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03/21/198913:39/012387/ 6\ggrdens\Lease.wpf BIG PINE KEY SHOPPING PLAZA Big Pine Key. Monroe County, Florida THIS LEASE is made between the Landlord and the Tenant hereinafter identified in Sections 1.01(b) and (c) hereof, respectively, and constitutes a Lease between the parties of the "Premises" as identified in Section 1.01(d) hereof on the terms and conditions and with and subject to the covenants and agreements of the parties hereinafter set forth. W I T N E S S E T H: ARTICLE I BASIC LEASE PROVISIONS Section 1.01 Basic Lease Provisions The following are certain lease provisions which are part of, and, in certain instances, referred to. in subsequent provisions,of this Lease: (a) Rate of Lease: March 22 ►1989 (b) Landlord: Guaranty Federal Savings Bank (c) Tenant: Boara of County commissioners (d) Premises: Unit C-3 (Section 2.01) (a) Tenant's Construction Period or Lease Commencement Date: March 22 7 119819 (section 2.u3(b)) (f) Length or germ: Y-2- Lease Years September 30, 1989 )secr.nn 2.04) (g) Minimum Rent: $1 . 00 (Section 3.01) (h) Adarees for Rental rayments ano Notices to Landlord: 23333 Eureka Road (Section 3.01) (i) Percentage Rent Factor: na Taylor, MI 48184(Section 3.02(a)) (j) Tenant's Use: Sheriff's Mini -Station (k) Tenant's Trade Name: Monroe County Sheriff (1) Annual Promotional Charge: na (m) Initial Promotional Charge: na (n) Security Deposit: na (o) Tenant's Address for Notices: 5-1.6 Whitehead Street (p) Guarantor: na Key West, FL 33040 ARTICLE II GRANT AND TERM; CONSTRUCTION Section 2.01 Premises (Section 7.01) (Section 20.01(a)) (Section 20.03(a)) (Section 20.03(a)) (Section 25.01) (Section 26.05) (a) Landlord, in consideration of the rent to be paid and the covenants to be performed by Tenant, does hereby demise 'and lease unto. Tenant, and Tenant hereby rents and hires from Landlord, those certain premises designated in Section 1.01(d) hereof (hereinafter referred to as the "Premises") in the regional retail development commonly known as "Big Pine Key Shopping Plaza", situated in Big Pine Key, Monroe County, Florida, (hereinafter sometimes referred to as the "Shopping Center"). subject to covenants. restrictions and easements of record and such rules and regulations that Landlord may hereinafter imposes from time to time. Said Premises are legally described in Exhibit "B" attached hereto. (b) The exterior walls and the roof of the Premises and the area beneath the Premises are not demised hereunder, and the use thereof, together with the right to locate, both vertically and horizontally, install, maintain, use, repair and replace pipes, utility lines, ducts, conduits, flues, refrigerant lines, drains. sprinkler mains and valves. access panels. wires and structural elements leading through the Premises serving other parts of the Shopping Center. is hereby reserved unto Landlord. Landlord reserves an easement above Tenant's finished ceiling to.the roof, or to the bottom of the floor deck above the Premises, for general access purposes and in connection with the exercise of Landlord's other rights under this Lease. (c) Landlord hereby reserves the right at any time prior to or during the term hereof to change the location of the Premises in the Shopping Center, as the same may be expanded from time to time: provided such relocated Premises shall contain at least the same number of square feet as the original Premises. In the event Landlord elects to exercise such right, it shall so advise Tenant by sixty (60) days prior written notice, and Tenant hereby agrees to be bound by such election and, further, to execute, upon receipt from Landlord, whatever amendments or other instruments as'may be required to correctly reflect the foregoing. Landlord shall pay the costs of renovating the relocated Premises so that the same are comparable to the original Premises (including leasehold improvements) and of moving and reinstalling Tenant's trade fixtures and storefront sign. Landlord shall have no further or additional obligations in connection therewith. (d) The attached site plan of Big Pine Key Plaza. Exhibit "A", includes premises identified thereon as the Winn -Dixie Site and the Cray -Drug Fair Site, which Sites are collectively herein referred to as the "Key Store Sites" and/or "Key Stores unless otherwise specifically set forth. In the event Landlord elects to enlarge the Shopping Center, any additional area may be included by Landlord in the definition of the Shopping Center for purposes of this Lease. Landlord shall also have the right from time to time to include within and/or to exclude from the defined Shopping Center any existing or future areas. and the floor area of the Shopping Center shall be accordingly adjusted. (a) Landlord reserves the right at any time, and from time to time, to make alterations to, and to build additional stories on the building in which the Premises are located, and to construct other buildings and improvements in the Shopping Center, including any modifications of the common areas in connection therewith, to enlarge or reduce the Shopping Center, to add decks or elevated parking facilities. and to sell or lease any part u, the land comprising the Shopping Center, as shown on Exhibit "A", for the construction thereon of a building(s) to be occupied by a Key Store(s) which may or may not be part of the Shopping Center. Landlord also reserves the right at any time, and from time to time, to change, modify, or abolish any temporary off -site utility serving the Shopping Center. The purpose of Exhibit "A" is to show the approximate location of the Premises within the Shopping Center and Landlord reserves the right at any time to relocate, enlarge, or reconfigure the various buildings, parking areas and other common areas shown on Exhibit "A." Tenant hereby consents to the exercise by Landlord of the rights set forth in this Section 2.01(e) and agrees that the exercise of such rights by Landlord shall not diminish Tenant's obligations under this Lease. Section 2.02 Construction by Landlord (a) Prior to the Commencement Date, as hereinafter defined, Landlord has constructed or will construct the buildings designated on Exhibit "A" on the Shopping Center and perform the work and make the installations in the Premises substantially as set forth on Exhibit "C" hereto. Landlord's obligation to perform Landlord's Work shall not require Landlord to incur overtime costs and expenses. Landlord shall. when construction progress so permits notify Tenant in advance of the approximate date on which the Premises will be substantially completed in accordance with Exhibit "C" and ready for Tenant's Work as set forth in Exhibit "C" hereto and will notify Tenant when the Premises are in fact so completed and ready, which later notice shall constitute delivery of possession of the Premises to Tenant, subject to the provisions of Section 2.02(b) hereof. If any dispute shall arise as to whether the Premises are substantially completed and ready for Tenant's Work, a certificate furnished by Landlord's architect or contractor certifying the date of substantial completion shall be conclusive and binding of that fact and date upon Landlord and Tenant. Any minor changes from any plans or from Exhibit "C" relating to Landlord's Work which may be necessary during construction of the buildings, the common areas or the Premises shall not affect or change this Lease or invalidate the same. By occupying the Premises as a tenant, Tenant formally accepts the same and acknowledges that the Premises are in the condition required hereunder. Failure of Landlord to deliver possession of the Premises within the time and in the condition required herein will not give rise to any claim for damages by Tenant against Landlord or Landlord's contractor. (b) Notwithstanding the provisions of Section 2.02(a) hereof, until such time as Tenant's final Working Drawings and Specifications have been approved by Landlord as herein provided, Tenant's right to enter upon the Premises shall be solely for the purpose of inspection, measurement and obtaining information necessary to prepare architectural drawings. Until Tenant is so deemed to have taken possession, in the event of default by Tenant under this Section 2.02 or Section 2.03 hereof, Landlord, upon notice to Tenant, shall have the right to declare this Lease null and void and of no further force or effect and thereafter may lease the Premises free of any rights of Tenant. (c) In the event the Premises are presently occupied by another tenant, possession of the Premises shall not be delivered to Tenant until a date after the date Landlord obtains possession of the Premises. Section 2.03 Construction by Tenant: Openin (a) Tenant agrees, prior to the commencement of the term of this Lease, at Tenant's cost and expense, to provide all work of whatsoever nature in accordance with its obligations se rth in Exhibit "C" as "Tenant's Work", Tenant agrees to furnish to Landlord the Store Design Drawin nd Working Drawings and Specifications with respect to the Premises prepared in the manner and wit a time periods required in Exhibit "C". If such Store Design Drawings and Working Drawings and S ications are not furnished by Tenant to Landlord within the required time periods in form to per approval by Landlord, then Landlord may at its option at any time while Tenant is in default of tision, in addition to any and all other remedies provided in this Lease, by not less than ten (1 ays' notice to Tenant, declare this Lease null and void and of no further force or effect, in whi ent this Lease shall cease, but Tenant shall remain liable for all obligations arising during the nal stated term as provided in this Lease. In addition. if Landlord determines that Landlord and nant are unable to agree upon Store Design Drawings, and/or Working Drawings and Specifications ndlord shall have the option, upon ten (10) days' prior written notice to Tenant, to declare thi ace null and void and of no further force or effect, in which event this Lease shall cease and term, on the date specified in such notice, in the same manner as provided in the preceding sentence. No ation from the final set of plans and specifications, once approved by Landlord, �shall be made by T t without Landlord's prior written consent. Approval of the plans and specifications by Landlord s not constitute the assumption of any responsibility by Landlord or Landlord's architect I1� for thei curacy, efficacy or sufficiency, and Tenant shall be solely responsible for such items. Unless Land otherwise directs in writing, Tenant shall not open the Premises for business until all 2 S� struct,on has been completed pursuant to the provisions of Exhibit "C". (b) Tenant shall complete the performance of Tenant's Work and open for business to the public from the Premises on or before the expiration of Tenant's Construction Period as set forth in Section 1.01(e) hereof, Tenant's Construction Period to commence upon the delivery of the Premises to Tenant pursuant to Section 2.02(a) hereof. The term of this Lease shall commence upon the Lease Commencement Date or the earlier to occur of the expiration of Tenant's Construction Period and the date Tenant opens for business to the public from the Premises (hereinafter referred to as the "Commencement Date"). If Landlord makes a written request to Tenant that Tenant delays its store opening in order to effect a joint opening with other occupants of the Shopping Center, Tenant shall open for business on the date specified by Landlord, and the Commencement Date shall be and Tenant's obligations to pay rent shall commence upon the date of said joint opening. Section 2.04 Length of Term The term of this Lease shall commence upon the Commencement Date and shall end upon the:eXpiration of the number of Lease Years, as hereinafter defined, set forth in Section 1.01(f) hereof, unless sooner terminated as herein provided. Notwithstanding anything to the contrary herein contained, in the event that the Commencement Date shall not have occurred on or before such date as shall be one (1) year from the date of this Lease, then this Lease shall be automatically terminated without any further act of either party hereto, and both parties hereto shall be released from all obligations hereunder. Section 2.05 Landlord's and Tenant's Optional Richt of Cancellation If for any reason the Premises are not ready for Tenant's Work on the date four (4) months following the date of this Lease, then, for a period of thirty (30) days therafter, Tenant shall have the option, and for a period of forty-five (45) days following such four (4) month period, Landlord Nhall have the option, of cancelling and terminating this Lease by written notice, one to the other, and, in the event that either party shall exercise such option, this Lease shall cease with neither party being liable to the other in damages or otherwise, and any money deposited pursuant to Section 25.01 hereof shall be returned to Tenant. In the event that neither Tenant nor Landlord gives such written notice of cancellation, then said options shall be null and void and of no further force or effect, and this Lease shall be considered as continuing in full,force and effect. - 2 - ARTICLE III RENT Section 3.01 Minimum Rent The fixed minimum annual rental (hereinafter referred to as the "Minimum Rent") during the term of this Lease shall be the amount not forth in Section 1.01(g) hereof, which sum shall be payable by Tenant in equal 4 consecutive monthly installments, on or before the first day of each month, La..f4wrswes payable to Landlord. at the address act forth in Section 1.01(h) hereof, or such other place as Landlord may designate, suchQ payments to be made without any prior demand therefor and without any deductions or setoff whatsoever. Should the term of this Lease commence on a day other than the first day of a calendar month, then the Minimum Rent for such month shall be prorated on a daily basis based upon a thirty (30) day calendar month. Should any Lease Year contain less than twelve (12) calendar months, said Minimum Rent shall be prorated. tion 3.02 Percentage Rent a) In addition to the payment of the Minimum Rent, as hereinbefore provided. Tenant shall pay to Landlord for ch Lease Year of the term hereof, as annual percentage rent, an amount equal to the Percentage Rent for set forth in Section 1.01(i) hereof multiplied by all Gross Sales resulting from business conducted in, n or from the Premises during such Lease Year. Subsequent to the date upon which Tenant is initially obl1 ed to open for business in the Premises, in addition to any and all other remedies afforded to Landlord er this Lease by reason of default, Gross Sales shall be reduced by 1/360th for each day or portion thereof th Tenant does not operate its business pursuant to Section 7.02 hereof. The annual percentage rent shell be p le to Landlord at the times and in the manner hereinafter set forth, at the address set forth in Section Ol(h) hereof or such other place as Landlord may designate. such payments to be without any prior demand the r and without any deductions or setoff whatsoever. (b) Such annual rent shall be percentage paid in uarter-annual installments computed on all Gross Sales during each quarter -annual period of the term hereo Such quarter -annual periods shall be defined as the first three-month period of each Lease Year and -each consecutive three-month period thereafter. Such quarter -annual installments shall be payable within thir (30) days after the expiration of each three (3) month period of each Lease Year. In the event that the tal of the quarter -annual installments of percentage rent for any Lease Year does not equal the annual percen a rent computed on the total amount of Gross Sales for such Lease Year, then Tenant, at the time it submits the nual statement of Gross Sales required under Section 4.02 hereof, shall pay Landlord any deficiency, or Landl shall credit any overpayment to the next installment of percentage rent due from Tenant, as the case may In no� event, however, shall the aggregate of the Minimum Rent and annual percentage rent to be paid by Ten and retained by Landlord for any Lease Year be less than the Minimum Rent specified herein. (c) Lease Years shall consist of twelve (12) months, commencing on the Commencement Date. tion 3.03 Gross Sales term "Gross Sales" as used herein shall be construed to include the entire amount of the actual sales pri whether for cash, credit or otherwise, of all sales of merchandise or services and all other receipts what ver of all business conducted in or from the Premises by Tenant and/or any other person conducting busine in the Premises, including, without limitation, mail, catalogue or telephone orders received or filled at a Premises, or procured from the Premises by house to house or other canvassing, and all deposits not refunde purchasers, and orders taken, although said orders may be filled elsewhere. A "sale" shall be deemed to hav can consummated for the purposes of this Lease, and the entire amount of the sales price shall be included in oss Sales, at such time that (i) the transaction is initially reflected in the books or records of Tenant such other person making such sale), or (ii) Tenant or such other person receives all or any portion of a sales price, or (iii) the applicable goods or services are delivered to the customer, whichever first o ra, irrespective of whether payment is made in installments, the sale is for cash or for credit, or otherwise. all or any portion of the sales price has actually been paid at the time of inclusion in Gross Sales or at a other time. No deduction shall be allowed for direct or indirect discounts, rebates, or other reductions o sales to employees or others, unless generally offered to the public on a uniform basis. In addition, a eduction shall be allowed for uncollected or uncollectible credit accounts, or for trade-ins or other credit n sales to employees or others. The term "Gross Sales" shall not include, however, any sums collected and pa out by Tenant for any sales or excise tax imposed by and accounted fcr by Tenant to any duly constituted g rnmental authority, nor shall it include the exchange of merchandise between the stores of Tenant, if any, ere such exchange of goods or merchandise is made solely for the convenient operation of the business of Tens and not for the purpose of consummating a sale which has theretofore been made in or from the Premises an r for the purpose of depriving Landlord of the benefit of a sale which otherwise would be made in or from th remises, nor shall the term include the amount of returns to shippers or manufacturers, nor proceeds from sale of trade fixtures. There shall be deductible from Gross Sales the amount of any cash or credit refund a upon any sale in or from the Premises, previously included in "Gross Sales" hereunder, not to exceed t sum so �f previously included, where the merchandise sold is thereafter returned by the purchaser and accept by Tenant, ion 3.04 Rental Adiustment -1441 Notwithstanding any provisions to the contrary contained in this Lease, Tenant shall pay to Landlord as um Rent for the second Lease Year of the term of this Lease, and for each subsequent Lease Year of said term, ut subject to further increase pursuant to this Section 3.04 and other provisions of this Lease, the greate f the amounts calculated according to the formulas set forth in Section 3.04(a)(i) and (ii) hereof. (i) Minimum Rent for a Lease Year in question shall be increased by the net percentage of change between the Base Index and t Index published for the first calendar month of such Lease Year (as such terms are defined below). (ii) Minimum Rent for the Lease Year in estion shall be increased by the amount of annual percentage rent payable for the immediately preceding se year pursuant to Section 3.02 hereof. (b) For purposes of the foregoing calculations, the term Index" shall be the "Consumer Price Index for All Urban Consumers (1967 - 100), U.S. City Average, All s", published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), for the mon uring which the term of this Lease commences (or, if the Index is not published for such month, then the I published for the month closest, but prior, to the Commencement Date). Following any increase in Minimum nt pursuant to Section 3.04(a) hereof, the "Base Index" for future calculations shall be redefined as the in published for the first calendar month of the Lease Year for which the Minimum Rent has last been increase suant to Section 3.04(a) hereof. The Index for the first calendar month of any given Lease Year, if the Inde a Krc�—` 3 - not published for such month, - all be the Index published for the moi—ii closest, but prior, to the first ndar month of such Lease Year. If the Index is not published by the Bureau of Labor Statistics or anotne yernmental agency at any time during the term of this Lease, then the foregoing calculations shall be made us he most closely comparable statistics on the purchasing power of the consumer dollar as published by a regPoReible financial authority and selected by Landlord. For the purposes of this Section 3.04, the annual percent rental payable by Tenant for any Lease Year consisting of less than twelve (12) full calendar months shall be ulated by dividing the annual percentage rental payable by Tenant for such Lease Year pursuant to Section 3. ereof by the actual number of days in such Lease Year, and by multiplying the resulting quotient by 360, ndlord shall notify Tenant of the increased Minimum Rent for each Lease Year following the determination of s by Landlord, end Tenant shall pay such increased Minimum Rent for the applicable Lease Year in the manner set h in Section 3.01 hereof: provided, however, that if Tenant shall fail to deliver the annual statement of Gro ales pursuant to Section 4.02 hereof at the time required. Landlord may estimate the percentage rent payable such Lease Year by Tenant in order to determine such increased Minimum Rent. In the event that the inerea n Minimum Rent results from the calculation set forth above in Section 3.04(s) hereof. then the Minimum Gross s otherwise applicable for such period shall be increased by a percentage equal to the percentage increas Minimum Rent. The Minimum Rent for any period as stated in Section 3.01 hereof, if different than that he immediately preceding period, shall be adjusted by the cumulative percentage increase in Minimum Rent 11 prior periods pursuant to this Section 3.04. subject to further adjustment as provided in this Section or elsewhere in this Lease. i Section 3.05 Tenant's Tax Obligation Ten�nt shall pay to Landlord its proportionate share of all taxes and existing and future assessments which ma be levied or assessed by any lawful authority during or for each calendar year of the term of this Lease age at the land, buildings and improvements comprising the Shopping Center as well as any such existing as\natellment ents covering Big Pine Key Shopping Plaza (hereinafter referred to as the "Taxes'). In the event thatpresent or future enactment of Florida or any political subdivision thereof or any governmentahority having jurisdiction thereover imposes a tax and/or assessment of any kind or nature upon, againwith respect to the rentals and other charges payable by tenants in the Shopping Center to Landlord ded from the Shopping Center or with respect to the Landlord's, or the individuals' or entities' wform the Landlord herein, ownership of the land and buildings comprising the Shopping Center, and ose a tax or surcharge of any kind or nature upon, against or with respect to the parking areas or tu ber of parking spaces in the Shopping Center, either in addition to or by way of substitutioa 1 or any part of the taxes and assessments levied or assessed against such land and such buildings, din , without limitation, any net profits tax or any comparable tax imposed on any portion of Landlordvenu s from the Shopping Center, then for the purpose of this Section 3.05, Tenant shall be obligated tits share thereof as provided herein. In addition, Tenant shall pay to Landlord together with each ilment of rent under this Lease, the amount of the Florida sales, use or other tax, now or hereafter ied upo rents and other charges payable with respect thereto, notwithstanding that such statute, ordinance or nactment imposing the same may endeavor to impose such tax upon Landlord. For purposes hereof, the to "Shopping Center" shall, in any event. be deemed to include any land upon which temporary or permanent of -site utility systems and any wooded area, lake, shoreline thereof or island park serving the Shopping Cent r are located with all improvements situated thereon. Taxes shall be deemed levied or assessed with re ect to the calendar year in which the same are first due and payable without regard to the calendar yea or other accounting period shown on the tax bills used by the local taxing authority. Tenant's proport nate share of the Taxes shall be equal to the product obtained by multiplying the Taxes by a fraction, the numerator of which shall be the number of square feet of floor area in the Premises and the denominator o which shall be the total number of square feet of gross leased and occupied(' floor area in the Shopping Cent Tenant's proportionate shar of the Taxes levied or assessed for or during the term hereof, as determined by Landlord, shall be id in monthly installments on or before the first day of each calendar month, in advance, in an amount timated by Landlord; provided that Landlord shall have the right to initially determine monthly estimat s from time to time, and. shall have the right to apply such monthly installments to tax bills according to the formula being utilized by Landlord from time to time. Upon receipt of all tax bills and assessme t bills attributable to any calendar or fiscal year during the term hereof, Landlord shall furnish Tens t with a written statement of the actual amount of Tenant's proportionate share of the Taxes for ch year. In the event no tax bill is available. Landlord will compute the amount of such tax. If the tl amount paid by Tenant under this Section 3.05 for any calendar ta or fiscal year during the term of this Le se shall be less than the actual amount due from Tenant for such year, as shown on such statement, Tenant hall pay to Landlord the difference between the amount paid by Tenant and the actual amount due, such defi iency to be paid within ten (10) days after demand therefor by Landlord; and if the total amount paid by Ten nt hereunder for any such calendar or fiscal year shall exceed such actual amount due from Tenant for such ye r, such excess shall be credited against the next installment of taxes and assessments due from Tenant to La lord hereunder. All amounts due hereunder shall be payable to Landlord at the place where the Minimum Rent payable. In the event Landlord contests any taxes levied or assessed during the term hereof upon, agains or with respect to the Shopping Center or any portion thereof or interest therein, or in the event of L ndlord's negotiation with respect to assessed valuation for the Shopping Center, Tenant shall pay its oportionate share of Landlord's costs, expenses and attorneys' fees in connection therewith calculated n the same basis as set forth above in this Section 3.05. For the calendar year in which this Lease co ences and terminates, the provisions of this Section 3.05 shall apply, and Tenant's liability for its propo tionate share of the Taxes for such years shall be subject to a pro rate adjustment based on the number of ays of said calendar or fiscal years during which the term of this Lease is in effect. A copy of a tax ill or assessment bill submitted by Landlord to Tenant shall at all times be sufficient evidence of the am unt of the Taxes assessed or levied against the property to which such bill relates. Prior to or at the c encement of the term of this Lease and from time to time thereafter throughout the term hereof. Landlord hall notify Tenant in writing of Landlord's estimate of Tenant's monthly installments due hereunder. Tenan 's obligations under this Section 3.05 ,Lshe, survive the expiration of the term of this ease. G— Section 3.06 Payments Rent shall be defined n this Lease as (i) Minimum Rent Rent is specifically agreed by Tenant to be a reasonable use and occupancy charge for the Premises. All other charges of whatever nature req red to be paid by Tenant under this Lease, including the Exhibits hereto shall, unless otherwise specifie be due and payable ten (10) days after demand, without any deductions or setoff whatsoever, in the manner a at the place where Minimum Rent is payable and Tenant's failure to pay any such charges shall carry with it the consequences set forth under Article XIX hereof. Landlord's rights and remedies pursuant to this Sectio 3.06 shall be in addition to any and all other rights and remedies provided under this Lease or at law. the event any sums required hereunder to be paid are not received on or before the day the same are due, t en, for each and every such payment, Tenant shall immediately pay, as additional rent, a service charge of 0 Hundred Dollars ($100.00) and if such sums are not received on or before the seventh day after the same re due, then for each and every such payment, Tenant shall immediately pay an additional service charge n the amount of five percent (54) of the amount due. In the event of Tenant's failure to pay the foregoi service charge, Landlord may deduct said charge from the security deposit set forth in Section 25.01 h eof. The provisions of this Section 3.06 shall not be construed to extend the date for payment of any s required to be paid by Tenant under this Lease or to 4 RA�_ relieve Tenant of its obligati_ to p all such sums at the time or Limes herein stipulated, and neither the demand for, nor collection by, Land rd of late payment service charges pursuant to this Section 3.06 shall be construed as a cure of any de "I' n payment by Tenant. It is agreed that the said service charge is a fair and reasonable charge under the cumstances and shall not be. construed as interest on a debt payment. Any amount due Prom Tenant to Land d under this Lease which is not paid when due (including, without limitation, amounts due as reimbursemen to Landlord for costs incurred by Landlord in performing obligations of Tenant hereunder upon Tenant's fail a to so perform) shall bear interest at the highest rate then allowed under the usury laws of Florida from a date due until paid, unless otherwise specifically provided herein, but the payment of such interest sha not excuse or cure any default by Tenant under this Lease. In the event any charge imposed hereunder or un any other section of this Lease is either stated to be or construed as interest, then no such interest cha a shall be calculated at a rate which is higher than the maximum rate which is allowed under the usury laws Florida, which maximum rate of interest shall be substituted for the rate in excess thereof, iP any, compu pursuant to this Lease. In the event any check received by Landord from Tenant in payment of any amou s payable by Tenant under this Lease is returned by Tenant's bank, Tenant shall pay to Landlord a service arge of Twenty -Five Dollars ($25.00) for each such check upon receipt of an invoice therefor. G/ ARTICLE IV �. RECORDS AND BOOKS OF ACCOUNT tion 4.01 Tenant's Records Ten-ant.shall prepare and keep full, complete and proper books and source documents, in accordance with generally acc ed accounting principles, of the Gross Sales, whether for cash, credit or otherwise, of each separate departme at any time operated in the Premises and of the operations of each person conducting business in the Premi and shall require and cause all such parties to prepare and keep books, source documents, records and acc is sufficient to substantiate those kept by Tenant. The books and source documents to be kept by Tenant all include, without limitation, true copies of all Federal, State and local tax returns and reports, recor of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales ftcQrds and records of any other transactions conducted in or from the Premises by Tenant and any other person onducting business in or from the Premises. Pertinent original sales records shall include, without lim ion: (i) cash register tapes, including tapes from temporary registers, (ii) serially pre -numbered sales slips, (iii) the original records of all mail and telephone ers at and to the Premises, (iv) settlement report sheets of transactions with any person conducting busine in the Premises, (v) original records indicating that merchandise returned by customers was purchased at Premises by such customers, (vi) memorandum receipts or other records of merchandise taken out on approval, ii) detailed original records of any exclusions or deductions from Gross Sales, (viii) sales tax records, d (ix) such other sales records, if any, which would normally be examined by an independent accountant pursu to accepted auditing standards in performing an audit of Tenant's sales. Tenant shall record at the time of h sale or other transaction, in the presence of the customer, all receipts from such sale or other transactio tether for cash, credit or otherwise, in a cash register or cash registers having a cumulative total which all be,� sealed in a manner approved by Landlord and which shall possess such other features as shall be require Landlord. 5f ction 4.02 Reports by Tenant Tenan all furnish to Landlord within thirty (30) days after the expiration of each quarter -annual period of each a Year a complete statement (hereinafter referred to as the "quarterly report"). certified by Tenant, o amount of Gross Sales, as defined in Section 3.03 hereof, made in, on or from the Premises during said perio allure of Tenant to timely submit any quarterly report as aforesaid shall entitle Landlord to estimate Gross based upon available data (with a reconciliation upon receipt of the annual report), and Tenant shall be o ed to pay percentage rent, as set forth in Section 3.02, on such estimated Gross Sales. Tenant shall also ish to Landlord within thirty (30) days after the expiration of each full lease year a complete atateme certified by an independent certified public accountant, showing in all reasonable detail the amount of such s Sales made by Tenant from the Premises during the preceding Lease Year. Tenant shall in all events furnish andlord within ten (10) days after the end of each month of the term of this Lease a written statement of Gro ales covering the preceding month, the statement to be in such form and style and contain such details and down as Landlord may reasonably require. Tenant shall require and cause any person other than Tenant conduct usiness in the Premises to furnish statements at the times and in the form and content specified in this n Slec4_02, relating to their operations within the Premises. ARTICLE V AUDIT 5.01 Right to Examine Books /© withstanding the acceptance by Landlord of payments of percentage rent. Landlord shall have the right to 1 rents and other charges actually due hereunder, and the right to examine, make extracts from and copy, at a Premises or Tenant's main accounting office, Tenant's books, source documents, accounts, records and sale ax reports filed with applicable government agencies by Tenant and those of all persons conducting business the Premises in order to verify the amount of Gross Sales in and from the Premises. For a period of four (4) ars after the expiration of each Lease Year, Tenant shall make all such documents and records available at th remises or Tenant's main accounting office upon three (3) days' prior written notice from Landlord. Section 5.02 Audit At its option. Landlord may at any time, on thr(3) days' prior written notice to Tenant, arrange for an auditor selected by Landlord to conduct ompleteee audit (including a physical inventory) of the entire records and operations of Tenant and/or any son conducting business in the Premises concerning business transacted upon or includable in Gross Sales f the Premises during the period covered by any statement issued by Tenant or such other person as above set rth in Article IV hereof. Tenant shall make available to Landlord's auditor at the Premises or Tenant's ma accounting office within three (3) days following Landlord's notice requiring such audit, all of the books, ource documents, accounts and records referred to in Section 4.01 hereof and any other materials which such itor deems necessary or desirable for the purpose of making such audit. Tenant shall promptly pay to Landlor he amount of any deficiency in percentage rent payments disclosed by any such audit. If such audit shall dia as that Tenant's statement of Gross Sales is at variance to the extent of one percent (lk) or more, Landlo may bill to Tenant the cost of such audit, which shall be paid by Tenant within ten (10) days after Tenant's ceipt of Landlord's invoice. If such audit shall disclose that Tenant's statement of Gross Sales is at var ce to the extent of three percent (3k) or more, then Landlord, in addition to the foregoing remedy and her remedies available to Landlord, shall have the option, upon at least ten (10) days' notice to Tenant, to lare this Lease terminated and the term ended, in which event this Lease shall cease and terminate on date specified in such notice with the same force and effect as though the date set forth in such notice were e Aa originally set forth here_.. and fixed for the expiration of the term, and Tenant shall vacate and surren the Premises but shall remain liable for all obligations arising during the balance of the original fit d term as provided in this Lease. In addition to the foregoing, and in addition to all other remedies avails to Landlord, in the event Landlord or Landlord's auditor shall schedule a date for an audit of Tenant's r ds in accordance with this Section 5.02, and Tenant shall tail to be available or shall otherwise fail to abmply with the requirements for such audit, Tenant shall pay all costs and expenses associated with the scheduled it. In addition to all other remed available to Landlord, in the event that any such audit shall disclose that Tenant's records and other do-buqents as referred to in Articles IV and V hereof and such other materials provided by Tenant to Landlord's and are inadequate, in the opinion of Landlord or Landlord's auditor, to accurately disclose Tenant's Gross S e, then Landlord shall be entitled to collect as additional rental from Tenant an amount equal to fifty can (50%) of the Minimum Rent payable by Tenant for the period in question. Landlord's exercise of the fore g remedy shall in no way limit or otherwise affect Landlord's ability to exercise other remedies availabl o it, nor shall Tenant's obligations pursuant to the terms, covenants and conditions of this Lease (in ing, without limitation, Tenant's obligation with respect to reporting Gross Sales and payment of percentage t) be in any manner reduced or diminished by the exercise of such remedy. In the event that Tenant shall, wing the exercise of such remedy, provide to Landlord all records and documentation as required to be provi ursuant to the terms of this Lease so as to permit Landlord's auditor to accurately establish Tenant's Gross es for the period in question, Tenant shall be permitted a credit with respect to any amount of additional ren collected by Landlord from Tenant pursuant to this Section 5.02, with such credit to be applied first a net the installment of percentage rent due from Tenant for the period in question, with any remaining credit be applied against the next installment of percentage rent payable by. Tenant. 93 ARTICLE VI COMMON ARRAS Section 6.01 Operation and Maintenance of Common Areas 1� Landlord shall cause to be operated and maintained during the term of this Lease all common areas within Big Pine Key Shopping Plaza. The manner in which such areas and facilities shall be operated and maintained, and the expenditures therefor, shall be at the sole discretion of Landlord and the use of such areas and facilities shall be subject to such reasonable rules and regulations as Landlord shall make from time to time. Section 6.02 Use of Common Areas (a) The term "common areas", as used in this Lease, shall mean (i) the following areas within Big Pine Key Shopping Plaza: parking areas, roadways,. pedestrian sidewalks and walkways, pedestrian plazas, pedestrian passage areas, driveways, public transportation loading and unloading facilities, truckways, retaining walls, loading docks, delivery areas, landscaped areas, community rooms, office facilities, berms, elevators, escalators, stairs, ramps and vertical transportation facilities not contained within any leased premises, public restrooms and comfort stations, service areas, service and fire and exit corridors, passageways, retention ponds (if applicable), and other areas, amenities, decorations, facilities and improvements provided by Landlord, (ii) those areas within Big Pine Key Shopping Plaza and areas adjacent to Big Pine Key Shopping Plaza which from time to time may be provided by the owners of such areas for the convenience and use of Landlord, the tenants of the Shopping Center, the owners and occupants of the Key Store Sites, and their respective concessionaires, agents, employees, customers, invitees and all other licensees and others entitled to the use thereof and (iii) any other facilities or areas, whether within or outside Big Pine Key Shopping Plaza, as may be designated by Landlord from time to time. The use and occupancy by Tenant of the Premises shall include the use of the common areas in common with Landlord and with all others for whose convenience and use the common areas have been or may hereafter be provided by Landlord or by the owners of common areas not within the Shopping Center, subject, however, to rules and regulations for the use thereof as prescribed from time to time by Landlord or the owner of such common area, including the right of Landlord to determine the hours and mode of operation of the transportation facilities serving the Shopping Center, and including the right of Landlord or such owner to impose parking charges, whether by meter or otherwise. In no event, however, shall Tenant, its agents or employees, use the common areas for the display or sale of merchandise. (b) Tenant and its employees shall park their cars only in areas specifically designated from time to time by Landlord for that purpose. Tenant covenants that it will enforce the parking by its A c employees in such designated areas. •'- - - -- -- - - ---- h.>> ti . .-. In the event any vehicle is parked by an employee of Tenant in a non -employee parking area, Landlord shall have the right to cause the vehicle to be towed to a location designated by Landlord and Tenant shall be obligated to reimburse Landlord for all towing charges, and, in addition. Landlord may charge Tenant and Tenant shall pay to Landlord as additional rent, Twenty -Five Dollars ($25.00) per day per automobile so parked by an employee of Tenant in a non -employee parking area. Tenant shall hold harmless Landlord and defend Landlord, its agents and employees against any and all claims of the employee and/or owner of the vehicle towed. (c) Landlord may at any time close temporarily any common area to make repairs or changes, to prevent the acquisition of public rights in such area, to discourage non -customer parking, to use areas for attendant or valet parking, and may do such ether acts in and to the common areas as in its judgment may be desirable to improve the convenience thereof. Section 6.03 Tenant's Pro Rata Share Of Expenses (a) Tenant agrees to pay to Landlord in the manner hereinafter provided, but not more -often than once each n,,d month. Tenant's proportionate share of: (1) all costs and expenses of every kind and nature paid or Inva<red by Landlord in operating, equipping, policing and protecting, lighting, heating, air conditioning, provid anitation and other services, providing a music and public address system, insuring (including self-insurance the payment of deductible amounts under insurance policies), repairing, replacing and maintaining the ( ommon areas (including any parking decks maintained by Landlord) and (ii) all buildings and roofs within the ping Center and (iii) all other areas, facilities and buildings, vertical transportation facilities, rate n ponds '(if applicable), and any and all facilities and improvements connecting the Shopping Center to f-site buildings or areas, which are used in connection with the maintenance and/or operation of, and whet h ocated within or outside of. Big Pine Key Shopping Plaza (hereinafter collectively referred to as "Project "); such costs and expenses shall include, but shall not be limited to, the full cost of: illumination, re , design and maintenance of Big Pine Key Shopping Plaza's signs and other signs, informational or directions , ether located on or off Big Pine Key Shopping Plaza: refuse disposal, water, gas, sewage, electricity and of utilities (without limitation), including any and all usage, service, hook up, connection, availability an standby fees or charges pertaining to same, and including all costs associated with the provision, mainten and operation of any temporary or permanent utility, including a sewage disposal system, within or without B ine Key Shopping Plaza, built, operated and/or maintained for the specific purpose of servicing Big Pine Key ing Plaza, together with hook up or connection fees and service charges: compliance with rules, regulations rders 6 -� o governmental authorities pe_,.aining to air pollution control, inc�uding the cost of monitoring air qual cleaning, lighting, striping and landscaping (interior and exterior); curbs, gutters, sidewalks, drainag and irrigation ditches, conduits, pipes and canals located on or adjacent to Big Pine Key Shopping Plaza; pr ums for liability, casualty, and property insurance (including rent insurance and the expenses incurred by dlord relative to insurance appraisals, adjusters and consultants); personal property taxes; licensing fees taxes; audit fees and expenses; supplies; all costs and expenses of enforcing the rules and regulations as lished by Landlord for the Shopping Center; cost, lease payments or depreciation of any equipment used in the eration or maintenance of the common areas or project areas; total compensation and benefits (including pre ums for workers' compensation or any other insurance or other retirement or employee benefits, and inc ding all costs incurred in providing such benefits) paid to or on behalf of employees involved in the pe rmance of the work specified in this Section 6.03 or employees otherwise providing services to tenants or ustomers of the Shopping Center; (2) all dues, assessments, impositions, charges and other amounts allocable Big Pine Key Shopping Plaza payable to any association(s) of property owners of properties which include Big ine Key Shopping Plaza; and (3) an amount equal to fifteen percent (15%) of the total of all of the foregoin oats and expenses for Big Pine Key Shopping Plaza, to compensate Landlord for administration services. The p ortionate share to be paid by Tenant shall be that portion of the foregoing costs and expenses which the numb of square feet of floor area in the Premises bears to the total number of square feet of gross leased and oc ied floor area of all buildings in the Shopping Center. (b) Tenant's proportionate share of such costs expenses for each calendar year shall be paid in monthly installments on the first day of each calendar th, in advance, in an amount estimated by Landlord from time to time. Subsequent to the end of each slender year (or fiscal lease year, at Landlord's option), Landlord shall furnish Tenant with a state t of the actual amount of Tenant's proportionate share of such costs and expenses for such period. If total amount paid by Tenant under this Section 6.03 for any such year shall be less than the actual amount us from Tenant for such year as shown on such statement, Tenant shall pay to Landlord the difference betwee the amount paid by Tenant and the actual amount due, such deficiency to be paid within ten (10) days after a furnishing of each such statement, and if the total amount paid by Tenant hereunder for any such year all exceed such actual amount due from Tenant for such year, such excess shall be credited against the nex installment due from Tenant to Landlord under this Section 6.03. Landlord may estimate the annual bud t and charge the estimated share to Tenant on a monthly basis subject to revision by Landlord of the budget m time to time and final annual adjustment based upon actual expenses. Neither the provisions of this Sect n 6.03. nor any of the other requirements or restrictions imposed upon Tenant under this Lease, shall excuse ant from its obligation to comply with laws and ordinances and other governmental requirements as set th in Section 7.02 hereof. _ ARTICLE VII CONDUCT OF BUSINESS BY TENANT Section 7.01 Use of Premises 2 Tenant shall continuously use and occupy the entire Premises during the term of this Lease, which use and occupancy shall be solely for the purpose of conducting the business specifically set forth in Section 1.01(j) hereof and for no other purpose or purposes. It is agreed that the use specified in Section 1.01(j) hereof has been, and is, a material inducement to Landlord in entering into this Lease with Tenant, and that Landlord would not enter into this Lease without this inducement. Il any governmental license or permit shall be required for the proper and lawful conduct of Tenant's business or other activity carried on in the Premises or if a failure to procure such a license or permit might or would in any way affect Landlord or the Shopping Center, then Tenant, at Tenant's expense, shall duly procure and thereafter maintain such license or permit and submit the same for inspection by Landlord. Tenant, at Tenant's expense, shall, at all times, comply with the requirements of each such license or permit. Section 7.02 Operation of Business (a) Tenant shall be open for business and operate continuously, during all days and hours, established by Landlord, in all of the Premises during the entire term of this Lease, and shall conduct its business at all times in a first class and reputable manner. In the event the maximum hours during which the Shopping Center is legally permitted to be open to the public are regulated by any lawful authority, then Landlord shall be the sole judge of which days and hours shall be Shopping Center business days and hours. (b) Because of the fficulty or impossibility of determining Landlord's damages by way of loss of the anticipated percentage r t from Tenant or other tenants or occupants of the Shopping Center, or by way of loss of value of the Shopp g Center because of diminished saleability or mortgageability or adverse publicity or appearance by Tenant's ction, should Tenant (i) fail to take possession and open for business in the Premises fully fixtured, stock and staffed on the Commencement Date, or (ii) abandon, leave vacant or desert the Premises, or (iii) cease perating or conducting Tenant's business in accordance with the terms of this Section 7.02, or (iv) fail o refuse to maintain business hours on such days or nights or any part thereof as provided in this Section . 2, then and in any of such events (hereinafter collectively referred to as "failure to do business"), Lan ord shall have the right, in addition to any and all other rights or remedies Landlord may have under, this ease or at law or in equity, at Landlord's option (i) to collect not only Minimum Rent and all items of a ditional rent herein reserved, but also additional rent equal to the amount of Minimum Rent reserved for th period of Tenant's failure to do business, computed at a daily rate for each and every day or part thereo during such period. Such additional rent shall be deemed to be liquidated damages in lieu of percentage ant that might have been earned by Landlord during such period, and in addition, at Landlords option (ii) t treat such failure to do business as a default by Tenant hereunder. Failure of Tenant to open and operat as herein required shall entitle L6ndlord, in addition to all other remedies provided in this Lease, to man tory injunctive relief (c) Tenant, at Tenant's expense, shall promptly comply with all present and future laws, ordinances, orders, rules, regulations and requirements of all governmental authorities having jurisdiction, affecting or applicable to the Premises or the cleanliness, safety, occupancy and use of the same, whether or not any such law, ordinance, order, rule, regulation or requirement is substantial, or foreseen or unforeseen, or ordinary or extraordinary, or shall necessitate structural changes or improvements or interfere with the use and enjoyment of the Premises. Tenant shall not do or permit anything to be done in or about the Premises, or bring anything therein, which will in any way conflict with any such law, ordinance, order, rule, regulation or requirement affecting the occupancy or use of the Premises or Big Pine Key Shopping Plaza which is or may hereafter be enacted or promulgated by governmental authorities, or in any way obstruct or interfere with the rights of others, nor shall Tenant use or allow the Premises to be used for any improper, immoral or objectionable purposes or the sale of any merchandise which is objectionable, as determined by Landlord. POILanyMeMse ens Tenant shall comply with all state and local laws in effect from time to time prohibiting iscrimination or segregation by reason of race, color, religion, sex or national origin. S G. - 7 - (d) No auction, liquidation, going out of business, fire or bankruptcy sales may be conducted or advertised by ign or otherwise in the Premises or in any advertising media. Tenant shall display and sell only first -qua it, current -season merchandise and Tenant's sales practices shall be in accord with standards and p act ice, generally acceptable in enclosed first-class, full -retail -price regional shopping centers. Tenant shall permit returns of merchandise and cash refunds on such returns, except in connection with special sal and close outs. Tenant agrees that it will conduct its business in good faith, and will not do any act to ding to injure the reputation of the Shopping Center as determined by Landlord. Tenant shall not sell or splay any paraphernalia used in the preparation or consumption of controlled substances. In the event Landlo d has approved Tenant's remaining open for business after normal Shopping Center hours. then such approval all be conditioned upon Tenant's paying for all additional costs incurred by Landlord as a result thereof. Tenant shall not permit noise or odors in the Premises which are objected to by Landlord and, upon wr ttan notice from Landlord. Tenant shall immediately cease and desist from causing such noise or odor, failin of which Landlord may deem the same a material breach of this Lease. Tenant shall not permit the operati of any coin operated or vending machines or pay telephones on the Premises, other than in the areas rese ed solely for the use of Tenant's employees. Tenant shall not sell or display any merchandise within five set (5') of the storefront leaseline or opening unless such sale or display shall be expressly approved on\coatther Store Design Drawings or otherwise approved by Landlord, in writing, except that Tenant shall be permd to display merchandise in the display windows, if any. Tenant shall not use the areas adjacent to themises for business purposes. Tenant shall not store anything in service or exit corridors. Tenant as that all receiving and delivery of goods and merchandise, and all removal of merchandise, supplies, eent, trash and garbage, and all storage of trash and garbage, shall be made only by way of or in theprovided therefor by Landlord. Tenant shall not use or permit the use of any portion of the Premises aping quarters, lodging rooms, or for any unlawful purposes. Tenant shall not install any radio or telor other similar device exterior to the Premises and shall not erect any aerial on the roof or eor walls of any building within Big Pine Key Shopping Plaza. Landlord may direct the use of all pxte ination contractors at the sole cost and expense of Tenant and at such intervals as Landlord mayire. Failure of Tenant to employ the pest extermination contractor designated by Landlord shall entitldlord to employ such contractor with respect to the Premises and Tenant shall reimburse Landlord for tht then of. 9—SG' (e) If requesty Landlo , Tenant shall keep the display windows in the Premises well lighted from dusk until one hour after closing, or such other reasonable time as determined by Landlord, during each and every day of the term of this Lease, unless prevented by causes beyond the control of Tenant. Section 7.03 Competition During the term of this Lee in the event Tenant, its parent corporation or subsidiary corporation, or its franchisor or franchisee, or any person, firm, corporation or other entity which directly or indirectly controls or is controll d by Tenant, shall, directly or indirectly, either individually or as a partner or stockholder or otherwis own, operate or become financially interested in any business similar to or in competition with the buaine s of Tenant described in Section 7.01 within a radius of ten (10) miles from the closest point of the outsi a boundary of Big Pine Key Shopping Plaza to the similar or competing business in question, then the Gross Sales (as defined in this Lease) of any such business or businesses within said radius shall be included in the Gross Sales made from the Premises and the percentage rent hereunder shall be computed upon the ggregate of the Gross Sales made Prom the Premises and by any such other business or businesses then condu ted within said radius and Tenant shall report and maintain records of such sales in the manner provided i Article IV hereof and Landlord shall have the right to audit the same as provided in Article V hereof. This Section 7.03 shall not apply to. any such business or businesses open and being operated by Tenant within said radius as of the execution of this Lease. Section 7.04 Storage; Office Space P-S 11 Tenant shall warehouse, store and/o stock in the Premises only such goods, wares and merchandise as Tenant intends to offer for sale at ret it prices at, in, from or upon the Premises. This shall not preclude occasional emergency transfers of erchandise from the other stores of Tenant, if any, not located in the Shopping Center. Tenant shall use fo office, clerical or other non -selling purposes only such space in the Premises as is from time to time reaso blly CCrequired for Tenant's business in the Premises. Section 7.05 Care of Premises 1`d C-- A _ Tenant, at Tenant's expense, shall at all times keep the Premises (including the service areas adjacent to the Premises, display windows, storefront and signs) orderly, neat, safe, clean and free from rubbish and dirt, and vermin, and shall store all trash, garbage and other solid waste within the Premises. Tenant shall not burn any trash or garbage at any time in or about Big Pine Key Shopping Plaza. Landlord may direct the use by Tenant at Tenant's expense of all solid waste disposal contractors at such intervals as Landlord may require. If Landlord shall provide or contract for any services or facilities for solid waste pickup, then Tenant shall be obligated to use the same and shall pay a proportionate share of the expense thereof within ten (10) days after being billed therefor. If Landlord does not provide such services, Tenant shall arrange for the regular pickup of all solid waste at Tenant's expense. ARTICLE VIII UTILITY CHARGES Section 8.01 Utility Charges (a) Tenant shall be solely responsible for and promptly pay all charges for water.,gas, heat, electricity, sewer and any other utility used upon or furnished to the Premises. Tenant shall contract directly with and shall be solely responsible to the public utility companies for the installation of service and the payment of all charges for Tenant's usage of such utility services. If Landlord shall elect to supply any of the foregoing utilities used upon or furnished to the Premises, Tenant agrees to purchase and pay for same as additional rent, within ten (10) days of the presentation by Landlord to Tenant of bills therefor, at the rates which would be applicable to Tenant as a direct customer of the public utility company, as such rates are filed by the utility company serving the area with the proper regulating authority and in effect from time to time covering such services. The obligation of Tenant to -pay for such utilities shall commence as of the date on which possession of the Premises is delivered to Tenant, without regard to any free rental period or formal commencement date of this Lease. (b) Landlord shall not be liable to Tenant for any loss, damage or expense which Tenant may sustain if the quality or character of utilities used upon or furnished to the Premises are no longer available or suitable for Tenant's requirements, or if said utilities are interrupted as a result of actions by the public utility companies or any cause other than Landlord's negligence or willful default. (c) Any furnishing by Landlord of light, heat, air conditioning or power shall be conditioned upon the availability of adequate energy sources. Landlord shall have the right to reduce heat, lighting 8 - And air conditioning within th shopping Center as required by any ma. .atory or voluntary fuel or energy saving allocation, or any similar statute, regulation, order or program, without such action diminishing Tenant's obligations hereunder.. (d) Tenant shall be r ponsible ror thle payment of thl, plant capacity and main extension charge and any other tapping, connectio and use charges and fees imposed by any governmental units or utility companies in connection with any ility service to the Premises. If Landlord has paid the same, Tenant shall reimburse Landlord therefor. i ARTICLE IX SIGNS Section 9.01 Signs Tenant shall affix a sign to the exterior surface of the storefront of the Premises and shall maintain said sign in good condition and repair during the entire term of this Lease. Said sign shell conform to the criteria for signs contained in Exhibit "C," and the size, content, design and location thereof shall be subject to the prior written approval of Landlord. Except as hereinabove mentioned, Tenant shall not place or cause to be placed, erected or maintained on any exterior door, wall, window or the roof of the Premises, or on the glass of any window or door of the Premises, or on any sidewalk or other location outside the Premises, or within any display window space in the Premises, or within five (5) feet of the front of the storefront leaseline or opening, whether or not there is a display window space in the Premises, or within any entrance to the Premises, any sign (flashing, moving, hanging, handwritten, or otherwise), decal, placard, decoration, flashing, moving or hanging lights, lettering, or any other advertising matter of any kind or description. Tenant shall not utilize any displays which are not part of the fixture plan approved in writing by Landlord for the Premises. If Tenant places or causes to be placed or maintained any of the foregoing, the same may be removed by Landlord without notice and without such removal constituting a breach of this Lease or entitling Tenant to claim damages on account thereof. No symbol, design, name, mark or insignia adopted by Landlord for the Shopping Center shall be used without the prior written consent of Landlord. No illuminated sign located in the interior of the Premises and which is visible from the outside thereof shall be permitted without the prior written approval of Landlord. ARTICLE X MAINTENANCE OF THE PREMISES Section 10.01 Landlord's Obligations for Maintenance Landlord shall keep and maintain the foundation, the outer walls and roof of the building in which the Premises are located in good repair, except that Landlord shall not be called upon to make any such repairs occasioned by the act or negligence of Tenant, its agents, employees, invitees, licensees or contractors. Landlord shall not be called upon to make any other improvements or repairs of any kind upon the Premises and appurtenances, except as may be required under Articles XVI and XVII hereof. and nothing contained in this Section 10.01 hereof shall limit Landlord's right to reimbursement from Tenant for maintenance, repair costs and replacement costs conferred elsewhere in this Lease. Section 10.02 Tenant's Obligations for Maintenance (a) Except as provided in Section 10.01 hereof, Tenant, at Tenant's expense, shall keep and maintain in first class appearance, in a condition at least equal to that which existed when Tenant initially opened the Premises for business, and in good order, condition and repair as determined by Landlord (including replacement of parts and equipment, if necessary) the Premises and every part thereof and any and all appurtenances thereto wherever located, and all other repairs, replacements, renewals and restorations, interior and exterior, ordinary and extraordinary, foreseen and unforeseen, and all other work performed by or on behalf of Tenant pursuant to Exhibit "C" and Section 10.03 hereof. (b) Tenant shall keep and maintain the Premises in a clean, sanitary and safe condition in accordance with the laws of Florida and in accordance with all directions, rules and regulations of the health officer, fire marshall, building inspector, or other proper officials of the governmental agencies having jurisdiction, and Tenant shall comply with all requirements of law, ordinances and otherwise, affecting the Premises, all at the sole cost and expense of Tenant. At the time of the expiration or sooner termination of the tenancy created herein. Tenant shall surrender the Premises in good order, condition and repair. (c) Tenant shall keep the Premises and all other parts of Big Pine Key Shopping Plaza free from any and all liens arising out of any work performed, materials furnished or obligations incurred by or for Tenant, and agrees to bond against or discharge any such lien (including, without limitation, any construction, mechanic's or materialman's lien) within ten (10) days after written request therefor by Landlord. Tenant shall reimburse Landlord for any and all costs and expenses which may be incurred by Landlord by reason of the filing of any such liens and/or the removal of same, such reimbursement to be made within ten (10) days after written notice from Landlord to Tenant setting forth the amount of such costs and expenses. Landlord's interest in the Premises and the Shopping Center shall not be subject to a lien for any improvements made by the Tenant, or for any work done or materials furnished to the Premises or the Shopping Center at Tenant's request and Tenant shall notify any contractor employed by Tenant to do work on or furnish materials to the Premises (or, with Landlord's prior written consent only, other portion of the Shopping Center), prior to Tenant's entering into a contract with any such contractor, that Landlord's interest in the Premises and the Shopping Center is not subject to such a lien and the failure of Tenant to so notify any such contractor shall be deemed a default hereunder. (d) Tenant, at its own expense, shall install and maintain fire extinguishers and other fire protection devices as may be required from time to time by any agency having jurisdiction thereof and/or by the insurance underwriters insuring the building in which the Premises are located. (a) Tenant agrees to operate its heating and its ventilating and air conditioning system(s) serving the Premises during regular Shopping Center business hours, to maintain comfortable conditions. Temperatures in the Premises shall be maintained in accordance with Landlord's requirements. (f) Tenant expressly waives all rights to make repairs at the expense of Landlord as provided for in any statute or law in effect during the term of this Lease. Section 10.03 Alterations (a) Tenant shall not make or cause to be made any alterations, additions or improvements to the Premises without the prior written approval of Landlord in each instance. Tenant shall present to Landlord plans and specifications for such work at the time approval is sought, in accordance with criteria and procedures as provided in Exhibit "C". =:JW (b) All alterations, acorations, additions and improvement& .aade by Tenant shall be deemed to .have attached to the leasehold and to have become the property of Landlord upon such attachment. Upon expiration of this Lease, Tenant shall not remove any of such alterations, decorations, additions or improvements. Trade fixtures installed by Tenant may be removed if all rents and other charges due herein are paid in full and Tenant is not otherwise in default hereunder, provided that Tenant repairs any damage to the Premises caused by such removal. Landlord may, however, designate by written notice to Tenant those alterations, decorations, additions, improvements, or trade fixtures which shall be removed by Tenant at the expiration or termination of the Lease, and Tenant shall promptly remove the same and repair any damage to the Premises caused by such removal. ARTICLE XI INSURANCE AND INDEMNITY Section 11.01 Tenant's Insurance (a) Tenant shall, at its sole cost and expense, during the entire term hereof, procure, pay for and keep in full force and effect: (i) an occurrence form comprehensive general liability policy, including insurance against assumed or contractual liability under this Lease with respect to the Premises and the operations of Tenant and any person conducting business in, on or about the Premises in which the limits with respect to personal liability and property damage shall be not less than One Million Dollars ($1,000,000) per occurrence: (ii) all risk property insurance, including theft and, if applicable, boiler and machinery coverage, written at replacement cost value in an adequate amount to avoid coinsurance and a replacement cost endorsement insuring Tenant's merchandise, trade fixtures, furnishings, equipment, plate glass, signs and personal property of Tenant and including property of Tenant's customers located on or in the Premises: (iii) workers' compensation coverage as required by law; (iv) with respect to alterations, improvements and the like required or permitted to be made by Tenant hereunder, contingent liability and builder's risk insurance, in amounts satisfactory to Landlord; and (v) product liability coverage, including, without limitation (if this Lease covers Premises in which food and/or beverages are sold and/or consumed), liquor liability coverage (if applicable to Tenant's business) and coverage for liability arising out of the consumption of food and/or alcoholic beverages on or obtained at the Premises, of not less than One Million Dollars ($1,000,000) per occurrence for personal injury and death and property damage. From time to time during the term of this Lease, at Landlord's request, Tenant shall (i) procure, pay for and keep in full force and effect such other insurance as Landlord or Landlord's mortgagees shall require and (ii) increase the limits of such insurance as Landlord or Landlord's mortgagees shall require. (b) All policies of insurance required to be carried by Tenant pursuant to this Section 11.01 shall be written by responsible insurance companies authorized to do business in Florida. Any such insurance required of Tenant hereunder may be furnished by Tenant under any blanket policy carried by it or under a separate policy therefor. A copy of each paid -up policy evidencing such insurance or a certificate of the insurer, certifying that such policy has been, issued, providing the coverage required by this Section 11.01 and containing provisions specified herein, shall be delivered to Landlord prior to the commencement of the term of this Lease and, upon renewals, not less than sixty (60) days prior to the expiration of such coverage. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder. (c) Each policy evidencing insurance required to be carried by Tenant pursuant to this Section 11.01 shall contain the following provisions and/or clauses: (i) a cross -liability clause; (ii) a provision that such policy and the coverage evidenced thereby shall be primary and non-contributing with respect to any policies carried by Landlord, and that any coverage carried by Landlord shall be excess insurance; (iii) a provision including Landlord and any other parties in interest designated by Landlord as an additional named insured (except with respect to workers' compensation insurance): (iv) a severability clause; and (v) a provision that the insurer will not cancel, materially change or fail to renew the coverage provided by such policy without first giving Landlord sixty (60) days' prior written notice. (d) Tenan hall not carry any stock of goods or do anything in or about the Premises which will in any way tend to inc se the insurance rates on the Shopping Center, Big Pine Key Shopping Plaza, the Premises and/or the buildi of which they are a part and/or the contents thereof. If Tenant installs any electric„`}. equipment that overIds the lines in the Premises, Tenant shall at its own expense make whatever changes are necessary to compl ith the requirements of the insurance underwriters and governmental authorities having jurisdiction ove he Premises. If anything done, omitted to be done or suffered to be done by Tenant, or kept or suffered b enant to be kept, in, upon or about the Premises shall cause the rate of fire or other insurance on the P ises or other property of Landlord in companies acceptable to Landlord to be increased beyond the minimum a from time to time applicable to the Premises for the use permitted under this Lease or to any other prop for the use or uses made thereof, Tenant will pay the amount of any increases. Section 11.02 Landlord's Insurance During the term hereof. Landlord shall provide, to the extent the same is available from Landlord's insurance carrier, in amounts and coverages determined by Landlord, with or without deductibles, insurance coverage against such risks as are from time to time included in a standard extended coverage endorsement, insuring the improvements to the Premises provided by Tenant pursuant to this Lease (exclusive of Tenant's merchandise, trade fixtures, furnishings, equipment, plate glass, signs and personal property) in an amount determined by Landlord. Landlord may also carry at its option special extended coverage endorsements. Tenant shall submit to Landlord an itemized' statement setting forth the cost of such improvements promptly after completion thereof and Tenant shall provide to Landlord, within thirty (30) days after the end of each Lease Year, a written appraisal of the then current replacement value of the leasehold improvements to the Premises, which appraisal shall be certified by an independent insurance appraiser. In the event Tenant fails to provide such itemized statement or any such appraisal, Landlord shall have the right to estimate the value of said improvements. Which estimate shall be binding upon Tenant. Tenant shall pay Landlord for the total cost of so insuring such improvements (including the expenses incurred by Landlord relative to insurance appraisals, adjusters and consultants), such payments to be made in equal monthly installments on the first day of each calendar month, in advance, in an amount estimated by Landlord: provided however, that Landlord may elect to bill Tenant for such cost on a basis less frequently than monthly. Subsequently to the receipt by Landlord of an invoice for such insurance premium, Landlord shall furnish Tenant with a written statement setting forth such cost. if the total amount paid by Tenant under this Section 11.02 for any calendar, lease or fiscal year (at Landlord's option) shall be less than the actual amount due from Tenant for such year as shown, on such statement, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the actual amount due, such deficiency to be paid within thirty (30) days after the furnishing of each such statement, and if the total amount paid by Tenant hereunder for any such calendar year shall exceed such actual amount due from Tenant for such calendar year, such excess shall be credited against the next installment due from Tenant to Landlord under this Section 11.02. =V010 Section 11.03 Waiver of SubroL .on Landlord and Tenant shall each be released from any liability resulting from damage by fire or casualty (irrespective of the cause of such fire or casualty) upon the express proviso that if at any time their respective insurers shall refuse to permit waivers of subrogation, Landlord or Tenant may in each instance revoke said waiver of subrogation effective thirty (30) days from the date of notice to the other unless within such thirty (30) day period, the other is able to secure and furnish without additional expense insurance in other companies with such waiver of subrogation, or if such waiver can only be obtained at additional expense, if the other agrees to pay such additional expense. Section 11.04 Covenant to Hold Harmless Tenant shall indemnify Landlord, its officers, directors, stockholders, beneficiaries, partners, representatives, agents and employees, and save them harmless from and against any and all claims, actions. damages, liability, cost and expense, including attorneys' fees, in connection with all losses, including loss of life, personal injury and/or damage to property, arising from or out of any occurrence in, upon or at the Premises or the occupancy or use by Tenant of the Premises or any part thereof, or arising from or out of Tenant's failure to comply with any provision of this Lease or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, suppliers, employees, servants, customers or licensees and any person conducting business in the Premises. For the purpose hereof, the Premises shall include the service areas adjoining the same and the loading platform area allocated to the use of Tenant. All property kept, stored or maintained in the Premises shall be so kept, stored or maintained at the risk of Tenant only. ARTICLE XII ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION Section 12.01 Estoppel Statement Tenant shall, without charge, at any time and from time to time, within ten (10) days after receipt by Tenant of written request therefor from Landlord or from any mortgagee (or prospective mortgagee) under any mortgage or any beneficiary (or prospective beneficiary) under any deed of trust on the real property on which the building containing the Premises is located or of which the Premises are a part, deliver, in recordable form, a duly executed and acknowledged certificate or statement to the party requesting said certificate or statement or to any other person, firm or corporation designated by Landlord, certifying: (a) that this Lease is unmodified and in full force and effect, or, if there has been any modification, that the same is in full force and effect as modified, and stating any such modification; (b) the Commencement Date and expiration date of this Lease; (c) that rent is paid currently without any offset or defense thereto; (d) the dates to which the rent and other charges payable hereunder by Tenant have been paid, and the amount of rent and other charges, if any, paid in advance; (e) whether or not there is then existing any claim of Landlord's default hereunder and, if so, specifying the nature thereof; and (f) any other matters relating to the status of such Lease as shall be requested by Landlord or any such mortgagee or beneficiary from time to time: provided that, in fact, such facts are accurate and ascertainable. Section 12.02 Attornment In the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure of, or in the event of exercise of the power of sale under, any mortgage and/or deed of trust made by Landlord covering the Premises, or in the event Landlord sells, conveys or otherwise transfers its interest in the Shopping Center or any portion thereof containing the Premises, this Lease shall remain in full force and effect and Tenant hereby attorns to, and covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Tenant attorns to such successor in interest and recognizes such successor as the Landlord under this Lease. Payment by or performance of this Lease by any person, firm or corporation claiming an interest in this Lease or the Premises by, through or under Tenant without Landlord's consent in writing shall not constitute an attornment or create any interest in this Lease or the Premises. Section 12.03 Subordination Tenant agrees that this Lease shall, at the request of Landlord, be subordinate to any first mortgages or deeds of trust that are now, or may hereafter be, placed upon the Premises and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacements and extensions thereof, provided that the mortgagees or beneficiaries named in said mortgages or trust deeds shall agree to recognize the interest of Tenant under this Lease in the event of foreclosure, if Tenant is not then in default. Tenant also agrees that any mortgagee or beneficiary may elect to have this Lease constitute a prior lien to its mortgage or deed of trust, and in the event of such election and upon notification by such mortgagee or beneficiary to Tenant to that effect, this Lease shall be deemed prior in lien to such mortgage or deed of trust, wheth-c this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant agrees that upon the request of Landlord, or any mortgagee or beneficiary, Tenant shall execute whatever instruments may be required by Landlord or by any mortgagee or beneficiary to carry out the intent of this Section 12.03. Section 12.04 Remedies Failure of Tenant to execute any statements or instruments necessary or desirable to effectuate the foregoing provisions of this Article XII, within ten (10) days after written request to do so by Landlord, shall constitute a breach of this Lease. In the event of such failure, Landlord, in addition to any other rights or remedies it might have, shall hgve the right by not less than ten (10) days' notice to Tenant to declare this Lease terminated and the term ended, in which event this Lease shall cease and terminate on the date specified in such notice with the same force and effect as though the date set forth in such notice were the date originally set forth herein and fixed for the expiration of the term; upon such termination Tenant shall vacate and surrender the Premises, but shall remain liable for all obligations arisina _during the original stated term as provided in `his Lease by reason -F said breach.. ARTICLE XIII ASSIGNMENT AND SUBLETTING Section 13.01 No Assignment and Subletting (a) Notwithstanding any provision herein to the contrary or reference herein to concessionaires or subtenants or otherwise, Tenant agrees not to assign or in any manner transfer this Lease or any estate or interest therein, and not to lease or sublet the Premises or any part or parts thereof or any right or privilege appurtenant thereto, and not to allow anyone to conduct business at, upon or from the Premises (whether as concessionaire, franchisee, licensee, permittee, subtenant, department operator or otherwise), either by voluntary or involuntary act of Tenant or by operation of law or otherwise without Landlord's prior written consent. (b) The sale, issuance or transfer of any voting capital stock of Tenant or Tenant's Guarantor, if any, or any voting capital stock of any corporate entity which directly or indirectly controls Tenant (if Tenant or Tenant's Guarantor, if any, or any such controlling corporate entity is a corporation the stock of which is not traded on the New York Stock Exchange or the American Stock Exchange), or any interests in any noncorporate entity which directly or indirectly controls Tenant or Tenant's Guarantor, if any, which results in a change in the direct or indirect voting control of Tenant, or Tenant's Guarantor, if any, shall be deemed to be an assignment of this Lease within the meaning of this Section 13.01. If Tenant is a partnership, trust or an, unincorporated association, then the sale, issuance or transfer of a controlling interest therein, or the transfer of a majority interest in or a change in the voting control of any partnership, trust, unincorporated association, or corporation which directly or indirectly controls Tenant. or the transfer of any portion of any general partnership or managing interest in Tenant or in any such entity, shall be deemed to be a prohibited assignment of this Lease within the meaning of this Section 13.01. (c) In the event Tenant desires to sublet all, or a portion of the Premises or assign this Lease. Tenant shall give notice to Landlord setting forth the terms of the proposed subletting or assignment. Landlord shall have the right, exercisable by written notice to Tenant within twenty (20) days after receipt of Tenant notice, (i) to consent or refuse to consent thereto, and if Landlord fails to notify Tenant, it shall be deemed to have refused to consent thereto, (ii) to sublet such space from Tenant at the rental and other terms set forth in Tenants notice, or (iii) if the proposed subletting is for the entire Premises for the balance of the term or in the event Tenant wishes to assign this Lease, to terminate this Lease. (d) In the event Tenant shall request the consent of Landlord to any assignment or subletting, then Tenant shall pay Landlord's reasonable attorneys' fees and processing fees incurred in connection therewith. ARTICLE XIV ACCESS BY LANDLORD Section 14.01 Right of Entry Landlord or Landlord's agents shall have the right to enter the Premises at all reasonable times to examine the same and to show them to prospective customers or mortgagees. Landlord or Landlord's agents shall have the further right to enter the Premises to make such repairs, alterations, improvements or additions as Landlord may deem necessary or desirable, and Landlord shall be allowed to take all material into and upon the Premises that may be required therefor without the same constituting an eviction of Tenant in whole or in part, and the rent and other charges reserved herein shall not abate while said repairs, alterations, improvements, or additions are being made, by reason of loss or interruption of business of Tenant, or otherwise. Landlord may, at any time, exhibit the Premises to prospective tenants. ARTICLE XV WASTE Section 15.01 Waste or Nuisance Tenant shall not commit or suffer to be committed any waste upon the Premises and shall not place a load upon any floor of the Premises which exceeds the floor load per square foot which such floor was designed to carry. Tenant shall not commit or suffer to be committed any nuisance or other act or thing which may disturb the quiet enjoyment of any other occupant or tenant of Big Pine Key Shopping Plaza. Tenant shall not use or permit to be used any medium that might constitute a nuisance, such as loud speakers, sound amplifiers, phonographs, radios, televisions, or any other sound producing or other device which will carry sound or odors outside the Premises. Tenant agrees that business machines and mechanical equipment used by Tenant which cause vibration or noise that may be transmitted to the building or buildings comprising Big Pine Key Shopping Plaza or to the Premises, to such a degree as to be reasonably objectionable to Landlord or to any occupant, shall be placed and maintained by Tenant at its expense in settings of cork, rubber or spring -type vibration isolators sufficient to eliminate such vibrations or noise. In the event Tenant shall be in default of the foregoing provisions of this Section 15.01, in addition to all other rights and remedies at law and in equity and herein provided. Tenant shall pay as additional rent Twenty -Five Dollars ($25.00) per day that Tenant shall so be in default after verbal notice from Landlord. ARTICLE XVI EMINENT DOMAIN Section 16.01 Total Condemnation of Premises If the whole of the Premises shall be taken by any public or sold to a public authority under threat or in lieu of such cease as of the day possession shall be taken by such public that day with a proportionate refund by Landlord of such rent advance for a period subsequent to the date of the taking. Section 16.02 Partial Condemnation authority under the power of eminent domain a taking, then the term of this Lease shall authority, and the rent shall be paid up to and other charges as may have been paid in (a) (i) If less than the whole but more than twenty percent (20%) of the Premises or more than fifty percent (50%) of the common areas shall be so taken under eminent domain, or sold to a public authority under threat or in lieu of such a taking, Tenant shall have the right either to terminate this Lease as of the day possession is taken by the public authority. or, subject to Landlord's right of termination as set forth in Section 16.02(b) hereof to continue in possession of the remainder of the Premises, upon notifying Landlord in writing within ten (10) days after such taking of Tenant's intention. - 12 - (ii) If twenty p ;ent (20%) or less of the Premises sha__ be so taken, the lease term shall cease only on the part so taken, as of the day possession shall be taken by such public authority, and Tenant shall pay rent and other charges up to that day, with appropriate credit by Landlord (toward the next installment of such rent or charges due from Tenant) of such rent or charges as may have been paid in advance for a period subsequent to the date of the taking. (iii) In the event of such a taking which does not result in a termination of this Lease, the Minimum Rent and other charges payable to Landlord shall be reduced in proportion to the floor area of the Premises taken and the Minimum Gross Sales above which annual percentage rent is computed and payable shall likewise be proportionately reduced. Landlord shall, at its expense, make all necessary repairs or alterations to the basic building, so as to constitute the remaining Premises a complete architectural unit. and Tenant, at Tenant's sole cost, shall similarly act with respect to Tenant's improvements, trade fixtures, furnishings and equipment. (b) If more than fifty percent (50%) of the building in which the Premises are located, or more than fifty percent (50%) of the Premises, or more than fifty percent (50%) of the Shopping Center or of the common areas, shall be taken under power of eminent domain, or sold to a public authority under the threat or in lieu of such a taking, Landlord may, by written notice to Tenant delivered on or before the tenth (loth) day following the date of surrendering possession to the public authority, terminate this Lease as of the day possession is taken by public authority. The rent and other charges shall be paid up to the day possession is taken by public authority, with an appropriate refund by Landlord of such rent as may have been paid in advance for a period subsequent to that date. Section 16.03 Landlord's and Tenant's Damagps All damages awarded for such taking under the power of eminent domain or sale under the threat or in lieu of such a taking, whether for the whole or a part of the Premises, shall belong to and be the property of Landlord, irrespective of whether such damages shall be awarded as compensation for diminution in value to the leasehold or to the fee of the Premises, and Tenant shall have no claim against either Landlord or the condemning authority with respect thereto; provided, however, that Landlord shall not be entitled to any award specifically designated as compensation for, depreciation to, and cost of removal of, Tenant's stock and trade fixtures, except to the extent Landlord is so entitled pursuant to its security interest in such items. ARTICLE XVII DESTRUCTION OF LEASED PREMISES Section 17.01 Reconstruction of Damaged Premises In the event the Premises shall be partially .or totally destroyed by fire or other casualty insured under the insurance carried by Landlord so as to become partially or totally untenantable, then the damage to the Premises shall be promptly repaired (unless Landlord shall elect not to rebuild as hereinafter provided), and the Minimum Rent shall be abated in proportion to the floor area of the Premises rendered untenantable, and the Minimum Gross Sales above which percentage rental is computed and payable shall likewise be proportionately reduced. Payment of full rental so abated shall commence and Tenant shall be obligated to reopen for business on the thirtieth (30th) day following the date that Landlord advises Tenant that the Premises are tenantable, unless Tenant opens at an earlier time in the damaged area or remains open in such area following destruction or damage_, in which event there shall be no abatement or any such abatement shall terminate as of the date of Tenant's earlier reopening. Any amount expended by Landlord in repairing the Premises in excess of the proceeds of insurance received by Landlord pursuant to Section 11.02 of this Lease allocated to the Premises shall be repayable by Tenant to Landlord within ten (10) days after receipt by Tenant from Landlord of a statement setting forth the amount of such excess. Landlord shall reconstruct the Premises in accordance with the working drawings originally approved by Landlord or (at Landlord's sole election) with new drawings prepared by Tenant and acceptable to Landlord and Tenant. In no event shall Landlord be required to repair or replace Tenant's merchandise, trade fixtures, furnishings or equipment. If Landlord repairs or rebuilds, Tenant, at Tenant's sole cost, shall repair or replace Tenant's merchandise, trade fixtures, furnishings, equipment, plate glass, signs and personal property in a manner and to at least a condition equal to that prior to the damage or destruction thereof. Section 17.02 Landlord's Right to Terminate If (i) more than thirty-five percent (35%) of the floor area of the building in which the Premises are located or of the Shopping Center shall be damaged or destroyed by fire or other casualty, or (ii) during the last three (3) years of the term hereof more than twenty-five percent (25%) of the floor area of the Premises or of the building in which the Premises are located or of the Shopping Center shall be damaged or destroyed by fire or other casualty, or (iii) all or any part of the Shopping Center or said building or the Premises are damaged or destroyed at any time by the occurrence of any risk not insured under the insurance carried by Landlord, then Landlord, at its sole option, may terminate this Lease by giving written notice to Tenant of Landlord's election so to terminate, such notice to be given within ninety (90) days after the occurrence of such damage or destruction. ARTICLE XVIII BANKRUPTCY OR INSOLVENCY Section 18.01 Conditions to the Assumption and Assignment of this Lease under Chapter 7, 11 or 13 of the Bankruptcy Code In the event that Tenant shall become a Debtor under Chapter 7, 11 or 13 of the Bankruptcy Code, and the Trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 18.02 and 18.04 hereof are satisfied. The Tenant acknowledges that it is essential to the operation of the Shopping Center that a decision on whether to assume or reject this Lease be made promptly to assure the continuance of the proper tenant mix and balance in the Shopping Center, as well as the continuance of the availability of percentage rents. Under these circumstances, Tenant agrees that should Tenant, as Debtor -In -Possession, or any Trustee appointed for Tenant, fail to elect to assume this Lease within sixty (60) days after the filing of the Petition, this Lease shall be deemed to have been rejected. Tenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, as Debtor -In -Possession, or the Trustee abandons the Premises. the same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor -In -Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Landlord's right to be compensated for damages in such liquidation proceeding shall survive. =11CM Section 18.02 Conditions to th issumption of this Lease in Bankruptcy ..oceedings (a) No election by the Trustee or Debtor -In -Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing: (1) The Trustee or the Debtor -In -Possession has cured, or has provided Landlord adequate assurance (as defined below) that: (a) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and (b) Within thirty (30) days from the date of such assumption the Trustee will cure all nonmonetary defaults under this Lease. (2) The Trustee or the Debtor -In -Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor -In -Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor -In -Possession. (3) The Trustee or the Debtor -In -Possession has provided Landlord with adequate assurance of the future performance (as defined beb+ow) of each of Tenant's, the Trustee's or Debtor -In -Possession's obligations under this Lease, provided, however, that: (a) The Trustee or Debtor -In -Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months rent (as adjusted pursuant to Section 18.02(3)(c) below) and other monetary charges accruing under this Lease; and (b) If not otherwise required by the terms of this Lease, the Trustee or Debtor -In -Possession shall also pay in advance on the date Minimum Rent is payable one -twelfth (1/12th) of Tenant's annual obligations under this Lease for maintenance, common area charges, real estate taxes, the Promotional Charge or Merchants' Association dues, insurance and similar charges. (c) From and after the date of the assumption of this Lease, the Trustee or Debtor -In -Possession shall pay as Minimum Rent an amount equal to the sum of the Minimum Rent otherwise payable hereunder, plus the highest amount of the annual percentage rent paid by Tenant to Landlord within the five (5) year period prior to the date of Tenant's Petition under the Bankruptcy Code, which amount shall be payable in advance in equal monthly installments on the date Minimum Rent is payable. (d) The obligations imposed upon the Trustee or Debtor -In -Possession shall continue with respect to tenant or any assignee of this Lease after the oN%i1etin of bankruptrI- procoadinus. (4) The assumption of the Lease 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 judgment, the tenant mix of the Shopping Center or any other attempt by Landlord to provide a specific variety of 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 the image, reputation, and profitability of the Shopping Center. (5) The Tenant as Debtor -In -Possession or its Trustee shall provide the Landlord at least 45 days prior written notice of any proceeding concerning the assumption of this Lease. (b) For purposes of this Section 18.02, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean: (1) The Trustee or the Debtor -In -Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor -In -Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease, and to keep the Premises stocked with merchandise and properly staffed with sufficient employees to conduct a fully -operational, actively promoted business on the Premises: and (2) The Bankruptcy Court shall have entered an Order segregating sufficient cash payable to Landlord and/or the Trustee or Debtor -In -Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, the Trustee or Debtor -In -Possession. acceptable as to value and kind to Landlord, to secure to Landlord the obligation of 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 18.03 Landlord's Option to Terminate upon Subsequent Bankruptcy Proceedings of Tenant In the event that this Lease is assumed by a Trustee appointed for Tenant or. by Tenant as Debtor -In -Possession, under the provision; of Section 18.02 hereof, and thereafter Tenant is liquidated or files a subsequent Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all tights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events. Section 18.04 Conditions to the Assignment of this Lease in Bankruptcy Proceedings If the Trustee or Debtor -In -Possession has assumed this Lease pursuant to the terms and provisions of Section 18.01 and 18.02 hereof, for the purpose of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 18.04 of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. For purposes of this Section 18.04. Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and Landlord has so acknowledged in writing: - 14 - (a) The assignee he. submitted a current financial staten. c audited by a Certified Public Accountant which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease; (b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's standards of creditworthiness; (c) The assignee has submitted in writing evidence, satisfactory to Landlord, of substantial retailing experience in shopping centers of comparable size to the Shopping Center and in the sale of merchandise and services permitted under this Lease; (d) The Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment; and (e) The terms and conditions of Section 18.02(4)(a) and (b) of this Lease will not be breached by any such assignment. Section 18.05 Use and Occupancy Charges When, pursuant to the Bankruptcy Code, the Trustee or Debtor -In -Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises or any portion thereof, such charges shall not be less than the Minimum Rent as defined in this Lease and other monetary obligations of Tenant for the payment of maintenance, common area charges, real estate taxes, Promotional Charge or Merchants' Association dues, insurance and similar charges. Section 18.06 Tenant's Interest not Transferable by Virtue of State Insolvency Law without Landlord's Consent Neither Tenant's interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant (hereinafter referred to as the "state law") unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain Landlord's consent, or Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent. Section 18.07 Landlord's Option to Terminate upon Insolvency of Tenant or Guarantor under State Law or upon Insolvency of Guarantor under Federal.Bankruptcy Law In the event the estate of Tenant created hereby shall be taken in execution or by the process of law, or if Tenant or Tenant's Guarantor shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against the Guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a Custodian, Receiver or Trustee of the property of Tenant or the Guarantor shall be appointed under state law by reason of Tenant's or the Guarantor's insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant's or the Guarantor's property for the benefit of creditors under state law; then and in such event Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the occurrence of such event. ARTICLE XIX DEFAULT OF TENANT Section 19.01 Right To Re -Enter In the event of (a) any failure of Tenant to pay any rental or other charges due hereunder within ten (10) days after written notice thereof shall have been mailed to Tenant, or (b) any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such default shall have been mailed to Tenant, or (c) if Tenant shall fail to move into the Premises and to commence the conduct of its business on the Commencement Date or fail to perform any obligation hereunder prior to such Commencement Date, or fail to continuously operate its business pursuant to Section 7.02 for the purpose specified in Section 7.01 hereof, or fail to operate under the name specified in Section 1.01(k) hereof, or if Tenant shall abandon the Premises, or permit this Lease to be taken under any writ of execution; then Landlord, besides other rights or remedies it may have, shall have the right to declare this Lease terminated and the term ended (in which event, this Lease and the term hereof shall expire, cease and terminate with the same force and effect as though the date set forth in any required notice were the date originally set forth herein and fixed for the expiration of the term and Tenant shall vacate and surrender the Premises but shall remain liable for all obligations arising during the balance of the original stated term as hereafter provided as if this Lease had remained in full force and effect) and Landlord shall have the right to bring a special proceeding to recover possession from Tenant holding over and/or Landlord may, in any of such events, without notice, re-enter the Premises either by force or otherwise, and dispossess, by summary proceedings or otherwise, Tenant and the legal representative of Tenant or other occupant of the Premises and remove their effects and hold the Premises as if this Lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings, to that end. Notwithstanding the foregoing provisions of this Section 19.01. in the event Tenant shall fail to perform or shall default in the performance of any term, covenant or condition of this Lease on two (2) or more separate occasions during any twelve-month period. then, even though such failures or defaults may have been cured by Tenant, any further failure or default by Tenant during the term of this Lease shall be deemed a default without the ability of cure by Tenant. In the event of re-entry by Landlord, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, without notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. In the event Tenant shall not remove its property from the Premises within ten (10) days after Tenant has vacated the Premises, then such property shall be deemed abandoned by Tenant and Landlord may dispose of the same without liability to Tenant. Section 19.02 Right To Relet Should Landlord elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Premises, and relet the Premises or any part thereof for such term or terms (which may be for a term extending beyond the term I this Lease) and at such rental or r, .als and upon such other terms and bgnditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rentals and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including reasonable brokerage fees and attorneys' fees and the costs of any alterations and repairs: third, to the payment of rent and other charges due and unpaid hereunder: and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. If such rentals and other sums received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord: if such rentals and the sums shall be more, Tenant shall have no right to, and shall receive no credit for, the excess. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a Court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorneys' fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. In determining the rent which would be payable by Tenant hereunder, subseg4ent to default, the annual rent for each year of the unexpired term shall be equal to the annual Minimum Rent payable by Tenant for the unexpired term (provided however, that the applicable Minimum Rent for any period, as stated in, Section 1.01(g) hereof shall be increased by the cumulative percentage increase in the Minimum Rent, pursuant to Section 3.04 hereof, from the beginning of the term of this Lease to the date of such termination) plus the average percentage rent paid by Tenant from the commencement of the term to the time of default, or during the immediately preceding thirty-six (36) months, whichever period is shorter. The failure or refusal of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and "re-entry" are not limited to their technical meanings. Section 19.03 In case suit shall be ught for recovery of possession of the Premises, for the recovery of rent or any other amount due under a provisions of this Lease, or because of the breach of any other covenant herein contained on the part Tenant to be kept and performed, and a breach shall be established, Tenant shall pay to Landlord all xpenses incurred therefor, including reasonable attorneys' fees and disbursements. In addition, in the event Landlord shall incur expenses, including reasonable attorneys' fees and disbursements, as a res t of Tenant's failure to perform or comply with any term, covenant or condition set forth in this Lease, enant shall pay to Landlord all such expenses. Any and all references to the payment of attorneys' fees disbursements herein shall include those incurred in all trial and appellate levels, as well as those in ad in any bffkruptcy proceedings. Section 19.04 Waive Landlord and Tenant waive their right to trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use of or occupancy of said Premises, and any emergency statutory or any other statutory remedy. Tenant shall not interpose any counterclaim or counterclaims or claims for set-off. recoupment or deduction of rent in a summary proceeding for nonpayment of rent or other action or summary proceeding based on termination, holdover or other default in which Landlord seeks repossession of the Premises from Tenant, unless the failure to raise the same would constitute a waiver thereof. Section 19.05 Waiver of Right of Redemption Mention in this Lease of any particular remedy, shall not preclude Landlord from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease or otherwise. Section 19.06 Landlord's Lien Tenant hereby rants to Landlord a lien and security interest as security for payment of all rental, additional rental o any other charges now or hereafter payable by Tenant hereunder, upon all equipment, fixtures and invent ry (and the proceeds thereof) within the Premises, including all improvements, equipment, fixtures, vantory, merchandise and other personal property now or hereafter placed on or in the Premises, to the full xtent of Tenant's and any assignee's or subtenant's interest therein, and such lien shall include the right h to prevent removal of said property from the Premises and may be enforced. upon nonpayment of rent or o er charges as aforesaid, or any other default by Tenant hereunder, without notice to Tenant, unless notice is required by some other provision of this Lease, by the re-entry, taking and sale, lease, or other di0psition of such property. Landlord shall also have all other rights and remedies upon default provided by I w, including those set forth in the Uniform Commercial Code, so called. The sale, lease or other dispos Lion of the property shall be either public or private after at least ten (10) days notice to Tenant at hi last known address, and Landlord shall have the right and privilege to be a purchaser at any such sale. Landlord and Tenant agree that ten (10) days notice of such sale, lease or other disposition of the props ty 'a reasonable under the circumstances. Tenant shall and hereby agrees to provide upon request a list oP creditora and indebtedness and otherwise do whatever may be necessary or appropriate to pass good and legs title under any sale, lease or other disposition as herein provided. Any and all proceeds obtained at such ale shall be applied first to the cost of such sale, including reasonable attorneys' fees and costs, and the to any interest accrued and payable under the terms of this Lease for nonpayment of rent and/or any othe charges, and any balance to the reduction of any principal sum due hereunder for rent and/or other char\es.Sale or retention under such lien shall not be deemed to waive. alter, limit or affect in any mannersoever, but shall be in addition to, any other remedies available to Landlord upon nonpayment of rent her charges under this Lease or otherwise. Tenant shall execute any financing statements or other docs requested by Landlord in order to evidence or perfect such lien. Section 19.07 Landlord Curing Tenant's Default Notwithstanding anything herein contained to the contrary, ifITenant shall be in default in the performance of any of the terms or provisions of this Lease and if Landlord shall give to Tenant notice in writing of such default specifying the nature thereof, and if Tenant shall fail to cure such default within the time provided in Section 19.01 hereof or immediately if such default requires emergency action. Landlord may, in addition to its other legal and equitable remedies, cure such default for the account of and at the cost and expense of Tenant, and the sums so expended by Landlord, including reasonable legal fees, shall be - 16 - deemed - to be additional rent shall be paid by Tenant on the day sn rent shall next become due and payable. TRADE NAME, PROMOTIONAL CHARGE Section 20.01 Trade Name (a) Tenant agrees (i) to operate its business in the Premises under the name specifically set forth in Section 1.01(k) so long as the same shall not be held to be in violation of any applicable law; (ii) not to change the advertised name or character of the business operated in the Premises: (iii) to refer to the Shopping Center by the name "Big Pine Key Shopping Plaza" in designating the location of the Premises in all advertising and in all other references to the location of the Premises; and (iv) during the thirty (30) day period prior to the Commencement Date, to include in all its newspaper advertising the designation in bold type that Tenant is opening for business in the Shopping Center. Section 20.02 Solicitation of Business Tenant and Tenant's employees and/or agents shall not solicit business in the -parking areas or other common areas, or any part of Big Pine Key Shopping Plaza other than in the Premises, nor shall Tenant distribute any handbills or other advertising matter in the parking area, other common areas, or any part of Big Pine Key Shopping Plaza other than in the Premises. Tenant shall not give samples or approach customers outside the Premises for purposes of soliciting sales. Tenant shall not give away any promotional items which could create a nuisance or require Landlord to incur additional common area expenses. Section 20.03 (a) Land ord shall have the right to establish an Advertising and Promotional Program (hereinafter referre to as the "Program") to furnish and maintain advertising and sales promotions, which in Landlord's sole j dgment, will benefit the Shopping Center from time to time. The promotion director, staff and any consul nts hired by Landlord to direct and perform the activities of the Program shall be under the exclusive c trol and supervision of Landlord, but such director, staff and consultants shall be paid with the Program's funds. Landlord may appoint a committee composed of a representative of Landlord, a representative of each ey Store contributing to the cost of the Program and a representative from each of four (4) tenants occupyi g premises in the Shopping Center, to review the advertising and other promotional activities provided by t Program. Nothing herein contained shall obligate or require Landlord to expend more for the cost of the rogram activities during any Lease Year than Landlord collects during such period from its tenants in the orm of Promotional Charges. During each calendar year. Tenant shall pay to Landlord in annual install ants in advance, as its share of the cost of the Program, an amount, herein called the "Promotional Ch rge", equal to the amount set forth in Section 1.01(1) hereof, subject to adjustment as provided in ction 20.03(c) hereof. Within ten (10) days after receipt of an invoice therefor. Tenant shall also y an Initial Promotional Charge, in addition to the foregoing, in an amount set forth in Section 1.01(m) hereof. The foregoing charges shall be payable by Tenant irrespective of whether Tenant's store shall b open for the entire year. Notwithstanding anything herein contained to the contrary, for purposes of this action 20.03, the Premises shall be deemed to contain the greater of the actual square foot area of the P emises and two thousand (2,000) square Peet. (b) At any time durin the term of this Lease. Landlord shall have the right to disband the Program by written notice to sac tenant. In lieu of the Program, Landlord shall have the right to establish a Merchants' Association to foster the interest of the tenants of the Shopping Center. The objectives of such Association shal be to encourage its members to deal fairly and courteously with their customers, to follow ethical busines practices, to assist the business of the tenants by sales promotions and centerwide advertising, and in pa icular, to help the interest of members of the Association. Upon the formation of such Association, Tenant all become a member thereof, participate fully therein and remain in good standing during the term of this L ass. Each member tenant shall have one vote and Landlord shall also have one vote in the operation of the A ociation. During each calendar year, Tenant shall pay dues to the Association, in annual installments in a vance, in an amount equal to the then current Promotional Charge payable by Tenant upon the date of LanI r, a notice establishing the Merchants' Association. Nothing in the bylaws or regulations of the Associ tion shall be in conflict with the provisions of this Lease, including, without limiting the generals y of the foregoing, any rules and regulations adopted and established uniformly for the operation of he Shopping Center by Landlord, nor shall they in any manner affect the rights of Landlord. (c) The Promotional Charge provided for in Section 20.03(a) hereof or the Merchants' Association dues provided for in Section 20.03(b) hereof will be adjusted annually by a percentage equal to the percentage increase from the base period of th\eIhdex x (as defined in Section 3.04(b) hereof). The term "base period" shall refer to the date on which is published, which is closest to the date of the opening of the Shopping Center or the most recenotional Charge increase immediately preceding the date of this Lease, whichever is later. In addition ch cost of living adjustment, such Promotion Charge or Merchants' Association dues may be increased froto time by a majority vote of such committee or board of directors to the extent required by increasesa cost of promotional or advertising services. R-sc- A ARTICLE XXI TENANT'S PROPERTY Section 21.01 Tenant shall be responsible r, and shall pay, prior to delinquency, any and all taxes, assessments, levies, fees and other governmen ,charges of every kind or nature (hereinafter collectively called "taxes") levied or assessed by mun cipal, county, state, federal or other taxing or assessing authority upon, against or with respect to (i) the Premises\1or (ii) all furniture, fixtures, equipment and any personal property of any kind owned by Tenantprevious tenant and occupant, and placed, installed or located in, within, upon or about the Premise) all alterations, additions or improvements of Whatsoever kind or nature, if any, made to the PremiTenant or any previous tenant or occupant, and (v) rentals or other charges payable by Tenant to Lirrespective of whether any of the terms described in clauses (i) through (iv) above are assessed or personal property. and irrespective of whether any of such items are assessed to or against LanTenant. If at any time during the term of this Lease any of such taxes are not levied and assesately and directly to Tenant (for example, if the same are levied or assessed to Landlord, or a ainst the building containing the Premises and/or the land underlying said building), Tenant shao ndlorrd Tenant re thereof as determined by Landlord. Section 21.02 Loss and Damage 25�� Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises - 17 - ,adjacent to or connected with Premises or any part of the building . which the Premises are a part, or ahy other area in Big Pine Key Shopping Plaza, or for any loss or damage resulting to Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes, or (without limiting the foregoing) for any damages or loss of property within the Premises from any cause whatsoever. Section 21.03 Notice by Tenant Tenant shall give immediate notice to Landlord in case of any damage to or destruction of all or any part of, or accidents in, the Premises or of defects therein or in alterations, decorations, additions or improvements, including, without limitation, any fixtures or equipment. ARTICLE XXII HOLDING OVER Section 22.01 Holding Over Any holding over after the expiration of the term hereof with the consent of the Landlord, shall be construed to be a tenancy from month to month at a daily Minimum Rent of seven percent (7%) of the monthly Minimum Rent effective for the final Lease Year or partial Lease Year preceding expiration of the term (subject to further adjustment pursuant to the various provisions of this Lease, including, without limitation, Section 3.04), together with an amount estimated by Landlord for the monthly additional charges payable pursuant to this Lease, and shall otherwise be on the same terms and conditions as herein specified so far as applicable. Any holding over without Landlord's consent shall entitle Landlord to re-enter the Premises as provided in Section 19.01 hereof or to exercise whatever other remedies are available to it under Florida Statutes. Section 22.02 Successors All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and permitted assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment to such assignee has been approved by Landlord. ARTICLE XXIII RULES AND REGULATIONS Section 23.01 Rules and Regulations Tenant agrees to comply with and observe all rules and regulations established by Landlord from time to time. Tenant's failure to keep and observe said rules and regulations shall constitute a breach of the terms of this Lease in the same manner as if the rules and regulations were contained herein as covenants. In the case of any conflict between said rules and regulations and this Lease, this Lease shall be controlling. ARTICLE XXIV QUIET ENJOYMENT Section 24.01 Landlord's Covenant Upon payment by Tenant of the rents herein provided, and upon the observance and performance of all covenants, terms and conditions on Tenant's part to be observed and performed. Tenant shall peaceably and quietly hold and enjoy the Premises for the term hereby demised without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease, and the Ground Lease, and any mortgage and/or deed of trust to which this Lease is subordinate. ARTICLE XXV SECURITY DEPOSIT Section 25.01 Security Deposit The amount set forth in tion 1.01(n) is payable by Tenant to Landlord upon the execution of this Lease, which Landlord is to rat 4n as security for the faithful performance of all covenants, conditions and agreements of this Lease. In event shall Landlord be obligated to apply the same upon rent or other charges in arrears or upon dame es for Tenant's failure to perform the said covenants, conditions, and agreements of this Lease; howeve Landlord may so apply the Security Deposit, at its option. Landlord's right to bring a special proceeds g to recover or otherwise to obtain possession of the Premises before or after Landlord's declaration of th termination of this Lease for nonpayment of rent or for any other reason shall not in any event be affects by reason of the fact that Landlord holds the Security Deposit. Such Security Deposit, if not applied t ward the payment of rent or other charges in arrears or toward the payment of damages suffered by Landl rd by reason of Tenant's default, is to be returned to Tenant without interest, except as provided by law, hen+this Lease is terminated according to its terms, but.1% no event is such Security Deposit to be retur ad until Tenant has vacated the Premises and delivered possession thereof to Landlord. In the event th t Landlord repossesses itself of the Premises, whether by special proceeding or re-entry or otherwise, be suss of Tenant's default, Landlord may apply such Security Deposit upon all damages suffered to the date o! aid repossession and may retain the Security Deposit to apply upon such damages as may be suffered or shall ccrue thereafter by reason of Tenant's default. In the event any bankruptcy, insolvency, reorganization o other creditor -debtor proceedings shall be instituted by or against Tenant, or its successors or *us ig or any guarantor of Tenant hereunder. such security deposit shall be deemed to be applied first to the oyment of any rents and/or other charges due Landlord for all periods prior to the institution or such proc adinVs, and the balance, if any. of such Security naposit may be retained by Landlord in partial liquidatio of Landlord's damages. Landlord shall not be obligated to keep such Security Deposit as a separate fund b may commingle the Security Deposit with its own funds. In the event Landlord applies the Security Deposit whole or in part. Tenant shall, upon demand by Landlord, deposit sufficient funds to maintain the Securi Deposit in the initial amount. Failure of Tenant to deposit such additional amount shall entitle Landlo d to avail itself of the remedies provided in this Lease for nonpayment of rent by Tenant. ���J - is - ARTICLE XXVI MISCELLANEOUS Section 26.01 Waiver; Election of Remedies One or more waivers of any covenant or condition by Landlord shall not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by Landlord to or of any act by Tenant requiring Landlord's consent or approval shall not be deemed to render unnecessary Landlord's consent or approval to or of any subsequent similar act by Tenant. Whenever Tenant shall claim under any provision of this Lease requiring Landlord not to unreasonably withhold its consent or approval thnt Landlord has so unreasonably withheld its consent or approval. Tenant shall have no claim for damages by reason of such alleged withholding, and Tenant's sole remedy therefor shall be declaratory or injunctive relief, but in any event without the recovery of damages. The failure of Landlord to insist upon a strict performance of any term, condition or covenant contained in this Lease shall not be deemed a waiver of any rights or remedies that Landlord may have and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions or covenants herein contained, and any such failure shall not be construed as creating a custom of Landlord's accepting other than strict performance or as modifying in any way the terms, covenants or conditions of this Lease. No breach by Tenant of a covenant or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord. No act or thing done by Landlord or Landlord's agents shall be deemed an acceptance of surrender of the Premises and no agreement to accept such surrender shall be valid unless in writing signed by Landlord. The rights and remedies of Landlord under this Lease or under any specific Section, subsection or clause hereof shall be cumulative and in addition to any and%all other rights and remedies which Landlord has or may have elsewhere under this Lease or at law or equity, whether or not such Section, subsection or clause expressly so states. Nothing contained in this Lease shall be construed to confer .upon any entity other than Landlord or Tenant any rights, benefits or causes of action, except to the extent specifically otherwise provided in this Lease and except to the extent provided for the benefit of any mortgagee, deed -of -trust beneficiary, ground lessor or trustee for the Shopping Center. Section 26.0.2 Entire Agreement All Exhibits, and Rider(s), if any, attached hereto form a part of this Lease and shall be given full force and effect, as fully as if set forth at length herein. This Lease and said Exhibits, and Rider(s), if any, so attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as are herein set forth. Tenant has not relied upon any representation of Landlord or its agents, other than any items contained in this Lease, as an inducement to enter into this Lease. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by each party. Section 26.03 Construction Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties herein shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Whenever herein the singular number is used the same shall include the plural, and the masculine gender shall include the feminine and neuter genders. In the event any language is deleted from this Lease, said language shall be deemed to have never appeared and no other implication shall be drawn therefrom. Section 26.04 Delays In the event that either party hereto shall be delayed in the performance of its initial construction or maintenance and/or repair obligations by reason of strikes, lockouts, labor troubles, inability to procure materials or shall at any time be so delayed by reason of failure of power, restrictive governmental laws or reasons of a similar nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Nothing contained in this Section 26.04 shall excuse Tenant from the continuous operation of its business in the Premises in accordance with the provisions of Sections 7.01 and 7.02 hereof. The provisions of this Section 26.04 shall not operate to excuse Tenant from payment of Minimum Rent, percentage rent or any other payments required by the terms of this Lease. Further, Landlord's reduction of heat, light, air conditioning, or any other services whatsoever to the Shopping Center because of any similar or dissimilar event constituting a cause for excusable delay hereunder shall not relieve Tenant from its obligations under Article VII of this Lease. Section 26.05 Notices Unless specifically stated to the contrary in this Lease, any notice, demand, request or other instrument which may be or is required to be given by Tenant under this Lease or by law shall be sent by United States certified mail, return receipt requested, postage prepaid, and shall be deemed to have been given upon receipt of same by Landlord; or, if required to be given by Landlord under this Lease or by law, such notice, demand, request or other instrument may be sent by United States certified mail, return receipt requested, postage prepaid, by personal delivery or by other comparably reliable means, and shall be deemed to have been given upon the date of other submission to Tenant or two (2) days after the date 6f mailing, whichever of such dates shall be the first to occur; and shall be addressed (a) if to Landlord, at the address set forth in Section 1.01(h) hereof or at such other address as Landlord may designate by written notice, together with copies thereof to such other parties designated by Landlord, and (b) if to Tenant, at the address set forth in Section 1.01(o) hereof or such other address as Tenant shall designate by written notice. Section 26.06 Captions and Section Numbers The captions, section numbers, article numbers, and index appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease, nor in any way affect this Lease. Section 26.07 Broker's Commission Tenant represents and warrants to Landlord that there are no claims for brokerage commissions or finder's fees in connection with this Lease, and Tenant agrees to indemnify Landlord and hold it harmless from all liabilities arising from any such claim, including, without limitation, the cost of attorneys' fees in connection therewith. Such agreement shall survive the termination of this Lease. - 19 - Section 26.08 Recording Tenant shall not record this Lease without the prior written consent of Landlord. Section 26.09 Furnishinq of Financial Statements Upon Landlord's written request, Tenant shall promptly furnish Landlord, from time to time, with financial statements (including, without limitation, operating statements including an annual profit and loss statement for the individual store unit covered by this Lease) reflecting Tenant's current financial condition, and written evidence of ownership of managing and controlling interests in Tenant and in any entities which directly or indirectly control or manage Tenant. Section 26.10 Landlord's Use of Common Areas Landlord reserves the right, from time to time, to utilize portion$ of the common areas for carnival type shows, rides and entertainment, outdoor shows, displays, automobile and other product shows, the leasing of permanent and temporary kiosks, or such other uses which in Landlord's judgment tend to attract the public. Further, Landlord reserves the right to utilize the lighting standards and other areas in the parking lot for advertising purposes. Section 26.11 Transfer of Landlord's Interest In the event of any transfer or transfers of Landlord's interest in the Premises, the transferor shall be automatically relieved of any and all obligations on the part of Landlord accruing from and after 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 may be subordinate, shall be responsible in connection with the Security Deposit unless such mortgagee or holder of such deed of trust shall have actually received the Security Deposit. Section 26.12 Floor Area (a) The term "floor area" as used in this Lease means, with respect to any leasable area in the Shopping Center, the aggregate number of square feet of floor space of all floor levels therein, measured from (i) the outside faces of all perimeter walls thereof other than any party wall separating such premises from other leasable premises, (ii) the center line of any such party wall, (iii) the outside face of any interior wall, and (iv) the building and/or leaseline adjacent to any entrance to such premises. In the event Landlord determines that the square foot area of the Premises is at variance with the square foot area stated in this Lease, Landlord may, at its option, adjust the floor area of the Premises and make proportional adjustments in Minimum Rent, Minimum Gross Sales, Promotion Charge or Merchant Association dues and other charges to Tenant under this Lease. (b) The gross leased and occupied floor area in effect for any Lease Year shall be the average of the gross leased and occupied floor area in effect on the first day of each calendar month in such Lease Year. Section 26.13 Landlord's Mortgagee's Approval of this Lease If Landlord's mortgagee will approve this Lease only upon the basis of modification of the terms and provisions of this Lease. Landlord shall have the right to cancel'this Lease if Tenant refuses to approve in writing any such modifications within thirty (30) days after Landlord's request therefor, which request may not be made later than forty-five (45) days after the delivery of possession of the Premises to Tenant. If such right to cancel is exercised, this Lease shall thereafter be null and void, any money or security deposited hereunder shall be returned to Tenant and neither party shall have any liability to the other by reason of such cancellation. Section 26.14 Liability of Landlord If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed, and if as a consequence of such default Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, title and interest of Landlord in the Shopping Center and out of rents or other income from such property receivable by Landlord, or out of the consideration received by Landlord from the sale or other disposition of all or any part of Landlord's right, title and interest in the Shopping Center, subject, nevertheless, to the rights of Landlord's mortgagee, and neither Landlord nor any of the co-partners comprising the partnership which is the Landlord herein shall be liable for any deficiency. Section 26.15 Accord and Satisfaction Payment by Tenant or receipt by Landlord of a lesser amount than the rent or other charges herein stipulated may be, at Landlord's sole option, deemed to be on account of the earliest due stipulated rent or other charges, or deemed to be on account of rent owing for the current period only, notwithstanding any instructions by or on behalf of Tenant to the contrary, which instructions shall be null and void, and no endorsement or statement on any check or any letter accompanying any check payment as rent or other charges shall be deemed an accord and satisfaction, and Landlord shall accept such check or payment without prejudice to Landlord's right to recover the,balance of such rent or other charges or pursue any 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 for examination purposes only, and does not a4d shall not constitute a reservation of or option for Tenant to lease, or otherwise create any interest of Tenant in the Premises or any other premises situated in the Shopping Center. Execution of this Lease by Tenant shall be irrevocable. The return to Landlord of Tenant -executed copies of this Lease shall not be binding upon Landlord, notwithstanding any preparation or anticipatory reliance or expenditures by Tenant or any time interval, until Landlord has in fact executed and actually delivered a fully -executed copy of this Lease to Tenant. Section 26.17 Governing Law This Lease shall be governed by and construed in accordance with the laws of Florida. Ij any provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each remaining provision of the Lease shall be valid and enforceable to the full extent permitted by the law. - 20 - `IN.WITNESS WHEREOF, Landlort .d Tenant have signed and sealed this Ass as of the day and year first abgve written. In the Presence of: Landlord: Guaranty Fe4eral Savings Be STATE OF Florida ) ss. COUNTY OF Monroe > By: -%,`,�� i�rC�S / l,,'/1f'e' ✓� RICHE S. r.LTRM, V.P. �y Tenant By: Mike Puto, Mayor/Chairman Board of County Cmnissioners LANDLORD On this 3rd day of Februaryl9e 9. before me personally appeared Richard S . Gurne who, being by me duly sworn, did say that he is r c es and that the said instrument was signed on behalf of said Bank by authority o its aof agreement: and the said signatory acknowledged the said instrument to be the free act and of said band. Notary Public ryy My Commission Expires: ' . UND. TENANT . STAf'a OF ) sa, COUNTY OF ) On this day of , 198 , before me appeared and to me personally known, who, being by me duly sworn did may that they are respectively the 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 its 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. Notary Public My Commission Expires: STATE OF Florida ) ) sa. COUNTY OF Monroe ) On this day of . MarCh 198­96 before me appeared Mike PUtO �* MaVQr/rm� _ ` -- known to be the persons that executed the foregoing instrument and acknowle g� ed that they executed the same as their free act and deed. Notary Public My Commission Expires: A1015i/1014i M 81•iy OF COURr ATrE. Danny L. . -g- - 21 -