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HomeMy WebLinkAboutExhibit SUBf7RDSfrivtiCa 1 OY) :1(0 cat be GIo ere FOURTH AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (RETAIL PARCEL) This Fourth Amendment to Amended and Restated Lease Agree ent (Retail Parcel) (this "Amendment") is made and entered into this �0;\'` day of c _ , 2014 ("Effective Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and I3AYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to Baysid.e Center Limited Partnership ("Developer"). • WITNESSETH: WHEREAS, City and Developer are the current landlord and tenant, respectively, under that certain Amended and Restated Lease Agreement dated as of October 15, 1985, as amended by that certain First Amendment to Amended and Restated Lease Agreement dated as of August 19, 1986, as further amended by that certain Second Amendment to Amended and Restated Lease Agreement dated as of November 24, 1987, as further amended by that certain Third Amendment to Amended and Restated Lease Agreement dated as of April 15, 1993 and as further amended by that certain Release and Settlement Agreement dated ,as of December 30, 2008 (collectively and together with any attachments, exhibits or riders thereto, the "Lease") for certain premises located at Bayside Marketplace in Miami, Florida, as more particularly described in the Lease (the "Leased P, rc?perty"). A memorandum of the Lease was recorded in Book 12684, at Page 157, and supplemented. in Book 13492, at Page 3199, both of the Public Records of Miami -Dade County, Florida; WHEREAS, Developer sub -ground leased a part of the Leased Property to SkyRise Miami, LLC ("SkyRise") pursuant to that certain Sub -Ground Lease dated as of March 29, 2013 (as heretofore arnend.ed, collectively, the "Tower Sublease"), A short form of the Tower Sublease will be recorded in the Public Records of Miami -Dade County, Florida; and WHEREAS, City and Developer desire to modify certain provisions of the Lease, and City desires to recognize the Tower Sublease, on the terms and conditions set forth herein, and subject to approval from the Miami City Commission, approval of a referendum and any required regulatory and land development permits for construction of the 1000 foot mixed use commercial and recreational tower contemplated by the Tower Sublease (the "Tower") NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer hereby agree that the foregoing recitals are true and correct, and further agree as follows: 1. Definitions. All capitalized terms used in this Amendment shall have the definitions ascribed to such terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to the Lease (as. defined in the first recital above), as modified by this Amendment. The term. "Lease 1 Term" shall refer to the Original Term (as modified in this Amendment) and any applicable Renewal Terms, 2. Original Term. The Original Term, as currently defined in Section 2.1(b) of the Lease, commenced on December 1, 1985 and is scheduled to terminate on November 30, 2030. The Original Term is hereby amended and extended such that the Original Term now expires on November 30, 2060. All references in the Lease to the Original Tenn shall refer to the Original Term as extended by this Amendment. Within thirty (30) days after the Effective Date, the City Manager and Developer, upon request of City or Developer, shall execute one or more written memoranda, for the Lease or amendments to any existing memoranda for the Lease in such forrrr as will enable them to be recorded in the Public Records of Miami -Dade County, Florida setting forth the beginning and termination dates of the modified Original Term, 3, Renewal Terms. (a) Subject to ,approval of the Ground Lease Referendum (as hereinafter defined) by the City's electorate, Section 2.1(c) of the Lease is hereby amended and restated in its entirety as follows, (c) Renewal Terms. Developer is hereby granted four (4) options to renew this Lease (each, a "Renewal Option") from time to time upon the same terms and conditions, except as otherwise expressly provided in this Lease, for up to four (4) additional consecutive terms (each called a. "Renewal Term"), with the first three (3) additional Renewal Terms being for fifteen (15) years each and the final Renewal Term being for eight (8) years, commencing at the expiration of the Original Terns or the previous Renewal Term, as the case may be. So long as Events of Developer's Default shall not have occurred and be continuing at the thne Developer exercises a Renewal Option, Developer may exercise each Renewal Option by giving the .City express written notice thereof on or before the latter of (i) the date that is two (2) years before the date on which such Renewal Term is to commence or (ii) thirty (30) days following written notice from City advising Developer that Developer has failed to furnish notice of its exorcise of the applicable Renewal Term by the date set forth in the preceding clause (i), which notice shall state in bold capitalized large font letters that such notice constitutes the final notice to Developer of its right to exercise the applicable Renewal Option. Within sixty (60) days after commencement of a Renewal Term, the City Manager and Developer, upon request of either party shall execute one or more written memoranda in such form as will enable them to be recorded among the Public Records of Miami -Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Lease. The total of all Renewal Terms, if all Renewal Options are validly exercised, is fifty three (53) years. 2 (b) Notwithstanding anything in the Lease or in this Amendment to the contrary, Minimum Base Rental (as defined below) for the first Rental Year of each Renewal Term shall be reset at Fair Market Rent, as defined and determined in accordance with the terms and conditions provided in Exhibit "A" attached hereto, and shall not be subject to adjustment by the 'CPI Escalation (as defined below). Minimum Base Rental may be increased after the first Rental Year of any Renewal Term by the CPI Escalation, as provided in Section 4(c) below, In no event shall the Minirnuna Base Rental for the second, third or fourth Renewal Terms increase by more than fifteen percent (15%) over the Minimum Base Rental then applicable. 4. Rental. Section 2.5 of the Lease is hereby deleted in its entirety, From and after the Effective Date, the only scheduled rental payments ("Rental") due to City under the Lease shall be the following: '(a) Amount of Rental. Developer covenants that it shall pay to .City as Rental for the Leased Property Minimum Base Rental, Percentage Rent (as defined below) and, to the extent applicable, Tower Rent (as defined below), Developer shall pay the monthly Rental to the City of Miami, Department of Finance at the address noted below: City of Miami Department of Finance Attention: Treasury Management/Receipts 444 SW 2"'a Avenue, 6th Floor Miami, Florida 33130-1910 (b) Minimum Base Rental, Minimum Base Rental shall be payable by Developer on the Effective Date, and thereafter on the first (et) day of each calendar month for the balance of the Original Term' in equal monthly installments. Minimum Base Rental shall be $1,540,000 per annurn (" lv1inirnurn Base Rental"), as it may be increased by the CPI Escalation, as provided in Section- 4(0) below. Minimum Base Rental for any partial calendar month during the Lease Terin shall be prorated based upon the number of days in the partial calendar month within the Lease Term against the total number of days in the applicable calendar month. All references in the Lease to "Annual Basic Rental" shall hereinafter refer solely to Minimum Base Rental, as set forth herein. (c) Consumer Price Index (CPI) Escalation. (i) Developer agrees. that Minimum Base Rental and Tower Fixed Rent, as applicable, shall be increased every Rental Year during the Lease Tenn (each, a "CPI Escalation Year") following the Effective Date by an amount equal to the percentage increase during the year immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982- 84=100, The CPI adjustment to Minimum Base Rental or Tower Fixed Rent, as applicable, shall be hereinafter referred to as the "CPI Escalation." The amount of the CPI Escalation to Minimum 3 Base Rental and Tower Fixed Rent shall be capped at three percent (3%) each time the CPI Escalation is made (the "Maxiinum CPI Percentage"). The CPI adjustment set forth herein shall not result in a reduction of Minimum Base Rental or Tower Fixed Rent, Notwithstanding anything to the contrary set forth herein, the first CPI Escalation Year with respect to Minimum Base Rental shall be the Rental Year commencing January 1, 2016 and the first CPI Escalation Year with respect to Tower Fixed Rent shall commence on January 14 of the second (2nd) full Lease Year (as such term is. defined in the Tower Sublease) of the Tower Sublease. (ii) The CPI Escalation of Minimum Base Rental or Tower Fixed Rent, as applicable, for the CPI Escalation Year shall be equal to Miniru.m Base Rental or Tower Fixed Rent, as applicable, in effect for the Rental Year in.u.ediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below) not to exceed the Maximum CPI Percentage. The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month), and (ii) whose denominator is the same monthly Index published immediately prior to the Rental •Year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, City shall select a commercially reasonable comparable index. (iii) City shall compute the CPI Escalations and send a notice, with calculations, to Developer setting forth the adjusted Minimum Base Rental or Tower Fixed Rent within sixty (60) days of the commencement of each CPI Escalation Year or as soon as such Index is available. In the event Minimum Base Rental or Tower Fixed Rent increases, Developer shall pay to City within thirty (30) days of receiving such notice, the additional Minimum Base Rental or Tower Fixed Rent owed for the months that have elapsed in the current Rental Year. (d) Percentage Rent. Percentage Rent shall be due and payable to City pursuant to the terms and conditions set forth on Exhibit "B" attached hereto. As used herein, the term "Percentage Rent" means those amounts described in Exhibit "B" attached hereto, (o) Independent Operating Entity and Bank ,Account. Developer will establish (if not currently established) an operating entity that is unique and distinct to the operations of Developer at the Leased Property, as well as one or MOM' bank accounts through which deposits of Gross Receipts (as defined in Exhibit "13" attached hereto) generated from such operations will be made. These particular deposits of Gross Receipts will not be commingled. with those from any other operations of Developer or any other affiliated Organizations and shall be reconcilable with federal income tax returns and state sales and use tax returns of Developer. City acknowledges and agrees that Bayside Marketplace, LLC is an independent operating entity for purposes of this provision. (±) Tower Rent. Developer shall pay the following amounts to City (collectively, "Tower Rent") when due and payable in the manner set forth below: •(i) Commencing on the Tower Fixed Rent Commencement Date (as hereinafter defined), $1,059,082 per annum ("Tower Fixed R.ent"), as it may be increased pursuant to 4 Section 4(c) above, shall be payable in equal monthly installments on the first (1) day of the ;first (1) full calendar month following the Tower Fixed Rent Commencement Date and thereafter, on the first (1) day of each calendar month during the balance of the term of the Tower Sublease; Tower Fixed Rent for any partial calendar month during the Lease Terna shall be. prorated based on the number of days in a particular calendar month within the Lease Term against the total nuanber of days in the applicable calendar month, On the tenth (10th) anniversary of the Opening Date (as hereinafter defined) and every ten (10) years thereafter during the term of the Tower Sublease, the Tower Rent shall be determined by an appraisal in accordance with Exhibit "A" attached hereto (the "Tower Fixed Rent Adjustments"). In no event shall Tower Fixed Rent increase by an amount greater than ten percent (10%) over Tower Fixed Rent for the prior year. The "Tower Fixed Rent Commencement Date" shall be the earlier to occur of (A) four (4) years following the Effective Date (which may be extended up to one (1) year if construction is delayed as a result of an unavoidable delay as described in Section 7.4 of the Lease) or (B) the date that the Tower opens to the general public for business (the "Opening Date"). Notwithstanding the foregoing or anything to the contrary set forth in this Amendment, if SkyRise fails to complete construction of the Tower on or before the Tower Fixed Rent Commencement Date, Developer shall have the right, but not the obligation to (a) terminate the Tower Sublease, complete construction of the Tower then find a replacement operator (or operate the Tower itself) and, in such event, Developer shalt not be obligated to commence payment of Tower Fixed Rent until the earlier to ocour of six (6) years following the Effective Date (which may be extended for up to one (1) year if construction is delayed as. a result of an unavoidable delay as described in Section 7.4 of the Lease) or the Opening Date; or (b) terminate the Tower Sublease and demolish or cause SkyRise to demolish that portion of the Tower improvements then constructed at the Leased Property, in which case, the obligations of Developer to City hereunder pertaining to SkyRise, the Tower and the Tower Sublease, including, without limitation, Developer's obligation to pay Tower Fixed Rent .and Tower Percentage Rent, shall be null and void and of no further force and effect as of the date of the termination of the Tower Sublease; provided, however, in such event, Developer agrees to use commercially reasonable efforts to develop a proposal for a new development project on the pier in conjunction with City. Once such proposal is mutually agreed to by Developer and the City Manager, the new development will be documented in an amendment to the Lease, presented for City Commission approval and, if required by applicable law, a referendum. Developer agrees to notify the City Manager within sixty (60) days following termination of the Tower Sublease whether Developer elects, in its sole and absolute discretion, to proceed with clause (a) or clause (b) of this paragraph. (ii) Commencing on the Opening Date, "Tower Percentage Rent", as defined in Exhibit "B" attached hereto, shall be paid pursuant to the terms and conditions set forth in Exhibit "B". Notwithstanding the foregoing or anything to the contrary set forth in this Amendment, from and after the date the Opening Date, Developer's obligation to pay Tower Percentage Rent to City shall be null and void and of no further force and effect upon the expiration or any sootier termination of the Tower .Sublease; provided, however 5 that if Developer enters into a Sublease with a new Tower operator or Developer elects to operate the Tower itself, then Developer's obligation to pay Tower Percentage Rent, as provided herein, shall renew as of the date the new Tower operator (or Developer, as the case may be) resumes operation of the Tower and the Tower is open to the generalpublic for business, (g) Submerged Land Fees. In addition to the Rental described above, commencing upon the effective date of an agreement with the Florida Department of Environmental Protection ("DEP") acting on behalf of the Board of Trustees of the Intel nal Improvement Trust Fund (the ",state"), for use of any submerged lands at the Leased Property (the "Submerged Lands"), Developer shall be obligated to pay all fees as determined by DEP for the use of the Submerged Lands and pay for all expenses incurred in obtaining the State's approval and waiver ("Submerged Land Fees"). The annual Submerged Land Fee shall be paid to the City at the. same location as Minimum base Rental and the City shall remit payment to DEP. Developer shall remit the annual Submerged Land Fees to the City within thirty (30) business days of the Developer being billed by the City for the same. Developer shall further be obligated to submit to City for remittance to DEP any and all documents required by DEP which may include; but is not limited to, disclosure of any income from wet slips for the Submerged Lands. City shall promptly notify Developer of any intention by DEP to impose Submerged Land Fees with respect to the use of any Submerged Lands. at the Leased Property (the "Submerged Land Notice"); It being understood and agreed that (i) Developer shall have the right, in its sole and absolute discretion to terminate this Amendment and the corresponding Fourth Amendment to Bayside Parking Garage Lease Agreement of even date herewith (the "Garage Parcel Amendment") upon written notice to City given within one hundred eighty (180) days following Developer's receipt of the Submerged Land Notice or any similar notice from DEP or the State and (ii) if Developer has not received a Submerged Land Notice from City or any similar notice from DEP or the State within one hundred eighty (180) days following the formal certification of the Ground Lease Referendum, then this Section 4(g) shall be deemed null and void and of no further force and effect with respect to the Lease, Notwithstanding the foregoing or anything to the' contrary set forth in the Lease or this Amendment, if Developer procures a waiver of Submerged Lancl pees or confirmation from the State or DEP that no Submerged Land Fees will be imposed during the Lease Terin, as it may be extended, then upon delivery of such waiver or confirmation to City, this. Section 4(g) shall be deemed null and void and of no further force and effect with respect to this Lease, Developer agrees to. use commercially reasonable efforts to procure such a waiver or confirmation from the State or DEP prior to the date of the Ground Lease Referendum. City acknowledges and agrees that notwithstanding the foregoing or anything to the contrary set forth in the Lease, City shall remain solely responsible for complying with the original terms of that certain Agreement and Release of Deed Restrictions and Reverter dated as of October 21, 1985 by and between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and City which, among other things, obligates City to deposit a portion of the Rental received by City into the Biscayne Bay/Miami River Land Acquisition Trust Fund. (h) Late Charge. Notwithstanding anything to the contrary set forth in the Lease, any installment of Minimum Base Rental, Percentage Rent, Tower Rent or any rent component or expenses due to City pursuant to the Lease, as amended hereby, which is not paid within ten (10) 6 days following written notice of Developer's failure to pay when due, shall accrue interest at an annual rate equal to two percent (2%) over the prime rate charged by Citibank N.A, from time -to - time, but in no event in excess of the maximum interest rate permitted by law (the "Default Rate"), from the date such payment was due until the date such payment is paid to the City and an administrative overhead charge of 0.5% of the installment of Rental that has not been timely paid. It is agreed that the foregoing administrative charge is not a penalty but is a regulatory fee. From and after the Effective Date, all references in the Lease to the "Default Rate" shall mean the Default Rate as defined herein. If Developer fails to cure a late payment within ten (10) days following written notice of such failure from City, as provided herein, more than once in any Rental Year, then commencing with the second late payment that is not timely cured by Developer, the Default Rate shall be adjusted for the balance of such Rental Year to be twelve percent (12%) per annum, but in no event in excess of the maximum interest rate permitted by law, 5. Alterations and Renovations, (a) Alterations and. Renovations, Section 3.14 of the Lease is hereby amended and restated in its entirety as follows: • Section 3,14 Alterations and. Renovations. After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable; provided, however, that no renovation or alteration which materially affects the exterior appearance of the Improvements or the overall character and appearance of the public circulation areas shall be made until such time as the City Manager shall have approved, in writing, definitive construction plans and specifications therefor, in compliance with all applicable codes, rules and regulations, which approval shall not be unreasonably withheld or delayed. Developer must secure and pay for any and all permits and approvals required to perform any of the contemplated alterations or renovations. (b) Renovation Work. Developer, at its sole cost and expense, shall complete the construction and installation of, certain Capital Improvements to the Retail Parcel and the Garage Parcel that are consistent with the Capital Improvements depicted or described on Exhibit "C" attached hereto and made a part hereof (the "Renovation Work"). The Renovation 'Work is hereby approved by City and shall not require any further approvals or consents from City, except for the City Manager's approval of the plans and specifications for the Renovation Work as set forth in Exhibit "C" and any required building and land development permits and approvals which must be applied for by Developer. Developer covenants that Developer shall expend no less than Twenty - Seven Million Dollars ($27,000,000) (the "Minimum Level of Investment") but not more than Thirty Five Million Dollars ($35;000,000) in connection with. the Renovation Work, which shall include, without limitation, all third party soft and hard oosts and expenses incurred by Developer to complete all Renovation Work. Upon completion of the Renovation Work, Developer shall furnish to City copies of invoices and receipts in connection 'therewith as shall be required to reasonably demonstrate Developer's achievement of the Minimum Level of Investment. 7 (c). Bonding. Developer agrees to post (or cause its contractor(s) to post) payment and performance bond(s) in favor of City, in substantially the form prescribed by § 255.05, Fla. Stat. for the full amount (i,e., 100%) of the cost of all alterations, reconstruction, additions, and other renovations performed by Developer; it being understood and agreed that Developer shall have no obligation to post payment and performance bonds in connection with the construction, alteration, reconstruction, addition and other renovations to be performed by SkyRise with respect to the Tower pursuant to the terms of the Tower, Sublease. The bond shall be issued by a Florida licensed surety company rated A: V or better per A.M. Best's Key Rating Guide and shall be subject to approval as to form by City's Risk Manager and City Attorney, Both City and Miami Dade County shall be listed as obligees. (d) aperating Standard. hi Section 4.2 of the Lease, the reference to "Harborplace in Baltimore" is hereby deleted and replaced with "F'aneuil Hall in Boston". (e) Tower Building Height/Maximum Allowable Square Footage. The Tower building height and maximum allowable square footage shall be as permitted in the applicable land development regulations, as per approved development warrant file number 13-0077 dated Tanuary 13, 2014 and attached hereto as Exhibit "D" (the "Tower Warrant") which modifies approved Class II Special Permit 10-0143. (f) Retail Parcel Maximum. Allowable Square Footage for Retail Parcel and Garage Parcel. Developer may only build up to the maximum allowable Leaseable Area of 267,000 square feet of enclosed retail space, including restaurants, at the Retail Parcel and Garage Parcel, collectively. The foregoing maximum. allowable Leasable Area does not include the allowable square footage for the Tower, as set forth in the `lower Warrant, which shall be in addition to the maximum allowable Leaseable Area for the Retail Parcel and Garage Parcel, Developer agrees to expand the Parking Garage as part of the Renovation Work to add 448 additional parking spacesat the Parking Garage, tin addition, Developer shall have the right to further expand the Parking Garage, in its sole and absolute discretion, to provide up to an additional 296 parking spaces at the Parking Garage, 6. Transfers, (a) Section 5.1(a) and (b), of the Lease are hereby amended and restated in their entirety as follows: "Transfer" means: (i) any partial or total sale, assignment,, gifting or conveyance (other than in connection with any financing or refinancing contemplated by the Lease) of Developer's leasehold estate in the Lease or any contract or agreement to do any of the same; (ii) any transfer of membership interests in Developer resulting in the direct or indirect beneficial ownership of General Growth 8 Properties, Inc. being less than fifty percent (50%) of' Developer (a "Change of Control"); (iii) any merger or consolidation of Developer with any other person or entity that is not an affiliate of Developer, or the sale of all or substantially all of the assets of Developer to any person or entity that is not an affiliate of Developer. For purposes hereof, "affiliate" shall mean any person or entity controlling, controlled by or under common control with Developer (with the term "control" and correlative terms meaning the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of the business and affairs of Developer by reason of the ownership of voting interests, by contract or otherwise). "Owner" means: any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the membership or other equity interests in Developer, but shall not include any equity holder of an Owner whose shares are publicly traded. (b) In Section 5,2(c) of the Lease, the reference to "stock of the General Partner of Developer" shall be deleted and replaced with "the membership interests of Developer" and the reference to "stock" shall be deleted and replaced with 'membership interests". (c) In Section 5.3 of the Lease, (i) all references to "limited partner" or "partner" shall be deleted and replaced with "member" and (ii) the word "limited liability company" shall be added to Section 5.3(e) following the word "joint venture"; (iii) the reference to "subparagraphs (a) through (j)" in the first paragraph of Section 5.3 shall be deleted and replaced with "subparagraphs (a) through (1)"; and (iv) the following permitted Transfers shall be added to the end of Section 5.3: (k) Any Transfer resulting from the pledge of any direct or indirect ownership interests in Developer as security for a loan made by an Institutional Investor to Developer or any direct or indirect beneficial owner of Developer. (1) Any Transfer of direct or indirect ownership. interests in Developer that does not result in a Change of Control. Section 5.4(b) of the Lease is hereby deleted in its entirety and shall be deemed and of no further force and effect from and after the Effective Date, (d) inapplicable (n) inapplicable Section 5.8 of the Lease is hereby deleted in its entirety and shall be deemed and of no further force and effect from and after the Effective Date. 9 (f) In the event of a Transfer Fee Transaction (as hereinafter defined), Developer shall pay to City a fee (the "Transfer Pea"), in connection with such Transfer Fee Transaction as follows: during the initial five (5) years following the Effective Date, the Transfer Feeshall be 2% of the Gross Sale .Amount (as hereinafter defined); between the fifth (5th) anniversary and the tenth (10th) anniversary of the Effective Date, the Transfer Fee shall be 1.5% of the Gross Sale Amount; between the tenth (10th) anniversary .of the Effective Date and the twentieth (20th) 'anniversary of the Effective Date, the Transfer Fee shall be 1% of the Gross Sale Amount; and after the twentieth (20th) anniversary of the Effective Date, the Transfer Fee shall be 0.75% of the Gross Sale Amount of such transaction. Developer shall pay to City the Transfer Fee at the time the Transfer Fee Transaction closes and the Gross Sale Amount has been received by Developer. A "Transfer Fee Transaction" shall mean any. Transfer other than a permitted Transfer pursuant to Subsections 5.3(a) through (c) and (e) through (1) of the Lease, as amended herein, "Gross Sale Amount" shall mean the gross sale proceeds actually received by Developer upon the consummation of any Transfer Fee Transaction, Developer shall furnish to City a copy of a financial statement, a closing statement, a Transfer document, or other similar document in connection therewith as shall reasonably demonstrate the Gross Sale Amount. 7, Financing, (a) The second sentence of Section 6,1(a) pertaining to a cap on any financing or refinancing equal to the amount of the Development Costs is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. Developer agrees that the amount of any financing or refinancing procured by Developer from and after the Effective Date to be secured by a Leasehold Mortgage shall in no event exceed eighty percent (80%) of the fair market value of Developer's leasehold interest in the Leased Property and fee interest in the Improvements to be encumbered by the lien of a. Leasehold Mortgage, as determined by an appraisal conducted by Developer's Leasehold Mortgagee. (b) If Developer engages in any new financing or refinancing with respect to the Retail Parcel or theGarage Parcel (or both), then City shall have the one-time right to participate in such financing or refinancing in an amount equal to three percent (3%) of the first $125,000,000 of Loan Proceeds (as hereinafter defined), for a maximum total participation interest of $3,750,000 (the "Participation Interest"), 13y way of clarification, if, for example, Developer engages in a financing or refinancing which results. in Loan Proceeds of $1.00,000,000 with respect to Developer's interest in the Retail Parcel and Loan Proceeds of $25,000,000 with respect to Developer's Interest in the Garage Parcel, the Loan Proceeds threshold of $125,000,000 will be achieved based upon the sum of the Loan Proceeds for both the Retail Parcel and the Garage Parcel financings. However, if Developer's first financing transaction results in Loan Proceeds that are less than $125,000,000, then the difference between $125,000,000 and the amount of the Loan Proceeds from the first financing shall be considered the "Loan Proceeds Differential," (e.g., if Developer's first financing transaction results in Loan Proceeds equal to $110,000,000, then the Loan Proceeds Differential shall be equal to $15,000,000). In the event of a Loan Proceeds Differential, City shall be entitled to participate in the subsequent refinancing by Developer in an amount equal to three percent (3%) of the Loan Proceeds Differential. The Participation Interest (or the applicable portion thereof if the Participation Interest is riot otherwise paid from one 10 financing transaction) shall be paid to City upon the consummation of the applicable financing or refinancing transaction(s). City acknowledges and agrees that in no event shall City be entitled to participate in any subsequent financing or refinancing once the Participation Interest has been paid in fill and that the provisions of this Section 7(b) shall be deemed null and void and of no further force and effect upon such payment in full. If requested by Developer, City agrees to certify in writing for the benefit of Developer, any prospective Lender or any prospective purchaser of all or any portion of Developer's interest in the Retail Parcel and Garage Parcel, that the Participation Interest has been paid in full. For purposes of this Section 7(b), "Loan Proceeds" shall mean the net proceeds available to Developer from any financing or refinancing after deduction of (i) all third party costs and expenses incurred by Developer in connection with the financing or refinancing transaction, including, without limitation, all fees, costs and expenses imposed by Developer's Lender and any rating agencies, as well as title and survey costs, escrow fees, appraisal costs, consultant costs and attorneys' fees and costs and (il) all amounts required to repay then -existing debt. being refinanced or to repurchase Developer's estate in the Retail Parcel or Garage Parcel, as applicable, if previously conveyed in a Sale -Leaseback Transaction. (c) City further acknowledges and agrees that in addition to the rights set forth in Section6,1(a) of the Lease, as amended hereby, Developer shall have the right to. procure financing with respect to the Leased Property, the Improvements or Developer's leasehold interest that is secured by 'collateral other than a Leasehold Mortgage encumbering Developer's leasehold interest in the Leased Property, including, without limitation, a pledge of direct or indirect ownership interests in Developer so long as the such financing is provided by an Institutional Investor. (d) The definition of "Institutional investor" in Section 6.1(b) of the Lease is hereby deleted in its entirety and replaced with the. following: "Institutional Investor" shall mean: (i) any real estate investment trust, bank, savings and loan association, savings bank, trust company, insurance company, investment bank, commercial credit corporation, pension trust, pension plan, pension fund or pension advisory firm, retirement trust, retirement plan, retirement fund or retirement advisory firrn, welfare trust, welfare plan, welfare fund or welfare advisory firm, mutual fund, government entity or plan, investment company, money management :firm or "qualified institutional buyer" within the meaning of Rule 144,A under the Securities Act of 1933, as amended, or an institutional "accredited investor" within the meaning of Regulation D under the Securities Act of 1933,. as amended; (ii). any investment fund, limited liability company, limited partnership or general partnership where an entity that is otherwise an "Institutional Investor" under clause (i) of this definition acts as the general partner, managing member or fund manager and at least fifty percent (50%) of the equity interests in such investment 11 vehicle are owned, directly or indirectly, by one or more entities that are otherwise Institutional Investors under clause (I); (iii) any entity (A) with a long-term unsecured debt rating from any of Standard & Poor's, Moody's, or Fitch (or the successor organization of any of them) of at least investment grade or (B) who owns or operates at least three (3) shopping centers of similar size and quality to Bayside Marketplace, Miami, Florida, (iv). any Qualified Trustee (as defined below) in connection with (A) a securitization of, (B) the creation of collateralized debt obligations secured by, or (C) a financing through an "owner trust". "Qualified Trustee" means (x) any corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, subject to supervision or examination by federal or state. authority, (y) an institution insured by the Federal Deposit Insurance Corporation or (z) an institution whose Long-term senior unsecured debt is rated at least investment grade by any of Standard & Poor's, Moody's, or Fitch (or the successor organization of any ofthem); or (vi) any entity controlled by any of the entities described in clauses (i), (ii), (iii) or (iv) above. (e) The definition of "Lender" in Section 6.1(b) of the Lease shall be separated from the definition of "Leasehold Mortgagee" and amended to mean any Leasehold Mortgagee or other Institutional Iiwestor that provides financing to Developer or its members. (f) Section 6.1(c) (xii) of the Lease is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. 8. Payment to City. Developer and City acknowledge that this Amendment is conditioned upon approval from the City's electorate either at an August 26, 2014 or November 4, 2014 referendum (the "Ground Lease Referendum"), Subject to the terms of this Section 8, Developer agrees to deposit into escrow with Developer's attorney the Surly of Ten Million Dollars (S10,000,000) .("Developer's Payment") by wire transfer of iintnediately available federal funds, not less than thirty (3'0) days prior to the date of the Ground Lease Referendum, pursuant to the terms of an escrow agreement to be mutually agreed between Developer and City (through the City Manager and City Attorney) and otherwise consistent with the terms of this Section 8 (the "Escrow Agreement"), The Escrow Agreement shall provide that if the Ground Lease Referendum is approved, Developer's attorney shall be ,authorized to release the Developer's Payment to City upon the later to occur of (a) Developer's receipt of an original counterpart of this Amendment duly signed by City and (b) the 12 expiration of the 30-day period to appeal the Ground Lease Referendum (the "Upeal Period") so long as no appeal has been filed. Provided the Ground Lease Referendum is approved by the City's electorate, Developer and City agree to sign. this Amendment and exchange original signed counterparts of same within ten (1.0) days following formal certification of the Ground Lease Referendum. If an appeal is filed prior to the expiration of the Appeal Period, then Developer's attorney shall have no obligation to release Developer's Payment to City, and shall hold Developer's Payment in escrow, until such time as a court of competent jurisdiction renders a final, binding .and unappealable ruling that this Amendment is valid, binding and enforeea.ble. Developer shall have the right, in its sole discretion, to cause Developer's attorney to invest Developer's Payment and any interest earned on such investment shall be solely for the benefit of Developer. If, fallowing City's receipt of Developer's Payment, any legal challenge results in all or any substantive portion of this Amendment being declared null and void by a court of competent jurisdiction, then unless Developer notifies City that it desires to terminate this Amendment within thirty (30) days following such ruling (in which case, Developer shall also have. the right to terminate the Garage Parcel Amendment), the unchallenged, valid portions of this Amendment shall remain in full force and effect without any further action by the parties hereto. If Developer timely elects to terminate this Anmendrnent and the Garage Parcel Amendment, as provided in the preceding sentence, then Developer's Payment shall be returned to Developer within thirty (30) days following City's receipt of Developer's termination notice and the Lease shall remain in full force and effect as if this Amendment never existed., If the Ground Lease Referendum is not approved by the City's electorate, then Developer's attorney shall be authorized to immediately release Developer's payment, together with any interest earned thereon, to Developer. City acknowledges and agrees that Developer's Payment is one single payment that applies to both this Amendment and the Garage Parcel Amendment, Easements. Subsection 2.3(b) (ii) of the Lease is hereby amended to delete the words "service and emergency vehicles" and replace sarne with "all vehicles including, without limitation, service and emergency vehicles". 10. Tower' Sublease Recognition. City and Developer acknowledge that SkyRise's ability to construct the Tower is conditioned upon approval from the City's electorate either at an August 26, 2014 or November 4, 2014 referendum (the "Tower Referendum"). City agrees that following the passage of the Tower Referendum, City shall deliver to SkyRise a duly signed and notarized original counterpart of the Ground Lease Recognition and Non -Disturbance Agreement attached hereto as Exhibit "E", Any deviations from Exhibit "E", or subsequent modifications thereto, and any subsequent modifications to the Tower Sublease, will require only the written approval of the City Manager, 11. Indemnity. Section 8.2 of the Lease is hereby deleted in its entirety and replaced with the following: 13 Section 8.2 Indemnity and Hold Harmless, Developer shall indeinnify, defend (at Developer's sole cost and expense) and save harmless City, its officials, servants, employees and agents, from and against any and all claims, actions, damages, liability and expenses in connection with the loss of life, personal injury or damage to or destruction of property arising from or out of any occurrence in, upon or at the Leased Property, or the occupancy or use by Developer of the Leased Property, or any part thereof, occasioned by the negligence or willful misconduct of Developer, its agents, contractors, employees, servants, customers, invitees, Subtenants, licensees or concessionaires, except to the extent any of the foregoing claims, actions, damages, liability or expenses arise in whole or in part out of the negligence or willful misconduct of City, its officials, ernployees, agents, servants, ernployees, contractors, licensees or concessionaires; provided that with respect to any alleged negligence or willful misconduct by City, if pursuant to litigation, arbitration or other judicial or administrative process, City is found not responsible for such loss, then Developer shall pay City's reasonable attorneys' fees and. costs. Developer shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by City in enforcing the covenants and agreements of this Section 8.2. 12, Insurance. Article Ia of the Lease is hereby modified to amend the preamble of Section 9.1, replace Sections 9.1(a) through (d) in their entirety and add Section 9.12, as provided below. Section 9.1 Insurance Requirements. Beginning on the Effective Date and. during Lease Term, Developer, at its sole cost and expense shall maintain or cause to be maintained the following insurance coverage: (a) Commercial Property Insurance. Insurance on the Improvements and leasehold interests against all risks of direct physical loss or damage, including coverage for windstorin, hail, earthquake, flood, and proving for coverage for debris removal, sprinkler leakage, boiler and machinery, and coverage for glass breakage, as a result of damage by an insured peril, Coverage shall be written on all risk form, or special causes of loss including theft. The insurance shall be written on a replacement cost valuation basis. If the policy or policies of insurance contain a co-insurance requirement, the policy or policies shall contain or stipulate agreed valued endorsement. During any eonstruction period, property insurance may be provided on a Completed Value Builder's Risk foram. City and Developer shall be listed as named insureds on such Builder's Risk Policy. Following any substantial alterations to the Improvements by Developer, Developer agrees to provide to City, upon City's request therefor, evidence that Developer is carrying commercial property insurance as required pursuant to this Section 9.1(a), The term "Improvements", as used in this Article DC, shall be deemed to include all personal property furnished, or installed on the Leased Property 14 and owned by Developer, and the insurance herein provided shall cover the same; provided, however that notwithstanding the foregoing, the term "Improvements" as used in this Article 1X shall not include the Tower contemplated by the Tower Sublease or any personal property furnished or installed by SkyRise or any of Sl yRise's subtenants, licensees or concessionaires in connection therewith. In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Improvements as required by this Agreement, Developer must nevertheless rebuild and restore such Improvements pursuant to the terms hereof and must pay the entire cost of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Time Element/Business Interruption or Business Income. Developer shall insure against loss of business income, including rental value, leasehold interests, and extra expense coverage, arising out of the direct physical darnage resulting in suspension of business operations. Period of restoration must be endorsed to reduce the waiting period to 24 hours, with a one (1) year extended period of indemnity, including Ordinance or Law Increased Period of Restoration, and Utility Services Interruption Time Element coverage, if commercially available. City, as lessor under this Lease, shall be covered to the extent earned, in an amount equal to the total of Annual Basic Rental payable during said period of business interruption. • (c) Automobile Liability Insurance. Automobile liability insurance covering all owned autos, including non -owned and hired auto exposures used in connection with any 'work arising out of this Agreornent, Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of One Million Dollars ($1,000,000) per occurrence or accident. The excess layer of coverage or umbrella liability should be excess follow form over this coverage. City must appear listed as an additional insured on the primary and excess layer of coverage. (d) Commercial General Liability Insurance. Commercial General Liability, affording coverage against any all claims for bodily injury, including death, and property damage occurring on or about the Leased. Property, the Improvements, or any elevatdr, escalator or hoist thereon. Such insurance shall have limits of at least Fifteen 'Million. Dollars ($15,000,000) per occurrence, Thirty Million Dollars ($30,000,000) policy aggregate. Primary and excess layers, such as an umbrella excess follow form policy may be used in connection with the structure of limits on this coverage. The policy or certificate must afford coverage for contingent and contractual exposures, personal and advertising injury, premises and operations liability, products and completed operations, liquor liability with full liability, limits as required 15 herein. The certificate or policy must further afford coverage for damages to rented premises, and must reflect City of Miami as an additional insured on both the primary limits and excess umbrella liability policies. It is City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. Therefore, the certificates or policies of insurance must be properly endorsed to reflect primary and non- contributory language. The City Manager reserves the right to review the adequacy of the insurance coverage provided in Section 9.1 of the Lease once every ten (10) years during the balance of the Lease Term and may require that Tenant adjust Tenant's insurance coverage to the extent the City Manager deems any of the coverage required in the Lease to be inadequate, in the City Manager's reasonable discretion, based upon then -current market requirements for comparable commercial properties in the Miami metropolitan area. Section 9.12 Subtenant Requirements. For Subleases entered into from and after the Effective Date, Developer shall contractually require all of its Subtenants to: indemnify City, its officials, servants employees and agents and provide certificates of liability insurance naming "City of Miami" as an additional insured with mininnun limits as set forth on Exhibit "F-1" attached hereto with respect to Subtenants other than SkyRise and with minimum. limits as set forth on Exhibit "F-2" attached hereto with respect to SkyRise. The Exhibit "F-2" requirements shall be applicable only during the initial construction of the Tower and, once such initial construction is completed, City acknowledges and agrees that the insurance requirements set forth in Section 9.01 of the Tower Sublease are acceptable to City. Developer shall cause SkyRise to provide evidence of such insurance to City as and when required pursuant to the terms of the Tower Sublease. 12. Arbitration. Notwithstanding anything to the contrary set forth in the Lease, including Section 10.5 thereof, City and Developer hereby agree that any dispute, disagreement or controversy arising under the Lease, or with respect to the interpretation or enforcement of the Lease may be .settled by arbitration if and to the extent City and Developer are not able to resolve any such dispute, disagreement or controversy within thirty (30) days following notice from one party to the other party of the nature of any such dispute, disagreement or controversy. lf, after such thirty (30) day period, City and Developer are unable to resolve such dispute, disagreement or controversy, either party may request to 'arbitrate the matter by providing written notice to the other party setting forth the nature of the request to arbitrate. The terms and conditions of Section 10.5 of the Lease shall then ,govern the arbitration procedure. 16 13. Foundation Contribution. Notwithstanding anything to the contrary set forth in Section 5.3 of the Minority Participation Agreement dated as of January 1.4, 1985 (as amended, collectively, the "MPA"), from and after the Effective Date, Developer shall pay a Foundation Contribution in the amount of • $350,000 (the "Foundation Contribution") in quarterly installments on the last day of March, June, September and December of each calendar year during the Lease Term in lieu of the Foundation Contribution set forth in Section 5.3 of the M?A. The Foundation Contribution for any partial Rental Year during the Lease Term after the Effective Date shall be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. The Foundation Contribution shall increase each Rental Year by two percent (2%) over the Foundation Contribution for the immediately preceding Rental Year commencing with the first CPI Adjustment Year for Minimum Base Rental as provided above. The Foundation Contribution for periods prior to the Effective Date shall continue to be paid as provided in Section 5,3' of the MPA; it being understood and agreed that the Foundation Contribution for the period between January 1, 2014 and the Effective Date shall be based solely on Net Income Available for Distribution for the Retail Parcel for such period. City and Developer agree to sign and exchange original 'counterparts of the Second Amendment to Minority Participation Agreement in the forma attached hereto as Exhibit "G" within ten (10) days following formal certification of the Ground Lease Referendum. 14. Modifications or Amendments to Certain Definitions, (a) The definition of "Auditor" as set forth in Section 1.2 of the Lease is hereby amended and restated as follows: "Auditor" means Deloitte LLP or such other nationally recognized and reputable firm of certified public accountants authorized to do business in the State of Florida, as may be used from time to time by Developer for purposes of certifying the annual reports of its financial condition required by law. (b) All references in the Lease to the term "Cumulative Credit Balance Account", including, without limitation, the definition thereof in. Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date; it being understood and agreed that the Cumulative Credit Balance Account shall cease to exist as of the Effective Date and the waiver thereof by Developer is part of the material consideration for City's entry into this Amendment. Notwithstanding the foregoing, the Cumulative Credit Balance Account shall continue in 11111 force and effect with respect to any and all payments of Annual Basic Rental due to City under the Lease for periods prior to the Effective Date. (c) All references. in the Lease to "Debt Service Payments", including, without limitation, the definition thereof in Section 1.2, are hereby •deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date, 17 (d) All references in the Lease to "Developer Equity Investment", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. (e) All references in the Lease to "Net. Income Available for Distribution", including, without limitation, the definition thereof in Section 1.,2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from an after the Effective Date. (f). All references. in the Lease to "Operating Losses", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date, (g) All references in the Lease to the capitalized terms "Refinancing" and "Refinancing Proceeds", including, without limitation, the respective definitions thereof in Section 1,2, are deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. 15. Areas A-4 and A-5. City and Developer agree that the Lease has terminated with respect to Area A-4 and Area A-5, as more fully described in the Lease. All references in the Lease to "Area A-4" and "Area A- 5", including, without limitation, all provisions and exhibits pertaining thereto, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. 16, Notices. Wherever any notice is required or permitted under the Lease, such notice shall be in writing. Any notice or document required or permitted to be delivered under the Lease shall be deemed to be delivered, when it is actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when it is either (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) .delivered to the custody of a reputable messenger service or overnight courier service, addressed to the applicable party to whom it is being delivered at the respective address for such party as is set out below, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: If to City at: City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 331.30-1910 Attention: City Manager 18 If to Developer at: l:3ayside Marketplace, LLC c/o General .Growth Properties; Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer with a copy to: City of Miami 444 SW 2" d Avenue, 3'd Floor Miami, FL 33130-1910 Attention: Public Facilities Director 17. Miscellaneous. with a copy to: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite 1218 Natick, MA 01760 Attention: John Charters (a) Each of City and Developer hereby acknowledges and agrees that neither is presently aware of any continuing defaults by reason of any act or omission on the part of the other party under the Lease and that as of the date of execution each party has fulfilled all of its duties .and obligations under the Lease to date. (b) This Amendment shall be construed and governed in accordance with the laws of the State of Florida. Venue in any actionsor proceedings between the parties shall be in Miami - Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and voluntarily waive their right to a jury trial in any such actions or proceedings, Developer and City each agree to pay their own attorneys' fees in connection with any such actions or proceedings. (c) This Amendment may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deerned an original, but all of which shall constitute one and the same instrument. (d) Each party hereby represents and warrants to the other party that (i) it has the full right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid document enforceable in accordance with its terms. (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of the provisions of the Lease, which are not in conflict with theterms of this Amendment, shall remain hi full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed in all respects. (f) This Amendment shall be binding upon the parties hereto and their respective successors and permitted assigns. (g) At the request of Developer, City agrees to enter into a memorandum of this Amendment to be placed of record in the Public Records of Miami -Dade County in such form as Developer and City shall mutually agree. Developer shall be responsible for all recording costs with respect to such memorandum. 19 (h) The terms "business day" or "business days", as used herein, shall mean, individually or collectively, as the case may be, each calendar day of the week other than Saturday, Sunday and any nationally recognized legal holidays. (i) Notwithstanding the exception for City -owned property in Section 36-5 of the City Code, or any similar noise ordinance exception for City -owned facilities, Developer and its Subtenants, including, without limitation, SkyRise, agree to comply with, adhere to, and abide by the City of Miami Noise Ordinance limitations as set forth in Chapter 36 of the City Code, as amended, in the same manner as it applies to all other properties. (j) Developer and its Subtenant SkyRise agree that a "Media Tower" as defined in 'Section 62-618.21 of the City Code, as amended., or by Miami 21, Article 1, Definitions, as amended, or any successor ordinances, shall not be allowed or permitted on the Leased Property or the Tower. [Remainder of Page Left Blank Intentionally] 20 IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date. ATTEST: 4t7=f, By: Todd Hannon City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: B 0--V" ictoria endez City Attorney STATE OF FLORIDA ) SS.: COUNTYOF MIAMI-DADE CITY OF MIAMI, a municipal corporation of the State of Florida By: API' RE Daniel J. if City Manage VED 1-Marie S Director of ageinent NCE The foregoing instrument was acknowledged before me, this of 61 day of 2014, by Daniel J. Alfonso, the City Manager, and 17.)414 dorvt‘or, the City Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforesaid; each such person is personally known to me. .4,..44 xT,ZAMV:,(018S.,A;;,15°‘141:ii!Fig6P917„ .1 NOW 'Nu Notm P.0114 kiroi,onakera My Commission Expires [NOTARIAL SEAL} Sign Name: Print Name: Notary Public Serial No. (none if blank): 21 WITNESSES: Prin Nal Title: Print Name: Andrew P. Masemann CCOie WAtat tami Title: Authorized Signatory STATE OF ILLINOIS ) SS.: COUNTY OF COOK The foregoing instrument was acknovvledged before me this im day of 2014, by didijV "itialmollo as Me of I3ayside Market laze, LLC, in the capacity aforesaid; such person is personally known to me. PsAdVSAek,"^""PN","A"." Evse OFFICIAL SAL <ATYA R LFWANDOWSKA NOTARY PUBLIC - STATE OF ILLINOIS MY COMMISSION EXPIRES:10/30/16 vvvv,,A,04"esevriv BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: le4g/// Sign Name: Print Na Notary Public My Commission Expires: /d ,dpif Serial No. (none if blank): [NOTARIAL SEAL] 22 EXHIBIT "A" DETERMINATION OF FAIR MARKET RENT Minimum Base Rental for the first Rental Year of each Renewal Term and the Tower Fixed Rent Adjustments.per Section 4(f)(i) shall be evaluated in accordance with the procedures set forth in this Exhibit (each, a "Scheduled Appraisal") to determine the current Fair Market Rent (as defined below) for Minlinum Base Rental or Tower Fixed Rent, as applicable, and the required adjustments to these values for the applicable Renewal Term or Tower Fixed Rent Adjustment, .as applicable. 1. Appraisers, No later than three hundred and sixty-five (365) days prior to the end of the Original Tenn, Renewal Tenn or each Tower Fixed Rent Adjustment as referenced in Section 4(f)(i) as applicable, City shall deliver to Developer a determination of the. Fair Market Rent, in accordance with the criteria set forth herein applicable to the determination of Fair Market Rent. The determination of Fair Market Rent provided by City shall be conducted by an independent commercial real estate appraiser who is a member of the American Institute of Real Estate Appraisers and who has not less than ten (10) years' experience in appraising properties comparable to the Leased Property (a "Qualified Appraiser"). City shall pay for the appraisal. City shall select its Qualified Appraiser from the City's general appraisers' services list. In no event shall an appraisal result in a reduction in the Minimum Base Rental or Tower Fixed Rent due to the City. The Qualified Appraiser shall be hired the year prior to the Rental Year that the newly appraised Minixnutn Base Rental and/or Tower Rent shall commence to take effect (each, an "Adjustment Rental Year"). In the event that Developer shall dispute the determination of Fair Market Rent made by City's Qualified Appraiser, then, Developer shall, within thirty (30) days following its receipt of the determination made by City's Qualified Appraiser, select its own real estate appraiser, who shall also be a Qualified Appraiser (though Developer's Qualified Appraiser shall not be required to be on the City's general appraisers' service list). Developer shall pay the costs of Developer's Qualified .Appraiser. The City's Qualified Appraiser and the Developer's Qualified Appraiser shall then have a period of. thirty (30) days following the selection of Developer's Qualified Appraiser within which to attempt, in good faith, to reach agreement on the Fair Market Rent for the Property. If City's Qualified Appraiser and Developer's Qualified Appraiser are unable to agree upon the Fair Market Rent within such thirty (30) day period, then the Fair Market Rent shall be determined in accordance with the methodology set forth below: Within fifteen (15) days following the expiration of such thirty (30) day period, City's Qualified Appraiser and Developer's Qualified Appraiser shall endeavor to mutually agree upon an independent commercial real estate appraiser who shall be a Qualified Appraiser. If the Developer elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's general appraisers' service list. If the City's Qualified Appraiser and Developer's Qualified Appraiser are unable to agree on such third Qualified Appraiser, City and Developer shall apply to the American Arbitration Association for designation of an appropriate third Qualified Appraiser. The Qualified Appraiser so selected or designated by the American Arbitration Association is hereinafter referred to as the "Third Appraiser." Within ten (10) days following the selection of the Third Appraiser, City's Qualified Appraiser and Developer's Qualified Appraiser shall each submit to the Third Appraiser their respective final determinations of the Fair Market Rent. Within thirty (30) days thereafter, the Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by City's Qualified Appraiser or the determination submitted by Developer's Qualified Appraiser. The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount submitted by either the City's Qualified Appraiser or the amount submitted by the Developer's Qualified Appraiser, The Third Appraiser shall notify both City and Developer, in writing, which, of the two determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the Third Appraiser shall be final and binding on both City and Developer and the Fair Market Rent, as selected by the Third Appraiser, shall be the Minimum Base Rental or Tower Fixed Rent, as applicable, which shall take effect eor inencing as of the beginning of the applicable Adjustment Rental Year. 2. Method. Bach Qualified Appraiser shall determine the Fair Market Rent or Tower Fixed Rent, as applicable, based on the parameters set forth in the definition thereof set forth in Section 1 above. Each Qualified Appraiser, in its discretion, may dispense with formal hearings, it being agreed that his task will be solely that of appraisal. 3. ,Effect of Appraisal. The Fair Market Rent determined in accordance with the procedures set forth in this Exhibit shall be binding and conclusive on City and Developer, except that in no event shall (a) the Fair Market Rent be adjusted below the then applicable Minimum Base Rental or Tower Fixed Rent, as applicable, for such Rental Year or Tower Fixed Rent Adjustment (b) the Minimum Base Rental for tixe second, third or fourth Renewal Terms increase by more than fifteen percent (15%) over the Minimum Base Rental then applicable at the time of such appraisal or (e) the Tower Fixed Rent increase by more than ten percent (10%) over the Tower Fixed Rent then applicable at the time of such appraisal. 4. Appraisal Fee. Developer shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Developer's Qualified Appraiser and City shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the City's Qualified Appraiser, In the event the Developer disputes the first appraisal, the costs associated with the hiring of the Third Appraiser shall be paid by the party whose .Qualified Appraiser's deterr.ination of Fair Market Rent is not selected by the Third Apprai.ser; provided, however, if Developer eleets to exclude from the pool of Qualified Appraisers any appraiser on the City's general appraisers service list, then Developer shall pay fifty percent (50%) of the cost of the Third Appraiser, 5. Delayed Appraisal. If prior to the commencement of the Adjustment Rental Year, the adjusted Minimum Base Rental or Tower Fixed Rent, as applicable, has not been determined by independent appraisal in accordance with the procedures set forth in this Bxhibit, Developer shall continue to pay all then applicable Minimum Base Rental or Tower Fixed Rent, as applicable, as may have been previously adjusted pursuant to the terms of this Amendment. Following the determination of the Fair Market Rent by independent appraisal, in accordance with the procedures set forth in this Exhibit, Minimum Base Rental or Tower Fixed Rent will be adjusted as provided retroactively to the commencement of the subject Adjustment Rental Year, and, if necessary, the Developer shall pay to the City with the next installment of Minimum Base Rental or Tower Fixed Rent due, the amount, if any, by which Minimum Base Rental and/or Tower Rent, as adjusted, exceeds Minimum Base Rental or Tower Fixed Rent, as applicable, that has been paid by the Developer for the retroactive period, 6. Fair Market Rent. For purposes of this Amendment, "Fair Market Rent" means the rent that a similar property with the entitlements and lease restrictions currently applicable to the Leased Property, without consideration of the Improvements constructed by Developer or any Subtenant, would bring in a competitive and open market under all conditions requisite to an arm's length transaction, the parties each acting prudently, knowledgeably, •and assuming the rent is not affected by undue stimulus. Implicit in this definition are the following assumptions: (a) Both parties are typically motivated; (b) Both parties are well informed or well advised and acting in what they consider their own best interest; (e) A reasonable time is allowed for exposure to the open market; (d) Payment is made in terms of cash in U.S, Dollars in terms of financial arrangements comparable thereto; and (e) The rent represents the normal consideration for property leased, under current market conditions (as of any date as of which Fair Market Rent is determined) unaffected by special or creative financing or concessions granted by anyone associated with the Lease. EXHIBIT "B PERCENTAGE RENT l . Percentage Rent Calculations. (a) Commencing on the Effective Date and continuing throughout the Lease Term, Percentage Rent shall be due and payable to the City, in arrears, on the first (1st) day of the first (l't) full calendar month following the Effective Date and thereafter on the first (1st) day of each calendar month of the Lease Term for the prior month, as provided herein. Percentage Rent shall be equal to the following: Six percent (6%) of Gross Receipts (as defined below) over the initial annual breakpoint of $25,659,000, which annual breakpoint shall adjust each Rental Year commencing with the first CPI Escalation Year for the adjustment of Minimum Base Rental. Each such annual .adjustment of the breakpoint shall be equal to the natural breakpoint (Le., the adjusted annual Minimum Base Rental for the subject Rental Year divided by six percent (6%)). The breakpoint for any partial Rental Year during the Lease Term shall be reduced to an amount equal to the product of (i) the then -applicable breakpoint times (ii) a fraction, the numerator of which is the number of days in such Rental Year and denominator of which is 365. Each Rental Year shall be considered an independent accounting period for the purpose of computing Percentage Rent due, if any. The amount of Gross Receipts of any Rental Year shall not be parried over into any other Rental Year. "Gross Receipts" shall Inean all Operating Income actually collected and received by Developer at the Leased Property (excluding any Operating Income received by Developer from SkyRise pursuant to the terms of the Tower Sublease or any successors or permitted assigns of SkyRise under the Tower Sublease or under a new Sublease of the Tower premises), together with Operating Income actually collected and received by Developer from Subtenants of the retail liner to be constructed by Developer at the Garage Parcel as part of the Renovation Worlc; provided, however that Gross Receipts shall not include the following: (i) any sums collected and paid out by Developer for any sales, use or excise tax or surcharge imposed by any federal, state .or governmental authority directly on sales and collected from customers and accounted for by Developer and/or Subtenants; (ii) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Developer's business on the Leased Property; (iii) funds collected with regard to the Leased Property which are not actually related to the day-to-day business of the Leased Property such as, but not limited to the financing of the Developer's interest in the Leased Property; (iv) collection of insurance proceeds; (v) collection of eminent domain proceeds; (vi) monies collected for events, to the extent such monies collected are paid or delivered to the sponsor, so long as sponsor is not affiliated with Developer; (vii) all gratuities paid to employees; (viii) amounts received by Developer as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance, insurance or utility bills); (ix) any grants, subsidies, rebates, credits or similar benefits received by Developer from any federal, state, regional or local body, agency, authority, department or organization; (x) interest earned on Developer's deposit accounts, earnings or profits on Developer's investments; (xi). interest income from loans or credit facilities granted by Developer and similar passive or investment income of Developer related to Developer's liquid assets, investments or loans/credit facilities granted by Developer; (xii) rents .or percentage rents and commissions paid to Developer by any Subtenants where City is collecting rent based on a percentage of subtenant' s Gross Receipts; (xiii) Amounts received by a valet parking concessionaire that are not remitted to Developer; (xiv) Any restricted donations or contributions whose Gross Receipts are earmarked for capital expenditures, as approved by City, to the Leased Property; and (xv) Interest and nuance .charges charged by Developer. (b) .Commencing on the Opening Date, and continuing throughout the Lease Term (so long as the Tower is open. to the general public for business), additional percentage rent with respect to the Tower shall be due and payable to City, in arrears, within 150 days following the last day of.each Lease Year (as defined in the Tower Sublease). "Tower Percentage Rent" shall be equal to the sun of the following; (i) One Percent (1%) of Tower Gross Receipts (as defined below) above the initial annual breakpoint of $55,000,000, which annual breakpoint shall adjust each Lease Year of the Tower Sublease commencing with the first Tower Fixed Rent Adjustment. As the Tower Fixed Rent increases (whether by reason of CPI Escalation or Tower Fixed Rent Adjustments),, the applicable annual breakpoint for Tower Percentage Rent shall increase train the immediately prior amount by an amount equal to the same percentage adjustment to the Tower Fixed Rent for the corresponding Lease Year. For example, if Tower Fixed Rent increases by three percent (3%) in the second full 12 month Lease Year, the Tower Percentage Rent applicable annual breakpoint will increase by three percent (3%) (to $56,650,000). The breakpoint for any partial Lease Year during the term of the Tower Sublease shall be reduced to an amount equal to the product of (i) the then -applicable breakpoint, times (ii) a fraction, the numerator of which is the number of days in such Lease Year and the denominator of which. is 365. Each Lease Year shall be considered an independent accounting period for the purpose of computing Tower Percentage Rent due, if any. The amount of Tower Gross Receipts of any Lease Year shall not be carried over into any other Lease Year. Plus (ii) Six Percent (6%) of Tower Valet Gross Receipts (as defined below), "Tower Gross Receipts" shall mean all Gross Sales (as defined in the Tower Sublease) actually collected and received by SkyRise pursuant to the terms of the Tower Sublease; provided, however that Tower Gross Receipts shall not include the items deseribed in Subsection 1(a)(i) through (xv) above or the Tower Valet Gross Receipts. "Tower Valet Gross Receipts" shall mean all Gross Sales actually collected and received by SkyRise in connection with SkyRise's employee and valet parking operations within the parking garage to be 'mated under the Tower; provided, however, that Tower Valet Gross Receipts shall not include the items deseribed in Subsection 1(a)(i) through (xv) above or the Tower Gross Receipts. 2. Gross Receipts Report. Developer shall use a Gross Receipts Report, a sample of which is attached herewith and incorporated herein as Schedule 1 to itemize any and all reportable Gross Receipts and/or Tower Gross Receipts as described in this Exhibit. 3. Developer's Records. Developer shall prepare and keep full, oomplete and proper books and source documents in accordance with generally accepted accounting principles, of Gross R.eeeipts received by Developer in connection with the operation of the Leased Property. The books and source documents to be kept by Developer shall include, without limitation, true copies of all federal income and state sales and use tax returns of Developer, as well as sales records of each Subtenant paying percentage rent to Developer and records of any other transactions conducted in or from the Leased Property by Developer. 4. Reports by Developer. Within ninety (90) days after the end of each Rental Year, Developer shall also furnish to City a certified financial report (i.e. a Gross Receipts audit) by an Auditor (the "Annual Report"), showing in all reasonable detail the amount of such °Gross Receipts received by Developer from the Leased Property during the preeeding Rental Year. Developer shall in all events furnish to City within fifteen (15) days after the end of each calendar month of the Lease Term a written statement of Gross Receipts covering the preceding month,the statement to be in such form and style and contain such details and breakdown as City may reasonably require. City acknowledges and agrees that, with respect to Gross Receipts generated by any Subtenant paying percentage rent to Developer, Developer shall rely on the reporting made by each such Subtenant with respect to its. gross Receipts and shall have no liability whatsoever for reporting errors made by any such Subtenant. 5. Right to Examine Books. Notwithstanding the acceptance by City of payments of Minimum Base Rental, Tower Rent, Tower Percentage Rent and Percentage Rent, City shall have the right to all Rental and other charges actually due hereunder, and the right to examine, make extracts from and Dopy, at the Leased Property or Developer's main accounting office, Developer's books, source documents, accounts, records, bank statements and federal income and state sales and use returns filed with applicable goverrmiental agencies by Developer in order to verify the amount of Gross Receipts received by Developer or Tower Gross Receipts received by SkyRise in and from the Leased Property, For a period of five (5) years after the expiration of each Rental Year, Developer shall make all documents and records evidencing Gross Receipts and/or Tower Gross Receipts available at the Leased Property or Developer's main accounting office upon ten (10) business days' prior written notice from City. The Developer will establish one or more bank accounts to deposit all Gross Receipts recognized from the operations on the Leased Property, which bank account deposits will not be comingled with the Receipts from any other operations ofthe Developer or any other affiliated companies, 6. Audit, (a) At its option, City may at any time, upon ten (10) business days' prior written notice to Developer but no more than once each Rental Year, arrange for an auditor selected by City from either the City's Auditor General's Office or a nationally recognized firm of certified public accountants that is not paid on a. contingency basis to conduct a complete audit (including a physical inventory) of the applicable records and operations of Developer evidencing Gross Receipts from the Leased Property during the period covered by any statement issued by Developer, Developer shall make available to the City's auditor at the Leased Property or Developer's main accounting, office on the day set forth in City's notice, requiring such audit, all of the applicable books, source documents, accounts and records referred to in this Exhibit and any other materials which such auditor reasonably deems necessary or desirable for the purpose of making such audit. Developer shall promptly pay to City the amount of any deficiency in Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Developer's statement of Gross Receipts is understated to the extent of five percent (5%) or more, then, unless Developer shall dispute the results of such audit, City may bill to Developer the cost of such audit, which shall be paid by Developer within thirty (30) days after Developer's receipt of City's invoice, (b) In the event that any such audit shall disclose that Developer's records and other documents as referred to in this Exhibit and such other materials provided by Developer to City's auditor are inadequate, in the opinion of an independent auditor serving as City's auditor, to disclose accurately Developer's Gross Receipts, then Developer shall have thirty (30) days to cure any deficiencies raised by City's auditor and shall then notify City so that City's auditor can continue its audit. City's exercise of the foregoing remedy shall in no way limit or otherwise affect City's ability to exercise. other remedies available to it, nor shall Developer's obligations pursuant to the terms, covenants and conditions of this Lease (including, without limitation, Developer's obligation with respect to reporting Gross Receipts and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. Notwithstanding anything herein to the contrary, to the extent that Developer shall fail to provide to City any required reporting or records with respect to Gross Receipts as a consequence of any Subtenant's failure to timely furnish to Developer any required reporting or records with respect to the .gross Receipts generated by such Subtenant, then, provided that Developer shall take all commercially reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements of such Sublease with respect to producing such reports or records, Developer shall have no liability to City in connection therewith. (c) Notwithstanding the foregoing or anything to the contrary set forth in the Lease, City hereby waives any right to challenge or claim any deficiency in Developer's calculation of Rental with respect to any Rental Year (or partial Rental Year) prior to the Effective Date based upon any discrepancy between Developer's interpretation of the calculation of Net Income Available for Distribution (including Developer's interpretation of the components thereof) and the interpretation of such calculation by City or the Office of the Independent Auditor General. SCHEDULE 1 TO ]EXHIBIT B [see attached] City of Miami Percentage Rent Calculation RETAIL PARCEL BILL CODE DESCRIPTION AMOUNT ABMR ABATED MINIMUM RENT $ XX ASFS ASSIGNMENT FEES $ XX BDRC BAD DEBT RECOVERY $ XX BKPR PRE -PETITION BANKRUPCY-CLEARIN $ XX BMAN BASE MINIMUM RENT -ANTENNA $ XX BMAO BMR ADDITIONAL OUTPARCEL $ XX BMAP BMR ADDITIONAL PERM $ XX BMDZ BMR PRIOR YEAR DEPT STORE $ XX BMGB BMR GROSS BIG BOX $ XX BMGD BMR GROSS DEPT STORE $ XX BMGE BMR GROSS RESTAURANT $ XX BMGF BMR GROSS OFFICE $ XX BMGK BMR GROSS KIOSK $ XX BMGO BMR GROSS OUTPARCEL $ XX BMGP BMR GROSS PERM $ XX BMGS BMR GROSS STRIP $ XX BMJP BMR PERM -ADJUSTMENT $ XX BMRB BASE MINIMUM RENT -BIG BOX $ XX BMRD BASE MINIMUM RENT-DEPT STORE $ XX BMRE BASE MINIMUM RENT -RESTAURANT $ XX BMRF BMR OFFICE $ XX BMRI BASE MINIMUM RENT -ICE RINK $ XX BMRK BASE M1N RENT -KIOSK $ XX BMRO BASE MINIMUM RENT-OUTPARCEL $ XX BMRP BASE MINIMUM RENT -PERMANENT $ XX 13MRS BASE MINIMUM RENT -STRIP $ XX BMRT BASE MIN RENT -ATM $ XX BMRZ BASE MINIMUM RENT -PRIOR YEAR $ XX BPGB PERCENT IN LIEU -GROSS BIG BOX •$ XX BPGD PERCENT IN LIEU -GROSS DEPT STO $ XX BPGE PERCENT IN LIEU -GROSS RESTAURA $ XX BPGF PERCENT IN LIEU -GROSS OFFICE $ XX BPGO PERCENT IN LIEU -GROSS OUTPARCE $ XX BPGP PERCENT IN LIEU -GROSS PERM $ XX BPGS PERCENT IN LIEU -GROSS STRIP $ XX BPLB PERCENT IN LIEU -BIG BOX $ XX I3PL•D PERCENT IN LIEU-DEPT STORE $ XX BPLE PERCENT IN LIEU -RESTAURANT $ XX BPLF PERCENT IN LIEU -OFFICE $ XX BPLK PERCENT IN LIEU -KIOSK $ XX BPLO PERCENT IN LIEU-OUTPARCEL $ XX BPLP PERCENT IN LIEU -PERMANENT $•XX BPLS PERCENT IN LIEU -STRIP CENTER $ XX BPLZ Percent in Lieu -Prior Yr $ XX BSTR BMR STORAGE $ XX DEEP DEFERRED RENT BALANCE $ XX DEER DEFERRED RENT $ XX DSFR DESIGN REVIEW FEES $ XX FXEA EXTERIOR ADVERTISING $ XX FXEE EXTERIOR EVENTS $ XX IADV INSTALLED ADVERTISING $ XX IMKA INITIAL MKG ASSESSMENT $ XX INEV INTERIOR EVENTS $ XX KEYM KEY MONEY $ XX LAMP Late Opening Penalty $ XX LATE LATE CHARGES $ XX LMIS MISC REVENUE -LAND $ XX LPRF LEASE PLAN REVIEW FEE $ XX LSCF LEASE CANCELLATION FEES $ XX MADV MERCH ASSOC ADVERTISING . $ XX MAGA MAGAZINE INCOME $ XX MDMR MEDIA MISCELLANEOUS REVENUE $ XX MDPP PREPETITION MA DUES/MKTG/AD Fr) $ XX MEDC MEDIA CHARGE $ XX MISC MISCELLANEOUS TENANT $ XX MKLR MARKETING -LEASE REQUIRED ADVER $ XX MRNP MISC RENT $ XX MSHU SHUTTLE REVENUE ' $ XX PADC TRASH PAD RENTAL CONTRACTOR $ XX PBRT PREPAID BASE RENT $ XX PC.DZ OVERAGE RENT -PRIOR YR DPT STR $ XX PCRC Overage Rent Recaptures $ XX PCSA Overage Rent -Sale Audit $ XX PCST Overage Rent -Stall $ XX PCTA Overage Rent -Adjustment $ XX PCTI3 OVERAGE RENT -BIG BOX $ XX PCTD OVERAGE RENT-DEPT STORE $ XX PCTE OVERAGE RENT -RESTAURANT $ XX PCTF OVERAGE RENT -OFFICE $ XX PCTI OVERAGE RENT -ICE RINK $ XX PCTK OVERAGE RENT -KIOSK $ XX PCTO OVERAGE RENT-OUTPARCEL $ XX PCTP OVERAGE RENT -PERM $ XX PCTR Overage Rent $ XX PCTS OVERAGE RENT -STRIP CENTER $ XX PCTZ OVERAGE RENT -PRIOR YEAR $ XX PEST PEST CONTROL $ XX PRNT PREPAID RENT -AUTO CASH $ XX RRRD RENT RELIEF -BASE MIN RENT DEPT $ XX RRRT RENT RELIEF -BASE MIN RENT $ XX RTCM RENT CONCESSIONS $ XX SECC SECURITY DEPOSIT -CONSTRUCTION $ XX SECP SECURITY DEPOSIT -PERMANENT $ XX SECT SECURITY DEPOSIT -TEMPORARY $ XX SELF LICENSE FEE DEPOSIT $ XX SIGN SIGNAGE $ XX SKEY SPEC LSE KEY MONEY $ XX SNAD ADVERTISING VENUES & SALES $ XX SNAF INSTALLED FIXTURE ADVERTISING $ XX SPAD ADVERTISING VENUES & SALES $ XX SPAF INSTALLED FIXTURE ADVERTISING $ XX SPBA SKYBANNER NETWORK INCOME $ XX SPBM BASE MIN RENT -SPEC LEASE-12+ $ XX SPCE COMMUNITY EVENT INCOME $ XX SPCF SPEC LEAS -TERMINATION INCOME $ XX SPDA DIGITAL ADVERTISING NETWORK $ XX SPIV SPEC LEASE-TILS $ XX SPIX SPEC LEASE-TILS (1-30 DAYS) $ XX SPKS SPEC LEASE -KIOSK $ XX SPKW SPEC LEASE -KIOSK -WIRELESS $ XX SPKY BASE MIN RENT-KIOSK<1YR $ XX SPLA SPEC LEASE -LATE FEES $ XX SPLK SPEC LEASE -KIOSK $ XX SPLO SPEC LEASE -LOCAL & RE'G SPONS, $ XX SPMK Spec Lease -Marketing $ XX SPMP Spec Lease-PriorYear $ XX SPPE Spec Lease -Pepsi $ XX SPPL SPEC LEASE -PERCENT IN LIEU $ XX SPPR Spec Lease -Overage Rent Inline $ XX SPRM SPEC LEASE-RMU INCOME $ XX SPRW SPEC LEASE-RIVIU-WIRELESS $ XX SPSA NATIONAL SAMPLING & TOURS $ XX SPSH SHOWS & DISPLAYS $ XX SPSP NATIONAL SPONSORSHIP . $ XX SPST SPECIALTY LEASE - STORAGE $ XX SPVD SPEC LEASE - VENIDING $ XX STOR STORAGE CHARGE $ XX UC UNAPPLIED CREDIT $ XX RC OTHER RECEIPTS $ XX TOTAL GROSS RECEIPTS: $XX BREAKPOINT: $XX RECEIPTS OVER BREAKPOINT: $XX PERCENTAGE RENT - 6% PERCENTAGE RENT DUE: $XX BREAKPOINT CALCULATION (FOR PARTIAL YEAR): ANNUAL BREAKPOINT: APPLICABLE NUMBER OF DAYS: NUMBER OF DAYS IN YEAR: $X, XXX,XXX 365 ADJUSTED BREAKPOINT: •$X,XXX,XXX E 1 TBIT "C", RENOVATION WORD Bayside Marketplace is a waterfront jewel for the City of Miami. Bayside Marketplace is a hybrid approach to an indoor shopping experience combined with an open air environment. Currently, Developer is committed to improving the. facility which will undergo an extensive renovation. The renovation will provide a new modern appearance which is responsive to Bayside Marketplace's current needs and users, Notwithstanding anything to the contrary set forth in the Lease or this Amendment, the City Manager shall have the right to approve detailed plans and specifications for the renovation work (which may be submitted in phases), such approval not to be unreasonably withheld, conditioned or delayed so long as such plans and specifications are consistent in all material respects with the scope of work described below, as well as the renderings attached hereto (the "Plans"), City acknowledges that Developer and the City Manager may take into consideration budget (including the Minimum Level of Investment of $27,000,000,00 and an investment cap of $35,000,000,00) challenging logistics, operations and project phasing in connection with the renovation work. City further acknowledges and agrees that any soft costs and hard costs incurred by Developer (including Subtenant improvements to storefront systems) in connection with the renovation work described herein from the date that this Amendment is approved by the Miami City Commission shall be included for purposes of substantiating Developer's Minimum Level of Investment pursuant to Section 5(b) of this Amendment, If the Plans for the first phase of the renovation work have not been submitted for permit within eighteen (18) months following the Effective Date of this Amendment, and construction work has not corxmmnenced on such first phase within six (6) months from the date the permits have been issued. by City, then City may notify Developer of such. failure and Developer shall have the cure rights set forth in Section 7.1(b) of the Lease, Developer shall use commercially reasonable efforts to complete the renovation work within four (4) years from the date the permits are first issued for all work, The foregoing deadlines remain subject at all times to unavoidable delays as set forth in Section 7.4 of the Lease. The Lease requires that the public area in the retail area be maintained in first class condition. The renovation work described herein is intended to bring the public areas in the Lease to first class condition. The scope of the renovation work includes the following and shall be performed in substantial conformance with the Plans: Lower Level Shopping Promenade 1. Furnish and install all new Developer awnings throughout the interior promenade. Subtenant awnings will be replaced when Subleases are renewed or new Subtenants open. 2. Recladding of all columns in porcelain veneer or similar material to match upper level,. 3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match upper level. 4. Furnish and install all new decorative light sconces and fixtures. 5. All new permanent Subtenant build -outs will have storefront systems with anodized finish that is chrome, brushed aluminum or black. Upper Leval Shopping Promenade 1. Furnish and install all new flooring throughout shopping corridors. 2. Recladding of all columns in porcelain veneer or similar material to snatch lower level, 3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match lower level. 4. Furnish and install all new decorative light sconces and fixtures along the new awning structure to improve illumination in the upper walkway. 5. All new permanent Subtenant build -outs will have storefront systems with anodized finish that is chrome, brushed aluminum or black. General Renovations to Facility 1. All public staircases, stair finishes, stair surfaces, railing system, public restrooms finish inclusive of tile, toilet partitions, fixtures and accessories in the retail marketplace common areas will be replaced. 2. Food court will be remodeled including new flooring, wall treatments, ceiling accessories including light fixtures, fans and any decorative elements. 3. Refurbishment of the plastic corrugated roof in the vendor marketplace area. The refurbished roof will have an updated and modern design according to the Plans. 4, A11 mechanical and electrical exposed vents and receptacles will be replaced 5. All limestone surfaces will be cleaned and refurbished or replaced in accordance with the Plans. The parking garage will be renovated and expanded to include additional spaces and exterior facade treatments, as well as a retail liner. Light fixtures that have not been replaced within the last three years and signage for parking garage will be replaced and updated. The garage will be pressure cleaned and repainted. 7. A new gateway feature will be constructed at main entry axis near the existing flagpoles, wliich will serve as a recognizable feature that can be viewed from Biscayne Boulevard; and it is anticipated that this feature may be a sculpture, fountain or the like, per the Plans. 8. Developer wayfinding signage will be replaced throughout the facility. 9. Exterior Developer furniture including benches, integrated planters, and garbage receptacles will be replaced. 10. Renovation of perimeter landscaping per the Plans. YSI►` ''' ' ETPLACE May 27, 2014 SLIDE 2 BAYSIDE IVIARKETFIACE 1:4DIAOSA2 DV-HAMM MISAVE1 ;1;112V14'''' 0-We; ift5/TC.S1..1 - SLIDE 4 BAYSIDE MARKETPLACE SLIDE 5 BAYS1DE MARKETPLACE SLIDE 6 BAYS1DE MARKETPLACE ZYSCOVICH P:CT4iT C TS EXHIBIT "0" TOWER DEVELOPMENT WARRANT [see attached]. rto ,GrI3r ., f IV r# IR 14 portmertt Prosia !mg „.ak,,,,,,,,op ‘Akt,m,,„;,,,,,,,--3 , ...,,r, ,„ ,. e., , '' ' .110e4Ct Yi)''';;NdOSUM101. fr1104100tiOn.10 tflo ivrirpviod Olastil :II Speolii. Permit 10414 •4 , c, br Vnivetbd.:MItttli" .1:66eited In Traritoot•Zorte T8.4), File N111310077 *REVVED 804 4 rive, Surto 1200 4440 Frigmo146J • ingo A MN ,•,,eloNt1ASOfteN.0001140. ON via foLowiNolvvyttem reagt 401 IBIseayne.1.31Vd:,,. OPwriown NET,. illhot boots:top t 1:. .1; Approval .I prtwIthporiditlor.10 C. Denial ..111ONG.k.140„0.0.NDITIONS, *rho it.:EigAgot, proposothel$ beet) reviewed for Warrant PerMit.PYrta0nt $00tIon 741,1,84.1 of Mio* 21, Cd sodepted,. the ,gortiro Orartamoo sof tho City of Wert% .Pletida, Whighstated thot ort opplloant my modify •0 spootel permit opproyed Oder 0 Pr0vlbu.t ..M111110: 0.0d0 Pt s.voIrlOr rotitioOtron throvoi the Witooritpreeeo, 14w:Umtj gedtiOn I61,14 of the above4eftedlOrilng Ordthenoe, tho PlAmIng end Zvi o gopArtmoirft hos Mafe. referrafs to the foliowlho Oepextraoft ,erid. ttloordt. rgrfoe of lon1110:, Plan hintl antl.ZOnliil Department DoW'rfteiwriNt8T.OffleeMeivhbofhoodltihantomorMaM, Their 4oMmerito ond.reeornhiendotIont hoe been dulreemidered 1 this Moat doeloloh: Thle opptiootion ha4 been OOVIeWor4 pursuant to"Sootiott 4'414,4 (t1).:Of :the Zoi114., Ore ;' the:folloWing fladingsl• hove been, mode: PINT • The .ap#11..oarit lo .prepeOing tot difidelfons to the approved Ciaee II Spada! •PerOlt 1..0.01:43 "Solar liveNO Miefor, In Odor to brin0"the projeaMoreiti 01'001400o with .Mitool 2.1 Dodo, 0 bin january ,.Sth., 20.13, the .appltoont submitted .modiflodplane to the orlolnally approved' Claes II SP:00101 'Remit, it141:4, .speolftettly eortototIno of. a.: loorease of the PARtronvil 641141: eq. fft.to 1081,020 og fl b.. iletroteethe OfFloe. area froni 4,0:0tilqft id B..260 tcl ft. o... iDoorekoo tho tt1I area froM 33.43.%liq ft tO 14,$47,e'rj ft, d). :066146aaki. the flotauMrft 0rod fithi 33,33.3.- ag. 'ft to 1 0.„641$ $1' ft, 6), 'tkieW Plying. Theater of $,'0?8 ail fteregi...: MI6 .No. 13t0/111VVIS.ED f) Now abtervation Dook of 26.,263sq. ft, area. Q), 'Now 6alibit Speoe of 7.1.:042 aq iir60, h) Niw M.oeting RoornilloalroonllaaritSpeoo..of 2$,211 So ft. notall liner buildino.thd. additional parldng floors to boa .0arooe along 'with a haw HOT .6pg00 At 'the oround 1eve1'frontIno.13isooyne 1.) No ohanyes thohun heloht, footprint artd Intensity' ore beino requottOdpert of this modification. The Zorlino Administratothas detormine:d that the propotad oharcet, purtuant to the Jtinelthi 201:0, sitrrilltal, do not wooed the paratootors dosoited In Seaton .220,1 of the 11,000. Oity Miami ZorflrOrditionto and are ihorciforerion,lphstantiaG . . .10 f01-111$1.10 PriVoil4d. rnadOioations. do not aOhotitt.110, N'llatantlet loilahge. to to ortoinol approved. proloot, • NO tandeoape Plan has. been soulomittad with"thlt applioation, • Pursuant to Seo, (d), tho •Mithil. 21. 'Coda, the. 411ty of Merril Zorilhp .0rdinanoe„ the applidatiori has. bean reviewed arid found .ttif.flolont e*oept.fOr the %twat titled .above and otintained. Irvitho ot�it B.atad.n tha '01)Ove findinos:.arid tho oohs:Meted advloo .of the. oPioart• and. tiOeiloles OontVited on this rnattor .orid ,pursuant to iilOOtiOri MLZ of tho Zorrin0 Ordinanoe, the .00100 :proposal Is :heraby �V With ooilditiolit atibioot tO the plans .t uhOiltted by thapplioantand fl filo with tho and :ZOhinCi ID.OPartrilerit at well ot 'the followinaInitU 1, The tipplidant hfl provide the Planning an:d Zontoci 'Do,partmeht 'with a tornporary toiistroption riarldhP..01allt .With rvrit poUyarAd a o utlo r1s rnahaDentiorit plan With 'ohs otforooinorit :poltoy. .2, .00riOet.otandsoape .1491.art 110P0Oilarto0 with Aldo 14 of INAloni1 iI ba mbrriittod.Io tho Plarinfri0 dZooino boportmatoriot t issuotToo ofony bul orolt. .0., the detiph. ..lcaris :for the prOposad retail liner builidtria to bo. looated,ri,tho. wost f000do of the 0.0)/010 par Ono gholi I obtnited ot`Kr f th�laaWairO ..Ofa boildino. porinit or tho. axparition .of the Lye prktnParai;10; 'rho dation plano.for the :proposed tatall iinor buIJdIn shaft. 14I0 raviaw,00.;p9rstiorit to the prooats tlo.rth SoOt, .1A Of 1010.1 he.pro.poga: rota liner iyulidihti to. Oii) routed. otilho..wost %bode. oftheS001.00 part trara00.4 II, 'Have a niir4irhtir4 average depth, 0,16 feet Havo rointimito. of two. padostriari wali§wayi :oormooting the front cittlit .retail. finer bkillelino 'to ilia existirig. tidawalk. along tiloayn o ao.Wlevard ; minimum tiffp vomit ftb�ifetalitrontaoa tilaged,wIth 'olearolato,.pursuant to the requirements, at tlorth irt Miami :2,1 th�opPliOritcatid arty ou.nosoors.iln-iritatoot, sboil not .post.riorall).4. orallow others 1),y $.010, 100100,, otraf r00ro0m0riti.O'post or attlx, to the o)derlar of tho of. ih*Warront.oppitontior4 tiny La) diOttal �nt'o �Cab .o.dfvering stone a$ the. terms aro &oilfield In Miami g1.1 Artiole 11 end Whiohiridada tilottat media displays or moons arrays that allow for Ohoripos 41.9rioopy,lhaturront toohnologrfor thle. type oft:Contoroth prohlAedis known. at k017 digitoreight ThaOroleitiorught41.1 ativr.ou:(5000$Or teohnolOoy reploolno •1110dt1tI rnadio Worts whioh aro utodfat .00rarherolot advertising purposes. :Rotor theap.pflOant and any tootettort,in.intelott, shallhot re'quatt that this proloot; tow0r,orbuIHn boiliit'ignat06 .00 0 mokilei tosiii6t OtIrstUht :to MI001 21., Atilo101 n.oi th011. 2 Pilo No, 134077 '110/1SED tlOnform. to AI Ell)Pliqa!bi0 feetettt :state, Miami4ade and thuniolpal laws and regulations,. :as they now 01.4, This doss not preorude the use of spe?cital effeots lighting, from either. iriternal, external., or prOjeeted soomee for Mc purpose of ,defirtlivhe. environmental ohareoterof the preleet, or for providing pra)eQt identilioetion signs anyWhere on the building or .onsite Mona, inoluilng titreotIonat, or regulatory information or premottonal signage attefunottonalfevot(te,t the levels of the pedestal teeing south, and west): or at the. Wade level ,of the tower es may boaroropriete to the requirerrVentS of the pro:Jed or efteWhere.on the site, provided the. oopy is permitted under the ourrent oode, 6, norm to 'the design review oriterta set forth In Art, 4, Table 12,, and Art. 6, led, Miami 21. 1, Any struoturs above ground shall he subjeot to sethook requirements. NOTICE' The inl decIsion .of the Olrector ;may be.appoalod t he PlannIngo Zoning, and Appeals Eoard by any .poorleved party , wifliirt. fifteen (1) days of 'the date of Issuance by iline a written appeal and app.ropTiat.0 faqwUh the ..0111ce of t1earInol5oards„ located at 444 .SW 2n0 Ave., *EloorlMIam l;q.3.112(), Telephone 'number 000) 416-1(.40 8Ignature Pronel Oe pia, Ire-0(0r Planning and Zo De:partment rote 74t, V IsPPPrrioNt ri ieNt..). 13,0077 laviel4b iArtplft,WIRY Ponslia,noe :CO Respond to the physicei torite4 taking Into Yea 'Yes ecosideretioti natural. .features,, eglet(ro urban form and. ironotoM Zorle fritentle.no, (2) Pot Oulidihos on:at/Met Late{ doolgirt. .e.gaid.*• . toNA acl(n:owtedoe Oti.Froote00.0.. . Per mtki f noncoriformlho Structures, NIA S.0.0,01610.7$ $100tion 1.2 for spoOki•reptildbeis '(4.)..dreate transit:one in Height and. mass with Y04, Yes ArAfttio.0 pro:Odes ohd TraritectIchee. 111....11014'.010....,00.1110Ult4T.10)* (1) Artidulets th:si Buildino reqede Vertically :Arid YOO 'Yes hofizont011y In 1oter/40. OPP roPilate 1 the 0).dftlng keighborhood and Traiisect Zone, ArticOlett. 'the Blitidino Faoatie ,street level to Yea Y06 recoorke pedestrian.' contioulty. and 'friterest, end et tipper I�ki ta recogilizeo teng views of (S): Vas architectural 'Styles arid details (atdh as roo:f Voo. Yes lines and . fenestration), polra end materiels derivative f:rorti surrounding. area, t4). pooign Fac0c144. totparid ortmarily to huillati Yee Yes '00:01e, (5) Promote pedostrido Interaction, Yee Yes (0)•Dos1gn. oil' welts te 'MONO P.,4900$,:) 'VAN :000r6 Yes V08 and winws, WhOh.not p0aolLi1e., embellish:walls witti arChiteetiArEd desightroatment, Amato/ qprollanee (7). Previde Op0h 611100 ihat 410.WO f Or visible. Yet Yos, orKt «nvnt�rt pedesMon Ames* from the ..publto (). iSvilt4no el(teS Oh:0(11d . 1000t0 :$01000 'eternenta, Yes Yes suet). Ott .iM$h &mpstrs uLifty moter.s, feeding docks, backflovi/ promoters, statintseohnections nd' etc etriogt, roodhartleal end oorrimuntoattono .0010nlerit await fron. a stroot. front, All servide ,oloments 4:(4 ettuotod.ond ocreelled. from vlow to the 'street .orld da�nt properties, F NSI 0) Respond: to the NelghbOrhood context tind Transept zone.. .1Y). PARV.04 OP11001.0tV. Yet No,1$-0.077*RMVISED 40.01101n.qt YOU ApOlcaOltitv•0° m n Vt.) Minimize' the Impact of automobile perking and. Yes driveways on .the pedestrian. enVironrnen't 411.11 adjacent pitop*Most ottp6d10.iy T$ areas. (2). For .pedestrian and vehicular safety minimize Yes tOriftiot feints siion es the Humber end Width 'of drloways and owl) Outs. (8) .Minirolze off.street parking adjacent to a Yes Yee thoroughfare front end where pO$Sibliv 1.00ate parkingbehin0 the*Oullding, (4.) Peeign landsbaping..Or (*) parking areas NtA .110(0re between disehtlar LtseS, (5) Screen parking lojerage, strooturee with Habitable Yes' Yes* Smoak. Where 'Habitable *Space N :not provided) architectural treatMente and landscaping shall ecreyert the garagestrubture, Yes Yee y) 1.4 Nin.e,AP it.i$1+AN NAPS! /601411ctit4 lance features whonever poselble, (2) Aaltiforce Treinsect Zone interition :by inteorating Yes Yes* laridS00P0 600.fordao0Povierfientv,. d (0). ,,Liee landscaping to anhanoe Outiing design and Yes Yes* continuity of Streetscape. ('4) Use jandscape materiM al, tuoh .,031,11104, Yes Yes* troll:lees, pavers,. screen wails, platters end Tmflrfootorest to enhalloo IN:110V .dootOrl and .0ontioutrty btotrootoopo:, (5) Provide lant4coping that screens undesirable Yes Yes* elerrtents,. sacri earlace parking 'lots, :arid that enharfeet Op011 space end arehitedtare, Y11,01.. :07 ::.;:1—.W.PrAit pignollgot .(1) Provitity olgnato appropdate for the scale and N'/A charpttor o tho projectend ir(1111:00010 N01:0140Phtogi. .(2) Pawl:do tittiorwe dtibt Motto sionpoo N/A kterKytTO Surfctlho addrOvo.attheentrance(6)., file N. t $,0071.148NISEo womittopAvt. Agalistay .9.arripilanoe (1) tomvidp tlh.tn ppropriate to the Du1ltlin0 and Ye0 Yes landsoarle desion in a rriannar Oat 000rdtnates wthstonagie antis 'street Iihn (2). Orient .outdoor lighting to olnirolte, vtare the. INA pubilt .roalm and, ticijaoeill properties, ($) Protect residential aromafron e,xoes$1ve noise, N/A furtive, odor$:1 oornrnerolai wilds Intrusion, traffia oortfilots and th spill:over elfedt of .11t1ht, Yi• 6 EXHIBIT "E" GROUND LEASE RECOGNITION AND NON -DISTURBANCE AGREEMENT [see attached] Prepared. by and return to: Arnold A. Brown, Esq, 2665 South Bayshore Drive Suite 1200 Miami (Coconut Grove), FL 33133 GROUND LEASE RECOGNITION AND NON -DISTURBANCE AGREEMENT THIS GROUND LEASE RECOGNITION AND NON -DISTURBANCE AGREEMENT ("AGREEMENT"), made as of the 17 day of September, 2014, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, whose address is 3500 Pan American Drive, Miami,. Florida 33133, Attn: City Manager ("Landlord") and. SkyRise Miami, LLC, a Florida limited liability company, having its principal office at c/o Berkowitz Development, 2665 South Bayshore Drive, Coconut Grove, Florida, 33133, Attn: Jeffrey L. Berkowitz ("Sub -Ground 'Tenan:t"). A. Landlord is lessor under that certain lease with Bayside Marketplace, LLC, a Delaware limited liability company ("Ground Tenant"), successor by merger to Bayside Center Limited Partnership, a Maryland limited partnership, as lessee, dated October 15, 1985, as amended by First Amendment dated August 19, 1986, Second Amendment dated November 24, 1987, a Third Amendment dated April 15, 1993 and a Fourth Amendment executed on or about the date of this Agreernent (the "Ground Lease"), which demises certain real property (the "Premises") commonly known as Bayside, located in Miami, Florida. A memorandum of the Ground Lease was recorded. in Book J.2684, at Page 157, and supplemented in Book 13492, at Page 319-9, both of the Public Records of Miami -Dade County, Florida. B. Ground Tenant sub -ground leased a part of its lessee's interest under the Ground Lease to Sub -Ground Tenant pursuant to that certain Sub -Ground Lease dated March 29, 2013, as amended by First Amendment thereto dated June 3, 2014, and by Second Amendment thereto and Third Amendment thereto each dated on or about the date hereof (the "Sub -Ground Lease"), which portion is more particularly described on Exhibit A attached hereto (such Exhibit A is subject to tweaking or minor adjustment/completion to accurately describe the Demised Premises, .as finally agreed upon between Ground Tenant _and Sub. -Ground Tenant, and reasonably acceptable to Landlord) and made a part hereof (the "Demised Premises"), A short form of the Sub -Ground Lease will be recorded in the Public Records of Miami -Dade County, Florida. NOW, THEREFORE, it is agreed as follows: 1. Landlord acknowledges that it has received a copy of, and has no present objection to, the subletting by Ground Tenant to Sub -Ground Tenant under, the Sub -Ground Lease; and for so long as Sub -Ground Tenant is not in default of any of its obligations under the Sub -Ground Lease beyond any applicable notice and cure periods as would permit Ground Tenant to terminate the Sub -Ground Lease (including, without limitation, notice, cure period and other rights available to a Leasehold Mortgagee, as defined in the Sub -Ground Lease, under MIAMI 3618280.19F 71982140643 Article )0CX. of the Sub-Gratmd Lease), Landlord shall not knowingly disturb or deprive Sub - Ground Tenant in or of its possession or its rights to possession of the Demised Premises or of any right or privilege granted to or inuring to the benefit of Sub -Ground Tenant under the Sub - Ground Lease, nor will Landlord bring any action against Sub -Ground Tenant to accomplish same. Ground Tenant and Sub -Ground Tenant acknowledge and agree that the Landlord shall be afforded not more than thirty (30) -days (unless the number of days is extended by acquiescence of the parties hereto) following the date of City Commission approval of this Agreement to request changes on matters impacting the Landlord's interest in the Sub -Ground Leak, and the consent of Tenant and_ Sub -Ground Tenant to such changes. will not be unreasonably withheld, denied or delayed. If no request is timely made, Landlord shall. be deemed to have approved the Sub -Ground Lease without change. If request is timely made, the Sub -Ground Lease as so changed will be deemed to have been approved by Landlord. For any subsequent amendments to the Sub -Ground Lease, the foregoing procedure shall govern, including Landlord being given the same thirty (30) day window to request any changes. As a result of the lapse in time between the drafting of the foregoing and execution of this Agreement, Landlord iteknowled.ges that it has approved the Sub -Ground Lease, as recited above, including the First, Second and Third Amendments thereto, without further Change. 2. If the Ground Lease terminates for any reason, including its natural expiration date, and provided Sub -Ground Tenant attorns to Landlord, the Sub -Ground Lease (as supplemented/modified by this Agreement) shall continue in full force and effect, notwithstanding sueh termination of the Ground Lease, as a direct lease (such a direct lease would be in replacement of or substitution for the Ground Lease) between Landlord and Sub - Ground Tenant for the remainder of the term of the Sub -Ground Lease, including all renewal options that are available to be exercised under the Ground Lease,. whether exercised or not, without the necessity of executing a new lease, and on the same terms and conditions as are in effect under the Sub -Ground Lease immediately preceding the tennination of the Ground Lease, but as supplemented/modified by this Agreement, as it may be amended in the event of a termination of the Ground Lease with the approval (in their .sole discretion) of Sub -Ground Tenant, Landlord and the holder of any Mortgages on their respective interests in the fee or leasehold estate that is the subject matter of the Sub -Ground Lease, 3, The term of the Sub -Ground Lease shall be coterminous with the term of the Ground Lease, including all available renewal options (the Ground Lease has (after execution of the Fourth Amendment thereto) a current term that runs through November 30, 2060, with three (3) fifteen (15) year options to extend the term and one (1) eight (8) year option to _extend the, term through November 30, 2113), whether now existing or hereafter granted and whether or not exercised. For clarification purposes, if a currently existing or subsequently granted renewal option under the Ground Lease is not exercised, the Sub -Ground Lease shall nonetheless continue as a direct lease (such a direct lease would be in replacement of or substitution for the Ground Lease) between Landlord and Sub -Ground Tenant until the expiration date of the last renewal period under the Ground Lease as if all renewal options under the Ground Lease had been timely and effectively exercised (the term of the Sub -Ground Lease shall be deemed automatically so extended). Further, the easements .granted for the benefit of Ground Tenant MIAMI 3618280.19F 71982/40643 2 under the Ground Lease (including the "Developer Vehicular Access Easement" granted in Section 2.3(b)(ii) of the Ground Lease, which is hereby expanded to include unobstructed access by all vehicles), the obligations of Landlord under the Ground Lease related to the City Improvements and Bayfront Park (as such terms are defined in the Ground Lease), and the obligations contained in Section 11.6 of the Ground Lease for Landlord to join in certain matters, and the remedies contained in the Ground Lease that are available in the event of a default by Landlord pertaining thereto, shall continue for the benefit of Sub -Ground Tenant -under the Sub - Ground Lease during -the entire term thereof, including extensions, to the extent applicable to the Demised Premises or the use and enjoyment thereof In furtherance thereof, Landlord acknowledges and agrees that Landlord shall remain solely responsible for complying with the terms of that certain Agreement and. Release of Deed restrictions and Reverter dated as of • October 21, 1.985 by and between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and Landlord which, among other things, obligates Landlord to deposit a portion. .of the rents received by Landlord. into the Biscayne Bay/Miami River Land Acquisition Trust Fund. 4. As to the Demised Premises, compliance by or on behalf of Sub -Ground Tenant with the terms of the Sub -Ground Lease shall be deemed compliance by or on behalf of Ground Tenant with terms of the Ground Lease that address the same or comparable matters notwithstanding deviations between the provisions of the Sub -Ground Lease and the Ground Lease. In furtherance of the foregoing, but without limiting same, the development, construction, operation and uses permitted by the Sub -Ground Lease shall be permitted (including the height and size of improvements subject to compliance with applicable laws) notwithstanding any restrictions thereon contained in the Ground Lease; the insurance required under the Sub -Ground Lease shall be applicable notwithstanding different insurance requirements contained in the Ground Lease; the provisions related to insurance and. condemnation (including the allocation of proceeds or awards) shall be applicable notwithstanding different provisions pertaining thereto contained in the Ground Lease; there shall be no art in public places requirement pertaining to the Demised Premises, unless otherwise required by Miami -Dade County under the County Art in Public Places Program (the parties acknowledge that, due to the unique design of the Tower to be constructed, it in and of itself can be considered a work of art); transfers .of the leasehold estate created by the Sub -Ground Lease shall be freely transferable and sublettable notwithstanding any provisions of the Ground Lease to the contrary; and the minority participation, small business, local business and similar provisions of the Ground. Lease shall be inapplicable to the Sub -Ground Lease, the premises demised thereunder and the activities contemplated thereby (but Sub -Ground Tenant shall be bound by the provisions of that certain Volunteer Pledge Agreement .and Minority, Small And Local Business Memorandum of Understanding dated on or about the date hereof between. Landlord and Sub -Ground Tenant, as it may be amended). Landlord acknowledges and agrees that the equipment liens provision contained in Article XXXIX of the Sub -Ground Lease shall be applicable to and binding on Landlord, and that Landlord shall have no consent rights in respect of, and no right to participate in any manner in the, financing or refinancing of the leasehold estate existing pursuant to the Sub -Ground Lease in the Demised Premises, Notice of the name and address of a Leasehold Mortgagee, which shall be sufficient to satisfy the provisions of Section 30.01 of the Sub -Ground Lease as to Landlord, shall be provided to Landlord. at the following. address: 3500 Pan American Drive, Miami, Florid.a, 33133, Attn: City Manager. MIAMI3618280,191? 71981/40643 3 5. Landlord acknowledges that,. in its capacity as property owner (but not in its govenimental capacity), it has reviewed -and approvedthe plans described on Exhibit B attached hereto and made a part hereof, and that no further approval of plans for the development, reconstruction or alteration of the Demised Premises shall be required, either under the Ground Lease or under the Sub -Ground Lease, if the latter becomes a direct lease between the parties hereto as provided in this Agreement; provided, however, that in the ease of reconstruction or alterations after completion of initial construction, Landlord shall have approval rights (which shall not be unreasonably withheld, delayed or conditioned) , if any, to the extent provided for in the Prime Lease (whether or not the Prime Lease remains in effect), but only under those circumstances that require approval under the Sub -Ground Lease, and further provided that Landlord shall be entitled to review and approve in its reasonable discretion subsequent submittals and amendments to the plans identified on Exhibit B attached hereto that materially adversely affect site functionality of the Marina. Exhibit D shall supersede Exhibit B as it relates to the Marina Work. The foregoing shall not limit Landlord in its review and approval of matters in its governmental authority capacity. 6. Landlord aeknowledges and agrees that any financing of its fee interest. in the Demised Premises is and shall remain subordinate to the leasehold estate created by the Sub - Ground Lease (and any New Lease, as defined in the Sub -Ground Lease, regardless of when same is entered into) and the lien of any leasehold financing encumbering such leasehold estate; and all parties who may acquire any interest in financing encumbering Landlord's fee interest in the Demised Premises are hereby put on notice of this provision. 7. Any matter requiring or permitting the approval, consent or entering into of a written instrument by the City Manager under the Ground. Lease shall be satisfied if approved, consented to or entered into by the City Manager. or approved by the City Commission, as applicable, or the successor to either of such position/body, with the approval or consent of the City Commission being required only to the extent specifically required by the Ground Lease or applicable laws, cod.es and ordinances, 8. Landlord agrees, from time to time upon written request of Sub -Ground Tenant, to provide for the benefit of Sub -Ground Tenant the joinders contemplated by Section 11.6 of the Ground Lease, as they relate to the Demised Premises, or the development, use or operation thereof, a Sublease Recognition and Non -Disturbance Agreement for subleases of the Demised Premises that may from time to time be entered into (in the form attached hereto as Exhibit C,_ with such changes as may be requested by Sub -Ground Tenant and are reasonably acceptable to Landlord), and a customary estoppel letter containing such truthful information as Sub -Ground Tenant may reasonably request -regarding the Sub -Ground Lease. 9, Landlord operates a Marina on the premises known as Miamarina at Bayside ("Marina"). in order for Sub -Ground Tenant to develop the Demised Premises, it is neeessary for the Sub -Ground Tenant to perform some modifications to the Marina to allow for a construction zone. Landlord. agrees to allow the Sub -Ground Tenant to perform the modifications to the Marina as depicted in the plans described on Exhibit D in exchange for the following: MIAMI 3618280,19F 71982/40643 4 (A) -Sub -Ground Tenant, prior to -the. commencement of its initial development of the Demised Premises (excluding the "Foundation Work" provided for in the Hold Harmless and Indemnification Agreement between Landlord, Ground Tenant and Sub -Ground Tenant, hereinafter referred to as the "HH Agreement"), will (i) pay to Landlord Seven Hundred Thousand Dollars. ($700,000.00) which represents estimated lost revenues (which estimate shall be firmed up by mutual agreement of Landlord and Sub -Ground Tenant as provided for in the next sentence) for the Marina operation due to the development of the Demised Premises, including the Marina Work (once that amount is fully depleted, if at all, Landlord will submit an invoice for any remaining agreed upon amounts due by -the Sub -Ground Tenant, which will be due within 30 days following receipt, and if any agreed upon amounts remain after completion of the Proj ect, Landlord shall reimburse Sub -Ground Tenant for such. amounts, if any, promptly following a determination of the non -disputed amount thereof. Within forty five (45) days of execution of this Agreement, Landlord and Sub -Ground Tenant will agree on a methodology that will reimburse the City for loss of Marina rental revenues attributable to the Marina Work and such understanding will be memorialized in an addendum, amendment or similar document executed by the parties (which shall be considered solely by the City Manager or the successor to suoh position and shall be_evidenoed by the City Manager's (or the successor to such position's) execution of the written evidence thereof) and attached as Exhibit F- "Marina Revenue Loss Formula.", inclusive of verifiable causes solely attributable to Sub -Ground Tenant's construction such as construction noise, dust particles and debris but excluding factors not part of the Marina Work; (ii) relocate the existing Dock Master's Office, restrooms and showers into a temporary trailer facility to be located on the Premises, but outside the Demised Premises, at the location shown on the plans described on Exhibit D, and (iii) demolish the existing Dock Master's Office, restrooms, showers and other facilities on the Demised Premises. After the work described in subparts (ii) and (iii) has been performed and as part of its initial development of the Demised Premises, Sub -Ground Tenant shall construct and build -out, substantially as depicted and described on the plans described on Exhibit 13 attached hereto, the following facilities (the "Facilities"): (a) a new Dock Master's Office/Marina offices (including dedicated stairs), to be located. on level LIM, containing square footage not less than seven hundred seventy (770) square feet, (b) Marina amenities consisting of new restrooms, laundry/lockers, storage and shower facilities, to be. located on level Li, containing square footage not less than eight hundred sixty four (864) square feet, (e) additional Marina amenities and storage area, to be located in the ba,senent level, containing square footage not less than one thousand one hundred thirty two (1,132) square feet, (d) a City of Miami fire substation, to be located on Level 2, containing square footage not less than two thousand (2,000) square feet, (e) City of Miami Depte of Fire Rescue Utility Area, to be located in -the basernent level, containing square footage not less than six hundred sixty seven (667) square feet, and (f) no less than 42 parking spaces in the below grade parking structure to be erected as part of the initial improvement to the Demised Premises. The minimum square footage figures set forth in subparts (a), (b), (c), (d) and (e) shall be subject to construction tolerances of up to 5% (shortage). Said Facilities shall be available for use for the designated purposes only by the City of Miami (but not by an assignee or transferee) without any payment whatsoever (other than separately metered or sub -metered utility costs, and the costs of maintaining, repairing, replacing, restoring and insuring such Facilities once initially conxpleted), but such Facilities- and the Marina itself shall be subject to such standards for management, operation and maintenance as are reasonably agreed to and set forth in a separate agreement to be entered into between the City of Miami, Ground Tenant and Sub -Ground. Tenant MIAMI3618280,19F 71982/40643 5 (modeled after the management, operation and maintenance .standard.s currently provided- for in the Miamiarina Agreement dated October 24, 1985 between Bayside Center Limited Partnership (currently Ground Tenant) and the City of Miami, as amended, which shall be superseded by such new separate agreement with the written consent of the Grouund Tenant). The Facilities shall be completed no later than six (6) years after the Tower Referendum (as defined in the Sub - ..Ground Lease) is approved and not subject to appeal, subject to extension by reason of Farce Majeure, as defined in the Sub -Ground Lease (B) Sub -Ground Tenant is hereby authorized to apply for a -permit to perform the "Marina Work", as reflected in the Marina plan attached or described as part of Exhibit », and to commence such work when the permit is issued. Sub -Ground Tenant shall pay all actual or estimated permit and other applicable regulatory fees associated with the Marina Work prior to issuance of any building permits, and agrees to indemnify and hold. Landlord harmless in connection with the costs of the Marina Work and restoration of the Marina to a fully operational condition within the time period provided for in this Section 9(B). If Sub -Ground Tenant does not pay for the Marina Work or restore the Marina site to a fully operational condition and with no loss of wet slips and the same or better linear_ square foot capacity within such time period, in either case within a reasonable period of time after notice by Landlord to Sub -Ground Tenant, Landlord may do so and Sub -Ground Tenant will reimburse, within 15 days demand, the full amount incurred by Landlord plus a 15% administrative charge. During the performance of the Marina. Work, the maximum number of slips that will be unavailable at any given time will be 20 and for a. cumulative period of no more than nine (9) months. During initial construction. on the Demised Premises, including initial construction of the Tower, the maximum number of slips that will be unavailable' at any given time will be 20, and Sub -Ground Tenant shall take all steps reasonably possible to limit the period of time that they are unavailable to the shortest atnount of time that is reasonably possible. Dnxing performance of the Marina Work and construction on the Demised Premises, including initial construction of the Tower, Sub -Ground Tenant will take all reasonable steps to avoid loss of access and utilities to the remaining Marina slips throughout the duration of the work. Sub -Ground Tenant will ensure that there is an area available as close as is reasonably possible .to the Marina to allow Marina customers to drop off supplies to their vessels. In addition, Sub -Ground Tenant shall cause insurance coverages to be maintained in the amount listed in Exhibit E attached. hereto ("Marina Work Insurance Requirements") while the Marina Work is being performed. Sub -Ground Tenant shall repay Landlord for the lost streams of revenue, if any, as detailed. in Section 9(A) above, :from the Marina while the Marina Work is being performed, and shall guarantee to restore the Marina to full operational status and with no net loss of wet slips and the same or better linear square foot capacity within nine (9) months (subject to extension by reason of force maj cure for a like period) following commencement of construction of the Marina Work, The estimated lost stream of revenue, if any, during the Marina Work and construction of the Tower shall be secured: by the $700,000 payment to be made to Landlord pursuant to Section 9(A)(i) of this Agreement. Sub -Ground Tenant acknowledges that nothing in this Section 9(B) shall prejudice Landlord's right to impose conditions on approval of the Marina Work which are required by state, county, and/or city ordinances and zoning regulations or are otherwise necessary to ensure the public health, safety and welfare of the citizens of the city; nor shall Landlord be stopped from enforcing the terms of this Section 9(B) by reason of its issuance of building permits. Sub -Ground Tenant acknowledges that any building permit(s) issued by Landlord for construction of the Marina MIAMI 3618280,19F 71982/4064 6 Work will be issued in accordance with all applicable laws. SubGround Tenant acknowledges it is proceeding at its own risk and acknowledges that it will not make a vested / property nights claim or other cause of action arising or accruing by virtue of this Section 9(B), other provisions of the City Charter, City Code, Miami21 Code, or any other Federal, State, County or City Law, Rule, Regulation, governmental approval or govermnn.ental denial of any building or development permit or similar decision, Sub -Ground Tenant acknowledges. that Landlord' reserves the right to evaluate all applications for building permits for compliance with all existing laws, ordinances and regulations controlling the issuance of building permits for construction within the City. Sub -Ground Tenant agrees that Landlord shall not be held financially responsible to SubGround Tenant, Ground Tenant or any third parties in connection with the Marina Work, Landlord must review and approve, in writing, any material changes to Exhibit A. Once the Marina Work has started, Sub -Ground Tenant will have nine (9) months (subject to extension by reason of force majeure for alike -period). to complete the Marina Work as shown on Exhibit A in its entirety. This obligation remains once the Marina Work eon>rnenees even if the August 26th 2014 Referendum were to be challenged or overturned or if the Tower were not to be built. 10. Sub -Ground Tenant agrees to post (or cause its contractor(s) to post) payment and performance bond(s) in favor of Landlord, in substantially the form prescribed by 255.05, Fla. Stat. for the full amount (100%) of the construction, as that term is defined by the AIA Glossary of Construction Industry Terms, latest edition, for the cost of the Marina Work and all initial construction of the Project (as defined in the Sub -Ground. Lease) to be performed by Sub - Ground Tenant. The bond shall be issued by a Florida licensed surety, company rated A: V or better per A.M'. Best's Key Rating Guide and shall be subject to approval as to form by Landlord's Risk Manager and City Attorney. Landlord and, at SubGround Tenant's option, Ground Tenant, shall be listed as obligee. 11. Sub -Ground Tenant agrees to indemnify, defend. (at Sub -Ground Tenant's expense) and hold harrnnless Landlord, its officials, officers, and assigns, servants, agents and its employees, from any claims, demands, liabilities, losses, causes of action of any nature whatsoever (including Lost revenue/business interruption, but only to the extent provided for in Section 9A) arising out of or in connection with the Marina Work and/or the Project (as defined in the Sub -Ground Lease), from any injuries to property and persons during the construction of the Marina Work or Project, the granting of any building_ or development permits or other required governmental approvals for the Marina Work or Project, from and against ail costs, fees, expenses, liabilities, any orders, judgments or decrees which may be entered in from and against all costs, attorneys' fees, expenses and liabilities. incurred in the defense of such claim or in the investigation thereof, in each case. 'other than those claims, demands, liabilities, losses, causes of action or injuries, if any, caused by the acts or omissions. of Landlord, its officials, officers, agents, servants, employees, representatives, assigns and oontractors. This indemnity shall survive the issuance of a certificate of occupancy or its equivalent for the Marina Work and Project and shall continue in effect for the applicable Statute of Limitations period prescribed by Chapter 95, Florida Statutes, Further, all liability (including liquor liability) insurance maintained by or for the benefit of Sub -Ground Tenant under Section 9.01 of the Sub -Ground Lease shall include Landlord as an additional insured, to the same extent as Ground Tenant is so named. 1411AMI'3618Z8O.J.9F 71982/40643 7 12. Sub -Ground Tenant shall pay to Landlord a one time "Transfer Fee" in the following amount upon the first "Transfer" of the Sub -Ground Tenant's leasehold interest in the Sub -Ground Lease: a, 3% of gross sales price of the Sub -Ground Tenant's leasehold interest in the Sub - Ground Lease if the sale occurs .durring the 5 year period commencing on date.of approval of the Ground Lease Referendum (as defined in the Fourth Amendment to the Ground Lease). b. 2% of gross sales price of the Sub -Ground Tenant's leasehold interest in the Sub - Ground Lease if the sale occurs during years 6-10 immediately following the date of Referendunn approval. c. 1.5% of gross sales price of the Sub -Ground Tenant's leasehold interest in the Sub -Ground Lease if the sale occurs during or after years 11 immediately following the date of Referendum approval). A Transfer shall mean a total full or partial assignment of all ofthe leasehold interests of Sub -Ground Tenant in the Sub -Ground Lease (other than in connection with any financing or refinancing contemplated by the Sub -Ground Lease), or one or more transfers in the aggregate which result in a.transfer to an unaffiliated' third party of more than 50% of the membership or other ownership interests of the Sub -Ground Tennant entity. A Transfer shall not include (i) transfers between the initial members or their affiliates, or to or among their principals, fancily members, or trusts or other entities which they control, in one or more steps, of SkyRise Miami, LLC as of the time it closes on its initial construction financing for the Project, (ii) as to any other entities that may succeed to the leasehold interests of Sub -Ground Tenant, transfers between holders of ownership interests or their affiliates, or to or among their principals, family members, or trusts or other entities which they control, as of the time the entity in which they hold ownership interests acquires its leasehold interest in the Sub -Ground Lease, (iii) transfers upon death of individuals to their heirs or devisees, (iv) transfers to trusts or other entities controlled at the time of the transfer by the party making the transfer into the trust, (v) transfers to a lender or its affiliate(s) by reason of foreclosure, the giving of a deed in lieu thereof or other realization of a security interest in the Sub -Ground Lease (or the subsequent transfer by such lender or its affiliate(s)), (vi) any other transfer that is not a bona fide arnns length transaction with an unaffiliated third party or (vii) any transfers of membership interests prior to 'completion of the initial construction of the Project strictly for the purpose of raising capital, provided that Jeffrey L. lSerkowitz or his affiliates shall at all times prior to completion of the initial construction of the Project be the manager of Sub -Ground Tenant, control the day to day affairs of the Project, and beneficially own at least 20% of the membership interests in Sub -Ground Tenant. Once a transaction has occurred for which a Transfer Fee is payable, the provisions of this Section 12 shall be void and of no further force or effect, 13. Landlord shall, within 30 days of request of Sub -Ground Tenant, from time to time memorialize in a recordable writing its approval, which approval will not be unreasonably withheld, denied or delayed, of any further fully executed amendments to the Sub -Ground. Lease, if applicable (whereupon the definition of Sub -Ground Lease in this Agreement will be automatically expanded to include such future amendments) to address the granting or MIAMI3618280.19F 71982/40643 8 confirmation -of rights appurtenant to the Demised Premises related to access roads serving Demised Premises, allocation of responsibility between Ground Tenant and Sub-Crround Tenant for compliance with certain title documents, allocation of rights and responsibilities between Ground Tenant and Sub -Ground Tenant related to the private sewage facilities serving the Demised Premises, and the granting or confirmation of rights appurtenant to the Demised Premises related to parking rights off of the Demised Premises. The approvals expressly referenced above shall be considered solely by the City Manager or. the successor to such position and shall be evidenced by the City Manager's (or the successor to such position's) execution of the written evidence thereof that is provided for above. As to other amendments, approval may be considered solely by the City Manager or the successor to such position (unless the City Manager or the successor to such position in his or her sole discretion elects to refer the matter to the. City .Commission for consideration), and shall be evidenced by the City Manager's (or the successor to such position's) execution of the amendments) as written evidence thereof. In furtherance of the foregoing, Landlord approves of the Demised Premises legal description and recognizes and grants to Sub -Ground Tenant the easement rights granted to Sub - Ground Tenant in the Sub -Ground Lease (and language limiting the easement grants "to the. extent of Ground. Tenant's rights therein" shall, in the case of Landlord., mean "to the extent of Landlord's rights therein", whether or not Ground Tenant has rights therein), including the Access Parcels easement rights contained in Section 4 of the Second Amendment to Sublease, as well as the limitations pertaining thereto, ratifies same (specifically including the limitations imposed by the Sub -Ground Lease on Parcels 3A and 3B), and agrees to honor same and to be bound thereby while the Sub-Grormd Lease remains in effect, In amplification of the foregoing, as to easement rights running from the USA in favor of Landlord with respect to Parcel 3A, Parcel 3A will be deemed included in the definition of Bayfront Park in the Ground Lease for purposes of defining the extent of the easements granted by Landlord in favor of Ground Tenant in the Ground Lease within Bayfront Park. Further, Landlord is lessor under that certain lease 'with Ground. Tenant, successor by merger to Bayside Center Limited Partnership, a Maryland limited partnership, dated as of January 14, 1985, as amended by that certain First Amendment of Agreement of Lease dated as of October 17, 1985, as further amended by that certain Second Amendment to Bayside Parking Garage Lease Agreement dated as of September 13, 1988, as further amended. by that certain Third Amendment to Bayside Parking Garage Lease Agreement dated as of April 15, 1993, as further amended by that certain Release and Settlement Agreement dated as of December 30, 2008 and as further amended. by Fourth Amendment executed. contemporaneously with this Agreement (the "Garage Lease"), which demises certain real property (the "Garage") commonly known as Bayside Garage, located. in Miami, Florida. A memorandum of the Garage Lease was recorded in Book 12690, at Page 159, and supplemented in Book 13849; at Page 1004, both of the Public Records of Miami -Dade County, Florida; Landlord recognizes and grants to Sub -Ground Tenant the easement and other rights granted to Sub -Ground Tenant in the Sub -Ground Lease as they pertain to the Garage, including those set forth in Section 10 of the Second Amendment to Sublease, as well as the limitations pertaining thereto, ratifies same, and agrees to honor same and to be bound thereby while the :Sub-Groimd Lease remains in effect in the event of termination of the Garage Lease for any reason. 14. Any notices, consents, approvals, submissions, demands or other communications (hereinafter collectively referred to as "Notice) given under this Agreement shall be in writing. MIAMI3618280.197s 71982/40643 9 Unless otherwise required by law or governmental regulation, Notices shall be deemed given -if sent by registered or certified mail, return receipt requested, postage prepaid (a) to Landlord, at the address of Landlord as hereinabove set forth or such other address as Landlord may designate by notice to the other parties hereto, with a copy to City of Miami Director of the Department of Real Estate and Asset Management, 444 SW 2nd Av., 3rd Floor, Miami, Fla. 33130-1910, (b) to Sub -Ground Tenant, then in duplicate under separate cover, one copy to the address of Sub - Ground Tenant as hereinabove set forth and one copy to John Sumberg, Esq,, Bilzin Surnberg Baena, Price & Axelrod LLP, 1450 Briekell Avenue, Suite 2300, Miami, FL 33131 or such other addresses or persons as Sub -Ground Tenant may designate by Notice to the other parties hereto, Delivery by nationally recognized overnight courier service or by hand. -delivery, with all charges prepaid, may be substituted for registered or. certified mail, All Notices shall be deemed served or given on the date received (as evidenced -by the return receipt or courier's receipt for delivery) or the date delivery was refused or unavailable due to an unnoticed change of address, 15. Handling of Hazardous Materials. Sub -Ground Tenant shall,. at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders related to protection of the environment ("Hazardous Materials Laws"), including, without limitation, _any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). Sub -Ground Tenant shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Demised Premises or any other area utilized for construction of the Project and the Marina Work or required for Sub -Ground Tenant's use or placement of any Hazardous Materials in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such, Hazardous Materials. Sub -Ground Tenant shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of its activities on, under or about the Demised Premises or any other area utilized for the construction of the Project and Marina Work. Upon termination or expiration of this Agreement, Sub -Ground. Tenant shall, at its sole cost and expense, cause all Hazardous Materials which are in storage devices placed on, under or about the Demised Premises or any other area utilized for the Marina Work by Sub -Ground Tenant or its employees, officers, agents, contractors or .customers or at any such person's directions to. be removed from such property and transported for use, storage or disposal in ancordance and compliance with all applicable Hazardous Materials Laws, These requirements shall survive the issuance of a certificate of occupancy or its equivalent for the Marina Work or the Tower Project. 16, Sub -Ground Tenant agrees that at all times during the Initial Construction of the Tenant's Improvements, as such terms are defined in the Sublease, Landlord and Landlord's MIAMI 3618280.19F 71982/40643 10 representatives, including, without limitation, any construction manager engaged by Landlord, shall have the right to enter upon the Demised Premises .(inside the construction, fence) at its sole cost and risk to inspect the Tenant's Improvements; provided that Landlord's representatives shall not interfere with the construction of the Tenant's Improvements. 17. Provided that Sub -Ground. Tenant's business operations are not unreasonably interfered with, and upon no less than 48 hours prior written notice, Landlord or Landlord's agents shall have the right to enter the Demised Premises at all reasonable times during normal business hours to examine the same, 18, Sub -Ground Tenant hereby acknowledges and agrees that it accepts the Demised Premises and the subsurface conditions thereof in the condition or state in which they or any of them now are, without representation or warranty by Landlord, express or implied, in fact or by law, as to the nature, condition or usability thereof or as to the use or uses to which the Demised Premises or any part thereof may be put or as to the prospective income from, and expense of operation of, the Demised Premises, except as expressly set forth in this Agreement or another written instrument executed in connection with or related to the transaction in respect of which this Agreement is entered into, and that Sub -Ground Tenant waives all right of recourse against Landlord in connection therewith. Sub -Ground Tenant agrees that Landlord, its employees, servants and agents have made no representations, inducements or promises about the Demised Premises, the Premises or the Sub -Ground. Lease, or about the characteristics or conditions regarding or pertaining to the Demised Premises or the Premises, unless the representations, inducements and promises are in this, Agreement or another written instrument executed in connection with or related to the transaction in respect of which this Agreement is entered into, Therefore, no claim or liability, or cause for termination, shall be asserted by Sub -Ground Tenant against Landlord, its employees, servants and agents, for, and they shall not be liable because of, the breach of any representations, inducements or promises not expressly contained in this Agreement or another written instrument executed in connection with or relate. to the transaction in respect of which this Agreement is entered into. 19. No modification., amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in. writing and duly executed by an authorized representative of the party against wliona the same is sought to be asserted. 20. This Agreement shall run with the Demised Premises and shall, while the Sub - Ground Lease remains in full force and effect (either as a sub -ground lease between Ground Tenant and Sub -Ground Tenant, or as a direct_,ound lease between Landlord and Sub -Ground Tenant), be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, assigns and subleases. This Agreement shall survive termination. of the Ground. Lease, unless the Ground Tenant has rightfully terminated the Sub - Ground Lease. 21. Either party may record this Agreement amongst the Public Records of Miami - Dade County, Florida, at its own cost. MJAMi 3618280.19E 71982(40643 11 22. Either party agrees, from time to time within fifteen (15) days of request therefore, to provide an estoppel certificate to the other setting forth such truthful information as the requesting party may reasonably request. The Sub -Ground Tenant shall pay Landlord a fee of Seven Hundred and Fifty Dollars ($750.00) for each estoppel. 23. This Agreement may be executed in counterparts or by facsimiWscan, all of which shall be deemed originals and one and the same instrument. Balance of page is intentionally blank IVIIAIVII 3618280.191? 71982/40643 12 IN -WITNESS WHEREOF, Landlord has caused. this Ground, Lease Recognition and Non -Disturbance Agreement between Landlord and Sub -Ground Tenant to be executed under seal the date first above written. WITNESSES (as to City Manager and City THE CITY OF MIAMI, a municipal Clerk): corporation of the State of Florida By; By: Print Name: Print Name: Daniel J. Alfonso Title: Witness Title: City Manager By: Print Name: Title: Witness APPROVED AS TO LEGAL FORM ATTEST: AND CORRECTNESS: By: By: Print Name: Victoria Mendez Print Name: Todd Hannon Title: City Attorney Title: City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: By; Print Name: Ann -Marie Sharpe, Director Risk Management Department STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before Inc this day of September, 2014, by Daniel J. Alfonso, the City Manager, of the City of Miami, a. Florida municipal corporation, in the capacity aforestated; each such person ispersonally known to me, Sign Name; Print Name,;,, Notary Public My Commission Expires Serial No, (None if blank): [NOTARIAL SEAL] MIAMI 3618280.19F 71982/40643 13 IN WITNESS WHEREOF, Sub-Crround Tenant has caused this Ground Lease Recognition and-Non-Disturbanee Agreement between Landlord and Sub -Ground Tenant to be executed under seal the date first above written. WITNESSES: SkyRise Miami, LLC, a Florida limited liability company, by Berkowitz Development Group, Inc., a Florida corporation. and its manager By: By: Print Name: Print Name: Jeffrey L. Berkowitz Title: Witness Title: President By: Print Name: Title: Witness STATE OF FLORIDA COUNTY OP MIAMI-DADE ) ) SS.: [Entity Seal] The foregoing instilment was acknowledged before me this day of September, 2014, by Jeffrey L. Berkowitz, as President of Berkowitz Development Group, Inc., as the manager of SkyRise Miami, LLC, in the capacity aforestated; such person is personally known to me, Sign Name: Print Name: Notary Public -My Commission Expires Serial No. (None if blank): [NOTARIAL SEAL] MIAMI 3618280,19 71982/40643 14 Exhibit A to -Ground Lease Recognition and Non -Disturbance Agreement Legal Description of Demised Premises (Parcel 1), including appurtenant easements (Parcels 2A, 213,2C, 3A, 3B and 4) Parcel 1 COMMENCE AT THE NORTHEAST CORNER OF BLOCK 61 NORTH .OF THE PLAT OF A,L, KNOWLTON MAP OF MIAMI, AS RECORDED IN PLAT BOOK "B" AT PAGE 41, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 89 DEGREES 58 MINUTES 18 SECONDS EAST ALONG THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF SAID BLOCK 61 NORTH OF SAID -PLAT OF A.L. KNOWLTON MAP OF MIAMI FOR A DISTANCE OF 703,43 FEET; THENCE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST FOR A DISTANCE OF 100,00 FEET TO -A POINT OF INTERSECTION WITH THE SOUTH LINE OF PORT BOULEVARD AS RECORDED IN OFFICIAL RECORDS BOOK 6811 AT PAGE 240 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE CONTINUE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST —FOR A DISTANCE OF 181.09 FEET; THENCE SOUTH 89 DEGREES 51 MINUTES 49 SECONDS EAST FOR A DISTANCE OF 23.83 FEET; THENCE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST FOR A DISTANCE OF 41.50 FEET; THENCE NORTH 89 DEGREES 51 MINUTES 49 SECONDS WEST FOR A DISTANCE OF 23.83 FEET; THENCE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST FOR A DISTANCE —OF 174.60 FEET; THENCE SOUTH 89 DEGREES 51 MINUTES 49 SECONDS EAST FOR A DISTANCE OF 23.83 FEET; THENCE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST FOR A DISTANCE OF 41.50 FEET; THENCE NORTH 89 DEGREES 51 MINUTES 49 SECONDS WEST FOR A DISTANCE OF 179.58 FEET; THENCE SOUTH 00 DEGREES 08 MINUTES 11 SECONDS WEST FOR A DISTANCE OF 25.00 FEET; THENCE NORTH 89 DEGREES 51 MINUTES 49 SECONDS WEST FORA DISTANCE OF 157.27 FEET TO A POINT OF INTERSECTION WITH A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THE CITY OF MIAMI MONUMENT LINE OF BISCAYNE BOULEVARD; SAID LAST DESCRIBED TEN COURSES BEING ALONG THE LIMITS OF THE "GARAGE PARCEL" AS RECORDED IN OFFICIAL RECORDS BOOK 12690 AT PAGE 159 OF THE PUBLIC RECORDS OF MIAMI- DADE COUNTY, FLORIDA; THENCE SOUTH 16 DEGREES 51 MINUTES 29 SECONDS EAST ALONG SAID LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH SAID CITY OF MIAMI-MONUMENT LINE FORA DISTANCE OF 57.78 FEET; THENCE ALONG A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH SAID CITY OF MIAMI MONUMENT LINE, SOUTH 09 DEGREES 33 MINUTES 21 SECONDS EAST FORA DISTANCE OF 139.74 FEET; THENCE SOUTH 89 DEGREES 51 MINUTES 49 SECONDS EAST FOR A DISTANCE OF 140.96 FEET; THENCE SOUTH 56 DEGREES 58 MINUTES 03 SECONDS EAST FOR A DISTANCE OF604,49 FEET; THENCE SOUTH 65 DEGREES 50 MINUTES 46 SECONDS. EAST FOR A DISTANCE OF 470,52 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH THE WEST LINE OF THE "BAYWALK AREA" AS DESCRIBED IN THE WARRANTY DEED DATED JULY 16, 1985, AND FILED JULY 31, 1985, UNDER CLERK'S FILE NO. 85R-231126 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 27 DEGREES 13 MINUTES 14 SECONDS EAST ALONG SAID WEST LINE OF SAID "BAYWALK AREA" FOR A DISTANCE OF 148.28 FEET TO A POINT DESIGNATED PL-14 IN SAID WARRANTY DEED; SAID POINT BEARS SOUTH 57 DEGREES 16 MINUTES 29 SECONDS WEST AND IS 77.25 FEET DISTANCE FROM A U,S. ARMY CORP OF ENGINEERS STATION BFP-1; SAID STATION BEING A CHISELED "X" IN A CONCRETE MIAMI 3618280,19 1198240643 EXHIBIT A-1 BULKKAD; THENCE SOUTH 85 DEGREES 27 MINUTES 43 SECONDS EAST ALONG THE • NORTH LINE OF SAID "BAYVVALK AREA'FOR A DISTANCE OF 49.24 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH A. LINE 65,00-FEET NORTHWESTERLY OF AND PARALLEL WITH THE METROPOLITAN MIAIVII-DADE COU.NTY BULKHEAD LINE AS RECORDED IN PLAT BOOK 74, AT PAGE 18 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 27 DEGREES 17 MtNUTES 27 SECONDS EAST ALONG SAID LINE 65,-00 FEET NORTHWESTERLY OF -AND PARALLEL WITH THE SAID METROPOLITAN MlAMI-DADE COUNTY BULKHEAD LINE FOR A DISTANCE 0E27654 FEET TO THE POINT OF BEGINNING OF A PARCEL OF LAND TO BE KNOWN AS "SKYR1SE MIAMI; SAID LAST DESCRIBED EIGHT COURSES BEING ALONG A PORTION OF THE SOUTHERLY LIMITS OF THE "RETAIL PARCEL" AS RECORDED IN OFFICIAL RECORDS BOOK 12684 AT PAGE 157 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 62 DEGREES 47 MINUTES 38 SECONDS WEST FOR A DISTANCE OF 170.43 FEET; THENCE NORTH 27 DEGREES 12 MINUTES 22 SECONDS EAST FORA DISTANCE OF 508.47 FEET TO A POINT OF INTERSECTION WITH THE EXISTING BULKHEAD LINE OF THE "MARINA"; THENCE SOUTH 40 DEGREES 20 MINUTES 40 SECONDS EAST ALONG SAID EXISTING BULKHEAD LINE.OF SAID . "MARINA" FOR A -DISTANCE OF 185.10 FEET TO A POINT OF INTERSECTION WITH SAID LINE .65.00 FEET NORTHWESTERLY OF AND PARALLEL WITH SAID METROPOLITAN MIAMI-DADE COUNTY BULKHEAD UNE; THENCE SOUTH 27 DEGREES 17 MINUTES 27 SECONDS WEST ALONG SAID LINE 65.00 FEET NORTHWESTERLY OF AND PARALLEL WITH SAID METROPOLITAN MIAMI-DADE COUNTY BULKHEAD LINE FOR A DISTANCE OF 437.78 FEET TO THE POINT OF BEGINNING; SAID LAST DESCRIBED COURSE ALSO BEING ALONG A PORTION OF THE LIMITS OF THE SAID "RETAIL PARCEL". ALL LYING AND BEING IN A PORTION OF JAMES HAGAN DONATION (SECTION 37) TOWNSHIP 54 SOUTH, RANGE 42 EAST, CITY OF MIAMI, MIAMI-DADE COUNTY, FLORIDA. Parcel 2A: Non-exclusive easements for pedestrian and vehicular ingress, egress and access over and across the "Access Parcel" legally described as follows: COMMENCE AT THE NORTHEAST CORNER OF BLOCK 61 NORTH OF THE PLAT OF Al.. KNOWLTON MAP OF MIAMI, AS RECORDED IN PLAT BOOK "B".AT PAGE 41; OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 89 DEGREES 58 MINUTES 18 SECONDS EAST ALONG THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF SAID BLOCK 61 NORTH OF SAID PLAT OF A.L. KNOWLTON MAP OF MIAMI FORA DISTANCE OF 184.07 FEET; THENCE SOUTH 24 DEGREES 26 MINUTES 29 SECONDS EAST FOR A DISTANCE OF 254.19 FEET TO A POINT OF INTERSECTION - WITH THE SOUTH LINE OF PORT -BOULEVARD AS RECORDED IN OFFICIAL RECORDS BOOK 6811 AT PAGE 240 OFTHE PUBLIC RECORDS OF MIAIVII-DADE COUNTY, FLORIDA; THENCE SOUTH 12 DEGREES 57 MINUTES 37 SECONDS EAST FOR A DISTANCE OF 7.35 FEET TO A POINT OF INTERSECTION VVITH A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THE CITY OF MIAMI MONUMENT LINE OF BISCAYNE BOULEVARD; THENCE SOUTH 16 DEGREES 51 MINUTES 29 SECONDS EAST ALONG SAID LINE 210,00 FEET EASTERLY OF AND PARALLEL WITH SAID CITY OF MIAMI MONUMENT LINE FOR A DISTANCE OF 396.34 FEET; THENCE ALONG A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THE SAID CITY OF MIAMI MONUMENT LINE, SOUTH 09 DEGREES 33 MINUTES 21 SECONDS EAST FOR A DISTANCE OF 139.74 FEET; MIAMI 3618280.19F 71982/40643 EXHIBIT A-2 THENGE SOUTH 89 DEGREES 61 MINUTES 49 EAST FOR A DISTANCE OF 140.96 FEET; THENCE SOUTH 56 DEGREES 58 MINUTES 03 SECONDS EAST FORA DISTANCE OF 604.49 FEET; THENCE SOUTH 65 DEGREES 50 MINUTES 46-SECONDS EAST FOR A DISTANCE OF 470.52 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH THE WEST LINE OF THE "BAYVVALK AREA AS DESCRIBED IN WARRANTY DEED DATED JULY 14, 1985, AND FILED JULY 31, 1985 UNDER CLERK'S FILE No, 85R-231126 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 27 DEGREES 13 MINUTES 14 SECONDS EAST ALONG SAID WEST LINEDF SAID "BAYVVALK AREA" FOR A DISTANCE. OF 148.28 FEET TO A POINT DESIGNATED PL-14 IN SAID WARRANTY DEED; SAID POINT BEARS SOUTH 57 DEGREES 16 MINUTES 29 SECONDS WEST AND IS 77,25 FEET DISTANCE FROM A U.S. ARMY CORP OF ENGINEERS STATION BFP-1; SAID STATION•E3EING A CHISELED "X" IN A CONCRETE BULKHEAD; THENCE SOUTH 85 DEGREES 27 MINUTES 43 SECONDS WEST ALONG THE NORTH LINE OF SAID "BAYWALK AREA" FOR A DISTANCE OF 5,85 FEET, MORE OR LESS, TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL; SAID LAST DESCRIBED SEVEN COURSES BEING ALONG A PORTION OF THE SOUTHERLY LIMITS OF THE "RETAIL PARCEL" AS RECORDED IN OFFICIAL RECORDS BOOK 12684 AT PAGE 157 OF THE PUBLIC RECORDS.OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 27 DEGREES 17 MINUTES 27 SECONDS EAST -FOR A DISTANCE OF 180.86 FEET TO A POINT OF CURVATURE OF A CIRCULAR CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 49.00 FEET; THENCE ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF 27.07 FEET THROUGH A CENTRAL ANGLE OF 31 DEGREES 39 MINUTES 29 SECONDS TO A POINT OF TANGENCY; THENCE NORTH 05 DEGREES 19 MINUTES 13 SECONDS WEST FOR A DISTANCE OF 70.44 FEET TO A POINT OF CURVATURE OF A CIRCULAR CURVE, CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 9.00 FEET; THENCE ALONG SAID CURVE TO THE LEFT FOR AN ARO DISTANCE OF 9.01 FEET THROUGH A CENTRAL ANGLE OF 57 DEGREES 22 MINUTES 55 SECONDS TO A POINT OF TANGENCY; THENCE NORTH 62 DEGREES 42 MINUTES 29 SECONDS WEST FOR A DISTANCE OF 68.59 FEET; THENCE NORTH 27 DEGREES 17 MINUTES 31 SECONDS EAST FOR A DISTANOE OF 6.35 FEET; THENCE NORTH 62 DEGREES 42 MINUTES 29 SECONDS WEST FOR A DISTANCE OF 8.96 FEET; THENCE NORTH 27 DEGREES 12 MINUTES 22 SECONDS EAST FOR A DISTANCE OF 16.65 FEET; THENCE SOUTH 62 DEGREES 47 MINUTES 38 SECONDS EAST FORA DISTANCE OF 170.43 FEET TO A POINT OF INTERSECTION WITH A LINE 65,00 FEET NORTHWESTERLY OF AND PARALLEL WITH THE METROPOLITAN MIAMI-DADE COUNTY BULKHEAD LINE AS RECORDED IN PLAT BOOK 74 AT PAGE 18. OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 27 DEGREES 17 MINUTES 27 SECONDS WEST ALONG SAID LINE 65,00 FEET NORTHWESTERLY OF AND PARALLEL WITH THE SAID METROPOLITAN MIAMI-DADE COUNTY BULKHEAD -LINE FORA DISTANCE OF 276.54 FEET; SAID LAST DESCRIBED COURSE ALSO BEING ALONG A PORTION OF THE SOUTHERLY LIMITS OF THE SAID "RETAIL PARCEL"; THENCE NORTH 85 DEGREES 27 MINUTES 43 SECONDS WEST ALONG THE NORTH LINE OF SAID "BAYWALK AREA" FOR A DISTANCE OF 43.39 FEET TO THE POINT OF BEGINNING. ALL LYING AND BEING IN A PORTION OF THE JAMES HAGAN DONATION (SECTION 37) TOWNSHIP 54 SOUTH, RANGE 42 EAST, CITY OF MIAMI, MIAMI-DADE COUNTY, FLORIDA. !Damp! 2B: MIAMI 3618280,19F 71982/411643 EXHIBIT A-3 Non-exclusive easements for pedestrian -and vehicular ingress, eg ress and access over and across the "Access Parcel" legally described as follows: COMMENCE AT THE NORTHEAST CORNER OF BLOCK 61 NORTH OF THE PLAT OF AL. KNOWLTON MAP OF MIAMI, AS RECORDED IN PLAT BOOK "B" AT PAGE 41, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 89 DEGREES 58 MINUTES 18 SECONDS EAST ALONG THE EASTERLY PROLONGATION OF THE NORTHERLY LINE QF SAID BLOCK 61 NORTH OF -SAID PLAT OF Al. KNOWLTON MAP OF MIAMI FORA DISTANCE OF 184.07 FEET; THENCE SOUTH 24 DEGREES 26 MINUTES 29 SECONDS EAST FOR A DISTANCE OF 254.19 FEET TO A POINT OF INTERSECTION WITH THE SOUTH LINE OF PORT BOULEVARD AS RECORDED IN OFFICIAL RECORDS BOOK 6811 AT PAGE 240 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 12 DEGREES 57 MINUTES 37 SECONDS EAST FOR A DISTANCE OF 7.35 FEET TO A POINT OF INTERSECTION WITH A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THECITY OF MIAMI MONUMENT LINE OF BISCAYNE BOULEVARD; THENCE SOUTH 16 DEGREES 51 MINUTES 29 SECONDS EAST ALONG SAID LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH SAID CITY OF MIAMI MONUMENT LINE FOR A DISTANCE OF 396.34 FEET; THENCE CONTINUE ALONG A LINE 210.00 FEET EASTERLY OF AND PARALLEL -WITH SAID CITY OF MIAMI MONUMENT LINE, SOUTH 09 DEGREES 33 MINUTES 21 SECONDS EAST FOR A DISTANCE OF 139.74 FEET; THENCE SOUTH 89 DEGREES 51 MINUTES 49 EAST FOR A DISTANCE OF 140.96 FEET; THENCE SOUTH 56 DEGREES 68 MINUTES 03 SECONDS EAST FOR A DISTANCE OF 604.49 FEET; THENCE SOUTH 65 DEGREES 50 MINUTES 46 SECONDS EAST FOR A DISTANCE OF 470.52 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH THE WEST LINE OF THE "BAYWALK AREA" AS DESCRIBED IN WARRANTY DEED DATED JULY 14, 1985, AND FILED JULY 31, 1985 UNDER CLERK'S FILE No, 85R-231126 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; SAID POINT ALSO BEING THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL; THENCE NORTH 27 DEG.REES 13 MINUTES 14 SECONDS EAST FOR 96.68 FEET; SAID LAST DESCRIBED SIX COURSES BEING ALONG A PORTION OF THE SOUTHERLY LIMITS OF THE "RETAIL PARCEL" AS RECORDED IN OFFICIAL RECORDS BOOK 12684 AT PAGE 157 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 72 DEGREES 24 MINUTES 54 'SECONDS -WEST FOR 144.86 FEET.; THENCE SOUTH 66 DEGREES 50 MINUTES 46 SECONDS EAST ALONG A PORTION OF THE SAID SOUTHERLY LIMITS OF THE SAID "RETAIL PARCEL" FOR 102.93 FEET TO THE POINT QF BEGINNING. ALL LYING AND BEING IN A PORTION OF THE JAMES HAGAN DONATION (SECTION 37) TOWNSHIP 54 SOUTH, RANGE 42 EAST, CITY OF MIAMI, MIAMI-DADE COUNTY, FLORIDA. Parcel 2C: Non-exclusive easements, to the extent of Ground Tenant's rights. therein, for pedestrian and vehicular ingress, egress and access over and across the roadways, passageways, sidewalks and staircases, as applicable, located within the "Access Parcel" depicted and labeled "Parcel 2C" an the sketch attached hereto at the end of this Exhibit "A" Parcel 3A: MIAMI 3618280,19F 71982/40643 EXHIBIT A-4 Non-exclusive easements, to the extent of Ground Tenant's rights therein, for pedestrian and vehicular ingress, egress and access over and across the "Access Parcel" legally described as -follows: COMMENCE AT THE NORTHEAST CORNER OF BLOCK 61 NORTH OF THE PLAT OF A.L, KNOWLTON MAP OF MIAMI, AS RECORDED IN PLAT BOOK "B" AT PAGE 41, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE N'ORTH 89 DEGREES 58 MINUTES 18 SECONDS EAST ALONG THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF SAID BLOCK 61 NORTH OF SAID PLAT OF AL. KNOWLTON MAP OF MIAMI FORA DISTANCE OF 184.07 FEET; THENCE SOUTH 24 DEGREES 26 MINUTES 29 SECONDS EAST FOR A DISTANCE OF 254,19 FEET TO A POINT OF INTERSECTION WITH THE SOUTH LINE OF PORT BOULEVARD AS RECORDED IN OFFICIAL RECORDS BOOK 6811 AT PAGE 240 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 12 DEGREES 57 MINUTES 37 SECONDS EAST FOR A DISTANCE OF 7.35 FEET TO A POINT OF INTERSECTION WITH A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THE CITY OF MIAMI MONUMENT LINE OF BISCAYNE BOULEVARD; THENCE SOUTH 16 DEGREES 51 MINUTES 29 SECONDS EAST ALONG SAID LINE 210,00 FEET EASTERLY OF AND PARALLEL WITH SAID CITY OF MIAMI MONUMENT LINE FOR A DISTANCE OF 396.34 FEET; THENCE -CONTINUE ALONG A LINE 210.00 FEET EASTERLY OF AND PARALLEL WITH THE SAID CITY OF MIAMI MONUMENT LINE, SOUTH 09 DEGREES 33 MINUTES21 SECONDS EAST FOR A DISTANCE OF 139.74 FEET; THENCE SOUTH 89 DEGREES 51 MINUTES 49 EAST FOR A DISTANCE OF 140.96 FEET; THENCE RUN SOUTH 56 DEGREES 58 MINUTES 03 SECONDS EAST FOR A DISTANCE OF 604.49 FEET; THENCE SOUTH 65 DEGREES 50 MINUTES 46 SECONDS EAST FOR A DISTANCE OF 470.52 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH THE WEST LINE OF THE "BAYWALK AREA" AS DESCRIBED IN WARRANTY DEED DATED JULY 14, 1985, AND FILED JULY 31, 1985 UNDER CLERK'S FILE No, 85R-231126 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; SAID POINT ALSO BEING THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL; THENCE NORTH 27 DEGREES 13 MINUTES 14 SECONDS EAST ALONG THE WEST LINE OF SAID "BAYWAEKAREA" FOR A DISTANCE OF 148,28 FEET; TO A POINT DESIGNATED PL-14 IN SAID WARRANTY DEED; SAID POINT BEARS SOUTH 57 DEGREES 16 MINUTES 29 SECONDS WEST AND IS 77.25 FEET DISTANCE FROM A U.S. ARMY CORP OF ENGINEERS STATION BFP-1; SAID STATION BEING A CHISELED "X" IN A CONCRETE BULKHEAD; THENCE SOUTH 85 DEGREES 27 MINUTES 43 SECONDS EAST ALONG THE NORTH LINE OF SAID "BAYWALK AREA" FOR A DISTANCE OF 49.24 FEET, MORE OR LESS, TO A POINT OF INTERSECTION WITH A LINE 65.00, FEET NORTHWESTERLY OF AND PARALLEL WITH THE METROPOLITAN MIAMI-DADE COUNTY BULKHEAD LINE AS RECORDED IN PLAT BOOK 74 AT PAGE 18 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; SAID LAST DESCRIBED SEVEN COURSES BEING ALONG A PORTION OF THE SOUTHERLY LIMITS OF THE ."RETAIL, PARCEL" AS RECORDED IN OFFICIAL RECORDS BOOK 12684 AT PAGE 157OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 27 DEGREES 17 MINUTES 27 SECONDS WEST ALONG SAID LINE 65.00 FEET NORTHWESTERLY OF AND PARALLEL WITH THE SAID METROPOLITAN MIAMI-DADE COUNTY BULKHEAD LINE FOR A DISTANCE OF 221.97 FEET; THENCE NORTH 62 DEGREES 46 MINUTES 46 SECONDS WEST FORA DISTANCE OF 45.16 FEET; THENCE NORTH 27 DEGREES 13 MINUTES 14 SECONDS EAST ALONG THE SOUTHWESTERLY PROLONGATION OF THE SAID WEST LINE OF SAID "BAYWALK AREA" FOR 54,70 FEET TO THE POINT OF BEGINNING, MIAMI 36182,8039F 71982/40643 EXHIBIT A-5 ALL LYING AND BEING IN A PORTION OF THE JAME-S HAGAN DONATION (SECTION 37) TOWNSHIP 54 SOUTH, RANGE 42 EAST, CITY OF MIAMI, MIAMI-DADE COUNTY, FLORIDA, Parcel 3-B: Non -ex -elusive easements, to the extent of Ground Tenant's rights therein,. -for pedestrian and vehicular ingress, egress and access aver and across the roadways, passageways, sidewalks and staircases, as applicable, located within the "Access Parcel" depicted and labeled "Parcel 3B" on the sketch attached hereto at the end of this Exhibit "A" Parcel 4: (I) Non-exclusive easements for (a) ingress, egress and parking, as more particularly described and provided for in the Sub -Ground Lease, over portions of the Shopping 'Center and Parking Garage, as such terms are defined in the Sub -Ground Lease, for the purposes specified in the Sub -Ground Lease; (b) access within •the "Hard Rock" receiving area. for pedestrian and vehicular ingress and egress to any storage area, as provided for in the Sub -Ground Lease, underneath the contemplated stairs and ramp to be located within Parcel 2A; (o) reciprocal encroachment of underground or surface foundations,. footers and an expansion joint along the common boundary line of the south, southwest and west boundaries of Parcel 2A (where such boundaries abut the "Hard Rook" receiving area), but only to the extent of a maximum width of six (6) feet into said receiving area from the faces of said boundaries, as well as access for the maintenance, repair and replacement of such foundations, footers and expansion joint, and the wall of the other improvements that they support, as set forth and subject to the limitations contained in the Sub -Ground Lease (such maintenance, repair and replacement to be coordinated with Ground Tenant in advance); and (2) exclusive easement for parking in such portions of the Parking Garage, as mutually determined by Ground Tenant and Sub -Ground Tenant, for the purposes specified in the Sub -Ground Lease, MIAMI 3618280.19F 71982/40643 EXHIBIT A-6 ,..1nlllmuxu»nwx.N.,atdvnwwwwuuNuwxllNµµµHxNINIIIµµuN1µM11ipl..............14 upmµaµylµNNi.1111 NN-14.M Mm.10111 mN 111/0 xnmNlµ1.1.WxI1Mµ.111MMINuxMmmµnnluuunulmnumnnulwwxvnva1.104 tµwww 1uwmnnlnwlnwnamumd ' 04. 1,...1nwnwrovmmmgwmw 24.1.1 uaulu1.0.41lwl.wl .1.011.1inum..ca m mm tIONKIVAIRMU vdwawwwlwmlxWmlxw.4.11xw4tx1µN11opc.1 11.1 ...n. mn»mmlmrtlnmamrnuamIti.M mldmNIP.M 111.. ..11.1Knmulwmvmaaw ..1.1 01 Po IWW. µ..tri rxmnN+x MIAMI 3618280.19I1' 71982/40643 EXMBIT A-7 Exhibit B to Ground Lease Recognition and Non -Disturbance Agreement Description of Approved Plans DRAWING Il G INDEaomiuMnmenNrOnr,IMernX 61MOSE, %w w �mww •t—_rrwwxH.a A uMI rurAr w wwwuwwmnr w., write ii" ww wWmwWww wwµmmlr? 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" m� ••^[•�• �Ue�•iwi' }�ttgVp'NY.CuialYinaitiaott ••w •1vFf..+w..uwww�wxw g q8 yjyn`{I'7y1A( 'fr rv"n•.uwxvuwm„rmrvn -vmmrrw u'G 144-£H`algtoonA w"rwxr.nx.wvl.u.wnwmwr wvwnxww �,wr oi it wan. a�w lwrxm mTw..xw wnaGrlx.•,• �w.,� _^ yj nn �yy urr11u1nrymrwr.rernw.wrnwwru.vr.+uwwwwunxwrymxm}rwW✓/•rxrrnxlywwgvwxyvwwwl]wwjvwmwum.n.nMvrvrvw�•wwwvwYrcvww.nr wT4S A5i" 20.' mwwN,m wuwuxwuwnvwwnww.wwv.n.x.�v...&it.iAFBi7'�:1't016'1.'�fS{i:l1iN w.,.w,,w"m.rwn3��� r.w,.www wwxrwmww xrw xw mrnr.•n.wr�.•++.wrww". nlnpm .mwm.w.w mrrwwrnwuuuluwVnwxw.r wwnwwwwa wwwu. u.....mv axwnwwwurm w..n••fx7G°n rr� uw,wxwmw �r tl ing EV4 .u1V�,yN.rm�.+'n, w3 Mr w.w�ww Mew ; i G_S nm•w. w x r w> w mw x M aE it E�LiT-- ' ETAT--n M wwmw xw...'w ,. ]i ‘ n .r. «x. a Yow Wm VOivElimFge,EsMaK ,„ w "`"""^".",x"xnw,n,nx,w..wu,w m w iclwwwrnWw xww ^m ^muyr„ w nTEiit�µ ..,..,,rm:ww.xrx,wwwwxwn., xww,r.,wx,rrr.w. ...tx..!p ...w..�.w.,w..x.x,x,.r.wwx.x..�!m��w WNW'<w w rmW,rwnxwww«„«_xww M1AM13618280.19F 71982/40643 EXHIBIT B-1 Exhibit C to Ground Lease Recognition and Non -Disturbance Agreement SUBLEASE RECOGNITION AND NON -DISTURBANCE AGREEMENT THIS AGREEMENT, made as of the day of , 20_, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, whose address is ("Landlord") • and having its principal office at ("Space Lessee"). A, Landlord is lessor under that certain lease (the "Ground Lease") with Bayside Marketplace, LLC, a Delaware limited liability company ("Ground Tenant"), successor by merger to Bayside Center Limited Partnership, a Maryland limited partnership, as lessee, dated October 15, 1985, as amended by First Amendment dated August 19, 1986, Second Amendment • dated November 2A, 1987, Third Amendment dated April 15, 1993 and Fourth Amendment dated , which demises certain real property (the "Premises") oommonly known as Bayside, located in Miami, Florida. A short form of the Ground Lease was recorded in Book at Page of the Public Records of Miami -Dade County, Florida, B. Ground Tenant sub -ground leased at part of its lessee's interest under the Ground Lease to SkyRise Miami, LLC, a Florida limited. liability company ("Sub -Ground. Tenant") pursuant to that certain Sub -Ground Lease (the "Sub -Ground Lease") dated March 29, 2013, as amended, which portion is more particularly described on Exhibit A attached hereto and made a • part hereof (collectively, the "SkyRise Phase"). A short form of the Sub -Ground Lease was recorded in Book at Page of the Public Records -of Miami -Dade County, Florida, C. Pursuant to a Ground Recognition Agreement between Landlord and Sub -Ground Tenant, the term of the Sub -Ground Lease is coterminous with the term of the Ground Lease, including all available renewal options (the Ground Lease has a current term that runs through , with options to extend the term through ), whether now existing or hereafter granted and whether or not exercised, and the Sub -Ground Lease becomes a direct lease between Landlord and Sub -Ground Tenant if the Ground Lease naturally expires prior to the natural expiration of the Sub -Ground Lease, D. Pursuant to a Lease dated as of , 20_, by and between Sub-Crround Tenant and Space Lessee (the "Space Lease), Sub -Ground Tenant leased to Space Lessee a portion of the SkyRise Phase, which portion. is designated as the 'Demised Premises" on Exhibit B annexed hereto and made a part hereof, for an initial term of years (commencing as provided in the Space Lease), with options to renew thereafter for years each. NOW, THEREFORE, it is agreed as follows: 1, For so long as Space Lessee is not in default of any of its obligations under the Space Lease beyond any applicable notice and cure periods as would permit Sub -Ground Tenant IVIIAMI 3618280,191' 71982/40643 EXHIBIT C-1 to re-enter the Demised Premises and/or terminate the Space Lease, Landlord shall not disturb or deprive Space Lessee in or of its possession or its rights to possession of the Demised Premises or of any right or privilege granted to or inuring to the benefit of Space Lessee under the Space Lease, nor will Landlord bring any action against Space Lessee to accomplish same. 2. If the Ground Lease (or the Sub -Ground Lease, to the extent it has become a direct lease (such direct lease being in replacement of or substitution for the Ground Lease) between Landlord and 'Sub.Ground Tenant) terminates for any reason other than on (or such later date as the Ground Lease or Sub -Ground Lease may terminate as referenced in Recital C above), and provided Space Lessee attorns to Landlord (which it shall only do if the Sub -Ground Lease has also terminated), the Space Lease shall continue in. full force and effect, notwithstanding such termination of the Ground Lease (or the Sub -Ground Lease, to the extent it has become a direct lease between Landlord and Sub -Ground Tenant), as a direct space lease (su.ch a direct space lease would be in replacement of or substitution for the. Ground Lease) between Landlord and. Space Lessee for the remainder of the term of the Space Lease, without the necessity of exeeuting a new space lease, and on the same terms and conditions as are in effect under the Space Lease immediately preceding the termination of the Ground Lease (or the Sub -Ground Lease, to the extent it has become a direct lease between Landlord and Sub -Ground Tenant). 3. Any notices, consents, approvals, submissions, demands or other communications (hereinafter collectively referred to as "Notice) given under this Agreement shall be in writing. Unless otherwise required by law or governmental regulation, Notices shall be deemed given if sent by registered or certified mail, return receipt requested, postage prepaid (a) to Landlord, at the address of Landlord as hereinabove set forth, with a copy to City of Miami Public Facilities Director, 444 SW 2nd Av., 3rd Floor, Miami, Fl. 33130-1910, or such other address as Landlord may designate by notice to the other pardes hereto, (b) to Space Lessee, then in duplicate under. separate Offer, one copy to and one copy to or such other addresses or persons as Space Lessee may designate by Notice to the other parties hereto. Delivery by nationally recognized overnight courier service or „by hand delivery, with all charges prepaid, may be substituted for registered or certified mail, All Notices shall be deemed served or given on the date received (as evidenced by the return receipt or courier's receipt for delivery) or the date delivery was refused or unavailable due to an unnoticed change .of address, 4. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the party against whom the same is sought to be asserted. 5. This Agreement shall run with the Demised Premises and be binding upon and shallinure to the benefit of the parties hereto and. their respective heirs, legal representatives, successors, assigns and subleases. 6. Either party may record a -copy of this instrument among the Public Records of Miami -Dade County, Florida, at its cost. MIAMI 3618280.19F 71982/40643 EXHIBIT C-2 IN WITNESS WHEREOF, Landlord has caused this Sublease Recognition and Non Disturbance Agreement -between Landlord and to be executed under seal the date :first above 'written. NOTE: Exhibit C is not being signed at this time. Ids being attached as an Exhibit to have concurrence as to the format. WITNESSES (as to City Manager and City THE CITY OF MIAMI, a municipal Clerk): corporation of the State of Florida By: By: Print Name: Print Name: Daniel .1, Alfonso Title: Witness Title: City Manager By: Print Name: Title: Witness APPROVED A$ TO LEGAL FORM ATTEST: AND CORRECTNESS: By: By: Print Name: Victoria Mendez Print Name: Todd Hannon • Title: City Attorney Title: City Clerk STATE OF FLORIDA ) SS.: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me . this day of , 2O , by , the City Manager, and ., the City Clerk, of the City of Miami, a Florida municipal •corporation, in the capacity aforestated; each such person is personally known to .me, Sign Name: Print Name: Notary Public My Commission Expires Serial No. (None if blank): [NOTARIAL SEAL] MIAMI 3618280.19F 71982/40643 EXHIBIT C-3 IN WITNESS WHEREOF, Space Lessee has caused this Sublease Recognition and Non - Disturbance Agreement between to be executed under seal the date first above written. WITNESSES: a By: By: Print Name: Print_Name: Title: Witness Title: By: .[Entity Seal] Print Name: Title: Witness STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS.: The foregoing instillment was acknowledged before me this day of 20_, by as of in the capacity aforestated; such person is personally known to me. Sign Name: Print Name: Notary Public My Commission Expires Serial• No. (None if blank): [NOTARIAL SEAL] MIAMI 3618280.191 71982/40643 EXHIBIT C-4 EXHIBIT D Marina Work and Location for Temporary Marina Facilities ..............•.>...,.,,•,,.,..,..,,,,,, ........,.#...... ice_ s giow t 1... affigiOUTORIKIM wwimdi& maw ei l~u k at-okailt t g : Sd i g.;?'C eR lomow: WON. ....... taut RI.nS'U'i MIINd.. � , Tm i i' aior__: ; • V MOW: tihr'fg-AWKINOWA. Wait • p{,��O..Wit a_py,�yy.......... _. �......_..._......,...'..... -1 l int . .t . 2 MIAMI3618280.19F 71982/40643 EXHIBIT D-1 EXHIBIT E INSURANCE REQUIREMENTS FOR SICYR.ISE MIAMI, LLC MARINA COMPONENT x. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsement --Required City of Miami listed an additional .insured Contingent and Contractual Exposures Premises/Operations Liability Explosion, Collapse and Underground Hazard Loading and Unloading lx. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto .Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. End.orsements Required City of Miami listed as an additional insured Ill. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an. accident, each accident. $1,000,000 for bodily injury caused by disease, each employee MIAMI 3618280.19Y 71982140643 EXHIBIT E-1 $1,000,000 for bodily injury caused by disease; policy limit IV. Umbrella. Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami listed as an additional insured Installation Floater/Builder's Risk (If Applicable). Causes of Loss: Special Fora. with. Replacement Cost Deductible: $25,000 AOP, 5% Whad & Hail, Flood City of Miami listedas loss payee VI. Payment and Performance Bond City of Miami listed as an obligee VII. Protection and Indemnity Coverage/Jones Act Included Limits of Liability $2,000,00.0 VIII, Contractor's Professional and Pollution Liability, If Applicable Bach Occurrence Policy Aggregate $1,000,000 S 1,000,000 City of Miami listed as an additional insured with regards to pollution liability.. Retro date applies on professional liability. The above policies shall provide the City of Mian:ti with written notice of cancellation or material change from the insurer not less than (30) days (ten days in the ease of non- payment of premium) prior to any such cancellation or material change, or in accordance with policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required. above: The company must be rated no Less than "A-" as to -management, and no less than "Class V"as to Financial Strength., by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. MIA.MI3618280.19r 7198Z/40643 EXHIBIT E-2 E JUE1T "F4" INSURANCE REQUIREMENTS FOR SUBTENANTS I. Commercial General Liability A, Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit S2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 Damage to Rented Premises '$ 100,000 B. Endorsements Required City of Miarni listed as an additional insured Contingent Liability & Contractual Liability Premises & Operations Liability Additional Insured Endorsement required Primary and. Non Contributory Liability IL Business Automobile Liability A, Limits of Liability. Bodily Injury and Property Damage Liability Combined. Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident B. Endorsements Required City of Miami listed as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $1,000,000 Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit 1V. Business Personal Property Subtenant shall maintain and afford coverage for business personal property, including leased hold improvements subject to special forth causes of loss (All Risk) including wind and hail with a valuation option of replacement cost, including coverage for business interruption; loss of income and extra expense coverage on an actual loss sustained basis, or alternate coverage form, covering the interruption or suspension of business operations, the necessary extra expense incurred, and any loss of income with consideration to the continuation of all normal charges and continuing expenses, including continuing expenses acquired through contractual obligations, and payroll resulting from a covered cause of loss. Subtenant shall also maintain in place coverage for flood insurance, if applicable. V. Liquor Liability (to the extent Subtenant serves liquor) A. Limits of Liability Bach Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami listed as an additional insured The above policies .shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwicic, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Subtenant shall make available, and provide the City upon request, with copies of all insurance policies, including any and all applicable endorsements, EXHIBIT "F-2" INSURANCE REQUIREMENTS FOR TOWER CONSTRUCTION SlcyR se shall maintain or cause its contractors and subcontractors to maintain the insurance coverages outlined in this exhibit. With the exception of professional liability insurance, which may be written on a claims -made basis, all policies shall be written on an occurrence basis and be issued by companies lawfully authorized to write insurance under the laws of the State of Florida, including an authorized surplus lines insurer, Each insurer shall have a current financial strength rating of not less than "A-" VIII as assigned by A.M. Best, or equivalent rating assigned by a similar rating agency acceptable to SkyRise. I. OCIP/CCIP/Traditional General Liability COVERAGE A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence/Aggregate $ 50,000.,000 B. Endorsements Required City of M:iaini listed as an additional insured Developer listed as an additional insured Completed Operations 10 Years or Statute of Repose Employees included as insured Contractual exposures Waiver of Subrogation in favor of City of Miami and Developer Premises/Operations liability Explosion, Collapse and Underground Hazard Loading and Unloading Mobile Equipment (Contractors Equipment) whether owned, leased, Borrowed, or rented by the contractor or employees of the contractor .(not applicable if OCIP — property damage to contractors equipment would be covered by each individual contractor working on -site. If a contractor's mobile ,equipment causing third party property damage while working on -site, the OCIP coverage could apply). Terrorism Coverage Included IL Business Automobile Liability (to the extent applicable) A, Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miarni included as an Additional Insured 'Developer listed as an additional insured 111, Workers Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury mused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 15,000,000 Aggregate $ 15,000,000 City of Miami and Developer listed as an additional insured-, Umbrella insurance above only pertains as to excess limits for the auto insurance maintained by the owner. VI. Lead Design Professional Liability/Error's & Omissions Primary Limit $5,000,000 VII, Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $100,000 All other Perils 5% Wind &Hail, Earthquake and Flood City of Miami & Developer listed as an additional insured/Loss Payees The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation (10 days in the case of non-payment of premium). EXHIBIT "G" SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT SECOND AM NDMENT TO 1!'IINORITY PARTICIPATION AGREEMENT This Second Amendment to Minority Participation Agreenaent (this "Amendment") is made and entered into this day of . , 2014 ("Effective.l ate") by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to Bayside Center Limited Partnership ("Developer"). VVITNESSETH: WHEREAS, City and Developer entered into that certain Minority Participation Agreement dated as of January 14, 1985, as amended by that certain First Amendment to Minority Participation Agreement dated as of October 17, 1985. and further amended by that certain Release and Settlement Agreement dated as of December 30, 2008 (collectively the "Minority Participation Agreement") setting forth. Developer's obligations with regard to minority participation in connection with the development of the project known as Bayside Marketplace and formerly known as Bayside 'Specialty Center; WHEREAS, concurrently with this Amendment, City and Developer are entering into that certain Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) which provides for, among other things, the extension of the Lease Tenn of the Retail Lease and certain modifications. to Rental (the "Retail Lease Amendment"); and WHEREAS, City and. Developer desire to amend certain .Financial terms of the Minority Participation Agreement as follows: 1, Definitions. All capitalized terms used in this Amendment shall have the definitions ascribed to such terms in the Minority Participation Agreement or the Retail Lease (as amended from tiin.e to time), unless defined or amended in this Amendment. The term "Minority Participation Agreement" shall refer to the Minority Partieipation Agreement, as amended hereby. 2. Foundation Contribution. Section 5.3 of the Minority Participation Agreement is hereby deleted in its entirety and replaced. with the following: Section 5,3 Eoundation Contribution. From and after the :Effective Date, Developer shall pay a Foundation Contribution in the amount of $350,000 (the "Foundation Contribution") annually 1 :on or before the last day of March of each Rental Year during the Lease Term of the Retail Lease. Each annual payment of the Foundation Contribution shall be for the current Rental Year. The Foundation Contribution for any partial Rental Year during the Lease Tern after the Effective Date shall be -prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. The Foundation Contribution shall increase each Rental Year by two percent (2%) over the Foundation Contribution for the immediately preceding Rental Year commencing with the first CPI Adjustment Year for Minimum Base Rental,. as provided in the Retail Lease Amendment, Notwithstanding the foregoing, should the Foundation cease to be a 501(c)(3) tax-exempt organization, the Foundation Contribution shall either (i) be placed in an interest bearing escrow account and paid to the Foundation at such. time as the Foundation shall satisfactorily prove to Developer that it has qualified as a 501(c)(3) tax-exempt organization or (ii) at the written request of the City, be paid to such other nonprofit organization qualified as a 501(0)(3) tax-exempt organization which is reasonably acceptable to Developer and which has goals and purposes similar to the Foundation, The Foundation Contribution shall be the only financial obligation that Developer shall have to the Foundation or such successor non-profit organization specified in (ii) above, The Foundation Contribution for the period prior to the Effective Date shall continue to be paid as provided in Section 5.3 of the Minority Participation Agreement; it being understood and agreed that the Foundation Contribution for the period between January 1, 201,4 and the Effective Date shall be based solely on Net Income Available for Distribution for the Retail Parcel for such period. The Foundation Contribution for the period from. and .after the Effective Date through December 31, 2014 shall be prorated as provided in Section 5.3 of the Minority Participation Agreement, as amended hereby, and paid concurrently with the payment of the 201.5 Foundation Contribution, on or before March 31, 2015. 3, Liberty City Community Revitalization Trust Contributions, (a) Ore-Tirno Contribution. Within fourteen (14) days following the approval of the Ground Lease Referendum (as defined in the Retail Lease Amendment) by the City's electorate, Developer agrees to make a onetime contribution in the amount of $350,000 to the City of Miami (at the address set forth below), which shall allocate the .dollars specifically to the Liberty City Community Revitalization Trust ("One -Thee Contribution"). Provided the Ground Lease 2 Referendum is approved by the City's electorate, the One -Time Contribution shall be made regardless of whether the Ground Lease Referendum is subsequently appealed or challenged; provided, however, that if the Ground Lease Referendum is not approved by the City's electorate, then Developer shall have no obligation to make the One -Time Contribution as provided herein, The One -Time Contribution will be utilized by the voting members of the Liberty City Community Revitalization Trust to tither the organization's mission of economic development in the Liberty City Community Revitalization Trust service area. (b) Annual Contribution. From and after the Tower Fixed Rent Commencement Date (as such term is defined in the Retail Lease Amendment) and for the balance of the Lease Terra of the Retail Lease, Developer shall make an annual contribution in the amount of $100,000 (the "Annual Contribution") to the City of Miami (at the address set, forth below), which shall allocate the dollars specifically to the Liberty City Community Revitalization Trust, on or before the close of City's fiscal year (Le., September 30) of each Rental Year. Each annual payment of the Annual Contribution shall . be for the Current Rental Year. The Annual Contribution for any partial Rental Year during the Lease Term after the Effective Date shall be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. Commencing upon the one-year anniversary' of the Opening Date of the Tower, the Annual Contribution shall increase each Rental Year by one and one-half percent (1.5%) over the Annual Contribution for the immediately preceding Rental. Year, The Annual Contribution will be utilized by the voting members of the Liberty City Community Revitalization Trust to further the organization's mission of economic developinent in the Liberty City Community Revitalization Trust service area, (c) Contribution Address, All payments due to the City under this Section 4 shall be by separate independent cheek payable to the City of Miami, Attention, Office of the City Manager, in care of the Liberty City Community Revitalization Trust, 3500 Pan American Drive, Miami, Florida 33133., 4. Minority, Community Small Business Enterprise ("CSBE") and Community Business Enterprise ("CBE") Participation. Notwithstanding anything to the contrary set forth in the Minority Participation Agreement, solely in- connection with the Renovation Work to be performed by Developer (and not by any Subtenant) as described in Section 5(b) and Exhibit "C" of the Retail Lease Amendment and the corresponding Fourth Amendment to Bayside Parking Garage Lease Agreement (Garage Parcel), Developer agrees to use diligent, good faith efforts to achieve or to cause its general contraotor(s) (collectively, -the "Contractor") to use diligent, good faith efforts to achieve, as applicable, the following goals, which the parties hereto agree are purely aspirational in nature: (a) Fifty percent (50%) of those employed by Contractor in connection with. the Renovation Work shall be minorities, including women, as such term is• currently defined by the laws of the United States of America. In so doing, -Contractor shall seek to employ such persons 3 using the following priorities: first, minorities and women who are residents of the five highest poverty rate index zip oodes in the City; second, City residents in general; third, Miami -Dade County residents who live in the five highest poverty rate index zip codes in 11/Hand-Dade County; and fourth, residents in Miami -Dade County in general. The Contractor shall electronically post job opportunities in established minority related job outreach websites and organizations, including, without limitation, South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible. In connection with the Renovation Work performed by Developer (and not by any Subtenant), Developer shall muse the Contractor to pay a minimum hourly wage rate of S11,83 if health benefits are not provided to employees and S10.58 if .health benefits are provided to employees. Commencing January 1, 2016 and for the duration of the Renovation Work (each, a "CPI Escalation Year"), the foregoing hourly rates shall be increased on January Isc of the applicable calendar year .by an amount equal to the percentage increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index (the "Index"), Which is the monthly index published by the Bureau of Labor Statistics of -the United States Department of Labor as the Consumer Price Index for All Items, IVIiarni-Ft. Lauderdale, Florida, Base Year 1982-84=100, The CPI adjustment to the minimum hourly wage rates shall hereinafter be referred to as the "CPI Escalation". The CPI Escalation of the minimum hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, City shall select a commercially reasonable comparable index. The CPI adjustment set forth herein shall not result in a reduction of fhe respective minimum hourly wage rates, Developer shall require the Contractor to include the same minimum hourly wage rates in any contracts entered into by the Contractor with its subcontractors for the Renovation Work who will stipulate and agree that they will pay the same minimum hourly wage rates, subject to adjustment, as set forth in this section; (b) Fifteen percent (15%) of the professional services agreements for soft costs, including design, engineering, survey, inspection, testing and legal, in connection with the Renovation Work shall be awarded by Developer to construction related enterprises that are minority (including women) owned, or currently certified by Miami -Dade County as a Community Small Business Enterprise ("CSBE") as set forth in Sec.10-33.01 and Sec, 10-33,02 of the Miami -Dade County Code or as a Community Business Enterprise ("CBE") as set forth in Sec, 2-10.4.01 of the Miami -Dade County Code; and 4 (c) Twenty percent (20%) of the contractual agreements for construction and for construction -related materials, supplies and fixtures in connection with the Renovation Work, including subcontracts, should be awarded by Developer or the Contractor, as the case may be, to construction related enterprises that are minority (including women) owned, or currently certified by Miami -Dade County as a. CSI3E or a CBE. City acknowledges that the Renovation Work may be performed in phases with one or more general contractors and contracts and agrees that the goals set forth above shall pertain to the overall Renovation Work by Developer (and_not by any Subtenant) and Minimum Level of Investment ($27,000,000), in the aggregate, not each individual general contractor or contract for the respective phases. Developer agrees that during all phases of -the Renovation Work, Developer will submit quarterly reports (i.e., on or before the last day of March, June, September and December) demonstrating Developer's or the Contractor's, as applicable, diligent, good faith efforts to achieve the goals set forth in this Section 4 to the City Manager •at• 3 500 Pan American Drive, Miami, Florida 33133. Developer shall further provide to the City Manager, or its designee, together with each quarterly report, certified payroll records from the Contractor and each subcontractor, indicating compliance with the wage requirements set forth in this Section 4. 5. Notices. Wherever any notice is required or permitted under the Minority Participation Agreement, such notice shall be in writing. Any notice or document required or permitted to be delivered under the Minority Participation Agreement shall be deemed to be delivered when it is actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when it is either (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or overnight courier service, addressed to :the applicable party to whom it is being delivered at the respective address for such party as is set out below, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: If to City at: City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-19:10 Attention: City Manager 5 If to Developer at: Bayside Marketplace, LLC c/o General Growth. Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer with a copy to: City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130-:1910 Attention: Public Facilities Director 6. Miscellaneous. with a copy to: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite 1218 Natick, MA 01760 Attention: John Charters (a) Bach of City and Developer hereby acknowledges and agrees that neither is presently aware of any continuing defaults by reason of any act -or omission on the part of the other party under the Lease and that as of the date of execution each party has fulfilled all of its duties and obligations under the Minority Participation Agreement to date, (b) This Ainendment shall be construed and governed in accordance with the laws of the State of Florida, Venue in any actions or proceedings between the parties shall be in Miami -Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and voluntarily waive their right to a jury trial hi any such actions or proceedings. Developer and City each agree to pay their own attorneys' fees in connection with any such actions or proceedings. (c) This Amendment may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all ofwhich shall constitute one and the same instrument. (d) Each party hereby represents and warrants to the other party that (i) it has the full right and authority to enter into this Amendment, and (ii) this Amendment is .a binding and valid document enforceable in accordance with its terms. (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any conflicting provisions in the Minority Participation Agreement. Except as modified hereby, all of the provisions of the Minority Participation A.greernerrt, which are not in conflict with the terns of this Amendrnent, shall remain in fu.11 force and effect, and, as modified hereby, the Minority Participation Agreement is hereby ratified and confirmed in all respects. (f) This Amendment shall be binding upon the parties hereto and their respective successors and permitted assigns. [Remainder of Page Left Blank Intentionally] 6 IN WITNESS WHEREOF, the parties have exoeuted this Amendment as of the Effective Date. ATTEST; THE CITY OF MIAWJT, a municipal corporation of the State of Florida By: By: Todd B. Hannon City Clerk Daniel J. Alfonso City Manager APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS By: By: Victoria Mendez City Attorney STATE OF FLORIDA ) SS.: COUNTYOF MIAMI-DADE Ann -Marie Sharpe Director of Risk Management The foregoing instrument was acknowledged before inc this day Of 2014, by Daniel J. Alfonso, the City Manager, and ,the City Clerk, of the City of Miami, a Florida municipal corporation, in the capacity aforesaid; each such person is personally known to me. Sign Name: Print Name: Notary Public My Commission Expires Serial No. (none if blank): [NOTARIAL SEAL] 7 WITNESSES: BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: By: Print Name: Print Name: Title: Title: By: Print Name: Title: STATE OF ILLINOIS COUNTY OF COOK ) ) ) SS.: The foregoing instrument was acknowledged before me this day of , 2014, by as of Bayside Marketplace, LLC, in the capacity aforesaid; such person is personally known to me. Sign Name: Print Name: Notary Public My Commission Expires: [NOTARIAL SEAL] 8 Serial No. (none if blank): FOURTH AMENDMENT TO AMENDED AND RESTATED LEASE AGRE ENT (RETAIL PARCEL) This Fourth Amendment to Amended and Restated Lease Agreement etail Parcel) (this "Amendment") is made and entered into this day of , 2014 ("Effective Date"), by and between the CITY OF MIAMI, a municipal corporatio of the State of Florida ("City") and BAYSIDE MARKETPLACE, LLC, a Delaware limited 1.. by merger to Bayside Center Limited. Partnership ("Developer" al WHEREAS, City and Developer are the centl1 that certain Amended and Restated Lease Agree ated that certain First Amendment to Amended an ®' " '°ated 1986, as further amended by that certain Seco. Agreement dated as of November 24, 1987, as fu to Amended and Restated Lease Agre ent dated as that certain Release and Settlement ea ent da together with any attachments, exhibzts T at Bayside Marketplace in Miami, Flo Property"). Property"). A memora e� of the Lease, supplemented in Booll�° ,age 319 Florida; WHEREAS, Deve LLC ("SkyRts�e�) , suant amende Sublease' A short fori ' o Public Records of Miaini-D WHER desires to recogn to approval from the regulatory and land dev and recreational tower ility company, successor an. o <� d tenant, respectively, under of Or 15, 1985, as amended by ase Agree =;t dated as of August 19, dment to Ame and Restated Lease by that ce _ hird Amendment 1993 and as ler amended by ecember 30, 2008 (collectively and ease") for certain premises located scribed in the Lease (the "Leased 12684, at Page 157, and ords of Miami -Dade County, nd leasedp rt of the Leased Property to SkyRise Miami, rand Lease dated as of March 29, 2013, as wer Sublease dad as of , 2014 (the "Tower Sublease recorded in Book , at Page , of the orida; and loper ` "ire to modify certain provisions of the Lease, and City ease, on the terms and conditions set forth herein, and subject y Commission, approval of a referendum and any required ermits for construction of the 1000 foot mixed use commercial ated by the Tower Sublease (the "Tower") NOW, THEFORE, in consideration of the foregoing and for other good and valuable consideration, the r eceipt and sufficiency of which are hereby acknowledged, City and Developer hereby agree that he foregoing recitals are true and correct, and fiirther agree as follows: 1. Definiti All capitalized terms used in this Amendment shall have the definitions ascribed to such terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to the Lease (as defined in the first recital above), as modified by this Amendment. The tern "Lease 1 Term" shall refer to the Original Term (as modified in this Amendment ) and any applicable Renewal Terms. 2. Original Term. The Original Tenn, as currently defined in Section 2.1(b) December 1, 1985 and is scheduled to terminate on November hereby amended and extended such that the Original Term no All references in the Lease to the Original Term shall refer to Amendment. Within thirty (30) days after the Effective upon request of City or Developer, shall execute one or amendments to any existing memoranda for the Leas recorded in the Public Records of Miami -Dade termination dates of the modified Original Tenn_ 3. Renewal Terms. the Lease, commenced on , 2030. The Original Term is expires on November 30, 2060. ginal Term as extended by this e City Manager and Developer, itten memoranda for the Lease or such form as will enable them to be y, Floridage t ng forth the beginning and (a) Subject to approval o theQro d Leas dum (as hereina J' defined) by the City's electorate, Section 2.1(c) of e�a - is liereb `e ;ended and restated in its entirety as follows: (c) Rene al= Terms. renew this Le terms and coariti ns, exc up to four (4) add -tonal co - with the first thre a• ®i t final Re��' eac ion oft eSo long as con hn ing at (he tine NSW exercis` each Renew on or befai the 1 which such.c written notice notice of its ex z:wal `Emit other4c ecutive to Renew our (4) options to to 3me upon the same pressly ofided in this Lease, for each called a "Renewal Term"), erms being for fifteen (15) years t (8) years, commencing at the or tli Qi's Renewal Term, as the case may oper's De ault shall not have occurred and be ercises a Renewal Option, Developer may ing the City express written notice thereof (ti) the date that is two (2) years before the date on is to commence or (ii) thirty (30) days following wising Developer that Developer has failed to furnish e applicable Renewal Term by the date set forth in the preceding cla . e (i), which notice shall state in bold capitalized large font letters that such not e constitutes the final notice to Developer of its right to exercise the applicabl Renewal Option. Within sixty (60) days after commencement of a Renewal Term, the City Manager and Developer, upon request of either party shall execute one or more written memoranda in such form as will enable them to be recorded among the Public Records of Miami -Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Lease. The total of all Renewal Terms, if all Renewal Options are validly exercised, is fifty three (53) years. 2 (b) Notwithstanding anything in the Lease or in this Amendment to the contrary, Minimum Base Rental (as defined below) for the first Rental Year of each Renewal Term shall be reset at Fair Market Rent, as defined and determined in accordance with the terms and conditions provided in Exhibit "A" attached hereto, and shall not be subject to adjustment by the CPI Escalation (as defined below). Minimum Base Rental may be increased after the first Rental Year of any Renewal Tenn by the CPI Escalation, as provided in Section 4(c) below. In no event sha the Minimum Base Rental for the second, third or fourth Renewal Terms increase by more t fifteen percent (15%) over the Minimum Base Rental then applible. 4, Rental. Section 2.5 of the Lease is hereby Effective Date, the only scheduled rental payment the following: (a) Amount of Rental. Developer c Leased Property Minimum Base Rental, Percenta applicable, Tower Rent (as defined b : Develop Miami, Department of Finance at the s ~= oted belo City of Miami =ems, t of Final ileasury IV t SW 2""enue, 6tli Floria33130 19`1�fk (b the Eff " P ate, an Origina in in equal annum (" � , � um Base Rei Section 4(c) shall be prorate Term against the to to "Annual Basic Re herein. Minimum ease Rent ed upon the ) timber o entirety. From and . fter the ity under the Lease shall be as ' ental for the to the extent al to the City of 1n Bgsrp Rental sha , be payable by Developer on the first (1 d y of each calen ar month for the balance of the s 41lments. Minimum Base ' ental shall be $1,540,000 per ay be increased by te CPI Escalation, as provided in for any partial cal idar month during the Lease Term umber of days in the part; al calendar month within the Lease ys in the applicable Cale ar month. All references in the Lease ereinafter refer solely t Minimum Base Rental, as set forth (c) Consumer Price Index (CPI) Escalation. (i) Developer agrees that Minimum Base Rental and Tower Fixed Rent, as applicable, shall be increased every Rental Year during the Lease Tenn (each, a "CPI Escalation Year") following the Effective Date by an amount equal to the percentage increase during the year immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982- 84=100. The CPI adjustment to Minimum Base Rental or Tower Fixed Rent, as applicable, shall be hereinafter referred to as the "CPI Escalation." The amount of the CPI Escalation to Minimum 3 Base Rental and Tower Fixed Rent shall be capped at three percent (3%) each time the CPI Escalation is made (the "Maximum CPI Percentage"). The CPI adjustment set forth herein shall not result in a reduction of Minimum Base Rental or Tower Fixed Rent. Notwithstanding anything to the contrary set forth herein, the first CPI Escalation Year with respect to Minimum Base Rental shall be the Rental Year commencing January 1, 2016 and the first CPI Escalation Year wit respect to Tower Fixed Rent shall commence on January 1st of the second (2m) full Lease Year ( such term is defined in the Tower Sublease) of the Tower Sublease. (ii) The CPI Escalation of Minimum Base Rental or Tower Fixed Rent;' as applicable, for the CPI Escalation Year shall be equal to M'nxI.um Base Rental or Tower xed Rent, as applicable, in effect for the Rental Year inunediatrl receding the CPI Escalation. Year multiplied by the "CPI Percentage" (as defined below) not to exceed the Maximui' CPI } Percentage. The CPI Percentage shall equal the fray on (i) whose ' nerator equals the i ti onthly Index published immediately prior to the CPT-sc-ration Year (or .earest reported revious month), and (ii) whose denominator is the sani nthly Index publishe pmmediately pr or to the Rental Year that preceded the CPI Escalation Ye the net reported previous mon ). If the Index is discontinued with no successor Index, s _ elect a coms'ally ; seasonable comparable index, (iii) City shall Developer setting forth the adjusted days of the commence the event Minimum thirty (30) days of rest ng Rent owed for the montliff t compute e CP�E�3scalations ash, Minim, at" e tal each CPI Esea ation Tower Fi suoht Mice, the hav-°apsed in th end a notice, with c., culations, to er Fixed Rent w'Whin sixty (60) socon=as such Index is available. In aes Developer shall p' y to City within ional Mimi um Base Renta' or Tower Fixed current Rental Year. (d erd. age Rent t centage � t s1' be due and payable to City'pursuant to the . terms ondition set forth € —Exhibit ' .attached hereto. As u: ed herein, the term "Percen a. eRent" means ihose atno� described in Exhibit "B" attached 1 reto. (e) 'dependent Op rating Enli . and Bank Account. Developer will. establish (if not currently establis d an operate *entity that is unique and distinct to t = operations of Developer at the Leased Prop as well s�`one or more bank accounts throuwy which deposits of Gross Receipts (as defined in zb t `B''' attached hereto) generated from s ch operations will be made. These particular deposit t osss Receipts will not be commingle with those from any other operations of Developer or aynother affiliated organizations and sh..' be reconcilable with federal income tax returns and state sales and use tax returns of Developer. ;'City acknowledges and agrees that Bayside Marketplace, LLC is an independent operating entity for purposes of this provision. (f) Tower Rent. Commencing on the earlier of four 4) years following the Effective Date (which may be extended up to 1 year if construction is dela 'ed as a result of an act of God) or the date that the Tower opens to the general public for busines (the "Opening Date"), Developer shall pay the following amounts to City (collectively, "Tower R »nt") in the manner set forth below: 4 (i) $1,059,082 per annum ("Tower Fixed Rent"), as it may be incr pursuant to Section 4(c) above, payable in equal monthly installments on the first ( of the first (1st) full calendar month following the Opening Date and thereafter first (1st) day of each calendar month during the balance of the term of th Sublease. Tower Fixed Rent for any partial calendar month during the Lease be prorated based on the number of days in a particular calendar month withii Tenn against the total number of days in the applicable calendar month. (10th) anniversary of the Opening Date and every ten (1Q) years thereafter du of the Tower. Sublease, the Tower Rent shall be dete_ bd by an appraisal with Exhibit "A" attached hereto (the "Tower ,R,: Rent Adjustments" shall Tower Fixed Rent increase by an amount gr"tee _ an ten percent (10 Fixed Rent for the prior year. ased ) day on the Tower erm shall the Lease 7 the tenth ng the term z accordance In no event %) over Tower (ii) "Tower Percentage Rene s defined in "B" attached hereto, pursuant to the terns and conditions orth in Exhibit "B". Notwithstanding the foregoing or Amendment, Develo o obligation to null and void and of n,u force and termination of the Towe a Sublease with a new To Percenta opera public rovided en -renew, of To the contra t forth in this er Percentag Reri to City shall be upon the e iration or any sooner never that f Developer enters into eTdoper's obligation to pay Tower Y the date the new Tower e er is open to the general Stbaxaer:ed fit ees additioho the Rental escribed above, commencing Inent wit7= F1 Ada Departm t of Environmental Protection mg on be a. b the ward of Tru of the Intern ,1 Improvement Trust Fund (the use of any verge' ads at the Leased Pro erty (the "Submerged Lands"), e obligated' today all a as determined by /� EP for the use of the Submerged all expenses.curred in,o taming the State' approval and waiver ("Submerged ual SubinVred Lands Fee shall be pair to the City at the same location as an the shall remit payment to �` P. Developer shall remit the annual #within thirty (30) busines , days of the Developer being billed by r shall further be obligates to submit to the Lessor for remittance to DEP any and all documentsrequired by DEP which may include, but is not limited to, disclosure of any income from wet slips for the Submerged Lands. City shall promptly notify Developer of any intention by DEP to impose Submerged Land Fees ith respect to the use of any Submerged Lands at the Lease Property (the "Submerged Land Notice"); it being understood and agreed that (i) Developer shall have the right, in its sole and absolu e discretion to teluninate this Amendment and the corresponding Fourth Amendment to Bayside arking Garage Lease Agreement of even date herewith (the "Garage Parcel Amendment") upo written notice to City given within one hundred eighty (180) days following Developer's rec:ipt of the Submerged Land Notice or any similar notice from DEP or the State and (ii) if Dev-toper has not received a Submerged Land Notice from City or any similar notice from DEP or the State within one hundred eighty (180) days (g) upon the Sin of a ("DEP' � � "State")) e�.• Developer s1 1 b Lands and pay` fO Land Fees"). Thee Minimum Base Rene d Submerged Lands Fees tollh the City for the salve. De-„ 5 following the formal certification of the Ground Lease Referendum, then this Section 4(g) shall be deemed null and void and of no further force and effect with respect to the Lease. Notwithstandi . g the foregoing or anything to the contrary set forth in the Lease or this Amendment, if Deveoper procures a waiver of Submerged Land Fees or confirmation from the State or DEP at no Submerged Land Fees will be imposed during the Lease Term, as it may be extended, t -n upon delivery of such waiver or confirmation to City, this Section 4(g) shall be deemed null and void and of no further force and effect with respect to this Lease. Developer agrees to use co mercially reasonable efforts to procure such a waiver or confirmation fro ,the State or DEP prio to the date of the Ground Lease Referendum. (h) Late Charge. Notwithstanding anything installment of Minimum Base Rental, Percentage expenses due to City pursuant to the Lease, as a days following written notice of Developer's annual rate equal to two percent (2%) over the time, but in no event in excess of the maximum from the date such payment was due until the da administrative overhead charge of 0 It is agreed that the foregoing admini and after the Effective Date, all refere Default Rate as defined herein. If Dever following written notice osueh -,failure fr'$ Rental Year, then con '' e cing 4 the secon the Default Rate shallb ad'usted fp: the balan per annum, but in no evei ®exce ��d the rnaxin 5. (a restated in it S construction o make such alter provided, however, exterior appearance of the Improvements or the overall c of the public circulation areas shall be made until such t. shall have approved, in writing, definitive constructio therefor, in compliance with all applicable codes, rul approval shall not be unreasonably withheld or delay and pay for any and all permits and approvals requi contemplated alterations or renovations. ower ed hereby, w e to pay when due' e rate charged by Ci lr terest rate permitted by 1a suo1 yment is paid e instalhn ; E _ "Rental that has ge is no't ' enalty but is a ease to Jie"Default inure a ate ayme roved 'herein, nenttis not ti such Rental Year t interest rate permi trary set forth in he Lease, any ent or any ren component or is not parwithin ten (10) all acc e interest at an .A, from time -to- e "Default Rate"), Ghe City and an n, of een timely paid. egulatory fee. From ate" shall mean the within ten (10) days more than once in any ely cured by Developer, be twelve percent (12%) ted by law. Ions. Section 3.14 of the ease is hereby amended and „rations and Renovations. Aft er Improvements, Developer f renovations thereof as it no renovation or alteration whic r the completion of om time to time may gall deem desirable; materially affects the aracter and appearance ne as the City Manager plans and specifications s and regulations, which . Developer must secure ed to perform any of the (b) Renovation Work. Developer, at its sole cost and expense, shall complete the construction and installation of certain Capital Improveme is to the Retail Parcel and the Garage 6 Parcel that are consistent with the Capital Improvements depicted or described on Exhibit "C" attached hereto and made a part hereof (the "Renovation Work"). The Renovation Work is he eby approved by City and shall not require any further approvals or consents from City, except .r the City Manager's approval of the plans and specifications for the Renovation Work as set %•rth in Exhibit "C" and any required building and land development permits and approvals whic must be applied for by Developer. Developer covenants that Developer shall expend no less tha . Twenty - Seven Million Dollars ($27,000,000) (the "Minimum Level of Investment") but not Wore than Thirty Five Million Dollars ($35,000,000) in connection with the Renovation Work, hich shall include, without limitation, all third party soft and hard costs i expenses incurred y Developer to complete all Renovation Work. Upon completion of enovation Work, Developer shall furnish to City copies of invoices and receipts in co i erewith as shall %. e required to reasonably demonstrate Developer's achievement of e irim vel of Invest ent. (c) Bonding. Developer agree (or cause its oo actor( to post) payment and performance bond(s) in favor of City, inantially the form pr s b- s by § 255.05, Fla. Stat, for the full amount (i.e., 100%) of the cost o all alter tons, recons etion, additions, and other renovations performed by Dev oper; it beinde ®a and agrees ° , eveloper shall have no obligation to post paymen performance connectio r with e construction, alteration, reconstruction, addition an' th& uovations performed iy SkyRise with respect to the Tower pursuant to the terms of tii ToS ublease. e and s all be issued by a Florida licensed surety company rued A: V or ter per M, Best'sy ' ating Guide and shall be subject to approval as to v n y City's R Mana er tl City ' rney. Both City and Miami Dade County shall b _ ed as o ees. (d) 0. eratin Baltimore" i oby delete Section 4of the Lease, e reference to "Harborplace in "Fa ce = it Hall in B e ston". Tower Bull dixag He gl tLMaximu towable S care Footage. The Tower building height an aximum allo able sqt footage shall be permitted in the applicable land developmeenn e ulations, as pe pprovv' velopxnent warr nt file number 13-0077 dated January 13, 2014 and ached hereto as1 xhibit `D" (the "Towe Warrant") which modifies approved Class II Special Perixt 10-0143 (f) Retail P.. 1 <.' P 'inure Allowable Squ., e Footage for Retail Parcel and Garage Parcel, Developer may on d up to the maximum a lowable Leaseable Area of 267,000 square feet of enclosed retail space, including restaurants, ;' at the Retail Parcel and Garage Parcel, collectively. The foregoing maximum allowable Le sable Area does not include the allowable square footage for the Tower, as set forth in the To er Warrant, which shall be in addition to the maximum allowable Leaseable Area for the Retail arcel and Garage Parcel. Developer agrees to expand the Parking Garage as part of the Renovatio Work to add 448 additional parking spaces at the Parking Garage. In addition, Developer shal have the right to further expand the Parking Garage, in its sole and absolute discretion, to prov de up to an additional 296 parking spaces at the Parking Garage. 6. Transfers. 7 (a) Section 5.1(a) and (b) of the Lease are hereby amended and restated in their entiret as follows: "Transfer" means: GG (i) any partial or total sale, assignment, gifting or conveyance (other than in connection with any financing or refinancing contemplated by the Lease) of Develo asehold estate in the Lease or any contract or agreement ,®o any of the same; (ii)anytransfer of membership .e in Dat Q er resultingin the p ' p direct or indirect benefi wnership o General Growth Properties, Inc. being 1 0 4n fifty percent (5O- ) yof Develop (a "Change of Control") any merger orcoasolidation o that is not air filiate substantially all®: not an affiliate o ®eve cir shal an any pers on contra e terms f tie power policie "means: with any othe! j son of De , or the sale of 1 or ets of De leer to any person iat is For pu pses.hereof, "affiliate" contra it contrail by or wit e term 'control" g th" session, . irectly or direct or cause the ' irection of f the business an affairs of ownership of votin interests, by any perso • firiii, corporation or other entity ich owns, directly r indireo legally or beneficially, nloro than fifty percent o) of the membership or other equity i crests in Developer, b a�I t include any equity holder of a Owner whose shares are p clY traded. (b) In Section 5.2(c) of the Lease, the reference t+ "stock of the General Partner of Developer" shall be deleted and replaced with "the memberip interests of Developer" and the reference to "stock" shall be deleted and replaced with "memership interests". (c) In Section 5.3 of the Lease, (i) all references to "limited partner" or "partner" shall be deleted and replaced with "member" and (ii) the wor. "limited liability company" shall be added to Section 5.3(e) following the word "joint venture"; iii) the reference to "subparagraphs (a) through (j)" in the first paragraph of Section 5.3 shall be deleted and replaced with "subparagraphs (a) through (1)"; and (iv) the following permitted Transfers .hall be added to the end of Section 5.3: 8 (k) Any Transfer resulting from the pledge of any direct or indirect ownership interests in Developer as security for a loan made by an Institutional Investor to Developer or any direct or indirect beneficial owner of Developer. (1) Any Transfer of direct or indirect ownership interests in Developer that does no result in a Change of Control. (d) Section 5.4(b) of the Lease is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after t 4:3 g fective Date. (e) Section 5.8 of the Lease is hereby delettits entirety and shall be /deemed inapplicable and of no further force and effect from anfective Date. (f) In the event of a Transfer Fee Vans -action (as her transferee shall pay to City a fee (the "Tranaer- Fee"), in connect ears follow'ng the Ef se einie defined); b e, the Transfer sary of the Effectiv the Trance ,Fee shall be 1% tithe Effe1 '" : Date, the Tr Transaction as follows: during the initial five Fee shall be 2% of the Gross Sale Amount (as anniversary and the tenth (10t1i) am u ;� of the Ef the Gross Sale Amount; between (10t) a twentieth (20th) anniversary of the Ef Amount; and after the twentieth (20th) a 0.75% of the Gross Sale at the time the Trans: Developer. A ` pursuant to Section 5.3 gross sale proe Transacti s actu Transf ` " ument, demons the Gross Sa 1txt,of such t Faction clo Tran ee Tran acti : on sha the Leati as amen evelo cop al' shall 7. Financ ount (a) Tl o fond sei refinancing equal to t `°; ount be deemed inapplicable Developer agrees that the a docume oper . #1 pay to C ale -Amount any Tranr other th zerein. "Gross Sale Ai pon the consurnmati a financial stateme inkconnection there ce of Section 6.1(a) pertaining he Development Costs is hereby .o further force and effect fro nt of any financing or refinancing after the Effective Date to be secured by a Leasehold Mortgag percent (80%) of the fair market value of Developer's leasehold fee interest in the Improvements to be encumbered by the determined by an appraisal conducted by Developer's Leasehol (b) If Developer engages in any new fmancin Retail Parcel or the Garage Parcel (or both), then City shall h such financing or refinancing in an amount equal to three pe Loan Proceeds (as hereinafter defined), for a maximum to (the "Participation Interest"). By way of clarification, if 9 er defined), ith such e Date n D eloper or ansfer Fee the Transfer le fifth (5th) all be 1.5% of Date and the f the Gross Sale isfer Fee shall be the Transfer. Fee s been received by a permitted Transfer ount" shall mean the n of any Transfer Fee t, a closing statement, a ith as shall reasonably o a cap on any financing or deleted in its entirety and shall and after the Effective Date. rocured by Developer from and shall in no event exceed eighty terest in the Leased Property and ien of a Leasehold Mortgage, as Mortgagee. or refinancing with respect to the ve the onetime right to participate in cent (3%) of the first $125,000,000 of al participation interest of $3,750,000 for example, Developer engages in a financing or refinancing which results in Loan Proceeds of $100,000,000 with respect to Developer's interest in the Retail Parcel and Loan Proceeds of $25,000,000 with respect Developer's Interest in the Garage Parcel, the Loan Proceeds threshold of $125,000,000 wil achieved based upon the sum of the Loan Proceeds for both the Retail Parcel and the Garage P.rc financings. However, if Developer's first financing transaction results in Loan Proceeds t less than $125,000,000, then the difference between $125,000,000 and the amount of t Proceeds from the first financing shall be considered the "Loan Proceeds Differential" Developer's first financing transaction results in Loan Procee Loan Proceeds Differential shall be equal to $15,000,000 Differential, City shall be entitled to participate in the subse amount equal to three percent (3%) of the Loan Pro ceu �a (or the applicableportion thereof if the Partici at'o Triter s pp � p .-,�. financing transaction) shall be paid to City upon refinancing transaction(s). City acknowledge participate in any subsequent financing or refi in full and that the provisions of this Section 7(b force and effect upon such paymentin full. If req writing for the benefit of Developer, any portion of Developer's interest M tt e Y �F Interest has been paid in full. For puri3Oes o net proceeds available to Developer frotit4n third party costs and incurred refinancing refinancing transacts ,: nclud ithout 1 Developer's Lender a appraisal costs, consultai then- existipg clzing Garage rospective La Parcel ection agencies,` torneys' fe �rnurc eviously ad City further` a know1 Section 6.1 the Lease, a -Aended with respect to Fth,Leased Proety, the secured by collateral other than a leasehold Mortgage en in the Leased Proper 'nclud : f without limitation, interests in Developer s s � g a� e such financing is p all well as title nd costs and Develope a Sale-L and agrees that eby, Developer s nprovements o s equal to $110,000,00 the event of a Lo ent refinancing by De ential. The Partici not otherwise onsummationtt applic grees that in no e e' _t shall g once the Participa jn 1 be des. d null an eveloper, Ci -or any prospec garage Parc "Loan eL (e.g. , the Pro eloper ation I aid fr le fina ity be e rest has and of -ees to ive purchas , that the P roceeds" shal after deductio on with the fi s and expenses ii d survey costs, es i) all amounts requir s estate in the Retail aseback Transaction. e 1 e an if the eeds n an terest one cing or titled to een paid o further certify in rofall or icipation mean the of (i) all ancing or posed by row fees, d to repay Parcel or i addition to the rights set forth in all have the right to procure financing Developer's leasehold interest that is mbering Developer's leasehold interest pledge of direct or indirect ownership ovided by an Institutional Investor. (d) The definition of "Institution Investor" in Section 6.1(b) of the Lease is hereby deleted in its entirety and replaced with the followin "Institutional Investor" shall mean: (i) any real estate investment t st, bank, savings and loan association, savings bank, trust compan, , insurance company, investment bank, commercial credit corporion, pension trust, pension plan, pension fund or pension adviso , firm, retirement trust, retirement plan, retirement fund or retirement advisory firm, welfare trust, welfare plan, welfare fund or welfare advisory • firm, mutual fund, 10 government entity or plan, investment company, m. ey management firm or "qualified institutional buyer" with.' the meaning of Rule 144A under the Securities Act of 1 33, as amended, or an institutional "accredited investor" w'thin the meaning of Regulation D under the Securities Act • 1933, as amended; (ii) any investment fund, limited liability company, li7 or general partnership where an entity "Institutional Investor" under clause (i) general partner, managing member o fifty percent (50%) of the equi vehicle are owned, directly o that are otherwise hnstitutio ted partnership at is otherwise an finition acts as the anager and at least in such investment e or more entities under ci e (i); (iii) any entity (A) with a longue ® uns-.lured debt rating fog any of Standard & Poor's, Moo. y- • r (or the ''ccessor organization ofiar of them) o westment gia. ° ® (B) who owns or op size and quality to least th ee shopping centers of similar ar,cetplace l iami, Florida; (iv) any Q *fled Trustee, nib el w) in ection with (A) a wad of, (B) their atro eo ,a erah d debt obligations ►O") secured by, or () " y ancing\ _ 'ugh an "owner trust". "Qwalified Trustee" me .� s ) any corporation, national bank, nation arnl�sec' a trust company, organized and dojng buse�in.l e Laws a£any state or the United States of ca, au t rued n1dsuch laws to exercise corporate trust n d to ,arkeee. the trust conferred, subject to supervision or 1. by fed al or state authority, (y) an institution insured 1 De os Insurance Corporation or (z) an institution enior unsecured debt is rated at least investment Standard & Poor's, Moody's, or Fitch (or the successor ogn'zation of any of them); (v) any enti=or ',nstitution substantially similar to any of the foregoing entities descbed in clauses (i), (ii), (iii) or (iv) immediately above; or (vi) any entit controlled by any of the entities described in clauses (i), (ii), (iii) (iv) or (v) above. (e) The definition of "Lender" in Section 6.1(b) of the Lease shall be separated from the definition of "Leasehold Mortgagee" and amended to mean any Leasehold Mortgagee or other Institutional Investor that provides financing to Developer or its members. 11 attorney shall have no Developer's Paymen binding and unappe Developer shall have Developer's ' � e t and a Develop; or anyarthon of th jurisdict c then unless D thirty (30) terminate the G remain in full for elects to teinrinate preceding sentence, th days following City's rece' (f) Section 6.1(c) (xii) of the Lease is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. 8. Payment to City. Developer and City acknowledge that this Amendment is conditioned upon app the City's electorate either at an August 26, 2014 or November 4, 2014 referendum (t Lease Referendum"). Subject to the terms of this Section 8, Developer agrees to escrow with Developer's attorney the sum of Ten Million Payment") by wire transfer of immediately available fede prior to the date of the Ground Lease Referendum, purs be mutually agreed between Developer and City (throe; otherwise consistent with the terins of this Sectio 8: (the "Esc Agreement shall provide that if the Ground Lease~ "eferendum is a shall be authorized to release the DeveloperPayment to City upo Developer's receipt of an original counterpart o�r Amendment duly si expiration of the 30-day period to appeal the Grouii eas le erenduni (the long as no appeal has been filed.ed the Grol $ =ease Referendum City's electorate, Developer and City sign this dment and exc counterparts of same within ten (10) rng form certification Referendum. If an appeal is filed prior t�{ e expiration of the opea1 P e Dev Pa nt urt o c€ potent j dment is valid, on, to cause Dev investment sha -aion to re .1 such ti that this s sole dis on s rs ($10,000,000) (` ds, not less than tl 1ae terms of an escro \tanager and Cit A Bement' ceipt o vlop1s Payment, an being de;oed null and v Ifes City that it desires to to following s��� ruling .(= A which case, Develo e Parcel Aldment, unchallenged, vali d effect wut any further action by the Tent and the Garage Parc er's Payment shall be ret /Developer's termination n force and effect as if this Amendment never existed. I approved by the City's electorate, then Developer's atto release Developer's payment, together with any inter acknowledges and agrees that Developer's Payment is Amendment and the Garage Parcel Amendment. 9. Easements. 12 oval from e "Ground eposit into Developer's rty (30) days agreement to Attorney) and The Escrow loper's attorney to occur of (a) City and (b) the eal Period") so is4,approved by the ange original signed of the Ground Lease riod, then Developer's City, and shall hold sdiction renders a final, inding and enforceable. toper's attorney to invest be solely for the benefit of legal challenge results in all id by a court of competent minate this Amendment within er shall also have the right to portions of this Amendment shall arties hereto. If Developer timely Amendment, as provided in the ned to Developer within thirty (30) ce and the Lease shall remain in full the Ground Lease Referendum is not ley shall be authorized to immediately st earned thereon, to Developer. City e single payment that applies to both this t Subsection 2.3(b) (ii) of the Lease is hereby amended to delete the words "service nd emergency vehicles" and replace same with "all vehicles including, without limitation, service and emergency vehicles". 10. Tower Sublease Recognition. City and Developer acknowledge that SkyRise's ability to construct the Tower is conditioned upon approval from the City's electorate either at an Aust 26, 2014 or November 4, 2014 referendum (the "Tows; ferendum"). C', agrees that following the passage of the Tower Referee. 1 City shall deliv: to SkyRise a duly signed and notarized original count - `o the Ground Lease '' ecognition and Non -Disturbance Agreement attached herto as 'bit "E". y deviations from Exhibit "E", or subsequent modific•t. iris thereto, aid «ny subsequent modifications to the Tower Sublease, will re• y the written ap gyal . f the City Manager. In the event of a conflict bet this Amendment an Tower Sublease this Amendment will govern. 11. following: Indemnity. Section 8.2 of th in its enti oety andeplaced with the Section 8.2 Indemnit aii Ho _ less. D o er shall indemnify, defend (ateeloper's solee harmless City, its offici' enployees�a�d age s ®f • against any and all claims, eons, da ges, Raba end expens connection with the loss of lijury or llama- e to or dest ton of property arising fro: or out � ac a ice in, g:n or at th Leased Property, or the ased Property, or any part thereof, occasio • 41 bye the egligence = z ° i11fu1 mi onduct of Developer, its agents, cont t tors, e loyees, servants, cus emers, invitees, Subtenants, 'licensees or coo essiona�s, except to the; extent any of the foregoing Hai s, actions, ainages, hilility or expen, s arise in whole or in part out of G = - negligence willful misconduct o City, its officials, employees, ployees, contractor:', licensees or concessionaires; espect to any allegenegligence or willful misconduct suant to litigation, / arbitration or other judicial or administrative process, City is found not responsible for such loss, then Developer shall pay City's reasonable attorneys' fees and costs. Developer shall also pay all costs, -> penses and reasonable attorneys' fees that may be incurred or paid by City in enforcing the covenants and agreements of this Section 8.2. agent,=_&ervants, provided. by City, a . 12. Insurance. Article IX of the Lease is he eby modified to amend the preamble of Section 9.1, replace Sections 9.1(a) through (d) in their entirety and add Section 9.12, as provided below. 13 Section 9.1 Insurance Requirements. Beginning on the Effective Date and during Lease Term, Developer, at its sole cost and expense shall maintain or cause to be maintained the following insurance coverage: (a) Commercial Property Insurance. Insurance on the Improvemen and leasehold interests against all risks of direct physical loss or dama including coverage for windstorm, hail, earthquake, flood, and proving coverage for debris removal, sprinkler leakage, boiler and machinery, coverage for glass breakage, as a result of d a by an insured Coverage shall be written on all risk form, or 3_ era causes of loss in theft. The insurance shall be written on a r h cost valuation the policy or policies of insurance contain co in £° ce requires policy or policies shall contain or late agree Wed end During any construction period, Completed Value Builder's Risk fo1 named insureds on such Builder's alterations to the Improvements by Devel r City, upon City's requrefor, evid commercial property insure a quired pur term "Improvements", as use personal property furniished, o Developer aii`d xi rance he however 1OotwithsYa ; ding the in this Arne IX shah! of includ erson rp erty fu Sublease or an � ubten hat insurance proceeds ark it dequate mentso substantially their pre ed, ant t1 e cause of the defic. eves et„to adequately i ent, Developer must ne uant to the terms here the fact that such ins amaged Im arable loss o �s failure of 1 req Eby this Agr such lirrp. ements p of same nI< hstan+ insurance may, y City and Developer Policy ��llowin l oper agree at Develo tto this Se e dee op le IX, s Lease n eov e r n h Tower conte ed or installe (b) TimElement/Business Inte Developer shall insure against loss of value, leasehold interests, and extra expe physical damage resulting in suspensio restoration must be endorsed to reduce one (1) year extended period of in Increased Period of Restoration, a Element coverage, if commercially shall be covered to the extent ea Annual Basic Rental payable durin ionaires i e, or and eril. uding asis. If ent, the rsement. ided on a e listed as sub tantial toe.vide to r is carrying tion 9.1(a). The ed to include all rty and owned by e ` e same; provided, rovements" as used lated by the Tower by SkyRise or any of connection therewith. rebuild and restore the ous condition before an ncy in insurance proceeds sure the Improvements as ertheless rebuild and restore f and must pay the entire cost ance proceeds are inadequate. iption orBusiness Income. usiness income, including rental e coverage, arising out of the direct of business operations. Period of e waiting period to 24 hours, with a emnity, including Ordinance or Law d Utility Services Interruption Time ailable. City, as lessor under this Lease, Zed, in an amount equal to the total of said period of business interruption. 14 (c) Automobile Liability Insurance. Automobile liability insurance covering all owned autos, including non -owned and hired auto exposures used in connection with any work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of One Million Dollars ($1,000,000) per occurrence or accident. The excess layer of coverage or uunbrella liability should be excess follow form over this coverage. City must appear listed as a additional insured on the primary and excess layer ofoverage. (d) Commercial General Liability In e Commercial Gene al Liability, affording coverage against any all e `"`_ =5 bodily injury, inclu• ng death, and property damage occurring o out eased Property, the Isnprovements, or any elevator, escalator ;Oboist thereo f uch insuranc shall have limits of at least Fifteen Milli o Dollars ($15,000,000 per occu ence, Thirty Million Dollars ($30,000,000 policy aggregate. Priry an• excess layers, such as an umbrella excess 'tow forgitipolicy ma used in connection with the stict e of limit '"" ' coverage. The ' ®licy or certificate must afford oos for conti and contractual exposures, personal and advertising ir%p, prises and options liability, oducts and completed operations, liquciW rabil 'th full ility lirni . as required herein. The ce sfieate or polio ust er afford coverage or damages to rented pre a = must refleelia rty E as an addit'onal insured on both the ® ary 1nnit and exce u e la 11 1rt poli. es. It is City's intent that a liability 0 surance p ed pursuant to t 's Section shall be deemed primaryInsurarreetcoverage i = e event of any ss arising from the ad op ions oovec by this` ,:eement. The efore, the certificates i surance rust be pr jerly e t dorsed to r ' ect primary and non- ger reees the right to r- iew the adequacy of the insu coverage p a9,; ided in Section 9.1 of the Lease once every ten (10) years • ' , the balan Hof the Lease Tenn and 1 r'ay require that Tenant adjust Tenant's i ': . ce co -` age to the extent the •' ty Manager deems any of the coverage re le ze Lease to be inadquate, in the City Manager's reasonable disci ion, based upon then-c ent market requirements for comparable commercial properties in the M';mi metropolitan area. Section 9.12 Subtenant Re• ;irements. For Subleases entered into from and after the Effective Date, eveloper shall contractually require all of its Subtenants to indemnify City, its officials, servants employees and agents and provide certificates of liab' ity insurance naming "City of Miami" as an additional insured with minim n limits as set forth on Exhibit "F-1" attached hereto with respect to Su •tenants other than SkyRise and with minimum limits as set forth on Exhibit "F-2" attached hereto with respect to SkyRise. The Exhibit "F-2" requirements shall be applicable only during the 15 initial construction of the Tower and, once such initial construction is completed, City acknowledges and agrees that the insurance requirements set forth in Section 9.01 of the Tower Sublease are acceptable to City. Developer shall cause SkyRise to provide evidence of such insurance to City as and when required pursuant to the terms of the Tower Sublease. 12. Arbitration. Notwithstanding anything to the contrary set forth thereof, City and Developer hereby agree that any dispi under the Lease, or with respect to the interpretation or, arbitration if and to the extent City and Devel disagreement or controversy within thirty (30) d party of the nature of any such dispute, disagr period, City and Developer are unable to reso party may request to arbitrate the matter by provi the nature of the request to arbitrate The terms then govern the arbitration procedure 13. Foundation Contribution. Notwithstandin T ing Participation Agreeni $ ted as and after the EffectiveJate, Devens, $350,000 (the "Foundatiozntrib September 0: A) 4 ber. of ua Contribu Rental of days in The Found F3; Foundation Con CPI Adjustment Y .o_ for periods prior to the ., MPA; it being underst? January 1, 2014 and the ns set ecti • during the e e, Ter. artial Renta11f ar Contributioi ution for the for Minima to the anuary er shall aW ate not llowing no i t or controversy i ch dispute, disagreemt rngwritten_xotice to the and orrdJ cx Of Section in qua r, year du: Lease, inelud.in:, Section 10.5 sgreement or coi roversy arising fr rent of the Lease ay be settled by to resolve any such dispute, .from on party to the other fter uch thirty (30) day controversy, either er • arty setting forth the Lease shall in ec ,+ on 5.3 of the Minority ;$as aerT.ded, col .`=ctively, the "MPA"), from a Foundation Co + tribution in the amount of y installments o the last day of March, June, the Lease T-rm in lieu of the Foundation 3 of th ;, . The Foundati after the Ef t e Date shall ag%e the total number of da all inR®® e each Rental Ye i'rmnedia ely preceding Rent Base Rental as provided ectrveate shall continue to be agreed that the Foundatio ctive Date shall be base Distribution for the Retail Parcel for such period. City a original counterparts of the Second Amendment to Mi attached hereto as Exhibit "G" within ten (10) days f Lease Referendum. n Contribution for any partial e prorated based on the number s in the applicable Rental Year. by two percent (2%) over the Year commencing with the first ove. The Foundation Contribution id as provided in Section 5.3 of the Contribution for the period between solely on Net Income Available for d Developer agree to sign and exchange rity Participation Agreement in the form lowing formal certification of the Ground 14. Modifications or Amendments to Certain De rnitions. (a) The definition of "Auditor" as s-t forth in Section 1.2 of the Lease is hereby amended and restated as follows: "Auditor" means Deloitte LLP or such other nationally recognized and reputable fine of certified public accountants authorized to do business in the State 16 of Florida, as may be used from time to time by Developer for purposes of certifying the annual reports of its financial condition required by law. (b) All references in the Lease to the term "Cumulative Credit Balance Aer ount", including, without limitation, the definition thereof in Section 1.2, are hereby deletes in their entirety and shall be deemed inapplicable and of no further force and effect from an• after the Effective Date; it being understood and agreed that the Cumulative Credit Balance A ount shall cease to exist as of the Effective Date and the waiver thereof by Developer is part of he material consideration for City's entry into this Amendment. hstanding the fo egoing, the Cumulative Credit Balance Account shall continue in fall :® eel and effect with resp ct to any and all payments of Annual Basic Rental due to City under tha` for periods prior ;• the Effective Date. (c) All references in the Lease tom ebt Service Pa nts", i luding, without limitation, the definition thereof in Section 1 re hereby deleted in r e irety and shall be deemed inapplicable and of no further force and of felt from al after the E ec e Date. (d) All references in the to "Develope T uity Investmen , including, without limitation, the definition thereof in are her deleted in thei entirety and shall be deemed inapplicable and of no further ® anfl re et from : ' ®after the Effective Date. (e) All referee irr t_he Lease �F- without limitation, t1 fxnttton hereof inc shall be deemed inap g ble and o xo further istribution", including, eby de: eted in their entirety and d effect an , fter the Effective Date. (t) 1.referenc theme e to "Operang Losses", inclding, without limitation, the definition rat Section 1 are e by deete in their etirety and shall be deemed inapp1i 1e�and of no 'further fore :and effec � r i atnafter the Ef Tective Date. 4,7 (g) 11 referenced the Lease to the capitalized term' "Refinancing" and "Refinancing Proceeds", ii ®'ng, without r itati,e respective defin' ions thereof in Section 1.2, are deleted in their nthty and sha l e deemed inapplicable and . f no further force and effect from and after the Effectate. 15. Areas A-4 and City and Developer agree that the Lease has tenni ated with respect to Area A-4 and Area A-5, as more fully described in the Lease. All reference • in the Lease to "Area A-4" and "Area A- 5", including, without limitation, all provisions and ex tbits pertaining thereto, are hereby deleted in their entirety and shall be deemed inapplicable and f no further force and effect from and after the Effective Date. 16. Notices. Wherever any notice is required or permitted under the Lease, such notice shall be in writing. Any notice or document required or permitted to be delivered under the Lease shall be 17 deemed to be delivered when it is actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when it is either (i) deposited in the United St es mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custod , of a reputable messenger service or overnight courier service, addressed to the applicable p rty to whom it is being delivered at the respective address for such party as is set out below, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: 17. If to City at: City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-1910 Attention: City Manager with a copy to: City of Miami 444 SW 2nd Avenuf Miami, FL 331 Attention: P (a) presently aware party under the L and obligations under, Le cellaneous. d ach of Cif y continue id that a rho Lease t loor eveloper at: 13aysidelarl etplace, LL c/o General ® th Pro . erties, Inc. 110 North Wa Chic o, IL 606 tt n an: Chief Le Officer wx a copy to: Baysid arketp ce, LLC Gen�CYro th Properties, Inc. Street Suite - Natick, MA 1760 Attention: .'ohn Charters eve x; er hereby aekno efaults : y reason of any if the date of execution ate. ledges and agrees that neither is t or omission on the part of the other ach party has fulfilled all of its duties (b) This Ant shall be construed a i governed in accordance with the laws of the State of Florida. Venue in any actions or proceed',igs between the parties shall be in Miami - Dade County, Florida. In order to expedite such acti. zs or proceedings the parties knowingly and voluntarily waive their right to a jury trial in any su i actions or proceedings. Developer and City each agree to pay their own attorneys' fees in connetion with any such actions or proceedings. (c) This Amendment may be executed .in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. • 18 (d) Each party hereby represents and warrants to the other party that (i) it has t right and. authority to enter into this Amendment, and (ii) this Amendment is a binding an document enforceable in accordance with its terms. full valid (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Lease. Except as modified reby, all of the provisions of the Lease, which are not in conflict with the terms of this Ame dment, shall remain in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed in all respects. (f) This Amendment shall be binding upoarties hereto a d their respective successors and permitted assigns. (g) At the request of Developer, Amendment to be placed of record in the Pu Developer and City shall mutually agree. Dev with respect to such memorandum. (h) The teiuis "busineS individually or collectively, as the case' Sunday and any nationally recognized leggy inder o grees to ente :to a ecords of Miami -Dad r shall bresponsib 19 emorandum of this unty in such form as all recording costs sed herein, shall mean, week other than Saturday, nally] IN WITNESS WHEREOF, the parties have executed this Amendment as of the Eff•ctive Date. ATTEST: CITY OF MIAMI, a municipal corpor ion of the State of Florida By: By: Todd Hannon D x Alfonso City Clerk ® ager APPROVED AS TO LEGAL FORM A_frTO INSURANCE AND CORRECTNESS: By: Victoria Mendez City Attorney STATE OF FLORIDA COUNTYOF MIAMI- S �.9 Anil arie Sharpe Actin slc Manage ent Tla�m ®, instiri edit wakno , wdged befor: me this day of Alfonso, .fie City Manage , and the City P of the City oiami;. lorida municipal corp • ation, in the capacity aforesaid; each such persi personally 1 t vn to me Sign Nai Print N me: Notary Public My Commission Expires Seria No. (none if blank): [NOTARIAL SEAL] 20 WITNESSES: BAYSIDE MARKET ACE, LLC, a Delaware limited liabili ' company By: Print Name: Print Nam Title: Title: Print Name: Title: STATE OF ILLINOIS ) SS.: COUNTY OF COOK The foregoin78ac1uiow: g efore� Is day of , 2014, by ; as 3.. of Bayside Marketplace, LLC, in the capacity afo esa, su persons song ,, mown tt ne Sign Name: Print Name: Notary Public My Commission Ex m Serial No. (none if blank): [NOTARIAL SEAL] 21 EXHIBIT "A" DETERMINATION OF FAIR MARKET RENT Minimum Base Rental for the first Rental Year of each Renewal Term and the ower accordance with the pro edures btermine the current Fai Market ed Rent, as applicabl:, and the Rene l Term or Tower Faxed Rent Fixed Rent Adjustments per Section 4(f)(i) shall be evaluate set forth in this Exhibit (each, a "Scheduled Appraisal' Rent (as defined below) for Minimum. Base Rental or required adjustments to these values for the app '. na Adjustment, as applicable. 1. Appraisers. No later than three hu the Original Tenn, Renewal Term or each Tower E. 4(f)(i) as applicable, City shall deliv to Develope accordance with the criteria set fo in, applicable The, determination of Fair Market ROD d by Cite commercial real estate appraiser who Appraisers and who ha cat comparable to the Leaf City shall select its event shall an apprais due to the City. The Qua. newly appr S e nirnum an "Adj. st i %i entail:Wear" Markt followiri estate app Appraiser sha shall pay the cos Developer's Qualified selection of Developer agreement on the Fair 'rat made biti ;receipt of th who shal --fto be require Develope' prays less than (a " miser froi duction ira er shall and sixty-five (365 =dais prior ed Rent ustment asferen ation of the Fa determination of all be conducted b e of theA erican Instit� $' ex1Yo in ap As" shall p ry's ge>` e t J appraisers Minimum ase Renta b fired the year prior to t Rent shall comm even eloper shall dispute d Apprai e , hen, Developer sh made by City's Qualified A be --a t ualified Appraiser (tho be on tie City's general apprai Qualified Appraiser. The City' shall then have a period of it'd Appraiser within which to yet Rent for the Property. If Developer's Qualified Appraiser are unable to agree upon the (30) day period, then the Fair Market Rent shall be d methodology set forth below: o the end of ed in Section arket Rent, in F it Market Rent. an independent e of Real Estate raising .properties y for the appraisal. services list. In no or Tower Fixed Rent e Rental Year that the ce to take effect (each, he determination of Fair 1, within thirty (30) days praiser, select its own real gh Developer's Qualified ers' service list). Developer Qualified Appraiser and the lirty (30) days following the ttempt, in good faith, to reach ity's Qualified Appraiser and air Market Rent within such thirty ermined in accordance with the ce Within fifteen (15) days following the expiration of such thirty (30) day period, City's Qualified Appraiser and Developer's Qualified Appraise r shall endeavor to mutually agree upon an independent commercial real estate appraiser who shall be a Qualified Appraiser. If the Developer elects, the pool of Qualified Appraisers s all exclude any appraiser on the City's general appraiser's service list. If the City's Quali Ced Appraiser and Developer's Qualified Appraiser are unable to agree on such third Qualifie Appraiser, City and Developer shall apply to the American Arbitration Association for designation of an appropriate third Qualified Appraiser. The Qualified Appraiser so selected or designated by the American bitration Association is hereinafter referred to as the "Third Appraiser." Within ten (10) days following the selection of the Third Appraiser, ty's Qualified Appraiser and Developer's Qualified Appraiser shall each submit to the ThirAppraiser their respective final determinations of the Fair Market Rent. Within. thirty (30) flays thereafter, the Third Appraiser shall select, as the Fair Market Rent, either the dete nation submitted by City's Qualified Appraiser or the determination submitted by Develope s Qualified Appraiser. The Third Appraiser shall not select any amount as the Fair Market R., it, other than the amount submitted by either the City's Qualified Appraiser or the - initted by the Developer's Qualified Appraiser. The Third Appraiser shall notify both City a determinations the Third Appraiser has selected ate,- th Third Appraiser shall be final and binding on b as selected by the Third Appraiser, shall be applicable, which shall take effect connnencrr Rental Year. r, in writing, which of the two Rent. The selection of the &wand the Fair Market Rent, Base Rental %.Tower Fixed Rent, as beginning of thee® licable Adjustment 2. Method, Each Qualified A a� er shall de � � C �� _ e Fair Market Rel./ or Tower Fixed Rent, as applicable, based on the pa et fe h in e definition thereof set forth in Section 1 above. Each Qualified Appraiser, in �x � '�s4 ,may e se with formal hearings, it being agreed that his task will be solely that o 3. Effect of Apprazs l Tl lir Mark set forth in this Exhib ffshall be b ding event shall (a) the Fair" a et Rent e or Tower Fi nt, as ap hcabt the Minh a <s ®ental fo e s r on o fifteerpercent (15% r the appraisaQ(c) the Tow4e Fixed Renhex. applicable Mr 4. Appraisal e. Deve costs associated wit -the responsible for one h tl Qualified Appraiser. In with the hiring of the determination of Fair Developer elects to general appraisers Third Appraiser. ermined in accordance with the procedures :wive on and Developer, except that in no how the then applicable Minimum Base Rental Year or Tower Fixed Rent Adjustment (b) rth Renewal Terms increase by more than nimum ` - Rental then applicable at the time of such cease by more than ten percent (10%) over the Tower uch appraisal. shall be responsible for one hundred percent (100%) of the of the Developer's Qualified Appraiser and City shall be cent (100%) of the costs associated with the hiring of the City's event the Developer disputes the first appraisal, the costs associated hir.'Appraiser shall be paid by the party whose Qualified Appraiser's arket Rent is not selected by the Third Appraiser; provided, however, if xclude from the pool of Qualified Appraisers any appraiser on the City's ervice list, then Developer shall pay fifty percent (50%) of the cost of the 5. Delaye• Appraisal. If prior to the commencement of the Adjustment Rental Year, the adjusted Minimum Base Rental or Tower Fixed Rent, as applicable, has not been determined by independent appraisal in accordance with the procedures set forth in this Exhibit, Developer shall continue to pay all then applicable Minimum Base Rental or Tower Fixed Rent, as applicable, as may have been previously adjusted pursuant to the terms of this Amendment. Following the determination of the Fair Market Rent by independent appraisal, in accordance with the procedures set forth in this Exhibit, Minimum Base Rental or Tower Fixed Rent will be adjusted as provided retroactively to the commencement of the subject Adjustment Rental Year, and, if necessary, the Developer shall pay to the City with the next installment of Minimum Base Rental or Tower Fixed Rent due, the amount, if any, by which Minimum Base Rental and/or Tower Rent, as adjusted, exceeds Minimum Base Rental or Tower Fixed Rent, applicable, that has been paid by the Developer for the retroactive period. 6. Fair Market Rent. For purposes of this Amendme that a similar property with the entitlements currently ap consideration of the Improvements constructed by D competitive and open market under all condit parties each acting prudently, knowledgeably, stimulus. Implicit in this definition are the foil i ons Vie• site to atL assunnng the 1777 vv�if ig assumptions: (a) Both parties are typically to r Market Rent" means the rent e to the Leased Property, ithout ny Subtenant, would b ► rig in a arm's length transa tion, the is not affecte • by undue (b) Both parties informed orel1 advised a.nd act' g in what they consider their o Ue Merest; (c) A reas_o able time ralowedosure tc to open ' arket; (d) ,ade in t•a;-"cash i `'` . Dollar in terms of financial omparabl ereto; and e re ri�l se ets'ti normal consideration rent ma t ket condiif rs(as 'al any date as med unaffected bey special or ere e associated with the Lea e. for property leased, under f which Fair Market Rent is ive financing or concessions EXHIBIT "B" PERCENTAGE RENT 1. Percentage Rent Calculations. (a) Commencing on the Effective Date and continuing throughout the ease Term, Percentage Rent shall be due and payable to the City, in arre on the first (1st) ! ay of the first (1st) full calendar month following the Effective Date and thereafter on the first st) day of each calendar month of the Lease Tenn for the prior month, ap `ded herein. Pere tage Rent shall be equal to the following: Six percent (6%) of Gross Rec breakpoint of $25,659,000, w commencing with the first CP Base Rental. Each such annual a natural breakpoint (i e44he adjusted Rental Year divided® p` , Year during the Lease (i) the then -applicable b eakpoi the numb er_ o= ys in sue ent< Rental conside e of co mg Percentage Rent*- Rental :&shall n® ' e carried ou Develea the Leas SkyRis = ursuant to the SkyRise u { the Tower with Opera rrgIncome actu retail liner to becc provided, howeve [_As O Tease a co structed b » eveloper at the G Receipts at Gross shall not in •% as defined •°e �v nnual breakpoint sli lation Year for the ent o" breakp aim imam ercent (6% 1, be reduce tes�(ii) a delta he break o-an a r the initial annual ust each Rental Year stment of Minimum in l be equal to the e Re = ; for the subject oint for any partial Rental ount equal to the product of n, the numerator of which is ator of which is 365. Each tinting period for the purpose amount of Gross Receipts of any ther Rental Year. e actually collected and received by xcludm peratg Income received by Developer from ower Su "ase er any successors or permitted assigns of der a new blease of the Tower premises), together and rece' ed by Developer from Subtenants of the age Parcel as part of the Renovation Work; ude the following: any suns'oll ted and paid • t by Developer for any sales, use or excise tax' or surcharge impos d by any federal, state or governmental authority directly on sales a collected from customers and accounted for by Developer and/or Sutenants; proceeds from the sale of ade fixtures, operating equipment or similar assets after use thereof i the conduct of Developer's business on the Leased Property; funds collected with •egard to the Leased Property which are not actually related to the day-to-day business of the Leased Property such as, but not limited to the financing of the Developer's interest in the Leased Property; collection of insurance proceeds; collection of eminent domain proceeds; monies collected for events, to the extent such monies collected are paid or delivered to the sponsor, so long as sponsor is not affiliated with Developer; allgratuities paid to employees; amounts received by Developer as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance, insurance or utility bills); any grants, subsidies, rebates, credits or siil zr benefits received by Developer from any federal, state, region er local body, agency authority, department or organization; (x) interest earned on Developer's depose Developer's investments; (xi) interest income from loans orit facilities g-r and similar passive or inve ent income of De Developer's liquid assets, invents or loans/credit by Developer; (xii) rents or percentag e is and comic% Subtenants where Ci collecting subtenant's Gross Rey (xiii) Amounts received byIcing concesionaire at are not earnings or profits remitte (xiv) Any, earin Prope "Open general p and payable defined in the following: trzc ed ed for ca Viand Interest ati veloper; o iations 441 expen n d by Developer er relat d to 'es anted aid to Develop based on a pert s appro lose Gros. Receipts are by Ci , to the Leased any ntage of es chary by Developer. at the Tows open to the g: neral public for business (the oughout the `Lease Term (so ong as the Tower is open to the dition�alpercentage rent with r pect to the Tower shall be due ithiii '°107 days following th last day of each Lease Year (as "Tower Percentage Rent' shall be equal to the sum of the (i) (7 . nt (1%) of Tower Gross eceipts (as defined below) above the initia, nnual breakpoint of $55,011,000.00, which annual breakpoint shall adjust each Lease Year of the Tower Sublease commencing with the first Tower Fixed Rent Adjustment As the Tower Fixed Rent increases, the applicable breakpoint for Tower Percentage Rent shall increase from the immediately prior amount b, an amount equal to the sain.e percentage adjustment to the Tower Fi -d Rent for the corresponding Lease Year. For example, if Fixed Rent inc eases by 3% in the second full 12 month Lease Year, the Tower Percentage Rent Applicable Breakpoint will increase by 3% (to $56,650,000.00). The breakpoint for any partial Lease Year during the term of the Tower Sublease shall be reduced to an amount equal to the product of (i) the then -applicable breakpoint, times (ii) a fraction, the numerator of which is the number of days in such lease year and the denominator of which is 365. Each Lease Year shall be considered an independent accounting period for the purpose of computing T er Percentage Rent due, if any. The amount of Tower Gross Receipts •f any Lease Year shall not be carried over into any other Lease Year. Plus (ii) Six Percent (6%) of Tower Valet Gross "Tower Gross Receipts" shall mean all Gross actually collected and received by SkyRise pursu provided, however that Gross Receipts shall not ire_ through (xv) above or the Tower Valet Gross Re. "Tower Valet Gross Receipts" shall mea by SkyRise in connection with SkyRise's emp l parking garage to be located and Receipts shall not include the item Tower Gross Receipts. e Tower; prc vi f bed in Subseeton 2. Gross Receipts Report , DevelopeI is attached herewith aizdnco7po ® ted here Gross Receipts and/ eF ower Grr y' eceipts 3. Develo s er's Reco and source doc efts in a'e Recei t received b �velope` books an source documents to copies of,federal income ad sta records of ee Subtenant £ : ' ng pe transactions cohdjeted in or fro` the Lease sh 4. Reports by 13e eX Developer shall also fur — Auditor (the "Annual Rep -aft"), Receipts received by Developer Developer shall in all events fu calendar month of the Lease Te month, the statement to be in s may reasonably require. Ci generated by any Subtena reporting made by each liability whatsoever for £Within ity a sh all e eipts (as defin i below). defined in t erms of escri e Tower Sublease) e Tower Sublease; d in Subsection 1(a)(i) lected and received arking tions within the ever, that Valet Gross a)(i) through (xv) above or the is Report, a sample of which to emize any and all reportable =EExhibit. and keep full, complete and proper books accepted accounting principles, of Gross The operation of the Leased Property. The eloper shall include, without limitation, true use tax returns of Developer, as well as sales e rent to Developer and records of any other Property by Developer. rtified financial report (i.e. a Gross Receipts audit) by an ing in all reasonable detail the amount of such Gross m the Leased Property during the preceding Rental Year. zish to City within fifteen (15) days after the end of each n a written statement of Gross Receipts covering the preceding ch form and style and contain such details and breakdown as City acknowledges and agrees that, with respect to Gross Receipts paying percentage rent to Developer, Developer shall rely on the uch Subtenant with respect to its gross Receipts and shall have no eporting errors made by any such Subtenant. 5. Right to Examine Books. Notwithstanding the acceptance by City of payments of opex ninety (90) days after the end of each Rental Year, Minimum Base Rental, Tower Rent, Tower Percentage Rent and Percentage Rent, City shall have the right to all Rental and other charges actually due hereunder, and the right to examine, make extracts from and copy, at the Leased Property or Developer's main accounting office, Developer's books, source documents, accounts, records, bank statements and federal income and state sales and use returns filed with applicable governmental agencies by Developer in order to verify the amount of Gross Receipts received by Developer or Tower Gross Receipts receiv by Skyrise in and from the Leased Property. For a period of five (5) years after the expiratio of each Rental Year, Developer shall make all documents and records evidencing Gross Re ipts and/or Tower Gross Receipts available at the Leased Property er Developer's main acco ting The Developer will : tablish ized from the operatios on the led with the Receip from any office upon ten (10) business days' prior written notice from one or more bank accounts to deposit all Gross Receip Leased Property, which bank account deposits will no other operations of the Developer or any other afil' ed'ompar 6. Audit. (a) At its option, City may notice to Developer but,e than oneeach Re City from either the public accountants t a physical inventory) i Receipts from the Leas Develope Devele ®_roz s-main ace() of the "` cable books, any other Mlikerials which of making such audit. Deve Percentage Re r 1? yrnents di Developer's statent > t of Gros more, then, unless D ve1oper, the cost of such audit, ww` t3 receipt of City's invoice. s not pa he ap r Genera n a Conti le record ng th to upon to ear, a oval asis to duct nd operations of riod covered �c City's aud. orth in City' ents, accoiits and rec asonably deems ne er shafl'=omptly pay to sed by any such and' receipts is understate dispute the results 1 be paid by Develo ss days' prior written r an auditor selected by ognized. firm of certified complete audit (including eveloper evidencing Gross y any statement issued by or at the Leased Property or notice, requiring such audit, all •ds referred to in this Exhibit and essary or desirable for the purpose ity the amount of any deficiency in . If such audit shall disclose that to the extent of five percent (5%) or f such audit, City may bill to Developer r within thirty (30) days after Developer's busin of (b) In the event that any such dit shall disclose that Developer's records and other documents as referred to in this Exhibit a► d such other materials provided by Developer to City's auditor are inadequate, in the opinion o an independent auditor serving as City's auditor, to disclose accurately Developer's Gross Receipts, then Developer shall have thirty (30) days to cure any deficiencies raised by City's auditor and shall then notify City so that City's auditor can continue its audit. City's exercise of the foregoing remedy shall in no way limit or otherwise affect City's ability to exercise other remedies available to it, nor shall Developer's obligations pursuant to the terns, covenants and conditions of this Lease (including, without limitation, Developer's obligation with respect to reporting Gross Receipts and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. Notw anything herein to the contrary, to the extent that Developer shall fail to provid required reporting or records with respect to Gross Receipts as a consequence of failure to timely furnish to Developer any required reporting or records with re Receipts generated by such Subtenant, then, provided that Developer shall to reasonable measures pursuant to the terms of the applicable sublease to enf of such Sublease with respect to producing such reports or records, D liability to City in connection therewith. (c) Notwithstanding the foregoing or Lease, City hereby waives any right to challenge or calculation of Rental with respect to any Rental Effective Date based upon any discrepancy betwee , 'elope of Net Income Available for Distribution ding eve components thereof) and the interpretation f { uch talc ation Independent Auditor General. v standing to City any Zy Subtenant's ect to the gross e all commercially ce the requirements eloper shall have no the contrary set forth in the y deficiency in Developer's ial Rental Year) prior to the erpretation of the calculation ,17 interpretation of the by or the Office of the EXHIBIT "C" RENOVATION WORK Bayside Marketplace is a waterfront jewel for the City of Miami. Bayside Marketp a hybrid approach to an indoor shopping experience combined with an open air envir Currently, Developer is committed to improving the facility which will undergo an renovation. The renovation will provide a new modern appearance which is res Bayside Marketplace's current needs and users. Notwithstandj, g anything to the forth in the Lease or this Amendment, the City Manager s e the right to ap plans and specifications for the renovation work (wh asay be submitted in approval not to be unreasonably withheld, conditio specifications are consistent in all material respec well as the renderings attached hereto (the "Pi City Manager may take into consideration b of $27,000,000.00 and an investment cap of and project phasing in connection with the ren agrees that any soft costs and improvements to storefront systems; from the date that this Amendment is for purposes of substantiating Develop 5(b) of this Amendmen submitted for perm Amendment, and c' months from the date such failure and Develo Developed (4) years -- subject requires ti renovation condition. �aoa t e a all times to it ait,the public are k described he The scope of substantial conformance hat 11Straction ' tQ.ermits first are e Plans fo teen (I k has n it been iss e cures costs to ectio b the Leve t these City acknow (including the Mn 000,000.00) challen �n wo City fort c ®_ ® evelope n wilt renovatio. ;=City Cot Mi : e of the en clt_wing nenced `onos d by City, the gll.ts set fortl b i efforts to comple Or wo ays as se forth in S G . it area be main ed to bring the ed so long as f work de s that ce is nment. xtensive onsive to ontraiy set ove detailed phases), such uch plans and cribed below, as eveloper and the evel of Investment ogistics, operations knowledges and (inc ing Subtenant work described herein mission shall be included tment pursuant to Section vation work have not been the Effective Date of this ch first phase within six (6) City may notify Developer of in Section 7.1(b) of the Lease. e the renovation work within four . The foregoing deadlines remain ction 7.4 of the Lease. The Lease fined in first class condition. The public areas in the Lease to first class on work includes e following and shall be performed in !Plans: Lower Level S s pping Promenade 1. Furnish and install all new Develop-.: awnings throughout the interior promenade. Subtenant awnings will be replaced when Subleases are renewed or new Subtenants open. 2. Recladding of all columns in porcelai veneer or similar material to match upper level. 3. Refinish and paint all exposed existu g beams, joists, girders, and exposed metal to match upper level. 4. Furnish and install all new decorative light sconces and fixtures. 5. All new permanent Subtenant build -outs will have storefront systems with anodized finish that is chrome, brushed aluminum or black. Upper Level Shopping Promenade 1. Furnish and install all new flooring throughout shopping corridors. 2. Recladding of all columns in porcelain veneer or similar material to match lower level. 3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to ►' atch lower level. 4. Furnish and install all new decorative light sconces fixtures along the ne / awning structure to improve illumination in the upper walkway 5. All new permanent Subtenant build -outs will _ of storefront systems wit . anodized. finish that is chrome, brushed aluminum or bl 1. 2. 3. 4. 5. 6. General Renov1ions to Faci. All public staircases, stair finishes, sta inclusive of tile, toilet partitions, fixtu common areas will be repla ec1_ ,LL Food court will be remodels su including light fixtures, fans any® a ny d Refurbislunent of the plastic a iga e4 refurbished roof 1 _= aye an upddand All mechanic. o'e All limeston fact Plans. z The parking garage, ex o ade treat re laced wi h:nfla,e las ted. The gala 7. A n w gateway fea ' ill b whicitelVill serve as a e egniza and it.i ticipated tha ,this feature may be a scu Plans. 8. Developer wa ding ig age will be replaced t ughout the facility. 9. Exterior Develo er rniture including ben, es, integrated planters, and garbage receptacles will be r laced. 10. Renovation of perimeter landscaping per the r lans. zeal expos ae cleane Surfaces, railing system s d act ories in t e - ail marketplace ding new flo orative ele f in mo eatsa re efiirbishe wall treatments, eiling accessories is endor mar cetplace area. esign acrding o the Plans. tesill b: replaced in accordance with the replace strooms finish The expanded to inclde additional spaces and a retai} liner. Light ;"ixtures that have not been years a drg age for parkin garage will be replaced and ssure cle ec1 and repainte strutted at main entry axis near the existing flagpoles, ,eature that can be / sewed from Biscayne Boulevard; ture, fountain or the like, per the EXHIBIT "D" TOWER DEVELOPMENT WARRANT [see attached] File No, 13.0077 *REVISE rive, Suite 1200 ctor partment SION HAS BEEN REACHED ON THE FOLLOWING MAT RI •stantlal Modification to the approved Class II Spec al Permit 10-0143 0-0 r Univarse Miami" located In Transect Zone T6-8- NNS,, A. ress: 401 Biscayne Blvd., Downtown NET. Final Decision: 0 .Approval E Approval with conditions E3 Denial FINDINGS AND CONDITIONS The subject proposal has been reviewed for Warrant Permit pu suant toArticle 7, Section 7.1.3.6.d'.1 of Miami 21 Code, as adopted, the Zoning Ordinance of the O' y of Miami, Florida, which stated that an applicant may modify a special permit approved under a pre loos zoning code, as a minor modification through the Warrant'process.. Pursuant to Section 71.3.4 of the aboveolted Zoning Ordnance, the Planning and Zoning Department has made referrals to the following Departments and Boar.s. • Office of Zoning, Planning and Zoning. Department • Downtown NET Office, Neighborhood Enhancement Team Their comments and recommendations have been d ly oonsidered in this final deoision. This application has been reviewed, pursuant to Section 7.1.2,4 (d) of the Zoning Ordinance; th.e following findings have been made: FINDINGS • The applicant Is proposing modifications o the approved Class II Special Permit 10-0143 "Solar Universe Miami", In order to bring the proj ot more in compllance with Miami 21:Code. • On .January 2013, the applicant s bmitted modified plans to the originally approved •Class II Special Permit 10-0143, specifically co sisting of: a) Increase of the FAR from 164,18 .sq ft to 196;920 sq ft, b) Decrease the office area from 8; 96 sq ft to 8,265 aq ft. c) Decrease the retail area from 3 ,331 sq ft to 14,547 sq ft, d) Decrease the restaurant area from 3a,333 sq ft to 19,845 sq ft. e) New Flying Theater of 6,678 sq ft area, File No, 13.0077 *REVISED f) New Observation Deok of 28,263 sq. ft. area. g) New Exhibit Space of 7,092 sq ft area. h) New Meeting Room/Ballroom/Event Space of 25,271 sq ft area. 1) Retail liner ,building and additional parking floors to face garage along with a new liner space the ground level fronting Biscayne Blvd. J) No changes on the building height, footprint and intensity are being, requested as part o' this modification. • The Zoning Administrator has determined that the proposed changes, pursuant to the June ", 2013 submittal, do not exceed the parameters described in Section 2202.1 of the 11000 City of Miami Zoning Ordinance and are therefore non -substantial. • It is found that proposed modifications do net constitute a substantial change to the .origl al approved project. • No Landscape Plan has been submitted with -this •application. « Pursuant, to Sec. 7.1.2.4 (d) of the Miami 21 Code, the City of Miami Zonin application has been reviewed and found sufficient except for the issues listed ab In the condition. Based on the above findings .and the considered advice of the officers and agent matter and pursuant to Section 7.1.1.2 of the Zoning Ordinance, the subje approved with conditions subject to the plans submitted by the applicant and and Zoning Department as well' as the following limitation: CONDITIONS 1, 2. 3. 4. 5. The applicant shall provide the Planning and Zoning Depertmen parking plan, with an enforcement policy and a construction n enforcement policy. A complete Landscape Plan In compliance with Article '9 of Mi the Planning and Zoning Department prior to issuance of eny The design plans for the proposed .retail liner building, to b Bayside parking garage, shall be submitted prior to the I expansion of the Bayside parking garage, The 'design pia shall be reviewed pursuant to the process set forth In Art. The proposed retail liner building to be located on the we :shall; I. Have a minimum average depth of 30 feet; II. Have a minimum of two pedestrian' walkways co to the, existing sidewalk along Biscayne Bcul.ev Have a minimum of 7.0' percent of the retail fro requirements set' forth in Miami 21. The appiioant, and any suocessors-ireinterest, sh lease, contract, or agreement, to post or affix, to of this Warrant applioation, any LED' digital corn advertising signs as the terms are defined in M displays or media arrays that allow for chang type of sign herein prohibited is known as L teohnology replacing LED digital media sig purposes. Further the applicant and any su tower, or building, be designated as a me t Ordinanoe, the e and contained es consulted on this 'proposal is hereby ile with the Planning with a temporary construction Ise management plan with an mi 21 Code shall be submitted to uliding permit. located on the west facade of the suance of .a building permit for the s.for the proposed retail liner building , Sect. 7.1.2.4, of Miami 21, facade of the Bayside parking garage, nacting the front of the retail liner building d; age glazed with clear glass, pursuant to the I not post nor affix, or allow others by sale, e exterior of the building, which is the subject erolal or non-commercial Onsite or Offslte ami 21, Article 1, and which include digital media to a sign copy. The ourrent technology for this digital signs. The prohibition shall cover successor which are used for commercial advertising cessors-in-interest, shall not request that this project, a tower pursuant to Miami 21, article 1, and shall File No,.13-0077 *REVISED conform to all applicable federal, state, Mlaml-Dade and municipal laws and regulations, as they now .exist. This does .not preclude the use of special effects lighting, from either internal, external, or projected sources for the purpose of defining the environmental character of the project, or for providing, project identification signs anywhere onothe building or onsite signs, including directional, or regulatory information or promotional si'gnage at the functional level (I,e., the eveis of the pedestal facing south and west) or at the grade level of the. tower as may be appro• late to the requirements of the project or elsewhere on the site, provided the copy is permitted der the current zoning code, 6, Conform to the .design review criteria set forth in Art. 4, Table 12, and Art. 5, act. 5,6, of Miami 21. 7. Any structure above ground shall be subject to setback requirements. NOTICE The final decision of the Director may be appealed to .the Planning, Zoning, and >: ppeals Board by any aggrieved party, within, fifteen (15) days of the date of Issuance by filing a ritten appeal and appropriate fee with the 'Office of Hearing Boards, located at 444 SW 2na Av ., 3'1 Floor, Miami, FL33130. Telephone number (305) 416.2030 Signature C A. /\ 49l r Francisco J. Oa:ola, r'rector \" Planning and Zo Ing Department Date k3 File No, 13.0077*FIEVISED. ARTICLE 4, TABLE 12 DESIGN REVIEW :C.RITERIA I) BU.ILDING DISPOSITION: Applicability Compliance (1) Respond to the physical context taking into Yes Yes consideration natural features, existing urban form and Transect Zone intentions. (2) For Buildings on Corner Lots,, design Facades to NIA acknowledge all Frontages. (3) For modifications of nonconforming Structures. NIA See Article 7, Section 7.2 for specific regulations (4) Create transitions in Height and mass with Yes Abutting properties and Transect-Z'ones. II) BUILDING CONFIGURATION; APOIlcabilitv C m • !lance (1) Articulate the Building Facade vertically and Yes, Yes horizontally in intervals appropriate to the existing Neighborhood and Transect Zone, (2) Articulate the Building. Facade at street level to Yes Yes recognize pedestrian continuity and interest, and at upper levels to recognize long views of Buildings (3) Use architectural styles and details (such as roof Yes Yes lines and .fenestration), colors and materials derivative from surrounding arear / (4) Design Facades that respond primarily to human Ye „,; Yes scale, (5) Promote pedestrian interaction. / es Yes (6) Design all walls as active Facades, with doors Yes Yea and windows; when not possible, embellish walls with architectural design treatment. (7) Provide usable Open Space that allows for visible Yes Yes and convenient pedestrian access from the public sidewalk. (8) Building sites should locate service elements, Yes Yes such as trash dumpsters, utility meters, Ioadin docks, baokflow preventers, slamese connectio e s and electrical, plumbing, mechanical nd communications equipment away from a s eet front: All service elements shall .be situated and screened from view to the street and adjacent properties. 4 File No, 13-0077*REVISEP III) BUILDING FVNCTION & DENSITY: Applicability Compliance (1) Respond to the Neighborhood context and Yes Yes Transect Zone. IV) PARKING STANDARDS: Applicability Com Ilan (1) Minimize the impact of automobile parking and Yes Yes driveways on the pedestrian environment and adjacent properties, especially T3 areas, (2) For pedestrian and vehicular safety minimize Yes conflict points such as, the number and width of driveways and curb outs, (3) Minimize off-street parking adjacent to a Yes Yes thoroughfare front •and where possible locate parking behind the Building. (4). Design landscaping or surface parking areas as N/A buffers between dissimilar Uses. (6) Screen parking garage structures with Habitable Yes Yes* •Space. Where Habitable Space is not provided, architeotural treatments •and landscaping shall screen the garagestructure. 11..ANDIMINALTA A UcabJit Compliance (1) Preserve existing vegetation and/or geological Yes Yes* features whenever possible. (2) Reinforce Transept Zone intention by integrating Yes* landscape and hardscape elements. (3) Use landscaping to. enhance Building design and es Yes* continuity of Streetscape. (4) Use landscape material, such as plantings, Yes Yes* trellises, pavers, screen walls, planters and similar features, to enhance building design and continuity of etreetscape. (5) Provide landscaping that screens undesirable Yes Yes* elements, such as surface parking lots, and that enhances open space and architecture, VI) SIGN STANDARDS: Applicability Compliance (1) Provide sIgnage appropriate for the scale an N/A character of the project and immedi e Neighborhood. (2) Provide functional and aesthetic sig age N/A Identifying Building addresses at the entranc (s). File No,13.0077 *REVISED Vll) AMBIENT STANDARDS: ,Appficabillty Compliance (1) Provide lighting appropriate to the Building 'and Yes Yes landscape design in a manner that coordinates with signag'e and street lighting, (2) Orient outdoor lighting to minimize glare to the' N/A public realm and adjacent properties. (3) Protect residential areas from excessive noise, N/A fumes, odors, commercial vehicle Intrusion, traffic conflicts and the spillover effect of light, 6 EXHIBIT "E" GROUND LEASE RECOGNITION AND NON-DISTURBAN E AGREEMENT {see attached] GROUND LEASE RECOGNITION AND NON -DISTURBANCE, AGREEMENT THIS GROUND LEASE RECOGNITION AND NON-DISTU ("AGREEMENT"), made as of the day of the CITY OF MIAMI, FLORIDA, a municipal corporation of the S is 3500 Pan American Drive, Miami, Florida 33133, Attn: Ci SkyRise Miami, LLC, a Florida limited liability company, 1 Berkowitz Development, 2665 South Bayshore Drive, Coe Jeffrey L. Berkowitz ("Sub -Ground Tenant"). A. Landlord is lessor under that certain le e with Bayside Marketplace, LLC, a Delaware limited liability company ("Ground Tenant" , successor by merger to Bayside Center ANCE AGREEMENT , 2014, by and between e of Florida, whose address Manager ("Landlord") and ving its principal office at c/o nut Grove, Florida, 33133, Attn: Limited Partnership, a Maryland limited partners/'p, as lessee, dated October 15, 1985, as amended by First Amendment dated August 19, 1/86, Second Amendment dated November 24, 1987, a Third Amendment dated April 15/ 1993 and a Fourth Amendment executed contemporaneously with this Agreement (t property (the "Premises") commonly kn memorandum of the Lease was recorded 13492, at Page 3199, both of the Public/ B. Ground Tenant sub-grund leased a part of its lessee's interest under the Ground "Ground Lease"), which demises certain real wn as Bayside, located in Miami, Florida. A Book 12684, at Page 157, and supplemented in Book Lease to Sub -Ground Tenant purs (attached hereto as Exhibit A-1) and by (the "Sub-Groun A attached hereto (such Exl ecords of Miami -Dade County, Florida. nt to that certain Sub -Ground Lease dated March 29, 2013 /as amended by First Amendment thereto dated , 2014 Lease"), which portion is more particularly described on Exhibit it A is subject to tweaking or minor adjustment//completion to accurately describe the De raised Premises, as finally agreed upon between Ground Tenant and Sub -Ground Tenant) and made a part hereof (the "Demised Premises"). A short form of the Sub - Ground Lease was recorded in Book at Page of the Public Records of Miami -Dade County, Florida. NOW, THEREFORE, it is agreed as follows: 1. Landlord acknowledges that it has received a copy of, and has no present objection to, the subletting by Ground Tenant to Sub -Ground Tenant under, the Sub -Ground Lease; and for so long as Sub -Ground Tenant is not in default of any of its obligations under the Sub -Ground Lease beyond any applicable notice and cure periods as would permit Ground Tenant to terminate the Sub -Ground Lease (including, without limitation, notice, cure period . d other rights available to a Leasehold Mortgagee, as defined' in the Sub -Ground Lease, ider Article XXX of the Sub -Ground Lease), Landlord shall not knowingly disturb or deprivSub- Ground Tenant in. or of its possession or its rights to possession of the Demised Prem':es or of any right or privilege granted to or inuring to the benefit of Sub -Ground Tenant undh r the Sub - Ground Lease, nor will Landlord bring any action against Sub -Ground Tenant t accomplish same. Ground Tenant and Sub -Ground Tenant acknowledge and agree that the L. dlord shall be afforded not more than thirty (30) days following the date of City Commissio approval of this Agreement to request changes • on matters impacting the landlord's interest 'gin the Sub -Ground Lease, and the consent of Tenant and Sub -Ground Tenant to such anges will not be unreasonably withheld, denied or delayed. If no request is timely made, Landlord shall be deemed to have approved the Sublease without change. If request is t ely made, the Sublease as so changed will be deemed to have been approved by Landlord. 2. If the Ground Lease terminates for any reason, inc ding its natural expiration date, and provided Sub -Ground Tenant attorns to Landlord, the Sub -Ground Lease (as supplemented/modified by this Agreement) shall continua in full force and effect, notwithstanding such termination of the Ground Lease, as a direct lease (such a direct lease would be in replacement of or substitution for the Ground ease) between Landlord and Sub - Ground Tenant for the remainder of the term of the Sub - round Lease, including all renewal options that are available to be exercised under the Gr• nd Lease, whether exercised or not, without the necessity of executing a new lease, and on he same terms and conditions as are in effect under the Sub -Ground Lease immediately prece'' ing the termination of the Ground Lease, but as supplemented/modified by this Agreement, as it may be amended in the event of a termination of the Ground Lease with the appro al (in their sole discretion) of Sub -Ground Tenant, Landlord and the holder of any mortga_es on their respective interests in the fee or leasehold estate that is the subject matter of the ub-Ground Lease. 3. The term of the Sub -Ground ease shall be coterminous with the term of the Ground Lease, including all available renewal options (the Ground Lease has a current term that runs through November 30, 2030, with two (2) fifteen (15) year options to extend the term through November 30, 2060), whether now existing or hereafter granted and whether or not exercised. For clarification purposes, if a currently existing or subsequently granted renewal option under the Ground Lease is not exercised, the Sub -Ground Lease shall nonetheless continue as a direct lease (such a direct lease would be in replacement of or substitution fr the Ground Lease) between Landlord and Sub -Ground Tenant until the expiration date of he last renewal period under the Ground Lease as if all renewal options under the Ground ease had been timely and effectively exercised (the term of the Sub -Ground Lease shall be deemed automatically so extended). Further, the easements granted for the benefit of round Tenant under the Ground Lease (including the "Developer Vehicular Access Easel ent" granted in Section 2.3(b)(ii) of the Ground Lease, which is hereby expanded to include u obstructed access by all vehicles), the obligations of Landlord under the Ground Lease . , elated to the City Improvements and Bayfront Park (as such terms. are defined in the Ground Lease), and the obligations contained in Section 11.6 of the Ground Lease for Landlord tv join in certain matters, and the remedies contained in the Ground Lease that are available in he event of a default by Landlord pertaining thereto, shall continue for the benefit of Sub-Gr• d Tenant under the Sub - Ground Lease during the entire term thereof, including extensions, • the extent applicable to the Demised Premises or the use and enjoyment thereof. 4. As to the Demised Premises, compliance by or o, behalf of Sub -Ground Tenant with the terms of the Sub -Ground Lease shall be deemed coma lance by or on behalf of Ground Tenant with terms of the Ground Lease that address ne same or comparable matters notwithstanding deviations between the provisions of the ub-Ground Lease and the Ground Lease. In furtherance of the foregoing, but without limiting same, the development, construction, operation and uses permitted by the Sub -Ground Lease hall be permitted (including the height and size of improvements subject to compliance wi applicable laws) notwithstanding any restrictions thereon contained in the Ground Lease; th insurance required under the Sub -Ground Lease shall be applicable notwithstanding differe t insurance requirements contained in the Ground Lease; the provisions related to insurance nd condemnation (including the allocation of proceeds or awards) shall be applicable notwithtand ng different provisions pertaining thereto contained in the Ground Lease; there shall be r o art in public places requirement pertaining to • the Demised Premises (the parties acknowledge that, due to the unique design of the Tower to be constructed, it in and of itself can be considered a work of art); transfers of the leasehold estate created by the Sub -Ground Lease shall be freely transferable and sublettable notwithstanding any provisions of the Ground Lease to the contrary; and the minority participation provisions of the Ground Lease shall be inapplicable to the Sub -Ground Lease, the premises demised thereunder and the activities contemplated thereby. Landlord acknowledges and agrees that the equipment liens provision contained in Article XXXIX of the Sub -Ground Lease shall be applicable to and binding on Landlord, and that Landlord shall have no consent rights in respect of, and no r'ht to participate in any manner in the, financing or refinancing of the leasehold estate existing pursuant to the Sub -Ground Lease in the Demised Premises.. Notice of the name and .: dress of a Leasehold Mortgagee, which shall be sufficient to satisfy the provisions of Section 30,01 of the Sub -Ground Lease as to Landlord, shall be provided to Landlord at the followin Pan American Drive, Miami, Florida, 33133, Attn: City Manager. 5. Landlord acknowledges that, in its capacity as property ow governmental capacity), it has reviewed arid approved the plans described hereto and made a part hereof, and that .no further approval of plans reconstruction or alteration of the Demised Premises shall be required, Lease or under the Sub -Ground Lease, if the latter becomes a direc hereto as provided in this Agreement. The foregoing shall not him' approval of matters in its governmental authority capacity. 6. Landlord acknowledges and agrees that any finicing of its fee interest in the Demised Premises is and shall remain subordinate to the leasehold estate created by the Sub - Ground Lease (and any New Lease, as defined in the Sub- ` round Lease, regardless of when address: 3500 er (but not in its n Exhibit B attached for the development, ither under the Ground lease between the parties Landlord in its review and same is entered into) and the lien of any leasehold fmancin encumbering such leasehold estate; and all parties who may acquire any interest in financing -numbering Landlord's fee interest in the Demised Premises are hereby put on notice of this prevision. 7. Any matter requiring or permitting thapproval, consent or entering into of a written instrument by the City Manager under the ground Lease shall be satisfied if approved, consented to or entered into by the City Manager or approved by the City Commission, as applicable, or the successor to either of such pos'tion/body, with the approval or consent of the City Commission being required only to the e -nt specifically required by the Ground Lease or applicable law. 8, Landlord agrees, from time t• time upon written request of Sub -Ground Tenant, to provide for the benefit of Sub -Ground Tenant the joinders contemplated by Section 11.6 of the Ground Lease, as they relate to the Demised Premises, or the development, use or operation thereof, a Sublease Recognition and Non -Disturbance Agreement for subleases of the Demised Premises that may from time to time be entered into (in the form attached hereto as Exhibit C, with such changes as may be requested by Sub -Ground Tenant and are reasonably acceptable to Landlord), and a customary estoppel letter containing such truthful information as Sub -Ground Tenant may reasonably request regarding the Sub -Ground Lease. 9. Sub -Ground Tenant, prior to the commencement of its initial developmen of the Demised Premises (excluding the "Foundation Work" provided for in the Hold Hare less and Indemnification Agreement between Landlord, Ground Tenant and Sub -Ground Ten,. nt), will (i) pay the City of Miami Seven Hundred Thousand Dollars ($700,000.00) wh'ch represents estimated lost revenues for the marina operation due to the development of the / einised Premises (all additional amounts due to the City to cover any lost revenue shall be due mmediately upon the City's demand to Sub -Ground Tenant, and City shall reimburse Sub-Gr'.und Tenant for any overpayment, if any, of the lost stream of revenue immediately following . determination of the amount thereof); (ii) relocate the existing Dock Master's Office, restrooms and showers into a temporary trailer facility to be located on the Premises, but outside t{`e Demised Premises, at a location to be determined and reasonably acceptable to Landlord, . s evidenced by the written consent of the City Manager or his designee, and (iii) demoli• n the existing Dock Master's Office, restrooms, showers and other facilities on the Dem' ed Premises. After the work described in subparts (ii) and (iii) has been performed and a, part its initial development of the Demised Premises, Sub -Ground Tenant shall construct anbuild-out, substantially as depicted and described on the. plans described on Exhibit B attac ed hereto, the following facilities (the "Facilities"): (a) a new Dock Master's Office/Marina .' ices (including dedicated stairs), to be located on, level L1M, containing square footage not less than seven hundred seventy (770) square feet, (b) Marina amenities consisting of n •w restrooms, laundry/lockers, storage and shower facilities, to be located on level Li, conta e ing square footage not less than eight hundred sixty four (864) square feet, (c) a City of Miami fire substation, to be located on Level 2, containing square footage not less than two. • ousand (2,000) square feet, (d) City of Miami Dept. of Fire Rescue Utility Area, to be located in the basement level, containing square footage not less than six hundred sixty seven (667) square feet, (e) Marina storage area, to be located iti the basement level, containing square footage not less than one thousand one hundred thirty two (1,132) square feet and (f) no less than 42 parking spaces in the below grade parking structure to be erected as part of the 'initial improvement to the Demised Premises. The minimum square footage figures set forth in subparts (a), (b), (c), (d) and (e) shall be subject to construction tolerances of up to 5% (shortage). The square footage figures set forth in subparts (c) and (d) shall also be subject to reduction, if any, based on Fire Department review of space allocation and suggestions based on what is being implemented in similar projects under way in the City. Said Facilities shall be available for use for the designated purposes only by the City of M. mi (but not an assignee or transferee) without any payment to Sub -Ground Tenant, bu such Facilities and the marina itself (which shall be reconfigured as reasonably agreed to and et forth in a separate agreement to be entered into between the City of Miami, Ground Tenant and Sub - Ground Tenant) shall be subject to such standards for management, operation and iv aintenance as are reasonably agreed to and set forth in a separate agreement to be entered int between the City of Miami, Ground Tenant and Sub -Ground Tenant (modeled after the management, operation and maintenance standards currently provided for in the Mianniari na greement dated October 24, 1985 between Bayside Center Limited Partnership (currently G .ound Tenant) and the City of Miami, as amended, which shall be superseded by such new sep rate agreement with the written consent of the Ground Tenant). 10. Sub -Ground Tenant agrees to post (or cause its contrtor(s) to post) payment and performance bond(s) in favor of Landlord, in substantially the fGrm prescribed by 255.05, Fla. Stat. for the full amount of the construction, as that term is defined by the AIA Glossary of Construction Industry Terms, latest edition, for the cost of all init'al construction of the Project (as defined in the Sub -Ground Lease) to be performed by Sub- € round Tenant. The bond shall be issued by a Florida licensed surety company rated A: V or setter per A.M. Best's Key Rating Guide and shall be subject to approval as to form by L-,ndlord's Risk Manager and City Attorney. Landlord and, at Sub -Ground Tenant's option Ground Tenant, shall be listed as obligee. 11. Sub -Ground Tenant agrees to indem ify, defend (at Sub -Ground Tenant's expense) and hold harmless Landlord, its officials, of leers, and assigns, servants, agents and its employees, from any claims, demands, liabilities, losses, causes of action of any nature whatsoever arising out of or in connection with the 'roject (as defined in the Sub -Ground Lease), from any injuries to property and persons during the construction of the Project, the granting of any building permits or other required goverzur ental approvals for the Project, from and against all costs, fees, expenses, liabilities, any orde s, judgments or decrees which may be entered in from and against all costs, attorneys' fees, e penses and liabilities incurred in the defense of such claim or in the investigation thereof, in e. oh case other than those claims, demands, liabilities, losses, causes of action or injuries, if any, caused by the acts or omissions of Landlord, its officials, officers, agents, servants, employees, representatives, assigns and contractors. This indemnity shall survive the issuance of a certificate of occupancy or its equivalent for th Project and shall continue in effect for the applicable Statute of Limitations period prescribed . Chapter 95, Florida Statutes. Further, all liability (including liquor liability) insurance main . fined by or for the benefit of Sub -Ground Tenant under Section 9.01 of the Sub -Ground Leas shall include Landlord as an additional insured, to the same extent as Ground Tenant is so na d. 12. Sub -Ground Tenant ,shall pay to Landlord a one time "Trai sfer Fee" in the following amount upon the first "Transfer" of the Sub -Ground Tenant's lease, old interest in the Sub -Ground Lease: a. 3% of gross sales price of the Sub -Ground Tenant's leasehold inter st in the Sub -Ground Lease if the sale occurs during the 5 year period commencing on date of pppoval of the Ground Lease Referendum (as defined in the Fourth Amendment to the Ground ' ease). b. 2% of gross sales price of the Sub -Ground Tenant's leasehold merest in the Sub -Ground Lease if the sale occurs during years 6-10 immediately followii the date of Referendum approval. c. 1.5% of gross sales price of the Sub -Ground Tenant's easehold interest in the Sub - Ground Lease if the sale occurs during or after years 11 in nediately following the date of • Referendum approval). A Transfer shall mean a total full or partial assignment of 11 of the leasehold interests of Sub - Ground Tenant in the Sub -Ground Lease (other than ' connection with any financing or refinancing contemplated by the Sub -Ground Lease), o one or more transfer in the aggregate which result in a transfer to an unaffiliated third party of more than 50% of the membership or other ownership interests of the Sub -Ground Tenai entity. A Transfer shall not include (i) transfers between the initial members or their affiliates, or to or among their principals, family members, or trusts or other entities which they co ntrol, in one or more steps, of SkyRise Miami, LLC as of the time it closes on its initial con ruction financing for the Project, (ii) as to any other entities that may succeed to the leas hold interests of Sub -Ground Tenant, transfers between holders of ownership interests or t it affiliates, or to or among their principals, family members, or trusts or other entities whicl they control, as of the time the entity in which they hold ownership interests acquires its leasehold interest in the Sub -Ground Lease, (iii) transfers upon death of individuals to their he 's or devisees, (iv) transfers to trusts or other entities • controlled at the time of the transfer by the party making the transfer into the trust, (v) transfers to a lender or its affiliate(s) by reason of foreclosure, the giving of a deed in lieu thereof or other realization of a security interest in the Sub -Ground Lease (or the subsequent transfer y such lender or its affiliate(s)) or (vi) any other transfer that is not a bona fide arms length tr nsaction with an unaffiliated third party. Once a transaction has occurred for which a Transfer Fee is payable, the provisions of this Section 12 shall be void and of no further force or eff-: t. 13. Landlord shall, within 30 days of request of Sub -Ground Tenant, from time to time memorialize in a recordable writing its approval of any further aniendi nts to the Sub - Ground Lease, if applicable (whereupon the definition of Sub -Ground Lease in this Agreement will be automatically expanded to include such future amendments) to .. dress, among other things, the granting or confirmation of rights appurtenant to the Denu -d Premises related to access roads serving Demised Premises, allocation of responsibility bet een Ground Tenant and Sub -Ground Tenant for compliance with certain title documents; allocation of rights and responsibilities between Ground Tenant and Sub -Ground Tenant elated to the private sewage facilities serving the Demised Premises, and the granting or confi ation of rights appurtenant to the Demised Premises related to parking rights off of the Demised Premises. 14. Any notices, consents, approvals, submissions, • emands or other communications (hereinafter collectively referred to as "Notice) given unde this Agreement shall be in writing. Unless otherwise required by law or governmental regula'ion, Notices shall be deemed given if sent by registered or certified mail, return receipt reque ed, postage prepaid (a) to Landlord, at the address of Landlord as hereinabove set forth or suc, other address as Landlord may designate by notice to the other parties hereto, with a copy to ity of Miami Director of Public Facilities, 444 SW 2nd Av., 3rd Floor, Miami, Fla. 3313 G-1910, (b) to Sub -Ground Tenant, then in duplicate under separate cover, one copy to the a• dress of Sub -Ground Tenant as hereinabove set forth and one copy to John Sumberg, Esq., Bi ` in Sumberg Baena Price & Axelrod LLP, 1450 Brickell Avenue, Suite 2300, Miami, FL 3, 131 .or such other addresses or persons as Sub - Ground Tenant may designate by Notice a the other parties hereto. Delivery by nationally recognized overnight courier service or hand delivery, with all charges prepaid, may be substituted for registered or certified n -. il, All Notices shall be deemed served or given on the date received (as evidenced by the r turn receipt or courier's receipt for delivery) or the date delivery was refused or unavailable ue to an unnoticed change of address. 15. No modification, amendment, waiver or release of any provision of this Agreement or of any right, oblig,tion, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by an authorized representative of the party against whom the same is sought to be asserted. 16. This Agreement shall run with the Demised Premises and shall, whit: the Sub - Ground Lease remains in full force and effect (either as a sub -ground lease between Ground Tenant and Sub -Ground Tenant, or as a direct ground lease bet een Landlord and Sub -Ground Tenant), be binding upon and shall inure to the benefit of the rties hereto and their respective heirs, legal representatives, successors, assigns and sublease•. This Agreement shall survive termination of the Ground Lease, unless the Ground Tenant has rightfully terminated the Sub -Ground Lease. 17. Either party may record this Agreement amongst the P blic Records of Miami - Dade County, Florida, at its cost. 18. Either party agrees, from time to time within fteen (15) days of request therefore, to provide an estoppel certificate to the other setting fo th such truthful information as the requesting party may reasonably request. The Developer : Hall pay the City a fee of Seven Hundred and Fifty Dollars ($750.00) for each estoppel. Balance of page is intentip:nally blank. IN WITNESS WHEREOF, Landlord has caused this Ground Lease Recognition and Non -Disturbance Agreement between Landlord and Sub -Ground Tenant to be exec ,' ed under seal the date first above written. WITNESSES (as to City Manager and City THE CITY OF MIAMI, a municipal Clerk): corporation of the State of Fl. ida By: By: Print Name: Title: Witness Print Name: Title: Witness Print Name: Da el J. Alfonso Title: City Man ger APPROVED AS TO LEGAL FORM ATTEST: AND CORRECTNESS: By: Print Name: Victoria Mendez Title: City Attorney Bv: STATE OF FLORIDA ) SS.: COUNTY OF MIAMI-DADE Pr' t Name: Todd Hannon Ti e: City Clerk The foregoing instrument was acknow.edged before me this day of , 2014, by Daniel J. Alfonso, t e City Manager, and Todd Hannon, the City Clerk, of the City of Miami, a Florida municipa corporation, in the capacity aforestated; each such person is personally known to me. Sign Name: Print Name: Notary Public My Conunission Expires Serial No. (None if blank): [NOTARIAL SEAL] IN WITNESS WHEREOF, Sub -Ground Tenant has caused this Ground Lease Recognition and Non -Disturbance. Agreement. between Landlord and Sub-Grund Tenant to be executed under seal the date first above written, WITNESSES: By: By: Print Name: Title: Witness Print Name: Title: Witness SkyRise Miami, LL ' , a Florida limited liability company, by erkowitz Development Group, Inc., a Florida corporation and its manager Bv: STATE OF FLORIDA ) ) SS.: COUNTY OF MIAMI-DADE The foregoing instrument was ackno r edged before me this ___.. day of , 2014, by Jeffrey L. Berko itz, as President of Berkowitz Development Group, Inc., as manager of SkyRise Miami, L ; , in the capacity aforestated; such person is personally known to me. Print Na e: Jeffrey L. Berkowitz Title: P esident E tity Seal] My Commission Expires [NOTARIAL SEAL] Sign Name: Print Name: Notary Public Serial No. (None if blank): Exhibit A-1 to Ground Lease Recognition and Non -Disturbance Agree ? ent Sub -Ground Lease [See Attached] ]3AYS'U)E MARKET ACE 5iJ13-Gtt.OUN) EA.SE Dt tad EIS. Or .w...., .., P 4Ah.,.n � ,.1 0 2013 and Ibotwe(,n :RAW '; MARKETPLACE, LLC as Landlord zrnd SKYHICH It11AML LLC 7S Tenant TABLE OIL CONTENTS Pal ARTICLE I — DEFINITIONS i ARTICLE — (IRA.N 1' AND 'i'!3RM 6 Section2.01 Grant ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 6 Station 2,02 Tower ,,,„,.,,...,,,t,tt.....,.,,...,1,.,1„„„ Section 2.03 'title to 13ayside Property 7 Section 2.04 Site Plan Section? 2.05 Acceptance of Demised Premises ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, .,,..,.,,,,,.,,,.,.8 Seetion'2,06Term, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,1 .,.,,, ARTICLE, lit CONSTRUCTION OF IMPR.OVI3MENTS 9 Section3.01 Utilities.. ,,,,, 1/1.1/1111,10,1••111“ ,,,,,,,,,, ,11 ,,,,,,,,,, ,,,,, ..,,,..,.,,.,,,,,.,,, „„, ,..,,.,.,,.,,.,,.,..,,.,,,,9 Section 3,02 Tenant's Plans ..,.,,..... ..............................9 Section 3.03 Construction of Tenant's Improvements.......................................................... .............. .....„ I 1 Section 3,04 Expenses 16 Section 3,05 Other Improvements 16 Section3.06 Stgnaage........ ...................... ......... ...„,,,..,,,,.,................ ........... ....... ....... .....,..II...............,......,,,,)6 AI TIC:L'E IV ." RENT Section 4,01 Proopenin'gRent Section 4.02 Fixed Rent 17 ............11111....................1.11111117 17 Section4.03 iPereeriU ge Rent,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,18 Suction4.04 Intareasl on Late Payments ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,„,.,,......20 Section 4,05 IVIaiintenance Charge . ........ ......... 20 ARTICLE V — CONDucT or. BUSINESS 13Y TENANT L. 2,0 Section 5.01 Use of Demised Premises Section 5.02 Project Manager,..,. , ,. ., . 22 Section 5,03 'relialnt's Covenant to Open...................................23 Section 5.04 ContintIOUS Operation.........., 1...,,..,,... ,1.1.1......................123 Section 5.05 Compliance with Lanus and Regulatlorr23 Section 5,06 13usinese flours 23 Section 5,07 Common Areas ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,, ,,,,,,,,,,,,,,,, 23 Seetinn 5,08 Fireworks Displays 24 AR'1`1CL.1 Vi u'rll, 11"L) 5.......................................................................................................................................24 ARTICLE.VI.T ww IMPOSITIONS ,.,..................... ........................................,.....,..,,,,.,,......,.,.,,.. ,...,.....,..........,.....24 Section 7,0.1 Creation of Separate: Tax Marcel,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,„,,,....,,,..,,.,,....,..,...,,,24 • .Section 7,02 Payment of Separately—Assessed'Taxes..................................................................................25 Section 7.03 'Taxers without Separate Tax Parcel Pram and Allen' Completion (.1 the l�iitiati Tenant's Improvements 20 25 TABLE 0FCONTENTS (comNnood) 8e'0110 7�� Taxes W101-out 8oporAW'TuxParcel Prior fo Cmopodwnnfthe IoWalToll"Int bnprovwmmnts..---- ...._............ ....... ......^ 26 &-,oUon7.05 Interest mndpwoalloo... ' 20 AR17CIJ3vTO--D1S"EC710N` MAINTENANCE ANDRIPADRDIM0GDPIUMCM0.... ........ ...... 26 Section8,87 MnntonnVmxhyLai udlord— ................................................. ............. ................... ........ 26 �^~ ' 'nm~m/^ � �*nnonoua m�oouyTomn| ' .......27 Swndwn8,04 Tanon[',� Right Co)nopwo und'rosthe.... ............. ........ ................ ..................... 27 A1171CMD{—DN8DRANCBAND .................. ........ .~................ ........................... ................... 27 $00do:9,01, ?�mn�vhmUmn*o ` ...... .--- ...... ~27 Suudou0,02 DxlumnifimodonofLmodord........ _....... .............. ..~....~................. ....... ............ ..3O ................�l Soctioo)0,8.1 Ratmmduu 31 Saodwn<O.02 Darmqp Near End ufTmn .... ... ................................ '3� AR1]ClE*]— CONDEMNATION ...............--........................ .............. ............ ............. ........... .~32 8mct|uu 1].0] T'616,08xTemporary Use 92 Section 11.02 TotalTmNng 12 soodunl1.03 Suhgon6dly1oca|,rukoW............... ............................. .._~~.............. ...~33 �ouduu11.04 ........... ~~~.—.~.............. ....... ..~...,_,,,...,_,,,,,_...,~,.�� 8wxdoo\|15 Application, of Aword lbr Pnrtin TaNuuml'otalTmNu_(Offim/?YmnTmhhig h, ._.p~`~' —.�. Section ||.06 Da:mago Near End ufTerm ........ ...... ............ ....,......... ......... ~....~.~.~~..—...~.�� ARI1ClEX|1 ���U���N7&N��JBl��TO1G ' ~ `~~.........,,~.~~..^..`...~..................—.~.�� Section>2,01 CmsmM8uquh0d...... .,.......... ......... ................ ..................... ...^...^......_.~....~35 ADTDCLB X/H TENANT'S DEFAULT—'-1136 Section 13.01 GWwots ofD*filolt........................ .............. ........................ .............................. ......... ........ 36 s:oGmn 13,02 R'eoudhm '17 Q«dion].1JD Cami.mitation ofKom| 37 8*ndon 13.04 COW, 13xpormm and Attorneys' Fees 30 ARTICLE %TV~}4}LDIN@OVER. 38 ARTICLE XVTl^A0DlIR]`SDPTAUIJ ''' 38 ADTlCL8XVDDEMEIMBSCUMOt'AT[V1:,' 39 / / Soudmn 1802 Tenunt'dAud odzudoo 39 It TABLE OF COWENng ARTICLEXD{—QUIET POSG83&M............................. ........................................................................................ 9 Oooduo 19,02 R000pItIon Agroomant ......... ~...~.~.....~....~~.......................................... ......... 40 ARTICLE XX 7N7SMlONAIJYWITTED ........ ........................................ ............ .................. ....... ............ 4U ARTICLE }[X[~^K4I8CIELlANEOl'S PROVISIONS 40 &mUnn2|.0/ Kwlatj000hipoyPmdleo ..~.^....�O Geuhon2LO% CmmPuuUon ...................~................ ....... ............... ....... .............. 4D 0ooUun3l.V3 PordnoBound 40 Sootion21.04 Entire Agreement 40 SouUnn21,0M ....... .............................. ........................................ 4Q 8*m#on2l.U6 Savings nndQuvoongIaw/Vwnuw.—...... ........... ....... ... ....~...... . ..........4} GwrUon 21.07 Fare Mqj*mn ........................... Soodou2].O8 Rocording mfleuge, ' ........~.........4| ' 800Uoo2!.OD 8talonieoisand Invoices .' 42 %uoUuo2l.10 NO Option ./ 42 Section 2L/l Nakem................... .......................... ....... ................ ...... `........................... ....... ............ .... 42 8odimn21.12 AaIgnment to tylortgapm ......................... ................ ... ... ..................................................... 43 8wnMunJl.|3 Landlord's LinhUty �-.....~....—..~........~....�� 3wctiou2U4 Y1r;,,tLwm . / 43 ' %odion2l.l5 Right tnPerform J"ennmt'sCovenants ... ............ __...................... 44 Swction%i|6 Public User 44 Section 2l }7 Ca�|Uon�n ' � uu�ppm/ 44 800tfon2|.|8 Execution ufDocuments ............ .............. ' ' 44 8modmn2)2O Waiver of R,eclemptioll ............. .......... ............... ................. .............. ............................. 48 ' Smuflou212l �.~.............~./ 45 ARTICLE }[XD—TITLE TO S ARTCLE>D{8T K4LC8ANkCS^LlENS. / Soodoo25.0| Broh0Nun48 Section 25.02 81MmomenNdfil0au ,/d*a...... ........, ' 4.8 Section %5.03 &mnmdntkm.. . 48 Section 25,O4 providing' 4V Sw��u25�5 8nddnxEmbnn�mota|Audit ~.........~...~.419 ................................................ [6 40 U| Section 26.01 Smcdon M.02 sovdon 20.03 so,01:101126.04 Seaion 26.05 TABLE OF CQN78M8 49 RadonOtis ................................. ................. .................... ....................... ^^^~^.. 'No WiThbolding ny'Run ......... .~..~................. ............. ............. ........... .......... .............. 4V CoilOotof' hnt(wasC............ ........................................ ........ ................ ................ 49 ^CQN7Dm,�N�|B� '~^^'~~'^'^^^^^' ARTICLE XXIX~ ONSAND W&KlW4TIFS ` .^............�l �] s0o6ou20.0| Landlord's Representations- ........... .,......... ~................... .................... ............................... 5l �^uhon29,02 7ejmot'oKwpxmmntaMunn 51 SactionJ(0l Sod oil 30,02 Section3O.03 Ooctiou3O.04 GouUnn2O.U5 Bw*10100.06 Svm|i*o30.U? 3001,01130.08 DanOuo3O.89 3eat/oo3O.)0 Notice!oLandlord. ....... ......................................... .................. ....................................... S3 kighhoCum 53 NmvLnwsw ^'^^^^^~.^.~.........�4 `^.........84 ~^^^~...~'^~~~~................. .34 Nommrp' .~............... ......................... ....... .............. ..... .... ---- ............ .... J3 Multiple, LoasehddMvagaga LiabilityvyMmIenmehoN���"mm^ 55 Lmumaho|6Mwrtgmga°Action 55 ~^^^^^^''55 AR7IClEXXXl[�Pi,�7.RK]7��I'ANDE0KY|1,AK��QLIII�E'N4�'8 y6 &K11C1E XXX|D-- 2073D.S,DOLLARS 56 Al.�,I'K��wXX�7V~ OFC[7YRk3.HT8CONT''G,13NCY ^^~.~....56 A8Ik�I� ���%V��AN�IM MOR7GAG2L8NDER ApR"OVAL CONTD4G8NCY 56 AWRCL8XXXV]^'PFOK4ELANDLOKDAPPROVAL CON' 'INCENCY.... 87 ARTICLE,JDJ{Y]I~^8OVEK0MENTALAPPROVALS A,'DrDqANCD4GCD0?7N8ENCY.88 ARTICLE }CXXVD}~^fWASSnNADLENES3A10GOOD9TTR 58 IV Site Plan showing 9i� Marketplace (including M Demised Premises, Parkin C rag and nli \ [Recital Preliminary Sketch o T n f,! s Improvements [Recital 131 Legal Description orD mha Premises 'Arlc Q Plan m§mlia S qq 3,02] Farm /Payment and feift 7#m0 q§of JeffreyBerkowitz $ROg3M Exclusive Use 1@f+dh5'Section fM] Landlord A Approved &A ofSubtenant NDA "Section JI#(,I GROUND LItAISV, 'I1•:11S SLJB.GROUNI) LEAST (this "Lease") is made and entered into as of_{!\„Q,Ni;th ,,,G ,' , 2013 (the "Execution Date") by and between 1.3.A1',SU)E .114AI'�kiC'ETPLACE, LLC, a Delaware Mite liability company ("Landlord") and SKYFIR31.HH iVTIA1\'1[, LLC, to Florida limited liability company ("Tenant"). Molt* A. Purrrtanrrt: to that certain Retail Parcel Lease and that certain Parking Ciar.:ge Lr,".aaa (as such Terms are hereinafter defined), Landlord is the ground lessees Of certain real property located. in itlwrd, Florida, known as I3aya.ide Marketplace (the'°T3aya.ide Property"), as generally depleted on the site plan aatta.'bed hereto Sat Exhibit "A" (the "Site Plan"), 13, Tenant wishes to sublease from Landlord the Demised Premise (as hereinafter defined and generally deputed on. the Site Plan) In order to construct Do the 1)et1118ed Preaxylses tower structure (the "Tower"). and related improvements (collectively, the "Tenant's larrlrroventerrts") and 10 op,rate the Tenant's Improvements on the .Demised Premises as a retaillrestaurarntlerit« rlaainrnent•!fiying theater tort 1st attraction (the "Project"), A preliminary conceptual rendering of the Tenant's improvements is ai.ttaolied hearet as Exhibit "13", C. Landlord is willing to .lease the Demised Pt'emises to Tenth t upon the terms and subject to the conditions set forth herein for such purposes, NOW, THEREFORE, for good and valuable consideration, the r'ceip't and adequacy of which are hereby acknowledged,. Landlord and '1"enanc agree as follows: / .ARTICLE:1 • oEFFN1Tro 1S For purposes of this Lease, and in addition to terms defln f1 eiisewhere in this Leese, the .following defined terms shall havethe meanings ascribed thereto in this Article 1, "Additional Rent" na.eans any and all payments that ' chant is obligated td make to Landlord under the terms of this Lease outer than Preopening Rent, Fixed Rent an''Per'centage Rent:, "Affiliate" means, with respect to any 'Entity, aar 'Entity Controlling;, Controlled by, or under common Control with such Entity, "Allocated Condemnatiion. Proceeds" is deim I n Section 11,05(a) of this. 'Lease. "Applicable Breakpoint" is defined In Seetia. 41,03 of this Lease. "Bayfront Park Owner" means the owner ; record of.13aayfrontPark. "13ayfton't Park Parking Garage" is deJ'i ed in Section 2,02 of this Lease. "Bay:front Paric Parking Garage Leas is defined in Section 2,02 of this Lease, 'Tayside 'Property" is defined in t'l recitals of this :Lease, "Below Tower Parking" Is deft' din Section 2.02 of this Lease. "T3usi.ness Day" or "Business Days" means individually or collectively, each calendar day of the week atl:1 ' than Sa'taardcy, Sunday and nationally or State of Florida recognized holidays. "Cotn.nencetrtont Contingency" 13 defined in Sootion 27,01 of this Loam "Completion Contingency" is defined in Section 2.'7.02 of this Les80. "Constt'uctlon Commencement Date" means the date; es of which Tenant commences the consult ion of •the Tengult's> Improvements, which Sitall be evidencaacl by the commencement of t'l.)ty installation of foul dations, footers, pilings or the like (she clearing and the ntabill.ration of eclrtiptnertt and resotrrues therefor slit I not be • considered for ptrrpWAS of determining the Can stt'n'tition Commencement Date). "Control" (ancl the correlative terms, "Controlled by" and "Controlling") means the possassior , directly of Indirectly, of this power to direct or cause the rlli otion of management and policies of the business and affairs of the Entity in cjttaation by reason o'fthe ownership of voting interests, by contract or otherwise. "E)etau1( lithe" Is defined in Section 4.04 of this Lease, "Demised Premises" is that portion of the E ayslcle Property located on the Pier and gc orally depleted on. the Site Plan, together with all Easements as provided fbr in this Lease. The exact legal cicascrif .ion of the 'Demised. l'ranaises shall be determined pursuant: to an A.L'1"A. survey (the "Survey„) prepared by Tat tat, a6 "i annt's soli expense, and submitted. to Landlord its part of the Site Development. Plan Package. doter(;ed in Section 3.02(e1) below, Once approved as part of the Site Development Plan Paolctrxo, the legal description the Demised Premises shall be added to this Lease as Exhibit "CC". "Demolition Estimate" is defined In Section 3.03(a)'(vi) ofthiS Lease, " B emotnts" Is defined In Section 3,03(f) of this Lease. "1313-5 Funds" ran(1nns tlir)se 'filnds, if any, to be provided tthrough sta BE . Regionai Center to finance the Project. " EB-5 Regional. Center" means the investment vehicle formed pur mint to the dictates of the I7 MS' program commonly referred to ns the immigrant investor Ingram and §203(b)(5) of the Immigration Act of 1990; 8 U.S.C, § 1 153(b)(5), "Energy Credits" is defined In Article XXVIII of this Lease, "Entity" niaa.ns any individual, corporation, limited 'liabil' eornpnny, partnership (general, limited or limited liability), joint venture, association, joint stock company, rust or other business entity, organization. or assooiatlo'n. • "Event of Default" is defined in Section 13,01 ot'this L rises, "Evidence of Commencement of Ccrnstrucl;ion" is de Ailed in Section :3,03(c) of this Lease, "Evidence" of Completion oi'Construction" is defi .eel in Section 3,03(c) of'this. Lease, "Expenses" is defined in Section 3,04 of this Le<a "Expiration Date" is destined in Section 2.06(a) of this Lease. "ta'P&E" Is defined. in Miele XXxii.X, "Fixed gent" is defined in Section 4:02 of this Lease. "Guarantor" means Jeffrey L, Berkowitz, hulivldttally. "Guarantor Financial Statements" it/ defined in Section 3,03(a)(v1) °falls Lease, "Governmental Approvals" Is defined In Section 3,03(b) hereof; "Gross Sales" fire€u13 the dollar .aggregate of (i) all gross revenues directly mid tactually nicely d by or on behalf of Tenant (but not by Tenant's subtenants,. licensees and concessionaires) for all goods, wares, t lerohandise, service and rentals sold, leased, licensed or delivered by or on behalf o'f'fount on, lo' or in connect ion witlh,. the Demised Premises, including, without limitation, all revenue from the sale o'I' admission tickets, '.i' rn the sale or lease of signageD 1'i€flits tat )10)))II)g righTts, f)`oni. the sale of sponsorships, fl'oni 1.110 sale of onerg generated) 01' produced on. the Project iuid from parking foes generated 'fi'onl parking on the. Demised ?realises, wl other 111acki for cash, by Check, on credit, charge accounts or otherwise, Including, but trot limited to, transaction (A) where the orders originate at o1' are accepted by Tenant tit or on the Demised' Premises, bat delivery or pore° 1.11nnce decree' is made from or at ally other pinoe; all sales made and orders received on or at the Demised Premise a shrill be deemed as .Heide and completed therein, even though the payment, of amount may be transferred to , pother office :far eoliection, and all orders which result from solicitation off the Demised PI'elhhla(Ss blrt wh are conducted by personnel 'operating from of reporting to or under the control or supervision of any employee fTenant io'ofa,ted o)1 the .)"•)emised Premises shall b'e'de'eined part of Gross Sales; (r) pursuant to mail, telephon+, telegraph or other similar orders received or billed at or from the Demised ?remises (Including, but not !finite, to, orders which are accepted O1'trans'.nlltted by means of electronic, telephonic, video, compute)' or other electroi c of technology based system,. regardless of whether the orders are ilecepted or 'filled at the Demised Premises r accepted or filled by Tenant or its parent, subsiidiary or Affiliate at, any other location); (C) by means of mec 01111cai or other vending devices (except to the extent any such mechanical or vending devices ere not owned or operated by Tenant, Mon only the co)110111sion or fee received by Tenant shall be included In C,iross Sales); and ('17 originating 'fi°on) whatever source, and which Tent11.1t in the normal and customary course of Tenant's operations would. credit or arlributa to Tenant's business. conducted 111111E Demised Prenhisas, (11) all rent•, percentage rent, ae litional rent, license fees and any other revenue^, paid. or payable to Tenant 'fkotn Tenant's subtenants, licensees concessionaires or any other occupants of the Demised Premises and (ill)' all moults and the monetary 'value of I other things of value received by Tenant from Tenant's operations at, upon or 'li•olli the Demised Premises 1>;' ieh are neither included. in '11ot' excluded from Gress Sates by die other provisions of this definition, but without 1: y duplication, i.ticittding, without Ilm'1't'it't1Cln,.finance Charges, cost. of gift of Merchandise certificates and all. depos s not refunded to customers, Each charge o1' sale upon installlhtent o1' credit shall be treated as a sale for purposes 11'-roof in any month In which li partial or full payment is 111a:(.10 in an anhaunt equal to the natal payment received by errant lh@@t efbr 10 such. n1onth, Bath lease or rental of merchandise shall be treated as a sale in any month in whirl amount equal. to the actual payment received by Tenant, For the 10(1)0se 0 upon which the payment of ,Percenla.go Relit is to b'e computed hereund Gross Sates; (a) the exchange or merchandise between the businesses a respective subsidiaries where such exchanges are made solely for the co not for the purpose of consummating a sale which. has been made at, up to shipper's or manuibolurers; (c) sales of trade fixtures after use the trade and not sold in the ordinary Course of Tenant's business; (d) Included within gross Sales but not exceeding the selling price of accepted by Tenant (e) the amount of any local, county, state or provided such tax Is both added to t:he selling price (or absorbed (but not by any vendor of Tenant); provided, however, 110 french based upon i)1coh11e, profits or gross sales its such, shall be ':led all pass -through payments received by Tenant from others t Impositions actually paid by 'Tenant to Landlord pursuant to received by Tenant from others to reimburse Tenant for Demised Premises; (g) the €:mount of any Energy Credits (t amount received I11 etlllne etioll with 1;11C development 'or o1 relating to the Bayfror1:t, Parlt Parking Garage; end (I) arty or redevelopment of the. Marina, or otherwise relating Gross Sales, tlle'icr111 "Tenant" shall include any A'ffllif a partial or Rill payment is made i)1 1n ascertaining the amount of Gross Sales r, the following may be deducted from 01'nted by Tenant or its Affiliates or t:11011 ve) ient operation of Tenant's business and th o1' ftolo the :(Demised Premises; (b) returns eof, which are not part of Tenant's stock in tot or credit refunds made 'upon iransacttions he merchandise returned by the purchaser 1t11d Federal sales, luxury or excise tax on sixth sales rein) and paid to the taxing authority by Tenant or capital stools tax and no illaome or similar tax let) from Gross Sales ,In _any event whatsoever; (I) itnburse Tenant .for the Maintenance Charge and 1.c t:nrtiiii of 11113 Lease, and all pal -0 rough, payments Impositions, insurance or operating expenses of the such term is defined in Section XXVII below); (h) any ration of the Brtyfont Park -Parking Garage, or otherwise mounts receiver) in connection with the roconfiguradon of o the Mariana, For the purposes of determining Tenant's es of Tenant, "'finaardo'us 'Material" means any hazarclolt, radioactive or toxic substance, material or waste, including, but not limited to, those substances, materials and Wastes (whether or not mixed, commingled 011 otherwise combined with other substalhears, materials or wastes) listed In the United States Department of Transportation Hazardous Materiels Table (49 C.F,1R, Section 172,101) of by the Environmental Protection Agency EIS !hazardous substances (40 C;.Ia,R, Part 302 rind amendments thereto), or substances, materiels and wastes which are Or become regulated under any applicable Iaca:l, state or .federal law including, without limitation, any material, waste or substance which is (I) .a petroleum product, crude all or any talon thereof, (II) asbestos, (iii) polychlorinated biphenyls, (iv) designated as a. "hazardous substance" pursutlnt to Section 3 i 1 of the Clean Water Act, or listed, pursuant to Section 307 of the Clean 1r; s r Act, (v) defined as a "hazardous waste" pursnant'to Section :1004 &tlhe Resource Conservation and Recovery Act, or (vi) defined as a "hazardous substance" pursuant to Section 1 1'of the Comprehensive Environmental Response, Compensation, and Liability Act, "Impositions" means all taxes ('including personal property taxes, if any), assessments, sew ' rents, water rents and charges, duties, impositions, lichnse and permit fees, charges for public utilities ofaey loin , and payments a'.11cl other Charges of every kind and nature whatsoever, ordinary or extraordinary, ftwos'eel1 Or ua m seen, general of special that, during the Term, pursukmt to pr'eseet 'or 'future law or otherwise, shell have been or levied, charged, assessed or imposed upon, or become due and paysbie out of or .for, ar become or have bee me a lien on, the Demised Premises or any part thereof, or any Leasehold Improvements now or hereafter td thereon, qe the appurtenances thereto, or any franchises as my be appurtenant to the us.a and occupation of tih'e, Demised Premises. "Initial 'Construe don" means the construction of the fnllowhlf cornp'ohlerlts of the '.'enent's lmprovDalai) CS: (I) ti1:r Below Tower 'Parking, (ii.) the Tower, and (ill) the Observation Deck, "lraiti. it Contingeney Date" rrmeans the date that is 1 a'0 days following the 13xecut'n .Data, "institutional Lender" mums (i) a savings bank, (1i) a ,servings or bui:ldln,sand loan association, (nil) a 'commercial bank of trust company (whether eating individually or in any tlduola capacity), (Iv) an insurance company, (v) an 'education'al institutiolr, (vi) a State, 'n1rinicipal or similar public mpioyee;s' welfare, pension or retirement furtd or system, (Ai) a charitable or other eleemosynary institution, (v i' a real estate investment trust, or (Ix) any other Entity which, ii each of the foregoing (i) through (ix), has assets (capital and surplus) In excess of One Billion Dollar's ($1,0'00,000,000) in 2013 U,S, .Dollars (as smell tarns is cleened in !article XXXfl''') and whose prinolpai businesses include, among other things., ' interim or permanent 'f �ilanain ; secured by real estate (or ownership interests in real estate). A wholly owned subsidiary of an lnstitll:/cinal Len:cler shall be deemed to be an Institutional ,Lender for purposes of this Lease, Following the Opening wlate, the terra "Institutional Lender". for purposes of the definition of Leasehold Mortgagee only shall include any ,inky (other than an Affiliate of Tenant or an Affiliate °of any of'rena'nt's members or managers) providing i'inancil for the 'Project even if such Entity would not :otherwise quali.'f' as an .institutional Lander prior to arson Opening D 'ce, "Lease Yearr" means (1) as to the first Lease Year, the peri,d beginning on the Rent Commencement Date and ending on the' last day of the twelfth (12t5) full calendar nhont thereafter and (li) as to each succeeding Lease Year, each twelve (12) Calendar month period. commencing on thi first day of the first o'alenda.r' month i.imnediately following the' end of the iereceding Lease Year; provided that the final Lease Year shall terminate on the Expiration Date, Notw.ithstand'ing tlhe foregoing, 'reliant .may, in its sola'disoretion, eletit on a'one time basis, which election shall be made 111 writing and shall be made, if at all, prior to ;. e Opening Date, for each Lease Year to ccoinelde with a calendar year.. In sub event, the first Lease Year shall in, ludo the partial calendar year starting with the Opening Date and ending on December 3191 of that calendar year, aliens Fixed Rent and the 1;3reakpoint will be prorated for any partial Lease 'Year, "Leasehold improvements" means Tenant's improvements and any other buildings, fixtures or other improvements an the Demised Premises. "Leasehold Mortgage" h1l.eans any mortgage or deed of trust constituting a lien upon this Lease and the sub, leasehold estate hereby created and Tenant's title to Tenant's Improvements for the benefit of an .institutional Lender, and any —modifications, extensions, consolidations or replaoenlethts thereto of thereof, and any fatur'e advances thereunder, "Leasehold Mortgagee" means and Institutional Lender that is the holder of a Leasehold Mortgage, including any successor, assignee or designee, i'ncludi.ng the successful bidder at a foreclosure sale. 4 "MaLjor Subcontracts" Is defined in ,Section 3.0:3(0(vi11) of this Lease, "M'trrinar." means that parcel so identified on the Site Plan, The Matins Is not included in th ^ properly teased pursuant to the Retail Parcel Lease or the Parking Garage Lease. "Net Condemnation Proceeds" is defined in Section 11,05(at) of this Lease. "Net insurance Proceeds," is defined. In Section 10,02 of this Leaser, "Net Worth" means Ouar.Vntor's total assei:s whether held directly by Guarantor owough any entity in which Guarantor has direct or Indirect ownership interests or control less C ententor',s IV I liabilities (including contingent liabilities), "Observation Deck" is defined. In section 5.01 of this Low,. Whenever the term Nervation Deck Is used. in this Lease, it shall be deemed to refer to al least one or, at "Tenant's scale option, more th ra one observation decks, "Opening Tate" is the date that Tenant a.ct:ua.11y first opens both the Beiw Tower Parking and the Observation Deck. far business to the general public in accordance with the terms oflhl Lease. "Outside Completion Date" Mean the date that is two (2) years :foilowl g the Scheduled Construction Completion 'bate. "Outside Contingency Date" means the date that is one (1)year follo vino the Execution Date, "Parking Facilities" is defined in Section 2.01 of this Lease, "Poking Garage ntenne that portion of the r?,ayside Property so (dent( eel on the Site Plan, "Parking Garage Leese" is defined in Section 2,03 of this Leaser, "Percentage .,Lent:" is defined in Section 4.03(a) of this Lease. 'Permitted Uses" is defined hi Section'5.01 of -this Leese. "Pier" means that portion of the 13uyside Property so identifle on th tr Site Plam. The Pier is Included In the real property leased pursuant to the Retail Parcel Lease. ".Possession Data'" is cleaned in Section 2,01 of this Lease, `°l"reconutruetion Deliveries" is defined in Section 3,03(e. of thls Lease, "Propelling (tent" is defined it Section 4.01 of this Luse, "Prime Landlord" is defined in Section 2.03 of this .L.ese. "Prime Rate" means, et any time, the rate of 117101 Money Rates section of The Wall Street Journal; proviciec Street Journal shall cease publication or shall cease, public "P.rime Rate" as most recently published by a substanr reasonable discretion, and as determined in a mantle published in. the Monoy Rates section of the Wall Street ;st most recently published es the "'Prime Rate" in the , however, that If at any polr'rt during the term., the %Van .lion of. the "Primo Rake," the "Prime Rate" shall mean the al and responsible periodical selected by Landlord 1n its hioh reasonably approximates the "Prime Rate" as now ".Project Manager" Is defined in Section 5,02 of this Lease, ".Public Records" 'is defined hi Section 2,03 adds Lease, 5 "REA" is defined hi Section 2,03 ctfthis Lease, "Rent Commencement late" Is the same date as the Possession Tate, "Retail Parcel .Lease" is defined in Section2;03 of thls Leases, "Scheduled Construction Commencement Date" is defined in Section 3,03(e) of this Lease, "Scheduled Construction Completion Date" is clofned: in Section 3,03(c) of this .Lease, "Scheduled Olaenirrg''Date" is the same; date as the Scheduled Construction C'otrrpletioin Date. "Shopping Canter" means, for purposes of ants ).,ease, the 'l aysicla; property excluding the ,.)r:ittised Premises. "Site. ,Development Plan Paakar a'" is defined in Section 3,02(a) of this Lease, "Site Plan" is defined in the recitals of this Lease, "Tenant's Improvements" is defined in the recitals of tills Lease. "Tenant's Signage" is defined i.n Sec0o113,06 of this Lease, "Term" and "'T'erm of this T.,ease" rite defined in Suction 2,06(a) of this Loses, "Title Restrictions" is clrafined in Section 2,033 of this Lease.. "Tower" is defined in the recitals of this Lease. "USC15" means the United States Citizenship and Immigration Sur'viae. ARTICLE II .. (3RA.NT AND TERM Section 2,0 I gal, Eiffe.ctive rrs of the Possession .Mate, Landlord do a hereby derrtiso and lease the Demised Promises to Tenant, and Tenant" does lease and lake the Demised Premis s .from Landlord, Tenant shall notlQy Landlord in writing not less than forty-flvc (45)'days prior to th.e darts Tenndesires to take possession of the Demised .premises in 'advance of tine commencement of oonstruolion (the "Pus: esslon Date's), 'Landlord further grants to Tenant during the Term, the non-exclu.slvo right, privilege and easel ,Ant, for Tenant, Its subtenants, and their respective concessionaires, licensees, employees, agents, customers and nvite'es ("Tenant's Penniticcs"), to use the pedostt•lan pathways acid the pedestrian/vehicular access roads ht th Shopping Center from time to time Made available by Landlord for pedestrian and vehdcular ingress and egress tc and front the Demised Premises to the p,rbiic streets to which such pedestrian pa11iv'ays and pedestrian/vehicular access roads connect, in common with the other tenants, concessionaires arnd licensees of the Shopping Center and t e respective officers, employees,_ agents, customers and invitee's of each (the "Common Areas"), without peyrner of any foe or other eharge. In addition, Landlord grants to Tenant and Tenant's Penni.ttees the non-exclusive r.i.EY. t, privilege and easement to use such areas of the Shopp'lnp, Center front t'lnte to time used for the parking of vehic s, inclt.rd:Ing, without Iiintit01o11, any stu°htce parking field or the Parking Mirage serving the Shopp'.ing Center (col ectively, the "Parking Fa.oilities") in common with the other tenants, concessionaires and licensees of the Shopping Center and the respective officers, employees, agents, customers and invitees of each, subject to such .uniformly a-. d consistently applied .parking fees es Landlord. charges from tine to time at the Parking Facilities for 'dl'fibre t categories of users .(including cust:on1el's and subtenant employees) and otherwise on the same terms as others who use the Parking Facilities, Landlord retains any existing easements over and across the ,portions of the Demised Promises that do not Ile beneath any building constituting the 1"euant's Improvements, as will enable Landlord to maintain utilities which serve the adjoining Shopping Center and to perform Landlord's maintenance obligations pursuant, to Section 8,0.1 of thls Lease.. Landlord retains the right to use the pedestrian pathways and pedestrian/vehicular access roads in or on the Demised 6 Premises from time to am made available by Tenant for pedestrian and vehicular ingress/ogress, an to use tits parking on the Demised PreMae, Subject to such uniformly and consistently applied parking foes .as T' nfint charges from time to time for different categories of LISN'il (Including customers and subtenant employees) at otherwise an the same terms as other using same, Section 2.02 ,T„qwerldIng, Tenant intends to construct garage perking 'below the ' 'ewer (the "Below Tower Parking"), as well as use commercially roasonable efforts to negotiate a lease with the 1 ayfront Pk Owner for .the cmistrectIon of n. parking garage at Bayil'ont Park (the "Bayfront Park Parking Garapl") in order to satisfy any additional minlimun parking requirements for the Tower pursuant to the local zoning c le (the "Bayftent Park Parking Garage Lease"). Without limiting the generality of the foregoing, Toinnit shall b responsible, at its sole cost and expense, for replacing (a) the actual number of parking spaces required by Prin Landlord to replace the surface parking spaces presently located en the Pier that service the Marina (not to ex ..eod 47 spans), and (b) required by Prime Landlord, up to the 89 slane parking MICOS presently looted ' "Lot 55" on the Plot that primarily service the Shopping Center, hi oath case either in the Below Tower Par (Mg or in the Bayfront Park Parking Garage, Landlord agrees to provide the number specified in Sections 2,0 ..(a) above, VIA If required by Prime Landlord during the period of the Initial ConatrtletiOn, the 1111Mber specifi• d in SectIon 2.02(b) above, of telnp01.1.11), parking passes (at no charge for the Section 2.02(a) spaces and at the t tifonnly and oonsistently applied charge for the Section 2,02(0. spice)• for the benefit of the patrons of th0 KWh commencing on the dote that the surface parking on the Pier servicing the Marina is unavailable through :the Ope mg Date. Section 2.03 Tidualtyklisleirep,exty, Landlord and Tenant acknowledge that Landlord leases the Bayside .Property pursuant to: (a) Amended and Restated Lease Agreetno t dated October 15, 1985, between the City of Miami, Florida ("Prime Landlord"), Et$ landlord, and Baysido .enter Limited Pannership, a Maryland Limited partnership ("Daysido") (prodecessor-in-interest to Landlord), fig 'mant, a memorandum of which lease was recorded on October 29, 1985 under Clerk's .Pilo Number 85R-3378 9 in the Public Records of Dade County, Florida (the "Public Records"), as modified by that certain First iendment to Amended and Restated Lase Agreement dated August 19, 1986, as fluter modified by that artain Second Amendment to Amended and 'Restated Lease Agreement dated November 24, 1987 and Momora dum of Modification of Lease dated November 24, 1987 recorded on December 1, 1987, under File Clerk's N mbar 41508'16 in the Public Records, as -Anther modified by that certain Third Amendment to Amended and Res ated Lease Agreement dated as of April 15, 1993, and also modified by that certain Trl-Paily Agreement rogardine )0Et Boulevard doted, July 19, 1988 and recorded In 0,R.13, 13849 at Page 1003 in the Public Records, as amende by Agreement dated December 8, 1997 and further amended by Second Amendment to Tri-Party Agreement datei December 29, 2003 and reeorded hi O.R.B. 220.60 at Page 2591 in the Public Records ((he "Trl-Party Agreemen ') and as further modified by that certain Release and Settlement Agreement dated December 30, 2008 (the " '.dlement Agreement" and together with the Tri-Party Agreement and all of the lease and memoranda of 'lease .theunients listed in this *MP (n), Collectively, the "Retail Parcel Lease"); and (b) Lease Agreement dated ;rutin 1 14, 1985, between the City of Miami, as landlord, and Bayside, as tenant, as modified by that certain First Am ndment oyAgreemont of Lease dated October 17, 1985, and as !hillier modified by the Tri-Party Agreement, al c as further modified by that certain Second. Amendment to Beyside Parking Garage Lease Agreement dated Sept mber 1.3, 1988 and recorded in 0,R.13 13849 at Page 1012 of the Public Records, and as further modified by th certain Third Amendment to Baysido Parking Cartage Lease Agreement dated as of April 15, 1993, and as. f thar modified by the Settlement Agreement (collectively, the "Parking Garage Lease") with respect to the Par Owego, Accorclinglyjerimandlandi.04 hore22LLxgressly ,af.:kno,,zdedge--tind--egree_thatthis Lease )s, sett ,I1, a sublease and 1s Apbject find subordinate to the.. terms and - conditions of the ReigliPwel lase aird dui P rkingSlatigiVeTase;Tho foregoing grnairliffiriffe leasehactostato oreated thereby era E11:10 subject to the followi (I) Resolution No. 84-724 by the City of Miami ("Resolution") and the Major Usa Special Permit attached to .. /in Resolution ("MUSP"); saki (11) the Miamarina Agreement dated October 24, 1995 by and between l3ayside rd to City of Miami Marina Agreement"). The "Zeta!) Parcel Lease, the Parking Cane Lease, the Resolution, a MUSP arid (he Marion Agreement, as amended, restated, assigned or otherwise -modified from time to the (b-u/net without the reasonable approval of Tenant to the extent any of same would materially adversely affect Tone Xs rights under this Lease), are collectively referred to as the "REA". Landlord agrees that It shall not enter In any covenants, easements, or other agreements after the date of this Lease that prohibit or restrict 'renant's use of he Demised Premises tbr the Permitted Use or construction °rifle Tenant's Improvements or materially adverse) afflict Tenant's rightsunder this Lease, without Tenant's prior written COnSen't, which may be withheld in Tenant's sole discretion (any such covonant§, easements or other agreements that either do not require Tenant's consent or if required, In respect of W111011 Tenfint10 consent is given, are collectively 7 referred to as the "New Title Matters"). Landlord acknowledges th ,. c MCJSP and the M mu Agreement may require nnodifitratioar in connection with, this"i ctjt r `tffai ace tluit Tenant nyayJ,tilsi'ie 'ti 1 r ail 'ca > ti ".col ' LandicirePs-pzitrr-writtert-approvtsl."o r• M`v 1'l'cli iliproc gl ifil`rro't e linreason7UT conditioned or delayed so long as Landlord's rights with respect to the Shopping Crater (incl din, vidthout lilniiation, development; rights and entitlements) tu•o not materially adversely impacted and its obli at'ions to Prime Landlord are not .materially increased or expanded by any such modifications, ,Lease shadl be subject in all res yectswtt7(a) the Ratan Parcel Lease (ty) rr.11 ire t,t r, s t��1s[ I� aruay r c ,w... encumber the Re" a -f rWelI t "and to ~a1.1,y and all reraetviifa,ThiZiliiitatl1,' or co43o11dtttions, repiacement.s and extensions of any of the,, foregoing, the leasehold estate or estates thereby crated or the real property of which Me is and other matters of record ctrrtentiy w "Title Matters (tire "Title Restrictions"), a and perfarmi or crmsa to be kept, observed uired of Landlord hereunder, tender the terms the extent they rebate or pertain to the Demised ris, covenants and c:onci.itio.na of the Rt lttJl Parcel Pence into this Lease as if completely set forth d cause a default under" of a violation of, any term, any Title Restrictions and, to the extent claims are e fbre,going obligations, "Tenant shall indemnify, defetid inis, liabilities, costs and expenses (includ'ing reasonable date hereof:, Tenant shall order a commitment for title to Landlord (the `Tide Company") covering. the Demised and Tenant shall cooperate 'with each. other and the Title ray, under IliaTitle Restrictions relate or pertain to the Demised e extent any of the Title Restriction's Impose obligations that do $ and the Title company will not remove sane tl'oro the 'fide shall not cause .or permit any act which would cause a default under talon of such Title Restrictions, and Landlord shall keep, observe and performed, 1CI;lthflilly such terms, covenants and conditions required of of such Title Restrictions and, to the extent claims are asserted against of the foregoing obligations, Landlord shall indemnify, defend and hold uch claims, liabilities, costs and expenses (including reasonable attorneys' Demised Promises form a part, and (c) all covonenis, agraontents, aaasanl affecting title to the Shopping Center or the Demised Premises and an Except as otherwise expressly set 'forth herein, Tenant shall keep, obsar and performed, Paithfuil,y ail thorax terms, covenants and conditions re and conditions °ftltee Retail Parcel. Lease and all Title Restriotions, t Premises, except trs otherwise expressly provided herein (which (.,ease and ;afi Title Restrictions are hereby incorporated by r herein), Tenant shall not cause or permit any act which wilt condition or provision o.Xtl'le term of the Retail Parcel Leas asserted against l .,andlord. as a result of Tenant's breach of and hold Landlord harmless from and against all such c attorneys' .fees at all tribunal levels), Promptly after insurance (roil a title company reasonably ecceptab Premises (the "Title Commitment"), tune( Landiot Company to identify I11 writing what obligations, i Premises and memorialize wale in writing, To not relate or pertain to the .Demised) Premis Cormnitnleat or insure over the same, L randier or a violation of, any terns, condition or pro perform of cause to be kept, observed an Landlord limier the terms and. condition. 7"matt as a result of Landlord's bread, Tenant harmless fi'on1 and against all fees at all tribunal iaveis). Section 2.041 Site ;jt f, The Site Plan is not intended as a representation to Tenant that all matters appearing on the Site Plan are ex, illy as shown thereon and Landlord. reserves the right at any time to subdivide the Shopping Center, to innke altyi•F1tio11"a or additions to any existing improvements on the Shopping Center, to construct additional 'buildings on the Shopping Center, err to construct additional stories. 011 the buildings ideated within the Shopping Center r on the outparoois thereto within the Shopping Center, or to constr•uet additional impr'oveme'nts on parcels aP oining the Shopping Center (other titan the 'Demised Promises), or to reconfigure the Common Arms of the ,Sh, King Center, as long as said alterations or additions do not materially and adversely disturb 'Tenant's xiulet :'tjoynlerrt of the Demised :Premises or n)aterlally and adversely interfere with the construction, operation, i' access to the '1'o.nant's improvements. Landlord also reserves the right at any time to demolish. all or any p-Mon of the Shopping Center and construct other buildings, gn•uctlires or improvements Including, but not lim. ed to, surface, elevated or multi -dock parking facilities and to great temporary scaffolds and other aids to construction as long as said construction does not materially and adversely disturb Tenant's quiet enjoyment of the 'Demised Premises or materially and adversely interfere with the construction, operation, or access to the Tenant's 'Irnpl'nvorrlents. Landlord will use commercially reasonable efforts to minimize incotrvenionce to and disruption of the ('Demised Premises, the occupants thereof and the operations thereon during any of the foregoing construction activities. Notwithstanding and without limiting the .ffiregoing, there will be no material adverse impact in pedestrian and vehicular access and traffic flow between the Demised Premises and the Shopping Center during the Term from what currently exists. Section 2.05 A,r„peti egsµ((,,4w ,gix , etlz„ r ko, Tenant accepts the Demised Premises in its "AS -IS", "W1-Ti3R1'3"1.S" oorrclition "WITH ALL i A'u '.l SY' without arty reapresen.tation or warranty, express of Invited, .in fact 8 or by law, on the part of Landlord, turd without recourse to 'Landlord, except as otherwise expressly sot forth in this Le'aSU, Section 2„Ot5 , F,i„I i,"I'he term of this Lease (the "Term" or the "Term of this Lease") shall eattttlloito+ on the Execution Date and shall expire on the expiration. date of the term of the Retail Parcel !,,ease, including, a 0,M:0118101'1s theraof, whether parrsliat'It to that t,xet'oise of any renewal. options thereunder or otherwise, which , re exercised or otherwise entered into by Landlord, In Landlord's ;role and absolute discretion (the "Expiration ''Daa e"), Landlord shall provide Tenant with written mortice, no later than one (1) year prior to the expiration of the alai! Parcel Lease (including any extensions thereof), advising whether Landlord intte.nds to exercise any rcnewa option or has otherwise entered into an extension of the term 'ofthe Retail Parcel Lease, (b) Tenant shall have the right to negotiate directly with Prime Landlord for a elir ot lease, or direct outright purchase, of the Demised 'Premises, to be effective at or following the ekp[ra'tittlt or term lotion of the Retail Parcel Lease, subject in MI events to Landlord's rights under the Retail 1>'a roe! lease prior to It expiration or ter'11'linatiolt, and Landlord agrees to cooperate with Tenant in this regard, at no ultab'ixfilixatcd. third par oldt,of,packet: cost or expense to Landlord. ARTICLE P1' ,» CONSTRUCTION ION OF IMPROVEMENTS Section 3,01 J4.1,011114. Tenant shall be responsible to supply any utilities to he Demised Premises (including, without limitation, electricity, water, naturai gas, storm sewer and sanitary :ewer) required for the Pi'ojectpw suant to the Approved Plans, Section 3,02 Tehe a(i T'.iallas, • (a) Si'' 3e,3!cJopineltt Phu Pa01,0., Taunt shalt submit to 1 andiordeach of the Item listed on Exhibit "1:)" attached hereto (collectively, the "Site Development Plan Morales as") in the form of a CAD fflo, together with a pdf copy, by email, and two (2) hard copy prints sent by over ight delivery, in accordance with Section .21.,11 of this Lease. The Site Development Plait 1?e.ckage and any rev ions thereto shall be subject to die prior written approval of .Landlord, In its sole rind absolute discretion throng the Opening Date and thereafter In Landlord's reasonably exercised business ,judgment. Landlord shall have period of thirty (30) days following receipt of the entire Site Development Plan. Package and ten CIO) Busbies ays fo iowtng receipt of any revisions thereto within which to .review a1nd approve or disapprove'Tertant'.; Site D 'eioplt'tent Plan Packages o1' any revisions thereto; 'provided, however, that In the event Landlord shall not have re,.pondad. to Tenant with Landlord's written approva[ or disapproval of Tenant's Site Development Plan Package or ny revisio'rts thereto wither such thirty (30) day period (or its to revisions, such ten (10) 'Business ))'ay period) to provided further Tenant has submitted any such approval request In an overnight delivery envelope (and an et ail) in accordance with Section 21.11 hereof, with the following caption at the top of the 'first page of the ttal mittal letter/memo or e itt 1i1 in bold lettering "LANDLORD'S RESPONSE IS REQUIRED WITHIN "II ITV (30) DAYS [OR WITHIN' TEN (10) BUSINESS DAYSIN THE CASE f)OFitEV1SI0NSj la'I.,OWING:T RECEIPT OF THIS NOTICENOTICEry� PURSUANT TO HE 'TERMS OF THE LEASE' Land, rat shall be deemed to have approved such Site Development Plan Package or the subject revisions thereto. If (i) Landlord disapproves any element of the Site Development Ilan Package,, or any revisions thereto, or (11) T na.nt notifies Landlord or Landlord otherwise becomes aware that any element or the Site Development Plan aokage previousll'y approved by Landlord cannot [te implemented, In the manner originally contemplated (4.,, oncrete pipeline through Biscayne Bay front the Port of Miami property), and in the case of either (1) or (1i) ab ''e, Tenant 1s unable to modify the Site Development .Plan Package or any subsequent plans approved (or deemed approved) by Len'dl.ord as contemplated by Section 3,02(b), (c). or (d) below to the satisfaction of Landlord, in its ale- aid absolute 'discretion, within thirty (30) days following the occurrence of (I) or (il) above, than Landlord sl i1 have the right to terminate this Lease by notice to Tenant in writing at any time thereafter whereupon,. Landoor' and Tenant shall have no further obligation or liability to soap other, except pursuant to the provisions of'thts 'l. r.aso that explicitly survive the termination of this Lease; provided however, that this termination provision in fav,r of Landlord shall terminate and be of no fliriher force or effect foliowixtg the Opening Date, (b) eslgl,X,.Develoo a.. aj, n , Following the approval of the Site Development 'Plan Package by l,,,andiord, Tenant shall submit to Landlord plans and specifications consisting solely of architectural and. civil plans for the Tenant's Improvements as listed on Ii:;xlribit. "D" attached hereto (tire "Design Devolo n ent Plane) in the, form of a CAD file:, together with a pelf oopy, bye mail, and two (2) hard copy prints sent by itonight delivery, in accordance with section 21,11 of this Loose, "Tenant may submit the Design 1;)4voiopmo Plans to Landlord In two portions, ON portion comprising the arohitectrrrni plans and the other portion compris' 1g the civil plans. The Design .Development Plans and any revisions thereto shall be subject to the prior writte .approval of Landlord, Landlord's approval of the Design Development Pions or any revisions thereto shall not unreasonably withheld 80 long as the portion of the Design Development Plans or any revisions thereto addresain,, the ToWar shall not materially deviate flora tine rendering oft:lle Tower approved by Landlord as'part of the Site evelopmeant Plan Package, Landlord shall have a period of thirty (30) days following receipt of the TSe.sign De alopment Plans or portion thereof and ten (10) ,Business Days following receipt of any revi,sion'.Ili, t'her'eto within ilich to review and approve 01.' disapprove the Design Development: Plans o1' any revisions thereto, or the appl able portion thereof; provided, however, that in the evr.nt Landiord ,hail' not have respoa:lcled to Tenant w1111 Laan . ord's written approval or disapproval orate Design Development Plans or any revisions thereto within such thirty 30) day period (or as to revisions, such ten (10) Business period) and provided Airtime Tenant has submittedray.such approval request in an overnight delivery envelope (and an email) in accordance with Section 21,111 eroof, with the 'following caption at the top of the first pogo of the transmittal letter/memo or e-mail in bolt lettering "LANDLORD'S 1±;1 SPONs1i 1S REQUIRED 'WITHIN THIRTY (30) DAYS fOP. WITHIN TIE (10) BUSINESS .DAYS IN THE C;'A.SJC Or li EV.ISIONS) FOLLOWING RECEIPT OF THIS NOTICE P1 UANl TO THE TERMS OF T1fF LEASE", Landlord shall be deemed to have approved such Design I:) relopmant Plans or the subject revisions thereto or the applicable portion the'reo:f, Notwithstanding the .ibregol g, '(I) wlrtd tunnel test report(s) ("Wind Reports") shall also be Included as part of the Design Development .PI. 1s, (ID the Wind Reports may be submitted by Temmt to Landlord as a separate sub'missiorl, and (Hi) Landlord's G pproval of the Wind Reports shall be at Landlord's sole and absolute discretion. (c) g.R°/.,t!,'ltill, ,, Following the approval of the Dcsit i ,Development Plane by Landlord and, 'Conant shall submit to Landlord plans and specifications Consisting solet of architectural and civil pions, for the Tenant's Improvements at 60% completion in the '1brn1 of a CAD ff le tog her with a pelf copy, by email, and two (2) hard copy prints by oa'arniglrt delivery, in accordance with Section 21.1 o'fthis 'Lease, including, without limitation, all of the plans specifically identifi.ed in subsections (a) and (b) ab ve, as well as a final landscape plan, final hardscape plan and. final site plan (the "60% :Plans"). Tenant naay sub .lit the 60% Plans to Landlord 111 two portions, one portion comprising the architectural plans and the other portion 'Ornprlsh'15 the civil plans, The 60% Plans Glad any revisions thereto shall be subject to the approval of Landlor'. Landlord shall not unreasonably withhold its approval of the 60% Plans. or any revisions thereto to the extol)' that such 60% Plans substantially conform .in all material respects t0 the Design Development .Pleas or any revi . ons thereto approved by Landlord, Landlord shall have a period of thirty (30) days following receipt of t'he 60% tans or portion thereof and ton (1.0) Business Days following receipt of any revisions thereto within which to ro rew and approve or disapprove tho 60% Pliers or any revisions thereto or portion thereof; }provided, however, t'I t in the event Landlord shall not have responded to Tenant with Landlord's written approval or disapproval ;a f Temm't`s 60% Plans or any revisions thereto or the applicable portion. thereof within such thirty (30) day p ioc1. (or as to any revisions, such ton (10) :Business Day period) and provided further Tenant has submitted any s eh approval request In an overnight delivery envelope (and an email) in aocord.anaa with Section 21,11 hereof, wi,h the following caption at the top of the 'first page of the transmittal letter/memo or e-mail in bold lettering `LANDLOR.O'S RESPONSE IS REQUIRED WITHIN THIRTY (3O) DAYS [OR wi"1'1.1'IN TEN (1.0; BUSINESS DAYS IN THE CASE Oir REVISI Ns) FOLLOWING RECEIPT OP THIS NOTICE JRSUANT TO THE TERMS OP THE LEASE", La.ndlord shall be deemed. to have approved such 60% Plans or the su'bjeet revisions -thereto or the applicable portion thereof (d) 1 �'J11tl�S,, Follow! g the approval ofthe .60% Plans by Landlord., Tenant shall submit io Lanclicard plus and specifications consisting solely of ar hiteotu'ral and civil plans, for Tenant's Improvements at 10014, completion in the form of a CAT) file together with a pdf copy, by moil, and two (2) bard dopy prints by overnight delivery, in accordance with Sec on 21.11 of this Lease, including, without limitation, all of the plans specifically identified In subsections (a), (h• and (c) above (the "Floral Plans"), Tenant may submit the Final Plans to Landlord in two portions, one portion cot prising the srrrhlte emral pions and the other portion comprising the civil plans, The Final Plans and any r'evls'iat.r thereto shall be subject to the approval of Landlord. Landlord shall not unreasonably Withh.old its approval of 1e Final Plans or any revisions thereto to the extent that such Final Plans substantially (aoiiform in all material • ospccta to the 10°iir Plans or any revisions thereto approved by Laodiord, Landlord shall have a period of thirty (30) days following receipt of the Final 'Plans or portion thereof and ten (10) 10 Business 1,)nys following receipt of any 1'e'i8io1nS thereto or portion t'ber'eof'within which to review and. approve or distil. prove the Final Plans or any revisions thereto; or .the applicable portion thereof; provided, however, that in the event; Landlord shall not have responded to Tenant with Landlord's written approval or distrpproval of Tenant's t3'taI Plans or any revisions thereto or the applicable portion thereof within such thirty (30) day period (or as to rev 'i.ons, such ten (I 0) Business Day period) and provicled further Tenant has submitted any such approval regi t in an overnight delivery enveiope (and an email) In accorclanoe with Section 21,11 Thereof,. with the following aptlon at the top of the first page of the transmittal letter/memo or e-mail In bold .lettering; "I,,ANDLORD'S .R.ES ONSE, IS REQUIRED WITHIN' Ti'IIRTY (30) DAYS fOR WITHIN TEN (tit) BUSINESS I).A.YS IN TI'I CASE OF REVISIONS" FOLLOWING' Rls;CE'IPT OF TIIIS NOTICE PURSUANT TO 'I'LIE 'FER1 S O1'+' THE I,O;AS1%", Landlord shall be deemed to have approved SUci1 Inc`il Plans of Iho SUbJeot r'eVISIonS thereto or the applicable portion thereof. Tho Final Plans for' the Tenant's Improvements, as so approved by Lai lord a'r'e herein re fbrred to in this Lease ns the "Approved Plans", Atter obtaining Landlord's approval, the Appr'ov d. Plans shall not be changed without the written approval of Landlord, Landlord shall not unreasonably withhold ' s approval to any revisions to the Approved Plans which clo not constitute material. changes to the App.rovw .Plans.; provided, however, to the extent such proposed rc;viaions entail material changes to the Approved Plans, andiord's approval thereof shall be at the sole and absolute diseretlon of"Landlord, (e) Revdoprilcint Meetings, Tenant agrees that in connection with. e: eh. of the submittals to Landlord as described in Sections 3.02(a) through ((I) above, Tenant will schedule a de elopluen't meeting with Landlord's representatives to be head hi Miami Florida (or such other location as raautua y agreed) on a mutually convenient date and at a mutually eonvenlent 'time fear the purpose of discussing the Subject submittal (each n "Development Meeting"), Landlord and Tenant shall endeavor to schedule each Dove.•7pmotlt Meeting within two (2) m'eel<s following the Tenanht"s delivery of each of the submittals outlined In Socain%s 3,02(e) through (ci) above,. Landlord shall have the right to request tihrrt, additional Development lvteetings be ;chedtried as Landlord deems reasonably necessary throughout the plan approval prOODS8 and Tenant shall cooper e with Landlord In scheduling Snreh additional Development Meetings, Except in connact'iorl With a i eter'ial ca'st41'lty or conclen'I.itation Where the Tenant's, Improvements cannot be restored and rebuilt as 'nearly as possible to II. Q condition they were In prior to such casualty or condemnation and Tenant proposes to replace the HMO with Im rovemerris that will either (i) have a materiel adverse effect on the views frown the Shopping Center as such views 'xi.sted at the time of the casualty or condemnation or (li) comprise, more than two hundred percent (2.00%) oft e Y. o> s ieaseable area than existed at the time of the casualty or condemnation (a "Material Rebuild") then this subs dtion (e) and subsections. 3,02 (a)-(d) Shall not be applicable after tine Opening Date and, .ther'eafier, construction r lamed "natters shall be governed by the other provisions of this Lease including, where required, a wine step sub%fission end approval process. For the avoidance of doubt, the parties acknowledge and agree that all the pro ions of this Section 3,02 shall apply in connection with a Material Rebuild except that the standard for Landl!r'd's review of the Site Development Plan Package shall be a commercially reasonable standard, not a sole and ab'elut'e discretion standard, (f) Cotlstructioa..•Drawia.., tenant agree' that If requested by Landlord, Tenant shai.l provide Landlord with access to, or copies of, the censtructio'rf dr rings at any stage of the plan approval process outlined in this Section. 3,02 or at any time following Landlord' Y approval of the Approved Plans and during the Torre of this Lease. Ono delivered pursuant to Section 103(in connection with the initial construction of the Tenant's Improvements or any Material Rebuild, Taimnt's eb gat.lon :under this subsection (t) shall be to provide whatever is then in Tenant's Possession or control., with no representation nr warranty of the acetn'aey or completeness thereof, (g) 1.111Pllg, ?far ql, ig11, ? .,Y+'. tu:Italey. Landlord's review Otte Site Developrrsent Plan Package, the 'Design Development Plans, the 60°i' 'Plans, and the Final Plans shall be strictly for I.,arrdlord's purposes. Saab review shall not constitute an eva.luati n of the quality of Tenant's designs or methods, the quality, fitness, safety or soundness of the Tenant's .Improve Tents, or the compliance of the Approved Plans or any such Tenant's Improvements with any applicable r,'eq.u'. enients of law, Tenant acknowledges and agrees that the development and construction of the Pr'oiedt sha be at the sole risk, cost and expense of Tenant, Except in connection with 'Landlord's review and approva of the Site Development Plan Package, Landlord shall have no approval rights whatsoever in respect of any r aysicali characteristics of the :Project that are not visible from a iocation. within the Shopping Center, Section. 3,03 , ,q1.a; ;b„ricl;7el ,0 " t' lla� �r rtrltil{, (a) Con,,... atjc Ellansintyment. anal.,'e.1:. o!'.i. tErag. Lands,, Tenant shall not con trance the Initial' Canstruotlon (Including, without limitation, the mobilization of equipment and resources thorefo on the Demised Premises) until Tenant has provided to Landlord the follotnwing: (i) a construction tia'neline for the. c,onst'ru.etion and development of',the 'Tenant's Improvements, satisfactory to 'Landlord, in Landlord's reason. 'le business judgment (.the "Construction Timeline"); oo.n,ti'uctlnn batdr et for the construction and dovelopna tSt of the Project, satisfactory to Landlord, in Landlord's, reasonably buss ess judgment (the "Constructions Budget"): (ill) a construction loan commitment (the "Loan 'Coim iitme t"), in form and content reasonably satisfactory to Landlord. 'Isom an Instil; Winn] Lender ("Te:riant',s T.,encler"). The :f,,oan Commitment shall be for a ter 'a' of not less than three („l) years or such greater. period of time as is required.. or completion of the Project pursuant to the Construction 'li.naolitiet (iv) if Tenant pursues financing through an El 5 Regional Center,. such E13-5 Regional Center shall have been approved b; the TJSCI'S and the United ;states Department. of Homeland Security, The rnt sheet with the Ea,,5 Regional Confer shall be satisfactory to Landlord it (sy reasonable brssi essl,judgtnent (tile °"EI3N5 Cornnsitnient"), The 1f,1:345 Coin ailment shall provide that at leaa;it ten percent (10%) of the 'I11•5 Funds slag be held In escrow at a United States financlal Institution that qualifies a <n Institutional Lender with the balance either being held in such escrow 1' used for the puriposa of financing the construction of the Project pursuain to the approved Construetion Budget (v) evidenoe reasonably satisfactory to Landlord that Tenant i'aa.s and hes deposited with Tenant's Lender satffie.ien Minds ("Tenant's Equity") to pay for that portion of the costs of the co'nstrtr.etl''i and development of the Tenant's Iinprovemen'ts In excess of the amount: n', the Loan Commitment and 1313.5 Funds actually deposited with the 1313-5 'Regional Canter hi the aggregate ("Evidence of Tenant's Equity"), The Lean Commitment, the L33-5 Funds (if applicable), end Tenant's tqu'ity shall , in the reasonable business judgment of Landlord, sufficient to finance t e construction of the Tenant's Improvements and are herein sometimes collectively referred to as the "'Project Financing"; (v1) a guarantee from C': i<rran.ter for the payrne• nt a and performance of all of Tenant's. Tlaitial Construe tla,t obligations and Tenant's demolition obligations as required pursuant to Seeti no 3,03(i) (IDernolition) and 27,03 (Termination .Rights) of this Lease in the for attached hereto as l'ixiaibit "L" (the "Payment and Performance Guaranty") estimate reasonably acceptable to Landlord of the post to. demolish an remove Tenant's Improvement's (the "Demolition Estimate"), and financial s ttonaents reasonably acceptable to Landlord evidencing that Guarantor aas a then Net Worth equal to not less than two hundred percent (200%) . the 1)enn:olition Estimate only (and, for c.inrltieation, not the cost of the Mid' Construction) (the "Guarantor Financial Statements"); (vii) a col'' o.f 'leriant's construction contract .for the Tenant's Improvements (the "Go oral Construction Contract") with a general contractor satisfactory to La dlord in its reasonable discretion; it being understood and agreed that the acra) Construction. Contract shall be a guaranteed maximum price contract at Is consistent with the Construction Budget; 12 (viii) copies of all subcontracts for the Tenant's Improvements than in pl ee it'l the amount of Five Million i)o'llars (;{ 5,000,000) or greater (t e "Major Subcothtrelet's"); and (ix) payment and performance bonds 'for the General Construed ] Celntra'eat Si statutory form and from a surety or Yun ties satisfactory to 1 andlord, In its reasonable discretion, which bonds shall guarantee: the full o. npletion of and payment of all costs in connection with the construction of a of the Tenant's Improvements, in accordance with the Approved Plans and 'he Governmental Approvals thsinPor (the "Payment and Performance Bonds" and together .with the Construction Timeline, the Construction Budget, the Lon Commitment, the B13-5 Commitment, the Evidence of Tenant's Equity the Payment and Pstrfortna.nco Guaranty, the Demolition 1sstimat:e, the Guarantor Financial Statements, the General Construction Contract, and the 'a;jnr'Contracts, herein collectively referred to as the "''reconstruction Deliverie+"). Tenant shall flarnlsh to Landlord all of the Preoonstructlot] Deliveries by no later than ti irty (30) clays prior to the Scheduled Construction Commencement Date (as such term Is defined in Section 3,03 c), below), Landlord shall have a 'period of thirty (30) days following receipt: of each component of the Ptceonste ctlon Deliveries or ten (10) Business Days following receipt of any revisions thereto within which to request all ipportingg materials Landlord shall reasonably'request .in connection therewith and to review and approve or die pprove (with Speeificlty as to reasons for disapproval) the irrecotastruction Deliveries or any revisions thereto or 'he applicable portions thereof; provided, however, that in the' event Landlord shall not have responded to Tenant vith Landlord's written approval of disapproval of Tenant's Preconstl'uctian Deliveries or any re1081o118 thereto witt in such thirty (30) day period (or in the case o'frevisions, such. ten (10) Business Day period) and provided flirtser Tenant has submitted any such approval request 1.n tm e11velop0 (or an email) In a000'rcinnoa with Section 21,1 I ' eyed, with the following caption at the top of the first page of the transmittal 1Ctterfn mo or email in 'bold letter' g"LANDLORD'S RESPONSE IS REQUIRED IRED WITHIN 'mum (30) DAYS FOR ITH1N TEN (10) 13 ";SINESS DAYS IN THE CASE OP REVISIONS! FOLLOWING RECEIPT OF THIS NOTICE PtJi S A.NT TO THE TERMS OF THE 1,F„4SIi;", landlord shall be deemed to have approved such Procorastru';tion :Deliveries or the subject revisions thereto or the applicable portions thereof. (b) Gov 411,irle_tatal /?t1.l2tpr'd. 'i"enant shall dill: ntiy purstie acquisition of all approvals and permits required for the Approved Plans and the development, nstructi'on and occupancy of the Tenant's Improvements pu.rsuaft thereto, and for all other work cantemplat d hereby from Prime Landlord, Miami -Dade County, the State of Florida, the United States and all age'ncies,, so divisions and deparnbent's thereof and from call otiher applicable governmental or quasi-goveron'lontal bodies hving jurisdiction ("Covernmental Approvals"). Landlord. agrees to cooperate with Tenant .(at no unaffiliated thi patty out-of-pocket expense to landlord) to the extent that Tenant may request- or need such cooperation to o. "tain any such Governmental Approvals and in ail other respects to tho and that the Tenant's Improvements may e constructed and the fixtures and equipment therein may be Installed as efficiently and expeditiously as possdb -, Tenant shall make application for all applicable Governmental Approvals, and furnish to landlord evidence. •('such application reasonably satisfactory to Lanilord as soon as Treasonably p.osaibla after the approval of the i .pproved Plans by landlord, 'Tenant shall deliver to Landlord evidence of such Governmental Approvals re' sonably satisfactory to Landlord in fihrtrr and content,, promptly upon obtaining sense. Subfeet. to Suction 3,2(a)(1l) above, to the extent that any such Government Approvals are conditioned on changes or revisions to tl} exterior aspects of' the Project as detailed in the Approved Plans, such changes or revisions shall be subject to l€tndlord's prior written approval, which approval shall be In Landlord's reasonable businosa judgnhent, (c) (, callgl•ucticn„1)ato. Tenant shall commence and diligently proceed with the initial Construction (Winding sianapc) on the Demised remises in accordance with the Approved Plans no later than 180 days following the date as of which Tenant re elves the Governmental Approvals (the "Scheduled Constr'ttctfon Commencement Date"), Commencement of construction of the '1"euatht's Improvements shall be evidenced by the issuance and/or delivery to Landlord of: (i) the Payment and Performance Bonds; (il) copies of all Governmental Approvals required. for the construction of the Tenant's improvements; and (11''I) commencement of the installation of the footers, foundations, pilings or the like (the items described in subparts (I) through (11i) above. In this sentence, 13 being herein 'collectively referred to as the; "Evidence of Commencement of Construction"). . Tenant si ill substantially complete the Initial Construction on or bofbre the date that is thirty-six (36) months foilowhl;, the Scheduled. Construction Commencement Date (they 'Scheduled Construction Completion .Date"), Completion f'the lnitlaa'1 Construction shall l•)e evidenced by the issuance and/or delivery to Landlord of: (A) if permitted by ap>lIcab.ie IOW, a temporary certificate of occupancy for the Initial Construction, and all 'other governmental certlonto of approvals required In order to open the I3cllOw Tower Parking and Observation Deck to the public n a fully fixtured, inventoried and staffed basis, and (I) an AIA or comparable form Certificate of Substantial r,:ompletion from Tenant's architect as to the Below 'rower Parking and Observation Deck (the items described if clauses (A) and (13'), above, in this Sentence, being herein collectively referred to as the "Evidence of C. n'ip1etion of Construction"). 'or c.larifl'cation, the tine .frarrin in this subsection (o) shall be extended, b reason of Force Mojaura, bint'tini,5 Statement shall not suggest that other applicable time frames In t'hc Lease are not so xtend'ed, (cl) Aysgagmaglatani,gputes, Work performed by "tenant or on be . a of Tenant by Tenant's general constructor or any subcontractors shall be performed. so as to avoid a. la . •r dispute, to the maximum. extent reasonably I,)as,sible, Tenant shall, at all times, enforce strict discipline and ,r;oci order among its en11p'loyee$ and the contractors hired to construct than Tenant's Improvements, if there is any l.bor dispute, Tenant shall immediately undertake whatever commercially reasonable action may necessary or a i'proprlate., in Tenant's reasonable business judgment, to eliminate or minimize the effects of the dispute at the Silo ping Cantor, including, but not limited (to the extent reasonably feasible tinder the circumstances) to: (i) fili.ns, ppropriate unfair labor practice charges in the event of a Mellon jurisdictional dispute, and (fin seeking judicial itorvention in the arse of Illegal labor activities. if any labor dispute or labor -related protest iinterferes with or d rupts t�andio'rd's business operations at the Shopping Center„ then Tenant shall use such commercially Ieaaonaal'e efforts as Tenant deems necessary or appropriate hi Tenant's reasonable; business judgment to eliminate minimize such impacts to Landlord's business operations and shall consult and cooperate ‘vith Landlord In eterminin'g the necessary and appropriate course of action, (a) admiral, c '111 iral. a'C . Work performed hereunder s iaii be at Tenant's solo cost and expense, Tenant shell construct the Tenant's improvements in substa1nt141 confa 1101100 with the Approved Plans, in a. first»class workmanlike manner and in compliance with the terms and candid. )r•, o:fthe Retail Parcel Lease and the Title Restrictions applicable or pertaining to the Demised Premises and. wit all applicable building, zoning and other laws, ordinances, rules and regulations .end requirements of all federal starts and municipal governnnents and 1110 appropriate departments, commissions, boards and officers thereof, WI )out limiting the foregoing, neither the construction nor the operation of the Tenant's Improvements shall carts ear entail any violation of the terms or conditions of the Retail Parcel Lease orate Title Restrictions applicable or pertaining to the Demised Premises or any provisions of the zoning codes, or otherwise affect the zoning for t'1 Shopping Center, Tenant shall deliver to 'Landlord as.bulilt plans and specifications and an as -built survey of the ro'nlsed Premises certified to Landlord and satisfying ALTA standards within thin' (30) days following crimple. on of the Tenant's improvements, or as soon thereafter as is reasonably feasible, Tenant shall coordilnate the eo11s;'Uotion of the Tenant's Improvements with any work being performed by Landlord or its contractors or any .t'c11a1'tt ' of the Shopping Center s0 that the construction of the Tenant's improvements will not unreasonably interfere it'h or delay any other construction within the Shopping Center, Landlord shall coordinate any construction cork being performed at the Shopping Center by Landlord or its contractors or any tenant's of the Shoppl g Center with the construction of the Tenant's improvements so that the construction work at the Shopping . ;'ntear will not unreasonably Interfere with or delay the construction o'fthe Tenant's Improvements. (1) karma Iwo,-n on•1,g, Landlord hereby grants to Tenant easements' for ingress, egress, and utilities over of such portions of the ,on'mon Areas of the Shopping Center reasonably required for construction and maintenance o1' the. Tenant's It,provement on the Demised Premises, for the installation, construction, and maintenance of underground tot, bone, cable, power linos end all eablrs, pipes, lines and • Connections 'relating to renewable energy sources i connection with its use of the Demised Premises, and for pedestrian and vehicular aecess to the Demised Prnnises, as reasonably approved by Landlord ((he "Easen)en't9"), The terra) of the Easements shall commence upon 1e Execution Date as to access, subject to Section 88.04 below, andthe Scheduled Construction Commencement ate as to the remaining L asometnts and shall continue until the expiration of the Tarim The location and configuration of the Easements shall be included ill Tenant's Survey and the as -but It survey to the went plottabi0, 141 (,g) ,C S'iji j ,, Tenant shall, <ncl shall ctiuse each of Tenant's contractors and suibcont Mors 1:0, remove, haul, away from the Demised Premises and ac1Johlfn'g arena and dispose of all debris and rubbssl c.aursecl by or resulting from the construction of the Tenant's Improvements on a regular basis, No construction we t'c;, dirt., supplies or machinery and equipment may be placed in any areas of the I3ayside Property outside of the D ii1 ied Premises (except while actually pertb••ming work in theEasements) and .in no event shall any of the for going be placed in any areas .or space exposed to the public unless reasonably fenced, barricaded or the II -e, Upon completion of the Tenant's Improvements, Tenant shall, and shall cause Its oont:raetorr and subca tractors to, remove all temporary structures, surplus materials, machinery and equipment, debris turd rubbish of iatever kind remaining' on the Dein'isecl PrenIscs, If'i'enant fails to comply with the foregoing .responsibilities of r notice end ten (10) days opportunity to cure, then Landlord may cause the removal of all debris, rubbish material and equipment, end charge the cost thereof to Tenant, \mho 'agrees to pay for the same within tthir y ` 30) days after billing, (lt) ,EattgalOn..O.1ti,.A4li,tl tlW. ,I,ttl4l:.4,a;. Tenant shall, and shall cause each of Tenant's contractor's and subcontractors to, 'IflTin.tain continuous protection of adjacent premises in a ma ner as to minimize the lik.eilirood of any damage to adjacent property and irttprovem.cnt,s by reason of the con'strt lion of the Tenant's Improvements and shall use lights, .guard rails, and barricades, as described in the Staging : ann end as otherwise' may be rrwoessary or appropriate to secure all parts of the Tenant's Improvements, the :)emisecl Premises and adjoining areas against accident, disturbance and any other hazard., (i) Demolition, Tenant shall be responsible or the demolition a d removal of the lrroject if and to the extent resltiirecl under Section 2 7,03 (Termination Rights) of this Lease, (j) Ming, During the construction of the Tenant's I. prrovenients, Tenant shall be responsible .for maintaining on the Demised Premises, or elsewhere outside of thl Shopping (enter, such area as shall be required In order to aoeonitnodate parking of trucks, construction wor automobiles and construction vehicles, and for the staging and storage of building and cons'truotlon World.' and supplies (the 4/S'taigirig Area"), Tenant acknowledges and agrees that Landlord shall not provide any Stagin„ Area within the Sho1ping Center, except for such Stalling Area within the Shopping Center for the temporary ulna office as described hi subsection (ni) below, the location of which shall be specifically set forth In the Si Development Pun Package or other materials provided to and approved by Landlord.. (k) ',,tx , ;11•ptio,i_..,Q,cr li• tGi , 'to permit la .per coordination, 'reliant shall furnish Landlord,. prior to the commencement o'fthe Initial Construction of the "enant's Improvements, a work schedule of work to be performed by Tenant's contractors and material subco.ntrt torts, as well es a list: containing the monies, addresses, telephone numbers of such then known contractors and rn teri'al subcontractors, which schedule and IiSt shall be periodically updated. Tenant: and Landlord shall each al oint one (1.) authorized representative for the purpose of eaordinating all construction matters, Tenant shall, girt ughout the initial Construction of the Tenant's improvements, furnish to Landlord's authorized represontativc, rrlrsonable advance notice (by telephone or entail, and the €section.21,1 I notice requirements shall not be applloabi to this notice) of any reguiarl:y scheduled Meeting between Tcnanv anCl ''tenant's general contractor Or oonat'uetiomanager and major contractors and Landlord and Landlord's representatives. shall have the right to be present rt and participate in such meetings in person or by telephone, (I) Landlord's Jprd's fit-,;} „ At all Liles during the Initial Construction of the 'Tenant's improvements, Landlord and Landlord's representatives including, without limitation, any construction manager engaged by Landlord, shall have the right to enter up • the Demised Premises (Inside the construction fence) to inspect the Tenant's lrnproverneni,s; provided that Lone ord's representative's shall not interfere with the construction of the Tenant's 1•nil)rovements, (n1) Tht mgr,'ory. TraLe it , Landlord agrees to cooperate With Tenant in tiirdinsl a iran.tuall',y acceptable location adjacent tc the 1Dernised Premises (on the Shopping Center) for a. temporary trailer to be used by Prime Landlord as its 'ivlar ra office from and alter the date that Prime Landlord vacates the existing Marina. office On the Pier mail such ti ne as the new Mar Ina office in the Tower becomes atvallahic1 for occupancy by Prime Landlord, 15 (rn) hftnir !?tTS ale :laR?t'lc, Notwithstanding anything, to the contrary contained. in th ; Grease, Landlord areas to consider as proposal by Tenant to perform certain precommstruot.lon work (such its elocating utilities and stubbing existing utilities, installing .the temporary Mttrine o''flice and reconfiguring the Man ta) prior to the Possession Date so lone as all of the contingencies sot forth in .A.rticies X..XX'1V and X;X.XV(' of Oil, Lease have boon satisfied and such work will not otit'erwISC materially interfere with access to the Shopping (.ion' r of the Pier, Or any surface parking located on the Pier other than temporarily for st'nall portions of such .park( g at any given time; It being understood and agreed that any such proposal shall bo subject to Landlord's sand absolute discretion, Section 3,04 l xlsiaes, Tenant shall be responsible for paying and/or reimburshm, to Prime Landlord, and any third parties engaged by Prime Landlord and the T aayfl'ont Park Owner, within lhirt, (30) days following receipt of any invoice therefor, all costs and expenses :Incurred by the Prime Landlord, st oat third parties or the Baty:ll°ont Park Owner In connection wit:it this Lease (but only to the extent Primo Landlord a entitled to payment or reimbursement from Landlord under time Rota Parcel Lease or Primo Landlord or Bayf mot Park Owner requires (and Tenant agrees) that either or both will be paid as a condition to granting its aappr'ovials required 'for this I„,eaae (or, In the case of the 'flayfi'ont Park Owner, to entering into time 'Bay&i°ont Park Par ing Garage, Lease and the Easenment. Confirmation) and to latooeed with the Project, including, without limited m; (I) all attorneys' fees and expenses incurred in connection with the preparation, negotiation end/or review of t is Lease or any amendments thereto;. (ii) all fees and expenses of third party consultants engaged In connection wi m the review of the plans under Article HI of the Retail Parcel Lease; and (Hi) all foes- and expenses of third party` rofossionals (including, without limitation, a construction manager) engaged hi connection with the cornsimuclio , oversight or inspection of the Teinwll's improvements, or any subsequent alterations thereto (the cost and expenses described 'herein being collectively referred to as the "Expenses"), Landlord shall be responsible for all .:;x'lrnnsea incurred by :Landlord and its mortgagee. in connection with the negotiation and implementation of the p ovisions of and approval under this Lease and theProject, The terms o'fthis Section 3,04 shall survive the expiry on or earlier termination nfthe Term of this Lease, Section 105 Other Impro oak , Except as expressly per .lined herein, Tenant shall not construct any improvements (other .than the Tenant's Improvements) without first:: mta.ining the written approval of Landlord, which approval shall be at the sole and absolute discretion of the Landlo'd up to the; Opening Date and thereafter in the reasonable lrnsintoss judgment of Landlord. The time periods wlthi ."which Landlord may review and approve or disapprove Tenant's plans and specifications .for any such improven -'uts shall 1ae the same as provided in Section 3,02, above. Section 3.06 airmaQ. Tenant shall not erect any exterior of the Project ("Tenant's Signage") on the Demised 1 "media" signage), except as described in the Approved 1''1ai Landlord, which approval shall be in Landlord's reasonable Landlord nay 'review and approve or disapprove any such pi In Scodora 3,02 above. Without limiting t'fac'foregoing, Lan Landlord's retaining a continuing right of reasonable appr Tenant's Signago; provided, however, that Landlord Shall 'electron -la "media" or other slwtnnge so long as such sign xterior signs or interior signs visible ft'om the 'cnrlses (including, without Iltnhation, electronic \'lt'hoart first obtaining the written approval of nsiness judgement, The time periods within which ns for Tenant's Signaage shall be the sane as l iovlded ord may condition its approval of Tenant's Signagc on val of the content from time to limo displayed on such of have the right to approve the content of advertising on does not include any of the following; (a) Any advertisement contain images or text that promotes unlawful or illegal goods, servings or activities; (b) Any advertisement that lontains explicit or obscene images ar text; (c) Any advertisement t K t contains images or text that demeans an individual or group of individuals on nonom.rnt o'f'racc, religion, natlont: origin, ancestry, gender, age, disability or sexual orientation; (d) Any advertiseemer of tobacco or firearm products; or '1G (e) Political advertisements, which shall include those that espouse or appos . the election of any candidate or party or public office whether et the federal, state or local level and/or rasp° .It or oppose the position or policy o.fany political party, Landlord's: al:royal is not required for (I) traffic safety signs, (II) signs that a 1 required. by law, '(iii) interior sigisage thaat is not visible from the exterior of the Tower, or (iv) .iclentificartion s1 naage, including the m noes of the Project or Tenant'S 0CCupanit5, colors, logos or other matters except size and Too : on, If requested by '1"uoamt, Landlord agrees to list and depict the location of the Tower on any directory of t rarl'tat located at the Shopping Center in a Manlier comparable to the listing/dapiotil.lg of tenrant i of the Shoppir • :enter. Landlord and Tenant farther agree that the other patty's consent shall not be required for rise of t a names "I3ayside" or "S1c.yHigh M'iaaraai"", r'espec,trvely, solely for the purpose of directional si4naage of for idaar, ifying the location of the Shopping Center or the Tower, aia the case may be, in promotional materials. All other sas ofthe name "13ayside" by Tenant shall be asubjeot to Landlord's prior written approval, in its sole and absol discretion, and the u.sa of" kyNigh. Miami" by Landlord shall be subject: to Tenant's prior written approval, in is sole and absolute discretion, except as otherwise provided for in Section 5.01 below. ARTICLE IV .,., RENT Section 4•,01 Preaning.Rent Commencing Os of t'1 Rent Commencement Cate, Tenant shrill be obligated to pay to Landlord., without any prior demand therefor ; ild without any deduction or setoff whatsoever, preopening rent in the amount of $400,000 per year or $33,333 er month ("PreopeninL Rent") in the ilaanner not Forth in Section 4.02 below. Section 4.02 i Pd Ron Tenant shall pay to liar,`: lord, avlthout any prior demand therefor and without any deduction or setoff whatsoever, fixed rant ("Fixed Rent") as follows: Lease Year Scheduled Opening '.Cate-5 C-10 I1-15 16-20" 21.-25* 31.35'i" 36.401,:" 4.1-45" 46.50** 50+"", * Annual Pi ad ''Tent Monthly Fixed Rent $1,3'0,000 $112,500 $1 ,`•8 .000 I23,'750 $ ,633,500 $136,125 1,796„850 $149,7.38 $1,96,535 $1 64, 711 82,174,189 818.1,1 82 82,39 1 ,607 81999,30.1 $2,630,768 821.9,231 82,893,84,5 8241,154 83,18,3,229' 8265,269 'rim extension of the Tenn of is Lease for any period after November 30, 2030 shall be contingent upon the exercise by Landlord of •'ny extension options under the Retail Parcel Lease or Landlord otherwise extending .the term of the R. :ail Parcel Lease, with respect to such period, such exercise of any extension option or other extension o' the term of the Retail Parcel l.,aaaase to be at the sole and absolute discretion of Landlord. 'rho annual Fixed Rent for each, period of five (5) Lease Years during any portion of the Term from and after Leas Year .50 shall be equal to the anneal Fixed Rent for the immediately precedi.ig five (5) Lease Year period increased by ten percent (10°/,), ?reopening Rent and Fixed Relit for With Month during the Tertn sha.li be due and payable monthly In advance on or before the first day of such month and shall be prorated for any partial month during the Tenn. All Propelling Rent, Fixed Rent, Percentage Rent, Additional .Resat and any other sonars clue Landlord under this Lease (the foregoing sometimes collectively referred to h(ireln as the "rent") shall be paid to Landlord, together with all appl.iicaable sales tax thereon (or eny tax assessed in lima or In substitution therefor) by the State of Florida, at 13ay.side Maar'ketplace, LLC, SDS 12.2880, P.0O3 Box 86, Minneapolis, MN .5:5486.2880 (If sent by U.S, mail) or 18aysicle 17 Marketplace, L.1.,C, U.S. Bank Operations Center, SDS 12-2880, 1200 'Energy Park Drive, St Paul, 'i\4'N .: 108 (if sent by overnight courier), or such other address as Landlord may notify Tenant In writing, Section 4,03 ,i?cl;0911a Rot. (a) ,tuilan l,l?r,;,omt;iot;. ',C'enaat,sh>.l.1 pay to Landlord percentage rent (`T1 montage Rera") for each Lease Year or partial Lease Year during.tlre Term ns follows: Lease Year 'Perm talc; AppIlea b e rcyakpaint Soheciuled Opening Date - 5 3,66.6666667% 6,818,1'78 6-ID 3,666666667% $40,400,906 11-15 3.666666667% $44,549,996 16- 0" 3.666666667% $49,004;906 21-25" , 3.666666667% $53,905,495 26-30x" 3,666666667% $59,296,045 31-3 5" 3,6666666667%r $65,225,649 36 r40" 3,6666.66667%0 $71.,748,214 41 „45""" 3,666666667% $78,923,035 46.50" 3,666666667% $.86,815,339 The extension of the Term of this Lease for ny period after November 30, 2'031) shalt be contingent upon the exercise by Landlord of an.: eX:tension options under the Retail Parcel Lease or Landlord otherwise extending the term of t o Retail Parcel Lease, with respect to such period, such exercise of any extension option or nth extension of the terra of the Retail Parcel .Lease to be at, the sole and absolute discretion of Lan ord. The Applicable Breakpoint for oath frorn and after Lease Year 50 slit be equal to the annual Fixed Rent for sue? 5..year period divided by 3.666666667%. erlod of five (5) Lease Years daring any portion of the Term To the extent i;hart dross Sale V exceed $75,000,000 i.n any Lease Year clw'hag th© Torrn, Tenant shall be entitled to withhold all Perm ge Rent otherwise due to Landlord pursuantto this Section 4.03 for Gross Salo in exoess of $75,000,00 only until such time as Tenant has withheld Percentage Rent in en amount equal to $3,000,000 in the ggregate (the "Site Construction Credit"), Once Tenaint has withheld 'Percentage Rent .in any tunount with to the Site Construction Credit, Tenant shell resume paying Percentage Rent due and owing to Landlord for Cross Sales in excoss of ,$ 75.,000,000 pursuant, to the terms of this Section 4.03 for such Lease Y'ar; it being understood and agreed that if the Site Construction Credit aeerau;a over more than one Lease Year, Tenant shall roninin obligated to nieke aril .Percentage Rent payments due to Landlord purauautt to this Section 4.03 for Cross Sales equal to or less titan $75,000,000 for each. Lease Year, 18 Tho Applicable Breakpoint for any Lease Year which shall be less than twelve (12, full calendar months shall lac reduced to an amount equal to the product of (x) the Aplr,llcnlale Bra* nt: HMO (y) a fraction the numerator of which is the number of days in such Lease Year and the danomi ito.r of which Is 365. Each Lease Year shall be considered as an independent accounting period f the purpose of computing the Percentage Rent duo, if any, The amount of °Moss Sales of any Leas: Year shall not be carried over Into any other Lease Year, (b)IJIG. oe ayme,> ;, Percentage Rent shall be determined and .ald, without any prior demand therefor, within ono hundred twenty (120) days after the last day of each 'Lease 'ear during the Term In respect of which Gross Sales for the applicable: Lease Year have exceeded the Appiicabl• rca.lpoint, *CO ; otil.1•.52f. 41,o.m•iatlsh, Tenant shall prepare and keep for to period of not less than thirty-six CO) months following the end of each Lease Year, limo and. accurate .oks of account and records in accorciaaace with generally accepted accounting principles consistently applied, i.;chiding, but plot limited't'o, sales tax and other reports filed with governmental agencies, all ,purchases and receipt of admission tickets, merchandise, inventories and all sales and other tral.laaet'iona by Tenant from which Oros Sales and Percentage Rent can be determined, Tenant agrees to record all sales, at the time each salt' is made, '1 the illanner that la customary in the industry Thom time to time, (d) gnsstt;.,Bi,les S,I; tno7.7t;s, Tenant shall submit t day following the end of each calendar month during the Terns (inch. following tie end of the; Term, as to wi.tit;h '1'enrnnt'a obligation shall statement, signed by Tenant (Or by an authorized. offloer, if Tenant is all material respects by the chief financial officer of Tenant, show!! an itemization of all permissible deductions therefrom. Tenant hunched twentieth (120th) day following the end of each Lease signed by Tennant, showing the amount of Gross Sales for suol of all permissible deductions therefi'oni, Said annual statemon all material respects wide the definition of Bross Sales set fort an independent cei lfied public accounting firm reasonably • accepted accounting practice consistently applied. ],,and hereby approved to servo as ('11e 111depen(1ent certified tau is one of many partners of such 'firth) or thin rlffillate(s f'e'liant. The statements re'brred to in this Section 4 details and information as Landlord may rcasona Percentage Rent or reports thereof shall be without; right to claim a deficiency. in't:he payment of Pace forth, 'the Gross Sales for any portion of act month, shall be included 'In the monthly report provides to Landlord shall be treated as centl except fth'ther, that. Landlord may disclose staff, to prospective. purchasers, to pros]• (provided each of such parties agrees to i Securities and Exchange Commission, l the extent such confidential iulfarnlati stops to nii.nlmize d'isolosure In such process (but ()Illy after notice to T ..na•nt and a 'reasonable opportunity for Tenant to contest by appropriate legal proceedings,. at Tenant's sole cost nd expense, with Landlord's reasonable 000peration). (e) ti 1.' prd,'s Atualights,, Landlord shall have the right, upon thirty (30) days' notice to Tenant (no more than once pe Lease Year for no more than the prior two (2) Lease Years) to cause a complete audit of all statements of Gross gales and in connection with such audit, to examine Tenant's books al' account and records (including, all snpp rting data and' any other records ti'ann which Gross Sales may be tested or determined) of Gross Sales disclosed lr any statenvnt given to Landlord by 'reliant; and 'Tenant shall make all such recants available for such exaur rraatian at the office where such records are regularly maintained during normal business hours, Landlord agrees that it shall not engage a oertified public accounting frm that charges on a contingency fee Landlord on or before the thirtieth (301h) ling the thirtieth (30113) day of the mouth irvive tl.ie expiration of the Term) a written Entity) and certified to be true and correct in 11e amount of Gross Sales for such month, and Mall submit to Landlord on or before the one Year or partial Least, Year a wrhten stateranont, ease Yarn' or partial Lease Yoni' and an itemization alioll also be duly certified to be true and oorreet in . heroin by the chief financial officer of Tenant and by atis'fhotory to Landlord, in accordance with sound and .ircl agrees that the firm of 13erkowltz Politick Brant is is accounting firm, even though Prichard Berkowitz (who Of Richard Berkowitz is a member or beneficial owner of (d) shall be i11 such 'firm and style turd shall contain suet) designate, The acceptance by Landlord of payments of ojudice and shall in no event constitute a waiver of Landlord's tap Rent orto audit Tenant's books and records, as hereafter set attar month 'before the commencement of tits first MI calendar next succeeding any such partial month. Any Information Tenant credal, except in any litigation or proceeding between the parties and, uch information to its attorneys and accountants and their respective cave or existing lenders, to prospective or existing ground lessors nintain such information coni'idoritlai) and in any statement filed with the t'ernal pevenuu Serv'ine, or other similar governmental agency (but only to n is required by law to be so filed, and. Landlord shall take all reasonable ings ofStich confidential Information) or pursuant to any subpoena or judicial 19 basis to perform any such audit, Landlord shall have the right to copy and duplicate such inform than as Landlord many require at Landlord's sole cost and expense, if any such audit discloses that the actual Or s Sales transacted by Tenant exceed those reported, then Tenant shall pay Landlord such additional Percentag• Rent as may be so shown to be payable (provided( however, Tenant may dispute such findings pursuant to Sects n 21,22 below and., if Slh.eoessflil, ,shall have the rights provided for therein), and stile e\MOSE so disclosed shall b more than ,3%a, Tenant shall also then pay ('lee reasonable cost of such audit and examination, if any such Audi discloses that the actual Gross Sales transacted by Tenant the less than those reported, then Landlord shall reit bursa Tenant such excess Percentage .Rent as may be so shown to be palrl, if any audit shall be conlrnenced by L milord or if there shall arise a difference or dispute concerning Gross Sales, than and in any such event,. Tenant's ooks of account and records (including ell supporting data .and any other retools from which Gross Safe's may lay -'tested or determined) shall be preserved and retained by Tenant until a final resolution or.final rieter'niinatiou of uch dispute or difference, Any information Tenant provides to l.,andiord shall be treated as cra'nfidential, excel In any litlgettnn or proceeding between the parties and, except Idler, that L,an'dlord may disclose such hafornhat'on to its attorneys and accountants and their respective staff, to prospective purchasers, to prospective or c;xist'tn'Y. lenders, to prospective or existing ground lessors (provided each of such pasties agrees to maintain such lnfar'maat is confidential) and in any statement failed with the, Seourities and Exchange Cor1rnhiss:lo.n, internal Revenue S 'vice, or 'other similar governmental agency (but only to the extent such confidential information Is required by la to be so filed, and. Landlord shall take all reasonable steps to mininrize disclosure in such filings of such confi'ential Information) or pursuant to any subpoena or judicial process (but only after notice to Tenant and a reason hie opportunity for Tenant to contest by appropriate legal proceedings, at Tenant's sole cost and expense, with l,.a:, di.nrd's reasonable cooperation), Section 4,04 etc f,'f:st, , t ,Late., ',: 'rr ,i,s, Alf past clue P opening Rent, Fixed rent, Additional Rent, and other stuns due Landlord under this Lease shall bear interest fro the due tote until paid by Tenant, at the rate of 2% above the Prime Rate, tot to exceed. the maximum rate of in 'rest allowed by law In the State of Florida (the "Default Rate"). The interest shall be deemed to be Additional Re t, Section 4I,05 sushionneo.CJl g , n of the Scheduled Opening Daite and continuing throughout the Tun 'Tenant also agrees to pay to 'Limdlorci "Maintenance Charge" calculated a's follows: (a) for the first Least Year .following the Scheduled Opening Dat , the Maintenance Charge shall be 11250,000, paid In equal monthly installments together with payments of Fixer Rent in the manner provided. Per In Section 4.02. above (and shall be prorated for any partial Lease Year in whit the Scheduled Opening Date occurs); and (b) for each subsequent Lease Year or portion thereof following tin. , Scheduled Opening Date, the lvfaintenance Charge shall increase by 2.5% over the Maintenance Charge for th inrnled'fat;'ely preceding Lease Year, paid in equal monthly installments together with payments of Fixed Rent In he manner provided for In Section 4,02 above (and shall be prorated. for any partla.l Lease Year), The Main tenet ,e1 Charge shall constitute a partial reimbursement to Landlord for common area maintenance expenses and per 3rhg expenacus for the Shopping Center and, as applicable, the 1DePmised Pre'n'dsos, ARTICLE V ., CO ' t.7UC'r OF BUSYNESS BY TENANT Suction 5,01 Use ofDemise o n:ises, Tenran.t shall use the Demised Premises during the Term for a retail/restaurant/entertai unent7'flying theater (similar to DDisney's Foarhh attraction) tourist attraction In.ltiaily knohvn as Skyi•Iigh Miami (or such other name a. Tenaant may elect fl'on1 time to time, subject to Landlord's prior written approval, not to be unreasonably with.l 'Id and limited to verification that such. other name is not derogatory, obscene, the nacre of e direct coinpetit -r o'Landlord who is in the business of developing, owning anti operating regional shopping canters as its prima ' business, or any other. name that would, in Landlord's reasonable business judgment, be considered inf'ingei'nei upon the intellectual property of any third party), which may include, without limitation, ono or more observation ie;ck(s) (the "Observation Dock"), a1 restatrant(s), a bar(s) / nightclub(s), a retail stags) (which retail use(s) a rail be incidental but not primary uses at the Demised Premises), adnl.inistrativchrranago.merht/5eou tya/lviarina offices and facllitles/amenities, nightly illurnina►t:ion and music shows (including, potentially f"rreworl , subject to the terms of this Lease, and those utllizlng butit4n LED lights and speaka'rs on the Tower), lra Iroonl(s), amusements (such as bungee jump, sky plunge, sky walk), outdoor entertainment, and/or Wet t nment venues) including video games or so called "coin box entertainment" (which torm shall not include vide poker or other gambling games or devices), exhibition hall(s) as cVor nruse>.rms (in either case, for temporary or 'arnrn''nent exhibitions), meeting roorn(s), private club(s),. communications devices and equipment, banquet hal s)(Including those 'for weddings and other business or social 'functions), 'wedding chapel 20 I. iostc(s), ATMs, such other uses 7s arr from time to time consistent with the, foregoing and customarily fo ad at facilities comparable to the Project or 'fttollities that trove an observation tower or dock (some or ail of wine i may include an outdoor component ais are compatible ,vit11 the foregoing) provided same are otherwise perniitte under the Retail Paroel Lease and do not violate the existing exclusive usos granted by Landlord at the Shoppl g a15 yet forth of Exhibit V attached hereto, and. such other a,nrili?uy uses as are hereafter approved by Lan rd in its reasonable business ,Judgment Oho "Permitted Lines"), Notwithstanding the foregoing, no use or opera on will be made, conducted or permitted on or with respect to the Demised Premises or th'e Shopping Center, rich use or operation 'is inconsistent with a first class mixed use, retail, restaurant, entertainment and, lathe case o. the Demised Premises, flying theater facility, Including the following: (a) Any public or private, nuisance; (b) Any noise or sound that is objectionable due to intermittence, boat, 'tit'' quency, ,shrillness or 101ad11eass and caln be heard beyond the boundaries of the Demised Promises; (a) Any obnoxious odor that call be smelled beyond the boundaries of " ie Demised Premises (and as to tho Shopping Center, Landlord agrees to enforce the terms of its 'existing tellan•' leases with revoct to obnoxious odors emanating fi'oln the Shopping Center, to assure against such smells einal' itiug ftonr the Com.ni.on Aron of the ;hopping Center and to include mrd enforce a prohibition on obnoxious odor fn fel.tu.re leases), it being understand. and agreed that ordinary .cooking odors enranating front any properly vented rid operated restaurants at the Demised Pi'elniaeS 4'1" the Shopping Center shall not be considered Obnoxious ('br 1.. ur oses of thin pl'OvisiO11; (il) Any noxious, toxic, caustic or corroslve fuel o1' ga5, rxc. pt for reasonable'clnantlties of cnSR) n'1Rrily used goods (e,g., cleaning supplies) that are safeguarded as required by aw; (e) Any dust, dirt or fly ash in unreasonably excessive cm' ntities; (f) Any unusual fire, explosion or other damaging or c ngerous hazard including the storage, display or sale of explosives or fireworks (but thin shall not preclude the dis, try of fireworks hi accordance with the terms of this Lease); (g) Any warehouse (but any area for the storage of goods 'hitended to be sold at any retail, restaurant, food service, 'entertainment or other on site esiarblishnl'tantt J'the Demised Premises, except as otherwise provided in this !,,ease, or the remaining p.ortlons of the iBaysicici Pr'opnpty or that is for storage of products or material's used for the maintenance, repair, replacement or operation of the Project or other portions of the llayside Properly shall not be cle'enied to be a warehouse), asseii bly, manu'faeturc, di,, illation,. refining, Sme7lting, agriculture or ruining operations; (11) Any dumping of garbage or refits by Landlord or 'Tenant, or any of their respective agents, employees or contractors, but this shall not restrict: t1" sh receptacles, dumpsters, oornpactcrs and ihe_li.ke as are typically found in comparable facilities; provided the, are screened from public view at ground level and equipped so as to 'prevent odors from emanating thenetr'on'(but shall not be required to be maintained in a c;lilrla'te controlled environment), in the case of receptacles nor i,•'tended for the use of the general public (whether during construction or thereafter); (1) °aniing devices, gamin ; actors, bookmaking establishments, but this shall not restrict the sale of .lottery tickets; It being understood nod ap "eed that if gaming becomes lawful in Miami, Florida, Landlord will entertain a proposal from Tenant to establish private gaming club at the Demised Premises, which proposal slraII be subject to the prior written approval of La. dlord, lrl its solo and absolute discretion, and shall be conditioned upon, among other things, (1) the prior written pproval of Prime Landlord, (.ii) a mutually agreed upon revenue sharing arrangement as between Tenant, La, dlard and Prinle Landlord and (iii) Tenant providing evidence satisfactory to Landlord, in its reasonable bt siness judgment, that Tenant will be aide to procure all necessary licenses, permits and approvals required by y governmental authority in connection with any such private .gaming club; provided. ftn'ther, however, that this 'tr'ovislon shall not preclude nay such use by or through Landlord if permitted pursuant to the Retail Parcel !.,ease or otherwise approved. by Prime l,arrndlord, 21 (() Sleeping quarters or lodging facilities; provided, however, than, this shall not preclud such use by or through Landlord if approved by Prime Landlord; 'r (k) Any use not expressly permitted by this Lease which would violate, suspend, oicl or materially increase the premium of any policy or policies of ilr'Sur'arlces at the l' arysi'de Property; iar'ovided, 1owever, that this shall not preclude any such rise by or through Landlord If permitted pursuant to the Retail .Par '• 1 Lease or ether\VIse approved by' Prime Landlord; and (I) The display of any X rated or otherwise explicit pornographic lilacs, i ()vies, or other materials.. Tenant's right to use tho Deln.iSed Premises for the Permitted Uses shall .be subject to 'ail al) icalsle lawns, codes, ordinances and other restrictions. Landlord makes no representation or warranty whatsoever t at either this Leave or the Project or the Permitted Uses are permitted pursuant to. stroll laws, codes, ordinanc<s or other restrictions. 'tenant a f roes that use of trio Demised Promises for the Porvllittecl Usos shall bo limited to a "1"owner and those areas specifically icl ent'i'.fierd in the Approved Plans, Not'witihstanding the .foregoing, Landlord...ereby approves up to two (2) kiosks (which term, fbr purposes of this Loase, shall also moan carts) that may o ly be used to sell food nod beverages and up to two (:2) kiosks that may only be used to sell souvenirs that hlciuclr the name of the Project, each such kiosk to be located In the stairway and/or entranceway to the Tower and s11a11 not be larger than one hundred fif'i,y (1' O) square feet in size. In no event shall 'reliant lac entitled to conduct or srrrrit any salsas or other activities or events on or about the Pier or otherwise outside of the Tower including the st< rway and/or entranceway (e.g., no carts, no kiosks), except as otherwise provided in the Approved Plans or as abo provided or as otherwise approved by Landlord in its reasonable business judgment; provided, J.h'owevor, aotivitira' or other events may be concluded on the stairway acid/or entranceway to the Tower consistent with what is voila le at other facilities comparable to the Project subject to the foregoing limitations on kiosks, Tenant shall ondeay.r to cause the Project to be constructed h1 a manner to utilize renewable energy production (such as solar panels); arovided, however, that the production of any such renewable energy (other than solar .panels) is subject to Latadl rd's commercially reasonable apprcrvarl of .the .means and methods of tiro production thereof and Tenant is not : ,gtrarant'or of any specific level of renewal energy production, if any. The Sane at, horn or in connection with t' e Demised Premises of any apptrr'el 01 ether i1ert'ls with the word "'f3ayside" inhprirttccl thereon is prohibited, utilec approved by Landlord in its sole and absolute: discretion and subject to the terms of a Iieansing agreemonl (w; ich addresses, among other things, reasonable licensing fees0) reasonably acceptable to Landlord and Tenant; pi ided.,'however, that the terms (including license fee, f'fany) for the granting or a license by Landlord for the use ,«f'the words "art i3xtysidei" its a Iocationai reference shall only be subject to Landlord's reasonable approval and. sal' 11 bo no more onerous (Including r1a' higher license fee, if any) than those pursuant to which anyone else is li en1ad to use such words. The sale at, ll'orrl ur 111 henhs with, the words "SkySlitgh Miami" (or such otl1Or 1' Section 5,02 adeeLlylanagey. The " reject shall at all tines be operait:ead' and managed by a. rYlallageinent Com'pal'ty with sufficient experience in ianag(ng wor'lckclass educational and entertainment projects of comparable sl.ze, post and scope, which company fail be satisfactory to Landlord, In its reasonable discretion (the "Project Manager"), international 'Thome .Park ;S ;rvices, Inc, is hereby approved by Landlord as Project Manager, In the event Tailamt desires to roapiaae the then .pproved Project Managrer, Tenant. shah notify i alld.lorcl thereof in writing, which notice shall include infoimat'on evidencing the proposed Project 'Manager's qualifications as required pursuant to this ',Section. 5.02 ("Now r tanager Package"), Landlord shall have a period of ten (10) Business Days 'following receipt of the New M'aniig.".' Package to review and approve or disapprove the proposed Project Manager; provided, however, that in the ev.nt Landlord shall not have responded to 'tenant with Landlord's written approval or disapproval of the proposed ''rojeCt Manager within Such ten (10) Business Day period and provided fernier Tenant has submitted any such pproval request in ant envelope (or an email) In accordance with Section 21.11 hereof, with the following capti i at the top of the first page in bold lettering "LANDLORD'S RESPONSE IS li'EQUlIJUD) WITHIN TEN 0) BUSINESS DAYS FOLLOWING RECEIPT OP THIS NOME PURSUANT TO THE TERMS TJ1E LEASE", Landlord shall be deemed to have approved such proposed 22 Project Manager. Tennant agrees to cooperate with Landlord in promptly providing such adclltional. i'n'fa (nation es Landlord may reasonably request regarding any proposed Project Mansrgrr, Section 5.03 TaUfia4 Ca ailt..,tow, an'r . Tenant shall substantially complete the 'fnirk Construction and shall open the Below Tower Parking and the Observation t)ack .for business to the general pub c on or before the Scheduled Opening Date, subject to a day fbr day extension In accordance with Section 21,07 of this Lease by reason of Porco Maajeure, Notwithstanding anything heroin seemingly to the contrary, Tenant iall not open any portion of the Project for business to the general public prior to Landlord's receipt of all Plviden of Completion of Construction of the Initial Construction aas required by Section 3,03(c) above, If Tenant shall fail to complete the Initial Construction and fails to open the Below Tower Perking and Observation Deck o the public by the Scheduled Opening Date, subject to a day for day extension in accordance with , 4;ctiota " 1,07 of this Loatac by reason of Force Majeure, then the terms of Section 27.0'2straii apply, Section 5,04 Continuous Qperation, (a) Dues Comma. Tenant shall, from and after the ®!miring Date and. thereafter throughout the Term, Continuously Operate on the Demised Premises the Project. }i/ purposes of this Section 5.04, "Continuously Operate" means at a minim unr to keep open to the public for busbies- at least eight. (8) hours iyer clay, seven (7) clays a weak, all or a portion of the Project on a hilly fi'taireacl, i[nve wrier'. and slatlbrl basis with no interruptions except: for periods of time reasonably required for reconstruction, a-u'ovation, repair, alteration or clue to Force Majeure, 'Tenant has the. right to operate t:he Project beyond the hour!during which other business in the Shopping Center are open to the public. This provision is subject to the/1r•otectiians afforded to a Leasehold Mortgagee in Article X.XX, (b) k,andlord's l sin ecl a's. If Tenant at any time ce''ses to continuously operate as required in $ection 5,041(a) i'br twelve (12) consecutive months, Landlord, In adrift .11 to its other remedies, may elect at any time thereafter while the breach continues to terminate the Term of Ws ✓eaase'by, delivery of written notice to Tenant ("Termination 11ot'ice"), which termination shall be effective tin the ate that is ninety (90) days after Landlord's dalive'ry of the Termination Notice to 'Tenant; provided, however, that if Tenant resumes continuous operations of the Project prior to the end of the aforementioned 90 day period, tl ;n the Termination Notice, shall be deemed null and void and of no f rthcr :fence or effect, If the "form of this I..,ytse, is so terminated, the 'Demised Promises shall revert back. to Landlord and ail 11.11pro'Vernent'S located on the Tee lifted Premises shall become the solo and absolute property of Landlord, If the Term of this Lease Is so tonal ed, Tenant may remove 'from the Demised Premises such trade lixtatres and equipment as it desires and. shall rep�ir any damage to any hn.provoinent caused by such removal, by or before the affective date of such termination, Section 5,05 1ota1l'e1jonce with Laws titrclAt a11a1'fotlg. Tenant shall comply with all laws, ordinances, codes, orders and regulations applicab'I'e to the Demised premises or to Tenant' 8. activities or business relating to the Demised Premises, Tenant: shall also comply with t e regulations, requirements a,nci recommendations of any Insurance underwriter, inspection bureau or simile agency having jurisdiction over Tenant or the Demised Premises. Tenant shall no* Landlord if Tenant , as received notice of, or has knowledge of any condition. or occurrence that might result In liability to Landlord Section 5,4C 1 ,lj jjd,1.9,oa 1',j,lih;f5 Tel na' shall keep all or a portion of the Demised Premises open for business -to the public at least eight (8) hour's ci' day, seven (7) days a week. Nothing contained herein, however, shall prevent Tenant from maintaining more,.r.18111Css hours than herein cot forth, Landlord hereby raprese+its Mid warrants to. ':Tenant that the Policing,. Garage ;'call remain open duping all business hours maintained by Tenant at the Tower, Tenant hereby represents and \va.''ants to Landlord that the 13e1ow Tower Parking shall remain open for business during all business hours malnta led by Landlord. Section 5.0'7 Comm_ „ ca s, Landlord shall not cause the access to the Demised. Premises by way of the 'Easement for ingress and ogress ', vor the Common Areas of the Stropping Center (to be depicted on the Survey and the as"buflt survey to the ext nt plottable) to be materially and adversely reduced or altered; ,provided the foregoing shall not apply in the ' se of datrarge or destruction by reason of casualty (until restoration oeours), or during reasonable periods of tj ne required to provide necessary maintenance or repairs or to prevent public dedication or fay otherwise required by anpplicable authorities having, jurisdiction, In the event of any such material. 23 obtained the prior written approval of PrInio Landlord and submitted n ao have procured all required permits and licenses and shall have subunit; permits and Holmes are subject 'to periodic renewal, Tenant shall I Tenant shall engage only professional, fully licensed, and Insured pyt; or same reasonably satisfactory to Landlord, together with oortif, Insurance against claims for personal injury, bodily injury, death Property, such insurance to be on the so-called "occurrence" occurrence) and f 1 O,000,000 in the aggregate per location pl of 3;10,000,000 per occurrence and in the aggregate and to operations; (13) products tend completed operations on contractual liability for so•callecl "insured contracts", ap reasonably acceptable to Landlord (anti evidence pyrotocharicia.n.(s) engaged by Tenant shall comply and ordinances, includ1ng all state and local fire u and local pollee deportment services as nay authorized by Tenant, f1'om entering the area t' area reasonably satisfactory to Landlord and i1; being understood that if the fallout are,, Landlord and any other governmental responsible for ail costa and expenses fireworks or other explosives be star and adverse interference to rloceas by way of the Easement for ingress and egr'etr ta'the Pr'ettliee, 1A+111t 11 xtell'c113 for a period ()Pierces than seventy«ttwo (72) hours foilow.ing delivery of written notice thereof by Tenter to Landlord (except in the case o'f damage er destruction by reason of casualty, or during reasonable periods of . iYe required to provide necessary maintenance or repairs or to prevent public dedication), and in addition to t�rr other rights or remedies available to Tenant at Jaw or in equity, all rent (including the fixed Rent, Perm ..age Rent rand the Maintenance Charge) otherwise payable by Tenant hereunder shall be equitably abated be ,d on the degree of interference with Tenant's operations in the Demised Premises for so long as Landlo:ris unable to provide reasonable alternate access to and from the Demised Promises, Landlord shall use 1 boat efforts to provide alternate access to and from the Demised Premises, including after, and during rest°''"flan 'follo'win.rg, damage or destruction by reason of casualty or during periods of the required to provide necey maintenance or repair or to prevent public dedication. Section 5,08 .1?„irewa,,i;cs Digll,ldys, Tenant shall have the right to j mit periodic fireworks displays at er in the Marina or bey aclincest to the Demised Premises subject to the folloy ing conditions; (a) Tenant shall have of same to Landlord; (b) Tenant shrill copies ofsa.nle to Landlord (anti ifsuch a submitted evidence 'ef all. renewals); (c) technicians and shall have provided evidence fate(s) evidencing commercial general liability property damage occurring upon, in or about the terra with a lirr'rit of not less than $10,000,000 per MOSS or umbrella insurance with a nrltrirnum 11MR •over at lest the fbllowing hazards; (A) premises and "If any" basis; (C) Independent contractors; and (ID) such other Insurance .far such vendors as is customary and kill renewals of such insurance); (d) 'ferrant and any th all applicable federal, state and local laws, rules, regulations 'des; (e) Tenant shall provide such secuu°ity personnel, barricades reasonably necessary to preclude Individuals ether than those set:.up and discharge oft'he fireworks production, Including a fallout ;neat where the fireworks may safely rise and debris may safely flrll; is within Biscayne Bay, such area shall have boon approved by Prime authorities vvlt'h jurisdiction over Biscayne 13ey; (f) Tenant shall be ,ssociated with any such ;fireworks displays; and (g) In no event shall any at the Demised Preen~ ism or elsewhere at the Bayside Property. ARTICLE, VI. 'UTILITIES Tenant shall be sole % responsible for and promptly pay all charges for heat, water (Including sewerage charges and/or taxes or othi chargers based on water consumption), gas, electricity and any other utility used or consumed exclusively irl a for the benefit of the .Demised Premises, Without limiting the foregoing, Tenant shall be responsible for contract' �g'with all applicable utility' providers providing such utility services and for installing, at Tenant's sole cost ran expense, all meters for such utility servieos, t'o to extent such renters are applicable. Notwithstanding the " regoing, Landlord shall be responsible, from and after the Scheduled Opening Date, for all lighting oost:s ('alder ing electric consumption costa and repair, maintenance and when necessary repiacement costs or bulbs, ballasts and light fixtures) associated with the exterior areas of the Demised Premises (Le., driveways and pedestrian walkways on the Demised Premises but not the interior of the Tower building, on the Tower' bufldh'S Or at the 13ayrr'ont Park Parking Garage); it; being understood and agreed that (i.) the lighting plan shall be Included in the design drawings to be submitted. to Landlord. for approval pursuant to Section 3,01 and (I1) Tenant shall arrange to have the lighting far which Landlord. Is responsible separately metered from the balance of Tenant's e.lectr'ioal systems at the Demised Premises, A.P.TICLI3 VIl - Ifv1PO F'l"(ONS Section 7,01 cgs, I,tT>t.plie 11:f11e 1;kX ,,.,l ;l.i.£`el. Landlord and Tenant will cooperate with each other In seeking to have the Demised :Premises separately assessed, and Landlord will join with Tenant in any application 24 that is- reasonably neeessary for 'tenant to make to the taxing authorities to have the De.mi:sed Premise and the Leasehold Irnprovenaants separately assessed, Landlord and 'ferrant shall share equal.iy in all costs an expenses lnourred by either party in pursuing the separate tax parcel including, without limitation, any admini:trative fees olrarged by the taxing authority, costs a;ssoolated with a .eornal subdivision, If required by the huh authority In order obtain tha separate tax parcel and attorneys' foes and costs; it being understood and agreed th Landlord may designate then law firm/attorney(s) to assist in pursuing such separate tax parcel, subject to '1'. ar'nt's reasonable approval. Joe Cioldstoin of Holland & K.ntght (anti his associates and/or paralegals) are a proved by Tenant undertake the foregoing tax parcel work. Section 7,02 x'n ,ell iil.•tnf d:#a. Yu `~ U.q. : . w (n) l,J, vtn ,pis by Landlord, 'If the Demised Premises are sepera ly assessed, Landlord shall pay or cause to be paid to Tenant (who shalt colribine. sane with its payment a (I r'erntt saate to the taxing authorities) prior to delinquency the prorated portion of all Impositions applicable the Demised I"rerlmises to the extent allocable with respect to any portion of such tax year ("Tax Year") preoedin the Rent Coininenoanrent Date and Landlord shalt pay or cause to be paid the prorated portion of all 'impo Bons applicable. to the Demised Promises to the extent allocable with respect to any portion of the Tax Year 'bilowing the expiration or earlier termination o:fthis Lease occurs, (b) Payments by Tonal, If the Demised Premises a e separately assessed, Tenant shall pay or cause to be paid prior to delinquency. all impositions applicable to the D;'nised Premises for any Tax Year flailing wholly within the Term o'fthis Lease and the prorated portion of all i'nrpa' itinns applicable to the Demised Premises for any Tax Year In which the Bent Commencement late or the ex 'ration or earlier termination of Phis Lease ooewa, with respect to that portion off such Tax 'Year following the ':font Commencement 'Da:te or preceding such expiration or earlier termination oht'his Lease, as applicable. 'No'twiit,standing the foregoing, any Impositions on the land component of the assessed value of t11e Delr11f ed Prern'1'ses, 1:' any, rotating or pertaining to. the period of time preceding the Opening Date shall be paid or causal to be paid r,y Landlord without contribution by Tenant, the parties agreeing that any such payment obligation is covered by , reopening Tent.. ,Paxl'I� •1I4, Each pa :y shall deliver to the other a copy or copies of a r'eceipted tax bill .or bills showing payment of the lmpos t'is s that such party IS required to pay anti discharge under the provisions of this Section 7.02 within thirty (30) dad ; after the other party shall have requested the sable, or within tinily (30) days after the last dray Upon which stall tax is due and payable without penalty whichever is later, ((I) ;.ra;i1 e„s(in. „ig'parately;,, :„sse Ilt1,ng, It the Demised Premises are separately assessed, and if Tenant, in good faith, shall desire to contest 7e validity or amount of any .impositions to be paid by Tenant, Tenant deal. notify Landlord of Tenant's intention to contest the same (bestfailure to do so shall not restrict Tenant's right to contest or constitute as default or, with nr ice, Event o•fDefault, and shall not entitle Landlord to exercise any remedies against Tenant). Tenant shall not (r.rrtas applicable law shall require payment as a condition precedent' to the contoat or to stay enforcement of colic .ion proceedings for such contested Impositions) be required to pay, discharge or remove any lien for such Crap sitiona so long as Tenant shall, in. good faith, at Tenant's own expense, diligently contest the same or the validit thereof by appropriate proeeedirige. Such delay by Tenant in paying the same until final determination of such c1'• puted matter shall not be deemed a default in the conditions of this Lease, provided Tenant shall at all times erffe ually stay or prevent an official or Judicial sale of the Demised Promises for such nonpayment under execution o otherwise, and pay any final Judgment etlfercing the Impositions so contested, Thereafter promptly upon receipt, 'I" rral.'at shall .furnish Landlord evidence of satisfaction of such Judgnnent, Seotton 7,03 fs1 p9.M H'1411p 1:1, 4lafl!;tld'k,. tl>_NM a,•.,,119.11l,•....•t!ad.. 6.. 4• 1: Q011?;I?J :t,>. (1...s/f CP11S,r4t;ltpilon. If .for all or al part of the Term af,er the completion of the Initial Construction the Demised Premises are not separately a'+essod but aro included within an assessment of all or part of a larger tax parca.i. (tire "Tax Parcel"), Landlord wi pay or cause to be paid all Impositions. applicable to the "Pax Parcel prior to delinquency. Tenant shall, within ton (10) Business Days foliowi.ng Landlord's demand therefor, in writing, accompanied by a copy of the tax bill and the method of calculating the amount owed by Tenant, rairnburse Landlord for all impositions allocable to the :Demised Promises from and after the completion of the Initial Construction, equal to the sum of; (i) Impositions allocable to the Tenant's Improvements (and if not a Separate tine item on the tax bill for the Tax Parcel, then an equitable adjustment shall be made by the parties between the 25 Impositions allocated to' the Tenant's Improvements and the Landlord's improvements): plus (ii) the pr duct of (x) the Impositions for the land component of the Tax Parcel (if any, the parties acknowledging that th land may be exempt by virtue of its ownership by a g,overltntentai authoi'it'y) 'tinteS (y) .a fraction, the numerator of whICh is the square footage of the area in the Demised Premises and the denominator of which is the square ibc age of the area, in the Tax Parcel, An official certificate car statamant issued or given 'by any sovereigns or munici .al autinority, or fury agency thereof, or any public utility, showing the existence of any Imposition, or interest or .enalties thereon, the payment of which is the obligation of Tenant as herein provided, shall be conclusive evictee for all purposes. of titifi Lease of the existence and aniotlnt of such Imposition, Interest and penalties, Tenant t'fotaant's sole cost and expense)) shall have. the right to challenge the assessed value of the Tenant's Impravemar's and the land value o'fthe Demised Premises and Landlord shall join in any applioa.tlon relative thereto kind the yr riles slt'nii cooperate if both are appeEal'ing, Tenant shall pay all of Landlord's reasonable unaffiliated t.hircl- arty out of pocket costs In oo1111e0tlan With an appeal by Tenant, Wally, but only if Landlord Is not jointly appea, rag, See;t:ion 7.04 TaxeesWithotkamarateIgx .'. Tarot. Ilk tc.. coral ;'b.1t.,tlf tr initial Co-fl i't't.ac0(m. Notwithstanding anything heroin to tiae contrary, to the extent that Impositions E; plioablea to the Tax Parcel prior to the completion of the Initial Construction shall increase solely as a result f'the e:.onstructlan of the 'Tenant's Improvements and the value thereof (as opposed to the Preopening 'Rent payr ctn'ts) at any time fiom and after the. date as of which 'Tenant shall commence construction of the Tenant's Intpro ,e,ments, then Tenant shall, within ten 00) Bluainess Days .following Landlord's demand therefor In writing, nccon mated by a copy of the tax bill and the method of calculating the amount owed by Tenant, reimburse Landlord for, II such 'increases. Section 7.05 1itif;t•erst•.'t anhies,. If the ('Demised Pre,nt 'es are Separately ftsseaaed and '1"ortarnt'fa:lis to pay all or any portion of the Impositions applicable to the Demised 1•remises prior to delinquency, then Landlord shall have the right to pay sudh Impositions directly to the ttaxing, act'mr°it:tea anct Tenant shall reimburse Landlord upon demand for the amount of such d'elinquen't Impositions, iltcttling all interest and penalties inposed by l;he tarring authorities thereon, together with interest on the aggregate al ount paid by Landlord all the Default'Rate, from the clate Landlord pays such delinquent 'impositions on Tenant',' until the date Landlord is reimbursed by Tenant, If the Demised 'Premises are not separately assessed at '1. Tenant fails to pay to Landlord any 'Impositions applicable to the Demised Prerniaas I.ntrrsurtn'l to this Article V.' at least thirty (30) days prior to delinquency or as required in Sections 77.03 or 7.04, if later, then Tenant: shall ref tbtu'se Landlord upon demand fiat the amount of such delinquent Impositions applicable to the Demised I'rernises/together with Interest an such amount at the Default Rate from the date Landlord pays all Impositions due 4v i respect to the Tax Parcel tnttil the, date Landlord is reimbursed by Tenant. All sums paid by Landlord on be We Tenant, as well.as all interest payable to Landlord, paarsuant,to this Section 7.05 shall be Additional Rent. ART"ime VIII » INSPECTION, MAINTEN /CE AND REPAIR OF T1lF DEMISED PREMISES Section 8.01 Maitttamely I an 1r„I, Landlord shall have no responsibility for any repairs or maintenance relating to the Demised Premises, except as and to the extent expressly provided In• this Lease. Notwithstanding the foregoing, (a) Landlord sly'. I, at Its solo cost,. I'epair and maintain:the Shopping Center in first class condition and repair, °leann,. sanitary tt cl safe, and otherwise in a Manner SO as to avoid unreasonable Intetti:reiice with or disruption of'I`enant's us , of the Demised .Premises for t'he Permitted Uses and Tenant's use of the Easements itt the ananlier contemplated the Approved Plans and this Lease and (b) :Landlord shall, at no cost to Tenant .other Ihan the Maintenance Cir rge, provide the 'fallowi'ng limited services in the exterior areas of the Demised Premises (but not the interior o' the Tower lbuilding of any portion of the 13ayfi'ont Park Parichtg Garage) from and aafier the Opening .Date: (I) I 'tilted security 'patrols which shall not include lime management of crowd control, (li) rrnat'atenanCe of landlscapit g as approved by Landlord so king as Tenant is property Irrigating snob landscaping (but not replacement then of unless required due to Landlord's failure to so maintain), and (ill) periodic litter patrol to pick up. stray litter and eposit hi designated trash receptacles. In no event sIM l Landlord be obligated to Improve or upgrade any portion o the Shopping Center; provided, however, that Tenant may subm it it proposal to Lan.diord for exterior inlproveme is to the Shopping Center, which proposal ,l,,.andlord may accept, reject, or conditionally accept in Landlord's ole and absolute discretion, Section 8'.02 n'(Iijily?',Lf><I1cely... e:tlttilg, Tenant shall maintain '(including. repair ancl replacement) and keep the Demised Promises, the Tenant's improvements and any other iluillding and other improvements on the Demised Premises in first class condition and repair, clean, sanitary and safe, If Tenant fails to do so, Landlord shall 26 have the right, upon giving Tenant not less than ten (10) days prior written notice (except In the cruse of at . imminent threat to Human hea,lt1'i or safety of damage to property in which case no advance notice shell be r'e:'cluit' (I), to make the repairs or perform the maintenance on behalf of Tenant. Tenant shall reimburse Landlord ;prom,pti upon receipt of a bill. The performance of that work. by Landlord 8l101 not: constitute e \valves of Tenant's de'f'hult, Section 8,03 Alterations 1,4y_fg„ ot. From time't:o time during the 'Ter'm,'Tenant rn make, et its own coat and expense, any reasonable alterations or changes to the. Tenant's improvements, inelucline without limitation, 11toratiions or ohaulgnt 10 nlodernlze the Tenant's Improvements or to offer amenities shnilr to those offered at projects ooraaparaable; to the Project, in a good and workmanlike manner in 'complian with all applicable requirements of law; provided, however, that any 1111terial exterior changes to the "1'e allt's Improvements or material interior changes that would be visible from the exterior, shalt be subject to La dlord's written app1'oval, which approval shall not be unreasonably withheld, Without 'limiting the generality of he 'fol'egOing, 110 approval f1•ot17 Landlord shall be required for any Interior alterations within the Tower, inch rig the storefronts or f1•ont facades of subtenant spaces within t;he Tower (including entry features or signagc)it'hat aro not otherwise visible horn the exterior of the 'Tenant's Improvements nor any no.n..mnterial changes o the exterior of the Tenant's improvements, Landlord shall have a period of thirty (30) days ibflowing receipt / f the plans and specifications for any material alterationss and ten (10) business Days following receipt of any revisions thereto within which to review and approve or disapprove such plan and specifications or any 1'evhdo1 r thereto; provided, however, that in the event Landlord shall not have responded to Tenant with Landlord's writtar appr•ovai or disapproval of saach plains and specifications or any revisions thereto within such thirty (30) day p?iod (or as to revisions, such I:en (1.0) l3ushnses Day period) and provided further Tenant has submitted any sub! approval request in no envelope (or an email) in accordance with Section 21,11 hereof; with the following c 9tiorl at the top of the first page in bold lettering "LA.NDLOt D'S RESPONSE 1S REQUIRED Want T'TUR I'Y (30) DAYS IOr 'l'EN (TO) BUSINESS DAYS IN ME c'AS0 (W REVISIONS) FOl'., •,/)'WIN'G flgcltIPT OP THIS NOTICE PURSUANT TO 'THE TERMS OP IRE LEASE", Landlord . All be deemed to have approved plans and specifications or the ;subjeot revisions thereto. Landlord agrees to >operate'with 'Tenant for the purpose of securing necessary permits for any changes, alterations or adiditions porn tied under thla Section 8,03 without unaffiliated third party out-of-pocket expense to Landlord, Section 8..04 Toasty tghi'. to Inspect and ;stlag, Provided that Tenant shall 'first furnish to Landlord. evidence of the comprehensive general liability In l' rnoe coverage required pursuant to this Lease, "leer n1 and its agents, employees, and representatives shall hay. a continuing right of reasonable access to the Demised Pa'e171i$e5 beginning on the Execution Date for .the , ui'posn of conducting surveys, engineering, soil tests, geatecl•lnlcal, end environmental inspections .and tests • n'Clliding intrusive Inspection n11d sa111p11.11A)',. and any other inspecdona, studies, or test's reasonably desired by '1'a 1ant, in connection with the Project; provided that such tents and the timing, duration, staging and conduct of s'u'h tests (including, without li'mltatlon, the means and methods therefor) shall be subject to the prior written ep royal of Landlord, which shall not be unreasonably withheld, conditioned or delayed, Tenant shall prompt! , / repair any damage to the Demised Prelaliacrs caused by such Inspections or tests. In the course ofits illvestl i ti0n8 Tenant may make inquiries to third parties including, without limitation, lender's, contractors, adjacent land . nersi, tenants,. and municipal, Iooal, and oilier government officials and representatives, and. Landlord 001180110 1: 811c11 iintquiries, Landlord shrill cooperate (at no unaffiliated third party dart-ofpocket cost: to Landlord) with Tana 't in connection with any such inspection or investigation requested by Tenant, ART1 LE IX M. INSURANCE AND INDEMNITY TY Section. 99,0I Te 'gt' (game, e, (a) At al be maintained and kept in effe option) with i1141113111C0 coin Braes insurers Builder's 17i and any Landlord affiliat Landlord's lender and '1' times during the cantruc1ion of 111'Id Tenant's Improvements, 'Tenant shall cause to t (by itlsrr.r'irnco maintained by it, its s1:1bt0farrrts, corltra.otors or others, at Tenant's sole hies lice reseed to do business irl rho State of flori'da Incluclilg State approved surplus ( Insurance with completed operations coverage, covering Landlord, Prime Landlord, ('including General Growth Management, LLC) reasonably' having an insurable interest, naa,at and Tenant's contractors, as their interest may appear, against lass or damage by 1.re, vandalism, and All Othur.I'clril a ("AOP") as are customarily covered "extended coverage endorsements" upon all of the Tenant's Improvements In place and ell materiels stored at the site of" Tenant's Improvements and all materials, 27 equipment, supplies and temporary structures of ail kinds, incident to the Tenant's Improvements, nd builder's machinery, tools, equipment„ all while terming part of, or contained in, such iitnlarovOrnaents or tempairy structures$ while on the premiss$$ or when ucijnaent thereto., while on malls, drives, sidewalks, streets or alley , The valuation clause on such policy shall bo replacement cost, Said 13uilder's Risk 1hsuranoo shall contain an xpress waiver of any right of subrogation by the insurance company against the Landlord, and PrimoLandlord, ncl their respective agents, employees and contractors, (b) At ell tinges during .the Term of this Lease, including during ; e construction of the Fonts improvements, Tcmant shall cause to be maintained and kept In effect (by insura ice maintained by it, its subtenants, contractors or others, at Tenant's sole option) the following policies of insurance with Insurance companies licensed to do business in the State of Florida including State approved aurplu: lines insurers: (i) To the extent not covered render (a) above, prop 'ty lnournnoe on the Tenant's improvements and personal property irnstn•in aaf ainst any peril now or hereafter included within the classification of "All 1'Li;. " or "Special Periis" including Wind, On ka replacement cost basis with no c Y.n81.rrtrnce (A) in an amount equal to 100% of the iR.eplacenment Cost, which fir purposes of' this Agreement shall nneaun the actual replacement value ((;,caluaive of costs of excavations., foundations, underground utilities, piling - and footings and exclusive of Inferior bulld••out and PP&1 ); (13) containing in "Ordinance of Law Coverage" or "'fani'rn'cento t" e.ndorseinnant inctudl,--g loss to the undornaged po.rt:lon, demolition costs and increased costs of construction endorsement in amounts reasonably acceptable to '.Landlord i P any of the Tenant's improvements or the use of the Demised Premises shall t any time constitute legal non -conforming structures or uses and (C) emit' n'ing an agreed amount endorsement with respect to the improvements an personal property waiving all oo,Insuranoo provisions or to be written on a a co-insurance form; and (D) providing for no deductible in excess of $50,.0q (except that: any deductible for windstorm coverage shall :not exceed 3"/, of insured value) unless higher deductibles ere customary for commercial properties in South Florida: (Ii) Fussiness Income insuran'c= in an amount at least equal to one hundred ilercent (1 00%o) of the amounts rr.yable by Tenant to l.,,andlord under this Lease for Fixed hearty Maaintenanncf Charge and (impositions for a period of no less than eighteen (18) months, (,) covering "All Risk" or "Special Perils" required to be to be covered by tit" insurance provided for in subsection. (i) above; an.c'1 (i3) containing an ex ended period of indemnity endorsement which provides that after the physic, I loss to The Improvements and personal property has been repaired, the condi ued loss of Income will be insured until such income either returns to the sae e level it was at prior to the loss, or the expiration of twelve (12) nnorrtlns fret, the date that the 'Project is repaired or,replaced and. operations are resumed, 1ichever first occurs, and notwithstanding that the policy may expire prior tc the end of such period. (ill) oonnpr'ehen;%ve boiler and machinery insurance, if steam boilers or other pressure-f red vessels are In operation, in amounts as shall be reasonably required / >y Landlord on terms consistent with the commercial property imam policy required under gthec ionjj)j); (iv) coma `oroia.i general liability insurance against clairnsa for personal injury, bodily injury, death or property damage occurring upon, in or about the Demised Pre 11865 arch IJrsurannce to bo on the so-called "ooeurt•ence" form with a limit of tic less than $3,000,000 per occurretice and no loss than $ ,000,000 in die a sgregate per location plus excess or umbrella insurance with tt minimum iimit 1` 150,000,000 per oecu.rrenoe and in the aggregate and to never at 'least the following hazards: (A) promises send operations; (1:3) products and completed 28 oporatlons on an "if any" basis; (C) i:ndepenclent contractors; and (D) cant ttetual liability for so-called "Insured oonirracts"; (v) if applicable, t tt'ornobile liability coverage for all owned and n»rt-owned vehicles, including Tented and leased vehicles containing rnlnlnllln limits per occurrence of $1,000,000; (vi) If applicable, worker's compensation and employer's liability subject to' the wallow's compensation laws of the applicable state; (vii) if beer, wine or other alcoholic beverage sales for on -pre lrses consumption occur on the .Demised 'Premises, liquor liability (dram eh p) Insurance +x'ith a minimum limit of liability in an amount of $4,000,000 p occurrence, covering bodily injury, death and property damage. (di) If any pardon of the i'Demiseel Premises is currently ,r at any time In the future located In a fedeirally designated "special flood iararci. urea", flood hazard insurance in an a►nount equal to the maxlmu•i amount of such 1,1181.1.1111100 available 'under the National Flood Insurance , ct of :1968, the Flood Disaster Protection Act of 197:3 or the; 'National Flood nsurenoe Reform Act of 1994 as each may be amended (the "Flood Acts") lulus excess limits as reasonably app.rovecl by Landlord (but in no event mor than $ 10,000,000, with a deductible not greater than Twenty.five "Thousand any 1 Io/l00 Dollars ($25,000,00) or such higher amount as may be customary for ''ommercial properties in South Florida and; (ix) if any policy described in climes ,(ii,), QJI1(:iy,), or W above shall contain an exclusion from coverage under s/oh Policy for loss or damage incurred as a result of err act of terrorism or sl,i.lar acts al' sabotage, terrorism coverage to the extent available at an adcfltia al cost not to exceed $450,000 in 2013 US, Dollars; (a) Additional Provisions. 1 vidence of oontmero'cI. general liability insurance must be on file with Landlord before 'Tenn ,t takes possession of the Demised Premises and must be kept current at all t nes. A11. other coverages shall be an file with Landlord before ccarnrnencet ; ent of construction of the Tenant's improvements and must be kept current a; all times. If Tenant shall fail to effect or maintain (or fail to cause to be eff4-'ted or in<tiiltailled) fitrolt insurance and provide Landlord with copies of all p liclos and certificates evidencing the sterna at least ten (1.0) days before the da,e that Tenant is required to have any such insurance in effect, then, upon five ( days' prior written notice to Tenant, Landlord may effect the sane and Tenni agrees to pay, within thirty (30) days alter demand, cuy amount paid by Land rrd for such purpose, together with interest thereon, and in case of its failure o so pay, the same shall be added to and become part of the installment of ref next due under the towns of this Lease, Landlord shall. not .be limited In the roof of any damages which Landlord may claim against Tenant arising out of r by 'reason of'rerrant's failure to provide artd keep in force (or cause to be I ovklacl and kept, in force) ilnstu'anoa polioles as aforesaid, to the amount of the minim prarnlunl or premiums .not paid or incurred by Tenant which would have been payable upon such insurance but also shall be entitled to recover as damages ,for such breach, the uninsured amount of any loss, liability, damages, claims, costs and expenses of suit, judgments and interest, suffered, or incurred by Landlord by reason of any casualty or accident or disaster occurring on the Demised Premises which should have been insured hereunder. 71enant shall not 29 violate 0] permit to be violated any condition of any of said lacalic.ies, a cl'1`enant shall so perform and satisfy (or cause to be performed and sa tatted) the requirements of the companies writing such '.policies so that t all tines eompatlles of good standing shall be willing to write such 1ii ut'ane (ii) All policies of insurance procured. by "1"enanl: shall be ins .od by insurance companies with general policyholder's rating of not less tit I A and a financial rating of Glass VII:I no rated hi the most current avails e "1 est's Insurance Reports" or Moody's A2 or Fitch A, and licensed to do rrsinoss in thy: State of Florida, or a State approved surplus line irlsuror, and uthorized to issue such policy or policies, or equivalent. The commercial go oral liability policy shall contain a provision that the coverage shall be priraar mullion -contributing with respeot to any policy carried by L,arndlorcl, and that any policy carried by Landlord shall ise excess insurance, All come' ial general liability insurance procured by Tenant shall contain an endorseniei ; that Landlord, although named as an rrdclition.itl irlsurocl, nevertheless shall 0 entitled to recover udder said policies for any loss or damage music] 'd t:o lt, its servants, agents and employees by reason of the negligence, o ['orient, All policies of insurance procured by Tenant shall contain an era orsemont (to the extent commercially reasonably available) providing as I'al.•WS: that such insurance may not be nmaterially changed, amended or cane od with respect to Landlord except after endeavoring to provide thirty (30) c. "iys'. prior written notice 'from the insurance company to Landlord and 'Landlorc's mortgagee. All such policies, to the extent commercially reasonably avalla' e, shall contain cross -liability endorsements and name Prime Landlord, Lai lord, Landlord's mortgagees, beneficiaries and additional Individuals and e Cities which Landlord may 'fl'on1 time to time reasonably designate, as adc:tiu.nail insureds, Landlord may, Thom time to time, increase the minimum and+tints of all insurance required to be maintained by Tenant under this Lease, n the exorcise of Landlord's commercially reasonable discretion, by :notice it writing to Tenant but not more il'egnantly than once every .live (5) years, (Eli) "Tenant 'hereby ref. ses Landlord and anyone claiming by or through Landlord by way of subro.'1.tion or otherwise, t1'onn any and all loss of or damage to the Demised From ; es, the Tenant's improvements, the Project or 'the personal property of T'.nan"t or any subtenant, licensee or concessionaire thereon which att'e covered; 7y any insurance policies actually maintained by Tenant (or any such subte ant, iicenswe or concessionaire) or which would be covered by the insuranc -ooverages required to be obtained and maintained wider this Lase, whether or not caused by the neg'iigence or tbult of Landlord but: excluding Latldls..d's gross negligence or willful misconduct. .In addition, all policies proo, red lay Tenant (or any subtenant, licensee, contractor, or concessionaire) si:i contain Mt endorsement containing an express waiver of any right of su rogation by the insurance company against Landlord (whether named as an i, sure( or snot), (iv) (liven the fact that the types and availability of insurance coverages change from t'1r11a to limo., Landlord acknowledges that Tenant may desire to eliminate or reduce coverage if certain insurance coverage required to be nmainta.ined by this lease becomes commercially unavailable at commercially reasonable cost, Find Landlord agreoa that it shall not unreasonably withhold its approval of any such request to eliminate or reduce coverage. Section 9.02 Iasi; ; t lf,:,f;0rion of Lu ord. For 'natters arising during the Terra of this Lease, Tenant shall indemnify, clef°. 4 (by counsel reasonably acceptable 'to Landlord; provided that to the extent a. claim is covered by insurano the insarratm(1e company's designated counsel shall not be objectionable), land hold harmless ;;0 C.andlord, its Affiliates, and collectively, their respective members, managers, often, directors, sharehoiders., partners, empioyees, contractors, beneficiaries, lenders, legal representatives, successors and assigns (the "Landlord Indemnified .Parties"), from and against liability, claims, demands, expenses, 'foes, :fines, penalties, suits proceedings, actions, and onwoS Of actioin. arising out of or connected with'renant's use, occupancy, management ()antral of the Demised Premises co, any of Tenant's operations or nrtivitles at they 13•ayside Property (whether or of occurring ar resulting in do1Tlogr or injury within tllo Demised Premises or the; Shopping Center), except to the extent stune result in whole or in part, directly or indirectly, from the willful misconduct or gross negligence; • 'the Landlord indarrniiflod Parties or any or them, Tenant's Indemnification obligation shalt survive the expfra' on or earlier terminartion of the Terra of this Lease, Section 9,03 1.ndr , ,iilju. s l cr'.' ,en.aalt.t. For mi tters arising during the Term of this L,utl'sa Landlord shall indemnify, defend (by counsel reasonably acceptable to Tenant; provided. that to the extent a claim is covered by in111rra.11c+1, the insurance company's designated counsel shall not be objectionable), and hold harm! e°s Tenant, its Affiliates, and collectively, their respective members, managers, officers, cl'n'ootors, sharehol ears, partners, employees, contractors, beneficiaries, Mender's, legal representatives, successors and assign(the "Tenant 'Indemnified Parties"), from and against liability, claims, demands, expenses, fees, fines, penalties, sults, proceedings, actions, and causes of action arising out of or connected with .Landlord's use, mam'gemrnt or control of the portions of the Shopping Center that are not exclusively occupiied by third panties, ei'ce to the extent sane result In whole or in part, directly or indirectly, from the wvil.lful misconduct or gross tie nonce of the Tenant Indemnified Panties or any of them, Landlord's ind.emnificat'ion obligation shall survive e exph'altion or earlier termination of the Term of this Lease, ARTICLJ3'X — DAMAGE BY CASUALTY Section 10.01 (3o,tc>ra tiptt, Except as otherwise provider] in Section 10 hereof, if any of the Tenant's rmpravrments .now or hereafter situated on the D0111.18e(1 Proillt'ses (except FP&1, should at any time during the 'i'ernr be damaged or destroyed by fire or otherwise, Tenant shall restore, and rebt' Id the same as nearly as possible to the condition they were in immediately before such damage or destruction /vith such 0lnanges AS 'Tenant nay desire and are ,permitted by the provisions of this Lease, including, without lit station, any prior approval required from I,,,andlard), and such restoration rune) rebuilding, prosecuted with due dil genre, shall be completed In scan as reasonably possible, If, due to reasons outside of Tenant's control, Iona is unable to restore and .rebuild the Tenant's Improvements in substantially the sfilne manner that Tenet originally constructed the Tenant's Improvements pursuant to the Site Development Plan Package approved . +Landlord and the Approved Plans, then Landlord agrees that Its approval shall not be unreasonably withheld so /ng as Tenant's proposed modil'ioations to the Site Development Plan Pacicage or the Approved Plaits, as the cusu may be, are commercially reasonable, No damage or destruction shalt be grounds for the termination of the T rm of this Lease or relieve Tenant from.any obligation created or imposed by virtue of this Lease, any laws af'th state in which the Demised Promises Is located to the contrary notwithstanding, including, but without limiting the generality of the foregoing, Tenant's obligation to slake payment of the rant and all other charges on the park n f Tenant to be paid, and Tenant's obligation to perform all other covenants and agreements on the part of Tenn,, to be perforrnecl. Ail Net :Insurance Proceeds (as such term is defined below) payable on account of such riding() arising from In86n'artoo required under the provisions of this Lease shall be paid to Tenant (or to its I asehold Mortgagee to the extent': required under its Leasehold Mortgage) in the case or any particular casualty r wiring in.a loss payment not exceeding $1,000,000 (In 2013 U.S. Dollar's) in the aggregate, in case of any part' ular casualty resulting in a loss payment irn OXCeSS of' a 1,000,000 (In 2013 U.S. Dollars) in the aggregate, th entire amount of the 'Net .insurance Proceeds shall be deposited with the Leasehold Mortgage; if there is n Leasehold Mortgagee at such time, such Net Insurance Proceeds shall be deposited with an Institutional Lend reasonably and mutually acceptable to both Landlord and Tenant, pursuant to a reasonably and mutually a cepfable trust agreement (the "Insurance Proceeds Trust Agreement"), Provided Tenant conducts the restorat n o't'the Tenant's Improvements on the Demised Premises in accordance with this Lease and the terms or the T.,' tfehold Mortgage (or, If there is none, the lnsuranca Prooeeds Trust Agreement), the Leasehold Mortgagee (or, i there is none, such mutually agreed upon Institutional Lender) shall disburse the Net Iasurance'Proceeds fl'on) th e to time upon receipt of a request front Tenant to ()ever a.mounls clue to contractor's, Subcontractors, raat0i'lalrl1Csrl, 11g31'leer's, arohiteots or other persons who 11EIVe rendered services or finished materials in formation with Such restoration or as otherwise provided for in tine Leasehold Mortgage.or Insurance Proceeds 'trust Agreement, f0S applicable. hi the event any surplus afNef Insurance Proceeds shall l'el1'lilth after repairs of replacement or the Tenant's improvements shall have been made, Muc':in excess shall forthwith be paid 31 to and. become the property of "I"enaunt. If the Not Insurance Proceeds aro insufficient to complete the re:rtorato rebuilding or repair", then Tenant shall comply :with the rewquirement's of the 1„easehold Mortgage (or, if none, mutually agreed upon Insurance Proceeds Trust Agreehllent), Section 10.02 Amigo Mgt .i�r74i.,,of ;t'e,;. >, If any of the Tenant's Improvements are partially or .otally damaged or destroyed during the lest five (5) years of the Term, as same may have been extended, then Ter lint may elect not to repair° and. restore such improvements by giving Landlord notice of such election within 120 ays rafter the date on which stash damage or destruction. occurs (the "Restoration Notice"), if Tenant makes su'.h election, then Landlord shall have the .right to elect to restore the 'Tenant's Improvements by nchtifj'iug Tenant t er•eof within fifteen (15'') BushnGss Days following receipt of the Restoration Notice, whereupon this Lease shall b ternainetced es• of the date on which such thunage or destruction occurred and 'Tenant shall promptly assign to 1, dlord ell of its rights to the insurance proceeds. If both Tenant and Landlord elect not to restore the Tenant's mprovemonts as provided. herein, then this Lease shall be terminated as of the dare on which such damage or c straction occurred provided, however, that,. at Tenant's sole election, either (I) Landlord shall be entitled to rett. n the Net Insurance Proceeds, o'1' (II) Tenant nlla.il, prior to the efi'erctive date of the torn:dilation of this Lease (or rs soon thereafter as Is reasonably possible), and in any event, as Sat711 as reasonably possible, put the Project in a 1 wthl,.sa.fe and operable condition, raze the damaged or destroyed Tenant's Improvements and remove all debris 'fr► 1h the l)amisecl Premises, "Net Insurance Proceeds" shall mean the total amount of insurance 'proceeds payable r which would have been payable had Tenant maintained than Insurance coverage required hereunder) from :wh ' n anlotnit shall be, deducted the costs of collection thereof, including appraisers' and attorneys' fees (which costa of collection shall be paid to• axed belong to Tenant if and to the extent that Tenant is the sale party pursuing .cc lecti.on), If Tenant shall have defaulted In its obligation to maintain the insurance required hereunder, then Ter'nt shall be obligated to pay the amount of insurance proceeds that would have been payable under the required J. toy. ARTICLE CONDEMNATION Section 11,01 Taking "!'cauhl : tra. ,. If the whole or at part of the Demised Premises shall be taken at any time during the Tenn for temporary use and occupancy for • ny public or quasi.public purpose by any lawful power or authority, by the exercise of th.e right of condemnation or eminent domain, or by agreement uncle: the threat of condemnation between Landlord, Tenant and those aul:h•rized to exercise such :right (a "Temporary Taking"), Tenant shall give prompt rlotiee thereof to Landlord, and t 'o Term of this Lease shall not be reduced or afhicted in any way. In such cause, Tenant shall continue to pay in f 1 all rent and other charges provided to be paid by Tenant, Tenant shall be entitled to the entire award for su 1 Temporary Taking (whether paid by way of damages, rent, or otherwise), except to the extent the Tom of his '!!,ease expires prior to the termination of the Temporary Taking in which case., the award shall be equitable <ppartloned between Landlord and Tenant. At the termination o.fally $uch use or occupation of the Demised Prey llses, Tenant will, at its solo cost, repair and rcestcil•e the Tenant's Improvements to the condition, as nearly as . hay be reasonably possible, In stdiialh shell Tenant's Improvements were at the time of such Temporary Taking vith such changes as ".Tenant may desire to make subject to the terine of this Lease, .including, without }inlitatiohr, ry prior approval required fi•nraa Landlord). Tenant shall not be requir'od to make such repairs and restoration the Term of this Lase shall expire before the date of termination of starry:. taking, and., in any such e,vent, L , hdlorcl Shall be entitled to recover all damages and awards arising 011.t of the 'ih[lwe of t'ha condemning audio ny tat repnlr and restore the Tenant's Improvements et the expiration of such 'Temporary Taking. Any recove or sum received by 'Tenant a.s an award or compensation for physical damage to the Demised Premises or the "enant's Improvements caused by and during such Temporary Talking (including amounts allocated to the value, f the Tenant's' h11'proveahlerrts and the cost to repair and restoro the Tenant's Improvements) shall be handled n accordance with the terms of the Leasehold Mortgage, Notwithstanding„ the foregoing, If.at Temporary raking occurs during the last five (5) years of the Terns, as it may be extended, then the terms of Section 11,06 brat; shall apply, Section 11,02 TTotala lag. the entire Demised Premises snail be taken at any time during the Term of this Lease for any public or quasi»ptr; lac purpose by any lawful power or authority, by the exercise of right of condemnation err eminent domain, orb •agreement under the threat of condemnation between Lendiord, Tenant and those authorized to exercise such righ(ra "Total Taking"), then the Tenn of this Lease shall terminate as of the date possession shall be by such nu lority and the rent and other charges payable by Tenant to Landlord tondo: this Lease shall lie apportioned anti pal . to the date of such termination, Without limiting the foregoing, the Applicable Breakpoint for the aaleaulation of Percentage Rent for the thial partial Lease Year of the Te m shall be reduced 32 proportionately arid, no later than thirty (30) clays ail•er the effective date of the termination of this Lease, "i'en,nt: shall pay Co Landlord all Percentage Rent for such partial. Lease Year, as so calculated on the basis of such trrijt ted. Applicable Breakpoint, Section 1 1,03 a11;7'stt n •i iylotatTfal ina: , If a Substantially Total Taking (as such term is defined below) oo46ll'S, then Tenant may terminate the Term of this Lease as of the date possession shall be take by ;such authority, b.y written notice to Landlord given within ono hundred twenty (120) clays after the affective to of such taking and the rent and other charges payable by Tenant to Landlord under this Lease shall be apportio trd and paid to the date of such termination,. 'Without limiting the foregoing, the Applicable .Breakpoint for the calculation of Percerrtn.ge Rent fear the final partial Lease Year of the 'Perm shall be reduced proportionately ar , no late' them thirty (30) clays after the effective date of termination of this Lease, Tenant shall pay to Landlord a Percentage Rent fear such partial Lease. 'Year, as so calculated on the basis of such adjusted _Applicable Bre, <point, The term "'Substantially Total Taking," as used herein, shall nneart a taking of such scope that the po "loin of the Demised Premises (for clarification, Demised Premises specifically includes Tenant's rights in respect f the )casements) reel the Tenant's Improvements not subject to such taking .are Insufficient, In Tenant's reausonab e business judgment, to permit the restoration of the oxisting Tcrnrrnt's Improvements so as to constitute a conrple economical project and resume normal business operations, Section 11.04 l til;i;1gj,.""tticjpg, if a portion of the Demised Prena.ises Is ken 'for any public. or citlrtsi,. public purpose by any 'iew(lrl power ar authority, by the exercise of right of condom Mien or eminent domain, or by agreement under (he threat of condemnation between Landlord, Tenant and those arthorf od to exercise such right, in lieu thereof, which does not constitute a Temporary Taking or a Total Takh or Substantially Total '.raking as defined in Sections 11,01,11,02 and 11,03 hereof (a "Partial Taking") this Lea e shall terminate as to the portion of the Demised Premises so taken, on the effective date of such Partial Taking Icl shall remain in full force and effect es to the portion of the Demised Premises remaining immediately alder uch Partial "I'aking, with an equitable abatement or reduction ofr'ont, The Applicable Breakpoint shall also be re need on an 'equitable basics to account for the permanent reduction, If any, of the Commercial Space (as such term 's defined below) .in the ;Demised. Premises due to the Partial Taking, The term 'Commercial Space" means th.•t portion of the Demised Premises whlolr, pursuant to the :Permitted Uses desoribc;cl in the Approved Plan is contemplated to generate Gross Sales. Notwithstanding the foregoing, if a Partial Taking occurs during tl last five (5) years of the Terris, as it may be extended, the terms of Section 11.06 below shall apply. Section 11,05 AI,?ia ic;a.tion...of:wta,i„CI for Eai'tia akin ; or Igtal Taltg (7 1 1. a.,.:aking_fox (a) in the event of'a Partial Taking, - s defined .herein, :the Allocated Condemnation Proceeds (as irracln term is defined bedew) shell be deposited will the C.,easeholcl Mortgagee, [or if there Is no Leasehold Mortgagee at such time, with an Institutional Lender r •asonably and mutually acceptable to both Landlord and 'tenant, pursuant to a trust agreement in form and oon't' nt reasonably and mutually acceptable to both Landlord and Tenant (the "Conclonmaation Proceeds Trust Agreernen ')). Provided Tenant conduct's the restoration of the Tenant's Improvements on the Demised.Premise;s in aacccrt'dalnr with this Lease and the .terms of the Leasehold Mortgage [or, there; is crone, the Condemnation Proceeds Tru.'., Agreement,), Leasehold Mortgagee (or If there is none, such mutually agreed. upon Institutional. Lender) shall c isburse the Allocated. Condemnation Proceeds from time to tin'ae upon receipt o'fa request i.om Tenant to cover a wants dm to contractors, subcontl'aata'r's,'mater'ialmes, engineers, architects or other persons who have rendered t•; !vices or furnished materials In. oonneolip:n with such restoration or as otherwise provided for in the Leasehold h '.rtgage or Condemnation Proceeds Trust Agreement, as applicable, L'Ire' AUooated Condiemnation Proceeds shall 0 u;tod to restore and rebuild such Tenant's Improvements OS .nearly Os possible to the condition they were in innnesiately before such damage or destruction (with such changes as Tenant may desire subject. to the terms of this ease, Including, without limitation, any prior approval required from Landlord). The tear!. "Allocated Cond'rnnation Proceeds" shall !neat) that portion of the Net Condemnation Proceeds (as such term is defined lac w) as are allocated in the condemnation prooeeding :Or in a separate proceeding) in the award of such Ne• Condemnation Proceeds for .the restoration and rebuilding of the 'Pedant's Improvements to as nearly as possibblo the condition they were in Immediately before such taking (ancl shalt include amounts allocated to the value oi'th. Tenant's improvements, es well as the costs to repair and restore the Tenant's Improvements). The term Net C, nclemnat'ion Proceeds" shall mean the total amount of the award rendered in 33 conneeaon with. any such 'taking, after the clerltrction therefrom of: the 'costs of collection thereof, 11 I cling appraiser's' anti attorneys' 'fees. (b) Subject: to Section 11,06 below ats to tl Partial Taking during: the last five (5) gears of the 'Term, as it may be extended, in the event of a Partial Taking, Tenant shall restore and re:build to Tenant's Improvement's as nearly as possible to the condition they were in i.irniirrdiately before such taking (tali such changes as Tenant may desire subject to the terms of this lease, including, without limitation, any prier praval required from Landlord), and such restoration and rebuilding ,shall be prosecuted with due diligence and mi.l be completed as reasonably possible. Tenant's obligat'lo'n to restore and rebuild the 'Tenant's Improvement shall be subject to receipt of the Allocated Condemnation Proceeds, In the event the ,Allocated Condemnation : r'oceeds shall not be reasonably Sufficient for the restoration and rebuilding of the Tenant's Improvements to sue] condition, then Tenant hall be entitled to' deem such taking to be a Substantially Total Taking and shall be entitleto terminate the'Terrn of this !,came by written notice to Landlord given within 120 datys'a'lor snob determination, (o) In the event o'f a Partial 'Taking'where the Leaae it arid; t:inrinated but a portion o'f the ,Tenant's Improvements have been taken and cl'm Net Condemnation Proceeds ancother payments on account of such t'aki'ng exceed the Allocated Condemnation Proceeds, such excess Net C telemnation Proceeds and other payments shall be equitably allocated by the court with respect to the part es' respective interests; it being understood that with respect to the Demised Premises, Lturcflorcl shall be enti 'ed to make a eltiln't 'fnl' •tl'he Imes of Landlord's leasehold interest for the unexpired terra of the Retail Parcel Lease 'Including any extension options) and Tenant shall be entitled to make a claim for the value of the Tenant's Imp ovemtem (including the value of any inuinovable fixtures), as well as the lost of Teirtmi'S leasehold interest for th to umpired term of this !,ease (including any extension options) and buSinass damages, (d) In the event of a. Total "Taking or a T1ubstan'ti' .ly'Total "Taking, as defined, herein, resulting In the termination of this Lease, the Net Condemnation Proceeds and ther payments on account of such taking shall be equitably allocated by the court with respect to the parties' res: motive interests; it being understood that with respect to the Demised Premises, Landlord shall be entitled to n car e claim for the loss of Landlord's leasehold interest for the unexpired term of the Retail Parcel Lease (Intl ding any extension: options) and Tenant shall be entitled to make a claim for the value of the "Tenant's Irma venienis (including the value of any immovable fixtures), as well as the loss of Tenant's leasehold Interest 'or the unexpired term of this Lease (including any extension options) and btlsi.neSs damages. Section 11,06 DamagLeigatImUtTerm, I any of the Tenants Improvements are partially or totally damaged or destroyed in connection' with a Temporary 'eking or Partial Taking that occurs during or extends into the best live (5) years of the Term, as same may have 1 en extended, then 'Tenant may elect not to repair and restore such Improvements by giving Landlord notice of su election within one hundred 'twenty (120) days after the date of a 'Temporary Taking or Partial Taking or whet five (5) years or less remains of the Terrn and the Temporary Taking continues (the "Taking Restoration Notic .'). if Tenant makes such electlen, then Landlord shrill have the right to elect to restore the 'Tenant's Impr'ove1 nts by notifying Tenant thereof within fifteen (15) Business Days following receipt of the Taking Restoration otlee, whereupon this Lease shall be terminated as of the date on which such Temporary Taking or Partial "Tat ing occurred or the date of the Taking Restoration Notice in the case when five (5) years or less rerilairis of the arm and the Temporary Taking continues, and Tenant shall promptly assign to 'Landlord ail of its rights to t e Net Cond.entnation Proceeds allocable to restoration 'of the Tenant's Improvements (Tenant shall retain its lghts in respect of the Net Condemnation Proceeds allocable to loss of Tenant's leasehold estate and busines damages), If both Tenant and Landlord elect not to restore the Tenant's Thiprovenaerits LIS provided hereto., eill this Lease shall bo ternr.inated as of the date an which such Temporary Taking, or Partial Taking occurred ' t17e date of the Taking, Restoration Notice In the case when five (33) years or less remains of the Terni and the 'Tel'!' ol`rn'y' Taking continues, provided, however, that, at Tenant's sole election, either (I) Landlord shall be entitled retain the Net Condemnation Proceeds allocable to restoration of the Tenant's Improvements, or (10 Tenant prior to the effective date of the ter'ntination of this Lease (or as soon thereabr as is 'reasonable pta.s.sibi.e), a d in any event, its soon as reasonably possible, put the Project in a lawful, safe and operable condition, raze th damaged or destroyed 'Tenant's Improvements and remove all debris from the Demised Premises, let either event, Tenant shall retain its rights in respect of the Net Condemnation Proceeds allocable to Ions of Tenant's leasehold e, tat'G and business damages). 34 ARTICLE XII »• ASSIGNMENT AND SUBLETTING Section 12,01 gt tiae juit; r,,t, Except as otherwise provided herein, Tenant shall not dire y or indirectly transfer, assign, sublet, change ownership, or hypothecate this Lease or Tenant's interest In an to the Demised 1111'e1111ses, In whole or in 'part, or otllorw ise permit occupancy of all or any part ofthe Demised Pr,mises by anyone by, through or under it, or enter into any license or concession agreement with respect to any po don of the Demised. Premises, without first procuring the written consent of Landlord, which may be granted or w illirld in the sole and absolute discretion of Landlord, The transfer of a direct or indirect Controlling interest in ' enant shall be deemed la be a tr111151'tir reviving Landlord's consent, 1'f Tenant is not: a publicly traded corpor;tloll; provided, however, that for purposes of this Lease, the death of Je'1'f'ey Berkowitz and any change of C,ntrol that results therefrom shall not be deemed to be a transfer in violation of this Article ,XII, The general pr'ihibitlon contained herein against assigning or subletting shall be construed to include e prohibition aiga'inst any ass +ninent or subletting by operation of law. Any attempt at a transfer without Landlord's prior written consent she be null and void and confer no rights on any third person. Landlord. shall have a period of fifteen (15) f.B'usine.n Days within which to review and approve or disapprove of any written request by Tenant for approval of any rear proposed transfer, In writing; provided, however, that in the event Landlord shall not have responded to Ten nt' with Landlord's written e.ppioval of disapproval of Tenant's proposed transfer within such 'fifteen (15)13usins lay perlocl and provided thriller Tenant has submitted any 51.rc11 approval request in all envelope (or an einn h1 ace,ordnll'ce with Section 21,11'1 hereof, with the fallowing caption at the top of the :first page :in bold latterin' 'LANDLO.l D'S RESPONSE 1S REQUIRED WITHIN FIFTEEN (15) BUSINESS DAYS FOLLOWING tECI ).PT OF THIS NOTICE P'URSUANNNT'1'{) THE TERMS OF THE LEASE", Landlord shall be doer, cl to have approved such transfer request, Tenant shall cooperate in promptly providing srtolt i111'ornlatbn as ,andlord may reasonably request in connection with any proposed transfer, To the extent any financial info; nation with respect to any potential assignee of subtenant is provided to Landlord, Landlord shall treat same Os 'ollficiential, subject to and In a nlOTUIUr consistent With the provisions of Scotian 4,03(d) above, (a) Notwithstanding the foregoing Tenant shall have the: right to sublease (to include licenses 01 concessionaire agreements whenever the t'errn "$'please" is used h'1 ihis subSeet1o11) portions (but not all) of the Demised premises for a.Permitted Use, without Lan aril's prior written consent, provided that (L) the proposal aubtenant (to include licensees and concessionaires \'henever the term "subtenant" is used in this subsection) has experience In the operation of the business pro' seed to be conducted within the sublease premises and capital or. rosaurces to conduct such business (51.ic11 oxpe lence and capital requirements to be determined by Tenant in its reasonable) business judgment) and (ii) the eeollnl.n.lc terms end conditions of the proposed sublease are 011 Ca11111'101'Uialily Reasonable 'Trills, The term "Co'lllnmer ally Reasonable Terms" 11'I0a.i1S the not economic terms (Including, without limitation, base rent, percentage retl( ( any), maintenance charges, rental abatements and tenant improvement allowance's) under which a willing lal'lilia el would lease the subject subleased premises to a willing unrelated third party 'tenant on an al'm's•dengtl7 b�lsls, c king data account all appropr'iat'e factors, at the time of the proposed sublease, Any sublease of any portion ''f the Demised P1'011115e0 shall be subject to the terms and Conditions of this Lease, and shall be in writing (wl' ch w.l'iting shall incorporate Eta express acknowledgment by the subtenant: thereunder that such sublease is subject'nc1 subordinate to this Lease), Tennant 51101l furnish to. Landlord a copy oi'any such sublease within thirty (30) day. following tiie execution thereof, Any'revenlles ret/eivod by Tenant honi 01' pur800111 to any sublease, license of co cession, shail,be included th Gross Sales for purposes of computing Percentage Rent, La11dloi'd agrees to enter h :o al lien -disturbance agreement with any subtenant of Tenant leasing not less than '7,500 square feet of gross lens '>le area in the Tower in such form as 511a11 be reasonable acceptable, to Landlord, Tenant, and the subtenant (the `Subtenant NNNDA"); provided that Landlord has approved tile proposed sublease, which approval shall not be ur 'Casonably withheld, conditioned or delayed 50 tong as the parameters set forth in clauses (1) and (II) above n1'0 sel.tis'fbod. The form of Subtenant NDA attached hereto us Exhibit " 0" is acceptable to Landlord, If Tenant or ny subtenant desires to negotiate the form of Subtenant NDA attached hereto as Exhibit "Ci" tiled Landlord's oxen- Ilion and delivery of the Subtenant SNDA shall be Conditioned upon '("errant of such subtenant paying Landlord 1',;,500 as flit a.dniililstrative fete, (b) A;IllleaotCoto. Al pr oni.nr 'aatp, Notwithstanding the foregoing, from and after t1'it date that is two (2) years blinwing the Opening Date and provided no 'Event of Default is eontinuin.g, Tenant may 'freely assign or trainee ' the, Lease without the consent of Landlord; provided, however that suoh assignee or transferee, 'as5umoS III writ' ig all of Tenant's obligations under this Lease accruing i:roin and atier the date of such assignment or:other t'ra ns:or, In no event shall any such assignment or other 'Pans'''")' relieve Tennant from any of its 35 obligations under 'this Lease FACCr'tring prior to the date of such assignment 11t or tether th'at'Isfer. Tenant shall fo llfsh. to Landlord a copy of any such assignment and as'sur'nislon agreement or 'notice of such other transfer as ermitted hereir'r within thirty (30) days following the execution or effective .date thereof, as the Caao may be, (c) iti el' Po latlttad Transfers, Notwithstanding anything to the contrary rao tabled in this Lease, without Landlord's prior tyr'ittten. consent, (i) 'reliant may assign this 'Lease or sublet all or 1, portion of the Demised Pre1n18es (or Tenant may effect a change of Control 'of Tenant) if such assignment or 'ublease is to (or such change of control is in connection with rl transaction with), (A) any Entity into which "T'o lant may merge or which may result in the consolidation or Tenant with another Entity or (3) any Affiliate . ' Tenant, or (ii) any Leasehold Mortgagee (as such terra is defined in Article XXX, below) may exercise its rem iss under a Leasehold i,'lort'gage resulting in as transfer, Notwithstanding the foregoing, in the event of any sub! ase, tine economic terms thereof shall be on Commercially Reasonable Terms, No such transfer s.hail rensaat from any of its obligations under this Lease, Tenant shall notify Landlord of any such transfer within iriy (30) days following the effective date thereof, Al TICL13 XIfI „_'i'E NANT S DEFAULT Section 13,01 J y_etlts of Nallt, 'rho following events shall bet coded to be "Events of Default" by '1"enrtrrt welder this Lease; (a) Tenant shall have (oiled to pay any installmr,at of rent or any other amount or charge (incfrttffng, without Ibaitation, any expenses described in Section 3 41, above) required to be paid by Tenant hereunder, or any portion thereof When the same shall be due and iatable, and the same shall retrain unpaid for a period of five (5) days after Tenant's receipt of written notice from ncl.lord; or (b) 'Tenant shall have failed to oomply w.' :h any other provision of this Lease, if the Mtge continues for thirty (30) days rafter written notice to "NMI' SOU ; ig forth in .reasonable detail the nature and. extent of the f"arilure and identifying the applicable Lease provision; tar vkled. however, if any dsf ult by Tenant is of such a ntita.n'e vvhich cannot reasonably be rectified or cured withit • the foregoing :10”.day period, then so long as Tenant fs otherwise in compliance with all of its monetary oblige°earls under this Lease, Tenant shall have an additional reasonable period of time to rectify and cure such c fault provided tiiat Tenant shall have commenced the rectification and curing thereof'' within the. original 3i.day cure period and shall continue t ereaft;er with clue diligence to cause such rectification and Curing, In ,o event shall the cure rights set for't;h in 'tills subsection (b) apply to any failure'by Tenant to continuously op l'at> as provided in subsection (c) below or to otherwise extend the Coinme rceillent Contingency or the Completion. C , urgency as provided for in this Lorin,. (e) Tenant shall, for rca,, ns other than those specifically permitted in this Lease, cease to Continuously Operate, as defined in Section 5. 4(a), for 1i1e Pertrrftted Uses in the Demised Premises for a period in excess of twolvs (Ul) consecutive months; or (d) The making by "errant of general assignment for the benefit of creditors; or •the fll.irrg by Tenant of a .petition to have Tenant judged bankrupt, or of a petition for reorganization or arrangement under tiny haw relating to bankruptcy; or (o) The tither, against Tenant of a petition to have Tenant adjudged a bankrupt, or of a petition f:ar reorganization or am igerhlent weeder any law relating to bankruptcy, unless any such petition filed against :Tenant is dismissed 180 days; the appointment of a trustee or receiver to take possession of substantially all of Tenant's as 's located at the Demised Premises or of Tenant's interest in this Lease if possession is not restored to Tenant wit.hir 180 days; or the rrttachrli0l1tt, execution or other juciioiral seizure of substantially all of Tenant's assets located at the e.rllised Premises, or of Tenant's interest ht this .lease, if the seizure is not discharged within 180 days; or (f) /Any delimit under the Payment and Performance (T'uara'aty. 36 Section 13,02 I. ,tJit„l,(4g, Upon the ooeurrena;e of any 'I vent of' Default,, Landlord may pursue. a y one or more of the following remedies, subject to ail applicable legal l oquireaalents in connection with the exact - of my such remedy, without any notice or demand whatsoever, except as required by such applicable legal requir:ments: (a) T I„(J,1.Jnation of Right of POSpsican, Landlord may terminate Tent it's right of possession. Of the Demised Premises Without terminating the Term of this 1„onnse, Upon $11011 term! a ation, Landlord slay, n't Landlord's option, enter into they Demised Premises mid truce and hold possession thereof, rthout such entry into possession terminating the 'form of this feria or releasing Tenant In whole or in purl from ' nartt's oblig,antion to pay Fixed Rent and Additional Rent for the full Term, Upon such re-entry, Landlord may r 1love all persons and property from the Demised Premises, and store such property in e public warohouse or else here et the cost of and for the account of 'reliant, all in accordance lvit'h law. Landlord may malce repairs flue redecorate the Demised f'renalses to the extent doomed by Landlord necessary or desirable In connection r ith relating the Demised l't'emiaett of otherwise, aild 'reliant shall, upon. Clelnialld, pay' the costa thereof, toget:lla with Landlord's expense of relating, The amount, if any, by which cash consideration actually !received by La 'ford upon any 60011 relettilrg, exceeds Landlord's expenses Incident thereto,. including reasonable brokerage f sr and legal expenses, shall be credited to Tenant's rental obligations 'hereunder, 'Landlord may not cancel or' ter ina'te the Term of this Lease upon the occurrence of an Event of t)4d tint unilaterally without judietal intervention. ,rut may pursue termination through judicial proceedings to the extent; such. remedy is lawfully available and may Fpursue any other remedy at law m- in equity that; may be available to Landlord, (b) t llar)t :R.etnedjes, 'Pursuit of any of the 'fotog• ng ronlodios shall not preclude pursuit. of any Of the other remedies herein provided or any other ('e.rrlocllea p' ovidoci by law (all such remedies being ctrnlrrlakive), nor shall pursuit of any remedy herein provided constitr a a forfeiture or waiver of any rent or other payments due to Landlord horoundor or ofany damages accruing to L. ndlord by reason of the violation deny of the terms, provisions and Covellaant'S heroin contained, No act or thing cf ne by Landlord or Its agents during the Tei-in of this Lease shall be deemed. a tern1ination of the 'form o'fthis Leas !. of an acceptance of the surrender of the Demised Premises, and no agreement to terminate lure Term of this Lease ' accept a Surr'ellder' of the Demised Premises shall be valid unless in writing signed by Landlord, No waiver by Landlord of any violation or broach of any of the terms, provisions and covenants herein contained shall be do nod or construed. to constitute a waiver of any other violation or breach of any of the terms, pr'oviaior1s and. eov routs herein contained, Landlord's accopteince of the payment of rental or other payments hereunder after the Dec rr'enc e of a default shall not be construed as a WaiVter a'f such default, unless Landlord so notifies Tenant In milli 1'ol'bear'ance by Landlord in enforcing one or more of the remedies herein provided upon a default shall not be corned or construed to 'constitute a waiver of such default or of Landlord's right to enforce any such remedies witt respect to ;inch default or any subsequent default, (t) %O;i;eo byl'Cnar1.t, To tie extent permitted by applicable law, Tenant weiVOS notice of reentry (or institution of legal proceedings), Includ-ag the right to receive notice pursuant to any statute or judicial decision of law (but does not waive notices top ed. under this Loose), N'ot'an'lthstai'lding anything to the contrary contained herein any written notice, other than as specifically set forth in this Article KW or elsewhere In this Lease, required by a statute or law enacted n . v or later is waived by Tenant, to the extent permitted under that statute or law, Tenant expressly waives an right or defense it may have to claim a. merger, and neither the commencement of an action or proceedin .' nor the settlement of, or entering of judgment for any actions or proeecding shall bar Landlord front brig gh subsequent actions or proceedings, based upon other or subsequently accruing claims, or based upon claims or vents which have previoubiy accrued and not been resolved in any prior action, proceeding or settlement, (cl) Jttt]'••..4� The parties waive trial by jury i.n any action, proceeding or counterclalm brcn.rght by either of the parties again,: the other with respect to matters arising under this Lease, (e? M,9 J •. Jggs Landlord rind Tenant hereby waive the right to seek or recover punitive damages in any action pIrking to this Lease, Section 11,03 er '.lttatlojt p..k'.1: pt. The pardes covenant and agree that because of the difficulty or impossibility of determining ,andierd's damages by way of loss of the anticipated Percentage Rent from Tenant or other tenants or occupants l.1 or adjoining the Shopping Center, or by way of loss o'f value in the property because of diminished salability or a rtgage”ability of adverse publicity or appearance by Tenant's actions,. should Tenant 37 (a) vacate, abandon or desert the Demised Prelll. sos, or (b) cease operat'.ing or oonduot'ing, Tcmant's business t e' in as required Calder Section 5,041 hereof, or (c) rail or refuse to maintain business haur;s on such days or night or any part thereof as provided hi Section 5,04 hereof, then, and in any of such events (hereinafter collectively r erred to as "failure to do business"), Landlord shall have the right, at its option (1) to collect not only Fixed lion and other rants and charges herein reserved, but also Additional Rent equal to fifteen patent (15%) of the .nixed •nt reserved for the period of Tenant's failure to do business, computed et a daily rate for each and every clay r past thereof during streh period; and ,such Additional Dent shall be deemed to be liquidated damages ill lieu of ny Percentage Rent that might have been earned by Landlord dtwing such period (and no Percentage Rent shall , e'ru'ned, due or payable, during such period that Tenant is not operating the .Project:), and, in addition, at Landlo is option, (ID to treat such failure to do business as an Event of Default within the meaning of Section 13:01 of t is Lease, As used herein the terms "vacate", "abandon" or "desert" shall not be defeated because Tenant may he left all or any part of its trade fixtures or other personal property in the Demised Premises, Section 13.04 C data., Expenses enilt; irh §fit t' lilep , If Landlord shall, witlhoit fault on .its part, be made as panty to any litigation commenced. by or against Tenant, then Tenant shall pa all costs„ expenses and reasonable attorneys' feces incurred or paid by L,a.ndiord in connection with such litigatio , if Tenant shall, 'without, fault on. its part, be made a party to any litigation commenced by or against Landlord then Landlord shall pay all costs, expenses acid reasonable attorneys' fees incurred or paid by Tenant in °crnne.tion with such litigation. If litigation results fl'orn any 'dispute, claim or controversy arising out of this Least?, the prevailing party shall be entitled to recover f1'anh the other all reasonable Coats arid reasonable attorney's foe;, at the trial tend Appellate level~, The provisions of this Article XIII shall survive the exph'ation or earlier termini p11 of the Term of this Lease, ARTICLE XIV HOLDING OVRR If Tenant, with Landlord's written consent., remains in posse,sion of the Demised Pre1111Ses a'ft'or the expiration or the Term and without then execution of a new lease, it h"• 1 be deemed to be occupying the Demised Premises as 0 tenant drool month to r'nonth at tt rental equal to the rent (including any Aciclitional Rent) herein provided for the period iramhediately before' the expiration of the 'Te ih1 and otherwise subject to all the conditions, provisions and obligations or this Lease insofar as the scone care ap J [cable to a month -to -month tenancy, If Tenant fails to surrender the Demised Premises o'11 the termination of t'1's Lease without 1,,,andiorel's written consent, the monthly rental shall be computed as follows; 1/12111 multiplied b/ 200'14 of the aggregate rental payable to Landlord during the last twelve ('12) month period of the Term, 'fans it. shall, In addition to other liabilities to Landlord, Indemnify, defend and hold Landlord harmless from dotes err 'liability resulting from that failure including, but not limited to, claims roads by a succeeding tenant and Prime 1 ndlord, The exercise of Landlord's rights shall not be interpreted to allow Tenant to continue In possession, nor s: all It be deemed an election to extend the Term beyond a month -to -month basis, If Landlord, in its sole disoretdo , determines to permit Tenant to remain In the Demised Premises on a month -to -month basis, the monthmto-m i'th tenancy shall be terminable on thirty (10) days' prior written notice given by either party to the other part".. ARTICLE XV ACCESS BY LANDLORD) Provided that Tenant's business operatio s acre not unreasonably interfered with, and upon no less than �8 hours prior written notice, Landlord or .Landior' s agents shall have tyre right to enter tine 1D'ernisecl Premises at all reasonable tittles during .normal business hour 't:c) exanhline the Sa1110 and to show them to prospective lenders, or during the hest eighteen (18) months of the "f k.'an, prospective purchasers or lessees; provided, however, that during the contintuance of are Event of Def>:ault, Lan' lord shall have the unfettered right to show the Demised, Premises to prospective p1,1rellfae1S or lessees. If "Tenn t shait not be personally present to open and permit an entry upon the Demised Premises at any time. when for any reason an entry therein shall be necessary to protect the Demised Premises from darilago, Landlord or Lane ord's agents may enter the saute, without rendering Landlord a 'trespasser and without, in any ntklnner, af'feotilig the obligations and ooverrarnts of ails Lea.so. Landlord shall repair any damage caused by its entry. Nothing contained 'teem, however, shall be deemed or construed to impose upon 'Landlord any additional obligation, responsibility or liability whatsoever'., for the care, maintenance or repair of the Project or any part thereof, except as otherwise herein specifically provided, A,RTICLI XVr,.,. LANDLORD'S DEFAULT 38 Landlord shall be in default unclog the Lease if it has tidied to comply with any provision of this Lc e and the filth -ire continues for thirty (30) days after written notice from Tenant setting, forth in reasonable cletwail t e nature and extent of the failure and identifying the applicable Lease provision; provided, however, if any da atilt by a Landlord is of such nature that it cannot he rectified or cured within such thirty (30) day period, titan will be deterred rectified or cured if Landlord within such period of thirty (30) days shall have co reetilicatic>n and curing thereof and Slrarii continue thereafter with due diligence to cause such r curing Tenant shall have all remedies available at law and equity, together with those expressly for Instances of Landlord's default, if Landlord falls to rectify or cure any default 'pertain ' obligations with respect to the Deaamised Premises (as opposed to the Shopping Center) or any those matters benofltting the 1Jcanaisecl Promises that were installed on tho Shopping Center Lease et Tenant's request and are the obligation of Landlord, if any (the "Tenant Request the cure period set forth above, as it may be extended, has elapsed, then "1"enaant shall have t obligation of Landlord on Landlord's behalf' and Landlord shall promptly reimburse TIME request, for all reasonable costs incurred by Tenant in performing such obligation of Lan at then Default Rote from. the date such costs are incurred by Tenant until the date 'rcim hereby acl€raowledges and agrees that Landlord shall be under no obligation to Enhancements and that Landlord may approve, conditionally approve or reject any f In Landlord's sole and absolute discretion. The provisions of this Article XVI slaal termination of the "Term of this Lease, ARTICLE XV.II " REMEDIES 'S CCJI\'ITILA.TI No 'waiver by Landlord or Tenant of e breach of any covenants this Loose snail be construed to be a waiver of any .future breach of obligation or condition hereof, No receipt of money by Landlord fro. termination of the Term of this Lease, or after the commencement of of the Demised Pre'aanises, shall reinstate, continue or extend the Term suit, 'Ibis provision shall survive the expiration or earlier termination tall default i.meaood the 'tiircatie)] and :rovidecl herein, •rf,Y to Landlord's daault. in respect of Rey the data of this nhanceinents"), and e right to perform such t, upon Tenant's written old, together with Interest, uused by Landlord, Tenant mho any 10l1Elnt Requested [rank Requested Enhancements survive the expiration or earlier a reement's, nblikations or conditions Of same or other covenant, agreement, . Tenant; after notice of default, or after sult or after final ,judgment of p0£r0eSS100 f this Lease or affect any notice, demand or f the Term of this Lease, ARTICLE XVf11 — AlJTHO IZATION Section 18,0I h,, l;tldlc 'sAutitorkgjon, Landlord covenants., represents and warrants that it has full right and power 10 exeou.te and perform this Cease, Section 18 02 3' it?7i•(,', .. ,tltln. r:,l ck!.tdQit, Tenal and power to execute and perform this Lease, Section 1.8,03 no„, ,;cl}fie x _Fjt:1T,eta 1•tz'tents' ,1;ZIr•ig,lc?lf,g„t. Landlord shall not agree to any amendment of the Prime Lease which would materially and adverse y affect Tenant's rights under this Lease. If Prime Landlord. shall fail to perform any of its material obligations larder the Primo Leaser, ar any Entity obligated under any Title Restriction or REA breaches such Title 0estrlctio or IAA., and such failure shall materially and adversely affect Tenant's rights under this Lease, in Tenant's re .°nobl'e discretion, then, upon the request of Tenant hereunder, in writing, Landlord shall, at Landlord's sole coos' rand expense, uses commercially reasonable efforts sea enforce, such rights and remedies es Landlord rainy have a der the Retail Parcel Lease, 'Title Restriction, REA or at law or in equity, in order to cause Prince Landlord or 'uch other party to perform such obligations under the Retail Parcel Lease, Title Restrietiion or REA, ovenamts, .represents and warrants that it has •full right AR' TCLE X'I:X QUIET POSSESSION Section 19,01 go n i1 ` Landlord Covenants that Tenant, on paying the rents reserved herein and performing the ovetionts and agreements hereof, shall peaceably and quietly have,. hold and enjoy the Demised Prernises and all rights, easements, appurtenances and privileges therounto belonging Ur in any, wise appertaaining, during the Tenet hereof, Anything herein to the contrary notwithstanding, the transferor Landlord shall not be liable for any breach of the covenant of quiet enjoyment or any other breaches occurring after the transf'er'or Landlord shall i'ra.ve transferred ownership of the Demised Premises, but such liability shall be that of tine transferee Landlord, 39 Landlord agrees to cooperate vvitin the reasonable requests of Tenant's title insurance. underwriter vho is issuing title Insuranoe insuring Tenant's sub -leasehold interest in the 'CDemised, Premises, Including aviding evidence of the existence, authority and. good standing of Landlord and i:7roviding an owner's affidavit .oasonabIy acceptable to Tenant's tlt.lc insurance underwriter regarding parties in possession and. collstr't101;1011 lion; or potential' cltrinns therefor es a,l'erault of any work performed an the Demised Premises by or an behalf of Landdloa' Sac'tk i't 19,02 ; ;mo•'i,S.{,ot�Agromnsa 'i'enant'shall use commercially reaisonable eff''•ts to obtain from Prime Landlord, at: aro unaffiliated. third party out•of-pocket expense to Landlolyd, a moo ' :lon agreement, in mooed:able form, whereby Prime Landlord agrees that, provided no Evaaht of Default shall ha occurred under this Lease:, then In the event attic termination or the Retail Parcel'Lease:, Prime. Landlord shall r'cognize thin Lease and the rights of Tenant hereunder; provided that as a condition thereto, Tenant shall adorn t rime Landlord and pay all rent required hereunder directly to 'Prime Landlord. ('the "Recognition Agreement"). ARTICLE XX .,« INTENTIONALLY OMITTED ARTICLE XXI Mm MISCELLANEOUS I RQV'1510 Suction 21,0'1 al n,4i1ii? oJf.Parties, Nothing herein contained "'mail, be deemed or construed by the parties hereto, nor by any third party,. es creating the relationship 0pl 1larpal nd agent; or at partnership or ofjoint venture between the parties hereto, it being understood and agreed that nei ' er the method of computation of rent, nor any other provision contained therein, nor any acts of the parties 'ter'eto, shall be deemed to create any realationship between the parties hereto other than the relationship of1';andl:rd and tenant, This Lease shall not confer rights or benefits, including third -party beneficiary rights or benefits anyone that is not a named party to this Lease, iitclud:ing any individual, corporatical, partnership, trust, nil1oorporated, organization, governmental organization or agency or political subdivision, "!'he provisions of Ws Section 2I,01 shall survive the expiration or earlier termination of this Lease. Section 21.02 Ca1.t tac,tlon, Tenant has read and la lerstnntis this Lease. The rule of construction that a document should be construed most strictly against the part which prepared the document shall not be applied, because both parties have participated in the preparation of th', Letase. The necessary gralnrnatical changes required to make the provisions of this Lease a;ppiy in the plural s nse where there is /Dora than one .tenant and to either rorparaticros, associations, partnerships or individuals, r,ales or females, shall, In all instiutees, be assumed as though filly expressed. The captions used In this Leas are for convenience only and do not in any way limit or amplify the terms artd provisions hereof. The parties r cnowledge'that curtain charges, fees an other payments are deemed "Additional Rent" in ar'cl.ar to enforce Land +rd's remedies, and shall not be construed to be "rent" if rem controls are Unposed. The printed provisions of ti5 'Lease and written or typed addit:io'ns shall be given equal weight for the interpretation of this Lease. Th A provisions of this Section 21.02 shall survive the expiration or earlier termination of this Lease, Section 2:1,03 Parties.12Qnind. it's agreed that tltls I•.ease, and each and all the coveniarrts and obligations hereof, shall be binding upon andi inure to t e benefit of, as the case may be, the parties hereto, their respective heirs, executors, adnhinistrators, sueicesso.rs an arssdgns, subject to tall agreements and restrictions herein contained with respect to assignment or other transfer Tenant's interest heroin. The provisions of this Section 21.03 shall survive the expiration or sooner termination o 'this Lease. Section 21,041 Entire; A 4e ,t den. This Lease contains the entire agreeltient between the parties regarding the Project, and no ot91. discussions or al reoments, whether in writing or otherwise shall have any force or effect whatsoever, No agrees tint shall be effective to change, modify or terminate this I.,eal,e in whole or in part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought. The provisions o'1'this Section 21,041 shall survive the expiration or earlier termination o'fthis Lease. Section 21,05 r, •Irg,I„1, 1rwh of' Landlord and Tennant covenants, warrants and 'represents that na brokers or advisors represented then with respect to thistransaction. Each party agrees to and hereby does defend, hncdo n.nify and hold the other harmless against and from any brokerage cotrmtissians or finder's fees or ciia.ims therefor by a party claiming to have dealt with the indemnifying party and all costs, expenses arid liablldtics in 40 connection therewith, Including 14'ithout limitation, reasonable attorneys' fees and expenses, for any la each of the foregoing. 'The foregoing indemnification shall survive the expiration or earlier termination of this Lea Section 21.06 Savings and iovornin j.,ga'yr,�Vcnue. If' any provision of this l.,,oasc or any paragraph, sentence, clause, phrase or word is judicially or administratively held invalid or unenforceable, tier : shall not a.ffeet, modify or impair any other paragraph, sentence, clause, phrase o1' word. The laws of the St• a oi' Florida shall govern the interpretation., validity, perforrnanoe and enforcement of this Lease, Venue for an disputes related to this Lease shall rest exclusively with the state courts (or federal courts but only if the Wert, court jurisdiction is exclusive), sitting in Miatni•Dade,County, Florida. The provisions of this Section 2.1,06 steal survive the expiration or sooner termination ofdila Lease. Section 21,07 1?pi,;u iAtil ,l'lrq, Neither party shall be liable to the other nor r onaod In default under this Lease if and to the extent that such patty's performance is• prevented by reasan of orce Majeure. For iyurposes hereof, "Force Majeure" means a strike; lockout or other industrial disturbance (pr \tided, however, that strikes, lockouts or Industrial disturbances caused) by employees of the party claiming the ri *.. t 10 a 'force majeur'e delay shaft not be considered a Force Majeure); civic disturbance; ffrture valid order of a y ;,ovem1ng authority, court or regulatory body having jurisclictl.on and declaring a d1SaSter Or similar eme'r'ger 'y situation; bat of public enemy; riot; sabotage; blockade; embargo; inability to secure materials or labor by I'son of govermnont:at regulation or order of any governing authority or regulatory body; lightening; earthquake; 'fi e; hurricane; flood; explosion; Act of Clod; unusual governmental permitting or inspection delay, or any other eau e beyond the reasonable control of the party asserting Force Majeure (specifically including delay caused by the . aer party hereto) whetheror not similar to any of the foregoing causes. In the event of Force Majeure, the time w thin which with Landlord or Tenant shall be required. to perform any act. under this Loose, shall be extended by a erinii of time equal to the number of days during which tyre performance of such act is delayed by Force Majeure, Notwithstanding the foregoing, in no event shall the unavailability of capital or any change in market cond:i' arcs or the capital markets constitute Force Majeure, The party claiming a delay causal by Force Majeure shall endeavor to give the other party written notice o'fsuch delay as soon as reasonably practicable after its Initial ocCLu relive; It being understood that a failure to notify the other parry of a delay duo to Force Majeure shall not preji. Ice the rights of such party in claiming, a Force Majeure delay hereunder. Notwithstanding the 'foregoing, each party shall have the right to request, in writing, no more frequentiy than every sixty (60) days that the other party orifir n the then current existence of a Force Majeure delay and the actual or anticipated duration (if known) of s clr delay at any tin'ra and .from Inci'lto Inc (each a "Force Majeure Request"), and the party to whotm the Foie Majeure Request is made shall have thirty (30) clays following .receipt of the Force Mnjeure .Request to reapo'- cl in writing to the requesting party, failing which and provided the request: is seat in an envelope (or an email) i acoordance with Section 21,1.1 hereof, with the following caption at the top ache first page in bold lettering "'l"E A.NT'S IOR LANDLORl 'S, if a'pplicnble,j RESPONSE IS REQUIRED WJT'fl:'m THI'RTy 00) DAYS Ir( LOWING RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE LEASE', the party to vhom the Force Majeure Request is made shall be deemed to have no pending Force Majeure claims as of th expiration of the. aforementioned 30-clay period If a party previously communicated the existence of a Fore .Majeure event the failure to raise such Force Majeure event In rersperose to a subsequent Force Majeure Roque. ` shall not preclude such party ii'o't'm claiming the delay caused by such prior reported Force Majeure event, bu''if not raised again in response 9:o the subsequent (Force Majeure R.a'quesl such previously communicated For' Maljeure event shall. be 'deemed to no longer be Continuing, The provisions of this Section 21,07 shall not op ,rate to excuse Tenant from prompt payment ofPr'eoperVing lent, Fixed Rent, Percentage Rent or any ether paynrer .s required by the terms of this Louse, Section 21.08 1.eg'ur c}i gs' r4ra The parties agree to execute, hr recordable form, a short form memorandum of this Lease deac;ribin .the Demised Premises, the Term and the parties hereto sufficient for the Issuance of a leasehold tide instil'; it policy for the benefit of Tenant (a "'Memorandum of Lease"), '(Ire Memorandum of Lease shall not lt, any rircuMstat1caa be deemed to modify or Change any of t'ha provisions of this Lease, the provisions of which sh .I in .all i:nstanCes prevail. The party so requesting such short: foam lease shrill be responsible foe preparation and r cording thereof, and release thereof after termination of this Lease, However, the Menmoraiidum of Lease shall c ntl.nue in full force and effect after the Term until the time for entering into a New Lease shall have expired and should a Now Lease be entered into, it shell relate hack to the date of this tease. Without limiting the'foregoing, by accepting r! mortgage tr'orn Landlord, Landlord's mortgagee agrees that any New Lease shall be superior to such mortgagee's mortgage and shall 1'ett'lalit superior unless and until, as to a first item held by all Institutional Lender only, such lender executes and delivers the subordination, non- dt disturbance/recognition trod attainment agreement that Landlord has agreed in tho second paragraph of Section 30.04 to use commercially reasonable efforts to obtain (for clarification, Landlord's mortgagee who at arty time not rt first lien holder or not an Institutional Lender shall at all times be and remain subordinate to any New :Le sa and the estate created thereby). The i'vleataorandum of Lease shall provide that Landlord's dlca.rd's interest shall n , be subject to liens for Improvements made by or for the benefit of Tenant. Upon the exiairation or sooner term' ration of this Lease, and the expiration of the period for 'enter'in} Into a Now Lease, 'Tenant agrees tc7 cute into a termination agreement, In recordnblo fora•i, within ten (10).ditys following Landlord's request there or. The substance of the provisions set fortis In this Section 21;05 shall be included In the Memorandum of .ease. The provisions ofl:his Section 21,08 shall survive the expiration or earlier termination of this Lease, Seaton 21.09 {;ettl9DUttl h 'oIpas. 2'anarat:'8 ffliiure CO object to a statement, i nice or billing within one (1) year .aftev receipt shall constitute Tenant's acceptance thereof. Tenant shall bo required to provide Landlord with a spooifio and detailed list of 'onant's objections at tha time Tenant n•ttrleas its o action to Landlord. The statement, invoice or billing shall be an account stated between Landlord and Tenant, ae provisions of this Section 21.09 shall survive the expiration or 80011.01' termination of this 'Lease. Section 21.10 80. ,?plign. The ,submission of this Lease for exai inatio or execution does not constitute a restmrvatiora of or option for the Demised 'Premises, and this Lease becom'ffective; as a lease only upon execution and delivery thereof by Landlord and Tenant:, Seetit>n 21,11 1 o t1; 5. Wherever any notice or submission is requIra or permitted hereunder, such notice or submission shrill be in writing, Any notice or submission required or pe• 'flitted to be, delivered hereunder shall be deemed to be delivered (a) when emailed to the applicable party and s dh piety has confirmed receipt or rejection (which each party agrees to do by reply email promptly after the recir ^st for confirmation from the other party), (b) one (1) Business lay after being deposited with a nationally reeog ford, overnight delivery sarvlea with proof of receipt or rejection thereof or (c) five (5) Business Days after bein deposited In the United States Mall, postage prepaid, .Registerecl. or Certified Mail, Return Receipt Requested, addressed to the parties hereto at: the addresses hereinafter set forth, or at such other addresses as they have theretofore specified by written notice, delivered in accordance h.arewith. The. provisions of dais Section 1.1 shall survive the expiration or SOWN' termulatlon of this Lease. lfto Landlord prior to completion of the initial Cons, action. of the Project: With a copy to: EIAYSIDE MA1't.K1STP' ACE, LLC c/o •General Clrowth Pr/parties,.Ine. 1245 Worcester R.oa . Suite 1218 Natick, Massachuse • s 017.60 Attention: John CI rters lnaail: .lohn:CI'rt: tens@ggp,00tn BAYSII)E MA I<:l"I°PLAC'E,1,aLC c/o Claneral Or wth Properties, Inc, 1 '10 North W oker Drive Chicago, Ill': ois 60606 Attention: 14 aderie,%essar Email:. arjorle.Ze,ssartrggp.com If to Landlord. following cornpleti n of the Initial Construction of the Project: BA IDE MA'R,KETPI,,ACE., LLC c/a `onerat Growth Properties, Inc. 1 North Wacker Drive tioago, Tlihrnis 60606 Attention: Chief Legal. Officer Email: IVIarvin.l..evine@ggp.com 42 With ai copy to: 1f to Tenant 13A1'S= MAJ. Kl3TPLACI3, LLC 401 .Biscayne Blvd, NI'iamai,. Florida 3.3132 Attu. General Manager . bnaail: Parnela.,Wo.11er(rr�,ggp,,conn SKyCl'IG1-1 M'[A'M1, d'„ 1..0 c/o Berkowitz Devoloprnent. Group, Inc, 1565 South L'3ayshere Drive Stait+,1200 Coconut Grove, Florida 33133 Attention: ;Jeff Berkowitz Erne 1, • 1;,a4 41.r(51 .01 .c,0X!;1'"AdUAt?D.l With a copy to: Bilzin 5urnberg 13aaenat Price Axelrod. LLP 14150 E3rlckel1 Avenue '9uite 2300 Miami, Florida 33131 Attention; John C, Snmberg f,naail: jamberix@blizin.c0.12 Section 21,1.2 Q; lgo,;wferr to1! t t;,tgagree, With reference to any ''sig;nment by Landlord of its interest in this tease, or the rents payable hereunder, conditional in'nann°e or otlrerw'i; o, which assignment is made to. or held by a bank, trust company, insurance company or other lender holding a m •tgage on the Demised Premises, Tenant agrees that the holder of such financing shall be treated as having MUD d Landlord's obligations thereunder only open holder taking.pos'session of the Demised Premises through for'aolo Ire or assignment In lieu of'fbreoiosure, Section 21,13 Land ozi's Lia.lglity. Anything container: In his Lease to the contrary notwithstanding, Tenant agrees that: Tenant shall look solely to the estate and l '°party of L andiord in the land. and buildings comprising the l3a,yslde Property (including the Parking Faciliti s), the rentals therefrom and any insurance and condemnation proceeds therce0 om, for the collection of any '.-. figment (or other judicial process) requiring the payment of money by Landlord in the event of arry default or ~reach by Landlord with respect to any of the terms and provisions of this Lease t'o be observed and/or perfounec y Landlord, and no other assets of Landlord shall be .subject to 'ivy, execution or other judlci 11 process for the .atis:f'action of Tenant's claims, tra tha event Landlord conveys or transfers its interest in the Demised Promises . r in this Lease, except as collateral security for a loan, upon such conveyance or transfer, Landlord (and in the ' ease of any subsequent conveyances or transfers, the then grantor or transferor) shall be entirely released and relie, ed fi'onn aril liability with respect: to the performance ol'any covenant's and obligations on the part of Landlord t be performed hereunder from and after the date of such conveyance or transfer, provided that any amounts 'rare due and payable to 'Tenant by Landlord (or by the then grantor or transferor) or any other obligations then t - be performed. by Landlord (or by the then grantor or transferor) for Tanalat under any provisions of this Lease, sha either be paid or performed by Landlord (or by the then. grantor or transferor) or such payment or perforrnxn ee a sumed by the grantee or transferee; It being intended hereby that the covenants and obligations on the part of T °a'ndiord ro Lie performed hereunder shall, :subject as aforesaiid, be binding on Landlord, its successors and assign : only during and in respect of their respective period of ownership of am i.rnterest in the Demised Premises or in this; ,ease., "his provision shall not be deemed, construed or Interpreted to be or constitute any agreement, express or i .'plied, between Landlord and 'Tenant that Landlord's interest hereunder and in. the Demised Premises shall be sub'et to impressment of an equitable Tien or otherwise, The. provisions of this Suction 21,13 shall survive the expira ion or earlier tern nation of this Lease. Section 21.144 hles,Leme, ;his is an absolutely net lease and Landlord shall not be required to provide any services or do any act or thin: 'Ith respect to the Donrisocl. Premises, or the buildings and Improvements thereon, or the appurtenances theiet`« except as may be specifically provided herein, and the rent reserved herein shall be paid to Landlord without a, p' prior notice and without any claim on the, part of Tenant for diminution, set- off or abatement and nothing sh= 1 suspend, abate or reduce any .rent to be paid hereunder, except as may be, otherwise expressly provided her r a. 43 Section 2.1,15 Light tohrformlaut,'LaRgAgati, f.f 't'enant shall fail to Inca" any payment �r perform any act required hereunder to be made or performed by Tenant, then Landlord may, but shad be under 10 obligation to, make such payment or perform snob act with the same effect as if made or porfor'tned by 'rem so long as notice and opportunity to cure Have been provided to Tenant to the extent set forth in Article XIII or as elsewhere, provided in this Lease, Entry by Landlord upon the Demised. Premises for such purpose sl not discharge or release Tenant from any obligation o'r default hereunder, Tenant shall reimburse (with inter ., at at the Default Rate) Landlord for all sums so paid by Landlord and all costs and expenses incurred by 1.,.ndlorcl in connection with the payment of moneys or the performance of any such act. The interest shall be d" IT1ed to be Additional Rent, The provisions of this Section 21,15 shall survive the expiration or earlier tenni] Lion of this Lease. Section 21,16 Etki.41, , .ot:, Tenant shalt not suffer or permit any portion of the Demia cl. Prarrlises to be used by the public, as such, in such manner as might reasonably make possible a claim or claim of adverse user or acivorse possession by the public, as such, or of implied dedication, of the Demised Premises or any portion thereof; and any such portion of the .Demised Premises shall, at all tinges, be subject to such reasonabb1 rules or directions as La:ncllord may ftonr time to time make or ,give in writing, for the sole purpose of Lame orcl's protection in Its reasonable business ,judgment aailinsl possible claim or claims of adverse user, adver.' posssession or implied dedication by ilia public, as such; Tenant hereby acknowledges that Landlord does not Iv •oby consent', expressly or by implication, to the unrestricted use or possession of the whole or any portion of Cl Demised Premises by the public, as such; and Tenant covenants and agrees that all such reasonable rules and dir• etions so given shall be fully and promptly performed and enforced by Tenant at its own cost and expense. Landlord shall not impose requirements under this Section that are more onerous than Landlord adapts for the hopping Center, Section 21.17 .'sl gl;tPc C ,i'l iehtetr:, Both Landlord and Tenant atupon request of the other party, at any time and fi'nin time to time upon ten (10) days' prior wri1ton notice, tcl exeacuta and deliver to the requesting - party, without charge, rl: written declaration, in reoordible form:. (1) ra''.''.iirg this Lease, (ii) confirming the commencement and expiration elates of the Term; (1ii) certifying that rer'rant is in occupancy of the Demised Premises, and that this Lease is in fall force and effect and has not en. assigned, modified, supplemented or amended, except 'by rurh writings as Shall be stated; (iv) that share are n defenses or offsets against the enforcement cerllent of this Lease, or stating. those clammed; (v) reciting the a11a.onrlt of' adva, cc rental, if any, paid by Tenant and the date t0 Which rental has 1'10011 paid and (vi) swing forth such other trutl 11 factual inforniat.ion as the requesthl5 panty may reasonably request. Section 21,18 Ex4 .fair lx of DocGtrile its, Tenant shf. l reimburse Prime Landlord, if requested by Prime Lrllidlord, for all reasonable administrative. and legal .expense, for the review, preparation and processing Of any document: sent at Tenant's request, whether or not the docun 'nt: Is executed by Landlord Or oii10i'avis0 60118a11ted 10 by Prince Landlord, Section 21.19 QwnerAjpr, If the leasehold v tate of Landlord in the Bayside Properly (pursuant to the Retail Parcel Lease) is held in a real estate investment .'•ust, then Landlord and Tenant agree Chat Preop©ning Rent, Fixed Rent, Percentage Rent and all Additional Renta paid to Landlord tinder this Lease (eollectfveiy re'ferr'ed to In this Section 21,19 as "Rent") is intended to quality as "rents from real property" 'within the meaning of Section 856(d) of the Internal Revenue Code of 1986, 05 amended (the "Code"), and the U.S, ]Department of Treasury Regulations (the "Regulations"), Should the Co' e or the Regulations, or interpretations of them. by the I.'rll'ertiall Revenue Service contained lt1 Revenue Rulings, ra changed so that any Rent no longer qualifies as "rent from real property" for the purposes of Section 856(d).of • le Code and the Regulations, other than by reason of the application of Section 856(d)(2)(.11) or 85'6(d)(5) of the Co0 of the Regulations, then this Lease shall be amended to adjust Ram: so that 11 will qualify (provided however that s ny adjustments required pursuant to this. Section 21.19 shall be made set as to produce the equivalent (In eaonomi ' terms) Rent as payable before the adjustment), Tenant understands and agrees that any, revenue bused rent or fie structure (e,g,, percentage rent) contained in its subleases, license:, concession or other occupancy agreeniel 's, as permitted by this Lease, shall be based solely upon gross sales or gross revenue and not 0)1017 net revenue or net profits of the respective subtenant, licensee, C0110091.o11aire 01' other occupant of the Demised Premises, 'Toe provisions of this Section 21,19 shall survive the expiration 01' aalliier termination. of Ns Lease. 44 Section 2.1.20 Mulersr Rector/talon, Tenant waives any right of redemption if Tenant Is v rated or dispossessed 'Po1' any cause, or if Latndlord obtains possession of the Demised Premises because of the l,efault of Tenant or otherwise, The rights (riven to landlord al'e in addition to fights that may be given to l,randlorby statute or 'otherwise, The p.l'4''Vision8 ofth.lS Section 21.20 shall survive the expiration of earlier termination of 118 Lease, Section 21.21 .d)nf,"aj(entallty. Landlord and Tenant hereby agree to keep the meter' 1 terms of this Lease confidential and not to disclose same to any other i✓ntity, without the prior Consent o'P the other party; provided, however, that the terms hereof may be disclosed without such consent to a par'ty's ace. un'tant8, attorneys, employees, agents, prospective buyers and actual or prospective lenders, and others in privity w h such party, to the extent reasonably necessary for such party's business purposes, or in cannection with a d.i uto hereunder or to comply with law or judicial process (subject to the Ifrhlitatiions and protections for cs 1fidontiali'ty contained elsewhere in this Lease), With respect to all confidentiality provisions contained in this Lease, the parties acknowledge that, once any material is provided' to Prime Landlord, it will become .a pubi r000rcl (80 long as. Prime landlord, is a. governmental entity) and accordingly, shall thereafter be exemp from the confidentiality requirements of this Lease. to the extent such :material is not exempt from becoming public; record by law. The provisions of thls Section 21,21 shall survive the expiration or earlier termination of t s L,earre. Section 21,22 >•.,1.;3plag (i,L41.ep%a1,1.enti,r p94, Notwithstanding an,ythil to the contrary contained in cll.is Lease, in the event triers Is a. dispute between Landlord and "Tenant e8 t0 (a) I.,: nd.lord's approval of (I) any of the plans and specifications or a rehitcctural approvals to be approved by handler pursuant to Sections 3,02(b), (c) or (d) (or ,02(a) after the Opening Date), 8,03 or otherwise under the Lease, (° "Tenant's Preconsh'uetion Deliveries pursuant to Section 3,03, (iii) approval ofsignage tinder ,Section :3.06 or ot'h .revise, (iv) Tenant's performance of the work. In substantial conformance with the .Approved Plans, (b) the equitabi adjustment of the improvements portion of any tax bill fbr the Tax Parcel pursuant to Section 7,03 If the l:Denl ed Premises. are not otherwise separately assessed and the tax bill does not omit -alit a. separate line itellt for the 8 ,,wised value of the 'tenant's .Improvements; (o) adjustment of 1'1'xod Rent and the Applicable Breakpoint pursuair to Section 11;04, (d) adjust'ment of insurance requirements as conteilpiated in Artic'l.e XXXI.11 of this Lease elsewhere in this Lease (including Section 9,01(c)(1'v) of this Lease), (e) whether the terms of any sable se permitted by this Lease are Commercially Reasonable Terms, (f) whether or net Landlord is entitled to withhold giving an ND.A, and (g) Ciross gales calloulation and issues raised by an audit under Section 4.03(e), iticl Landlcn'd.and Tenant are unable to resolve such dispute within thirty (30) days following the eommence0hen of snort dispute (Landlord and 'T'onan:t ag1"00 t0 use good faith efforts to resolve such dispute between themsel es within such 30 day period), or either Landlord or Tenant sooner determines that it is unlikely they will be ab..e to resolve their dispute, then the matter(s) in question shall. the resolved In accordance with this Section 2:1.22, trrinf the pendency 0f the dispute resolution procedure tinder this Section 21.22, neither party shall denture the „thor in default of this Lease solely by virtue of tlhe'.dispute end the outer party'.s failure to perform' the. disputed o igations. In the event of any 34101h disagreement, .Lal1C110rd and. Tenant shall ih`romptly select an Independent Ex art (as defined below) and notify the, Independent Expert of such disagreement and their desire to have such di s{ ;moment resolved by the 'Independent Expert, if Landlord and Tenant cannot reasonably agree upon the select'en of the independent Expert within give (5) B418i.11033 Days following the expiration of the aforementioned •-day (or sootier) period, then eachh of Landlord and Tenant shall immediately select an expert oftheir choosing, °speitivety, avlro would qualify 8.8 an Independent Expert hereunder and the two experts :selected by Landlord and errant shall promptly select the Independent Expert. Once selected, the Independent Expert shall be instructed to render its decision within thirty (30) days ('or any shorter time reasonably agreed to by Landlord and. Tens 1) after such notification, Each of Landlord and Tenant shall be entitled to present. evidence and arguments to 11 Independent Expert, which evidence and arguments may include the relevant provisions of this Lease and e11 evidence shall simultaneously be presented to the other party to the dispute resolution procedure, During t 0 pendency of such dispute.reso.ha.tiola procedure, Landlord and 'tenant shall continuo lion performance under ti s Lease, Including with respect. to the matter that is the subject of such prooeedure,. twless due to the nature he disputed matter, resolution oi'the dispute Is necessary prior to performance by Landlord or °Tenant, as the case may be, The determination of' the Independent Expert acting ars above provided shall be conclusive. and binding pen Landlord and Tenant as to the disputes referenced in clauses (a), (e) and (f) above. With respect to the di,' elates referenced in clauses (b), (o), (d) and (g) above, the determination of the Independent Expert s1hal.i be o 'nclusive and binding and payments due pursuant t0 that terms of this Lease shall be made upon the basis of such e1011ninatioth; provided, however, that each party retains ilhe right to rile a lawsuit, de movo, with respect to such dispute and in snob event, the final, non -appealable judgment 0f tau; court shall be ooa1o111sive miler binding on he parties as to the matter In dispute (and any prior payments made, or insurance limits 45 modified, based. upon the determination of the independent Expert shall 'be adjusted accordingly together fth 'Interest at the L e.th lit gate 7nr1, .itt the oast o'f insurance, with a payment by .Landlord to Tenant of any xoess premiums Incurred as a result of Landlord's wrongflal position), 'rho independent Expert shall be require to hive written notice to Landlord and Tenant stating its determination, and shall furnish to each party a signed c.: y of such determination. Landlord and Tenant shall each pay one-half (1/2) of the fees and expenses of the ndepencicnt Expert and all other expense of the above -described dispute resolution procedure (not including (. 'orneys' fees, witness fees and sint.il.ar expenses of Landlord and Tenant,, respectively, which shall be borne by ea of the panties). As used herein, the "independent Expert" shall mean (a) with respect to any dispute ,porttaininf, o architectural or engineering, matters, an appropriately licensed and/or registered (as applicable) and rode•-.ndent architect or engineer, (b) with respect to any dispute p.ertaaining to iatsurtanc:e, a. reputable and independent -,orlon with experience in coaxtnterolal. real estate fnsin`anoo and (o) with respect to any other dispute, a licensed, r. utable and independent certified public accountant, in all events, the Independent Expert shall (I) not be affilia d with either Landlord. or 'renal t(orany Affiliate of either party) or any mortgagee (or any of any rtlrtr;ogee) and (II) have at least ten (I0) years of relevant experience and expertise with respect to large °onlineral real. estate projects in the Miami, Florida. area, ARTICLE E XXII TITLE TO IMPROVEMENTS; NTS; SGJ ',RENDER 'tenant covenants and agrees that its interest In the improvem , is to be constructed on the Demised Premises shall become subject to the terms and conditions of this Lease and that any grantees or assignees of its interest in the improvements or this Lease shall take subject to and be "x and by the terms and conditions of this Lease, expressly including the following provisions; (a) iJpon expiration or earlier termination the Tarns of this Lease (but not prior thereto), Landlord shall be the sole and absolute owner of the Tenant's Intl.: ovemants, free ol'any ri} ht, title, interest or estate of 'renact therein without the execution of any father inatrw ant and without payment of any stoney or other consideration thereof, Tenant shall execute such :further ass.ranoas of title as may be required, Tenant hereby grants, releases, n•futsfers, sets over, assigns and conveys to ,,,andford all of its right, title and Interest ht and to the Tenant's Improvements upon the expiration or earlier tern7ia t [Ion of the Term of this Lease, (b) Tenant shall, upon such exj 'ration or earlier termination of the, Terns of this Lease, surrender and deliver the Demised Premises and de'livaT° the improvements, excepting Tenant's Pilf.E; and personal iaraperty (without any payment, or allowance whaateve to Tenant on account of, or for, the improveteuts or any plat thereof) to the possession and rill of Landlord, w .tout delay and in good working order, condition and repair, ordinary wear and team excepted. (c) Tenant shall not exe tte end deliver or renew any sublease to a subtenant which would extend beyond the "Perm of this Lease (includ ig any extensions provided for heroin), it being the Intention of the parties that Landlord at the termination of th Term of this Lease shall be the sole owner of the Improvements, as well as the i<utd and air tights (subject to t1 as rights of Prince Landlord under the Prime Lease), not subject to any lease, or subt:enant's rights of any kind, (d) Lattdicard, up t termination of the Term. of this Lease for any reason, may, without notice (any notice to quit or intention to re•, .ttrr.• required by law being expressly waived by Tenant), re-enter upon the Demised Premises and possess itself tctreof by summary proceedings, ejectment, or other Iawthl r:neans, and maydispossess Tenant: and remove Tenet and all other persons and property from the Demised Premises and. may onjoy the Demised Premises and Impr'ov= nests and have the right to receive all rants and other income from the same. Any personal property of 'Tenant ymaining on the Demised ('remises after termination or expiration of this Lease shall be deemed abandoned by it . nd be retained by Landlord as its sole property or bo disposed of, without liability or accountability, as Landlord sees fit, 'Notwithstanding the rorogning, Landlord's exercise of the rights set forth in this Article XXII prior to the entering into of a New Lease shall be void. ab IttNilo as to a New Lease if.'such New Lease Is entered into pursuant to the terms ofA.rtitle XXX. ARTICLE X,XIII -- MECHANICS' LENS. 46 Notice is hereby given that; Landlord shall not be liable for any work performed or to be performed 1 the Demised Premises, or In any building or Improvement thereon, or In connection with any appurtenance'thr„rfor Tenant or any subtenant, or for any materials f rnished of to be furnished at rho Demised Premises for 'Pena t or any subtenant (except for any work being performed by or on behalf of Landlord at the Demised Premises rreurnl'l to the terms of this Lease), and that no nnecllanic's err other Bean for ;such \voric or materials shall a 'soh to the reversionary or other Interest of Landlord. if, hi connection \villa any work being performed by Ten : nt or anyone claiming by, through or under Tenant, or in connection \vith any material's being furnished. to 'f sent or anyone claiming by, through or under Tenant, any .mechanic's lien or other lien or char'q,e shall be filed or node argainst', the Demised. Premises or arty hart thereof or any buildings or Improvements now or hereafter erec',cI and maintained thereon or on any appurtenances thereto, or :if any Allah lien. or charge shall be 'filed of mode ga.Ianst Landlord as OW11e1', then Tenant, a't'reriairt's cost and expense., Within ten (.10) days after suola lien o1' char"• shall hove been filed or matte, shall cause the same to be canceled and discharged of record' by payment thereof, transfer to security as permitted under Florida law, by the filing of n bond in form and with a surety reasonably s :Isfactory to Landlord, or otherwise, and shall also defend, at Tenant's cost and expense, any action, snit orproc.ee rig which may be. brought: for the enforcement of>troli lien or charge, and shall pay any damages suffered or lncu red therein by Landlord and shall saatisiY and discharge any judgment entered therein. In the event of the fanilure of Ceuant to effect the foregoing within the abovewnnant'ionecl 10-day period any mechanic's lien or abler lien or" char»o herein required to be paid or discharged by Tenant,, .Landlord may transfer snc.h .Ilan to security its per'mit'tec by Florida law or, if no longer permitted by Merida law, pay such items or discharge such liability by paymen or bond, or both, and Tenant will repay to Landlord upon demand any and all amounts paid by Landlord the.refbr. or by reason of any i.iab.il.ity on any cash bond, and also any and all Incidental expenses, including counsel fo in reasonable amount, incurred by Landlord in connection therewith together with interest thereon at the Want irate, provided,. however, Tenant shall have the right to contest or Cause to be contested any such mechanic's '1un or other lien without cancelling or discharging such lien of record so long as (a) •l'anant diligently continue'' or causes to be continued such contest in good f1h'in, (b) Tenant promptly pays or transfers (or causes to be pale.. or transferred) to security if pornniite'd by Florida Ir:1w, suola contested lien If the protection of the Demised Pre iises and the Tenant's Improvements or of Landlord's interest therein from forfeiture of title on amount of such en or claim shall, in the t'easonabie judgment: of Landlord, require such payment arid (c) Landlord shall not be quired to join in any proceeding's referred to 11ere ian. 1'f, in connection with any work being performed by ;,andlord or anyone claiming by, through or under Landlord, or in connection with any materials being film isiled o Landlord or anyone claiming by, through or under Landlord, any mechanic's lien or other lien or charge shall fheld or made against the Landlord's interest in the Demised Premises, the Tenant's interest In they Denise Premises or any part thereof' or any buildings or improvements now or hereafter erected and maintained the eon or on any appurtenances thereto, or if any such lien 01' charge shall be flied or. made against Ter1arl'tt as owner, ten Landlord, at Landlord's cost and expense, within ten CIO) days after such :lion or charge shall have been filed r. ' made, shall cause the sauna to be canceled and clischru'ged of record by payment thereof, by transfer to security as rcrralitted under Florida law, by the filing of at bond in form and with as surety reasonably satisfactory to Tenant, r otherwise, and shall also defend, at 'Landlord's cost and expense, any action, suit or proceeding which may b. brought for the enforcement of such lien or charge,. and shall pay any elararaages suffered or incurred therein by ','errant and shall sat'.is'f' and discharge any judgment entered therein, In the event of the failure .of Landlord to effect the foregoing within the above -mentioned l O stay period any .mechanic's lien or other lien or charge her an required to be paid or discharged by Landlord, Tenant may trams.fbm' such lien to security as permitted by 'riot' to law or, if no longer permitted by Florida law, pay such items en'1' discharge such liarbility by payment or bond, 'or aoth, and Landlord will repay to Tenrani upon. demand any and all amounts paid by Tenant therefor: or by reason of any liability on any oash I::ond, and also any and all incidental expenses, including counsel fees in rcasonabl amount, incurred by Tenant in connection therewith together with interest thaeon at the Default Rate, A.R.l'IC:l,,E' XXIV -- 1 SENT CONDITION OF DEMISED F D PREMISES "tenant hereby acknowledges and agrees than it accepts the Demised Premises tend the subsurtlacea conditions thereof in the condition or state in which they or any of (hers POW err, without representation or warranty by Landlord, express or implied, In foot or by law, OS to the nature, condition or usability thereof or as to th.e use or uses to which the Demised Premises or any part thereof may be put or as to the prospective Income '('tom, and expense of operation of, the 'Demised Premises, except as expressly set Rath in this Lease, and that Tenant waives all right of 4 'y recourse against Landlord in connection therewith, Tenant 4gt'oes that Landlord, its employees ark agents have made no representations, Inducements or promises about the Demised Promise, the l ayside P'roper't or this Lease, or about the characteristics or conditions regarding or pertaining to the Demised .Premises or the ' yside Property, toeless the representations, inducomenrs and promises are .in this Lease, 'I" heref'ore, no claim or li. i'llty, or cause for termination, shall be asserted by'h°enant against Landlord, its employees and agents, for, mid th shall not be liable because or, the breach of any representations, inducements or promises not expressly In this 1We se, ARTICLE XXV -- HAZARDOUS IVIAT,RIALS SeoUon 25,01 lali,�,;I, , lei' iktVirtiolt ,, ll(l.tlt6'a'lil•ir3, Tenant shall not cab o or permit any Hazardous Material to be t)rou ;ht upon, transported through, stored, kept, used, discharged or di osod in or about the .Demised Premises or the Paysicle 'Priapsrty by Tenant, its agents, employees or contractors, -,.'crept such limited. quantities as many be reasonably required in connection ra'itlt the operation of the Project in f° l compliance with all,applicable laws, Se tion 25,02 1 ,t1,X.C11l,In01,411 „f argilin111, (n) :i o>wni, Indemnity, Tenant shall indemnify, defend, ,protect and hold harmless the Landlord Indemnified Parties (collectively "'Tenant Indemnity") tl'otra an; and all claims, sums paid in settlement of ciainrs,,judgnlents, damages, clean-up costs, penalties, fines, costs, linbidos, losses or expenses (i'ncluding, without liaultatio.l, sattor'17ays', consultants' and experts' fees and any other'i'cs Incurred by Landlord to enforce the Tenant Indemnity) which arise during or after the Terns as a result of Tanen's breach of its oh'I1ga.tions as set forth in this Article XX'V or the release of i"inzarcious Material at, or contend) Lion of, the Bnysiclo .Property, In violation of applicable late, by 'Tenant, any of the other Tenant Indemnlflt;-'1 Parties, or any of its subtenants, Licensees, concessionaires or any other party ala3nilng by, through or under'r',nant, (b) Lailillnrd Indemnity, Landlord sh'al inde'nan.it', defend, protect and hold harmless the Tenant indemnified Parties (collectively, the "Landlord Indent ity") fi'onl and against any and all claims, sums paid in settlement of claims, Judgarents, damages, clean-up cost', penalties, fines, costs, liabilities, losses or expenses (including, without limitation, attorneys', consultants' and xperts' 'fees and any other fees innurrecl by Tenant to enforce the ,Landlord indemnity) which arise out of or 'salt from the release of Hazardous Material onto the Demised Premises as a result of Landlord's breech of its ligatious as sat forth In this Article XXV, or in violation of applicable taw, caused or permitted. by Landlord or ar of the Landlord indemnified Parties, or any of Landlord's subtenants, licensees, concesslotrairoos 01' any other part claiming by, through or under Landlord, The foregoing indemnities shall survive the expired 1 or earlier termination of this Luse,. Section 25.03 & ediation, Without iimitingthe, generality of"the foregoing,' (a) if .the presence e,i' 11 zardous Material at the Demised Premises in violation of'appliorble law caused or permitted by Tenant or troy of le 'fount Indemnified Partles reasults in the.contemination, release or threatened release of Hazardous Material it • violation of applicable law on, from or under the i3ayskks Property Or other. properties, Tenant shall promptly'lel all actions at: its solo cot and expense which aro necessary to remed.latf: the same. as' required by.app)lcnble law; ,rovided that. Landlord's written approval of the actions shall be obtained first, which approval shall not be unrens,nably withhold, .conditioned or delayed so long as such actions do not WO or would riot potentially have any ma rini, adverse long-term or short -terns effect on Landlord or on the Bayside Property, the Shopping Center or ar y other properties. Theis provlsion shall survive the expiration or caller termination of the Term of this Lease and shell survive any transfer of Landlord's Interest In the 13ayyside Property, (b) if the pr-sonee of Hazardous Material et the Shopping Center in vriolaation of applicable la>r+" caused or psrn7itted by Laodior, or any of the Landlord i.nderat.niffed Parties results in the contamination, release or threatened release of Hazardous Material in violation of applicable law on, from or under the Demised Premises or other properties, Landlord shall promptly take ell actions at its sole cost and expense which are necessary to r'elne:diate the sane as required by applicable law, provided that Tenant's written approval of the actions shall be obtained first, which approval shall not be unreasonably withheld, conditioned. or delayed so long as such. actions do 48 not have, or %mind not potentially have any liial•erial, adverse long-term or short-term effect on 'Tenant or n the Demised Premises or such other properties. This prevision shall survl've the expiration or earlier !lumina err of the Term of this !..ease but shall not survive any transfer of Landlord's interest in the I3ayside Property. Seciloir 25,.04 J,'ro ntli a Intemation, Each party shall provide the other party, upon request, information regarding, the environmental condition of Clio Demised. Promises, or the Shopping Ce :or, respectively, so that the requesting party con determine If It must comply •with airy rule, regulation, order act, law or statute pertaining to the environmental condition of the Demised Premises or the ltliopping Center, espectively, and for Landlord to accurately complete a form or otherwise provide information required under any %le, regulation, order, aot, law or startaate. Tenant shall permit Landlord to comply with those r'cooarune:nel Heins and requirements pertaining to the Demised. Promises and the Shopping Center, Section 25,05 ,his in t Iavh'unmeilt'tal Au1.t. Landlord has furnished to "chant, prior to t'liv Execution ':)ate of this Lease, a copy of 'that certain Phase .1 Environmental Site Assessment pr>tired by 11Bl1 Cousuliing, dated September 5, 2008, captioned "Protect: No, 11082459." Landlord makes no ware' rt'y or representation whatsoever to Tenant with respect to the presence or .absence of Hazardous lvdatcrdals 'u,'*rr the Demised Premises or with respect to whether there pralently exists any violation of trey applicable c n i:roii:mentrri newel with respect to the Demised Preniis'es, Alit1'1C1..11 XXVI .. SPECIAL, PROVI IONS Section 2(3.01 :I:JS?.t'.!S>t, trace ;S,c .,'N, Tenant, and not a:dlord, shall pay, when due and payable, the Florida Stater Stiles Tax and any other steles or excise, tax or timessniNI '• now or later levied or assessed in substitution or in lieu thereof upon or against the rental and Additional Rental o be paid under this LOON, or any portion or it, Should the appropriate taxing authority requite that any sales ,:rr excise tax and/or assessment be collected by Landlord far or on behalf of the taxing authority, then the sal or excise tax and/or EISsessment ;,;hall be paid by Tenant to Landlord as Additional Rental in accordance wit, the terns of tiny written notice fi'orn Landlord to Tenant. Landlord will recognize and accept any lawful exec.; tion certificate; it being understood. that pyramiding of sales tax is not required by applicable law, Section 26,02 M'^,chatti SLlie r, The Me iorandum of Lease shall 'provide that 'Leindlot'ci's interest shall not be subject to, liens for improvements made by "mint. Section 26.0:3 Radial (i.as, pie foilowit disclosure is required by Florida Statutes, Section 404,056((3): "Radon is a naturally occurring radioactive gas ih" r, when It has accumulated in a building in sufficient quantities, may present health risk's to persons who are exp 'ed to it over time. Levels of radon that exceed fedora' and state guidelines have ben found In buildings ho Ploy' la, Addditional in1'cir'niation regarding radon and radon testing may be obtained from your county public health uni Landlord. has not conducted radon testing for the Shopping Center or the Dernisecd. Promises, and Landlord disci his any and all representations and warranties regarding the absence of radon gas or radon gas -producing condit:i -is,hr oorinee11orl with the Demised Premises, Section 26,04 NN,r1,mbboklitl;; ? . rat:. Anything to the contrary contained herein notwithstanding, Tenant may not avi11r1rold rent for any re, •.on. hereunder, inoluditig without limitation, Landlord's failure to maintain those portionss of the Shopping Center a plant to the Demised Premises to the extent required pursuant to the ter'nis of Section 8.011 above, except to the e;: lent that Tenant has received a final, non.appealable,juclgment in Tenant's favor as to any overpayment of•'rent tLandlord, Failure to pay a disputed amount during the' pendency of dispute resolution under Section 21,22 shelf rot be deemed withholding of rent. Section 26.05 at' f' tic • ofinterest Tenant covenants and agrees that, by execution oft;hls Lease, neither Tenant nor any member, manta;er^ or collectively, their respective shareholders, officers, directors, members, managers, partners 01' employ.,es violate, nor during the 'J'errrn of this Lease shall Tenant: or any of the aforem.entioried parties violist •, the conflict of Interest provisions of the City of Miami Code, the Miami -Dade County Code and Chapter 11 Part 111, of the Florida Statutes, as the same may be amender] from thiie to time,. Al TJC:LI:? XXVII .... CON'.t'INGI NCII8S 49 Tenant'. shall proceed with the preparation of the Site Dcvelopttnent Flu Package upon tine Execution Drl e and thereafter d.iiigent'ly pursue the preparation of the 'Design Development Mans, the 60,A) Plans and the Iv al Pltms, in accordance with the terms of Section 3,02, anti submitting sane to Landlord once prepared, '1"errant call also make nppliaat'1ort to the applicable governmental. authorities for all Cov+rrnntental Approvals, including,. thout lintltatlon, all necessary building permits and other permits and consetlts required for the development of the reject, and fiirriisli evidence of such application satisfactory to Landlord, in form and content, as soon as r asonalaly possible following the approval of the Approved .Flans by Landlord, 'reliant agrees to tlniely submit tt', Approved Plans to such governmental authorities and to diligently pursue in good faith obtaining all °overnme' al Approvals therefor, Section 27,01 C,Li•w1,i,11,4hi,17JI...co!?;I:t11,Sng•otx git" This Lease is contingent upon T'nnrit commencing construction of the Project and delivering to Landlord tite Evidence of Cnntrt•ienuement ca " CConstruction by fire S-chsduled Construction Commencement Date (the "Commencement Contingency"), ,r'tich for 'clarificat'ion purposes is subject to extension by reason of Force Matjeure, Tenant agrees to tii1igar `y pursue in good faith commencing construction of the Project by the Scheduled Construction Comm ,noentent Date, Tenant acknowledges and agrees that 'Tenant shall not commence construction until Landlord "tall have approved Tenant's ?reconstruction (Deliveries, 'eat provided in Section 3,03(a) above, In the event t'h': Tenant: has not oon'rrnenoed construction of the Project and delivered to I.,,andlord the l3videnae of Comm event of Construction by the Scheduled Construction Commencement Date, then Landlord may t'er'ntinate this tease at any time thereafter until Tenant has connt.enaed construction .of this Project and deiiveredl. to Landlord lee :Evidence of Commencement of Construction, Notwithstanding the foregoing, if Landlord is reviewing Tonal.' s ?reconstr'uction Deliveries or any revisions thereto as of the Scheduled Construction Commencement Date, th >tt Landlord shall not have the right to terminate this Agreement and the- Scheduled Construction C'omi encemern 'hate shall be extended annul thirty (30) days after Landlord and 'Portent reach agreement upon the Prenonstl'uetior ;)lliver'ies (or an independent Expert has otherwise reached ft conclusive furl. binding decision El$ to any dispute b; meen Landlord and Tenant relating to the Praoonstruction Deliveries. and any delay occasioned by the farcgoinf 'tad. be deemed Force Ma?jetn'e and sha11 a.iao extend the Outside Completion Date), Section 27,02 Gorr15; ,i'.uutinrr•_ corma,kitjoa, Tenant all complete the construction of the Initial Construction and deliver to Landlord the e,vidence of Comp' fort of Construction on or before the Scheduled Construction Completion Date (which for clarification is ekes s jectt to extension by reason of Force Matjeure), and. open the Below Tower Parking and Observation Deck for tslneas to the general public on a :hrlly fixtured and staffed basis on or before tine Scheduled Opening Date (wvlrfa r for clarification is also subject to .extension by reason of Force ivlajeure), In the event that Tenant has not comp) ed construction of the Initial Construction and delivered to Landlord the Evidence of Completion of Construoti.o'n n or 'before the Scheduled Construction Completion Date and opened the Below Tower .Parking and Observation. ')tack tor 'business to the general public on a 'fully ilxture'd and staffed basis on ar bofbie into Scheduled OpettlnDate (the "Completion Contingency"), then r..,anc'llord may terminate this Lenrge at any time thereafter until Ten' lit has completed construction of the initial Construction and delivered to Landlord the .Evidence of Cornplctlo of Construction and opened the Below Tower Paring and Observation Deck, for business to the general publ no a ftally'fixtur•ed and staffed basis, whereupon the parties shall have no further liability to each otter under till Lease, except pursuant to those provisions that explicitly survive any termination of this 'Lease. Notwithstar .ing the foregoing, it` Tenant has not satisfied the Completion Contingency for reasons other than Porce - Moue (for clarifl.catio:n, Force Majeure delays in satisfying the Completion Contingency shall not trigger hey termination right or the following payment obligations) but is diligently pursuing completion of construct m of the Initial Construction, then Landlord may not exercise its right to terminate this Lease based upon a failure «f t e Completion. Contingency so long as (a) during the first twelve (12) month period fallowing the Scheduled orrstructfon Completion Date, Tenant pays to Landlord Fixed, Rent and all other amointts due and owing to Land! rd. as of the Scheduled Opening .Date and Continues to snake smoll payments as and when due pursuant to the tern , of this Lease, and (b) at any point following the aforementioned. 12-mo'nih period through the Outside Complo • on Date, Tenant pays an amount equal to 125% of 'Fi',•~,ed Rent and all other artrtotuats due and owing to L antler and continues to make such payments as and when due pursuant to the terms of this Lease, it being understood an . agreed that 'Landlord's right to tetm:hnate this Lease as provided .in this Section 27,02 shall be rei.nstatted if and w en (i) Tenant ceases to diligently pursue (subject to Force tViajeu.re) completion of the ca'nstt•r:letlon of the Initial Construction for a period of two (2) .mouths Following the Scheduled Construction Completion Date, (II) Tenant 'falls to pay in a timely manner all amounts due and awing to Landlord as provided in clauses (a) or (b) above, as applicable, or (ill) Tenant fails to complete t'he construction of the Initial Construction, 50 deliver to Landlord Evidence of Completion of Construction and open the Below Tower Pricing and Observeti,n t)o k on El filly fixtured and staffed basis on or before the Outside Co1111.71et.ion Date^ (whether or not the delay Is ue to For MInjelut'c or reasons other than Force Majeure (but the Outside Completion Date shall be extended by r rtson. of any delays caused by Landlord)), Section 27,03 'C Pt:I?,%1,?,fit1ion,,.Rfights, Without otherwise limiting the; respective rights of e parties hereto, in the event that Landlord terminates this Lease on the heals of the failure of either of the Coil ncncoment Contingency or the Completion Contingency, then upon such termination, the parties shall thereupon hr ve no further liability to each other under this Lease, except pursuant to those provisions that explicitly survive at termination termination of this Lease; provided, however, that If required by Landlord by notice to 'rennin; given within nix (y (90) days of such 1:ei'lllitlkiorl (fahuro of Landlord to timely provide such notice shall constitute a waiver of the following obligation that would otherwise exist under this Section to demolish, remove end restore), 'renal shall be obligated, at Tenant's sole oast and expense, for the demolition and removal of the Tenant's lnlprvonlants theretofore Installed or constructed (other than the Below Tower Perking which may remain in piece provided the same. is functional for lawlill parking ptiriposes) and shall be responsible to restoro the Dentise.cl Pret 'ses to the condition the Demised Premises were In as of the Execution Date (other than the Below Tower P$u'ic' tg which may remain 111 place provided the same is functional for lawful parking purposes). Tenant shall be sale responsible for repairing any and all damage caused by such removal ofalny such Tenant's Improvements,. ARTICLE VIli . RENEWABLE ENERGY Tenant Intends that the Project will be partially powered by solar energy' provided, however, this shall not be a condition to the effectiveness of this Lease and there shall be no .adverse onseciuences if this intention Is next realized, 'Tenant may, in Its sole and absolute discretion, provide Landlord l�S� /t the opportunity to purchase sxoeaiS power generated by the Project, which Landlord may purchase, of doclin to purchase, in Landlord's sole and absolute discretion. Landlord agrees that Tenant shall have the fight sell and/or assign any excess power generated by the Project to third parties and jfenant shell be entitled to all ,'avenues derived therefrom (provided that said revenues shall be included within the meaning of"Gross Sales" fopurposes of the calculation of Percentage Rent). Landlord agrees that Tenet shall be entitled to any local ;'state or federal renewable energy rebates, incentives or credits or any nature generated es tl result of the Ten it's Improvements or the construction of Ole Project ("Energy Credits") and that such Energy Credits shall bwchtded from the definition of "Gross Sales", Landlord driers cooperate with Tenant and shall execute; and derive• to Tenant all reasonable documents, at no cost to Landlord, to the extent necessary to allow the assignment, Iran, :or or sale of the Energy Credits, If requested by Tenant, ARTICLE XXIX — REPRESENT . f i(N a AND WA R.RANTIlaS Section 29.01 1,4111c1iSe1 u9i' .9111eJ , (a) Du43 EPA/Mk/LA' 2ay, Landlord is a duly formed limited liability company, validly existing and its good standing cinder the law of the State of Delaware and is qualified to do husit'tese in the State of Florida, Landlord lies the corporate Ia war, right end authority to enter into and perform all of the obligations required under this Lease, The lndi'reseal executing this Lease on behalf of Landlord has the power, right end authority to bind Landlord, (b) No 1,,1tjgg:i n. there is no pending or, to the best of Landlord's actual knowledge, threatened litigation, lawsuit, action or' pro ,eeding before any court or addministraative agency a['footing-Landlord, airy canstitucant .Entity of Landlord, or the 1) raised. Promises That: would, if adversely determined, materlally adversely affect Landlord, the Demised Premise this Lease, the leasehold estate created by this Lease, or 'Tenant's ability to develop and operate the Demised Pre rises for the Permitted Use. (c) N..„,r..#1 „,,lia%,,,C otif...P. 1111tjr 11, There is no existing, or to the best: of Landlord's actual knowledge, 'pending or threaten -d condemnation affecting any portion of the Demised Premises or any pending public; illlpr:ovelnents firs, about, .Iviside, or appurtenant to the Demised Premises that will materially adversely affect the else and operation of the De raised Premises as a whole of nooses to the Demised Premises. 51 (d) 17E0A, • Landlord is not a "foreign person'" withian the meaning of the United Stet Internal Revenue Code § I44w5(f)(3), (e;) went Conkn, Landlord, to the best of.' Its actual knowledge, is not aware •fany 'natter concerning; the pilysieaI condition of the .r)etii.!sed Premises that would 'materially advorseiy affect th , Project, except as disclosed herein; it being undel'sl:ood and agreed that Tenant will be I'elying solely upon I' own due diligence investigations (:o assess the physical condition and usability of the 'Demised Premise5'l0r file P'oject, ('f) aS;Yi3l i? 1.7 .Greaten, ,ra . There are no exclusive use (except as set ('err x on Exhibit "F" attached hereto), prohibited use, no build or other restrictions or other limitations In the leas':, licenses or other occupancy agreements between Landlord and its subtenants, licensees and other occupants 1, he Shopping Center that would 'prohibit, .restrict or iimit in any way the Tenant's ability to develop, construct an operate the Project at the I)earrnised Premises as contemplated in this Lease. (g) No: QQher..Pard s [ J)it{ l to Polasaiol. Except for the rigl ,a of Prime Landlord under the Retail Parcel Lease and the rights reserved to Landlord pursuant to this Lease, nnc except as otherwise provided in any Title Restrictions, Tenant and those claiming under Tenant are currently and a all remain during the Term the only party entitled to possession of the Demised Premises and no other person ha or will have any right to lease, use, have possession of or occupy the Demised Premises. All references in this Agreement to Landlord's "knowledge" or words of simil ' import shall refer only to the actual knowledge (as opposed to imputed knowledge) of John Charters, Viee .President, Developnnent and Pamela Weller, Senior General. Manager (the "Designated Parodic') and shall not be constru ''d to refer to the knowledge of any other officer, member, manager, asgpnt or employee of Landlord or any Affiliate hereof, or to impose or have imposed upon the Designated Parties any duty to investigate the matters to whfclr uch: knowledge, or the absence thereof, pertains, There shall be no personal liability on the part of the Dec'iggna' d Paroles arising out of any representations or warranties made herein, Section .29.02 Totn.1:s..i::iJi eni,1lt'1,1;.51,111, (a) T'op1?r:1liott•cru atithar'.ity. Teno t is a duly formed limited liability company, validly existing and in good standing under the laws of the State of Florida. Tenant has the corporate power, right and authority to enter into and. perform all of the obligations re • hired under t9nis Lease. The individual executing this Lease on behalf of Tenant has the power, right and antthorit to bind Tennant, (b) No , itigintion. ?'here is n 'pending or, to the boat or Tenant's actual knowledge, threatened litigation, lawsuit, action or proceeding bet re any court or administrative agency affecting Tenant, any constituent Entity of 'Tenant or any of their reap dye assets that would, if adversely determined, materially adversely affect 1'aiiaant, this Lease, the leasehold state created by this Lease, or 'Tenant's ability to develop and operate the Demised Premises for the Permitted Us (c) , ,i:J'i.c9'1„ t, Tenant ) Is not acting, directly or indirectly for, or on behalf ofany Entity or nation named by any Executive Order (Inc tiding Executive Order No, 13224 on Terrorist Financing effective September 24, 21001) Or 1110 United States Tr, awry Department 05 a terrorist, "Specially Designated National and Blocked. Person," or other banned or block Entity or nation pursuant to any law that is enforced or administered by the Office of Foreign Assets Control, ar is not engaging in the transactions contemplated by this Lease, directly cr Indirectly, on behalf of, or instigating 0. 'facil.itating this Lease, directly or indirectly, on behalf of; any such Entity or nation; (b) is not engaging In the Ira saotions contemplated by this Lease, dlreotly or indirectly, In violation of any IFaws relating to drug trafficking, onoy laundering or predicate cr'lmec to money laundering; (c) none of the funds of Tenant have been or will be erived.from any unlawful activity with the result that dte investment of direct or indirect equity o'wnars in Tenon is prohibited by maw or that the transactions or this 1..4886 is or will be in violation of law; and (d) Tenant as and will continue to implement procedures, and has consistently and will continue to consistently apply El ro e procedures, to ensure the foregoing representations and warranties remain true and correct at all times during th "fora of this Lease, 52 ARTICLE XXX FINANCING Without the prior written consent of Landlord, Tenant shall have the right, from time to time, to ex cute and deliver ea Leasehold Mortgage granting a lion or security interest 111'telnant's leasehold estate and'the' T1'lanl's Improvements (tire "Leasehold Interest"), t'o' ail institutional Lender:, provided that any Steen Leasehold ' ortgag,e shall satisfy the conditions set forth herein anci provided that, notwithstanding any provision to the contr ry I'n this Article XXX, Tenant shall remain liable hereunder for the payment of all rent payable hereunder nd for the performance or ell of the obligations of Tenant under this Lease, Any such Leasehold 1\4ort, age shall subject and subordinate to the Retail Parcei Lease and subject to the terms of any subordination, non.dlsturba ce/recognition and attornnl.ent agreement provided for In Article XXX'V of this Lease. In no event shall any such Leasehold N4fortgage encun'hber .Landlord's interest in the Demised Prernihaas or the [3ayside Property or 'rune. Landlord's .interest in the land demised pursuant to the' Retail Parcel Lease, Section 30,0 l Noslcsjo„„Landloycl. If ether Tenant or any Leasehold Mortgee delivers notice to Landlord In writing of the existence of such Leasehold Mortgagee and address of the heel- or thereof (which notice shall be accompanied by a. copy of the executed and recorded Leasehold Mortgage), stud holder shall be deemed to be a "Leasehold Mortgagee" and the provisions of this .Ar dcie X.XX shall' apply. Tens• : shall furnish to Landlord a copy of each recorded amendment or other modification to any such Leasehold Mot gage, promptiy following the execution of same, together with a certification by Tenant that same constitutes true mid correct copy of the original thereof: Landlord shall bo under no obligation under this Article XX ' 'ter any holder of a Leasehold Mortgage of whom Landlord has not received such notice, Section 30,.02 , ,j, lid, cs , 12, Van Event of Default by Tenant t der this Leaise occurs, Landlord shall give written notice thereof to any Leasehold. Mortgagee and any such Lease aicl Mortgagee, without prejudice to Its rights against Tenant'., shall havO tins right to euro such Event of Defanalt w ' hln. a period equal to the applicable cure period provided to Tenant heroin with respect to such Event of Dofan in this Lease, plus thirty (30) days (the "Leasehold Mortgagee Cure Period"), Mf any. Leasehold Mortgagee ajunot reasonably cure the Event of Default within such Leasehold Mortgagee Cure Period under the preceding ntence, it shall have such tta'ther time as is reasonably 'needed so long as it commences to cure the Event of I fault during such Leasehold Mortgagee Cure Period and thereafter proceeds with reasonable diligence to au the sale; provided, however, the foregoing extended euro rights shall nut apply to any monetary Event f , Default So long as the Lunount is. reasonably ascertainable (eg. with respect to Percentage Rent payments the Gress Sales upon which Percentage Rent is payable rn.ust be reasonably ascertainable). (a) Anything contained in this Soc on 30.02 to the contrary notwithstanding, (1) If any Leasehold Mortgagee cannot', reasonably ewe the Event of Default without taking possession of the 1)ennI.secl P1'011 lees or otherwise foreclosing its Leasehold Mortgt e (the obligation to Continuously Operate constituting, without limitation, ono such matter), or (fi) If any Tares t Specific Default (del'inecl below) occurs, such Leasehold Mortgagee shall be entitled. to such additional time as it reasonably needs to consianlineta a foreclosure or assignment in lieu thereof and obtain possession of th''.Denhised Premises, sA long as such 'Leasehold Mortgagee (X) timely cured all other Events of Default ([noluctin. but not limited to payment of ]?reopening Rent, Fixed Rent, Impositions, Percentage Rent and Additional Roca o the extent that same is due and reasonably ascertainable), (V) promptly takes such steps as shall reasonably e required in order to acquire Tenant's Leasehoid Interest :by f nreolosure of tlhe Leasehold 'Mortgage, or o) erwi so, and (Z) thereafter prosecutes such Leasehold Mortgage foreolostnre to completion with reasonable rl'ilil. nee. (b) if any Letrsehol IMMortgagee obtains the Tenant's Leasehold Interest by foreclosure o'fIts Leasehold Mortgage or by assignment in cu of foreclosure of its Leasehold Mortgage, all 'renal Specific Defaults, if any, shall be doomed automatically w . ved. For purposes of this Lease, the tern] "Tenant Specific Deflrults" shall mean such Events of Default as are- tersor'raf to Tenant and which cannot reasonably be cu:red. by Leasehold Itffortgagee, such as (but not limiter 'to) Tenant's filing for bankruptcy er an impermissible transfer of Tenant's interest in this Lease. (e) With ospeat to any Event of Default which can reasonably be cured by any Leasehold Mortgagee, Landlord shall sec t such performance done, performed or tendered by such 1,easehoid Mortgagee, as though the Sabine bard been do e, performed or tendered by Tenant. For such purpose, Landlord and Tenant hereby 53 authorize such Leasehold 'frage to enter upon the Demised Premises and to exorcise any of its rights and OWOM under this Lease, subject to the provisions of this Lease; provided, however, that neither this right nor it exercise shall be deemed to give such Leasehold Mortgagee possession of the Demised Promises, (el) Unless and until such tune as all Leasehold Mortgagees' time to cure an E ent of De,fault or obtain the Tenant's Leasehold Interest by foreclosure of Its Leasehold Mortgage or by assignine of this Lease in Han thereof has expired., Landlord shall not torminate this Lease, accelerate any rent, or other Iseinterfere with Tenant's or such Leasehold Mortgagee's 'possession and quiet enjoyment of the 1,0asehold Inter st. Section 30,03 Atsignmelt by_tt Leaseboid t'iorlaigoe, If any Leasehold Mor gagoe shall acquire title to the Leasehold Interest under this .Lease and become the owner of such Leasehold Interest, either upon the foreclosure of such Leasehold Mortgage or a 'transfer th lieu thereof, or shall enter into a ow Lease (as uall term is defined below) with Landlord, then such Leasehold Mortgagee shall have the right t assign such interest or such Now Lease to an assignee of its choOsIng without the consent of Landlord, provi' ed the assignee assumes the obligation of the assignor arising kora and after the date of such assignment anc. a copy of such assignment is furnished to Landlord within thirty (30) day thereafter. Notwithstanding the foroping, Tenant shall remain liabie under this Lease, as if such foreclosure or other transfer of the Lease or Interest f Tenant hereunder or snch New Lease or any subsequent assignment had never occurred, Section 30,04 No Leggy If this Lease terminates as a rosu of an Event of Deibult by Tenant hereunder or is rejected or disaffirmed pursuant to bankruptcy law or oil sr law affecting creditors' rights, any Leasehold Mortgagee shall have the tight, exercisable by notice to Ler ilord, within thirty (30) days after the effective date of such termination, to enter Into a new lease for the DQ 11180C1 .1)1'01111Sn with Landlord (a "New Lease"), The term of said New Lease shall begirt on the dato of the term nation of this .Lease and shall continue ter the remainder of the Torn Such New Lanfla Shall otherwise contain ti o samo terms and conditions as so set forth herein; provided, howovor, that such Now Lease shall require and b conditioned upon the cum of all Events of Nitwit then existing hereunder (other than Tenant Specific Default ), within the cure periods appiicable thereto. The 'Leasehold Mortgagee shall execute and deliver such New tease o Landlord which conforms with the foregoing requirements, within thirty (3(1) days following the receipt of the Lease (consistent in form end content with the requirements of this Article XXX) from Landlord, together wi i all reasonable expenses, including, reasonable attorneys' foes, which Landlord shall In011r by reason of such ten illation and the execution and delivery of the New. Lease.. This provision shall $111"1/44V0 the termination of this Leas and shall continue in full force and effect thereafter to the same extent as if this provision ware a separate and in panda* Contract among Landlord, Tenant and such Leasehold Mortgagee,. If Leasehold Mortgagee timely requests a New L • ase In conformity with this Lease, then from the date this Lease terminates until the earlier of (a) the date the partk execute and doliver a New Lease and (b) the time period for Leasehold Mortgagee, to execute and return the NewLease expires, Landlord shall not; (I) to the extent it takes possession or control of the Demised Premises, ope ate the Domised Promises in a commercially unreasonable manner; (it) terminate sublease(s) for any Mison at Or than n material subtenant default; or (iii) lease all or any portion of the Demised Premises except to Loasoh Mortgagee. When the parties sign a Now Lease, Landlord shall transfix to the tenant under the New Lease al of Landlord's interest, if any, In and to sUbleases [Including any stiblease security deposits Landlord held, If any) servioe. contracts, premises operations', and net income Landlord collected from the Demised Premises during th period described In the previous sentence, and Landlord shall use commercially reasonable 'efforts to cause L' ndlord's mortgagee, if any, to enter into a subordination, non- disturbanceirccognition and attornment tow ont as provided. For In Article )(XXV of this Loan. Notwithstanding the foregoing, Landlord shall not be requir d to take possession of, or operate,. the Demised PranliSas during the Term nor shall Landlord be doomed to ha e taken possession, or responsibility for the operation, of the Demised Promises by virtue of this Section 30,04. Section 30.05 Inmaigmgq, Any Laasa iinpairinent (as defined below) made without .Leasehold Mortgagee's consent shall (at Leaseh d Mortgagee's option) be null, void, mad of no force or effect, and not bind Tenant, Leasehold iviortgage0, or t 0 tenant under any Now Lcase, "Lease Impairment" means Tenant's:. (a) canceling, modifying, restating, stir .endering, or terminating this Lease, including upon casualty or condemnation (Tenant hereby acknowledging t 'Id agreeing that Landlord will not entor lilt° any 0511001E4,101'4 modificaCion, restatomOnt, Surrand0r, or tormh.ation of this Lease without 'Tenant first providing Landlord written evidence of Set Leasehold .Mortgagee's consent thereto); (b) determining that a Substantial Total Taking has occurred; (0) exercising any bankruptcy termination option; and/or (d) subordinating this Lease or the leasehold lntertat to any other estate or interest In the Demised Premises except ao and to the extent expressly provided lea. this Lease. Section 30,06 7Q.,„M;;g; ;tt;, 1f the Leasehold .interest And the 'fee estate in the Demised Pi erra.ises. Fir ever oona.nroraly held, they shall remain separate and cldstinot' estates (and not merge) without l.,easeholci. Mar aa,ge,e's Consent, Section 30.07 Multiple Leasehold M rrS ;ae's. .ttr at any time multiple Leasehold Mortga es Exist. (a) the consent by or notice to Leasehold Mortgagee refers to all LeaasehOld 1\4o1111agrees ghat have no•'fied Landlord thereof hi accordance with the notice requirements sett forth in this A'r'ticle XXX; (b) except un e. clause (a), the most senior Leasehold Mortgagee may exe;rcioe all right of Leasehold Mor'tgagee(s), to the e elusion of junior Leasehold Mortgrragee(rr); (c) to the extent that the most senior Leasehold .Mortgagee declines o do so, any other Leasehold .Mortgagee may exercise: those rights, In order of priority; and (d) iP the l,,ewasirl.7c>l4 Mortgagees do not agree on priorities, a written determination of priority issued by a title insurance underwriter 1 ensed in Florida shrill govern and Landlord may rely solely upon suoh.tletermination to the exclusion ofjunior Lea.elrold Mortgagees). Section 30.08 Lj_41Laill1,y.of the.Leaoebo1d;Mortgpgca. Leasehold Mortgagee 1a11 not become: per,sonailly liarble 'fbr the performance or observance of any covenants or conditions to be perfh nod or observed by Tenant hereunder, unless and until such Leasehold Mortgagee becomes the oaa'mer of Tenn'nt'' Leasehold Interest hereunder upon the exercise of any remedy provided in. any Leasehold Mortgage, or enters into , New Lease. Thereafter, such Leasehold n'lortga ee shall be liable far the performance and observance; of such oven nts and conditions for the period from and after such Leasehold Mortgagee; becomes the owner of Tenant's ..,easehold Interest and only for so long. as such Leasehold Mortgagee oavms such interest or is a lessen .under such '1\ °w 'Lease, Section 30,09'' i ; , c;1vc,jS;1,Mgrtg mu11 ,n, Notwithstanding ar /thing to the contrary contained in this Lease, Leasehold Mortgagee may: (a) exer'ofs0 Ito Plghts through an affiliate.: a1. servicoh• or such other Entity acting ilt. Leasehold Mortgagees name or on the Leasehold Ivlort'gagee's behalf (an " anyone acting under this clause (a) shall automatically have ilia SUMO protections, 'rights, and limitations of ha ility as Leasehold Mortgagee so long es Leasehold Mortgagee has provided Landlord with written notice ''1aa.t such Entity is acting on Leasehold Mortgagee's behalf'); (b) refrain f1'om curing any Event of Dead., (c) abandon ouch cure at any time; or (d) withhold consent or approval for any reason or no reason„ except /here this LUUSO states otherwise, Any ouch consent or approval must be written. To the extent any Leasehol Mortgagee's rights uncles this Lease apply after this 'Lease terminates, they shall survive such termination. 'N, (withstanding the foregoing or anything to the contrary set forth in this Article XXX, i1f Leasehold Mortgagee _..lects not to Glare any Event of Default or abandons such cure at any time, then L,andlord's right to pursue remedies. or default under tihi's Lease shall be reinstated, Section 30,10 ',Nowt G4lveaJaahts. Tenant here .y covenants and agrees that each Leasehold Mortgage shall contain, or shall be deemed to contain, a provision o (gating the holder of such Leasehold Mortgage to release Insurance proceeds and. in the event of condemnation or conveyance in lieu thereof, to release condemnation proceeds, to pay for repairs, rebuilding, replacemenand/or restoration (or to reimburse Tenant for amounts expended by Tenant for repairs, rebuilding, repl cement and/or restoration), subject to customary lender disbursement provisions 00 may be provided for in tli applicable Leasehold Mortgage. Leasehold Mortgagee shall be a third par 1 beneficiary of the provisions of this Article XXX. ARTJC1 XX.XI —NAMING RIGHTS Tenant slaali have the sole naming rights to the 1Project. Notwithstanding the foregoing, except as expressly set forth in this Lease, Tenant shall not, 'u' deer any circumstances, be allowed to use or incorporate any intellectual property owned by Landlord. its Affillat , , successors or assigns, including, without limitation, the names ".i.3ayside Marketplace", "Bayside Center", "Ge eral Growth Properties. Inc,"."GGP" or any derivations of any of the foregoing without Landlord's prior 'iitterr 0011$011t, wi'lich may be withheld In Landlord's sole and absolute discretion, nor shall the project b sponsored by any direct competitor of Landlord or any of its Affiliates, successors 0r assigns who, in e.ltlle( ease, are in. the business of developing, owning or operating regional Shopping COMM as their pri.rna'ry,busineso Any consideration received by Tenant for signage or naming rights shall be 55 considered as Gross Sales for purposes of computing i'erc.entage Rent,. Tenant shell have sale nights to intellectual property relatleg to the Project and. the; Tenant's Improvements, Landlord agreee that, excep xis expressly set forth in this Lease, 1.,Rnlcilord shall not, under any circurmisten.ces, be allowed to use or Incorporate - any intellectual properly owned by Tenant, its Affiliates, succcssars or assigns, including without liimlitat]an, th name "Skyi-figh Mie mmi" (or any subsequent name of the Projeot), without Tenant's prior rvr[tteti consent, which May be withheld in Tenant's sole and absolute discretion, ARTICLE XXXII -„ PATRIOT ACT AND SIMILAR REQUIREMENTS Tenant rtg'c;es to provide Landlord with any and all documentation and informattion mom .ry Peer Landlord to comply with its obligations rrnrlor any and all laws relating to terrorism or moneys laundering, ' eluding, without; limitation, Executive Order No, 13224 on Terrorist 1°inancinp3 (r ffeetive September 24, 2001) i id the 'Uniting and Strengthening, America by Providing Appropriate Tools Required to Intercept and Obstruct T 'rori5nr Ant: of 2001 (.Pubic Law 107 56). ARTICLE XX.X:iif •-201::3 1JLS, DOLLARS As used throughout this Lease, the term "20113 U:,S. Dollars" shrill be compu -d by multiplying the dollar amount to be adjusted. by a &action, the numerator of which Is the Current Index N tlbet' and the denominator of which is the DUO Index Number, As used herein, the term "Base Index Number" s all mean the level of the Index last published for 2013; the "Current Index Number" shall be the level of the indw most rneen.tiy published prior to the adjustment in question;. and the 'Index" she]] be the Consumer Price Inde;c. Pe All ilrben Canslul•rei's, publisimed by the Bureau of Labor Statistics of the United States Department of Labor for . S. City Average, All Items (1982, 84 equals 100) or any suecrassor index thereto a5 hereinafter provided, If pub]!talon date Index Is disoontinu,od, or if' the lasis ofoaloulating the Index is materially ol1ange..cl, then Landlord shall ,substitute for the Index comparable statistics as computed by an money of the United States government, or none, by a substantial and responsible periodical or publication of recognized authority most closely •app.rox mating the result that would have been achieved by the Index, ARTICLE XXXIV ,,., "f'ERMINAf"TON OF CITY KNITS CONTINGENCY Tenant ecknowlieilges that Prime Landlord presently rat Demised Promisee, including, without limitation, the right to in and dockage for charter boats alongside portions of the Dct addition, Tenant must enter into a. separate lease or other terms as Tenant; and Prime Landlord may agree for the colo 'Phis Lease, in its entirety, is subject to the termination or is used In this Article) of the City Rights, and to enterin writing. Notwithstanding the foregoing, Tmoot ackn to grant the torn1111a.t',lo11 or modification of the City and (b) Landlord makes no warranty or raapresoi Wimbledon or .modification of the City Rights o' ihet. (i) Prime Landlord sha.0 not grant the; terns] such loose or ether occupancy agreement or a Prh.ne Landlord Approval tis oo'ntcnlplated the T3ayfrtn t Park Parking (Garage Lanne o by the Initial Contfngnnoy Date, 'then the reasonable period of time to satisfy any the Outside Contingency Date, so lo. ,g as Tenant continues to use diligent, goad faith efforts to sat]* such outstanding contingencies on. or befo a the Outside C ontingency Date, If tiny of the aforementioned oontingoi ofes remains outstanding as of the Outsl%a Contingency Date, then either Landlord or Tenant may terminate this Lease by notice to the other, in writing at any time thereafter and prior To the satisfaction of all such caimtin renotas, whereupon the parties shall have no further liability to each other under this Lease, except pursuant to those provisions that, explicitly survive any terumination of this Lease, na certain rights with respect to portions of the nteitt dock master facilities, parking for the Marina reel PrerlmiSas (collectively, the "City Rights"), in eupancy arrangement with Prime Landlord on such ation of the Marina office t;a within the Tower building, ioctifleation (or weiivor, wherever the lerin "modification' Into such separate lease or other ciacupanoy arrangement in 'ledges that (a) Prime Landlord has no obligation whatsoever ights 'ar enter into such lease or other occupancy agreement, talon whatsoever as to whether Prime Landlord will green the ter into such lease or 'other occupancy agreameet. In the event talon or modification, as applicable, of'the City Rights or enter into y of ilia Prime Landlord Estoppel, the Recognition Agreement or the Article XXXVI below or (ii) I3ayfront Paik Owner has not entered .into the Easement Confirmation as contstmmpleted in Article XXXVI below, n.it'irt] Contingency Date shall automatically be extended for an additional Nile aforenmentioned outstanding contingencies, but in no event later than ART'CLEXXXV , LANDLORD MORTGAGE LENDER APPROVAL. CONTINGENCY 56 Landlord and "l.'enant, acknowledge that Landlord's interest in Me Bayslcit; Property is not., as caf' he Execution Date, erumbetred by Noticing, However, Landlord intends to refinance the 13ayside; Property a' d as such, Tenant agrees that if required by Landlord's mortgagee, and if and only to the extant Landlord's mo .gagea holds a first lien position on Landlord's interest in the 13ayslria Property and is an Institutional Lender, Tenn t agrees to subordinate its Leasehold Interest (which subordination shall not be automatic but shall require separate document) i1]1C1 enter into a subordination, non-disturbance/recognition mid adornment agi'eettienreasonably acceptable to Tenant, Tenant's Leasehold Mortgagee and Landiord's morn kitgee; it being understood a' d agreed that Landlord's .mortgagee; shall not be ent'itled•to exercise any of die rights or Landlord under this Leas, until such tuna as Landlord's mortgagee, or any of its successors or assigns, as applicable, has acquired Landlos interest: under this Lease. All costs and expenses incurred by Landlord's lender In connection with this Article 'XXV shall be. the responsibility of .Landlord, Anything in this Lease to the contrary notwithstanding, rno• • put or a'' provid by Landlord's mortgagee shall constitute grounds for an extension or 'the dine fi.ames for approval of any platter that Landlord is permitted to approve, nor shall Landlord's mortgagee's failure to approve 1 and of itself constitute reasonable grounds for Landlord to disapprove any matter, ARTICLE XX)(1/1.. PRIME LANDLORD APPROVAL CON']' Ci13NCY This Lease, in its entirety, is subject to (a) Prime Landlord's 'delivery o to the Retail Parcel Lease, In form and content reasonably sat186t0:ary to Lanell Estoppel''); (b) Prime Landlord's delivery of a Recognition Agreement Landlord; (c) the approval of Prince Landforcl, which approval shall in.clu Prime Landlord that neither the execution of this Lease, nor the deveh Project shall have tiny impact whatsoever on the liabilities or obligations either economically or otherwise (tine "Primo Landlord Approval"); F ayfrorlt Park Parking Oarag,e Lease with Tenant; and (e) Tenant's r Owner or the "Title Company that Tenant has unrestricted access lb the Shopping Center that provides vehicular access to the ]Jervis Prime Landlord Approval shall be hi writing and in form and GO, 'i'enant and shall include, without limitation, approval by Pr conflict with the provisions of the: Prima Lease, together w -g,r'anted by any such conflicting provisions ofthisLease sir. Tenant, hereby agrees that Tenant shall promptly Alive commercially reasonable efforts to obtain the. Prime Reeco>gnit.ion. Agreement, the 1:3ayfront Park Parking however, that all costs' mid expenses inured by therewith shall be deemed LL'cpensns CS and to the liable. for same in accordance with the terms of S obligation whatsoever to grant: its approval to th o'fPrime Landlord, (II) Landlord makes no war front the• Prince Landlord Approval or otbera or whether the i3ayfi'ont Ptak °earner will Confirmation, and (its) in the event that provisions of this Lease, Tenant shall no. (a. request for tt change in the oco'rlomi reasonable basis for Tenant to with.it' Landlord. Estoppel, the Recognition delivered the 13ayfront Park .Parkin (or the Outside Continency 1'.)t Tenant may terminate this outstanding doe;utneatt(s), wl, pursuant to those provisions anything to the contrary s t. forth in this tease, if the d3ayfront Park Owner fails to enter into the t3ayfront Paris 'Parking Garage Lease bu has entered into the Easement Confirmation and Prime Landlord has otherwise provided the Prime Landlord L, 'tippet, the Recognition Agreement and. the Prime Landlord Approval by the Initial Contingency ]:arse. (or the Outside C::ontingoncy 'Date, If a.pplictable, as provided in Article XXXIV above.), then Landlord and Tenant agree to forego their respective rights to terminate this Lease as provided In this Article 1 estoppel certificate with. respect and Tenant: (the "Prime Lancilorcl onably satisfactory to Tenant and without limitation, confirmation by anent, construction or operation of the (Landlord under the Retail Parcel Lease, ) 13'ayh'ont Park Owner's entry irate. the oe'ipt of confirmation f'on1 the 1:3ayfront: Park all vehicles over the aoeass road at the roar of Premises (thee "Easement Confirmation"), 'The one reasonably acceptable to' tacit of Landlord anlcl me Landlord of any provisions of this Lease that h confirmation that the ex,et'ci.se by Tenant of rights I not constitute a default or breach of the Prince iLease, copy of ('his 'Lease to Prime Landlord attcl shall use Landlord Approval, the Prince Landlord Estoppel, the garage Louise and the Easement Con.f)rmatiom provided, 'ime Landlord and 'the 13a',yfront Park Owner In connection •xtent provided fbr in Section 3,04, above, and Tenant shall be don 3,04, Tenant acknowledges that (I) Prime .Landlord has no Lease, as such approval Is within the sole and absolute discretion (tiny or t'eprasental:lon whatsoever as to whether 'Prime Landlord will Ise provide the Prime Landlord Estoppel, the Recognition Agreement nt'er i'n'to the 13a.yf1'orit Park Parking Garage Lee and the Easement rime Landlord conditions it's approval on the amendment of certain unreasonably withhold, delay or condition its consent to such amendments terms, including a request for payment or compensation, shall be deemed a d its consent). In the event that Prime Landlord has not delivered the Prime moment, the Prime Landlord Approval or the Bay'f'ront Park Owner has not Garage Lease and the 13001110111: Confirmation, by the Initial Contingency Date , if applicable, as provided In Article XXXIV above), them either Landlord or , by notice to the other, In writing„ at any tithe thereafter prior to receipt of the ,.enupon the parties shall have no fturthor liability to each other under this Lease, except hat explicitly survive any termination of this tease, Notwithstanding the forming, or 57 XXXVI, as wet' a$ Article X.XXI'V, ;;end, shall use good faith efforts to agree -upon the terms of a parking garage lease providing far the expansion of the Parking Facilities as necessary to accommodate any additional parkin required by Prince Landlord in connection with the Project, If Landlord and Tenant are unable to reach agreement' their safer arid absolute discretion, on the terms of the aforementioned parking garage lease on or before the late to occur of (A) date that sixty (0) days following the initial ContingencyDate or 03) ifapplicable, its provic' d .7in Article X.XIV above, sixty((0) clays following the Outside C'cttntingency Dater, then either Landlord Wrenn,' ' may terminate this Lease' by notice to the other in writing, at any time th.ere'afieir,'whsrnupon the parties shall ave no further liability to each other ru1c10r this Lcaso, except pursuant to those provisions that expH.oitly sit ive any termination o'fthis Lease. ARTICLE XXXV 1I — ('GOVERNMENTAL APPROVALS AND FINANCING CONT1NC3F Landlord and Tenant agree that this Lease is contingent upon Tenant having obta' Governmental Approvals' (excluding those Governmental Approvals specifically provides' 'fir • and XXXVI above) and arranged for Project Financing acceptable to Tenant In its sole di acceptable to Landlord as provided In this Lease) by the Scheduled Construction C�atrrlrrc r table to satisfy the foregoing norltingnticios by or before the Scheduled. 'Construction either 'Landlord or Tenant may terminate this Lease, by n'otleo to the other in wri:tin Scheduled Construction Commencement Date and prior to satisfiled011 of the tbreg the parties shall have no further liability to each other under this Lease, except p explicitly survive any termination of this Lease. v eel all applicable h1 Articles XXXIV ration (anel otherwise lent Date, If Tenant is ,onnntenceaultalnt late, then at any titre following this U contingencies, whereupon main to those provisions that ARTICLE XXXVIII • REASONABLENESS AND 0 OD 'FAITH Wherever in this Lease u'o(1sent Of approval of a parry is requ.ir prov'cledl in this Lease that consent or approval may bo in the sole and similar iniport), such consent or approval avill not be unreasonably will pertaining to this Lease, the parties shall have an obligation or good tl. • reasonable, approval under this Lease is required,, If a'pprovalry don' reasons for denial and if the other party disputes the denial as belt deemed to be in default under this Lease until t'ha matter is con non -appealable dispute resolution procedure as provided in this :.. survive the expiration or sooner termination of this Lease. , except as and to the extent expressly solute discretion of a party (or words of .e1d, ciolayed or conditioned. In all matters th and flair dealing. Whenever either party's d, the denial shall specify with sl.tec1'fle1 y the t,rrveason'able, the requesting, party shall not be usivnty resolved in the denying party"s favor by .;,ease, court: order or judgment. This provision shall ARTICLE XXX.IiX - ° CGUIPMI N'f LIENS Landlord shall have no rights in respect of any, or other Iiens on IT&E,. From time to time pram; subtenant (at any level, Ineludhlg ooncessionalres Article) the waiver contained in thirs Ar'tiole as to p such subtenant desires to enter into or grant any shall enter Into such customary documentation, 'Conant reasonably requests, providing far n financed FF&E upon an Event of Default; ( (c) agreements to enable the holder o'fSidi remedies under its equipment lien, irr t financed V.F&E irate the Demised .Pr purpose of removing, the tirianced "FP as a result of such removal shall be "PF&E" means all rnoviible ftlrn systems and equipment in corane he removed without material d' integrity of the Demised Pre Premises; (i'l) the present. or the present or fare provls!, 'F&E, and Landlord hereby waives any statutory, landlord's `tly upon request, Landlcn'd shall confirm to Tenant or any �lrcl licensees whenever the tern'l "subtenant" is used in this rtluulat' :' F&E, .I'f at any time or from time to time Tenant or any quipit1ent lien on i'ts 1^1,&13, then upon Tenant's request Landlord easonab'ly satisfactory to Landlord, regarding the financed I�1��&E,, as tte:rs such as; (a) waiver of any right to take p0808810» of such, waiver of any other right, title, or interest In the financed FF&E; and ,quiplrent fork to repossess such financed FF&E 'touch holder exercises event shall Landlord permit the holder of any equ..iprrrent 'lien to sell the es, Any rights of access granted by Landlord shall be for the limited rr1 '; it being understood and agreed that all damage to the Demised .Premises ;paired by Tenant or any such subtenant or the holder of such equipment lien. are, f1arnishitngs, equipment, and personal property of Tenant, including the ton with the flying theater or any s&uceessnr operation, or any subtenant that may age to the Demised Promises and without adversely affecting; (i) the structural uses; (11) any 'electrical, plumbing, mechanical, or 'loiter system in the Demised Mire operation of any such electrical, plumbing, mechanical or other system; or (1v) rr eau utility service to the Demised Premises. Pl c4'.l' Includes items such as factory 58 equipment, Rival -Cure, movable equipment, telOphone, te.Isoo.nuiaunioutions and facsimile transmission e uipment, point Of sale equipment, teievisions, radios, natwor'k racks, and. compute? SySte171S and peripherals, [SIGNATURES FOLLOW ON NEXT PAGE] Sy EN WETNESS WHEREOF, the parties hereto have duly executed and delivered this Lease as of le day and yeal.' first above written. TENANT SKVHIGH M1A.MT, .LLC a Florida limited liability company Printed Name: Title: WITNESSES: • Signature Printed Name Signature Printed :Name LAN DLCAM BA.YSIDE MARKETPLACE, LLC, a Delaware litn'ted 1labir y•company By: Mary in ;I, Excoutive wiTNEssEs; Signature Printed Name Sigitue ,I,Adja( Printed Niam IN WITNESS WHEREOF, , tho parties hereto .have duly executed and delivered this Lease as of tl •. day and year first above written, TENANT': SK.Y:MGR a Florida Ili i1tec�.:st ley; Printed Nam.o: 7"itl.es WITNE'SSE S i.Ana'ta.lrrr'e Ptlu'tedl Ncnno Sin • ire c✓ Printed Name • =lllpally ARNOLD A, BROWN LANDLORD: DAYSIOR TVIAtt :1 TVLAcI, .CI.LC, a .Deiawar01imitecl liability company By:_ Marvin ,T, Levine Executive 'Vice .President WTTN:BSsE5: Signature Printed Nanme Signature Printed Name MUHLt"L. snit PLAN ISe*e ►Ytitch ed) Exhibit A EL_ pa, ana,=4,,,,optouanapp, ..a,-P11.3....itaa-,a— PORT )301.FLEVAF.V Virin=3314.T.E4g-C 1 PER DErvISED PREMISES ene.......3.9.0ear ftte r4V94.= ova., TA 1 SITE PLAN a tra. 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BI�IOW erMrtn. atnrsq r5 FININO EI•IomeR RCauiaM0I4T LEVEL 00 (POU2' DATUM) FLYING THEATER MECHANICAL LEVEL arzrzoa ron Hs gUNIMrNUHUr«UUnIM«xntrHUIHNNr,ly.11.411. 11.111111f...l1.1.4wMn1411NIN 1.1.910114.1.111. 11..1UlU«wrwMqxt4.11.1011,11.«Sri..M.IMU1111.1MM«uwgN11UWUUNNH«,roil.r,yu»INN1.1.14 xMrU,lx«HM+xN11NIN,N1 A"Ohl) SKY 1.11 Q III MIAMI ,oelc:vazz,a MAYLWAO 1,aV(118 an n ao «M,„r«,1,» M� 1M ««MM«,� »« r,1 » « »r«„rl«rr,»«M., HM «,uw1«� « ,.M �,� 1« ,.« ,» �� «« .,M.rM , M...»«„ r«1«I,1»,«� 1„»,«„»«,»««.tIvonO««««,1,.111«.11,.M,1« Wag M1i1IY\nM" a�u I ttNVATGR LOQt3Y INDOOR OkiDERVATION ORM( LEVEL 8 (+7'I6 DATUM) INDOOR OBSERVATION r wGI< • $TRUOTURA. travel. .i1:It LEVEL 7 (+ 00' DATUM) STRUCTURAL LEVEL ATAI1tO 8'leq i rid NVA t 9 .,.».,e,.., f 04411.1.044ir.r,m«N.,11.4.w0mr,,,..,.n.,u......,..,,.,«.......,.w,,, Me+...,n.T.,....«...«.,..,»i,,,,.w,».,.,,m..M,1,,..,,.e,..,.*.h.i«.w tzv VZr SKYf•IlaI MIAMI»,,..., .». 6M4s1'nt1W Loveas 07aop �tT8,7Pta .,.r.+e.nWnmM4mmMiutrarmomnfiltn1 nrmNmumrxlruMurumuMlrulnrux.01,.wuuw..1WIu11:Il1IrHlu.1.1.1111.1.I110.11 114•MewnrnrnMM4111.011.. 1111-...uewxxumummINNlmnlu M EOM 0'e II 11 II I ELEVATOR LOE1fWY MIETINfd ROOMS LEVEL 10 (+.-a4' DATUM) MEETING ROOMS / TRUCTURAL LEVEL MA Mil 4 11 R T L I 1 LtftAJi.; $ MEVATOrt „( ,. AS, 1..,.. (1' n9 OUTDOOR OBSERVATION DELIS 7; ;MmmilmI;imIt M; Inamaitrurul7 mtavo1,n,nnxr 1=: LEVEL 9 (+740' OATUM) OUTDOOR OBSERVATION DECK MigahliM Pratign.umron .SKY 111 1r1 M1�1�/ll µµ 6CI 01yvmt &M 1,VV19 l R ifigrlh t,: a HOW s" 1k z�r RUAiR M 'b' (OrIrnnraNlcn A, IPA'474T1,1, �k;::5:�v�r.,iin1: �r.w.c z•' . ''�,-`-t,ec,r.. Xi F.1�13 v'�. � .�,s r -. s-j4:" a,. "'� YID=tM� ft��.:t4 •Y .wi.i-- �+w� �_ �,. BTNIt 0 II II II II �r�� �s�"r'•Li VAIN d•, STAIR •Yi.9 (, 9. 4 �`rvaatci cir'"v . s,= #31mc L,kV1 L. LEVEL 12 (+844' DATUM ERVIOE a BTRUQTURE L. v=1. E(. VA1OR Loopy PONVION UALLROOM LEVEL 11 (+B20' DATUM, BALLROOM SKY HJ 1HH MIAMI rlu4V ILORNA AMINOj. &TAIN9 FCAluraeow o b en 1!( LGVflL11 11 Y 12 .1,,,..,,,,,«,p.i.,.,ll...x,.1,.«.,W»,i,, _, afaar m $ $ $ULAIVATO~ # & , x� Ur MeTALIMANT LEVEL14 (+d¢ D TUM) LUXURY REST«RANT Qv m A# m LEVEL 13M O0 DATUM) NIGRr! CLUB SIO(1.110F1 «M._ m _ _, aw,ma I MI HI _._ PrIfe'Ag 7--, ±17 a 0:# M ZVI amino IJYL GTi aTNF PIVIVA"fM CLGB hLGVATOR LOBBY LEVEL. 'R3 (1'',91 S' DA" M) PRIVATE OW 4GVATQR LQ IY PhIWr7U, OUTDOOR Z1 arivA•rioi DgCo< LEVEL 16 (+ lOO DATUM) (PRIVATE OUTDOOR OBSERVATION DECK xxxxwxxx«x,xnunuunxu017,1 �`IIV 1' iretroroNI A SKY 111C11•I M AMI NGJ4, I.or ow LEVt16 xu, A)r"`°lx�3X kttclt LEGAL DESCRIPTION OF DEMISED PREMISES [To. o. be aattached upon approval by Landlord] Exhibit C OtinNT PLAN ,SU13NllTTALS Sitaa Oevclopment'Plan IPackage Survey sealed and signed by licensed surveyor, Preliminary Civil fFngineering Design ,planar Including such things 48: Overali Site, 'Plan including context of adjacent Shopping Center and Mnrin' All Tenant work Must be clearly defined, Demolition ?lan(s). Utility Plat(s) Including identification of ail easements whether exist: Ir, proposed and any relocations, Grading Plan showing topography in rninin,t:n' I .foot inc.reynents Overall section indicating extent of subgrade construction for levels .+low grade, Ovwrail section through site of proposed Pi ojaot showing the surro riding context of Hard Rock and Shopping Center buildings. Area Circulation Study rr+Ith respect to the Impact of'the deve .pent, construction and operation of the ''project, including Buell t'liings as: • Pedestrian and vehiculartr<a.ffic 'both within the S. tipping Center and upon surrounding; streets, d Truck access, maneuvering and turning ntovenn nt lnctuciing icicniff1cation of seani. trailer truck and trash removal truck route from highway a ,cr,ss point to loading dock and reverse route. Fire truck a cress, ma.a1euver'in . and turtling 1ovanaents 13..om highway access point to. Project and reverso route. • Caraag,e circulation plan indicating podas 'Ian and vehicular traffic circulation (including valet circulation and management) within ar -; around the Below Tower Parking, Construction Stagin ;:Phurs, the ''dentition(.n of' construction phasing, .logistics uncl staging for the construction of temporary and/or penman nt Tenant Improvements including such things :as: • Pion indicating all lay d.owrt or anst.ruation staging areas proposed on Dodge Island, O Plan indicating the number, p ,cement and dimension(s) of barges for any staging and/or lay down • Plain indicating location an a overall dimension(a) ofconcrete batch plant and underwater pipelJne delivery ,system or other ()livery system, serving batch plant. Construction worker tr rsport (water taxi) circulation plan 'indicating routes of taxi service and proposed hours of op, ation, Preliminary Landscape/i l t'clsscaps 'Design Pian for the 'Project with materials narrative, Sit:a Lighting iDesign,1 ghthng Analysis and Photontc;trics, Ceotet:Weal report Kiosk Pion ind.ioating overall dimensions and 3 dimensional rendering illustrating scale of the kiosks. Exhibit 1D Preliminary Signage Design for Project (which will be a separate; submittal) Design Development Plans Coordinated plan, and speci.fications Illustrating the size, scope and character of the entire Pro of and the hinds of materials, structure nncl systems including Such. things his: • Floor Plans of each level (which may be shelf Floor Plans) Including such things as dentificarian of a passageway through the Demised Premises for vehicular and pedestrian access I. the 11,1arina, the Parking Garage and other portions or the Shopping Canter, Building Sections • 13ullding Elevations a Typical Exterior Wall Section(s) and Details Typical Canopy Section(s) and Details RenderinErs Reflections and shading (shadows) study identifying the I pact of the Tenant's Improvement's on the Shopping Center in terms ofreflection of building n t:erials 2tnni shading (shadows) created by Protect, • Exterior Building Lighting Design Exterior Building Signage (which will be a se1,a: mite submittal) Sustainable Design Features Systems Nary; ve (if applicable) Wind Tunnel Test report(s) determining the ffect's of the Tower noel podium mass on the Shopping Center buildings (which 'nay he a separate , u.tnittal), 1Cxhibit .1,7 EXHIBIT "E" :XMMIT:.,.,RFO..M...ivCr GUA.TY [See attached] Exhibit E A .1. ilk{ T . r' ORQUTANC (3 V.A111,A NI $KYHIGFI M AMT 'Nis PAYMENT AND PERFORMANCE GUARANTY (this "Guaranty") is made as of tha ,, day of 2013, by Jr'I FR.LY 1.,, .BERKO'irJI Z, having an address c/o 13crkowiti''Developincn ('3'tam, Inc„ 266.5 South I3aysh'or,c Drive, Suite 1200, Coconut (grove, Florida 33133 ("Guarantor") in favor f f3AYSIiDE MA.RK1:?"i"PLACJ.H, LLC, a 1)e&aware limited liability company, having an address c/o General Or( with Properties, Inc:,, 110 North Wacker Drive, Chicago, Illinois 60606; Attention: Chief Legal Officer ("Landlord' RECITALS: A., Landlord and Skyiiigli M.I'a'I'I'lI, LLC, a Delaware limited liability company ("Tenant"), have cantered into that certain Sub-Cirotu'l Lease dated ,. 20'13 (as amended (Roar time time, collectively, the "Leese") for certain promises located. at the property commonly known as l3ayside Mar Vine In .Miami, 'Florida and mare (!illy described in the Lease. (the "Demised Premises"). l3, "Pennant .intends to construct on. the Demised Premises a tower strut ire (ihr "`(sower") and related Improvements (collectively, the "Tenant's Improvements") far the operation of a °etail, restatu•ant., entertainment and flying theater tourist attraction (the "Project") in accordance rvith the terms of : c C,ettsc., C, Pursuant to the tarns of the Lease, Tenant is obligated, rlrn';ng, other things; to (i) complete, at Tenant's solo cost and expense, the Initial Construction of the 'Te..nant'a In"Ip1'o morns, subject to the satisliration of certain contingencies as set forte) in the Leasa, by the Scheduled Co'nstr 'ion Completion !.,rate (as it may be extended in accordance with .the Lease) (the "Construction Obligation") w 4 (11) demolish and remove t'lre Tanartt's' Improvements (including, without limitation, the Tower) Prom the Demise • remises under Certain circumstances as set forth in Sections 3.03(i) (Demolition) and 27,03' (Termination Rights; of the !.,case (the "Demolition O.b,iigation„ and together with the Construction Obligation, collectively, the 1,,ease'Ibligations"). D. Guarantor has a. direct or indirect ownership inter ist in Tenant and will benefit from the Project contemplated by t'he Lease. C. As a material inducement and .conditlon tLandlord entering into the Lease with 'tenant, Guarantor agreed to enter into this Guaranty for the bcnafit'. of 4mdlord on the terms and conditions stated herein, NOW, THEREFORE, for "tan Dallars ($10,00) an other good and valuable consideration, the receipt and sufficiency of which are hereby d.uly acknowledged, Guar, ,tor agrees as follows: I, Metals, Each and all of the 1'bregoii •'r recitals are true and correct and are incorporated herein by reference, 7. qapjyalizolimig. All initially/capitalized terries utilized herein, unless specifically otherwise defined herein, shall have the meanings assigned "M such terms in the Lease, 3. Qnar'clntec„ I ObJj tiQt s, Ct '111111or hereby absolutely, irrevocably and unconditionally guarl,nl;ee9 (as primary obligor and not merely us surety to Landlord, its successors and assigns, the full and prompt payment When due and performance of the Guaran ,,ed Obligations (as hereinafter defined). As used herein, "Guaranteed. Obligations" shall .mean: (a) the complet; n of, and payment in full for, the Lease Obligations, to :the extent required under the Lease, free from any' and al liens of claims of any and alp persons or entities performing labor thereon or furnishing materials therefor, or boil), and (b) all cos-', expenses and fees, including but riot limited to court costs and reasonable attorneys' fees, arising in Contra ation with, or as a consequence of the nonpayment, nonperformance or non- observance of the Lease Obl'iga 10118 by Tenant of Guarantor as described in item (a) of this Section 3, 4, Eight .('oIggStA, i'q ,l gain ., CQ=12,91:. 1..,andlord may, at Its option, pro° >cl against st Guarantor in the first instance, without first resorting to any other security held by it or to any other .r'.rrleclies that Landlord pray have against Tenant undier the Lease, at the same or different times, es it may doom visable in its sole and absolute discretion; and the liability of the Guarantor lteraundet'shall be in no way affecte or Impaired by an acceptance by Landlord of any Security for, or other guarantors upon, tiny indebtedness, liabili or obligation of Guarantor to Landlord hereunder, or by any failure, delay, 'neglect or omission by L„arrdlor'd la realize upoa or protatat any such indebtedness, liability or obligation or any collateral or security therefor, 5.. gighttolippergaerkrinarm. Landlord shall have, and may exerais ., ire addition to all ether rights, privileges, oi' r'erttedies available to it under this Guaranty and by law, the specific rights and remedies to sae for and obtain specific performance by the Guarantor of the Guarantor's covenants a'nc agreements set forth herein, all at the cost and expense of the 'Guarantor, 6i\Y tfs n,,c E:tu;t ,t?i,. Guarantor hereby waives. (a) antic a acceptance of this t iara'nty by Landlord or of the reliance of Landlord upon this C7tlaranty; (b) demand. of pay nt' from any person indebted in any manner for any of the liabilities or obligations hereby guaranteed; (c.) any def lrse arising by vh'ttle of(i) the lank of authority, death, or disability of Guarantor or any other party, or revo"catir 'r hereof by any other party or (11) the failure of Landlord to file or enforce a claim of any kind; (d) notice of ' riant's nonpayment, nonperformance or nonobservance of the Lease Obligations; and (e) any defense based upon n election of remedies by Landlord, 1. c, ,0, ttrld i x,pelses of;„l;nf; arpe ;izt, Guarantor ;fees to pay any and all costs and expenses stormed by Landlord In enibroitrg any rights or remedies udder is Guaranty, including, without limitation, all reasonable fees and expenses of Landlord's attorneys (including ;'u'alegal fees), as well as the reasonable fees and expenses of any appeals, regardless of whether any specific legal arocaaedingaa should be commenced or Initiated, 1>. 1 a,„ giver, No ftrilure On the part of Lt cfiord to pursue any remedy hereunder or under the Lease, shall constitute a waiver on its part of the right to p rstte said remedy, nor shall such failure give rise to an estoppel against Landlord, nor excuse the Guarantor frog its obligations hereunder. 'No.ext'ension, modification, amendment, or permitted assignment or other trans'fea•• of the Lease shall disalause the Guarantor .from any obligation herein contained in this Guaranty, in wit e or in. part, except to the extent expressly provided by Landlord in writing, 9, ,tugsnare',(!~yj,il l;fl elatlerrt, Guarrll1 r agrees that its obligations hereunder are independent of and in addition to the undertakings of Tenant under t e Lease and. any other obligations of Guarantor to Landlord, A separate. action may be brought to enforce the p ()visions hereof against Guarantor. 10. $11br'ggaliull, Notwithst, Kling anything to the contrary contained herein, Guarantor hereby 111'ev004ly waives all rights it may have at law or in equity (including,. without limitation, any law subrogat.ing Guarantor to the rights of Landlord) to s k contribution, indemnification, or any other form afreinibw'seinent from Tenant or any other person now or hutter primarily or secondarily liable for any obligations of Guarantor to Landlord, for any payment or disbrtsement made by Guarantor under or in connection with this Guaranty or otherwise while file Lease Obligati° S remain outstanding. If any amount shall be paid to Guarantor on account of such subrogation rights at any time such arnourrt shall be held in trust for the benefit of Landlord and shall forthwith be paid to Landlord to be cr.'ecllte .anti applied to any outstanding obligations hereunder, In such order as Landlord, in its sale and absolute discreti t. shrill determine. Guarantor" waives thn benefit of, and any right to participate In, any security now or hereafter it, Id by Landlord itoro Tenant. I I . ,l ppl' e. t.t° t pm a afd,Wgrranli,es, Guarantor hereby represents and warrarlis the following; (a) Viiilbt, This Guaranty constitutes the legal, valid and binding, obligation of Guarantor, enforceable against hir'in accordance with its terms, The, execution, delivery and performance of this Guaranty by Guarantor does not result in a breach or constitute a default (with due notice and/or lapse of time) under any agreement or instrument to which Guarantor is a party, (li) No authorization or approval or other action by, and no notice to or Jilir any governmental authority or regulatory body Is required for the duo execution, delivery and per•f'orr ariCe by Guarantor or this Guaranty, (b) Ca tet.w :ilfoA'.111f.4kl, All other repor.•ts, papers and written data and Inform don given to Landilorci by Guarantor with respect to Guarantor are accurate and correct in all material rospec" £urd complete insofar as completeness may be necessary to give Landlord a true and accurate knowledge of t o €iibject matter thereof. (c) ),,,itlangon, These is not now pending against or affecting uarantor, nor to the; knowledge of 0uararrl:or, is there threatened, any action, suit or proceeding at law or in ec 'it'.y or by or before any administrative agency or arbitrator of any kind or before any governmental department, c mission, board, bureau, agency or instrumentality (domestic or foreign) which, if adversely determined, would h 'e a material adverse effect on the financial condition ar assets of Guarantor or would otherwise impair his abili to perform his obligations under this Guaranty, (d) ha. Kngw.lep,e. Guarantor does not know of any a ots ti:tat would, in any manner, Indicate that the representations and warranties conTtain'ed. In this Section I 1 are of true and complete in all material respects, (e) i%.;;.tiGli;£Int0•i„•,);'i;hall,g.I, ,Lli;tlt,tem c t, 'The most re t financial statements of Guarantor that were previously .provided to Landlord were trite, correct and complete In 1 material respects as of the date thereof, and all financial statements of Guarantor subsequently provided to Laurel ':1 I will be true, correct and complete In ail material respects as of the date ofsuoh subsequent financial statement's l2, L„ r),ttmearis ;, laic. No amendment or waiver of a, y provision of this Guaranty nor consent to any departure by °nartmtor therefrom shall In any event be effective aless the same shall be in writing and signed, by Landlord, and then such waiver or 'consent shall be effective �v%1 ly in the specific instance end for the specific purpose for which such waiver 01' consent, has been givers, , oi; gekkeagad €ilsUal:bljtolxum. i jai, Ail notices, offers,, aeoeptan'Ces, rejections, CUnrents, regnesia and o(lier oomrnlnrieations hereunder shall be in w sting and shall be cieewed to have boon given; (a) when delivered itr person; or (b) on receipt after being saint by express mail or delivery service guaranteeing overnight delivery, in each case addressed to the intended recipie'n!at their respective addresses set forth on the first page of this Guaranty. claims irr J;l#trilcrut y.. in the ev4rt or receivership, bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency proceedings lnv/ ving Tenant, as debtor, Landlord shall have the right to prove its claim in any' such proceeding so as to establish,/ s rights hereunder and receive directly 'from the receiver, trustee 02' other 0o101 0115'toditrrr dividends and payments lob would otherwise be patyable to Guarantor. Guarantor hereby assigns such dividends and payments to Lancllor 13, A;, 1sIon l (�, ij , , in th4event that Guarantor shall now or hereafter furnish a letter of credit, cash or other collateral to Landlord as add.it*! rmJ security for Cluara.ntor's obligations to Landlord hereunder, such additional collateral shall not diminish, liraai,.or otherwise modify Guarantor's liability to Landlord hereunder, Any such letter or credit, cash or other collates 7 to the cattennt remaining, shall be released to the Guarantor at such time as ail of Guarantor's obligations herounde have boon satisfied in full, 16. L7#1„e,,,�1_„c, ern, Ou€n'r nor expressly agrees that Landlord may, in Its sole and absolute' discretion, without notice to or further °onsen • or Guarantor and without waiving, releasing, affecting or impairing the obligations and liabilities a'1' ()tiaras r hereunder, exorcise any rights to which Landlord is entitled in connection with the :Lease, including without ii.a Itati.orr, the followingh (a) \Valve fol- plime by Tenant with any of the terns of the Lease; (b) Mcldify, amend or s1.tlaplenac.nt any provisions of' the Lease by agreemenTenant; (o) Effect arty release, compromise or settlement in connection with the 1.,ase; (cl) Assign or otherwise transfer all or any portion of Landlord's h crest in. the Lease, this Guaranty or any interest therein or herein; and (e) Consent to any assignment, subiease, conveyance or other t ulster of all or any portion of Tenant's Interest in the Lease or the Demised Premises, i'f and to the extent such co sent Is required pursuant to the te19113 oftIu Lease, 17,�a"2��1�r1.(R(711, (a) This Guaranty shall be governed by and cons'; led in accordance with the laws al' the State of Florida without regard to principles of oonf ots of law, and vo atn shall be exoltisimly in the applicable court(s) sitting in Miami -Dade County, Florida (b) Tinle is of the essence hrareof with respec%to the Guaranteed Obligations hereunder, (c) If any tern, provision, covenant or ccAlden hereofa.r any application thereof should be held by a court of competent jurisdiction to be Invalid, void o unenforceaible, all terns, provisions, covenants and conditions hereof,. and all applications thereof not held invali;void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or Invaildet.i%"1 thereby, (d) The title of this Guaranty a the headings of than paragraphs of this Gluai.ranty are for convenience of reference only, and are not to be cons 'l eyed. a part of the substance of this Guaranty, end shall not limit or expand or otherwise affect any oldie terms h6'eof, (e) This 0uaranty create, . continuing obligation. and the obligation of Guarantor hereunder shall be binding upon Guarantor And its succeaaN, heirs, representatives and assigns, and shall Inure to the benefit of nnel be enforceable by landlord, its parents, .!absi.diaries and other fiffillett19, successors and assigns. (f) This Guaranty is nlely for the benefit of Landlord, its successors and assigns and is not intended to, nor shall it be deemed to, be n'zle for the benefit of any third party, () This Guam t ;y may be executed 111 counterparts, all of which taken together shall constitute a al.a1gle d.Uoument. (h) 0UAI i °I"C I AND LANDLORD HEREBY .AGREE NOT TO .fwr„BCT A TRIAL 13Y JURY OF ANY ISSUE TR1A.13/r3 OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO, TRIAL BY JURY FULLY TO THE EXTENT 'PH r ANY SUCH. RIGHT SHALL NOW OR, HEREAFTER EXIST WITH REGARD TO T 11S OLIARA.NI"Y, e ANY CLAIM, COUNTERCLAIM OR grim ACTION ARISING iN CON1V ,f:'.l'101'4 THEREWI 1. THIS WAIVER OF RIG I-1°.1� "PC) 1RIA1., BY JURY IS (a1VP.N KNOWLTN(JLY AND VOLUNTARILY EACH OF GUARANTOR AND LANDLORD, AND IS INTENDED TO ENCOMPASS l'NDIVID ALLY ) ACH INSTANCE AND i A,CI.1 ISSUE AS '1'0 WHICH Tea won To A '1".R,ih.l.,13Y IUR.Y WOC .i:) OTHERWISE ACCRUE, LANDLORD 1S Hi1RT'13'Y AUTHORIZED TO 1a11aL A COPY OF THIS .PAR.A rR,APU IN ANY PROCEEDING AS CONCLUSIVE EVI.DENCI.E, O1:, Tws W.AIVCR BY GUARANTOR.. 1.8, ii ll'f;„r; ;iyo ate. This Guaranty shall remain effective until' the earlier to occur of (a) the date of any termination of the Lease prior to commencement of construction of the Project, (b) the date that the Construction Obligation it; satisfied in accordance with the terms of' the Lease or (c) the date that the Demolition Obligation Is satisfied or waaived in accordance with the terns of the Lease, and shall thereafter expire, .Promptly after request of Guarantor.following the expiration atlas Guaranty, Landlord shall confirm same i.n a written doouaanont delivered. to Guarantor, 4 IN WITNESS WHE R.1 OF, Guarantor has duly executed this Guaranty as of' the ctay and year first ab v GUARANTOR; ,JURE, Exit FLY" Peterson's Miami beach 1•IarieywDavicison (Space12 O) —,Restriction on the operation of a Hari:y- Davidson merchandise storey exclusively selling Harley-Davidson nano or logo providing the followine products: (i) rrpiaarel; (11) clothing; (Ill) souvenirs; (Iv) collectibles;(v) housewares; or (vi) as an incidental and sec ndalry use, other Harley-Davidson logo. li:erns typically sold in tenant's other retail stores, and shnllrn' logo'dl. Ito rs, Bayslde Gwigetts (Space 1185)• Restriction on the opertItion of a business tor a primary 4o for the sale; of cigars and other tobacco related items. &attacks Coffee (Space 1270) .- Restriction on any other occupant installing storef ont or prominent interior signage rwthlch advertises the sale of gourmet branded coffee in its premises, Exhibit c SUB -GROUND I„E ASE NON”DrsTuru3ANCr3 AGREEMENT NT THIS AGREEMENT, NT, made as of the clay of _,....,, 20.,, by and bei:wce the 13n,yaide Marketplace, LLC, a Delaware limited liability company, whose address is ("Landlord') and w,. having its principr, office al; ("SpaceLessee"), A, City of Miami is lessor under that certain lease (the "Ground Lease") \vith Land as lessee, dated 20.1_,, which demises. certain real property (the "Premises") common 'known as r3ays.ide, located in ivliarrti, Florida,. A short form of the (round 'Lease was recorded in Book at Page of the Public records of Miami.. )ado County, Florida, B. Landlord a sub»:;round leased a part of its lessee's inte.rast under the (/round Lea.a to S1ty}ilgh 'Miami, LLC, a Florida limited liability company ("Tenant;") pursuant to that certain Stir -Ground Le so (the "Sub4roun.d Tense") dated , 2013, which portion is more particularly described on Exhibi . A attached hereto and made a part hereof (collectively, the "SkyHigh Phase"). A short form of the Sub Groin '.1 /.,,ease was recorded. in Book at Page .., oftho Public Records 'ofMiami»1'?ade County, Florida. C. Pursuant to a Lease elatad as of Leaser"), Tenant leased I;o Space l..,essoe a portion "Demised .Promises" on Exhibit } annexed hereto (commencing as provided .in the Space Lease), with. NOW, THEREFORE, it is agreed rrts follows: • For so long as Space Lessee is not in default of r ty of .its obligations under the Space Lease beyond Garay applicable notice and cane periods as would permit "1"r mot to re-enter the Demised Promises and/or terminate the Space Lease, Landlord shall not disturb or cleprive Sp oe Lessee In or of its possession or its rights to possession of the Demised Premises or of away right or privilege gr Mod to or inurhrg to the benefit of Space L esssee tinder (tie Space Lease, !tor will Landlord bring any action agai:ns Space ,Lessee to accomplish same. 2, if the Still-Oronnd. Lease terminates for an reason other than (x) on the expiration date of the Ground Lease on November 30, 2061 (or November 30, 207, if the renewal option contained in the Ground Lease is timely and properly exercised) or (y) after a. casual , or condemnation where the improvements are not reconstructed, and provided Space Lessee attorns to Lan lord, the Space Lease shall continue in full three and effect, notwithstanding !such termination of the Sub-Gro nd Lease, as a direct space lease between Landlord, and Space Lessee for the remainder rider of the tern of the Space . ease, without the necessity of executing a new space lease, and on the saute terms and conditions as are in eftet: r 'icier the Space Lease immediately preceding the termination o'fthe Sub»»Caround Lease, 20 ».,by and between mint and Space Lessee ('the "apace of the SkyHigh Phase, which portion is designated as the and made a. pout: bore 'f, for an initial term of years options to retie thereafter for , , years each.] 3, Arty notices, oo11sa11ta, approval', submissions, demands or other .corn.aa1tnhieations (hereinafter collectively referred to a, "Notice") given under ais Agreement shall be in writing. Unless o'therwhm required by law or governmental regulation, Notices shall be deemed given if start by registered or certified mall, return receipt requested, postage. prepaid (a) to Landlord, at tl ' address of Landlord as bere1nab'ove set forth or such other address as Landlord may designate by notice to the oth >r parties hereto, (b) to ,Space Lessee, then in duplicate under separate cover, one ropy to and. one copy to ,„.,,„ of such other addresses of persons as Space Lessee may designate by Notice to the other iparties hereto, Delivery by nationally recognized overnight courier service or by hand delivery, with all charges prepaid, may be substituted for registered or cet'diled mail, All Notices shall be deemed served or given on the date received (as evidenced by the return receipt or courier's receipt for delivery) or the date delivery was refused or unavailable due to art unnoticed change of address. Exhibit C 4, No modification, amendment, waiver or release of any provision of this Agreement or of any right , obliption, claim or pause of action arising hereunder shall 'be valid or binding for any purpose whatsoever unless writing and duly executed by the party aR,,ainst whom the skTme I.s sou ht to ba ttss(;a.'terl, 5. This Agreement &.all run with the Demised Premises and be Kan upon and shall Inure t.! the benefit of the parties hereto and their respective heirs, legal representatives, successors, assigns and subleases. i5, Either party }nay record a copy of this iristrutllon't among the Public Records of l'vlitu 1-Dade County, Florida, at its oast. Balance of page is intentionally blank Exhibit Ca JJ�( WITNESS WHEREOF, Landlord has caused this Sub.Cround Lease Non -Disturbance Agre mw t between Landlord and _... to 'be execrated under seal the date first above written. WITNESSES:c BAYSME MA1:ti(ERPLACE, to Delaware 11m1 liability company i?ly; Print 'Nome: Prints 'J."irle: Print Novae: STATE OF CouN'rYop 1 SS [SEAL] The foregoing instrument wni acknowledged before nee; this day a 20 by OS of B yside ar'ICstplaoe, LLC, in the capacity atorestaatecl; such person is personally known to me, Sign Nanac; Print Name: Notary ,Public My Commission Expires s Serial No, (none LC' blank):,_ [NOT RIAL SEAL) Exhibit ( IN WITNESS WHEIt.E0F, Space Lessee has caused this Sub -around Lease 1\ton.Disturbance Agreet ent between to be executed Under seal the date first above written, WITNESSES : . By: Print NRM1:1; Print. Name: Title: Print Name.: STATE OF ) ) SS.: COUNTY OF ) [SEAL] "rile .foregoing instrument MS acknowledged before me this day f , 20 , by h he capacity fiTorestaed; such person is persontilly' !mown to me, Sign Name: Print Name My Commission Expires: Serial No. (none blank):., NOTARIAL HAW Exhibit a NOUllY Pubilo Exhibit A to Ground Lease Recognition and Non -Disturbance Agreement Legal Description of Demised Premises (including appurtenant easements) Parcel 1 (Retail Sub -Lease): A Sub -Leasehold interest created by the Sub -Lease from Bayside Center Limited Partnership, a Delaware limited partnership to SkyHigh Miami, LLC, now known as yRise Miami, LLC, a Florida limited liability company, dated March 29, 2013,as Memorandum of which is recorded , in Official Records Book , Page , of the Public -cords of Miami -Dade County, Florida, subject to the terms and provisions contained then: in, demising the following described parcel of land: Commence at the Northeast corner of Block 61 North of the A,L. Knowlton M recorded in Plat Book "B" at Page 41, of the Public Records of Miami - Dade thence run North 89°58'18" East along the Easterly prolongation of the No Block 61 North of said A.L. Knowlton Map of Miami for a distance of 703.4 thence run South 00°08'11" West for a distance of 100.00 feet to a poin with the South line of Port Boulevard as recorded in Official Records Boo 240, of the Public Records of Miami - Dade County, Florida; said point, Beginning of the parcel known as Property "A" (A.K.A. Retail Parcel) h thence run South 00°08'11" West for a distance of 181.09 feet to a p 89°51'49" East for a distance of 23.83 feet to a point; thence run So a distance of 41.50 feet to a point; thence run North 89°51'49 Wes feet to a point; thence run South 00°08'11" West for a distance of thence run South 89°51'49" East for a distance of 23.83 feet to a 00°08'11" West for a distance of 41.50 feet to a point; thence ru a distance of 179.58 feet to a point; thence run South 00°08'11', 25.00 feet to a point; thence run North 89°51'49" West for a di point of intersection with a line 210 feet Easterly of and wall of Biscayne Boulevard (North); thence run South 16°51'29" E the city monument line for a distance of 57.78 feet to a poin 210 feet Easterly of and parallel with the city monument lin distance of 139.74 feet to a point; thence run South 89°5 feet to a point; thence run South 56°58'03" East for a dis thence run South 65°50'46" East for a distance of 470.5 intersection with the West line of the Baywaik Area as July 16, 1985, and filed July 31, 1985, under Clerk's F' Records of Miami - Dade County, Florida; thence run line of said Baywalk Area for a distance of 148.28 fe Warranty Deed, said point bears South 57°16'29" U.S. Army Corp of Engineers Station BFP-1, said bulkhead; thence run South 85°27'43" East alon p of Miami, as ounty, Florida; herly line of feet to a point; of intersection 6811, at Page eing the Point of reinafter described; int; thence run South th 00°08'11" West for for a distance of 23.83 74.50 feet to a point; oint; thence run South North 89°51'49" West for West for a distance of tance of 157.27 feet to a with the city monument line st along a line parallel with ; thence continue along a line South 09°33'21" East for a 49" East for a distance of 140.96 ance of 604.49 feet to a point; feet more or less to a point of escribed in the Warranty Deed dated e No. 85R-231126 of the Public orth 27°13'14" East along the West t to a point designated PL-14 in said est and Is 77.25 feet distance from a tation being a chiseled "X" in a concrete the North line of said Baywaik Area for a distance of 49.24 feet more or Tess to a point of intersection with a line 65,00 feet Northwesterly of the Metropolitan Dade Count Bulkhead line as recorded in Plat Book 74, at Page 18, of the Public Records of Miami - rade County, Florida; thence run North 27°17'27" East along said line parallel with e Metropolitan Dade County Bulkhead line for a distance of 276.54 feet, to the Point of Beginning (POB), of a tract of land to be known as "Sky High Miami" thence continue aforem= tioned bearing of North 27°17'27" East for a distance of 437.78' to a point of intersection with the existing bulkhead of the Miamarina; thence run North 40°20'40" West along :aid existing bulkhead for a distance of 185.10 feet to a point of intersection in the existing •ulkhead; thence run South 27°12'22" West for a distance of 508.47 feet to a point, the ce South 62°47'38" East for a distance of 170.43 to the Point of Beginning (POB). Parcel 2A and Parcel 2B and Parcel 2C (Easement): A non-exclusive easement for ingress and egress over and across the following describ lands, being a portion of the "Retail" parcel leased by the City of Miami, Lessor, to Ba ide Center Limited Partnership, Lessee, by that certain Amended and Restated Lease da -d October 15, 1985, a Memorandum of which was recorded in October 29, 1985, in • icial Records Book 12684, Page 157, as modified by Memorandum of Modification of Lase recorded in Official Records Book 13492, Page 3199, and Agreement recorded i Official Records Book 13849, Page 907, and in Official Records Book 17939, Page 102•, and in Official Records Book 22060, Page 2591, subject to the terms and provisions ontained therein, of the Public Records of Miami -Dade County, Florida): 2A: AS SHOWN ON ATTACHED SKETCH OF PROPOSED EASEMENT PARC S PREPARED BY SCHWEBKE-SHISKIN & ASSOCIATES, INC., LEGAL DESCRIPTION TO B PROVIDED AND INSERTED HERE, 2B: AS SHOWN ON ATTACHED SKETCH OF PROPOSED EASEMENT PARCELS PREPARED BY SCHWEBKE-SHISKIN & ASSOCIATES, INC., LEGAL DESCRIPTION T• BE PROVIDED AND INSERTED HERE. 2C. As shown on the attached drawing as Parcel 2C Parcel 3A: A non-exclusive easement for ingress and egress to benefi Parcel 1 from the United States of America to (the Proposed Insured Owner) recrded in Official Records Book , Page , and subject to the terms and provisiohs contained therein, described as follows: LEGAL DESCRIPTION TO BE PROVIDED AND INSERT HERE, Parcel 3B: A non-exclusive easement to benefit Parcel 1 fro ;`i the City of Miami, a municipal corporation of the State of Florida to ( e Proposed Insured Owner) recorded in Official Records Book , Page , sub'-ct to the terms and provisions contained therein, shown as the attached drawing as Pa cel 3B. Parcel 4 (Easement): The non-exclusive right, privilege and ea ement to use the pedestrian pathways and the pedestrian/vehicular access roads from ime to time made available for pedestrian and vehicular ingress and egress to and fro the Demised Premises to the public streets to which such pedestrian pathways and edestrian/vehicular access roads connect, and the non-exclusive right, privilege and ea ement to use such areas from time to time used for the parking of'vehicles over the "R ail" parcel leased by the City of Miami, Lessor, to Bayside Center Limited Partnership Lessee, by that certain Amended and Restated Lease dated October 15, 1985, a Memorandum of which was recorded in October 29, 1985, in Official Records Book 12684, Page 157, as modified by Memorandum of Modification of Lease recorded in Official Records Book 13492, Page 3199, and over the "Garage Parcel" leased by the City of Miami, Lessor, to Bayside Center Limited Partnership, Lessee, as set forth in that certain Lease dated January 14, 1985, a Memorandum of which was recorded November 4, 1985, in Official Records Book 12690, Page 159, as modified by Memorandum of Modification of Lease recorded in Official Records Book 13849, Page 1004, and as said Lease(s) are affected by the Agreement recorded in Official Records Book 13849, Page 9 and in Official Records Book 17939, Page 1026, and in Official Records Book 22060, Pa e 2591, of the Public Records of Miami -Dade County, Florida, the aforementioned non- exclusive easement rights being set forth in the Sub -Lease, a Memorandum of which s recorded in Official Records Book , Page , subject to the terms and prov sions contained therein. Sfitatn 3ER, Exhibit B to Ground Lease Recognition and Non -Disturbance Agreement Description of Approved Plans DRAWING INDEX SKYRISE MIAMI SCALE 11-3 b. ft P SHEET NUMBER DESCRIPTION ARCHITECTURAL. r0.000 COVER O.C61- DRAWING INDEX 0.0b2 GENERAL NOTES 0.003 .._...._---_.._.-._ ___....._- SITE PLAN � ---. _._,.._.-.-.....,_ —._._.,..-...Tra A1.10b BASEMENT LEVEL PLAN._._.._ __ A1.101tv1 LEVEL1 PLAN A1.10-2 LEVEL jM PCATI _.-_._.._.-•---_—___._.--__- ..--•----•---______ . __ 1 '6^ l7f it A1.103 LEVEL 2 P-aN•- 1/16" Al. 04 LEVEL 4 PLAN -_.._.._.....__-._.___BASEMENT 1/16" • 0 A1.201 LEVEL PLAN (PART A) 1/8^_ 1.202 BASEMENT LEVEL PLAN (PART 8) , A .203 __..._ ____-----._ BASENIENTLEVEL P N (PANT c)_.._._,____._-. ._ _ __..-----1/8° 1/8" . + A .204- __ LEVEL A1.205.__ _-.LEVE A1.206 LEVEL — - 1 PLAN (PART AL PLAN AfiYB__..._._._-____._.___ - ....__.__. --- .__ _ 1 PLAN (PART_-__... _..---,-.------_____ 1/8" //6" 1L88" 1/8°_ .478• 1/8' 1/8"_.__ 1I _—..-• a A1.207 LEVEL ...._._....__-____......_..._..-ENEL- 1 M PLANSPART A) _ _ ,_ • A7E68 Al - """"-"__-•LEVEL T.-2'1-0 ._._.._.-_.------ LEVEL2TL�(FANTAIL Ai.17 " _......._...______-.__LEVEL ATZ-2 --___._-_._-..--.-_ LEVEL A7.213 _.._......•___. ___. .LEVEL -__...._.___. ____._._. 1 2 2 3 M--NI M PLA._.TPART PLAN (PART PLAN(PART PLAN (PARTA) (PAR7Dj CL L. _ ._.__ ._..-..._. --7-- -V El) __ C)._ - - —_ _._-._..___..-___._—.--______..,1/6. •'— . WM:1 ______ LEVEL 3 -_- - PLAN (PART 0} _ _ 1/8° 1J$" _ e~ - s A1.215 L V8L 3PLAN A1.2TE _.._.__.-_. .._.__ _ __LEVEL 4 _._.0 (PART C) __.--L/B' PLAN (PART AY 1_217 — _-- LEVEL PLAN (PART,EL 1/8" 1J8" 1/8" a r _ • A1.218_, LEVEL 4 A1,21$ _.._...-_.______.....- LEVEL 5 PLAN (PART C) PLAN _ _.__.,__ _ _ .___-. A1.2 LEVEL 6-11 PLAN - EMERGENCY ACCESS LEVELS 1/8" 0 A1.221 _ - - --LEVEL Al 222 LEVEL Al.a3- "------._ LEVY'131 A1,2 - ._._...._...---_ _----LEVEL A1225-.__._.-_..__.___- -.-LEVL A1.226 LEVEL -Altar ..._.---....__LEVEL A .228 _LEVEL A•1••'229"____...__._..___..._..____.CEVEL18'ROO( A`.230.._. LEVEL A .231 LEVEL 1232_.-.._.. LEVEL 6-11 ROOF 12 PLAN • TAtJ - 14-P-LAN • 15 P1) Jf-`-51'Rl1C1URICTRIViCE'_,_-_-_..., 16 PLAN • 1/FLAN _OBSERVATI-QNDECK 18 PLAN - PLAN PLAN = 20TLAtJ 21 PLAN-u.ERVIQ _( PLAN _ EMERGENCY ACCE38 LEVELS / GKYJl1MPT"__ _- _ _ __-.____. _ —. _ -.. FLYING THEATRE ELIDE MENT FLYING THEATRE OBSERVATIONDECI(:_.- ..._.._..__._..._..-__.__ OBSERVATION DECK -_ __..__...___.....__.-._...____.._.1/84 MEETING- iO�l�5___.......-_.....� ......_..._ _...-_m__.... .,___._... BALLROOM _._.__._..-.. / S'E EHUCTURAL 1 1/8, 1/8" .__ 1/8" 176-_ . 1/8' 17A".. 1J8° . �%8^ ._....._*.. 178" j/8"_ 1/6°_ 1/8n _i�". F4-p'- 1/8" ie a ' _._ �.._. a l a • • . * +r —_-__._ _ _ __ A1.233 LEVEL 22 PLAN • NIGHTCLUB / AL 234 - —` LEVEL 23 PLAN - LUXURY RESTAURANT , Afi:235'-----_..____.._.___'LE�VEC2'�"fsLA-N"= rA1136 LEVEL A1_237 --.._ LEVEL A1.230 LEVEL VIP Oha' ERVIiT(ONdI:s`°I(_... ____,__ _— . 25 PLAN • VIP PREMIUN4CLUD- —•. 25 MRZANINE PLAN / LEVEL 33 - ELEVATOR MACHINE R_QQM 26 ROOF PLAN - ELEVATOR NTACHINE ROOM 1 1/8" 1/8^ rt i 1/8° _Y/32- • _ A3i.- "_.._.___..._.____.,• NORTH AND EAST ELEVATIONS -____._._. A_a.d7 SOUTH ANC WEST ELEVATOO •a1 ENLARGED PODIUM EAST Fg1 EVATION A'r.P02_..,, ._____._,.,. _-ENLARGED TOP OF TOWEL{ EA-B ELEVAVOtN -_____ 1/16' 1l1B" _..._. r .. A3.203_ ENLARGED PODIUM SOUTH ELEVATION _._ T-`"-- 1/8" 1r76" s . _. 3.204 ENLARGED TOP OP TO ER GOI�TH ELEVATION - A3.205 ENLARGED PODIUM N' RTH ELEVATION 1/8" a A3.206 ENLARGED TOP OF TOWEF1 NORTH ELEVATION 1 1/16' 1/32" 1/16" a _ - • i A4101 NORTH • SOUTH OnoN 02 �_ ..._.._ P./VW:WEST 8-E - 710N' ._»_ _ --.- - -_ __-_----..-._-.._._.-..-_. --_..__.—... ^-^T%32" A4.2b9-_-..-____........____. _PgDIUNSECVN Exhibit C to Ground Lease Recognition and Non -Disturbance Agreeme t SUBLEASE RECOGNITION AND NON -DISTURBANCE AGREEM `r NT THIS AGREEMENT, made as of the day of , 0_, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the St e of Florida, whose address is ("La lord") and , having its principal ("Space Lessee) . A. Landlord is lessor under that certain lease (the "Ground Lease") with Bayside /° Marketplace, :LLC, a Delaware limited liability company ("Ground )enant"), successor by merger to Bayside Center Limited Partnership, a Maryland limited partnership, as lessee, dated October 15, 1985, as amended by First Amendment dated August 19,/1986, Second Amendment dated November 24, 1987, and Third Amendment dated April 15, ,1993, which demises certain real property (the "Premises") commonly known as Bayside, locatd in Miami, Florida. A short form of the Ground Lease was recorded in Book at Pag of the Public Records of Miami -Dade County, Florida. B. Ground Tenant sub -ground leased a part of i lessee's interest under the Ground. Lease to SkyRise Miami, LLC, a Florida limited liabilty company ("Sub -Ground Tenant") pursuant to that certain Sub -Ground Lease (the "Sub -Ground Lease") dated March 29, 2013, which portion is more particularly described on Exhibi /A attached hereto and made a part hereof (collectively, the "SkyRise Phase"). A short form f the Sub -Ground Lease was recorded. in Book at Page of the Public Records of iarni-Dade County, Florida. C. Pursuant to a Ground Recognitio Agreement between Landlord and Sub -Ground. Tenant, the term of the Sub -Ground Lease is < oterminous with the term of the Ground Lease, including all available renewal options (the , round Lease has a current term that runs through i with options to extend to term through ), whether now existing or hereafter granted and whether or not eXercised, and the Sub -Ground Lease becomes a direct lease between Landlord and Sub-Groud Tenant if the Ground Lease naturally expires prior to the natural expiration of the Sub -Ground Lease. D. Pursuant to a Lease d‘ted as of , 20_, by and between Sub -Ground Tenant and Space Lessee (the "Space Lease"), Sub -Ground Tenant leased to Space Lessee a Exhibit D - 12 / office at portion of the SkyRise Phase, whichportion is designated as the "Demised Premises" on Exhibit B annexed hereto and made a part hereof, for an initial term of years (commencing provided in the Space Lease), with options to renew thereafter for years each. NOW, THEREFORE, it is agreed as follows: 1. For so long as Space Lessee is not in default of any of its obligations u «er the Space Lease beyond any applicable .notice and cure periods as would permit Sub-Grou d Tenant to re-enter the Demised Premises and/or terminate the Space Lease, Landlord shall n disturb or deprive Space Lessee in or of its possession or its rights to possession of the Denied Premises or of any right or privilege granted to or inuring to the benefit of Space Lessee finder. the Space Lease, nor will Landlord bring any action against Space Lessee to accomplish s me. 2. If the Ground Lease (or the Sub -Ground Lease, to the exte t it has become a direct lease (such direct lease being in replacement of or substitution f r the Ground Lease) between. Landlord and Sub -Ground Tenant) terminates for any eason other than on (or such later date as the Ground Lease or Sub-Grou Lease may terminate as referenced in Recital C above), and provided Space Lessee attorns to Landlord (which it shall only do if the Sub -Ground Lease has also terminated), the Spac Lease shall continue in full force andeffect, notwithstanding such termination of the Gro d Lease (or the Sub -Ground Lease, to the extent it has become a direct lease between Land1 rd and Sub -Ground Tenant), as a direct space lease (such a direct space lease would be in re lacement of or substitution for the Ground Lease) between Landlord and Space Lessee for t remainder of the term of the Space Lease, without the necessity of executing a new spa e lease, and on the same terms and conditions as are in effect under the Space Lease ' ediately preceding the termination of the Ground Lease (or the Sub -Ground Lease, to the e ent it has become a direct lease between Landlord and Sub -Ground Tenant), 3. Any notices, consents, approvals, submissions, demands or other comununications (hereinafter collectively referred to as "Notice given under this Agreement shall be in writing. Unless otherwise required by law or gover ental regulation, Notices shall be deemed given if sent by registered or certified mail, return eceipt requested, postage prepaid (a) to Landlord, at the address of Landlord as hereinabove t forth, with a copy to City of Miami Public Facilities Director, 444 SW 2nd Av., 3rd Floor, iami, Fl. 33130-1910, or such other address as Landlord may designate by notice to the otherrties hereto, (b) to Space Lessee, then in duplicate under separate cover, one copy to and one copy to or such other addresses o persons as Space Lessee may designate by Notice to the other parties hereto. Delivery r,y nationally recognized overnight courier service or by hand delivery, with all charges pre aid, may be substituted for registered or certified mail. All Notices shall be deemed served o given on the date received (as evidenced by the return receipt or courier's receipt for deliver! or the date delivery was refused or unavailable due to an unnoticed change of address. 4. No modification, amendment, waiver or release of any prov. ion of this y right,g Agreement or of an y obligation, claim or cause of action arising hereunder fall be valid or binding for any purpose whatsoever unless in writing and duly executed by he party against whom the same is sought to be asserted. 5. This Agreement shall run with the Demised Premises and e binding upon and shall inure to the benefit of the parties hereto and their respective hei , legal representatives, successors, assigns and subleases. 6. Either party may record a copy of this instrument aong the Public Records of Miami -Dade County, Florida, at its cost. Balance of page is intentiona y blank IN WITNESS WHEREOF, Landlord has caused this Sublease Recognition and No Disturbance Agreement between Landlord and to be executed under sea the date first above written. co ourrence - s• WITNESSES (as to City Manager and City THE CITY OF MIAMI, a/ municipal Clerk): corporation of the State of Florida By: By: Print Name: Print Name: Title: Witness Title: City Manager By: Print Naine: Title: Witness APPROVED AS TO FORM ATTEST: AND CORRECTNESS: By: By: Print Name: Print 1 ame: Title: Title. City Clerk STATE OF FLORIDA ) SS.: COUNTY OF MIAMI-DADE The foregoing instrument was ackn.o edged before me this day of , 20__, by , the City Manager, and , the City Clerk, of the ity of Miami, a Florida municipal corporation, in the capacity aforestated; each such person is personally known to me. Sign Name: Print Name: Notary Public My Commission Expires Serial No. (None if blank.): [NOTARIAL SEAL] IN WITNESS WHEREOF, Space Lessee has caused this Sublease Recognition and Non - Disturbance Agreement between to be executedunder seal the date first above written. WITNESSES: By: By: Print Name: Print Name: Title: Witness Title: By: Print Name: Title: Witness STATE OF FLORIDA SS.. COUNTY OF MIAMI-DADE [Entity Seal] The foregoing instrument was acknowledged before me this day of 20_, by as of in the c.,pacity aforestated; such person is personally known to me. My Commission Expires: [NOTARIAL SEAL] Sign Name: Print Name: Notary Public Serial No. (None if blank): MIAMI 3618280.12 71982/40643 EXHIBIT "F-1" INSURANCE REQUIREMENTS FOR SUBTENANTS I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,0 Personal and Advertising Injury $1,000, 00 Damage to Rented Premises $ 10►000 B. Endorsements Required City of Miami listed as an additional insured Contingent Liability & Contractual Liability Premises & Operations Liability Additional Insured Endorsement required Primary and Non Contributory Liab' y II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property D mage Liability Combined Single Luuit Any Auto/Owned Autos cheduled Including Hired, Borr• ed or Non -Owned Autos Any One Accident $1,000,000 B. Endorsements Requ d City of Miami sted as an Additional Insured III. Worker's Compens , ion Limits o.` Liability Statute y-State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit :iv. Business Personal Property Subtenant shall maintain and afford coverage for business personal pro uerty, including leased hold improvements subject to special form causes of loss (All Risk) inclu• g wind and hail with a valuation option of replacement cost, including coverage for business terruption, loss of income and extra expense coverage on an actual loss sustained basis, or alternate coverage form, covering the interruption or suspension of business operations, the -cessary extra expense incurred, and any loss of income with consideration to the continuatioi of all normal charges and continuing expenses, including continuing expenses acquired throug contractual obligations, and payroll resulting from a covered cause of loss. Subtenant shall als• maintain in place coverage for flood insurance, if applicable. V. Liquor Liability (to the extent Subtenant serves li oar A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami listed as an additional insur d The above policies shall provide the, ity of Miami with written notice of cancellation or material change from the insurer not less an (30) days prior to any such cancellation or material change, or in accordance to policy prov'.ions. Companies authorized to d business in the State of Florida, with the following qualifications, shall issue all insura e policies required above: The company must be r ed no less than "A" as to management, and no less than "Class V" as to Financial Strength, b the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates o insurance are subject to review and verification by Risk Management prior to insurance approv Subtenant shall make available, and provide the City upon request, with copies •f all insurance policies, including any and all applicable endorsements. EXHIBIT "F-2" 'INSURANCE REQUIREMENTS FOR TOWER CONSTRUCTION SkyRise shall maintain or cause its contractors and subcontractors to maintain e insurance coverages outlined in this exhibit. With the exception of professional liability insurce, which may be written on a claims -made basis, all policies shall be written on an occurrenc:- basis and be issued by companies lawfully authorized to write insurance under the laws of the .state of Florida, including an authorized surplus lines insurer. Each insurer shall have a curre financial strength rating of not less than "A-" VIII as assigned by A.M. Best, or equivalent ratg assigned by a similar rating agency acceptable to SkyRise. I. OCIP/CLIP/Traditional General Liability COVERAGE A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence/Aggregate B. Endorsements Required City of Miami listed as an additional insure Developer listed as an additional insured Completed Operations 10 Years or Slat e of Repose Employees included as insured Contractual exposures Waiver of Subrogation in favor of ty of Miami and Developer Premises/Operations liability Explosion, Collapse and Underg und Hazard Loading a + Unloading Mobile Equipment (Contractors quipment) whether owned, leased, Borrowed, or rented b the contractor or employees of the contractor (not applic, .le if OCIP — property damage to contractors equipme would be covered by each individual contractor working .. -site. If a contractor's mobile equipment causing third party property damage while working on -site, the OCIP coverage co ,, ld apply). Terrorism Coverage eluded II. Business Automobile Liability (t r' the extent applicable) $ 5 ,000,000 A. Limits of Liability Bodily Injury an . Property Damage Liability Combined Sin!: e Limit Any Auto Including Hir-d, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required. i City of Miami included as an Additional Insured Developer listed as an additional insured III, Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, eachemp oyee $1,000,000 for bodily injury caused by disease, policy t IV. Umbrella Policy A, Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 15,000,000 Aggregate $ 15,000,000 City of Miami and Developer listed as an add' ional insured. - Umbrella insurance above only pertains . s to excess limits for the auto insurance maintained by the owner. VI. Lead Design Professional Liability/Er or's & Omissions Primary Limit VII. Builders' Risk $5,000,000 Causes of Loss: All Risk -Spec', c Coverage Project Location Valuation: Replacement Cost Deductible: $100,000 All of er Perils 5% Wind & il, Earthquake and Flood City of Miami & Developer listed as an additional insured/Loss Payees The above policies shall provide the City of Miami with written notice o cancellation or material change .from the insurer not less than (30) days prior to any su cancellation (10 days in the case of non-payment of premium). EXHIBIT "G" SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT This Second Amendment to Minority Participation Agreement (this "Amendm made and entered into this day of , 2014 ("Effective Date") by and the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and MARKETPLACE, LLC, a Delaware limited liability company, successor by merger Center Limited Partnership ("Developer") WITNESSED WHEREAS, City and Developer ent Agreement dated as of January 14, 1985, as Minority Participation Agreement dated as of;; certain Release and Settlement Agreement "Minority Participation Agreement") setting minority participation in connection with the t") is etween AYSIDE o Bayside ered ait,;s`=tl>atcertain Minority Participation ain o e'd by tha ;:certain Fir t Amendment to fiber 17, 1985 •aid £urthr amended by that as of December 08 (collectively the fo :th Developer's oblig'`.`` .ions with regard to de e:Ia m n _, of the pro, ect `l ;own as Bayside Marketplace and formerly known as>`ysde Specialty' WHEREAS, concurrently with' that certain Fourth Amendment to Amended an which provides for, am6' of things, thextenso certain modifications Retail LieaeAin. e,t. ndm.t.tet,4nt.'. WHEREAS, City <ac Participatioe went as t Definitions er. desire to ainend certa AIIt'caltalized terms in th's'Amendment sh terms in the Moxity Participation A reinent or the time), unless de:%Sj'�."1: d or amend in. this Amend Agreement" shall refertot the IYIriority Participation 2. Foundation COr tti iition. Section 5.3 of the Minority Participation greement is hereby deleted in its entirety and replaced with the following: t, t;tY•SCS eveloper are entering into Agreement (Retail Parcel) .Term of the Retail Lease and nd financial terms of the Minority. 1 have the definitions ascribed to such etail Lease (as amended from time to ent. The term "Minority Participation greement, as amended hereby. Section 5.3 Foundati•;' Contribution. From and after the Effective Date, Developer s all pay a Foundation Contribution in the amount of $350,000 (the "Foundation Contribution") in quarterly installments on the last day of March, June, September and December of each Rental Year during the Lease Term of the 1 Retail Lease. The Foundation Contribution for any partial Rental Year during the Lease Term after the Effective Date shall-_ be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. The Foundation Contribution shall increase each Rental Year by two percent (2%) over the Foundation Contribution for the immediately preceding Rental Year commencing with the first CPI Adjustment Year for Minimum Base Rental, as provided in the Retail Lease Amendment. Notwithstanding theforegoing, shou the Foundation cease to be a 501(c)(3) tac`e;empt organization, the Foundation Contribution shall either )a?l `eti p3aced in an in rest bearing escrow account and paid to thdFounclaon,at such e as the Foundation shall satisfactorily y dve to Deve10 or t t it has qualified as a 501(c)(3) tax- ..Qeip"t organization oz;_;;.„') at the written request of the City,"b}e'::paid to such othe fks, profit ,tt. organization qualified as a 501`(c: (3a tax-e empt organJza%Qn which is reasonably .acceptable to De eIo: 'e ' rid 'ch has imd'a ' and purposes szla . =::fo ::;the Fouri on. ► e Foundation Contribution shall be t e'pn1 ancial obhgat n that Developer sr shall have to the Foundation or sua1 other non erofit organization specifieclT ; ) bgve. The Foundation, k?n ntribut.for the pegq,., prior • the Effective Date shall continue to be paid as provtided in Se onoeMinorityConti ution Agreement; t being understood and agreed th t the Foundation ontril f on for a ie • - riod between January 1, 2014 and the •i•t l``• tit ..u•'. Effective tDate shall`''be based solely on Net °I o xie Available for Distribution for the Retail Parcelfoffmch period. 3. No -Wes. Wherever arnotices required or permitted under the Minority Participation Agreement, such notice s7 al> eon writing. A y notice or document required or permitted to be delivered under the Minot]. ;'articipation A ! eement shall be deemed to be delivered when it is actually received by the designated addres -e or, if earlier and regardless of whether actually received or not, when it is either (i) deposit d in the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or overnight courier service, addressed to e applicable party to whom it is being delivered at the respective address for such party as is et out below, or at such other address as such applicable party may have theretofore specified t the delivering party by written notice: 2 If to City at: City of Miami 444 SW 2nd Avenue, 10n' Floor Miami, FL 33130-1910 Attention: City Manager with a copy to: City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130-1910 Attention: Public Facilities Director 4. Miscellaneous. (a) Each o presently aware of aa other party under they;:, duties and obligations it and Developer here y: ontintiii g, defaults 'b ! reas9n se and that: as of the` late: ethe If to Developer at: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer with a copy to: e Marketplace, LLC neral Growth Prope tocester Street nowle• i. ;sact o executi i eac nority Participation Agreement 0 ers es, Inc. d agrees that neither is ssion on the part of the party has fulfilled all of its date. all- -and gove ed in accordance with the laws Slate of Florida 'Venue in any actions `o`t,proceedinbetween the parties shall be in of the , • Miami -]de, County, Florida In Zxder to expedite such ctions or proceedings the parties knowingly "a voluntarily Waive their'•' i ght to a jury tria 'in any such actions or proceedings. Developer and ty each agree:=to pay their own attorn sfees in connection with any such actions or proceedri (c) This illefit may be executed separate parties hereto in g'dtiarate counterparts, eac all of which shall constitute one and the same insti (d) Each party hereby represents a full right and authority to enter into this .Arne valid document enforceable in accordance wit any number of counterparts and by the of which shall be deemed an original, but ent. d warrants to the other party that (i) it has the merit, and (ii) this Amendment is a binding and its terms. (e) This Amendment shall be • eemed a part of, but shall take precedence over and supersede any provisions to the contrary ontained in the Minority Participation Agreement. Except as modified hereby, all of the provisions of the Minority Participation Agreement, whiq h are not in conflict with the terms of this Amendment, shall remain in full force and effect, and, as modified hereby, the Minority Participation Agreement is hereby ratified and confirmed ' all respects. (f This Amendment shall be binding upon the parties hereto and their resaective successors and permitted assigns. [Remainder of Page Left Blank Ionally] 4 IN WITNESS WHEREOF; the parties have executed this Amendment as of the Effective Date. ATTEST: THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Print Name:Todd B. Hannon Title:City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: By: Print Name: Victoria Mendez Title:City Attorney STATE OF FLORIDA COUNTYOF MIAMI-7I)'`'L.. ) The foregoing instrurx elpt was aek owledged -'beore me this `"=` day o ` , 2014, -};, : ,; b y �:->> ::���,� DWe1 J. Alfonso, t City Manager, and the C' : zof the Czty:.of Miami, a Flo r°: a municipal corporation, in the capaoxty afo es c ; each suc i person�i ;personally known to me By: Print Name:Daniel J. Alfonso Title:City Manager PROVED' ,7f O INSURANC UIREMEN- -Marie She Director, RiskMa agement Sign Na` Print Name: Notary Public My Commission Expiri [NOTARIAL SEAL] Seria o. (none if blank): 5 WITNESSES: BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: By: Print Name: Print Name: Title: Title: By: Print Name: Title: STATE OF ILLINOIS ) )SS,: COUNTY OF COOK The foregoing instrument , owledgeme this day of , 2014, by as of Bayside t, Marketplace, LLC, in the capacity aforesa such peibn'is perso 1y known to me. w Sign Name: Print Name: Notary My Co, 'Won x [NOT'L SEAL] 6 No. (none if blank):