems.
ARTICLE XVll
DESTRUCTION OF lEASED PREMISES
Section 17.01 Reconstruction of DamaQed Premises
In the event the Premises sholl be partially or totally destroyed by fire or other cesuelty insured
under the insurance carried by Landlord so as to become partially or totally untenenteble. then the demage
to the Premisee shall be promptly repaired (unles. Landlord sholl elect not to rebuild es hereineCtar
provided). and tho Minimum Rent sholl be abated in proportion to the floor area ot the Premises rendered
untenantable. and the Minimum Gross Sales ebove which percentaga rental is computed and payable shall
likewise be proportionately reduced, Payment ot full rental so abated shell commence end Tenent shell be
ob11gated to reopen for businos. on tha thirtieth (30th' day tollowing the date that Lendlord advises Tenent
that tho Premiaes ore tenantable. unlesa Tenant opene at an earlier time in tho dam.ged eree or remain. open
in such area Collowing destruction or damage. in which event there shall be no abatement OE' any such
abatement shall terminate as of the date ot Tenant'a earlier reopening. Any amount expended by Landlord in
repairing the Premises in excess oC tho proceeds of insurance received by Landlord pursuant to Section 11.02
ot this'Lease allocated to the Premises ehall be repayable by Tenant to Landlord within ten (10) day. arter
recaipt by Tenant rrom Landlord oC a statement setting forth the emount OC such excesa. Landlord shall
reconstruct tho Premises in occordanco with the working drawings originolly approved by Landlord or (at
Landlord's sole olection) with new drawings prepared by Tenant and acceptable to Landlord and Tenant. In no
event ahall landlord ba requ1red to repair or replaca Tenant.B merchandise. trade fixture.. Curnishings or
equipment, IC landlord repairs or rebuilds. Tenant. at Tenant's sole cost. shall repair or replace Tenant'.
merchandise. trada !1xtures. Curniahings. equipment. plate olass. signs and personal property in a manner
and to at least a condition equal to that prior to the damage or destruction thereoC.
Section 17.02 landlord's Riqht to Terminate
IC (i) more than thirty-five percent (35\' ot the tloor orea of the building in which the Premi.e. are
loceted or or the Shopping Center shall be damaged or deatroyed by fire or other cesuelty. or (ii) during
the leot three (3) years of the term hereot more thon twenty-f1ve percent (25" ot the floor eree of the
Premisee or of the building in which the Premises are located or of the Shopping Center shall be damaged or
destroyed by Cire or other caouelty, or (1ii) 011 or eny port ot the Shopping Center or ..id building or the
Premises ore damagod or destroyed at any timo by the occurrence of any risk not insured under the insurance
carried by Landlord. then Landlord. at its sole option. moy terminate thi. Lesse by giving written notice to
Tenant oC Landlord's election so to terminate. such notice to be given within ninety (90) day. afteE' the
occurrence or such damage or de~truction.
ARTICLE XVIll
D~NKRUPTCY OR INSOLVENCY
Section 16.01 Conditions to the Assumpt10n and Assignment oC this Leoso under Chapter 7. 11 or 13 oC the
Bankruptcy Code
In the event that Tenant ohall becom~ a Debtor under Chapter 7. 11 or 13 of tho Dankrupt~y Code. and
the Trustea or Tenant sholl elect to ossume this Lease ror tha purpose oC asaigning the same or otherwise.
such elaction and assignment may only be moda if 011 oC the terms and conditions oC Section. l8.0~ and 18.04
hereof ara BatisCied, The Tenant acknowledges that it is essential to the operation of the Shopping Center
that a decision on whather to osaume or reject thia Lease be made promptly to assure the continuanc. of the
proper tenant mix and balance in the Shopping Center. as well as the continuonce of tbe availability oC
percentage rents. Under those circumstoncea. Tenant agrees that should Tenant. aa Debtor-In.po.....ion. or
eny Trustee eppointed tor Tenant. toil to elect to ossume this Lease withi~ sixty (60) days after tbe filing
of the Petition. thia Leuso shall be deemad to have boen rejacted. Tenant Curthor knowingly and VOluntarily
waives any right to seek additional timo to aCt1rm or reject the Lesse and acknowledge. tbat tbeE'e i. no
ceuse to seek such extension. It Tenont. es Debtor-In-Possession. or the Trustee ebandon. the prellli.e.. the
tame shall be deemed e rejection ot the Lease, Landlord ahall be entitled to at l.ast thirty (30) days
prior written notice Crom Tenant. os Debtor-In-Possession. or ita Trustee of any intention to abandon the
Premises, Landlord shall thereupon ba immediately entitled to possession oC the pre.i.e. witbout furtber
obligetion to Tenant or the Trustoe. and this Leue shall be cancelled. but Landlord.. right to be
compenseted tor dameges in auch liquidation proceeding ahall survive.
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m ...--......':r:...~_.._.. ......,- -.....-- ___.._ ....., ".""'':'''''''''':0:',77 ~ a"Ol""U'Ct'CQa~l~n
(aJ No election' the Trustee or Debtor-In-Possessio,\ ) a.sUllle
'. Chapter 7. 11 or . ~ -'-all ~.Crcctive unless each oC the Col1owin~ndi
"ackhowledge ore ially reasonable in the context oC a bankruptcy ._
satisfied. and Landlord has so acknowledced in writing:
this Le.... whether under
which Landlord .nd Tenant
ling of Tenent. have been
(1) The Trustee or the Oebtor-In-Possession has cured. or has provided Landlord adequate
assurance (as defined below) that:
(0) Within ten (10) doys t rom the dote ot such assumption tho Trustee will curo 011
monetary detou1ts under this Leoso: and
(b) Within thirty (30) days from the date oC .uch as.umption the Tru.tee will cure all
nonmonetary deCaults under this Leaso,
(2) The Trustee or the Oebtor-In-Posseoeion has compenseted. or ha. provided to Landlord
adequete assurance that within ten (10) doysCrom the date oC essumption Landlord will be compen.ated
tor any pecuniary loss incurred by Landlord arising trom the deCault of Tenant. the Tru.te.. or the
Debtor-In-Possession a. recited in Landlord's written statement oC pecuniary lo.s .ent to the Trustee
or DObtor-ln-Possession.
(3) Tho Trustoe or the Debtor-In-Possession has provided Landlord with adequate a..uranca oC
the future performance (os defined bel~w) oC each of Tenant's. the Trustee's or Oebtor-In-pos.ession'.
obligations under this Loase. provided. however. that:
(a) The Trustee or Debtor-In-Possession shall also deposit with Landlord. as .ecurity
for the timely payment of rent. an amount equal to three (3) months rent (a. adjusted pursuant to
Section 10.02(3)(c) below) and other monetary charges accruing under this Lease: and
(b) If not otherwise required by the terms oC this Lease. the Tru.tee or
Debtor- In-Posseos ion sholl also pay in advance on the date Minimum Rent is payable one-twelfth
(1/12th) ot Tenant's annual obligations under this Lease Cor maintenance. cOlMlon area charges.
real estate taxes. the Promotional Charge or Merchants' Association dues. insurance and aimilar
charges.
(c) From ond aCter tho date oC the assumption ot thia Lease. the Truste. or
Debtor-In-possession shall pay os Minimum Rent an amount equal to tho .Ulll of the HinillUlll Rent
otherwise poyable hereunder. plus the highest omount ot the annual percentage rent paid by Tenant
to Landlord within the Uve (5) year period prior to the date oC Tenant's Petition under the
Bankruptcy Code. which amount ehall be payable in advance in equal monthly instollllonta on the
dote Minimum Rent is payable.
(d)
with re.~t
l" vU...I1IlU..
The oblig.tions imposed upon the Trustee or Oebtor-In-Possession ah.ll continue
to 'renant or an}' ..aiQ1\~ or thi.. lea..e atter the ,...."""'leth\f\ or b.n"'''I'''.\'
'. '
(4) Tho Bllaumption oC the LoaBe will not:
(a) Breach any provision in any other lease. mortgage. financing agreement or other
agreement by which Landlord is bound relating to the Shopping Center: or
(b) Disrupt. in Landlord's judument. the tenant mix of tho Shopping Center or any other
attempt by Landlord to provide a specific variety ot retail stores in the Shopping Center which.
in Landlord's judgment. would be most beneficial to all of the tenants of the Shopping Center and
would enhance tho image. reputation. and proCitability ot the Shopping Center.
(5) The Tenont os Debtor-In-Possession or its Trusteo shall provide the Landlord at leaat 45
days prior written notice oC any proceoding concerning the asaumption oC this Lease.
(b) For purposes oC this Section 10.02. Landlord and Tenant acknowledge that. in the context of a
bankruptcy proceeding ot Tenant. at a minimum "adequate ossurance. shall mean:
(1) The Truatee or the Debtor-Ih-Possession has and will continue to have sutficient
unencumbered aaaets otter the payment ot 011 aecured obligations and administrative expense. to asaure
Landlord that the Trustee or Debtor-In-Possession will have suCCicient funds to fulfill the Obligations
ot Tenant under this Lease. and to keep the Premises stocked with merchandise and properly staffed with
sutficient employeea to conduct 0 CUlly-operational. actively promoted business on the Premi.es: and
(2) The Bankruptcy Court ahall hove entered on Order aegregating sufCicient cash payable to
Landlord and/or the Trust~e or Debtor-In-Possession sholl have granted s vslid and perfected fir.t lien
end security intereat and/or mortgage in property oC Tenant. the Trustae or Debtor-In-Poase.aion.
acceptable os to value and kind to Landlord. to secure to Landlord the obligation oC the Trustee or
Debtor-In-Possession to cure the monetary and/or nonmonetary defaults under this Lease within the time
periods set forth above.
Section 16.03 Landlord'a Option to Terminate upon Subsequent Bankruptcy Proceedings of Tenant
In the event that this Lease ia assumed by 8 TrUstee appointed for Tenant or by. Tenant a.
Debtor-In-Possession. under the provisionq oC Section 18.02 hereof. snd thereafter Tenant ia lLquidatod or
filea a subsequent Poti tion for reorganization or adjustll1ent of debts under Chapter 11 or 13 of tb.
Bankruptcy Code. then. and in either of such events. Landlord may. at its option. tarminate this Lease .nd
all tights oC Tenant hereunder. by giving Tenant written notice oC its election to so terminate. within
thirty (30) days aCter the occurrence oC either of .uch events.
Section 16.04 Conditions to the Assignment of this Leose in Bankruptcy Proceedings
It the Trustao or Debtor-In-Possesaion has assumed this Lease pursuant to the terllla and provi.ion. of
Section 18.01 and 18.02 hereof. tor the purpose oC sssigning (or elects to assign) Tenant'a intereat under
this Lease or the eststo created thereby. to any other person. such intereat or estete msy be ao e..igned
only it Landlord sholl acknOWledge in writing that the intended assignee has provided edequate a..urance aa
defined in this Section 10.04 oC Cuturo perCormance oC all oC the terms. covenants ~nd conditiona of this
Lease to be performed by Tenant.
For purpoaoa ot this. Section 18,04. Landlord and Tenant acknowledge that. in the context of .
bankruptcy proceeding ot Tenant. et a minimum "adequate assurance of future performance- .hall mean thst
each of the following conditions have been satisfied. and Landlord hss so acknowledged in writing:
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Accountant which shows a nct worth and ','orking capitol 1n amount. determined to be .urrici.nt by
Landlord to assure the rut~perrormance by such essignee of Tena~ obligation. under thi. Lea..:
\ (b) The '0. iC roque.ted by Landlord. .hall hove obteined gu :. 1n Corm and .ub.tance
aetisractory to Landlord Crom one or more person. who satiefY Landlord'. atandsrda ot cr.ditworthin.a.:
(c) The assignee has submitted in writing evidence. satishctory to Lsndlord. ot sub.tential
retailing cAperience in shopping centers of comparable size to the Shopping Center and 1n the aal. ot
merchandise and services permitted under this Lease:
(d) The Landlord has obtained all consents or waivers rrom any third party raquir.d und.r any
lesoe. mortgage. tinancing arrangement or other agreement by which Landlord 1. bound to p.rmit Landlord
to consent to such assignment: and
(e) The terms and conditions or Section 10.02(4)(0) and (b) ot this Leaa. will not be breachad by
any such assignment.
Saction 16.05 Use and Occupancy Charges
When. pursuant to t~e Dankruptcy Code. the Truste. or Debtor-In-Poasession .hall be obligat.d to pay
reaoonabl. use and occupancy charges tor the use or the Premises or any portion thereot. .uch charge. ahall
not be less than the Minimum Rent os define~ in this Lease snd other monetary obligation. ot Tenant tor the
payment ot meintenance, common area charges. real estate taxes. Promotional Charge or Merchant.' A..ociation
dues. insurance and similar charges.
Section 16.06 Tenant's Interest not Tronsterable by Virtue of State Insolvency Law without Landlord'.
Consent
Neither Tenant's interest in this Lease, nor any lesser interest or Tenant herein. nor any e.tat. ot
Tensnt hereby created. shall pass to any trustee. receiver. sssignee for the benerit ot cr.ditor.. or .ny
other person or entity. or otherwise by operation or law under the laws ot eny state having juri.diction ot
the person or property of Tenant (hereinarter referred to as the "state law.) unle.. L.ndlord .hall con..nt
to such transrer in writing. No acceptance by Landlord or rent or any other payment. trom any .uch tru.t...
receiver. ossignee. person or other entity .hall be deemed to hava waived. nor .hall it waiva the ne.d to
obtain Landlord's consent. or Lsndlord's right to terminate this Lease tor any tran.t.r of T.nant'. int.re.t
under this Leaso without such consent.
Section 18.07 Landlord's Option to Te~inate upon Insolvency or Tenant or Guarantor und.r State Law or upon
Insolvency ot Guarantor undor Federal Dankruptcy Low
In the event tho estate or Tenant created hereby ahall be takan in execution or by the proc... or law.
or it Tenant or Tenant'. Guarantor ahall be adjudicated insolvent pur.uant to the provi.ion. ot any pr...nt
or ruture insolvency low under state low. or it any proceedings are filed by or again.t the Gu.rantor undar
the Bankruptcy Code. or any 8imilar provisions ot any future federel bankruptcy law. or it . Cu.todian.
Receiver or Trustee or the property of Tenant or the Guarantor sholl be appointed und.r .tate l.w by r...on
of.Tenant'8 or the Guarantor's insolvency or inability to pay its debt. a. they become due or otherwi.e. or
it any as.ignment 8hall b. made of Tenant's or the Guarantor'. property tor the benetit ot creditor. undar
state law: then and in such svent Landlord may. at its option. terminate this Lea.e and all right. of T.nant
hereunde~ by giving Tenant written notice ot the election to 80 terminate within thirty (30) days after the
occurrence of such event.
ARTICLE XIX
DEFAULT OF TENANT
Section 19.01 Riqht To Ro-Enter
In the event ot (0) any railure or Tenant to pay sny rental or other charge. due hereunder within ten
(10) days after written notice thereot shall have been moiled to Ten.nt. or (b) eny failure to pertorm any
oth.r ot the terms. conditions or covenants or this Lease to be observed or pertorm.d by Tenant tor more
than thirty (30) days otter written notice of such derault shall have been mailed to Tenant. or (c) if
Tenant 8hall fail to move into the Premises and to commence the conduct ot it. busines. on the Commencement
Oat. or tsil to perrorm any obligation hereunder prior to such Commencement Dote. or f.il to continuou.ly
operate its busineos pursuont to Section 7,02 tor the purpose specified in Section 7.01 hereOf. or tail to
operate undar tha name speciUed in Section 1.01(k) hereor. or if Tenant shall abandon the premi.e.. or
permit thi. Lease to be token under eny writ or execution; then Landlord. be.ide. other right. or rem.die.
it may have. sholl have the right to declare this Lease terminated end the term ended (in which event. this
Lease and the term hereor shelr expire. cease and terminate with the some force and ettect as though the
date set forth in any required notice were the dote originally set forth herein .nd tixed tor the expir.tion
ot the term and Tenant sholl vacate and surrender the Premises but 8hall remsin liable tor all obligation.
arising during tho balance or the original 8tated term os hereatter provided as if this Lease had remain.d
in tull rorce and etrect) and Landlord shall hove the right to bring a special proceeding to reCOver
possession from Tenant holding over and/or Landlord may. in any or auch events. without notice. re-enter the
Premises either by torce or otherwise. and dispossess. by summary proceeding. or otherwise. Tenant 8nd the
legal representative ot Tenant or other occupant ot the Premises and remove their etfect. and hold the
Premises as it this Lease had not been mode. and Tenant hereby waive. the .ervice ot notice ot intention to
r.-enter or to institute legal proceeding~ to that end. Notwithstanding the toregoing provi.ion. .ot this
Section 19.01. in the event Tenant sholl roil to perform or 8hall detault in the performance of any t.r~.
covenant or condition of this Lease on two (2) or more .eparate occa8ions during any twelve-month period.
then. even though 8uch tailures or detaults may hove been cured by Tenant. eny turther tailure or derault by
Tenant during the term or this Laase shall be deemed a derault without the ability ot cure by Tenant. In
the event of re-entry by Landlord. Landlord may remove all persons and property trom the Premi.es and .uch
property may be removed and stored in a public warehouse or e18ewhere at the cost ot. and lor the eccount ot
Tenant. without notice or resort to legal proce8s and without being deemed Quilty ot trespas.. or becoming
liable tor any 10&8 or damage which msy be occasioned thereby. In the e'..ent Tenant .hal1 not remove it..
property from the Premises within ten (10) days arter Tenant has vacated the Premises. than .uch property
shall be daemed abandoned by Tenant and Landlord may disposa of the 8ame without liability to Ten.nt.
Section 19.02 Riqht To Relet
Should Landlord elect to ro-enter. as herein provided. or should it teke po.....ion pur.uant to legal
proceedings or pursuant to any notico provided ror by law. it may either terminate this Le... or it may from
time to time. without t.rminating this L..... make .uch alter.tion. and r.pair. a. .ay b. n.c....ry in ord.r
to relet the Premises. end relet the Premises or any port thereot tor .uch term or ter.. (which may b. tor a
- 15 -
-..-.---- ~--_.-- --- ----- - -.- .. - ~. ,.'- .<1...0 .nd \;1"00 lIlich otl1or term. and
condi.ion. a. Landlord in itn "010 diacrction may doom auvinable. Up~ .acb lucb reletting all r.nt.l. and
.other auma received by Lant!. j trom such relettina llhall be app",...,;.d. tirat. to tb. p.ym.nt of Iny
,~nd..btedneaa other ~"'"n z:ent ch:r.( hereunder trom Tenant to Landlord; second. p.ym.nt ot any COlt. Ind
expenses ot such na. including reaoonable brokerage tees Gnd Gttorn"l" ..... Ind tho co.t. at IIny
alteretiona Gnd repalro: third. to the payment ot rent Gnd other charge. due and unpaid h.reund.r; and the
residue, it any. ahall be held by Landlord end epplied in payment ot future rent a. the ..me m.y become due
and payable hereunder. It such rentals and other sums received trom such reletting during any month b. les. ,
than that to be paid during that month by Tenant hereundar. Tenant sholl pay .uch deficiency to L.ndlord; it
Buch rentala and the oums ohall be more. Tenant ohall have no rioht to;, and ah.ll receive no credit tor. the
excess. Such-deCiciency Dhall be calculated and paid monthly. No auch re-entry or taking poa.ea.ion ot the
PremiD8s by Landlord ohall bo construed os an eloction on its port to terminate thi. L.... unl.s. a writt.n
notica ot such intention be given to Tenant or unlooa tho termination thereot b. decread by a Court ot
competent Jurisdiction. Notwithatonding any ouch rolotting without termination. Landlord may It any time
elect to terminato thia Leaso tor ouch previOU8 breach. Should Landlord at any time t.rminat. thi. L.I.o
Cor any breach. in addition to any other remudieD it may have. it may recover trom Tenant all damag.. it may
incur by roason ot uuch brooch. including tho cost ot recovering the Promia... reasonabl. attorn.y.. t....
and including the worth at the time ot Such termination ot the exce.s. if any. ot tho amount ot r.nt and
chargea equivalent to rent reserved in this Lease tor tho remainder of the atat.d term ov.r the then
reasonable rental value of the Premises tor the remainder ot the statad term. allot which amount. .hall be
immediately dua and payable from Tenant to Landlord. In determinina the rent which would bo payable by
Tenant hereunder. subseqvant to detault. the ennual rent tor each year ot the unexpir.d term ahall b. equal
to the annual Minimum Rent payable by Tenant tor the unexpired term (provided hOWever. that the applicable
/1inimum Rent tor ony pcriod. BD statcd in. Section 1.01(g) hereot shall be incr.eeed by the cumulative
p8rcentage increase in the Minimum Rent. pursuant to Section 3.04 hereot. from the beginning of tho term of
this Leose to the date ot such termination) plus the averago percent ago rent paid by Tenant trom the
commencement ot the term to the time ot detault. or during the immediately precading thirty-aix (36) montha.
"hichever periOd 1& shorter. The tailure or refusol ot Landlord to relet the Premiaea ahall not affect
Tenant's liability. The tcrms "cntry" and "re-entry. are not limited to their technical meaninga.
Section 19,03
In case suit ahall be 'ought for recovery ot posseosion ot the Premise.. tor the recov.ry ot rent or
any other amount due under e provisions of this Lease. or because ot the breach ot any oth.r Covenant
herein contained on the part Tenant to be kept end pertormed. and a br.ach aholl be eatablish.d. Tenant
ahall pay to Landlord 011 xpenaes incurred there tor . including reasonable attorney.' tee. and
diabursements. In addi tion. in the event Landlord ahall incur expenses. including reasonable attorneye'
Cees and diobursements. os a res t ot Tenent' s Cailure to pertorm or comply with any tarm. Covan.nt or
condition oct toz:th in this Lease. enant ohall pay to Landlord all such expenses. Any and all rat.rencee
to the payment or uttornuys' Cees disburuements herein Dhall include those incurred in ell trial and'
appellate levels. au well 00 thoae in red in -~v b~nkruptcy proceedings.. I
Section 19.04 \.,Iuiver ot Counterclaims and ~?~bY"~urY' .", :>:
Landlord and Tenant waive their right to trial by jury in any action. proceeding or countercl.im
brought by either ot tho parties horeto against the other (except tor personal injury or prop.rty d&llllge) on
any matters whatsoever arising out ot or in any way connected with this Lease. the rolationship ot Landlord
and Tenant. Tenant's use ot or Occupancy ot said Premises. and any emergency atltutory or any oth.r
statutory remedy. Tenant sholl not interpooe any countarclaim or counterclaims or Claim" tor .et-ott.
recoupment or deduction of rent in a summary proceeding tor nonpayment ot rent or other action or .aummary
proceeding based on termination. holdover or other default in. which Landlord seeks r'pOsseasioQ ot. .the,
Premises trom Tenant. unless the failure to raise the some would cons titut. a waiver thereot.. Ii" .'.; t. I "I
. 'J, ",1 lit.. ',I :,\
Section 19.05 Waiver ot Riqht or Redemption '",1\. ! ~":.
, "01:' I '; ;' ".'
Mention in this Lease or any particular remedy. shall not preclude Landlord tram any other remedy. in
law or in equity. Tenant hereby expressly waives any and all rights at redemption grantad by or undlr Iny
presont or tuture lows in the event ot Tenant being evicted or dispossessed for any Caua.. or in the .vent
ot Landlord obtaining pOS8Bsa1on ot the Premiaea. by reason ot tho violation by T.nant ot any ot the
Covenants and conditions ot this Lease or otherwiso.
Section 19.06
I;" ",I, ,.' .:
Tenant hereby ranto to Landlord a lien and security interest aa BOcur1ty tor payment ot .1,1.. 1\1I11~.!I~.;
additional rentDl 0 any other chargos now or hereafter payable by Tenant hereunder. upon all .qui~eq~~
tixtures and invent ry (and the proceeds thereot) within the Premiae.. including all improvem.nt..
equipment. tixtures. ventory. morchandiso and other personal property now or hereatter placed on or in the
Premises. to the tull xtent ot Tenant's and any assignee's or subtenant'" intareat ther.in. and .uch lien
shall include the righ to prev~nt removal ot aaid property from the Premi"ea and may be entorc.d. upon
nonpayment ot rent or 0 er charges os atoresaid. or any other detault by Tenont hereunder. without notic.
to Tenant. unless notice i" required by eome other proviaion ot this Lease. by the re-entry. taking and
sale. lease. or other dis sition ot such property. Landlord sholl also have all oth.r right. and remedie.
upon detault provided by w. inclUding those Get torth in the Uniform Commercial Code. .0 called. The
sale. lease or other dispos tion ot the pro~erty shall be either public or private otter at leaat ten (10)
days notice to Tenant at hi lost known addreas. and Landlord shsll have the right and privilege to bl a
purch..er at any such sole. Landlord and Tenant agree that ten (10) days notice ot such .alo. l.aa. or
other disposition ot the prope ty is reasonable under tha circumstancea. Tenant ahall and hereby agreea to
provide upon request a list or creditors and indebtedness and othorwise do whatever may be nec..aary or
appropriate to pass good and lega title under any sale. lease or other disposition aa heroin provided. Any
and ail proceeds obtsined at such ale shall be applied first to the cost ot such aalo. including reaaonabl.
attorneys' tees and costs. and the to any intol"est accrued and payable under tho terllUl at this L....tor
nonpay~~ent ot rent and/or Bny othe charges. and any balance to the reduction ot any principal aUla du..
hereun~er tor rent and/or other char cs. Sale or rotention under such lian ahall not be deemed to waiv..
alter. limit or attect in any manner hatsoever. but Ghall bo in addition to. any other remedie. available
to Landlord upon nonpayment of rent or othor charges under this Lease or otterwiae. T.nant ahall execute
any tinancing otatemcnts or other documo ta r~Quested by Landlord in order tc evidence or perfect auch,~'en.
.. --
'0 ..~<?-:; . I' .
Section 19.07 Landlord Curinq Tenant's Detault '\,._
Notwithstandina anything horein contained to the contrary. it' Tenant .h"all b.. in detault .in th....
pertormance ot any ot tho terms or provisions ot this Lease and it Lendlord .hall giVe to Tenant notice in
writing ot such detault spscifying the noture thereot. and if Tenant ahall fail to eUre aueh d.tault within
the time providad in Section 19.01 hereot or immediat.ly if .uch detault r.quirea em.rg.ncy action. Landlord'
may. in addition to its other legal and equitable remedies. cure auch d.fault tor the aceount ot and at 'the.
cost and expense ot Tenant. and the sums BO expended by Landlord. inClUding rea.onable legal ,..... ahall b..
, "
- 16 -
, I
"
.,
~~~eiu~d to we UWdlt!ono~
. payable.
rcn t.. ~~{l :.\.::.J. ~JC
:Jdj.U ~J A.{,.;"..~~;'~ ~j;'~
;"J ...."j ." i:enc sila.i.l !lext become due and
ARTICLE XX
{ :",'"
~;'
~,
TMDE NAME. PROMOTIONAL CIlMGE:
Section 20.01 Trade Name
(a) - Tenant agreos (i) to operate ita bua1nesll in the Prem~... under the nalll. .p.cifically ..t
forth in Saction 1.01(kl .0 long a. the .ame Bhall not be held to be in viol.tion oC .ny applicable law:
(ii) not to change the odvertiaed nome or character of the businea. op.rat~d in the Pr.llli...; (iii) to r.f.r
to the Shopping Center by the name "Big Pine Key Shopping Plaza" in d.aignating the location oC the Pr..i...
in all advertising and in all oth.r reforonc.. to the location of the Pr.mi...; .nd (iv) during the thirty
(30) day p.riod prior to the Commencement Date. to includo in ell it. newspaper .dv.rti.ing the d..ign.tion
in bold type that Tenant is opening for bueinees in the Shopping Canter,
Section 20.02 SOlicitation ot BuaineslI
Tenant and Tenant's employoo. and/or agents ahall not solicit bu.ine.. in the -p.rking .r... or oth.r
common ereae. or any part ot Dig Pin. Key Shopping Plaza other than in the Pr.mi.... nor .hall Tenant
dietribute any handbills 9r oth.r advartiaing matter in the parking .r... oth.r common .r.... or any p.rt oC
Big Pine Key Shopping Plaza oth.r than in the Premises. Tenant shall not give .ampl.. or .pproach cu.tom.r.
outside the Premises for purposes of soliciting ssles. Tenant shall not giv. .way any prolDot!onal itelU
which could create a nuisanc. or require Landlord to incur additional common are. .xp.n....
Section 20.03 Adv
Promotional Pro~n~
(a) have the rioht to establish an Advertising and Promotional Program
(hereinafter reterre to as the "Program") to furnish and maintain advertising and s.les prOlDotiona. which ",
in Landlord'a sole j dgment. will beneUt the Shopping Center from time to tima. Th. promotion director.
statf and eny consult nta hired by Landlord to direct and perform the activitiaa oC the Progr.. .hall be
under the exclusive co trol and supervision of Landlord. but ouch director. .taCf .nd conault.nt. .h.ll be
paid with the Program's funds. Landlord may appoint a committee composed or a reprea.ntatlve oC L.ndlord. .
repreaentativa ot oach oy Stora contributing to tho cost oC the Program .nd a repre..nt.tive Crom each of
tour (4) tenanta occupyi 0 premisos in the Shopping Center. to review tho advertising and oth.r promotional
activities provided by t Program. Nothing herein contained ahall obligate or require Landlord to expend
more tor the coot ot tho rogrom activities during any Losuo Yesr than Landlord collects during .uch period
trom its tenon ta in tho orm ot Promotional Chargos. During each calendar year. Ten.nt .hall p.y to
Landlord in annual inotalllontll in advance. os ita uharo ot tho cost of the Program. an amount. h.r.in
called the "promotionol Ch rgo.. equal to the amount sot torth in Section 1.01(1) hereof. .ubject to
odj us tment aa provided in ction 20.03 (c) horoot. Within ton (10) days at t:er r.ceipt of an invoice
theretor. Tenant ahall 0100 y on Initial Promotional Chorge. in addition to the for.going. in an aMOunt:
set torth in Section 1.01 (m) hareof, The torogoing charges sholl b. payable by Tenant irre.p.ctive of
whether Tenant'e atore shall b opon for tho entiro year. Notwithstanding anything herein contained to the
contrary. tor purposee ot thi. oction 20.03. the Premises shall be daemed to contain the gre.t.r ot the
actual aquare toot area of tho P omiaos and two thouaand (2.000) squaro reet.
(b) term ot thio Lease. Landlord sholl hove the right to dhband the
Program by writ ten notice to oac tonant. In lieu of the Progrsm. Landlord ahall have the right to
establish a Merchanta' Association to foster the interest of the tenant. oC the Shopping Cent.r. The
objectives ot such Association shal be to encouroge ita members to deol Cairly and courteously with their
customers. to follow ethical busines practicea. to ossi8t the bUDiness oC the tenant. by ..le. promotion.
and centerwide advertising. and in pa icular. to help the interest oC member. oC the Aaaociation.. Upon the
formation ot such ADsociation. Tenant all become a member thereoC. participate fully ther.in and relD.in in
good standing during the term of this Lose. Each member tenant aholl have on. vote and Landlord .hal1 aloo
hove one vote in the operation oC the A ociation. During oach calendor year. Tenant .hall p.y due. to the
A5sociation. in annual inatallmenta in a vance. in an amount equal to the then curr.nt Promotional Charge
payable by Tenant upon the date of Landl rd'. notico establishing the Merchants' As.ociation. Nothing in
the bylaws or regulations of the Auoci tion shall be in conflict with the proviaion. of thi. Le..e.
including. without limitina the gonorali y of the foregoing. any rules and regul.tions .dopted and
established unirormly for the operation of he Shopping Center by Landlord. nor ahall they in any lDanner
attect the righta ot Landlord.
(cl The Promotional Chargo provided tor in Section 20.03(a) hereof or the M.rchents' A.aociation
dues providod tor in Soction 20.03(b) horeof will be adjusted annually by a percentage .qu.l to the
percentage increase trom the base period of th Index (as doUnod in Section 3.04(b) hereoC). The terll
"base period" shall rotor to the date on which t e Index is published. which io close.t to the date of the
oponing or tho Shopping Center or the most recent: romotional Charge increaso immediately preceding the date
ot this Lease, whichever is later. In addition to such cost of living adjustment. ouch Promotion Charge or
Merchants' Association dues may be increased from tot:o time by 0 majority vote of .uch committe. or board
ot directors to the extent required by increasea in 0 COqt of promotional or adverti.ing .orvic...
i!..C;0-
ARTICLE XXI
TENANT'S PROPERTY
Section 21.01
Tenant shall be responsible pay. prior to delinquency. any and all taxe.. a..e.am.nt..
levies. fees and other governmen al charDOs oC every kind or nature (hereinafter collectively called
"taxu") levied or assessed by mun cipal. county. state. Cedera1 or other taxing or ......ing .utbority
upon. against or with respect to (i) the Premises. (ii) all Curniture. Cixtures. equipment and .ny per.on.l
property of any kind owned by Tenant r any previous tenant .nd occupant. .nd plac.d. installed O~ loc.t.d
in. within. upon or about the Premiaea. (iii) s11 alterations. addition. or improvement. of what.o.ver kind
or nature. it any. modo to the Premiaes by Tenant or any previous tenant or occupant. and (v) r.nt.1. or
other charges payable by Tonant to Londl d. irrespective oC whether any oC the t.rma de.cribed in clau.e.
(i) through (1v) above are asoessed as re 1 or personal property. and irre.pective ot whetber any ot aucb
items are a.5essed to or against Landlord Tenant. lC at any tille during the t.r. ot this t.... any ot
Buch taxes are not levied and aueaaed up ately and directly to T.nant (Cor eX8lllp1e. it the .am. .r.
l.vi.d or essessed to Landlord, or upon or a ainst the building containing the Pr.m1.e. and/or th. land
underlying oaid buildingl. Tonant ahall pay to ~ ndlord Tanant'. ahare thereot a. deta~in.d by Landlord.
cic;.. .. :: ~.
Section 21.02 Loss and Oamoqo
Landlord sholl not be responsible or liable to Tenant tor any loa. or damage that may be occa.ion.d by
or through tho acts or omissions oC persons occupying adjoining prollis.. or any part of the pr.lDb..
- 17 -
.aoJ.cent to of connected witn ~remiaos or any part or the buildinQ _ which the Pr.mi... are a part. or
any other area in Dig Pine Key 'opping Plua. or Cor any lou or domer- 'esUlt1ng to Tanant or it. prop.rty
'trom bursting. stoDoaoe or le0g ot water. gu. sewer or steam pipe~r . 't lilliting the toregoingl
'tor'any damages 0 Jt property within the Premises tram any cause whats
Section 21.03 Notice by Tenant
Tenant shall give immediate notice to Landlord in case ot any damage to or deatruction ot all or any
part or. or ~ccident. in. the Premiaes or ot detects therein or in elterationa. decorationa. addition. or
improvementa. including. without limitation. any tixturea or equipment.
ARTICLE XXII
1l0LDING OVER
Section 22.01 1l01dlnq Over
Any holding over atter the expiration ot the term hereot with the conaent ot the L.ndlord. .h.ll b.
conatrued to be a tenancy trom month to month at a daily Minimum Rent ot sev.n p.rc.nt (7') ot the lIonthly
Minimum Rent ettective tor the tinal Lea.e Yeer or parthl Leue Year preceding expiration ot the hn!
(aubject to Curthar adjpstment pursuant to the various provi.ion. ot thi. L..... including. without
limitation. Section 3.041. togother with an amount estimated by Landlord tor the montbly .dditional charg..
payable pureuant to this Lease. and shall otherwise be on the .ame terms and conditions a. h.r.in .p.citi.d
ao tar aa applicable. Any hOlding over without Landlord's consent ahall entitle Landlord to r.-ant.r tha
Premiau as provided in Section 19.01 hereot or to exercise whatever other rOllledie. ar. av.ilabl. to it
under Florida Statutes.
Section 22.02 Successors
All righta and liabilities heroin given to. or imposed upon. tho re.pectiv. parti.. h.r.to .hall .xt.nd
to and bind the sevoral respectivo heirs. oxecutora. administratora. aucca.aor.. and p.r.itt.d a..ign. ot
the said parties; and ir there sholl be more than one Tenant. they shall all b. bound Jointly .nd ..v.rally
by the terma. covenanta snd aareementa heroin. No righta. howev.r. .hall inure to the b.n.tit ot any
sssignee or Tenant unless tho assignment to auch ossignoe haa been approv.d by Landlord.
ARTICLE XXIII
RULES AND REGULATIONS
Section 23.01 Rules and Rc~ulationa
Tenant agreoa to comply with and obae.rve 011 rulos and regulations established by L.ndlord trOlll ti.. to
time. Tenant' a tal lure to keep and obaerve add rUlea and regulationa shall conatituta . br.acb or tb.
terme ot thia Leaa. in the aame manner os ir the rulee end regUlation. wer. containad her.in a. cov.nant..
In the cUe ot any contlict betweon said rules and regulationa and thia Lea... thi. L.... .ball be
controlling.
ARTICLE XXIV
QUIET ENJOYMENT
Section 24.01 Landlord's Covenant
Upon paymont by Tenant ot the rents herein provided. and upon the ob.ervanc. .nd partor.anca or .11
covenant.. terms and condition. on Tenant'a port to be observed .nd p.rtormed. Tan.nt .ball p.ac..bly and
Quietly hold and enjoy the Premia.. ror the term hereby domiaed without hindranc. or interruption by
Landlord or ony othor peraon or persona lawrully or equitably Claiming by. through or und.r Landlord.
aubj ect. nevertheleaa. to the terma and condi tiona or thia Lease. and tha Ground L..... and any IIOrtg.g.
and/or deed ot truat to which thia Lease ia SUbordinate.
ARTICLE XXV
SECURITY DEPOSIT
Section 25.01 Security Deposit
'15~
-::~.,.
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lmTZ~Lt:; ]\,J"tV,I
~'"
MISCELLANEOUS
c~:;;;
~~
~.ct'ion 26.01 ~..
ection ot Remedies
One or more waivers ot any covenant or condition by Landlord .hell not be conatrued .. a waiv.r of .
subsequent breach ot the .ame cov.nent or condition. and the con.ent or .pprov.l by L.ndlord to or of .ny
.ct by Tenant requiring Landlord'. con.ent or approval .hall not be deemed to r.nd.r unn.c....ry L.nd1ord..
con.ent or oPFrova1 to or ot any .ubsequent similar oct by Tenant. When.v.r Ten.nt ah.ll cl.i. und.r any
provision ot this Leoao requiring Landlord not to unreaoonably withhold it. con..nt or .pprov.l thl\t
Landlord haa 00 unreaaonably withheld ita conaent or approval. T.nant ahall have no claim tor do..g.. by
reaaon ot such olloged withhOlding. and Tanont' s solo ramedy theretor ahall b. declar.tory or injunctive
reliet. but in any event without the recovery of damage.. The tailure of Lendlord to inaiat upon. strict
perCormance oC any term. condition or covenant contained in this Lee.e shall not b. deemed e waiver of any
righta or remedies that Landlord may hove ond ahall not be deemed a waiver of .ny subsequ.nt br..ch or
deCault in the terms. conditions or covenants herein contained. and any such failure ah.ll not be construed
as creating a custom ot Landlord'. accepting other than strict pertormanc. or as modifying in .ny w.y the
terms. covenants or conditions of this Leaso. No breach by Tenant of a covenont or condition of thia L....
shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord. No .ct
or thing done by Landlord or Landlord's agents shall be deemed an acceptance of aurr.nd.r of the Premis.s
and no agreement to ecce~t auch surrender shall bo valid unless ~n writing aign.d by L.ndlord. Th. right.
and remedies oC Landlord under this Lease or under any specitic Section. .ub.ection or cl.u.. h.r.of .h.ll
be cumulative and in addition to any and ,all other rights and remedies which L.ndlord h.a or lIIay have
elaewhere under this Lease or at law or equity. whether or not such Section. .ub.ection or c1.u.. .xpre..ly
.0 atates. Nothing contained in this Lease shall be construed to confer upon any entity other th.n L.ndlord
or Tenant any rights. benefits or causes at action. except to the extent .pecifically oth.rwi.. provided in
this Lease and except to tho extent provided tor the benetit ot any mortgagee. deed-of-tru.t b.neficiary.
ground lessor or trustee for the Shopping Centor.
Section 26.02 Entire Aqreement
All Exhibits. and Rider(s). it any. attached hereto. torm a part of this Lease .nd .hall be giv.n full
Corce and eCtect. as fully as it set forth at length herein. This Le.se .nd .aid Exhibit.. .nd Rider(.). if
any. so at tached hereto and forming a part hereof. set forth all the coven.nta. prOllli..a. agr...ent..
conditions and understandings between Landlord .nd Tenant concerning the Premise.. .nd there .r. no
covenant.. promises. agroementa. conditions or underst.ndings. either oral or written. b.tween th.m other
than a8 are herein set forth. Tenant has not relied upon any representation of L.ndlord or it. .gent..
other than any items contained in this Lease, as an inducement to enter into thia Le.... No .lteration.
amendment. change or addi tion to this Lease shall be binding upon Landlord or T.nant unl..a r.duc.d to
writing and signed by each party.
Section 26.03 Construction
Nothing contained heroin ahall be deemed or construed by the partie. hereto. nor by .ny third p.rty. ..
creating the relationship of principal and egent or of partner.hip or of Joint ventura between the partie.
hereto. it baing understood and agreed that neither the method of comput.tion of rent. nor .ny other
provision contained herein. nor any oct. ot the parties herein shall be deemed to cre.t. .ny r.lation.hip
between the parties hereto other than tho relationship of Landlord end Tenant. Whenever her.in tb. aingular
number is used the same shall include the plural. and the masculine gender shall include the teminine and
neuter genders. In the event ony longuago Is deleted from this Lease. said language .h.ll be deemed to have
never appeared snd no other implication sholl be drawn therefrom.
Section 26.04 Delays
In the event that either party hereto sholl be delayed in the performance of it. initial construction
or maintenance and/or repair obligations by reason of strikes. lockouts. labor troubl... in.bility to
procure materials or ahall at any time be so delayed by re..on of failure of pow.r. r.strictiv. govern.ent.l
laws or reasons of a similar nature not the tault of the party del.yed in p.rforming work or doing .ct.
required under the terms of this Lease. than performance ot such act shall be excu.ed for the period or the
delay and the period tor the performance ot any such oct shall be extended for a p.riod equivalent to the
period ot such delay. Nothing contained in this Section 26.04 shall excuse Tenant from the continuous
operation of ita business in tho Premises in accordance with the provisions of Section. 7.01 and 7.02
hereot. The provisiono ot this Section 26.04 shall not operate to excu.. Tenant from p.yment of Minimum
Rent. percentage rent or any other payments required by the terms of thia Laa... Further. L.ndlord's
reduction ot heat. light. air conditioning. or any other services what.oever to the Shopping Cent.r bec.u.e
of any similar or dissimilar event coneti tuting . cause for excusable delay her.under .h.ll not r.lieve
Tenant from its obligations undor Article VII of this Lease.
Section 26.05 Notices
Unlee. spocHically stated to the contrary in this Lease. any notice. demand. reque.t or other
instrument which may bo or is required to be given by Tenant under this Lea.. or by l.w .h.ll be .ent by
United States certified moil. return receip~ requested. postage prepaid. end .hall be d..med to h.v. been
given upon receipt ot same by Landlord; or. if required to be given by L.ndlord under this Le..e or by law.
.uch notice. demand. request or other instrument may be sent by United State. c.rtified mail. return r.c.ipt
requested. postage prepaid. by porsonel delivery or by other compar.bly reliable me.na. .nd ah.ll be deemed
to have been given upon the date of other submi.sion to Tenant or two (2) d.ya aft.r the d.t. or mailing.
whichever of such dates sholl be tho Ur.st to occur; and shall ba addre...d (a) if to Landlord. .t t.he
address set forth 1n Section 1.01(h) hereof or at such other address .. Landlord m.y design.te by written
notice. together with copies thereof to such other partie. designated by L.ndlord. .nd (b) if to T.n.nt. at
the address set forth in Section 1.01(0) hereot or such othor address .. Tenant shall de.ignat. by written
notice.
Section 26.06 Captions and Section Numbers
The caption.. section numbers. article numbers. and index .ppe.ring in thia L.... .ra in..rt.d only..
a matter of convenience and in no way define. limit. construe. or d.acrib. the .cop. or intent of auch
..ctiona or articles ot this Loose. nor in any way atfect this Lease.
Section 26.07 Broker's Commission
Tenant repreeent. and warranta to Landlord thet there are no cl.im. for broker.ge commisaiona or
finder'. feas in connection with this Lee.e. end Tenent agrees to indemnify Landlord .nd bold it h.rml...
tram ell liabilities arising tram any such claim. including. without limit.tion. the coat of .ttorn.y.' feo.
in connection therewith. Such .greement ahell survive the termination of thi. L.....
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. Tenant shall not record this ~o without the prior written consent": ~andlord.
~ ~/
~ect'o~26.09 ~ Financiol Stotements
Upon Londlord's written request. Tenant shall promptly furnish Landlord. from time to time. with
financial statements (including. without limitation. operating statements including an .nnual profit .nd
loss statement for the individual store unit covered by this Leese) reflecting Tenant's current financi.l
condition. and written evidence ot ownership ot managing and controlling interests in Ten.nt .nd in .ny
entities which dlTectly or indirectly control or manage Tenant.
Section 26.10 Landlord's Use ot Common AreBS
Landlord reserves the right. from time to time. to utilize portions of the common .re.. for c.rnival
type shows. rides and entertainment. outdoor shows. displays. automobile .nd other product .how.. the
leasing of permanent and temporary kiosks. or such other u.a. which in Landlord'. Judgm.nt t.nd to .ttr.ct
the public. Further. Landlord re.erve. the right to utilize the lighting st.nderd. and other .re.. in the
parking lot for advertising purposes.
Section 26.11 Transter of Landlord's Interest
In the event of any transfer or transfers of Landlord's interest in the premi.e.. the tran.feror shall
be automatically relieved of any and all obligations on the part of Landlord accruing frolll .nd .fter the
date of such transfer. Neither the holder of a mortgage nor the holder of a deed of trust to which this
Lease is or moy be subordinate. sholl be responsible in connection with the Security Depo.it unle.. such
mortgagee or holder of such deed of trust shall have octuolly received the Security Depo.it.
Section 26.12 Floor Area
(a) The term "floor oreo. as used in this Lease means. with respect to any lea.abl. ar.a in the
Shopping Center. the oggregate number of square feet of floor space of all tloor level. therein. m...ur.d
from (i) the outside faces ot all perimeter walls thereot other than any party wall .eparating such prami.e.
trom other leuable premises. (ii) the center line ot any .uch party wall. <1ii) the out.id. f.c. of .ny
interior wall. and (iv) the building and/or leoseline adjacent to any entrance to .uch pr.mi.... In the
event Lendlord datermines that tho square foot area ot the Premises i. at variance with the square foot area
ateted in this Lease. Landlord may. at its option. odjust the floor area of the Pr.mi.e. .nd lIIak.
proportional adjustments in Minimum Rent. Minimum Gross Sales. Promotion Charge or Merchant As.ociation due.
and other charges to Tenont under this Leose.
(b) The gross leased and occupied floor area in effect for sny Lease Year .hall be the average ot
the grosa leased and occupied floor orca in effect on the first day ot each cal.ndar month in .uch L....
Year.
Section 26.13 londlord's Mortqaqeo'o Approval of this Lease
If Landlord'. mortgagee will approve thia Lease only upon the basi. of modification of the term. .nd
provisions of this Lease. Landlord shall have the right to cancel'this Leas. it Tenant r.fu.es to .pprov. in
writing any such modificationa within thirty (30) day a after Landlord'. requ..t therefor, which reque.t may
not b. made later than forty-five (45) days after the delivery of po.sas.ion of the Premi... to Tanant. If
.uch right. to cancel is exercised. this Lease shall thereafter ba null and void. any money or ..curity
deposited hereunder shall be returned to Tenant snd neither party shall have sny liability to the other by
reason of such cancellation.
Section 26.14 liability of Landlord
If Landlord sholl fail to perform sny covenant. term or condition of thia Leaae upon Landlord'. part to
be performed. and if as a consequence ot such detault Tenant shall recov.r a money jUdgaent against
Landlord. such judgment shall be sotisfied only out ot the proceeds of aal. rec.iv.d upon .x.cution ot .uch
judgment and levied thereon against the right. title and interest of Landlord in the Shopping Cent.r snd out
of rents or other income from such property receivable by Lsndlord. or out of the consid.r.tion rec.iv.d by
Landlord from the sale or other disposition of all or any port of Landlord'. right, title and int.r..t in
the Shopping Center. subject. nevertheless. to the rights of Landlord'. mortgagee, end n.ither Landlord nor
any of the co-partners comprising the partnership which is the Landlord herein shall b. liable for any
deficiency.
Section 26.15 Accord ond Satisfaction
Poymant by Tenant or receipt by Londlord of a leaaer omount than the rent or oth.r charge. herein
stipulated may be. at Landlord's solo option. deemed to bo on account ot the earliest due .tipulated rent or
other charges. or deemed to bo on account oC rent owing for the current period only. notwithstanding any
instructions by or On behalf of Tenant to tho contrary. which instruction. ahall be null and void. and no
endorsement or statement on any check or any letter accompanying any check payment a. rent or other charges
shall be deemed an accord ond sot1ofact1on. and Landlord shall accept such check or p.ymant without
prejudice to Landlord's right to recover the. balance of such rent or other charge. or pursue .ny other
remedy in this Lease or in law or in equity against Tenant.
Section 26.16 Execution of Lease; No Option
The SUbmission of this Lease to Tenant shall be tor examination purpo.e. only. and doe. no~ aQd shall
not constitute a reservation ot or option for Tenant to lease. or otherwiae create any inter..t of Tenant in
the Premise. or any othar premise. situated in the Shopping Center. Execution ot thia Lea.. by Tenant ahall
be irrevocable. The return to Landlord of Tenant-executed copies of this L.a.e .hall not b. binding upon
Landlord. notwithstanding any preparation or enticipatory reliance or expenditurea by T.nant or any ti..
interval. until Landlord has in fact executed and actually delivered a fully-executed copy ot this L.... to
Tenant.
Section 26.17 Governing Law
Thi. Lease shall be governed by and conatrued in accordance with the law. of Florid.. If any provi.ion
of this Lease or the application theroof to any person or circumat.nc.. sh.ll. to any ext.nt. b. inv.lid or
unenforceable. the remainder of this Leose shall not be aCfected ther.by .nd each rem.ining proviaion of the
Le,.. ahall be valid and enCorceable to the Cull extent permittad by the l.w.
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IN WITNESS WlIERE....-
above written.
'-
dlor\ '..........d Tenant have signed and sealed this .se
"1
he day and year first
In the. Presence of:
By:
~
New
~~V.JLh.v
Sl~'If of Monroe County,
~lison DeFoor, II
LANDLORD
By:
STATE OF
Florida
Monroe
ss.
COUNTY OF
On this 20 day of Nov . 1981. before me personally appeared RiC'h.<lrn ~ r.lIrnp
who. being bYfi;eduly sworn. did say that he is Vice President . and that the Baid instrument
was signed on behalf of said Bank by authority of its articles of agreement: and the aaid aignatory
acknowledged the said instrument to be the free act and deed of said bank.
~'3 1. ~""RV PllDLlC STATE Of H"::"
Notary Public MY COMMISSION EX'. FEe 25,IhO
My Conunission Expires: eall9!Q JlIIW OI'IlfR41l 1$. Ur.O.
~
STATE OF
COUNTY OF
ss.
On this
day of
. 198 . before me appeared
to me personally known. who. being by me duly sworn did soy that they ore
and of
the corporation that executed the within and foregoing instrument. and that
said instrument was signed and sealed on behalf of said corporation by authority of ita Board of Directors
and that the seal affixed is the corporate seal of said corporation. and said
and acknowledged said instrument to be the free act and deed of said
corporation.
and
respectively the
Notary Public
My Conunission Expires:
~
STATE OF
COUNTY OF
Be.
On this ______ day of . 198 . before me appeared
and to me known to b<<!the persons that executed the foregoing instrument and
acknowledged that they executed the.same aa their free act and deed.
Notary Public
My Conunission Expires:
AIOI5i/1014i
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