EXHIBIT 

“5” 

 

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 1 of 126
LEASE

ROSS DRESS FOR LESS, INC.

PALM SPRINGS PLAZA

PALM SPRINGS, FLORIDA

TABLE OF CONTENTS

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1. SALIENT LEASE TERMS ............................................................................................... 1

1. 1. Effective Date........................................................................................................................ -1

1.2. Pardes/Addtesses................................................................................................................... 1

1. 3. Location lafoimatioa..................................................... --................. -.... "...... -... -"--"" 2

1. 4. Critical Dates....................................................................................................................... -. 3

1.5. Lease Term.............................................................................................................................. 4

1.6. Minimum Rent........................................................................................................................ 4

1.7. ReqiuredCo-Teaancy.................................................................. --. -....------.

--...5

1. 8. Common Aiea Charge Admmisttarive Fee........................................................................ 5

1. 9. Title Report.............................................................................................................................5

1. 10. Contents of Lease.....................................................................................................6

2. DEFINITIONS OF GENERAL APPLICATION..........................................................^

3. GRANTS OF LEASE, COMMON AREA USE, EASEMENTS AND ACCESS......... IS

3.1. Lease........................................................................................................................ -............ 'IS

3.2. Nahue of the Shopping Center...................................................................................... 15

3.3. Grant of Common Area Use........................................................................ "-----.- 17

3.4. Grant of Utility Licenses..................................................................................................... 17

3. 5. Utility Rooms................................................................................ -----.--------18

3.6. Site Pkn or Shopping Center Alterations......................................................................... 18

3.7. Dimen.sions. ................ "................... >.... -............... -".-.."........."-.".-.-...-..-..-..-20

4. LEASE TERM

4. 1.

4.2.

4. 3.

4. 4.

4. 5.

.20

Telm....................................................................................................................................... 20

Commencement Date. ".................................................................... --...-...".........."--20

Aclmowledgtnent of Commencement.............................................................................. 21

Option Periods................................................... -......... --.--.-........... -.----.-..-.-... 21

Gross Sales Tetmination Right.......................................................................................... 21

5. CONSTRUCTION AND ACCEPTANCE.................................................................... 21

5. 1. Landlord's Construction Obligadons........................................................................... -.. 21

5.2. Construction Commencement ............................................................ --.-..------ 24

5.3. Completion of Consttucdon............................................................................................... 24

5.4. Delivery Notice. ...................................................................................... -........------24

5.5. RoUover................................................................................................................................. 25

5. 6. Remedies Cutnulative................................................................... --.-.--.-....---..-25

'Talm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

-1- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 2 of 126
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5.7. Constcuctton Completion Cancel Date. ........................................................................... 25

5. 8. Automatic Temunarion.............................................................................. -...-................ 26

5.9. Entry Prior to Delivery Date.............................................................................................. 26

5. 10. Intentionally Deleted........................................................................................................... 26

5. 11. AddirioDfllDelivety Requirements............................................................................... -.. 26

6. RENT................................................................................................................................ 27

6. 1. Miaitnum. Rent................................................................ "........ "....................... "...... "........ 27

6.2. Remibuisements.............................................................................. -...-.-..-...-.----30

6.3. Other Payment Provisions. ...................................................................................... -..-- 30

6. 4. Gross Sales Statement for Pmposes of Calculating Substitute Rent........................... 30

7. COMMON AREA MAINTENANCE............................................................................ 31

7. 1. Landlotd's Obligation to Maintain Common Areas....................................................... 31

7.2. Tenant's Pro Rata Share. ..................................................................................................... 32

7.3. Definition of Common Area Charges............................................................................... 32

7.4. Payment of Tenant's Pro Rata Share................................................................................. 35

8. REAL ESTATE TAXES AND ASSESSMENTS............................................................ 38

8.1. Obligation to Pay................................................................................................................. 38

8.2. Tenant's Pro Rata Share. ..................................................................................................... 39

8. 3. Exclusions............................................................................................................................. 40

8.4. Rebates................................................................................................................................... 41

8.5. Contest.................................................................................................................................. 41

8.6. Intentionally Deleted........................................................................................................... 41

9. INSURANCE................................................................................................................... 41

9. 1. Property Insurance............................................................................................................... 41

9.2. Liability Insurance................................................................................................................ 43

9.3. Evidence of Insurance......................................................................................................... 44

9. 4. Waiver of Subrogarion......................................................................................................... 44

9.5. Tenant's Right to Sdf-Insiue.............................................................................................. 45

10. UTILITIES SERVICES................................................................................................... 45

U. MAINTENANCE/REPAIR/ENVIRONMENTAL COMPLIANCE.......................^

11.1. Maintenance and Repail by Tenant................................................................................... 46

11.2. Maintenance and Repail by Landlotd............................................................................... 46

11.3. Repairs Required by Govermnental Authorities. ............................................................ 48

11. 4. Hazardous Material....................................................................................... -.................... 48

12. ALTERATIONS............................................................................................................... S2

12. 1. Peanitted Alterations........................................................................................................... 52

12.2. Communication Equipment.............................................................................................. 54

13. NON-DISTURBANCE AND SUBORDINATION/ ESTOPPEL CERTIFICATES54

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-n- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 3 of 126
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13. 1. Non-Disturbance and Subordination................................................................................ 54

13.2. Estoppel Certificates............................................................................................................ 55

13.3. Processing Fees for Non-Disturbance Agreements and Estoppel Cettifi.cates.......... 56

14. rNDEMNIFICATION.................................................................................................... 56

14. 1. Tenant Indemnity................................................................................................................. 56

14.2. Landlord Indemmty............................................................................................................. 56

IS. USE.................................................................................................................................... 56

15. 1. Tenant's Business................................................................................................................. 56

15.2. Operation.............................................................................................................................. 57

15.3. Protection.............................................................................................................................. 57

15.4. Exclusive Uses...................................................................................................................... 58

15.5. Other Exdusives Not Binding on Tenant....................................................................... 59

15. 6. GoDatk................................................................................................................................. 59

16. SURRENDER.

16.1. Condition of Store.

16.2. Continuance of Possession.

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17. LANDLORD'S COVENANTS....................................................................................... 60

17.1. Landlord's Wamnty............................................................................................................ 60

17. 2. Landlord's Tide.................................................................................................................... 61

17.3. Remedies............................................................................................................................... 61

18. QUIET ENJOYMENT.................................................................................................... 61

19. ASSIGNMENT/SUBLETTING.................................................................................... 61

19. 1. General................................................................................................................................. ^!

19.2. Rekted Entity....................................................................................................................... 62

19.3. Stock....................................................................................................................................... 62

19.4. No Release of Liability........................................................................................................ 62

19.5. Landlord Notice to Assignee.............................................................................................. 62

19.6. Restriction on Landlord's Right to Assign....................................................................... 62

19.7. Recapture on Assignment or Sublease of Stole............................................................... 62

19.8. Assignment or Sublet in Violation of this Atdde 19...................................................... 63

20. DEFAULTS/DISPUTE RESOLUTION/ATTORNEYS' FEES ................................63

20. 1. Defaults.................................................................................................................................. 63

20.2. Alternative Dispute Resolution Process. .......................................................................... 65

20.3. Unlawful Detainei................................................................................................................ 66

20.4. Attorneys'Fees..................................................................................................................... 67

21. CASUALTy....................................................................................................................... 67

21.1. Definitions............................................................................................................................. 67

21.2. Insuted Casualty................................................................................................................... 67

'Talm Springs

Palm Springs Phza

Palm. Spflngs, FL

Store No. 5296

6061.1319/868020.7

-Ul- 05/08/15

ECNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 4 of 126
21.3. Uninsured Casualty.............................................................................................................. 68

2 21.4. End of Term Casualty. ........................................................................................................ 69

3 21.5. Shopping Center Casualty................................................................................................... 69

4 21.6. Intentionally Deleted........................................................................................................... 69

5 21. 7. Tenant Restoration.............................................................................................................. 69

6 21. 8. Waiver of Statute.................................................................................................................. 70

7 21. 9. Laws....................................................................................................................................... 70

8 21. 10. Tolling of Term.................................................................................................................... 70

9 21. 11. Effect of Temimarion.......................................................................................................... 71

10 21. 12. Tenant's Right of First Offer.............................................................................................. 71

11 22. CONDEMNATION........................................................................................................ 71

12 22. 1. Taking.................................................................................................................................... 71

13 22. 2. Right to Teaninate............................................................................................................... 72

14 22. 3. Claitns..................................................................................................................................... 72

15 22.4. Waivet.................................................................................................................................... 72

16 23. MECHANIC'S UENS..................................................................................................... 73

17 24. SIGNS................................................................................................................................ 73

18 24. 1. Governmental Approval and Compliance....................................................................... 73

19 24.2. Building Signs....................................................................................................................... 73

20 24.3. Pykm Signs............................................................................................................................ 74

21 24.4. Temporary Signs................................................................................................................... 74

22 24. 5. Visibility of Tenant's Stole and Signs................................................................................ 74

23 25. NOTICE........................................................................................................................... 75

24 26. GENERAL CONDITIONS ............................................................................................ 75

25 26. 1. Partial Invalidity.................................................................................................................... 75

26 26.2. Relationship of Parties......................................................................................................... 75

27 26.3. Time....................................................................................................................................... 75

28 26.4. Waiver.................................................................................................................................... 76

29 26. 5. Partial Months....................................................................................................................... 76

30 26. 6. Consent................................................................................................................................. 76

31 26. 7. Gender................................................................................................................................... 76

32 26.8. Governing Law..................................................................................................................... 76

33 26.9. Due Authority....................................................................................................................... 76

34 26.10. No Prior Agreements. ......................................................................................................... 76

35 26. 11. Entry by Landlord................................................................................................................ 77

36 26. 12. Neutral Inteipretarion......................................................................................................... 77

37 26.13. Force Majeuie....................................................................................................................... 77

38 26. 14. Successors in Interest........................................................................................................... 78

39 26. 15. Memorandum of Lease....................................................................................................... 78

40 26. 16. Real Estate Brokers.............................................................................................................. 78

41 26. 17. Intentionally Deleted........................................................................................................... 78

'Talm Springs"

Palm. Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

-IV 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 5 of 126
26. 18. Limitation of Landlord's Liability.................................................................................... 78

26.19. OFAC Statement................................................................................................................ 78

26.20. Confidentiality Agreement.................................................................................................. 79

26.21. NoOfiEer........................................................................................................-.....--.-".-"80

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 6 of 126
1 THIS LEASE (the "Lease") is tnade as of the Effective Date by and between Laadlotd and

2 Tenant who are designated in Section 1.2 hereof. Landlord and Tenant hereby agree as follows:

3 1. SALIENT LEASE TERMS

4 1.1.

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Effective Date.

^ay /-^ ^/^

Parties/Addresses.

1.2.1. Landlord: PHILIPS LAKE WORTH LLC,

a Florida limited liability company

(a) Address for all payments of Rent (which address may be changed

upon written notice ghren in accordance with Article 25 below):

Address: c/o Philips International Holding Corp.

295 Madison Avenue, 2nd Floor

City/State/Zip: New York, NY 10017

Landlord's Taxpayer I.D. #: 13-4165080

(b) Address for all purposes otfaet than payment of Rent:

Address:

City/State/Zip:

Facsimile #:

Phone #:

Initial Contact Name:

with copies to:

Address:

City/State/Zip:

Facsimile #:

Phone #:

419 West 49th Steeet, Suite 300

Hialeah, PL 33012

(305) 821-0921

(305)821-7111

Diana Manone

295 Madison Avenue, 2nd PL

New York, NY 10017

(212)545-1355

(212)545-1100

Initial Contact Name: Vice President

and

Address:

City/State/Zip;

Facsimile #:

Phone #:

295 Madison Avenue, 2nd Pl.

New York, NY 10017

(212)545-1355

(212) 545-1100

Initial Contact Name: General Counsel

"Palm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 7 of 126
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1.2. 2. Tenant: ROSS DRESS FOR LESS, INC.,

a Virginia corporation

(a) Address for all invoices for Rent and Reimbursements due under this

Lease, and change of Landlord ot Payee, or change of Landlord's ot

Payee's address:

(b)

(<=)

(d)

Address:

City/State/Zip:

Attention:

Facsimile #:

Phone #:

5130 Hadenda Drive

Dublin, CA 94568-7579

Property Management Department

(925)965-4865

(925) 965^400

Address for all notices (othet than invoices), including notices of

default and notices pertaining to disputed invoices:

Addtess:

City/State/Zip:

Attention:

Facsimile #:

Phone #:

With a copy to:

Name:

Address:

City/State/Zip:

Attention:

Facsimile #:

Phone #:

5130 Hadenda Drive

Dublin, CA 94568-7579

Real Estate Law Department

(925)965-4174

(925)965-4400

Bsu-tko, Zankel, Bunzel & MiUet

One Embatcadero Center, Suite 800

San Francisco, CA 94111

Ross Notices

(415)956-1152

(415) 956-1900

Tnitial Contact Name: Jac Gee

Tenant's Taxpayer I.D. #: 20-0594333

Location Infoanation.

1.3.1. Shopping Centei Name: Palm Springs Plaza

Location: Congress Avenue and 10th Avenue North

Palm Springs, Palm Beach County, Florida

<CPa]m Springs

Palm. Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

-2 05/08/15

PENAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 8 of 126
1.3.2. Minimum Leasable Floor Area for Pro Rata Share Denominator and

Co-Tenancy DenominatoE

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(a) Common Area Charges:

(b) Taxes:

(c) Property Insurance:

(d) Co-Teaancy:

217,807 square feet

217,807 square feet

217,807 square feet

137,054 square feet

(Section 7.2)

(Section 8.2. 3)

(Section 9. 1.4)

(Section 6. 1.3)

The amount of square teet ot Leasable Moor Area m Section 1.3.2(d) aboye reflects the exclusion of

the Store Agreed Size, and the Leasable Floor Area of Ross Dress For Less, the Outparcels, and the

premises south of aiid adjacent to the Store (designated as "Space 1C" on the Site Plan attached hereto

as Exhibit B), as required by Section 6. 1.3(a) below. The ajnount of square feet of Leasable Floor

Area in Section 1.3.2(b) above may be reduced pursuant to the provisions of Section 8.2.3 below if any

portion of the Shopping Center becomes a separately taxed Tax parcel meeting the requitemeats of

Section 8.2.3.

1.3.3. Actual Store Size and Store Agreed Size: The actual State size ("Actual Store

Size") is twenty-foui thousand five bundled mnety-two (24, 592) square feet of Leasable Floor Area,

including a pnimmum of one hundred sixteen (116) feet of ftontage on that portion of the Cotntnoa

Areas that contain, the principal parking area for Tenant's customers, subject to adjustment of the

Leasable Floor Area pursuant to the provisions of Section 3.7. Tenant's Store fcontage shall be

linear, shall not mclude any indentations and, except as shown on Exhibit B, shall not be set back

from the storefront of adjacent tenants. Notwithstanding the Actual Store Size, Minimum Rent and

Tenant's Pto Rflta Share ofReiinbursements shall be calculated on the basis oftwenty-two thousand

(22,000) square feet ofLeasable Floor Atea ("Stole Agreed Size"). Tenant shall have the exclusive

use of the two (2) existing loading docks at the rear of the Store.

1.4. Critical Dates.

1.4.1. Tenant's obligation, for Minimum Rent and Rettnbuisements shaU commence oa

the earlier of (a) the date that Tenant opens the Store for business to the public, or (b) one hundred

fifty (150) days after the kter of (i) the Delivery Date, ot (u) the issuance of Tenant's building

permit, provided that Tenant ptompdy applies for and diligently pursues the issuance of the building

permit for Tenant's Work m accordance with Exhibit C (the Cocunencement Date ).

(Section 4.2)

1.4.2. Intended Delivery Date: August 31, 2015.

(Article 2)

"Palm Sprmgs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

3- 05/08/15

EMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 9 of 126
1.4.3. Date of Tenant's Right to Cancel for Landlord's failure to commence

(Section 5.2)

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2 constcuction ("Construction Commencem.ent Cancel Date'*): February 1, 2016.

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

5 ("Consttucdon Completion Cancel Date"): May 2, 2016.

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1.4.5. Automatic Termination Date: August 29, 2016.

(Section 5.7)

(Section 5.8)

1.5. Lease Tenn.

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10 1.5.1. Initial Torn: From the Commencement Date through the January 31 next

11 followtag the expiration of one hundred twenty (120) months after the Commencement Date. As a

12 hypothetical example and for illusttadon putposes only, if the Commencement Date is

13 September 15, 2015, then the expiiarion of the ImtialTerm shall be Jsinuary 31, 2026.

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16 1. 6.

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

(Section 4.4)

Minimum Rent.

Per Sq. Ft

Per Year Monthly AnnuaUv

(a) Initial Term

Commencement Date

thjtough 5th Full Lease Yeat

6th Full Lease Yeai through

lOtfa FuH Lease Year

(b) Option Periods

First

Second:

Third:

Fourth:

(6.00

$6.50

.00

.00

,00

.00

111, 000.00 $132,000. 00

111,916. 67 (143, 000. 00

$12, 833.33

t. 14,666.67

1;16,500.00

tl8, 333. 33

$154,000.00

$176, 000. 00

1,198,000.00

(220,000.00

17 The Minitnum Rent amounts listed above tna.y be adjusted to reflect the actual Leasable

18 Floor Area of the Store calcukted m accordance with the ptovisions of Section 3. 7.

'Talm Springs"

Palm Springs Pkza

Palm Springs, PL

Store No. 5296

6061.1319/868020.7

-4- 05/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 10 of 126
1 1.7. Required Co-Tenancy.

2 1.7.1. The follo-wing Co-Tenants ("Required Co-Tenants") opeiaring m no less than

3 the Required Leasable Root Area, in the location for such Requued Co-Tenant designated on

4 Exhibit B, indicated as follows:

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Co-Tenant's Name

(a) Aldi

(b) Hatboi Freight Took

(c) DoUarTree

Requiied Leasable

Float Area

(minimum sq. ft.)

19,845

15,296

10,354

(Section 6. 1.3)

Provided that the Required Co-Tenancy set torth m Sections l. /. l and 1.7.2 is satisfied on

the Commencement Date, during the lemaindet of the Term, any of the Required Co-Tenants may

be replaced by one (1) nadonaUy or regionaUy recognized repkcement retail tenant reasonably

acceptable to Tenant, operating ia no less than ninety petcent (90%) of the Required Leasable Floor

Area of the Required Co-Tenant being leplaced, under a bona fide lease with a rmnimum initial tenn

of at least three (3) yeats. For purposes of this Lease, a replacement tenant must be an open and

operating tetailei in the space vacated by the named Co-Tenant above which it purports to replace.

Notwithstanding anythmg herein to the contrary, Landlotd may replace a grocery store tenant with a

different retail use.

1.7.2. Required percentage of Leasable Floor Area of the Shopping Center to be

occupied by operating retailers on the Commencement Date and throughout the Term: Sixty

percent (60%), excluding the Leasable Flooi Area of the Store, the Ross Premises (as defined in

Article 2), Space 1C (as designated on Exhibit B), and the buildings located on the Outpatcels &om

the numerator and denominator of such calculation.

(Section 6.1.3)

1.8. Common Area Charge Administrative Fee.

Five percent (5%).

(Section 7.3)

25 1.9. Title Report.

26 That cettaia report on the state of Landlord's title to the Shoppmg Center or the Store

27 issued by Stewatt Title Guaranty Company, dated March 9, 2015, and numbered 72526-20150126.

28 (Section 17.2)

"Palm Springs"

Palm Springs Pkza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-5- 05/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 11 of 126
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1.10. Contents of Lease.

1.10.1. Pages: 1 81

1.10.2. Sections: 1. 1-26.21

1. 10.3. Exhibits:

A Legal Description of the Shopping Center

B Site Plan

C Construction Obligations of Tenant

D Shopping Center Prohibited Uses

E Acknowledgment of Commencement

F Non-Distuibance Agreement

G Delivery Notice

H Exclusive Uses

H-l Ross Dress For Less, Inc. Waiver

I Permitted Tide Exceptions

J Tenant's Signs

K Guaranty

L Existing Tenants

M Elevation Plan dated Much 13, 2015

2. DEFINITIONS OF GENERAL APPLICATION

Abatement Work. See Section 11. 4. 3.

Annual Statement. See Section 7. 4. 5.

Building. The structure in which the Stole is located.

24 Riiilrling Envelope. Those certam areas designated on Exhibit B within the boundaries of

25 which buildings may be constructed.

26 Business Days. Business Days shall mean Mondays thtough Fridays excluding the

27 following holidays: New Year's Day, Martin Luther King, Jr. Day, President's Day, Memorial Day,

28 July 4th, Labor Day, Thanksgiving Day, the Friday foUowing Thanksgiving Day, and Christmfls. If

29 any of the foregoing holidays falls on a Saturday, then the Friday before shall constitute the holiday

"Palm. Spriags"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-6- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 12 of 126
1 and if any of the foregoing holidays falls on a Sunday, then the Mondfly following shall constitute

2 the holiday.

3 CAM Audit. See Section 7. 4. 7.

4 Casualty. See Section 21. 1. 1.

5 Commencement Date. See Sections 1.4. 1 and 4.2.

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

7 intended solely for the common use of the occupants, tfaeil customers, agents employees and

8 suppUers, such as the parking areas, driveways walkways, loading zones (whethel or not such

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

10 or any portion of any building located within the Shopping Center. Enclosed mails ale not

11 mcludable for purposes of Common Aiea Charges hereof unless the Store has a diiect customer

12 door openmg onto such majl intended for access of customers tathet than emergency egress and

13 Landlord keeps the mall open to customer access during all of Tenant's operating hours Any area

14 which is not enclosed by demising walls, but which is substanriaUy used for the benefit of one tenant

15 or group of tenants such as, for example, those areas sometimes Netted to in the shopping center

16 industty as "food courts, " shall not be considered Common Areas. A "food court" is an open area

17 of the Shopping Center which accommodates a common seating, serving or service area for the

18 pattons of two or more retailers of prepared food whose premises are proximate to such seating,

19 serving or service area.

20 Common Area Charges. See Section 7. 3.

21 Comm""ir. atinn Equipment. See Section 12. 2. 1.

22 Control Atea. The area so designated on Exhibit B which may not be altered except as

23 expressly set forth in this Lease.

24 Co-Tenancy Report. See Section 6. 1. 3(f).

25 Co-Tenants. See Sections 1.7. 1 and 6. 1.3.

26 Delivery Date. The Deliveiy Date is the fitst Fenmtted Delivery Day after the last of the

27 following conditions is satisfied (hereinafter "deliver" or "deUveiy"). Each of the conditions set

28 forth in clauses (a) thmugh (o) below are conditions of delivery and in die aggregate are the

29 "Delivery Conditions. " ASl documents and other written evidence required below to be submitted

30 to satisfy the Delivery Conditions (the "Delivery Evidence") shall be delivered to Tenant at the

31 address specified in Section 1.2.2(b).

32 (a) Landlord has completed Landlord's Construction Obligations in compliance

33 with the terms of this Lease;

34 (b) Landlord has (i) completed (or caused to be completed) all of the Common

35 Areas and Off-Site Improvements, © completed the buildings depicted on Exhibit B (excluding

"Palm Spflngs"

Palm Springs Plaza

Pa]m Spriags, EL

Store No. 5296

6061. 1319/868020.7

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 13 of 126
1 Outparcel buildings) consisting of at least two hundred seventeen thousand (217,000) square feet of

2 Leasable Float Area (the "Minimnm Building U?A"), and (iii) fulfilled all construction obligations

3 imposed by this Lease and applicable governmental authorities, including obtaining any requisite

4 governmental authorizations and appiovals to permit Tenant to open for business, subject to

5 Tenant's completion of Tenant's Work, and excluding Tenant's permits and licenses. Tenant

6 acknowledges that as of the Effective Date, Landlord has met the foregoing Delivety Conditions set

7 forth in (i) and (ii) above, and Landlord covenants that the conditions shall not be changed in any

8 material respect prior to the Delivery Date;

9 (c) Receipt by Tenant of written evidence that Landlord's Construction

10 Obligations have passed final inspection by the authority by whom the building permit for

11 Landlord's Coa.sttucti.on Obligations was issued,

12 (d) If the Store is to be constructed within an easting Building, Landlord s

13 delivery to Tenaiit of a report and certificate Ecom a licensed enviconmental consiiltant reasonably

14 acceptable to Tenant, cerdfymg to Tenant that such consultant conducted a comprehensive survey

15 of the Store, dated not more than one hundred twenty (120) days prior to the date of the Delivery

16 Nodce, and that the Store, ia.cludmg, without limitation, th.e walls, ceilings, stmctural steel, flooring,

17 pipes and boilers, are free of Hazardous Materials (including asbestos -contaming materials) present

18 in violation of applicable Environmental Regulations as that tean is defined herein. The Vettex

19 Companies, Inc. is deemed to be a reasonably acceptable licensed environmental consultants.

20 Landlord and Tenant acknowledge the environmental concerns related to the former Ocean

21 Cleaners dry cleaning facility at 3321 South Congress Ave., and Landlotd wiU. coinply .with any

22 governmental requirements at no cost to Tenant and with a fuU iadenmifica. tion. of Tenant fcotn any

23 costs or damages associated with such environmental concerns as and to the extent provided in

24 Section 11.4.6 of this Lease;

25 (e) The toof of the Store shaU. be in a watertight condition and covered uxider

26 Landlotd's existing roof warranty through 2026, a copy of which wattanty Landlord provided to

27 Tenant prior to the Effective Date of this Lease. Tenant acknowledges receipt of said toof

28 warranty;

29 (f) Receipt by Tenant of at least one (1) fully executed original of this Lease, and

30 a Memorandum of Lease signed by Landlord and Tenant and notiri2ed so that such Memorandum

31 of Lease may be recorded;

32 (g) Delivery to Tenant of exclusive possession of the btore in broom clean

33 condition with Landlord's and its contta. ctors* agents and employees' and previous tenant's tools,

34 equipt nent, ina.terials and personal property removed fcom the Store;

35 (h.) Tenant's receipt of Landlotd's apptoval of Tenant's plans for Tenant^s Wotk

36 and Tenant's receipt of approval by governmental authorities for Tenant's plans for Tenant's Work;

37 (i) Landlord shall have cooperated with Tenant to obtain the permit for

38 Tenant's signage, including having signed any governmental permit application if lequired for

Talm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

OS/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 14 of 126
1 Tenant to obtain its signage permit, and the pylon sign structures in the Shoppiag Center as shown

2 on Exhibit B shall be ready for Tenant to install its sign panels thereon as depicted on Exhibit};

3 (j) Landlord has instaJled pertaaneat power to die Stote;

4 (k) After sealing the floor slab as provided in Section 5. 1. 1(a)(iu)(E) below,

5 Landlord has provided certified test results by Independent Floor Testing and Inspection, Inc. (or

6 odiet independent concrete slab inspection company approved by Tenant's con. stcuctioa

7 representative) of all fLoot slabs in the Store, w^hether existing or new, certifying that the floor slab

8 has passed the test for moisture content, albaimity, and the seveaty-two (72) hour bond tests as

9 specified in Tenant's prototype plans and specifications;

10 (1) Landlord has delivered to Tenant all certificates ofinsutance lequij-ed to be

11 mfliatamed by Landlord pursuant to tl-iis Lease;

12 (in) Landlord has completed lighting of the Common Areas that meets applicable

13 code requirements, and Landlord Iias mstatled lighting in Tenant's rear loa.dmg area and in. firont of

14 the Store with fixtures producing an average of not less than five (5) foot candle illumination.

15 Landlord may use wall packs to achieve the required five (5) foot candle illumination;

16 (n) If not previously delivered to Tenant, Landlord has delivered the

17 Non-Disturbance Agieement(s) executed by Landlord and Landlord's cua-ent lendei:, as required by

18 Section 13. 1. 1; and

19 (o) The Store has been secured by Landlord from iinauthorized entry by persons

20 without a key.

21 Notwithstanding anything to the contrary contained in this Lease, and notwith.standing any

22 delays in completion of Landlord's Construction Obligations due to Force Majeure, unless Tenant in

23 its sole discretion elects to take delivery on. a day other than a Pettnitted Delivery Day, the Delivery

24 Date will not be on a day other than a Pennitted Delivery Day. If a Force Majeure event occurs and

25 Landlord complies with the notice provisions of Section 26. 13, the Delivery Date will be, at

26 Tenant's option, either (a) the date Landlord tenders delivery of the Stole to Tenant with all

27 Delivery Condirious satisfied, or (b) the next Pennitted Delivery Day which ocnits afteE the date

28 Landlord tenders ddivery of the Store to Tenant -with aU Delivery Conditions satisfied, and the

29 Commencement Date shall be determined in accordance with Section 1.4. 1. Notwithstanding the

30 foregoing, if the Delivery Date would have occuaed on a Permitted Delivery Day but fot a Tenant

31 Delay, Tenant will accept delivery on the date the Store is delivered by Landlord as if such delivery

32 were made on a Permitted Delivery Day.

33 Environmental Regulations. See Section 11.4. 1.

34 Exempted Discnn'iniianrps. See Section 6. 1.3(e).

35 Final Plans. See Exhibit C.

'¥a]m Springs"

Palm. Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 15 of 126
1 Force Majeure. See Section 26. 13.

2 Full Lease Year. The expression 'Tull Lease Year" refers to a Lease Year which consists

3 of twelve (12) complete calendar months commencing on a Febtuary 1 and terminating on the

4 ensuing January 31 .

5 Gross Sales. This definition applies to the calculation of Substitute Rent and for purposes

6 of Section 4.5 only. Gross Sales are tevenue received by Tenant from the selliag price of aU

7 merchandise or services contracted to be sold in or &om the Store by Tenant, its subtenants,

8 licensees and concessionaires, whethet fol cash or for credit, excluding, however, the following:

9 (a) the sales pace of aU merchandise returned and accepted for £uU credit or the amount of the cash

10 tefimd or allowance made thereon; (b) the sums and credits received in setdement of claims for loss

11 or damage to metchAndise; (c) the consideration received in connection with a sale of mventory

12 which occurs other than in the ordmaiy course of Tenant's business, includmg, but not limited to, a

13 sale in bulk ot to a jobbei, liquidator or assignee; (d) sales taxes, so-caUed luxuty taxes, excise taxes,

14 gross receipt taxes, and othet taxes now or hereaftet imposed upon the sale or value of ffleichandise

15 ot services, whether added separately to the selling pace of the merchandise or services and

16 coUected from customers or included in the retail seUmg price; (e) receipts &om up to two (2)

17 vending machines for employees' use only, and fcom the collection of public UtLlity bills; (f) bank

18 card discounts or fees (e.g.. Visa, MasterCard, etc.), interest, caaying charges, or other finance

19 charges in respect of sales made on credit, not to exceed two percent (2%) of Gross Sales; (g) sales

20 of fixtures, trade fixtmes, or personal property that are not ma-chandise held for sale at retail;

21 (h) sales to employees aiid senior citizens at discount, each not to exceed two percent (2%) of Gtoss

22 Sales; (i) revenue received from mailing, alterations, delivery or other services performed on a

23 non-profit basis for tfae benefit of customers; (j) Tenant's accounts receivable, not to exceed two

24 percent (2%) of Gtoss Sales, which have been deteanined to be uncollecdble for federal income tax

25 purposes during the Lease Year; provided, however, that if such accounts are actually collected in a

26 later Lease Year, the amount shall be mcluded in the Gross Sales for such latec Lease Yeat; (k) rents,

27 subtents or other considetation received in connection with aa assignment, sublease, Ucense,

28 concession or other transfer of any portion of the Stole; (1) amounts received for merchandise

29 ttansfeaed to any other pkce of business of Tenant (or its subteaants, concessionaites and/ot

30 licensees) ot to any business otganizarion affiliated with Tenant wheiever located; provided such

31 transfet is not effected for the puipose of diverting sales &om the Stole, and that the merchandise is

32 not used to complete a sale originated in the Store; and (m) any Internet ot other sale contracted on

33 a telecommunications network whethet or not the sale item. is delivered to the customer at the Store,

34 provided that the Stole is used for retail sales to waUs-in customers and not as a waiehouse facility

35 for Internet sales.

36 Hazatdous Materials. See Section 11. 4. 1.

37 HVAC. See Section 11. 1.

38 Inline Bmlding. The Building m the Shopping Center in. which the Store is situated and

39 any other building to. the Shopping Center that is not located on an "Outparcel and which has

40 more than one (1) teaaiit with common demising walls.

'Talm Springs"

Palm Sprbgs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/81SB020.7

10- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 16 of 126
1 Insurance Bill. See Section 9. 1. 4.

2 Intended Deliveiy Date. The date specified in Section 1.4.2.

3 Invitee(s). An Invitee shaU mean any agent, employee, customer or other entity ot

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

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

6 party who is endded to grant access to the Shopping Center such as Landlord, Tenant or any other

7 occupant of the Shopping Center.

8 Landlord's Construction Obligations. The consttuction obligations imposed on

9 Landlord by Section 5. 1. 1.

10 Landlord's Parcel. For purposes of this Lease, the term "Landlord's Paicel" shall mean

11 "Shopping Center."

12 Leasable Floor Atea. All areas available, or held for the exclusive use and occupancy of

13 occupants or future occupants of Landlord's Parcel, measured £com the exterior surface of exteriof

14 walls and from the center oftaterioi demising partitions excepting that

15 (a) Any mezzanines intended to be used for distribution, sale or display of

16 merchandise to retail custom-ers ("Retail'") shall be excluded firom the computadon ofLeasable Floor

17 Area. Any such mezzanines not intended for Retail shall be excluded from Leasable Floor Atea.

18 (b) Any areas ("Outdoor Areas") which are located wholly 01 partisLlly outside of

19 a. bmlding, or which, although located substantially inside of a buildmg, are not bounded on all sides

20 by exterior walls or a roof, such as outdoor sales, seating, garden or storage areas, or enclosed truck

21 docks or loading aieas, shall be included in Leasable Floor Atea if and to the extent that such

22 Outdoot Areas are available or held fol the exclusive use and occupancy of occupants or future

23 occupants of Landlord's Parcel, whether or not such Outdoor Areas are cleady delineated and

24 whether or not any rental or other charges ate paid by tenants with respect to such Outdoot Aceas.

25 Outdoor Areas shaU, to the extent that they ate bounded by walls, be measured in the same tnaimer

26 as provided above; otherwise, they shall be measuced along lines which reasonably delineate the

27 boundaries of such Outdoor Areas.

28 (c) Kiosks shall be includable in Leasable Floo]: Area. A "kiosk" is a structiue of

29 no more than one hundred (100) square feet, set withm the Common Aieas and completely

30 sua-oimded by pedestrian walkways or driveways.

31 Lease Year. The first Lease Year shall extend &om the Commencefflent Date to the first

32 January 31 thereafter. Subsequent Lease Years shall commence on the following Februaty 1 and

33 tennmate the followmg Januaiy 31.

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

35 not paid when due, or in the event intecest is requiced to be paid under the temis of this Lease, such

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

"Palm. Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

11- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 17 of 126
1 annum, or (b) the prime rate per annum quoted by the Wall Street Journal for short term

2 rnmmprr-ial loans, plus one percent (1%) per anaum, but not in any event exceeding the highest tate

3 permissible by Jaw which is not usudous.

LFA Minimums. Solely for purposes of calciiktmg Co-Tenancy and Tenant s Pro Rata

5 Share of Reimbucsements, the mimmum amount of Leasable Floor Area m the Shopping Center

6 agreed by the parties and set forth in Section 1.3.2.

7 Mmimum Rent. See Section 6. 1.

8 Off-Site Improvements. IntenrionaUy Deleted.

9 Option. See Section 4. 4.

10 Option Periods. See Section 4.4.

11 Outparcel. Any parcel of land upon which a building is or may be constcucted which is

12 between the Store and any street bordering the Shopping Center.

13 Permitted Delivety Day(s). Petfflitted Delivery Days shaU be the first Monday of Februaty

14 and May and the last Monday of August only, which next follows the actual date Landlord tenders

15 possession of the Store to Tenant with s3. Delivery Conditions satisfied, provided that it is no earlier

16 than the Intended Delivery Date.

17 Prohibited Uses. See Section 3.2.2.

IS Property Insurance. See Section 9. 1. 1.

19 Recommencenaent Date. See Section 21. 2.

20 Redelivety Date. The last of the following to occur afiet a Casualty or Taking: (a) the ckte

21 ou which Landlord's architect, or contractor having charge of the Restoration, certifies by written

22 notice to the parries that the Restoration has been completed; and (b) Tenant receives from all

23 applicable governmental agencies all necessairy written approvals to teopen the Store for business.

24 Reduced Occupancy Period. See Section 6. 1.3.

25 Reimbursements. Tenant's obligation to reimbutse Landlord foi Tenant's Pro Rata Share

26 under the provisions of Sections 7.4. 1, 8.2. 1 and 9. 1.4.

27 Rent. The terms "Rent" or "Rental" shall mean all Minimum Rent and Reimbursements

28 which may be due from Tenant to Landlord pursuant to this Lease.

29 Requirements. See Section 11.3.2.

30 Restoration. See Section 21. 1.4.

'Talm Springs"

Palm Springs Plaza

Palm Springs, KL

Store No. 5296

6061.1319/868020.7

-12- 05/08/15

EMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 18 of 126
1 Roof Repairs. See Section 12.2.2.

2 Ross Press For Less Lease. Philips Lake Worth L.P., a New York limited partnership

3 (Landlord's predecessor in interest) and Tenant entered into a lease (Store No. 1345) with an

4 Effective Date of September 22, 2009 (the "Ross Dress For Less Lease") fot a stole doing business

5 in the Shopping Center as a Ross Dress For Less store ia the location depicted as Ross on

6 Exhibit B (the "Ross Premises"). Neither Landlord not Tenant, by execution of this Lease, intend

7 to modify, amend, or otfaerwise revise the Ross Dress For Less Lease in any mannet, and the Ross

8 Dress For Less Lease shall stand on its own with regard to administration and enforcement of the

9 rights and obligations of the patties contained therein. Landlord and Tenant furthet acknowledge

10 that the operation of a dd's DISCOUNTS store in the Shopping Center, pursuant to the terms of

11 this Lease, does not viokte any section of the Ross Dress Fot Less Lease.

12 Section Numbers. In this Lease, aU references to "Section" shall mean the section

13 numbers of this Lease, unless otherwise indicated.

14 Shopping Center. That certain real property development with all appurtenances generally

15 described in Section 1.3 above, which is constcucted or is to be consttucted on the property

16 described in Exhibit A. The Shopping Center may also be referred to herein as "Landlord's

17 Pucel."

18 Site Plan. The Site Plan is the plan attached hereto as Exhibit B. Landlord represents and

19 waaants that the Site Pka depicts Landloid's Parcel described on Exhibit A and that the

20 boundaries theieof ale delineated thereon -with substantial accuracy. Other than "Building H (as

21 designated on Exhibit B) in which the Store is located, a portion of which contams two (2) stories

22 as of the Effective Date, the Inline Buildings depicted thereon contain or shall contain no more than

23 one (1) stcay (but mezzanines havmg Leasable Floor Area not in excess of one-fhttd (1/3) of die

24 occupant's ground floor Leasable Floor Area, when not used for selling purposes, shall be

25 pearutted). Further, the height (including any aichitectuial features and rooftop equipment) of any

26 portion of the Inline Buildings shall not exceed the greater of the height thereof as of the Effective

27 Date or the height of the exterior elevation of the Store ou the Final Pkns described in Exhibit C.

28 The highest point of any exterior elevation of any othet building in Landlord's Parcel (including

29 architectural featutes and tooftop equipment) shaU not exceed twenty-eight (28) feet in height

30 measured &om the finished floor elevation of the Store; provided, however, that any such buildings

31 in existence on the Effective Date may not exceed the greater of (a) the height thereof existing on

32 that date, 01 (b) the finished floor elevation of the Store. Landlord and Tenant acknowledge that the

33 building located on the Outparcel designated as "Eyeglass Wodd" on Exhibit B also contains two

34 (2) stories.

35 Special Form Policy. See Section 9. 1. 1.

36 Store. The Store is that potrion of Landlord's Parcel designated on Exhibit B, havtag the

37 dimensions and containing the Lea.sable Floor Aiea specified in Section 1.3, including the use of the

38 toofas specified in Section 12.2.

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

13 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 19 of 126
1 Substitute Rent. Substitute Rent shall mean the lesser of (a) Muimum Rent, or (b) two

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

3 applicable ia this Lease, shall be paid m lieu of Minimum Rent and Reimbursements.

4 Support Systems. See Section 11.4.2.

5 Taking. See Section 22. 1.

6 Tax or Taxes. See Section 8. 1.

7 Tax Bill. See Section 8. 1.

8 Tax Year. The twelve (12) month period used by the taxing authority as the period to

9 which the Tax BiU applies.

10 Tenant Delay. A delay in the performance by Landlord ot any obligation it is to perfotm

11 under Exhibit C to this Lease as a J-esult of: (a) Tenant's failure to approve, consent, comment

12 upon or otherwise tespond to a request foi plan approval within the esspiess tune provisions of

13 Exhibit C; or (b) Tenant's request for a change order to Landlord's Construction Obligations which

14 duecdy results in a delay in Landlord's ability to perform its obligations under this Lease; or (c) the

15 interference by Tenant or Tenant's conttactors in the performance by Landlord ot Landlord's

16 contractors of Landlotd's Construction Obligations; provided, however, in order for there to be a

17 valid "Tenant Delay" Landlord must first have given Tenant written notice within five (5) Business

18 Days of the event forming the basis for the claim of the Tenant Delay and provided Tenant with at

19 least three (3) Business Days to rectify the problem causing the delay.

20 Tenant's Pro Rata Share. Tenant's share of Reimbutsements calculated as set forth in

21 Section 7.2 (Common Area Chaiges), Section 8.2 (Tax BiU) and Section 9. 1.4 (Special Form Policy

22 premium).

23 Tenant's Work. The work to the Stole by Tenant after the Delivery Date necessary for

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

25 Term fot the purpose of improving the Store.

26 Term. References to the Tean of this Lease shall iaclude the initial term described in

27 Section 1. 5. 1 ("Initial Tenn") and any extension of such Tenn ("Option Period").

28 Tennination Notice. A notice provided by Tenant to Landlord not less than thirty (30)

29 days (or such othet notice period required under the terms of this Lease) prior to a proposed

30 teamaation of this Lease in which Tenant notifies Landlord of its election to terminate this Lease if

31 permitted to do so under any ptovision of this Lease.

32 Unamortized Cost The temflimng balance of an origmal amount expended by Tenant for

33 leasehold improvements to the State (not includmg any allowance paid by Landlord to Tenant for

34 Tenant's leasehold improvements as specified in Exhibit C), as amortized on a straight line basis

35 over no longa; than a ten (10) year period according to Generally Accepted Accounting Principles

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

14- 05/08/15

EDSLAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 20 of 126
1 ("GAAP") m the books and records of Tenant for public reporting putposes, with an iaterest rate of

2 ten percent (10%) per annum.

3 Utilities. Utilities ate electricity, gas, power (including steam, if present), sanitary sewer,

4 storm sewer, telecommmucarions (audio, video or data bit sttealns, whether tenestrial, ovet the air

5 or satellite), and water supplied by public or private entities; however. Tenant acknowledges that

6 Landlord is only obligated to install or provide electricity, sanitary sewer, steam sewer and water and

7 is m no way responsible whatsoever for any steam, air or satellite broadcast

8 Utility Room. See Section 3. 5.

9 3. GRANTS OF LEASE, COMMON AREA USE, EASEMENTS AND ACCESS

10 3.1. Lease.

11 Landlord hereby leases to tenant and 'tenant hereby leases frotn La.ndlotd the Store

12 depicted on the Site Pkn, together with any applicable easements, rights and privileges appurtenant

13 thereto, on the tenns and conditions set forth herein. As a material inducement and in

14 consideration for Landlord entering into this Lease, Ross Stores, Inc. shall execute a Guaranty in the

15 form attached hereto as Exhibit K.

16 3.2. Nature of the Shopping Center.

17 3. 2. 1. Retail Use.

18 (a) Tenant has entered into this Lease ia. teliance upon representations by

19 Landlord that the Shopping Center is and shall remain retail in chacactei, and, further, subject to the

20 provisions of Section 3.2. 1(b)(i) below, no part of the Shopping Center shall be used for office or

21 residential putposes or as a theater, auditoriutn, tneeting hall, school, chucch or other place of public

22 assembly, "flea market," tnottuary or funecal home, veteianary services or pet vaccination clinic or

23 overnight stay pet facilities, gymnasium or health dub, dance hall, bffliaid or pool hall, massage pador,

24 video game arcade, bowling alley, skating rink, car wash, facility for the sale, display, leasing or tepaic of

25 motol vehicles, on-premises consumption of alcoholic beverages except as incidental to a primarily

26 restaurant use, including any night dub, bat, sports bar, or any restaurant where the on-ptenrises

27 consumpriou of alcohol exceeds forty percent (40%) of gross sales (and which shall include Buffalo

28 Wild Wings, Elephant Bai and BJ's Biewhouse regajrdless of the percentage sale of alcohol, and othei

29 similnr establishments), facility offering gambling to the public (mduding any so-caDed IntEinet cafe

30 that offers gambling to the public, off track betting facility, casino or gaming facility), provided that the

31 inddental sale of lotteiy tickets shaU be pamitted, or the sale of adult pioducts or adult bookstores or

32 adult audio/video products stores (which are defined as stoles othet than national tenants such as

33 Bames and Noble m which at least ten percent (10%) of the inventoiy is not avaikble for sale or rental

34 to children under the age of majority in the state in which the Store is located because such inventory

35 expliddy deals with or depicts human sexuality). No ATM ot similar maduae shall be petfflitted in the

36 Shopping Center -wittiin one hundred (100) feet of the fcont and side perimeter walls of the Store,

37 except if located wholly -within die interior of another tenant's or occupant's premises. Landlord shall

"Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

15- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 21 of 126
not pennit the sale ot whole bean or ground cottee m the Shopping Center by a nationally known

2 specialty coffee retailer, having one thousand (1,000) stores or more and leasing or occupying five

3 thousand (5,000) squajre feet of Leasable Floor Area 01 less; provided, howevet, that the foregomg

4 restdction shall not apply to the sale of whole bean or ground coffee by a supermarket or grocery store,

5 or by Dunldn* Donuts, Caribou Coffee, Peet*s, Coffee Bean & Tea Leaf, Coffee Beanery, Gloria Jeans,

6 or Tully^s or retailers which obtain the majority of their revenue fcom. the sale of donuts, bagek, bakery

7 goods or sandwiches. Landlord shall not lease space not allow space to be occupied in. die Shopping

8 Center by any occupant, other than Tenant, whose use of the space shall be (i) for a store primarily

9 selling merchandise at one price ot set prices such as 99 Cents stores, as they are operated as of the

10 Effective Date, or (ii) for a discount department stole under twenty thousand (20,000) square feet of

11 Leasable Floor Area., such as Fatnily Dollar stotes, as they ate operated as of the Effective Date.

12 Further, other than Chili's restaurant (and a Pemritted Cluli's Replacement as hetein defined) in the

13 location designated as "Chill's" on Exhibit B aiid those Existing Tenants (as defined in Section

14 3.2. l(b) below) in the building designated as "Building G" on Exhibit B that are using theii premises

15 for restautant use as of the Effective Date (and their Peanitted Existing Tenant Restaurant

16 Replacements as heceia defined), no J'estaufant of other High Intensity Patking Usef" (as heteinafter

17 defined) shaS. be permitted in the Shopping Center within three hundred fifty (350) feet of the front

18 and side perimeter walls of the Store. A Permitted Chill's Repkcement shall mean (A) another Brinker

19 concept restaurant, or (B) a similar style restaucant such as TGIF, Applebee's or Ruby Tuesday, ot

20 (C) a retail use (not otherwise a Ross Prohibited Use) and a bank. A Permitted Existing Tenant

21 Restaurant Replacement shall mean a similar style restaurant as the Existing Tenant being replaced,

22 e.g., a quick-serve restaurant can replace a quick-secve restaurant and a full service sit down restaurant

23 can repkce a fuU service sit down testaurant. A "High Intensity Par'king User" is a tenant ot occupant

24 whose use requires more than five (5) parking spaces per one thousand (1, 000) square feet ofLeasable

25 Floor Area m accordance with. either customary shopping center practices or governmental regulations,

26 whichever has a higher parking requirement The foregoing use restrictions are refeded to herein as

27 the "Ross Piohibited Uses."

28 (b) Notwithstanding Section 3.2. 1(a) above:

29 Q The Ross Prohibited Uses set forth in this Section 3.2. 1 shall not

30 appty to those tenants or occupants of the Shopping Center (or their successors) who, in accordance

31 with the terms of existing leases or occupancy agreements in effect on the Effective Date ("Existing

32 Tenants'*), cannot be prohibited fcom so operating, but only for the balance of the tean(s) of such

33 existing lease(s) or occupancy agreements), as the same may be extended. Landlord covenants and

34 agrees that if Landlord has the right to consent to a change in use of the premises occupied by any

35 such Existing Tenant, Landlord shall not consent to a change in use of the premises which violates the

36 Ross Prohibited Uses. Notwithstanding the foregoing, th.e Dollar Tree stoire in opetarion on the

37 Effective Date, in the location designated on Exhibit B, may be replaced with a dollar store, i..e., a

38 store pi-imarily seUiag m.etchandise at one price or set prices such as 99 Cents stores, as they are

39 operated as of the Effective Date, in the same ot other location in the Shopping Center.

40 (n) Giound floor office space -within the Shopping Centet may be

41 used for medical, dental, real estate, legal, accoutitmg, banldng, tax prepatati.on, ttavel agencies,

42 securities and othet investaieats and financial planning, msucan.ce and si+nilar uses, provided that (A)

43 each such office is located at least one hundred (100) feet firom the firoat and side perimeter walls of

£<Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

16- 05/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 22 of 126
the Stole, (B) the aggregate square footage of aU ground floor othce tenants (induding Existmg

Tenants) does not exceed ten percent (10%) of the aggregate Leasable Floor Area within the Shopping

Centet, and (C) no smgle office on the ground floor (excluding Existing Tenants) shall exceed two

thousand (2,000) square feet of Leasabk Floor Area. In addition, office use shall be permitted in the

"Second Floor" of Building H, as desigaated on Exhibit B, and the foregoiag ten percent (10%)

aggregate limitation shall not apply to such Second Floor office uses.

(m) Chill's restaurant shall be permitted -within the Shopping Center,

8 provided such restaurant (A) Is in the location designated as "CHli's" on Exhibit B, and (B) does not

9 exceed six thousand two hundred seventy-five (6,275) square feet ofLeasable Floot Area.

10 (iv) One (1) gymnasium or one (1) health club shall be permitted in

11 the Shopping Center, provided that such. gymnasium or health dub (A) shall not exceed five thousand

12 (5,000) square feet of Leasable Floor Area, and (B) shall not be located within two hundred (200) feet

13 of the pedmetet of the Store. Notwithstanding the foregoing, should the Ross Dress For Less Lease

14 temiicate, then. Landlord ma. y lease such Ross Dress For Less premises foi: use as a health- dub or

15 gymnasiuttL, provided that such health dub or gymnasium does not exceed twenty-six thousand

16 (26,000) square feet ofLeasable Floor Area.

17 (v) One (1) ballet/dance studio shall be peimitted, provided that such

18 baUet/dance studio (A) is not located -within one hundred (100) feet of the perimetei of the Store, and

19 (B) does not exceed three thousand (3,000) square feet ofLeasable Floor Acea.

20 3.2.2. Further Prohibited Uses. Landlord agrees that the Ross Prohibited Uses set

21 forth m Section 3.2. 1 and the "Shopping Center Prohibited Uses" which are listed in Exhibit D

22 (coUecdvely, the 'Trohibited Uses") shall not be permitted in the Shopping Center. Tenant agrees

23 that it will not violate the Piohibited Uses.

24 3.3. Grant of Common Area Use.

25 Tenant, as weU as its agents, employees, customers and Invitees, shall have and is granted

26 nonexdusive and undisturbed access to, and use of all Common Ateas (hereinafter cclicense9 i), which

27 license shall be appurtenant to the Store during the entire Tenn of this Lease. Landlord shall use

28 commercially reasonable efforts to prercnt CoDnmoa. Area use by other than the Shopping Centet's

29 occupants and theu- Invitees, piovided that Landlord may grant tenants the right to use Coinmon

30 Areas for cart conrals or mstaUatioa of bollards. In addition. Landlord shall use cotninercially

31 reasonable efforts to require occupants of the second (2nd) floor office spaces, and theit etnployees

32 and Invitees, to park in the rear of the Shopping Centec. In no event shaU Tenant or Tenants

33 Invitees^ use of Cominon Aceas be conditioned upon payment of parking or other charges by

34 Tenant Landlotd shaU. have the right to deny access to the Common Areas up to one (1) day per

35 year to prevent the dedication, of such areas to public use.

36 3.4. Giant of Utility Licenses.

37 (a) Subject to the reasonable writteD. approval of Landlotd as to location, Landlord

38 hereby grants to Tenant and its employees, agents, contractors and vendors, the nonexclusive right

"Palm Springs

Palm Springs Plaza

Pakn Springs, EL

Store No. 5296

6061. 1319/868020.7

17 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 23 of 126
1 by license to install, replace, mamtflifi and use UtUities of Tenant's choice serving the Store within

2 Landlord's Parcel. Such installation, maintenance and lepkcement shall sot uru-easosflbly mterfeie

3 with the operation of the Shopping Center.

4 (b) Upon prior notice to Landlord and subject to Landlord's approval as to location,

5 which approval shall not be unreasonably withheld, dekyed, or conditioned. Tenant, at Tenant s

6 election, shall have the right to install, at Tenant's expense: (i) a cart retention system within the

7 parking lot, utilizing wires or other embedded objects as a means of perimeter conttol provided that

8 Tenant shall repail any damage caused by such installation, and (ii) bollaids in ftont of the Store. If

9 required by Landlord at the time Landlord grants consent for the cart retention system, Tenant shall

10 agree to remove the cart retention system upon termination of this Lease.

11 3.5. Utility Rooms.

12 la the event any meters, controls 01 conduits for any UtUity system semag the Stote are at

13 any time situated outside the Store (the "Utility Room"), Tenant shall at aU. times have access to the

14 Utility Room and to controls and other conduits therein in common with Landlord and other

15 tenants affected by such Utility systems. No other parties (other than Landlord and the other

16 tenants affected by such Utility systems) shall have access to the Utility Room at any tune without

17 the consent of Tenant, which consent shall not be unreasonably witUield, delayed or conditioned.

18 Unless the Utility Room is solely within the control of Tenailt, Landlord shaU provide adequate heat

19 and security for the Utility Room and shall cause the Utility Room to be kept locked at all times.

20 Access to the Utility Room shall be restricted to an exteriot entrance situated m the rear waU of the

21 building in which it is located.

22 3. 6. Site Plan 01 Shopping Center Alterations.

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

3.6.1. Control Area and Inline Buildings. The iilte Plan is a material consideration for

Tenant entering into this Lease. No material change, alteration, deletion, or addition shall be made

to the Control Atea on the Site Plan nor shall any change in the facade of a &ont watt of any

premises in any Inlme Building be made without the prior written consent of Tenant, which consent

may be granted or denied in Tenant's sole and absolute discretion.

3. 6.2. Cointnon Areas.

(a) No change ot alteration shall be made 10. the Common Ateas of the

Shopping Centec outside of the Conbcol Area (to the extent Landlord has the legal ability to control

such changes or altecattons) which materially and advefsely affects any one or more of the foILowiog,

without the prior -written consent of Tenant (which consent shall not be unreasonably . withlield,

delayed or conditioned by Tenant if the change is not fflateriaUy adverse to Tenant): (i) the

configuration of the Common Areas, (u) methods of ingress and egtess, direction of traffic, lighting,

parking, or curbing in the Common Areas, 01 (iii) othei alterations in the Common Areas materially

affecting the visibility of the Store.

(b) Landlord shall not pennit any other occupant of the Shopping Centec

and/or any other person aiid/or entity to use the Common Areas (mduding Cnmmnri Areas within

"Palm Springs"

Palm Springs Pkza

Palm Springs, FL

StDrcNo. 5296

6061. 1319/868020.7

18- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 24 of 126
1 the Control Area) fol sales areas, whethet or not temporary or permanent sales areas, not fol any

2 parking of vehicles such as j-ental vehicles or delivery ttucks whereby such vehicles ate stored, displayed

3 or provided to customers in the Common Areas but not includmg customer parking. Notwithstanding

4 the foregoing, Aaron Rents, Bennett Auto Supply, and Party Supply ale permitted to paA rental

5 veUdes/stoie trucks in the area designated on Exhibit B as "Existing Tenant Auto/Truck Parking."

6 In addition, Haiboi Fteight has the right to have tent sales in the "Existing Harbor Freight Tent Sales

7 Area" designated on Exhibit B no mate than fout (4) times per yeai and for no mole than four (4)

8 days each- Landlord shall also mamtain appropriate and enforceable non-solidtadon policies with.

9 respect to the Common Areas.

10 3.6.3. Building Envelopes. No construction of any building, or remodelmg of any

11 building ia Landlotd's Parcel may occut except .within the Buildmg Envelopes and shall be limited in

12 size to the Leasable Floor Area as designated on Exhibit B unless othetwise requiied by applicable

13 law. Subject to conditions esdsting on the Effective Date, no storefront, stoleftont atchitectaral

14 feature and/or canopy of any building, othei than the Store, may extend into any sidewalk, drive

15 aisle 01 paiking field beyond what exists as of the Effective Date as depicted on Exhibit B.

16 3.6.4. Store Exteriof: laluie Buildine' Exteriots. Th.e use of the exterior walls of the

17 Stole shall be subject to the exclusive control of Tenant, provided that any changes made by Tenant

18 to the design or color of the exterior of die Store shall be harmonious -with the color, design and

19 aichitectural theme of the Shopping Ceatei. Further, Landlord may not altet the exterior of th.e

20 Store, including, but not limited to, the color of the exterior of the Store, without the prior written

21 consent of Tenant, which consent may be granted or denied in Tenant's sole and absolute

22 discretion. No alteration or change in the color or design of any exterior wall of any building within

23 the Shopping Center may be made without the prior written consent of Tenant, which consent shaU

24 not be uELceasonably withheld, delayed or conditioned. Notwithstandmg fh.e preceding sentence,

25 Tenant's consent shall not be requiied with respect to changes in the design and color of storefronts

26 (other than Tenant's), provided (a) such color and design changes are hannonious with the color,

27 design and architectural theme of the Shopping Center, and (b) the othet express height and

28 bmldiag litnitations set forth ia this Lease are not violated.

29 3. 6.5. Outparcels. Any Outpatcel(s) which is (are) not developed as of the date that

30 Tenant opens in the Store for business ("Undeveloped Outparcels") shall be continuously

31 maintained (or caused to be maintained) by Landlord, m a neat and sightly condition until such

32 Outparcel(s) is (ate) developed, at no cost or expense to Tenant (e.g., not as a Common Area

33 Charge or otherwise) m the following condition. Each Undeveloped Outparcel shall either be

34 completely paved or shaU be completely landscaped with lcw level shrubs or grass (such grass to be

35 mowed regulaxly to a height not to exceed eight inches (8")). Notwithstanding the foregoing

36 sentence. Landlord may landscape such Undeveloped Outparcel with trees if lequired by any

37 governmental agency; howevet, Landlord shajl tnaintain such ttees (mduding m a manner that does

38 not materially obstruct the site line of Tenant's stoie&ont) at no cost to Tenant

39 3.6.6. Tenant's Loading Docks and Loading Area. Landlord covenants and agrees that

40 Tenant shall have undisturbed access to and use of its loading docks and loading area. If access to

41 and/or use of Tenants loading docks and/or loading area is dist.ucbed or interfered with in any

42 tnateml respect for any teason, and such disturbance or intecference is not cured by Landlord within

"Palm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-19- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 25 of 126
1 one (1) Business Day following Landlord's receipt of written notice torn Tenant, then, in addition

2 to availing itself of any other remedies available at kw 01 in equity or under this Lease, Tenant may,

3 upon written notice to Landlord, teiminate this Lease at any time prior to the date such disturbance

4 or interfeience is cuted, or if Tenant has not tetminated this Lease, ajl Rent shall abate unril the

5 disturbance or interference is cured.

6 3.7. Dimensions.

7 Within sixty (60) days following the substantial completion ot Landlord's Construction

8 Obligations, but in any event not more than sixty (60) days after the Delivery Date, Landlord shall

9 cause the Store to be measiued and shall deliver to Tenant an architect's certificate stating the

10 Leasable Floor Area thereof. In the event that the Leasable Floor Area of the Store is less tfciaa the

11 size specified in Section 1.3.3 (the "Agteed Size"), Minimum Rent and all other charges shall be

12 proportionately reduced and the parties shall set forth the actual Leasable Floor Area of the Store,

13 the adjusted Minifflum Rent and other conections necessitated by the adjustment in Store size in the

14 Acknowledgment of Commencement in Exhibit E hereto. In the event that the Leasable Ploot

15 Area of the Store is mole than the Agreed Size, Minimum Rent and all other charges shaU be based

16 upon the Agreed Size. Nothing heiein shall be construed as penaittmg a material variance in

17 dimensions 01 area. For purposes of this Section 3.7, a material variance is any decrease in the

18 amount of Stole &ontage set forth in Section 1.3.3 or any decrease in the Agreed Size by more than

19 one-half (Yz) of one percent (1%) of the amount of square feet of Lesisable Floor Area. Landlord

20 shall simultaneously provide to Tenant a certificate &om the project atchitect as to the total Leasable

21 Floor Area in Landlotd's Parcel depicted on Exhibit B. Tenant shall have the right to dispute

22 through its own licensed architect the amounts so represented and, if so, any untesolved dispute

23 shall be resolved as provided in Section 20.2. Until the amounts ofLeasable Floor Atea in the Store

24 and in Landlord's Parcel have been finaUy detetfflmed. Tenant may defer payment of Minimuni Rent

25 (to the extent of the disputed amount) and the disputed portion of Tenant's Pro Rzta Shate of any

26 charges which require the use of Leasable Flooi Aiea for computarional purposes undet the teans

27 of this Lease (e. g., Taxes, insurance and Common Area Charges).

28 4. LEASE TERM

29 4. 1. Tenn.

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

31 specified in Section 1.5.

32 4.2. Commencement Date.

33 The Term shall commence on the Commencement Date as set forth in Section 1.4. 1.

"Palm Sptings"

Palm Springs PIa2a

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

20 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 26 of 126
4.3. Acknowledgment of Commencement.

2 Within ninety (90) days after the Commencement Date, Landlord and Tenant shall execute a

3 written aclmowledgment m the fonn attached hereto as Exhibit E, and by this reference it is hereby

4 incorporated heiem.

5 4.4. Option Periods.

6 Provided Tenant is not in default for which it has received written notice and an opportunity

7 to cure, Tenant shall have the right to extend the Term of this Lease (an "Option") for the number

8 of separate, consecutive additional periods ("Option Periods") which are speciEed iu Section 1.5.2,

9 on the teans and conditions set forth herein, except that the numbet of Option Periods remaimng

10 to be exetdsed shall, in each case, be reduced by one. If Tenant dects to exerdse an Option,

11 Tenant shall notify Landlord in writing at least two hundred seventy (270) days prior to the

12 expiiarion of the Term, or the then cuttent Opdon Period, as the case may be. If Tenant neglects to

13 timely exercise any Option, Tenant's right to exercise shall not expire or kpse unless Tenant fails to

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

15 exercise the Option. If Landlord does so notify Tenant, Tenant shaU have the right at any time

16 within fifteen (15) days after such notice to aodfy Landlord in writing of eithet Tenant's unqualified

17 and irrevocable exercise of its Option, or Tenant's unqualified and itrevocable waivei of its Option.

18 If Tenant fails to respond within such fifteen (15) day period. Tenant shall conclusively be deemed

19 to have waived its Option and this Lease shall terminate on the then expttation date of the Tean.

20 4.5. Gross Sales Tennination Right.

21 In the event the Gloss Sales &om the Store do not exceed Six Million Five Hundred

22 Thousand Dollars (ti 6,500,000) for the Third FuU Lease Year ("Measuring Period") (a Full Lease

23 Year commences Febmaiy 1 and terminates on the ensuing January 31), then Tenant shall have the

24 right to terminate this Lease upon three hundred sixty-five (365) days' prior wtitten notice to

25 Landlord (the "Gross Sales Termination Notice"), which notice must be delivered no later than one

26 hundred eighty (180) days following the end of the Third Full Lease Year and no sooner than the

27 hst day of the Third Full Lease Year. Tenant shall delivet to Landloid, concutrendy witli the

28 delivery of the Gross Sales Temunarion Notice, a Gross Sales Statement indicating the amount of

29 Tenant's Gross Sales during the Measuring Period. Said notice must specify the termination date,

30 which tennination date shall be no ktei than twelve (12) months foUowing the date of Tenant s

31 Gloss Sales Ta-mmation Notice. Tenant shall vacate the Store on ot before such termmarion date.

32 5. CONSTRUCTION AND ACCEPTANCE

33 5.1. Landlord's Construction Obligations.

34 S.1.1. Current

35 (a) On or befoie the Delivery Date, Landlotd shall, at its sole cost and

36 expense: ® remove all Hazardous Materials (including asbestos-conta ining materials) ftom the Store,

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

-21- 05/08/15

FGSIAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 27 of 126
1 including, without limitation, the walls, ceilings, structutai steel, flooring, pipes and. boilers, and roof

2 and roof coverings; (ii) complete any roof repail work required to ensute that the roof is in a watertight

3 condition pursuant to clause (e) of the Atricle 2 - Delivery Date definition; and (iii) perform the

4 following work to the Store:

5 (A) install all demising walls (tntaimum six (6) inch metal studs not

6 more than twmty-four (24) inches oa center extending from th.e floor to the uadecside of the roof

7 deck; with tracks and rmmeis set m acoustic sealant; with a continuous, fall height layer of wire mesh

8 installed on Tenant's side of the studs; with two (2) full height kyers five-eighths (5/8) inch type X

9 gypsum wallboard installed on both sides with staggered joints each kyer and side, taped and sanded;

10 and, with mintmum three and one-half (3-1/2) inch glass fiber acoustical insulatioa m. cavity; or, if

11 demising wall is block, rilt-wall or other constmcdon, such wall is to be acousrically sealed, designed by

12 the architect of record to meet a tnirmnum sound transmission coef&deat of fifty (50) and finished on

13 Tenant's side with five-eighths (5/8) inch type X gypsum waUboard on hat chamiels or studs not more

14 than twenty-four (24) inches on center, taped and sanded). Such demising walls must have a mmimutn

15 one (1) hour fire resistive rating; a miniinum £fty (50) sound fctansmission coefScient; must not have

16 any kind of penettarions; may not contain Utility piping of any kind including plumbing and electrical

17 whether serving Tenant or other tenant space or Common Area; must have aU. construction joints,

18 cracks and holes, if any, acousticaUy sealed on both sides; and, must not be used for the mounting of

19 motors, speakers or any other equipment or device producing sound or vibtarion;

20 (B) teconfiguie the store&ont of the Store in accoidance with the

21 Elevation Plan dated March 13, 2015, a copy of which is attached hereto as Exhibit M, and instaU

22 hurricane shutters in accordance with Tenant's prototype plans and specifications;

23 (C) install all Utilities in the Store as set forth in Tenant's prototype

24 plans and design guidelines including electdc, water, file sprmklets, gas and telephone lines and

25 separate metecs; provided, hcwevet, that Landlord may provide for Tenant's use a one and one-quarter

26 inch (1.25") gas line at the reaj: of the Building and aa existing two inch (2'r) water line stubbed outside

27 the Store in a mutually acceptable location. Additionally, Landlord may provide for Tenant's use the

28 existing sanitary line, provided that it is a four inch (4") sanitary line;

29 (D) separate existing electrical service and provide the Store with

30 not less than 600 amp, 3 phase, 4-wire 277/480 V electrical service with. main disconnect and tneter

31 box pursuant to Tenants prototype plans and design guideltnes; altematively. Landlord may provide

32 Tenant with the existing 800 amp, 277/480 V electrical service, provided that it is separate and

33 tD.dependeady serves the Stote;

34 (E) seal the floor slab (of both the existing floor slab and any new

35 floof slab) with sealant as specified in Tenants prototype plans and specifications, and provide Tenant

36 with a current moisture test on the floor slab and a certification by Independent Flocrf Testing and

37 Inspection, Inc. (or otfaec independent concrete skb inspection company approved by Tenant's

38 construction representative) of all floor slabs, whether existing 01 new, certifying that the float slab has

39 passed the following test standards: when ufflfcamly tested at one (1) test per one tfaousand (1,000)

40 square feet of area, no caldum chloride moistute test result may exceed the limit of five (5) pounds per

'Talm Springs

Palm Springs Plaza

Palm Springs, PL

Store No. 5296

6061.1319/868020.7

22- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 28 of 126
1 one thousand (1, 000) square feet; no alkalmity test result may exceed a pH of nine (9); and there shall

2 be no failure on any seventy-two (72) hour bond test;

3 (F) reconfigure and separate the fire spjmUet, user and momtoring

4 systems to sepatately and independently serve the Store. Landlord shall, install a fouj: inch (4") separate

5 and independent fire line from the riser with a separate flow and tamper switch for the Store. Space

6 1C shall have a sepaate independent fire sprinMer and file riser;

7 (G) deliver, to the extent m Landlord's possession or control,

8 detailed AutoCAD v.2004 or above shell plan fol the Building, and all reports pertaming to the Store,

9 including, but not Utnited to, roofuag, tnechaaical, electeical, HVAC and eavironmental reports; and

10 (H) all Utility lines (mcluding sprinklet lines) that run through the

11 Stole shall exclusively serve the Stole and Landlord shall remove any Utility lines (mduding spmkler

12 lines) that run through the Store that do not exclusively serve the Store and shall cut and cap any

13 sprinMef Haes serviag other ptemises at the detnismg walls so that the sprinkler system is independent

14 to the Store.

15 (b) If the Store is part of a larger premises existing as of the Effective Date,

16 Landlord shall be responsible, at its sole cost and expense, for any requirement (whethec governmental,

17 insurance or otherwise), for constraction of fire access, iacludiag comdots or fire doots.

18 (c) Landlord shall mdemnify, defend, protect and hold Tenant harmless fcora

19 all claims, demands and liabilities, including attomeys* fees and expenses, arising out of such

20 construction, remodeling, alteration or other work perfonned by Landloid, mduding but not limited

21 to, ckuns for defective work. The obligations of this Section 5. 1 are a tnateml considetation to Tenant

22 without which Tenant would not have entered into this Lease.

23 (d) Landlord shall perform, at its own cost and expense, any work required by

24 local laws, rules, regulations, ordtnances, or work imposed by any local governing body as part of any

25 approval process to the extent such work tavolves the Common Areas of the Shopping Center, any

26 Outparcel and/oi any part of the Shoppiag Centei: buildtngs outside of the Store so long as the cost of

27 such work does not exceed Fifty Thousand Dollars ($50, 000). In the event that such cost exceeds Fifty

28 Thousand Dollars ($50,000), then Landlord shall have the right to terminate this Lease upon thirty (30)

29 days' prior writtea. notice to Tenant, of complete such work. In the event that Landlord terminates this

30 Lease, Tenant shall have the right to vitiate Landlotd's teitninafion notice by agreeing to reimburse

31 Landlord for such costs that ate in excess of Fifty Thousand Dolkcs ($50,000). Tenant shall reimbucse

32 Landlord for such costs within thirty (30) days of Landlord's written request, which shall be

33 accompanied by invoices showing the total cost of such work, mclusive of the original Fifty Thousand

34 Dollars (1. 50, 000).

35 5. 1.2. Future Upgrades, it at any tune dunng the 'i'eroi, Landiotd underta. kes the

36 upgrading of the exterior of buildings in. Landlord's Parcel other than the Stole, then Landlord shall

37 be obligated to simiktly upgrade the exterior of the Building so that Landlord's Parcel presents a

38 uniform appeatance of quality, design and age. Landlord's failure to perform its obligations under

39 this Section 5. 1.2 within sixty (60) days following the completion of the general upgrading of other

Talm Springs

Palm Springs Plaza

Pa]m Springs, FL

Store No. 5296

6061.1319/868020.7

-23 05/08/15

EENAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 29 of 126
1 buildings in Landlord's Patcel shall constitute a material default under the provisions of this Lease

2 entitling Tenant to all remedies at law, m equity and/or under the teans hereof.

3 5.2. Construction Commencement.

4 Subject to delays caused by ^otce Majeure and Tenant Delays, tt 1-andlord fails to

5 commence to perform Landlord's Construction Obligations, prior to the Construction

6 Commencement Cancel Date specified in Section 1.4.3 of this Lease, then at any time thereafter, but

7 prior to Landlord's commencement of Landlord's Construction Obligations, upon thirty (30) days'

8 prior written notice to Landlord, Tenant shall have the right to terminate this Lease by notifying

9 Landlord in writing. Coramencement of Construction means the day that the contractor's workers

10 commence Landlord's Construction Obligations as described in Section 5. 1.

11 5.3. Completion of Construction.

12 Laadlotd shall use commerdaUy reasonable efforts to complete Landlord's Construction

13 Obligations and deliver possession of the Store to Tenant on the Intended Delivery Date, subject to

14 delays caused by Force Majeute and Tenant Delays.

15 5.4. Delivery Notice.

16 (a) The parties acknowledge the necessity for Landlord to provide Tenant with. the

17 Delivery Notice specified ia this Section 5,4 in otder that Tenant shall have adequate time to, among

18 other things, hire personnel, ajraiige ptomotioa, purchase and deliver merchandise, perfot tn Tenant's

19 improvements and fixbirization of the Store and enter iato ofher commitonients required to timely

20 occupy and conduct business -witfain the Store. Not less t-han thirty (30) calendar days prior to the

21 Delivety Date, Landlord must notify Tenant in writing as to when the Ddivety Date will occur (the

22 <;CDeIivety Notice'') in. the form. set forth in Exhibit G (a Delivejy Date must be on a Pecmitted

23 Delivery Day). Landlord shall undertake all due diligence and necessaty efforts to colnplete Landlord's

24 Construction Obligations, and satisfy the Delivery Conditions, and deliver the Store on the Delivery

25 Date specified in the Delivety Notice. Once Landlord deUveis its Delivery Date Notice to Tenant,

26 the Delivery Date is not subject to alteration, mcludiag due to an event of Force Majeure. In the

27 eveat Landlord does not timely satisfy all the Delivery Conditions by the Delivery Date stated in the

28 Delivery Notice (subject to delays caused by events of Force Majeure or Tenant Delay), Tenant will

29 suffer damages arising ficom Tenant's need for adequate and proper advance notice of deUvery. It

30 would be impractical or extremely difficult to fix actial damages in the event of Landlord's bleach

31 under this Section 5.4. Therefore, in the event of a breach by Landlord of its obligations under this

32 Section 5.4, the parties admowledge that the damages to be suffeted by Tenant in such event are

33 difficult to ascertain. However, after negotiation the parties have tnade theit best reasoa&ble estitnate

34 of such damage and have agreed that Landlord shall pay to Tenant, as liquidated damages (the

35 "liquidated Damages"), the sum of Fifty Thousand DoIIats ((50, 000) which sum shall be paid to

36 Tenant ia a lutnp sum. by Landlotd to Teaant upon demand at any time foUowtag a breach by

37 Landlord of its obligations under this Section 5.4. Nothing herein shall prohibit Tenant, in addition to

38 ckitning the Liquidated Dataages, from. postponisg occupancy and the comm.enceoient of payment of

39 Rent as specified in Section 5.5 hereof. In the event Landlord fails to pay to Tenant the Liquidated

40 Damages as required by this Section. 5.4(a), Tenant fiaay, at its option, deduct the fuU amount of the

Talm Springs

Palm Springs Plaza.

Pahn Springs, EL

Store No. 5296

6061. 1319/868020.7

-24- 05/08/15

FDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 30 of 126
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Liquidated Damages &om the Rent or other charges coming due until Tenant has fuUy recovered the

full amount of Liquidated Damages. In addition to Landlord's obligation to pay the Liquidated

Damages, Landloid shall remain obligated to diligently complete Landlord's Construction Obligations

and to satisfy the Delivery Conditions. Notwithstanding the foregoing, if Landlord fails to deliver the

Store on tfae date stated in the Delivery Notice due to a deky caused by an event of Force Majem-e or

Tenant Deky, then Landlord shall not be obligated to pay the Liquidated Damages for such delay,

provided Laadloid gives Tenant the notice required by Section 26. 13 m the case of Force Majeuce and

by the definition of Tenant Delay, as applicable, and provided Landlord uses diligent efforts to

complete Landlord's Construction Obligations and satisfy the Delivery Conditions. If Landlord does

not deliver a Delivery Notice, there shall be no liquidated Datnages, but Tenant shall have the

remedies specified m Sections 5. 5 and 5. 6.

(b) Landlord may tender delivery of the Store to Tenant on other than a Permitted

Delivery Day, however. Tenant shall be under no obligation to take delivery, 01, if Tenant does take

delivery, to ply Rent or any other charge, until the Commencement Date or as otherwise specified in

this Lease.

16 5.5. RoUovei.

Notwithstanding any other provisions of this Lease, Tenant shall not be obligated to accept

delivery of the State at any time other than on a Perfflitted Delivety Day. If (a) Landlord offers to

deliver the Store to Tenant on a date other than a Permitted Delivery Day, or (b) Landlord fails to

deliver a timely Delivery Nodce to Tenant, or (c) Landlotd delivers a Delivety Notice to Tenant and

thereafia- Landlord fails to timely deliver the Store to Tenant on the date specified in the Delivery

Notice, then, in each such event, the Delivery Date shall, at Tenant's option, be deferred undl the

next Permitted Delivery Day which occurs or is in effect after the sixrieth (60th) day after the actual

date Landlotd satisfies all Delivery Conditions and tenders possession of the Stole to Tenant.

Tenant s rights to defer the Delivery Date pursuant to this Section 5. 5 are teferred to herein as the

TtoUover" remedy and are in addition to Tenant's rights to tecovei Liquidated Damages pursuant to

Section 5.4 above, if applicable.

28 5. 6. Remedies Cumulative.

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

30 remedies at law, ot in equity, 01 under the terms of this Lease.

31 5.7. Construction Completion Cancel Date.

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

Store is not delivered to Tenant prior to the Construction Completion Cancel Date specified in

Section 1.4.4 of this Lease, except due to a delay caused by an event of Force Majeme 01 Tenant

Dehy, Tenant may, at its sole option, cancel this Lease by written notice to Landlord.

Notwithstanding the piecediag sentence, if the Delivery Date has not occucced by the date set forth

in Section 1.4.4 of this Lease solely because Tenant has not received aU. govermnental approvals fot

Tenant's plans for Tenant's Work (the "Approval Delivery Condition") and Tenant has not elected

to terminate this Lease, then Landlord shall have the right to teaninate this Lease upon thirty (30)

.Palm Springs"

Palm Springs Plaza

Paka Springs, FL

Store No. 5296

6061.1319/868020.7

25 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 31 of 126
1 days' written notice to Tenant and this Lease shall tenninate unless, prior to the expiration of the

2 thirty (30) day period, Tenant either (a) receives all governmental approvals for Tenant's pkns for

3 Tenant's Work and notifies Landlord that the Approval Delivety Condition has been satisfied; or

4 (b) Tenant notifies Landlord in writing that Tenant waives the Approval Delivery Condition as a

5 condition to delivery. In either such event. Landlord's termination notice shall be void and the

6 Delivety Date shall be the next Permitted Delivery Day follcroing the sa.tisfaction or Tenant s waive!

7 of the foiegomg Approval Delivery Condition.

8 5.8. Automatic Termination.

9 Subject to Tenant Deky, this Lease shall be automatically terminated if the Delivery Date

10 does not occut on 01: before the Automatic Termination Date specified in Section 1 .4.5 of this Lease

11 notwithstanding any Force Majeute events.

12 5.9. Entty Prior to Delivery Date.

13 Tenant shall have the right, without any obligation to pay Rent, to enter the Store for any

14 legal purpose, includmg to prepare for and commence Tenant's Work. Tenant agrees that it shall

15 diligently seek to avoid impeding the progress of Landlord's Work by such entty. No such entry by

16 Tenant shaU be deemed an acceptance of the Stole. Tenant hereby indemnifies Landlord, and

17 agrees to hold Landlord haimless from and against any and all losses, liabitiries, damages, injuries,

18 penalties, fines, costs, expenses and claims of any and every kmd whatsoever, mcludiag, without

19 limitation, attorneys' and consultants' fees and costs, paid, incurred or suffered by, or asserted

20 against. Landlord as a result of Tenant's entry into the Store prioi to the Delivery Date and exeidse

21 of any of its rights pursuant to this Section 5. 9.

22 5.10. Intentionally Deleted.

23 5.11. Additional Delivery Requirements.

24 5.11.1. On the Delivery Date. Tenant's occupancy of the Store shaU not constitute an

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

26 mattitenance obligations under this Lease.

27 5.11.2. After the Deliverr Date.

28 (a) Within sixty (60) days after the Ddiveiy Date, Landlord shall deliver all of

29 the following to Tenant

30 (i) A signed final inspection card, certificate of completion or

31 comparable pemut or certificate rektiag to Landlord's Construction Obligations;

32 (ii) A list of all contractors, subconttactors and suppliers, each of

33 which provided labor, services or materials in excess of Twenty-Five Thousand Dollars ($25, 000)

34 ("Major Contractors") for any separate category of service in the construction of the Store. By way of

35 example, plumbing, flooring, roofing, aud electrical services shall each be considered a separate

<EPa]m Springs

Palm Springs Pkza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

-26- 05/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 32 of 126
1 category of service. Said list shaU. contain the following iafottmtion about each contractor,

2 subcontcactor or supplier: name, business address, phone number (including area code), facsimile

3 number and e-mail address, contact person for the project, and state license aumber if required for the

4 execution of-work on the Store;

5 (iii) To the extent in Landlord's possession, equipment operation

6 manuals, catalogue data sheets and material safety data. sheets on all major equipment and/or fixtutes

7 used in the Store; and

8 (iv) For maintenance use, a one (1) gallon container of paint for each

9 color and sutface texhtte applied to the front of the Store as part of Landlord s Construction

10 Obligations, with each labeled with color and texture in addition to manufacturer's kbeL

11 (b) Within six (6) months after the Delivery Date, Landlord shall deliver to

12 Tenant all fully executed and dated wananttes and guarantees applying to the Store.

13 (c) If the items required in Sections 5. 11.2(a) and (b) above, are not furnished

14 to Tenant within the required tune periods, Tenant may defer payment of one (1) month's Minimum

15 Rent due under this Lease until such items are furnished to Tenant

16 5. 11.3. Until the foregoing items specified in Sections 5. 11.1 and 5. 11.2 have been

17 furnished to Tenant, Tenant may defer payment of Minimum Rent and Reimbutsements for one (1)

18 fuU month; provided, however, that Tenant shall first given Landlord written notice of Landlord s

19 failute to provide the fequiced items and thirty (30) days thereafter to provide same. Whea all of the

20 foiegomg items have been furnished to Tenant, Tenant shall pmmpdy pay to Landlord the amount

21 of Minimum Rent pieviously withheld by Tenant, if any.

22 6. RENT

23 6. 1. Minimum Rent.

24 6.1.1. Payment and Amount Cotninendng on the Commencement Date and

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

26 without demand 01 set off except as otherwise specified in this Lease, Tenant shall pay Minimum

27 Rent and the applicable Florida State Sales Tax to Landlord in equal monthly installments at the

28 rates specified in Section 1. 6 (the "Mmitmun Rent"). Muumuta Rent shall be payable in advance on

29 or before the 6tst (1st) day of each calendar month. If this Lease commences other fhan on the first

30 day of a calendar month, the first month's Minimum Rent shall be ptoiated accordingly and paid

31 with the Minuniun Rent for the first full month.

32 6. 1.2. Pkce of Payment. All Minimum Rent and other payments to be made by Tenant

33 to Landlord shall be sent to the place to which Landlord's notices are required to be sent, unless

34 otherwise ditected by Lajidlotd ia writing.

"Palm Sptings"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-27 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 33 of 126
6. 1.3. Required Co-Tena-ncy.

2 (a) Co-Tenancy Requirements. A "Reduced Uccupancy Penod" shafl occur

3 unless all of the following requirements are satisfied on the. Commencetnent Date and thereafter

4 throughout the Term: (i) the Required Co-Tenants spedfied in Section 1.7. 1, shafl be open in the

5 Shopping Center every customary Business Day for retail business at least from 10:00 a.m. to

6 6:00 p.m., except custofflaiy holidays; (ii) the Required Co-Tenants ate opetatmg m at least die

7 Required Leass&Ae Floor Area for each Required Co-Tenant specified in Section 1. 7. 1 under bona fide

8 leases of a mmimutn of three (3) years' duration as of the mception of such leases; and (iil) retail

9 tenants of the Shopping Center, including tfae Required Co-Tenants, are open and operating, except

10 customary holidays, undet bona fide leases in at least the percentage of the Leasable Floor Area of the

11 Shopping Center indicated in Section 1.7.2 (the Leasable Floor Area of the Store, the Ross Dress For

12 Less Lease, Space 1C, and the buildings located on the Outparcels designated on Exhibit B shall be

13 excluded &om the numerator and denoimaator of the fcacrion used to calculate such petcentage). For

14 purposes of calculating the percentages in this paragraph, the denominator of the fraction may not be

15 less than the LFA Minimum described in Section 1. 3.2(d).

16 (b) Commencement Date Reduced Occupancy Period. If a Reduced

17 Occupancy Period exists on the Commencement Date ("Commencement Date Reduced Occupancy

18 Period"), Tenant shall not be required to open the State for business (notwithstaadmg any conteary

19 provision in this Lease), and if Tenant does not opeu for business in the Store, no Rent shall be due 01

20 payable whatsoevet until and unless the Conunencement Date Reduced Occupancy Period is cured.

21 Notwithstanding the preceding sentence, if Tenant elects to open for business Airing a

22 Conanencement Date Reduced Occupancy Period, then Tenant's total obligation for Rent shall be

23 rephced by Substitute Rent which shall be payable within fifteen (15) days after the dose of each

24 calendar month during the Commencement Date Reduced Occupancy Period and continuing until the

25 expnadon of the Conunencement Date Reduced Occupancy Period. If the Commencement Date

26 Reduced Occupancy Period continues for a period of twelve (12) consecutive calendar months, then

27 Tenant shall either (i) commence paying full Rent, or (ii) tenninate this Lease upon thirty (30) days'

28 notice to Landlord (the "Reduced Occupancy Teanination Notice"), provided the Reduced

29 Occupancy Termination Notice is given prior to the expiration. of the Commencement Date Reduced

30 Occupancy Period.

31 (c) Secondary Reduced Occupancy PedocL If a Reduced Occupancy Period

32 occurs at any time after the Comraeacettient Date and aftec the satisfaction of die Requited

33 Co-Tenancy set forth in Section 1.7. 1 and Section 1. 7.2, and such Reduced Occupancy Period is not

34 the result of an Exempted Discontmuance as hoteiaa&ei defined ("Secondary Reduced Occupancy

35 Period"), Tenant's total obligation for Rent shall be lepkced by Substitute Rent which shall be payable

36 within fifteen (15) days after the dose of each calendar month during the Secondary Reduced

37 Occupancy Period and contmumg until tfae expiration of the Secondary Reduced Occupancy Period

38 (or earlier if Tenant tettnmates this Lease as hereinafter provided in this Section 6. 1.3(c)).

39 Notwithstanding the foregoing, if a Secondary Reduced Occupaucy Period occurs because Aid!

40 discontinues its operations in the Shopping Center, then Tenant's right to pay Substitute Rent shall not

41 commence until one hundred eighty (180) days after commencement of such Secondary Reduced

42 Occupancy Period, provided that such 180-day period shall run concuurently -with the period of any

43 Exempted Discontinuance. If the Secondary Reduced Occupancy Period continues for a period of

"Palm Springs"

Palm Springs Plaza

Palm Springs, EL

Stole No. 5296

6061. 1319/868020.7

28- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 34 of 126
1 twelve (12) consecutive calendar months (except in the event of an Exempted Disconrinuance), then

2 Landlord shall have the right to terminate this Lease by giving ninety (90) days' written notice to

3 Tenant wi&in tbitty (30) days of the end of the twelve (12) month period ("Landlord's Teimination

4 Notice"). Tenant shail have the right to vitiate Landlord's Tammation Notice by giving Laadloid

5 written notice ("Tenant's Vitiatioa Notice") no latet than the end of such 90-day period, mdicatmg that

6 Tenant shall resume payment of full Rent on tfae fiist day of the calendar month following Tenant's

7 Vitiarion Notice. The provisions of this Section 6. 1.3(c) shall apply to any subsequent Secondary

8 Reduced Occupancy Period.

9 (d) Unamortized Cost of Leasehold Improvements. In the event Landlord or

10 Tenant tamiaates this Lease puisuant to Sections 6. 1. 3(b) 01 (c) above, as applicable. Landlord shafl

11 pay to Tenant an amount equal to the Uaamordzed Cost of Tenant's leasehold improvements, which

12 sum shall be due and payable to Tenant within thirty (30) Business Days following the date of receipt

13 of the Reduced Occupancy Trrminarinn Notice or Landlord's Tamination Notice, as applicable, and

14 Landloid's receipt of Tenant's written certt&cation as to the value of the Unamortized Cost of Tenant's

15 leasehold, improvements.. If the Unamorrized Cost of Tenant's leasehold impi ovements is not timely

16 paid. Tenant may deduct the amount due from any payments due to Landlord, if any hereunder in

17 addition to and cumukrive with any other remedies avaikbk to Tenant at hw, in equity, ot under the

18 tenns of this Lease. Landlord's obligation for payment of the Uaamortized Cost of Tenant's leasehold

19 improvements shall survive the termination of this Lease.

20 (e) Exempted Discontinuance. An Exempted Disconrinuance shall mean the

21 closure of a tenant's stole because of Casualty, condemnation, repaits or lemodeliag for a period not to

22 exceed two hundred (200) days. A tenant's store which is dosed due to an Exempted Discontinuance

23 shall not be considered dosed for purposes of determimng whether a Secondary Reduced Occupancy

24 Period is in effect (and the Leasable Floor Area of such tenant's store shall not be calculated in the

25 numeiator or the denominator of the faction specified in Section 1. 7.2) from the commencement of

26 the Exempted Discontinuance until the eariier of: (i) the expnarion of such two hundred (200) day

27 period; or (ii) the expiration of the Exempted Discontmuance.

28 (f) Landlord Reportinp Requij-ements. Within sixty (60) days following

29 Tenant's written request. Landlord shall provide Tenant -with a Shopping Center tenant mstei and

30 occupancy/vacancy teport for the entite Shopping Center which shall mdude the Leasable Floor Area

31 occupied by each tenant and the perceutage of Leasable Floor Atea of the Shopping Center occupied

32 by aU operating retailers in the Shopping Centet ("Co-Tenancy Reporf') certified as current as of the

33 date of the Co-Tenancy Report, plus a Landlord's Co-Tmancy Certification certified as cuttent as of

34 the date of the Co-Tenancy Certification. In the event Landlord fails to provide the Landlord's

35 Co-Tenancy Certification and/or the Co-Tenancy Report within the time periods specified above and

36 such faBure continues for thirty (30) days following Tenmt's written request thetefol, Tmant may

37 defer any payments relating to Rent until such time as the Landlord's Co-Tenancy Certification an(Vor

38 Co-TenaacyReport is received by Tenant. Tenant shall pay tfae amount due .withmtUity (30) days

39 following Tenant's tecdpt of the Co-Tenancy Report and the Landlord's Co-Tenaacy Certification.

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

29 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 35 of 126
6.2. Reimbiusements.

2 In addition to the Mmimum Rent described in Section 6. 1, Tenant shall be Jresponsible to

3 pay Tenant's Pro Rata Share of Common Atea Chatges as described tn Section 7.4.1, the Tax Bill as

4 described in Section 8.2.1, and the Special Form Policy premium as descnbed in Section 9. 1.4.

5 6.3. Other Payment Provisions.

6 6.3.1. Late Payment. Any sum including Rent accruing to Landlord or Tenant under

7 the provisions of this Lease which is not paid within ten (10) days following written notice that such

8 sum is past due ('Tayment Notice Period"), shall bear interest at the Legal Rate from the expitarion

9 of the Payment Nodce Period to the date paid unless the past due sum is disputed pursuant to

10 Section 6. 3.3.

11 6.3.2. Timely BiBing of Charges. All charges due from Tenant to Landlord for which

12 Tenant must be billed by Landlord shall be billed within twenty-four (24) months after the dose of

13 the calendai year in which the charge is incurred by Landlord, or Landlord will have waived its right

14 to reimbursemen. t as otherwise provided in this Lease.

15 6.3.3. Disputed Sums. In the event that at any tune during the Term a bona fide

16 dispute arises with respect to the atnount due for any Reunbutsements or othet charges claimed by a

17 party to be due, or with respect to Tenant's payment of Substitute Rent or Tenant's non-payment of

18 Rent pursuant to Tenant's right to pay Substitute Rent or to defer, wifhliold, deduct ot offset Rent

19 in accordajice with this Lease, including, but not limited to, pursuant to Section 6. 1.3(f), Section 11.2

20 and Section 2CU.2(b), the party claiming a. dispute shaU. notify the other party in writing of the basis

21 for the dispute. Pending the resolution of the dispute between the parties by litigation or otherwise,

22 any undisputed pofdon. of any Reimbursements or othet ch.atges, Substitute Rent, or Rent, as

23 applicable, shaU. be paid by Tenant or Landlord, as the case may be, and the disputed portion of any

24 Reitnbutsetnents or other charges, Substitute Rent, or Rent, as the case may be, may be withlield

25 pending tesolution of the dispute. Tenants withholding of the disputed amount, or offsetting of an

26 amount previously paid in the event of a bona fide dispute shall not be deemed a default by Tenant

27 under the teems of this Lease. Upon resolution of any dispute, the obligated party shall pay to the

28 other the remaining sum. liquidated as due (if any) with interest thereupoa at the Legal Rate.

29 6.4. Gross Sales Statement for Piuposes of Calculating Substitute Rent.

30 6.4. 1. Gross Sales Statement In the event Tenant pays Substitute Rent pursuant to

31 clause (b) of the Substitute Rent definition in Article 2, within fifteen (15) days after the close of

32 each calendar month. Tenant shall submit to Landlord a statement indicating the amount of its

33 Gross Sales for the previous month. Landlord covenants to keep such mformation confidential,

34 except fot infortna.tion ptovided to its accountants or lenders, or if required pursuant to any

35 litigation between tih-e parties hereto or as requtted by law.

36 6.4.2. Maintenance of Records. In the event Tenant pays Substihite Rent during any

37 Lease Year, Tenant shall maintain adequate records for a period of two (2) years after the close of

38 each such Lease Year for the purpose of allowixig Landlord to verify the reported Gross Sales for

*Ta]m Springs"

Palm. Springs Pkza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-30- 05/08/15

FMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 36 of 126
1 such Lease Year. At any time within said two (2) year period, upon the written request of Landlord,

2 Tenant shaU provide written dociunentation ofTenanfs Gross Sales to Landlord, the confidentiality

3 of which information shall be maintained by Landlord in accordance -with Section 6. 4. 1 above. If,

4 during such two (2) year period, Landlotd has Jremaiaing questions legatdtng Tenant's Gross Sales,

5 then Landlord or its agents may inspect such records at Tenant's maia office specified in

6 Section 1.2.2 hereinabove during Tenant's normal business hours. If such inspection or audit

7 discloses an underpayment of Substitute Rent, Landlord shall prompdy deliver a copy of the audit

8 teport to Tenant for its review. Within thirty (30) days thereafter, Tenant may, by written notice to

9 Landlord, object to the conclusions or process of the audit report stating its conclusions as to the

10 amount due, if any. If Landlord disputes Tenant's conclusions, then within ten (10) days of receipt

11 of Tenant's objection to its audit report. Landlord may institute the appropriate alternative dispute

12 resolution under Section 20.2 of this Lease. If Tenant agrees with the audit report, then it shall

13 promptly thereafter pay to Landlord the amount of the underpayment. In the event an adjustment

14 is tequiced because of an understatement of Gross Sales in excess of three percent (3%), and

15 additional Substitute Rent is due. Tenant shall reimburse Landlord for Landlord's reasonable

16 expenses incutced in conducting such iaspecdon or audit.

17 6.4.3. No Representation. Landlord acknowledges that Tenant has made no

18 lepiesentadon as to the Gross Sales which may be generated &om the Store.

19 7. COMMON AREA MAINTENANCE

20 7. 1. Landlord's Obligation to Maintain Common Areas.

21 7.1.1. Maintaia Common Ateas. Landlord shall maintam aU Common Aceas in. first

22 class condition, fepaic and cleanliness, mcluding ice and snow removal, and sidewalk steatn cleaning

23 and shall keep the Common Ateas free of any material impediments and open for reasonably easy

24 and safe movement within die Cocunon Areas. Landlord shall keep the Conunon Areas weU

25 lighted for a period of sixty (60) minutes foUowmg the end of Tenant's business hours in the Stole

26 and thereafter maintain reasonable security. Any costs iacutted for lighting the Common Areas

27 other than as spedfied in the preceding sentence shaU be borne solely by those tenants lequesting

28 die additional lighting hours, and costs mcuned in tespect to additional lighting shall not be

29 includable as Cotnmon Area Chatges. No construcdoa or consbniction-telated activity shall be

30 permitted m the Comtnon Areas, except fot emetgency repairs (or necessaty repairs which cannot

31 be delayed) diligently pursued, during the period ftotn Octobei 15 of any year to January 2 of the

32 ensuing year, without the prior written consent of Tenant, which consent tnay not be unreasonably

33 withheld and may include conditions designed to eliminate intetfereace with the operation of the

34 Shopping Center or the effect of such activity upon Tenant's business.

35 7. 1.2. Common Area Metering. The Common Areas shall be served by meters which do

36 not serve any other areas of the Shopping Center. Landlord shall cause all Utilities for the Common

37 Areas to be separately meteted from those of Tenant and/or the Store.

38 7. 1.3. Holiday Event Landlord shall have the right, but not the obligation, not more than

39 once in any Lease Year to conduct a one (1) day holiday event ia the primary parking area of the

"Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

31 05/08/15

HNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 37 of 126
1 Shopping Center between the hours ot ii:UU a.m. and 12:00 p.m., provided that such event does not

2 obsttuct Tenant's and Tenant's customers* iagress and egress to the Store or is conducted in the

3 patkiag field bounded between the Store and Congress Avenue and the main drive aisle and 10th

4 Avenue North. Furthermore, any profits derived &om such Holiday Event shall be applied to the

5 Cotamon Area to offset Common Area Chatges and Tenant shall have no obligation to pay for any

6 costs (except as may otherwise be expressly provided for ia this Lease), included, but not lunited to,

7 setup and cleaning associated with the Holiday Event

8 7.2. Tenant's Pro Rata Share.

9 Tenant's Pro Rata Share of Common Atea Charges is defined as that ttaction of Common

10 Area Charges the numeratoj - of which is the Leasable Floor Area in the State and the denommatoi of

11 which is the Leasable Floor Area in the Shopping Center; provided, howevet, in no event shaU the

12 denominator of such fi'a.cti.on be less than the Mmimum Leasable Roor Area set forth ia.

13 Section 1.3.2(a).

14 7.3. Definition of Conunon Area Charges.

15 7.3.1. Indyded Charges. The following costs reasonably incucred during the Term for

16 tnaintenance and repaic of the Cominon Areas shall be included as Cotntnon Area Charges:

17 maintaining and repairing the paridng area of the Common Areas (including slurcy-sealing, lestripmg

18 patking spaces and filling potholes), sidewalks and loadiag zones (whether or not such sidewalks and

19 loading zones are Common Areas), provided that if no other tenant or occupant's loading zones are

20 maintained by Landlord, then Tenant shaU. teitnbutse Landlord's costs incurted to tnaiatain Tenant's

21 loading zone outside of the Store, payable together with. its Pro Rata. Share of Common Acea

22 Charges, provided Landlord itemizes the billing for such charges; Shopping Centet security;

23 cleaning, sweeping and other janitorial services; samtadon; tnaiatenance of Cominon Atea refuse

24 feceptacles; replaating existing laxtdscaping; maintenance of ditectional signs and other tnarkers;

25 electricity to light the Common Ajceas during the hours required by Section 7. 1 (excluding other

26 tenants* after-hours lighting); electdcity to light and maintenance ofpylon identifying the Shoppmg

27 Center (but not other pyloa signs on which Tenant's signage does not appear) as weU. as lighting for

28 Tenant's signs on such pylon signs ^Tenant shall be responsible fot the tnaintenaiice of its sign

29 panels oa the pylon signs at Tenant's sole cost and expense); repaic and maintenance of lighting

30 fixtures; replacement of lighting elements; any repair and maintenance of other UtUify systems to

31 serve the Common Aceas; premiiuns of Landlord's liability msurance fot the Common Ateas, ttash

32 removal for the Common Areas of Landlotd's Patcel (Tenant shaU pay for the ttash removal for the

33 Store, using the trash removal conttactor required by the City of Palm. Springs, if any; if trash

34 removal for any tenant ot occupant of the Shopping Center is not segregated from the trash removal

35 for the Common Ateas, then Landlotd shall reasonably allocate the cost attributable to the

36 Common A±eas and only those costs shall be included ia the Cotnraoa Area Chaiges for which

37 Tenant must pay its Pto Rata Share); and the admmistrative fee described in Section 1.8 which may

38 be included only to the extent assessed against the tetnaiader of Common Acea Charges after

39 excluding therefrom liability msurance premiums, Utilify costs, secudty costs, tnanageinent fees paid

40 to third parties and capital expeaditues, if any are expressly authorized by this Section 7.3. 1. Taxes

41 as defined in Aiticle 8, and Property Insutrance pursuant to Secdon 9. 1 are not iacluded as Corntnon

42 Area Charges, and, accordingly, ate not included in the computadoa of the adnaioisttafive fee

*TaIm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

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specified in Section 1. 8. Notwifhstandmg the exclusion of capital escpendituces &om Common Area

Charges as set forth m clause (3) of Section 7. 3.2 below, Landlord shall be permitted to include in

Common Area Charges capital expenditures which reduce Common Area enetgy costs, maintenance

costs and repair costs or other Common Area Charges, provided that (a) the portion of such capital

expenditures included as Common Area Charges in any Lease Yeai shall be the annual atnount

which results from amortization of the capital expenditure with an interest rate of five percent (5%)

per annum over the useful life of the improvement for which it is incuned as determined in

accordance with GAAP and customary first class shopping center maintenance procedures in the

area of the Shopping Center, and (b) provided further that in no event shall the Common Area

Charges payable by Tenant which includes such aanual amortization amount exceed the Common

Area Charges that would have been payable by Tenant had the capital expenditure not been made

("Peimitted Capital Expenditure"). Furdiei notwithstandmg any provision to the contraty

contaiaed in this Lease, Common Axea Charges shall include a portion of the capital expenditures

incuaed by Landlord with respect to parking lot repaving perfonned after the expiration of the

Initial Term of this Lease. The portion of such parking lot repaying capital expenditures included as

Common Area Chatges in any Lease Year shaU be the aamial afflount applicable to such Lease Year

which results &om amortization of the capital expenditm-es on a sttaight-lme basis over the useful

life of the improvement as detamiaed id accordance with GAAP and customary first ckss shopping

center maintenance procedures in the area of the Shopping Center with interest at a rate of five

percent (5%) per annum.

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21 7.3.2. Excluded Chanms. In no event shall Common Area Charges include any of the

22 following: (1) costs of original construction (as distinguished from mamteaance and repait) of the

23 Shopping Center 01 any expansion, remodeling or renovation theteof; (2) principal and/oi tnteiest

24 payments on any financing for the Shopping Center or any portion thereof at rental under any

25 ground lease 01 other underiying lease; (3) capital expenditures (i. e., expendituies which, in the

26 customary course of mamtmance practice for shopping ceuters similat in type and locarion to that

27 of the Shopping Center, do not nscut annually) induding, but not limited to, repaving, pettomatting

28 or lesurfacmg of the parking area of the Common Areas; (4) the costs of cotrecting defects in the

29 design or construction of the Shopping Center, or tepatt and/oi replacement of any materials 01

30 equipment required as a result of such defects; (5) any expense resulting from deferred maintenance

31 or the negligence of Landlord, its agents, servants or employees, or any additional expense incuaed

32 as a direct tesult of Landlord's failure to use competitive bidding to mmimize expenses to the extent

33 possible without dettactmg from the standards of a shopping center compata.ble to the Shopping

34 Center; (6) the cost of any repair to remedy damage caused by or lesultmg from the negligence of

35 any other tenant(s) in the Shopping Center, including thett agents, servants or employees;

36 (7) Ieserres for andcipated futatte expenses; (8) legal and other fees, leasing commissions, advertising

37 eixpenses and other costs incutred in connecrion -with development, leasmg or opeiation of the

38 Shopping Center, or ia coimecdon -with negotiations or disputes with tenants, occupants or

39 prospective tenants or occupants, 01 legal fees incurred in connection with this Lease; (9) cost of

40 repairs or other work occasioned by file. Casualty or other insuiable risk ot the exercise of the right

41 of eminent domain; (10) expenses incuned in the build out, renovation, alteration, imptovement,

42 decoration, or redecoarion of any portion of any building in the Shopping Centet (except for powej:

43 washing, graffid removal and associated spot repamtmg, which may be included in Common Atea

44 Charges); (11) any items for which Laadloid is entitled to be reimbucsed or compensated, including,

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

StoteNo. 5296

6061. 1319/868020.7

-33 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 39 of 126
1 without limitation, conttactors' watranty or right of reimbursement itom any tenant or occupant of

2 the Shopping Centet, but excluding contributions for Common Area Charges; (12) any bad debt

3 loss, rent loss or reserves for bad debts or tent loss; (13) cleaning, sweeping, and removal of debris

4 within the scaring area of any restaurant; (14) expenses in connection with services or other benefits

5 of a type which are not provided Tenant but which are provided only to or for anoth. er tenant or

6 occupant of the Shopping Center; (15) any interest, kte charges, or penalties mcun-ed as a tesult of

7 Landlord's failure to pay any bill as the same shall become due; (16) any and all other costs

8 associated -with the operation of the business of Landlord, iatendiag by this exclusion to distinguish

9 the same from the costs of matntenance and repajr of the Common Areas (excluded itecns shall

10 specifically include, but shall not be limited to, fotmadon of the Landlord entity, intemal accounting

11 and legal matters, indudmg, but not limited to, preparation of tax letutns and financial statements

12 and gathering of data therefor, costs of seUing, syndication, financing, mortgagmg or hypothecating

13 any of LandlorcTs interest in the Shopping Centet, and costs of any disputes between Landlord and

14 its employees); (17) salaries and bonuses of officers and executives of Landlord and compensation

15 paid to clerks, attendants or other persons in cotnmercial concessions opetated by Landlord,

16 (18) advertising and promotional expenditures or customer serpices; (19) costs, fines, or fees

17 incurted by Landlord due to viohrions of any federal, state or local law, statute or ordinance, or any

18 rule, regula. tion, judgment or decree of any govecmnental nde or authority; (20) any costs or

19 expenses associated with the removal, cleanup or remediation of any Hazardous Matedals (as

20 hereinafter defined) £tom the Shopping Center as required pursuant to applicable Enviroumental

21 Regulations (as hereinafter defined), any restoration in coanectlon tlierewith. or compliance with any

22 Environmental Regulations; (21) the cost of compliance with. any other Requirements (as hereinafter

23 defined) (mduding, without limitation, the Americans With DisabiUries Act) which ale capital in

24 natice, unless such capital costs are permitted under Section 7.3. 1; (22) the cost of any work or

25 services perfolffled fot any facility other than the Shopping Center; (23) any costs representing an

26 amount paid to a person, firm, corporation 01 other entity lekted to Landlord which is in excess of

27 the amount which would have been paid ia the absence of such relationship; (24) management,

28 superrision, acbninistcative and overhead costs (iacLuding, but not limited to, office space,

29 equipment. Utilities, and personnel) other than the fee descdbed in Secdon 1. 8; (25) the cost of

30 acquiring sculptures or other att objects and costs of decorative monuments; (26) costs of tools and

31 equipment for operation, repait and tnaintenance of the Common Area which are not customarily

32 expensed in the year phced in operation pursuant to GAAP; (27) costs incutred in the construction,

33 mainteuance, repair or teplacement of any buildings in the Shopping Center (whether telaring to

34 structural ot nonstmctutal, exterior 01 interior portions of such buildings), spedficaUy excluding

35 from Common Area Charges any costs incurred for mainteDaace, lepatt. Utilities or any other costs

36 with respect to restrooffls or restroom facilities, or sigus which identify the Shopping Center (except

37 for signage required to be maintained by Landlord pursuant to Section 24.3); (28) any costs to clean

38 up or repair the Commoa Area as a result of promotional activities or because of construction,

39 maintenaiice, or reconstruction of buildings m the Shopping Center, (29) pfemiutns for liability

40 insurance of any kind except as specified in Section 7.3. 1 above; (30) costs mcutted by Landlord as a

41 result of any claim covered by the Insurance which Landlord is required to maintain undet this

42 Lease, mcluding deductible amounts; (31) any expense associated with "food courts" as that term is

43 described in Article 2 - "Common Areas", such as maintenance, tepait, purchase of personal

44 ptopetty or any other cost related thereto; (32) if Tenant is paying any charges for sewer undei the

45 provisions of Article 10, sewer charges, whether separately billed or included with the hilling for

'Talm Sptmgs"

Palm Springs Phza

Palm Springs, PL

Store No. 5296

6061.1319/868020.7

34- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 40 of 126
1 water charges fcora the Utility provider, in which latter case, the charges for sewer shall be separated

2 out; (33) should theie be commercial offices withia the Shopping Center which occupy, in the

3 aggtegate more than five thousand (5,000) square feet ofLeasable Floor Area, the charges incurred

4 in respect of such office facilities such as, by way of example, elevator charges, common haUways,

5 electricity, water and Janitorial expenses; (34) any uucetmbursed Com.mon Area Charges arising from

6 a reimbursement to Landlord £com an occupant of the Shopping Center of less than its

7 mathecna.ti.cal pro rata shate tb.eteof calciilated based upon Leasable Floor Area occupied by such

8 occupant rekrive to the Leasable Floor Area of all occupants of the Shopping Center; (35) the cost

9 of promotional and seasonal decofatioas, mcludmg the purchase, leasing, storage, instaUfltion and/or

10 removal and clean-up of same; (36) costs of replacing, repairing, ot restoring the Shopping Center,

11 or any portion thereof, in the event of a Casualty of any type, regardless of whether insurable or

12 unmsutable, insured or umnsuied; (37) rent or other costs for security offices or a police station ia

13 the Shopping Center; (38) Intentionally Deleted; (39) costs for the construction of any pylon or

14 other signs for the Shopping Center, except as may be set forth in Section 24.3; and (40) any costs or

15 expenses taciured by Landlord in sponsoring events in or upon the Shopping Center or ia creating a

16 ccbrand" or name recognition for the Shoppiag Center. Additioaally, Tenant shaU have no

17 obligation to conbabute to a marketing fund or merchants' association for the Shopping Centei.

18 7.4. Payment of Tenant's Pro Rata Share.

19 7.4.1. Paym.en.t- Provided J_,andlord maintams the Cotnmon Ajreas as specified ia.

20 Section 7.1, cotntnencing on the Cotamencement Date, Tenant shall pay Tenant's Pro Rata Share of

21 the Coaunon Area Charges in. the manner set forth herem.

22 7.4.2. Estimated Payments. Landlord shall have the right, once a year, to estimate

23 Cotnmoa Area Chatges foi: the ensuiag calendar year, and Tenants share thereof, based on the

24 previous year's achial expenditutes and Landlotd>s reasonable projections for the foUowing calendar

25 year (except if the Shopping Centet has not been operated for one (1) year or more as of the

26 Commenceinent Date of the Term, Cotntnon Area Charges shall be based on. Landlord's reasonable

27 estimate thereof based on typical charges for sitnilar shoppi ng centers . within five (5) miles of the

28 Shopping Center), and Landlord shall so inform Tenant of such piojections m writing along with the

29 Aiuiual Statement referred to below. Notwithstanding the preceding sentence, in the event

30 Landlotd fails to retain its records of Common Area Charges as tequia-ed by Section 7.4.7 and

31 records of Cofflmoa Area Charges for the immediately pteceding calendar year are not available to

32 Tenant, then, tn addition to all other remedies available to Tenant at kw 01 in equity. Landlord shall

33 not be peanitted to inaease its estimate of Common Area Charges for the foUowiag calendar year

34 and Tenant shaU. be under no obligation, with respect to such calendar year to pay more than the

35 amount payable by Tenant for the last caleadar year for which Landlord's records of Common Area

36 Charges were reviewed and approved by Tenant Begummg with the first (1st) day of the first

37 calendar moatih of the Term following Tenant's receipt of LaELdlord's written estimate of its aimual

38 obligation in respect of Common Area Chafges (but not in any event before thirty (30) days after

39 receipt thereof). Tenant shall mclude one-twelfdi (l/12ttl) of its annual obligadons set forth in such

40 estimate with each payment of Mmimum Rent for the ensuing twelve (12) month period. After the

41 first calendar yeai, any proposed increase in total Common Area Charges in excess of five percent

42 (5%) over the previous year's expenditures must be justified by iteruLzation of each element of

43 charge, together with (a) a written, explanation of the reason (i.e., incceased scope of work, defea'ed

'Talm Springs"

Palm Springs Pla2a

Palm Springs, PL

Store No. 5296

6061.1319/868020.7

35 05/08/15

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work, etc.) for the increase m excess of five percent (5%), and (b) copies of the competitive bids

described in Section 7. 4.3 below. Such justification shaU be piotnpdy ptovided by Landlord, but

only upon Tenant's reasonable request. The requirement for bids shall also apply at any time an

element of the Common Atea Charge is proposed to increase more than ten percent (10%) in any

yeat, in rekrion to the cost for such element for the previous twelve (12) month peaod, whether the

resulting proposed Common Area Charges fot the subject year wffl be m excess of five percent (5%)

over the amount paid by Tenant for the previous twelve (12) month period. In the absence of the

tequued justification of the proposed inccease in Common Atea Charges in excess of five percent

(5%), Tenant shall be under no obligation m respect of such year to pay more than the amount

payable by Tenant for the previous twelve (12) months plus five percent (5%).

7.4.3. Landlord's Contracts. All Landlord's conbtacts with third patties for work,

service or materials, the cost of which may be included in the Common Area Charges, shaU include

a detailed description of the work, service, or material to be provided by the contdctol. No such

contracts shall involve a duplication of the work or service provided by other contractors, then

employees or agents 01 the employees of Landlord. Landlord shall maintain detailed job

descriptions for aU employees employed by Landlord for the purpose ofperfoiming Common Area

maintenance activities whose salaries, wages and/or benefits may be included m Common Area

Chaiges. Landlord's employees shall not provide duplicate services to those provided by Landlord's

third party conteactors. Except for Landlord's Bash collection contract with Republic Services and

any subsequent conttactol that Landlord is also lequited by the City of Palm Springs to use for trash

cohecrion at the Shopping Center, any individual thitd party coateact in excess of Fifty Thousand

Dollars (t50, 000) shall be awarded by competitive bidding &om at least two (2) bona fide third party

contractors.

7. 4. 4. Intentionally Deleted.

7.4.5. Annml Statement. Within one hundred twenty (120) days following the close of

each calendar year. Landlord shall submit to Tenant a statement ("Annual Statement") in which

Landlord shall set forth in reasonable detail the actual expendihires for Common Area Chatges for

such calendar yeat and Tenant's Pro Rata Shaie of Common Area Charges thereof. The Annual

Statement shall be certified by an authorized agent of Landlord to be coarect. Within twenty (20)

days of Tenant's request. Landlord shall provide Tenant with copies of all invoices and other .watten

evidence of Common Area Charges ("CAM Evidence") paid by Landlord. In the event Landlord

fails to provide such Annual Statement or CAM Evidence within the time periods required hereby,

Tenant may thereupon continue to make cuttent payments without increase unril such time as the

Annual Statement is teceived by Tenant, and Tenant shall pay the amount due within thirty (30) days

thereafter. Landlord may elect to provide the Annual Statement and CAM Evidence in electronic

format provided such electrofflc files are reasonably organized.

7.4.6. ReEQaaliation of Annual Statement If the Annual Statement indicates that

Tenant's payments of estimated Common Area Chatges exceeded Tenant's total obligation rektmg

to such calendar year. Landlord shall accompany said Annual Statement with a memo crediting

Tenant's account m the amount of such overpayment or, if the amount of the credit exceeds two (2)

fall months' estimated payment for Common Area Chalges, Landlord shall accompany said Annual

Statement -with a payment to Tenant of the amount of such excess. If the Anuual Statement shows

'Talm Springs

Palm. Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020,7

-36- 05/08/15

EFNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 42 of 126
1 that Tenant's payments of estimated Common Area Charges were less than its total obligation

2 relating to such calenckr year. Tenant shall pay the diffetence to Landlord within foriy-Eve (45) days

3 of Tenant's receipt of the Annual Statement. Notwithstanding the foregoing, if at the time Landlord

4 delivers such Annual Stateinent to Tenant, Tenant is audituig Landlord's records of Common Aiea.

5 Charges, any adjustment (if required) and any credit or payment shall be made upon conclusion of

6 such audit.

7 7.4.7. Audit Tenant shaU. have the tight, not more fcequendy than once in any

8 calendar year, to audit (the "CAM Audit") all of Landlord's or Landlord's agent's records pertaining

9 to Commoa Atea Ch^iges with a repfesenta. tive of Tenants choice. Landlord shaU retain its records

10 regarding Common Area Charges for a period of at least three (3) years following the final billing for

11 each calendar year during the Temi. Landlotd covenants and agrees that in the event Landlotd

12 assigns this Lease in connection with a transfer of the Shopping Center, Landlofd shaU deliver to the

13 assignee all of the records of Common Area Charges required to be retained by Landlord pursuant

14 to this Lease. In the event Landlotd fails to tetain its records as tequited by this Secdon 7.4.7,

15- Landlord's failure shall constitute a default by Landlord under this Lease and, in addition to all other

16 remedies available to Tenant at law or in equity. Tenant may elect to pay ao more than Tenant's Pro

17 Rata Share of Cointnon Area Cha-cges payable by Teaant for the last calendat year for which

18 Landlords records of Common Area Charges were reviewed and approved by Tenant, or for which.

19 Tenant did not review such records and Tenant's audit rights have expired.

20 At any time during such three (3) yeai period, upon at least thirty (30) days' advance nodce

21 to Landlord, Tenant may conduct a CAM Audit The CAM Audit shall commence on a date (the

22 Audit Date") of which Tenant has notified Landlord not less than thirty (30) days in advance. In

23 the event of cancellation of the CAM Audit by Landlojtd, Tenant shall be relieved of its obligation to

24 make monthly pa.ym.eats of the estmia.ted Common Acea Charges until the first to occur of twelve

25 (12) months thereafter, 01 until the CAM Audit is perfonned and completed. In addition, in the

26 event Landlord cancels the CAM Audit less than ten (10) days prior to the scheduled Audit Date for

27 reasons othet than an event of Force Majeute, Landlotd shall reimburse Tenant for all costs incurred

28 by Tenant, such as, for example, the cost of nonrefundable airfares, resulting from Landlord's

29 cancellation of the CAM Audit Landlord shall reimburse such costs to Tenant -withta ten (10) days

30 foUowing receipt of Tenant's invoice therefor, and if Landlord fails to do so. Tenant may deduct the

31 full amount of such costs fcora any subsequent Rents coming due under this Lease. Ao.y ovetbilling

32 discovered m. the course of the CAM Audit shall be credited to Tenant's account (togethet with.

33 interest at the Legal Rate) or, if the amount of the credit exceeds two (2) full taonth's estimated

34 payments for Common Area Charges, such overbilled am.ount shall be refunded to Tenant (together

35 with Interest at the Legal Rate) within thttty (30) days following the date that Landlord is provided

36 with a copy of Tenant's CAM Audit (the "Refund Date"). In the event the overbiUmg of charges

37 exceeds thtee percent (3%) of the sum previously billed to Tenant by Landlord, Landlord shall also

38 reitnburse Tenant for aU. reasonable expenses of the CAM Audit by the Refund Date. On 01 before

39 the Refund Date, Landlotd shflU: (a) refund any ovetbilled atnount (together -witii interest at the

40 Legal Rate) and the CAM Audit expenses, if applicable; or (b) provide Tenant -with (i) the reasons

41 for any disagreement by Landlord with the findings of Tenant's CAM Audit, (ii) together with any

42 supportmg documentation, and (iii) accompanied by cash payment in the amount of any undisputed

43 ovetbiUiag. In the event Landlord fails to respond by eithec of the foregoing methods, the CAM

Ta]m Springs

Palm. Springs Pla2a

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

37 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 43 of 126
Audit shall be deemed conclusive and Tenant may, in addition to its other remedies, deduct the fuU

2 amount of such overbillmg from any subsequent Rents coming due under this Lease. In the event

3 Landlord disputes Tenant's CAM Audit and ptovides the reasons and documentation supporting

4 such ckim, the parties shall diligently, within ten (10) Business Days thereafter, attempt to resolve

5 theil differences, and, in failing to do so, the mattei may be submitted by eithei party for Albitearion

6 under the ptovisions of Section 20. 2.3 hereof. In the event Landlord fails to pay Tenant the

7 oveibilled amount (together with interest at the Legal Rate) as well as CAM Audit expenses, if

8 applicable, by the Refund Date, 01 within thirty (30) days of a Enal arbitradon/court order if

9 Landlord disputes the CAM Audit of Tenant's hilling. Tenant shall have the right to deduct sSl

10 unpaid amounts from the Rent coming due &om Tenant until Tenant is fully paid. The expenses of

11 this CAM Audit, when taken together -with expenses of the Tenant audits in Sections 8.2.5 and

12 9. 1.4(c), shaU not exceed Three Thousand Five Hundred Dollars (t3,500), with annual incceases

13 pursuant to the annual change in the CPI (as hereinafter defined) during the itnmediately preceding

14 calendar yeai. CPI shall mean the Consumer Price Index [All Urban Consufflej-s] (base year 1982-84

15 = 100) for the U.S. City Average published by the United States Department of Labor, Bureau of

16 Labor Statistics. If the CPI is changed so that the base is changed from 1982-84 = 100, the CPI

17 shall be converted in accordance with the conversion factor published by the United States

18 Department of Laboi, Bureau of Labor Statistics. If the CPI is discontmued or revised during the

19 Term, such other governmental index or cotnputarion with which it is replaced shall be used in

20 otdei to obtain substantially the same result as would be obtained if the CPI had not been

21 discontinued ot revised. If thete is no such repkcecaent, then Landlord and Tenant shaU select

22 another price index that is reasonably satisfactory to both. The amount shall not be reduced below

23 the prior year's amount on the basis of the CPI adjustment above.

24 8. REAL ESTATE TAXES AND ASSESSMENTS

25 8.1. Obligation to Pay.

26 (a) Landlord shall pay aU real property taxes and assessments ("Tax" 01 Taxes") levied

27 by a government agency against Landlord's Parcel or smaller Tax parcel which includes the Store

28 (the "Tax Bill") on or before the kst day that such Taxes may be paid without penalty, commission,

29 interest or other charge or such earlier date as will secare the maximuta. discount, rebate or other

30 reduction of Taxes as may be avaikble. In the event that Landlord elects not to secure the

31 maximutn discount, rebate or other reduction that tnay be available through an eatly payment, then

32 Tenant's share of Taxes shall be calculated using the fflaximum discount, rebate ot othet leducdon

33 offered by the taxing jurisdiction. A "Tax parcel" is a single parcel of land for which the relevant

34 taxiag authority renders a separate billing.

35 (b) All payments made by Tenant shall be accompanied by the applicable Rent Tax,

36 which are such additional taxes only as ate, pursuant to the wording of the tax statute 01 law of the

37 jurisdiction in which the Stole is located, applicable exclusively to sales, privilege or rentals from real

38 estate and no other forms of receipts, and ate attributable solely to Tenant's Lease of the Store and

39 not on an average of Landlord's rental for the Shopping Center as a whole, but only to the extent

40 that the State of Florida requites payment of such tax.

CTalm. Springs"

Palm Springs Plaza

Palm Springs, EL

Sure No. 5296

6061. 1319/868020.7

38 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 44 of 126
1 8.2. Tenant's Pro Rata Share.

2 8.2. 1. Payment of Tenant's Pro Rata Share. In addition to the Muimuta Rent herein

3 reserved, Ten.ant shaU reunbutse Landlord for Teaant's Pro Rata Shate (calculated in accordance

4 with Section 8.2.3 hereafter) of the Tax Bill, applicable to each Tax Year or part thereof which falls

5 within the Term. Ten.an.t's payment shall be made .within thirty (30) days after receipt by Tenant of

6 (a) a copy of Landlord's Tax Bill, and (b) a statement in writing from Landlord setting forth the

7 amount of Tenants Pro Ra.ta. Share of the Tax BiU and the method of calculation thereof. Subject

8 to Tenant's receipt of -written evidence of Landlord's payment of Landlord's Tax BiU as specified

9 above. Tenant's schedule of payments shaU. be concuttent with Landlord's obligations for payment

10 to the taxing authority. Upon Tenant's written request. Landlord shaU provide a copy of Landlord's

11 caiicelled check for payment of Taxes or other evidence of payment reasonably satisfactory to

12 Tenant. To the extent that Taxes are payable at a discount for eady payment, Tenant shall have the

13 right to deduct such discount fitom Tenant's Pro Rata Share of Taxes if Tenant shall pay Tenant's

14 Pro Rata Share of Taxes during the period qualifying fot such discount for eady payment.

15 8.2.2. Insfallmeats. la the event of Tax assessments which may be paid in. installments

16 by reason of bonding or otherwise. Landlord shall elect to make payment based upon the longest

17 period of installment payments petfflitted by the appropriate taxing authority. Tenant shall bear no

18 liability as to installments due following the expiiation or eadiei teanmation of this Lease except for

19 prorated amounts due prior to the expiration or eajdier teanination of this Lease. Tenant shaU not

20 be responsible for any interest, late chatge or oth.ec penalty resulting from. Landlord's kte pa.ytnent

21 or non-payment of Taxes, nor any administtadve or other charge which may be ckitned by

22 Landlord, unless such late paytnent or non-payment of Taxes Is due to Tenant's failure to pay

23 Tenant's Pro Rata Share of Taxes in a timely manner.

24 8. 2.3. Calculadoa of Tenant's Pro Rata Shstte. Tenant's Pro Rata Share of the Tax BiU

25 is defined as that fraction of Taxes the numetatot of which is the Leasable Floor Atea in the Store

26 afld the denomiaator of which is the Leasable Floor Area in the Tax parcel of which the Store is a

27 parti provided, however, the denotniaator of said fraction shall not be less than the Minimum

28 Leasable Floor Atea set forth in Section 1.3.2(b) unless a portion of the Shopping Center becomes a

29 sepatately taxed Tax Parcel, in which case the Miiumum Leasable Floor Area set forth in

30 Section 1.3.2(b) shall be reduced to reflect the Leasable Float Area within the Tax paj-cel of which

31 the Store is a part, subject to the final sentence in this Section 8.2.3. Such computariou shall be

32 made separately for each Tax Year and shall be set forth in reasonable detail as a part of Landlord's

33 statement to Tenant pursuant to Section 7.4.5. The Tax parcel in which the Store is located shall

34 not contain more Common Areas than is consistent with the overall Cotntnon Acea square footage

35 to building area ratio of the Shoppmg Center.

36 8.2.4. Partial Year. Should Tenant be in occupancy during only a pordon of the first or

37 final Tax Years, Tenant shaU. be responsible to pay Landlord only for a ratable portion of its Tax

38 obligation, based on the portion of such Tax Year included in the Term of this Lease.

39 8.2.5. Tenant Audit. Upon at least thirty (30) days' prioi notice. Tenant shall have the

40 right to audit Landlord's or Landlord^ agenfs records pertaining to Taxes with a representative of

41 Tenant's choice. Landlord shall retain its records regarding Taxes for a period of at least three (3)

"Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-39 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 45 of 126
years following the final hilling for each calendar year ia question. At any tune during such thiee (3)

2 year period. Tenant may conduct its audit Any overbiUing discovered in the course of such audit

3 shall be refunded to Tenant -with interest thereon at the Legal Rate within thirty (30) days of

4 Landlord's receipt of a copy of the audit and Tenant's billing ("Tax Refund Date"). In the event

5 Landlord's overstatement of Tax charges to Tenant exceeds thtee percent (3%) of the sum

6 previously bflled to Tenant by Landlord, Landlotd shall reimburse Tenant for all of Tenant s

7 reasonable audit expenses by the Tax Refund Date. In the event Landlord fails to pay Tenant the

8 overbiUed amount (togefhet with interest at the Legal Rate), and audit costs, if applicable, by the Tax

9 Refund Date, Tenant shall have the right to deduct all unpaid amounts from Rent coming due from

10 Tenant until Tenant is fully paid. The expenses of this audit, when taken together with expenses of

11 the Tenant audits in Sections 7.4.7 and 9.1.4(c), shall not exceed Three Thousand Five Hundred

12 Dolkrs (t3, 500), with aimual increases pursuant to the amiual change in the CPI (as defined in

13 Section 7.4.7).

14 8.3. Exclusions.

IS There shall be excluded &om the Taxes to which Tenant contributes any of the following:

16 (a) any increase in Taxes caused by construction in Landlord's Parcel commenced subsequent to the

17 Effective Date of this Lease until such time as such newly constructed space constitutes Leasable

18 Floor Axes.; (b) any increase in Taxes caused by a Change of Ownership Assessment a-s heremafter

19 defined (excepting only: (i) one (1) iaccease resulting firoro. a change m ownership of the Shopping

20 Center if completed witfain one (1) year following the Effective Date; (ii) one (1) inccease caused by

21 a change in ownership during the Initial Tenn; and (iii) two (2) mcreases caused by a change m

22 ownership during the aggregate of aU the Option Periods); (c) income, excess profits, gross profits,

23 estate, single business, inheritance, succession, transfer, &anchise, capital or other tax or assessment

24 upon Landlord or the Rent payable under this Lease; (d) bonds and/or assessments which have

25 been ot, subsequent to the date hereof are, levied fot the purpose of funding the costs of

26 constiucdon fot Landlord's development or redevelopnient of, all ot any potrion of Landlord's

27 Parcel or capital itaprovemeats constructed thereto, or with respect thereto, which ale tequiced as a

28 result of Landlord's redevelopment of the Shopping Center; (e) tax increment financing, fees, taxes

29 (excluding Real Estate Taxes), or assessments; (f) any special (non-general) assessments which apply

30 to the Shopping Center; (g) any Taxes assessed against land in Landlord^ Patcel that has not been

31 fuUy developed as buildings or Common Areas; and (h) any taxes or assessments for the

32 construction or installation of any Utilities to the Store or Landlord's Parcel, or any taxes or

33 assessments lelated to the usage of any Utilities to the Store or Landlord's Parcel, such as water or

34 sewer chatges included in the Tax Bill which exceeds the sum of Fourteen Cents (tO. 14) per square

35 foot of Leasable Floor Area. in the Store, such $0. 14 amount to be increased proportionately with

36 any increases m Minimum Rent set forth in Section 1. 6. A "Change of Ownership Assessment" is

37 any increase in the Tax assessment of the Shopping Centet or Tax patcel (as herein defined)

38 resulting from a change m the ownership or title holding of any property within the Tax parcel

39 under the provisions of any real property tax statute for the state in which the ptoperty is located,

40 such as, by way of example, California Revenue and Taxation Code section 60 et. seq.

"Palm Springs"

Palm Springs Plaza

Palm Springs, RL

Store No. 5296

6061. 1319/868020.7

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 46 of 126
1 8.4. Rebates.

2 Any EnaL, non-appealable refunds, or abatements of Taxes leceived by Landlord subsequent

3 to Tenant's payment of its Pro Rata Share of the Tax Bill, mcludmg, but not limited to, tax

4 inctement financing rebates or subsidies received by Landlord from the applicable tasang authority,

5 shaU. be refunded to Tenant on a ratable basis within thirty (30) days of receipt by Landlord. Any

6 such rebate, refund or abatement realized by Landlord prior to payment by Tenant shall result in an

7 ttntnediate reduction in Tenants Pro Rata Share of the Tax BiU then due to Landloid.

8 8.5. Contest.

9 In the event Tenant and tenants occupying at least fifty percent (50%) of the Leasable Floor

10 Area of the Shopping Center request that Landlord contest Taxes, Landlord shall contest the validity

11 or amount of Taxes m the Tax Bill as are permitted by law. Landlord shall provide Tenant .with

12 government notices of assessment (or reassessment) in time suf&dent to reasona.bly permit Tenant,

13 to cause Landlord, to make contest; and if Landlord fails to do so, then there shall be excluded from

14 the Tax Bill, any increased Taxes resulting from such assessment (or fea.ssessment). Landlord shaU.

15 notify Tenant immediately upon Landlord's filing of any contest, provided that Landlord's failure to

16 so notify Tenant shall not be a default by Landlord hereunder unless Landlord fails to notify Tenant

17 in writing of Landlord's election to contest or not to contest the Taxes within ten (10) days of

18 Tenant's written request for confirmati.on of such election. The term. "contest" as used in this

19 Section 8.5, means contest, appeal, abatement or othet proceedin.g prescribed by applicable law to

20 obtain a tax reduction or tax refund, howsoever denommatecL The net benefit of any contest, after

21 the payment of expenses thereof, shall inure to the benefit of Tenant and aU. other occupants of the

22 parcel(s) included in the Tax Bill in the same ptoportions as their respecdve obligations for Taxes to

23 which the contest relates.

24 8.6. Intentionally Deleted.

25 9. INSURANCE

26 9.1. Property Insurance.

27 9.1.1. Special Fomi PoHcy. A policy of fure and Property Insutance irt the form of the

28 Insutaace Services Offices' ISO Piopetty fortn 1030 - Causes of Loss Special Fonn ot equivalent

29 ("Special Fottn Poli.cy"). The term. CTtoperty Insurance" means insurance covering damage to

30 tangible real and petsonal property.

31 9. 1.2. Landlord Insurance. Conunendng on the Delivery Date, as defined in Atride 2

32 hereof, and at aU. tunes during the Term, Landlord shaU. maintain, a Special Form PoUcy msiuiag

33 against damage to Landlord's Parcel, tndudmg Tenant's leasehold itn.provem.ents and alterations ia.

34 the Store, but excluding Tenanfs trade fixtures, trade equipment and other personal property in the

35 Store. Putther, upon completion of construcdon of Landlord's Parcel (exclusive of pads, Outparcels

36 and any phase of development to be completed at a later date) the Special Form Policy shall be

37 obtained with aa owner's rating for Landlord's Parcel based upon a completed project a.s opposed to

"Palm Springs"

Palm Springs Plaza

Palm. Springs, FL

Store No. 5296

6061.1319/868020.7

-41 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 47 of 126
1 a property under development AU Special Form Policy(ies) shall be m the amount of the full

2 lepkcement cost of the insured impt ovements, mcludiag demolirion cost less a deductible of not

3 less than Ten Thousand Dollars ($10,000). Landlord shall, oa the Delivery Date and theieaftet

4 upon request of Tenant, provide Tenant with a certificate of such insurance coverage from an

5 insurer authorized to do business withia the state in which the Store is located, and which iasuret is

6 rated at least A- and X in Besfs Insurance Reports, or equivalent.

7 9.1.3. IntenrionaUv Deleted.

8 9.1.4. Tenant's Pro Rata Share.

9 (a) Tenant shall be responsible to reitnburse Landlord for Tenants Pro

10 Ra.ta Share of the premium for the Special Portn Policy desctibed in. Section 9. 1. 1 above, excluding

11 d) any management or admmisttative fees, and (ii) ta-rorisffl insurance. Tenant shall pay Tenant's Pro

12 Rata Share within thirty (30) days after Tenant's receipt of the following: (A) written evidence of

13 Landlord's paytn.eat of the insurance premium; and (B) a statement, certified by an auth.orized agent of

14 Landlord, indicating the total cost of the premium applicable to Landlord's Parcel, accompanied by a

15 copy of the premium hilling ("Insurance Bill") and the declamtion page &om Landlord's policy,

16 together with such further information as Tenant tnay reasonably requice to substaatiate the amount of

17 such premium and the manner in which the premium and Tenants Pro Rata Share thereof have been

18 calculated ("Landlord Special Form lafonnarion"). If Landlord coveis the Stole with a Spedal Foan

19 Policy which includes property other than. Landlord's Parcel, Landlord shall provide a breakdown

20 indicating the pretniutn portion allocable to Landlord's Patcel. Tenant's Pro Rata Share of the Special

21 Form Policy premium shaU. be that fraction of the total ptetnium the numerator of which is the

22 Leasable Floor Area of the Store and the denommatol of which is the Leasable Floor Area of the

23 applicable poition of Landlord's Parcel which includes the Store for which the Insmance Bffl was

24 issued by the iasuret. In no event, however, shall the denominator of the fcaction stated in. the

25 preceding sentence be less than the Mmitnutn Leasable Floor Area as set forth tn Section 1.3.2(c). In

26 no event shaU Teaant's payment to Landlord of Tenants Pto Rata Share of the Special Form Policy

27 premium exceed that amount which Tenant would have paid for the same or comparable coverage for

28 the Store had Tenant teasonably obtained such msucance &offl its own caniei. Tenant shall not be

29 responsible for any intetest, late charge or other penalty resulting &om Landlord's hte payment or

30 nonpayment of the Special Form Policy premium.

31 (b) In the event Landlord fails to provide the Landlord Special Fonn

32 Tnfnnnarinn as requued in Section 9. 1.4(a) above after twenty (20) days' written notice &om Tenant,

33 and aftet a second (2ms) written five (5) day notice fcom Tenant, Tenant taay obtain the same or

34 comparable iasutance coverage and deduct &om Rent conung due uadec this Lease an ainount equal

35 to the ainount of Tenant's Pro Rata Share of the Special Form Policy premiutn, which sum shall be

36 repaid to Landlotd (less the cost of any insurance Tenant carded before Landlord provided the

37 evidence of coverage) upon Landlord's delivery to Tenant of the Landlord Special Form Information.

38 Further, if Tenant receives a notice of cancellation of the Special Form Policy or other evidence

39 indicating that Landlord has failed to maintain the Special Form Policy on the Store, Teaant shflll not

40 be responsible for reimbursement undet Section 9. 1.4(a). In tfae event Landlord fails to maintain the

41 Special Fotm. PoUcy on the Store and it is not possible for Tenant to separately insure the Store, Tenant

<<Pa]m Springs"

Palm Springs Plaza

Pa]m Springs, FL

Store No. 5296

6061, 1319/868020.7

-42- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 48 of 126
1 may obtain the Special Form Policy fot the entire Landlord's Parcel and deduct all premium amounts

2 related thereto from Rent coming due.

3 (c) Landlord or Landlord's agent shall retain full and detailed records of all

4 costs incua-ed by Landlord for the Special Fomi Policy. Copies of said records shaU be made available

5 to Tenant upon request and Tenant shall have the right to audit all of such records, iacludmg the

6 Special Form Policy, upon thirty (30) days' prior notice, with a representative of Tenants choice. Any

7 overbillmg discovered in the course of Tenant's audit shall be lefimded to Tenant, together -with

8 interest at the Legal Rate, within thirty (30) days of Landlord's receipt of a copy of the audit and

9 Tenant's billing ("Insutance Refund Date"). In the event the overstatement of charges for Tenant's

10 Pro Rata Share of the Special Form Policy pfeiniufla. exceeds three percent (3%) of the sum previously

11 billed to Tenant by Landlord, Landlord shall reimburse Tenant for all reasonable expenses of such

12 audit. la the event Landlord fails to pay Tenant the oyerbilled amount, together with interest at the

13 Legal Rate and the audit costs, if applicable, by the Insurance Refund Date, Tenant shall have the right

14 to deduct a3. such amounts from Rent coining due from Tenant until Tenant is fully paid. Landlord

15 shall retain, its records regaiding aU insurance ptemiuins for insurance required to be earned by

16 Landlord under this Lease for a period of at least three (3) years following the final hilling for the

17 calendajt yeat in question. At any tiine during such three (3) year period. Tenant may conduct its audit

18 The expenses of this audit, when taken together with expenses of the Tenant audits in Sections 7.4.7

19 and 8.2.5, shall not exceed Three Thousand Five Hundred Dollars ($3,500), with ammal increases

20 pursuant to the annual change ia the CPI (as defined in Section 7.4.7).

21 9.2. Liability Insurance.

22 9.2.1. Tenant. Tenant shall, at its sole cost and expense, commencing on the Delivery

23 Date, and at ati times dating the Tettn, keep in force a policy or policies of commercial general

24 liability insuiance, 01 aa endorsement on a blanket conuneicial general liability insurance policy or

25 policies, naming Landlord as an additional insured, as their interests may appear, protecting against

26 (except to the extent caused by the negligence or willful act of Landlord or its agents, contractors,

27 employees or representatives and not waived per Section 9.4 hereof) any and aU. claims and liabilities

28 arising out of injuries to or the death of any persons in the Store, or for property datnage in the

29 Store, in the minimum amount of ONE MmLION DOLLARS (tl ,000, 000) pet occim-ence so long

30 as Tenant also carries an excess liability policy in an amount of at least EIGHT MILLION

31 DOLLARS ($8,000,000), the covetage of which tacludes the Store. Tenant's policy or policies shaU

32 contain a. ctoss-lia-bility eo.dorsemeat, and shaU be with an insurer which is rated at least A- and X in

33 Best's Insurance Reports, or equivalent.

34 9.2.2. Landlord. Landlord shall, subject to Tenant's leimbursemeat as provided

35 hereafter in this Section 9.2.2, cocnnencmg on the Delivery Date, as defined in Article 2 hereof, and

36 at all times during the Term, keep (or cause to be kept) in force a poUcy or policies of commejrdal

37 genecal liability insurance for the Common Aceas, ot an endorsetnent on a blaiiket cotntneirdal

38 general liability insurance policy or policies, naming Tenant as an additional insuted, protecting

39 against (except to the extent caused by the negligence or wiUful act of Tenant or its agents,

40 contractors, employees or representatives and not waived per Section 9.4 hereof) any and all claims

41 and liabilities arising out of injuries to or the death, of any persons in the Common Aiea or for

42 property damage in the Common Area, in the minimum amount of FFVE MILLION DOLLARS

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-43- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 49 of 126
1 ($5, 000, 000) combined single limit for any one occuaence with a deductible not less than Ten

2 Thousand Dollars ((10, 000). Said policy 01 policies shall contain a ccoss-liability endorsement, and

3 shall be with an insurer which is rated at least A- and X ia Besfs Insurance Reports, or equivalent

4 Tenant's Pto Rata Share of Landlord's commetdal general liability insurance fot the Common Areas

5 shall not exceed the commercially reasonable cost for such insurance for similar shopping centers in

6 the satae geographic area as the Shopping Center.

7 9.3. Evidence of Insutance.

8 Landlord and Tenant agree to deliver to the othei certificates of insurance evidencing the

9 existence in force of the policies of insutance described in Sections 9. 1. 1, 9. 2. 1 and 9.2.2, together

10 with endorsements showiag that the parties have been named as additional insureds. Landlord's and

11 Tenant's insurers shall each use reasonable efforts to ptovide the party designated on the certificate

12 of insutance as the holder thereof, with at least twenty (20) days' prior written notice of cancelktioa

13 or of a material change to the insurance policy. Landlord's certificate related to Section 9.2.2 shall

14 provide a breakdown of the pretnium cost related to the Cotnmon Area only as distinguished fcom

15 the buildings and the remainder of Landlord's Parcel.

16 9.4. Waivei of Subrogarion.

17 On and aftec the Delivery Date and thioughout the Term, Landlotd and Tenant hereby

18 waive and release any and aU right to maintain a direct action to recover against the other, iacludiag

19 the employees, officers, directors and agents of Landlord and Tenant, for damages and any and all

20 loss (mcludmg loss of Rent) to any ptoperty located -within the State ot the Shopping Center, which

21 damage 01 loss occurs during a period which is covered or could be covered by a Special Foan

22 Policy tequiced under this Lease, and which arises out of the other party's negligence or otherwise

23 tordous acts or omissions, but only to the extent that the cost of repairing such datnage or loss is

24 covered by insutance requited under this Lease, 01 would have been covered by insurance proceeds

25 payable under any poli.cy tequiced to be maintained undet this Lease, but not so maintained. Each

26 policy of such insurance shaU either, (a) contain a waivet of subrogation by the iasuter against

27 Tenant and Landlord, as the case may be, or (b) include the natne of Landlord or Tenant, as the case

28 may be, as an additional insured, but not as a party to whom any loss shall be made payable. In the

29 event a party is unable to obtain such a waiver, it shall immediately notify the other of this inability.

30 In the absence of such notification, each party shall be deemed to have obtained such waiver of

31 subrogarion. Fuctfaer, Tenant's agreement to indemnify Landlord, and Landlotds agieemeut to

32 mdemnify Tenant under this Lease, aj-e not intended and shall not relieve any insurance camel of its

33 obligations under policies required to be earned by Tenant or Landlord pursuant to the ptovisions

34 of this Lease, to the extent such policies covet, or if carried would have covered the tnattets subject

35 to the parties' tespecdve mdemnification obUgations, not shall they supersede any inconsistent

36 agreement of the patties set fojcth in any other provision of this Lease. This mutual waiver is in

37 addition to any other waiver or release contained ia. this Lease. The provisions of this Section 9.4

38 shaU not apply to Laiidlord's obligadoa to repair and teplace any pordon of the Store and Tenant's

39 merchandise damaged by roof leaks as specified in Section 11.2. 1.

"Pa]m Spflngs"

Palm. Springs Plaza

Palm. Springs, EL

Store No. 5296

6061. 1319/868020.7

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 50 of 126
1 9.5. Tenant's Right to Self-Insiue.

2 Notwithstanding anything to the contrary herein contained, provided either the Tenant

3 described in Section 1.2.2 (the "Signatoty Tenant") or Ross Stores, Inc., as Guatantot, maintains a

4 net worth of at least FEFTY MILLION DOLLARS ($50,000,000), then the Signatory Tenant shall

5 have the option, either alone or in conjunction with any parent, subsidiaries or affiliates of Signatory

6 Tenant, to maintain self-insuiance and/or provide or maintain any insurance required by Signatory

7 Tenant under th-is Lease under blanket aad/or broad form insurance policies mamtaiaed by

8 Signatory Tenant ot by any such patent, subsidiaries or affiliates of Signatory Tenant, provided the

9 same does not thereby decrease the insurance coverage or limits set forth ia this Lease. Any

10 self-insurance shall be deemed to contain ajl of the tettns and condidons applicable to such

11 insurance as required in this Lease, including, without limitation., a full waiver of subrogation. If

12 Signatoiy Tenant elects to so sdf-insure, then with. respect to any claims which may result from

13 incidents occumng during the Lease Term, such self-insutance obligation shall survive the

14 . expication or earlier termination of this Lease to the same exteat as the insurance tequired would

15 survive.

16 10. UTILITIES SERVICES

17 As of the Delivery Date, Lmdloid agrees to make avaliable tor ienaat's iise at the Store all

18 necessaty Utilities taduding electric, water, gas, sewerage, as well as access (but not the system, itself)

19 for Tenants cotnm.unications and telephone Hues, aU sufficient to service Tenant's operations, and

20 having no less capacity than specified in the Final Plans (as defined ia. Exhibit C). Notwithstandmg th.e

21 foregoing. Landlord shall not be obligated to provide Tenant -with DSL, T-l cable or Internet or other

22 similar communications lines or audio or video telecommunica. tion lines; however. Landlord shall

23 provide telephone lines. All Utility Unes (mcludmg sprinkler lines) that run through the State shall

24 exclusively serre the Store and Landlord shall temove any Utility lines (nicludiag sprinkler lines) that

25 run through the Store that do not exclusively setve the Stote. Tenant agrees to pay all use charges for

26 all such Utilities provided to the Store commencmg on the Delivery Date and throughout the Tei-m. If

27 Landlord ot an afBliated company of Landlord provides some or aU. of such Utility serpices. Tenants

28 obligation to pay fot such services shall be commercially reasonable fates charged by regional or local

29 Utility providers. At all times duriag the Tean, Tenant shall, have the right to contract with any third

30 party of Tenant's choice to provide some or all of the Utility services for the Stole. Landlord shaU, at

31 Landlord's sole cost and expense, pay for all Utility hookup, connection or impact fees and petmits.

32 However, if the Store does not have a separate water meter, Landlotd shall piovide to Tenant the

33 calculation of Tenants water usage as prepared by or compiled by the Utility agency which provides

34 water service so as to calcukfce Tenant's share of the sewer service charges without considera.ti.on of the

35 use of water by any other tenant in the Shopping Center. In the event that the Utility agea.cy will not

36 calculate Tenant's share of sewer service charges. Landlord shall be permitted to have the calculation

37 determined by an iadependent Utility consultant reasonably acceptable to Tenant. Landlord shall

38 separate out aU. Utilities and install sepacate metets foi: the Store. The Utilides shaU. be registered by

39 Tenant in Tenants name. In the event that Landlord is unable to install separate metecs. Landlord

40 shall install submeters and shall cause each submeter to be fead on a monthly basis, billing Tenant for

41 its proper share. Each such bill shall be accompanied by such supporting informadon as Tenant may

42 reasonably request and shall be payable witfain thirty (30) days after Tenant's receipt of the bill (with

'Talm Sptings"

Palm. Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

-45 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 51 of 126
Tenant to have the right to check the submetecs at any time). However, Landlord shflfl pennit Tenant

2 to lead each submeter and to bffl Landlord an amount equal to the charges not attributable to Tenant,

3 which sum. shall be paid by Landlord to Tenant .within thicty (30) days after Landlord's receipt of each

4 biU. No admimsttarive or management charge ot fee shall be payable by Tenant related to any Utility

5 chaiges emanating &O£Q. a m.eter iised ia. rnmmnn by Tenant with any other party. Furthec, in the

6 event of a metei-sharing arrangement, Tenant day require that the charges eciflnatmg from any

7 common, metet be allocated, by a teputable Utility engineer reasonably approved by Tenant, among the

8 cotmnon users thereof in accordance with usage. Neittier patty shall have the right to chalge the other

9 party any admiaistra.tive, service or other fee io. connection with the readtag of the submetecs. Tenant

10 shall be entitled to collect, and Landlord shall cooperate with Tenant in conecring, any rebate which is

11 made available by a Utility company for the installation of energy ef&dent lighting. All Utilities serving

12 the Common Areas shaU. be separately tnetered. Landlotd represents and warrants to Tenant that no

13 UtiHty lines run under Tenant's loading docks.

14 11. MAINTENANCE/REPAIR/ENVIRONMENTAL COMPLIANCE

IS 11.1. Maintenance and Repail by Tenant.

16 Except for Landlord's interior tnaia.tenan. ce obligations imcter iSection 11. 2, and subject to

17 the terms ofAcdcles 21 and 22, Tenant shall maintain the pkte glass, all exteriot doors, all wiring

18 and plumbing Inside the Store and concealed in. the exterior walls and intetior walls of the Stote,

19 including sprinkler heads, and the £re detection monitoring panel and the regular testing and

20 inspection thereof, and the interior of the Stole (except for Landlord's interior and systems

21 maintenance obligations uader Section 11.2 hereof). Tenant shaU, at its expense, perform, or cause

22 to be perfoaned all routine maintenance and servicing of the heating, ventilating, and air

23 conditioning system serving the Store (the "HVAC") in. accordance with the terms of a customary

24 air coaditionmg service contract as perfomied by reputable serpice cotnpanies in the state in which

25 the Shopping Center is located. Neither party shaU. be lespoasible for replacing the HVAC. A

26 "repk. cement,

" 

as that term is used in this Section 11. 1, shaU mean that the compfessoj:, condense!,

27 motors, the chiUer, duct work or heating/cooliag coils must be removed and replaced by new

28 equipment, in the reasonable Judgment of Tenant's HVAC consultant (it being understood that

29 neither Tenant nor Landlord has an obligation to repkce the HVAC). Tenant's obligadons above

30 ate contingent upon receipt by Tenant prior to the Commencement Date of a valid assigmnent, ia.

31 fortn sadsfactoty to Tenant's counsel, of all wanandes (if any) which are available ftom

32 subcontractors, suppliers, manufacturers, and materialmea for construction of that portion of the

33 Stole which is part of Landlord's Work, but which will be Tenant's maintenance responsibility under

34 this Section 11. 1.

35 11.2. Maintenance and Repair by Landlord.

36 11.2.1. (a) Landlord's Obligations. Landlord shall, at its sole cost and expense (not

37 passed through to Tenant as a Common Acea Charge), be responsible for correcting aU. defects in

38 Landlord's (or Landlord's conteactol's) construction of the Store. Further, Laadlotd, at Landlord's

39 sole cost and expense (not passed through to Tenant as a Common Area Charge) shall maintain,

40 repau and repkce, in good and stghtly condition consistent with comparable shoppmg centers ia the

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-46 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 52 of 126
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county in which the Stole is located, the foundation, floor skb [mcludmg maintaining moisture

vapor emissions at or below five (5) pounds per one thousand (1, 000) square feet pei twenty-four

(24) hours using the caldum chloride method], flooring (including flooring damaged by moisture

vapor emissions or subtettanean water mfiltration but excluding maintenance, repair and

replacement requited due to Tenant's oidmaty wear and tear 01 othei- damage caused by Tenant),

roof (including all structural elements and waterpioofing membiane), roofing (including the interior

ceilmg, waHs, floors, fixfaues and merchandise damaged from leaking, provided that Landlord was

notified by Tenant of the need for roof repairs of which Tenant had actual knowledge, which notice

may be verbal ia the event of an emergency such as watet leaking mto the mterior of the Stole, and

Landlord failed to commence the repairs .within twenty-foui (24) hours of receipt of notice of the

need for such repairs or failed to complete such repairs in a commerdaUy reasonable manner and

time&ame), roof drainage system, including gutters and downspouts, exterior walls (mcluding any

wallpack oj- other lighting fixfaues located thereon unless mstaUed by Tenant), storefront (induding

the canopy, but excluding pkte gkss and exterior doors), aU structural potrioas of the Stole,

sprinHet system (excluding interiot Utility lines and sprinkler heads and the fire detection

monitoring panel and the regular testing and inspection thereof), and Landlord shall maintain and

repair all wiring, plumbiag, pipes, conduits and Utility systems and lines outside the Store, whether

exclusively serving the Store or not, as wdl as all portions of the Stole which are not specifically

Tenant's obligation under Section 11. 1 above. Landlord shall not be required to deliver any HVAC

equipment for use m the Stole either prior to or during the Tenn of this Lease.

(b) Notice for Repair. Tenant may give Laadloid notice of the need for

those repairs as may be required under the terms of Section 11.2. 1(a) above, and Landlotd shall

proceed forthwith to effect the same -with reasonable diligence, but ia no event later than thirty (30)

days after having received notice. If Landlord fails to tepair or maintam the Stole within the thirty

(30) day period imposed herein, or such additional reasonable time as shall be required, provided

that Landloid has commenced cute within the thirty (30) day period and is diligently prosecuting

such cure to completion (which additional reasonable time shall not in any event exceed sixty (60)

days) then, provided Tenant notifies Landlord m writing and Landlotd stiU does not lepait same

within ten (10) days of Tenant's notice. Tenant may perform the repairs, maintenance or

tepkcements and deduct the cost thereof from the subsequent Rent payments) next coming due if

not paid within thirty (30) days after receipt of billing therefor from Tenant. In the event of an

emergency. Tenant may undettake immediate repairs (without the need fot advance notice) which

are Landlord's lesponsibility. Tenant shall notify Landlord as soon as reasonably practicable under

the circumstances. If Landlord shaU fail to reimburse Tenant fot the cost of an emergency repair

within thirty (30) days after receipt of billing theiefot from Tenant, Tenant may deduct the cost

ftom the subsequent tnstaUments of Rent payment(s) theteafter coming due.

11.2.2. Eaj-th Movement. Landlord agrees that any maintenance, lepaits, alteiarions or

replacements that shaU be required at any time on or after the Delivery Date and during the Term of

this Lease as a result of movement of the Store such as settling, or as the result of settling of the

Common Areas, shall be without charge to Tenant whether directly 01 through Reunbursetnents.

11.2.3. Shopping Center Maintenance. Landlord shall, at no cost or expense to Tenant,

maintain and repair (or cause to be maintained and repaired) all buildings withm die Shopping

.

Trim Springs"

Palm Springs Plaza

Palm Springs, EL

StDtc No. 5296

6061.1319/868020.7

-47 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 53 of 126
1 Centet in good condition, consistent with the standatds for comparable shopping centers in the

2 county in which the Shopping Center is located.

3 11.3. Repairs Required by Governmental Authorities.

4 11.3.1. Store. Aftet completion of Landlord's Construction Obligations, any repairs,

5 altetarions or other impi ovements to the Store required by governmental authority or insurance

6 rating bureau having jurisdiction shall be performed by Tenant at its sole cost aud expense. Any

7 such work, however, which is required to the Shopping Center in general, other than fot tenants or

8 occupants obligated similarly to Tenant, or to all similar buildings or uses in the area of the

9 Shopping Center, shall be done at the sole cost and expense of Landlord.

10 11.3.2. Shopping Center. Landlord covenants that the consttucrion and the proposed

11 use of the Shopping Center's Common Areas and buildings, mcludmg the Store, for retail and office

12 putposes shall comply with aU laws, ordinances, regukdons and standards of public authorities and

13 insurance atmg bureaus having jurisdiction, mcludmg, without limitation, Environmental

14 Regukrions, as hetemafter defined, and zoning and buildmg codes as of the Delivery Date (all of the

15 foregoiag being hereiaafter collectively referred to as the "Requirements").

16 11.3.3. Non-Coinplian'-f. Landlord agrees that if, at any rime oa or after the Delivery

17 Date, any governmental authorities or insutaace rating bureau having jurisdiction shall determine

1 S that Landlord's Wotk to the Store 01: that Landlotd's Parcel was constructed, or is being operated, in

19 violation of, any Requiiement and shall request compliance, with any Requttement or, absent such a

20 request from the governmental authority, if the Store or Landlotd's Parcel is otherwise not in

21 compliance with 01 is in viohrion of any Requirement (and provided the violation is not due to

22 Tenant's Work), and if failure to comply shall in any way adversely affect the use of the Store by

23 Tenant or adversely affect any other rights of Tenant undet this Lease or impose any obligation

24 upon Tenant not contained in this Lease or shall increase the obligation of Tenant (such as, by way

25 of example, iaaeased insuj-ance costs). Landlord shall, upon receipt of notice thereof, at Landlord's

26 sole cost and expense, cause such repaits, alterations 01 other work to be done or action to be taken

27 so as to bring about the compliance, ot to effect the Requirement requested. If by reason of such

28 failure of compliance or by reason of such repairs, alterations or othej: work done by Landlord,

29 Tenant shall be deprived of the use or enjoyment of the whole or any material part of the Store or

30 the Common Ateas, Rent shaU abate and in lieu thereof Tenant shall pay Substitute Rent on a per

31 diem basis until compliance with the Requitement is completed.

32 11.3.4. Zoning. If, &om and after the Delivery Date, the applicable zoning shall not

33 permit the retail sale of apparel, soft goods, and merchandise customaaly sold in Tenant's Florida

34 stores. Tenant may, without waiving any other rights Tenant may have on account thereof,

35 tammate this Lease by giving notice thereof to Landlord.

36 11. 4. Hazardous Material.

37 11.4.1. Dpfmitinn. As used hetein, the tean "Hazardous Material" or "Hazardous

38 Materials" shall mean (a) any waste, material at substance (whether in the form of a liquid, a solid, or

39 a gas and whether or not ail-bome), which is or is deemed by governmental authority to be a

"Palm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

48- 05/08/15

EDMAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 54 of 126
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pollutant or a contammant, or which is 01 is deemed by governmental authority to be hazardous,

toxic, ignitaJble, reactive, corrosive, dangerous, harmful or inJudous, or which ptesents a risk, to

public health 01 to the environment, or which is or may become regulated by or under the authority

of any applicable local, state or federal laws, judgments, ordmances, oiders, rules, regukrioas, codes

or other governmental restrictions, guidelines or requirements, any atnendments or successors)

thereto, replacements thereof 01 publications promulgated pursuant thereto ("Environmental

Regulations"); (b) petocoleum, mcludmg crude oil or any fira.ction thereof; (c) any asbestos or asbestos

containing material ( ACM"); (d) any polycliloaaated biphenyl; (e) any tadioacrive material;

(f) tadoa gas, (g) urea fonnaldehyde; and (h) inold. Hazardous Materials shaU. not iaclude the

foregoing materials to the extent such materials are in compliance with Environmental Regulations

and do not require monitoring by applicable govemtnental authorities. Notwithstafldmg the

preceding sentence, ACM, lead paint and mold shall constitute Hazardous Materials regardless of the

condition and regatdless of whether such ACM and/or lead paint and/or mold is/are at levels in

cotnpUance with Environmental Reguladons. Notwithstanding the preceding sentence. Landlord's

representations, covenants and obligations in Section 11.4 with respect to mold shall only apply to

mold caused by Landlord or Landlord's agents or by any third patty or fcom sources exterior to the

Store such as mold arising from watet leakage frotti the exterior of the Store into the Store as

opposed to mold that is natuany occumag in the envtronment. . Tenant shall be responsible to

remediate or remove mold caused by Tenant 01 Tenant's agents or firom sources inside the Store

(unless caused by Landlord, La.ndlorcTs agents 01 third parties).

11.4.2.

warrants that:

Landlord's Warranties and Representations. Landlord exptessly represents and

(a) To Landlord's actual knowledge, and except as set forth. ia. (i) that

certain Phase I Environmental Site Assessment Report dated January 2, 2006, and ptepated by EBI

Consulting, and (ii) that certain Regulated Materials Survey dated November 7, 2014, by the Vertex

Companies, Inc. (Environmental Reports"), no escape, seepage, leakage, spiLhge, discharge, emission,

release or disposal of Hazardous Material has occurred within the Store to date, and the Store, as weU.

as the soil, groundwatei and soil vapor witliui or uadet the Store, ate free of Hazatdous Material in

viola.tion of applicable Environmental Regulations as of the Effective Date, and will be £cee of

Hazardous Material as of the Delivecy Date and tluroughout the Lease Term.

(b) Landlotd shall not use ot knowingly permit any Hazardous Materials to

be used in violation of applicable Environtnen.tal R.egulations in the constcuction of the Store or in

connection with. the mstallation of any Utility systetn or oth.er fa.ctlity which serves the Stote including

by way of example, but not by Ibiitation, the interiot of any partition or demismg walls, wiiether

structuial ot otherwise, colunms or beams, and all Utility lines, shafts and ducts, HVAC or other

equipnieat Such Utility systems and other facilities as heremabove described, whethet located in (i)

the Store, ot (ii) other portions of the Building 01 the Shopping Center that would have a material

impact on Tenant, shall be collectively referred to as "Support Systetns."

39 11.4.3. Landlord's Responsibiliries Prior to the Delivery Date to Tenant Tenant

40 aclmowledges the receipt of the Envicomneatal Reports. If, prior to the Delivery Date, Hazardous

41 Materials are found to be present in viokrion of applicable Envttonmental Regulations in the Store

42 oi the Support Systems, then Landlord, at its sole cost and expense, shall cause such Hazardous

Talm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

49 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 55 of 126
1 Materials to be removed from the Store in accordance with lecogmzed industty standards

2 (hecemflftei tefeaed to as the "Abatement Work"), and Landlord shall complete such removal prior

3 to the Delivery Date. Upon completion of the Abatement Work, Landlord shall furnish Tenant

4 evidence of such removal of the Hazardous Material, including copies of the final inspection report

S together with a clearance certificate ot other document of release or appioval &om any applicable

6 governmental authority as aforesaid ("Clearance Certificate"), if applicable.

7 11.4.4. Landlotd's Responsibiliries After the Delivery Date. If Hazardous Materials are

8 found to be present in violation of applicable Envuomnental Regulations in the Store at any time

9 after delivery of possession of the Stole to Tenant, then Tenant shall have the right to vacate the

10 Store, at which time all Rent shall abate, unless the Hazardous Materials were introduced by Tenant,

11 its agents, employees or contractors. Landlord shall, at its sole cost and expense, complete such

12 Abatement Work in accordance with applicable Envttonmental Regulations as soon as practicable

13 after the discovery of such Hazardous Materials. Upon completion of the Abatement Work,

14 Landlord shall furnish Tenant with a copy of the Clearance Certificate, if applicable. During such

15 Abatement Work, Tenant's fixturization or consttuction period, if applicable (as provided for

16 elsewhere in this Lease), shall be toUed until the Abatement Work is complete and a Clearance

17 Certificate, if applicable, or a final report documenting the Abatement Work from a licensed

18 eimtonmental consultant leasonably acceptable to Tenant is issued. In the event Lsindlord is

19 required to undertake Abatement Work, it is understood and agreed that Landlotd shall be

20 responsible for the cost of the replacement of all of Tenant's improvements and alterations damaged

21 or destroyed as a result of such Abatement Work. If Tenant is required to undertake Abatement

22 Work because the Hazardous Materials were introduced by Tenant, Tenant shall be responsible for

23 the costs associated with the Abatement Work and any necessaty repairs and repkcement of the

24 Store.

25 11.4.5. Tenant's Rights.

26 (a) Tenant's Awareness of Hazudous Materials. It, at any time. Tenant

27 becomes aware of the presence of Hazardous Materials ffl the Stole in viohrion of applicable

28 Environmental Regulations, Tenant may give Landlord written notice to remove and/oi abate same

29 and to restore (i) the Stole, and/oi (ii) the Support Systems and/or Laudlord's Parcel (to the extent

30 that there is a material impact on Tenant's operations in the Stole) to a condition which is free of

31 Hazardous Materials in violation of applicable Enviroumeatal Regulations, unless the presence of such

32 Hazardous Materials was a result of the acts of Tenant, its employees, agents, contractors or Invitees.

33 Landlord shall complete the Abatement Work -roithm sixty (60) days following receipt of written notice

34 Etom Tenant; provided, howeyet, if the nature of the Abatement Wotk is such that it cannot

35 reasonably be completed within sixty (60) days. Landlord shall have such additional time as may be

36 reasonably tequired to complete the Abatement Work, ptovided Landlord prompdy commences the

37 Abatement Work following leceipt of notice from Tenant and thereafter completes the Abatement

38 Woik with diligence and continuity. Notwithstanding the foregomg, if Landlord has not completed

39 the Abatement Wotk .witbin ninety (90) days following receipt of written notice from Tenant, Tenant

40 may either (i) terminate this Lease upon thirty (30) days' written notice to Landlord, or (il) undertake all

41 necessaiy Abatement Work, includmg die hiring of any contractors and experts Tenant reasonably

42 deems necessary to effect and supervise the Abatement Work.

'Talm Springs"

Palm Springs Plaza

Palm Springs, PL

Store No. 5296

6061. 1319/868020.7

50- 05/08/15

ENAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 56 of 126
1 (b) Claim Against Landlord. If Tenant ettects Abatement Work, Tenaut

2 shaU be entitled to rlaim &om Landlord all reasonable costs and expenses associated therewith,

3 includmg, but not limited to, (i) the Abatement Work, (ii) disposal of Hazardous Materials, (in) ail

4 quality and materials testing, (iv) related consultants' and experts' fees, and (v) fines, fees Ot costs of any

5 nature whatsoever charged or assessed by any goveminental authority or agency regulating and/or

6 supervising such Abatement Work and/or disposal of Hazardous Materiak.

7 (c) Reimbursement of Tenant Landlord shall promptly reunbutse Tenant

8 for Tenant's costs and expenses incutted pursuant to Section 11.4.5(b) above within thirty (30) days

9 aftec Landlord's teceipt of copies of Tenant's paid invoices or documentation. In addition to any other

10 remedy which Tenant may have under this Lease, at kw or in equity, in the event of Landlord's breach

11 of any of the provisions of this Section 11.4, Tenant shall be enttded (i) to deduct frotn Rent payable to

12 Landlord hereuadet all consequential damages (including lost profits), expenses, costs, fees and fines

13 iacurred by it as a result of such breach, and (u) to extend the Temi hereof by a period equal to the

14 time elapsed ftoffl the date of Tenant's mitial notice to Landlord to the date that the Abatement Work

15 is completed, and during such period, all Rent and other charges payable heteunder shall abate.

16 11.4.6. Landlord's IndeamitT. Excepting Hazardous Materials existing solely as a result

17 of the acts of Tenant or Tenant's agents, employees, conttactots 01 Invitees, Landlord hereby

18 indemnifies Tenant and its successors and assigns, and agrees to hold Tenant and its successors and

19 assigns haanless from and against any and aU losses, liabilities, damages, injuries, penalties, fines,

20 costs, expenses and claims of any and every kind whatsoever, including, without limitation,

21 attorneys' and consultants' fees and costs, and the costs of cleanup, remediation. Abatement Work,

22 paid, incurced or suffered by, or asserted against. Tenant and/or its successors and/or assigns as a

23 result of any claim, demand or judicial ot adtninistrative action by any person ot entity (includiag

24 govemtnental or private entities) for, with. respect to, or as a dttect ot mdirect result of, the ptesence

25 on or under, or the escape, seepage, leakage, splllage, dischatge, enaission, release or disposal on,

26 undec or frotn the Shoppiag Center or the improvements theteon of any Hazardous Material in

27 violation of applicable Envitoiunental Regulations, or the breach of any Enviiomnental Regulations

28 to which Landlord or any portion of the Shopping Center is subject. Landlord shall be solely

29 responsible for and shaU comply with all laws, rules, ordinances or regulations of any govemmeutal

30 authority having jurisdiction over the Store and the Shopping Center with respect to the piesence or

31 temoval of Hazardous Materials, unless die presence of such Hazaidous Materials is the result of the

32 acts of Tenant 01 Tenant's agents, employees, contta. ctors 01 tavitees.

33 11. 4. 7. Tenant's Indemnity. Tenant hereby indenmifies Landlord and its successors and

34 assigns, and agrees to hold Landlord and its successors and assigns harmless from and agaiust any

35 and all losses, liabilities, damages, injuries, penalties, fines, costs, expenses and claims of any and

36 every kind whatsoevec, includmg, .with.out limitation, attorneys' and consultants* fees and costs, and

37 the costs of cleanup, remediarion. Abatement Wotk, paid, mcuaed 01 suffered by, or asserted

38 against. Landlord and/or its successors and/or assigns as a result of any claim, demand or judicial or

39 admmistrarive action by any person or entity (mcluding governmental ot private enriries) for, with

40 respect to, or as a direct or inditect result of, the presence on or under, ot the escape, seepage,

41 leakage, spiUage, discharge, emission, telease or disposal on, under ot frotii the Store of any

42 Hazardous Material in violation of Environmental Regulations, or the breach of any Eavirontnental

43 Regulations to which Tenant or any pordon of the Store is subject which are solely the result of the

"Palm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

51 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 57 of 126
1 acts of Tenant or Tenant's agents, employees, contractors ot iavltees. Tenant shall not cause any

2 Hazardous Materials to be released or discharged on, under or from the Store in violation of

3 Envicomnental Reguladoas. If Tenant causes any Hazardous Materials to be released ot discharged

4 on, under ot from the Store in violation of Envuoninentzl Regulations, Tenant shaU promptly

5 perfonn all leqmred Abatement Work and after completion of the Abatement Work shall furnish

6 Landlord with a Cleatance Certificate. Landlord shall be entitled to claim from Tenant aU actual

7 damages (excluding lost profits and punitive damages) arising out of Tenant's bleach of any of the

8 provisions of this Section 11.4. Futthamoie, if Landloid effects Abatement Work on Tenant's

9 behalf. Landlord shall be entitled to claim from Tenant all costs and expenses associated therewith,

10 including, but not limited to, (i) the Abatement Work, (ii) disposal of Hazardous Materials, (iii) air

11 quality and materials testing, (iv) rekted consultants' and experts' fees, and (v) fines, fees or costs of

12 any nature whatsoever chatged 01 assessed by any governmental authority 01 agency regulating

13 and/oi supervising such Abatement Work and/ot disposal of Hazardous Materials.

14 11.4.8. Survival. The representations, warranties and indenmiries contained in this

15 Atdcle 11 shall survive the termination of this Lease.

16 11.4.9. Radon. Radon is a natauaUy occumng radioacdve gas that, when it has

17 accmnukted la a buildmg in suffident quanriries, mfly present health risks to persons who ate

18 exposed to it over time. Levels ofradon that exceed federal and state guidelines have been found in

19 buildmgs in Florida. Additional information regarding radon and ladon testing day be obtained

20 &om your county public health unit.

21 12. ALTERATIONS

22 12. 1. Pecmitted Alterations.

23 12.1.1. Tenant may make non-structural alterations or itnprovements to the interior of

24 the Stole, and signage on the exterior of the Store and its signage on the Shopping Center pylon,

25 piovided Tenant shall make att such alterations or impt ovements in a good and worimianlike

26 maimer, and in confonnity with aU laws, ordinances and regulations of public authorities having

27 jurisdiction. Tenant may, in. connection with any non-stnictural alterations or itnprovetnents to the

28 interior of the Store install roll down security shutters that are QMI Security Solutions surface

29 mounted iuterior "Safestore" manual/spring operated shutters with AL5-E slates in a "Punch Style

30 51" pattern or tfae like. Tenant shall not make any alterations to the foundation, roof, or any

31 structural potdons of the Store without furst obtaiaiGLg the -written approval of Laadlord, except as

32 specified ia Section 12.2. Such approval by Landlord may not be unreasonably withheld,

33 conditioned ot delayed. Any disapproval shall be supported by a written statement of reasons and

34 suggested tevisions to the proposed work that, if iacorpofated by Tenant, shall constitute the plans

35 as approved without further review by Landlord. Subject to Section 12. 1.2 foUowmg, all alterations

36 and improvements made to the Stole by Landlord or Tenant (other than Store fiimituie, trade

37 fixtures, equipment and personal property iastaUed by Tenant), shaU, at the end of the Term,

38 becotne Landloicfs property, and, at the end of the Term, shall remain in the Store without

39 compensation to Tenant, ucless othepyise stated ia this Lease to the coatcary. Fottowing the

40 completion of any such alterations, and upon Landlord's written request. Tenant shall fumish "as

":Palm Springs"

Palm Springs Plaza

Palm Springs, EL

Sure No. 5296

6061. 1319/868020.7

52- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 58 of 126
built" phns showing such alterations, in. detailed AutoCad v.l4 or above if same have been

2 genetated by Tenant and are available.

3 12.1.2. It is further agreed that upon tei-mina.tion of this Lease, Tenant may temove its

4 fumituie, fixtures, equipment and personal property, and Landlord -will accept the Store, with all

5 alterations made by Tenant, without any obligation upon Tenant to restote the Store to its fomier

6 condition, provided, however, Tenant shall repaic any damage caused by any removal of Tenant's

7 fixtures aiid equipment

8 12.1.3. AU Tenant alterations shall be subject to the following:

9 (a) Cost of Tenant's Alterations. Tenant's alterations shall be perfoffned by

10 Tenant at Tenant's sole cost and expense.

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(b) Complian. ce. Tenant will perform aU. Teaflnt's alterations with

reasonable dispatch, using only new materisls and supplies, in a good and worktmnlike manner iu

accordance with Tenant's plans and with aU. Legal Requicecaents and any and aU approvals, pecmits,

licenses or consents required by any ordiaance, law or public regiiktions of by any authorify at any

time having jurisdiction and ia accordance with. the requirements of any public or qua.si-pu.blic body

having siinilar jurisdiction. Tenant warrants that Tenant's alteiatioas, when completed, wiU. comply

with all Legal Requirements, and that the Shopping Center shall not violate any Legal RequtcemerLts as

a result of Tenant's alterations.

(c) InsyiMLce. During the course of Tenant's alterations, Tenant (an aU. of its

conttactofs and subconttactors) will caay ot cause to be carried adequate Worker's Compensation

Insurance, Builders Risk, Compt ehensive General Liability and such other iasurance as tnay be

required by law to be carried by Landlord ot Tenant or required by Article 9 hereof in connection with

such construction, and such insurance (except the Workers Compensation Insurance) shall name

Landlord, Landlord's managing agent, and all mortgagees and ground lessors and such other parties as

Landlord shall designate as additional insuceds.

(d) Non-Intecfetence. AU. of Tenant's altetations shall be done in such a

manner so as not to iatetfete with, delay, QJ: impose any expense upon Landlord in the tnamtenance of

the Shopping Center; nor to physically affect any part of the Shopping Center outside the interior of

the Store, nor impair the sttuctutal integrity of any building nor affect the proper functioning of any of

the mechanical, electrical, HVAC, plumbing, saaitaty or other systems of the Shopping Center. In

addition. Tenant agrees that aU of Tenant's Work shaU be performed in a manner which -wiU. not create

any work stoppage, labor disrupti. oa or dispute or viokte Landlord's union contracts (if any) affecting

the Shopping Center, nor will it mteriere -with the business of Landlord, or .with auy other tenant or

occupant of the Shopping Center.

35 (e) Pecmits. No Tenant's alteradons shall be undertaken until Tenant shall

36 have procured and paid for, so far as the satne may be tequiced fi-om tttne to tira.e, all permits and

37 authorizations of all municipal departtnents and govemtnental subdivisions having jurisdiction.

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

53 05/08/15

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1 12.2. Communication Equipment

2 12.2.1. At any time subsequent to the Delivery Date, Tenant shall have the right to place

3 upon the Store one or more so-called "satellite dish(es)" or other similar device(s) and to replace,

4 remove, and J-epaic any such device(s), such as antenna, foi the purpose of receiving and sending

5 radio, television, computer, telephone, or other conim.unication signals (cotlecdvely, the

6 "Conununication Equipment'). Any such instaUarion shall be in accordance with plans and

7 specifications previously approved by Landlotd and shall comply with applicable laws and codes.

8 Such equipment shaU. be in. staU.ed in a location or locadons reasonably approved by Landlord and/or

9 substantially shielded &om visibility fcotn the principal Econtages of the Shoppiiig Center. Tenant

10 shaU be responsible for any damage to the Store caused by installing, tenioving, replacing, ot

11 repairing any such device(s). The use of the Communicatioa Equipment shaU. comply with

12 applicable statites and rules of the Federal Communica.dons Coratnission or successor agency.

13 Tenant shall install the Coffltnunica.ti.oa Equipment in such maimec as not to cause any water

14 intcusion or other damage to the State or the toof. Tenant shaU. use Landlotd's too£ng contractoj:

15 for any such instaUadons and assure that any roof warranty shall not be rendeced invalid. Tenant

16 shall be responsible to assure that the CotnmumcatLon Equipment shall be secured or removed prior

17 to any windstorm so as not to pose a threat to the Shopping Centet 01 its occupants.

18 12.2.2. In the event Landlord desires to perform non-emergency roof lepaus and/oi

19 roof repk. cem.ents to the Store and/or the Building or its rooftop equipment in which the Store is

20 located (the "Roof Repaics"), Landlord shaU give Tenant at least Efteen (15) days prior written

21 notice of the date Landlord intends to commence such noa-emergency Roof Repairs. Tenant shaU,

22 within fifteen (15) days foUowiag teceipt of notice of such repaics jGcond Landlord, undertake such

23 measures as it deems suitable to protect its Commumcation Equipnient fcom iateiference by

24 Landlord, its agents, coatcactors ot employees, ia the course of any Roof Repaits. Nothiag herein

25 shaU relieve Landlord of its obligation not to cause any mterfetence with., or damage to, the

26 Cocunuaicarion Equipmeut, and Landlord shall remain fuUy responsible fot any loss, cost, or claim

27 resulting fcom any daimge to any part of the Communicadoa Equipinent arising as a result of the

28 Roof Repaics. Notwith.standmg the foregoing, m th.e event of an emecgency. Landlord shall only be

29 required to give such notice as is reasonable undet the emergency circumstances. Notwith.standirLg the

30 foregoing. Landlord has the right to perform, roof mspections and to perfbnn miaor roof repairs

31 and maiatenarLce without prior notice to Tenant, provided that Landlord does not mtejcfere with or

32 disrupt Tenant's and Tenant's Invitees use of the Stole.

33

34

13. NON-DISTURBANCE AND SUBORDINATION/

ESTOPPEL CERTIFICATES

35 13. 1. Non-Disturbance and Subordination.

36 13.1.1. Existing Loans/Master Lea-sefs). Landlord covenants to obtain £com each lender

37 whose loan is secured by the Store ot Landlord's Parcel, an executed agreement ( Non-Distutbance

38 Agreement"), in the form set forth in Exhibit F, with such reasonable tnodiEcations theteto as are

39 agreed to by Tenant and such lender. Any such Non-Disturbaiice Agteement shall be fully executed

40 by such lender, or Landlord and the Overiessor, as applicable, and shaU be delivered to Tenant

'Talrn Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

54- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 60 of 126
1 concuuent with Landlord's execution and delivery of this Lease to Tenant If Landlord breaches its

2 obligation(s) heieunda-, or if the lender will not execute a Non-Distiubance Agreement in the form

3 set forth in Exhibit F (with such reasonable modifications thereto as are agreed to by Tenant and

4 such lender). Tenant may terminate tfais Lease by written notice to Landlord at any time prior to

5 Tenant's receipt of all required Non-DistuAance Agreements, or if Tenant has not termmated this

6 Lease, Rent shall abate pending delivery of said Non-Disturbance Agreements. In the event that

7 this Lease terminates pursuant to this Section 13. 1. 1, then Landlord shaU reimbutse Tenant fot the

8 cost of its Construction Drawings, not to exceed Thirty Thousand Dolkrs ($30, 000), withm thirty

9 (30) days of the teaaination date. Landlord represents to Tenant that there is no Overiessoi as of

10 the Effective Date. If Landlord executes and delivers to Landlord's lender an assignment of leases

11 and rents or other sifflilar document conveying the Rent under the Lease upon an event of default

12 by Landkttd under the Mortgage, after Tenant's teceipt of notice fcom such lender, that Rents under

13 the Lease shall be paid to such lender, Tenant shaU thereaftet pay to such lender all monies

14 thereaftei due to Landlord under the Lease in accordance with the teens of this Lease. Landlord

15 agrees that in such event. Tenant shall be entitled to rely solely upon the notice &omLandlord's

16 lendet and Landlord acknowledges and agrees that Tenant shaU be entitled to fuU credit undet the

17 Lease for any Rents paid to such lender in accordance with this provision. Any dispute between

18 Landlord and Landlord's lender as to the eastence of a default by Landlord under the Mortgage

19 shall be dealt with and adjusted solely between lender and Landlord, and Tenant shall not be dade a

20 party thereto.

21 13.1.2. Futoue Loans. Tenant shall, within twenty (20) Business Days after Tenant's

22 receipt of Landlord's request, subordmate this Lease in the future to any first mortgage or deed of

23 trust placed by Landlord upon the Store, or the Shopping Center 01 Building of which the Store

24 forms a part, with an tnsucance company, baak or any other lender which customaaly provides

25 financmg for shopping centers, provided that such lender executes a Non-Distutbance Agteement

26 substantially in the form set forth in Exhibit F, with such reasonable modi&catioas theteto as are

27 agreed to by Tenant and such lender.

28 13.2. Estoppel Certificates.

29 Within twenty (20) Busmess Days after the last to occui of (a) receipt of request therefor,

30 and, if the request is made by Landlord (b) receipt by Tenant of the fee described in Section 13.3

31 below, either party shall deliver to the other a written statement acknowledging (i) the

32 Commencement Date and temuaarion date of this Lease, (ii) that this Lease is in full force and

33 effect (if true), (ill) that this Lease has not been modt&ed (or if it has, stating the date of such

34 modifications), and (iv) any such other pertinent mfomiarion which is customary to supply to such a

35 requesting party for purposes of financing or sale (in the case of Landlord's request) or finaadng,

36 assignment or sublease, or sale (in the case of Tenant's request). Landlord may exeicise its right

37 hereunder only in coDjuecdon with a ptoposed sale, financing or icfinandng of the Shopping Center

38 plus another one (1) each calendar year, and Tenant may exercise its right heieunder only in

39 connection with a proposed assignment or sublettmg of the Stole, or a fmandng of its famiture,

40 fixtures, equipment 01 personal property.

<Talm Springs"

Paka Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/86B020.7

-55- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 61 of 126
1 13.3. Processing Fees for Non-Disturbance Agreements and Estoppel Certificates.

2 At the time of the second request within any two (2) yeai period for a Non-Disturbance

3 Agreement under Section 13. 1.2 or the second request for an Estoppel Certificate undei Section

4 13.2 during the Torn, the requesting party shall pay the other, or defray the expenses of processing,

5 the sum of Seven Hundted Fifty Dollars ((750) for each such Non-Distutbance Agreement or

6 Estoppel Certificate.

14. INDEMNIFICATION

8 14.1. Tenant Indemnity.

9 Tenant agrees to hold Landlord harmless &otn and indemnify and defend Landlord against

10 any and all injury, loss, damage, liability (or any ckims related to the foregotng), costs or expenses

11 (iaduding, without litnitadon, attorneys' fees, teasonable mvestigation and discovety costs), of

12 whatever nature, to any person or property caused or claimed to be caused by or resulting &om any

13 occurreace within the Stole 01 the Shopping Center on and after the Delivery Date and during the

14 Term resultuig from the negligent or willful act or omission of Tenant, or Tenant's employees,

15 agents or contcactors, provided nothmg contain-ed heteui shall requure Tenant to indetnnify

16 Landlord against matters resulting solely &om the negligence ot wiUful acts or omissions of

17 Landlord or Landlord's employees, agents, or contractors, except to the extent Tenant has waived a

18 claim against Landlord pursuant to Section 9.4 hereof.

19 14.2. Landlord Indemnity.

20 Landlord agrees to hold Tenant harmless &om and indemnify and defend Tenant against any

21 and all tajuty, loss, damage, liability (or any claims related to the foiegotng), costs ot expenses

22 (including, without limitation, attorneys' fees, reasonable investigation and discovery costs), of

23 whatever natuie, to any person or property caused or claimed to be caused by or resulting frotn any

24 occunence withta the Common Atea, or any portion of the Shopping Center (including the Store),

25 on and after the Effective Date of this Lease, provided nothing contained herein shall requice

26 Landlord to mdemmfy Tenant against matters resulting solely £com the negligence or wfflful acts or

27 omissions of Tenant or Tenant's employees, agents or conttactois, except to the extent Landlord

28 has waived a claim against Tenant pursuant to Section 9.4 heceof.

29 15. USE

30 15.1. Tenant's Business.

31 Tenant's intended use of the Stole shall be as a full line department store mcluding, at its

32 option, the sale of soft goods merchandise, including men's, women's and children's apparel, shoes,

33 accessories, such as jewelry and cosmetics, health and beauty aids and lekted sundries, domestics

34 and linens, housewaies, art, pictures, posters, frames, artificial flora, office supplies, sporting goods,

35 furniture and lamps, window and floor coverings, electronics, prerecotded audio and video

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/868020,7

-56- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 62 of 126
1 merchandise and electronic games software and technological evolutions thereof, books, toys, pafty

2 goods, pet supplies, luggage, packaged foods (including ground and whole bean coffee and packaged

3 teas and tea leaves), and such othet itetns as are sold in Tenant's similarly merchandised stores,

4 subject to the.Exclusive Uses set forth ia Exhibit H and the Shopping Center Ptohibited Uses set

5 forth, ia Exhibit D. With respect to the Exclusive Use in favor of Ross Dress For Less, Inc. set

6 forth on Exhibit H, attached hereto as Exhibit H-l is a waiver of said Exclusive Use in connection

7 with this Lease.

8 15.2. Operation.

9 Notwithstanding any provision in. this Lease to the contrary, it is expressly acknowledged by

10 Landlord that this Lease contains no express or implied covenant for Tenant to conduct business in.

11 the Store, continuously or otherwise, or (when conducting business in the Store) to operate during

12 any patticukr hours or to conduct its business in any particular mamiec. Tenant has the sole right in

13 its unrestricted discretion to decide whether or not to operate in the Store and in what manner to

14 conduct operations, if any, and if the Store has mote than one (1) custotner door ("Excess Customer

15 Doors ^, Tenant may, at its option, dose any such Excess Customer Doors and operate with only

16 one (1) customer door.

17 15.3. Protection.

18 Subject to the rights of Existing Tenants (as noted below), without the prior written consen.t

19 of Tenant, which consent may be withheld in the absolute and sole discretion of Tenant, no tenant

20 or occupant of the Shopping Center (other than Tenant) may use, and Landlord, if it has the

21 capacity to do so, shall not permit any other tenant 01 occupant of the Shopping Centet to (a) use its

22 premises for the Off Price Sale (as hereinafter defined) of merchandise, or (b) use more than fifteen

23 thousand (15, 000) square feet of Leasable Floor Area of its ptemises foj: the sale of apparel (except

24 for discount department stores in excess of sixty thousand (60,000) square feet of Leasable Floor

25 Acea), or (c) use more than fifteen thousand (15,000) square feet of Leasable Floor Area of its

26 premises for the sale of soft goods merchandise (including men's, women's and children's appatel);

27 shoes; accessories (such as Jewelry and cosmetics); domestics and linens, and housewates. The

28 foregoing restriction on the sale of appard. in clause (b) above shflU not apply to JC Penney, Kohl's,

29 Belk's and Mefvyn's, provided such tenants or occupants operate in a-t least sixty thousand (60, 000)

30 square feet of Leasable Floor Atea. For purposes of this Section 15.3, "Off Price Sale" shall mean

31 the retail sale of non-replenishably purcha.sed and not restocked items (as contrasted to regularly

32 purchased and restocked items sold at a discount price) on an everyday basis at prices teduced from

33 those charged by full price retailers, such as full price departtneat stores; provided, however, this

34 definition shall not prohibit sales events by a retailer at a price discounted &om that retailer's

35 everyday price. (As of the Effective Date, examples of Off Price Sale tetailers include such retailers

36 as T.J. Maxx, MarshaUs, Fallas Paredes, Noidsttom Rack, Pactoty 2U, Budington Coat, Stemmatt,

37 Filene*s Basement, Gordmans or Beall's Outlet.) If any of the foregoing piovisiofls is violated

38 ("Protection Violation"), comraencing on the Stst day of the Protection Violation and continuing

39 thtoughout the period of the Ptotecdon Viola.don, Tenant, in addition to all other remedies available

40 at law ot in equity, including mJunctive relief, shall have the ongoing right, execcisable by written

41 notice to Landlord, eithei to terminate this Lease or to pay Substitute Rent within fifteen (15) days

42 after the close of each calendar month. The parties agree that the monetaiy damages to be suffered

"Palm Springs"

Palm. Springs Plaza

Palm. Springs, FL

Store No. 5296

6061.1319/868020.7

57 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 63 of 126
1 by Tenant as a result of a breach by Landlord (or Landlord's tenant(s)) of the provisions of this

2 Section 15.3 are difficult to ascertain and that the payment of Substitute Rent, after negotiation,

3 constitutes the best estimate by the parties of the amount of such damage. If Tenant elects to

4 terminate this Lease as provided in this Section 15.3, this Lease shall terminate on a date mdicated

5 by Tenant in its nodce of termination, which in no event shall be sooner than thirty (30) not kter

6 than ninety (90) days after the date of Tenant's notice of tetmination. In the event of termination,

7 Landlord shaU be obligated to pay Tenant foi the Unamortized Cost of Tenant's leasehold

8 improvements in the Store, which costs Tenant agrees to specify in its notice of termmarion. If

9 Tenant elects to pay Substitute Rent, (a) such payment of Substitute Rent shall be retroactive to the

10 date any such Protection Violation commenced, and Tenant shaU deduct any overpayments of Rent

11 &0ffl Rent mining due undei this Lease, and (b) at such time as all such Protection Vioktions cease

12 (the "Cute Date"), Rent shall lesume at the tate which would have pertained at the Cute Date had

13 the Protection Viokrion not occutted. Notwithstanding the foregoing, if a Protection Violation is

14 not due to Landlord's act or omission (but is due to the act of another tenant or occupant of the

15 Shopping Center), Tenant shall notify Landlord of the occurrence of such Protection Viokdon of

16 which Tenant has actual knowledge, and provided that Landlord diligently putsues all rights and

17 remedies available to Landlord to cause such a Ptotecrioa Violation to cease (including

18 commencement of litigation), then in such event. Tenant shall defer exeidsmg its right to pay

19 Substitute Rent for a period not to exceed ninety (90) days. After Tenant has paid Substitate Rent

20 for twelve (12) consecutive months as a results of such Protection Violation ^Substitute Rent

21 Period"), Tenant shall, by written notice to Landlord given within thilty (30) days after the

22 expuarion of the Substitute Rent Period ("Election Notice"), elect either to (i) tenninate this Lease

23 effective not more than (90) days after the date of the Election Notice; or (ii) resume payments of

24 Minimum Rent (and Reunbursements) in accordance with this Lease. The provisions of this Section

25 15.3 shall apply to saiy subsequent Protection Violation. Notwithstanding that the foBowiag tenants

26 may be considered Off Price Sale retailers. Tenant agrees that Landlord may lease space -within the

27 Shopping Center to Bed Bath & Beyond, Anna's Linens or a cofflpaiable tenant (but specifically

28 excluding HomeGoods), and such lease (mcludmg options to extend as contained theiein) shall not

29 be deemed to be a violation of this Section 15. 3.

30 The fojregomg use restrictions shaU not apply to Existing Tenants (which term includes

31 successors as defined m Section 3.2. 1 (b)(i) above) who are occupying their premises in the Shopping

32 Center pursuant to leases or occupancy agreements executed priot to the Effective Date (as the

33 same may be extended or renewed) to the extent Landlord does not have the right, pursuant to the

34 lease or occupancy agteefflent to restrict the use of the pretnises of the Existing Tenants. Howevei,

35 if Landlord has the right of consent to any change in use of the ptefflises occupied by an Existing

36 Tenant ot its successor or if Landlord subsequently owns 01 controls the ptetnises occupied by an

37 Existing Tenant, Landlord shall not permit any use in such premises in violation of the use

38 restrictions set forth in this Section 15. 3. In the event of a viokrion of this ptovision. Tenant shall

39 have all of its rights and remedies set forth in this Section 15.3, in addition to any other rights, at kw

40 or tn. equity undei this Lease, for the breach of the provisions of this Lease.

41 15. 4. Exclusive Uses.

42 Tenant shall not use the Stole for any use which is listed on Exhibit H (the "Exclusive

43 Use"), so long as the Exclusive Use is m existence in the Shopping Center. Any exclusive granted

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

StnreNo. 5296

6061.1319/81S8020.7

-58 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 64 of 126
1 by Landlord which is not Mated on Exhibit H (the "Unauthorized Exclusive") shall be nuU and void

2 as against Tenant and any Related Entity of Tenant. Landlotd shall ia.detmiify, defend and hold

3 haanless Tenant and any Related Entity of Tenant against any and aU claims by any other occupant

4 of the Shopping Center that Tenant and/or a Related Entity of Tenant has violated an

5 Unauthorized Exclusive.

6 15.5. Other Exclusives Not Binding on Tenant.

7 Except for those Exclusive Uses spedfically set torth m Kxlubit M. and the Shopping

8 Center Ptohibited uses set forth in Exhibit D, Landlord agrees that there is no lease of other

9 occupancy agreement with (nor shall Landlord enter into a lease with, or permit occupancy in. the

10 Shopping Centet by) any tenant, subtenaat, assignee ot other occupant, which itnposes, or proposes

11 to impose, a restriction on Tenant or Tenant's business. Landlord shall hold Tenant harmless from

12 any claims or damages suffered or ckitned to be suffered by Tenant as a result of any breach or

13 alleged breach of Landlord's representation and watranty set forth in this Section 15. 5.

14 15.6. Go Dark.

15 (a) As specified in Section 15. 2, Tenant is not required to operate its Stole 01 otherwise

16 conduct retail operations within the Store. However, if Tenant discontinues retail operations in the

17 Store (other than an Exempted Discontumance of Retail Operations as heteiaaftej: defined) fof a

18 period in excess of one hundred eighty (180) consecutive calendar days (the "Go Dark Period")

19 Landlord, within the thirty (30) days followmg the expiration of the Go Dark Period, and within the

20 thirty (30) day period that follows each. anniversary of a Go Dark Period, provided that as of such

21 annivetsaty date. Tenant continues to be ia a Go Dajjs: Period, may elect to teitninate this Lease by

22 notifying Tenant thereof (the "Go Dark Tettnination Notice"), in which event this Lease shaU

23 terminate as to all obligations thereafter accruing thirty (30) days after receipt by Tenant of the Go

24 Dark Termination Notice ('Termination Date"). In the event of Lease termination pursuant to this

25 Section 15. 6, Landlord shall reimburse Tenant for the Unamortized Cost of Tenant's leasehold

26 improvements to the Store within ten (10) days after receipt from Tenant of a statement of the

27 Uaamorti^ed Cost, which statement shaU be delivered to Landlord within Efteen (15) days aft&t

28 Tenant's receipt of the Go Dark Temunation Notice. Landlord may have access to Tenant's

29 Jrelevant books and records fot a period of ten (10) days a. ftet receipt of Tenant's statement of

30 Unamotrized Costs to verify the amount theceof. Landlotd's obligation fot reimbursement shall

31 survive the termination of this Lease.

32 (b) The following shaU coasdtute Exempted Dis continuances of Retail Operations:

33 (i) any discontmuance occasioned by an event of Force Majeure (as defined in this Lease); (ii) the

34 temporary cessation of retail opeiations in connection, with aa. assignment or sublet (provided that

35 the assignee or subtenant commen.ces letail operations within one (1) year after Tenant discontmues

36 such operations), (ui) a temporary discontinua.nce m. connection with retnodeltng; or (iv) any other

37 tempofaty dis continuance, provided that such other tetnpotary discontinuance does not exceed sixty

38 (60) days m length.

39 (c) Notwithstanding the foregoing, Tenant may notify Landlord at any time within fifteen

40 (15) days after receipt of Landlord's Go DaA Temiinadon Notice that (i) Tenant intends to resume

'Talm Springs"

Palm Springs Pkza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

59 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 65 of 126
1 retail operations, or (ii) Tenant is in negotiation with another letailer tor an assignment of this Lease ot

2 a sublease of the Store (the "Go Daik Withdrawal Notice"). If Tenant so notifies Landloid, and if

3 within one hundred twenty (120) days theiea&ei Tenant either resumes retail operations or entets mto

4 such assignment or sublease, then Landlord's Go DaA Terfflination Notice shaU. automatically become

5 void and of no force or effect (a "Go Datk Withdrawal Event"). If a Go Dark Withdrawal Event does

6 not timely occur, this Lease shall terminate on the kter of (A) the Termination Date, or (B) the one

7 hundred twenty-fitst (121st) day aftEl Tenant's Go Dark Withdrawal Notice.

8 16. SURJRENDER

9 16. 1. Condition of Store.

10 Upon the expiration or eariiei termination of this Lease, Tenant shall surrender possession

11 of the Store to Landlord in broom dean condition, and in good order and lepair, reasonable wear

12 and tear and damage by Casualty or condemnation excepted, and with all of Tenant's alterations and

13 leasehold improvements ia pkce. Tenant may tefflove ftom the Store Tenant's futniture, fixtutes,

14 equipment and personal property. However, Tenant shall have no obligation to remove &om the

15 Store or to demolish any alterations or leasehold improvements made to the Store nor to restore the

16 Store to its condition prior to Tenant's use and occupancy thereof. Notwithstanding the foregoing,

17 any lefageration units, bank vaults and other large, bulky items ofpasonal property (whether or not

18 affixed to the Store) shall be retiioved from the Store by the then-cuuent Tenant upon termination

19 of this Lease.

20 16. 2. Continuance of Possession.

21 If Tenant shall remain in possession ot the Store or any portion theieot atter the expiration

22 of the Tean, then in the absence of an agreement in writing between the parties. Tenant shall be

23 deemed a tenant at suffecance until acceptance of Rent by Landlotd, at which time, Tenant shall

24 become a tenant from month-to-month undet the same terms and conditions as existed immediately

25 prior to the expiration of this Lease, howevec, Miniinum Rent shall be increased to an amount equal

26 to one hundred twenty-five percent (125%) of the most recent monthly installment of Minimum

27 Rent.

28 17. LANDLORD'S COVENANTS

29 17.1. Landlord's Wananty.

30 Landlord warrants to Tenant that (a) Tenant, while opeiating in the Store fot the use stated

31 in Section 15. 1, except as to the Shopping Center Prohibited Uses set forth m Exhibit D or the

32 Exclusive Uses set forth in Exhibit H, will not be in violation of any exdusives, restrictions or

33 other agreements which Landlord may have with other lessees, lenders, governmental authorities ot

34 any other parties, and (b) as of the Effective Date, the use stated in Section 15. 1 is not a violation of

35 any resta. cti.ons imposed by any goveffltnental body or authority. Landlord shall hold Tenant

<(Palm Springs"

Palm. Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

60 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 66 of 126
1 harmless fcotn. any claims or damages suffered or ckitned to be suffered by Tenant as a result of any

2 breach or aUeged breach of Landlord s warranties.

3 17.2. Landlord's Title.

4 Landlord has provided Tenant with the Title Report. Landlord covenants that: (a) Landlord

5 has lawful dtle to the Shopping Center and fuU. right to make and execute this Lease; (b) at the time

6 of recording of the Memorandum of Lease, the Shopping Center will be free from all other liens,

7 dde exceptions and other encutnbfances of any Had whatsoever, except those set forth in. Exhibit I

8 attached hereto and incorporated by this reference ("Pettrutted Title Exceptions"); and (c) except

9 for its present lender, no other party is required to coasent to this Lease as a condition to the

10 effectiveness of this Lease or any of the provisions hereof, includuig, but not limited to, the consent

11 of any lender or ground lessor rehting to the Shopping Center.

12 17.3. Remedies.

13 In the event of any violation of any of the covenants made by Landlord in this Article 17,

14 Tenant may give Landlord notice of the violation. If Landlord fails to cute the violation within sixty

15 (60) days of such notice, and if such violation has a material and adverse effect upon Tenant's

16 business opera.tions in the Store or Tenant's iatetest ia this Lease, Tenant may exercise its remedies

17 available at law and in equity, uicluding the right to tettniaate this Lease by written notice to

18 Landlord. The provisions of this Article 17 shall supersede and ptevail over any inconsistent

19 provision in Ardcle 20 of this Lease.

20 18. QUIET ENJOYMENT

21 Landlord represents and waffants that it has full authority to execute and perform this Lease

22 and to gtaat the subject leasehold estate to Tenant, and that, subject to tihe terms of this Lease,

23 Tenant shall peaceably and quietly have, hold and enjoy the Store with all appurtenances on and

24 aftet the Delivery Date and chmng the Teffla. and without any tnanner of hindcaace or interference

25 with its quiet enjoyment, possession and use.

26 19. ASSIGNMENT/SUBLETTING

27 19. 1. General.

28 During the full Term of this Lease, includmg any Option Periods, Tenant shall have the right

29 to assign this Lease, or sublet the Store or afiy portion thereof (a "Transfer" and the assignee or

30 sublessee thereof is herein "Transfefee") with the pnor written consent of Landlord, which consent

31 shall not be unreasonably withheld or dekyed. If Landlord fails to respond within, thirty (30) days,

32 then Tenant shall provide a second (2nd) five (5) day notice, and upon Laadlord's failure to respond

33 within five (5) days of Tenants second (2nd) written tequest for consent to a proposed Transfer,

34 such failure shall be deemed Landlord's consent. If Landlotd denies consent to any proposed

35 Transfer, Landlord shaU specify in writing the reasons for Landlotd's denial of consent. Tenant shall

'Talm Springs"

Palm Springs Plaza

Palm Springs, PL

Store No. 5296

6061,1319/868020.7

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have the right to operate departments within the Store by means of subleases, licenses ot concession

2 agreements without Landlord's consent. A Transferee shaU be subject the then existing exdusives in

3 the Shopping Center, provided Landlord has supplied Tenant with a cunent list of exclusives tn

4 existence as of the date Landlord consents to the Transfer, or is deemed to have consented thereto.

5 19.2. Related Entity.

6 An assignment or other transfer of this Lease 01 any sublease of all or any portion of the

7 Store to a "Rekted Entity" shall not constitute a Transfet under the terms of this Lease. The tenn

8 "Related Entity" means: a corpotarion or other entity with which Tenant may merge or consolidate;

9 or to which Tenant sells at least ten (10) stores in the State of Florida; ot any parent, affiliate ot

10 subsidiary of Tenant; 01 an affiliate or subsidiaty of Tenant s parent.

11 19. 3. Stock.

12 The sale of stock by Tenant or by any shareholder of Tenant shall not consdtate a Transfer

13 under the tetms of this Lease.

14 19.4. No Release of Liability.

15 In the event of a Transfer of this Lease (includmg a sublease or assignment to a Related

16 Entity), Tenant and Tenant's Guaiantol shall remain liable.

17 19.5. Landlord Notice to Assignee.

18 Landlord, when giving notice to any Transteree ot this l^ease rekted to any default

19 hereundei, shall simultaneously give notice thereof to Tenant, who may cure said default at any tune

20 during the notice period; and in the event that Tenant shall cure the default, Tenant shall be

21 subrogated to all rights and temedies of Landlord as against the Transferee related to the default and

22 shall have the right at its election to recover possession of the Store from the defaulting Transferee,

23 to cancel and levoke the Transfer, and to be restored by Landlord to its leasehold estate hereunder.

24 19.6. Restriction on Landlord's Right to Assign.

25 Landlord shall not assign this Lease prior to the Commencement Date except to an assignee

26 by an assignment which satisfies the foUcwmg criteria: (a) all shareholdets 01 partners of Landlord

27 have at least a fifty-one percent (51%) interest m the assignee, (b) Landlo.td continues as the

28 managing agent and developer of Landlord's Parcel, and (c) Landlord perfonns all of its obligations

29 and dudes under this Lease which ate conditions precedent to this Lease becoffling effective.

30 19.7. Recaptute on Assignment or Sublease of Store.

31 Except for a transfer to a Rdated Entity, in the event that Tenant intends to seek a

32 Transferee for twenty-five percent (25%) of more of the Leasable Floor Area of the Stole to a

33 business entity which operates fewer than twenty (20) retsul stores cd- has a net worth of less than

34 TWENTY MILLION DOLLARS (t20, 000, 000) in the United States, then prior to making the Store

35 avaikble for auy such Transfer, Tenant shall first give Landlord written notice of its intenriou to do

c(Palm Springs

Paka Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

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1 so ("Tiansfer Notice"), which notice shall include (a) the identtty ot the 'Iransteree and a copy of

2 such Ttansferee's audited financial statements for its most recently completed fiscal yeat, (b) a

3 statement of the Unamortized Cost of leasehold improvements to the Store which were paid for by

4 Tenant, and (c) a proposed Lease termination date which is not sooner than mnety (90) nor kter

5 than one hundred eighty (180) days following the date of the Transfer Notice. If Tenant issues a

6 Transfer Notice to Landlord, Landlord may tej-minate this Lease; ptovided, however, it must do so

7 by written notice ("Recapture Notice") given to Tenant within thirty (30) days after the date of the

8 Transfer Notice ("Election Period") electing a tejmiaation date sixty (60) days from the date of the

9 Recapture Notice. Landlord's Recaptmre Notice shall be accompanied by Landloid's paytaent to

10 Tenant of the Unamol-rized Costs as set forth in the Transfer Notice. In the event Landlord gives

11 Tenant a Recaptuie Notice within the Election Period, this Lease shall terminate as to all obligations

12 accruing on and aftet the date of termination designated by Landlord in the Recaptute Notice,

13 unless Tenant rescinds the Tfflnsfer Notice by written notice to Landlord given with twenty (20)

14 days following receipt of the Recaptute Notice. If Landlord does not give a Recapture Notice .within

15 the Election Period as provided for by this Section 19. 7, then at any time thereafter Tenant may

16 Transfer the entire Stole to the Transferee, provided that none of the provisions of this Lease shaU

17 be changed ia any fflaimei.

18 19. 8. Assignment or Sublet in Violation of this Article 19.

19 Any purported assignment or subletring by either party consummated in vioktion of the

20 provisions of this Article 19 shall, at the other party's election, be null and void, of no force ot

21 effect, and shaU be a default under this Lease. The receipt of rental from any party other than

22 Tenant shaU not be deemed a consent to an assignment or subletting, not relieve Tenant of its

23 obligations to pay rental 01 from its covenants or obligation of this Lease.

24 20. DEFAULTS/DISPUTE RESOLUTION/ATTORNEYS' FEES

25 20.1. Defaults.

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20. 1. 1. Tenant's Default.

(a) Breach. The occurtence of either of the following shall constitute a

default by Tenant pursuant to this Lease: (i) a failure by Tenant to pay Rent within ten (10) Business

Days after Tenant's receipt of written notice ftoffl Landlord specifying such failure; or fri) a failure by

Tenant to peifoan obligations pursuant to this Lease, other than as specified in (i) above, within thitty

(30) days aftet Tenant's receipt of written notice &om Landlord specifying such failure; however, such

thirty (30) day period may be extended for such period of time as may be reasonably lequired to

perform the obligation provided; (A) such obligation cannot be reasonably perfbnned witfain thirty

(30) days aftet such notice; (B) Tenant commences efforts to cure the default within thirty (30) days

after receipt of Landlord's notice of default; (C) Tenant diligently pursues completion of the obligation;

and (D) such cure period shall not exceed ninety (90) days after Tenant's receipt of Landlord s notice

of default. Tenant's withlioldmg, deducting or offsetting of, or failure to pay Rent pursuant to a bona

fide dispute between Landlord and Tenant shall not be deemed a default by Tenant under the

'Talm Springs"

Palm Springs Pkza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

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1 provisions of this Lease. Tenant, howevet, agrees to pay any undisputed amount in the event of a

2 bona fide dispute.

3 (b) Insolvency. If Tenant makes an assignment for the benefit of

4 creditors, or if any proceedings are comcienced under the provisions of the Bankruptcy Act whereby

5 Tenant seeks to be, or would be, discharged of its debts, or the payment of its debts are sought to be

6 delayed, this Lease shall be governed by the ptovisions of the Federal Bankruptcy Act.

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(c) Piohibirion Against Landlord Accelerating Rent

8 (i) Except as provided in Section 20. 1.1(c)(ii) below, and whether or

9 not Landlord taminates this Lease, Tenant shall have no obligation to pay Rent until the date it would

10 otherwise be due in the absence of Tenant's default Landlord shall have no right to accelerate Rent

11 which would become due except as provided hereafter.

12 (ii) In the event Landlord taminates this Lease due to a default by

13 Tenant, Landlord may recover from Tenant the balance of the Rent payable by Tenant for the

14 remainder of the Teem, nunus the fait market tental value of the Stole for such period, each

15 discounted to present value using a discount rate of the Federal Reserve Bank of San Fiandsco at the

16 time of the award, plus one percent (1%) per annum, together with the costs and expenses proximately

17 caused by Tenant's breach of dus Lease.

1 g (d) Peisonal Property Waiva-. Landloid waives such liens, if any, to which

19 it may have a right with respect to the meichandise, fumituEe, trade fixtures and other peaonal

20 property of Tenant located on or about the State, and Landlord shafl from tinie to time execute such

21 documents as Tenant may reasonably request to acknowledge such waiver.

(e) Landlord's Ranedy for Ifflpropet Offset. Certain provisions of this

Lease grant to Tenant the right to offset specified amounts against, or to deduct such amounts ftom,

Rent or other charges payable undet this Lease. The exercise by Tenant of any such right or Tenant s

witbliolding of any disputed amount of Rent or other sum shall not constitute a default under this

Lease by Tenant unless and until (i) an atbittatol pet Section 20.2.3 shall detennine by means of a final

awatd that such right to offset, deduct, or tefusal to pay has been exeidsed impt opedy by Tenant, and

(ii) following the entry of such award, and within thirty (30) days after teceipt by Tenant &om Landlotd

of a bffl in the amount deteanined by such award to have been itnpioperiy offset, deducted, or

.withheld by Tenant, Teuant shall fail to pay such amount to Laudlord, together with inteiest theteon at

the Legal Rate retroactive to the date that the offset or deduction was taken by Tenant

20. 1.2. Landlord's Default.

33 (a) Breach. Except for a viokrion by Landlord ot express provisions of

34 this Lease which require specific notice provisions which are shorter or longet than thirty (30) days

35 (which notice pj-ovisions shall control ovei the provisions of this Section 20. 1.2(a)), the occurcence of

36 the following shall constitute a default by Landlord pursuant to this Lease: Landlord's failure to

37 perform any of its obligations under this Lease, which default continues for a period of more than

38 thirty (30) days after leceipt of written notice froffl Tenant specifying such default; however, such thirty

'Talm Spriogs"

Palm Spruigs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

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(30) day period may be extended for such period of time as may be reasonably required to perform the

obligation (not to exceed ninety (90) days after Landlord's receipt of such notice) pmvided: (i) such

obligation cannot be reasonably perfotmed within thirty (30) days after such notice; (ii) Landloid

commences efforts to cure the default within thirty (30) days after receipt of Tenant's notice of default;

and (iii) Landlord diligendy pursues completion of the obligation. In addition to giving Landlord

notice as provided in this Section 20. 1.2(a), Tenant shaU give notice of any Landlord default to

Landlord's lender, provided Landlord has previously provided Tenant the name and address of the

lender at least twenty (20) days prior to the date Tenant gives notice. The lender shall have the same

opportunity as is provided to Landlord to perfocn any Landlord obligation which is the subject of

such notice.

(b) Remedies.

(i) General. Except as otherwise piovided in this Lease, in the eyent

of Landlord's monetary 01 material default undei this Lease, and in the event Landlotd fails to cute

same after an addirioml mnety (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 additiotial niaety (90) day

notice. Tenant may, at its option, upon written notice to Landlord, terminate this Lease, ot may incut

any expense necessary to perform the obligation of Landlord specified in such notice and deduct such

eitpense from the Rent 01 other charges coining due, ptovided that Tenant shall not be permitted to

teunina.te this Lease while such teaniaatton is bemg contested through any Arbitration or Mediation.

So long as Tenant has any right to set off a monetsuy obligation of Landlord from Rent (and the

amount of such setoff does not exceed the Rent then due for the remainder of the Term of this Lease),

Landlord shall not be considered to be in default of its monetary obligations hereunder.

(ii) Interruption of Utility Setvice. In addition to the temedies

described above, in the event Tenant is prevented from using the Store, or any portion thereof (the

"Unusable Area"), to conduct its normal tetafl operations for a period in excess of thirty (30) Business

Days ifwitfam 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 mterruption of any Utility service to the

Unusable Acea which is requited to be provided by Landlord pursuant to the tettns of this Lease, or

(B) due to Force Majeute, then the pmvisions of this SecUon 20. 1.2(b)(ii) shall apply. Tenant shall

promptly deliver to Landlord notice of the mta-ruprion (the "Intea-uption Notice") of such condition.

If any condition set forth in the fttst sentence of this Section 20. 1.2(b)(ii) shall not be cured within

forty-five (45) days after Landlord's teceipt of the Intetiuption Notice, then Tenant, upon notice to

Landlord after expttation of such period, may terminate this Lease either as to (1) the Unusable Atea m

which case this Lease shall be amended to reflect that the Unusable Area is no longer a part of the

Stole, and the Rent payable hereunder by Tenant shall be adjusted proportionately, or (2) the entire

Stole, which tettninarion shall be deemed effective upon Tenant's vacation of the entire State.

37 20.2. Alternative Dispute Resolution Process.

38 20.2.1. Means of Resolution. In the event that any controversy or dispute (Dispute ^

39 shall arise under this Lease and in the event that the patties have been unable to resolve such

40 Dispute -within thirty (30) days, the Dispute shaU be resolved as provided m this Section 20.2. All

41 Disputes, the monetary value of which exceeds Fifty Thousand Dollars ((50,000), or which involve

'Ta]m Springs"

Palm Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

-65- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 71 of 126
1 an equitable retaedy, shall first require the utilization of Mediation as provided in Section 20.2.2

2 below. All Disputes, the monetary value of which is Fifty Thousand Dolkts ($50,000) or less shall

3 be settled by Atbitration as discussed in Section 20.2.3 bdow.

4 20.2.2. Mediation. The parties shall first try in good faith to setde the Dispute by

5 Mediation pursuant to the provisions as set forth below. Either party may initiate Mediation. The

6 party commendng the Mediation shall fttst give a written notice (a "Mediation Notice") to the other

7 patty setting forth the nature of the Dispute. The Mediation shall be adtninistered by the American

8 Arbitration Associa.doa undet its Corrunetcial Medmtlon Rules, except to the extent that this

9 Section 20. 2.2 is incousistent therewith, in which event this Section 20.2.2 shall govern and pievail.

10 If the parties cannot agtee on the selection, of a Mediator within twenty (20) days after receipt of the

11 Mediation Notice, the Mediator shall be selected in accordance with the Atnericaa Arbitration

12 Association procedure. If the Dispute or any part thereof has not been resolved by Mediation as

13 provided above within sixty (60) days after receipt of the Mediation Notice, or if a party fails to

14 participate in Mediation, then at the option of either party by written notice, the Dispute shall be

15 detemuned by suit or action in court, unless it is a matter for Arbifccation as described in

16 Section 20. 2. 1 above. The costs of the Mediator and the Mediation service shaU. be shared equally

17 by the parties; each party shall otherwise bear its own costs incun-ed in connection with the

18 Mediation, mcluding its own attorneys' fees.

19 20.2.3. Axbittadon. Either or both parties may initiate the Arbiteation process. The

20 party mitiating the Arbitration process shall first give a written notice (an "Arbitration Notice") to

21 the other party setting forth the nature of the Dispute. The Atbitra.tion shall be administered by the

22 Ameflcan Arbitration Association in accordance with its Commercial Atbittation Rules, except to

23 the extent that this Section 20.2.3 is inconsistent therewith, in which event this Section 20.2.3 shall

24 govern and prevail. Judgment upon die awaid rendered by the Arbitratot may be entered in any

25 court of competent jurisdiction. Unless otherwise agreed to by the parties, the matter shall be

26 submitted to one (1) Arbitcator and shaU be heard in the state in which the Store is located. If the

27 patties cannot agree on the selection of an. Aibitrator within ten (10) days aftet the initiation of the

28 Atbitradon process, the Arbitrator shall be selected in accotdance with the Atnerican Afbitratioa

29 Association procedure, which selection shaU. be binding on the patties. The Arbitrator shall resolve

30 the controversy in accordance with applicable law and the tettas and conditions of this Lease. The

31 Afbitcator shaU. allow the parties reasonable opporfamitLes for pre-hearing dociim. ent exchange and

32 ofh.ec pre-hearing discovery of evidence as determined by the Arbitrator in his or her discretion. The

33 deteamnatioa of the Atbitratol shall be final, binding and conclusive upon the parties.

34 20.2.4. Confidentiality. Except as otherwise required by law, the parties. Mediator

35 and/or Aibitrator agree to keep confidential and not disclose to third patdes any infortn.ation or

36 documents obtained m connection with the Medution aa.d/or Arbitration process, mcluduig the

37 resolution of the Dispute.

38 20.3. Unlawful Detainet.

39 Landlord agrees not to file, prosecute, or maintain, any proceeding for eviction, unlawful

40 detainef, or temuna.tion of this Lease agaiast Tenant (and any such proceeding shall be nuU and

41 void) during the Alternative Dispute Resolution process as set fotth. m Section 20.2 and/or in the

Talm Springs

Palm Springs Plaza

Palm Springs, EL,

State No. 5296

6061. 1319/868020.7

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1 event of a bona fide dispute between the parties with respect to any alleged default by Tenant of any

2 provision of this Lease^ mcludmg, without limitation. Tenant's non-payment of Rent puisuant to

3 Tenant's right to withhold, deduct or offset Rent in accordance with this Lease.

4 20.4. Attorneys' Fees.

5 20. 4.1. Third Party Litigation. If either party becomes a party to any lirigation Cuicluding

6 AAitarion) concemmg thisYease, the Stole 01 the Shopping Center by reason of any act or

7 omission of the other party or its authorized representatives, and not by its own act or omission or

8 that of ks authorized representatives, the othet party shall be liable to thatpatty for reasonable

9 attorneys' fees, court costs, investigadon expenses, discovery costs and costs of appeal incurred by it

10 in the litigation.

II 20.4.2. Actions Between the Parties. If dthei party commences an action against the

12 other paxty arising out of or in connection with tfais Lease, or in the event of an Aibittatkm

13 proceeding between the parties relating to this Lease, the prevailing patty shall beentlde°1 to have

14 and recovei fixan the losing party reasonable attorneys' fees, costs of suit, investigation costs,

15 discovery costs, and expert witness fees and costs mcluding costs of appeal. When this Lease

16 imposes upon a puty an obligation to mdenmify the other, the mdefflffl&cation obl^tion shall

17 mdude the obligation to pay l£e indenmitee's leasonable attorneys' fees, costs and disbmsements,

18 whether the indemmtee be the plaintiff or defendant.

19 21. CASUALTY

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21.1. Definitions.

21.1.1. Casualty. Aa event, or act of God, such as fite, windstoan, flood, earthquake,

22 riot, civil commotion, stAe, perils or othei matters which are unforeseen and unpredictable,

23 whether insured or unmsiued, which causes damage or destruction to the Stole 01 the Shopping

24 Center.

25 21. 1.2.

26 21. 1.3.

Casualty Date. The date of the occurrence of a Casualty.

Peonitted Repair Period. A period of two hundred seventy (270) days following

27 the Casualty Date.

28 21. 1.4. Restoration (sometunes tefeaed to herein as "Restore"). Restoration, rebuilding

29 or repairs" due to a Casualty under Section 21.2 of this Lease or due to a Taking under Section 22.1

30 of this Lease.

31 21.2. Insured Casualty.

32 If the Store is damaged or destroyed by a Casualty insured against or that Landlord is

33 obUgated to insure against undet this Lease to the extent that Restoiation cannot leasonably be

34 completed within the Permitted Repaii Period, as reasonably deteifflined by LandlordI (and Landlord

35 shall ddivei notice to Tenant of such detemiinadon witfain sixty (60) days of the Casualty Date),

<CPalm. Springs

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

606I. 13I9/868020.7

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Tmant^nay, at its option, terminate this Lease as of the Casualty Date by notice to Landlord within

thirty (30) days after the kter of (a) Landlori's notice, or (b) the Casualty Date. If Tmant does not

^°.?a:?Tte t^is If;ase> °^ ifRestoJ'at:ion to the Store may be completed within the Peamtted Repair Period, then this Lease shall not terminate, and Landlord shall diligendy proceed to Restore die

Store to substantially the condition as existed immediately prior to the Casualty, and Landlord shaU

diligendy pursue such Restoration to completion. If the Restoration is not completed'within the

Pennitted Repair Period Tenant may tenmnsite this Lease by written notice to Landloid at any rime

pnor to the Redelivay Date. Notwithstanding the foregomg sentence, if Landlord notifies Tenant

in writing, within ten (10) days after Landlord's receipt" of Tenant's Tennmarion Notice. that the

Store will be completed within forty-five (45) days of Landlord's notice, then the effective date fbi

temmiation of this Lease shall be extended to the last day of such fotty-five (45) day period and, if

Landlord completes the Restotadon within that forty-five (45) day period, then Tena.nt's

Tenmnarion Notice shallba void and of no further force or effect. All Rent payable heieundetshaU a tte??m^he, <;:a5ual<7 Dateto the earliel of ®six<y (60) days foUowmg the Redeliveiy Date (but only if the Redeliye ty Date faUs on a Penmtted Delivety Day, and if die Redelivety Date does not

fau ^ ^ pel:fflitted Dellveiy Day, the sixdeth (60th) day foUowmg the next Penmtted DeliveiyDay);

o^ (ii) the date onjwhich Teiiant again opens for business m the Store (in either case the

"Recommencement Date"), provided that if Tenant continues to do business in the Stole during the

period of Restoration, Tenant's total obligation for Rent shall equitably abate with reference to the

nature, extent and duadon of the deprivation of Tenant's business in connection with such

Restoration and provided Purdiei that in the event of any dispute as to such equitable abatement

the matter shall be referred to Alternative Dispute Resolution pursuant to Section 202 above. TTie

election ^by Tenant. to carry the insumnce on the Shopping Centet pursuant to the teans of

Section 9. 1.4(b) shall not create any obligation on the part of Tenant to Restore, but Tenant shall

?*. !, _a:v^ble. to Landlord the Pl-oceeds &om such msumnce fol Landlord's use in dischargng Landlord's Restoration obligations under this Section 21.2.

27 21.3. Uninsured Casually.

If the Store is damaged or destroyed by a peril not coveted by the standard form of Special

Form Policy (hereinafter an "Uninsuied Casualty"), or if not otha-wise covered by Landloni's

uisuiance and die cost of the Restoadon of the Store as reasonably detetffliued by Landlord

exceeds by mole than Two Hundred Fifty Thousand Dollars (1250,000), the amount of insurance

proceeds available (i.e. net of any applicable deductible) to Landlord, Landlord shall have the option

to elect not to Restore the Store and to teminate this Lease on at least oinety (90) days prior written

notice to Tenant. If only the Store and no othet part of the Building contaimng die Stote is

damaged. Tenant may elect to pay the diffetence between the cost of Restoration and avaiiable

msumnce proceeds (the "Difference") by delivering written notice of such election, togethet with

payment of such Difference, to Landlord within thirty (30) days after deliveiy ofLandlmd's notice

of election to ^temunate this Lease. Upon receipt of such aorice and payment, the Landlord

temunation shall be deemed rescinded and Landlord shall proceed with the Restoration of the Store.

?L^°rdelec^. to. temmiat,T this Lease undel'. tus Section 21. 3 and Tenant does not elect" to" pay

the Difference, tUs Lease shall taminate as of the date set forth in Landlord's notice of elecdon to

tenninate this Lease. If this Lease is not tetfflinated under this Section 21.3, all Rent payable

hej-eundei shall abate &om the Casualty Date to the Recommencement Date; provided that if

.

Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061. 1319/868020.7

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Tenant continues to do business in the Store during the period of Restoration, Tenant's total

obligation for Rent shall equifably abate with reference to the nature, extent and duration of the

deprivation of Tenant's business in connection with such Restoration, and provided furthei: that m

the event of any dispute as to such equitable abatement, the matter shall be tefened to Altemsitive

Dispute Resolution pursuant to Section 20.2 above.

6 21.4. End of Team Casualty.

Notwithstanding any provision in this Article 21 to the contrary. Landlord shall not be

required to Restate any Casualty to the Store occumag during the final eighteen (18) months of the

,

!.erm ^Lthe .cost °f such Restoation is gieater than One Hundted Fifty Thousand Donais

ff 150, 000) unless, within thirty (30) days after receipt of Landlord's notice to Tenant that it intends

not to effect Restoration, Tenant exercises in writing any next immediately succeeding Option to

extend t-he Tom given Tenant hereunder. If Tenant does not elect to exeidse the next immediately

succeediag Option so as to extend the Tean, Tenant shall so notify Landlord within thirty (30) days

of Landlord's notice of election not to Restore, and, thereupon, this Lease shall terminate effective

as of the Casualty Date.

16 21. 5. Shopping Center Casualty.

In the event that the Store is not damaged or destroyed by a Casualty, but otfaet buildings in

the Shopping Center, or the Building, excluding the Store, or if any of the Common Areas, are

damaged or destroyed by a Casualty, whether or not insured against (coUectively a "Shopping Cmtei

Casualty"), Laniflord shall promptly remove all mbble and debris resulting ftoffl such damage ot

destructionand Landlord shall prompdy Restore the damaged buildings in the Shopping Center as

weU as the Common Areas as nearly as possible to the condition the same were in immediately prioi

to such damage or destmcrion. Notwitfastandmg anything to the contrary contamed herem, and

regardless of the extent of damage. Landlord shall promptly remove all rubble and debris so that the

Common Areas are usable. If Ae damage to the Common Areas shallender the whole or any patt

of the Store unsuitable for Tenant's use, all Rent payable hereunder shall abate &om the Casualty

Date to 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 natme, extent and duaarion of Ac 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, tfae mattei shaU be referred to Alternative Dispute Resolution pursuant to Section 20.2

above.

33 21.6. Intentionally Deleted.

34 21. 7. Tenant Restoration.

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If Landlord is obligated to Restore the Store under the terms of this Article 21 but does not

commence Restoration as soon as practicable after tfae Casualty, or does not continue the

Restoration of the Store thereafter with reasonable dispatch. Tenant, upon thirty (30) days' prior

notice to Landlord, shall have the right to terminate this Lease; ptovided that if Tenant elects to

continue to do business in the Store during the period of Restoration, Tenant's total obligation for

"Palm Springs"

Palm Springs PJa2a

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-69- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 75 of 126
1 Rent shall equitably abate with reference to the nature, extent and duration of the deprivation of

2 Tenant's business in connection with such Restoj-arion and provided that in the event of any dispute

3 as to such equitable abatement, the matter shall be lefetted to Alternative Dispute Resolution

4 pursuant to Section 20.2 above.

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21. 8. Waiver of Statute.

The parries waive such rights of Lease tennination as ale granted to them under the laws of

the state wherein the State is located, it being theil agreement that the rights of temunation in the

event of Casualty, as set forth herein, shall be exclusive.

9 21. 9. Laws.

If applicable governmental laws and leguhtions prohibit the Restoration of any damage to

the Store or Cocunon Aieas, either party may elect to terminate this Lease effective thirty (30) days

after the delivery to the othet party of written notice of the election to tettainate. Notwithstanding

anything in this Article 21 to the conttary, if applicable kws and regulations require seismic,

disability access, life safety 01 other retrofitting as a condition to Restoration and the costs of same

exceed Landlord's insurance proceeds, and if Tenant does not elect to pay Landlord the Difference,

then Landlord shall have the right to elect to temunate this Lease effective thirty (30) days after

delivery to Tenant of written notice to terminate.

18 21. 10. Tolling of Term.

During the period between Landlord's completion of Landlord's Restoration obligations and

the Recommencemeut Date, Tenant and Tenant's employees, agents and contractors shall have the

right to enter upon the State for the purpose of erecting, consttuctmg, or installing such

improvements, alterations, fixtures, equipment and fiimituie 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 Article 21, the Term shall toU for the period of such abatement, in which

event, the monthly installments of Rent following the end of the period of such abatement shall

iccommence and theceaftei continue at the same Rent rate that was iu 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 expiadon date of the then applicable Term (whether

the Imtial Term of any Option Period) and the commencement and expiration dates of any

subsequent Option Periods shaU be extended for the period of such abatement, as shall be the

deadline dates for notices exercising Option Periods. Any period of tolliag shall be added to the

calculation of the Initial Tenn (or any then cunent Option Period, as the case may be) for purposes

of the calcukrion of the Expiration Date. For example, if the Term of this Lease is tolled under the

provisions of this Section 21. 10 for a period of fout (4) months, and the tolling occurs during the

Initial Term, then the definition of Initial Tean in Section 1. 5. 1 shall be: "From the

Commencement Date through the January 31 next following the e3qutadon of one hundred

twenty-four (124) mouths theteafter."

'Trim Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

70 05/08/15

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21. 11. Effect of Teimination.

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Upon teifflination of this Lease pursuant to this Alricle 21, (a) each of the parties shall be

thereby released from all further obligations and dudes to the othet party as of the Casualty Date,

except for items and Uabfliries which have theretofore accrued and be then unpaid and for Tenant's

Pro Rflta Share of the Common Atea Charges for the partial year in which this Lease termmates, and

(b) Landloid shall piompdy refund to Tenant all unearned Rent and other amounts prepaid by

Tenant under this Lease.

8 21.12. Tenant's Right of Fitst Offer.

The provisions of this Atdcle 21 to the contrary notwithstanding, if this Lease is teiminated

. accoldanc:e 'wlt11 this Article 21, and Landlord elects to rebuild the Store or a substantially similar

building in Landlord's Parcel within one (1) yeai after the Casualty Date, Landlord shall, before

maiketing space in such building to any person or entity, fiist offer space in such building to Tenant

on terms no less favorable than those for which Landlord wiM matket such space on the open

matket If Tenant does not agree to the temis offered by Landlord, 01 the parties fail to execute a

letter of intent incotporating such terms offered by Laudloid, each within sixty (60) days after

Tenant's receipt of Landloid's offer notice. Landlord can proceed to market the Store and sign a

lease with any third party on terms no more favorable than those offered by Landlord to Tenant

22. CONDEMNATION

19 22. 1. Taking.

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A "Takmg" means any goveuunental act, condemnation pioceedmg, motatorium, initiative,

or referendum whereby Landlord or Tenant is divested of ownership or any of the incidents thereof,

or any transfet ia lieu thereof, and physical possession is taken by the governmental ot condemning

authority. In the event Tenant does not temiinate this Lease as provided in Section 22. 2 foUowing,

Landlcctd shaU promptly and diligently Restore the Store, Common Areas, ot ofhet space, as the case

may be, to as near their condition as existed prior to such Taking as is reasonably possible. During

the course of such Restojarion, if Tenant is not operating in the Stole, all Rent shaU abate &om the

date of the Taking to the Recommencement Date. If Tenant continues to do business m the Store

during the period of Restoration, Tenant's total obligation fol Rent shall be to pay Substitute Rent

within fifteen (15) days after the dose of each calendar month. When Restoj-ation is complete,

Tenant's total obligation for Mmimuni Rent shall be adjusted as provided in Section 3. 7 in the event

the size of the Store is leduced. When Restoration is complete, if the size of the Store is not

reduced, but the size of the Common Areas is teduced, Minimum Rent shall theieaftei be reduced

to an amount calculated by multiplying the Minimum Rent stated m this Lease by a fiactioa the

numeratol of which is the fail market rental value of the Store immedktely following the Takiag and

the denofflinatol of which is the fair market rental value of the Stole immediately priot to the

Taking.

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

-71 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 77 of 126
1 22.2. Right to Terminate.

2 Tenant may tenninate this Lease upon written notice to Landlord in the event of any one or

3 more of the following Takings:

4 22.2.1. ATakingofany portion of or interest in the Stole;

22. 2.2. Any Taking of the Corcunon Areas if the number of parking spaces is reduced

6 below the number required under applicable Requirements, 01 access to the Store is mateaaUy

7 impaired, ot access to the Shopping Center is materially impaued;

8 22.2.3. Any Taking of any poition of the Shopping Center which icipaus the operation

9 of Tenant's business; or

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22. 2.4. Any Taking of twenty percent (20%) or mole of the Leasable Floor Ajtea of the

Shopping Center (not including the Store in either the numetatoj; or denominator of such

12 calculation).

13 22.2.5. Landlord shall promptly notify Tenant of any Taking. Tenant's termination must

14 be exercised by written notice to Landlord given within sixty (60) days following the date of

15 Tenant's receipt of Landlord's notice of the occurrence of such Taking (as defined m Section 22. 1).

.

_ 22. 2. 6. Lsiadloid may temunate this Lease upon written notice to Tenant, within sixty

17 (60) days following the date of such Taking, in the eyent of any one or both of the followiag

18 Takings:

w A Taking of the Store; or

(b) Any Taking of fifty percent (50%) or more of the Leasable Floor Area of

the Shopping Center (not mcludmg the Store in either the numeiatol of deuommator of such

22 calculation).

23 22.3. Claims.

Notbiag herein contained shall pieveut Lanctloid and Tenant &offl piosecuring ckuns in any

condemnation ptoceedings or otherwise for the value of their respective iutetests, as well as any

damages.

27 22. 4. Waiver.

The parties waive such rights of Lease temunarion as may be granted them in the event of

condemnation by the laws of the state wheiein the Store is located, it being their agreement that the

rights of tecmination set forth in this Lease shall be exclusive.

(Talm Springs"

Palm Springs Pkza

Palm. Springs, EL

Store No. 5296

6061.1319/868020.7

-72- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 78 of 126
23. MECHANIC'S LIENS

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Pursuant to Florida Statutes, Section 713. 10, it is the intent of the parties that Landlord's

mteiest m the Store or Landlord's Pared shall not be subject to any liens ffled for improvements

made by Tenant and/or because of Tenant's failure to make timely payments in connection with

Tenant's Work a.t or on the Store. The Memotandum of Lease provided foi in Section 26. 15 shall

expressly give notice of and prohibit such liability by Landlotd as stated m the pieceding sentence.

Landlord and Tenant shall prevent any mechanic's, materialman's ot other liens against the Store or

Landlord's Parcel in coimecrion with any kbor, materials or services famished or ckimed to have

been furnished. If any such lien shall be filed against the Store ot Landlotd's Parcel, the party

through whom die lien arose will cause the same to be dischaiged witbm thirty (30) days of the filing

of the lien, provided, however, that either party may contest, 01: cause to be contested, any such lien,

so long as the eafoicement thereof is stayed by bonding 01 otherwise expunging the lien £tom the

official property recoids m the jurisdiction. Tenant agrees that Landlord shall not be requited to

bond or expunge the lien; however. Landlord agrees that Tenant shall nevertheless be mdenuufied

for any actual and reasonable costs incuored as a result of a lien filed in connection with labor.

materials or service supplied at Landlord's request In addition, if a mechanic's lien is recorded as a

result of work done by any other tenant of the Shopping Center, Landlord shall not be tequired to

bond or expunge such lien so long as Landlord demonstrates to Tenant that pursuant to Flonda kw,

such mechanic's Hen does not encumber the Shopping Center.

20 24. SIGNS

21 24.1. Governmental Approval and Compliance.

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All signs shall be subject to approval by local govecunental authority. Landlord shall

cooperate fuUy with Tenant and assist Tenant in Tenant's efforts to obtain approval for Tenant's

signs as shown on Exhibit J ("Tenant's Signs") and made a part hereof, &om the local

governmental authority. Landlord's apptoval for a change to Tenant's signage on the arterictt of the

Store or Tenant's sign panels on the Shopping Center's pylon signs shall not be required if such

change is in connection with a cotpotate-wide and/or mulri-store signage change"program by

Tenant however, such change shaU not materially inctease in size and shall be subject to the

appmval of the local governmental authority. Landlord approves of aU Tenant's Signs shown on

Exhibit J.

31 24.2. Building Signs.

Tenant may erect and maintain Tenant's Signs upon the exterior of the Store, as specified on

Exhibit J. Tenant's Signs shaU be induded by Landlord in the sign criteria for the Shopping Center.

Tenant's Signs, including Tenant's signage on any sign stmctttte(s) provided by Landlord, shaU be

fabricated, installed and maintained by Tenant at its sole cost and expense and, at Tenant's election,

shall be of no less sign area than the largest sign of any othet tenant or occupant iu the Shoppmg

Center. Subject to governmental approvals, in no event shall Tenant's store&ont signs be

configured with less than an dghty-fout (84) inch "dd's" and a thirty-thtee (33) inch .

DISCOUNTS" and a twenty-eight (28) inch "Ladies-Kids-Men-Shoes-Home" department sign.

Talrn Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

73 05/08/15

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Tenant shall have the right, but not the obligation, to install under-canopy signs ifpennitted by local

governmental authority. In the event the sign criteria for the Shopping Center require only a

specific type or style of undei-canopy sign, then Tenant shall have the right to approve any such

under-canopy sign prior to such under-canopy sign*s installation -

5 24.3. Pylon Signs.

6 Landlord shaU, at its sole cost and expense, tnamtain and repair the pylon sign stmcture(s)

7 specified in the Site Plan and Exhibit J. Tenant may install and maintain Tenant's sign panels as

8 specified in Exhibit J. Landlord shaS. cooperate fuHy with Tenant and assist Tenant, at Tenant's

9 sole cost and expense, in obtaining sSs. pennits to install Tenant's sign panels on Landlord's "North

10 Pylon" and "Middle Pylon" sign stmctures as specified on Exhibit J. The size and location of the

11 panels shall be as specified in Exhibit} attached hereto. Landlord shall provide, at Landlord's sole

12 cost and expense, blank panels fol Tenant's pylon signage, with panel faces made of the material

13 Landlord requires on all pylon signs at the Shopping Center (e.g., acrylic, alummum or othei material

14 reasonably specified by Landlord for such sign panels). Tenant shall have the right to decorate such

15 blank panels with Tenant's logo and/ot trade name in foanat and color typically used ot adopted by

16 Tenant. Tenant shaU pay for the expense nf installing and main rain ing its sign panels on the pylon

17 sign 5teuctuie(s). Utility charges and maintenance and repail for the pylon sign(s) on which Tenant

18 places its sigu panels shall be paid through Tenant's Common Area Charge.

19 24.4. Temporary Signs.

During the period of consttucrion described in Section 5. 1, Tenant shall have the right to

construct temporary signage adjacent to and/oi on the Store and at the perimeter of the Shoppiag

Center indicating the anticipated opening of the Store for business. Addirionally, Tenant may,

through the thittieth (30th) day foUowing the opening of the Store fot business, advertise such new

business by means of banners, flags and othet signage attached to the Store, provided only such

temporary signage is (a) pennissible undet local ordinances, and (b) does not peananendy damage

the building exterior.

27 24.5. Visibility of Tenant's Store and Signs.

28 Landlord's obUgadoas and Tenant's lights set forth in this Section 24. 5 are subject to

29 applicable Requirements. Landlord covenants and agrees that no landscaping, stmctmes (othet than

30 those existing on the Effective Date) 01 other unptovefflents shall be installed or pecmitted ia the

31 Shopping Center which materially and adversely interfere -with or materially and adversely obstruct

32 the visibility of the Stole ot any of Tenant's Signs (each, a "Material Obstruction"). Landlord

33 further covenants and agrees that it shall regularly ptune the landscaping in the Shopping Center so

34 that such landscaping does not result in a Material Obstruction. If any such landscaping, structures

35 or other impiovefflents are or become a Material Obstcucrion, Tenant may give Landlord -written

36 notice thereof and Landlord shall have fifteen (15) days from the date of Tenant's notice to remove

37 or alter the structures or other tmprovements or to remove or prune the landscaping to eliminate

38 such Material Obstruction ("Cotrecttre Measures"). If Landlord fails to complete the Collective

39 Measures prior to the expuadon of the fifteen (15) day period, then Tenant shall have the right, at its

40 election and upon written notice to Landlord of such election, to take such Collective Measures as

"Palm Springs"

Palm Springs Plaza.

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

74- 05/08/15

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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 80 of 126
Tenant deems teasonably necessary to eliminate the Material ObsO-uction, and Tenant may deduct

the cost of such Corrective Measures from Rent due under this Lease.

25. NOTICE

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Any notice to be given in connection with this Lease shall be in writing and shall teference

(a) this Lease, (b) the store number which has been assigned to the Store by Tenant (if known to

Landlord), and (c) the location of the Stole. The notice shafl be seryed (i) personaUy, or (ii) by

certified mail, tetum receipt requested, or (ill) by reputable couriei service which provides written

evidence of delivery, addressed to Landlord as specified in Section 1.2. 1 and addressed to Tenant as

specified m Section 1.2.2 (ot to such other address as requested by either party in writing), 01 (iv) by

telephone facsimile upon which the date and time of transmission is machme unprinted to the

number specified m Section 1.2. 1 as to Landlord and as specified in Section 1.2.2 as to Tenant,

provided that a copy of the notice is concunendy sent by reputable courier service in accordance

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with clause (iii) above. Copies of any notices sent to Tenant (addressed to Tenant as specified in

Section 1.2.2) shall also be sent to Bartko, Zaakel, Bunzel & Miller, One Enibaicadem Center,

Suite 800, SanFrandsco, CA 94111, Attention: Ross Notices. All notices given in the fflanna:

specified herein shall be effective upon actual receipt or upon refusal to accept delivery.

Either party, by written notice to the otlier, may designate two (2) additional parties to

receive copies of notices. Any notice party to this Lease may change its address 01 location foj:

service of notices, for themselves 01 any of theit respective designees by written notice.

20 26. GENERAL CONDITIONS

21 26.1. Partial InvaUdity.

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If any term, covenant, condition, provision 01 lestricrion of this Lease is held by a Court of

competent jurisdiction to be iavalid, void or unenforceable, the remaindec of the provisions hereof

shaU remain in full force and effect and shall in no way be affected, ilnpaiied, or invalidated theieby.

25 26.2. Relationship of Parties.

Nothing contained in this Lease shall be deemed or construed by the parties hereto or by

any thitd person to create the relationship of principal aud agent, 01 of partnership, or of joiat

venture, or of any othet zssociarion between the parties other than Landlord and Tenant, or to

prevent Landlord or Tenant from entering into ventuces in diiect competitiou with the Shopping

Center, or the Store.

31 26. 3. Time.

Time is of the essence in the petfottnance of each provision of this Lease.

Talm Springs"

Palm Springs Plaza

Pa]m Springs, EL

Store No. 5296

6061. 1319/868020.7

-75- 05/08/15

RNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 81 of 126
1 26.4. Waiver.

2 The waiver of the petfonnance ot any teem, covenant, condition, provision or testricrion of

3 this Lease by Landlotd or Tenant shall not be construed as a waiver of any subsequent breach of the

4 same term, covenant, condition, provision or restriction. The various rights, options, elections,

5 powers and remedies of the parries contained in this Lease shall be construed as cumuktive and no

6 one of them exclusive of any other or of any legal or equitable remedy which either party might

7 otherwise have in the event of a breach by the other, and the exercise of one right or remedy by a

8 party shall not in any way ifflpaic its right to any othet right or remedy.

9 26. 5. Partial Months.

10 For purposes of computuig dates for expirations. Option Periods, Rent adjustments 01

11 canceUarions (except for those dates spedficaUy designated heiem), any partial month at the

12 commencement of the Term shall be disregarded.

13 26.6. Consent.

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Unless a different standard is otherwise spedficaUy stated, wherever in this Lease Landlotd

ot Tenant is required to give its consent or approval to any action on the part of the othei, such

consent or approval shall not be unreasonably withheld, conditioned or dekyed.

17 26. 7. Gendet.

Words of gender used ta this Lease shall be deemed to include othet genders, and singular

and plural words shaU be deemed to include the other, as the context may tequire.

20 26.8. Governing Law.

This Lease shafl be construed in accotdance with and governed by the laws of the state

wherein the Store is located, except as otb-etwise tequired by mandatory provisions of law.

23 26.9. Due Authority.

Each individual executing this Lease on behalf of Landlord or Tenant (in his/het

representative capacity only) represents and warrac. ts that he or she is duly authorized to execute and

deliver this Lease on behalf of the applicable entity and that this Lease is binding upon the entity.

26.10. No Prior Agreements.

It is understood that there are no otal agieanents or repieseatarions between the parties

hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations,

aaangements, brochutes, agteements or tepiesentadons and uaderstandmgs, if any, between the

parties hereto or displayed by Landlord to Tenant with tespect to the subject matter thereof, and

none thereof shall be used to intetptet or construe this Lease. There are no othet representations or

33 waaandes between the parties, and all reliance with respect to representations is solely upon the

rPa1m Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-76- 05/08/15

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representations and agreements contained in this Lease. This Lease may be modified 01 amended

only by an agteement in wtitmg signed by the parties hereto.

3 26. 11. Eatiy by Landlord.

Upon reasonable prior notice, in no event to be less than five (5) Business Days (except in

the case of a bona fide emergencjr, in which event, no prior -written notice shall be requnred, but

prior verbal notice shall be tequired and promptly confinned in writtng thereafter). Landlord may

enter the Store during Tenant's business hours for purposes of inspection, to show the Store to

prospective putchasers and lenders, or to perfonn maintenance and repair obligations imposed upon

Landlord by this Lease. All maintenance, repairs 01 lepkcements by Landlord to the mterictt of the

Stole 01: using the interior of the Store or maintenance, repatts or replacements to any portion of the

Shopping Center that will create dust, noise, vibiarion ot other disturbance of Tenant's use of the

Stole shall be perfoaned only during hours that the Store is not open to the public. Should

Landlord unreasonably interfere with Tenant's busiaess by such entry. Rent shall equitably abate m

an amount reasonably determined with reference to the nature, extent and duration of the

deprivation of Tenant's business in connection with Landlord's entry into the Store. In the event of

any dispute as to such equitable abatement, the matter shall be refeaed to Alternative Dispute

Resolution pursuant to Section 20.2 above.

18 26.12. 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 01 mterpi etadon of any provision of this Lease, no

presumption, inference or conclusion shaU be drawn against the party that dta&ed the provision in

question.

23 26. 13. Force Majeiue.

As used in this Lease, the term "Force Majeuie" means delay resulting &om causes beyond a

party s reasonable control such as strikes, walkouts or othet labor disputes; acts of God; inability to

obtain hbor, materials 01 fflerchandise; judicial orders; war; riot or civil commotion; file or Casualty;

governmental laws ot regulations (hereinafter "governmental matters"), provided that

govetmnental matters" shall exclude planning and building permits, governmental inspections,

permanent or temporary certificates of occupancy (ot their equivalent in the applicable local

jurisdiction) and simikr governmental approvals. The party obliged to perform shall give 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 Potce Majeute, either patty shall be

delayed or hindered or prevented &om the perfonnaace of any act requited hereunder (other than

the making of payments) within the rime period set forth herein, the peifoanance of such act shall

be excused for tfae period of delay not to exceed sixty (60) days, and the period of petformance of

such act shall be extended for a period equivalent to the period of such delay, not to exceed sixty

(60) days, unless a ptovision of this Lease expressly states that Force Majeuie is not applicable.

Fiaandal inability to perform shaU not constitute an event of Force Majeuie.

Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-77 05/08/15

ETNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 83 of 126
1 26. 14. Successors in Interest.

2 The terms, conditions and covenants herein contained shall inure to the benefit of and be

3 biadiag upon the heirs, assigns and other successors in iat&test to the parties hereto, except as

4 otherwise provided in this Lease.

5 26. 15. Memorandum of Lease.

6 This Lease shaU not be recorded. However, a Memorandum. of Lease shall be executed, in

7 recordable fomi, by both parties coa.cui:ren.tly hetewith. Either patty may record the same at its own

8 cost and expense.

9 26. 16. Real Estate Brokers.

10 Landlord and Tenant each represents and warrants ro the other party that it has not

11 authorized or employed, or acted by implication to authorize 01 employ, any real estate broker or

12 salesman to act for it in connection with this Lease, other than The Shopping Center Group, LLC

13 (Broker"), who shall be paid by Landlord at the rate of Thtee Dollars (t3) per square foot of

14 Leasable Floor Area in the Store Agreed Size, for a total commission of Sixty-Six Thousand Dollars

15 ($66, 000), fifty percent (50%) upon the expiration of aU contingencies to this Lease becoming

16 effective, and fifty percent (50%) upon the earUer of (a) Tenant opening the State foj" business, or

17 (b) the Commencetnent Date. Landlord and Tenant shaU each indenmtfy, defend and hold tihe

18 other party harcnless from and against any and all claims by any othet teal estate broker or salesman.

19 whom the indemnifytag party authotized or etnployed, ot acted by iinplLcatioa to authorize or

20 employ, to act fot the indenmifying party in connection with this Lease. Fucthej:, in the event

21 Landlord fails to pay the Broker within ten (10) days of the date that such comtnission is due to be

22 paid, and Landlord fails to pay the Broker within ten (10) days following receipt of written notice

23 ftotn Tenant, thereaftet Tenant, at its option, may pay the Broker's fees and deduct the sam. e from

24 Rent as it comes due.

25 26. 17. Intentionally Deleted.

26 26. 18. Lunitation of Landlord's Liability.

27 Except fot Landlord's (a) fraud, or (b) intentional mateaal misconduct or misrepresentation,

28 Landlord's liability heteunder shall be limited to Landlord's then interest ia the Shopping Center for

29 Jrecovery of any judgment against Landlord, and/or other assets of Landlord (or its reptesentatives,

30 agents, partners, shareholders, directors, employees, fiduckries, metnbeirs or officers) shaU be subject to

31 any action or proceedmg for the enforcement of any right ot temedy of Tenant hereundet nor shall

32 Landlord (or its representatives, agents, partaets, shareholders, directors, etnployees, fiduciaries,

33 members or officers) be personally liable for any Judgment under this Lease.

34

35 26.19. OFAC Statement.

36 Landlord and Tenant, each for itself, represents that it is not Usted, nor is it conttolled by, or

37 acting for or on behalf of, any person or entity on. the list of Specially Designated Nationals a^id

CCPa3m Springs"

Palm Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/868020.7

78- 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 84 of 126
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

Blocked Persons that is maintained by the Utface ot l-bnagn Assets Conttol ("OFAC") of the United

States Department of the Treasuty (the "OFAC List"). Laudloid and Tenant, each for itself,

tepcesmts to the best of its hiowledge that it is not cun-endy engaged in any ttansactions or dealings or

otherwise associated with any person ot entity on the OFAC List m connection with the use or

occupancy of the Store. Notwithstanding anything to the conttaty stated herein, neither Landlord nor

Tenant shall knowingly peanit the Stole or any portion thereof to be used, occupied or operated by or

for the benefit of any person 01 entity on the OFAC list.

8 26.20. Confidentiality Agreement.

Landlord and Tenant agree to keep the terms of this Lease confidential and not to disclose

any information with regard to this Lease, iacludmg, but not limited to, any infonnation regatding

Rent, Store opening dates. Tenant's sales figuies or estimated sales figures, except that each part may

lelease such mfoimation to: (a) its accoimtants, professional advisors, attorneys, iavestors, lenders

and prospective purchasers of Landlord's Parcel ot prospective assignees of Tenant's intetest in this

Lease, as applicable, to the extent jreasonably necessary for the applicable party's business purposes,

(b) as lequired by a subpoena, court ordet, in coimecdon with litigation between the parties, 01 as

otherwise required by law, rule or regidation, (c) as requited fot any SEC filing by Landlord or

Tenant, and (d) m order to enforce the terms of this Lease. Under no circumstances shall Landlord

issue press leleases or make public disclosure to the media or other third parries (mcluding via

postings on the Internet) regarding Tenant's anridpated occupancy. Stole opemug, and any

provisions of this Lease, nor shaU Landlord post the terms of this Lease without the prior written

consent of Tenant, which consent shall be at Tenant's sole discretion. Notwithstanding the

foregoing, the recording of the Memorandum of Lease disclosing the Ross Prohibited Uses set forth

in Section 3.2. 1 and the Protection clause set forth in Section 15.3, approved and executed by

Tenant and recorded pursuant to Section 26. 15, shaU not be deemed to violate the provisions of this

Section 26.20. In addition. Landlord may disclose the Ross Prohibited Uses set forth in

Section 3. 2. 1 and the Piotection clause set forth in Section 15. 3 of this Lease to tenants and

prospective tenants of Laadlcutd's Parcel without Tenant's prior consent In the event of a bleach

of the obligations under this Section 26.20 by Landlord and/or its employees ot agents, Tenant

shall, foi the Elst breach, issue Landlord a cease and desist notice. Nothing herein shall pteclude

Tenant from exercising auy rights ot lemedies available at kw or in equity or under this Lease in the

event of a bleach of this Section 26. 20.

[REMAINDER OF TfflS PAGE INTENTIONALLY LEFT BLANK]

'TPalm. Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

79 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 85 of 126
1 26.21. No Offer.

2 The submission of this Lease for examination and negotiation does not constitute an offer to

3 lease, or a reservation of, or option fot, the Stole, and this Lease shall not become effective or

4 binding until this Lease has been fuUy executed by both Landlord and Tenant and an executed

5 original of this Lease has been delivered to each party.

LANDLORD:

PHILIPS LAKE WORTH LLC,

a Florida limited liability company

TENANT:

ROSS DRESS FOR LESS, INC.,

a Virginia coiporarion

Name: l^n^. ^Qj3. rr7jy\^ _ /james:

Its: <;562e^P!JraAjt^ jTlA.fcdrX.U^^ Its:^Pl:esident

Fa^sio

Witness: teX:Li~0L-TT3^ 0\a^)eC> Witness:

Printed Name: -^-UOU-YCI CWcjli>o Pnnted Name:

Witness: '^Lya. 'cA} ^/)._LCt^V^, Witaess:_

Printed Name: ^-/^-''cJct (?^TC ^2- Printed Name:

By^_

Name:

Its:

hief Developmentflfficet

p3L^

^nd/'i^^^c/'s,

\^^^_^ rp.iAu^1

Witness:

Printed Naffle:_

Witness:

Printed Name:

dfegg McGiUls

Its: Group Senior y^e President, Property Devdopmeat

Witness:. ^L-^^/

Printed Name:

Witness:

Printed Name: (/h, [^lj 0tll;'\

Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/868020.7

-80- 05/08/15

HNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 86 of 126
A notary public or other officer completmg this certificate verifies only the identity of the mdividual

who sdgaed the document to which this certificate is attached, and not the tcuthfulness, accuiacy, oi

validity of that document

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

State of California

County ofAIatneda

)

On /%(//^, c?0/£ before me, l^t ^ ^^T

a Notary Public, personally appeared Jatnes Fassio and Gregg McGiUis, who proved to me on the basis

of satisfactory evidence to be the peison{s) whose name(s) is/are subscribed to the -withm msttument

and acknowledged to me that hc/shc/they execated the same in his/hcr/theu: authorized capacity^Les),

and that by his/hct/theit signaturefs) on the instrument the petson{s), or the entity upon behalf of

which tfae person^s) acted, executed the mstmment

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing

paragcaph is true and correct.

WTTNESS my hand and official seal.

^

SANDRA POWERS

Commission # 2048841

Notary Public - California i

Alameda County S

^%W. / M

Notary Public

State of

MyComm. ExplresDec11. 2017

f[of-i~c)c,

County of /ui I'ft/Tfl'- f) ft0^. )

On ^fl^_^0_^0^"before me, A"^ fllc^- ^-<-< ^ rno-2- . . a Notal7 public.

personally appeared {J I'ftD <9 7^/ Pr«C>fX- _, personany known to me, ot who

proved to tne on the basis of satisfactory evidence to be the person(s) whose aame(s) is/are subscdbed

to the within ta.sbtum. ent and acknowledged to me that he/she/they executed the same in his/hec/th. eir

authorized capacity(ies), and that by his/her/theii: signature(s) on the uistcument the person(s), or the

entity upon behalf of which the person(s) acted, executed the iastrument.

WITNESS my hand and official seal.

MAIDA GUTIERRE2

\ Notary Public-Stir olfloridl

.

j My Comm. Explrw Apr 38, 2017

;^y&^ CommlMtoiKEEMWU

''"SS^' Bomlal Through IUioiulN«l»>»u«.

^..{0^

Notary Public

"Palm Springs"

Palm Spangs Plaza

Palm Springs, EL

Store No. 5296

6061. 1319/868020.7

-81 05/08/15

EENAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 87 of 126
EXHIBIT A

LEGAL DESCRIPTION OF THE SHOPPING CENTER

Aportion of Section 19, Townsh^ 44 Soutl, Range43 East, according to the Plat thereof, recorded in PlatBook6. Paaa

eg, of the PuUlc Reconls of Palm Beach County. Florida, more particularly descrtbed as Mlows:

Commence at the Northeast comer of Lot 1, Block 75-A, of that certain plat of a REPLAT OF A PORTION OF VILLAGE

OF PALM SPRINGS PUS NO. 8, accoiding to ihe Plat thereof, recorded In Plat Book 26. page116. of the Public Recoris

of Palm Beach County, Rortda. Uwncs nin South 89 degrees 42 minutes 47 seconds East, along a line parallel to and 55

feet South of as measured at rtght angles to the North line of the South 1/2 of the Northeast 1/4 of Section 19, Townshf

44 South. Range 43 East for 397. 36 feet to the Point at Beginning; thence continue along the last described course for

725. 14 feet to a point of curvahjre, thence run along a curve to the right liavtng a racUus of 25 feet and a central angle of

89 degrees 42 minutes 47 seconds for an are distance of 39, 14 feet to point of tangency; thence run South 00 degrees 02

minutes 00 seconds East atong a line parallel to and 40 teet West of as measured at rtj^it angles to the East Une of the

Northeast 1/4 al Sectton 19 for 1 223. 40 feet; thence run North 89 degrees 43 minutes 04 seconds West along a line

parallel to and 40 feet North of, as measured at right angles to the South line of the said Northeast 1/4 of Section 19 for

750. 01 feet to a point; thence run North 00 degreas 02 minutes 00 seconds West along a Uno parallel to and 790 feet

West of. as measured at right angles to the East line of the Northeast 1/4 of Section 19, for 1,248.11 feet to the Point of

Beginning; LESS (tie West 123,64 feet thereof and less the East 10 teet as additional right-of-way for Congress Avenue.

LESS AND BtCEFTINQ THEREFROM that parcel of land as conveysd to PALM BEACH COUNTY by that Right-of-way

Warranty Deed recorded In OUdal Records Book ?102. Page 1830, of the Public Records of palm Beach County, Florida.

ALSO LESS AND EXCEPTING THEREFROM that parcel of land as conveyed to LAKE WORTH DRAINAGE DISTRICT

by that Quit Claim Deed recorded in Oflldal Records Boolt 14174. Page 1178. of the Public Records of Palm Beach

County, Florida, described as fctows: The South 40 )Bet of th8 East 790 feet d the South One-Half (8 1/2) of the

Northeast One-Quarter (NE 1/4) of Section 19, Township 44 South. Range 43 East. less the West 123.64 feet and the

East 60 feet. Palm Beach County. Ftortda.

'Talm Springs"

Palm Springs Plaza

Palm. Springs, EL

Store No. 5296

606I.I319/909678.1

BXHIBFTA 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 88 of 126
^

<~-""""»Wa. ^». mm»,. »,. v»»l^wwma,.. mmwVMIta.ww

I

E61

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 8
EXHIBIT C

ROSS BUILT

CONSTRUCTION OBLIGATIONS OF TENANT

(LANDLORD PAYS NO CONSTRUCTION COSTS)

1. Description of Work. To effect completion of the work described in the Final

Pkas (hereinaftei caUed the "Wotk" or the "Itnprovements"), Landlord authorizes Tenant to act as

consttuction supervisor. The duties of Tenant as construction supecvisoi shall mclude the

obligation to arrange, contract (m Tenant's name) and pay for the famishing of all kbor and

taateriak to construct and complete in a good, expedirious, workmaclike and substantial mannet the

Improvements. In its capacity as construction supetvisor. Tenant shall supervise and diiect aU

Work, using its best skill and attention. Tenant shall be solely tesponsible for all construction means

and methods, techniques, sequences and procedures, and for coordinating all potrions of the Work.

All Wotk shall be performed in accordance with this Agreement DdegaUon to Tenant of the

obligation to construct the Improvements in no way constttutes a waiver of Landlord's ownership

rights in the Improvements as provided in Section 12. 1 of the Lease. Capitalized terms used herein

shall have the meanings ascribed to them in the Lease, unless expressly defined herein.

2. Preliminary Plans. Tenant shall deliver to the Landlord a set of plans and

specifications (hereinafter the "Preliminary Plans") for tfae improvements within ninety (90) days

after the later to occur of (a) the date of execution of the Lease by both Landlord and Tenant, or

(b) Landlord's delivery to Tenant of "as built" plans for the Store to the extent avaikble to

Landlord, which "as built" plans, if available to Landlord, shall in no event be delivered more than

ten (10) days after execution of the Lease. In the event a proceeding fol a Land Enridanent Petfflit

is required the time for delivery of the Preliminaty Plans shall be extended by the period lequiied

for acquisition of such enridement permit in accordance with Section 6 below.

3. Final Plans. Within fifteen (15) days following the date the Prelimmaty Plans are

delivered to Landlord by Tenant, Landlord shall, in writing, appiove or disapptove said plans, which

approval may not be unreasonably withlield. The sole reasonabk ground fot Landlord's disapproval

of Preliminary Pkns, or any part thereof, shall be that the Improvements described are of such a

special putpose and nature that a subsequent tenant in the same business as Tenant could not

reasonably use the Improvements for its own purposes. Preljmmaty Plans approved by both

Landlord and Tenant are hereinaftet leferced to as "Final Plans." Any disapproval must be

accompaaied by a specific description of the revisions Landlord would require ia order to approve

the Ptelimmary Plans, which revisions must be reasonable. In the eyent the Preluninaiy Plan!; are

disapproved by Laadlord, Tenant shall incotporate mto the Pielimmary Plans the su^ested

revisions received from the Landkad, and shall lesubmit such revised Prelimmaiy Plans to Landloid

within thirty (30) days following teceipt of Landlord's notice of disapproval; Landlotd shall have

fifteen (15) days theieafter in which to approve or disapprove the same, and in the event Landlord

disapproves the same, such disapptoval shall be on teasonabk grounds stated in writing. In lieu of

adopting Landlord's suggested revisions, Tenant may negotiate with Landlord for modifications of

suggested revisions within the ensuing thirty (30) day period. If the parties cannot agree on the

Final Plans, the Lease may be tenmnated by either party by written notice to the other at any time

following expuation of the thirty (30) day period following Landlotd's disapproyal, except, howCTei,

"Palm Springs"

Palm. Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/870647.2

Exmarrc

Page 1

05/08/15

FD\[AL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 90 of 126
that Landlord shall not have the right to tenniaate if its approval of the Pteltminary Plans has been

uaieasonably witfalield, or disapproval of the Pielimmary Phns has not been on reasonable grounds.

In the event Landlord fails to disapprove the Pteliminaiy Plans or Tenant's revisions thereto, in

writing, or fails to state the reasons for disapproval or disapproves the same on umeasonable

grounds within the fifteen (15) day time period set forth above, then such Prelimmary Plans or

revisions thereto shall be deemed approved. Tenant shall have the right, without Landlord's

consent, to modify the Final Plans in connection -with non-structural alterations or improvements to

the interior of the Store and signage on the exterior of the Store (subject to the provisions of

Article 24 of the Lease with respect to Tenant's signage on the exterior of the Store).

4. Site Plan. Any site plan included in the Final Pkns shall confonn generally to

Exhibit B of the Lease. The Store shall contain approximately the number of square feet as set forth

in the Lease.

5. Approvals and Permits.

(a) Upon approval of the Final Plans by both parties, Tenant shall forthwith

make application to all appropriate governmental agencies for aU necessary buildmg petmits, licenses

and other grants for authority which may be required in connection with the construction of the

Improvements (hereinafter collectively the "Building Permit") or the installation of Tenant's signage

(the "Signage Peanit"). Upon issuance of the Building Permit, a final mitialed and dated set of plans

reflecting all govern mentally required changes shall be delivered to Landlord.

(b) Tenant shall have ninety (90) days ftom the date the Ptelumnaiy Plans are

approved by both parties in which to obtain the Building Permit and the Signage Peanit If the

Building Pennit and/or the Signage 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 temunate the Lease upon written notice to Landlord. If the Building Permit

and/or the Signage Permit is not obtained within two hundred seventy (270) days &om the date the

Preliminary Plans are approved by both parties hereto, eithei party may terminate the Lease

thereafter by written notice to the other.

6. Land Entitlement Permits. Should it be necessary for Landlord to obtam a Land

Entitlement Pennit (as defined hereinbelow) of any sort, the time for preparation ofPrelimmary or

Final Pkns shall be extended by the time reasonably required to obtain such Land Eorideinent

Pemit Tenant shall prepare such plans and specifications as may be reasonably required for the

processing of such Land Entitlement Penmit fol the Store only. The term "Land Entitlement

Pecmif as used herein shall include without limitation by enumeiarion an erreiconmental impact

report or statement or its equivalent, a zoning change or variance, an architectutal or design review

approval, general plan change, pknned unit development approval or its equivalent, subdivision

approval ot its equivalent, or any other apptoval pertaining to the Work or use 01 general design of

the Stole and Improvements as opposed to the structural integrity of the Improvements.

7. Access to Premises. Tenant's aichitect at all times shall have access to the Store

during construction for pmposes of inspection.

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/870647.2

EXffiBTTC

Page 2

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 91 of 126
EXHIBIT D

SHOPPING CENTER PROHIBITED USES

Aldi

nri^^TLJ^-°''--lu^BW>. TTamm. asPlay racWcaBesfcoolara. In !d£2-La2!!TOd.agre , ttlat(mathaencl-o{'1h°TT. a^ny'aSeSm a1

a^w . *w f^l-awitord aha« "°< "» u-oc<apy;"(»pefroiTft"e"Ss"JS S3'S d"'erforB^ula'-Rea«^^«^S, Sefa?MGr

EXHIBffG

Restricted Uses

a< ^^^°& wuh "° °'^S^^bu*g^S£

b.

d.

h.

thecMbfectpmperty;

where »M ° -

^,S,am^,Sd,(u'teM CSa;ated asPa'">fa la^e scale family orsntertahmentfacUt)r); ' --.-.-"

tot>^"^>SSapl!m1°??aflo"is '""'"S.alnhone bewa^s £im^S^-c°r?mPuo. laUe awnce in a 

n-.e!°3BPtft>r?''Ste*^'nrS 'SS

pnsmlsss »iat fai^' fO*'Awroe:'

bingo parioi;

^WLMTWM. tom"!B c^ter.hs*S mm tf»n 20 students ?^lw e.^wM*LW !eet "f.the'PwnFseT" >°S°Q^ aSSe^/, ".!HMW'S. MWWWWW° ^uare'feet'shdTa £S131fira.bLtheoB'ter-. ^Ith^ndta; fte'fo^dng'; Uuritori ahaltbe permitted to iaase ^aoe~o^'tl)e'iyi°to^?'S£

^deptetodas-»»_^hoolSpac7cn6chi A.2 ^'^

S,,£l TO,TjLsehoot_tosea ie?s 'th^s%S^iw°'feS.' SM"*s^tewttyst 8"y such iri'°of"shafmri('ln°*d'S

areas bshhd the CCTterand nw in tti'Baain'^riSgfeu"

ai.lf^!isl"ejarloror^m"seme'rt wade- Provided that a firet ^?S"^t^uj^Sdi*?=;'eB ^'^

uce noxious fumas or gases or

}.

k. aneNaUishmmtEaBng or exNWhg pwmwaphfc materials;

I. ^ bowling alhy, skafing rfnk, i^htdub, diseothequa or dance

Takn Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/909687.2

EXHIBIT D

Page 1

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 92 of 126
a tot for ttia sale o? used automotnles;

LmMa<mvm. flatk. -^"sar OBUrt- °.r labw "WP ". mobto tome SeesotolcLS^tSr^. 2n.*d.^^'n'itl<h'e^;^ ^o*S^|n£nyn sany'period;"E;r""'SS"y

a "Oood wr or 'Srivatlon Areiy' type store;

a mortuaiy or funeral homa;

a ohuroh or other place of worship;

an abortion clinic;

^U^' smelanB- indus!riat' a"riculiuwl. «1"N"9 -

a junk yard, stock yard or animal raising opetttton;

-tegSssuSropttratton Tor the i"d"eratlon w

^Mtab nen! wfn*stete- dislitoys- Bens. rente, or effea for

J°L mnt ^ny..mercha"diss. Br ""to*' commonly 'used "w S^,J°L!'e.."sft.w'th_iT in Twmption"'of"a^ "mwS, SS''°"s. d.rlww-?ther «>"t">ltod iw^noB, " fnd^g,"^5 S1^'"^ IS±!S Wm^pe-bD'ngrp^'^^);^

papers, ro»ng devices, coke spoons w roach capsF ~"~"'~'

w. flea nwket;

X. an operation whosa principal usa Is a massMge oartor andfer amfte

dancing, provtded ihte rtril not ^tM"mas'mer)n"

with a baautysabn w health dub oraftWe'bdUty7

m.

n.

0.

p.

q.

r.

s,

t.

u.

V.

aa.

y. a pawn shop;

z' no. fla?"g neo11 tii9ns lwf be PIac®d on any poles

pF&pctrty; tocated on the

^L^t*m[±phyLSIe °: stoGa°e of seamal ma.Aandise

ijmw^puffipwns. flowgra. 'efa): andfor the toinpmty'w P.CTtodic(f;B-. not Pemianwt) ouldow ds^a^sals'w"^^ S

meffihandlsa (artwotk, nov8ifcs;doWng', ''5c.);

bb. auwor operation whfch Is avlolafcn ofmlfcabta mironmentsl

ec. a store dedicated to the sale

as an upscale cuar shop;

of tobacco products unless operated

A-wnmJ1 ealth-e!ub. &dHtyln exoe8s of s, ooo sauara feet pnn= ^w^^1

Talm Springs

Palm Springs Plaza.

Palm Springs, PL

Store No. 5296

6061.1319/909687.2

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Bennett Auto Supply

6

?

9

».

13

Ko outdoor clsevs. carnival as aamsaamt {>ark,

Mo shooting gallery.

So p_ff-track

shell not be ^fovMed thet she state sppnawwi lottary tickets

%S £

Sci^M^Sy. UBit^ ^ "^"g ^f^. ^pins

Be dance liaU.

No cocktail lounge, t.as-, disco or Right cj. nb.

St%rt ^SB^U%?V^tVr'i*'d ^t tt. rtat. »p<^o..d

So sXattng or roUsr riuk,

So aacond hisBd eSof, .netiOR liaueB or naB aaftet.

Ross Dress For Less

3.2. 1. Retail Use.

(a) Tenant has entered into this Lease in teUance upon representations by Landlord that

Landlord's Parcel is and shall remain retail u character, and, further, no part of Landlord's Pared shall be

used for office or residentifll purposes or as a theater, auditorium, ineeting halt, school, chutch oj: other

place of public assembly, "flea market," gymnasium, veterinary services or vaccination clinic, overnight

stay pet facilities, health club, dance halt, biUiard 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 dub,

the sale of adult products or adult bookstores or adult audio/video products stores (which are defined as

stores, other than national ot regional tenants Uke Bames & Noble or Borders, in which at least tea

percent (10%) of the inventory is not available for sale or rental to children under the age of majority ki

the state in which the Store is located because such inventory expliddy deals with or depicts human

sexuality). No ATM or similar machine shall be pefmitted in the Shopping Center -within one hundred

(100) feet of the front and side pcrimetct walls of the Store. No tenant or occupant of the Shopping

Center shall be permitted to use space for a store primajaly seUing merchandise at one price or set prices,

such as 99 Cents Store or Family Dollar Store as such ate opecated on the Effective Date. Further,

excepting existing restaurant tenants set forth oa Exhibit L and their repla.ceraca.ts, no restaurant or

other "High Intensity Parkug User" (as hereinafter defined) shsdl be pmnitted in Landlord's Parcel

within three hundred (300) feet of the front and side perimeter walls of the Store. A "High Intensity

Parking User" is a tenant or occupant whose use requires more than five (5) parking spaces per one

thousand (1,000) square feet of Leasable Floor Area in accordance -with either customajy shopping

center pfa.cti.ces or governmental regulations, whichever has a higher parking requitement. The

foregoing use restrictions are referred to herein as the "Ross Prohibited Uses

(b) Notwithstanding Section 3.2. 1(a) above:

<(Palm. Springs"

Palm. Spungs Plaza

Palm. Springs, EL

Store No. 5296

6061. 1319/909687.2

EXHIBIT D

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(i) Offices may be used for medical, dental, teal estate, legal, accounting, banldng,

tax prepaatioa, travel agencies, securities and other investments and financial planning^ insutance and

similar uses (which uses shall be considered to be retail in character) provided that they ate located at

least two hundred (200) feet from the fitont and side perimeter -walls of the Store and do not exceed

7,500 square feet in the aggregate. The two hundred (200) foot distance Umitarioa does not apply to

Existing Tenants set forth on Exhibit L - "Existing Tenants" and their replacements. The 7,500square

foot aggregate limitation shall not apply to offices located in (a) the existing two (2) story building with

primary parking facing the rear of the Shopping Center, (b) the 37,000 squate foot space idenrified on

Exhibit B that is on the south end of the Inline Bmlding, or (c) the area identified on Exhibit B a.s Pier 1

may be re-dCTcloped as a bank, provided such bank building, stackiag lanes and parking is located solely

within the Pier 1 Bmlding Envelope (9,600 square feet) with an entrance on the east side faring Congress

Avenue.

(ii) Supermarkets with walk up windows and other establishments primarily engaged

in businesses other than serving prepared food serving coffee, snacks or other light food shall not be

considered to be restaurants.

(iii) One (1) gymnasium and one (1) health club shall be peanitted in the Shopping

Center provided they shall not exceed five thousand (5,000) square feet ofLcasabIe Floor Area and shafl

be at least two hundred (200) feet from the perimetet of the Store. The 5,000 square foot limitation shall

not apply to a gymnasium or health dub located in the 37,000 square foot space identified on Exhibit B

that is on the south end of the Inline Building.

(iv) A school shall be pemritted provided it is incidental to a retail use, and is not

doser than two hundted (200) feet from the perimeter of the Store. The "inddeatal" limitation set forth

. Preceding sentence shall not apply to a school that is located in the 37,000 square foot space

identified on Esdiibit B that is on the south end of the Inline Building.

(v) One (1) vehicle leasing tenant of not more than one thousand five hundred

(1,500) square feet of Leasable Floor Area, such as Enterprise or Avis, shall be pemutted in the

Shopping Center provided such tenant (a) is located either in the second level of the Inline Building or in

the stores located in the shops east of the location currendy occupied by Dollar Store facing Congtess

Avenue and (b) utilizes no more than three (3) parking spaces for its leased vehicles in the area

designated on Exhibit B.

(vi) An csta.blishmeat that offers video game arcades and other forms of

entertainment, simikt to Chuck E Cheese or Dave & Busters, shall be pennitted in the 37,000 squue

foot space identified on Exhibit B that is on the south end. ofthe Inline Building.

(vii) A Dollar Tree or Dollar General or their affiliates or assignees/sublessees

(where Landlord has no right to consent to such assignees/sublessees, or where Landlord has the right

to consent but has agreed in the lease not to unreasonably withhold consent and where Landlord, in its

teasoaable business judgment, believes it may not kw&dly withhold consent to the proposed

assignee/sublessee) shaU be penmtted in the Shopping Center.

.Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/909687.2

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EXHIBIT E

ACKNOWLEDGMENT OF COMMENCEMENT

7

8

9

10

11

12

13

14

15

16

3 This Acknowledgment is made as of _, 20_ with reference to that

4 certain lease (heremaftet referred to as the "Lease") dated _, 20_, between

5 PHILIPS LAKE WORTH LLC, as "Landloid" dierein, and ROSS DRESS FOR LESS, INC.,

6 as 'Tenant"

IS

on

20

The undersigned hereby confirms the following:

1. The Delivery Date (as described in said Lease) occuued on

2. In accordance with the provisions of said Lease the commencement date of the term

^ and that, unless sooner tenniaated, the origm.al temi theceof expires

3. The Agreed Size is square feet.

4. The notice date for the exercise of the first option is on or before

LANDLORD:

PHILIPS LAKE WORTH LLC,

a Florida linuted liability company

TENANT:

ROSS DRESS FOR LESS, INC.,

a Virginia coqroration

By:_

Its:

Witaess:_

Printed Name:_

Witness:

Printed Name:.

By:_

Gregg McGillis

Its: Gto^Seziiof\^ce President, PcopectyDeviebpEaea.t

Witaess:_

Printed Name:

Witaess:_

Printed Name:

17

.

Talm Springs"

Palm Springs Plaza

Palm Spnogs, EL

Store No. 5296

6061.1319/870649.1

EXHmrrE 05/08/15

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RECOBDINfG KEQUESTED BY

Ross Dress For Less, lac.

PREPARED BY AND WHEN RECORDED MAJOL TO:

Bar&o, Zankel, Bunzel & Miller

One Embarcadero Center, Suite 800

San Francisco, CA 94111

Attn. : Theani C. Louskos, Esq.

EXHIBIT?

SPACE ABOVE THIS UNE RESERVED FOR SECCBDER'S USE

SUBORDINATION, NONDISTURBANCE AND ATTOKNMENT AGREEMENT

LOCATION: Palm Springs, PL

APN: 70-43-44-19-20-029-0010.

This Subordination, Nondistutbance and Attomment Agreement (the "Agreement") is

effective as of this _ day of _, 20_, by and between.

a ______(the "Lender"), ROSS DRESS FOR LESS, INC., a Virginia

corporation (the "Tenant").

RECITALS

A. Lender is the holder of indebtedness secured by a lien or liens upon, the real pioperty

described in Exhibit "A" attached hereto and by dlls reference incoiporated herein. The Exhibit "A

property and improvements thereon is hereinafter referred to as the "Shopping Center. " The msttuments

creating such lien or liens whether they be denonuaated as being "mortgage," "deed of trust, " "deed to

secure debt," "security agceement, " "vendor's lien, " "ground lease, " or otherwise, and any instruments

modifying or amending the same, or entered iato in substitution or replacement thereof, are hereinaftet

collectively refened to as being the "Mortgage, " recorded in the Official Records of Palm Beach County as

Document No.

B. Tenant has executed, ot will execute, a certain lease with Philips Lake Worth, LLC

("Landlord"), dated for reference purposes on _, for all or a portion of the Shopping

Center, which portion (the "Ptemises") is mole particularly set forth in said lease. Said lease and all

amendments and modifications thereto are herein collectively referred to as the "Lease."

C. Tenant has requested that Lender agree not to disturb Tenant's possessoty rights under the

Lease in the event that Lender should foreclose on the Mortgage, provided that Tenant is not in default of

the Lease.

D. The parties desire to establish certain rights and obligations with tespect to tfaeil respective

interests by means of this Agreement

"Palm Springs"

Palm Springs Pkza

Palm Springs, PL

Store No. 5296

6061.1319/9147'K.l

EXHIBFTF

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AGREEMENTS

NOW, THEREFORE, the parties hereto in consideration of the mutual covenants herein

contained, and intending to be legally bound by hereby agree as follows:

1. Subject to the tettns and conditions of this Agreement, and for so long as this Agreement

remains binding upon Lender, the Lease shall be, in accordance with the terms and conditions heteof,

subordinate to the Hen of the Mortgage and aU. voluntary and involuntary advances ma.de thereunder.

2. Lender approves of the Lease.

3. Provided that Tenant is not in default so as to permit the Landlord to termmate the Lease or

Tenant's right to possession of the Premises, Lendet or the purchaser at a foreclosure sale pursuant to any

action or proceeding to foreclose the Mortgage, whether judicial or non-judidal, or Lender putsuant to

acceptance of a deed in lieu of foreclosure or any assignment of Landlord's iatetest undec the Lease, in the

exercise of any of the rights arising, or which may arise, out of the Mortgage or in any other manner-

(i) shall not disturb or deprive Tenant in or of its use, quiet enjoyment and possession (or its right to use,

quiet eajoyment and possession) of the Premises, or of any part thereof, of any right, benefit or privilege

granted to or inuring to the benefit of Tenant under the Lease (including any right of renewal or extension

thereof); (u) shall not tetminate or affect the Lease; (iii) shall recognize Tenant's rights, benefits and

privileges under the Lease; and, (iv) shall recognize the leasehold estate of Tenant under aU of the terms,

covenants, and conditions of the Lease foi the tetnaming baknce of the tenn of die Lease with the same

force and effect as if Lender were the Landlord under the Lease. Lender hereby covenants that any sale by

it of the Shopping Center pursuant to the exercise of any rights and remedies under tfae Mortgage or

otherwise, shaU. be made subject to th.e Lease and the rights of Tenant thereunder. However, in no event

shaU. Lender be:

(a) Liable for any act or omission of Landlord arising prior to the date Lender takes

possession of Landlord's interest in the Lease or becomes a tnortgagee in possession, except to the extent

such act or omission is of a continuing nature, such as, for example, a repair obliga. ti.on;

(b) Liable for any offsets 01 defidendes which the Tenant might be enrided to assert

against the Landlotd arising prior to the date Lender takes possession of Landlord's interest in the Lease or

becomes a mortgagee in possession, except to the extent that Lender has received the benefit of the act of

the Tenant giving rise to the right of deduction, such as, for example, relief of an obligation that would

otherwise have been paid by Lender as Landlord;

(c) Bound by any payment of rent or additional tent made by Tenant to Landlord for

more than one month in advance, which payment was not required under the terms of the Lease;

(d) Bound by any amendment or modification of the Lease executed after the date of

this Agreement which: (i) increases Landlord's obligations or reduces Tenant's obligations under the Lease;

and, (ii) is made without Lendet's prior written consent (except to the extent that the Lease may specifically

contemplate any amendment or modification thereof).

4. In the event of the termination of the Mortgage by fotedosuie, summaiy proceedings or

otherwise, and if Tenant is not in default under the tenns 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

m the action or proceedmg to tenninate the Mortgage unless not to do so would be disadvantageous

'Trim Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

60M.UU/9U74<S.l

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ploceduraUy to Lender, m wblch case, such joindei of Tenant as a party shall not extinguish or inteifete

with any rights of Tenant under the Lease, nor shaU Tenant be eyicted or moved or its possession or right to

possession under the terms of the Lease be disturbed or in any way mteifeted with, and, subject to the

provisions of this Agreement, Tenant will attom to Lender 01 any other party which obtains ride to the

Shopping Center pursuant to any remedy provided for by the Mortgage or otherwise, such attomment to be

effective and sdf-operarive without the execution of any othet insttuments on the part of any party, and the

Lease shall continue m full force and effect as a direct Lease from Lender or such party to Tenant under all

the teaas and provisions of the Lease (including any rights to renew or extend the term thereoQ. In the

event of such attomment, Lender shall be deemed to have assumed and shall assume tfae peribimance of all

of the affinnative covenants of Landlord occumng undei the Lease fcoin and after the time Lender

becomes Landlord and until such rime as such obligations are assumed by a bona fide purchaser.

5. Tenant hereby confians that the Lease is in full force and effect.

6. Nothing contained in this Agreement shaU be deemed to reduce ot abrogate any rights of

Tenant to cure any default of the Landlord under the Lease in accordance with and subject to the provisions

of the Lease and/or to deduct &om rental such amounts which Tenant may be entitled to so deduct under

the provisions of the Lease.

7. If Landlord executes and delivers to Lender an Assignment of Leases and Rents conveyiag

the tent under the Lease upon an event of default by Landlord under the Mortgage, after receipt of nodce

from Lender to Tenant (at the address set forth below) that rents under tfae Lease should be paid to Lender,

Tenant shafl theieaftei pay to Lendet all monies thereafter due to Landlord under the Lease. In such event,

Tenant shall be entitled to rely solely upon such notice, and Lender hereby mdemni&es and agrees to defend

and hold Tenant harmless from and against any and all expenses, losses, claims, damages or liabilities arising

out of Tenant's compliance with such notice or perfonmnce of the obligations under the Lease by Tenant

made in good faith in reliance on and pursuant to such notice. Tenant shall be entitled to full credit under

the Lease for any rents paid to Lender in accordance with the provisions hereof. Any dispute between

Lender (01 any other putchasei) and Landlotd as to the existence of a default by Landlord under the

provisions of the Mortgage, shall be dealt with and adjusted solely between Lender (or any other purchaser)

and Landlord, and Tenant shall not be made a party thereto.

8. Lender shall use the proceeds of any insurance recovery or condemnation award for the

purposes stated ia the Lease.

9. 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 pmpose

whatsoever unless in writing and duly executed by the party against which the same is brought to be

asserted.

10. This Agreement shall be bindmg upon and shall inure to the benefit of the parties hereto and

theit respective heus, legal representatives, successors and assigns, mduding without limitadon, the

covenants of Lender herein shall be specifically binding upon any purchasei of the Shopping Center at

foreclosure or at a sale under power of sale.

11. In the event any one 01 more of the provisions contained in this Agreement shall fot any

reason be held to be invalid, illegal or unenforceable in any respect, said plovision(s) shall be void and of no

further force 01 effect

"Palm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.UU/91474A.1

EXHIBFTP

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12. This Agreement shaU. be governed and construed according to the laws of the state where

the Shopping Center is located.

13. Provided that Tenant is not in default under the Lease, Lender shall not institute any

litigation naming Tenant as a defendant for the purpose of foreclosing or otherwise terminatmg TeDant s

leasehold interest in the Shopping Center or the Premises unless Tenant is required to be named in such

litigation by kw, and then only for the putpose of complying with the applicable foreclosure statute and so

long as Tenants failure to defead agamst any such action shall not result in a waiver of its lights to

continued possession under the Lease as set forth in this Agreement. The term "Lendei" as used herein

shall include any successor-ia-mterest to the Lender (including a purchaser at foreclosure or sale in lieu

thereof).

14. To be effective, smy notice or other communication given pursuan.t to this Agreement must

be in writing and sent postage paid by United States registeted or certified mail with rebim teceipt

requestecL Rejection or other refusal to accept, or inability to deliver because of changed address ofwHch

no notice has been given, will constitute receipt of the notice or other cointnunication. For purposes

hereof. Lenders address is:

Attn.:

and Tenant's address is:

Ross Dress Fot Less, Inc.

5130 Hacienda Drive

Dublin, CA 94568-7579

Atta. : Real Estate Legal Notice Department

At any titne(s), each party may change its address fot the purposes hereof by giving the other

party a change of address notice in the manner stated above.

15. This Agreement (a) contains the entite understandmg of Leiider and Tenant regarding

taatters dealt with heteia (any priot written of otal agreemeats between them as to such taattets being

superseded hereby), (b) can be modified ot waived in whole or in part only by a written mstcument signed

on behalf of the party against whom enforcetnent of the modiflca. tion 01- waivet is sought, and (c) -will bind

and inure to the benefit of the parties heteto and their fespective successors and assigns.

16. In the event of any litigation arising out of the entorcement or tntetpt etation of any of the

provisions of this Agreement, the unsuccessful party shaU. pay to the prevailing party its teasonable

attorneys' fees, including costs of suit, discovery and appeal. The prevailing party" shall be that party who

obtains substantially the relief sought in the action.

17. In the eveat the Lease is terminated as a result of Landlord's bankruptcy or reorganization,

whereby Lender obtains fee title to the Shopping Center (or m the case Lender is the ground lessor, retains

fee tide .without the encumbrance of the groun.d lease). Leader agrees that the Lease shaU. retmin in effect as

"Palm Springs"

Palm Springs Plaza

Palai Springs, FL

Store No. 5296

6061.1319/9147'K.l

EXHmrTF

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between Lender (as Landlord) and Tenant, subject to the teans of this Agreement, and, upon Tenaafs

written 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 tfaat the terms and conditions theieof

shall be as stated in the Lease, subject to the provisions of this Agreement

IN WITNESS WHEREOF, the patties have caused this instmment to be executed as of the

day and year first written above.

TENANT:

ROSS DRESS FOR LESS, INC.,

a Vitginia cotporatioa

LENDER:

By:-

Gregg McGiUis

Its: Group Senior Vice President, Property Devdopment

By:-

Its:_

Witness^

Panted Name:.

Witaess:_

Witness:_

Printed Name:.

Witaess:_

Printed Name:. Printed Name:

"Palm Spnngs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/91474C.1

EXHIBFTF

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A notary public or othet officer completing this certificate verifies only the identity of the individual who

signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of

that document

State of California

County ofAlameda

On before me,

a Notary Public, personally appeared Gregg McGiUis, who proved to me on the basis of satisfactory

evidence to be the person^s) whose name^s) is-^fe subscribed to the within instrument and acknowledged to

me that hc/shc/thcy executed the same in his/hct/thcu- authorized capacity^e^, and that by his/hci/thcu

signature(s)-on the instrument the pecson-(s), or the entity upon behalf of which the petson^s) acted,

executed the insttumenfc

I cerufy under PENALTY OP PERJURY under the kws of the State of California that the foregoing

paragraph is true and correct

WITNESS my hand and official seal.

Notary Public

State of_

County of_

before me, a Notary Public,

_, personally known to me or who proved

On

personally appeared

to me on the basis of sarisfactoiy evidence to be the peison(s) whose name(s) is/aie subscribed to tfae

within insttument and ackaowledged to me that he/she/they executed th.e satne in his/her/theu' authorized

capadty(ies), and that by tus/her/their signaftne(s) on the insttument the person(s), or the entity upon

behalf of which the peison(s) acted, executed the instruraeat.

WTTNESS my hand and offidal seal.

Notary Public

Talm Springs

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.131S/914746.1

EXHIBIT F

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EXHIBIT A

LEGAL DESCRIPTION OF THE SHOPPING CENTER

A portion of Section 19, Township 44 South, Range .43 East, according to the Plat thereof, recorted in Plat Book 8. Page

66. of the Public Reconfs of Palm Beach County. Florkta, more parfcularty desaibed as follows:

Commence at the Northeast comer of Lot 1, Stock 75-A. oS that certain plat of a REPLAT OF A PORTION OF VILLAGE

OF PALM SPRINQS PLAT NO. S, according to the Plat hereof, recorcfed in Plat Book 26. page 116. of the Publto Records

of Palm Beach County, Florida. thence ran South 89 degrees 42 mhutes 47 seconds East, along alineparalteljo and 55

feet South of as measured at rtght angles to the North line of the South 1/2 of the Northeast 1/4 of Section 19, Towishlp

44 South, Range 43 East for 397. 38 feet to the Point of Beginning; thence continue along the last described course for

726. 14 feet to a point of curvature. thence run along a curve tothe rtghf havhg a radius of 25 feet and a central angle of

88 degrees 42 minutes 47 seconds far an arc distance of 39. 14 feet to point oftangency; tfience run South 00 degrees 02

minutes 00 seconds East along a Bne parallel to and 40 feet West of as meEsured at right angles to^ the East Bne of the

Northeast 1/4 of Section 19 fcr 1523.40 feet; thence run North 89 degrees 43 minutes 04 seconds West along a line

parallel to and 40 feet North of, as measured at right angles to the South line of the said Northeast 1/4 of Section 19 for

reo. M feet to a point; thence run North 00 degrws 02 minutes 00 seconds West atong a »ne parallel ta and 780 feet

West of. as measured at right angles to the East Ibie of the Northeast 1/4 ofSwtlbn 19, for 1,248. 11 feet to the Point of

Beginning; LESS the West 123.64 ftet thereof and less the East 10 feet as additional right-ot-way fcr Congress Avenue.

LESS AND EXCEPTING THEREFROM that parcel of land as conveyed to PALM BEACH COUNTy by that Right-of-way

Warranty Deed recorded In OfBdal Records Book B102. Page 1830. of the Public Records of Palm Beach County, Florida.

ALSO LESS AND EXCEPTING THEREFROM that parwl of land as conveyed to LAKE WORTH DRAINAGE DISTRICT

by mat Quit Claim Deed recordBd In omcjal Records Book 14174. Peaje 1178. of the Public Records of Palm Beach

County, Florida, described as foltows: Tile South 40 lee) of the East 790 feet of the South One-Half (S 1/Z) of the

Northeast One-Quarter (NE 1/4) of Section 19, Township 44 Soufc Range 43 East, less the West 123. 64 feet and the

East 50 feet. Palm Beach County. Florida.

"Palm Springs"

Palm Springs Plaza

Pakn Springs, EL

Store No. 5296

6061.1319/914746.1

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EXHIBIT G

DEUVERY NOTICE

1.

2.

3.

4.

5.

The "Lease"

Landlord:

Tenant

Location:

Lease Dated:

Philips Lake Worth LLC

Ross Dress For Less, Inc.

Palm Springs, FL

All terms used herein shall be as defined in the Lease.

Date of this Notice:

Ross Store #: 5296

Project Address: Congress Avenue and 10 Avenue North

Pursuant to Section 5.4 of the Lease, this shaU constitute the Delivay Notice":

(a) The 'Delivety Date," shall occur on:

(b) Landlord acknowledges th.at aU. the requiretnents specified in Ardcle 2,

Delivery Date," -will be satisfied by the date specified in subparagtaph (a),

above.

PHILIPS LAKE WORTH LLC,

a Florida limited liability company

By:-

Its:

Witness:.

Printed Name:

Witaess:_

Printed Name:

Dated:

'Ta]m Springs"

Palm Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/870662.1

EXHIBIT G 05/08/15

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EXHIBIT H

EXCLUSIVE USES

Aldi

Landlord shaft not use or occupy, or permit me use or or bwupancy of the

Center, other than the Preinises, for th® operation of a Retail Grocery Store. The

term "Retail Grocery Store* shall mean, without limitstton, a supermarfcet. meat

market, grocery store, fruit and vegetable store or stand, flnQzan or othwwise

processed food sibare and any store where more than 50 grocsry itBms are aakl

for off-premises consumption. Further, no portion of the Center shall be owned,

conbDllnd, leased, used or occupied fcr the conduct of a food marttet or grocery

department in any department store or varisty ssofe occupying or using any psat

of the Cenfesr. Any such departmwit stom or variety storo ueirui or occupying any

part of the Center shall refrain from operating ttiefeon a grocery department or

food mariwt "Rstall Grocery Store' shall not hiclude (i) a deBcatossen, (IQ a

restaurant or lunch room wherefn prepared food te sold for on-premises1

f?!^l?"5USrl Q[for'teke-o"t*<Xiflsu"FUon, (.() Uie Mb of grocery Items by any

tenant at the Center provided that such tenant does not use moreiwn^ioo

'sy^L ^^^T s?a<?e of slf<?1 Pfemis®s fcrth* sale/display of gro»ry Item^

and pfovidud furthw that no such space is used for the saJe/displayaf mwe ftan

^ sva fe^. 1tom 8paGe for."*Wrato(ffree2er items, milk. Bflgs, {mxju ^

fresh.n1eat of.any.ki'1c< or !any PSfishaUe Items of any kind The squareTfootege

set forth in the proceding senfncs shail be ihclusiwcfthe~Brea

ir»medtafe(y under the merchandise display rachafeasesfcoolers and the aisles

immediately adjacent to such merchandise display rau*/casesfcoetefs. ~'ir>

Arona Coiporation

<MB nfillaasEartyapada within !hB Shgppfng i

>fcr|iie prfniaiy usa o< .rent (6 byyl '1yni|a,in8,

UyreinpeWw wflli tha^ntto tit

fesaw li eittiefles a of Uas ifate irf i

"iBndmiatSate'iiB hateinaftwtteB

p51Sfc)of«uehleranritiite«tui, .

Undhftj

tertjlitejji'BtedagpjHBnigtinjei

1 iBM.Twanh 6td ^'~. 'Tb»

.I

.I !!<_

"Palm Springs"

Palxn Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/909699.1

EXHIBFTH

Page 1

05/08/15

RDslAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 105 of

 126
Bennett Auto Supply

lls^^^S^SS S?^%"Bi?t£an&a^"fJW, afac? ^S? ^S£*^i^°kt»sTi£M"g'u5<oa. SliSt .Utoh*(a3?teslw-tel 'tt"'f T°"a

UNDLORD'S PBOITBITTBD USJBS

Chili's

(a)^ ExElusive_Uss_ During the tena of this Lwse, jnGluding any and all

Remwat Toms' .<:xcelx f(R' Tcnant^md subject to di exi8tmg"ia^"^'te Sate.'

I shall not use any portion of the Centw fer Tenaut's ExdusiwUse, Bntwmt^a

Lw.°tiw asreemc!nt that allows an ° Va"t oftheCentatooperatefor^Mn't^

! Use or wment to a change of penmtted use under an wsdngi^e~that~midd

pnult. my, tenmt CT.<muPant of t&e Center to operate for Tengafs ExdusweUse

^EQffl^|stem^"_shaI! mem the operaiion'of a iesteu, ant~wh;ch"ifi*SaT"^

2lil^&Biar'. SBCh. aa'&r exTP!e pw?ose? on!y. App'^'?s; B'J:ste ^t & 5Be^"y:,. B?,ddmse,-Tavem & .Tap?^ B'rf&lo_WUd-'Wa^''ai <dda?s,"^-Z Houlihan's, Mfller's Ate House, Red Robin, Ruby Tuesday's an? T.(U"Friday:s ""l'r °'

DoUar Tree Stores

St LmdlBrd sbalt not fewB, iwfl, occupy or pwm'ft any athar pnnitses In tta

Shopping Center to be occupfed, whither by a: tenant,

icensa^or dher txcupsnt, for ftt? opsnfion of a singto pitea jxilnt wiriuty'

store f&ckjw" or ''Exdtutw Usa'), For 8» pUrpmBS sf this

prica point wrie^f nW tore te dsfinsd SB a stom fiiat

marehantfse fwstste atattoflh pice pcaw, which priCB poB

of Its

.DO or

.

Talm Springs"

Palm Springs Pkza

Pakn Springs, FL

Store No. 5296

6061.1319/909699.1

EXHIBIT H

Page 2

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 106 of

 126
Ulndlcml vrill not pennit any eUw oecupant m the Shoppng Center to opwate

the fciftowing uses (teeAi»fter, . Restijei ted Usas") iiDthoui TwanTs congnht and

svsh csxsesA shaM ba fa Tenant's scte and absolute dlscwtton:

(1) Wrfeiyr8taa<vemtiomwBtttewonl*Ctofet'inthefrtradenflme,

((imtlictal (hat atf* shall not preclude Bit (pKrton rfa senites bcheai);

is;

a. SeBng vaWy retail inairfandlse at a singte f»tce point, which

Par e purpoats ofttte Saigon, "pfffitipal busimss* shag be deftred as selling suirfT

marehandlse in iwantyfro pwcent OS») or niore of tha sales floor area (Sndudr^ me.

haB i-l/Z] o( the adjacert; alste space}.

Notwtthatandl.ig the

occupant selling single

selling toy aa If

siioppiiiacs1torwh&

date af ttls Lcawr

SaeUon A.13 atot not wpty to (1) any tenant or

point apparoi as Its prindpal businsss, (2) any tenant

bUBlnsss, or (3) any cumnt oceupairt (r {want ot the

radng undefihercumert use clause or tada nans a; crftha

Eyeglass Worid

^i8!?2.1ft5tC!tet?lhe5hB")toac^^fe», «,ISl^S

~£

I »

<?^1§

<i

TH Ill

NUijaB Si asei

Fish Fantasia

Lac^l-wd bersalter agrees not to ®n*w_i?M^aBI

aew lease for Bpace la tkac pfflrt^irfS'&f tile ghjg-ppitis Cen-;er . CToss-Mre

tetalblt C (the 'Exclusiva-ta-ea') f.fs fr ft^oanc t.-hoae'prioary bu.si-aeea ie cne SB.

at live yws ac.d pet related supplt16^-;."'

d X.

'Ta]m Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/909699.1

EXHIBIT H

Page 3

05/08/15

ETNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 107 of

 126
Harbor Freight

Landlord mil nd hcBEaflcr eitfcr into

another lease (or aaatd my existing tease) for the Shopping Ceatw that wwU permit ss » ^inia»y

asc the sale of hantwatc and tools. Fat puiposes <rf tliis ptovisiaB, "priaaty use'* means that !be

nufE devotes ten pereent (10%) or nore of its sales floor to the sale of hatdwans aad tools,

^

3 ? < fi i? I

h- r -^ ^

^~s t< {

t^S. <tl

Ihdrn JBiNii,

r^an.fe.

Mercedes Jewehy

Ind^iiy. s»it

KnntsnadlBas

"Palm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/909699.1

EXHIBIT H

Page 4

05/08/15

EFNAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 108 of

 126
Quest Diagnostics

wtond to u "nawt'i BxcWvt1''

Rainbow USA

i-8 nnn-BTBna nune aoDawl. BMBS-BetbtfsuA tenants wuwldmdude retaitera sud> te ChMrend; siadvlESf As used hia-efn, "priuaiy use" shall nean1ftttl5%'nr7i nr^^Yfl^^^l^^""_B-TP!yj r"'TS. B"tl uaoRoss Dress For Less*

15. 3 Protection.

Except for one store to be occupied by Bed Bath & Beyond, Anna's Linens or a cofflpaable home

goock/linens tenant. Landlord shall not enter into a lease for space in the Shopping Center, or penmt

die assignment or subkase of any lease fol space (to the extent Landlord mzy withhold its consent

thereto) whereby such tenant 01 occupant shall (a) use in excess of fifteen thousand (15,000) square feet

ofLeasable Float Area of its premises for the Off Price Sale (as hereinafter defined) of merchandise, or

'Talm Springs

palm Springs Pkza

Palm Springs, EL

Store No. 5296

6061.1319/909699.1

EXHIBIT H

Page 5

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 109 of

 126
(b) use in excess of eighteen thousand (18, 000) square feet of Leasable Roor Area of its ptemises for

the sale of appareL The foregoing testriction on the sale of apparel in tnote than eighteen thousand

(18,000) square feet shall not apply toJC Pemiey, Kohl's, Bdks, Target or comparable stores, provided

such tenants ot occupant operate in more than sixty thousand (60,000) square feet For purposes of

this Section 15.3, "Off Price Sale shall mean the retail sale of non-teplenishably purchased and not

restocked items (as contrasted to J-egulady purchased and lestocked items sold at a discount price) on an

every day basis at prices reduced from those chatged by full price retailecs, such as fuU price departtnent

stoles; provided, however, this definition shall not prohibit sales events by a retailer at a price

discounted from that retailer s every day price. (As of the Effectiye Date, examples of Off Price Sale

tetaikrs include such retailers as T.J. Maxx, MarshaBs, AJ. Wnght, Fallas Paiedes, Noidstrom Rack,

Goody's, Factory 2U, Burimgton Coat, Stemmart, Filene s Basement, 01 Bealls Oudet).

^^.

^ SQEHAN. ."*^

^

v/

'SfV^r

.i

;-<-.-:

*The foregoing exclusives shall not be applicable to Tenant, as Tenant and the tenant under

the Ross Dress For Less lease ate the same entity.

*Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/909699.1

EXHTBITH

Page 6

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 110 of

 126
Ross Dress For Less, Inc.

5130HadendaDrive

Dublin, CA 94568-7579

Attn: Ms. Jac Gee

EXHIBIT H-l

ROSS DRESS FOR LESS, INC. WATVER

., 2015

Philips Lake Worth LLC

419 West 49th Street, Suite 300

Hialeah, FL 33012

Atta: Mr. Ben Brody

Re: Lease at Palm Springs Pkza; Pakn Springs, PL (the "Shopping Center")

dd's DISCOUNTS - Store No. 5296 - between PhiUps Lake Worth LLC ("Landlord")

and Ross Dress For Less. Inc. f'Tenant") (the. "dd's Lease'1

Ladies and Gentlemen:

PhDips Lake Worth L.P., a New York limited partnership (Landlord's predecessor in interest) and

Tenant entered into a lease (Store No. 1345) with an Effective Date of September 22, 2009 (the

"Existing Ross Dress For Less Lease") for a store doing business in the Shopping Center as a Ross

Dress For Less store. Landlord and Tenant now desire to enter into the dd's Lease for the

operation of a dd's DISCOUNTS store in the Shopping Center (the "dd's Stole").

Ross Dress For Less, Inc., as the tenant under the Esdstmg Ross Dress Pot Less Lease, hereby

waives the exclusive use provisions contained in the Existing Ross Dress For Less Lease for the

benefit of the dd's Stole and any other stole operated in the Shopping Center by Tenant or any of

its affiliates or a Rekted Entity (as such term is defined in the Existing Ross Dress For Less Lease).

Sincerely,

ROSS DRESS FOR LESS, INC.,

a Vilginia corpotarion

B7-

Name:

Its:

Acknowledged aad agreed by:

PHILIPS LAKE WORTH LLC,

a Florida lunited liability company

By:_

Name;

Its:_

"Palm Springs"

Palm Springs Pla2a

Palm Springs, FL

Store No. 5296

6061.1319/914C83.1

EXHmTH-1 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 111 of

 126
EXHIBIT I

PERMITTED TITLE EXCEPTIONS

ROSS DRESS FOR LESS, DSfC. ("Tenant") agrees to take its leasehold inteiest subject only to the

following items and exceptions stated in that certain Commitment for Tide Insucance issued by

Stewart Title Guaranty Company, dated March 9, 2015, No. C-72526-20150126, for the subject

location in Palm Springs, Florida:

From Schedule B-I:

Requiiement No. 3.

However, with respect to the Mortgage referred to in Requirement No. 3, Tenant agrees to take its

leasehold interest subject to said Mortgage, subject to Tenant's receipt of a Non-Dishubance

Agteement pursuant to Section 13. 1. 1 of the Lease.

From Schedule B-II:

Exceptions numbered 5 through 20.

However, with respect to the leases referred to in Exceptions numbered 8, 9 and 10, Tenant 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 Tenant and PHELFPS LAKE WORTH LLC.

'Talm Springs

Palm. Springs Pkza

Palm Springs, FL

Store No. 5296

6061.1319/910682.2

EXfflBm 05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 112 of

 126
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Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 113 of

 126
Notnfl;

ROSS CDNTRACTDRTO PROVIPEi

.KSS"^^%L,E^.S"c<"NErroli""TAlun°"<N°"Z!;!;,t*!,2°.'*,"^'"*:li°.t''TE""'N°°:u"»<NP^"T"»°«fm»Ku BEH!NOSI6N LETTEIts CONNECTEP TO THE ENERSY MANASEMEhTTSWre'M'.SSS»v££SZ'S5S'waam''B'WK±'t':f:'~i:^'r'i:'»^

°^^KSS»SSCS£^^r£SSS''»"a1'

AU."u"<?.E. 8UU.ECTmmmsm!!B'. INC- miwup *Frm»u.. COU>K ^»^s^^^'Ke"'^m^m^IF. ANrr.sleNAS.EFROPOSED INTHIS E)tHIBrr IS ALTEREP Vf LOCAL GOVERNMENT Mm»T'ms"mTB 'iNC:"T"smKs^<^S^"jEs? AliCHnlCTUULFKTUKESTOBESTACCOIIUOntTEmEllmS'lSSAlX."

7Z°_HINPIVIDUAL °DD'S" PAN CHANNELLOGO LCTTERS;FACES: TUF-GLA5 GG 2K49-EI FURPLERETURNB: fl'D ALUM. W/WHFTE FINISH

TRIM CAP; Z" WHITE JEWEUTE

LETTCR BACKS; ALUMIMUMN.EDN:FOUR-TU. ?E 15MM E0L CL-71 WHITE. U. L.MOUNPNG! 1W-20 GALWN1ZEDTHRU BOLTS'PEGOFF:]/2"SrACERS

@ B6^HINDM.DUAI- "PISCOUNTB- FAN CHANNEL

FACES: WF-GLAS BG 21248-E1 TEALRETURNSi fl-P ALUM. W/WHrTE FINISH

TRIM CAP: 2" WHITE JEWEUTE

LETTER BACKS: ALUMINUMNEpNiJWO-TUPE 15MM TOLTARC TURQUOI&E. U.L, MOUNp_N0;_1/4'^OGALVrANlZE07HRUBOL're"'" FEGOFF;1/2"SFACERS

3?"HX4P±rwx8"ps[NSL&-m:EINrERMAl.LY- ILLUMINATED CABINET SIGN:z1R,EmtNER5.f'AINTEPTO MATCH MASEMTA. RETURNS; 8"D ALUMINUM PAINTEDMA6ENTA TO MATCH FMS tf2415CMATTHEWS <fMPOO&75 GLOSSYFACE:_TRANSLUCENT5G WHFTE FLEX FACE

wrH5. M5650-11S INTENSE MAGENTAnNYLOVERLAY AND IS 1/4"H COPY WEEDED AWAY.'!U.UMJNAT!ON' °HO I^MPS ANP BALLASTS. ' U. L.MOUMT^; 1/4"-20 GALVANIZED THRU BOL-re'!2'HX48"W)(10'0 OOUBLE-FACE IMTERNALLY- ILLUMINATE[> UNPERCANOPY slON. uTL SEE SHEET UC FOR DETAILS. ' ~'""~"

,

EJ ie'HX66'W)0/4'P5WTRA DI^S LOGO

WALL_FlAauE- ONE (I) REQUIRED AS 5HOWN. SEE 5HEET EL FOR DETAILS. ~ -----...

SIGN FASCIA BY ROSS

CONTRACTOR, SEE NOT

TYPICAL ARCHITECTURLIGHTING BY ROSS CO

CLEAR ANOPIZED ALUMSTOREFRONT & POORS ROSS CONTRACTORSETOF FIVE (6) EYE-BOBANNER ATTACHMENT KDBSCOMTRACTOR-TW

1I6'-0" LEASE UME TO LEASE LINE

56'-D"

DISCOUNTS:!

U>1 "»".";"".

- .. _^i^yW KU;^si: W STOREFRONT . SOUTH . SOUTH CONGRESS AVE. . ELEVATION

UssJs^m::::^

;-.... __. im:;:^::::::;^

STOREFRONT &t6N = 262 SFUCSIGN=4SF

(1) ONE LOGO PLAQUE = 7 SF

SCALE: 3/32" =1'-

1057SDtanoove.

p. o. boxtisaabany. caW70M]153

sio/saa. oaMfoxszMDK s*^?n"*uwww. tillmoore. com

bill moore & associates B3. dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
TENANT FACE PECORATION BY ROSS STORBS. INC.!

21'1/4"HX10LD"W (VISIBLE OPENING) SOLAR GRADE, TRANSLUCENT. BUNK WHITE AOn-LIC. lEMN;OEB<N*FLEiBN:ES~' "~"-'"'"nRe>TSURKM;E ?ECORATED WITH 5M 5650-11S INTENSE MAGENTA VINYL (;UT*NPI»EEOOUT15ia'H-C])'S-ANI)^U2-H'"i)ISCoij mB;i LOGO COFC TO REVEAL WHFTE.

Mi^aE!S,S£m °N EAC" °'°E °" °°u°LE-mcE° '-^" ^"

AJ FYLPN STRUCTLJRE- fOCFWGS. CABINETS. FINISHES. LK5HTIN6.

AN?.El-ECTRICALAERMCE PROTOEP ANP MAINTAINE'DBYLANDLORP.£SN C°KSA25SS mEF.K ""rs^. uusra. uio mErN6.'*NiiumiE OR KPUCE AS NECESSACT. SISN CONTIiAODIi TO RERUE DOS PEmMETER m-AINEis ANP MfS" '{£Ssw!" "" ""'".'"'."

2j NEW BLANK TENAMT FACES PROWPED BY LANDLORD5[ OTHER TENANT RUES SHOWN FOR REFERENCE ONLY

Installati

* FIELD VER

STRUCTUR

. PROVIDE B. PROVIDE B

z'-iw

(m.)

EG

EQ

10'-0" (TO.)

t° Z'-91/4" 1/2' y-v

L2J "CD'S DISCOUNTS" TENANT FACE DETAIL

81/2"

:r

WKy"^

.. \, i ^'. 'r,^

.33(9

PMU.PS INT

(305) 8

SCALE: 3/4" . 1'-0"

D/F PYI.OM PHOTO RSOUTH CONGRESS AVE. ; SEE SHEET K 

10S7iotanoave.

p.o. box 6153Olbony. co W706-B163

510/62A-02M fax 6Zfr^(»2www.hilmooie.com

bill moore & associates

ddsDISCOUNTS

#5296 PALM SPRINGS

Palm Springs Plaza

SWC South Congress Ave. & 10th Ave. North

Palm Springs, FL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
^A) TENANT FACE DECORATION BY ROSS STORES. INC.:

±3':10"H X±!?-<7W CVSIBLE OPENtNG) SOLAR GRAPE, TRAN5LUCENT. BLANK WHITE ACRYLC. LEXAN. OR NAFLEX' CES"" """"""'""'"ST?""?" PKOMTEO WITH 5M 5630-118 IKTENSE MAGENU VINYL.CUT AND WEED OUT 22-H "DP-S" AND 111/Z'H "DISCOUNTS"" ---"......-LOSO COPY TO REVEAL WHITE.

I%^%!?Oa;'gc6H°SN"> °" EAC" 81I>E °F saatwtaa "1°" °'°"

-Li nrLON STRUCTURE'_FOOTi lNG6. CABINETS. FiNt&HES. LieHTING, ANPELECTR1CAL-SERV1CE PROVIDED AND MAINTAINED BYLANPLORD.

SS SK£A2°; 32 2K u"i.''£.BALlA?.'B--*N?.TN6.^>"i FAK os EEPLACE AS NECESSAK SIGN CONTRACTOR TO RERMR OffS PERIMETER RETAINERS AND lNT~AS"NECES'SAK;rT T "l-">-k"m'^1-

NEW BLAHKTENANT FACES PROVIDED &Y LANDLORDOTHER TENAMT FACES SHOWN FOR REFERENCE ONLYDIMDER BAR AODmON PROVIDED BY LANDLORD

Installat

* FIELDVE.K

STRUCTUR

. riiOVIOE B

. PROVIDE B

IO'-D" (KO.]

EG

*3'-10"

(ro.)

EQ

22"

41/2"

111/2"

EG

8--0" (DISCOUMTS)

2'-1/2" 3'-1" (DD'B) 2'-1/2"

Efl

401

"DD'S DISCOUNTS" TENANT FACE DETAIL

SCALE; 3/4" =1'-0"

1) D/F PYLON PHOTO R

SOUTH CONGRESS AVE. : SEE SHEET 

EXHIBIT

PAGE '* OF

1057 ioteno ave.

PA box 6163obony. ca M7DM11535IO/52MU94 (at fi»d 2www,bNlmoore, com

& associates Bl dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL 

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
iin

+ cu t °" 1

J^JTr

PARTIAL FLOOR PLAN

PLAN SHOWN FORIU.USTCAT10N ONLY,CONDmONS MAY VARY.SEE SHEET S1 AMP SHEET

SECT FOR rosmoN.

SCALE: 3/32" =1'-0"

S16N INSTALLERS TO PROVIDE

WOOD OR STEEL ANSLE CROSS MEMBER

[AND WOOD BLOCK1N6 IF NECESSAKY) ANCHOREP TO CANOPY JOISTS.PRILL FOR PIPE SUPPORTS ANP FASTEN

WITH FENDER WASHERS ANDLOCK NUTS A6 REQUIRED.

SIGN INSTALLERTO PROVIDE WEATHERPROOF

91LICONE SEAL AROUNDPIPE PENETRATIONS

INTO CABINET, TTR

LANDLORD TO PROVIDE120V PRIMARY ELECTRICALSERWCEANPJ-BOX

ABOVE CEILING WITHIN

FIVE[5}FEETOFSt6N

DEsamiON:

12" HIGH X46" WIDE X 10" DEEP DOUBLB

CABINET) ALUMINUM SKIN OVER A

5" DIA. ESCUTCHEON PLATE

(PAINTTO MATCH SOFFIT)

11/2" FIFE FLANGE

11/2" 6ALV. FIFE (FA1MT TO MATCH SOFFrT)FOG INSIDE OF CABINET WHITE3/4" x 3/4- METAL RETAINER PAINTED M.A.RTO MATCH INTENSE MAGENTAF4fl-T12-DHO FLUORESCENTLAMP. TYPICAL OF TWO (2)

2" x 2" ^'CHANNEL LAMPSUPPORT WELDED TOCABINET ED6E

TWO-LAMP BAb\STCABINET EPSE FAINTED

M.A.R ID MATCH CABINET

INSTALL CABINET50 THAT DISCONNECTSWTICH AND U.L LABEL

ARE ON END CABINET

FACINff STORE

RETAINERS;

FACES;LIGHTING;MOUMTING;

PRIME AND RAINT OUTS(MAR) TO MATCH INTEN

3/4" ALUMINUM PAINTEo-1771s/1e")7s2e WHrrANP 51/8" HK3H WHTC INTENSE MASEMTA TRA

TWO (2) F42-T12-DHO LASISNHUNS FROM SOF

PENETRATION CONCEAL

PIPES ANE> PLATES FAIN

TWO [2) 1/4" P1A. DRA1NHOLESAT BOTTOMOF CABINET. Tffl

A<J

SECTION A-A FRAMING ELEVATION

SCALE; r=r-o1'

D/F UNDER-CAN

SCALE: r=r-o- 

NOTE5:

SEE SHEET 31 FOR UNDER-CANOPY SIGN LOCATION.LANPLaRDTOPROVl[?E-AC(;ESS ABOVE CEIUNG FOti SISN INSTALLATION, AND.120Y ELECT1RIC;AL 5ER"CE AND J-BOX WTTHIN FIVE (5) FE'ETOF 51SN LOCATION CONNECTED TO ENERGY MANAGEMENT SYffTEM.

p.o. box 4153dbony, co 947060153

SWSU-OSM fax 52MOff2www. blhioore. com

bill moore & associates K dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL 

E

Pag

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
5" X 1/4-20 GALK HANGER BOLT

5/16"D1A.X3"DEEP

HOLE IN WALL

TYPICAL OF SIX [6),

1/4-20 X 3" GAiV.

HANGER BOLT

TfFICALOF5C((6).

T-NUTrfFICALOFSlX(6)

<'//////// "WWMffmjTY

,

2J SECTION AT MOUNT

SCALE: 1"=1"

EXISTING WALL

ie"Hxee'wxs/4"DSINTRAWTTH3M

TKANSLUCENT5M 3630-115

IMTENSE MA0ENTA

VINYL OVERLAY

SEE NOTES BELOW FOR

APFUCABLE CONDITIONS

1/2"~|

® a

sUJ

-§i

n.

INSTALLATION INSTRUCTIONS;DRILL SIX (6) We" DIA. X 3" DEEP HOLES INTO WALL AS PER PA

SCREW1/4:20 MACHtNE-THREAP END OF GALV; FURNITURE BO

IN BACK OF PLAQUE UNTIL THEY CONTACT THE PVC. I

"i .H°LES.'".*'"-L'.C°AT s<;«EW-mEEA[> ENDS OF FUENmEWITH 6E CONSTmCTION SC51200 SIUCONE 5EALANT.AGAINST WALL SURfnCE.

66" O. A.

25"

q^FOR SERT5

2-5/8"

60"COPY 

9"H .VVS" WHITE L00

AMP 4-a/8"H "DISCOU

ie"H X 66"W X 3/4?'D S3M 3630-118 INTENSFLAT EI/EN SURFACE R

NOTBS;

SEE SHEET S1 FOR PLAQUE LOCATIONS,

BMA TO SUPPLY PLAQUES, HARDWARE ANP INSTALLATION PATTERNS.

MOUNTIN<5 DETAIL MAY WRY ACCORDING TO TfFE OF WALL CONSTCUCTON;LWPLORD'S CONTCAOTDR TO VERIFY CONDITIONS,

IF WALL SURFACE IS UNBVEN (EXAMPLE! !

Th!ENKNOCK POWN ROUGH SURFACE 2" BEYOND WALL PIAOUE.'&OTHAT""THE PLAQUE WILL SFT FLUSH AOAINST WALL.

1067sotanoave*

PA box 6153

olbany, oa M7D^01S35in/S2fl42M IbxSawOKwww. bttnoore. oom

moore & associates

ENTRANCE LOGO PLAQUE E

ddsDISCOUNTS

#5296 PALM SPRINGS

Palm Springs Plaza

SWC South Congress Ave. & 10th Ave. North

Palm Springs, FL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
"%ssuw

dd'S D15COI

m

3319-3343

nure imaNmom

(305)821.7111

.ORACAL 382)' 2'-D" X S.8* TRtAMOLEEEMOVABLE MNYL PATCHFRIMIED YEILOW (COJrfO.WOO.KD)WTTH 71/Z-H "COMIN6- AND

S 1/Z-H "SOON' BLACK COPV (CO, MO,TO, K10D) TWO (2) ftEQUIKED.

ONE ON EACH SIDE OF D/F SIGN.REMOVE PATCHES ON BOTH FACES

ATTIME OF STORE OFENIN6.

BLACK 3D r-6" X ff-2 TWANSLE

VINYL PATCH PLACE? STtCKfSIDETOSTICKV91DEONBACK OF YELLOW PATCH

^COMING SOON" PATCH

D/F PYLON PHOTO RENDERING

SOUTH CONGRESS AVE. ; SEE SHEET K FOR LOCATION

EAST/WEST

SCALE: N.T.S.

ut

Notes;

SEE SHEET K FOR FYLON S16N FOSmON.SEE SHECT P2 FOR PERMANENT DD'S S16N FACE SPECIFICATIONS.

LANDLORD TO FROVIDEANO MAINTAIN PYLON STRUCTURE, CABINETS, FINISHES. BLANK FACES, UGKTING AND E1.ECTRICAL SERV'iCE."'"""

.WS" TEMPORARY TENANT FACE DECORATION TO &E PROVIPED BY RO&SSTORES, INC.

ALL DIMENSIONS TO PE VERIFIED PRIOR TO FABRICATION.

"DD'S DISCOUNTS" TENANT FACE DETAIL

SCALE 3/4

1057aotanoave.

p.o, box A153dbanv. oo9470W)163

BIB/SaMiaW teK GZ6<(»2www. blUmocfe. eom dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL 

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
DOL

tUU»

Sl

ISH

"ORACALS621"2'-1D"X 5'-D* TRIANGLEREMOVABLE Y\tff\. PATCHPRtNTEP YELLOW (CO. MO.YIOO. KD)

WTTH ID 1/2"H "COMING" AND

&"H "SOON" BLACK COPY (CO,MD,YO,K100)

TWO (2) REQUIRED,ONE ON EACH StPE OF D/F SIGN.

REMOVE PATCHES ON 5GTH FACES

ATTIME OF STORE OFENIN6.

BLACK 2--6- X 4'-6" TRIANGLEVINYL PATCH PLACEP STICKY

ilDETOSTICKVSIDEON

BACK OF YELLOW PATCH

60-

4--6- B'-O

A> ^COMING SOON" PATCH

;^ Oil I1"*

Itn'jrw

-3485

D/F PYLON PHOTO RENDERING . EAST/WESTSOUm CONGRESS AVE, : SEE SHEET K FOR LOCATION SCALE: N.T.S. 

Notes;

SEE SHEET K FOR PYLON SIGN POSITION.SEE SHEET P2 FOR FEKMANENT DO'S SIGN FACE SPECIFICATIONS.!:AMDLOR[>-TOreovlDEANP MAINTAIN FYLON STRUCTURE. CABINETS, FINISHES. 51.ANK FACES. LlffHnNG ANP El^CnaCAL SEfWfck'."" """

"DPIS"TEMPORARY TENANT FACE DECORATION TO BE PROVIDED BY R05S

i* INC*

ALL DIMENSIONS TO BE VERIFIED PRIOR TO FABRICATION.

"DD'S DISCOUNTS" TENANT FACE DETAIL

)OS7sofonoavg.

p.o. bear 6153dbany. co 9-1706-0153610/Sas<B94 fax 626-6092

www. bltnoore. com

bill moore & associates K dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL 

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
Notes:

THIS PRAWING FOR 3ANNER REFERENCE ONLY

PONOTINSTAU. BANNERS ON DRYyrr (E. I. F.S.) WALL[S) WITHOUT BANNER EYE-BOUS. SEE NOTCS IN RED ABOVE FOR INSTALLATION REQUIREMEN15.

B. M. A. TD SEAL. fMm AND TOUCH UP ALL OTHER WALL PENCTtATlONS ONREMOVAL OF BANNERS.SAVE ALL BANNERS FOR REUSE.ROSS STORES INC. RESERVES THE RIGHT TO INSTALL ANY OTHER TCMPORARYOFEN1NG PROMOnONAL MATERIAL OR ELEMENT THEY PEBM APPROPRIATE.

6'-0"H X 21--OUW "DD'S DISCOUNTSCOMING SOON-BANNERONE (1) BANNER REQUIRED AS BHOWN.SEE SHEET 3NR. DETAILS 1 AND 7

WINDOW GRAPHICS INSTALLATION

TO BE CONFIRMED WTTH

CONSTRUCTION MANAGER

ROSS CONTRACTOR TO MAINTAIN BANNERIN VISIBLE POSITION ON STOREFRONT

AS CONSTRUCTION PROGRESSES

Inst

. NE

(CO

. IF . IF Y. IF 

BU(O

. IF Y

ON IF NSU

DO 

.1) STOREFRONT . SOUTH . SOUTH CONGRESS AVE. . EL EVATION

SCALE: 3/32' = 1f- 

1067 sdono are.

p.o. bin 11163dbany. ca M706-0153S10/526^UM fax 52fr60%www. blhioors. com

bill moore & associates

ddsDISCOUNTS

#5296 PALM SPRINGS

Palm Springs Plaza

SWC South Congress Ave. & 10th Ave. North

Palm Springs, FL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
Notes:

THIS DRAWING FOR BANNER REFERENCE ONLY

EYE-BOLT5. SEE NOTES IN RED ABOVE FOR IN'STALLATlbN REQUIREMENTS.B. MA TO SEAL, RTOH AND TOUCH UP ALL OTHER WALL PENETRATIONS ONREMOVAL OF BANNERS.SAVE ALL BANNERS FOR REUSE.R05S STORES INC. RESERVES THE RIGHTTO INSTALL ANY OTHER TEMroRAIO'OPENING PROMOTIONAL MATERIAL OR ELEMENT THEY DEEM APPROFRtATC.

S'-0"H X 16'-0'W "OPENING SOON" BANNERONE (1) BANNER REQUIREP AS SHOWN.SEE SHEET &NR, OErAtL& 2 AND &S'-O-H X 16'-0"W "NOW HIRING" BANNERONE (1) BANNER REQUIREP AS SHOWN.SEE SHEET BNR. DETAILS 5 AND 6

WINDOW GRAPHICS INSTALLATION

TO BE CONFIRMED WITH

CONSTBJCTION MANAGER

Inst

. NE

(CO

. [F F. IF Y

. IF N

BU

(ON

. IF Y

ON 

. IF N

SUDO 

DISCOUNTS

1) STOREFRONT . SOUTH . SOUTH CONGRESS AVE. ^ELEVATION 

SCALE: 3/32" =1'-0

1057aotanoava.

p.o. box 6153d bony. ca 9170^0163

Sln/8ZWB9<to[52M092www. Ulrnc30Te. com

bill moore & associates B& dds DISCOUNTS #5296 PALM SPRINGS Palm Springs Plaza SWC South Congress Ave. & 10th Ave. North Palm Springs, FL 

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
Notes;

THIS DRAWING FOR BANNER REFERENCE ONLY.

DDNOTINSTA!-L BANNEKS ON DlptvIT (E. I.F.S.) WALL(S) WTTHOUT BANNER EYE-BOLTS. SEE NOTES IN RED ABOVE 'FOR INSTALLATION REQUIREMEWIS.

B. M. A. TO SEAL. PATCH AND TOUCH UP ALL OTHER WALL PENETRATIONS ON

REMOWL OF BANNERS,

SAVE ALL BANNERS FOR REUSE.

RO&6 STORES INC. RESEIWES THE Rlffhn-TO INSTALL ANY OTHER TEMPORART

OPENING PROMOTIONAL MATERIAL OR ELEMEMTTMEY PEEM APPROPRIATE.

S'-O-H X 1S'-0'W "GRAND OPENINO'1 BANNERONE (1) BANNER REQUIRED AS SHOWN.SEE SHEET BNR, DCTAILS 4 AND 6S'-O-H X Iff-CTW "WE ACCEPT EBT' BANNERONE (1) BANNER REQUIRED AS SHOWN.SEE SHEET BNR, DETAILS 6 ANt> 63'-9"H X 20--CnV"NEW FASHIONS EVEKrDAY" BANNERONE (1) BANNER REOUIRED AS SHOWN.SEE SHEET BNR, DETAILS 5 ANP &MAfiENTA AND TEAL COLORED STREAMERS

TO BE STRUNG TD NEARBY LIGHT STANDARD.

FIVE (B) TOTAL SINGLE STRINGS(NOTTD EXCEEP SO'-O")

WINDOW GRAPHICS INSTALLATIONTO BE CONFIRMEP WFTHCONSTRUCTION MANA6ER

Inst

. NE

(C

. IF . IF Y

IF BU(O

. IF Y

ON IF SU

DO 

-,u. ;uaai

DISCOUNTS

EXHIBIT 3

PASE U OF ^'

V) STOREFRONT . SOUTH . SOUTH CONGRESS AVE. . ELEVATION

SCALE: a/32'=r-0

1057 BOtano ave.

p. o. box 6153

ctbany. ca M7QM11536KK/6ZM12U da 626-6092www.bllmooie. com

bill moore & associates us

dds

DISCOUNTS

#5296 PALM SPRINGS

Palm Springs Plaza

SWC South Congress Ave. & 10th Ave. North

Palm Springs, FL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 

 126
EXHIBIT K

GUASANTy

As a material inducement to and ia consideration of P.HLLU. rS LAlLtS WORTH LLC, a Florida

limited liability company ("Landlotd"), entering into a written lease (the "Lease") with ROSS

DRESS FOR LESS, INC., a Viigima corporation ("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 Palm Springs, County of Palm Beach, State of Florida, ROSS STORES,

INC., a Dekware cotpoiarion ("Guarantol"), whose address is 5130 Hadenda Drive, Dublin, CA

94568-7579, guarantees and ptomises to and fot the benefit of Landlord the performance of all

obligations of Tenant under the Lease.

The provisions of the Lease may be amended by agreement between Landlord and Tenant at

any tune; provided, however, Guaiantol shall not be bound by any amendment to which it has not

consented in writmg. Assignment of the Lease (as permitted by the Lease) shall not affect this

Guaranty, except as specifically set forth in the Lease.

If Tenant defaults with respect to any payment obligation under the Lease, Landlord shall

have the right to proceed immediately against Guarafitor and/or Tenant, and to enforce against

Guarantor and/oi Tenant any rights that Landlord may have under the Lease ot pursuant to

applicable laws with respect to such default. If the Lease teiffliaates and Landlord has any right(s)

that it is entitled to enforce against Tenant after termination, Landlord shall have the right to enforce

such aght(s) against Guarantor.

Guarantor waives the right to require Landlord to (1) proceed agamst Tenant; (2) ptoceed

against or exhaust any security that Landlord holds ftom Tenant; ot (3) pursue any other remedy in

Landlord's power. Guarantor waives any defense by reason of any disability of Tenant Until aU. of

Tenant's fflonetaiy obligations to Landlord under the Lease have been dischfllged in full. Guarantor

has no right of subiogadon against Tenant. Guarantor waives its right to enforce any remedies that

Landlord now has, or later may have, against Tenant. Guatantor waives any right to participate in

any security now ot ktej: held by Landlotd.

If Landlord is requiied to enfotce Guarantor's obligations by legal proceedings. Guarantor

shaU pay to Landlord aU costs incuired, including, without limitation, reasonable attorneys' fees.

Guarantor's obligations under this Guaranty shaU be binding on Guarantor's successots, but

shall be no greater riian Tenant's or as otherwise set forth in this Lease.

Dated: ROSS STORES, INC.,

a Delaware cotpotarion

By:_

James Fassio

Its: President and Chief Development Officer

'Talm Springs"

Palm Springs Plaza

Palm Springs, EL

Store No. 5296

6061.1319/870664.1

EximrrK 05/08/15

ENAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 124 of

 126
EXHIBIT L

EXISTDMG TENANTS

TENANT SQUARE FEET OF LFA

1st Contractors School 1,424

Aaion Rents 7. 820

Aldi 20,735

Amore Salon 1,205

Army Navy 1.425

BennettAuto Supply 9.350

Bergei Chiiopracric LLC 1,424

Chicken Grill House 1,960

Cofflputet Repait 1,535

Cricket Wireless 1,386

Diatnond Beauty 2,473

Dollar Tree 10.354

El Corte Hispano Batbeishop, Inc. 660

Eyeglass World 5, 589

Fish Fantasia 4,000

Harbor Freight Tools 15.296

Liberty Tax 1.080

Little Caesars 1,442

Meccedes Jewelry 1,386

Metto PCS 2,570

Mi. Shrimp 1,480

"Palm Springs"

Palm Springs Pkza

Palm Springs, FL

Stotc No. 5296

6061.1319/90S735.1

EXHIBIT L

Page 1

05/08/15

FINAL

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

 126
TENANT SQUARE FEET OF LPA

Nail Fetish - Nail salon 1,200

Nutri Kingdom 1.385

Party Supply 4,562

Quest Diagnostics 2, 160

Rainbow USA, Inc. 11.500

Ross Dress For Less 25.668

Samy Shoes 1,200

Selective Dental, Inc. - Dentist 1.468

Sprint 1.700

Tb-e Closeout Store 2. 898

T-Mobile 1,775

US Tops 6.000

Video Store 1.080

Wok Cta2y Chtaese 1.332

'Talm Springs"

Palm Springs Plaza

Palm Springs, FL

Store No. 5296

6061.1319/909735.1

EXHIBFTL

Page 2

05/08/15

FINAL

Case 1:20-cv-21865-FAM Document 1-8 Entered on FLSD Docket 05/04/2020 Page 126 of

 126