EXHIBIT 

“1” 

 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 1 of 125
1 

2 

/ 

LEASE 

3 ROSS FLORIDA DRESS FOR LESS, L.C. 

4 Palm Springs Mile Shopping Center 

5 Hialeah, Florida 

6 

7 TABLE OF CONTENTS 

8 

9 1. SALIENT LEASE TERLvIS ............................................................................................................................ 1 

10 1.1. Effective Date ......................................................................................................................... 1 

11 

12 

13 

14 

15 

16 

17 

18 

19 

1.2. 

1.3. 

1.4. 

1.5. 

1.6. 

. 1.7. 

1.8. 

1.9. 

1.10. 

Parties/ .'\ddresses ................................................................................................................... 1 

Location Information ............................................................................................................ 2 

Critical Dates ........................................................................................................................... 2 

Lease Term .............................................................................................................................. 3 

Rent .......................................................................................................................................... 3 

Guaranteed Co-Tenancy ....................................................................................................... 3 

Common Area Charge Administrative Fee ........................................................................ 4 

Title Report ............................................................................................................................. 4 

Contents of Lease .................................................................................................................. 4 

20 2. DEFINITIONS OF GENER..l\L APPLIC\.TION ................................................................................ 5 

21 3. GR..A.J."JTS OF LEi\.SE, COMMON AREA USE, E. '\SE.MENTS AND ACCESS ...................... 11 

22 3.1. Lease ....................................................................................................................................... 11 

23 

24 

25 

26 

T -1 

28 

3.2. 

3.3. 

3.4. 

3.5. 

3.6. 

3.7. 

Nature of the Shopping Center ......................................................................................... 11 

Grant of Common Area Use ............................................................................................. 11 

Grant of Utility Easements ................................................................................................. 12 

Utility Rooms ........................................................................................................................ 12 

Site Plan ii.Iterations ............................................................................................................. 12 . 

Dimensions ........................................................................................................................... 13 

29 4. LE.A.SE TER.cvL ................................................................................................................................................. 13 

30 

31 

32 

33 

4.1. Term ....................................................................................................................................... 13 

4.2. Commencement Date ......................................................................................................... 13 

4.3. Ackno,vledgment of Commencement. ............................................................................. 13 

4.4. Option Periods ..................................................................................................................... 13 

34 ::i. CONSTRUCTION A1~D ACCEPTi\.NCE ............................................................................................ 14 

35 

36 

37 

38 

39 

40 

41 

42 

43 

5.1. 

- 0 J ...... 

5.3. 

5.4. 

'.).'.). 

5.6. 

5.7. 

5.8. 

5.9. 

Hinle:ih, Florida 

Landlord's Construction Obligations ................................................................................ 14 

Construction Commencement ................................. : ......................................................... 14 

Completion of Construction .............................................................................................. 14 

Construction Completion Notice ...................................................................................... 15 

Rollover .................................................................................................................................. 16 

Remedies Cumulative ........................................................................................................... 16 

Right ro Cancel. .................................................................................................................... 16 

.'\utomaric Termination ....................................................................................................... 16 

Entry Prior to Delivery Date .............................................................................................. 16 

., ..... ·' - l - 06/08/00 

Projecr :-<o. E000002 

606LJ24. :!210li.6 { ' \.,) 

_,. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 2 of 125
1 

2 

3 

5.10. Walk-Through Inspection and Punchlist ......................................................................... 17 

5.11. Completion of Store ............................................................................................................ 17 

5.12. Acceptance ............................................................................................................................ 17 

4 6. RENT .................................................................................................................................................................. 18 

5 6.1. Minimum Rent ...................................................................................................................... 18 

6 6.2. Percentage Rent .................................................................................................................... 20 

7 6.3. Reimbursements ................................................................................................................... 21 

8 6.4. Other Payment Provisions .................................................................................................. 21 

9 7. COM1vf0N AREA !vlAINTENi\.i'lCE ..................................................................................................... 22 

10 7.1. Landlord's Obligation to Maintain Common l\reas ....................................................... 22 

11 7.2. Tenant's Common Area Contribution ............................................................................. 22 

12 7.3. Landlord's Administrative Fee ........................................................................................... 23 

13 7.4. Security Patrol. ...................................................................................................................... 23 

14 7.5. Trash ....................................................................................................................................... 24 

15 7 .6. Promotional Fund.······································~······································································· 24 

16 7.7. Payment of Tenant's Common Area Contribution, Landlord's ~-\dministrative Fee, 

17 and Security Patrol Costs .................................................................................................................. 24 

18 8. REAL EST_.\ TE T_'\..'\ES _1-\J.'ID ASSESS!vIEN"TS ................................................................................. 25 

19 8.1. Obligation to Pay .................................................................................................................. 25 

20 8.2. Tenant's Pro Rata Share ...................................................................................................... 25 

21 8.3. Exclusions .............................................................................................................................. 27 

22 8.4. Rebates ................................................................................................................................... 27 

23 8.5. Contest ........................................ :-. ........................................................................................ 27 

24 9. INSUR:\NCE ................................................................................................................................................... 28 

25 9.1. · Casualty Insurance ................................................................................................................ 28 

26 9.2. Liability Insurance ................................................................................................................ 29 

27 9.3. Evidence of Insurance ......................................................................................................... 30 

28 

29 

9.4. 

9.5. 

Waiver of Subrogation ......................................................................................................... 30 

Tenant's Right to Self-Insure ............................................................................................. 31 

30 10. UTILITIES SERv1CB.S ................................................................................................................................. 31 

31 11. !vWNTENANCE/REPAIR/ENVIRONMENTAL COMPLIANCE ......................................... 31 

32 11.1. Maintenance and Repair by Tenant ................................................................................... 31 

33 11.2. Maintenance and Repair by Landlord ............................................................................... 32 

34 11.3. Repairs Required by Governmental Authorities ............................................................. 33 

35 11.4. Hazardous Material .............................................................................................................. 34 

36 12 .• -\LTERA.TIOt-;S .............................................................................................................................................. 37 

37 

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39 

40 

41 

12.1. Permitted _-\Iterations ........................................................................................................... 37 

12.2. Communication Equipment ............................................................. : ................................. 38 

13. NON-DISTL'RBA.:.'lCE .-\ND SIJBORD!NATION/ ESTOPPEL CERTIFIC..-\TES ............. 39 

13.1. :>;on-Disturbance and Subordination ............................................................................... 39 

13.2. E>toppe . l Lemticates................................................................................... - . - .. 3° ...................... " 

Hialeah, Florida - ii - \ 06/08/0ll 

Project :--lo. E000002 

6061..324. :?21017.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 3 of 125
1 13.3. Processing Fees for Non-Disturbance Agreements and Estoppel Certificates ......... 40 

2 14. INDEtvrNIFICATION .................................................................................................................................. 40 

3 14. l. Tenant Indemnity ................................................................................................................. 40 

4 14.2. Landlord Indemnity ............................................................................................................. 40 

5 15. l'SE ...................................................................................................................................................................... 41 

6 

7 

8 

9 

15.1. 

15.2. 

15.3. 

15.4. 

Tenant's Business ................................................................................................................. 41 

No Express or Implied Covenant of Operation ............................................................. 41 

Protection .............................................................................................................................. 41 

Prohibited and E..--;:clusive Uses ........................................................................................... 42 

10 16. SURRENDER ............................................................................................................................................... 42 

11 16.1. Condition ofPremises ......................................................................................................... 42 

12 16.2. Continuance of Possession ................................................................................................. 42 

13 17. L-'u'\iDLORD'S WARR,-\J.'\iTY .................................................................................................................... 43 

14 

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17.1. 

17.2. 

17.3. 

Landlord's Warranty ............................................................................................................ 43 

Landlord's Title ..................................................................................................................... 43 

Remedies ................................................................................................................................ 43 

18. QL'IET ENJOThlliNT ................................................................................................................................. 43 

19. ASSIGN:VJ:ENT/Sl'BLETTING ............................................................................................................... 43 

19.1. General .. , ................................................................................................................................ 43 

19.2. Related Entity ....................................................................................................................... 44 

19.3. Stock ....................................................................................................................................... 44 

19.+. 

19.S. 

19.6. 

19.7. 

Release of Liabilitv ............................................................................................................... 44 

Recapture on Assignment or Sublease of Store ......... : .................................................... 44 

Nullity ..................................................................................................................................... 45 

Landlord Notice to Assignee .............................................................................................. 45 

26 20. DEF_-\ULTS/DISPUTE RESOLUTION/ATTORt'\iEYS' FEES .................................................. .45 

27 20.1. Defaults .................................................................................................................................. 45 

28 20.2. Alternative Dispute Resolution .......................................................................................... 47 

29 20.3. Unlawful Detainer ................................................................................................................ 48 

30 20.4. Attorneys' Fees ..................................................................................................................... 49 

31 21. C.ASUALTY ...................................................................................................................................................... 49 

32 

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21. l. 

21.2. 

21.3. 

21..+. 

21.5. 

21.6. 

21.7. 

21.8. 

21.9. 

2l.!O. 

Definitions ............................................................................................................................. 49 

Insured Casualtv ................................................................................................................... 49 

l'ninsured Cas~altv .......................... ~ .................................................................................. 50 

End of Term Cas~alty ......................................................................................................... 51 

Shopping Center Casualty ................................................................................................... 51 

Restoration ............................................................................................................................ 51 

\\'aiver of Statute .................................................................................................................. 52 

Liws ........................................................................................................................................ 52 

Tolling of Term .................................................................................................................... 52 

Effect of Termination ....................................................................................................... 52 

Hialeah. Florida 

I'rojocr :-.lo. E<.lUll002 

6061..32-t 2210!'.".6 

- 111 - .. 06/08/00 

' 

'\ 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 4 of 125
1 21.11. Tenant's Right of First Offer ............................................................................................. 53 

2 22. CONDEf.i!NATION ...................................................................................................................................... 53 

3 22.1. Taking ..................................................................................................................................... 53 

4 22.2. Right to Terminate ............................................................................................................... 53 

5 22.3. Claims ..................................................................................................................................... 54 

6 22.4. Waiver .................................................................................................................................... 54 

7 23. tv!ECHA.i"JIC'S LIENS ................................................................................................................................... 54 

8 24. SIGNS ................................................................................................................................................................. 54 

9 24. l. Governmental "-\pprova! and Compliance ....................................................................... 54 

10 24.2. Building Signs ........................................................................................................................ 55 

11 24.3. Pylon or Monument Signs .................................................................................................. 55 

12 24.4. Temporary Signs ................................................................................................................... 55 

13 24.5. Contingency .......................................................................................................................... 55 

14 25. NOTICE ............................................................................................................................................................ 55 

15 26. GENERAL CONDITIONS ........................................................................................................................ 56 

16 26.1. Partial Invalidity .................................................................................................................... 56 

17 26.2. Relationship of Parties ......................................................................................................... 56 

18 26.3. Time ....................................................................................................................................... 56 

19 26.4. Waiver .................................................................................................................................... 56 

20 26.5. Partial Months ....................................................................................................................... 56 

21 26.6. Consent .................................................................................................................................. 56 

22 26. 7. Gender ................................................................................................................................... 57 

23 26.8. Captions ................................................................................................................................. 57 

24 26.9. Governing Law ..................................................................................................................... 57 

25 26.10. Due "-\uthority ....................................................................................................................... 57 

26 26.11. No Prior ;\greements .......................................................................................................... 57 

27 26.12. Entry by Landlord ................................................................................................................ 57 

28 26.13. Neutral Interpretation ......................................................................................................... 58 

29 26.14. Force Majeure ....................................................................................................................... 58 

30 26.15. Successors in Interest. ......................................................................................................... 58 

31 26.16. Memorandum of Lease ....................................................................................................... 58 

32 26.17. Real Estate Brokers .............................................................................................................. 58 

33 

34 

Hialeah, Florid:1 

Projccr No. EOOOOll2 

6061 . .32411:!HJ1 7.6 

- IV - I ll6/08/00 

I 

' '\ . . , .i ··,. . 

.. :.~ 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 5 of 125
1 THIS LEASE (the "Lease") is made by and between Landlord and Tenant who are 

2 designated in Section 1.2 hereof as of the Effective Date. Landlord and Tenant hereby agree as 

3 fol!ov.rs: 

4 1. SALIENT LEASE TERMS 

5 1.1. Effective Date. 

7 1.2. Parties/ Addresses. 

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1.+ 

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l..2.1. 

1.2.2. 

Landlord: PALM SPRINGS MILE ASSOCIATES, LTD., 

a Florida limited partnership 

Address: 419 West 49th Street, Suite 300 

City /State/Zip: Hi2leah, Florida 33012 

Facsimile #: (305) 821-0921 

Phone#: (305) 821-7111 

Initial Contact >Jame: David Eisenstadt 

Landlord's Ta.'<payer l.D. #: 58-1609315 

Rent payments and duplicates of all notices hereunder to: 

· c/ o Phillips Int=ational Holding Corp. 

-! 17 Fifth Avenue, 3rd Floor 

).;ew York, New York 10016 

Duplicate Notices to: 

Martin L. Forman, Esq. 

Kotite & Kotite, LLP 

805 Third Avenue 

New York, New York 10016 

Tenant: ROSS FLORIDA DRESS FOR LESS, L.C., 

a Florida limited liability company 

.-\ddress: 

City /St:tte/Zip: 

. -\ttention: 

Facsimile #: 

Phone ;¢: 

8333 Central Avenue 

N e<.vark, CA 94560 

Re:il Estate Legal Notice Dept . 

(SlO) 505-4174 

(510) 505-+IOO 

32 fniri..il Cont:tcr. >:.une: G.try Scor.r. 

Hialeah. Randa 

Project ~o. E000002 

6061..3:'.!4. ~tc)t:'.6 

- l - 06/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 6 of 125
1 Tenant's Taxpayer LD. #: 94-1390387 

2 1.3. Location Information. 

3 1.3.1. Shopping Center Name: Palm Springs Mile Shopping Center. 

4 Location: 419 West 49th Street, Hialeah, Florida. 

5 

6 1.3.2. Minimum Leasable Floor Area for Pro Rata Share Denominator: 

7 

8 

9 

10 

11 

12 

13 

(a) 

(b) 

(c) 

(cl) 

Insurance: 1,200,000 square feet. 

(Section 9.2.2) 

Security Patrol: 320, 132 square feet 

(Section 7.4) 

Ta.xes: 320, 132 square feet. 

(Section 8.2.3) 

Landlord's Administrative Fee: 320,132 square feet. 

14 (Section 7.3) 

15 1.3.3. Store _'\greed Size: Approximately 30,936 square feet of Leasable Floor i\rea, 

16 including a minimum of 140 feet of frontage on the Common "'\reas subject to Section 3.7. This 

17 includes the Building only unless the loading dock is both enclosed and exclusive to Tenant. 

18 1.4. Critical Dates. 

19 1.4.1. Tenant's obligation for Minimum Rent and Reimbursements shall commence on 

20 the earlier of (a) ninety (90) days after the Delivery Date, or (b) the date Tenant opens the Store for 

21 business to the public (the "Commencement Date"), subject to modification due to events of 

22 Tenant Delay as described in Section 5.4(b). 

23 (Section 4.2) 

24 

25 1.4.2. Intended Delivery Date: January 15, 2001. 

26 (Article 2) 

27 

28 1.4.3. Tenant's Right to Cancel Date for Landlord's failure to commence construction: 

29 any date which is more than six (6) months after the Effective Date. 

30 

31 1.4.4. Tenant's Right to Cancel Date for Landlord's failure to complete construction: 

32 any date \vhich is more than twelve (12) months after the Effective Date. 

33 (Section 5. 7) 

34 

35 

36 

37 

1.4.5. Automatic Termination Date: 

Hialeah, Florida - 2 -

Project ~o. E000002 

606 t.324/22101 i.6 

June 15, 2002. 

(Secoon 5.8) 

I ()6/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 7 of 125
1 1.5. Lease Term. 

2 1.5.1. Initial Term: From the Commencement Date through the January 31 ne.xt 

3 following the expiration of one hundred twenty (120) months after the Commencement Date. & a 

4 hypothetical example and for illustration purposes only, if the Commencement Date is on 

5 September 15, 2000, then the expiration of the Initial Term shall be January 31, 2011. 

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1.6. 

1.7. 

1.5.2. 

Rent. 

1.6.1. 

Option Periods: Total Number of five (5) year Option Periods: Four (4). 

(Section 4.4) 

Per Sq. Ft. 

f~rY~ Monthly i\.nnuallv 

l'vfinimum: 

(a) Initial Term 

Commencement Date 

through 5th full Lease Year $10.00 $25,780.00 $309,360.00 

6th full Lease Year through 

10th full Lease Year $10.65 $27,455.70 $329,468.40 

(b) Option Periods 

First $11.15 $28,744.70 $344,936.40 

Second: $11.65 $30,033.70 $360,404.40 

Third: $12.15 $31,322.70 $375,872.40 

Fourth: $12.65 ~32,6 l l.70 $391,340.40 

The Minimum Rent amounts above may be adjusted per Section 3.7. 

1.6.2. Percentage Rent Faqor: Two percent (2%). 

Guaranteed Co-Tenancy. 

1. 7.1. Commencement Date Co-Tenancy Requirements. 

(a) Co-Tenant's Name 

(D 

(ii") 

T.J Ma.xx 

\Vurn Dixie Supermarket 

Occupied 

(minimum sq. ft.) 

35,000 square feet 

54,000 square feet 

(Section 6.2.2) 

17 and (b) SL'-i:y-five percent (65%) of the Leasable Floor _-\rea of the Shopping Center 

18 (e.xcluding Tenant from the numerator and denominator of such computation) shall be occupied by 

19 operating retailers including the Co-Tenants specified in Section 1.1. l ("-) above. 

20 (Section 6.1.3) 

Hialeah. Florida 

Project ~o. EOOOOL12 

GG61.324. 22i!Jl7.6 

- 3 -

) 

06/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 8 of 125
1 1.7.2. 

2 

Operating Co-Tenancy Reqi1irements. 

(a) Co-Tenant's Name 

Winn Dixie Supermarket, or another 

supermarket occupying the Wmn Dixie 

Supermarket space depicted on the Site Plan, 

occupying a minimum of 32,400 square feet 

("Suitable Replacement Tenant") 

Occupied 

(minimum sq. ft.) 

54,000 square feet 

3 and (b) 100,000 square feet of Leasab!e Floor Area [e.'<duding Tenant and \Vmn Dixie 

4 Supennarket (or a Suitable Replacement Tenant) from such 100,000 square feet] of the Shopping Center 

5 is occupied by operating retailers. 

6 

7 1.8. Common Area Charge Administrative Fee. 

8 five percent (5%). 

9 1.9. Title Report. 

10 That certain Proforma Loan Policy Report on the state of Landlord's title to the Shopping 

11 Center issued by Lawyer's Title Insurance Company, dated May 18, 2000, and numbered 001087A. 

12 See Section 17.2. 

13 1.10. Contents of Lease. 

14 

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1.10.1. 

1.10.2. 

1.10.3. 

Hialeah. Florida 

Project No. E000002 

606 l.32-l- r 2.:.10 l 7.6 

Pages: 1 - 60 

Sections: 1.1 - 26.17 

Exhibits: 

A 

B 

B-1 

c 

D 

E 

F 

G 

Legal Description of the Shopping Center 

Site Plan 

Adjacent Office Building Parking Area 

Construction Obligations of Landlord 

Prohibited Uses 

.-1.cknowledgment of Commencement 

Non-Disturbance Agreement 

Intentionally Deleted 

H Exclusive Uses 

H-1 T.J. Ma.'<X Waiver 

- .j. - 06/08/00 

' 

-~ 

~ .. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 9 of 125
1 

2 

3 

+ 

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J 

K 

Permitted Ti tie fa:cep tions 

Sign(s) 

Guaranty 

5 2. DEFINITIONS OF GENERAL APPLICATION 

6 Abatement Work. See Section 11.-1.3. 

7 Annual Statement. See Section 7.-1.5. 

8 Building. The structure in which the Store is located. 

9 Building Envelope. Those certain areas designated on Exhibit B within the boundaries of 

10 which buildings may be constructed. 

11 CAM Audit. See Section 7.+.7. 

12 Casualty. See Section 21.1.1. 

13 Commencement Date. See Section -1.2. 

1-1 Common Area(s). Those portions of, and facilities within the Shopping Center which are 

15 intended solely for the common use of the occupants, their customers, agents, employees and 

16 suppliers, such as the parking areas, driveways, walkways, loading zones (whether or not such 

17 loading zones are available for common use) and landscaping, but specifically excluding the whole 

18 or any portion of any building located within the Shopping Center. Enclosed malls are not 

19 ineluctable for purposes of Common _Area Charges hereof unless the Store has a direct customer 

20 door opening onto such mall intended for access of customers rather than emergency egress and 

21 Landlord keeps the mall open to customer access during all ofTenant's operating hours. Any area 

22 which is not enclosed by demising walls, but which is subsr.antially used for the benefit of one 

23 tenant or group of tenant.s such as, for example, those areas sometimes referred to in the shopping 

2+ center industry as "food courts," shall not be considered Common Areas. A "food court" is an 

25 open area of the Shopping Center which accommodates a common seating, serving or service area 

26 for the patrons of two or more retailers of prepared food whose premises are proximate to such 

27 seating, serving or service area. 

28 Common Area Charges. See Section 7.3. 

29 Communication Equipment. See Section 12.2.1. 

30 Control Area. The are:i. so designated on Exhibit B which may not be altered without the 

31 prior express written consent of Tenant. 

32 Co-Tenants. See Section 6. l.3. 

Hi'1leah. Florida - J - 06/08/00 

Projecr >.Jo. EOOl)t)!\~ 

(i!)Ci!.32-1 2211;1-.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 10 of 125
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Delivery Date. Except as provided in Section 24.3, Delivery Date is the first date within a 

Permitted Delivery Period upon which the last of the following occurs (hereinafter "deliver" or 

"delivery"): 

(a) Substantial Completion shall mean completion of all of Landlord's Construction 

Obligations e."<:cept for the Punchlist as specified in Section 5.10, however, the Punchlist items must 

be completed and/or corrected to the e."<:tent required in Section 5.10, lllld, both the following 

conditions are satisfied: CD Tenant is legally permitted to occupy the Store in order to perform any 

work required of Tenant, and (19 Tenant is otherwise able, legally and in accordance with sound 

business practice, to conduct its normal retail operations (including, without limitation, interviewing 

and hiring employees, installing fixtures and equipment, stocking rhe Store with merchandise and 

opening for business to the public) without material impediment arising from incomplete or 

defective performance of Landlord's Construction Obligations; 

(b) Receipt by Tenant of written certification of Substantial Completion from ~~ Landlord's architect subject to Punchlist Items as specified in Section 5.10 hereafter; & 

(c) Receipt by Tenant of written evidence that Landlo'rd's Work has passed final 

inspection by the authority by whom the building permit for Landlord's Construction Obligations 

v:.-as issued and Tenant receives a ~~certificate ofl!~ completion for Landlord's 

Work; 

(d) Receipt by Tenant of a report and certificate from a licensed environmental 

consultant, reasonably acceptable to Tenant, certifying to Tenant that such consultant conducted a 

comprehensive survey of the Store, after the date of the Substantial Completion but not more than 

thirty (30) days prior to the Delivery Date, and that the Store, including, without limitation, the 

walls, ceilings, structural steel, flooring, pipes and boilers (if any), are free of Hazardous Materials 

(including asbestos-containing materials); 

(e) Receipt by Tenant of two (2) fully e.\'.ecuted originals of this Lease, and a 

:\(emormdum of Lease signed by Landlord and Tenant <U1d not:irized so that such :Vfemorandum 

of Lease may be recorded: 

(t) Delivery to Tenant of exclusive possession of the Store with Landlord's and its 

contractors' agents and employees' tools, equipment and materials removed from the Store; 

(g) Electric power is available to the Store; and 

30 (h) The Store has been secured by Landlord from unauthorized entry by those without 

31 a key (an adjacent premises without a store front or store rear or which has any unlocked opening 

32 in its exterior walls sh:t!l be deemed to render rhe Store insecure). 

33 

3+ 

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38 

39 

-10 

::--:otwithstanding mything to the contrary contained in this Lease, and not\vithstanding IDY 

delays in completion of Lmdlord's Construction Obligations due to Force '.'v(ajeure, in no event will 

the Delivery Date be on a date other than during a Permitted Delivery Period (as defined in this 

:\rticle 2). Ifa Force '.'vfajeure occurs and Landlord complies \vith the provisions of Section 26.14, 

the Deliverv Date will be on the first dav of the next Permitted Deliverv Period, and the 

derermin.1ri~n of rhe Commencement Date ;hall be unaffecred .Uld be determined in accordance 

with Section l.-1.1. :\s .1 hvpothetic:t! example and for illustr:trion purposes only, if the Permitted 

Delivery Period expires on June 15. CUld LCU1dlord notifies Ten:mt rhat the Delivery Date will occur 

Hialeah. Florida - 6 - ( 06/08/00 

Project >:o. E000002 5u6l..i2~ 22\•Jl-.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 11 of 125
1 on June 14, but bona fide Force Majeure events delay Landlord's delivery to June 30, the Delivery 

2 Date will not occur on June 30, but will occur August 15, and the Commencement Date will be 

3 calculated from August 15 (i.e., if the Commencement Date is to occur 120 days after the Delivery 

4 Date, then the Commencement Date would be December 13). 

J Environmental Regulation. See Section 11.4.1. 

6 Exempted Discontinuances. See Section 6.1.3(d). 

7 Final Plans. See Exhibit C. 

8 Force Majeure. See Section 26.14. 

9 Full Lease Year. The expression "Full Lease Year" refers to a Lease Year which consists 

10 of twelve (12) complete calendar months commencing on a February 1 and Terminating on the 

11 ensuing January 31. 

12 Gross Sales. See Section 6.2.1. 

13 Hazardous Materials. See Section 11.4.1. 

14 HVAC. See Section 11.1. 

15 Inline Building. The building in the Shopping Center in which the Store is situated and 

16 any other building in the Shopping Center that is not located on an "Outparcel," and which has 

17 more than one (1) tenant with common demising walls. 

18 Insurance Bill. See Section 9.1.4. 

19 Intended Delivery-Date. That date specified in Section 1.4.2. 

20 lnvitee(s). .-\n Invitee shall mean any agent, employee, customer or other entity or 

21 individual who comes upon the Shopping Center property for business or retail consumption 

22 purposes, or to perform services for the occupants of the Shopping Center, by the invitation of any 

23 party who is entitled to grant access to the Shopping Center such as the Landlord, the Tenant or 

24 any other occupant of the Shopping Center. 

25 Landlord's Construction Obligations. The construction obligations imposed on 

26 Landlord by Section 5.1 and described in Exhibit C, also referred to herein as "Landlord's Work." 

27 Leasable Floor Area. .-\11 areas available, or held for the exclusive use and occupancy of 

28 occupants or future occupants of the Shopping Center, measured from the exterior surface of 

29 exterior \Valls and from the center of interior demising partitions excepting that: 

30 (a) _-\ny mezzanines intended to be used for distribution, sale or display of merchandise 

31 to retail customers ("Retail") shall be excluded from the computation of Leasable Floor _'\rea. Any 

32 such mezzanines not intended for Retail shall be excluded from Leasable Floor .-\rea. 

Hialeah, Florida - 7 -

Project ~o. Ell0iltl112 

6061.J:!.1. 221!Jl 7.6 

~\ . 06/08/00 

() " ·:-..., 

' 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 12 of 125
1 (b) In addition, any areas ("Outdoor Areas") which are located whoUy or partially 

2 outside of a building, or which, although located substantially inside of a building, are not bounded 

3 on all sides by exterior walls or a roof, such as outdoor sales, seating, garden or storage areas, or 

4 enclosed truck docks or loading areas, shall be included in Leasable Floor Area if and to the extent 

J that such Outdoor "-'u:eas are available or held for the exclusive use and occupancy of occupants or 

6 future occupants of the Shopping Center, whether or not such Outdoor Areas are clearly delineated 

7 and wherher or not any rental or other charges are paid by tenants with respect to such Outdoor 

8 _-'u:eas. Outdoor _-'u:eas shall, to the extent that they are bounded by walls, be measured in the same 

9 manner as provided above; otherwise, they shall be measured along lines which reasonably delineate 

10 the boundaries of such Outdoor i\reas. 

11 (c) t\ kiosk is a structure of no more than one hundred (100) square feet, set within the 

12 Common Areas and completely surrounded by pedestrian wall..-ways or driveways. Kiosks shall be 

13 includable in Leasable Floor Area. 

14 Lease Year. The first Lease Year shaU extend from the Commencement Date to the first 

15 January 31 thereafter. Subsequent Lease Years shall commence on the foUowing February 1 and 

16 terminate the following January 31, except that the final Lease Year shall terminate on the 

17 expiration or earlier termination of this Lease. 

18 Legal Rate. In the event any rental or other payment due from one party to the other is 

19 not paid when due, or in the event interest is required to be paid under the terms of this Lease, 

20 such rental or payment amount shall bear interest at the rate of the lesser of (a) ten percent (10%) 

21 per annum, or (b) the prime rate per annum quoted by the WaU Street Journal for short term 

22 commercial loans, plus one percent (1 %) per annum, but not in any event exceeding the highest 

23 rate permissible by law which is not usurious. 

24 LFA Minimums. Solely for purposes of calculating Tenant's pro rata share of various 

25 reimbursable costs, the minimum amount of Leasable Floor Area in the Shopping Center agreed by 

26 the parties and set forth in Section 1.3.2. 

27 Minimum Rent. See Section 6.1. 

28 Off-Site Improvements. Public improvements not located within the Shopping Center, 

29 without which the Shopping Center could not reasonably be used for its intended purpose, such as, 

30 without limitation, roadways, offramps, utility lines and turning lanes. 

31 Option. See Section 4.+. 

32 Option Periods. See Section 4.4. 

33 Outparcel. t\ny parcel of land upon which a building is or may be constructed which is 

34 between the Store and :rny street bordering the Shopping Center. 

35 Percenta.ae Rent. See Section 6.2. 

36 Permitted Delivery Periods. t\ny of the following periods, during which the Delivery 

37 Date o<:curs, bur not including crny period of time prior to the Intended Delivery Date: January 15 

Hialeah. Flnrida 

Proiect Nn. EOOtl002 

6061.3:!4: ::!2!1Jl 7.6 

- 8 - { 06/08/00 

:;, 

' 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 13 of 125
..... ._. ... _,. _, ' 1 1 \ uHI'"" I l'\U LHNKt:.L 41:> '.:>:>b 11:0.< I U Lel.<OJ!::JlJ'/lid-6061 p. 03/l 7 

~IJ~ !'!...~::.~ ~ ~·~ r:~T¥ L':;V~LIJ~!·t::n NU. ~~i8 P. 14 

1 thcough l"ebrua:y 15; May 15 th!'ough June 15; or .'\.ugust 15 6cough September 15. These dates 

2 <<=e not subject to •keracicn, no~ithsranding a Force Majeure e-.·em. 

3 Prohibited !i<es. See Section 3.2.2. 

4 Eimchlist. The list of ·.i..-ifinishe.:i construction ite:ns described in Exhibit C which :ire o 

~ put of Landlord's Work, which are insufficiem in ~'-ie awegac<, r.o impede Tor.ant's conduct cf 

G bu.sine.is. 

7 Beco=enceroenr Pate. See Sec::ion 21.2. 

8 Redelixecy Ogre. The las: of the :'olloW:ng ~o occur aner a Casualty or Toking: (a) the date 

9 on u . .rhi.cb. Landlord's uchitec~ or conrraaor ha..,.·ing charge of r!':.e Resi:oracion~ certifies by u:rritte:i 

10 nocic~ to thi: p><ttics t.'i.a.t the Restoration ?..I having been substar>tial!y completed; <i...'ld (b) Tcnar-.r 

ll receives such wnttcr. appro,-..;s to reop.ert for b.:siness as may be r~quird from :i .. -iy governmental 

12 age.-icy. 

13 Bednced Occllpancy Period. See Section 6.1.3. 

14 Rejmh91:<eroenrs. Ten~t's obligation ~o reimb:.:rs: L1.::dlord under th~ pro,·ision; of 

15 Secion• 7..+. , 8.2.1 and 9.1 

16 .&;ru. T~e terms "Rent" or "Rental" shall mear: all Minimc:.m Rent, Percentage Rent, a.nd 

17 Reimburseme.ms which may be di.:e from Tenant to L~~-dlord pursuo.nt r.o r~'lis Le-.ist. 

18 ReqJJiremems. Seo: Seetior: 11.3.2. 

19 Restoration. Sc: Sec!ion 21.1.4. 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

RoofReirnirs. See Se:::ion 12.2.2. 

Seccion Numb,rs_ Iri. rhis Lease, all ref~renct~ 

n1.Jr.i.be::s oi ~hls Le:is~, unless od1eru--ise :ndica~ed. 

to "Sec:ic~,, shall mca..'l the se:::~cn 

Shopping Crng:r. Tb.t cerr.ain real pro?ttoy development with all llppurtenances generally 

describ.oC: in Sect!On 1.3 a~ove, wn;ch is :;o occur on :h<: property described wi:h parcicularicy in 

Exhibit A. 

no ne~ or Temodeled Inline Building except the Adjacent Off ice Building 

3G 

~l ;n. The Site Pia.'l :S the p~-in attached h:re•.o :is Exhibit B. La...,diord <N-:trr;u-.rs thllt 

rr.e Site Phn d pie:; the ShoFping Cc:mer described in Exhibit A •nd that :he bound:i.-ies thereof 

are dd:n<<>:ed ~:~on "-im subs::a."ltial ~ci:ur:icy. Excepting ~he Adj.'l.ccn~ Office Buildi~.g, as that 

cer:n is def.ned on Sec~on 3.2. l below, t.'ie lnline Buildings (l.e., buildings in which mdtiple ~enan'< 

with cor.irno:-~ e:nising 13.i'°a!Ls are ~ocated) depicted .t:tcr~on CO:ltair. o: sha..11 cone«in n~ more: r.hu. 

01~~ (1) sr.ory , u~ ::iezz:i."lines hav~~g Leo.sable Floor A:~:i. no' in excess of one-rh1rd (1/3) of the 

occu~ar1t's grc .d £oar Lel!Sable Floer .".re:i., when nor. used for sdling pu.-poscs, shall be 

?<:nr.1ttd) J.."lC hall I:Q;:e:<ceed ~l:o height of tht ""'"rior e!.vaticn of tho StC>rc on th~ Final Pl;ms 

Ccsc:-ihc:d t:i. Exhibic C. :r"Phe hig:iesr. pcin~ of any e::.;:ti:::::ior td~vatior. of ~nv othc:r n~v or remod~l~d 

bf:ild.ing :r: rbc 7n.cpping Ctn~cr (in~~uding 'l!'chi:ectura: :eatures a:-.d rco.fto? equip:nen:) be~>.·e•"• ~· e ::.iore ~:id '~e read; wb·h1~rri die ~tora• 1r1rl. it,e 'l·.o:o ;..,~ Cenr.er :a~· n~~to: from wh:c.'1 me -El<.Ct. epl:J.<lg the t1.ro Ul. ding, l. ennr~ea: as· "one Story tii~,,. and l.ocated south 

ne ~tore, ', 

Hi.ilo.J-., r::orie• • 9. . /"°.: OGiOB/00 l d06 

r.-"jc<: l ..)2.l./ ;>:o. 

:.z l/) J 

EOO~O~! ':'.~ I 

JI.ii.. <JS ' 03 135 : 2" //

1 \ '.: ~·.:: 

... :!} 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 14 of 125
1 Store has side visibility shall not exceed eighteen (18) feet in height measured from the finished 

2 floor elevation of the Store. 

3 Special Form Policy. See Section 9.1.1. 

4 Store. The Store is that portion of the Shopping Center as delineated, pursuant to 

5 Section l.3, on Exhibit B, having the dimensions and containing the Leasable Floor Area specified 

6 in Section 1.3, including the use of the roof as specified in Section 12.2. 

7 Substitute Rent. Substitute Rent shall mean the lesser of (a) ;'vfinimum Rent, or (b) two 

8 percent (2%) of Tenant's Gross Sales during the preceding month. Substitute Rent, where 

9 applicable in this Lease, shall be paid in lieu of Minimum Rent, Percentage Rent and 

10 Reimbursements. 

11 Support Systems. See Section 11.4.2. 

12 Taking. See Section 22.1. 

13 Tax or Taxes. See Section 8.1. 

14 Tax Bill. See Section 8.1. 

15 Tax Year. The twelve (12) month period used by the ta..o;;:ing authority as the period to 

16 which the Tax Bill applies. 

17 Tenant Delays. Delays in performance of Landlord's obligations caused by Tenant. 

18 Tenant's Work. The work to the Store by Tenant after the Delivery Date necessary for 

19 Tenant to open the Store for business to the general public; or performed at any time during the 

20 Term for the purpose of improving the Store. 

21 Term. References to the Term of this Lease shall include the initial term described in 

22 Section 1.5. l ("Initial Term") and any e..--rtension of such Term ("Option Period"). 

23 Termination Notice. A notice provided by the Tenant to the Landlord not less than 

24 thirty (30) days prior to a proposed termination of the Lease in which the Tenant notifies the 

25 Landlord of its election to terminate the Lease if permitted to do so under any provision of this 

26 Lease. 

27 Third Party Audit. See Section 7 .4.8. 

28 Unamortized Cost. The remaining balance of an original amount expended by Tenant, as 

29 amortized from the date on which such e..-xpenditure was made to the date the balance is to be 

30 calculated as reflected in the books and records of the Tenant for public reporting purposes, at an 

31 interest rate of ten percent (10%) per annum. 

32 Utility Room. See Section 3.5. 

Hialeah. Florida 

Pmiect >:o. EOIJOl)ll2 

606 t.3:!4/ 22!0li.6 

- 10 - ll6/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 15 of 125
1 3. GRANTS OF LEASE, COMMON .UEA USE, EASEMENTS AND ACCESS 

2 

3 

4 

5 

6 

7 

3.1. Lease. 

Landlord hereby leases to Ten:u:t and Tem .. -it horeby :eases from Landlord the Score 

de?i:ti::d on :he: Sir.e Plan, together with .Ul e~emc:t-:s, righr.s and p!'ivil~ges ~ppurtenarn: r:ht::rtto. 0:1 

che :e:ms and conditions set fori±i herein. As " materiol tnducem•nt :and consideration for 

L:i.ndlo"d entering into this Lease, Ross Stores, inc. shall e)(tt."Ute " Gu.~rnr.r.y in the for:n of J. ~ 

:i::t>=hed E"1libit K. j), 

----and (iv) th~ spaces of any existing tenancies ~hose. leases permit "any and all ~ 

8 3.2. ___ Narure of the Shopping Center. lauful uses". er~ 

9 3.2.1. 'R.:rail !Is;:. Ter..:.u:.;:: has entereC i.ito t. :s Leas: lr. reE<mce upor: tt:pre::se:--.. rzt'.Ons , ~ 10 by Land.lo:d that t.'ie Shopping Cenr.er is at'.d shall :em <n ~e:ail !n cha..-;u:t.-r, ~nd, fu;r,-her, chat 

11 po:r.ion of the Shopping Cen:er marked on the Site Pb.n · s the "Res~ct.ed Are~" shat! "o! be used 

12 for office (except (D the space adj::cem to the Store mar ed on rhe Sice Plan as the 'Tnroe Sto::y 

13 CBS" space cont:llning a?pro:cimately i:.'i..irty t:h.ou;:i.'ld (30 000) squ:1ro Feet of Lo:is:ible E'!oor • .\rea 

I~ (re:':!":'ecl :o :is i:.'-i.e "Adjacem Office Building''), (i~ 'ho h alth clinic .idj:cconr. to Picadilly C:ifoieria 

15 no~ (O •>:ceed six tho1.:s:i..-id (6.000) sq1.:..-..re feet of l=;,ble Floor .'\rL't. ;m:d::(iii) ~"Y office use in th< 

16 free .l\.:"1~:i as r~;it t:erm is def.nee! in Secrio:"l 3.6.2 below) 1 or resiCt!r-.ri.i.l ouroCJ$:.=s. or J.S :t t:he:::i.t~:, 

17 audi:-oz-i!.~m. meering hnJl1 school (~xcept if not open 'CO the public ::.nd dor.~ec-;:ed to :t ret:tii usi::), 

churd·. or othe: place of public assembly, "fle:c m;u-ket." gyrno:,..ium. he.:lth dub, d~nce hall. bilb.rd 

or pool h?Jl. r:lassage parlor. video ga.T.e arcade, bowling ;illey, sk~ting rink, c;::r w;\Slo, faciliry for rhe 

sale, disp!~y, teasin.g or repair of mo~or ,_,.ehic!es 1 :iigh~ club or :-~dulo;_ book or ~dulr audio/video 

prod·.=cts. (which. are defined :tS stores ir. which ar. !e:is' 'en percem (JO~'•) of th" inv~nrory is nor. 

a,·:Wa;,le for >ale or rental ro c.'iildren cr:dor firreen (15) years old bec:iu.<c such invenr.o:y e:!:p\icitly 

deili -a:ith er dep\c-:s h..:man seicJ2lir:y). No rcsta\.!r:a..'1: shall be pe::nii::ed in che Re>rric"tl:d Area of 

±e Sh:>ppir.g Center shown on t.'ie Site Flan -u,·ithir. throo hc:ndrcd (300) teer. of r.he from u:all of 

the Srnr<,, cxcep::ing (i) Pic::adilly Cafeteria or oth•r ~estacr-~m op.r::.~crs ;,. the Picc'ldi!ly Cafeteria 

lS 

19 

20 

Zl 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

· · · · s· PL. ,., · "~ · s ,, - · w 1 spac!: =~pictec or. ':ht'. itc i:a.."1.J ·\:11 r.1.t c.xp::.:ision pace tro:tt:....i.g o;i. esc 4n1 .-\\"tnue ·.:.s 

ciepi~~ed on the Sire P?~, ~~ (Lii) th~ spac~~ oc-:upt~:f Oy P:::.p:.:.. Johr:.'s ?i~n ;i..-i.ci W'inn-Di1".i.e 

S:.iperrr.arket.s sr.owr. on the Site Plo.n. 

3,.2.z. Em:ber P~bibirec'. Use<. Laod:orc s..i._hor a.gr:es thai: ,:~cse l.lses which are 

listed in Exhibit D ("Pco'1ibited Uses") shall r.o' be ?ermir:wi in t:.l-te Shopping Cen,er ;ind Tenzn: 

~g:ree' not ::o ongage in such uses. 

3.3. Cir.Int of Common Area t.:se. 

1'"c:na::.r, a:; well .:!.5 ~ts ~rs, employe~. c...is~~mcr~ ~~n<l :nvirec:s. $hn.l! havt ;;,nd is g:..1n~.ed 

nonc::xclttsive znd i..:.ndisn:rbt:d access to> ~c cse of all Com:r.on :\re~ (1'-.er::in·clfter "c:asement''), 

w·hich e:isemen: sha!I be •pp:;rtenan: to the Sto:e and :".Jn with the L:r.d. Lond:ord shall cse 

rc:~..son::.bl!: efforts ~o provH:!e that cffice t~nants :\;1d i:h::1r emp:o~·ees use ;.h~ ".'i..djoic.enc Offic:~ 

B•..1i!ding Park:n,g .. -i.rea.11 marked o:: Exh:bi~ B-! :ns~.ead of ~h~ :i:-ir~ng ;~~:L ,virh.i . .'1 r.he Ccnr.rol 1\re:t 

sl'-.O'l."O on t.\e Site ?laz.~. Ir. no event shall Ter.an(s ::ivitee~· u;:: of C=mmc:-t i\:-c:i.'\ he:: <.:0:1dirior.td 

upor-. P'Yrn~nr. oF pa:ki:ig or o:her charges by Tcnan: orT~~ilr1':'.'s i!·p·f:ees. 

Hlalc:.ih, F.o:id.l 

!'roje<:r :-.:n. 2.f::)c)')C:? 

.<.~.: .~:.1/::. ~1·, l: ~ 

- 1 t - ' ,. CG!L'e!OO 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 16 of 125
1 3.4. Grant of Utility Easements. 

2 Suojec~ :o t.'le reason~ble approval of La:idlord i..s to ioca!:io", '-"d suoject also to ':he 

3 oxisn:ig <ighcs cf cilie< ~•r.~ts. Lar.dlord hereby gr-an:s to Tenar.t the "o'"'"c'.usive right by 

4 ezsc:nie:n-:: to l:is:--a.l~ re?l.a.ce, ma:n~n and use utility conduits se""'ing ~l-ie Sr.ore wjtl-~1n the Shopping 

5 c~nr1~r. 

6 3.5. Utility Rooms. 

7 In the ev~n-: ar.y .-nett:rs, controls o~ cond:wi::s for a.'1y utihty syst.:.m serving th.e S'!:o~I! a:o:e <lt 

8 any dme siri.:ated outside the Score (the "l.Jtili:y Room"), Ten:mt shall at all reaso,,able rimes have 

9 access !C :l::c Utility Roorr. ;l.'1d ·n comro!s and other conJuits d·.erc:n in corn:nor. ";,+, Lmdlord 

JO and o~:ier tena..'1~ :iffe~ed by S\!~h utiby systems. No other p;i .. -ties (other :ha.~ bndlc~c'. and the 

11 oc.l,cr tcna...,rs affected by such utility systems .:rid their contracto,,;, public ucility employees, o.nd 

12 govemmon: inspec~ors) shz.ll have access to me Utilir.y Room at ;my time without the consent of 

13 Ten:mr .. Landlord sh:.ll provide adequate heat and seoJ.ri::y for th~ Urili-:y Room a..,d >he.!! cause the 

14 Utili:y Room to be kept locked at all times. Access '.o r..J.ie Utility Room shul! b< r"srricr.ed to an 

15 exterior entnmce si;:uaced in the re:u w.ll of the building in which ir. is !ocar.ed. 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

3.6. Site Plan Alterations. 

3.6.l. Con:ml Are-a ;ind falir:: B11iidine;;. The Site: Plan is a r.-;;ate:i::.l considc:-J.rio=: for 

T~no.r.: er.-:eting !n:o tbs Lease. No material ch:ing~. :ih=zr.ion, ddeti.:in, or addition shall be mad~ 

~o cr.e Control .-\ro:i on !:he Site Plan noc shal! ~r:y change r~quitin#ci)~rncrnrreconsi::ucrion of a fa Cle 

fro:-:c "-"'!! of ..ny pre:n~es in an Inline Building be made wi,ho;ir. che prior "'!"irren conoe!'lt of the 

T enatt~ whicn cons~nt shall nor. be unre-.sonably 1':ichheld, delayed or condicio,,td. E."<cept as to 

any :"isri"g im;irove:nencs, -:he tops of die roofs (including ;irchi:ec=:ti fo:i::ures) of Olly new or 

r<:!moC:deC: !nlino Si.:ilding. shall not eo(Ceed r,hat of :.'le Store. . Not:"1i t:hs tanding t:h" _above, Landlord 

may make changes in storefronts "1ithout the prior "1ritten consent or Tenant:. 

3.6.2. Corr.moo Arer<. E.."'Ccept in the tnmguh1r -.u-c:;i dir~cdy to :he norr.h of rb.e S~ore 

::s depicted on th~ Site ?h .. "1 :>nd identified as "f'ree ."="ea," and '"cept zs r.o ="• Ourpocn:•I 'cc;"cd 

scud-:. of rhe Sroc~ :i.nd id.entf:ed. o:i :he Sir~ Plan :is "N0r l~~ P4!'~./' L~C.lo:C sh;-Jl no:: m;\k~ (or 

perm!:) any mareria'.. c!iange or :a.l~era:ion to be made in th~ Comr:ion A.!'cas of r.:ie Sho?ping c~ni::er 

outsi::ie :he Control Area u:ecting the config-~ra:ior. of the Common Are:i.s, m~thcds of ingress ar.d 

egress, direct'.on of traffic, lighting. curbi.,g (<xcept th~t L:i...,d!o,d '"lay relocar.e cu=b cuc.s en streets 

other tha.'1 Wost 49"' Sc.reet and Red Roat:) or other alrerarions affec-:ing the visibility of the Swre 

without me e.x?ress prior written cons~nt of the Tenant which cons~nt sbz!! not be :.:nre:isonabiy 

..,,ithheld, del~yed o< condi..ior.ed. 

3.6.3. Buj1d'.ng Em·elope<. No cor.•:r-~cr!on of ar.y bu<idmg, or remodeiing of a 

!iuilding en ~ny O'-'t;ia:ce! "--irhi" &.e R.:srric~ed .'\r~;L rn~y occur except 1.i;irhin ::..:.ie Building 

Env•lop-.s and lirr-.i~eC:: :n Le:<.s~hic Floor :\:ez a:s C::esignat.C on Exhibit B. Accii•iomi.!iy, r.he "ops 

o'" ± r or· o'" · ch 0 • ' b "'d" · j 1 h" 1 • · - • .• :: o .:. • :)l! u .. p·a.rce~ u11 •ng:; 1 1:i.c:-..:<.:.1:i.g ;tr:y :,\:'C 1r.~c:":l..!r:i .. tc::iru~e~ a.:'..d :oo~top 

equtp:-r.enr:, sh:-J! !".or: .:xc~c:d '.:\~~·er.::y-fo\J: (24) fi:~:: ~:1 hci~hr m~:\S~r:d f::Jm ~r:.e f:n:shed floor 

clcv':!.r.ion of thr: s~or::. 

- 12 -

n 

! 

') 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 17 of 125
1 3.7. Dimensions. 

2 Within thirty (30) days following the Substantial Completion of Landlord's Construction 

3 Obligations, Landlord shall cause the Store to be measured and shall deliver to Tenant an architect's 

4 certificate stating the Leasable Floor Area thereof. In the event r.hat the Leasable Floor Area of the 

) Store is less than the size specified in Section 1.3.3 (the "Agreed Size"), Minimum Rent and all other 

6 charges (except Percentage Rent) shall be proportionately reduced and the parties shall set forth the 

7 actual Leasable Floor Area of the Store, the adjusted Minimum Rent and other corrections 

8 necessitated by the adjustment in Store size in the Acknowledgment of Commencement in Exhibit 

9 E hereto. In the event that the Leasable Floor .i\rea of the Store is more than the Agreed Size, 

10 Minimum Rent ond all other charges (except Percentage Rent) shall be based upon the .!\greed Size. 

11 Nothing herein shall be construed as permitting a material varionce in dimensions or area. For 

12 purposes of this Section 3.7, a material variance is ony decrease in the amount of Store frontage set 

13 forth in Section 1.3.3 or any decrease in the Agreed Size by more than one-half ('h) of one percent 

14 (1 %) of the amount of square feet of Leasable Floor .<\rea. Londlord shall simultaneously provide 

15 to Tenont a certificate from the project architect as to the total Leasable Floor .i\rea in the 

16 Shopping Center depicted on Exhibit B. Tenont shall have the right to di;;pute through ii:s own 

17 licensed architect the amounts so represented ond, if so, any unresolved dispute shall be resolved as 

18 provided in Section 20.2. until the amount of Leasable Floor }.rea in the Store and in the 

19 Shopping Center has been finally determined, Tenant may defer payment of Minimum Rent to the 

20 extent of the disputed amount ond the disputed portion of its pro rata share of any charges which 

21 require the use of Leasable Floor i\rea for computational purposes under the terms of this Lease 

22 (e.g., Taxes, insurance and Common Area Charges). 

23 4. LEASE TERM 

24 4.1. Term. 

25 The Term of this Lease shall commence on the Commencement Date and shall expire as 

26 specified in Section 1.5. 

27 4.2. Commencement Date. 

28 The Term shall commence on the Commencement Date as set forth in Section 1.4. l. 

29 4.3. Acknowledgment of Commencement. 

30 Within ninety (90) days after the Commencement Date, Landlord arid Tenant shall execute 

31 a written acknowledgment in the form attached hereto as Exhibit E, and by this reference it is 

32 hereby incorpor:i.ted herein. 

33 4.4. Option Periods. 

34 Tenant shall have the right to extend the Term oft.his Lease (an "Option") for the number 

35 of separate, consecutive additional periods ("Option Periods") which a.re specified in Section 1.5.2, 

36 on the terms and conditions set forth herein, except that the number of Option Periods remaining 

37 to be exercised shall, in e>1ch case, be reduced bv one. If Ten:.U1t elects to exercise an Option, 

38 Tenant shall notify Landlord in writing at least tw~ hundred ten (210) days prio to the expiration 

Hialeah, Florida - 13 - J !)6/08/00 

Projecr >-io. E000002 

61!6 l.324: :!21017.6 

\. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 18 of 125
1 of the Term, or the then current Option Period, as the case may be. If Tenant neglects to timely 

2 exercise any Option, Tenant's right to exercise shall not expire or lapse unless Tenant fails to 

3 exercise such Option within fifteen (15) days after notice from Landlord of Tenant's failure to 

4 timely exercise the Option. If Landlord does so notify Tenant, Tenant shall have the right at any 

5 time within fifteen (15) days after such notice to notify Landlord in writing of either Tenant's 

6 unqualified and irrevocable exercise of its Option, or Tenant's unqualified and irrevocable waiver of 

7 its Option. If Tenant fails to respond within such fifteen (15) day period, Tenant shall conclusively 

8 be deemed to have waived its Option and this Lease shall terminate on the then expiration date of 

9 the Term. 

10 5. CONSTRUCTION AND ACCEPTANCE 

11 5.1. Landlord's Construction Obligations. 

12 5.1.l. Current. Landlord, at its own cost and expense, shall construct and remodel the 

13 Store, strictly in accordance with the terms and conditions specified in Exhibit C, to this Lease. 

14 Landlord shall be responsible for Landlord's Work, and Landlord shall defend, protect and hold 

15 Tenant harmless from all costs, claims, demands and liabilities, including attorneys' fees and 

16 expenses, arising out of Landlord's failure to pay for the costs of Landlord's \'(iork, and claims for 

17 defective work. The obligations of this Section 5.1 are a material consideration to Tenant without 

18 which Tenant would not have entered into this Lease. 

19 5.1.2. Birure. If at any time during the Term, Landlord undertakes the upgrading of 

20 the exterior facades of other inline buildings facing the inside of the Shopping Center, then 

21 Landlord shall be obligated to similarly upgrade the exterior of the building in which the Store is 

22 situated so that the Shopping Center presents a uniform appearance of quality, design and age. 

23 Landlord's failure to meet the provisions of this Section 5.1.2 within sixty (60) days follo-1,ving the 

24 completion of the general upgrading of other buildings in the Shopping Center shall constitute a 

25 material default under the provisions of this Lease entitling Tenant to all remedies at hw, in equity 

26 or under the terms hereof. 

27 5.2. Construction Commencement. 

28 If Landlord fails to commence to perform Landlord's Construction Obligations, including 

29 the construction of the Store prior to the date specified in Section 1.4.3 of the· Lease 

30 ("Commencement of Construction"), then at any time thereafter, but prior to commencement 

31 thereof, Tenant shall have the right to terminate this Lease by notifying Landlord in writing. If the 

32 Store is :1 new building to be constructed, to commence construction means to commence pouring 

33 the foundation for the Store. However, if the Store is to be constructed in an existing building, 

34 Commencement of Construction means the day that the contractor's workers commence the \Vork 

35 · in the Store for the interior improvements in the Store specifically for use by Tenant and other 

36 elements of Landlord's Work as described in Exhibit C. 

37 

38 

39 

40 

5.3. Completion of Construction. 

Ltodlord shall use commercially reasonable efforts to complete Landlord's Construction 

Obli~1tions :tod deli-.:·er possession of the Store to Tenant prior to the lntendpf'pelivery Date, 

subject to deb\'s caused bv events of Force Majeure. f .. (;'/r 

Hialeah, Florida - 14 - 06/08/00 

Proicc;· .\Jo. E0()0002 

6061..324· ~\o.l\".".0 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 19 of 125
1 5.4. Construction Completion Notice. 

2 (a) The parties acknowledge che necessity for Landlord to provide Tenant with the 

3 notice specified in this Section 5.+ in order that Tenant shall have adequate time to, among oche 

-f. things, hire personnel, arrange promotion, purchase and delivery of merchandise, perform Tenant' 

5 improvements and fi."<:turization of che Store and enter into ocher commitments required to timel 

6 occupy and conduct business within che Store. Not less chan. · calendar davs rior to ch one 

7 Delivery Date, Landlord must notify Tenant in writing as to when che Delivery Date will occur (che hu':'dred 

8 "Construction Completion Notice''). On or before che Deliverv Date as specified in che five 

9 Construction Completion Notice, Tenant shall have che right, but ~ot che obligation, to notify (lOS) 

10 Landlord of che first date chat Tenant intends to operate in rhe Store for retail business to the 

11 general public (the "Opening Date Notice"). In che event Landlord does nor timely deliver the 

12 Store as stated in che Construction Completion Notice (subject to delays caused by events of Force 

13 Majeure, which delays in the aggregate may not in any case exceed sixty (60) days), Tenant will 

14 suffer damages arising from Tenant's need for adequate and proper advance notice of delivery. It 

15 would be impractical or extremely difficult to fix actual damages in the event of Landlord's breach 

16 under this Section 5.+. Therefore, in the event of a breach by Landlord of its obligations under this 

17 Section 5.-f., the parties acknowledge that the damages to be suffered by the Tenant in such event ,,\I 

18 J.re difficult to ascertain, however, after negotiation the parties have made rheir best reasonable fJ~ 19 estimate of such damage and Landlord shall pay to Tenant upon Tenant's opening of rhe Store, as 

20 liquidated damages (the "Liquidated Damages''), the sum of One Hundred Thousand Dollars 

21 (Sl00,000) which sum shall be paid to Tenant in a lump sum by Landlord to Tenant upon demand. 

22 Nothing herein shall prohibit Tenant, in addition to claiming the Liquidated Damages, from 

23 postponing occupanL-y and the commencement of Rent as specified in Section 5.5 hereof. In the 

24 event Landlord fails to pay to Tenant the Liquidated Damages as required by this Section, Tenant 

25 may, at its option, deduct the full amount of the Liquidated Damages from the Rent or other 

26 charges coming due until Tenant has fully recovered such amount. Further. if Tenant delivers an 

27 Opening Date >;otice to Landlord, and thereafter, Landlord fails to timely deliver the Store at least 

28 seven (I) business days before the Opening Date, in addition to Tenant's rights and remedies set 

29 forrh in this Section and Sections 5.5, 5.6, 5.7 and 5.S due to a missed Delivery Date, Tenam shall 

30 also have the right to occupy the Store without any obligation to p;iy Landlord Rent on and after 

31 the Commencement Dace (notwithstanding the provisions of Section 6.1.1 of this Lease) for a 

32 period equal to the number of days between the missed Delivery Date as specified in the 

33 Constructi:on Completion Notice and the later of. (a) the actual Delivery Date; or (b) the first day 

34 of the next Permitted Delivery Period. Force Majeure shall not apply to this Section. 

35 

36 

37 

38 

39 

-f.0 

-f. l 

-f.2 

-f.3 

++ 

-f.5 

+6 

(b) ~otwithstanding anything to the contrary contained in Section 5.-f.(a) above, in the 

e,·enc Landlord does not timely deliver the Store due t0 an event or events of Tenant Delay of 

which (i) Landlord has notified Tenant in writing '"~thin three (3) days of ·.my occurrence thereof 

including the nature and projected extent of such delay (a "Temmt Delav ::--;otification"), (u") 

Landlord can demonstrate result in :ictual delays in completion of Landlord's \"Vork in the Score, (ii0 

Tenant has nor remedied to Landlord's reasonable satisfaction \vichin rhree (3) days from the dare 

of receipt of the Tenant Delay :-iotification, and (t,-) catise the actual Deli;·ei"\" Dare to occur our.side 

a Permirted Deliverv Period, then the Deliverv Dace sh:ill be deemed ro be the last date ro occur as 

ser forth in _\nide ·2, Delivery Da,t,,en ,1bove. ~vhether or not such d:ire occurs wirhin a Permirted 

Deliverv Period • ..S. Tenant may elect either to (_\) ,iccept occupancy of rhc Srore ours1de rhe 

Permirted Delive::y Period. or (B\ postpone occup,mcy pursu,mr. to Sccrion 5.5. but the 

Commencement D:ire shail be c:i.lc•..Jbted based upon rhe :icnd Deliver.· D:tre no~.virhsr,mding 

H.iale:ih. Florid> - l5 -

/ 116/08/00 

Proiecr -:.:o. EOt)tJl)O" 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 20 of 125
1 

2 

3 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

Tenant's election to postpone occupancy, except that Tenant's obligation to commence payment of 

Minimum Rent and Reimbursements shall~fm=ll! one (1) dayvfor each day of Tenant 

::''' Rollo=. •-•••• ••o~Q ""-

N ot,,rithstanding any other provisions of this Lease, Tenant shall not bugat~d to accept 

delivery of the Store at any time other than during a Permitted Delivery Period nor at any time 

(within or without such a period) if Landlord has failed to give notice in accordance with 

Section 5.4 hereof. If (a) Landlord offers to deliver the Store to Tenant on a date outside of the 

Permitted Delivery Period and Tenant does not accept delivery of the Store on such date, or 

(b) Landlord fails to deliver a timely Construction Completion 0iotice to Tenant, the Delivery Date 

shall, at Tenant's option, be deferred ("Rollover'') until the first day which falls within that 

Permitted Delivery Period which occurs or is in effect after the one hundred fifth (105th) day 

subsequent to delivery. 

5.6. Remedies Cumulative. 

15 The Rollover remedy described in Section 5.5 above shall apply in addition to all other 

16 remedies at law, or in equity, or under the terms of this Lease. 

17 

18 

19 

20 

21 

22 

2+ 

5.7. Right co Cancel. 

If for any reason Landlord has not completed Landlord's Construction Obligations, or the 

Store is not delivered to Tenant prior to the date specified in Section 1.4.4 of this Lease ("Right to 

Cancel Date"), Tenant may, at its sole option, cancel this Lease by written notice to Landlord, 

provided, howe\"er, the Right to Cancel Date may be e.'ctended for events of Force Majeure which 

delays in the aggregate may not e.""<ceed sixty (60) days. If the Delivery Date occurs prior to 

T_enant's e.""<ercise of its Right to Cancel, Tenant's Right to Cancel shall be void. 

5.8. Automatic Termination. 

25 This Lease shall be automatically terminated if the Delivery Dace does not occur on or 

26 before the date specified in Section 1.4.5 of this Lease notwithstanding any Force Majeure Events 

27 ("c\utomatic Termination Date''). 

28 

29 

30 

31 

32 

33 

34 

35 

5.9. Entry Prior to Delivery Date. 

Cpon at least 24-hours notice, Tenant shall have the right, \vithout an obligation to pay 

Rent, to enter the Store for inspection, review, and coordination of construction purposes (but not 

business operations) prior to the Delivery Date, however, such exception regarding operation shall. 

not apply subsequent to the Delivery Date specified in any Construction Completion Notice. 

Tenant agrees that it shall not interfere in any way with the progress of Lmdlord's \'V'ork by such 

enrrv and anv such interference shall be deemed a Tenant Ddav. 0:0 such enrrv bv Tenant shall be . . . . . deemed an accepnnce of the Store. 

Hialeah. Ronda 

Project :--<o. EOIJ0002 

600\.J.:..;. :..:!1•;17.6 

- 16 -

/"1 

/ 

06/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 21 of 125
1 5.10. Walk-Through Inspection and Punchlist. 

2 Within ten (10) days after Landlord notifies Tenant of the Substantial Completion of 

3 Landlord's Construction Obligations, Landlord's construction representative and Tenant's 

4 construction representative shall meet at and do a complete walk through inspection ("Walk-

:i Through Inspection") of the Store to (a) identify any uncompleted Landlord's Work as required 

6 herein, and (b)identify any incomplete or noncomplying items of Landlord's Work. Within five (5) 

7 business days after the Walk-Through Inspection, Tenant shall deliver to Landlord a list 

8 ("Punchlist") containing all items described in (a) and (b) above which were identified during the 

9 Walk-Through Inspection as not having been completed (i) to the extent necessary to permit 

10 Tenant to commence Tenant's Work without interference from Landlord's contractor performing 

11 Landlord's Work, and (ii) to sufficiently allow Tenant's retail operations to commence in the Store 

12 without impedimerlt to the conduct thereof by the incomplete nature of Landlord's WorL. If 

13 Tenant does submit such a list, and the items set forth on the list are, in fact, part of Landlord's 

14 Work under this Lease, Landlord shall promptly and diligently complete or correct such items 

15 within thirty (30) days thereafter or diligently commence such repairs within thirty (30) days and 

16 complete same as soon as reasonably possible thereafter. In any event, the Delivery Date shall not 

17 be deemed to have occurred until the listed items are completed and/ or corrected to the -extent 

18 necessary to permit Tenant to commence Tenant's Work without unreasonable interference from 

19 Landlord's contractor performing Landlord's Work anq without unreasonable delay caused by the 

20 incomplete nature of Landlord's Work. _;\sum equal to the amount of Minimum Rent for one (1) 

21 full month may be withheld by Tenant in the event Landlord has not completed the Punchlist 

22 within forty-five (45) days after Tenant has submitted the Punchlist to Landlord and such failure to 

23 complete is not the result of Tenant Delays. Upon completion of the Punchlist, Tenant shall pay 

24 Landlord any lvfinimum Rent withheld pursuant to this Section 5.10. 

25 5.11. Completion of Store. 

26 '.'Jot:withstanding any other provisions of this Lease, the Delivery Date shall not occur until 

27 Landlord !us substantially completed all of Landlord's \'</ork in accordance \Vith Exhibit C. 

28 5.12. Acceptance. 

29 5.12.L On the Delivery Date. Tenant's occupancy of the Store shall not constitute an 

30 acceptance of Landlord's Work, or relieve Landlord of responsibility for any warranty or 

31 maintenance obligations under this Lease. On the Delivery Date, Landlord shall deliver the 

32 follm:v-ing to Tenant: 

33 (a) _-\ fully executed certificate of occupancy for the Store, certificate of completion, 

34 or its equivalent: and 

35 (b) :\II certificates of insurance required by this Le::ise. 

36 5.12.2. Landlord's Post-Delivery Date Obligations. 

37 (ct) Within sixty (60) days after the Delivery Date, Lmdlord shall deliver ,tl) of the 

38 following to Tenant: 

39 (0 .-\ certificate of completion or comrit or certificate. 

Hialeah. Florida - l 7 - {I ' 116/118/0U 

Project :-.io. E11ilt)i){)2 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 22 of 125
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

(ill) 

(iv) 

(v) 

(vi) 

A list of all contractors and subcontractors with contracts in e..'<cess 

of Twenty Five Thousand Dollars ($25,000) used for the 

construction of the Store. Said list shall contain the following 

information about each contractor, subcontractor and, if available, 

. supplier: name, business address, phone number (including area 

code), facsimile number and e-mail address, contact person for the 

project, and state license number if required for the e..'<ecution of 

work on the Store; 

To the e..'<l:ent in Landlord's possession, equipment operation 

manu:ils, catalogue data sheets and material safety data sheets on all 

major equipment and/ or li'<l:Ures used in the Store; 

For maintenance use, one percent (1 %) of the Hoor .and wall 

covering material installed of each color and pattern required for the 

Store; a one (1) gallon container of paint for each color and surface 

te..'<l:ure used; and each container, box or roll shall be labeled with 

color, te..'<l:ure and room location in addition to manufacturer's label; 

Completed Punchlist properly signed and dated by Landlord or its 

general contractor indicating that all items have been completed; and 

One (1) copy of final project record documents for the Store 

indicating actual as-built conditions. 

21 (b) \'ii~thin six (6) months after the Delivery Date, Landlord shall deliver to Tenant 

22 all fully e.."ecuted and dated warranties and guarantees applying to the Store. 

23 (c) If the items required in Sections 5.12.2 (a) and (b) above, are not furnished to 

24 Tenant \v~thin the required time periods, Tenant may defer payment of one (1) month's i'vfinimum Rent 

25 due under this Lease until such items are furnished to Tenant. 

26 6. RENT 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

>8 

6.1. Minimum Rent. 

6.1.1. Payment and Amount. Commencing on the Commencement Date and 

continuing through the Term of this Lease (except as otherwise expressly set forth in this Lease), 

Tenant shall pay Minimum Rent to Landlord in equal monthly installments at the rates specified in 

Section 1.6.1 (the "Minimum Rent''). Minimum Rent shall be payable in advance on or before the 

first (1st) day of each calendar month. If the Lease commences other than on the first day of a 

calendar month, the first month's Minimum Rent shall be prorated accordingly and paid with the 

Minimum Rent for the first full month. 

6.1.2. Place of Payment. All Minimum Rent and other payments to be made by 

Temnt to Lmdlord shall be sent to P_A.LM SPRINGS MILE }1.SSOCL'\TES, LTD., c/o Phillips 

lntem,1tional Holding Corp., 4l7 Fifth .'\venue, 3rd Floor, New York, New York 10016, or at such 

other .1ddress designated in writmg by Landlord. r: 

Hiale:ih. Florida - l8 - 06/08/00 

Pro1ect 'io. El100002 

606132-1 ::!2liH7.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 23 of 125
l 6.1.3. Co-Tenancv. 

2 (a) Commencement Date Co-Tenmcv Reqμirements. :\ "Reduced Occupancy 

3 Period" shall occur at the Commencement Date unless all the fol]o,.,~ng requirements are satisfied: (i) all 

4 the co-tenants specified in Section 1.7.1 (the "Commencement Date Co-Tenants") shall be open in the 

J Shopping Center every customary business day (except customary holidays) for retail business at lea.st 

6 from 10:00 a.m. to 6:00 p.m.; (ii) all the Commencement Date Co-Tenants are operating in at lea.st the 

7 Le-J.Sable Floor Area specified in Section 1.7.l(a) under bona fide leases of an original term of a minimum 

8 of three (3) years' duration; and (iii) retail tenants of the Shopping Center, including the Commencement 

9 Date Co-Tenants, are open and operating under bona fide leases in at le-J.St the percentage of the 

10 Lea.sable Floor _'\rea of the Shopping Center indicated in Section 1.7.l(b) (the Store shall be e.'<'.cluded 

11 from the numerator and denominator of the fraction used ro calculate such percentage). 

12 (b) Operating Co-Tenancy Rea_uirements. :\. "Reduced Occupancy Period" shall 

13 occur at any time subsequent to the Commencement Date unless all the following requirements are 

14 satisfied: (i) the co-tenant specified in Section 1.7.2(a) (the "Operating Co-Tenant") shall be open in the 

15 Shopping.Center every customary business day (e.'<'.cept customary holidays) for retail business at lea.st 

16 from 10:00 a.m. to 6:00 p.m.; (u) the Operating Co-Tenant is operating in at least the Lea.sable Floor Area 

17 specified in Section 1.7.2(a) under a bona fide lease; and (iii) retail tenants of the Shopping Center 

18 (excluding the Operating Co-Tenant and the Store) are open and operating under bona fide leases in at 

19 least the Leasable Floor ,-\rea of the Shopping Center indicated in Section l.7.Z(b). 

20 ( c) Co-Tenancy Remedies. If a Reduced Occupancy Period e.-cists on the 

21 Commencement Date, Tenant, at its election may (i) defer opening the Store until the first date within 

22 the first permitted Delivery Period for which the Commencement Date Co-Tenancy Requirements have 

23 been met; or (ii) open the Store, in which case Tenant's total obligation for Rent shall be replaced by 

24 Substitute Rent which shall be payable '"~thin twenty (20) days after the close of each cal.endar month 

25 until the Commencement Date Co-Tenancy Requirements have been met and the Reduced Occupancy 

26 Period is brought to an end: provided that if such Reduced Occupancy Period continues in effect for 

27 more rhan three hundred sio-.-ry-frve (365) days from the Commencement Date, Tenant may terminate 

28 this Lease upon thirty (30) days' notice to Landlord. If a Reduced Occupancy Period occurs at any time 

29 after the Commencement Date (e.'<'.cept in the event.of an £.'<'.empted Discontinuance as hereinafter 

30 defined), and continues in effect for a period of three hundred sio-.-ty-five (365) consecutive days, 

31 there-after, Tenant's total obligation for Rent shall be replaced by Substitute Rent which shall be payable 

32 within twenty (20) days after the close of each calendar month during the Reduced Occupancy Period. If 

33 the Reduced Occupancy Period continues for a period of three hundred si."<Cty-five (365) consecutive 

34 calendar days, Tenant may, at its option, (i) continue to pay Substitute Rent until such Reduced 

35 Occupancy Period is terminated, or (ii) terminate thi.s Lease upon thirty (30) days' notice to Landlord 

36 (the "Termination Notice") at any time during which prior Reduced Occupancy period continues. The 

37 provisions of rhi.s Section 6.1.3(b) shall apply to any subsequent Reduced OccupmKy Period. 

38 (d) Exempted Discontinuance. _-\n £.'<'.empted Discontinuance shall mean the 

39 closure of a tenant's space because of casualty, condemnation, repairs or remodeling for a period not to 

40 exceed t\vo hundred (200) Jays. In the event of an E'<'.empted Discontinuance, the tenant's space shall 

41 not be calculated in the numerator or the denominator of rhe fraction specified in Section 1.7.l(b) (or 

42 deducted from the tot11l number of square feet of Leas~ble Floor ,-\rea required bv Section l.7.Z(b)) from 

.+3 the commencement of the £.'<'.empted Discontinuance until the earlier of: (D rr{e expiration of such t\VO 

! 

Hialeah. Florida - 19 -

I <JG/<l8/(.10 

Project >in. Eil0l)002 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 24 of 125
1 hundred (200) day period; or (i0 rhe expiration of the E.'<empted Discontinuance, but shall be included 

2 thereafter. 

3 6.2. Percentage Rent. 

-I 6.2.1. Gross Sales. Gross Sales are revenue received· by Tenant from rhe selling price 

J of all merchandise or services sold in or from the Store bv Tenant, its subtenants, licensees and 

6 concessionaires, whether for cash or for credit, excluding, however, the following: (a) the sales 

7 price of all merchandise returned and accepted for full credit or the amount of the cash refund or 

8 allowance made thereon, if previously recorded as Gross Sales; (b) the sums and credits received in 

9 settlement of claims for loss or damage to merchandise: (c) the consideration received in 

10 connection with a sale of inventory which occurs other than in the ordinary course of Tenant's 

11 business, including, but not limited to, a sale in bulk or to a jobber, liquidator or assignee; (d) sales 

12 ta..'<es, so-called lui..1.1ry ta..'<es, excise ta..'Ces, gross receipt taxes, and other ta..'<es now or hereafter 

13 imposed upon the sale or value of merchandise or services, whether added separately to the selling 

14 price of the merchandise or services and collected from customers or included in the retail selling 

15 price; (e) receipts from the collection of public utility bills; m bank card discounts or fees (e.g., Visa, 

16 MasterCard, etc.), interest, carrying charges, or other finance charges in respect of sales made on 

17 credit not to exceed two percent (2%) of Gross Sales; (g) sales of fixr.ures, trade fixr.ures, or 

18 personal property that are not merchandise held for sale at retail; (h) sales to employees and senior 

19 citizens at discount each not to exceed two percent (2%) of Gross Sales; (i) revenue received from 

20 mailing, alterations, delivery or other services performed on a non-profit basis for the benefit of 

21 customers; GJ Tenant's accounts receivable, not to exceed two percent (2%) of Gross Sales, which 

22 have been determined to be uncollectible for federal income ta." purposes during the Lease Year; 

23 provided, however, that if such accounts are actually collected in a later Lease Year, the amount 

24 shall be included in the Gross Sales for such later Lease Year; (k) rents, subrents or other 

25 consideration received in connection with an assignment, sublease, license, concession or other 

26 transfer of any portion of the Store but sales by such assignees, sublessees and concessionaires shall 

27 be included as Gross Sales; 0) amounts received for merchandise transferred to any other place of 

28 business of Tenant (or its subtenants, concessionaires and/or licensees) or to any business 

29 organization affiliated with Tenant wherever located; provided such merchandise is not used to 

30 complete a sale originated in the Store; and (m) any Internet or other sale contracted on a 

31 telecommunications network whether or not the sale item is delivered to the customer at the Store, 

32 provided that the Store is used for retail sales to walk-in customers and not as a warehouse facility 

33 for Internet sales. 

34 6.2.2. Amount and Calculation of Percentage Rent. 

35 (a) Calculation. Tenant shall pay to Landlord as Percentage Rent for each Full 

36 Lease Year during the Term (i.e., which contains twelve (12) full calendar months), a sum equal to the 

37 amount by which rhe percentage specified in Section 1.6.2 of Tenant's Gross Sales made during each Full 

38 Lease Year exceeds the ;iggregate total of the i'vlinimum Rent paid for such Full Lease Year. 

39 

40 

41 

42 

-13 

(b) P'1rtia1 Yerr. T11e Percentage Rent for any Le:!Se Year h;n-ing less tfoll1 twelve 

(12) full months sh;tll be based upon Gross Sales for the twelve (12) months immediately succeeding the 

Commencement Date (as to the first Lease Year) and for the twelve (12) month period immediately 

preceding the expiration or e-.irlier termination of the Lease (as to the final Le-JSe Year). The Percencige 

Rent due for such period sh,tll be esmblished by multiplying the Percentage Rent wl;Jd:i would h;cve been 

/. ' 

Project:--;," EOllOL102 

6061.3.:'.-I :.:z1•H".°.6 

_ '"' _ I, '"'°"00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 25 of 125
1 due for such tweh·e (12) month period by a fraction, the numerator of which is the number of days in 

2 such Lease Year and the denominator of which is three hundred sixty-five (365). 

3 (c) Gross Sales Smtement. Within seventy-five (JS) days ali:er the dose of each 

4 Lease Year, Tenant shall submit to Landlord a statement certified by an officer of Tenant indicating the 

5 amount of its Gross Sales for the previous Lease Year. Tenant shall accompany such statement \vith a 

6 payment of the Percentage Rent due, if any, ali:er all deductions and offsets. Landlord covenants to keep 

7 such information confidential, e..xcept for information provided to its accountants or lenders, or if 

8 required pursuant to any litigation between the parties hereto or as acquired by law. 

9 (d) Maintenance of Records. Tenant shall maintain adequate records for a period of 

10 two (2) years ali:er the close of each Lease Year for the purpose of allo,,ing Landlord to verify the 

11 repotted Gross Sales for such year. At any time within said two (2) years, Landlord or its agents may 

12 inspect such records at Tenant's main office specified in Section 1.2.2 hereinabove during normal 

13 business hours. If such inspection or audit discloses an underpayment of Percentage Rent, Landlord 

14 shall promptly deliver a copy of the audit report to Tenant for its review. Within thirty (30) days 

15 thereafter, Tenant may, by written notice to Landlord, object to the conclusions or process of the audit 

16 report stating its conclusions as to the amount due, if any. If Landlord disputes Tenant's conclusions, 

17 then "'ithin ten (10) days of receipt of Tenant's objection to its audit report, Landlord may institute the 

18 ·,1ppropriat.e alternative dispute resolution under Section 20.2 of this Lease. If Tenant agrees with the 

19 audit report, then it shall promptly thereafter pay to Landlord the amount of the underpayment. In the 

20 event an adjustment is required because of an understatement of Gross Sales in e..xcess of three percent 

21 (3%), and additional Percentage Rent is due, Tenant shall reimburse Landlord for Landlord's reasonable 

22 e..xpenses incurred in conducting such inspection or audit. 

23 6.2.3. No Representation. Landlord acknowledges that Tenant has made no 

24 representation as to the Gross Sales which may be generated from the Store nor that Gross Sales 

25 will ever re:ich a volume sufficient to require payment of Percentage Rent. 

26 6.3. Reimbursements. 

27 In :1ddition to the Minimum Rent and Percentage Rent described above in this Article 6, 

28 Tenrnit shall be responsible to pay its share of Common Area Charges as described in Section 7.4.1, 

29 Taxes as described in Section 8.2.1, and Insurance Bill as described in Section 9.1.4. 

30 6.4. Other Payment Provisions. 

31 6.4.1. Late Payment. Any sum including Rent accruing to Landlord or Tenant under 

32 the provisions of this Lease which is not paid within ten (10) days of due date shall bear interest at 

33 the Legal Rate from the due date. 

34 6.4.2. Timely Billing of Charges . .All charges due from Tenant to Landlord for which 

35 Tenant must be billed by Landlord must be billed within twenty-four (24) months after the close of 

36 the c;ilendar year in which the charge is incurred by Landlord, or Landlord will have waived its right 

37 to reimbursement which may have otherwise been established in any section of this Lease. 

38 6.4.3. Disputed Sums. Under the terms of this Le:l.$e numerous charges are :md may 

39 be due from Tenant to Lmdlord and vice versa, including without limitation, re:il estate Ta.xes, 

40 Common .-\reu Ch>.trges, cc1sualn- cmd liability insurance premium reimbursements :ind other items. 

Hialeah. Florida - 21 - r~ 1J6/08/00 

Project ~o. EOUllll02 / 

6i.16 l .. i2-+:'::~tl)l-.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 26 of 125
1 In rbe event that at any time during the Term a bona fide dispute arises with respect to the amount 

2 due for any of such charges claimed by a party to be due, that portion of the amount which is 

3 undisputed shall be paid by Tenant or Landlord, as the case may be, pending the resolution of the 

4 dispute bel:'.veen the parties by litigation or otherwise, and the disputed portion may be withheld 

~ pending resolution. Tenant's withholding of a disputed amount in the event of a bona fide dispute 

6 shall not be deemed a default by Tenant under the terms of this Lease. Upon resolution, the 

7 obligated party shall pay to the other the remaining sum liquidated as due (if any) with interest 

8 thereupon at the Legal Rate. 

9 7. COMMON AREA MAINTENANCE 

10 7.1. Landlord's Obligation to Maintain Co=on Areas. 

11 7.1.1. Maintain Common .Areas. Landlord shall maintain all Common Areas in first 

12 class condition, repair and cleanliness, including· sidewalk pressure cleaning. Landlord shall keep the 

13 Common "-\reas well lighted for a period of si.'tty (60) minutes following the end of Tenant's 

14 business hours in the Store and thereafter maintain reasonable security lighting in the Common 

15 Areas. No construction or construction-related activity shall be permitted in the Restricted i\rea of 

16 the Common "-\reas, except for emergency repairs (or necessary repairs which cannot be delayed) 

17 diligently pursued, during the period from October 15 of any year to January 2 of the ensuing year, 

18 'lrithout the prior written consent of Tenant, which consent may not unreasonably be withheld and 

19 may include conditions designed to eliminate interference 'vith the operation of the Shopping 

20 Center or the effect of such activity upon Tenant's business. Tenant shall be responsible for 

21 customary periodic sweeping and cleaning of sidewalks adjacent to the Store's frontage. Landlord 

22 shall pro>-ide reasonable security services for the Common Areas. 

23 7 .. 1.2. Common A,rea Metering. The Commop "-\reas shall be served by meters which 

24 do not serve any other areas of the Shopping Center. Landlord shall cause all utilities for the 

25 Common _-\reas co be separately metered ti-Qm those of Tenant and/ or the Store. 

26 7.1.3. Holiday Event. Landlord shall have the right, not more than once in any Lease 

27 Year, to conduct a one (1) day holiday event in the primary parking area of the Shopping Center 

28 bet<;;een the hours of 8:00 a.m. and 12:00 p.m., provided that such event does not obstruct 

29 Tenant's and Tenant's customers' ingress and egress to the Stor~-e<'-+i=ftim1?,;-ea"-e:~;te;~"i'm""""f" 

30 [3SoEI<ing aelQ. 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

4l 

7.2. Tenant's Common Area Contribution. 

7.2.1. -\ooual fee/CPI Increase. Tenant shall pay an annual fee for· 

costs and expenses related to the Store, the Common _-\rea, and the Shopping Center as defined in 

Section 7.2.2, equal to One Dollar and fifty Cents ($1.50) times the number of square feet of 

Leasable Floor _-\rea in the Store determined pursuant to Section 3.7 ibove, pro rated for any partial 

calendar year ("Tenant's Common _-\rea Contribution"). Tenant's Common Area Contribution 

shall be increased annually upon the anniversary of the Commencement Date of chis Lease, in 

proportion with the percentage increase in the CPI (as hereinafter defined) during the period from 

the mooch of the Commencement Date to the c:i.lendar mooch (or the most recent CPI available) 

for each succeeding anni,-ersary ot- rbe Commencement Date. [o no event shall Tenant's Common 

:\rea Comributioo for mv ye:u be less than One Dollar and fifty Cents rs l.50) ~s the Store's 

Hi"1eah. Florida - 22 - (· ! 06/08/00 

Project :--io. EOOOOO'.! ;J · 6•16U:•. 2.::t•W.S t 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 27 of 125
l Leasable floor _-\.rea. for purposes of this Lease, CPI shall mean the Consumer Price Index [All 

2 Crban Consumers] (base year 1982-84 = 100) for the Miami area published by the United States 

3 Department of Labor, Bureau of Labor Statistics. If the CPI is changed so that the base is changed 

.+ from 1982-8.+ = l 00, the CPI shall be converted in accordance with the conversion factor published 

~ by the United States Department of Labor, Bureau of Labor Statistics. If the CPI is discontinued 

6 or revised during the Term, such other governmental index or computation with which it is 

7 replaced shall be used in order to obtain substantially the same result as would be obtained if the 

8 CPI had not been discontinued or revised. If there is no such replacement, then Landlord and 

9 Tenant shall select another price index which is reasonably satisfactory to both. Tenant's Common 

10 _-\.rea Contribution shall not be reduced below the prior year's Tenant's Common Area 

11 Contribution on the basis of the CPI adjustment above. 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

7.2.2. Included and.Excluded Expenses. 

(a) Except as provided in Section 7.2.Z(b), it is intended that Tenant's Common 

Area Contribution shall be payment for lll! of Landlord's costs and e.'<penses with respect to the Store, 

the Shopping Center and the Common _A.rea, including, "ithout limitation, all costs for or related in any 

way to maintenance, repair, construction, cleaning, insurance deductibles, marketing, utilities, remediation 

of Hazardous Materials (as hereinafter defined), signage, trash collection, taxes, overhead and 

administrative e.'>'.penses, financing, casualty losses, condemnation, reserves, bad debts, interest, financing 

charges, salaries, promotional activities, sewer charges, equipment purchase or leasing costs, security, and 

costs of compliance with any Requirements (as hereinafter defined). 

(b) In addition to Tenant's Common Area Contribution, Tenant shall pay the 

following: (i) Landlord's costs of security as provided in Section 7.4 hereafter; (ii) Landlord's 

"Administrative fee" as provided in Section 7.3 hereafter; (iii) Tenant's Pro Rata Share of Ta.'>'.es, as 

provided in Section 8.2 hereafter; and (iv) Tenant's Pro Rata Share of Landlord's Insurance as provided 

in Sections 9.1.2 and 9.2.2 hereafter. (excepting plate glass :ind boiler :md machinery insurance). 

7.3. Landlord's Administrative Fee. 

27 7.3.1. Tenant shall pay Landlord an annual administrative fee equal to five percent 

28 (5°.,,) of Tenant's Common Area Contribution. Payment shall be made as specified in Section 7.7.l 

29 hereafter. 

30 7.4. Security Patrol. 

31 Tenant shall reimburse Landlord for its "Pro Rata Share of Security Patrol Costs" (as 

32 hereinafter defined) of the Shopping Center. Payment shall be made as provided in Section 7.7.1. 

33 Tenant's Pro Rata Share of Security Patrol Costs is defined as that fraction of Security Patrol Costs, 

34 the numerator of which is the Leasable floor Area in the Store and the denominator of which is 

35 the Leasable floor _-\.rea of the Shopping Center; provided, however, in no event shall the 

36 denominator ot- said fraction be less than the Minimum Leasable floor Area set forth in 

37 Section 1.3.2. Security Patrol Costs shall mean all reasonable direct costs for security patrol and 

38 surveillance in the Shopping Center, exclusive of office rental, and Landlord's supervision and 

39 overhead expenses. 

Hialeah. Florida 

Project ~~o. EOOO!l02 (Jll()J..3.:~ .:2t1il'7.6 

- 23 -

/! 

f <IG/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 28 of 125
1 7.5. Trash. 

2 Tenant shall be responsible for its own trash removal. 

3 7.6. Promotional Fund. 

4 Tenant shall have no obligation to contribute to a marketing fund or merchant's association 

5 for the Shopping Center. 

6 

7 

7.7. Payinent of Tenant's Common Area Contribution, Landlord's Administrative Fee, 

and Security Patrol Costs. 

8 7. 7.1. P:lyment. Commencing on the Commencement Date, Tenant shall pay its 

9 Common ,\rea Contribution, Landlord's i\dministrative Fee, and Security Patrol Costs as follows: 

10 Beginning ''-ith the first (1st) day of the Term following Tenant's receipt of Landlord's written 

11 statement of Tenant's Common Area Contribution, Landlord's Administrative Fee, and a 

12 reasonable written estimate for the following calendar year of Landlord's Security Patrol Costs (but 

13 11ot in any event before thirty (30) days after receipt thereot), Tenant shall include one-twelfth 

14 (1/12th) of its annual obligations set forth in such statement and estimate with each payment of 

15 Minimum Rent for the ensuing twelve (12) month period. 

16 7.7.2. .Annual Statement. \Vithin ninety (90) days following the close of each calendar 

17 vear, Landlord shall submit to Tenant a statement ("Annual Statement"), in which Landlord shall 

18 set forth in reasonable detail the Landlord's actual expenditures for Security Patrol Costs for such 

19 calendar year and Tenant's Pro Rat.a Share of Security Patrol Costs (collectively "Tenant Security 

20 Reimbursement"). The Annual Statement shall be certified by a representative of Landlord to be 

21 correct. In the event Landlord fails to provide such _Annual Statement within the time required 

22 hereby, Tenant may thereupon continue to make current payments u,-ithout increase until such time 

23 as the _Annual Statement is received by Tenant, and Tenant shall pay the amount due within thirty 

24 (30) days thereafter. 

25 7.7.3. Reconciliation of Annual Statement. If the .Annual Statement indicates that 

26 Tenant's payments of estimated Tenant Security Reimbursement exceeded Tenant's total obligation 

27 relating to such calendar year, Landlord shall accompany said Annual Statement with a memo 

28 crediting Tenant's account in the amount of such overpayment or, if the amount of the credit 

29 exceeds one (1) full month's estimated payment for Tenant Security Reimbursement, Landlord shall 

30 accompany said .Annual Statement with a payment to Tenant of the amount of such e..'<cess. If the 

31 .Annual Statement shows that Tenant's payments of estimated Tenant Security Reimbursement 

32 were ]',ess than its total obligation relating to such calendar year, Tenant shall pay the difference to 

33 Landlord within thirty (30) days of Tenant's receipt of the ,Annual Statement. Notwithstanding the 

34 foregoing, if at the time Landlord delivers such Annual Statement to Tenant, Tenant is auditing 

35 Llndlord's records of Tenant Security Reimbursement, any adjustment (if required) and any credit 

36 or payment shall be made upon conclusion of such audit. 

37 7. 7.4. ~- Upon request, Landlord shall provide to Tenant copies of all invoices 

38 and other written evidence of Tenant Security Reimbursement paid by Landlord. In addition, 

39 Ten•tnt sh:tll h:1ve the right, not more frequently than once in :U1)' calendar year, to audit (the 

40 "Secucity Cost _-\.udit") :tll of Landlord's or Landlord's agent's records pertaining to Tenant Security 

4l Reimbursement with a representative ofTernU1t's choice. Landlord sh:ill ret.ain its recor regardmg 

Hialeah. Florida - 24 - J 06/08/00 

Project :-<o. EOOllllil2 I 

6<.161..3:!4 :!21017.D 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 29 of 125
Ten:int Security ~imburse:ner.t for a pe:iod of at I=~ :wo (2) years fol!owing t.>ie final b!lling for 

2 each calend;ir yeu during tho Term. At :lny time durir.5 such. :wo (2) yeor poriod, upor. thirty (30) 

3 days' :idv:ince notice to La.'ldlod, Ter:u.t may cond1.!ct a Sec'-"-i':y Cost Audit. The Security Cost 

4 A'.ldit sJ:.:a.n commence on a dare (the "t\udit Dar:e") ofwr.ich Tena.nt has notified La.:1dlord no: less 

S th>n ::hircy (31)) bys in ;.dvance and to which Lanc!icrd and Ten:ltlt have murually :>greed. In ::he 

6 event of ·caricell::.:icn of the Audit by Lan:iiorc!, Tenan: sh"1l be relieved of irs obligation to make 

7 mor.thly p1yrr.cr:'s of the estimatec! Ten:int Soci.x.::y Reimbursemen: until ::he fast to occur of 

8 ,,,.·clve (12) months thercafr.er, or until th~ Security Cost Audi: is perforr:ied and comple~c!. Any 

9 ovcrbi!!ir.g d!scovered in ::he course of the Securir:y Cost Aud.it shall be refu.nd<d to Tena.'1.t wirhi:i 

10 thi::ty (30) days of La.'ldlord's receipt of a copy of the Secu:ii:y Cos: Audit. In the event the 

11 over;,acement of charges e<ceeds ?}.<ee perce'1t (3%) of the ;ur., preYiously billed. re Tenant b: 

12 La.-,dlo,·d, Landlord shall reimburse T~'Tlznt fer all e>.:penses of me Security Cost Audit "-~thin thirry 

13 (30) cays fol!ow'.ne receip: of a copy cf :h• Sec.uity Cos: i\u<fa. The expenses of this audit, 

when raken together with expenses of the Tenant Audits in Section 8.2.5 and 

9.l.3(c), shall not exceed Four Thousand Dollars ($4,000) per 

14 8. REAL ESTATE TAXES AND ASSESSMEl\i-rS 

15 8.1. Oblig:ition ro Pay. 

16 Landlord shall pay a:l relli ?roper.y ::;,.."<es and ass•ssm<::'\~S ("1.';:.."" or "Taxes ' ·ied by a 

17 govemr.e<ent agenq °"'O'O.in" :.ie Sho?p1ng Cen:e~ or s:r.aller Ta.\: ?arcd which inclw:lts j,e Store (t.'le 

18 "Ta." Bill'') on or before rhe lust cay t.loa: suc::i Taxes may be paid wichout pe:ialt:y, commission. 

19 ir.te!:'~S: or cthicr charge. A r'T':LX ?a:c:l11 is "J. sir.gle p<L:"cel of !~o~ for whtch rhc rclc .. ·anr ~ir~g 

20 6Utl:ioci;;y renders a separate billing. 

21 8.2. Tenant's Pro Rata Share. 

22 il.2.1. P~.ymmr g(Te:i;cr'< Pro Rita Share. 

23 (>) !~. acldition "' the 1-f.inirm:m Rer.t hereir. reserveci, T~n.mt shzll r<:imbu:oe 

24 L;incilod for 'Ycn:-.nt's :?ro ~ar:. Snr• of 'he Tax :Sill, as c:llc:tilateci iJo accorda..,oe with Se~'1lon S.2-3, of 

25 t},e T'1.\: Biil "f'plico.bie to ..:ch Ta."< Year or port therocf which falls within 'he Tem., subiect r.o rhe 

26 prov--<ior.; of this .-\."tide S. Tena.n~s ?ayme:it sl-.aJ! be rr.ade wi~LI'. twenty (20) days <lftor receipt by 

27 T~n:in: <lf (~)"copy ofL-,,,Clorc's cancelled chtck for paymcr.t of Taxes or other evidence of p;iyment 

28 r=or.ably sa6factory to Tenant, (o) •copy of Landlord's T:::< BiU. and (c) a <1".tement in writir.g fror:i 

29 Landlorci settir:g font !he a.T..ounc of Tenant's Pro Ro.ta Sh= of t.'ie TOY Bill ;.'l.d the method of 

30 calcclation t."ier~of. Subjecc ro Teno.'1.:°s receipt of written evidence ofLa..,dlord's p'<ymenr of b:idlord's 

.31 T:ix Bill as sr:ecified above.. Ten:int's scl-.edule of paymects sh<l!I be concurrent with L:!.'1.diord's 

32 obligarions for p'<yment io t."ie ta>cing am:hoiry. 

33 

34 

35 

36 

37 

38 

39 

40 

4\ 

(b; fa the event La...,dJord's 1.-:nde: requires L:it'.d!.ord to pr:pay To.xes on a monthly 

basis a.'1.d provide; w:;c:en OV::dence ta Tenam verifying sa.T-", La.-,dlord m~y, at ii:s oprion, require Ten:uit 

c.o l>"Y to :.i.r1Clore, in aev-..nce, T o:nor.t's :Oro R:ita Sh;;.:e of tl-.o Ta.'<os .pplicable ta each Ta.'( Y= or part 

rh.<=teo~ 1=Jnich fulls wit,in ~1.-ic Ti::rn (r.o: including ..ny rr.anageme."'l~ or ~1d.rninis~aciv~ fe1:s). B~giI'l..ning 

ur.rh the fi~t fud c:~c:nda: moGdi. ~·t-.ich is ~t leasr r..ii..'1)' (30) d~ys af~er Ten:ui.~~ :eceicr: of !..:.ndlord1s 

written n~rice of La.'1.d.lord's estimate cf the <-'TIOur.r. of"!'axes levied :ig:i!n$t rh~ Shoppi~g Center for rho 

c-.irronc i.'1."< Ye.i.r (the ''T:i>: Estimate"), wh!ch a:nour.: sh.JI r.o: c:<ceod •.h~ To:<•> levi•d ~:ist the 

Sr.oppit'.~ C;1u:'_ ':Jy :he ~g aut.'".ority for ~'.'le preceding T.:..'< Y•ar. T~nan: sh;oJl ?"Y:: scim equ.:il r.c 

one-~·dfi:h 11! •4) of T~nan(; Pro R::o. Sh3'e cf r}.~ T:L~ Esti:n~i:e ;:.:rh ~il:h paymen:. o: M!r.irr."rr: 

Hial~a..'":.. PLoric.~" 

I"rnie::c Ne:. 2.Co::ooz. 

sec: l.l:OS/~; :rn 1 .s 

• 25 -

A

·' .

1

08/0G (. 

·'· 

r 

.... 

i~ 

\,. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 30 of 125
l 

2 

3 

.1 

5 

6 

7 

5 

9 

10 

1l 

12 

13 

14 

15 

!6 

17 

18 

1 <) 

20 

2! 

22 

23 

Z<l. 

?"' -) 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

3G 

37 

38 

3~ 

40 

41 

42 

4; 

4.; 

R"m fo~ the ,,el..-e (12) mcn':h p~riod commencing on i:he first day of the first full ~~ndar mo!1t:h 

w:.,ich ;,, not less than :hirt'/ :;o) d«ys after receipt of tlie Ta.'< Esti:na"'. Wimin rh:::-:y (30) &ys a.'i:er 

bndlord's receipt of ::ho Tz..-< Bill(s) from the ta."<ing autllonty for r:.,e er.~ po.nod o: time wh!ch is the 

S\.!O!e" of ::J-..e T "'-" Esri.rr:1te upon "-'hich Ten;:.n~ (:;.s made payment. L1."\Clord sh:il~ provide T :na.nt wit.i,, 

o. reccn(::!i~rion ofT::r:a.'"l(:> at:cou-1twi!'b respcc~ to estirr.ared ~x p':lyrr:.ents, togethtru.1cll n CO?Y cf;ill 

of such Ta.-< Bill(;;. Shodd '"ch rcco:-ic!:.ia:ion eso'olis'1 i:h•t T.r1<1.•t h:.is nor paid rumci::nr. a."10\Jnt of 

esci;n:<ted = p-..ymcnis ~o covt:r i::s Pro R:rc Share ofTa."<OS for the Tux Y1:ar i::> qucs":ion, T::m.nr: shall 

p:>y :o l .. andlo:d r:he full ;i..-nour.c of :iny shornige ...;::hi."> thirty (30) days of the <fate of biUing. If i< is 

ert3.blishod tha: Te:i.::.nt has o...-e.."!i:1id iis P:o Ro.t2 Sha:e ofT-o:xes, Te<'la.."\c sh:ill be e::>tded ''" offset the 

.:i..-r.oi..:m of st.:ch overpayment agai.."lS: the ne.':'t paymer11:s of any type due to Lwdlord under rhe term.< of 

:hC. U,:ise. or, if rhe overpa;-ment oxceeds :he toral amount of ·my such r-aymen,,; rem;ill-.;ng payobl~ to 

~i...'1.dlorC bv Tena..~r: under r.his Leas~ Ld.... d.lord sh-:t!l rcir:ibucse rhe <UllOUnt of such L:xi.:e.s:s ;o Tci1:1nt ~t 

t."le 6':11: of deliverj ::o Ter.:i.r.~ o: 'he :eccnC:ktion stat::..7lent. bu= in r.o <="'<nt Jar.er th"-'1 thiCT)· (30) day; 

of receipt ofTenanr:'s billing therefor. 

:B.2.2. [nsmllments. ln che even: of -.ssessmo:nr.s ,vh;ch may be paid in installm~nts by 

re<l.~on 1~f :ionding or oth~rwise, Landlord shall elect to ma.\;e p.:.ym~nr b~cd upon !:he longest 

pt:C:od c1f inst.:t\\m••H p:i.ymcn::s ?errr.:tte:d by the ·.•ppropriate r..:i..x.ing aur.\;oricy. T~!'lm~ sh~ll be.u no 

:i::;.biii::y :..s to insttJ!ments C:uc Fo!lowi~g die c.~eiracion or e:i:-lite- re:-r.--.i:"?:l.rion of r.his Le7..st: e~cep~ ror 

prora-:ed 1:.mounrs due prior to :h~ ~xpirarion o: r::1rEe:r tc:minacion cf ti1is Lc:r.s::. T~;'l;,;..,Jt sh;U! r:or 

~c ri::spi:::;.r.siblc: fa:- ::i.ny i:-o.:erest, la-:e chuge or orher pen:tlry resulting from L~!.r:dlo:-ci 5 la~c r:iayr:i~n;­

o:: no:i~,p;:.ym~n;- o:· ·ra...'<~S, :ior any :1.drr-Lin1:;~~ti·.·t or o~hc:- r:h;,:ge whicb :n;•y be ::l~~r!lt<.l. by 

:..a..~d:or:::i. 

S.2.3. C:alcu!;:-iog ofT-oair'• P;o Bara Shil(e. Ten;:nt's Pro Rata Sh:ire of ;:he T•x Bill 

<s dcfi:ied :tS that fraccion of Ta.xi:> the numerator oe which is rhe Le-...sable floor Are:i in th~ Store 

::nd rn~ dcncmina:o~ of ""·hich is t.1-ie Le-J.>ilble Floor Ami in rh~ T:ix pare:! (.-.s showr. O;"t 

Exhibit BJ: provcdd, however, :n no e,·er:: sh~! the dencmin:itor of ;::.id E~c,ior. b~ less i:.1-i•n the 

Mi:il:nut':'\ Le1Sabie Fico:- Are:a 4-S se~ fcr.h in S::c~o:i. ~.3.2 ~~c!1 =on1nu:-ztiun !(h.tll be r:.::.de 

se?;in:dy for e'l.cn Ta." Yeu ar.d shoE be se: fo:ch in re·•sci:»':ile c!or:~il ;s ., p:i!~ of Landlord's 

soater:-.er>' '-O Te~·"-"'' pummnt to Section 7.4.5. The T<1.~ parcel M whic'1 rhe Store is :ornttod shall 

not cor.r::.in rno•e Com:nor. .-\re.as tl-..ar. ~ co~iiscenc ~-~:h tr~::: o~c~~ Cor:i:7ton A:::.1 .:i':'!..:.:l!"e focr2ge 

::o bl.litding a.c~;2. r:a.tto o:· rh~ Sh:ipping Cenr:c:r. 

8.2.4. Pa"'i2'. Ye:<r. Shoulci Te:l2nt :ie in occ...panc:y ducng ody a ;>onion of the firsr 

or fm:.Ll T:ix Y::.<, Ten'1."\t s~ill be <ospcr.sibk to ?•Y L1.:1dlord cnly for>l pro r.lta portion of its Ta.x 

obligacio!l as described hereir., bosed or. the portion of such T:i."< Y::-.r included in rhe Term of this 

Le;>.>.::. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 31 of 125
1 8.2.6. Florida Rent Tax. If any governmental ta.'<ing authority levies, assesses, or 

2 imposes any ta.'<, excise or assessment (other than income or franchise ta.'<) upon or against the Rent 

3 payable by Tenant to Landlord ("Rent Tax"), either by way of substitution for or in addition to any 

-+ existing tax on land, buildings or otherwise, Tenant shall directly pay, or reimburse Landlord, for 

~ the Rent Ta.'<, as the case may be. 

6 

7 

8 

9 

10 

ll 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

28 

29 

30 

31 

32 

33 

34 

35 

8.3. Exclusions. 

There shall be excluded from the Ta.'<:es to which Tenant contributes: (a) any increase in 

Ta."<es caused by construction in the Shopping Center commenced subsequent to the date of this 

Le:ise until such time as such newly constructed space constitutes Leasable Floor Area; (b) any 

increase in Ta..xes (e:cee~t=iag ease eiMF.ag eke IHitia:l. TeFFR ar-tB onee El.t:iring tl-.e ~egate of tF.e 

013eisR Po.igi;I•) caused by a "change of ownership"" as defined in any !av;·, regulation, ruling, or 

decision under which a reassessment or ta.'<: increase results from a transfer of all or a portion of any 

estate or interest in the Shopping Center (e.'<cepting only: (D one (1) increase resulting from a 

change ~~ ownership of the Shopping Center if completed within one (1) year following the 

Effective Date; (iD one (1) increase caused by a change in ownership during the Initial Term; and 

(ill) two (2) increases caused by a change in ownership during the aggregate of all the Option 

Periods) except if resulting from a transfer by Tenant; (c) income, e.'Ccess profits, gross profits, 

estate, single business, inheritance, succession, transfer, franchise, capital or other ta.'< or assessment 

upon Lmdlord or the Rent payable under this Lease; (d) bonds and/ or assessments which have 

been or, subsequent to the date hereof are, levied for the purpose of funding the costs of 

construction for Landlord's development or redevelopment of, all or any portion of the Shopping 

Center or capital improvements constructed therein or with respect thereto, or any Off-Site 

Improvements; (e) ta.'<: increment fmancing fees, ta."<eS or assessments; (f) any special (non-general) 

assessments which apply to the Shopping Center; and (g) any Ta.'Ces assessed against land in the 

Shopping Center that h:is not been fully developed as buildings or Common "-\reas. 

8.4. 

non-appealable 

\n:· finJ.l rebates, refunds, or abatements of real estate Taxes received by Landlord 

subsequent ro the reimbursement of Ta.'<:es by Tenant (net of Landlord's reasonable costs and 

expenses), including, bur not limited to, ta.'<: increment financing rebates or subsidies received by 

Landlord from the applicable ta.'<ing authority, shall, provided Tenant has previously made a 

contributory payment in respect thereof, be refunded to Tenant on a pro rata basis \vithin ten (10) 

days of receipt by Landlord. Any such rebate, refund or abatement realized by Landlord prior to 

payment by Tenant shall result in an immediate reduction in Tenant's pro rata share ofTa.'<:es then 

due to Landlord. 

8.5. Contest. 

36 In the event Tenant J.nd tenants occupying at least fifty percent (50%) of the Leasable Floor 

37 .-\reel of the Shopping Center request that Landlord contest Ta."<es, Landlord shall contest the 

38 v:i.lidit:-· or amount of Taxes in the Ti'< Bill as are permitted by law. Landlord shall provide Tenant 

39 with government notices or· .issessment (or re:issessment) in time sufficient to reasonably permit 

40 Tenant, to cause Lmdlord, to make contest; and if Landlord f.i.i!s to do so, then there shall be 

-+l excluded from the Tax Btll, cmv incre:ised Taxes resulting from such ;tSsessment (or reassessment). 

-+2 LJ.ndlord shJ.ll non~; Ten:mt immediately upon LJ.ndlord's tiling of :my comest. The term 

Hi:Ue.i.h, Florida 

Pcoiecr :--;o. EL100tl0~ 

JiJ61.J:~ ::!1'11-.·j 

- 27 -

f 116/08/00 

«i~ ""'~ 

l 

kl~ 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 32 of 125
l 

2 

3 

+ 

6 

7 

8 

9 

10 

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"contest" as used in this Section 8.5 means contest, appeal, abatement or other proceeding 

prescribed by applicable law to obtain a ta.'t reduction or ta.'t refund, howsoever denominated. The 

net benefit of any contest, after the payment of expenses thereof, shall inure to the benefit of 

Tenant and all other occupants of the parcel(s) included in the Ta.'t Bill in the same proportions as 

their respective oblig:itions for Ta."<es to which the contest relates. 

9. INSURANCE 

9.1. Casualty Insurance. 

9.1.1. Special Form Policy. A policy of fire and casualty insurance at least as broad as 

the form of the Insurance Services Offices' Causes of Loss Special Form ("Special Form Policy"). 

The term "Casualty Insurance" means insurance covering damage to tangible real and personal 

property. 

9.1.2. Landlord Insurance. Commencing on the Delivery Date, as defined in 1\rticle 2 

hereof, and at all times during the Term, Landlord shall maintain a Special Form Policy insuring 

against damage to the Shopping Center and the Store, including Tenant's leasehold improvements 

and alterations in the Store, but e.-,:cluding Tenants' trade fi.'Ctures, trade equipment and other 

personal propertv situated thereon. It ist~ntemnlated rhot Landlord will also carrv other insurance 

th 'h . · C . I din w1 out; .11.1..mit.aElon, . l ' d / l 

on e ~ oppmg enter, me u g, wor ·ers compensat:lon, commercia auto an EDP In and 

Marine (such other insurance, together with rhe Special Form Policy, collectively "Landlord's 

Insurance"). Further, upon completion of construction of the Shopping Center (exclusive of pads, 

outparce1s and any phase of development to be completed at a later date) such insurance shall be 

obtained '"~th an owner's rating for the Shopping Center based upon a completed project as 

opposed to a property under development. _;\Jl Special Form Policy(tes) shall be in the amount of 

. the full guaranteed replacement cost, including demolition cost. Landlord shall on the 

Commencement Date, and thereafter upon request of Tenant, pro-c-ide Tenant with a certificate of 

Landlord's Insur:mce coverage from an insurer licensed to do business '"~thin the state in \Vhich the 

Store is located, and \vhich insurer is rated at least B+ and X in Best's Insurance Reports, or 

equi,-aJent. 

9.1.3. Tenant's Share. 

29 (a) Tenant shall be responsible to reimburse Landlord for Tenant's pro rat:a share of 

30 the premium cost for Landlord's Insurance described in Section 9.1.2 above, e.-,:cluding any management 

31 or administrative fees, within thirty (30) days afrer receipt by Tenant of written evidence of Landlord's 

32 payment of the insurance premium, together with a statement, indicating the total cost of the premium 

33 applicable to the Shoppmg Center, accompanied by a copy of the premium billing and the certificate of 

3-J. insurance from Landlord's policy, 111d setting forth such further information as Tenant may reasonably 

35 require r.o substantiate the amount of such premium 111d the manner in which rhe premium and Tenant's 

36 pro rata share thereof have been calculated. If Landlord covers the Store with a Special Form Policy 

37 which includes premises orher rhan the Shopping Center, Landlord shall provide a breakdown indicating 

38 rhe premium portion rhereof attributable to the Store. Tenant's pro rata share for purposes of this 

39 Section 9. l.3(a) sh::ill be that fraction of the total premium the numerater of which is rhe Leasable Floor 

-J.O .-\re-.t of rhe Store and rhe denominator of which is the Leasable Floor .-\rea of rhe lesser of: (i) the 

+t Shopping Center: or (iy rhe :lpplicable portion thereat" for which rhe premium billing W<JS issued by the 

+2 insurer. ·.md which includes the Store (the "Insurance Bill"), prO\·ided. however, in no e>"ent shall the 

Hi:ue:th. FlociJa - 28 - r·,06/08/00 

Project ~" E000002 

61:61..}2.J. ~1•,1\".',6 

/J 'w\_, 

ct 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 33 of 125
l 

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13 

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15 

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deno:nin:i.tor of s:;!c! fru-;ion be less char. rhe ~Gnimu:n Leo.sable Floor Arc:-.! " sot foC:U-. in Sec::ion !.3.2. 

Ter:=' sh:oll not be responsible fer :;.."ly :nterest, !:i-:e cha."gC or o':hcr per.alt'/ r~.ru!ting from L:.ndlord's 

lat: payi-:--.~nr. er nonp·d.·frnl!n! ofche Ln3t:.ranCe ?re:ni'l..:JT:.. 

wr~· ten ~ritten (b' [n ':he event J:.a.,c1ord fails :c provice Sllch =icren •""idenc= of pa;rn""r. afo:er 

~e"t:y (20) days' .o:ice from Tenar.~ and af-..e; z second (2" , fi-;e (S) dzy noc:ice from "!'er,anr. T~n:o."lt 

may obtai:-1 ~"'le s~e c~ similar cove:-age and deduct from R~:"l:: ccmi.'1g d,,;e u~der t:his Lease ar. amount 

equ:.: '°' the ._T.o~"lt of Tenan~; pro ra"1 s:"\arO of the Insur~"lct s;n, w<:ich sum sh•ll be rep.aid to 

Ll1!'\dlord (less the cost o' any insunrice Ter.:i.."lt :arried before Landlord provided the evic:!er.c<: of 

cove:c:ge) ~por. Lwdlord's Ce1've:y to Te~t: of the et.idence he::-ein re~ed cf Lu:dlocd~s p'-yme..ri.: of 

.ruch ~s~irance ?re:'niu"'-'· In the event Tonor.t receives ,. notice of c:ir .. :ella:fon of the Sp~ci-al Focm 

Policy o: o:he: .,-,::Jenee :r.dicati.'lg rhoc Landlord hi..s f':i.i.!d ::o :m.in'olin i:hc Special ?mm PoEcy on the 

S:ore. Ter.am shall r:or be respcnsib;o for reimbursen<:tlt under S<:ction 9.1.3(4)- !n t.loe "''•nt U"\C .. brd 

fuils t:o :~:iinoi.."l rhe Specal Form Policy on the Store md it is not possible fo:r T=na."l~ ro se;>arately 

OSl.\I'e th:: Store, Tcna:1r m.ay obcir. !h~ Specw ?orm Policy for the e"erc Shopping C.,n:::~ :lnd deduc' 

ill premium a.-nounts rcla!.ed th<:reto from R.nt c:omir.g du.. 

(c) IA.n&ocd o~ tz..~d!ord'~ ~~n~ shZ! :;::i..in fu!I omd Cer;"jfc::d :-ei:ords of all :;csrs 

inc-.... rrod by L::.."ld!o:d for 6e Special Form Policy. Co~ies of or.y nf said n:co~d• sh;tl\ b~ rn·;.dc ::.~<ilable 

:o T :.::t;c-.1'. ';.l:Jon rc<:iuest Zl!i.!.! Tc::na.."u· :;~have the ri&.~ to·~t".J.dit -.:JI of 5UC."-l cecorcis~ incb.!dir.g ~he oolicyi 

~er- tltil~/ (30) ~'J.~:s' :ioricc3 with 1 te?rese:i.tt.r.i,.·c of T~:in~s choice, ?roviCed S'...IJ;!l ~udit :>~..all .~ot b-=: 

co,..duc:'d more :!-..:r. cnce ?er ca!e:i6r year. .."..."ly o·,,,rbil!ing discovered :n rhe coune of ~uch >.ud'.t 

sh<J '.>. r~far.d~d ::o Ter.:ir.c :og.:th~r w\6 i.'lte:-es' ao the Legal R.•te S?<:cifi~d i.-: Arncle 2 wi:h!ll thi~ 

(30) 6y;; of 1.a."ldlord's "'ccipr. of :i. copy of t:f>.e '"-!di~ Ir: cli." t<"ent rh: o.-e...,memo:r.t of chJ.."g<S o:cc'ds 

d·.r(;e ?e1~c:er.r. (3%) of the si.:rr: p=cviollSiy b:Jled to Tena."'.t !:iy !..r.dlcrd. L'l!ld!o:d >l1J1! reimburse T"'1'1!lr 

for all ~~enses of 5:..ic:...,, 4.~dit. Land!o::d shz.11 recin Lrs r:cords re~..:.ir:g insu:-.i..,c:: prcrnil.!:r.s for a 

r::ttod of.;:?: ~easi: ~c (2) yea..~ fcllou.i.:ig t..~e final billing fer the ca!~d~ year in qt.t~ti;:t. ,"\t ciny i..-ne 

du_-ing:::\.:::h !':" .. ·Jc (2~ veu~eriod, T~a.n:-::i.ayconducri~:iudic. The expenses of chis audit.:. i:..rhen 

taken cogether "with the eKpenses of the audits in Sections 7.7.4 and 8 .. L .. 5 

9 2 ]'. b·u I shal.l not exceed Four Thousand Dollars ($4,000) per year. . . _1a t t)" nsurancc. . 

9.2.l. T.:1"13r;I". T~~i.~t ::th:.lll, at :ts salt: cos: wd exoe:ts~. :o~:no::.:i.ci.'1g of• r.ht: D~t~·Je:V 

Da~e. ::.r,d :i.r a!! :trn•• d:.iring r:,e Ter:n, keep in force <. polic:y or policios oF cn:n:nerci<.I gene;! 

li<L~ilicy ir:.:~~-""tc~. er :r. ~:idcrse...-nen~ on ~ blank!:t cornm::::-c~al ge:-ieral l.i2biL::v ins~:-ar.c:~ oolicv or 

?Oilcies, na.-ning L01."ld!ord as '"" :dd!t:onal ir.su:e:i, prot~cting ag-;insr (""=•pr.· ro rhc o:<r.e~r c:a~sed 

·oy r.hc: :-:cgligence or willful ~=t of Landlord or i:s ::gents, ccn~nc:r.ors, •mployees or re;:irese:n:iti·:c:s 

a::.d no~ wa!v:cl pt: Sccrior. 9.4. hereof) ~ny a..-'!.d all cl.:.irns a.."'l:.i h•tbilitcs ~iris:r.g cur cf l:tiu~es r:o c~ 

:-f._e d~ai::h of :any persons in ti.:,,e Stor:, or for prc?CC'tY dam~e t.~::rc:i.~. 1n :ht: ~inimu:n ~tri\OUnt of 

THREE ~~l:.L!O:--J DOLL.'...11..S (S3,000,COO) ~cmb:ned $triglo ~ir.iit for ''-'1J' one. ncc~r:erice at i:.~= 

Store (.:.~~ .. at ±i:i l:::c::i.ric:i.) ~o :o~g :i.:; Ten~.~ a:so ::~~ies an e:-:cess :i:i·bility ?ullc·1 ~hi.:- cov~~g-e of 

whi:n l!1=.'.udes :he Stor., ·md r.hc policy 'Ur.OU.."\'- o~ w'.-,ich :s ac !e:isc FI'l.'E MIU!O?\" oou:.>..Rs 

:ss.000.000;. S· . .i..:d poh-:y or po.!-:i.o:.s sha!l cor:.~:i ;.:, cro:>s·E~hi!ity cnC.::>rse:ne:ir, a.."'!.d shall 0:l!: "~i~l• ::.ri 

::i.s .... 1:er -u:hi::!"i. '...S :;i::ed ilt l~a.s4; .~- ;:r,d X :~ Bcs~·s r:-.su~r.cc 1le?:iro, o: :~·...1iv.::..ien:. 

9'.2.2. bndiord. G.nC:lord shall, s•.ib;ect to r~n·.:...'1($ r•im;,1"rserr.cr:: <:.:< provided 

!"H:~:'t:~t:~: in ::h::i' Si.:crior. 9.2.2, c:o~:r.encing er. r.hc Dc!i"·e:y Date, ~ d::!~c:d ::1 :\rri.:le 2 nere:of. 

a..-:.d ~i: ~-~ .rit:'l.es d-.!:~n.g .. the::. Tc:rn, kt::t:p or c-..i.u3e to be ke?: i:i ~c~cc:: :~ ?oli:;y or pulic?:s of 

co:n..-n.:::r.;1J..L gc.i~nt hlo:!.-:y 1r:.s•,;:;:...'"l·.:~ for :be Common 1\:e.~ or i1. ~.·.do:s~."'n:nt on :i Cl.::.!'i~~-: 

=-:i::Uc:.i: .. fl.c:i;t: 

r'roici:.t ~'\,,'<C1. 'E:OOC002. 

..;r:.s;.:;:.r.1 :=:-::117 d 

.. 29 . 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 34 of 125
l commercial general liability insurance policy or policies naming Tenant as an additional insured, 

2 protecting against (except to the extent caused by the negligence or willful act of Tenant or its 

3 agents, contractors, invitees, employees or representatives and not waived per Section 9.4 hereot) 

4 any and all claims and liabilities arising out of injuries to or the death of any persons in the 

:i Common Area and the Store or for property damage therein, in the minimum amount of FIVE 

G MILLION DOLL'\RS (SS,000,000) combined single limit for any one occurrence. Said policy or 

7 policies shall include contractual liability insurance recognizing the liability assumed in Section 14.2, 

8 contain a cross-liability endorsement, and shall be with an insurer which is rated at least B+ and X 

9 in Best's Insurance Reports, or equivalent. Tenant shall reimburse Landlord for its pro rata share 

10 of Landlord's commercial general liability insurance in the manner of calculation provided in 

11 Section 9 .1.3 above. 

12 9.3. Evidence of Insurance. 

13 Landlord and Tenant agree to deliver to the other certificates of insurance evidencing the 

14 e..xistence in force of the policies of insurance described in Sections 9.2. l and 9.2.2, together with 

15 endorsements showing that the parties have been named as additional insureds. Each of the 

lG certificates shall provide that such insurance shall not be canceled or materially amended unless ·at 

17 least twenty (20) days' prior written notice of such cancellation or amendment is given to the party 

18 designated on such certificate as the holder thereof. 

19 9.4. Waiver of Subrogation. 

20 On and after the Delivery Date and throughout the Term, Landlord and Tenant hereby 

21 waive and release any and all right to maintain a direct action to recover against the other, including 

22 the employees, officers, directors and agents of Landlord and Tenant, for damages and any and all 

23 loss (including loss of Rent) to any property located within the Store or the Shopping Center, 

24 which damage or loss occurs during a period which is covered or could be covered by a Special 

25 Form Policy required under this Lease, and which arises out of the other party's negligence or 

26 otherwise tortious acts or omissions, but only to the extent that the cost of repairing such damage 

27 or loss is covered by insurance required under this Lease, or would have been covered by insurance 

28 proceeds payable under any policy required to be maintained under this Lease, but not so 

29 maintained. Each policy of such insurance shall either, (a) contain a waiver of subrogation by the 

30 insurer against Tenant and Landlord, as the case may be, or (b) include the name of the Landlord or 

31 Tenant, as the case may be, as an additional insured, but not as a party, to whom any loss shall be 

32 made payable. In the event a party is unable to obtain such a waiver, it shall immediately notify the 

33 other of this inability. In the absence of such notification, each party shall be deemed to have 

34 obtained such waiver of subrogation. Further, Tenant's agreement to indemnify Landlord, and 

35 Landlord's agreement to indemnify Tenant under this Lease, are not intended and shall not relieve 

36 any insurance carrier of its obligations under policies required to be carried by Tenant or Landlord 

37 pursuant to the provisions of this Lease, to the e..xtent such policies cover, or if carried would have 

38 covered the matters subject to the parties' respective indemnification oblig;ttions; nor shall they 

39 supersede any inconsistent agreement of the parties set forth in any other provision of this Lease. 

40 This mutual \vaiver is in addition to any other waiver or release contained in this Lease. The 

41 provisions of this Section 9.4 shall not apply to Landlord's obligation to repair and replace any 

42 portion of the Store and Tenant's merchandise damaged by roof leaks as specified in Section 11.2.1. 

Hi:tleah. Florida 

Pcojcct 0io. EOll0002 

6061.32.~/2.2.HJl"J .6 

- 30 -

I 

i)(,/08/00 

~\. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 35 of 125
9.5. Tenant's Right to Self-Insure. 

2 Notwithstanding anything to the contrary herein contained, the Tenant described in 

3 Section 1.2.2 (the "Signatory Tenant") shall have the option, either alone or in conjunction with any 

4 parent, subsidiaries or affiliates of Signatory Tenant, provided Signatory Tenant (or Guarantor, if 

5 any), has a minimum net worth of at least TWENTY MILLION DOLLARS ($20,000,000), to 

6 maintain self-insurance (except the liability insurance specified in Section 9.2.1) and/or provide or 

7 maintain any insurance required by Signatory Tenant under this Lease under blanket and/ or broad 

8 form insurance policies maintained by Signatory Tenant or by any such parent, subsidiaries or 

9 affiliates of Signatory Tenant, provided the same does not thereby decrease the insurance coverage 

10 or limits set forth in this Lease. :\ny self-insurance shall be deemed to contain all of the terms and 

11 conditions applicable to such insurance as required in this Lease, including, without limitation, a full 

12 waiver of subrogation. If Signatory Tenant elects to so self-insure, then with respect to any claims 

13 which may result from incidents occurring during the Lease Term, such self-insurance obligation 

14 shall survive the expiration or earlier termination of this Lease to the same extent as the insurance 

15 required would survive. 

16 10. UTILITIES SERVICES 

17 As of the Delivery Date, Landlord agrees to make available for Tenant's use at the Store all 

18 necessary utilities including electric, water, gas, sewerage, as well as access (but not the system itself) 

19 for Tenant's communications and telephone, all sufficient to service Tenant's operations, and 

20 having no less capacity than specified in the Final Plans (as defined in Exhibit C). Notwithstanding 

21 the foregoing, Landlord shall not be obligated to provide Tenant with DSL, T-1 cable or Internet 

22 or other similar communications lines. Tenant agrees to pay all use charges for all such utilities 

23 provided to the Store commencing on the Delivery Date and throughout the Term. If Landlord or 

24 <Ul affiliated company of Landlord provides some or all of such utility services, Tenant's obligation 

25 to pay for such services shall be commercially reasonable rates charged by regional or local utility 

26 providers. At all times during the Term, Tenant shall have the right to contract with any third party 

27 of Tenant's choice to provide some or all of the utility services for the Store. Landlord shall, at 

28 Landlord's sole cost and expense, pay for all utility hookup, connection or impact fees and permits. 

29 Landlord shall separate out all utilities and install separate meters for the Store. The utilities shall be 

30 registered by Tenant in Tenant's name. Tenant shall be entitled to collect, and Landlord shall 

31 cooperate with Tenant in collecting, any rebate which is made available by a utility company for the 

32 installation of energy efficient lighting. 

33 11. MAINTENANCE/REPAIR/ENVIRONMENTAL COMPLIANCE 

34 11.1. Maintenance and Repair by Tenant. 

35 Subject to the terms of _-\rt:icles 21 and 22, Tenant shall maintain the storefront (except 

36 canopy) plate glass, and all exterior doors, as well as the interior and interior systems (including 

37 interior sprinkler heads and sprinkler recertification in the event Tenant modifies the sprinkler 

38 system) serving the Store (except for Landlord's interior and systems maintenance obligations 

39 under Section 11.2 hereot), in good repair and condition, reasomble wear and tear excepted. 

40 Tenant shall, at its expense, perform or cause to be performed all mainternmce ;md servicing of the 

41 heating, ventilating, and air conditioning system serving the Store (the "HV:\.C") in accordance ,yjth 

Hialeah. Florida 

Proiect >lo. E000002 

61'!6 LJ,::.1, 2:?.10 ti .6 

- 3 l - \ 

( Ll(,/{18/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 36 of 125
1 the terms of a customary air conditioning service contract as performed by reputable service 

2 companies in the state in which the Shopping Center is located. However, neither Landlord nor 

3 Tenant shall be responsible for any "replacements" to the H'i/_-\.C beyond maintenance and 

+ servicing (other than replacements of noncapital components, such as air filters). _-\."replacement" 

J as that term is used in this Section 11.1 shall mean that the compressor, condenser, motors, the 

6 chiller, duct work or heating/ cooling coils must be removed and replaced by new equipment. 

7 11.2.. Maintenance and Repair by Landlord. 

8 11.2.1. Landlord's Obligations. Landlord shall, at its sole cost and expense (not passed 

9 through to Tenant as a Tenant Common Area Reimbursement or otherwise), be responsible for 

10 defects in the construction of the Store, and shall maintain, repair and replace the foundation, floor 

11 slab, flooring (to the extent damaged by slab movement or roof leaking), roof, roofing (including 

12 the interior ceiling, walls, Hoors and merchandise damaged from roof or gutter leaks which are the 

13 resu.!t of Landlord's active or passive negligence), roof drainage system, including gutters and 

14 downspouts, exterior walls, storefront canopy, all structural portions of the Store, sprinkler system 

15 (including the monitoring and testing the;-eof but excluding interior sprinkler heads), all concealed 

16 wiring and plumbing, pipes, conduits and ·utility systems and lines inside the Store, including in the 

17 exterior walls and interior walls of the Store, and Landlord shall maintain and repair all such wiring, 

18 plumbing, pipes, conduits and utility systems and lines outside the Store, whether exclusively serving 

19 the Store or not, in good and sightly condition consistent '"~th comparable shopping center 

20 facilities in the county in which the Shopping Center is located. Landlord shall maintain and repair 

21 any damage or defects in any part of the Store caused by rhe acts or omissions of Landlord, its 

22 agents or contractors regardless of which party has the maintenance obligation under this 

23 _,.\rticle 11. Tenant may give Landlord notice of the need for such repairs as may be required under 

24 the terms of this Section 11.2, and Landlord shall proceed forthwith to effect the same with 

25 reasonable diligence, but in no event later than thirty (30) days after having received notice. If 

26 Landlord fails to repair or maintain the Store within the thirty (30) day period imposed herein, or 

27 such additional reasonable time as shall be required, provided that Landlord has commenced cure 

28 within the thirty (30) day period and is diligently prosecuting such cure to completion (which 

29 additional reasonable rime shall not in any event exceed si.,tv (60) days) then, provided Tenant 

30 notifies Landlord in writing and Landlord still does not repair same within ten (HJ) days of Tenant's 

31 notice, Tenant may perform the repairs, maintenance or replacements and deduct the cost thereof 

32 from the subsequent Rent payment(s) ne..'-:t coming due if not paid within thirty (30) days after 

33 receipt of billing therefor from Tenant. In the event of an emergency, with respect to the roof of 

34 the Store, and with as much notice as is reasonable under the circumstances, which notice shall 

35 consist of calling the Shopping Center offices at (305) 821-7111 and waiting at least four(+) hours 

36 for response, Tenant may undertake immediate repairs which are Landlord's responsibility. If 

37 Landlord shall fail to reimburse Tenant for the cost of an emergency repair within thirty (30) days 

· 38 after receipt of billing therefor from Tenant, Tenant may deduct the cost from the subsequent 

39 installments of Rent payment(s) thereafter coming due. 

40 11.2.2. Earth Movement. Landlord agrees that cmy maintenance, repairs, alterations or 

+1 repbcements that shall be required at any time on or after the Delivery Date -.ind during the Term 

42 of this Lease as a result of movement of the Store such 'is settling, or as the result of settling of the 

43 Common ,-\.re::is without charge to Tenant whether directly or through Reimbursements. 

Hi:ilc:Lh. Florida - 32 - <>6/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 37 of 125
1 

2 

3 

4 

5 

6 

7 

8 

9 

11.2.3. First Year Repairs. Notwithstanding the foregoing provisions of Section 11.1 

above, Landlord shall make all repairs, alterations and replacements (other than those required as 

the result of repairs, alterations, replacements, other improvements or installations by Tenant or 

any subtenant or concessionaire of Tenant or the agents of any of them) to the Store which may 

become necessary for any cause except for Tenant's negligence or willful acts or omissions on or 

after the Delivery Date and during the first twelve (12) months of the Term. 

11.2.4. Shopping Center Maintenence. Landlord shall, at no cost or expense to Tenant, 

maintain and repair all buildings within the Shopping Center in good condition, consistent with the 

standards for comparable shopping centers in the county in which the Shopping Center is located. 

10 11.3. Repairs Required by Governmental Authorities. 

11 11.3.1. St=. .t\fter completion of Landlord's Construction Obligations, any repairs, 

12 alterations or other improvements to the Store required by governmental authority or insurance 

13 rating bureau having jurisdiction shall be performed by Tenant at its sole cost and expense. Any 

14 such work, however, which is required to the Shopping Center in general, other than for tenants or 

15 occupants obligated similarly to Tenant, or to all similar buildings or uses in the area of the 

16 Shopping Center, shall be done at the sole cost and expense of Landlord. 

17 11.3.2. Shopping Center. Landlord warrants that the construction and the proposed 

18 use of the Shopping Center's Common Areas and buildings, including the Store, for retail and 

19 office purposes shall comply with all laws, ordinances, regulations and standards of public 

20 authorities and insurance rating bureaus having jurisdiction, including, without limitation, 

21 Environmental Regulations, as hereinafter defined, and zoning and building codes as of the 

22 Delivery Date (all of the foregoing being hereinafter collectively referred to as the "Requirements"). 

23 11.3.3. Non-Compliance. Landlord agrees that if, at any time on or after the Delivery 

24 Date, any public authorities or insurance rating bureau having jurisdiction shall determine that as of 

25 the Delivery Date the portion of the Store comprising Landlord's \X'ork, or any portion of the 

26 Shopping Center other than the Store was constructed, in violation of, any Requirement and shall 

27 request compliance, with any Requirement or, absent such a request from the government 

28 authority, if the portion of the Store comprising Landlord's Work or any portion of the Shopping 

29 Center other than the Store is otherwise not in compliance ·with or is in violation of any 

30 Requirement, and if failure to comply shall in any way adversely affect the use of the Store by 

31 Tenant or adversely affect any other rights of Tenant under this Lease or impose any obligation 

32 upon Tenant not contained in this Lease or shall increase the obligation of Tenant (such as, by way 

33 of example, incre1Sed insurance costs), Landlord shall, upon receipt of notice thereof, at Landlord's 

34 sole cost and expense, cause such repairs, alterations or other work to be done or action to be taken 

35 so as to bring :i.bout the compliance, or to effect the Requirement requested. If by reason of such 

36 failure of compliance or by reason of such repairs, alterations or other work done by Landlord, 

37 Tenant shall be deprived of the use or enjoyment of the whole or any material part of the Store or 

38 the Common _-\reas, Rent shall :ibate and in lieu thereof Tenant shall pay Substitute Rent on a per 

39 diem basis until compli:mce with the Requiremen.t is completed. 

40 11.3.4. Zoning. If, from and after the Delivery Date, the applicable zoning shall not 

-11 permit the retail sale of :ipparel, soft goods, and merchandise customarily sold in Tenant's Florida 

Hi,tle,ih, Florida 

Proiect :-.Jo. EilOOOO:! 

6061.3:4.' 221017.6 

- 33 -

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 38 of 125
1 stores, Tenant may, without waiving any other rights Tenant may have on account thereof, 

2 terminate this Lease by giving notice thereof to Landlord. 

3 11.4. Hazardous Material. 

+ 11.4.1. Definition. .A.s used herein, the term "Hazardous Material" or "Hazardous 

5 Materials" shall mean (a) any waste, material or substance (whether in the form of a liquid, a solid, 

6 or a gas and whether or not air-borne), which is or is deemed by governmental authority to be a 

7 pollutant or a contaminant, or which is or is deemed by governmental authority to be hazardous, 

8 toxic, ignitable, reactive, corrosive, dangerous, harmful or injurious, or which presents a risk, to 

9 public health or to the environment, or which is or may become regulated by or under the authority 

10 of any applicable local, state or federal laws, judgments, ordinances, orders, rules, regulations, codes 

11 or other governmental restrictions, guidelines or requirements, any amendments or successor(s) 

12 thereto, replacements thereof or publications promulgated pursuant thereto ("Environmental 

13 Regulation"); (b) petroleum, including crude oil or any fraction thereof; (c) any asbestos or asbestos 

14 containing material, (d) any polychlorinated biphenyl; (e) any radioactive material; and (f) urea 

15 formaldehyde. 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

+1 

11.4.2. 

warr:mts that: 

Landlord's Warranties and Representations. Landlord expressly represents and 

(a) To its actual knowledge, no escape, seepage, leakage, spilbge, discharge, emission, 

release or disposal of Hazardous :'vfaterial has occurred within the Store to date, :md the Store, as well as 

the soil, groundwater and soil vapor within or under the Store, are free of Hazardous Material as of the 

Effective Date, and will be free of Hazardous Material as of the Delivery Date and throughout the Lease 

Term. 

(b) It shall not use or knowingly permit any Hazardous i'vfaterials to be used in the 

construction of the Store or in connection with the installation of anv utilitv svstem or other facilitv J • • " " 

which serves the Store including by way of example, but not by limitation, the interior of any partition or 

demising walls, whether structural or otherv;ise, columns or beams, and all utility lines, shafts <md ducts, 

HV.A.C or other equipment. Such utility systems and other facilities as hereinabove described, whether 

located in the Store or other portions of the building or the Shopping Center, shall be collectively 

referred to as "Support Systems." 

11.4.3. Landlord's Responsibilities Prior to the Delivery Date to Tenant. Prior to the 

Delivery Date, Landlord shall cause the Store to be inspected, at its sole cost and expense, by a 

licensed environmental consultant who shall issue a report and certificate relating to the Hazardous 

Materials content of the Store, including all portions thereof as described above, including all 

Support Systems, as described above. Landlord shall furnish ro Tenant a copy of the inspector's 

report certifying that the Store is free of Hazardous Materials. If Hazardous :\!aterials are found to 

be present, then Landlord, at its sole cost and expense, shall cause such Hazardous Materials to be 

removed from the Store (hereinafter referred to as the "Abatement Work"), and Landlord shall 

complete such removal prior to the Delivery Date. Upon completii;m of the .A.batement Work, 

L:.mdlord shall furnish Tenant evidence of removal of the Hazardous '.Vfaterial, including copies of 

the final inspection report together with a Clearance Certificate or other document of release or 

appro•·al from any applicable governmental authority as aforesaid. 

Hiale:!h. Florida 

Project 1'o. E00{)(lll2 

U1J6l.324: 22UH7.0 

- 3+-

('. 

l 06/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 39 of 125
11.4.4. Landlord's Responsibilities After the Deliverv O;ite. [f Hazardous Materials are 

2 found to be present in the Store, at any time after delivery of possession of the Store to Tenant, 

3 then Tenant shall have the right to vacate the Store, at which time all Rent shall abate, unless the 

4 Hazardous Materials were introduced by Tenant, its agents, employees or contractors. Landlord 

~ shall, at its sole cost and expense, complete such Abatement Work as soon as practicable after the 

G discovery of such Hazardous Materials. Upon completion of the .\batement Work, Landlord shall 

7 furnish Tenant with a copy of the Clearance Certificate. During such ,\batement Work, Tenant's 

8 fixturization or construction period, if applicable (as provided for elsewhere in tbis Lease), shall be 

9 -tolled until the Abatement Work is complete and a Clearance Certificate is issued. In the event 

10 Landlord is required to undertake _A.batement Work, it is understood and agreed tbat Landlord shall 

11 be responsible for the cost of the replacement of all of Tenant's improvements and alterations 

12 damaged or destroyed as a result of such Abatement Work. If Tenant is required to undertake 

13 Abatement Work because the Hazardous Materials were introduced by Tenant, Tenant shall be 

14 responsible for the cost of the Abatement Work and any work necessary to repair and replace the 

15 Store. 

16 11.4.5. Tenant's Rights. 

17 (a) Tenant's .A.wareness of Hazardous Materials. It~ at any time, Tenant becomes 

18 a"'-:ire at· the presence of Hazardous Materials in the Store, Tenant shall give Landlord written notice to 

19 remove and/ or abate same and to restore the Store to a condition which is free of Hazardous Materials, 

20 unless the presence of such Hazardous i'vfaterials was a result of the acts or omissions of Tenant, its 

21 employees, agents or contractors. If within sixty (GO) days of receipt of such notice Landlord has not 

22 completed or commenced (which commencement shall include, but not be limited to, seeking approval 

23 of a remediation plan from applicable governmental entities) and diligently proceeded toward completion 

24 of the Abatement Work, Tenant may either (D terminate this Lease upon thirty (30) days' written notice 

25 to Landlord, or (ii) undertake all necessary Abatement Work, including tbe hiring of any contrac<:ors and 

26 e."'<perts Tenant re-JSonably deems necessary to effect and supervise tbe Abatement \"Vork. 

27 (b) Chim Against Landlord. If Tenant effects .-\batement Work, Tenant shall be 

28 entitled to claim from Landlord all reasonable costs and expenses associated there\\;th, including, but not 

29 limited to, (D the Abatement Work, (n) disposal of Hazardous Materials, (iii) :i.ir quality and materials 

30 testing, (iv) related consultants' and e."'<Perts' fees, and (v) fines, fees or costs of ;my nature whatsoever 

31 charged or assessed by any governmental authority or agency regulating and/ or supervising such 

32 Abatement Work and/or disposal of Hazardous Materials. 

33 (c) Reimbursement of Tenant. Landlord shall promptly reimburse Tenant for 

34 Tenant's costs and e.-<;:penses incurred pursuant to Section 11.4.S(b) above \\;thin thirty (30) days after 

35 Landlord's receipt of copies of Tenant's paid invoices or documentation. In addition to any other 

36 remedy which Temmt may have under this Lease, at law or in equity, in the event of Lmdlord's breach of 

37 any of the provisions of this Section 11.4, Tenant shall be entitled (D to deduct from Rent p<tyable to 

38 Landlord hereunder all consequencial damages (including lost profits), expenses. costs, fees and fines 

39 incurred by it as a res~lt of such breach, and (ii) to e."'<tend the Term hereof by ;t period equal to the time 

40 elapsed from the date of Tenant's initial notice to Landlord to the date that the .-\batement Work is 

41 completed, :md during such period, all Rent ;md other charges payable hereunder sh:.t!l abate. 

42 11.4.6. Landlord's [ndemnity. Excepting Hazardous :'vfo.terials introduced by Tenant, its 

43 employees, contractors or agents, or existing solely as a result of Ten:mt's negligence or willful 

Hialeah. Florida · 35 - ;·.\\ ll(,/llK/liU 

Project >io. EOOOOOZ 

6()6 L.324:'221017.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 40 of 125
misconduct, Landlord hereby indemnifies Tenant and its successors and assigns, :ind agrees to hold 

2 Tenant and its successors IDd assigns harmless from and against any :lfld all losses, liabilities, 

3 damages, injuries, penalties, fines, costs, expenses and claims of =y and every kind whatsoever, 

+ including, without limitation, attorneys' :lfld consultants' fees and costs, and the costs of cleanup, 

~ remediation, :\batement Work, paid, incurred or suffered by, or asserted against, Tenant and/ or its 

6 successors and/ or assigns as a result of any claim, demand or judicial or administrative action by any 

7 person or entity (including governmental or private entities) for, with respect to, or as a direct or 

8 indirect result of, the presence on or under, or the escape, seepage, leakage, spillage, discharge, 

9 emission, release or disposal on, under or from the Shopping Center or the improvements thereon 

10 of any Hazardous Material, or the breach of any Environmental Regulation to which Landlord or 

11 any portion of the Shopping Center is subject. The representations, \varranties and indemnity 

12 contained in this Section 11.+ shall survive the termination of this Lease. Landlord shall be solelv 

13 responsible for =cl shall comply ,,.;th all laws, rules, ordinances or regulations of any governmenttl 

1+ authority having jurisdiction over the Store and the Shopping Center \vith respect to the presence 

IS or removal of Hazardous Materials. 

16 ll.4.7. Tenant Responsibilities. Tenant shall not use, generate, manufacture, produce, 

17 store, treat, dispose or permit the escape on, under, about or from the Store, or any part thereof, 

18 any Hazardous Materials in violation of any Environmental Regulations. Furrher, Tenant shall not 

l 9 use, generate, manufacture, produce, store, treat, dispose or permit the escape on, under, about or 

20 from the Store in violation of any Environmental Regulations, any material, substance, or chemical 

21 which is regulated by any federal, state or local law, rule, ordinance or regulation (collectively 

22 "Regulated Materials"). In the event Landlord approves a proposed use. st.or:i.ge and disposal of 

23 specific Hazardous Materials and/ or Regulated Materials in the Store, Tenant shall comply with all 

2+ laws, rules, regulations, statutes and ordinances with respect to such use and storage, including, 

25 without limitation, the removal and disposal of such hazardous Materials and/ or Regulated 

26 :'vfaterials at the expiration or earlier termination of the Lease Term. ~otwithstanding anything to 

27 the contrary contained in this Lease, in the event any of the equipment installed by Tenant and 

28 serving me Store such as, but not limited to, refrigerators. air conditioning systems, and 

29 supplemental }{\/:\C systems utilize refrigerants containing chlorofluorocarbons ("CFCs"), 

30 Landlord, in its sole discretion, shall have the option to require Tenant to remo"e such equipment 

3 l at the expiration or earlier termination of the Lease Term. In addition, Tenant shall be responsible 

32 for compliance "~th all laws, rules, regulations, statutes and ordinances with respect to such 

33 - equipment =d/or the use of CFCs which may include the removal and disposal of such equipment. 

34 Ienaor Indemnity. Excepting as to Hazardous Materials introduced by Landlord, its 

35 employecos, agents or contractors, or existing solely as :i result of L=dlord's negligence or willful 

36 misconduct, Ten:lllt hereby indemnifies Landlord and its successors :llld assigns and agrees to hold 

37 L=dlorcl and its successors .ind assigns harmless from and ctg.:Linst cmy cmd all losses, liabilities, 

38 damages,, injuries. penalties, tines, costs, expenses :llld claims of .my kind whatsoe\·er, including, 

39 \Vithout [imitation, attorneys' :ind consultants' fees :llld costs, and the cost of cleanup, remediation, 

+O Abatement \Vork, paid, incurred or suffered by, or asserted against L.indlord <md/ or its successors 

+l =d/ or assigns as a result of my claim, demand or judicial or administrative <lction by any person or 

+2 entity (including govemment:tl or private entities) for. with respecr to. or ·,t:; .t direct or indirect . d around I k ·11 d' h . . +3 result ot rhe presence on or un er, or tne escape. seepage. ea ·:ige. spt age, tsc arge, em1sst0n, 

++ rele-.JSe or disposal in, on, under or from t.he Store of ;my H;tzardous \farerial. or the breach of :ll1Y 

'1-5 Em·ironment:!.I Regulaaon to which Tenant or mv part of rhe ::irore is bject. The 

Hialeah. Florida . 36 . t16/ll8/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 41 of 125
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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 43 of 125
1 representations, warranties and indemnity contained in this Section l l.4 shall survive the 

2 termination of this Lease. 

3 11.4.8. 13.aQ.Qn. Radon is a naturally occurring radioactive gas that, when it has 

4 accumulated in a building in sufficient quantities, may present health risks to persons who are 

~ exposed to it over time. Levels of radon that exceed federal and state guidelines have been found 

6 in buildings in Florida. Additional information regarding radon and radon testing may be obtained 

7 from your county public health unit. 

8 12. ALTERATIONS 

9 12.1. Permitted Alterations. 

10 12.1.1. Tenant may make non-structural alterations or improvements to the interior of 

11 the Store which do not affect systems serving the Store or other portions of the Shopping Center, 

12 in a good and workmanlike manner, and in conformity with all laws, ordinances and regulations of 

13 public authorities having jurisdiction. Tenant shall not make any alterations to the foundation, roof, 

14 or any structural portions -of the Store without first obtaining the written approval of Landlord, 

15 except as specified in Section 12.2. Such approval may not be unreasonably withheld, conditioned 

16 or delayed. .-\ny disapproval shall be supported by a written statement of reasons and suggested 

17 revisions to the proposed work that, if incorporated by Tenant, shall constitute the plans as 

18 approved without further review by Landlord. Subject to subsection 12.1.2 following, all alterations 

19 and improvements made to the Store by Landlord or Tenant (other than Store furniture, trade 

20 fixtures, equipment and personal property installed by Tenant), shall, at the end of the Term, 

21 become Lanrllord's property, and, at the end of the Term, shall remain in the Store without 

22 compensation to Tenant, unless otherwise stated in this Lease to the contrary. 

23 12.1.2. It is further agreed that upon termination of this Lease, Tenant must remove its 

24 furniture, fixtures, equipment and personal property, and Landlord will accept the Store, with all 

25 alterations made by Tenant, without any obligation upon Tenant to restore the Store to its former 

26 condition; provided, however, Tenant shall repair any damage caused by any removal of Tenant's 

27 fixtures and equipment. 

28 12.1.3. All Tenant alterations shall be subject to the following: 

29 (a) Cost ofTemnt's Alterations. Tenant's alterations shall be performed by Tenant 

30 at Tenant's sole cost and expense. 

31 (b) Compliance. Tenant will perform all Tenant's alterations with reasonable 

32 dispatch, using only ne\V, first clJ.Ss materials and supplies, in a good and ·workmanlike mmner in 

33 accordance ,,;th Tenant's plans cind with all Legal Requirements and any and all approvals, permits, 

34 licenses or consents required by :my ordinance, law or public regulations or by wy authority at any time 

35 having jurisdiction and in accordance with the requirements of any public or quasi-public body having 

36 simibr jurisdiction. Tenant warrants that Tenant's ,tlterations, when completed, will comply with all Legal 

37 Requirements, :md that the Shopping Center shall not violate any Legal Requirements as a result of 

38 Tenant's alterations. 

Hialeah. Florida 

Proiect :\o. EilllOilil2 

606!.324 '22!011.6 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 45 of 125
1 (c) Mechanic's Lien. The cost of Tenant's alterations shall be paid by Tenant in 

2 cash or its equivalent, so that the Store and the Shopping Center shall at all times be free of liens for 

3 labor and materials supplied in connection with Tenant's alterations. !fat any rime the Store or the 

4 Shopping Center shall be encumbered by any mechanics' or other liens, charges or claims for the 

~ payment of money or otherwise, or any violations or other encumbrances of any and all kinds, nature 

6 and description, growing out of or in connection with Tenant's alterations or any other matter pertaining 

7 to Tenant, then Tenant shall, within Menty (20) days after receipt of notice of same or request by 

8 Landlord, prove to the satisfaction of Landlord that every such claim and charge has been fully paid, 

9 provided for, and discharged or bonded. Without limiting Tenant's liability for tail.ure to comply with 

10 this paragraph, if Landlord bonds or discharges any mechanic's or other lien upon Tenant's failure to do 

11 so, then, in addition to the cost of such bonding or discharging and all other costs and disbursements 

12 which Tenant would owe to Landlord in respect of same hereunder, Tenant sh;tll also pay to Landlord 

13 the greater of One Thousand Dollars ($1,IJOO) or Landlord's actual legal fees inmrred in connection 

14 there<.v-ith. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to 

15 subject the estate of Landlord to liability under the Construction Lien Law of the State of Florida as set 

16 forth in Chapter 713, Florida Statutes, it being expressly understood that Landlord's estate shall not be 

17 subject to such liability. Tenant agrees to include in the Memorandum of Lease .described in Section 

18 26.16 below the verbatim l:mguage of this Section 12.1.3(c). 

19 (d) lnsumce. During the course of Tenant's alterations, Tenant (and all of its 

20 contractors and subcontractors) ,vi]l carry or cause to be carried adequate Worker's Compensation 

21 Insurance, Builders Risk, Comprehensive General Liability and such other insur:mce as may be required 

22 by law to be carried by Landlord or Tenant or required by ,'\rticle 9 hereof in connection with such 

23 construction, and such insurance (e.-,:cept the Worker's Compensation lnsumce) shall name Landlord, 

24 Landlord's managing agent, and all mortgagees and ground lessors and such other p~rrties as Landlord 

25 shall designate as additional insureds. 

26 (e) ~on-Interference .• -\II of Tenant's alter:itions shall be done in such a manner so 

27 as not to interfere with, delay, or impose any expense upon Landlord in the maintenance of the 

28 Shopping Center; nor to physically affect any part of the Shopping Center outside the interior of the 

29 Store: nor impair the structural integrity of any building nor affect the proper functioning of any of the 

30 mechanical, electrical, H\r_-\.C, plumbing, sanitary or other systems of the Shopping Center. In addition, 

31 Tenant agrees that all of Tenant's Work shall be performed in a manner which 'viii not create any work 

32 stoppage, labor disruption or dispute or violate Landlord's union contracts (if any) affecting the 

33 Shopping Center, nor ,viJl it interfere with the business of Landlord, or with any other tenant or 

34 ocmpant of the Shopping Center. 

35 (f) Permits. No Tenant's alterations shall be undertaken until Tenant shall have 

36 procured and paid for, so far as the same may be required from time to time, all permits and 

37 authorizations of all municipal departments and governmental subcfr<-isions having jurisdiction. 

38 12.2. Communication Equipment. 

39 

40 

41 

42 

43 

12.2.1. At any time subsequent to the Delivery Date, Tenant shall h;ive the right to 

place upon the Store one or more so-called "satellite dish(es)" or other similar device(s) and to 

replace, remove, :ind repair any such device(s), such as antenna, for the purpose of receiving and 

sending radio, television, computer, telephone, or other communic:ttion signals (collectively, the 

::e::~;~~::tion Equipment"). Any such i~::~ation sh:tll be in :iccordance with pl(ft:s: 

Project >io. Ell(l0Ll02 

6i!6LJ:.-1. :!ll(Jli.6 

\. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 46 of 125
1 specifications approved in advance by Landlord. Such equipment shall be installed in a location or 

2 locations substantially shielded from visibility from the principal frontages of the Shopping Center. 

3 Tenant shall be responsible for any damage to the Store caused by installing, removing, replacing, or 

4 repairing any such device(s). 

J 12.2.2. In the event Landlord desires to perform roof repairs and/ or roof replacements 

6 to the Store and/ or the building or its rooftop equipment in which the Store is located (the "Roof 

7 Repairs"), Landlord shall give Tenant at least fifteen (15) days (except in an emergency when 

8 reasonable notice shall be required) prior written notice of the date Landlord intends to commence 

9 such Roof Repairs. Tenant shall, within twenty (20) days following receipt of such notice, 

10 undertake such measures as it deems suitable to protect its Communication Equipment from 

11 interference by Land.lord, its agents, contractors or employees, in the course of any Roof Repairs. 

12 Nothing herem shall relieve Landlord of its obligation not to cause any interference with, or damai'e 

13 to, the Communicaoon Equipment, and Landlord shall remain fully responsible for any loss, cost, 

14 or claim resulting from any damage to any part of the Communication Equipment arising as a result 

15 of the Roof Repairs. 

16 13. NON-DISTURBANCE AND SUBORDINATION/ 

17 ESTOPPEL CERTIFICATES 

18 13.1. Non-Disturbance and Subordination. 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

13.1.1. Existing Loans/Mo-'ter Lease(;;). Landlord covenants to obtain from each 

lender whose loan is secured by the Store or the Shopping Center, within sixty (60) days after the 

execution of this Lease, an executed agreement ("Non-Disturbance _'\greement"), which is 

commercially reasonable and reasonably satisfuctory to Landlord, Tenant and Landlord's lender. If 

Tenant and Lender are unable to reach agreement on a Non-Disturbance _-\.greement within SL"<ty 

(60) days after execution of this Lease, and Landlord does not obtain same within 1:\venty (20) days 

of written notice of Tenant, Tenant may terminate this Lease by written notice to Lmdlord at any 

time prior to Tenant's receipt of all required Non-Disturbance Agreements, or if Tenant has not 

terminated this Lease, Tenant may withhold one (1) month's Rent, pending delivery of said 

Agreements. The form set forth in E."<hibit Fis acceptable to Tenant. 

13.1.2. Future Loans. Tenant shall, within twenty (20) business days after Tenant's 

receipt of Landlord's request, subordinate this Lease in the future to any first mortgage or deed of 

trust placed by Landlord upon the Store, or the Shopping Center or building of which the Store 

forms a part, with an insurance company, bank or any other lender which customarily provides 

financing for shopping centers, provided that such lender executes a Non-Disturbance Agreement 

substantially in the form set forth in Exhibit F or other commercially reasonable form reasonably 

satisfactory to Tenant, Landlord and Lender. 

36 13.2. Estoppel Certificates. 

37 

38 

39 

40 

+1 

Within 1:\venty (20) business days after the last to occur of (a) receipt of request therefor, 

and, if the request is made by Lmdlord (b) receipt by Tenant of the fee described in Section 13.3 

belo,v, either party shall deliver to the other a v.>Titten statement acknowledging (i) the 

Commencement Date and termination date of this Lease, (ii) that this Lease is in full force and 

effect (if true), (iii) that this Le:ise has not been modified (or if it has, s~.tting the dat~ of such 

Hialeah. Florida - 39 - r· <16/08/00 

Project No. E01Jil002 

606 l.3241 2'.;1017.6 

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1 

2 

3 

4 

5 

6 

7 

8 

9 

!O 

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12 

13 

14 

rnodifi«r::ioM), a."td (i.,) any such other pertinent "1form.>.tion "'hi=h is custom:icy :o s"'pp'.y to su=h 

a. rec,'...!es'.:ir-.g ?a:-ty for purposes of financir.g or sale (ir. rhe c:ise cf La.ndlo:d.'~ ~eques~) or- finar.cin~ 

as;ignme.:'lt or subloase, or sale (in the case cf Tenant's reque>t). La."ld!o~ may e:<er=ise ir:s ngh: 

hereci.:-:der on:y i:. ccnr.ec-cicn ·.vith ~ p:oposec sale, F.:ia::c!ng or refina:1cing of rhe Snopping 

Cer.-::e:- ph.:s anoth~: one (1) czch calendar year. a.'1d Tcnan:= m;-.y exerr:lsc l~S :igh: hereunde~ only in 

cor.:iecr.ion \:..'it..:,. a prcposed assigr.me:1.~ or subler:ri.~g o! t.~e Sto:e, or-.;,. fi .• '1Z."'l~ing of its fumi::ure. 

fi:tt.;res, equipmcnr. or pe:i;onal property. 

13.3. Processing Fees for Non-Disturbance Agreements and Estoppel Cerniic:nes. 

ewithin any two (2) year period 

At the cime of rhe second request wichin wy two (2) year period for a Non-Dis~bance 

.-\g-:C!c:~er;t !J.i.;.d:c Sectior: 13.1.2 or th~ seco:ld regtJeSI: for an Est:oppel c~:tiftc:i.te 1 .. ~::\C~r 

Sec:<o0 \3.2 c·.,r.ng the Tenr., the rectuescing ?ar.r shall pay to the od,er, ro defray rhe e.'<penses of 

processi::ig, the su:n of S:vm Hu. .. dred !'ifty Dollars (S750) for e~ch such Non-Dis1'-U'bance 

Agreement or Estoppe! Certific:ite. 

14. INDEMNIFICATION 

15 l4.l. Tenant Indemnity. 

16 Ten:i..-.t -.g<ees to hold Landlord h:ir:nless irom a."ld inde::r:r.:fy UJd cefend L1ndlord ag:iinst 

17 any :ir.d :1.ll ir:j:.iry, icss, damage, liabiUcy (or my claims rol:.t•ci to the for.going). com or C:.'<p~;es 

18 c:nclr.!C.tng. 'W~tl--.our- li:r..itatlon, an::omeys' fees. reasor.2.bl!:: lnvescigative and discovery cosrs), of 

19 ·urha:eve: nature. i:o wy person o: pro?=. caused or cl:Ur.ied t.o be c~u.sed by or resulting fro:n any 

20 oce>..:r~ence .._.;11:r. the Store or the Shopping Cooter on and after &.e Deli~·e:y D:ire and di.ring me 

2'. Terrn r~Nlti:-1g from che r.eglige::ir or willful act or om!.mnn of Te:lanr .. or T•nmt's employees. 

22 agen;:s er con:r:icro~,. pro,-ided nothing contained hor•in shill r~qi.:ir• Tcn:iot ;o ind;mnify 

23 Luidlocc! ag..i,,s: :-::ar.ter• ::suiting solely f:om rhe "1egli~:lcc o: willful 7.=rs or omi;s;oc:s cf 

24 L<:.nc.i:o:-c. o: La."':..:!lord.'s e:nployc~. ~-ts~ or con:r.ic~ots, ::.-..;:c~?t to ~h~ ~t'-=n:-T :::i~tnt i--... '"!.$ ... ...-~ve:ci ~ 

25 cla.Crr. ag-:i:r.s: L:ndlord ?Ursu:i.nt to Section 9.4 hereof. 

26 l4.2. Landloi:d Indemnir:y. 

27 

23 

29 

30 

31 

32 

33 

34 

35 

36 

.Landlord •grccs to hold Tc::ant ha."rr.!oss fror.'l :ind indemnify a.,c! defend T~n:inr ;1g:iir.st 

a.'ly ·.i.-.d all i!lju;·. ioss, da:n;ige, li;ibility (er any claims related to th: for1:going), cost> or c:.'l:pe:m:s 

(including, wiThour lirr.to.::ior., :mom:ys' fc:s, rca.1ono.blo ic:vcsr.iga:!on and disco11ery costs), of 

'1.·h~rcver r\at"...:.r"!~ -:o ~ny oerson or pro:icnv C".lUS~d or chlim~d 4:0 b~ caus::d bv or rts'..lttir.o- From any • • - ~i ~ q 

occ:ur:ec:cc 'vi:hon rbe Storo o: the Shopping C:nt.::" resulting from che neg!ige:1~t or wi!lfiJ.l ac~ o: 

o:nission a f L•1.:'ldlord, or L:uidlcrd's e:n?loyee~ • .g-..nts or con?r.ic-::ors, on o..,d ~fter :'11: dat<: of this 

L<;:;l.$~. i:ro,-idod. nccl:ing <:on:.ined herein shcll requ!ro L:im!lord to '"d"'"'n:fy Ten.1..,r ~gains~ 

m•°"ers res:.ilcing sol~iy from ::l:e negligence or wil!ful acr.s or o:n:ssions of T:na::: or Tenant's 

employees, agc:i.ts or co:'li:n.ctors, c=:ci::ept r.o r.ht e-..::~:tt Lar.dlorC h:.i.s ...,~lve:::i ~ c!~.-n ~..in5'."." ·rc:l~""lr. 

pt.i.rru4.,:: ::o S.:coon 9.4 hereof 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 48 of 125
LS.USE 

.l. Tena:c.t's BusUt'lcss. 

TeMm's inttnded use of me Store sbll be principally >.s a full line department store, 

:ludino-, at its option, the sale of soft goods merclimdi3e, including men's, womer.'s and children's 

puel.. "'shoes, accessories,. such as je-J.·clry and cosmetics, demesnes and line..'ls, housewares, :in. 

:rures, posters. frames, u-..if:cial flor:al, office S'~pplies, sporting goods, fur:iirure :ind lamps. 

ndo"' :ind floor coverings, elec::ronics, videos, books, toys, pa.'"t)' goods, ptt supplies, lugg:<ge and 

.ckaged foods. and S\!Ch other items as are sold ir. Tena.'lt's simih:rly merch:i..'ldised stores. s\\bject 

ily to the Exclusive Uses s<:t forth in E>:hibit H :md tho Prohibited Uses set forrh in Exhibit D . 

.. 2. Na E:<press o:r Implied Cov=ant of Operatioo. 

15.2.1. Except as pro~-ided in Secnon 15.2.2, it is oxprc<Sly :;cknowkdged by L:i..'1dlord 

,at this Lease contains no e.."<press or implied covenant for Tenant m conduct b\<S1ne1> in th~ 

:ore, co'1tinuou:;ly or otherwise, or (when eonduc~ng business in the Ster•) rn optr:ne during ;:r.y 

arcicular hours or to 1:onduct its b\.:.Siness in any puticukr rna..,,nc::-. Te.'1;:.I'.r: b;is t.h:: sole;; t;ght in its 

>res::ricted discretion to decide whe,her or not to op•:--•te ir. rhe Store and in "'h;i.t m;irmcr r.o 

,nduct operations, if a.ny. 

15.2.2. Tet;;;..'1t agi:ees :o open the Storo ;is l Ross Dress for Less re:;ll[ business to rhe 

ub!ic, fu.lly stocked and staffed for a period of one (t) da;· .,,·irhin six (G) months After the 

d~ 

~ 

:ommcocernenr Date __ .------------

. l non-replenishably purchased and not restocked items (as contrasted co 

Pro<ecnon. ~egularly purchased and restocked items sold at a discount price) 5.3. 

E.'<c•pt "'ith r<:sp ct to tenant le;i:;es specified in Schedule H, L'l.'1dlord on,tll not ~r.\er into :i 

!;!Se for space in the Sh PE'ing Center, or permit the assignm<.nt or sublc:i>e of ....,y le:i.sc for sp;,cc 

> the Shopping Cen1:e.r to the ext~nt L:lndlord may withhold itS consent rhe<eto) wheroby •uch 

enant or occupant c1ses or it-.tends to use fifte'"'1 thoui:Inc! (!5,000) square feet oc more of its 

rremise' for 'l!l Off-Pri Use. "Off-Price Use," for t.'ie purpose hertof, sh.'11 me<!n the display 

!'Id/or s:i.le oi those: specifid in Section 15.1 above on ;in •'·~ry d~y basis ~t pnces reduced 

rem r.hose chug!d by fu!l p:ice rCT'.lkrs, such as full p:ice depwmem stores: prov(ded. however, 

his defoiition sh·.ill n•O< prohibit sales e.,enc; by 1 retailer u :>. p:ice di;counr<:d from th:it ret;ij!ds 

~'er/ day price. E:<ur.ples ofbusir.ess O?<ntors which oper;ne an Off-PricoUse •re: f;ictory 2-U, 

-.lordstrom Rack, Goody's, Bcrli."lgtOn Coat, Stcir.ma.'t, :!."le:! Filer.e's BAEement. ·If the fortgoi"g 

>revision is violo.ted and not cured by Landlord within thirty (30) d:i.ys of T~nam's "Notice of 

iliob.cion", Tenanr, in addition to all other remedies avai!..ble at l;iw or in cquicy, including injunccivc 

-el;ef, shall h;i.ve tho 6ght, ex01:cisab!e by written notice to L:lndlord. either to r.errninar< this Lt:l.<e 

>r to pay Subsrirute Rent within fifteen (15) d:iys o.ftcr th< close of e:ich colcnd;u monrh during the 

:ieriod of the lliol~tion. The puties agree that the mone~ d:i.rn~ges to be suffered by Ten;inr. as a 

:i::sulr. of-;:. bro-:ich by La."ldlord (or L:;ndlord's too:i.nt(s)) oi the provision> of chis Section 15.3 are 

difficult to aseemin •nd that t.'-lc payment of Su'::>stitutc Rent, afrer negotiMion, consciru~es rhe best 

:stimate by. tho porti<:s of the :imount of such damage. !fTon;mt clf:ct; ro t<"miMrc rhi' Lease 'IS 

provided in th'.s :>ecrion, this LcJ.Se shall terminate on' date indicated by T~nant in 1rs notice of 

r.ormin~tion, whi~h irt no event shall be sooner rh>n thirty (30) nor l:o:cr th.in ninety (90) days after 

rhe 6.r.o of T on:i..'lt's notice of rcrmina::ion. In ti-le event of torminarion, Landlurd ~h;1ll be obligat~d 

P-...!<:ih. Ftond• 

l':ojccr No. EOUIJ002 i::;f)Sl~J.4/.!:?,H117~ 

s ·00 es:41 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 49 of 125
t :o pay Te:ian~ for the l!rl:uno.-:ized Costs of Te.n:i.nr's le:iseholc !~pcove:nems in or upon the 

StOt"C::, "-·!lich costs Tenant .agrees to specify in tts notice of :errninacion bur.: no~ tn e..'=~ess of On: 

H=d:od 1housa:1d Dolla:s (5100,000). lfTen:>.nt elects to pay Substitute Rem, suc'.'l payment shall 

be rei:roac1),·e to the clate any such Off-Price Cse CO!"!".menced, ancl Te:-:anr. sh<lll deduct any· 

o,·.rc:iyrr.em:; oc Rent from Ren: .:oming due under thi.s Le:se. At scich time ;J.S 31! such Off-Pcice 

rJses' ce.se (::.'le "Cu:e Da:e''), Rent shall :esume at the :-:i.:e which would have pe:tai:ied at the Cure 

Date hae .-.he ""iolo"rion of tr.is Se~o:i IS.3 not occ:u:red. T'ne ?rovisions he:eof shalt apply to :>.ny 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

subsequent operation of an Off-Price Use. Notwirhsta."di!ig that 'he follou.·;,ng temims may be ~. 

considered Off-Price Users, T!mant agrees :ha: :he following ei.:isting le:tse ,f 'he Shopping Center d\\f-....., 

"'" no'. dee:r.ed to be a viol:!.tior. o~ this Secco:'l 15.3: T.J. Ma.'{.'<, Ulo:o E''lb ics, f,15l:ion Bug, Dots, · 

Faodous Diamonds, hshion Cu.ts, !JS Tcps, Ed::erds, Winn-DC.~e Sup r:natken: and Picc~dilly ~ 

Cafei:~n~. ·r:i.e provisior.s of ::h~s Section 15.3 :;h:i.ll ;60t preven: LanCloI"d fro::n [e'1.sing S? ... Ce !O a u·g&f-~~:, ret.ail c-enw: u:"-o.e business is ?ri:n:i.rily the s"1e of one of rhe prod'.lcts pcdied in Section 15. l \\ 

abo"e, p=cvided such r~l :e..-i.mc is no: an Of:-Pnce User. . · inc u ing op ions a excend as contained there 1 14 

15 15.4. Prohibited and Exclusive Uses. 

~16 Ten~'"\::'s \;SC:: of rhe Score shall no-.: ~ol;lr~ rhose p!'"ohibi~c:d useii a .. 'i.ci ~xclusiv1:: us~s :is ~et 

l7 fc;th !n Exhibits D '.lnd H, rosoectivdy. Te1'!:ir.: sh~ll be rosoonsible for <•tc;l'"::io~.s by Te::'lant cf 

18 'he "-'o.:ver fror:'l 7.J. M:<.:c< in th."form arrached :is Exhibic H-i. 

19 16. SURRENDER 

20 16.L Condition of Prcm.ises. 

21 

22 

23 

24 

25 

26 

27 

l:flon the exp!ration o:- e..ri!e• termin~rion of r.hi.s L=•- Ten:mc shall ;c<rrender possession 

of :be Store :c LJ.ndlord in broom de:i.n cor:ditio::, a..--id in good orccr :ind :epair, rei1.Son~bl• ·.xrear 

and t.o:u and dz.mage O< Ca.su.Jty or Condol'!'".nation exceoteci and with ;i!l of Tetlanr's akentions , ' ' 

;.:.nd le~e:'1.clci imo:ovemer.ts in place. Te:t.;l_'11: sh~! :emove: from r~e Srore ~.n of"T:nant'::; furnir:ure . ' s.~r->ces, eqc::ipmtr.t :ind o::e::sonal prop<:!'t'/- Hc<>.·ovcr, Te!'\lr.t sn::'.l \-,;roe r.c obi:g:<~iOi' to remcvt 

fro:r. tb.e Store c~ r.o demcl:sh ar..y aiterarions or !c::·J.Seho~ci im?:ovemen~ ('!".ad~ to ~h~ $Tore n!)r :o 

rcs.:cre :he Score re its conditon p:ior ~o T.!!13.."'Lrs us~ ~~.nd oc::up~,::y !..1-ic:teor 

2S 16.2. Concinuance of Possession. 

29 

30 

3t 

32 

33 

34 

35 

!fTcr.an' shall remain in possession of•he Sr.ore o: any portion thereof afrer the expiration 

of tl'e Term. t±:en in :he ~bscnce of an ~eement in wricing bc-:wecn •he pa=tie;, Tena.'lt shall be 

deeme:!. " t.:'1"-""lr a: sufferance t.1ntil acceptance of Rent by I.andlord, at which rim=, Tenant sh:tll 

btcom~ a ~i::i·"-:i.~ fro~ mon-:r ... co-rnonr.h 1.inder the s·m:c: '('.crm.s and conditions ;is existed 

i.mrr:.ediai::-::y ?:icr t·::i ~he: c:x?:r:1;ior. 0£ th~s Li:::ist 1 ho ... ve•:e:. ~Eni!num R~nt sh~lt be: i.'1.crez.s~d to w 

:uno'-1.."'li. equal r:o or.e h·Jndred tlJ..'enty~Sve pt::-cent (125'1~) ot the most reccnr mQr.\hly insia.!lme:it 

of Mini:n'.lm R.:::m. . 

Hl.~~:-..;..., P.:..i.rid:.:. 

P:-(')r~.:: ~a. C.:"l<JU!lP! 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 50 of 125
1 17. LANDLORD'S WARRANTY 

2 17.1. Landlord's Warranty. 

3 Landlord warrants to Tenant (a) that Tenant, while operating in the Store for the use stated 

4 in Section 15.1, except as to the E.xclusive Uses set forth in Exhibit H, will not be in violation of 

5 any exclusives, restrictions or other agreements which Landlord may have with other lessees, 

6 lenders, governmental authorities or any other parties, and (b) that, as of the Delivery Date, the use 

7 stated in Section 15.1 is not presently a violation of any restrictions imposed by any governmental 

8 body or authority. Except as arising out of any waiver from T.J. Ma.xx, Landlord shall hold Tenant 

9 harmless from any claims or damages suffered or claimed to be suffered by Tenant as a result of 

10 any breach or alleged breach of Landlord's warranties. 

11 17.2. Landlord's Title. 

12 Land.lord covenants that Land.lord has lawful title to the Shopping Center and full right to 

13 make this Lease. Landlord has provided Tenant with the Title Report. Landlord further covenants 

14 that at the time of recording of the Memorandum of Lease, the Shopping Center will be free from 

15 all other liens, title exceptions and other encumbrances of any kind whatsoever, e..xcept those set 

16 forth in Exhibit I attached hereto and incorporated by this reference ("Permitted Exceptions"). 

17 E.xcept for its present lender Prudential Securities Credit Corp., LLC, Landlord covenants that no 

18 other party is required to consent to this Lease as a condition to the effectiveness of this Lease or 

19 any of the provisions hereof, including but not limited to, the consent of any lender or ground 

20 lessor relating to the Shopping Center. 

21 17.3. Remedies. 

22 In the event of a violation of any of the covenants made by Landlord in this _-\rticle 17, 

23 Tenant may give Land.lord notice of the violations, and if Landlord fails to cure the violation within 

24 si.xty (60) days of such notice, Tenant may, in addition to its other remedies available at law and in 

25 equitv, terminate this Lease by \Vritten notice to Landlord. The provisions of this Article 17 shall 

26 supersede and prevail over any inconsi.stent provision in _-\rticle 20 of this Lease. 

27 18. QUIET ENJOYMENT 

28 Land.lord represents and warrants that it has full authority to execute and perform this Lease 

29 and to grant the subject leasehold estate to Tenant, and that Tenant shall peaceably and quietly 

30 have, hold and enjoy the Store with all appurtenances on and after the Delivery Date and during the 

31 Term and \Vithout any manner of hindrance or interference with its quiet enjoyment, possession 

32 and use. 

33 19. ASSIGNMENT/SUBLETTING 

3.+ 19.1. General. 

35 Subject to the provisions of Sections 19.2, 19.3, 19.4, and 19.5, and except for Tenant's right 

36 to assign or sublet this Store to :i Related Entity without Lmdlord's consent, Tenant shcill have the 

37 right to :"LSsign this Lease, or subl~t the Store, or :my portion thereof (a "Transfer" :tnd the assignee 

Hialeah, Flo rid a 

Project No. E000ili12 

606L.32-l·1 22lt.il-.~ 

- 43 - (}(,/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 51 of 125
1 or sublessee thereof is herein "Transferee") subject to the prior written approval of Landlord, 

2 which approval shall not be unreasonably withheld, conditioned or delayed. This prohibition 

3 includes any subletting or assignment which would otherwise occur by operation of law, and any 

4 assignment or subletting to or by a receiver or trustee in any federal or state bankruptcy, insolvency 

5 or other proceedings. Neither the making (whether with Landlord's consent or not) of any 

6 assignment, mortgage, pledge, encumbrance or subletting, in whole or in part, nor the acceptance 

7 by Landlord of rent from any assignee, subtenant, or other third party shall constitute consent by 

8 Landlord to any assignment or subletting nor a waiver of any rights or remedies of Landlord nor 

9 shall operate to relieve Tenant from Tenant's obligations under this Lease and, notwithstanding any 

10 such assignment, mortgage, pledge, encumbrance or subletting, except as provided in this 

11 .A.rticle 19, Tenant shall remain liable for the payment of all Rent and for the due performance of all 

12 the covenants, agreements, terms and provisions of this Lease to the full end of the Term of this 

13 Lease. Tenant shall have the right to operate departments within the Store by means of licenses or 

14 concession agreements, provided that such departments shall not be separated by walls with doors 

15 (other than after hours security screens or walls) from the balance of Tenant's operations in the 

16 Store. 

17 19.2. Related Entity. 

18 The term "Related Entity" means: a corporation or other entity with which Tenant may 

19 merge or consolidate; or to which Tenant sells at least ten (10) stores in the state of Florida; or any 

20 parent, affiliate or subsidiary of Tenant; or an affiliate or subsidiary of Tenant's parent. 

21 19.3. Stock. 

22 The sale of stock by Tenant or by any shareholder of Tenant shall not constitute a Transfer 

23 under the terms of this Lease. 

24 19.4. Release of liability. 

25 Intentionally Omitted. 

26 19.5. Recapture on Assignment or Sublease of Store. 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

-11 

Except for a transfer to a Related Entity, in the event that Tenant intends to seek a 

sub lessee or assignee (a "Transferee") for twenty-five percent (25%) or more of the Leasable Floor 

.'\rea of the Store to a business entity which operates fewer than twenty (20) retail stores or has a 

net worth of less than Twenty Million Dollars ($20,000,000) in the United States, then prior to 

making the Store avaihble for any such subletting or assignment (a "Transfer"), Tenant shall first 

give Landlord written notice of its intention to do so ("Transfer Notice''), which notice shall 

include (a) a statement of the Unamortized Cost of leasehold improYements to the Store which 

were paid for by Tenant, and (b) a proposed Lease termination date which is not sooner than 

ninetv (90) nor later than one hundred eighty (180) days following the date of the Transfer Notice. 

If T~nant issues a Tr:msfer Notice to Landlord, Landlord may terminate this Lease; provided, 

however, it must do so by written notice ("Recapture Notice") given to Tenant \Vithin thirty (30) 

days :ifter the date of the Transfer Notice ("Election Period") electing ;t termination date sixty (60) 

days from the date of the Recapture Notice. Landlord's Recapture Notice sh'111 be accompanied by 

Landlord's payment to Tenant of the Unamortized Costs as set forth in the Transfer Notice. In 

the event Lmdlord gi,·es Tenant a Recapture Notice within the Election Per· . , this Le:c;e shall 

H,:Je:ih, Flonda - 44 - , OG/LlS/00 

Project ~o. Ell0illl02 

()l)(:il.:'l.2.4112.1()1-:-.6 / 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 52 of 125
1 terminate as to all obligations accruing on and after the date of termination designated by Landlord 

2 in the Recapture Notice, unless Tenant rescinds the Transfer Notice by written notice to Landlord 

3 given with twenty (20) days following receipt of the Recapture Notice. If Landlord does not give a 

4 Recapture Notice "~thin the Election Period as provided for by this Section 19.5, then at anytime 

5 thereafter Tenant may Transfer the entire Store. 

6 19.6. Nullity. 

7 Any purported assignment or subletting consummated in violation of the provisions of this 

8 Article 19 shall, at Landlord's election, be null and void, of no force or effect, and shall be a default 

9 under this Lease. The receipt of rental from any party other than Tenant shall not be deemed a 

10 consenr. to an assignment or subletting, nor relieve Tenant of its obligations to pay rental or from 

11 its covenants or obligation of this Lease. 

12 19.7. Landlord Notice to Assignee. 

13 Landlord, when giving notice to any Transferee of this Lease related to any default 

14 hereunder, shall simultaneously give notice thereof to Tenant, who may cure said default at any time 

15 during the notice period; and in the event that Tenant shall cure the default, Tenant shall be 

16 subrogated to all rights and remedies of Landlord as against the Transferee related to the default 

17 and shall have the right at its election to recover possession of the Store from the defaulting 

18 Transferee, to cancel and revoke the Transfer, and to be restored by Lwdlord to its leasehold estate 

19 hereunder. 

20 20. DEFAULTS/DISPUTE RESOLUTION/ATTORNEYS' FEES 

21 20.1. Defaults. 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

20.1.1. Tenant's Default. 

(a) Breach. The occurrence of either of the follo,vmg shall constitute a default by 

Tenant pursuant to this Lease: (i) a failure by Tenant to pay Rent within ten (10) business days after 

Ternint's receipt of written notice from Landlord specifying such failure; or (ii) a failure by Tenant to 

perform obligations pursuant to this Lease, other than as specified in (i) above, within thirty (30) days 

after Tenant's receipt of written notice from Landlord specifying such failure or, if it reasonably would 

require more than thirty (30) days to cure such failure, within a time reasonably necessary to cure such 

failure after Tenant's receipt of such written notice provided, that Tenant has commenced curing same 

\vithin the thirty (30) day period and is diligently attempting to cure same, and provided further that such 

cure period shall not exceed ninety (90) days after Tenant's receipt of such notice. In the event Tenant 

"~thholds Rent pursuant to a bona fide dispute between Landlord and Temll'lt, ;ind in accordance '"~th 

the terms of this Le;i,se, Tenant shall not be deemed a default under the provisions of this Lease. Te=t, 

however, agrees to pay any undisputed amount in the event of a bona fide dispute. 

(b) Insolvency. If Tenant makes art assignment for the benefit of creditors, or if any 

proceedings are commenced under the provisions of the Bankruptcy Act whereby Tenant seeks to be, or 

would be, discharged of its debts, or the payment of its debts are sought to be delayed, this Lease shall be 

governed by the provisions of the feder.:t! Bankruptcy _A.ct. /f 

r Hialeah. Florida 

Project ~o. E0000ll2 

6(J6 l.J~4: 22UH 7.6 

- 45 - 06/08/00 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 53 of 125
1 

2 

3 

4 

) 

6 

7 

8 

9 

10 

11 

12 

13 

14 

(c) Prohibition Against Landlord A.ccelerating Rent. 

(i) E.-;:cept as provided in Section 20.1.1(c)(2) below, and whether or 

not Landlord terminates this Lease, Tenant shall have no obligation 

to pay Rent until the date it would otherwise be due in the absence 

of Tenant's default. Landlord shall have no right to accelerate Rent 

which would become due e.-;:cept as provided hereafter. 

In the event Landlord terminates this Lease due to a default by 

Tenant, Landlord may recover from Tenant the balance of the Rent 

payable by Tenant for the remainder of the Term, minus the fair 

market rental value of the Store for such period, each discounted to 

present value using a discount rate of the Federal Reserve Bank of 

San Francisco at the time of the a·wa.rd, plus one percent (1 %) per 

annum, together with costs and e.-;:penses proximately caused by 

Tenant's breach of the Lease. 

15 (cl) Personal Property Waiver. Landlord waives such liens, if any, to which it may 

16 have a right with respect to the merchandise, furniture, trade fo:tures and other personal property of 

17 Tenant located on or about the Store, and Landlord· shall from time to time execute such documents 

18 reasonably acceptable to Landlord, as Tenant may reasonably request to acknowledge such waiver. 

19 (e) Landlord's Remedy for Improper Offset. Certain provisions of this Lease grant 

20 to Tenant the right to offset specified amounts against, or to deduct such amounts from, Rent or other 

21 charges payable under this Lease. The e.-;:ercise by Tenant of any such right or Tenant's withholding of 

22 any disputed amount of Rent or other sum shall not constitute a default under this Lease unless and until 

23 (i) :m arbitrator per Section 20.2.3 shall determine by means of a final award that such right to offset, 

24 deduct, or refusal to pay has been e.-;:ercised improperly by Tenant, and (ii) follmving the entry of such 

25 award, and within thirty (30) days after receipt by Tenant from Landlord of a bill in the amount 

26 determined by such award to have been improperly offset, deducted, or withheld by Tenant, Tenant shall 

27 fail to pay such amount to Landlord, together with interest thereon at the Legal Rate retroactive to the 

28 date that the offSet or deduction w-:is taken by Tenant. 

29 

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20.1.2. Landlord's Default. 

(a) Breach. E..-;:cept for a violation by Landlord under Section 17. l (Landlord's 

Warranty), and e.-;:cept for Tenant's rights to terminate this Lease or pay Substitute Rent under 

Sections 6.1.3, 15.3 and 21.2 (all of which require specific notice provisions which are shorter than thirty 

(30) davs), the occurrence of either of the following shall constitute a default by Landlord pursuant to 

this Lease: (i) Landlord's failure to perform any of its obligations under this Lease, which default 

continues for a period of more than thirty (30) days after receipt of written notice from Tenant 

specifying such default; or (ii) Landlord's failure to perform any maintenance, repair or replacement 

obligation within thirty (30) days after Landlord's receipt of written notice from Tenant specifying such 

failure. Notvoithst:mding the foregoing Subsections 20.1.2(a)(i) m1d 20.1.2(a)(ii), the thirty (30) day period 

provided in each Subsection may be e.xtended (not to exceed ninety (90) days after Lmdlord's receipt of 

such notice) provided: (_-'i.) such obligation cannot be reasonably performed within rhirty (30) days after 

such notice: (B) Lmdlord commences efforts to cure the defuult within thirty (30) <lays after receipt of 

Tenant's notice of default: and (C) Landlord diligently pursues completion of rhe obligation. 

I .) 

Hialeah. Florida - +6 - 06/08/00 

Project :-.io. E0110ilil2 

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(b) Remedies. 

(0 

(ii) 

General. fa,cept as otherwise provided in this Lease, in the event of 

Landlord's monetary or material default under this Lease, and in the 

event Landlord fails to cure same after an additional ninety (90) days' 

notice, in addition to availing itself of any other remedies available at 

law and in equity and without the requirement of any further 

additional ninety (90) day notice, Tenant may, at its option, upon 

written notice to Landlord, terminate this Lease, or may incur any 

e.'<pense necessary to perform the obligation of Landlord specified in 

such notice and deduct such expense from the Rent or other 

charges coming due. 

Interruption of Service. In addition to the remedies described 

above, in the event the Tenant is prevented from using the Store, or 

any portion thereof (the "Unusable Area"), to conduct its normal 

retail operations for a period in e.'<cess of thirty (30) business days if 

within the control of Landlord or for a period in excess of one 

hundred eighty (180) business days if not within the control of 

Landlord because of (A) the interruption of any utility service to the 

Unusable ,'\rea which is required to be provided by the terms of this 

Lease, (B) the presence, in a form or concentration in violation of 

applicable law then in effect, of Hazardous iYfaterials regarded as 

unhealthful by applicable regulations then in effect in or about the 

Store (unless caused by Tenant), or (q due to Force Majeure, then 

the provisions of this Subsection 20.1.2.(b)(iy shall apply. Tenant 

shall promptly deliver to Landlord notice of the interruption (the 

"Interruption :>I otice") of such condition. If any condition set forth 

in the first sentence of this Subsection shall not be cured within 

forty-five (45) days after Landlord's receipt of the Interruption 

Notice, then Tenant, upon notice to Landlord after e.'<piration of 

such period, may terminate this Lease either as to (a) the Unusable 

Area in which case this Lease shall be amended to reflect that the 

Unusable Area is no longer a part of the Store, and the Rent payable 

hereunder by Tenant shall be adjusted proportionately, or (b) the 

entire Store, which termination shall be deemed effective upon 

Tenant's vacation of the entire Store. 

36 20.2. Alternative Dispute Resolution. 

37 

38 

39 

40 

41 

42 

43 

20.2.1. Means of Resolution. In the event that :my controversy or dispute ("Dispute") 

shall arise under this Lease and in the event that the parties have been unable to resolve such 

Dispute within thirty (30) days, the Dispute shall be resolved as provided in this Section 20.2. All 

Disputes, the monetary value of which exceeds Fifty Thousand Dollars ($50,000), or which involve 

an equitable remedy, shall require the utilization of Mediation as provided in Section 20.2.2 below. 

_.\.11 Disputes, the monetary value of which is less than Fifty Thousand Dollars ($50,000) shall be 

settled by Arbitration as discussed in Section 20.2.3 below. 

Hialeah, Florida 

Project No. E000002 

6()61..3::!..:ft/ :!.:?. 101 i .6 

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r 

(

. 

; . OG/08/00 

., 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 55 of 125
1 20.2.2. Mediation. The parties shall first try in good faith to settle the Dispute by 

2 mediation pursuant to the provisions as set forth below. Either party may initiate Mediation. The 

3 party commencing the Mediation shall first give a written notice (a "l'vfediation Notice") to the 

4 other party setting forth the nature of the Dispute. The Mediation shall be administered by the 

5 _\merican Arbitration Association under its Commercial Mediation Rules, except to the extent that 

6 this Section 20.2.2 is inconsistent therewith, in which event this Section 20.2.2 shall govern and 

7 prevail. If the parties cannot agree on the selection of a Mediator within twenty (20) days after 

8 receipt of the Mediation Notice, the Mediator shall be selected in accordance with the American 

9 Arbitration Association procedure. If the Dispute or any part thereof has not been resolved by 

10 mediation as provided above within si..xty (60) days after receipt of the Mediation Notice, or if a 

11 party fails to participate in Mediation, then at the option of either party by written notice, the 

12 Dispute shall be determined by suit or action in court, unless it is a matter for _\rbitration as 

13 described in Section 20.2.1 above. 

14 20.2:.3. Arbitration. Either or both parties may initiate the i\rbitration process. The 

15 party initiating the Arbitration process shall first give a written notice (an ""A.rbitration Notice") to 

16 the other party setting forth the nature of the Dispute. The _\rbitration shall be administered by the 

17 American .'i.rbitration Association in accordance with its Commercial Arbitration Rules, except to 

18 the extent that this Section 20.2.3 is inconsistent therewith, in which event this Section 20.2.3 shall 

19 govern and prevail. Judgment upon the award rendered by the Arbitrator may be entered in any 

20 court of competent jurisdiction. Unless otherwise agreed to by the parties, the matter shall be 

21 submitted to one (1) _\rbitrator and shall be heard in the state in which the Store is located. If the 

22 parties cannot agree on the selection of an "A.rbitrator within ten (10) days after the initiation of the 

23 Arbitration process, the _Arbitrator shall be selected in accordance with the American "'\rbitration 

24 Association procedure, which selection shall be binding on the parties. The .A.rbitrator shall resolve 

25 the controversy in accordance with applicable law and the terms and conditions of this Lease. The 

26 .Arbitrator shall allow the parties reasonable opportunities for pre-hearing document exchange and 

27 other pre-hearing discovery of evidence as determined by the arbitrator in his or her discretion. The 

28 determination of the i\rbitrator shall be final, binding and conclusive upon the parties. 

29 20.2.4. Cosrs of Mediation ;md/or Arbitration. The costs of the 'Yfediation and/ or . 

30 Arbitration shall be shared equally between the parties, provided, however, that such costs along 

31 with all other costs and e.xpenses, including attorneys' fees, shall be subject to award in full or in 

32 part by the Mediator and/ or Arbitrator in the Mediator and/ or .'i.rbitrator's discretion to the 

33 prevailing p2rty. 

34 20.2.5. Confidentiality. Except as otherwise required by law, the parties, Mediator 

35 and/ or "'\rbitrator agree to keep confidential and not disclose to third parties any information or 

36 documents obtained in connection with the Mediation and/ or .\rbitration process, including the 

37 resolution of the Dispute. 

38 20.3. Unlawful Detainer. 

39 

40 

41 

42 

43 

Landlord agrees not to ftle, prosecute, or maintain any proceeding for evicr.ion, unlawful 

detainer, or termination of the Lease :1gainst Tenant (and any such proceeding shall be null <md 

void), and Ten:int agrees not to enforce or pursue other remedies. during the :\lterncttive Dispute 

Resolution process as set fonh in Section 20.2 ;md/ or in the e1cent ot- a bona tide dispute between 

the parties with respect to any alleged default by Tenant or any provision of th/',Lease, includi~g, 

Hialeah, Florida - 48 - // ' liG/08; 00 

Projecr No. E0lli1il{l2 .// 

6U6U2422Hll:.6 f 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 56 of 125
without limitation, Tenant's non-payment of Rent pursuant to Tenant's right to withhold, deduct or 

2 offset Rent in accordance with this Lease. 

3 20.4. Attorneys' Fees. 

4 20.4.1. Third Party Litigation. If either party becomes a party to any litigation 

5 (including Arbitration) concerning this Lease, the Store or the Shopping Center by reason of any 

6 act or omission of the other party or its authorized representatives, and not by its own act or 

7 omission or that of its authorized representatives, the other party shall be liable to that party for 

8 reasonable attorneys' fees, court costs, investigation expenses, discovery costs and costs of appeal 

9 incurred by it in the litigation. · 

10 20.4.2. Actions Between the Parties. If either party commences an action against the 

11 other party ansing out of or in connection with this Lease, or in the event of an 1\ltemative Dispute 

12 Resolution proceeding between the parties relating to this Lease, the prevailing party shall be 

13 entitled to have and recover from the losing party reasonable attorneys' fees, costs of suit, 

14 investigation costs and discovery costs, including costs of appeal. When this Lease imposes upon a 

15 party an obligation to indemnify the other, the indemnification obligation shall include the 

16 obligation to pay the indemnitee's reasonable attorneys' fees, costs and disbursements, whether the 

17 indemnitee be the plaintiff or defendant. 

18 21. CASUALTY 

19 21.1. Definitions. 

20 21.1.1. Casualty. .An event, or act of God, such as fire, windstorm, flood, earthquake, 

21 riot, civil commotion, strike, perils or other matters which are unforeseen and unpredictable, 

22 whether insured or uninsured, which causes damage or destruction to the Store or the Shopping 

23 Center. 

24 21.1.2. Cxmalty Date. The date of the occurrence of a Casualty. 

25 21.1.3. Permitred Repair Period. A period of two hundred seventy (270) days following 

26 the Casualty Date. 

27 21.1.4. Restorl]tion (sometimes referred to herein as "Restore"). Restoration, rebuilding 

28 or repairs due to a Casualty under Section 21.2 of this Lease or due to a Taking under Section 22.1 

29 of this Lease. 

30 21.2. Insured Casualty. 

31 

32 

33 

34 

35 

36 

37 

If the Store is damaged or destroyed by a Casualty insured against or that Landlord is 

obligated to insure against under this Lease, to the extent that Restoration cannot reasonably be 

completed within the Permitted Repair Period, as reasonably determined by Landlord (and 

Landlord shall deliver notice to Tenant of such determination within sixty (60) days of the Casualty 

Date), Tenant may, at its option, terminate this Lease as of the Casualty Date by notice to Landlord 

within thirty (30) days after the later of (a) Landlord's Notice, or (b) the Casualty Date. If Tenant 

does not so terminate this Lease, or if Restoration to the Store may be co "fjeted within the 

Hialeah, Florida - 49 - (/ 06/08/00 

Project No. E000002 

61)6 J.3:!-l.' 221017.6 

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Permitted Repair Period, then this Lease shall not terminate, and Landlord shall diligently proceed 

to Restore the Store to substantially the condition as existed immediately prior to the Casualty, and 

Landlord shall diligently pursue such Restoration to completion. If the Restoration is not 

completed within the Permitted Repair Period, Tenant may terminate this Lease by written notice 

to Landlord at any time prior to the Redelivery Date. All Rent payable hereunder shall abate from 

the Casualty Date to the earlier of (a) sixty (60) days following the Redelivery Date (but only if the 

Redel.iverv Date falls within a Permitted Deliverv Period, and if the Redeliverv Date does not fall . . . within a Permitted Delivery Period, the si.'<tieth (60th) day following the first day of the next 

ensuing Permitted Delivery Period); or (b) the date on which Tenant again opens for business in 

the Store (in either case the "Recommencement Date"); provided that if Tenant continues to do 

business in the Store during the period of Restoration, Tenant's total obligation for Rent shall 

equitably abate with reference to the nature, extent and duration of the deprivation of Tenant's 

business in connection with such Restoration, and provided further that in the event of any dispute 

as to such equitable abatement, the matter shall be referred to Alternative Dispute Resolution 

pursuant to Section 20.2 above. The election by Tenant to carry the insurance on the Store 

pursuant to the terms of Section 9.5 shall not create any obligation on the part of Tenant to 

Restore, but Tenant shall make available to Landlord the proceeds from such insurance for 

Landlord's use in discharging· Landlord's Restoration obligations under this Section 21.2. In no 

event sh:.ill Tenant be deemed to be responsible for the amount of any deductible with respect to 

such insurllilce. 

21 21.3. Uninsured Casualty. 

22 If the Store is damaged or destroyed by a peril not covered by the standard form of Special 

23 Form Policy (hereinafter an "C"ninsured Casualty"), or if not otherwise covered by Landlord's 

24 insur2nce and the cost of the Restoration of the Store as reasonably determined by Landlord 

25 exceeds by more than Two· Hundred Fifty Thousand Dollars (S250,000), the amount of insurance 

26 proceeds available (i.e., net of any applicable deductible) to Landlord, Landlord shall have the 

27 option to elect not to Restore the Store and to terminate this Lease on at least ninety (90) days 

28 prior wrirten notice to Tenant. ·If only the Store and no other part of the building containing the 

29 Store is damaged, Tenant may elect to pay the difference between the cost of Restoration and 

30 available insurance proceeds (the "Difference") by delivering written notice of such election, 

31 together with payment of such Difference to a Stakeholder as defined in Section 21.6 hereof, to 

32 Landlord within thirty (30) days after delivery of Landlord's notice of election to terminate this 

33 Lease. Upon receipt of such notice and confirmation of payment to the Stakeholder, if any, the 

34 Landlord termination shall be deemed rescinded and Landlord shall proceed with the Restoration 

35 of the Store. If Landlord elects to terminate this Lease under this Section 21.3 and Tenant does 

36 not elect to pay the Difference, this Lease shall terminate as of the date set forth in Landlord's 

37 notice of election to terminate this Lease. If this Lease is not terminated under this Section 21.3, all 

38 Rent pavable hereunder shall abate from the Casualty Date to the Recommencement Date; 

39 provided that if Tenant continues to do business in the Store during the period of Restoration, 

40 Tenant's total obligation for Rent shall equitably abate with reference to the nature, extent and 

41 durarion of the deprivation of Tenant's business in connection \"ltith such Restoration, and provided 

42 further that in the event of any dispute as to such equitable abatement, the matter shall be referred 

43 to .-'..ltemative Dispute Resolution pursuant to Section 20.2 above. 

Hi:ue:1h. Florida 

Pmiecr :--:a. Ell00llll2 

tifJ61..i24 221-)!-.6 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 58 of 125
1 21.-1. End of Term Casualty. 

2 Notwithstanding any provision in this Article 21 to the contrary, Landlord shall not be 

3 required to Restore any Casualty to the Store occurring during the final eighteen (18) months of the 

-I Term if the cost of such Restoration is greater than One Hundred Fifty Thousand Dollars 

~ ($150,000) unless, within thirty (30) days after receipt of Landlord's notice to Tenant that it intends 

6 not to effect Restoration, Tenant exercises in writing any option to extend the Term given Tenant 

7 hereunder. If Tenant does not elect to so extend the Term, Tenant shall so notifv Landlord within 

8 thirty (30) days of Landlord's notice of election not to Restore, and, thereupon, this Lease shall 

9 terminate effective as of the Casualty Date. 

10 21.5. Shopping Center Casualty. 

11 In the event that the Store is not damaged or destroyed by a Casualty, but other buildings in 

12 the Shopping Center, or the building of which the Store forms a part, e..""<cluding the Store, or if any 

13 of the Common Areas, are damaged or destroyed by a Casualty, whether or not insured against, 

14 Landlord shall promptly remove all rubble and debris resulting from such damage or destruction, 

15 and Landlord shall promptly Restore such damaged buildings in the Shopping (enter as well as the 

16 Common Areas as nearly as possible to the condition the same were in immediately prior to such 

17 damage or destruction. Notwithstanding anything to the contrary contained herein, and regardless 

18 of the e..""<tent of damage, Landlord shall promptly remove all rubble and debris so that the 

19 Common _'lreas are usable. If the damage to the Common _;\reas shall render the whole or any part 

20 of the Store unsuitable for Tenant's use, all Rent payable hereunder shall abate from the Casualty 

21 Date to the Recommencement Date; provided that if Tenant continues to do business in the Store 

22 during the period of Restoration, Tenant's total obligation for Rent shall equitably abate with 

23 reference to the nature, extent and duration of the deprivation of Tenant's business in connection 

24 with such Restoration, and provided further that in the event of any dispute as to such equitable 

25 abatement, the matter shall be referred to Alternative Dispute Resolution pursuant to Section 20.2 

26 above. 

27 21.6. Restoration. 

28 If Landlord is obligated to Restore the Store under the terms of this c>\rticle 21 but does not 

29 commence Restoration as soon as practicable after the Casualty, or does not continue the 

30 Restoration of the Store thereafter with reasonable dispatch, whether due to the unavailability of 

31 insurance proceeds or otherwise, Tenant, upon thirty (30) days' prior notice to Landlord, shall have 

32 the right to terminate this Lease; provided that if Tenant elects to continue to do business in the 

33 Store during the period of Restoration, Tenant's total obligation for Rent shall equitable abate with 

34 reference to the nature, extent and duration of the deprivation of Tenant's business in connection 

35 with such Restoration and provided that in the event of any dispute as to such equitable abatement, 

36 the m'1tter shall be referred to _\ltemative Dispute Resolution pursuant to Section 20.2 above. In 

37 addition, Tenant shall be relieved of the obligation to pay for casualty insurance for the remainder 

38 of the Term. 

Hialeah. Florida 

Proiect No. E000002 

6Q6 i .3:!41 :!1.10 t 7 .Ci 

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! 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 59 of 125
1 21. 7. Waiver of Statute. 

2 The parties waive such rights of Lease termination as are granted to them under the laws of 

3 the state wherein the Store is located, it being their agreement that the rights of termination in the 

+ event of Casualty, as set forth herein, shall be exclusive. 

5 21.8. Laws. 

6 If applicable governmental laws and regulations prohibit the Restoration of any damage to 

7 the Store or Common .'\reas, either party may elect to terminate this Lease effective thirty (30) days 

8 after the delivery to the other party of written notice of the election to terminate. Notwithstanding 

9 anything i:n this ,'\rticle 21, to the contrary, if applicable laws and regulations require seismic, 

10 disabilitz_ access, life safety or other retrofitting as a condition to Restoration and the costs of same 

11 e.."<ceed Landlord's insurance Proceeds, and if Tenant does not elect to pay Landlord the Difference, 

12 then Lancllord shall have the right to elect to terminate this Lease effective· thirty (30) days after 

13 delivery to Tenant of written notice to terminate. 

14 21.9. Tolling of Term. 

15 

16 

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During the period between Landlord's completion of Landlord's Restoration obligations 

and the Recommencement Date, Tenant and Tenant's employees, agents and contractors shall have 

the right to enter upon the Store for the purpose of erecting, constructing, or installing such 

improvements, alterations, fi."<tures, equipment and furniture as Tenant deems necessary for 

resuming business in the Store. In the event Rent shall completely abate for any period pursuant to 

the provisions of this ,'\rticle 21, the Term shall toll for the period of such abatement, in which 

event, the monthly installments of Rent following the end of the period of such abatement shall 

recommence and thereafter continue at the s·ame Rent rate that \Vas in effect at the time of such 

abatement; the remaining scheduled increases of Minimum Rent shall be postponed for the period 

of such abatement to reflect such tolling, the expiration date of the then applicable Term (whether 

the Initial Term or any Option Period) and the commencement and expiration dates of any 

subsequent Option Periods shall be extended for the period of such abatement, as shall be the 

deadline dates for notices exercising Option Periods. Any period of tolling shall be added to the 

calculation of the Initial Term (or any then current Option Period, as the case may be) for purposes 

of the calculation of the E.."<piration Date. For example, if the Term of the Lease is tolled under the 

provisions of this Section 21.10 for a period of four (4) months, and the tolling oc=s during the 

Initial Term, then the definition of Initial Term in Section 1.5.l shall be: "From the 

Commencement Date through the January 31 next follo,ving the expiration of one hundred 

twenty·four (124) months thereafter." 

21.10. Effect of Termination. 

Upon termination of this Lease pursuant to this Article 21, each of the parties shall be 

thereby released from all further obligations and duties to the other party as of the Casualty Date, 

except for items and liabilities which have theretofore accrued and be then unpaid, and Landlord 

shall promptly refund to Tenant all unearned Rent and other omounts prepaid by Tenant under this 

Lease. (', 

Proiecr :\o. E000002 { Hiale:th. Florida . 52. OG/08/00 

. 

" 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 60 of 125
1 21.11. Tenant's Right of First Offer. 

2 The provisions of this Article 21 to the contrary notwithstanding, if this Lease is terminated 

3 in accordance with this f\.rticle 21, and Landlord elects to rebuild the Store or a substantially similar 

4 building in the Shopping Center within one (1) year after the Casualty Date, Landlord shall first 

5 offer such space in such building to Tenant before marketing such space in any other manner on 

6 terms no less favorable than those for which Landlord will market such space. 

7 22. CONDEMNATION 

8 22.1. Taking. 

9 _.;. "Taking" means any governmental act, condemnation proceeding, moratorium, initiative, 

10 or referendum whereby Landlord or Tenant is divested of ownership or any of the incidents 

11 thereof, or any transfer in lieu thereof. In the event Tenant does not terminate this Lease as 

12 provided in Section 22.2 following, Landlord shall promptly and diligently Restore the Store, 

13 Common "i\.reas, or other space, as the case may be, to as near their condition as existed prior to 

14 such Taking as is reasonably possible. During the course of such Restoration, if Tenant is not 

15 operating in the Store, all Rent shall abate from the date of the Taking to the Recommencement 

16 Date. If Tenant continues to do business in the Store during the period of Restoration, Tenant's 

17 total obligation for Rent shall be to pay within fifteen (15) days after the close of each calendar 

18 month Substitute Rent. Any Rent paid pursuant to clause (b) of the definition of Substitute Rent 

19 shall be classified as Minimum Rent for purposes of computing the sum of Percentage Rent due in 

20 any given Lease Year under the provisions of Section 6.2.2. \"Vnen Restoration is complete, 

21 Tenant's total obligation for Minimum Rent shall be adjusted as provided in Section 3.7 in the event 

22 the size of the Store is reduced. When Restoration is complete, if the size of the Store is not 

23 reduced, but the size of the Common Areas is reduced, Minimum Rent shall thereafter be reduced 

24 to an amount calculated by multiplying the i'vlinimum Rent stated in this Lease by a fraction the 

25 numerator of which is the fair market rental value of the Store immediately following the Taking 

26 and d1e denominator of which is the fair market rental value of the Store immediately prior to the 

27 Taking. 

28 22.2. Right to Terminate. 

29 22.2.1. Tenant may tern1inate this Lease upon written notice to Landlord in the event 

30 of any one or more of the following Takings: 

31 (a) A Taking of any portion of or interest in me Store: 

32 (b) Any Taking of the Common .i\.reas if the number of pm·king spaces is reduced 

33 below a ratio of four (4) parking spaces for each one mousand (1,000) square feet of Leisable Floor ."i.rea 

34 in the Shopping Center, or access to the Store is materially impaired, or ctccess to the Shopping Center is 

35 materially impaired; 

36 (c) Any Taking of any portion of the Shopping Center which materially impairs the 

37 operation of Tenant's business; 

Hi;tleah. Flocid:t 

Project :--io. E000002 

606 l.324, 2::!101 :-.o 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 61 of 125
1 (d) .'\ny Taking of twenty percent (20%) or more of the Leasable Floor i\.rea of the 

2 Shopping Center (not including the Store in either the numerator or denominator of such calculation); or 

3 (e) Tenant's termination must be e.xercised within si.-..."ty (60) days following the date 

4 of such Taking by written notice to Landlord. 

~ 22.2.2. Landlord may terminate this Lease upon written notice to Tenant, within sixty 

6 (60) days following the date of such Taking, in the event of any one or both of the following 

7 Takings: 

8 (a) A Taking of the Store; or 

9 (b) Any Taking of fifty percent (50%) or more of the Leasable Floor .'\rea of the 

10 Restricted ,-\.rea of the Shopping Center (not including the Store in either the numerator or denominator 

11 of such calculation). 

12 22.3. Claims. 

13 Nothing herein contained shall prevent Landlord and Tenant from prosecuting claims in 

14 any condemnation proceedings or otherwise for the value of their respective interests, as well as any 

15 damages. 

16 22.4. Waiver. 

17 The parties waive such rights of Lease termination as may be granted them in the event of 

18 condemnation by the laws of the state wherein the Store is located, it being their agreement that the 

19 rights of termination set forth in this Lease shall be e.'<clusive. 

20 23. MECHANIC'S LIENS 

21 Tenant shall prevent any mechanic's, materialman's or other liens <igainst the Store or the 

22 Shopping Center in connection with any labor, materials or services furnished or claimed to have 

23 been furnished. If any such lien shall be filed against the Store or the Shopping Center, the party 

24 through whom the lien arose will cause the same to be discharged within thirty (30) days of the 

25 filing of the lien, provided, however, that either party may contest any such lien, so long as the 

26 enforcement thereof is stayed by bonding or otherwise expunging the lien from the official 

27 property records in the jurisdiction. 

28 24. SIGNS 

29 24.1. Governmental Approval and Compliance. 

30 :\ll signs shall be subject to approval by local government;tl authority. Landlord shall 

31 cooperate with Tenant in obtaining approval for Tenant's signs as shown on Exhibit} ("Tenant's 

32 Signs") and made a part hereof, from the local governmental authority. 

Hialeah. Florida 

Project No. E000002 

(if.16 !.32-V 221•)\ 7.6 

. 54. 06/08/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 62 of 125
24.2. Building Signs. 

2 Tenant may erect and maintain Tenant's Signs upon the exterior of the Store, those Tenant 

3 signs depicted on Exhibit J, which Landlord hereby approves. Tenant's Signs shall be included by 

4 Landlord in the sign criteria for the Shopping Center. 

5 24.3. Pylon or Monument Signs. 

6 (a) Tenant may install its sign panels upon the e.'Cisting pylon and monument signs 

7 (in the e.'Cisting Upton's space) as depicted in E.mibit ], which signs Landlord hereby approves. Such sign 

8 structures will be located at the location indicated upon the Site Plan. The Delivery Date shall not oc= 

9 until each such pylon or monument sign structure(s) is ready for Tenant's installation of its sign faces. 

10 (b) Landlord shall use commercially reasonable efforts to construct a new pylon sign 

11 shown on the Site Plan as the "New Pylon" within one hundred eighty (180) days of the Delivery Date. 

12 Upon construction of the New Pylon, Tenant shall install its sign panels on the New Pylon as shown in 

13 E.mibit] and remove its panels from the existing pylon sign. 

14 24.4. Temporary Signs. 

15 During the period of construction described in Section S. l, Tenant shall have the right to 

16 construct temporary sign age adjacent to and/ or on the Store and at the perimeter of the Shopping 

17 Center indicating the anticipated opening of the Store for business. i-\.dditionally, Tenant may, 

18 through the thirtieth (30th) day following the opening of the Store for business, advertise such new 

19 business by me-d!ls of banners, flags and other signage attached to the Store, provided only such 

20 temporary signage is (a) permissible under local ordinances, and (b) does not damage the building 

21 exterior. 

22 24.5. Contingency. 

23 Tenant's obligations under this Lease are contingent upon Tenant obtaining governmental 

24 approvals for its signs as depicted in Exhibit] attached hereto. In the event Tenant is unable to 

25 obtain such approvals prior to July 1, 2000, Tenant may, upon notice to Landlord within twenty 

26 (20) days thereafter, terminate this Lease, it being understood that if Tenant does not deliver such 

27 notice to Landlord within such twenty (20) day period that Tenant's right to terminate this Lease 

28 pursuant to this Section 24.5 shall e.xpire and be of no further force and effect. 

29 25. NOTICE 

30 

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.-\.ny notice to be given in connection with this Lease shall reference (a) this Lease, (b) the 

store number which has been assigned to the Store by the Tenant (if known to Landlord), and 

(c) the location of the Store. The notice shall be served (a) personally, or (b) by certified mail, 

return receipt requested, or (c) by reputable courier service which provides written evidence of 

delivery, addressed ;J.s specified in Section 1.2 or to such other address as requested by either party 

in writing, or (d) by telephone facsimile upon which the date ·and time of transmission is machine 

imprinted to the number specified in Section 1.2. Copies of any notices to Tenant shall be sent to 

Bartko, Zankel, Tarrant & Miller, 900 Front Street, Suite 300, San Francisco, C.-\. 9411 l. Copies of 

any notices to Landlord shall be sent to P!HC, 417 Fifth "-\.venue, 3rd Floor, New York, NY 10016, 

Hialeah. Florida 

Project >Jo. E000002 6061.3~4 :21017.6 

- :D - f) II 06/08/00 

··. '·.· 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 63 of 125
1 and Martin L. Forman, Esq., Kotite & Kotite, LLP, 805 Third Avenue, New York, NY 10022. All 

2 notices given in the manner specified herein shall be effective upon actual receipt or upon refusal to 

3 accept delivery. 

4 Either party, by written notice to the other, may designate two additional parties to receive 

:> copies of notices. _1\.ny notice party to this lease may change its address or location for service of 

6 notices, for themselves or any of their respective designees by written notice. 

7 26. GENERAL CONDITIONS 

8 26.1. Partial Invalidity. 

9 If any term, covenant, condition, provision or restriction of this Lease is held by a Court of 

10 competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof 

11 shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 

12 26.2. Relationship of Parties. 

13 Nothing contained in this Lease shall be deemed or construed by the parties hereto or by 

14 any third person to create the relationship of principal and agent, or of partnership, or of joint 

15 venture, or of any other association between the parties other than Landlord and Tenant, or to 

16 prevent Landlord or Tenant from entering into ventures in direct competition with the Shopping 

17 Center, or the Store. 

18 26.3. Time. 

19 Time is of the essence in the performance of each provision of this Lease. 

20 26.4.. Waiver. 

21 The waiver of the performance of any term, covenant, condition, provision or restriction of 

22 this Lease by Landlord or Tenant shall not be construed as a waiver of any subsequent breach of 

23 the same term, covenant, condition, provision or restriction. The various rights, options, elections, 

24 powers and remedies of the parties contained in this Lease shall be construed as cumulative and no 

25 one of them e..'<clusive of any other or of any legal or equitable remedy which either party might 

26 otherwise have in the event of a breach by the other, and the e..'<ercise of one right or remedy by a 

27 party shall not in any way impair its right to any other right or remedy. 

28 26.5. Partial Months. 

29 For purposes of computing dates for e..'<pirations, Option Periods, Rent adjustments or 

30 cancellations (except for those dates specifically designated herein), any partial month at the 

31 commencement of the Term shall be disregarded. 

32 26.6. Consent. 

33 

34 

35 

Unless ·.i different standard is otherwise specifically stated, wherever in this Lease Landlord 

or Tenant is required to give its consent or approval to any action on the part of the other, such 

consent or approval shall not be unreasonably withheld, conditioned or debyed. /' 

Hi:ileah. Florida - 56 - r/ / / 06/08/00 

Project No. E0000112 b / 6iJ(Jl.~.~A 221017.6 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 64 of 125
26.7. Gender. 

2 Words of gender used in this Lease shall be deemed to include other genders, and singular 

3 and plural words shall be deemed to include the other, as the context may require. 

4 26.8. Captions. 

5 Section headings in this Lease are for convenience only, are not a part of the agreement of 

6 the parties and shall not constitute an aid in interpreting this Lease. 

7 26.9. Governing Law. 

8 This Lease shall be construed in accordance with and governed by the laws of the state 

9 wherein the Store is located, excepr as otherwise required by mandatory provisions of law. 

10 26.10. Due Authority. 

11 If Tenant or Landlord is a corporation, partnership, limited liability company, trustee or 

12 other entity, each individual executing this Lease on behalf of said entity (in his/her representative 

13 capacity only) represents and warrants that he or she is duly ;mrhorized to execute and deliver this 

14 Lease on behalf of the entity and that this Lease is binding upon the entity. 

15 26.11. No Prior Agreements. 

16 It is W1derstood that there are no oral agreements or representations between the parties 

17 he.reto affecting this Lease, and this Lease supersedes and cancels ;lny and all previous negotiations, 

18 arrangements, brochures, agreements or representations and understandings, if any, between the 

19 parties hereto or displayed by Landlord to Tenant with respect to rhe subject matter thereof, and 

20 none thereof shall be used to interpret or construe this Lease. There are no other representations 

21 or warranties between the parties, and all reliance with respect ro representations is solely upon the 

22 representations and agreements contained in this Lease. 

23 26.12. Entry by Landlord. 

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. 37 

Upon reasonable prior notice, in no event to be less than five (5) business days (except in 

the case of a bona fide emergency, in which event, no prior written notice shall be required, but 

prior verbal notice shall be required promptly confirmed in "'-riting thereafter), Landlord may enter 

the Store during Tenant's business hours for purposes of inspection, to show the Store to 

prospective purchasers and lenders, or to perform maintenance and repair obligations imposed 

upon Landlord by this Lease. 1\1! maintenance, repairs or replacements by Landlord to the interior 

of the Store or using the interior of the Store or maintenance, repairs or replacements to any 

portion of the Shopping Center that will create dust, noise, vibr:ition or other disturbance of 

Tenant's use of the Store shall be performed only during hours that the Store is not open to the 

public. Should Landlord unreasonably interfere with Tenant's business by such entry, Rent shall 

equiti.bly abate wirh reference to the nature, extent and duration of the deprivation of Tenant's 

business in connection \vith Landlord's entry into the Store. In the event of any dispute as to such 

equitable abatement, the matter shall be deferred to :\ltemative Dispute Resol/; .. n pursuant to 

Section 20.2 above. ; 

Project 

Hialeah, 

No. 

Florida 

£000002 

Ii 6061.3~4/221017.6 

- 57 - Ll6/08/00 

;; ·.~ 

" •\ 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 65 of 125
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26.13. Neutral Interpretation. 

Landlord and Tenant agree that this Lease has been freely negotiated and that in the event a 

dispute arises with respect to the meaning or interpretation of any provision of this Lease, no 

presumption, inference or conclusion shall be drawn against the party that drafted the provision in 

question. 

26.14. Force Majeure. 

As used in this Lease, the term "Force Majeure" means delay resulting from causes beyond 

a party's reasonable control such as strikes, walkouts or other labor disputes, acts of God, inability 

to obtain labor, materials or merchandise, governmental restrictions, regulations or controls 

(hereinafter "governmental matters") excluding from "governmental matters" planning and building 

permits, if issued within the average time period for doing so in the issuing jurisdiction for the last 

twelve (12) monrhs, and governmental approvals and inspections if performed pursuant to the 

jurisdictions and conditions within the average period of time of requesting the jurisdictions 

approval or inspection, judicial orders, war, riot or civil commotion, fire or casualty. The party 

obliged to perform shall give prompt notice to the other as soon as reasonably possible after the 

onset of such delay stating the cause and an estimate of the duration thereof. If, as a result of an 

event of Force Majeure, either party shall be delayed or hindered or prevented from the 

performance of any act required hereunder (other than the making of payments) within the time 

period set forth herein, the performance of such act shall be excused for the period of delay not to 

exceed SL"<ty (60) days in any calendar year, and the period of performance of such act shall be 

extended for a period equivalent to the period of such delay not to exceed sixty (60) days in any 

calendar year, unless a provision of this Lease expressly states that Force Majeure is not applicable, 

such as the end dates of Permitted Delivery Periods and the Automatic Termination Date. 

Financial inability to perform shall not constitute an event of Force Majeure. 

26.15. Successors in Interest. 

The terms, conditions and covenants herein contained shall inure to the benefit of and be 

binding upon the heirs, assigns and other successors in interest to the parties hereto, except as 

otherwise provided in this Lease. 

26.16. Memorandum of Lease. 

This Lease shall not be recorded. However, a Memorandum of Lease shall be executed, in 

recordable form, by both parties concurrently herewith. Either party may record the same at its 

own cost ;ind expense. 

26.17. Real Estate Brokers. 

Lwdlord and Ten:mt each represents and warrants to the other party that it has not 

authorized or employed, or acted by implication to authorize or employ, any real estate broker or 

salesman to act for it in connection with this Lease, other than Florida Shopping Center Group 

("Brokers"), who shall be paid by Lwdlord at the rate of Two Dollars ($2) per squ;ire foot of 

Leas;ible Floor :\.rea in rhe Store. one-third (1/3) upon the execution of this Lease. one-third (1/3) 

upon the Delivery Date. :md one-third (1/3) upon Tenant's opening for business. J.andlord :md 

Ten;mt shall each indemnify, defend ~md hold th~ other party harmless from :mdOI. i st any :md all 

Hialeah. Florida. - ~8 - I 06/08/00 

Project ;-.io. EOll0002 , ' 

6(J()l.}2..j ~211)!';°.() I 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 66 of 125
ADDENDUM ONE 

26.18 Landlord's Exculpation. Except for Landlord's (i) fraud or (ii) intentional 

material misconduct or misrepresentation, Landlord's liability hereunder shall be limited 

to Landlord's then interest in the Shopping Center for recovery of any judgment against J~ A 

Landlord, and no other assets of Landlord (or its representatives, agents, partners, /.j" "-

shareholders, directors, employees, fiduciaries, members or officers) shall be subject tact· 

any action or proceeding for the enforcement of any right or remedy of Tenant . . . 

hereunder nor shall Landlord (or its representatives, agents, partners, shareholders, 

directors, employees, fiduciaries, members or officers) be personally liable for any 

judgment under this Lease. 

G:\Work Files\WPD\HP\PALMSPRl\addendum.one2 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 67 of 125
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claims by any other real estate broker or salesman whom the indemnifying party authorized or d , employed, or acted by implication to authorize or employ, to act for the indemnifying party in JJ \.,.'-

connection with this Lease. Further, in the event Landlord fails to pay the Brokers within ten (10) tf~ 

days of the date that such commission is due to be paid, Tenant, at its option, may pay the Brokers' o;;·~~-' fees and collect the same from Landlord by litigation or otherwise, or with Landlord's approval, · ""' 

deduct the same from Rent as it comes due. ~ t...c: >-Le; /J 

SE.E- 1\--yD~vlll\ o;<.JE. ri "r•C-J1,._f> t1'-"'- 13/Tz; _ 

LANDLORD: TENANT: 

PAIM SPRINGS MILE ASSOCIATES, ROSS FLORIDA DRESS FOR LESS, L.C., 

LTD., a Florida limited partnership a Florida limited liability company 

By: PHILIPS PAJc:lYfSPRINGS SUB-VIII, By: ROSS STORES, INC., 

INC. 

,/ 

By: 

Name..--_~...:::l,/.-.:~....lii~~>l!..!'.~Z 

Title: 

Witness: 

Printed Name: 

a Delaware corporation 

Its: Managing Member 

By: 

Its: 

Witness: 

Printed Name: -+:.J,,,.;'~W-"-"'-f-L-"-'-l'f""-"'--'---

Witness: 

Printed Name: 

By: 

Its: 

Witness: 

Printed Name: 

Witness: ' \.,j,,,2~~~::.:_-f.!!......<~~t::::..-

Printed Name: 

Hialeah, Flo cida 

Project No. E000002 

6061.32.J./221017.6 

- 59 -

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 68 of 125
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State of California ) 

) 

County of Alameda ) 

on\JZUlb lt .0tu before me, Sh_a .an 0 ,ri B n [i) f) a 

Notary Public, personally appeared James Fassio and Gregg McGillis, personally known to me or 

(proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is~ubscribed 

to the within instrument and acknowledged to me that he/she~xecuted the same in his/her~ 

authorized capacity~es), and that by his/her~signature~ on the instrument the person~ or the 

entity upon behalf of which the person(s) acted, e.xecuted the instrument. 

.WI ~~S~S~m;.;;y:.;,::han;,::;d~an~d~o~ffi~cial;. ;.:seal:;,::·.._,, 

ii SHANNON BROWN 

~ Commission# 1213316 

z Norory Public - C:iIT!omia ~ 

J Alam~ County f- J MyComrn. t>:p<Eo ""°" 15 am 

w a a a a o a c a u ; u 

Notary Public 

State of_~J~t:.--:OJ~L/c~o fl_~/{_, ___ ) 

(, r l 

• .-:. iv L 1 Countyof~__,_Q~-"""-';..;;_--+/-"'-~-~~~~~-l ,if& 

On .:J:tj y(l~ofure m, __ ....,...l~tl_Jli-'-'f]tr}~;....--i,,=:.....,,,,_A· 71 _______ ~, a 

Notary Public, personally appeared Sfli'rl-ll UV~ personally known to me or (proved to me on the basis of satisfactory evidence) to be the person(s) 

whose name(s) is/are subscribed to the within instrument and :icknowledged to me that he/she/they 

e.xecuted the same in his/her/their authorized capacity(tes), and that by his/her/their signature(s) on the 

instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the 

instrument. 

WITNESS my hand and official seal. 

Hialeah, Florida 

Project No. E000002 

6{)6 \ ..3~.+.:1210 l 7.6 

·/ LEONARD S. GOLD 

- 60 -

Notary Public, State of New York 

No. 02G05002284 

Qualified in New York County 

Commission Expires September 28, 2000 

f ·\ 

06/0 i 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 69 of 125
EXHIBIT A 

LEGAL DESCRIPTION OF THE SHOPPING CENTER 

Component 2 

A portion of "FLORJDA FRUIT LAND CO'S SUBDIVISION" of Section 1, To'WTI.ship 53 South, 

Range 40 East, as recorded in Plat Book 2 at Page 17, of the Public Records of Dade County, 

Florida, being more particularly described as follows: 

Commence at the Point of Intersection of the Northerly Right-of-Way Line of West 49th Street 

(N.W. 103rd Street) with the Westerly Right-of-Way Line of West 4th Avenue (Red Road) as 

sho'WTI. on that certain Right-of-Way Map, as recorded in Plat Book 65 at Page 70 of the Public 

Records of Dade County, Florida; thence North 0 degrees 55'1 l" East, for 175.00 feetto the Point of 

Beginning of the following described parcel; thence North 87 degrees 43'14" West, for 175.00 feet; 

thenc1~ South 0 degrees 55' 11" West, along a line West of and parallel with the West Right-of-Way 

Line of the aforesaid West 4th Avenue (Red Road), for 175.00 feet; thence North 87 degrees 43'14" 

West, along the Northerly Right-of-Way Line of West 49th Street (N.W. 103rd Street) as per State 

Road Department Right-of-Way Map as recorded in Plat Book 60 at Page 53 of the Public Records 

of Dade County, Florida, for 987.60 feet to a Point of Curvature; thence Northwesterly and 

Northerly, along a circular curve to the right, having a radius of25.00 feet and a central angle of88 

degrees 39'30" for an arc distance of 38.68 feet to a Point of Tangency; thence North 0 degrees 

56'16" East, along the Easterly Right-of-Way Line of West 6th Avenue, as sho,vn on the plat of 

"FIFTH ADDITION TO PALM SPRJNGS SUBDIVISION SECTION THREE", as recorded in Plat 

Book 65 at Page 33 of the Public Records of Dade County, Florida, for 722.45 feet to a Point of 

Curvature; thence Northeasterly and Easterly, along a circular curve at the right, having a radius of 

25.0 feet and a central angle of 91 degrees 20'30" for an arc distance of 39.86 feet to a Point of 

Tangency; thence South 87 degrees 43'14" East for 603.63 feet to a Point of Curvature; thence 

Easterly and Northeasterly, along a circular curve to the left, having a radius of 651.09 feet an a 

central angle of 48 degrees 21 '34" for an arc distance of 549.54 feet to a Point of Reverse Curvature; 

thence Northeasterly, along a circular curve to the right, having a radius of 141.09 feet and a central 

angle of37 degrees 12'1 l" for an arc distance of91.61 feet to a Point on a Curve, said point bears 

North 85 degrees 12'32" West, from the radius point of the next described curve (last mentioned 

three courses being coincident with the Southerly Right-of-Way Line of West 51" Place, as shown 

on said plat of "FIFTH ADDITION TO PALM SPRJNGS SUBDIVISION SECTION THREE"); 

thence Southerly, along a circular curve to the left, having a radius of 5873.65 feet and a central 

angle of3 degrees 52'17" for an arc distance of396.87 feet to a Point of Tangency; thence South 0 

degrees 55'1 l" West, for 463.80 feet to the Point of Beginning (last mentioned two courses being 

coincident with the Westerly Right-of-Way Line of the aforesaid West 4th Avenue, (Red Road) lying 

and being in Hialeah, Dade County, Florida. 

TOGETHER WITH all rights under the reservation of easements as set forth in instrument recorded 

in Official Records Book 15881, Page 3 796. (AS TO COMPONENTS 1 AND 2) 

Hialeah. Florida 

Project No. E000001 

606 ! .J:!~f.:!:!395:!. l 

EXHIBIT A 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 70 of 125
EXHIBIT C 

CONSTRUCTION OBLIGATIONS OF LANDLORD (TURNKEY) 

1. Description of Work. Landlord shall furnish all labor and materials to construct 

and complete in a good, expeditious and workmanlike manner to the satisfaction of Tenant the 

work described in the Final Plans (the "Work" or the "Improvements") for the Store. Landlord 

shall supervise and direct all Work, using its best skill and attention. Landlord shall be solely 

responsible for all construction means and methods, techniques, sequences and procedures, and 

for coordinating all portions of the Work. All Work shall be performed in accordance with the 

terms and conditions of the Lease to which this Exhibit is attached (the "Lease"). 

2. Prototype Plans. Landlord acknowledges having previously received Tenant's 

prototype plans and specifications and Tenant's Design Guidelines for a typical Ross store 

(collectively, "·Prototype Plans"). 

3. Shell Plans. 

3.1. Definition and Requirements. "Shell" is defined as the fully enclosed 

building structure in which all structural members have been constructed and installed; and all 

exterior materials have been completely installed such that the building is wind and water tight. 

"Construction" means the type of building material (block, tilt wall, etc.) Included on the plans 

for the Shell ("Shell Plan") are surveyed dimensions, building lines, column lines, shear walls, 

openings and clearances, clear heights, exterior elevations, as well as all interior obstructions to 

use (such as piping, conduits, drains, equipment, devices, mezzanines), utility entrances and 

assemblies for the sprinkler system, communications lines, water, gas, electricity, and sewer, 

foundation walls and footings extending above the surface of the floor, and retained building 

systems, if any, such as mechanical, plumbing, docks and compactor pads as well as adjacent 

grades and docks. The type of Construction shall also be set forth. 

3.2. When Due. Prior to execution of the Lease, Landlord shall have provided 

Tenant with the Shell Plan for Tenant's Store, elevations of all other buildings in the Shopping 

Center and a Site Plan of the Shopping Center, all in an AutoCad v.14 ".dwg" format. 

3.3. Tenant Review. Tenant shall review and approve the Shell Plans or 

provide Landlord with its comments within thirty (30) business days after the later to occur of: 

(I) Tenant's receipt of the Shell Plans or (2) Tenant's receipt of a fully executed original of the 

Lease. 

3.4. Ratification. Landlord shall, within ten (! 0) business days after receipt of 

Tenant's approval of or comments to the Shell Plans, ratify said Shell Plans as approved by 

Tenant or incorporate Tenant's requested modifications. 

Hialeah, Florida 

Project No. E000002 

6061.3241221137.2 

. 1 . 6/7/00 . ... 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 71 of 125
4. Tenant Plans. Based on the approved Shell Plans, Tenant shall deliver to 

Landlord a floor plan for the Store ("Tenant's Floor Plan") on or before the later to occur of 

ninety (90) days from(!) the date of execution of the Lease, or (2) Landlord's ratification of the 

Shell Plans with Tenant's requested modifications, if any, incorporated therein. 

5. Completed Plans. 

5.1. Production of Landlord's Completed Plans. Within forty-five (45) 

business days after Landlord's receipt of the Tenant Floor Plan, Landlord's architect(s) 

(hereinafter "Architect") shall provide Tenant with a copy of complete plans of the Work to be 

performed in fulfillment of Landlord's construction obligations for the shell of Tenant's Store 

and interior improvement and related site work, for Tenant's review and comment ("Completed 

Plans"). The Completed Plans shall be based upon and shall incorporate the Prototype Plans, 

Shell Plans and Tenant Floor Plan. 

5.2. Tenant Review of Completed Plans. Within thirty (30) business days after 

receipt of the Completed Plans, Tenant shall approve or disapprove the Completed Plans and 

provide the Architect with Tenant's requested modifications, if any. 

5.3. Revision of Completed Plans. Within fifteen (15) business days following 

receipt of any comments by Tenant to the Completed Plans, revised Completed Plans shall be 

prepared by Landlord's architect and submitted to Tenant for approval. Landlord and Tenant 

shall each have ten (I 0) business days thereafter to either approve or disapprove the revised 

plans. Any disapproval by either Landlord or Tenant must be accompanied by a specific 

description of the revisions that the disapproving party would require in order to approve the 

revised Completed Plans. Architect shall incorporate any suggested revisions received from 

Landlord or Tenant into the revised Completed Plans and resubmit the revised Completed Plans 

to both Landlord and Tenant for approval within five (5) business days following receipt of a 

notice of disapproval. If the parties cannot reach agreement within twenty (20) business days 

after receipt of the revised Completed Plans, the Lease may be terminated by either party on 

written notice to the other at any time thereafter. 

6. Final Plans. 

6.1. The Landlord's Final Plans ("Final Plans") shall consist of the revised 

Completed Plans with all requested and mutually approved modifications incorporated therein. 

Any site plan included in the Final Plans shall substantially conform to the Site Plan of the 

Lease. In the event of any conflict between such site plan and Exhibit "B", Exhibit "B" shall 

control. The Final Plans shall include without limitation, parking areas, exterior elevations, and 

landscaping, as well as the Store building. The Store building shall contain approximately the 

number of square feet as set forth in this Lease. The Final Plans shall set forth the construction 

to be performed by each party, it being understood that trade fixtures, except as otherwise 

provided in the Final Plans, shall be the responsibility of Tenant, and all other construction shall 

be the responsibility of Landlord. Slot walls shall not be considered trade fixtures. 

Hialeah, Florid.~ 

Project No. E000002 

6061.324/22 I 13 7.2 

- 2 - /00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 72 of 125
6.2. Final Plans - Record Set. A Record Set, identified as such, of the 

Permitted Work embodied in the Final Plans to be performed pursuant to the Landlord's 

construction obligations under the Lease shall be submitted to Tenant within ten (10) business 

days of issuance of the Building Permit described in paragraph 8 hereof AutoCad VJ 4 files of 

Tenant's Store and Site Plan. 

7. Approvals. Any disapproval or proposed revisions hereunder shall be on 

reasonable grounds and supported by a detailed written statement thereof. An untimely, 

unreasonable or unsupported disapproval or a failure to respond within the time allowed shall be 

deemed an approval for all purposes hereof. 

8. Plan Format. All plans of any type required to be provided to Tenant by 

Landlord under the terms of this Exhibit must be in an AutoCad v.14 ".DWG" format as well as 

in printed form in order to constitute a valid submission. 

9. Permits. 

9.1. Application. Upon approval of the Final Plans by both parties, Landlord at 

its ov.n cost and expense, shall forthwith make application to all relevant governmental agencies 

for necessary building permits, licenses and other grants of authority which may be required in 

connection with the construction of the Improvements (hereinafter collectively the "Building 

Permit"). Upon issuance of the Building Permit, a final initialed and dated set of plans reflecting 

all governmentally required changes shall be delivered to Tenant to review and approve. 

Tenant's review and Landlord's revision of the Final Plans shall occur on the same time schedule 

as set forth in 5.1 and 5.2 above. If the parties cannot reach agreement within twenty (20) 

business days after receipt of the revised Final Plans, the Lease may be terminated by either party 

on written notice to the other at any time thereafter. No changes, including those required by 

local building authority plan check, shall be made in the Final Plans without Tenant's prior 

written approval. 

9.2. Failure to Obtain. Landlord shall have ninety (90) business days from 

the date the Final Plans are approved by both parties in which to obtain the Building Permit. 

If the Building Permit is not obtained (including the inability to obtain any required variance 

from such governmental authority) within the ninety (90) day period, Tenant, at its sole 

option, may terminate this Lease upon written notice to Landlord. If the Building Permit is 

not obtained, despite Landlord's best efforts, within two hundred seventy (270) business days 

from the date the Final Plans are approved by both parties hereto, either party may terminate 

this Lease thereafter by written notice to the other. 

9.3. Landlord shall timely keep Tenant fully informed of the status of the 

application for the Building Permit and any negotiations relating to its issuance. Further, at the 

election of Tenant, Tenant may take part in any such negotiations. 

Hialeah, Florida 

Project No. E000002 

6061.324/221137.2 

- 3 - !):Yoo 

/ 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 73 of 125
10.. Land Entitlement Permits. Should it be necessary for Landlord to obtain a Land 

Entitlement Permit (as defined hereinbelow) of any sort, the time for preparation of Tenant's 

Floor Plan, Completed or Final Plans shall be extended by the time reasonably required to obtain 

such Land Entitlement Permit. If Landlord, despite diligent efforts, is unable to obtain a Land 

Entitlement Permit (including the inability to obtain any required variance from the appropriate 

governmental authority) prior to October 15, 2000, either party may terminate this Lease upon 

written notice to the other at any time thereafter but prior to issuance thereof. Landlord shall 

prepare such plans and specifications as may be reasonably required for the processing of such 

Land Entitlement Permit for the Store only. The term "Land Entitlement Permit" as used herein 

shall include without limitation an environmental impact report or statement or its equivalent, a 

zoning change or variance, an architectural or design review approval, general plan change, 

planned unit development approval or its equivalent, subdivision approval or its equivalent, or 

any other approval pertaining to the use or general design of the Shopping Center, Store or 

Improvements other than a Building Permit. 

11.. Access to Premises. Tenant's construction representatives at all times shall have 

access to the premises during conStruction for purposes of inspection. 

12.. Landlord to Pay for Plans. Within ten (10) days after receipt of Tenant's 

invoice, Landlord shall pay Tenant an allowance ("Architectural Allowance") of Ten Thousand 

Dollars ($ 10,000) on account of the costs incurred by Tenant in the preparation, revision and 

review of 1:he Completed and Final Plans as well as the preparation of the Floor Plan, site specific 

plans, specifications and requirements. Notwithstanding any other provision of this Lease, the 

obligation imposed herein upon Landlord shall exist even if the Lease to which this Exhibit is 

attached is terminated by reason of Landlord's inability to obtain Building Permits, Land 

Entitlement Permits or financing or failure of Landlord and Tenant to agree upon a set of Final 

Plans; provided, however, if this Lease is so terminated, the right to use the plans shall vest in 

Landlord; otherwise, title to the plans shall vest in Tenant. 

13.. Landlord to Pay for Leasehold Improvements. "Turnkey" condition includes a 

Landlord purchased trash compactor and a pad to place it on. Landlord shall also pay to Tenant a 

Leasehold Improvements Allowance of Sixty Eight Thousand Seven Hundred Two Dollars 

($68,702) for Tenant's installation of, among other items, slotwall and fitting rooms, which are 

not to be considered trade fixtures as set forth in Tenant's Design Guidelines, a copy of which 

Landlord acknowledges receipt. Landlord shall pay the Leasehold Improvements Allowance 

within ten (10) business days of its receipt of-Tenant's invoice therefor. 

14.. Change Orders. Any changes to the Final Plans desired by Tenant subsequent to 

the approval of such plans by both parties shall be requested in writing. Laridlord agrees· to use 

its reasonable, good faith efforts to incorporate plan changes requested in writing by Tenant and 

to notify Tenant immediately of any cost increase or potential delay which shall result if such 

changes are incorporated into the Work, based on the information provided by Architect and 

Landlord's general contractor. Landlord shall not be required to incorporate any plan changes 

,;,;, requested by Tenant unless Tenant: (a) approves in writing and agrees to pay to Landlord the 

actual cost increase (including any associated architectural, engineering and general conditions 

6061.324/221137.2 

Hialeah, Florida • 4 - f 617 /OO 

Project No. E000002 

• 

• 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 74 of 125
JUL 17 '00 13:02 FR BRRTKn ZRNKEL 

RECORDl'SG ~QL""ESTED 0.'T' 

Ross Stores. Inc. 

Bartko, Zankel, Tarrant & Miller 

900 Front Street, Suite 300 

San Francisco, CA 94111 

Attn.: Martin L Zankel 

415 956 1152 TO 1?'<8913710 P.02/09 

SPA.CE .~O'v"'E 1Hl::i L.11'C RESERVED POR RECORDER·~ USE 

SUBORDINATION, NONDISTURBAi'fCE AND AITO&'fMEl"'"T AGREEMENT 

LOCATION: Hialeah, Florida 

2 

3 This Subordination. Nondisturbance and Attornment Agreement (!he "Agreement") is 

4 effective this day of , 20 __ , by and between (the 

' "Lender"). ROSS FLORlDA DRESS FOR LESS, L.C., Florida limited liability company (the "Tenant") 

5 and PALM SPRINGS MILE ASSOCL'\ TES, LTD., a Florida limited partnership (the "Landlord"). 

1 RECITALS 

8 A. Lender is or '"ill be the grotmd lessor wilh respect to, or the holder of indebtedness 

1 secured by a lien or liens upon, the real property described in Exhibit "A" attached hereto and by this 

~ reference incorporated herein. The Exhibit "A" property and improvements thereon is hereinafter 

1 referred to as the "Shopping Center." The instruments creating such lien or liens whether they be 

2 denominated as being ·'mortgage," "deed of trust," "deed to secure debt," "security agreement," 

3 "vendor's lien," "ground lease," or otherwise, and any instruments modifying or amending the same, or 

. 4 entered into iin substitution or replacement thereof, are hereinafter collectively referred to as being the . 

. 5 "Mortgage." 

6 B. Tenant has executed, or will execute, a certain lease with Landlord, dated for reference 

.7 purposes on , for all or a portion of the Shopping Center, which portion (the 

.8 ·'Premises") is more particularly set forth in said lease. Said lease. and all amendments and 

.9 modifications thereto are herein collectively referred to as the "Lease:· 

:O C. Tenant has requested that Lender agree not to disturb Tenant's possessor)· rights under 

21 the Lease in the event that Lender should foreclose on the Mortgage, provided that Tenant is not in 

:2 default of th.:: Lease. 

23 D. The parties desire to establish certain rights and obligations with respect to their 

o4 respective interests by means of this Agreement. 

Hialeah, FL 

6061.;241223s;i.1 

- 1 - 07/17!00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 75 of 125
JUL 17 '00 13=02 FR BRRT~n ZRNKEL 415 956 1152 TO 1~·?8913710 P.03/09 

1 AGREEMENTS 

2 NOW, THEREFORE, the parties hereto in consideration of the mutual covenants herein 

3 contained. arid intending to be legally bound by hereby agree as follows: 

4 !. Subject to the terms and conditions of this Agreement, and for so long as this Agreement 

5 remains binding upon Lender, the Lease shall be, in accordance with the terms and conditions hereof, 

5 subordinate to the lien of the Mongage and all voluntary and involuntary advances made thereunder. 

7 2. Lender approves of the Lease. 

8 3. Provided that Tenant is not in default so as to permit the Landlord to terminate the Lease 

9 or Tenant's right to ;possession of the Premises, Lender or the purchaser at a foreclosure sale pursuant to 

} any action or proceeding to foreclose the Mongage, whether judicial or non-judicial, or Lender pursuant 

1 to acceptance: ofa d,:ed in lieu of foreclosure or any assignment of Landlord's interest under the Lease, 

2 in the exercise of any of the rights arising, or which may arise, out of the Mortgage or in any other 

3 manner: (i) shall not disturb or deprive Tenant in or of its use, quiet enjoyment and possession (or its 

4 right to use, quiet enjoyment and possession) of the Premises, or of any pan thereof, or any righr, benefit 

' or privilege granted ro or inuring to the benefit of Tenant under the Lease (including any right of renewal 

6 or extension thereof); (ii) shall not terminate or affect the Lease; (iii) shall recognize Tenant" s rights, 

7 benefits and privileges under the Lease; and, (iv) shall recognize the leasehold estate of Tenant under all 

8 of the terms, covenants, and conditions of the Lease for the remaining balance of the term of the Lease 

9 with the same force and effect as if Lender were the Landlord under the Lease. Lender hereby 

a covenanrs that any s.ale by ir of the Shopping Center pursuant to the exercise of any rights and remedies 

l under the Mortgage or othe!"""ise, shall be made subject to the Lease and the rights of Tenant thereunder. 

2 However, in no event shall Lender be: 

.3 (a) Liable for any act or omission of Landlord arising prior to the dare Lender takes 

4 possession of Landlord's interest in ilie Lease or becomes a mortgagee in possession, except to the . 

.5 extent such act or omission is of a continuing nature, such as, for example, a repair obligation; 

6 (b) Liable for any offsets or deficiencies which the Tenant might be entitled to assert 

.7 against the Landlord arising prior to the date Lender takes possession of Landlord's interest in the Lease 

:8 or becomes a mortgagee in possession, except to the extent that Lender has received the benefit of the .. 

'.9 act of the Tenant giving rise to the right of deduction, such as, for example, relief of an obligation that 

,Q would otherwise have been paid by Lender as Landlord; 

l (c) Botmd by any payment of rent or additional rent made by Tenant to Landlord for 

· 2 more than one month in advance, which payment was nor required under the terms of the Lease: 

3 ( d) Bound by any amendment or modification of the Lease executed after the date of 

··+ this Agreement which: (i) increases Landlord's obligarions or reduces Tenant's obligations under the 

;s Lease; and, (ii) is made without Lender"s prior .,.,Tinen consent (except to the extent that the Lease may 

'6 specifically contemplate any amendment or modification thereof). 

"7 (e) Be liable for any security deposit under the Lease unless such security has been 

'8 physically ddivered to Lender. 

Hialeah. FL 

6061.324:223872.1 

- 2 - 07il 7i00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 76 of 125
JUL 17 '00 13:03 FR BRRTKO ZRNKEL 415 956 1152 TO 12128913710 P.04/09 

4. In the event of the termination of the Mortgage by foreclosure, summary proceedings or 

otherwise, and if Tenant is not in default under the terms and conditions of the Lease so as to permit the 

Landlord thereunder to terminate the Lease, then, and in any such event, Tenant shall not be made a 

party in the action or proceeding to terminate the Mortgage unless not to do so would be 

disadvantageous procedurally to Lender, in which case, such joinder of Tenant as a party shall not 

extinguish or interfere with any rights of Tenant under the Lease, nor shall Tenant be evicted or moved 

or its possession or right to possession under the terms of the Lease be disturbed or in any way interfered 

v.'ith, and, subject to the provisions of this Agreement, Tenant will attom to Lender or any other party 

which obtains title ro the Shopping Center pursuant to any remedy provided for by the Mortgage or 

otherwise, such attornment to be effective and self-operative without the execution of any other 

instruments on the part of any party, and the Lease shall continue in full force and effect as a direct 

Lease from Le.nder or such party to Tenant under all the terms and provisions of the Lease (including 

any rights re renew or extend the term thereof). In the event of such attornrnent, Lender shall be deemed 

to have assumed and shall assume the performance of all of the affirmative covenants of Landlord 

occurring undc:r the Lease from and after the time Lender becomes Landlord and until such time as such 

obligations are assumed by a bona fide purchaser. 

5. Tenant hereby confirms that the Lease is in full force and effect. 

6. So long as rhe Deed of Trust remains outstanding and unsatisfied, in rhe event of a 

default under the terms of the Lease, Tenant will mail or deliver to Lender at the address and in the 

manner herein beJo..,_· provided, written notice thereof, specifying in reasonable detail the nature of 

the default, prior to terminating or seeking to terminate the Lease. Lender shall have the option 

thereafter, the same right to cure any defaults or to take action as the Landlord within such grace 

period as is entitled under the lease; provided, however, if rhe nature of the default is such that it does 

not materially and/or 2dversely affect Tenant's use and enjoyment of the Premises under the Lease. 

If such default cannot be reasonable cured by Lender within such thirty (30) day period, the 

commencement of action by Lender -..·irhin such thirty (30) day period to remedy the same shall be 

sufficient so long as Lender diligemly pursues, without interruption, such curative action to 

completion. 

7. Nothing contained in this Agreement shall be deemed to reduce or abrogate any rights of 

Tenant to cur•e any default of the Landlord under the Lease in accordance with and subject to the 

provisions of the Lc:ase andior to deduct from rental such amounts which Tenant may be entitled to so 

deduct under the provisions of the Lease. 

8. Unless and until Lender or any subsequent purchaser succeeds to the interest of Landlord 

under the Lease, Landlord shall continue to perform Landlord's obligations and duties under the Lease. 

9. 1f Landlord executes and delivers to Lender an Assignment of Leases and Rents 

conveying the rent under the Lease upon an event of default by Landlord under the Mortgage, after 

receipt of notice from Lender to Tenant (at the address set forth belo>v) that rents under the Lease should 

be paid to Lender, Tenant shall rhereafter pay to Lender all monies thereafter due to Landlord under the 

!,.ease. In such event, Tenant shall be entitled to rel;.· solely upon such notice, and Landlord and Lender 

hereby indemnify and agree to defend ;ind hold Tenant harmless from and ag:i.inst any and all expenses, 

losses. claims, damages or liabilities arising out of Tenant's compliance with such notice or performance 

of rhe obligations under the Lease by Tenant made in good faith in reliance on and pursuant to such 

Hialeah, FL - 3 - 07 ! ! 7/00 

606l.J2~:223S72. I 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 77 of 125
) 

J 

) 

) 

, 

7 

1 

) 

1 

z 

3 

) 

:0 ' 

7 

8 

9 

J 

l 

2 

3 

~7 

JUL l'r '00 13=04 FR BARTKO ZANKEL 415 956 1152 TO l"l.28913710 

notice. Tenant shall be entitled to full credit wider the Lease for any rents paid to Lender in accordance 

'"~th the provisions hereof. Any dispute between Lender (or any other purchaser) and Landlord as to the 

existence of a default by Landlord under the provisions of the Mortgage. shall be dealt v..ith and adjusted 

solely b~tween Lender (or any other purchaser) and Landlord, and Tenant shall not be made a party 

thereto. 

l 0. Lender shall use the proceeds of any insurance recovery or condemnation award for the 

purposes stated in the Lease. 

11. No modification, amendment, waiver or release of any provision of this Agreement or of 

any right, obligation. claim or cause of action arising thereunder shall be valid or binding for any 

purpose whatsoever unless in v.Titing and duly executed by the party against which the same is brought 

to be asserted. 

12. Ten am agrees that without the prior written consent of Lender, it shall not: (a) amend, 

modify, terminate, or cancel the Lease or any extensions or renewal thereof; or (b) tender a surrender 

of the Lease or make a prepayment of any rent or additional rent in excess of one (1) month. 

13. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto 

and their respective heirs, legal representatives, successors and assigns, including without limitation, the 

covenants of Lender herein shall be specifically binding upon any purchaser of-the Shopping Center at 

foreclosure oir at a sale under power of sale. 

14. In the event any one or more of the provisions contained in this Agreement shall for any 

reason be held to be invalid, illegal or unenforceable in any respect, said provision(s) shall be void and 

of no further force or effect. 

15. This .A..greement shall be governed and construed according to the laws of the state where 

the Shopping Center is located. 

16. Lender shall not institute any litigation naming Tenant as a defendant for the purpose of 

foreclosing or otherwise terminating Tenant's leasehold interest in the Shopping Center or the Premises 

unless Tenant is required to be named in such litigation by law, and then only for the purpose of 

complying ..,.;th the applicable foreclosure statute and so long as Tenant's failure to defend against any 

such action shall not result in a waiver of its rights to continued possession under the Lease as set forth .· 

in this Agreement. The term "Lender" as used herein shall include any successor-in-imerest to the 

Lender (including a purchaser at foreclosure or sale in lieu thereof). 

17. If Tenant becomes a party to any litigation by reason of Lender's enforcement of any 

rights granted Lender by the Mortgage and Tenant is not in default under the terms and conditions of its 

Lease so as 1co permit the Landlord thereunder to terminate the Lease, Lender shall indemnify, defend 

and hold Tenant harmless against any loss, damage, liability (or any claims in respect to the 

aforementioned), costs or expenses (including without limitation reasonable attorneys· fees and 

investigative and discovery costs, court costs, 'vitness fees and cost of appeal) of whatever natur.e caused 

·by or resulting from Lender's enforcement of the rights granted Lender under the Mortgage. 

Hialeah. FL 

6061.324i223S7.2. I 

- 4 - 07il 7i00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 78 of 125
415 956 1152 TO 1?128913710 

1 18. To be effective. any notice or other communication given pursuant to this Agreement 

Z must be in v.7iting and sent postage paid by United States registered or certified mail "'1th return receipt 

3 requested. Rejection or other refusal to accept, or inability to deliver because of changed address of 

~ which no notice has been given, ''ill constirure receipt of the notice or other communication. For 

S purposes hereof. Lender's address is: 

7 

3 

t 

) 

) 

Attn.: ___________ _ 

and Tenant's address is: 

Ross Stores, Inc .. 

8333 Central Avenue 

Newark, CA 94560 

Attn.: Legal Notice Department 

and Landlord's address is: 

Palm Springs Mile Associates, LTD. 

419 W'est 49ch Street, Suite 300 

Hialeah, FL 33012 

Attn.: David Eisenstadt 

At any time(s), each party may change its address for the purposes hereof by giving the 

other pany a change of address notice in the manner stated above. 

19. This Agreement (a) contains the entire understanding of Lender and Tenant regarding 

matters dealt with herein (any prior mitten or oral agreements betv.·een them as to such matters being 

superseded hereby). (b) can be modified or v:aived in whole or in part only by a v.Titten instrUment 

signed on behalf of the party against whom enforcement of the modification or waiver is sought, and (c) 

will bind and inure to the benefit of the parties hereto and their respective successors and assigns. 

20. In the event of any litigation arising out of the enforcement or interpretation of any of the 

provisions of this Agreement, the unsuccessful party shall· pay to the prevailing party its reasonable 

attorneys' fees, induding costs of suit, disco\'ery and appeal. The "prevailing party" shalt be that party 

who obtains substantially the relief sought in the action. 

21. In the event the Lease is terminated as a result of Landlord's bankruptcy or 

reorgani:zation,. whereby Lender obtains fee title to the Shopping Center (or in the case Lender is the 

ground lessor, retains fee title without the encumbrance of the ground lease), Lender agrees that the 

Lease shall remain in effect as between Lender (as Landlord) and Tenant, subject to the terms of this 

Agreement. and, upon Tenant's "Titten request, Lender and Tenant agree to execute a reinstatement 

agreement documenting that the Lease has been reinstated as between Lender (as Landlord) and Tenant 

and that the terms and conditions thereof shall be as stated in the Lease. subject to the provisions of this 

Agreement. 

Hialeah. FL 

6061.32.,22JS72. l 

- 5. 07il 7/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 79 of 125
JUL l'I ' ldld l3: 05 FR BRRTKO ZRNKEL 415 956 ll52 TO l2J?B9l37l0 

IN \VITNESS WHEREOF, the panies have caused !his instrument to be executed as of 

the day and year first 'WTitten above. 

LANDLORD: 

PALM SPRINGS l'<lILE ASSOCIATES, 

LTD., a Florida limited partnership 

TENANT: 

ROSS FLORIDA DRESS FOR LESS, L.C., 

a Florida limited liability company 

By: PHILIPS PALM SPRINGS SUB-VIII, By: ROSS STORES, INC., 

INC. a Delaware corporation 

By: 

Name: ------------ Title: 

Witness: 

Printed Name: ----------- Witness: 

Printed Name:-----------

LENDER: 

By: ____________ _ 

Name: ____________ _ 

Title: ____________ _ 

Witness: 

Printed Name: ------------

Witness: 

Printed Name: -----------

Hialeah, FL 

6061.JZ4.'223872. I 

Its: Managing Member 

By: 

James Fassio 

Its: Sr. Vice President 

Witness: 

Printed Name:------------

Witness: 

Printed Name: -----------

By: 

Gregg McGillis 

Its: Vice President, Real Esta!e 

Witness: 

Printed Name: -----------

Witness: 

Printed Name: -----------

• 6 - Oi!l 7100 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 80 of 125
JUL 17 '121121 13:05 FR BRRT"- ZRNKEL 415 956 1152 TO l~ ~891371121 P.1218/1219 

State of Califonia. __________ ) 

) SS. 

County of Alameda _________ _, 

On before me, -------------------~ a "Notary Public, personally appeared James Fassio and Gregg McGillis, personally knov.n to me or 

(proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed 

to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their 

authorized capacity(ies), and that by hisiher/their signature(s) on the instrument the person(s). or the 

entity upon behalf of which the person(s) acted, executed the instrument. 

WITNESS my hand and official seal. 

Notary Public 

State of -------------~ ) SS. 

County of ____________ _, 

On --------- before me, ----------------· a Notary 

Public, personally appeared 

personally kno\'<n to me or (proved to me on the basis of satisfactory evidence) to be the person(s) 

whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they 

executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the 

instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instIUment. 

Hi>leah, FL 

606L32~!223872. I 

WIThESS my hand and official seal. 

Notary Public 

- 7 - 07117100 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 81 of 125
JUL 17 '00 13:05 FR BART'"J ZANKEL 415 956 1152 TO 1' l28913710 

) SS. 

On-------- before me,----------------· a Notary 

Public, personally appeared ----------------------------' 

personally knov.n to me or (proved to me on the basis of satisfactory evidence) ro be the person(s) 

whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they 

executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the 

l instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 

Vt1TNESS my hand and official seal. 

Hialeah. FL 

606l.32.ll223872. l 

Notary Public 

- 8 - 07il 7/00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 82 of 125
Piccadilly Cafeteria 

EXHIBIT H 

EXCLUSIVES 

Section 23.12. with r~spect to property located inside 

the so-called Palm Springs Mile Shopping Center that is o\.'ned by 

Palm Springs Xile Associates, Ltd., Palm Springs Hile Associates, 

Ltd. agrees not to lease space to Luby's Cafeteria during any 

period of time that Tenant is still operating the Premises. 

Eckerd 

Tenant 'llili have the exclusive· right to operate a drug prescription department in th<> area of the shopping Center to the extent 

o\.lned and controlled by Landlord and bounded as follo'Js: West 

5lst Street to the North, West 49th Street to the south, West 4th 

Avenue to the East and West Gth Avanue to the West: • · · 

Dairy Queen 

Not'-lith:9t:anding the foregoing. prov-iried this Lease is in full force 

and effect and Tenant. is- uainS' th!! D~r:iis::d Pret:iises to:- t:he use $€:C fcrth in 

S.ect:ion s. 01. Landlord hereaft.er agrees nee co en1:cr in':.o any ne·..1 lease for spac~ 

in tha't porcion of t:he Shopping Cent:e:: =ro1;i;-b.;i.t.ched on Exhibit C (Che "Exclusive 

Area'') to a. tena.:lt:. ub.oeo prima.::y businc~ss is the aale of ice: cream. · 

Paragra?h .sohall automatically become null a.."l.d vc1id if: 

\Vinn Dixie 

2S. Landlord covenants and agrees that so long as this Lease is in full force and effecc 

and Tenant ls not in default b~yond an~ ncitice and cure period and Tenant is operating .a 

auperrnarkec in tho demised premises, the Tenant shall bave the exclusive right to operate a 

supermarkot i_n the shopping center as described in Exhibit "B' and as graphically portrayed 

on Exhibit 'A·. Landlord funher covenant.< and agrees that II will not hereafter directly or 

indirectly lease or rent any propecty located within iaid shopping center for occupancy as • 

supermul:et, grocery store, m~_l, fish or v_e~'ecablemarket; p•· • 

Care Florida 

Notwithstanding anything in this loane to the contrary, Landlord 

agrees not to lease space to any new Tenant for the term of this 

lease within the Shopping Center as defined in Exhibit A-2 of 

this lease for the following uses or medical specialties: medical 

center, prepaid health cac-e center, H.H·.o., general practice, 

internal medicine or cardiology. 

Hialeah, Floridzi 

Project No. EOOOOOZ 

6061.324/220702.1 

EXHIBIT H ·Page l 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 83 of 125
United Artists 

in Section 5.1 

5.4 la) So long as (i) Tena;1: shall have duly 

kept and performed all of the te:ss, co~enants and conditions of this Lease on Tenant's part co be kept and performed, (ii) Tenant shall be occupying the Premises and 

actively conducting business therein in accordance with 

the uses ermitted hereinabove/\_-1, (iii) no .Evenc of 

e au t s a l have occurred under this Lease~·"Landlord 

agrees that, during the 'l'erm of tl1is Lease, Landlord shall 

not enter into any lease covering a~y space located in the 

area of the Shopping Center b2tueen Hesc 4th Avenue (Red 

Road) and Hest 12th Avenue and so•1th of Hesc 49th Street, 

which lease permits the premises demised thereunde~ to be 

used as a movie theacre; . . ***and (iv) no change of Tenant's ;::e.rmitte:l use has ree.'> effectuated p.lIS-.lail°o 

to Section 5.7, 

TJMaxx 

Dots 

GNC 

4. (A) L•ndlord agrees that as long a> any n:lail sales ;:ctivity shall be conducted in the 

Oanis:d Premises the Shopping Center shll not be used for a:iy non-retail purposes (repairs, 

alterations &nd omces incidental to retailing, 11nd ban.l:s and small loan and real estate offices, not 

being deemed non-retail), Cir for any enter1ainment purposes such as a bowling alley, skating rink, 

cinema. bar. nightclub, discotheque, amus:ment gallery, poolrnom, he'/l~h club, ma~<a~e. porlor, 

sporting event, spor-.s or g•me facilicy, off-track bening club or for any cstablishmci;c for the sale or 

display of pornographic materials. Notwithstanding the foregoing (i) office uses may be conducted 

in the o:isting office Quilding, (ii) the existing medical clinic may be conducted in its existing 

loc?.tion, (iii) the existing cafeteria may be: conducted in its cxiiting location, (iv) there may be a 

beauty school of no more than·7,500 square feet provided it is"° closer than l 00 foot from the 

Demised Prcmisu and (v) there may be an aggregate •lff O,OOi souarc feet of office uses and the 

uses described in this si:.ntence. an a:l.1~lj 

(B) Landlord agrees th>t (e:tcluding 'the Upions premises while such lease is in effect or a 

replac.:mcnt departme:it store in the same location). during the tenn of this le>.sc, no otherindi~idual 

premises in the: Shopping Center sha!l ac any tinie cont>in more th~n fifteen tho~sand (15,000) squ.r: 

feet of floor area therein used or occupied for, or devot"d to, the sale or display of soft goods (as 

defined by the trade from time to time), including in th·' comput.ltion of such floor are• one-half (112) 

of all floor area in any aisles, corridors or similar spsce!; adjacent to or abutting any racks, gondolas, 

shelvc:s, cabinets, counters or other fixtur~ or equipment cont.lining or used for the sale or display of 

soft goods. A "Sports Authority"" or similar concept, or "Baby's R Us" or i:imilar concept shall not 

be dec:mcd to violace the foregoing. 

. . , Landford hereafter agreP.s not to (i) enter into any new lease 

for ~pace 1n the Sho;:p<ng Center set forth on Exhibit "A" (the "Exclusive Area") to a tenant whose b~s1ness a_r;d ma:ketmg.concept Is _the retail sale .of women':: apparel using a one-price, specific 

price or ~~~1ng price selh.ng, marketing !ind advertising concept, or (ii) consent to a change in use 

in ~n ex1s.ing leas_e (which l_ease provides for Landlord consent) for space in the Exclusive Area w~1ch w~uld permit the retail sale of women's apparel using a one-price specific price or ceiling 

pnce selling, marketing and advertjsing ~cept . - ' 

Landlord ~hall t'IOt hisvia th• rls;iht to cintitr Into a""ny .futli're ieaiJea °whlc:h Wou~j pormlt th9 tensntq tl"lereunder to opar~te a ret&Jl l'!or• vtlll:.lng m.:ire 1 

2s•.4 cit hi sroo1 l•eao.bJ1 floor •r~a for the dlaplay end 041e o/ haah:!'I fooda, 11ltamtn1. aport• l"lWlt!<>n product~. or mlneral euppl•tn•nl1 In tho Sho,::i1 i Coril•r during \ho1 lorm l'lereor. · . . . 

Hialeah, Florida 

Project No. E000002 

6061.314/220701.1 

EXHIBIT H · Page 2 

·, 

' 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 84 of 125
TJ..!" TJX COMPANIES, INC. 

March 31, 2000 

Philips International Realty Corp. 

419 West 49'" Street 

Suite 300 

Hialeah, FL 33012 

Attn: David Eisenstadt 

Ross Stores, [no. 

8333 Central Avenue 

Newark, CA 94560 

Attn: Richard .Uetz 

EXHIBIT H-1 

TJ MAXX WAIVER 

Re: Palm Sprin$s Mile Shopping Center 

499 West 49•• Street 

Haileah, FL 

Gentlemen: 

The TJX Companies, [nc. hereby waives the provisions of its exclusive contained in Parazraph 4CE) of 

Schedule B of its lease dated May 29, 1998 of premises in the above .referenced Shoppin,g Center (the 

"TJX Le=") with respect to the operation of a store by Ross Stores, Inc. or any of its affiliates in the 

Shopping Center. 

it is understood and agreed this waiver only relates to Ross Stores, [nc. or its affiliates and the provisions 

of Paragraph 4(B) of Schedule B of the TJX Lease shall not be deemed waive<! or modified in o.ny way 

except as provided herein. 

Hialeah, Florida 

Project No. E000002 

6061.324/220702. l 

EXHIBIT H-1 

" 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 85 of 125
EXHIBIT I 

PERMITTED TITIE EXCEPTIONS 

ROSS FLORIDA DRESS FOR LESS, L.C., agrees to take its leasehold interest subject only to 

the following items and exceptions stated in the Proforma Loan Policy issued by Lawyers Title 

Insuran1~e Corporation, dated May 18, 2000, Case No. 000 l 87a, for the subject location in 

Hialeah, Florida: 

Exhibit A 

:Schedule B, Part I: 

:Schedule B, Part II: 

Exceptions numbered 19 through 24 

Exceptions numbered 7-10. 

However, with respect to Schedule B, Part II: Exceptions numbered 7-10, ROSS FLORIDA 

DRESS FOR LESS, L.C., does not accept or agree to be subject to any provisions of such leases, 

except to the extent expressly set forth in the Lease between ROSS FLORIDA DRESS FOR 

LESS, L.C. and PALM SPRINGS MILE ASSOCIATES, LTD.; and 

with respect to the mortgages listed on Exhibit A, they shall be subject to a signed NonDisturbance Agreement signed by Palm Springs Mile Associates, Ltd. and Prudential Securities 

Credit Corp., LLC, per Section 28. I of the Lease. 

Hialeah, Florida 

Project No. E000002 

6061.3241224001.1 

- I -

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 86 of 125
~ 

~ D. 

~ 

L ~ 

"' 

El! 

' ' I 

~J ©~ 

. ~ • 

I 

= = to ~ereolaced .... - - - -· .. NOTTO SCALE 

REVISED ~ - SHEET 

~~~~~~ Palm Springs Mlle Shopping Center K , - - • ;,._ NWC W. 49th St. and W. 4th Ave. 

bill moore & associates ~!'!+-~~'!'!!!!!!! HIALEAH fL 

____ --

L651. OF ORl~NAL s~;-j 

(51 O) 526-0296 rax 526-6092 I A -. 101l•o•>f>OG••- po.t>o.Uil GbGny.caUJ06 -. -. 27 PA 00 . 

1

-··,::I l·,i·t• ---·-1 

·::J ·9 I ' 

~ : > ~ ,'. ' I . . 

. --...__ 

. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 87 of 125
~--

/ AOJACENf PARAPEl 

24"1i X 48'WX I" DEEP SfEEL PAN 

OVAL 'ROSS' LOGO WALL PLAQUE 

WITH PORCELAIN rnAMEL FINISll 

TWO (.2) P..EQ'IJ /.;5 5HOM.: 

(SEE SHEET EL FOR DETAILS) 

LANDLORD fO CREATE FLAT EVEN 

6Uti:FACE 12'' MIN. Alt.OUND PLAQUES. 

-- ARCHllECTURAL 

LIGHTING 

BY LANDLORD 

72''H IND\VlDUAL "ROSS" LOGO LET1'ER5' 

fACESz LEXAN 5G 300·22136 MATTE ~LUE 

RETURNS' 8" ALUM. WI BRITE DIP CHROME FINISH 

NEON, FOUR-TUllE 15MM POWPER BLUE 

MOUN!ING, 114"-20 GALV. HANGER llOLTS 

PEG Off, 112'' SPACERS 

-- '42"H INDIVIDUAL "DRE55 FOR LE65" LOGO LETTERS1 

ALL CALL ours SAME A6 "ROS5" EXCErfz 

REfURN6: 6" ALUM. WI !SR.ITE DIP CHllOME FINISH 

NEOH1 lHREE-lUOE 16MM POWDER !'LUE 

SIGN FASCIA OY LANDLORD (SEE NOTES) 

1'·6" 42'-G' 'fl 1~·---- - 9'-0" 

24'·0" 

-"~ -- l um m M'·ll':IP• 

-----

26' -------- - -- -

32' 

2:3" )( 46" X 10" VOUOLE·FACE 

INlERHAll Y ILLUMINATI!D 

UNDER-CANOPY SIGN, 

MINIMUM B'-0" A60VE FIN15H FL 

CEN1E!o! OVER ENlRANCE DOORS 

(SEE SHEEl UC FOR DElAll.9) 

~. . 

- -~- .. ,-·.co 

=7--" 12 c·-i;-i 1,- __ ,:'£== m eel .... ···- --·- c 'i' W<'' t'f·· 

( 

MAY HOf 6E HIO HER 

lHAN THE R.055 6A5E 

OUILDING 

_5 1- ---t _·: __ · _ _J: .-.-.-----

-<.-- 32'' 

iZIOSS ·-- ., _lf'£!1,I 

__ Jj ',\ ·~.r- D~~~~ _ ~~-~ _ ~~-s.~. __ \, ~.) ~\, /:,a-:7 EQ" .,,.. EQ" 

'CJ 'CJ 'CJ 'CJ -------+ 

.._ 

\e\ ...... ---- .. :e:f-.... - ' - __ , {°\ A. __ t'.~-, . -- ~~ -- (~ 60 - ' 7Z"-'--

lll \~I( -- . ·- _J ~.I'd \l( ' " 

IOTES: 

ANDLORP TO FURNl!;llADtQUATE ACCESS nEHlHP LOGO LEtlElt5 FO!t INSTALLATION ANO 

~AINTENANCF., ff.It ... ltTICLE 600 Of THE 1993 N.E.C . 

.... NDLORP TO 5UPPL y 1WO {2} 20 A Mr 120V DEDIC,\TED SIGH CIRCUITS AND JllNCllON eotts TO 

1lt£A BEHIND SIGN LETTERS CONNECJEDTO THE ENERGY MAN,\GEMENT SYSTEM. 

.... NDLORD TO PKOYIDE' PLYWOOD 6,\CKING MINIMUM OF 12" ... ROUND 51GN IS,\CKGROUHO. 

ilt'iN e ... CICGROUHD FOR TltE 'R055 DRl'.65 fOR LE55' 51GN(5} u:nER5 15 l06E Of A lfGHf 

REYl5ED 

ILLUMINATED llLE NICHE 

BY LAHDl-ORP (SEE NaTE) 

1"4G·O" FRONfAGE 

L.._ •• ·-6LUE TILE ACCENf 

6AND5 6Y LANDLORD 

G) STOREFRONT ¥ ELEVATION SCALE, 3132,,. 1,_ 0,, 

--i :otoR (MINIMUM 151 l.R.V.) TO PROYtDf; HIGH CONIR.-.51 AND Yl51BtUTYFOR TlllO BLUE SIGN. 

0 iUCH/\5 SHE:RWIH WILLIAMS LIMOGE CREAM. bill 

~ moora & 011<>clcilas 

-l (5IOJ 526-0296 lax 516·6092 ... , ...... _. ,.-.... 111u ...,_,..,N"'4 

(S) I . . • . I , , 

SHEET 

Sl 

31MAY00 ]) HE BASE &UILDIHG COLOR 15 TOHAVE A MINIMUM l R.V. OF 551. .... ll~RS ... RE SUBJECT TO 

r :055 5TOXE5, lHC. ltEYltw AND APPROVAL. 

:0 i·-~-l·'·l-;·;;-~-~-----1· ~ 

IV ! ~ ~-' 

! --·-q ' -----~--

This Copy Is 64o/o of the Original Document Size 

..... '~ ' 

I· ' 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 88 of 125
11}'-4~ 

t

-··---_ .. L -

---...--- "1'-0" 

NOTES: 

~0551ENAl<1" FACE: 

!i'·6 .. X 10'--4-" WHTTE t..EXAN f'ANEL 

FlstSiSUR.FJ'CE DECORATED W~ 

ZO" HIGH 'ROSS' REVERSED OUT OF 

3M 3630·\57 SULTAN awe VIN~ 

(1WO FACES REQUIRED) ----.f---

30'·r HIGH AND ~'·O" 

WIDE n'LON STRUCTURE SY 

L••NOLORO (SEE NOTES) -------t---

SEE SHEElC ~FOR PYLON SIGN POSl1ION 

LANDLORD TO PROVIDE AND MAINTAIN n'LON STRUCTURE. 

FINISHES. l..IGH'flNG .t~NP ELEC1'RICAL SE~VICE 

SILL MOORE & ASSOC. TO l'ltOVIOE SCANNASLE "ROSS" 

LOGO TYPE TO LJL1S SIGN CONTRACTO!t 

~~-~~~DIXIE I 

T.J.MAXX - --

iZ OS S 

FABULOU.I 

DIAMONDS 

PICCADILLY 

CAFETERIA ECKERD 

PHILLIPS INTl!RNATIONAL REALTY CO. 

OWNl!R I MANAGER 

CD D/F PYLON SIGN. ELEVATION 

SCALE 3/16" = 1'-0 .. 

LANDLORD TO PROVIDE SMA WITH LOGO PLOT (l'ltOOF) PRIOR TO FABRICATION AND f'H0105 OF F\NISHBD DISl'\.AY 

9 

REVISED 

JUN 00 

~ ~1I111 llplqs Mlle SUNlll C.Ur 

IMC w. 48tll It. ... w. maw. 

b\U 11\0ore a. o''ockrl.os HIALEAH, fl (SIG} '24•07'6 f<:1il 52'"'6092 

' .... ,., __ ..... -~ .... ---

0 

I I 

SHEET i 

p L ____ : 

4MAV 00 

TOTAL P.02 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 89 of 125
EXISTING PYLON STRUCTURE BY 

LANDLORD (SEE NOTES) -----

ROSS TENANT FACE: 

REFACE EXISTING CABINET W!TH 

WHJTE LEXAN PANEL, flRST 

SURFACE DECORATED WITH 

'ROSS' REVERSED OUT OF 

3M 3630-157 SULTAN BLUE VINYL 

(lWO FACES REQUIRED) -----

-. 

· .. .;, .. . :... :.·:·· 

, ..... ,.. ··"' .• 

::'~i~~~iI;~~-::::·: '-~:·· 

. ·: 

1 TEMPORARY D/F PYLON SIGN• ELEVATION 

SCALE 3/16" = 1 '-0" 

NOTES: 

SEE SHEET K FOR PYLON SJGN POSITION 

LANDLORD TO PROVIDE AND MAINTAIN ?YL;;f'.. =-::. ·: 

FINISHES, LIGHTING AND ELECTRICAL SERV••:-:. 

61LL MOORE&. A550C. TO PROVIDE 5CANNABt::. ~ . --~ 

LOGO TYPE TO LJL'S SIGN CONTRACTOR 

LANDLORD TO PROVIDE 6MA WITH LOGO PL..:·r :·•: .• - - PRIOR TO FA6RICATION AND PHOTOS OF i::1r-i1-=-.:..!:::' :-•::-' • • 

REYlSED 

~ <([ ~aim Springs Mile Shopping center Ir..{:}... r i NWC W. 49th St. and W. 'th Ave. 

bill moore & ossociotes 

(510) 526-0296 la~ 5211·110<>2 HIALEAH, Fl ,..., __ a.4 -••» - •..• ,. 

SHEET 

JP 

4 MAY 00 

.. ------

! :. ' 

; ;_, 

\JJ' 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 90 of 125
-fOLE 1" PLAQUE 

*>OOM,.OWO. j w I 

112" MAX. 

. j'~~'~!~l7t~I ~ 24" X 48" XI" STEEL PAN WITH 

BAKED PORCELAIN ENAMEL FINISH 

I /ti!-- 3/4" EXTERIOR GRADE MDO Pl YWOOD 

ALL SURFACES PRIMED AND SEALED 

EPOXY GLUE BOND BElWEEN PLYWOOD 

AND STEEL PAN. 

--f-t!fltfHt= FINISH WALL MATERIAL 

.-------J~ 114-20 X 3.5 GALV. STUD 

TYPICAL OF SIX (6) 

I.HI- THREADED 114-20 T-NUT 

WITH 114-20 X 0.125 CUP POINT SCREW 

PRE-SET INTO Pl YWOOD BACKING. 

TYPICAL OF SIX (6) 

I ' d 1111111 llt= RTY-6708 SILICONE ADHESIVE 

, ,, 5116" DIA. X 3" DEEP HOLE IN WALL 

TYPICAL OF SIX (6) 

SECTION AT MOUNT 

SCALE: 3/4" = 1" 

. - - ··- .•. ·-·. -· ·-!:IT'£.: -.-

'~-, 

lUE LOCATIONS 

INSTALLATION INSTRUCTIONS: DRILL SIX (6) 6116" DIA. X 3112" DEEP HOLES INTO WALL AS PER PATIERN. 

SCREW 114-20 GALV. STUDS INTO EMPTY T-NUTS IN BACK OF PLAQUE UNTIL THEY CONTACT CUP POINT SCREW 

(DO NOT OVER TIGHTEN). FILL HOLES IN WALL AND COAT All-THREAD WITH RTY-6708 SIL/CONE ADHESIVE. 

MOUNT PLAQUE ONTO WALL PUSHING STUDS INTO HOLES UNT'IL PLAQUE IS FLUSH AGAINST WALL SURFACE. 

" N 

~ "' - 

~ 

~ ~ 

rr, 

"l 

a lfl 

lfl 

a 

" 

~ Ol 

ro ____: 

ci 

CD 

8" 

48" 

16" 16" 8" 

'!.FORT-NUTS '!.FORT-NUTS 

o~ 

~ W~S ~ ~ 

~-- PMS #296C DARK BLUE COPY OUTLINE 

~--- PMS #294C BLUE BACKGROUND 

~---- PMS #296C DARK BLUE 1ST OUTLINE 

~----- WHITE 2ND OUTLINE 

~------ PMS #294C BLUE 3RD OUTLINE 

OVAL ENTRANCE LOGO PLAQUE ELEVATION 

SCALE: 1-1/2"=1'-0" 

TES TO SUPPLY PLAQUES, 

.LATION PATIERNS. 

'VARY ACCORDING TO TYPE OF 

• ANDLORD TO VERIFY CONDITIONS 

N SURFACE 12" MINIMUM AROUND 

REVISED 

~ Palm Springs Mile Shopping Center 

NWC W. 481~ SI. and W. 4th Ave . 

,., 

,, 

a 

"l 

"'1- -\ N z = 

c 

Ul 

"l 

SHEET 

EL 

•(SJ. • .. 

bill moore & associates 

(510) 526-0296 lax 526·6092 IQ6l-l>Oov•. p.o.l>uHU olbonr,co.9~1U HIALEAH, FL 

4 MAY 00 

J 

.c::- Q 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 91 of 125
w 

zo< 

-w 

~~ => < 01-

• w 

~~ 

~ 

J; 

t 

0 

u 

~ 

d; 

~ 

J; 

I 

('< 

-

I 

I 

~ 1--

I 

-

-

~-- tC -- ..; 

0 

bi 

I-

< 

le 

:i; 

< 

~ 

~ -- /" 

I --

1" RIGID: PRIME & PAINT 

TO MATCH CEILING 

I" X 1" METAL RETAINER PAINTED 

TO MATCH SULT AN BLUE 

nvo-LAMP BALLAST 

·1· PIPE FLANGE 

r X 4" 'C' CHANNEL 

WELDED TO CABINET EDGE 

o.m (3/16') WHITE LEXAN FACES 

WITH 9-1/4• HIGH WHITE 'ROSS' COPY 

AND ;,14• WIDE WHITE OUTLINE 

REVERSED OUT OF 3M 3630-157 

SULTAN CJLUEYINYL OVERLAY 

2" X 2" 'C' CHANNEL LAMP SUPPORT 

WELDED TO CABINET EDGE 

F36-Tl2·DHO FLUORESCENT LAMP 

TYPICAL OF TWO (2) AT 9" 0.C. 

FOG INSIDE OF CABINET WHITE 

~ 

"' i5 

9 

w 

u: 

~ 

"' w 

~ w 

" 

~ 

i.l 

~" ~~ 

6~ 

~~ 

ii'S~ 

:tit 

' 0 "'u 

24• o.c. 

C-A 

' 

-- LANDLORD TO PROVIDE 120V PRIMARY 

ELECTRICAL SERVICE AND J-eox ABOVE 

CEILING WITHIN FIVE (5) FEET OF SIGN. 

5/GN INSTALLERS TO PROVIDE: 

-+--- WOOD OR STEEL ANGLE CROSS MEM6ER 

(ANO WOOD BLOCKING If NECESSARY) 

ANCHORED TO CANOPY JOISTS. 

'---

DRILL 1-112• DIA. FOR PIPE SUPPORTS 

AND FASTEN WITH FENDER WASHERS 

AND LOCK NUTS AS REQUIRED. 

ESCUTCHEON PLATE AT CEILING 

4----- SIGN INSTALLERS TO PROYlOE: 

1' DIA. PIPE SUPPORTS (TYP. OF TWO) CUT TO 

LENGTH FOR FINISH CABINET HEIGHT AND 

THREAD ENDS TO SECURE INSIDE CABINET 

AND A60YE CEILING. 

PRIME AND PAINT TO MATCH CEILING. 

,-t+------ 2.3" x 46" x 10M DOUBLE-FACE ALUM. CABINET: 

PRIME WI ZINC CHROMATE PAINT CABINET EDGE 

AND 1" RETAINERS TO MATCH SULTAN BLUE. 

FACES: 0.177 (3/16") WHITE LEXAN FACE WITH 

9114" HIGH 'ROSS' COPY AND 3/4" WIDE WHITE 

OUnlNE REVERSED OUT Of 3M 3630-157 

~ SULT AN BLUE TRANSLUCENT VINYL OVERLAY 

~ L INSTALL CABINET 50 THAT DISCONNECT 

SWITCH AND U.L. LABEL ARE ON END CABINET 

FACING STORE 

8'-0" MIN. A.F.F. ~ 

'-1" 1-;= 

w"' zw 

- z ¢< 

=> 1- 0 w 

.,. . "'

l t 1 CA61NETEGDE PAINTED TO 

10" MAlCH SULTAN BLUE 

1 

w" zw 

~~ => 1- ow 

. "' ::'.!.~ 

"' 

3/4'-i t_A ,-314· 

1" ---till 4-3/4" 4-1/4' [l't 1" !.! 1, 33-112" LOGO J. ~ !- 1------:. ~ n111 

" - _:_:_;;_.;;._;;._ i>U; 

SECTION A-A UNDER-CANOPY SIGN ELEVATION 

SCALE: 3" = 1'-0" 65% OF ORIGINAL SIZE 

NOTES: 

SEE SHEET 51 FOR UNDER-CANOPY SIGN LOCATION. 

LANDLORD TO PROVIDE ACCESS ABOVE CEILING FOR 

SIGN INSTALLATION. AND 120Y ELECTRICAL SERVICE 

AND J-BOX WITHIN FIVE (5) FEET OF SIGN LOCATION 

CONNECTED TO ENERGY MANAGEMENT SYSTEM. 

r

----,-, :-1,. ,-,.-·-1 ':JI, ._ ; 

; '.'< 0 ' <( ' 

REVISED 

·~ 

·-~ bill moore & associates 

(510) 526·0296 lax 526·0092 IWl10lon•GH. P• bO•illl d>ao>t .... HJOI 

SCALE: 1" = 1'-0" 

SHEET 

UC 

4 MAY 00 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 92 of 125
• ~"'t'v' "" :t vt''"""f:l vuun "'f:l" P""Kage con61eri;1ng or i;ne ro11ow1ng e1ement;6 on the store front. 

A. 6'-0" x 20'-0" "Roes Drees For Lees Opening Soon" 

banner. Banner to be Installed as soon as wall le complete 

B. 50" x 40" "Roes Drees For Lese Opening Soon" window 

banners. (2 min.) 

C. 3'-0" x 16'-0" "Now Hiring" banner. 

; . -i: 

'-..J I 

L-

.-0 

©! " ' liG NOW HIRING 

---~-----{ 

0 0 

.. ---\ 

.. -.. , ,-:::: / 1:--' 

f l;li ~~EN1N)i::, © :_: . SOJ!~a{j .'f_,.:,:,-:·c~-; -:. ~-\\11,,1 I IL-, .. --:_i:. .... --- , 1

'~:~·~-----· •• ,._., ""' oL.,, __ •• '-,,,,,,1~-"'-.' ': .... -_-, ·~ ·:-:- ,,•:: , __ "I I - t, 11111' IL .. 1 ,.-"I:.:.. .. 

~'::'•J'~: .. __ ---

- -- - -~-~ --- - - '' ,; ,., . __,..r·· 

0 0 

- • I I® I -= --·· --- ~~-=--=~~. ·------. ...... -,------·- --:. . - ,-~ ~ ' ' ~ l~ r·-·---··· r..,---..,......~ ~ ' "! =·-==- --=--=-== 

- .. ---:---------------- - j ~--~ j ~ . ~-~ ' 

===-- - ... '""'~ ~~· · .... ~\{!... ""' nn1 nr?J ·..;;.,~·'. 11r.'i111ll\\f' 

---"'& ===----= ~ l'..mn.'!-: ~-~ 

<~- ., -.. . -, 

Notes: 

Banner provided and Installed by Bill Moore 

& Associates 

On retnoval of banners, all wall penetrations 

to be sealed and touched up 

REVISED 

18 DEC 98 

18 JAN 99 

22 JAN 99 

24 APR 00 

STOREFRONT SIGNAGE ELEVATION 

O' 16' 

--=~--..: 

8' 

bill ~ moore & associates 

(510) 526-0296 rax 526·6092 l~I ""'""""'" pa bo•tlil <>lbOt1r.caUIO<I 

-

\l{-A1l --

PROTOTYPE STOREFRONT 

"ROSS Opening Soon" Combo 

GRAPHIC REQUIREMENTS 

page II of19 

._.SHEET 

Ola -.. 23 NOV 98 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 93 of 125
.. 

ROSS STORES, INC. REQUIRES: 

Temporary "Opening Soon" sign package consisting of the following elements on the store front. 

A. 3'-0" x 15'-0" "Opening Soon" l:>anner. Install l:>anner along 

with the Installation ofthe l:>ulldlng signs. (1 min.) 

B. 40" x 50" "Ross Dress For Less Opening Soon" window 

banners. (2 min.) 

C. 3'-0" x 16'-0" "Now Hiring" l:>anner. 

• 

' 

' ' 

i20SS ' 

~ :-1 Di2cSS FOi2 Le SS L :__J 

.---:::: l1l~ml~l!i1!1l~I 

~I~ NOW HIRING I @ - - - - - - - - - - .- - -r- ~-- - - - - - - - - - - , - - - - - - - - - - - - -

I+ ~HH;!-l+H i + . ---1- _: I : 'f :-~++ 

'- 'CJ 'CJ 

®' - - ---- - -- ··-· - -~--------- ----·---

0 

~:~----- --------

1~1 O!l]\\"'1 

I..,.. 

~!~ 

CRlti.\!\I; 

--- I ~ 

'= ~ h -

L f.J 

------- ~------

C7 'CJ -

---- ·.• . ·I . 

-

--- r~·-, 

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g!OI\~" -

. 

t· 8\Cl- ~; -

I: • ·I ~ o "[100" ·:1 ( to""' .. 

. "' 

~ 

Notes: '-~ :. <' c• l 

Banner provided and ln5tailed by Biii Mbore 

& A6sociatee 

On removal of banners, all wall ~ pen 

' 

REVISED._ 

18 DEC 98 

18 JAH 99 

------- i ~M'lll 

STOREFRONT SIGNAGE ELEVATION 

5 AUG 99 blll 

~ moore & associates [lf~11 

" ,._ - ~ ~ 1--

"" 

O' 8' 16' 

= 

page 14of19 

._ SHEET 

Olb 

to be sealed and touched up 

PROTOTYPE STOREFRONT 

"ROSS Opening Soon" Combo 

GRAPHIC REQUIREMENTS 24 APR 00 (510) 526·0296 fox 526·6092 u11n1 111u 11a.."Cv111 ... 1w1 ... 1• • u 23 NOV 98 

----·~). .._ .......... ~,._ ... ~ ..... ~~······ .. ~···~~;···~ ... ·.~ ................ ~. ~~ ................................................................ .,,.... .......... .,,. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 94 of 125
f emporary "Now Open" elgn package oonaletlng of the foll owing elemente 

on the atore front: 

A. 3'·0" x 16'·0" "Now Open" banner. 

6. 3'-0" x 6'-0" or 4'·0" x 8'-0" bunting. 

c. 

D. 

Multloolor pennant flage to be 

lnetalled where applloable. 

3'-0" x 16'-0" "Now Hiring" banner. 

~ 

- ' 'Y• ,-,-•Y ,-,Y' - ---~~,-v-- ,Y'•-···-·'~_;?li '7 _ __,,.-v--V"' .I l 

_<;) L.-

_J) 

®k1~ NOW HIRING 

---·-----------1--------

I:: 'CJ 'CJ 

•---:J;;j ==== ==--==-=--:-- -- --- -- --·-- -- ---- - . ::;:;::. ~ -----

Now Open e1gn package to be provided 

and lnetalled l,y 6111 Moore & Aeeoclatee. 

Now Open elgn packagtJ to be \rustalled 

prior to the 6tore opening 

Now Open elgn package to remaltt:. 

for a 1nlnlmum of 30 daye. ~. 

Upon removal of Now Or.en elgn P.ackag:::·---~j an wall penetratlone to be eealed and ........_ t.ouched up ' _ 

i20SS 

DiZcSS FOiZ LESS 

O' •• 

STOREFRONT SIGNAGE ELEVATION '---= 

~ - PROTOTYPE IHUREFHINT REYJB.EQ18 DEC 98 

~ "Now 0,IA" Ill JAN 99 

5 AUG 89 

blll mooro &. associates GRAPHIC REQllEMllTS 15 Mt\R 00 

24 MAR 00 {510) 526·0296 fax 526-6092 ...t1m. 1Dl/IOI ......... po.l><Jaflll G ..... , .... ~IOI 

16' 

page 17 of 19 

SHEET 

N01 - 23NOV9B 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 95 of 125
EXHIBITK 

GUARANTY 

As a material inducement to and in consideration of PALM SPRINGS MILE 

ASSOCIATES, LTD., a Florida limited partnership ("Landlord") entering into a written lease 

(the "Lease") with ROSS FLORIDA DRESS FOR LESS, L.C., a Florida limited liability 

company ("Tenant"), dated the same date as this Guaranty, pursuant to which Landlord leased to 

Tenant and Tenant leased from Landlord premises located in the City of Hialeah, County of 

Dade, State of Florida, ROSS STORES, INC., a Delaware corporation ("Guarantor"), whose 

address is 8333 Central A venue, Newark, CA 94560, guarantees and promises to and for the 

benefit of Landlord the performance of all obligations of Tenant under the Lease. 

The provisions of the Lease may be changed by agreement between Landlord and Tenant 

at any time, or by course of conduct, without the consent of or without notice to Guarantor. 

This Guaranty shall guarantee the performance of the Lease as changed. Assignment of the Lease 

(as permitted by the Lease) shall not affect this Guaranty. 

If Tenant defaults with respect to any payment obligation under the Lease, Landlord shall 

have the right to proceed immediately against Guarantor and/ or Tenant, and to enforce against 

Guarantor and/or Tenant any rights that Landlord may have under the Lease or pursuant 

applicable laws with respect to such default. If the Lease terminates and Landlord has any right(s) 

that it is entitled to enforce against Tenant after termination, Landlord shall have the right to 

enforce such right(s) against Guarantor. 

Guarantor waives the right to require Landlord to (1) proceed against Tenant; (2) proceed 

against or exhaust any security that Landlord holds from Tenant; or (3) pursue any other remedy 

in Landlord's power. Guarantor waives any defense by reason of any disability of Tenant. Until 

all of Tenant's monetary obligations to Landlord under the Lease have been discharged in full, 

Guarantor has no right of subrogation against Tenant. Guarantor waives its right to enforce any 

remedies that Landlord now has, or later may have, against Tenant. Guarantor waives any right 

to participate in any security now or later held by Landlord. 

If Landlord is required to enforce Guarantor's obligations by legal proceedings, Guarantor 

shall pay to Landlord all costs incurred, including, without limitation, reasonable attorneys' fees. 

Guarantor's obligations under this Guaranty shall be binding on Guarantor's successors, 

but shall be no greater than Tenant's or as otherwise set forth in this Lease. 

Hialeah, Florida 

Project No. E000002 

6061.324/220713. I 

ROSS STORES, INC., 

a Delaware corporation 

By: __________ _ 

Its: ____________ _ 

EXHIBITK 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 96 of 125
costs and expenses) caused by such changes, and (b) approves in writing and agrees to extensions 

of all construction deadlines in the Lease (including, without limitation, those set forth in Section 

1.4 and Article 4) equal to the delays caused by such changes. 

15. Change Order Payment or Refund. On the Delivery Date, Tenant shall 

reimburse Landlord in cash for the net cost increase, if any caused by plan changes requested in 

writing by Tenant. !fthe net effect of Tenant's changes is a cost savings, Landlord shall timely 

remit such savings in cash to Tenant. 

Hialeah, Florida 

Projecr No. E000002 

6061.324/221137.2 

• 5 -

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 97 of 125
1. 

2. 

3. 

•• 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

20. 

21. 

22. 

23. 

24. 

25. 

?Ii 

27. 

28. 

29. 

30. 

31. 

32. 

33. 

'54. 

Hialeah, Florida 

Project !\To. E000002 

6061.324/220702.1 

EXHIBIT D 

PROHIBITED USES 

No food use. 

No use utilizing hazardous substances or materials. 

No auto center . 

No auto parts store. 

No hardware slcre. 

No beauty or nail salon. 

No dollar store or schlock store. 

No dry deaner. 

No laundromat. 

No funeral esb:b!ishmeot. 

No automobile sale, leasing, repair or display establishment or used car lot, induding body repair 

facilities. 

No auction or bankruptcy sa!e (except for those bankruptcy sales by retailers as ordered or provided 

under the bankruptcy code, or auctions ordered by a court having a competentjurisdlction. 

No peYIT'I 3hop (except for retail jewelry stores wtlidi buy and sell jewelry as a part of 1heir business). 

No outdoor drcus, carnival or amusement park. 

No outdoor meetings. 

No bow!ing alley. 

No primarfiy pool or biUiard establishment. 

No shooting gallery. 

No off-trade. betting (provided that state sponsored lottery tickets shall not be prohibited}. 

No refinery. 

No adult bookstore or facility selling or displaying pornographic books, literature. or vtc:eotapes 

(matertals shall be considered ·adult· or •pornographic" !'or such purpose if the same are not 

available for sale or rental to children under ~ 8 years old because they explicitly deal with or depict 

hum:Jn coxuality), mO:l!lege pc:iticr. , 

No residential use, including but not limited to living quarters, sleeping apartments or lodging rooms. 

No theater. 

No auditorium. meeting haU. school or other place of public assembly {except temporary public 

assembries having a duration of no more than 1'No (2) weeks, occurring no more often than five (S} 

times per year). 

No unemployment agency. service or commission. 

No oymnaiium, hG:ilth dub, cxoroioo or dance :studio {tki:s #2.C 5~.d.1l 11vl crμμly tu Un~ prernl~es 

labeled -Ory C!eaners" on Exhibit "8". 

No dance hall 

No codd:ail lounge, bar, disco or night dub. 

No bfngo or similar games of chance (provided that state sponsored lottery tickets shall not be 

prohibited). 

No video game (except as an incidenbl part of another primary business which use shall be limited 

to no more than~ sq.ft.) or amusement arcade. 

No skating or roller rink. 

No =r w:;u;h, c:ar rep:iir or car rental ogc:'l'O)'< 

No second hand store, auctlon house, or flea market. 

No non-retail use (which shall not prohibit such uses commonly referred to as "quasi-retaii- or 

"'seMce retail" such as a travel agency, real estate office. Insurance agency, accounting seMce, 

etc.). 

EXHIBITD 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 98 of 125
4 

5 

6 

7 

8 

9 

10 

11 

1 

2 

3 

or before d The notice ate ~e - g on first option ,20 __ ------ 4. 

LANDLORD, !.NT• SS FOR LESS, LC., PALM SPRINGS MILE ASsoi FLORIDA •

0 RE nmp,ny LTD., a Florida limited partne1

rida limited liability c 

By: 

PHILIPS PALM SPRINGR.oss STORES, IN~., INC. a Delaware corporat10n 

Managmg - Member 

By: B 

Name: ------- y: 

Title: ---------..Its: J mes Fass10 

Sa r. Vice President 

Witness: ess: 

Printed Name: -------...,ted Name:=-----------

Witness: 

Printed Name:-------..,.. ed Name:_ 

-------.,,. . ess: -==-----------

l 

f 

l 

l 

j 

jBy: 

j Its: 

ess: 

McGillis 

Gregg "d t Real Estate Vice Pres1 en ' 

ted Name:==-----------

·ness: ted Name:_ -=----------

Hialeah, Florida 

Project No. Eooooo2 

6061.3241210101.1 

I f E 6/7/00 

/ ( 

I 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 99 of 125
PHILIPS INTERNATIONAL 

Steven Weinberger 

Ocnc:r:il Counsel 

June 21, 2005 

BY REGULAR MAIL 

Ms. Sandy Chesnut 

Real Estate Law Department 

4440 Rosewood Drive 

Pleasanton, CA 94588-3050 

-~· _::w 

-------------u""e:~'Ross Store No. 511 

Dear Ms. Chesnut: 

Palm Springs Mile Shopping Center 

Hialeah, Florida 

In response to your letter dated, June 8, 2005, please be advised that the SNDA was never 

executed by our lender CIBC Inc. 

Very truly yours, 

,£~~~~ General Counsel 

295 Mocl;.on Avenue New York, NY 10017 

Tel 21Z.95l-381! Fa< ZIZ.545.1355 Em.in swcinbcrgcr@pihc.com 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 100 of

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iZOSS. 

DilcSS i"Oil LcSS Property Development 

June 8, 2005 

CERTIFIED MAIL -

RETURN RECEIPT REQUESTED 

Ms. Diana Marrone 

Palm Springs Mile Associates, Ltd. 

419 West 49th Street, Suite 300 

Hialeah, FL 33012 

Re: Ross Store No. 511 

Palm Springs Mile Shopping Center 

Hialeah, Florida 

Sl'ITDA 

Dear Ms. Marrone: 

At your request, Ross Stores, Inc. executed four ( 4) copies of a Subordination, 

Nondisturbance and Attomment Agreement ("SNDA") for the above referenced store 

location with CIBC Inc. as lender and were mailed to you under a cover letter dated 

January 21, 2005. Our cover letter requested that two (2) fully executed copies and a 

recorded copy of the SNDA be returned to Ross and Ross Stores, Inc. reserved its right to 

rescind its execution if the documents were not timely received. 

According to a review of our files, we have not received the fully executed or recorded 

document as of this date. Accordingly, Ross' signature on each copy of the SNDA will 

be deemed rescinded and the documents rendered "void" as of June 28, 2005 unless you 

contact us before this date. 

Please contact me at (925) 965-4833 if you have any questions. 

Sincerely, 

ROSS STORES, INC. 

~~~ Sandy Chesnut 

Real Estate Law Department 

Real Estate • R.E. Market Research • R.E. Law • Property Management • Construction • Store Design/Architecture • Facilities 

4440 Rosewood Drive. Pleasanton. CA 94588-3050 • (925) 965-4400 Phone • (925) 965-4174 Fax • www.rossstores.com 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 101 of

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,, 

iZOSS. 

i>il?ESS 1FO.~ LESS 

November 15, 2001 

Mr. David Lee Eisenstadt 

Palm Springs Mile Associates, Ltd. 

419 \JV. 49th Street, Ste. 300 

Hialeah, FL 33012 

Re: ROSS STORE# 511 

Hialeah, Florida 

Dear Mr. Eisenstadt: 

Property Development 

Enclosed are four (4) copies of a Subordination, Nondisturbance and Attornment 

Agreement for the referenced location, executed on behalf of Ross Dress For 

Less Florida, L.C. ("Ross"). 

Please return two (2) fully executed copies of the Subordination Agreement to my 

attention within thirty (30) days of the date of this letter, and a copy of the 

recorded document once it becomes available. If we do not receive the fully 

executed documents within this time frame, Ross' signature will be deemed 

rescinded and the documents void. 

Sincerely, 

ROSS STORES, INC. 

~ a/VIAL C 01--, li1 · ( (lN.... 

Tameca Carr 0 

Real Estate Department 

Enclosures 

cc: Kim Goto, Esq. 

Property Management (w/ encl.) 

Kwame Thompson, BZTM (w/ encl.) 

Real Estate • Property Management• Construction • Store Design • Facilities 

ROSS STORES, INC.• 8333 Central Ave., Newark, California 94560-3433 • (510) 505-4400 Phone• (510) 505-4174 Fa: 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 102 of

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RECORDING REQUESTED BY 

Ross Stores, Inc. 

AND \l/HEN RECORDED MAIL TO: 

Ross Stores, Inc. 

8333 Central Avenue 

Newark, CA 94560 

Attn.: Kimberly Goto, Esq. 

Real Estate De artment 

SPACE ABOVE THJS LINE RESERVED FOR RECORDER'S USE 

SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT 

LOCATION: HIALEAH, FLORIDA 

1 ·:·_,,-,. · ..:$ 

2 This. Sμbordination, Nondisturbance and Attornment Agreement (the "Agreement") is 

3 effective as of this ~y of November, 2001, by and between UNION PLANTERS, N.A., a national 

4 banking association (the "Lender"), ROSS FLORIDA DRESS FOR LESS, L.C., a Florida limited 

5 liability company (the "Tenant") and PALM SPRINGS MILE ASSOCIATES, a Florida limited 

6 partnership (the "Landlord"). 

7 RECITALS 

8 A. Lender is or will be the holder of indebtedness secured by a lien or liens upon, the real 

9 property described in Exhibit "A" attached hereto and by this reference incorporated herein. The Exhibit 

10 "A" property and improvements thereon is hereinafter referred to as the "Shopping Center." The 

11 instruments creating such lien or liens whether they be denominated as being "mortgage," "deed of 

12 trust," "deed to secure debt," "security agreement," "vendor's lien," or otherwise, and any instruments 

13 modifying or amending the same, or entered into in substitution or replacement thereof, are hereinafter 

14 collectively referred to as being the "Mortgage." 

•· 15 B. Tenant has executed, or will execute, a certain lease with Landlord, dated for reference 

' 16 purposes on July 27, 2000, for all or a portion of the Shopping Center, which portion (the "Premises") is 

17 more particularly set forth in said lease. Said lease and all amendments and modifications thereto are 

18 herein collectively referred to as the "Lease." 

19 C. Tenant has requested that Lender agree not to disturb Tenant's possessory rights under the 

20 Lease in the event that Lender should foreclose on the Mortgage, provided that Tenant is not in default 

21 of the Lease. 

22 D. The parties desire to establish certain rights and obligations with respect to their 

23 respective interests by means of this Agreement. 

Store No. 511 

Hialeah, FL ·Pagel 

11/13/01 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 103 of

 125
1 AGREEMENTS 

2 NOW, THEREFORE, the parties hereto in consideration of the mutual covenants herein 

3 contained, and intending to be legally bound by hereby agree as follows: 

4 I. Subject to the terms and conditions of this Agreement, and for so long as this Agreement 

5 remains binding upon Lender, the Lease shall be, in accordance with the terms and conditions hereof, 

6 subordinate to the lien of the Mortgage and all voluntary and involuntary advances made thereunder. 

7 

8 

9 

2. Lender approves of the Lease. 

10 3. Provided that Tenant is not in default so as to permit the Landlord to terminate the Lease 

11 or Tenant's right to possession of the Premises, Lender or the purchaser at a foreclosure sale pursuant to 

12 any action or proceeding to foreclose the Mortgage, whether judicial or non-judicial, or Lender pursuant 

13 to acceptance of a deed in lieu of foreclosure or any assignment of Landlord's interest under the Lease, 

14 in the exercise of any of the rights arising, or which may arise, out of the Mortgage or in any other 

15 manner: (i) shall not disturb or deprive Tenant in or of its use, quiet enjoyment and possession (or its 

16 right to use, quiet enjoyment and possession) of the Premises, or of any part thereof, or any right, benefit 

17 or privilege granted to or inuring to the benefit of Tenant under the Lease (including any right of renewal 

18 or extension thereof); (ii) shall not terminate or affect the Lease; (iii) shall recognize Tenant's rights, 

19 benefits and privileges under the Lease; and, (iv) shall recognize the leasehold estate of Tenant under all 

20 of the terms, covenants, and conditions of the Lease for the remaining balance of the term of the Lease 

21 with the same force and effect as if Lender were the Landlord under the Lease. Lender hereby 

22 covenants that any sale by it of the Shopping Center pursuant to the exercise of any rights and remedies 

23 under the Mortgage or otherwise, shall be made subject to the Lease and the rights of Tenant thereunder. 

24 However, in no event shall Lender be: 

25 (a) Liable for any act or omission of Landlord arising prior to the date Lender takes 

26 possession of Landlord's interest in the Lease or becomes a mortgagee in possession, except to the 

27 extent such act or omission is of a continuing nature, such as, for example, a repair obligation; 

28 (b) Liable for any offsets or deficiencies which the Tenant might be entitled to assert 

29 against the Landlord arising prior to the date Lender takes possession of Landlord's interest in the Lease 

30 or becomes a mortgagee in possession, except to the extent that Lender has received the benefit of the 

31 act of the Tenant giving rise to the right of deduction, such as, for example, relief of an obligation that 

32 would otherwise have been paid by Lender as Landlord; 

33 (c) Bound by any payment of rent or additional rent made by Tenant to Landlord for 

34 more than one month in advance, which payment was not required under the terms of the Lease; 

35 ( d) Bound by any amendment or modification of the Lease executed after the date of 

36 this Agreement which: (i) increases Landlord's obligations or reduces Tenant's obligations under the 

3 7 Lease; and, (ii) is made without Lender's prior written consent (except to the extent that the Lease may 

38 specifically contemplate any amendment or modification thereof). 

39 

Store No. 511 

Hialeah, FL Page 2 

I !/13/01 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 104 of

 125
1 4. In the event of the termination of the Mortgage by foreclosure, summary proceedings or 

2 othetwise, and if Tenant is not in default under the terms and conditions of the Lease so as to permit the 

3 Landlord thereunder to terminate the Lease, then, and in any such event, Tenant shall not be made a 

4 party in the action or proceeding to terminate the Mortgage unless not to do so would be 

5 disadvantageous procedurally to Lender, in which case, such joinder of Tenant as a party shall not 

6 extinguish or interfere with any rights of Tenant under the Lease, nor shall Tenant be evicted or moved 

7 or its possession or right to possession under the terms of the Lease be disturbed or in any way interfered 

8 with, and, subject to the provisions of this Agreement, Tenant will attorn to Lender or any other party 

9 which obtains title to the Shopping Center pursuant to any remedy provided for by the Mortgage or 

10 othetwise, such attornment to be effective and self-operative without the execution of any other 

11 instruments on the part of any party, and the Lease shall continue in full force and effect as a direct Lease 

12 from Lender or such party to Tenant under all the terms and provisions of the Lease (including any rights 

13 to renew or extend the term thereof). In the event of such attornment, Lender shall be deemed to have 

14 assumed and shall assume the performance of all of the affirmative covenants of Landlord occurring 

15 under the Lease from and after the time Lender becomes Landlord and until such time as such 

16 obligations are assumed by a bona fide purchaser. 

17 

18 

19 

5. Tenant hereby confirms that the Lease is in full force and effect. 

20 6. Nothing contained in this Agreement shall be deemed to reduce or abrogate any rights of 

21 Tenant to cure any default of the Landlord under the Lease in accordance with and subject to the 

22 provisions of the Lease and/or to deduct from rental such amounts which Tenant may be entitled to so 

23 deduct under the provisions of the Lease. 

24 

25 7. Unless and until Lender or any subsequent purchaser succeeds to the interest of Landlord 

26 under the Lease, Landlord shall continue to perform Landlord's obligations and duties under the Lease. 

27 

28 8. If Landlord executes and delivers to Lender an Assignment of Leases and Rents 

29 conveying the rent under the Lease upon an event of default by Landlord under the Mortgage, after 

30 receipt of notice from Lender to Tenant (at the address set forth below) that rents under the Lease should 

31 be paid to Lender, Tenant shall thereafter pay to Lender all monies thereafter due to Landlord under the 

32 Lease. In such event, Tenant shall be entitled to rely solely upon such notice, and Landlord and Lender 

33 hereby indemnify and agree to defend and hold Tenant harmless from and against any and all expenses, 

34 losses, claims, damages or liabilities arising out of Tenant's compliance with such notice or performance 

35 of the obligations under the Lease by Tenant made in good faith in reliance on and pursuant to such 

36 notice. Tenant shall be entitled to full credit under the Lease for any rents paid to Lender in accordance 

37 with the provisions hereof. Any dispute between Lender (or any other purchaser) and Landlord as to the 

38 existence of a default by Landlord under the provisions of the Mortgage, shall be dealt with and adjusted 

39 solely between Lender (or any other purchaser) and Landlord, and Tenant shall not be made a party 

40 thereto. 

41 

Store No. 511 

Hialeah, FL 

11/13/01 

Page 3 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 105 of

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1 9. Lender shall use the proceeds of any insurance recovery or condemnation award for the 

2 purposes stated in the Lease. 

3 

4 10. No modification, amendment, waiver or release of any provision of this Agreement or of 

5 any right, obligation, claim or cause of action arising thereunder shall be valid or binding for any 

6 purpose whatsoever unless in writing and duly executed by the party against which the same is brought 

7 to be asserted. 

8 

9 11. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto 

10 and their respective heirs, legal representatives, successors and assigns, including without limitation, the 

11 covenants of Lender herein shall be specifically binding upon any purchaser of the Shopping Center at 

12 foreclosure or at a sale under power of sale. 

13 

14 12. In the event any one or more of the provisions contained in this Agreement shall for any 

15 reason be held to be invalid, illegal or unenforceable in any respect, said provision(s) shall be void and 

16 of no further force or effect. 

17 

18 13. This Agreement shall be governed and construed according to the laws of the state where 

19 the Shopping Center is located. 

20 

21 14. Lender shall not institute any litigation naming Tenant as a defendant for the purpose of 

22 foreclosing or otherwise terminating Tenant's leasehold interest in the Shopping Center or the Premises 

23 unless Tenant is required to be named in such litigation by law, and then only for the purpose of 

24 complying with the applicable foreclosure statute and so long as Tenant's failure to defend against any 

25 such action shall not result in a waiver of its rights to continued possession under the Lease as set forth . 

26 in this Agreement. The term "Lender" as used herein shall include any successor-in-interest to the 

27 Lender (including a purchaser at foreclosure or sale in lieu thereof). 

28 

29 IS. To be effective, any notice or other communication given pursuant to this Agreement 

30 must be in writing and sent postage paid by United States registered or certified mail with return receipt 

31 requested. Rejection or other refusal to accept, or inability to deliver because of changed address of 

32 which no notice has been given, will constitute receipt of the notice or other communication. For 

33 purposes hereof, Lender's address is: 

34 

35 Union Planters Bank, N.A. 

36 2800 Ponce de Leon Blvd., I 0th Floor 

3 7 Coral Gables, FL 3 3134 

38 Attn.: Commercial Real Estate Department 

39 

40 

Store No. 511 

Hialeah, FL Page 4 

! 1/13/01 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 106 of

 125
1 

2 and Tenant's address is: 

3 Ross Florida Dress For Less, L.C. 

4 c/o Ross Stores, Inc. 

5 8333 Central Avenue 

6 Newark, CA 94560 

7 Attn.: Real Estate Legal Notice Department 

8 

9 

10 

11 and Landlord's address is: 

12 Palm Springs Mile Associates, Ltd. 

13 419 W. 49th Street, Suite 300 

14 Hialeah, FL 33012 

15 Attn.: 

16 

17 

18 

~~~~~~~~~~~~ 

19 At any time(s), each party may change its address for the purposes hereof by giving the 

20 other party a change of address notice in the manner stated above. 

21 

22 16. This Agreement (a) contains the entire understanding of Lender and Tenant regarding 

23 matters dealt with herein (any prior written or oral agreements between them as to such matters being 

24 superseded hereby), (b) can be modified or waived in whole or in part only by a written instrument 

25 signed on behalf of the party against whom enforcement of the modification or waiver is sought, and ( c) 

26 will bind and inure to the benefit of the parties hereto and their respective successors and assigns. 

27 

28 

29 17. In the event of any litigation arising out of the enforcement or interpretation of any of the 

30 provisions of this Agreement, the unsuccessful party shall pay to the prevailing party its reasonable 

31 attorneys' fees, including costs of suit, discovery and appeal. The "prevailing party" shall be that party 

32 who obtains substantially the relief sought in the action. 

33 

34 

35 18. In the event the Lease is terminated as a result of Landlord's bankruptcy or 

36 reorganization, whereby Lender obtains fee title to the Shopping Center (or in the case Lender is the 

37 ground lessor, retains fee title without the encumbrance of the ground lease), Lender agrees that the 

38 Lease shall rem!l-in in effect as between Lender (as Landlord) and Tenant, subject to the terms of this 

39 Agreement, and, upon Tenant's written request, Lender and Tenant agree to execute a reinstatement 

40 

Store No. 511 

Hialeah, FL 

11/13/01 

Page 5 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 107 of

 125
1 agreement docwnenting that the Lease has been reinstated as between Lender (as Landlord) and Tenant 

2 and that the terms and conditions thereof shall be as stated in the Lease, subject to the provisions of this 

3 Agreement. 

4 IN WITNESS WHEREOF, the parties have caused this instrwnent to be executed as of 

5 the day and year first written above. 

TENANT: 

ROSS DRESS FOR LESS FLORIDA, L.C, 

a Florida limited liability company 

By: ROSS STORES, INC., 

a Delaware corporation 

Its: Managing Member 

By: 

Its: 

Witness: bi"'l"~fc?!.¥L-.,,--:-7 ___ _ 

Printed N 't' ti 

By: ,J:i~lfe1;;/J4 Its: Vice President, Real Estate 

Store No. 511 

Hialeah, FL 

LENDER: 

UNION PLANTERS BANK, N.A., 

a national banking association 

By: 

Its: 

By: 

Its: 

........ 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . :;;.:,_ ....... . ··~···· 

-:-:·.·.·:-:-:-: 

........ 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - ...... . 

Page6 

~-~~ 11/13/01 

'\ 

J 

.....; 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 108 of

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1 

2 

LANDJLORD: 

PALM SPRINGS MILE ASSOCIATES, 

LTD., a Florida limited partnership 

By: 

Its: 

By: 

Its: 

Store No. S 11 

Hialeah, FL 

Witness: -----------~ 

Printed Name:----------

Witness: -----------~ Printed Name: ----------

Witness: -----------~ Printed Name: _________ _ 

Witness: -----------~ Printed Name: ----------

Page 7 

l l/13/01 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 109 of

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1 

State of California ) 

) SS. 

County of Alameda ) 

2 

3 On ~J ili ,.Qdl)r) bn1. \5,'.2fn~efore me, --"-"--"'-"'~-'-"-'c'--:;=i~Ll.!L...C-----' 4 a Notary Public, personally appeared James Fassio and Gregg McGillis, er onally known to me or 

5 (proved to me on the basis of satisfactory evidence) to be the person@ whose name(S) is/@ subscribed 

6 to the within instrument and acknowledged to me that he/she8' executed the same in his/her/tti@ 

7 authorized capaci~, and that by his/her@t signature{§) on the instrument the person@, or the 

8 entity upon behalf of which the person(§) acted, executed the instrument. 

9 WITNESS my hand and official seal. 

10 

11 

12 

13 

State of ____________ --1 

) SS. 

County of ___________ ) 

14 

15 On ________ before me, _______________ ,, a Notary 

16 Public, personally appeared--------------------------' 

1 7 personally known to me or (proved to me on the basis of satisfactory evidence) to be the person( s) whose 

18 name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the 

19 same in his/her/their authorized capacity(ies ), and that by his/her/their signature( s) on the instrument the 

20 person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 

21 WITNESS my hand and official seal. 

22 

23 

Store No. 511 

Hialeah, FL 

Notary Public 

Page 8 

11113/01 

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1 

State of ____________ ) 

) SS. 

County of ___________ ) 

2 

3 

4 On before me, , a Notary 

5 Public, personally appeared ---------------------------

6 personally known to me or (proved to me on the basis of satisfactory evidence) to be the person(s) whose 

7 name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the 

8 same in his/her/their authorized capacity(ies ), and that by his/her/their signature( s) on the instrument the 

9 person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 

10 WITNESS my hand and official seal. 

11 

12 

13 

Store No. 511 

Hialeah, FL 

Notary Public 

Page 9 

11113/01 

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~~~:I 9338f~2450 

EXHIBIT A 

LEGAL DESCRIPTION OF THE SHOPPING CENTER 

Component2 

A portion of "FLORlDA FRUIT LAND CO'S SUBDIVISION" of Section 1, Township 53 South, 

Range 40 East, as recorded in Plat Book 2 at Page 17, of the Public Records of Dade County, 

Florida, being more particularly described as follows: 

Commence at the Point of Intersection of the Northerly Right-of-Way Line of West 49th Street 

(N.W. 103rd Street) with the Westerly Right-of-Way Line of West 4th Avenue (Red Roadl) as 

shown on that certain Right-of-Way Map, as recorded in Plat Book 65 at Page 70 of the Public 

Records of Dade County, Florida; thence North 0 degrees 55'1 l" East, for 175.00 feet to the Point of 

Beginning of the following described parcel; thence North 87 degrees 43'14" West, for 175.00 feet; 

thence South 0 degrees 55'1 l" West, along a line West of and parallel with the West Right-of-Way 

Line of the aforesaid West 4th Avenue (Red Road), for 175.00 feet; thence North 87 degrees 43'14" 

West, along the Northerly Right-of-Way Line of West 49th Street (N.W. 103rd Street) as per State 

Road Department Right-of-Way Map as recorded in Plat Book 60 at Page 53 of the Public Records 

of Dade County, Florida, for 987.60 feet to a Point of Curvature; thence Northwesterly and 

Northerly, along a circular curve to the right, having a radius of25.00 feet and a central angle of88 

degrees 39'30" for an arc distance of 38.68 feet to a Point of Tangency; thence North 0 degrees 

56'16" East, along the Easterly Right-of-Way Line of West 6th Avenue, as shown on the plat of 

"FIFTH ADDITION TO PALM SPRlNGS SUBDIVISION SECTION THREE", as recorded in Plat 

Book 65 at Page 33 of the Public Records of Dade County, Florida, for 722.45 feet to a Point of 

Curvature; thence Northeasterly and Easterly, along a circular curve at the right, having a radius of 

25.0 feet and a central angle of 91 degrees 20'30" for an arc distance of 39.86 feet to a Point of 

Tangency; thence South 87 degrees 43'14" East for 603.63 feet to a Point of Curvature; thence 

Easterly and Northeasterly, along a circular curve to the left, having a radius of 651.09 feet an a 

central angle of 48 degrees 21 '34" for an arc distance of549.54 feet to a Point of Reverse Curvature; 

thence Northeasterly, along a circular curve to the right, having a radius of 141.09 feet and a central 

angle of37 degrees 12'1 l" for an arc distance of91.61 feet to a Point on a Curve, said point bears 

North 85 degrees 12'32" West, from the radius point of the next described curve (last mentioned 

three courses being coincident with the Southerly Right-of-Way Line of West 51" Place, as shown 

on said plat of "FIFTH ADDITION TO PALM SPRlNGS SUBDIVISION SECTION THREE"); 

thence Southerly, along a circular curve to the left, having a radius of 5873.65 feet and a central 

angle of3 degrees 52'17" for an arc distance of396.87 feet to a Point of Tangency: thence South 0 

degrees 55'1 l" West, for 463.80 feet to the Point of Beginning (last mentioned two courses being 

coincident with the Westerly Right-of-Way Line of the aforesaid West 4th A venue, (Red Road) lying 

and being in Hialeah, Dade County, Florida. 

TOGETHER WITH all rights under the reservation of easements as set forth in instrument recorded 

in Official Records Book 15881, Page 3796. (AS TO COMPONENTS 1AND2) 

Tax Folio No. 04.3001.001.0010 

Hialeah, Florida 

Project No. E000002 

6061.324/223952. l 

EXHIBIT A 

F·1E·:~-.R..-t!.0 .'J ;,,."'r·- ._· . .-.... K...""t.. .>-::::..S ;:;<.X).' 

o= CAZ.C :.-:..vv~ •, . : ... -::10.·: . 

. ~ECORC ~c·~·"':':C 

rlARVE'f 8.UV~N 

::!..E ,'!," ''':""':"~·".,. ,- ~ .. '" ,. 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 112 of

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)) 

} 

Sender Account Number 

.13.151l2682 

FROM (Company) 

PALM SPRINGS MILE 

Strnet ~'!\,'l:,'0( STE 300 

419 W 119TH ST 

City State 

PreprJnt Format No. 

81804717 

ZIP CODE (Required) 

'•F Payment ·~ 6rl9in- Sender will be billed 

_unless marked otherwise _ f1f1R 811! to: Account: (Required If 3td Party) 

Airb1ll Number 

9555117342 

One!1~:;1;;;1 be checked. 

Assumed , • 

~~f~:~snoted. ' · 1 ' 

Receiver 

D 3rd Party 

D 

D Paid in ~~eek Advance · 

Amount 

Billing Reference (will appear on invoice) 

charged ::i:1::""'"~ at the 

L--'l-11.LllLL:.... ___ ,,,.~;;c;;;;;;.,,.,w;c"°o.;P.'lr;;::;:::;::::-;;::-o:,-=cc:c;co::J Elfpress rate. Phone Packaging One boK mu~l be ch.ei:1"id Next Afte. moon • /.r::J,t..C (} Lotl!t E>:prnss Olh~r to Bold Red • , • , , 

L~ od-. -11 I bprm Pact< PackagLl'lQ ~~rinat1ons . • I 

fl 

SUllJEClJOCOllR(COl)!j ex o o y. 

ROSS FLORIDA DRESS FOR LESS/ ROSS STORES D~x~~u~~:,~eDellvery DHoldatAirborne . 

Special Instructions ~ 

Street Address Expross 0111~ , Not available loall rocalions "''- , , 1 • 

8333 CENTRAL AVENUE DLebPookSe~ioo D , .,. ..·. 

City State ZIP CODE (Required) Declared Full 

CALIFORNIA Phone (Important) 

9 4 5 6 Q Value Insurance 

0 or O 

Aiiborne Sfgnature 

Date 

Received At 

Shipment Valuation 

$ 

'ale No. 

.00 

!ASSENT A HIGHER SHIPMENT VALUATION.1 

CARRIER'S LIABILITY IS LIMITED TO 

$100 PER PACKAGE, OR ACTUAL VALUE, 

WHICHEVER IS LESS, SPECIAL OR 

CONSEOUENTIAL DAMAGES ARE NOT 

RECOVERABLE. SEE TERMS AND 

CONDITIONS ON REVERSE SIDE OF THIS 

NON-l>IEGOTIAB!.E AlABILL 

SCAC-AlAB FED l.O. NO. 91-0B374S9 

AIRBORNE 

EXPRESS. / 7 Airborne I ii ~ J-1Llf£lJ-:' ~!llμo rD/1((/D J ID Drop Box# L./ D Terminal POBOX662, SEATTLE, WA9!1t11-0662 

._.,,. , 1-800-247-2676 

FILE COPY 

Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 113 of

 125
Sender Account Number Preprint Format No. 

L3.151l2682 81804717 

Payment 

Sender wlll be billed 

unless marked otherwise 

Origin Airbill Number 

Ml'lR 9555117342 Bill to: FROM (Company) Account I \Required If 3!d Party) 

One~~:::~l;J Receiver 3rd Party PALM SPRINGS D D 

s1rne1 ~~·'.'S'o C 

MILE 

STE 300 

'19TH ST D Paid in ~~eek 

be checked. 

Assumed , . 

~~~!=~snoled. · · 1 ' 

Amount 

charged 

~~~1~!~oon~ al the 

Phone '--WL.U-"L'-----1...-==~-~==~-~-~---~--..,j ~~;e~ij;~~On · 

/3£, 0 ':}.. --11 I ~~:tf~~ti~~~ . . : . I I 

V I U I L• Dt7 I only. ' 

419 w Advance · 

City State ZIP CODE (Required) Billing Reference (wil! appear on invoice) 

FL 

P Y Special Instructions 

ROSS FLORIDA DRESS FOR LESS/ ROSS STORES D ~~~~~.~~~eDellve.ry D Hold al Airborne 

TO (Com an ) . suuc110!;0Rllm1or1 r;J 

Street Address Expmss only lfol 3va~able 10 all loc.it1005 . , 1 , • 

8333 CENTRAL AVENUE DL•bPookSe~ico D '. ., ' 

City Slate ZIP CODE (Required) Declared Full 

9 4 5 6 Q Value Insurance 

CALIFORNIA D or D 

Phone (Important) Airborne Signature 

Shipment Valualion 

$ .00 

IABSEITT A HIGHER SHIPMENT VALUATION,, 

CARRIEA'S LIABILITY IS LIMITED TO 

$100 PEA PACKAGE, OA ACTUAL VALUE, 

WHICHEVEA IS LESS, SPECIAL OR 

CONSEQUENTIAL DAMAGES ARE NOT 

RECOVERABLE. SEE TERMS ANO 

CON[)ITIONS 00 REVERSE SIDE OF TlllS 

NON-l>!EGOTIABLE AIRBILL 

- SCAC·AlRB FE l.O. NO. 91-0831469 

_,,,, Date ..,.,__ ,... __ ,;_ ••-

Received At 

D Drop Box# Airborne 

Drerminal 

i;: 

c:> 

<...> 

LI-I 

__I 

-

LLCase 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 114 of

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TENANT ESTOPPEL CERTIFICATE 

Dated: November 12, 2001 

RE: ROSS STORE # 511 

PALM SPRINGS MILE SHOPPING CENTER 

HIALEAH, FLORIDA 

TO WHOM IT MAY CONCERN, please be advised as follows: 

1. LEASE: 

1.1.1 ROSS FLORIDA DRESS FOR LESS, L.C., a Florida limited liability company ("Tenant"), is the current 

Tenant under that certain lease dated July 27, 2000, between ROSS FLORIDA DRESS FOR LESS, L.C., 

as Tenant and PALM SPRINGS MILE ASSOCIATES, LTD., as Landlord. PALM SPRINGS MILE 

ASSOCIATES, LTD., a Florida limited partnership, ("Landlord") is the cun-ent Landlord under said lease. 

Capitalized terms used in this Tenant Estoppel Certificate without definition shall have the meanings 

ascribed to such terms in said lease. 

1.2. The aforementioned lease has not been amended, modified or supplemented, except by any approved plans, 

specifications and construction documents, and 

by: Subordination, Nondisturbance and Attornment Agreement, dated August 25, 2000. 

by: Acknowledgement of Commencement, dated August 24, 2001. 

Said lease, as amended, modified and/or supplemented, is hereinafter refen-ed to as the "Lease." 

2. FULL FORCE AND EFFECT: 

The Lease is in full force and effect and represents the entire agreement between Landlord and Tenant as to 

the Store referenced above and described with particularity in the Lease. 

3. COMMENCEMENT AND EXPIRATION DATES: (check one) 

( x) The cun-ent Term of the Lease shall expire on Jannary 31, 2012, unless otherwise extended or 

terminated. Tenant is in possession of the Store. 

( ) The Commencement Date of the Initial Term of the Lease shall be ( ) days after 

the Delivery Date as defined in the Lease. The expiration date of the Initial Term of the Lease, unless 

sooner terminated, shall be the January 31 next following one hundred twenty (120) months from the 

Commencement Date. 

4. OPTIONS: 

There are four ( 4 ) remaining options to extend the current term of the Lease for five ( 5 ) years each. 

5. SECURITY DEPOSIT: 

Landlord holds no security deposit. 

6. MINIMUM RENT: (check one) 

Store #511 

Hialeah, FL 

1 11/12/01 

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6. MINIMUMRENT: (checkone) 

( x ) The cun-ent Minimum Rent payable under the Lease is $25, 780 per month. Monthly Minimum Rent 

has been paid through November 30, 2001. No prepayment of any Minimum Rent for more than 

one (1) month has been made. 

( ) Beginning on the Commencement Date, the monthly Minimum Rent shall be $ , based on 

the Leasable Floor Area of the Store being as stated in the Lease. Minimum Rent may be subject to 

adjustment based on the size of the Store and/or other provisions of the Lease. 

Notwithstanding potential rights or remedies in favor of Tenant for a Landlord default, or for the occun-ence 

of certain conditions, there are not cu!Tently, nor will there be, any periods of free or reduced rent remaining 

under the Term of the Lease, as of the date of this Tenant Estoppel Certificate, except as follows: See 

Section 9 herein. 

7. OFFSET RIGHTS: 

Tenant has no cu!Tent exercisable rights to offset, reduce or avoid the payment of Rent or other charges 

(hereinafter "Rights of Offset"): except as follows: See Section 9 herein. 

In the future, Tenant may exercise its Rights of Offset pursuant to the terms of the Lease. 

If it is discovered by or disclosed to Tenant after the date hereof that there existed on the date hereof any 

default, claim, or defense, or by reason thereof, Rights of Offset, not actually known to Tenant on the date 

hereof, such default, claim, defense or Rights of Offset shall not be affected, waived or released by the 

issuance of this Tenant Estoppel Certificate, and Tenant shall not be estopped from asserting the same. 

8. TENANT IMPROVEMENT ALLOWANCE AND CONSTRUCTION: 

8.1 Construction: (checkone) 

( ) Landlord has not yet completed its construction obligations as described in the Lease. 

( ) Landlord has completed its construction obligations described in the Lease, except for puncblist 

matters. 

( x ) Landlord has completed its constmction obligations as described in the Lease and Tenant has 

accepted delivery of the Store. 

8. 2 The remaining amount of any unpaid planning, construction or improvements allowance, reimbursement 

obligation or credit due Tenant from Landlord is $-0-. 

9. DEFAULT: 

9.1 Tenant has no actual knowledge of (a) any default of Landlord under the Lease or (b) any condition which, 

with the passage of time or the giving of notice or both, will become a default of Landlord under the Lease, 

except as follows: Roof leaks in the front of store as reported by store manager. 

9.2 Tenant is not in default of the Lease beyond any applicable cure period. 

Store #511 

Hialeah, FL 

2 11/12/01 

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10. RIGHT TO PURCHASE: 

Except as set forth in the Lease, Tenant has no option or right of first refusal to purchase the Store or any 

portion of the Shopping Center, complex or property on which the Store is located. 

11. BANKRUPTCY: 

To Tenant's actual knowledge, there are no pending actions against Tenant, voluntary or otherwise, under 

the bankmptcy laws of the United States or any state thereof. 

12. ASSIGNJVlENT OR SUBLEASE: 

Other than a corporate transfer to a parent, affiliate or subsidiary of Tenant, Tenant has not assigned or 

sublet the Store, except as follows: None. 

13. MISCELLANEOUS: 

Notwithstanding the certifications herein, in no event shall this Tenant Estoppel Certificate subject Tenant to 

any liability whatsoever, despite the negligent or otherwise inadvertent failure of Tenant to disclose correct or 

relevant information; provided that, as between Tenant and any third-party recipient for whose benefit this 

certificate is issued, Tenant shall be estopped from denying the accuracy of this Tenant Estoppel Certificate. 

In no event shall this Tenant Estoppcl Certificate amend or modify the Lease, and Tenant shall not be 

estopped from denying the accuracy of this Tenant Estoppcl Certificate as between Tenant and Landlord, 

Landlord's affiliates or lenders. 

Store #511 

Hialeah, FL 

TENANT: 

ROSS FLORIDA DRESS FOR LESS, L.C., 

a Florida limited liability company 

By: ROSS STORES, INC., 

a Delaware corporation 

Its: 

~~ Its: Vice President, Real Estate 

3 11112101 

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iZOSS. 

DiZcSS i"OiZ Less 

November 12, 2001 

David Lee Eisenstadt 

Palm Springs Mile Associates, Ltd. 

419 W. 49th Street 

Suite 300 

Hialeah, FL 33012 

Re: ROSS STORE# 511 

Hialeah, Florida 

Dear Mr. Eisenstadt: 

Property Development 

Via Airborne Express 

Enclosed at your request is a Tenant Estoppel Certificate for the referenced location, 

executed on behalf of Ross Stores, Inc. 

Please contact me at (510) 505-4869 if you have any questions. 

Sincerely, 

ROSS STORES, INC. 

~u,,~ TamecaCarr 

Real Estate Departrilent 

Enclosures 

cc: Kim Goto, Esq. 

Kwame Thompson, BZTM (w/enclosure) 

Property Management Dept. (w/enclosure) 

Real Estate• Property Management• Construction •Store Design • Facilities 

ROSS STORES, INC.• 8333 Central Ave., Newark, California 94560-3433 • (51 O) 505-4400 Phone• (510) 505-4174 Fax 

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1 

RECORDING RE.QUESTED BY 

Ross Stores, Inc. 

:\ND 'W0I-IEN RECORDED M:\!LTO: 

Bartko, Zankel, Tarrant & Miller 

900 Front Street, Suite 300 

San Francisco, CA 94111 

Attn: Martin I. Zankel, Esq. 

SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE 

MEMORANDUM OF LEASE 

2 l. This Memorandum of Lease is effective upon recordation and is entered into by 

3 and between PALM SPRINGS MILE ASSOCIATES, LTD., a Florida limited partnership 

4 ("Landlord") having its principal place of business at 419 West 49'h Street, Suite 300, Hialeah, 

5 Florida 33012 and ROSS FLORIDA DRESS FOR LESS, LC., a Florida limited liability 

6 company ("Tenant") having its principal place of business at c/ o Ross Stores, Inc., 8333 

7 Central Avenue, Newark, CA 94560, who agree as follows: 

8 2. By written lease (the "Lease"), Landlord leases to Tenant and Tenant hires from 

9 Landlord a portion of the real property located in the City of Hialeah, County of Dade, State 

10 of Florida, described in Exhibit A hereto, for a term of approximately ten (10) years which 

l 1 term is subject to extension by Tenant for four (4) additional periods of five (5) years each. 

12 The Exhibit A lands are sometimes herein referred to as the "Shopping Center." 

13 3. Landlord has granted Tenant and its authorized represedtatives and invitees the 

14 nonexclusive right to use the Shopping Center common area with others who are entitled to 

15 use those areas subject to Landlord's rights as set forth in the Lease. 

16 4. The provisions of the Lease are incorporated into this Memorandum of Lease 

17 by reference. The Lease contains the following section(s): 

18 

19 

w 

21 

l2 

l3 

24 

25 

26 

27 

28 

"3.2.1. Retail Use. Tenant has entered into this Lease in reliance upon 

representations by Landlord that the Shopping Center is and shall remain retail in 

character, and, further, that portion of the Shopping Center marked on the Site 

Plan as the "Restricted Area" shall not be used for office (except (~ the space 

adjacent to the Store marked on the Site Plan as the "Three Story CBS" space 

containing approximately thirty thousand (30,000) square feet of Leasable Floor 

Area (referred to as the "Adjacent Office Building"), (ii) the health clinic adjacent to 

Picadilly Cafeteria not to exceed six thousand (6,000) square feet of Leasable Floor 

Area, and (iii} any office use in the Free Area as that term is defined in Section 3.6.2 

below), or residential purposes, or as a theater, auditorium, meeting hall, school 

(except if not open to the public and connected to a retail use), church or other 

H:a.Ieah, Florida 

Project No. E000002 

6061 J24/2207 I 0.1 

- 1 - 6/7/00 

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1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

place of public assembly, "flea market," gymnasium, health club, dance hall, billiard 

or pool hall, massage parlor, video game arcade, bowling alley, skating rink, car 

wash, facility for the sale, display, leasing or repair of motor vehicles, night club or 

adult book or adult audio/video products (which are defined as stores in which at 

least ten percent (10%) of the inventory is not available for sale or rental to children 

under fifteen (15) years old because such inventory explicitly deals with or depicts 

human sexuality). No restaurant shall be permitted in the Restricted Area of the 

Shopping Center shown on the Site Plan within three hundred (300) feet of the 

front wall of the Store, excepting (i) Piccadilly Cafeteria or other restaurant 

operators in the Piccadilly Cafeteria space depicted on the Site Plan, (ii) the 

"Expansion Space" fronting on West 4th Avenue as depicted on the Site Plan, and 

(iii) the spaces occupied by Papa John's pizza and Winn-Dixie Supermarkets shown 

on the Site Plan." 

"12.1.3. All Tenant alterations shall be subject to the following: 

.............. ( c) Mechanic's Lien. The cost of Tenant's alterations shall be paid 

by Tenant in cash or its equivalent, so that the Store and the Shopping Center shall 

at all itimes be free of liens for labor and materials supplied in connection with 

Tenam's alterations. If at any time the Store or the Shopping Center shall be 

encumbered by any mechanics' or other liens, charges or claims for the payment of 

money or otherwise, or any violations or other encumbrances of any and all kinds, 

nature and description, growing out of or in connection with Tenant's alterations 

or any other matter pertaining to Tenant, then Tenant shall, within twenty (20) 

days after receipt of notice of same or request by Landlord, prove to the satisfaction 

of Landlord that every such claim and charge has been fully paid, provided for, and 

discharged or bonded. Without limiting Tenant's liability for failure to comply 

with this paragraph, if Landlord bonds or discharges any mechanic's or other lien 

upon Tenant's failure to do so, then, in addition to the cost of such bonding or 

discharging and all other costs and disbursements which Tenant would owe to 

Landlord in respect of same hereunder, Teflailt shall also pay to Landlord the 

greater of One Thousand Dollars ($1,000) or Landlord's actual legal fees incurred in 

connection therewith. Nothing contained in this Lease shall be construed as a 

consent on the part of Landlord to subject the estate of Landlord to liability under 

the Construction Lien Law of the State of Florida as set forth in Chapter 713, 

Florida Statutes, it being expressly understood that Landlord's estate shall not be 

subject to such liability. Tenant agrees to include in the Memorandum of Lease 

described in Section 26.16 _below the verbatim language of this Section 12.1.3(c)." 

37 "15.3. Protection. Except with respect to tenant leases specified in 

38 Schedule H, Landlord shall not enter into a lease for space in the Shopping Center, 

39 or permit the assignment or sublease of any lease for space in the Shopping Center 

40 (to the extent Landlord may withhold its consent thereto) whereby such tenant or 

-·41 occupant uses or intends to use fifteen thousand (15,000) square feet or more of its 

42 premises for an Off-Price Use," as defined in the Lease, and subject to the 

exclusions set forth in the Lease. 

Hialeah, Florida . 2 - 6/7 /00 

Project No. E000002 

6061.3241220710.1 

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1 5. The provlS!ons of the Lease to be performed by Landlord whether to be 

2 performed at the Tenant's store, or any other portion of the Shopping Center, whether 

3 affirmative or negative in nature, are intended to and shall bind the Landlord, its successors 

4 and assigns at any time and shall inure to the benefit of Tenant, its successors and assigns. 

5 6. This Memorandum of Lease is prepared for the purpose of constructive notice 

6 and in no way modifies the provisions of the Lease. 

7 Contents of Memorandum of Lease: 

8 Paragraphs 1-6 

9 Exhibit A - Shopping Center Legal Description 

10 Exhibit B - Site Plan 

11 

12 

13 

14 

IN WITNESS WHEREOF, Landlord 

Memorandum of Lease on this~ day of ,, )VU'W 

and Tenant have duly executed this 

, 20_ct2. 

LANDLORD: 

PAIM SPRINGS MILE ASSOCIATES, 

LID., a Florida limited partnership 

TENANT: 

ROSS FLORIDA DRESS FOR LESS, L.C., 

a Florida limited liability company 

By: PHILIPS PA 

INC. 

.SPRINGS SUB-VIII, By: ROSS STORES, INC., 

By: 

Name:~"'--'-L:c--"'r,!--'""'-_.._"""-..Y--'--'-2.1._. 

Title: 

Witness: r;Ju,.(J./},.()._/{fl(j)./t (;f\J) 

Printed Name: ·=D (o.iiZifhciln')'\..Q 

Witness: ~ b.t :V 

Printed Name: {?_a.n;J.;,1 Sun K;'N --~~~,~~~~~--

Hialeah, Florida 

Project No. E000002 

60613241220710.I 

a Delaware corporation 

Its: Managing Member 

By: -r-::-~~--:--r--~~-'-~~~ 

James s 

Its. Sr Vice President 

Witness: 

Printed Name: ...L.>..-19'--<=="-="--'""-'-........ Tfl-71""-r-~ 

By: 

Gregg 

Its: Vice Pr sident, Real Estate 

Witness: 

Printed Name: -1.:::::.Ll!L!=!:::...!~k.J...:=:....---.;,,,J-

- 3 - 6/7/00 

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1 

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State of California ) 

) SS. 

County of Alameda ) 

~I Lal~ q . ZJJDb before me, 3C'Cl n O(S'() bn \,Jh , a Notary Public, perSO'~ally appeared James Fassio and Gregg McGillis, personally known to 

me _s!:..Jlroved to me, on the basis of satisfactory evidence, to be the person(il whose name(s) 

is~ubscribed to the within instrument and acknowledged to me that he/she/~ecuted 

the same in his/her~uthorized capacity(i.e~, and that by his/her(tIU?iI'Jignature..hl_ on 

the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed 

the instrument. - -

WITNESS my hand and official seal. 

• • ft ft • ft ft • 0 ft ft • ~ 

~@ SHANNON BROWN commission# 1213316 ,. 

~ · Notay Pub11c - CclHarOa E 

i ... !4V~~:2:3i 

Notary 

~ Public 

State of Llb» {v"ftk/ ) 

County of Je l'J ~{) rlfl ~ SS. ' 

On c(iJy ;}':) (J.()1Ji) _b;for,:e me, . ih,Jf,f',;/) ~D · , a Notary 

Public, personally a[i,J>eared1 ~)Hf I lfi lf V,i Mf" , 

personally known to me or proved to me, on the basis of satisfactory evidence, to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me 

that he/ she/they executed the same in his/her/their authorized capacity(ies), and that by 

his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which 

the person(s) acted, executed the instrument. 

33 WITNESS my hand and official seal. 

34 

35 

36 

37 

38 

39 

Hialeah, Florida 

Project No. E000002 

6061.3241220710. l 

LEONARD S. GOLD 

Notary Public, State of New York 

No. 02G05002284 

Qualified in New York County 

Commission Expires September 28, 2000 

- 4 - 6/7/00 

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EXHIBIT A 

LEGAL DESCRIPTION OF THE SHOPPING CENTER 

Component 2 

A portion of"FLORIDA FRUIT LAND CO'S SUBDIVISION" of Section l. Townsl1ip 53 South. 

Range 40 East, as recorded in Plat Book 2 at Page 17, of the Public Records of Dade County_ 

Florida, being more particularly described as follows: 

, Commence at the Point of Intersection of the Northerly Right-of-Way Line of West 49th Street 

(N.W. 103rd Street) with the Westerly Right-of-Way Line of West 4th Avenue (Red Road) as 

shown on that certain Right-of-Way Map, as recorded in Plat Book 65 at Page 70 of the Public 

Records of Dade County, Florida; thence North 0 degrees 55' ! I" East, for 175 .00 feet to the Point of 

Beginning of the following described parcel; thence North 87 degrees 43'14" West, for 175.00 feet; 

thence South 0 degrees 55' I I" West, along a line West of and parallel with the West Right-of-Way 

Line of the aforesaid West 4th Avenue (Red-Road), for 175.00 feet; thence North 87 degrees 43'14" 

West, along the Northerly Right-of-Way Line of West 49th Street (N.W. I 03rd Street) as per State 

Road Department Right-of-Way Map as recorded in Plat Book 60 at Page 53 of the Public Records 

of Dade County, Florida, for 987.60 feet to a Point of Curvature; thence Northwesterly and 

Northerly, along a circular curve to the right, having a radius of25.00 feet and a central angle of88 

degrees 39'30" for an arc distance of 38.68 feet to a Point of Tangency; thence North 0 degrees 

56'16" East, along the Easterly Right-of-Way Line of West 6th Avenue, as shown on the plat of 

"FIFTH ADDITION TO PALM SPRINGS SUBDIVISION SECTION THREE", as recorded in Plat 

Book 65 at Page 33 of the Public Records of Dade County, Florida, for 722.45 feet to a Point of 

Curvature; thence Northeasterly and Easterly, along a circular curve at the right, having a radius of 

25.0 feet and a central angle of 91 degrees 20'30" for an arc distance of 39.86 feet to a Point of 

Tangency; thence South 87 degrees 43'14" East for 603.63 feet to a Point of Curvature; thence 

Easterly and Northeasterly, along a circular curve to the left, having a radius of 651.09 feet _an a 

central angle of 48 degrees 21 '34" for an arc distance of549.54 feet to a Point of Reverse Curvature; 

thence Northeasterly, along a circular curve to the right, having a radius of 141.09 feet and a central 

angle of 37 degrees 12'11" for an arc distance of91.61 feet to a Point on a Curve, said point bears 

North 85 degrees 12'32" West, from the radius point of the next described curve (last mentioned 

three courses being coincident with the Southerly Right-of-Way Line of West 51" Place, as shown 

on said plat of"F!FTH ADDITION TO PALM SPRINGS SUBDIVISION SECTION THREE"); 

thence Southerly, along a circular curve to the left, having a radius of 5873 .65 feet and a central 

angle of3 degrees 52'17" for an arc distance of396.87 feet to a Point of Tangency; thence South 0 

degrees 55'1 l" West, for 463.80 feet to the Point of Beginning (last mentioned two courses being 

coincident with the Westerly Right-of-Way Line of the aforesaid West 4th Avenue, (Red Road) lying 

and being in Hialeah, Dade County, Florida. 

TOGETHER WITH all rights under the reservation of easements as set forth in instrument recorded 

in Official Records Book 15881, Page 3796. (AS TO COMPONENTS 1AND2) 

Hialeah, Florida 

Project No. E000002 

606 I .324/22J952. I 

EXHIBIT A 

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Case 1:20-cv-21865-FAM Document 1-4 Entered on FLSD Docket 05/04/2020 Page 124 of

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