**Exhibit 10.12**

 

**FIRST AMENDMENT TO LEASE**

 

**THIS FIRST AMENDMENT TO LEASE** (the **“Amendment”**)is made and executed on the dates set forth below, to be effective as of 9/5, 2003,by and between Keystone-Miami Property Holding Corp., a Florida corporation **(“Landlord”)**, and Tiger Direct, Inc., a Delawarecorporation, doing business as “Tiger Direct” **(“Tenant”)**for Space Number 35 and 33C in the Mall of the Americas, and Systemax, Inc.formerly known as Global Direct Mail, Inc., a New York Corporation **(“Guarantor”).**

 

**W I T N E S S E T H****:**

 

WHEREAS,Landlord and Tenant are parties to that certain Lease Agreement dated as of September 17,1998, as amended by that certain Settlement Agreement and Mutual Release datedas of June 8, 2001 (the **“Lease”**)pursuant to which Landlord leased to Tenant Space Number 35 and 33C, and suchstorage space and lobby areas as described in the Lease **(“Premises”)**in the Mall of the Americas, located at 7795 West Flagler Street, Miami,Florida 33144, Miami-Dade County, Florida, as more particularly described inthe Lease;

 

WHEREAS,Landlord and Tenant entered into that certain Generator Agreement dated as of November 6,2001**(“Generator License****Agreement”)**with respect to emergency generator services to the Premises;

 

WHEREAS,Tenant has requested that the Lease be modified as set forth herein, and theLandlord has agreed to modify the Lease, pursuant to the terms set forthherein.

 

NOW,THEREFORE, in consideration of the foregoing, the mutual covenants,representations, warranties and agreements contained herein and the sum of Tenand 00/100 ($10.00) Dollars, the receipt and sufficiency of which are herebyacknowledged, Landlord, Tenant and Guarantor agree as follows:

 

**TERMS**

 

1.                                       Incorporationof Recitals. The foregoing recitals are true and correct andincorporated herein by reference. All terms not defined in this Amendment shallhave the meanings ascribed in the Lease, unless the context clearly otherwiserequires.

 

2.                                       Exchange ofSpace 33C. Tenant agrees to vacate and release to LandlordSpace 33C and the storage area located behind the current Foot Locker space **(“Release Space”)** and, in exchange thereof, lease Space 33D,as depicted on Amendment Exhibit “A”**(“Additional Premises”),**as part of the Premisesunder the Lease. The Landlord and Tenant acknowledge and agree that the StorageArea (also known as the loading dock) as set forth in the Lease is not includedin the Release Space. The Commencement Date under the Lease with respect to theAdditional

 
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Premisesshall be the date that is 90 days after delivery of the Additional Premises tothe Tenant **(**the **“ExchangeDate”)**. Prior to the Commencement Date, the Tenant shall continue topay Rent as provided under the Lease, however, once the Tenant occupies andopens for business in the Additional Premises and returns the Release Space toLandlord as provided herein, Rent will be paid for the Additional Premises atthe same rate as Tenant pays for the Premises until the Commencement Date. Uponthe Commencement Date, the Tenant shall pay Rent as set forth herein. Upon theearlier to occur of (i) the Commencement Date with respect to theAdditional Premises, or (ii) the date that the Tenant occupies and opensfor business in the Additional Premises the Tenant shall immediately vacate andsurrender the Release Space in the condition required at expiration under theLease. The Additional Premises consists of approximately **15,984**square feet. The Premises Rentable Area set forth on the Reference Page ofthe Lease shall be modified to replace the total area of the Premises from **70,882** square feet to **79,866** squarefeet. The Lease shall expire with respect to the Additional Premisesconcurrently with the expiration of the Lease Term for the entire Premises. Allof Tenant’s obligations, covenants, and conditions under the Lease with respectto the Premises as defined therein, including Options to Renew, shall apply tothe Premises as expanded by the Additional Premises. For the purposes of the GeneralAgreement, as of the Commencement Date, the term “Premises” therein shall meanthe Premises and the Additional Premises.

 

3.                                       Rent Paymentsand Charges.

 

(a)  Landlord and Tenant agreethat commencing as of the Commencement Date, Annual Rent shall be paid at **$958,392.00** per annum with **$79,866.00** paid permonth, excluding the applicable Rent for the Release Space, for which AnnualRent shall be paid at **$10,000.00** per annum with **$833.34** paid per monthuntil such Release Space is surrendered to Landlord in accordance herewith.Prior to the Commencement Date, Annual Rent shall be paid as provided in theLease. Annual Rent for the expanded Premises shall thereafter increase at therates provided in the Lease. Direct Expenses shall continue to be paid by Tenant100% for the Premises as set forth in the Lease and shall be paid by the Tenantfor the Additional Premises, with the “Base Year” for the Additional Premisesbeing calendar year 2004. Tenant’s Proportionate Share for payment of Taxes andfor any other purposes under the Lease shall be increased to **12.27%**. The “Base Year” withrespect to the Additional Premises under the Lease shall be calendar year 2004.

 

(b)  Tenant shall otherwise beand remain obligated to pay all of the “charges”, rents and additional rents asprovided in the Lease, subject to increases as provided in the Lease.

 

4.                                       Delivery ofAdditional Premises. The Additional Premises shall be delivered to Tenantas of the Exchange Date in is “as is” “with all faults” condition, except that (a) theair conditioning equipment, plumbing and electric lines will be in good workingorder, (b) Landlord will replace ceiling tiles, with like kind andquality, in the Additional Premises, (c) Landlord will weatherproofexisting exterior doors and close one (1) opening, as identified on Amendment Exhibit “A”, with concreteblock, and (d) Landlord will remove all display racks, two (2) countersand two (2) dressing rooms in the Additional Premises. The Landlord agreesto replace the roof over the Additional Premises. Tenant agrees to remove theexisting carpet and tile in the Additional Premises

 
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andimprove the Additional Premises in accordance with and subject to allobligations and conditions of the Lease. All such work shall be subject toLandlord’s prior approval, which approval shall not be unreasonably withheld ordelayed, and which shall be done by Tenant in accordance with any reasonablerequirements and reasonable standards of Landlord, and in a good andworkmanlike manner.

 

5.                                       ExpansionRights. Tenant’s “First Right of Notice to Lease” set forth in Section R-6of the Rider to the Lease and Tenant’s “Expansion Rights” set forth in Section R-7of the Rider to the Lease shall be modified to specifically exclude from suchrights any portion of the Building leased to Technical Career Institute, Inc.,its successors or permitted assigns, specifically being Spaces 230 and 240 ofthe Building.

 

6.                                       Relocation ofAdditional Premises.

 

(a)   On at least one hundredeighty (180) days’ prior written notice at any time during the Term, Landlordmay require Tenant to move from the Additional Premises to another space ofbetween 10,000 square feet to 16,000 square feet in the Shopping Center orBuilding in order to permit Landlord to consolidate or expand the Premises withadjoining space, or to expand or renovate the Shopping Center or the portionthereof in which the Premises are located, or for the rearrangement of tenantmix groupings or for any other aesthetic purposes. Such substitute premisesshall provide an exterior double-door entrance for retail customer use and,unless Tenant otherwise consents, which consent shall not be unreasonablywithheld, delayed or conditioned, shall be located in the “Permitted RelocationArea” on the sketch attached hereto as Amendment Exhibit “B”. Uponsuch notice, Tenant may elect not to move to the other space only byterminating this Lease with respect to the Additional Premises only, bydelivering written notice to Landlord within sixty (60) days after the date ofLandlord’s original notice of relocation, such termination to be effective uponthe expiration of such one hundred eighty (180) day period.

 

(b)   If Tenant relocates to thenew space, this Lease shall remain in full force and effect and thereupon bedeemed applicable to such new space except that:

 

(i)                                     If therelocation is to substitute premises in the Shopping Center as such currentlyexists, the Landlord shall revise the Lease to reflect the new premises and anyproportionate changes in the Annual Rent and Direct Costs and Taxes if any,effective as of the date of relocation, resulting from a difference in thefloor area of the Additional Premises and such substituted premises.

 

(ii)                                  If therelocation is to substitute premises in the Shopping Center after such has beensubstantially redeveloped, renovated or reconfigured (“substantially” beingbased on the total cost to Landlord of such redevelopment, renovation orreconfiguration being at least $20,000,000, which costs shall include withoutlimitation, soft and hard costs of development and construction, cancellationfees, buy out costs, lost, abated or waived rent, relocation expenses, and anyother costs and expenses associated therewith) rent for the substitute premisesshall commence at the then current gross rent under the Lease without reductionof offset for the substitute space

 
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beingless than the area of the Premises and Additional Premises, provided thesubstitute premises is between 11,500 square feet and 16,000 square feet.

 

(iii)                               Tenant’s prorata share shall, as of the date of relocation, be adjusted pursuant to theprovisions of the Lease.

(iv)                              There shall beno abatement of any Rent payable hereunder on account of Tenant’s relocation orany inconvenience or business loss caused to Tenant thereby, unless due to thenegligence or willful misconduct of Landlord or unless the Tenant cannotoperate its business during the physical relocation.

 

(c)   In the event of Tenant’srelocation to the substitute premises pursuant to this Section, occasionedsolely at Landlord’s requirement pursuant hereto, Landlord shall pay to Tenantall reasonable out-of-pocket expenses of moving Tenant to the substitutepremises, including but not limited to moving trade fixtures and equipment,wiring of computers (including network connections to the main office), movingtelephone equipment, printing of new stationery, moving of inventory, andconstruction of replacement tenant improvements in the substitute premises (ofa scope and quality substantially similar to that originally constructed) andrelocation of signs (if signs cannot be removed and relocated due to thereduced size of the facade or applicable sign ordinances, Landlord shallprovide new signs of like kind, quality and style). Such payment shall be madeso long as Tenant was otherwise in full compliance with the terms of thisLease, that there are no claims or charges due to Landlord from Tenant, andTenant has vacated and surrendered the Additional Premises in accordance withthe requirements of the Lease.

 

7.                                       Ratification. Except asmodified herein, the Lease remains in full force and effect without change, andthe terms of the Lease are reaffirmed and ratified by the Tenant and theGuarantor. This is not a novation nor an accord and satisfaction of the Lease.The Tenant represent and warrant to the Landlord that, to the best of Tenant’sknowledge, there are no events of default, or events by the passage of timewould become events of default, under the Lease by either the Landlord or theTenant. In consideration of Landlord’s agreements herein, Tenant and Guarantoreach hereby waive and release any and all setoffs, defenses, claims, and counterclaimswhich exist, or which may exist with respect to: (i) the Lease, (ii) thecondition of the Premises and the Shopping Center and the Building and (iii) thebusiness relations between Landlord and Tenant or between Landlord andGuarantor. The rights and remedies of Landlord set forth herein shall be inaddition to any other right and remedy provided by the Lease or by law, and allsuch rights and remedies shall be cumulative.

 

8.                                       Commissions. Each of theparties represents and warrants to the other that it has not dealt with anybroker or finder in connection with this Lease, except Abood Wood Fay RealEstate Group LLC and NAI Miami. Tenant party indemnifies and holds the Landlordharmless from and against any commission fee or other compensation claimed byany broker based on a commitment allegedly made by Tenant.

 
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9.                                       ExclusiveRights.Amendment Exhibit “C”****is****attachedto and incorporated into the Lease. Tenant shall not violate or breach any exclusiveright granted to any tenant as set forth in Amendment Exhibit “C” and,without limiting the foregoing, Tenant specifically agrees not to violate orbreach the exclusive right granted to Gateway Computers, such agreement being amaterial inducement to Landlord to enter into this Amendment. Tenantspecifically acknowledges and agrees that, in addition to any other remediesunder the Lease for breach of this provision, the Landlord shall be entitled to specific performance to enforce therestrictions set forth herein.

 

10.                                 ProtectedParking Area. The Tenant acknowledges and agrees that,notwithstanding any contrary provision contained in the Lease and without theconsent of the Tenant, the Landlord shall be entitled to construct or permitothers to construct an additional 20,000 square feet of gross leasable area asa “Permanent Building” under the Lease, whether by the addition of newbuildings or expansion or replacement of existing buildings, in the portion ofthe parking lot designated as “Protected Area” as shown on Amendment Exhibit “D”hereto. Further, the Landlord may construct, with the Tenant’s consent, whichshall not be unreasonably withheld, delayed or conditioned, greater than such20,000 square feet of gross leasable area as a “Permanent Building” within theProtected Area (such excess above the 20,000 square feet being defined hereinas the “Excess GLA”) so long as (a) the parking spaces in the ProtectedArea removed are replaced with a parking structure, (b) the parking spacesreplaced are reserved in the parking structure for the exclusive use of Tenant,(c) the parking structure provides direct access to Tenant’s second floorportion of the Premises (the location of which direct access shall be subjectto Tenant’s approval, which shall not be unreasonably withheld, delayed orconditioned and any zoning or building codes), and (d) a minimum of 100surface parking spaces will remain for use by customers of Tenant, 25 of whichshall be designated as Tenant customer parking and remain located in the areaimmediately in front of Tenant’s main entrance as reasonably agreed by bothLandlord and Tenant. If Tenant does not provide specific reasonable writtenobjections to the configuration of the Excess GLA within ten (10) daysfrom receipt of a location sketch from Landlord, such Excess GLA shall bedeemed approved by Tenant.

 

11.                                 Signage. The Tenantacknowledges and agrees that, notwithstanding any contrary provision containedin the Lease, upon vacation of the Release Space, the Tenant shall have noright to signage in connection therewith and all signage installed by Tenant inconnection with the Release Space shall be removed by Tenant, at Tenant’s solecost and expense. The Tenant may have exterior signage with respect to theAdditional Premises as permitted under applicable law, ordinances and codes,without variance or special exception, and as approved by the Landlord inwriting as to size, style, design, color, lighting, and other factors inaccordance with Section R-9 of the Lease. In connection with such signage,the provisions of Section R-9 of the Lease shall apply, except that thesecond and third sentences thereof are deemed deleted hereby.

 

**[Signature Page continues]**

 
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**IN WITNESS WHEREOF,** Landlord and Tenant haveexecuted this Amendment on the dates specified below.

 
| WITNESSES:              |   | **LANDLORD:**                                                                           |
|-------------------------|--------|-----------------------------------------------------------------------------------------|
|                    |   |                                                                                    |
|                    |   | KEYSTONE-MIAMI PROPERTY  HOLDING CORP., a Florida corporation,                          |
|                    |   |                                                                                    |
| /s/ [ILLEGIBLE]    |   | By: RREEF MANAGEMENT  COMPANY, a Delaware corporation                                   |
|                    |   |                                                                                    |
| [ILLEGIBLE]             |   | By:                                                                                     | /s/ [ILLEGIBLE] |
|                    |   | Name:                                                                                   | [ILLEGIBLE] |
| [ILLEGIBLE]             |   | Title:                                                                                  | General Manager |
|                    |   | Date:                                                                                   | 9/5, 2003 |
|                    |   |                                                                                    |   |
|                    |   |                                                                                    |   |
|                    |   | **TENANT:**                                                                             |
|                    |   |                                                                                    |   |
| /s/ [ILLEGIBLE]    |   | TIGER DIRECT, INC., a  Delaware corporation                                             |
|                    |   |                                                                                    |   |
|                    |   |                                                                                    |   |
| /s/ Andrea Fongyee |   | By:                                                                                     | /s/ Gilbert Fiorentino |
|                    |   | Name:                                                                                   | Gilbert Fiorentino |
|                    |   | Title:                                                                                  | CEO |
|                    |   | Date:                                                                                   | 8/22, 2003 |
|                    |   |                                                                                    |   |
|                    |   | **guarantor:**                                                                          |
|                    |   |                                                                                    |   |
| /s/ [ILLEGIBLE]    |   | SYSTEMAX, INC. formerly  known as Global Direct Mail, Inc., a New York Corporation |
|                    |   |
|                    |   |                                                                                    |   |
|                    |   |                                                                                    |   |
| /s/ [ILLEGIBLE]    |   | By:                                                                                     | /s/ Steven Goldschein |
|                    |   | Name:                                                                                   | Steven Goldschein |
|                    |   | Title:                                                                                  | SRVP |
|                    |   | Date:                                                                                   | 8/8/03, 2003 |

 
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**AmendmentExhibit “A”**

 

**Attachedto and made part of First Amendment to Lease**

**ReferenceDate of September 5****th****, 2003between Keystone-**

**MiamiProperty Holding Corp., as Landlord and Tiger District,**

**Inc.,as Tenant and Systemax, Inc. as Guarantor**

 

 

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**AmendmentExhibit “B”**

 

**PermittedRelocation Area**

**Thecrosshatched area is the**

**PermittedRelocation Area**

**Attachedto and made part of First Amendment to Lease**

**ReferenceDate of September 5****th****, 2003between Keystone-**

**MiamiProperty Holding Corp., as Landlord and Tiger District,**

**Inc.,as Tenant and Systemax, Inc. as Guarantor**

 

 

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**Mall of the AmericasExhibit CExclusives/Restrictive Covenants**

 

attached to and made part of First Amendment to Leasebearing the ReferenceDate of 9/5,2003 between Keystone-Miami PropertyHolding Corp., as Landlordand Tiger Direct, Inc., as Tenant and Systemax, Inc. as Guarantor.

 

“Tenanthereby expressly acknowledges that the exclusive uses set forth below are inexistence at the Shopping Center and have been previously granted to otherTenants prior to the commencement of this lease. Licensee shall not violate andshall at all times herein, abide by and recognize the exclusive uses set forthbelow or any other exclusives granted by Licensor, so long as such futureexclusives do not impede or reduce the uses granted Licensee herein. ShouldLicensor grant an exclusive that violates Licensee’s use clause, suchexclusive, only to the extent that it violates Licensee’s use clause, shall notbe binding on Licensee”.

 
| ** ** | **AMC**                          | **Kay Bee Toys**     |
|------------|----------------------------------|----------------------|
| ** ** | **Citibank**                     | **Mail Boxes, Etc.** |
| ** ** | **Citicorp ATM**                 | **Marshalls**        |
| ** ** | **Cohen’s Fashion Optical** | **Pizza USA**        |
| ** ** | **Electronics Boutique**         | **Subway**           |
| ** ** | **F.Y.E**                        | **TCI**              |
| ** ** | **Gateway**                      | **T.J. Maxx**        |
|       | **Home Depot**                   |                 |

 

**AMC**

 

Landlordwill not use any other premises or equipment owned or controlled by Landlordand located on the Entire Premises in such manner as would result in any noiseor vibration interfering with the acoustics required by Tenant in its use ofTenant’s Building, or as would result in any offensive odors penetratingTenant’s Building.

 

Landlordwill not sell or permit to be sold video cassettes or discs or any candy orpopcorn in or from any premises located within 150 feet from any wall ofTenant’s Building or in from any part of the parking area or other CommonFacilities located within the Restricted Area.

 

Theforegoing limitation on sales from premises within 150 feet of Tenant’sBuilding shall not be applicable to the premises currently occupied by thetenants doing business under the names of Woolworth, Waldenbooks or Judy’sHallmark (“Unrestricted Tenants”) during the continuance of Landlord’s leaseswith each such Unrestricted Tenant.

 

**CITIBANK**

 

Providedthat Tenant is not in default under any of the terms of this Lease, Landlordagrees, during the term of this Lease or any extensions hereof, not to enterinto any leases for space in the southern half of the Shopping Center, as nowexisting, as said southern half is depicted on Exhibit “B” attached heretoand made part hereof, for use as a savings and loan institution or for bankingservices.

 

**CITICORP SAVINGS ATM**

 

Providedthat the demised premises are used solely for a drive-through ATM and Tenant isnot in default under this Lease, Landlord agrees that during the entire term ofthis Lease (i) it shall not enter into any lease, ground lease or saleagreement with any bank, savings and loan association or similar financialinstitution for any outparcels located in the southern one-half of the ShoppingCenter as now existing or hereafter altered and developed, to be used as a freestanding banking or ATM facility; and (ii) it shall not agree or permit anATM facility to be installed in the Shopping Center buildings

 
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(exclusiveoutparcels) by any party other than Tenant. Subparagraph (ii) hereof shallnot be construed to prohibit the construction and installation of any ATM towhich Landlord has heretofore given consent or to require any ATM alreadyinstalled and in existence to be removed or relocated.

 

**COHEN’SOPTICAL**

 

Duringthe term of this Lease (as the same may be earlier terminated or extended), andso long as Tenant (including its successors and assigns if and as hereinpermitted) is in possession of the demised premises and not in default (afterthe expiration of applicable cure periods), Landlord agrees hereafter not toenter into any lease or suffer or permit the use or occupancy of any person orentity for mall space in the Shopping Center with any tenant or occupant whoseprimary business (i.e., gross sales therefrom shall constitute more than 50% ofthe gross sales of such tenant’s or occupant’s business in such space at theShopping Center) is the sale of prescription eyeglasses, contact lenses and/orsunglasses (“Prohibited Items”). In no event shall any occupant or tenantperform eye examinations. Nothing contained herein shall prevent, restrict,impair or otherwise affect any leases existing as of the date hereof; providedhowever that Landlord agrees not to enter into any modification of an existinglease for such mall space in the Shopping Center in contravention of theforegoing provisions of this paragraph. Landlord represents and warrants thatthe Optica USA Lease has been terminated and that Landlord will usecommercially reasonable efforts to cause such Tenant to vacate its premises onor before the opening date of Tenant. Landlord further represents that as ofthe date hereof Landlord has not entered into any lease with a Tenant whoseprimary business is (a) the sale of the Prohibited Items or (b) theconducting of eye examinations. Landlord agrees that it shall use commerciallyreasonable efforts to enforce such restrictive covenants against all tenants inthe Shopping Center.

 

**ELECTRONICS BOUTIQUE**

 

**EXCLUSIVE RIGHT:**So long as no Event ofDefault (or event which with the notice and/or lapse of time could become anEvent of Default) has occurred under this Lease, Landlord agrees that it shallnot, at any time during the Term of the Lease, enter into any lease of space inthe Shopping Center with any tenant whose primary business is the sale ofhand-held game hardware, electronic board games, or video game hardware andsoftware. The term “primary business” as used in this Article, shall mean salesaggregating at least seventy percent (70%) of such tenant’s gross sales. Anyexisting leases in the Shopping Center on the Commencement Date and any futureleases to tenants leasing at least 7,500 square feet of space in the ShoppingCenter, including their respective renewal options, are not subject to theabove-described exclusive right. Landlord agrees it shall not lease space to“GameStop”.

 

**FYE**

 

ProvidedTenant is not in default, Landlord agrees, during the term of this Lease(subject to termination prior to its expiration, if applicable), that hereafterit shall not enter into a lease for space in the building of which the demisedpremises forms a part with any other tenant whose primary business (i.e.,occupying more than fifty (50%) percent of its gross leasable area andconstituting more than fifty (50%) percent of its annual gross sales) is thesale and display of pre-recorded music, including record albums, cassette tapesand compact discs. Except as expressly aforesaid, there shall be norestrictions on Landlord’s right to lease space in the Shopping Center to anytenant and for whatever use Landlord shall deem appropriate, in Landlord’s solediscretion. Nothing contained in this Rider Paragraph shall restrict Landlord’sability freely to lease space in the out parcels or any other portion of theShopping Center, not a part of the building for which the demised premisesforms a part.

 

**GATEWAY**

 

Landlordcovenants and agrees that, during the Term, Tenant has the exclusive in the ShoppingCenter (or any property contiguous or adjacent to the Shopping Center), owned

 
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orleased by Landlord (or any affiliate of Landlord), or in which Landlord (or anyaffiliate of Landlord), has an interest directly or indirectly to (a) thesale and rental of personal computer hardware and software as well a relatedand complimentary products and services. (b) The delivery of computersoftware training programs and (c) The service and repairs of such type ofproduct that is permitted to be sold and rented as outlined in (a) all ofthe forgoing in clauses (a) through (c) are hereinafter collectivelyreferred to as outlined in (a) all the forgoing (or any affiliate ofLandlord) has an interest, directly or indirectly, during the term of thislease. Landlord agrees, subject to the limitations set forth below, that uponwritten notice by Tenant of a violation of Tenant’s Exclusive Right, Landlordshall enforce Tenant’s Exclusive Right against other tenants in the ShoppingCenter using all reasonable legal means. In the event of a breach by Landlordunder this Article 1.D., Tenant shall be entitled to injunctiverelief as well as all other remedies available at law or in equity.Notwithstanding the foregoing, in the event any tenant violates Tenant’sExclusive Right, Landlord shall not be required to expend in excess of$25,000.00 in enforcing Tenant’s Exclusive Right; provided, however, Tenant mayelect, at its option, to pay any cost in excess of $25,000.00, in which eventlandlord shall continue enforcing Tenant’s Exclusive Right if requested byTenant. Notwithstanding any provision of this Article 1.D. to thecontrary, it is understood and agreed that: (i) Tenant’s Exclusive Rightshall not apply to or be enforceable against any tenants of the Shopping Center(or their respective successors and assigns) under leases in effect as of thedate of full execution of this Lease and which leases permit such Tenant’s toviolate Tenant’s Exclusive Right; (ii) any future tenant of the Shopping Center thatoccupies at least 25,000 square feet of gross leasable area shallbe permitted to use not more than fifteen percent (15%) of its gross leasablearea for computer and computer-related sales and rentals, but no event shallany such tenant sell or rent “custom built” computers; and (iii) Landlordshall be permitted to lease space in the Shopping Center to an electronicsretailer such as Best Buy, Circuit City or BrandsMart or to other tenants forthe purpose of operating electronic stores that sell computers orcomputer-related items.

 

**HOME DEPOT**

 

Noportion of the Shopping Center outside of the Premises may be used for homeimprovements sales, meaning for the sale of any one or more of the followingitems exclusive of the sales of electronics... lumber, hardware items, plumbingsupplies, electrical supplies, paint, wallpaper, carpeting, floor coverings,cabinets, siding, ceiling fans, gardening supplies, (exclusive of the sale ofelectronics), plants, nursery products, Christmas trees or other related itemscustomarily carried as of the date hereof by a home improvement center (the“Home Improvement Restriction”) except that (i) business or occupants ofless than a total of three thousand (3,000) square feet of gross leasable areashall be exempt from the foregoing Home Improvement Restriction; and (ii) thesale of any restricted items under the Home Improvement Restriction, if made inany single “major” premises (a “major” premises being defined for the purposehereof as premises that are in excess of 20,000 square feet) and if ancillaryto another primary use, within a retail sales area that does not exceed thelesser of ten (10%) percent of the retail sales area of such major premises orfive thousand (5,000) square feet) shall be exempt from the foregoing HomeImprovement Restriction (the foregoing Home Improvement Restriction as affectedby exceptions (i) and (ii) in this sentence is hereinafter referredto as the “Home Improvement Exclusive”). [Par. 8.2]

 

**KAY BEETOYS**

 

Landlordis not permitted to Lease any other premises in the Shopping Center for use asa toy or hobby store.

 

**MAILBOXES,ETC.**

 

Toprovide the following products and services: Answering service; mailbox rental; postal and parcel shipping; rapid air via UPS, DHL, FederalExpress, Airborne, Emery, US Postal Service; Western Union; copying service tothe general public; secretarial Desktop publishing/resume service(collectively, “Primary Business”) and as incident thereto provide printing,electronic typesetting, electronic mail message transmission,

 
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notarypublic services, laminating services and the sale of packing and general officesupplies (collectively, “Incidental Business”), and for no other use.

 

ProvidedTenant is not in default of any of the terms and conditions of the LeaseAgreement, Landlord agrees, during the term of this Lease (subject totermination prior to the expiration, if applicable), that hereafter it shallnot enter into a Lease for space in the building of which the demised premisesforms a part, with any other tenant whose primary business is to provide thesame products and: services as outlined under primary business ofthe Tenant contained in this Rider paragraph. Notwithstanding the above,existing Tenant and their respective successor or assigns are specificallyexcluded from this provision of this Rider, R-1.

 

**MARSHALLS**

 

Duringthe term of this lease, as the same may be extended, Landlord specificallyagrees with Tenant as follows:

 

Inrecognition of the fact that the following types of operations would undulyburden to parking areas serving the demised premises and would hamper the useof said parking areas by customers of Tenant, Landlord will not lease, sell, orotherwise permit any structure within the Shopping Center to be used in wholeor in part as a:

 

foodsupermarket (except within the premises shown and identified on the Site Planas “Winn Dixie”); restaurant (except within (I) the areas shown andidentified on the Site Plan as “Food Court,” (ii) the accessoryrestaurants currently operated within the premises shown and identified on theSite Plan as “Woolworth’s” and “Walgreen”, (iii) those portions of theShopping Center located outside of the “Prohibited Restaurant Area” shown onthe Site Plan and (iv) the free-standing structures shown on the SitePlan);

(a)          bar (unless such bar is included within permitted restaurantpremises which derive at least fifty percent (50%) of their annual grossrevenues from the sale of food for on-premises consumption);

(b)         theatre of any kind (except within the premisesshown and identified on the Site Plan as “AMC Theatre 8-Plex;

(c)          bowling alley (except within the premises shown andidentified on the Site Plan as (i) “Winn Dixie”, “T.J. Maxx”, “Lurias” or (ii) the northerly fortythousand (40,000) square feet of the premises identified as “Home Depot”);

(d)         skating rink (except within the premises shown andidentified on the Site Plan as (i) “Winn Dixie”, “T.J. Maxx”, “Lurias” or (ii) thenortherly forty thousand (40,000) square feet of the premises identified as“Home Depot”);

(e)          amusement park;

(f)            carnival;

(g)         meeting hall;

(h)         bingo parlor (except within the premises shown andidentified on the Site Plan as “West Side Amusement Bingo”);

(i)             “Disco” or other dance hall;

(j)             sporting event or other sports facility;

(k)          auditorium or any other like place of publicassembly.

 

Notwithstandinganything to the contrary set forth above in subsection A of this Section 2,Landlord agrees that in no event will Landlord lease, sell or otherwise permitmore than a total of thirty thousand (30,000) square feet of floor area(exclusive of the areas identified on the Site Plan as “Food Court” and thefree-standing structures shown in the Site Plan) to be used for restaurantpurposes within the Shopping Center nor, further, will Landlord lease, sell orotherwise permit any single restaurant operation within the Shopping Center tooccupy more than ten thousand (10,000) square feet of floor area.

 

Landlordagrees during the term of this lease that it will not lease, sell or otherwise permitany structure within the Shopping Center to be used in whole or in part for anymanufacturing operation; as a factory; for any industrial usage; as a warehouse(except as

 
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incidentalto an otherwise permitted use), processing or rendering plant; for anyestablishment selling cars (new or used) (provided, however, that a new carshowroom or leasing gallery for automobiles may be permitted within the areasshown and identified on the Site Plan as “Permitted Showroom Areas”), trailers,mobiles homes; for the operation of a billiard parlor, amusement center (otherthan one such center consisting of no more than seven thousand (7,000) squarefeet of floor area provided the same is located outside of the areas shown andidentified on the Site Plan as the “Food Court” and the “Prohibited RestaurantArea”), flea market, massage parlor; for a so-called “off-track betting”operation (other than operations having no direct access to their premises fromthe Mall); lottery ticket sales (unless located within areas of the Shoppingcenter outside of the area identified on the Site Plan as “Food Court” and thearea identified on the Site Plan as “Prohibited Restaurant Area”); for the saleor display of pornographic materials; or for any other purpose which would be consideredto be inconsistent with the use of the Shopping Center as a community orientedretail shopping center.

 

Landlordagrees that the term of this lease it will not lease, sell or otherwise permitany portion of the Shopping Center to be used for office purposes (other thanincidental to a primary retail use) except within those areas which arecurrently used for office purposes and those areas which are identified on theSite Plan as “Southern Bell” on the second floor of the Shopping Center.Similarly, Landlord agrees that during the term of this lease it will notlease, sell or otherwise permit any portion of the Shopping Center to be usedfor medical offices other than those premises currently so used and identifiedon the Site Plan as such.

 

Landlordpermits any one occupant of the Shopping Center (or any affiliate of suchoccupant), other than Tenant, to use premises consisting of more thantwenty-seven thousand (27,000) square feet of floor area for the sale ordisplay at discount prices of more than two of the following in combination (i) brand-namemen’s clothing, (ii) brand-name woman’s clothing, (iii) brand-namechildren’s clothing, (iv) brand-name shoes, (v) brand-name giftware,or brand-name domestics, then minimum rent payable pursuant hereto shall bereduced to forty percent (40%) of the amount provided for Section 1 ofARTICLE III, and such reduction in minimum rent shall remaineffective for so long as such use continues.

 

**PIZZAUSA**

 

Duringthe term of this Lease (as the same may be earlier terminated or extended),Landlord agrees hereafter not to enter into any lease for in-line (that is,space with an entrance directly into the enclosed Mall) space in the ShoppingCenter owned by Landlord with any tenant whose permitted use includes the rightto sell at retail cooked and prepared ready to eat hot pizza only; subjecthowever to the following terms and conditions including those relating torestaurants. In addition to the foregoing agreement whereby Landlord shall notenter into any lease, Landlord further agrees not to enter into anymodification of an existing lease for such in-line space as provided above incontravention of the foregoing provisions of this Rider R-3. Nothing containedin this Rider R-3 shall limit, impair or otherwise affect (i) Landlord’sleases, tenants or the uses by such tenants under such leases existing on thedate of this Lease, and extensions thereof or (ii) the space reserved for“majors” (i.e. spaces containing 20,000 sq. ft. of gross leasable area ormore), (iii) any space in or upon so-called “outparcels” of the ShoppingCenter (that is, spaces which do not have entrances leading directly into theenclosed Mall, including parcels surrounded by or abutting portions of thecommon areas which are exterior to the enclosed mall), or (iv) Landlord’sleases, tenants or their uses respecting the operation of a full service (eatin and take out) restaurant, including an Italian restaurant, unless suchrestaurant’s “primary business” (hereafter defined) is comprised entirely ofthe sale of cooked and prepared ready to eat hot pizza (for purpose of thissentence, “primary business” shall refer to such a restaurant where more thanfifteen (15%) percent of its gross sales are derived from the sale at retail ofsuch cooked and prepared ready to eat hot pizza).

 

**SUBWAY**

 

ProvidedTenant is not in default, Landlord agrees, during the term of this Lease(subject to termination prior to its expiration, if applicable), that hereafterit shall not enter into a

 
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leasefor space in the building of which the demised premises forms a part with anyother tenant whose primary business (i.e., occupying more than fifty (50%)percent of its gross leasable area and constituting more than fifty (50%)percent of its annual gross sales) is the sale of submarine and/or hoagiesandwiches. Except as expressly aforesaid, there shall be no restrictions onLandlord’s right to lease space in the Shopping Center to any tenant and forwhatever use Landlord shall deem appropriate, in Landlord’s sole discretion.Nothing contained in this Rider Paragraph shall restrict Landlord’s abilityfreely to lease space in the outparcels or any other portion of the ShoppingCenter, not a part of the building of which the demised premises forms a part.Any present food tenant, its successors or assigns, may continue to sellsubmarine and/or Hoagie type sandwiches, however, Landlord will not permitfuture food tenants to sell submarine/hoagie type sandwiches

 

**TCI (TECHNICAL CAREER INSTITUTE)**

 

**LIMITED EXCLUSIVE RIGHT.**The parties acknowledgeLandlord leases space to another postsecondary school (“New Horizons”) that iscurrently not accredited or eligible to offer Federal student aid funds to itsstudents under Title IV of the Federal Higher Education Act (“Education Act”),however, the Tenant acknowledges that such accreditation is not prohibitedunder the New Horizons lease. Landlord agrees that if Landlord should hereafter(a) lease any portion of the Building to a tenant that primarily providespostsecondary educational services under the Education Act and has obtainedaccreditation (including pre-accreditation, candidacy for accreditation or anysimilar type of approval) from any accrediting agency that (i) qualify suchschool to become eligible to participate in the Federal student aid programsauthorized under Education Act, and (ii) is recognized by the U.S.Department of Education as offering a form of accreditation required for aschool to become eligible to participate in the Federal student aid programsauthorized under the Education Act or (b) permit New Horizons to providepostsecondary educational services under the Education Act and New Horizons hasobtained accreditation (including pre-accreditation, candidacy foraccreditation or any similar type of approval) from any accrediting agency that(i) qualify such school to become eligible to participate in the Federalstudent aid programs authorized under the Education Act, and (ii) isrecognized by the U.S. Department of Education as offering a form ofaccreditation required for a school to become eligible to participate in theFederal student aid programs authorized under the Education Act for programs orspecialties not currently permitted under New Horizons’ lease, Tenant, mayterminate this Lease after the twenty-fourth (24th) month of the Lease term, by providing writtennotice to Landlord of its intent to terminate, upon which notice, the Landlordshall have ninety (90) days to cure such, and failing such cure, suchtermination shall become effective six (6) months after the expiration ofsuch ninety (90) day cure period and upon the payment to the Landlord of anamount, in cleared and collected funds, and the unamortized value of all tenantimprovements made by or paid for by the Landlord based on afive-year straight-line amortization and unamortized broker commission based ona five-year straight-line amortization. Tenant acknowledges that if NewHorizons obtains accreditation under Title IV for any use permitted under itslease, including computer and computer training classes, such shall not be aviolation under this Section nor trigger Tenant’s termination rightpursuant hereto.

 

**T.J.****MAXX**

 

Landlordagrees that as long as any retail sales activity shall be conducted in theDemised Premises the Shopping Center shall not be used for any non-retailpurposes (repairs, alterations and offices incidental to retailing, and banksand small loan offices, not being deemed non-retail), or for anyentertaining purposes such as a bowling alley, skating rink, cinema, bar,nightclub, discotheque, amusement gallery, poolroom, health club, massageparlor or off-track betting club except as existing on the date thereof and anyreplacement of any existing on the date hereof and except for a cinema in thelocation labeled AMC Theatre 8 Plex upon the Lease Plan except for a healthclub in the location labeled Proposed Health Spa or other Retail upon the LeasePlan and except for one (1) amusement gallery containing not more than twothousand (2,000) square feet of floor area and located within either area onthe easterly and westerly sides of the Mall labeled Designated Area for Video GameArcade upon the Lease Plan and except incidental dancing within a restaurantsituated more than one hundred fifty (150) feet from the

 
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**Amendment Exhibit “D”**

 

**Attached to and made part of First Amendment to Lease**

**Reference Date of September 5****th****, 2003 between Keystone-Miami Property Holding Corp., as Landlord and Tiger Direct,Inc., as Tenant and Systemax, Inc. as Guarantor**

 

 

Thesolid colored area within the crosshatched Protected Area is the approved areafor construction of an addition 20,000 SF of gross leasable area as a “PermanentBuilding” per Item 10 of the First Amendment to Lease.

 

ThisExhibit is a representative diagram and is intended solely for the purpose ofidentifying the general location of the Premises and the current configuration.Landlord reserves the right at all times herein to (i) change, modify orrelocate any tenant location in the Shopping Center, (ii) change the name,identity or type of other tenants or occupants at the Shopping Center, (iii)change the name and address of the Shopping Center, and/or (iv) change modify,relocate, add to or subtract from the number of structures, rooms, storerooms,parking spaces, entrances, service areas, common areas or other portions orparts of the Shopping Center, and otherwise change or alter the configurationof all or any part of the Shopping Center as Landlord, in its, sole discretion,deems necessary or appropriate.

 

“ParkingArea” comprised of Protected Area and other parking space areas reflectedhereon, subject expressly to Landlord’s rights under the Lease, includingwithout limitation, those mentioned in Rider R-10.

 
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DemisedPremises and except for ten thousand (10,000) square feet of floor area fornon-retail offices situated more than one hundred fifty (150) feet from theDemised Premises and except for the second floor area presently leased toSouthern Bell for offices in the Shopping center as shown upon the Lease Plan.

 
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