**Exhibit10.14**

 

**THIRD AMENDMENT TO LEASE**

 

THIS THIRD AMENDMENT TO LEASE (this “Amendment”),dated as of June 26, 2009, is between SC MOTA ASSOCIATES LIMITED PARTNERSHIP, aDelaware limited partnership (“Landlord”), and TIGERDIRECT, INC., a Floridacorporation, doing business as TigerDirect (“Tenant”).

 

RECITALS

 

A.            Landlord (as successor in interest toKeystone-Miami Property Holding Corp.) and Tenant entered into a Lease, dated September17, 1998, as amended by a Settlement Agreement and Mutual Release dated June 8,2001, a First Amendment to Lease dated as of September 5, 2003, and a [SecondAmendment to Lease] dated March 22, 2007 (collectively, the “Lease”), pursuantto the terms of which Landlord leased to Tenant an aggregate of 82,866 rentablesquare feet of space comprised of Suite 235 containing 63,882 rentable squarefeet (the “Office Premises”), Bay M33D containing 15,984 rentable square feet(the “Original Retail Premises”), and Bay E33C containing 3,000 rentable squarefeet (the “Storage Premises”), all as more particularly described in the Leaseand located in Mall of the Americas (which, as of the date hereof, contains651,011 rentable square feet of space), Miami — Dade County, State of Florida,on the land described on Exhibit “A” to this Amendment.

 

B.            Tenant desires to (i) extend the term ofthe Lease for the Office Premises, the Original Retail Premises and the StoragePremises (collectively, the “Original Remaining Premises”) for a period of ten (10)years, (ii) lease additional retail space known as Bay M34 containing 25,320rentable square feet of space and marked as such on Exhibit “B” attached hereto(the “Additional Retail Premises”) for a period co-terminus with the term ofthe Original Remaining Premises, and (iii) modify certain other provisions ofthe Lease.

 

C.            Landlord agrees to such extension, lease of additional space and modificationspursuant to the terms andconditions set forth herein.

 

D.            Therefore, for good and valuableconsiderations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

1.             **Recitals; Capitalized Terms**. The foregoing Recitals are true andcorrect and are hereby incorporatedinto this Amendment. Capitalized terms used but nototherwise defined inthis Amendment will have the meanings set forth in the Lease.

 

2.             **Leasing of Additional Retail Premises**. Landlord hereby agrees to lease toTenant, and Tenanthereby agrees to lease from Landlord, the Additional Retail Premisesupon the following terms and conditions, subject to the other terms and conditions in the Lease that affect theAdditional Retail Premises:

 

(a)           **Additional Retail Premises**. Landlord and Tenant agree that for thepurposes of all calculations in the Lease, the rentable square footage of theAdditional Retail Premises shall be deemed to be 25,320 rentable square feet.

 

(b)           **Additional Retail Term**. The lease term (the “Additional RetailTerm”) for the Additional Retail Premises shall commence on the AdditionalRetail Commencement Date and end on January 31, 2020 such that the last day of the Additional Retail Term shall beco-terminus with the Original Extension Term (as defined below), subject to Tenant’s extensionoptions in Section 4 of this Amendment.

 

(c)           **Additional RetailCommencement Date**. The “Additional Retail Commencement Date” shall be the earlier tooccur of the date that (i) possession of the Additional Retail Premises istendered to Tenant by Landlord and (ii) Tenant shall occupy any portion of theAdditional Retail Premises. Tenant’s failure to accept possession of theAdditional Retail Premises within five (5) days after the date on whichLandlord tenders possession in accordance with this Amendment will constitutean Event of Default under the Lease. Landlord may confirm the AdditionalRetail Commencement Date and the Additional Retail Rent Commencement Date (ashereinafter defined) inwriting by sending notice to Tenant. If the Additional Retail Commencement Dateor the Additional Retail Rent Commencement Date in such notice is not disputedby Tenant within five (5) days of receipt, such date(s) shall be deemedcorrect.

 

(d)           **Additional Retail RentCommencement Date**.  Notwithstanding anything setforth herein to the contrary, but provided no Event of Default exists (beyondany applicable notice and cure period), Tenant’s obligations for Annual Rent,Tenant’s Percentage Share of Operating Expenses (as defined below) and Tenant’sPercentage Share of Real Estate Taxes (as defined below) shall be abated for aperiod (the “Free Rent Period”) of twelve (12) months commencing on theAdditional Retail Commencement Date. Tenant’s obligations for Annual Rent,Tenant’s Percentage Share of Operating Expenses and Tenant’s Percentage Shareof Real Estate Taxes shall commence on the first day following the Free RentPeriod; provided, however, that if an Event of Default occurs during the FreeRent Period, Tenantshall have no further right to the abatement set forth in this Section 2(d) andshall commence the payment of Monthly Installments of Annual Rent, Tenant’sPercentage Share of Operating Expenses and Tenant’s Percentage Share of RealEstate Taxes for the Additional Retail Premises on the first day following theoccurrence of such Event of Default. Furthermore, if Event of Default occursduring or after the Free Rent Period, then in addition to any other costs,damages and unpaid rent that Tenant may owe to Landlord, Tenant shall furtherowe to Landlord the total sum of the Annual Rent and other rent abated byLandlord during the Free Rent Period. The date on which Tenant’s obligation tocommence paying Annual Rent, Tenant’s Percentage Share of OperatingExpenses and Tenant’sPercentage Share of

 

1

----

 

Real Estate Taxes for the Additional RetailPremises under this Section is referred to as the “Additional Retail RentCommencement Date”

 

(e)           **Delivery of Additional Retail Premises**. If Landlord is unable to deliver possession oftheAdditional Retail Premises to Tenant on or before March 1, 2010 (the “AnticipatedCompletion Date”) because the Landlord’s Work (as defined below) has not beenSubstantially Completed (as defined below), Tenant shall receive two daysabatement of Annual Rent and additional rent for each day from and after theAnticipated Completion Date until the Additional Retail Premises areSubstantially Completed. In the event the Additional Retail Premises are notSubstantially Completed on or before June 1, 2010 (the “Outside Completion Date”),Tenant shall have the right to terminate its obligation to lease the AdditionalRetail Premises from Landlord under this Section 2 by giving Landlord thirty(30) days prior written notice of such termination within fifteen (15) daysfollowing the Outside Completion Date, with time being of the essence. IfTenant timely exercises its termination right under this Section 2(e), but theAdditional Retail Premises are Substantially Completed within thirty (30) daysof such notice, then Tenant’s termination will be null and void and of no forceor effect. If Tenant timely exercises its termination right under this Section 2(e),and the Additional Retail Premises are not Substantially Completed withinthirty (30) days of such notice, then such termination shall not affect theOriginal Remaining Premises or any other terms or conditions under the Lease orthis Amendment affecting the Original Remaining Premises. If Tenant fails todeliver such termination to Landlord within such fifteen (15) day period.Tenant will be deemed to have waived its termination right under this Section 2(e).Substantially Completed is defined as receipt of final inspections from theapplicable governmental authorities having jurisdiction over the permits issuedfor Landlord’s Work such that Tenant may take possession of the Additional RetailPremises.

 

(f)            **Annual Rent for Additional Retail Premises**. Tenant agrees to pay toLandlord, as AnnualRent for the Additional Retail Premises, theamount of Five Hundred Six Thousand Four Hundred and 00/100 Dollars($506,400.00) per annum (based on $20.00 per rentable square foot of theAdditional Retail Premises), payable in Monthly Installments of Rent equal toForty Two Thousand Two Hundred and 00/100 Dollars ($42,200.00). The Annual Rentfor the Additional Retail Premises will not increase during the AdditionalRetail Term.

 

(g)           **Additional Rent for Additional Retail Premises**. In addition to the AnnualRent payable onthe Additional Retail Premises, Tenant shall,at its sole cost and expense, pay as additional rent with each MonthlyInstallment of Rent, one-twelfth (1/12) of Landlord’s estimate of Tenant’sPercentage Share of any Operating Expenses and any Real Estate Taxes on theAdditional Retail Premises. Tenant shall not be obligated to pay Tenant’sPercentage Share of any Operating Expenses or any Real Estate Taxesattributable to the Original Remaining Premises, but rather will continue topay Direct Expenses and Taxes attributable to the Original Remaining Premisesin accordance with the Lease. Within one hundred twenty (120) days after theend of each calendar year, Landlord shall furnish to Tenant a statement settingforth the Operating Expenses and Real Estate Taxes applicable to such periodand Landlord or Tenant shall within thirty (30) days thereafter make suchpayment or allowance necessary to adjust estimated payment to the actual amountof Tenant’s actual Percentage Share of Operating Expenses and Real Estate Taxesas shown on such statement. Any amount due Tenant shall be credited againstinstallments next coming due of rent or bypayment to Tenant when adjustment is to bemade in the last year of the Lease. The calculation of OperatingExpenses and Real Estate Taxes for less than a full calendar year shall be based upon the pro-rata share of Operating Expenses and Real Estate Taxes for thecalendar year in which the Lease commences and expires. If at any time duringany year of the Lease the rates of any Operating Expenses items or Real EstateTaxes for the Center are increased to rate(s) or amount(s) greater than thatused in calculating the estimated amounts for such year, Landlord shall havethe right to adjust Tenant’s monthly payments of Tenant’s Percentage Share of such items sothat the same shall increase concomitantly. Tenant shall pay suchincreases to Landlord as part of Tenant’s monthly payments of estimatedOperating Expenses and Real Estate Taxes commencing with the month in whichsuch increase shall be effective. Landlord agrees to keep true and accuraterecords of Operating Expenses for each year. Tenant shall have the right todispute Landlord’s Operating Expense statement provided such notice is givenwithin one hundred eighty (180) days after the receipt by Tenant of suchstatement. During any such dispute, Tenant shall continue to make payments onaccount of Operating Expenses in accordance with Landlord’s most recentstatement thereof. In connection with such dispute, Tenant shall be permittedto examine such records, during reasonable business hours and upon not lessthan fifteen (15) business days’ prior written notice to Landlord, at Landlord’scorporate office currently located in Palm Beach, Florida. Tenant shall not beallowed to use any third party audit recovery company acting wholly or partlyon a contingency fee basis to perform such audit or examination of Landlord’sbooks and records and shall evidence the same to Landlord’s satisfaction. Ifthe parties are unable to resolve any dispute as to the correctness of suchstatement within thirty (30) days following such notice of dispute, either party may refer the issues raised to anationally recognized independent public accounting firm selected by Landlordand reasonably acceptable to Tenant, and the decision of such accountants shallbe conclusively binding upon Landlord and Tenant. In connection therewith,Tenant and such accountants shall execute and deliver to Landlord aconfidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such partiesagree not to disclose to any third party any of the information obtained in connection with suchreview. Tenant shall pay the fees and expenses relating to such procedure,unless such accountants determine that Landlord overstated Operating Expensesby more than ten percent (10%) with respect to such statement, in which caseLandlord shall pay such fees and expenses. Upon expiration of the thirty (30)day period following delivery of Landlord’s Operating Expense statement toTenant, Landlord’s Operating Expense statement shall be deemed conclusive byTenant, unless Tenant has theretofore timely delivered a notice of dispute.

 

(h)           **Limitation on Increase in Real Estate Taxes**. Notwithstanding anything setforth herein tothe contrary, if (i) the Center is sold, or there is a change incontrol of Landlord, on or before the fifth (5th) anniversary of the AdditionalRetail Commencement Date, and (ii) there is an increase in Real Estate Taxesdirectly attributable to such sale or change in control, then, in such event,Tenant shall not be responsible for paying Tenant’s Percentage Share of suchincrease for the remainder of the Additional Retail Term. There shall be nolimitation on Tenant’s obligation to pay Tenant’s Percentage Share of anyincrease in Real Estate Taxes as a result of any sale or change in control after the fifth (5th) anniversary of theAdditional Retail Commencement Date or during any renewal term of the Lease.

 

2

----

 

(i)            **Defined Terms****:** As to the Additional Retail Premises, the followingterms shall have thefollowing meanings:

 

(i)            **Center****:** shall mean Mallof the Americas, as legally described on Exhibit “A” to thisAmendment, together with all improvements and otherappurtenances relating thereto currently located or hereinafter erected thereon, plus suchmodifications thereto as Landlord may from time to time designate.

 

(ii)           **Common Areas:** shall mean those areas and facilitieswhich, from time to time, may be furnished by Landlord in or near the Centerfor the non-exclusive general common use of tenants and other occupants of theCenter, their agents, employees and customers, including, without limitation,parking areas, driveways, loading docks, passageways, walkways (interior and exterior),roofs, ramps, common seating areas, landscaped areas, stairways, escalators,elevators, sewage treatmentfacilities (if any), restrooms, fountains, play areas, meeting rooms andother similar areas or facilities.

 

(iii)          **Majors:**Shall mean any store other than the Additional Retail Premises within the Centercontaining more than 15,000 square feet of space.

 

(iv)          **Operating Expenses:** shall mean allcosts and expenses incurred by or on behalf of Landlord (less any contribution,if any, to such costs and expenses made by any Majors, any tenants occupyingspace on the second floorof the Center, or any tenants who pay their respective costs and expenses directly) in operating, managing,insuring and maintaining the Common Areas and other portions of the Center that are the responsibility of Landlord, including,without limitation, all costs and expenses of operating, managing (Tenant agreeing thatsuch management may beundertaken by an entity affiliated with Landlord, in which case suchaffiliate shall be compensated in a commercially reasonable manner and amount as any third partymanager), maintaining, repairing, lighting, signing, cleaning, painting, andstriping of the Common Areas (including, without limitation, the cost ofuniforms, equipment andemployment taxes and benefits); alarm and life safety systems; insurance,including, without limitation, rental abatement insurance, liability insurancefor bodily injury, death, personal injury and property damage, special form or all-risk property insurance (including coverage for lossesdue to fire, flood, wind or other casualties covered by such insurance), worker’scompensation insurance or similar insurance covering personnel; maintenance ofsprinkler systems; removal of water, trash and debris; regulationof traffic; payments as required by any governmental authorities; costs and expenses in connection with maintainingambient air and environmental standards of any governmental authority; costs andexpenses incurred, if any, which are designed to protect or enhance the health,safety and welfare of the tenants of the Center or their employees; the costs of all materials, supplies and servicespurchased or hired therefor; operation of public toilets; installing andrenting of signs; fire protection; maintenance, repair and replacement ofutility systems serving the Center, including, without limitation, water, sanitarysewer and storm water lines and other utility lines, pipes and conduits and anyfees associated therewith; costs and expenses of maintaining, repairing, orreplacing machinery and equipment used in the operation and maintenanceof the Common Areas and personal property taxes and other charges (including,but not limited to, financing,leasing or rental costs) incurred in connection with such equipment; costs andexpenses of maintenance, repair or replacement of awnings, paving, curbs,walkways, landscaping, roofs, walls, drainage, pipes, ducts, conduits andsimilar items, plateglass, lighting shrubbery and planters; costs and expenses incurred in the purchases orrental of musicprogram services and loudspeaker systems; costs of providing light and power to the Common Areas; cost ofwater services, if any, furnished by Landlord for the non-exclusive use of all tenants; and administrative costs attributable to theCommon Areas for on-site personnel and an overhead cost equal tofive percent (5%) of the total costs and expenses of operating and maintaining the CommonAreas. With respect to any of the foregoing costs which are capital in nature, Landlordshall amortize or depreciate such costs and expenses over a useful life in accordance withgeneral accounting principles, and the amount of suchamortization or depreciation shall be included in Operating Expenses.

 

(v)           **Real Estate Taxes:** shall mean allfederal, state, local, governmental, special district and special service areataxes, assessments (special or otherwise), charges, governmental liens, surcharges and levies, general andspecial, ordinary and extraordinary, foreseen and unforeseen (and substitutes therefor), ofany kind whatsoever (including interest thereon whenever same shall be payablein installments) that Landlord shall be obligated to pay arising out of theuse, occupancy, ownership, leasing, management, repair or replacement of theCenter, or any property, fixtures or equipment thereon, as well as all taxesattributable to the Additional Retail Premises or rent imposed on the Centerfrom time to time by any governmental authority. Notwithstanding the foregoing,Real Estate Taxes shall exclude inheritance, transfer or gift taxes imposedupon Landlord and any income taxes attributable to the Center or any rent).

 

(vi)          **Retail Lease****Year:** shall mean each period (during the AdditionalRetail Term) of twelve (12) calendar months, commencing as of (A) theAdditional Retail Rent Commencement Date, if the Additional Retail RentCommencement Date is the first day of a calendar month, or (B) the first day of the monthnext following the month in which the Additional Retail Rent Commencement Dateoccurred if the Additional Retail Rent Commencement Date is other than thefirst day of a calendar month, in which event the first Retail Lease Year shallinclude the partial month commencing on the Additional Retail Rent Commencement Date.

 

(vii)         **Tenant’s Percentage Share:** shall mean that fraction, the numerator of which isthe total number of rentable square feet of space contained within theAdditional Retail Premises and the denominator of which is the total number ofrentable square feet within the Center less (A) the area leased to Majors, and (B)the square footage occupied by tenants on the second floor of the Center.Commencing on the first day of the third full calendar year of the Additional Retail Term, in no event shall Tenant’s payment of Tenant’s Percentage Share of OperatingExpenses increase by more than 5% over the previous calendar years’ OperatingExpenses due hereunder (excludingfrom the foregoing cap taxes, insurance, utilities, and any other expense notcontrollable by Landlord).

 

3

----

 

(j)            **Utilities for Additional RetailPremises****.** Tenant shall be responsible, at Tenant’s sole costand expense, for all utility services that exclusively serve the AdditionalRetail Premises irrespective of whether the utility services are located insideor outside the Additional Retail Premises. If any such utilities are notseparately metered or submetered and/or are used in common with other tenant’s inthe Center, Tenant will pay Tenant’s share of same as Additional rent.

 

(k)           **PrepaidRent****.**Concurrently with Tenant’s execution of this Amendment, Tenant shall pay toLandlord the Prepaid Rent in the amountof Sixty Eight Thousand Five Hundred Seventy Five and 00/100 Dollars($68,575.00), which represents Tenant’s first Monthly Installment of Rent.

 

(l)            **Landlord’s Work in the AdditionalRetail Premises****.** Landlord will complete the work designated as the “Landlord’sWork” in accordance with Exhibit “C” hereto. If requested by Landlord inwriting, Tenant shall within ten (10) days after such written request provideall information required in order to enable Landlord to complete the Landlord’sWork. There shall be no postponement or the Additional Retail Commencement Date(or the Additional Retail Rent Commencement Date) for the Additional RetailPremises for (i) any delay in the delivery of possession of the AdditionalRetail Premises which results from any act or omission of Tenant, includingdelays due to changes in, additions to or interference with any work to be doneby Landlord, or delays by Tenant in submission of information or approvingworking drawings or estimates or giving authorizations or approvals, or (ii) anydelay by Landlord in the performance of any punch list items relating to theLandlord’s Work. If there is a dispute as to (A) the completion of the Landlord’sWork, or (B) the availability of the Additional Retail Premises for possessionby Tenant, a certificate of Landlord’s architect will be final and binding onthe parties. Tenant will examine the Additional Retail Premises before takingpossession and will furnish Landlord with written notice specifying any defectswithin ten (10) days after taking possession otherwise, Tenant will be deemedto have agreed that the Additional Retail Premises are in good order and havebeen completed. Notwithstanding anything herein to the contrary, during thefirst twelve (12) months following the completion of the Landlord’s Work,Landlord shall be responsible to correct any latent defects in the Landlord’sWork. There is no promise, representation or undertaking by or binding uponLandlord with respect to any alteration, remodeling or redecorating of orinstallation of equipment or fixtures in the Additional Retail Premises, unlessexpressly set forth in this Amendment.

 

(m)          **HVAC****.** Tenant shall be responsible for the maintenanceand repair of existing HVAC units serving the Additional Retail Premises duringthe Additional Retail Term and any extensions thereto including (i) belt andfilter replacement, (ii) charging of the coolant systems, if required, (iii) performingquarterly inspections using a licensed HVAC contractor reasonably acceptable tothe Landlord, and (iv) for all maintenance, repairs and replacement cost ofless than Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) to anyexisting HVAC units serving the Additional Retail Premises (i.e., Tenant shallbe responsible for paying the first $2,500 of any such costs). If anymaintenance, repair or replacement costs to the HVAC units exceed Two ThousandFive Hundred and 00/100 Dollars ($2,500.00), then Tenant shall have the optionto either (A) require Landlord to repair and/or replace such HVAC unit andLandlord shall amortize the cost of such repair and/or replacement over theuseful life of the unit or part and Tenant shall pay such cost to Landlord asadditional rent, or (B) repair and/or replace such HVAC unit at Tenant’s solecost and expense.

 

(n)           **Permitted Use****.** Tenant may use the Additional RetailPremises for the retail sale, rental and servicing of the following uses(collectively, the “Permitted Retail Use”): (i) computer hardware and software;(ii) general business office equipment; (iii) multi media electronics andequipment and interactive games and equipment; (iv) telecommunicationsequipment; (v) consumer electronics and equipment; (vi) audio, video and gamesoftware, compact discs, laser discs, digital hardware and software; (vii) digitalphotographic equipment; and (viii) wireless and broadband phone and dataservices, and for other hardware, software products and accessories, includingwithout limitation, those for sending, receiving, viewing, and playback andthose created by changing technologies related to categories (i) through (viii)above. Tenant may also use the Additional Retail Premises to offer services orevents related to the technology products that Tenant sells and incidental thereto(the “Incidental Services & Events”), which Incidental Services &Events shall include, but not limited to, trainings, seminars and computergaming events, and video or photographic production. Notwithstanding anything herein to the contrary, Tenant shall not use theAdditional Retail Premises in violation of the exclusive and prohibited usesset forth on Exhibit “D” attached hereto.

 

(o)           **OperatingCovenant****.** Tenant shall occupy the Additional Retail Premisesupon the Additional Retail Commencement Date. Tenant may only use theAdditional Retail Premises for the Permitted Retail Use under the PermittedTrade Name (as defined below) and for no other purpose or name whatsoeverwithout Landlord’s prior written consent. Tenant covenants and agrees that theAdditional Retail Premises shall be fully staffed and stocked and open forbusiness to the general public for at least one (1) day within the first three (3)months after the Additional Retail Commencement Date. Furthermore, at all timesthat Tenant is open and operating for business, Tenant shall maintain an accesspoint between the Additional Retail Premises and the enclosed portion of theCenter (to allow ingress and egress of Tenant’s customers and invitees), whichaccess point shall have no less than two (2) cash register check out stations.If Tenant fails to maintain such access point in accordance with this Section 2(o),and such failure continues for five (5) days after written notice fromLandlord, then such failure will be an Event of Default under the Lease. For purposes ofthe Additional Retail Premises, the term “Permitted Trade Name” shall meanCompUSA, Tiger Direct.com Discount Computers or other trade name used or may beused by Tenant at a majority of its retail locations in the United States. IfTenant fails to continuously operate the Additional Retail Premises for morethan sixty (60) days, then Landlord shall have the right (but shall not have anyobligation), at any time thereafter, to terminate Tenant’s right to possessionof the Additional Retail Premises by written notice to Tenant (the “Re-CaptureNotice”). The Re-Capture Notice will set forth the date (the “Re-Capture Date”) on which Tenant’s right to possession of theAdditional Retail Premises will terminate. If Landlord delivers a Re-CaptureNotice, Tenant’s rights to occupy the Additional Retail Premises will terminateon the Re-Capture Date, and Tenant will then vacate and surrender the Additional Retail

 

4

----

 

Premises to Landlord in the condition required by the Lease. IfLandlord delivers a Re-Capture Notice, then from and after the date on whichTenant surrenders the Additional Retail Premises in accordance with this Section2(o), Tenant shall have no further obligations under the Lease with respect tothe Additional Retail Premises, except for those obligations that expresslysurvive the expiration or termination of the Lease. If Tenant fails to vacateand surrender the Additional Retail Premises on the Re-Capture Date in accordancewith this Section 2(o), and such failure continues for five (5) days afterwritten notice from Landlord, then such failure will be an Event of Defaultunder the Lease.

 

(p)           **Sublease of Additional RetailPremises****.** Tenant shall have the right to sublease theAdditional Retail Premises in accordance with Section 9 of the Lease.

 

(q)           **Signage****.** Tenant shall have the right, at its solecosts and expense, to install signage on the building in which the AdditionalRetail Premises are located, subject to (i) obtaining Landlord’s prior writtenconsent, which consent will not be unreasonably withheld or delayed, and (ii) complyingwith all applicable governmental requirements (including building codes).

 

3.             **Extensionof Term of Original Remaining Premises**

 

(a)           **Original Extension Term****.** As to the Original Remaining Premises,consisting of an aggregate of 82,866 rentable square feet, the Term of theLease is hereby extended for a period (the “Original Extension Term”) of ten (10)years, commencing February I, 2010 (the “Original Extension Term CommencementDate”) and ending January 31, 2020. Tenant shall have the right to furtherextend the Term of the Lease under Section 4 of this Amendment. Section R-5 ofthe Lease Rider is hereby deleted and will be of no further force or effect.

 

(b)           **Annual Rent for OriginalRemaining, Premises****.** Tenant agrees to pay to Landlord, as Annual Rent forthe Original Remaining Premises for the first five (5) years of the OriginalExtension Term, without notice, demand, deduction, setoff or counterclaim, plusall applicable sales, rent, use and/or other taxes thereon, the sum of OneMillion Two Hundred Twenty Eight Thousand Seventy Four and 10/100 Dollars($1,228,074.10) based upon the rate of $14.82 per square foot, payable inMonthly Installments of Rent equal to One Hundred Two Thousand Three HundredThirty Nine and 50/100 Dollars ($102,339.50). The Annual Rent shall beincreased on February 1, 2015 to One Million Six Hundred Fifty Seven ThousandThree Hundred Twenty and 00/100 Dollars ($1,657,320.00) based upon the rate of$20.00 per square foot, payable in Monthly installments of Rent equal to OneHundred Thirty Eight Thousand One Hundred Ten and 00/100 Dollars ($138,110.00).Monthly Installments of Rent at the rate set forth above shall be payable toLandlord in advance, on the first day of each calendar month during the OriginalExtension Term.

 

(c)           **Additional Rent for OriginalRemaining Premises****.** In addition to the Annual Rent payable on theOriginal Remaining Premises, Tenant hereby further agrees to pay to Landlordduring the Original Extension Term, all Direct Expenses, Taxes and othercharges due and payable by Tenant pursuant to the Lease (including, withoutlimitation, Tenant’s Percentage Share of the cost associated with the PropertyInsurance as to the Storage Premises only). Upon the Original Extension TermCommencement Date, the Base Year for Direct Expenses and Taxes shall be changedto the calendar year 2010. On February 1, 2015, the Base Year for DirectExpenses and Taxes shall be changed to the calendar year 2015.

 

(d)           **Original Remaining PremisesAccepted by Tenant “AS IS”** Subject to Landlord’s maintenance and repairobligations under the Lease for the Original Remaining Premises, Tenantacknowledges and agrees that: (i) Tenant has been in occupancy oldie Original RemainingPremises for an extended period of time; and (ii) Tenant is fully familiar withthe Original Remaining Premises and the Center and accepts the same now, and atthe Original Extension Term Commencement Date in an “AS IS” condition. Withinthree hundred sixty (360) days of the occurrence of the Original Extension TermCommencement Date. Tenant, at its sole option, shall have the right uponwritten notice to Landlord to perform the following work (collectively, the “ReimbursableImprovements”) to the Office Premises, the Original Retail Premises and theAdditional Retail Premises: install new carpeting in the Office Premises toequal or better quality as when first installed at inception of the Lease;repaint the Office Premises to equal or better quality as when first painted atinception of the Lease; and/or make other tenant improvements to the OfficePremises, the Original Retail Premises and the Additional Retail Premises whichare permanent in nature, all in accordance with the terms of the Lease. If Tenant performs any of theReimbursable Improvements within such three hundred sixty (360)-day period, then Landlordshall reimburse Tenant for the cost of the Reimbursable Improvements, in an amount not to exceed. Three HundredTwenty Five Thousand and 00/100 Dollars ($325,000.00), within thirty (30) daysof Landlord’s receipt of reasonable documentary evidence that the Reimbursable Improvements was performed in accordance with the Lease and the cost of the same has been paid in full(as evidenced by unconditional lien waivers from the trades performing theReimbursable Improvements); provided, however, that Landlord will only beobligated to reimburse Tenant up to an amount of One Hundred Sixty Two ThousandFive Hundred and 00/100 Dollars ($162,500.00) for any Reimbursable Improvementsto the Original Retail Premises and the Additional Retail Premises. If Tenantfails to perform the Reimbursable Improvements within such three hundred sixty(360)-day period, then Landlord will have no obligation to reimburse Tenant forany of the Reimbursable Improvements. For purposes of Tenant’s reimbursementunder this Section 3(d), the term Reimbursable Improvements shall speciallyexclude any furniture, equipment or similar removable personal property.

 

4.             **Optionsto Renew the Original Extension Term and the Additional Retail Term****.**

 

(a)           **FirstRenewal****Term****.** Provided Tenant is not in default under the Leaseat the time of itsexercise thereof, Tenant shall have the right toextend the OriginalExtension Term for the Original Remaining Premises and the Additional RetailTerm for theAdditional Retail Premises (together but not separately) for an additional five(5) year period (“First Renewal Term”) which shall commence immediately uponexpiration of the Original Extension Term and the Additional Retail Term. Tenantwill not have the right to extend the Original Extension Term for the Original

 

5

----

 

Remaining Premises without also extending the Additional Retail Termfor the Additional Retail Premises (and vice versa). If Tenant fails to notifyLandlord in writing on or before two hundred seventy (270) days prior to theend of the Original Extension Term and the Additional Retail Term (time beingof the essence with respect thereto), then Tenant’s right to extend the Leasefor the First Renewal Term (as well as for the Second Renewal Term) shalllapse, and the Lease shall terminate upon expiration or earlier termination ofthe Original Extension Term and the Additional Retail Term. If Tenant extends theterm of the Lease for the First Renewal Term, all terms and conditions of theLease shall remain the same except as set forth in this Amendment and referenceto the Term of the Lease shall include the First Renewal Term; provided,however that, subject to Section 4(e) below, the Base Year for Direct Expensesand Taxes shall be changed to the calendar year 2020 with respect to theOriginal Remaining Premises only.

 

(b)           **Second Renewal Term****.** Provided Tenant had exercised its option for theFirst Renewal Term and is not in default under the Lease at the time of theexercise of its option for the Second Renewal Term, Tenant shall have the rightto extend the Term for an additional five (5) year period (“Second Renewal Term”)which shall commence immediately upon expiration of the First Renewal Term.Tenant will not have the right to extend the First Renewal Term for theOriginal Remaining Premises without also extending the First Renewal Term forthe Additional Retail Premises (and vice versa). If Tenant fails to notifyLandlord in writing on or before two hundred seventy (270) days prior to theend of the First Renewal Term (time being of the essence with respect thereto),then Tenant’s right to extend the Lease for the Second Renewal Term shalllapse, and the Lease shall terminate upon expiration or early termination ofthe First Renewal Term. If Tenant extends the Term of the Lease for the SecondRenewal Term, all terms and conditions of the Lease shall remain the sameexcept as set forth in this Amendment and reference to the Term of the Leaseshall include the Second Renewal Term; provided, however that, subject to Section4(e) below, the Base Year for Direct Expenses and Taxes shall be changed to thecalendar year 2025 with respect to the Original Remaining Premises only.

 

(c)           **Rent During Renewal Terms****.** The Annual Rent for the renewal terms shall be asfollows:

 

For the OriginalRemaining Premises:

 
| ** **           | ** ** | **Rent Per Rentable** | ** ** | ** **      | ** ** | ** **       | ** ** |
|----------------------|------------|-----------------------|------------|-----------------|------------|------------------|------------|
| ** **           | ** ** | **Square Foot**       | ** ** | **Annual Rent** | ** ** | **Monthly Rent** | ** ** |
| First Renewal  Term  |       | $                     | 23.00      |            | $          | 1,905,918.00     |       | $ | 158,826.50 |   |
| Second Renewal  Term |       | $                     | 26.45      |            | $          | 2,191,805.70     |       | $ | 182,650.47 |   |

 

For the Additional RetailPremises:

 
| ** **           | ** ** | **Rent Per Rentable** | ** ** | ** **      | ** ** | ** **       | ** ** |
|----------------------|------------|-----------------------|------------|-----------------|------------|------------------|------------|
| ** **           | ** ** | **Square Foot**       | ** ** | **Annual Rent** | ** ** | **Monthly Rent** | ** ** |
| First Renewal  Term  |       | $                     | 22.50      |            | $          | 569,700.00       |       | $ | 47,475.00 |   |
| Second Renewal  Term |       | $                     | 25.31      |            | $          | 640,849.20       |       | $ | 53,404.10 |   |

 

(d)           **Reminder Notice****.** Notwithstanding the above, if (i) Landlord fails toprovide a written reminder notice (a “Reminder Notice”) to Tenant not less thanthirty (30) days before the expiration of the 270-day notice deadline in Section4(a) and 4(b) above (each such deadline being referred to as an “Option Notice Deadline”), and (ii)Tenant fails to give Landlord an extension notice before the expiration theOption Notice Deadline, then Tenant’s option to extend shall neverthelessremain in full force and effect for an additional period of thirty (30) days after writtennotice from Landlord (given by Landlord after the expiration of the Option Notice Deadline) advisingTenant that the extension notice has not been received; provided, however, that in no event will Tenants option toextend remain in full force or effect beyond the expiration of the then currentTerm. lf, however, Landlord sends Tenant a Reminder Notice, and Tenantnevertheless fails to give Landlord an extension notice prior to the expiration the Option NoticeDeadline, then Tenant’soption to extend shall lapse and not remain in full force or effect beyond the Option Notice Deadline. It is agreed betweenLandlord and Tenant that it is the intention of the parties under this Section 4(d)to avoid forfeiture of Tenant’s right to exercise its option to extend throughTenant’s inadvertent or negligentfailure to give notice of extension prior to the expiration of the OptionNotice Deadline.

 

(e)           **No****Decrease in Rent****.**Notwithstanding anything set forth in this Section 4 to the contrary (includingthe resetting of the Base Year under Section 4(a) and 4(b) above), in no event shall the AnnualRent, additional rent and other recurring amounts payable by Tenant to Landlordin any Lease Year during the First Renewal Term (including the first Lease Year of the First Renewal Term) orthe Second Renewal Term (including the first Lease Year of the Second RenewalTerm) be less than the Annual Rent, additional rent and other recurring amounts payableby Tenant to Landlord in the immediately preceding Lease Year.

 

5.             **Parking****.** Subject to complying with all applicablegovernmental requirements (including buildingcodes), in addition to the reserved parking set forth inSection R-10 of the Lease, Tenant shall have the right, at its sole cost and expense, to designate twenty five (25)additional parking spaces exclusively for the use by Tenant’s customers andmarked on the parking bumper “TigerDirect Visitor” in the location shown on theparking plan attached as Exhibit “E” to this Amendment (the “Additional ParkingSpaces”). Notwithstanding anything set forth in this Section 5 to the contrary,(a) if any person or entity has a contractual right, as of the date hereof, to object to the designationor location of anyAdditional Parking Spaces, and (b) without prior communication from Landlord to suchperson or entity of the granting of the Additional Parking Spacesto Tenant, such person or entity notifies Landlord in writing that thedesignation or location of any Additional Parking Spaces violates suchcontractual right, then Landlord will notify Tenant in writing of suchviolation and Tenant will cease to have the right to use such AdditionalParking Spaces, and will remove the designation on all such parking bumpers,within thirty (30) days of such written notice from Landlord. Furthermore, if Tenant is unable to useany of the Additional Parking Spaces because of applicable governmentalrequirements (including building codes) or any of the conditions set forth inthis Section 5, the same will not constitute a

 

6

----

 

default by Landlord under the Lease, will not reduce or otherwisemodify Tenant’s obligations under the Lease and will not be grounds for Tenantto terminate the Lease or any of Tenant’s obligations with respect to theAdditional Retail Premises.

 

6.             **References****.** From and after the Additional Retail CommencementDate, all references to the “Premises” in the Lease shall mean and refer to theOriginal Remaining Premises and the Additional Retail Premises.

 

7.             **Confidentiality****.** Tenant agrees not to disclose any of the terms orprovisions of this Amendment to other present or future tenants or prospectivetenants of the Center or their respective representatives, nor to anyone else,excepting professionals (i.e., attorneys and accountants) who require knowledgethereof in furtherance of Tenant’s bona fide interests.

 

8.             **Broker Indemnification****.** Tenant agrees to indemnify Landlord against any loss,expense (including reasonable attorneys’ fees), cost or liability incurred byLandlord as a result of a claim by any broker, agent or finder representingTenant or otherwise negotiating this Amendment on behalf of Tenant.

 

9.             **Ratification****.** Landlord and Tenant hereby ratify and confirm theLease, as amended by this Amendment, and expressly acknowledge and agree thatthe Lease, as amended by this Amendment, remains and shall continue in fullforce and effect. In the event of any conflict between the terms and provisionsof the Lease and the terms and provisions of this Amendment, the terms andprovisions of this Amendment shall take precedence and control.

 

10.           **Counterparts****.** This Amendment may be executed in counterparts, eachof which shall be deemed an original and all of which, when taken together,shall constitute one and the same instrument.

 

11.           **Amendments****.**The provisions of this Amendment (including this Section11) may only be amended, supplemented or waived by a further agreement inwriting duly executed and delivered by Landlord and Tenant.

 

12.           **Advice****of Counsel****.** Each of Landlord and Tenant has reviewedthis Amendment with its legal counsel or had an opportunity to review thisAgreement with its legal counsel. This Amendment shall be interpreted without regard to any presumption or rule requiringconstruction against the party causing this Amendment to be drafted.

 

13.           **INTEGRATION****.****THE LEASE AND THIS AMENDMENTCONSTITUTE THE ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN LANDLORD AND TENANTWITH RESPECT TO THE SUBJECT MATTER OF THE LEASE AND THIS AMENDMENT. ALL PRIORUNDERSTANDINGS AND AGREEMENTS BETWEEN LANDLORD AND TENANT WITH RESPECT TO THESUBJECT MATTER OF THIS AMENDMENT ARE MERGED INTO THIS AMENDMENT. AS TO THISAMENDMENT, LANDLORD ACKNOWLEDGES THAT NO REPRESENTATION, WARRANTY, INDUCEMENT,PROMISE OR AGREEMENT HAS BEEN MADE, ORALLY OR OTHERWISE, BY TENANT OR ANYONEACTING ON BEHALF OF TENANT, UNLESS SUCH REPRESENTATION, WARRANTY, INDUCEMENT,PROMISE OR AGREEMENT IS EXPRESSLY SET FORTH IN THIS AMENDMENT. LIKEWISE, AS TOTHIS AMENDMENT, TENANT ACKNOWLEDGES THAT NO REPRESENTATION, WARRANTY, INDUCEMENT,PROMISE OR AGREEMENT HAS BEEN MADE, ORALLY OR OTHERWISE, BY LANDLORD OR ANYONE ACTINGON BEHALF OF LANDLORD, UNLESS SUCH REPRESENTATION, WARRANTY, INDUCEMENT,PROMISE OR AGREEMENT IS EXPRESSLY SET FORTH IN THIS AMENDMENT. IN ADDITION TOEXECUTING AND DELIVERING THIS AMENDMENT, A DULY AUTHORIZED REPRESENTATIVE OFLANDLORD AND TENANT IS INITIALING THIS SECTION 13 WHERE INDICATED BELOW TOAVOID ANY DOUBT WHATSOEVER THAT LANDLORD AND TENANT UNDERSTAND THE PROVISIONSOF THIS SECTION 13.**

 
| **INITIALS**    | ** ** | **INITIALS**     |
|-----------------|------------|------------------|
|            |       |             |
| /s/ [ILLEGIBLE] |       | /s/  [ILLEGIBLE] |
| **LANDLORD**    | ** ** | **TENANT**       |

 

[Theremainder of this page is intentionally blank.]

 

7

----

 

THE PARTIES have executedand delivered this Amendment as of the day and year first written above.

 
| WITNESSES:          |           | LANDLORD:                                    |
|---------------------|----------------|----------------------------------------------|
|                |           |                                         |
|                |           | SC MOTA ASSOCIATES LIMITED                   |
|                |           | PARTNERSHIP, a Delaware limited partnership  |
|                |           |                                         |
|                |           | By: SC MOTA GP, Inc., a Delaware corporation |
|                |           |                                         |
|                |           |                                         |
| /s/ Karen Lynch     |           | By:                                          | /s/ Brian Kosoy |
| Print Name:         | Karen Lynch    |                                         | Print Name: | Brian Kosoy |
|                |           |                                         | Title: | President |
| /s/ JoAnn Carlisi   |           |                                         |   |
| Print Name:         | JoAnn Carlisi  |                                         |   |   |
|                |           |                                         | TENANT: |   |
|                |           |                                         |   |   |
|                |           |                                         | TIGERDIRECT, INC., a Florida corporation |
|                |           |                                         |   |   |
|                |           |                                         |   |   |
| /s/ Ed Schmidt      |           | By:                                          | /s/ Gilbert Fiorentino |
| Print Name:         | Ed Schmidt     |                                         | Print Name: | Gilbert Fiorentino |
|                |           |                                         | Title: | CEO |
| /s/ Andrea  Fongyee |           |                                         |   |
| Print Name:         | Andrea Fongyee |                                         |   |   |

 

8

----

 

ACKNOWLEDGMENT OFGUARANTY

 

The undersigned, as the guarantor of the Leasepursuant to the Guaranty attached to the Lease, hereby acknowledges the termsof this Amendment, and further acknowledges the continuing liability of theundersigned during the term of the Guaranty as guarantor with respect to theLease, as modified by this Amendment. Nothing herein shall be deemed to limitany provisions of theGuaranty or the continuing liability of the undersigned for allobligations of Tenant underthe Lease, as modified bythis Amendment.

 
| WITNESSES:         |           | GUARANTOR:                                                                          |
|--------------------|----------------|-------------------------------------------------------------------------------------|
|               |           |                                                                                |
|               |           | SYSTEMAX, INC., formerly known as Global Direct Mail,  Inc., a Delaware corporation |
|               |           |                                                                                |
|               |           |                                                                                |
| /s/ Ed Schmidt     |           | By:                                                                                 | /s/ Curt Rush |
| Print Name:        | Ed Schmidt     |                                                                                | Print Name: | Curt Rush |
|               |           |                                                                                | Title: | Secretary |
| /s/ Andrea Fongyee |           |                                                                                |   |
| Print Name:        | Andrea Fongyee |                                                                                |   |   |

 

9

----

 

**EXHIBIT “A”**

 

**LEGAL DESCRIPTION OF THE CENTER**

 

Tract “A” of MALL OF THE AMERICAS, according to the Plat thereof asrecorded in Plat Book 159, Page 70, of the Public Records of Miami-DadeCounty, Florida.

 

10

----

 

**EXHIBIT “B”**

 

**SITE PLAN**

 

 

11

----

 

**EXHIBIT“C”**

 

**LANDLORD’S****WORK**

 

**LANDLORD’S WORK FOR ADDITIONAL RETAIL PREMISES**

 

The Tenant acknowledgesthat it accepts the Additional Retail Premises in an “as is” condition and thatall alterations, renovations, decorations or other work required in connectionwith the Additional Retail Premises will be performed by the Tenant, at itssole cost and expense, and in accordance with Exhibit “C”.

 

Notwithstanding theimmediately preceding paragraph, and subject to obtaining requisite approvals from theappropriate governmental authorities, Landlord agrees to (i) construct aloading area with a hydraulic lift adjacent to the west wall of the AdditionalRetail Premises, and (ii) install entry doors and entry façade on thesouthern wall of the Additional Retail Premises (including the installation ofoverhead security doors and bollards consistent with the overhead securitydoors and bollardscurrently installed in the Original Retail Premises), all as more particularlyshown on the plans and specifications listed on or attached to Exhibit “C-1”

 

The Landlord’s Work belowhas been described solely for the purpose of determining and outlining theextent of the Landlord’s repair and restoration obligations under Section 22of****theLease in case of damage and destruction.

 

1.               Washroom:

 

Washrooms to code (fan,light, ceiling and accessories to be supplied and installed by the Landlord).

 

2.               Electrical:

 

150 amp., 3 phase, 4 wireelectrical service at 120/208 V. Location to be determined by the Landlord. TheLandlord will also provide 2 foot by 4 foot lay in fixtures based on onefixture per 80 square feet of area and install receptacles per code. The tenantshall provide all other electrical work including, but not limited to,additional lighting, outlets and wiring required.

 

3.               Heating and Air Conditioning Equipment:

 

One (1) ton of coolingcapacity per 300 square feet of area will be supplied and installed on the roofof the Leased Premises. All duct work and other work required to hook up the system to becompleted by the Landlord based on an open retail unit (i.e. no partitionwalls, bulkheads, etc.). The Tenant is required to make its own inquiriesregarding the adequacy of the HVAC capacity provided by the Landlord above. TheTenant will be responsible for the costs of any additional HVAC equipment anddistribution in which it requires.

 

4.               Walls:

 

Unpainted plasterboard oninterior face of demising walls, finished to a maximum height of ten (10) feet,ready for paint. Masonry fire walls (Landlord’s obligation will be to a maximum1-hour rating) and exterior walls will be concrete block with flush jointsready for paint.

 

5.               Floor:

 

Concrete floor with asmooth finish.

 

6.             Storefront:

 

Landlord’s standardstorefront.

 

7.                Ceiling:

 

Standard 2 foot by 4 footT-Bar ceiling with acoustical tile

 

8.                Sprinklers:

 

If required by code, theLandlord will provide a complete sprinkler system within the unit based on openarea. (i.e. no partition walls, bulkheads, etc.). The tenant will beresponsible for any alterations to the system to maintain proper coverage asper code due to the construction or installation of any obstruction suchas walls, bulkheads,shelving, etc.

 

9.                General:

 

If the Tenant requests acredit in lieu of any work which the Landlord was to have provided, the credit shall, at the option of theLandlord, be determined either (a) by an estimate by the Landlord as tothe amount of the credit, or (b) to equal the amount offered by the Landlord’s contractor as acredit to delete the work from its contract, in each case, less fifteen percent (15%) which the Landlord shallretain for co-ordination charges.

 

12

----

 

**TENANT’S WORK**

 

A.           Structure

 

Landlord has provided asingle level structure designed in accordance with all governing buildingcodes. All elements and dimensions must be verified by Tenant’s architect dueto the previous occupancy of the space and subsequent modifications.

 

1.                                       Columns shall be un-primed structuralsteel shapes as depicted in lease outline drawing showing Tenant’s demisedarea.

 

2.                                       Roof structure over space leased shall bestructural steel framing bar joist, metal deck, insulation, and built-uproofing.

 

3.                                       Exterior walls are masonry concrete blockwith #5**REBAR split face brick veneer.

 

4.                                       Floor Slab on grade 4' hand troweledconcrete surface with 6" x 6' wire mesh approximately 1/2' belowfinished mall areas.

 

5.                                       Roof penetration shall be held to a minimum.All required Tenant penetrations of roofing system shall be made by Landlord’sroofing contractor at Tenant’s expense after notification to Landlord forapproval. Any structural framing required by Landlord’s Engineer due to Tenant’sroof penetrations for roof mounted equipment shall be by Landlord’s Contractorat Tenant’s expense. All engineering costs for modification to Landlord’sstructure are Tenant’s responsibility.

 

6.                                       Should an expansion joint occur in theleased premises, Tenant is responsible for all construction affected by suchjoint including floor, walls, and ceiling. Tenant shell maintain integrity ofall such expansion joints In a manner consistent with acceptable constructiondesign practices.

 

7.                                       Tenant areas will be left exposed to thesteel and metal deck structure above. Approximate height, slab to deck, is 28'.

 

8.                                       All drilling, welding, or otherattachment to the structural system must be approved by Landlord in writingbefore work is begun, and must be clearly identified on Tenant’s drawings. Landlordapproval of drawings does not relieve Tenant of responsibility to make thisrequest in writing.

 

B.            Demising Walls and Storefronts

 

1.                                       Each Tenant must furnish and install 5/8'fire code gypboard, taped and bedded, up to the structural deck and airtightagainst the deck, on Tenant’s side of all common dividing partitions. Tenantmust seal gypboard airtight and seal in an airtight manner all structuralshapes, ducts, piping, and penetrations through the demising walls. Demisingwalls shall be installed to roof deck and shall be airtight, since the spacebetween the deck and the finished ceiling is used as a return air plenum.Tenant shall provide openings in demising walls above the ceiling as directedby the Landlord for proper circulation of air. Storefront bulkhead must remainopen to permit return airflow.

 

2.                                       Vertical neutral strips separating Tenantstorefront construction are erected in front of storefront at lease line,contiguous with dividing partitions. The storefront area left open between theedges of the neutral strips and between the mall finished floor and theunder-side of the soffit, is for storefront work by Tenant. Tenant shall beresponsible for constructing a complete storefront or remodeling an existingstorefront in the full height of the opening and making suitable attachment ortermination of construction to the soffit and proper closure against eachneutral strip. All aluminum on Tenant storefront must be anodized with a darkbronze finish, including exposed portions of security gates.

 

3.                                       All storefront glass must be safety plateor tempered. Use of plate glass mirrors on storefront will be permitted only ifsolidly bonded to non-combustible backing material subject to Landlordsapproval. Storefront glass of any type will not be permitted to terminatedirectly against flooring. A durable kickplate is required.

 

4.                                       Construction or design elements of thestorefront construction will not be allowed to project beyond Tenant’s leaseline.

 

5.                                       Tenant must furnish and install a minimumof 3'0" x 7'0' service door connecting to service corridors. This shall bea class ‘B” labeled door and frame, complying with uniform building code. Thisdoor’s secondary use is that of an exit, and must be recessed the full width ofTenant’s door, swing in the direction of travel, and be equipped with thenecessary hardware. Tenant is required to make complete installation, includingproper anchorage of frame, providing hole in sheet rock on corridor side,necessary headers and other accessories for a proper installation.

 

Locking hardware onexterior entrances or exits must function from the inside of Tenant’s leasespace only. such that after hours access cannot be gained to Tenant’s spaceexcept through the common area.

 

6.                                       Tenant whose normal operations generatemoderate or high sound levels, i.e., pet shops, coin operated

 

13

----

 

amusement centers,musical instrument showrooms, stereo centers, etc., are required to insulatetheir demising walls against sound transmission.

 

7.                                       Key switches for motorized grilles shallbe mounted as inconspicuously as possible. Switch covers are to match adjacentstorefront material or covers. Approximate maximum height 6f switch abovefinished floor shall be twelve (12) inches. All switches shall be flush mountedand not located on front face of storefront. Manual override is required foremergency operation.

 

C.            Interior Finishes

 

1.                                       Floors

 

a.                                       All Tenant finish floor coveringmaterials must be selected or adapted in thickness to correspond exactly withthe level of the finished mail floor.

 

b.                                      Tenant may elect to set its show window,grille, or other storefront elements back from the lease line within thepremises. If such set-back storefront configuration is established, Tenant isencouraged to install flooring material identical In color, quality, andpattern to the adjacent mall flooring.

 

c.                                       Tenant’s drawing, submitted for Landlord’sapproval, must show the exact dimensions and locations of all floorpenetrations. Tenant will be required to complete all penetrations in suchmanner that odors or liquids will not permeate the slab at these openings.Tenant shallprovide liquid tight sleeves at all floor penetrations at Tenant’sexpense.

 

d.                                      If Tenant elects to install carpeting itmust not extend past center line of door track to lease line.

 

e.                                       All slab on grade concrete installed byTenant shall be 3,000 psi, reinforced with 6' x 6' wire mesh. Any cutting andpatching of the slab requires written approval by Landlord before work byTenant can be initiated.

 

2.             Walls

 

a.                                       Interior partitions shall be constructedof noncombustible materials. If non-combustible wood is used, it shall bear theU.L. approval and mill stamp indicating it is treated, must be completelyenveloped, and solidly locked with 5/8' fire core gypboard. Field appliedtreatment to combustible material is not permitted.

 

b.                                      Interior metal studs should be a minimumof 3-5/8'.

 

c.                                       Partition wall must be anchored.

 

3.            Ceiling

 

a.                                       Combustible material of any nature will notbe allowed above finished ceilings. Organic material, either treated ornon-treated will not be allowed above finished ceilings.

 

b.                                      All non-combustible ceiling material mustbe equal to class ‘A’ fire rating.

 

c.                                       Ceiling not terminating tight against wallsurface must be returned to the deck above and sealed as required.

 

D.           Heating, Ventilating and Air Conditioning

 

1.                                       Design criteria of premises

 

a.                                       Heating

 

1.                                       Outside dry bulb temperature: 28 F.

 

2.                                       Inside dry bulb temperature: prevailingminimum temperature of substantially 70 F + I in merchandising areas.

 

b.                                      Cooling

 

1.                                       Outside dry bulb temperature: 96 F.

 

2.                                       Outside wet bulb temperature: 78 F.

 

3.                                       Inside dry bulb temperature: prevailingminimum temperature of substantially 78 F + I in merchandising areas.

 

14

----

 

4.                                       Inside relative humidity: 50%.

 

c.                                       Total electrical heat producing load:Maximum ten (10) watts per square foot of gross Tenant area. Totalelectrical load shall be based on the total wattage from lighting, appliances,equipment and miscellaneous electrical items in the premises. Food serviceareas maximum electrical load is 30 wafts per square foot of gross Tenant area.

 

d.                                      Number of people for internal sensiblelatent heat gains: Maximum fifty (50) square foot of leased area per person.

 

e.                                       Air supply: Total cool air supply to theTenant’s premises is based on the total internal sensible heat load calculatedfrom the design criteria established in paragraphs b, c, d, and where applicable on exposed outsidewall ‘U’ value of 0.2 and a roof ceiling assembly ‘U’ value of 0.12 and asupply air diffusion temperature difference of 18 F +/-2.

 

2.                                       Landlord System

 

a.                                       Packaged rooftop air-cooled airconditioning units furnish 56 F +/- 2 supply air. Supply air from the unitsthrough Landlord’s common duct system is delivered at the premises by providinga duct connection point for Tenant’s distribution system. Air is returned toLandlord’s air conditioning unit via ceiling plenum.

 

b.                                      Ventilation: Outside fresh air isprovided at not less than 1 0% during occupied cycle.

 

c.                                       Air supply is quantified in cubic feetper minute or CFM’S.

 

3.                                       Tenant System

 

a.                                       Tenant shall design and install acomplete supply air distribution system. Such system shall be complete withvariable volume boxes and controls, supply and return diffusers, supply grillesand registers, return air grilles, return air openings with fire dampers,insulated ductwork, thermostat(s) and electric controls for temperaturecontrol In the premises.

 

b.                                      Tenant’s air distribution systemincluding ductwork, variable volume air control devices, electric reheat coils,diffusers, grilles and registers shall be designed such that the staticpressure loss in Tenant distribution system does not exceed 0.35'W..C.

 

c.                                       Variable volume boxes, supplied andinstalled by Tenant, shall be equal to Titus ESC1000.

 

d.                                      Ductwork: Tenant’s ductwork shall bedesigned, furnished and installed in strict accordance with the standardsdescribed in the latest edition of the ASHRAE Guide and Data Book and in thelatest editions of the Duct Manual and Sheet Metal Construction for Ventilating andAir Conditioning Systems, published by SMACNA and/or local codes. No fiberglassductwork shall be used. Maximum length of flex is 48'. Ductwork from Landlord’smain supply duct to VAV Box shall be hard pipe only.

 

e.                                       Diffusers, registers, grilles: Shall beof adjustable type for volume and direction control.

 

f.                                         Thermostat(s) shall be located in anaccessible location and not obstructed by any merchandising or appliances norshall it have light fixtures or other similar heat producing elements directedor adjacent to it. Thermostat(s) shall act to control variable volumebox(es).

 

g.                                      Tenant shall provide 24" x 24"access panels for service to Landlord’s and/or Tenant’s equipment and/orfacilities, and all connections to Landlord’s services and facilities above theceiling level within the premises.

 

h.                                      Tenant is responsible for air balance ofthe HVAC system in their premises.

 

E.           Exhaust System

 

1.             EachTenant will provide its own toilet duct with ceiling grille in accordance withthe requirements of all applicable codes. In no cases shall Tenant systemexhaust be less then 2 CFM per square foot of toilet room area. Landlord hasprovided had provided sheet metal exhaust stacks through the roof at variouslocations. Tenant shall install a toilet fan(s) within its space, sized forcode toilet exhaust quantities as a minimum. Tenant shall install one (1) backdraft damper in the discharge duct, and shall extend the discharge duct to thenearest exhaust and shall connect thereto, providing a capped inlet forconnection of future Tenants.

 

2.                                       Exhaust systems for food services:

 

a.                                       Maximum exhaust air shall be based oncodes and special requirements. Food or other odors 

 

15

----

 

from kitchen, dining roomand cafeteria areas must be exhausted to atmosphere through Tenant-furnishedand installed upblast exhaust fan equal to the Penn Ventilator Co. Fume-X fan.The manufactured fan unit shall be modified by the addition of a fabricatedventure type duct adapter to assure a minimum discharge velocity of 2000 FPM.The exhaust fan shall be provided with a drainage area at the bottom of theunit complete with a residue trough equipped to be cleaned periodically byTenant. The location of the exhaust fan shall be no less than 20'-O’ from anyair intakes so as to avoid contaminating air supplied to other Tenants.  If necessary, an additional duct extension onthe fan discharge may be required if odors become a problem within the mall.Exhaust duet and fan location shall be submitted to Landlord for approval.

 

b.                                      Tenant shall clean its filter and ductsystem on a regular program so that grease is not deposited on the roof. Allexhaust system ductwork and exhaust fans used for exhausting cooking odors andgrease-contaminated air shall be cleaned on a regular schedule by anestablished contractor engaged in that type of service. This cleaning willoccur at intervals often enough to insure against grease accumulation inexhaust system, thus eliminating the probability of fires in this system.Tenant will provide to Landlord a copy of the service agreement between Tenantand authorized service dealer. Any grease related damage shall be corrected atTenant’s expense.

 

c.                                       Tenant shall provide an electricalinterlock so that its kitchen exhaust fan shall run at all times that thelights in the kitchen area are on.

 

d.                                      Tenant is required to run exhaust fans sothat no odors are allowed to enter the public mall or any adjacent Tenantspaces.

 

e.                                       Makeup air for exhaust system fromkitchen, dining room, and cafeteria areas must be accomplished byTenant-furnished and installed makeup air systems.

 

3.                                       Exhaust system fire protection, food service:

 

a.                                       The automatic extinguishing equipmentshould be installed in accordance with the National Fire Protection AssociationStandards. The extinguishing system shall be Underwriters’ Laboratories, Inc.CO2 or dry chemical pre-engineered system. Underwriter’s Laboratories approvedgrease extracting hoods with water washdown cycle are suggested. However, aproperly designed conventional range hood with washable grease filters isacceptable, provided that fire protection sprinkler heads or chemical fireprotection is provided above the filters and within the exhaust duct runbetween the hood and the roof mounted exhaust fan, and is approved by Landlord’sfire protection engineer.

 

b.                                      Automatic devices for shutting down fuelor power supply to the appliances must be of the manual reset type and notautomatic reset. In addition, gas fire cooking comment must have a permanentnotice posted at the reset device cautioning the operator to shut off the gasat all appliances before resetting the device.

 

c.                                       A readily accessible means to manuallyactuate the fire extinguishing equipment shall be provided in a path of ingressor egress and shall be clearly identified. This means shall be mechanical andshall not rely on electric power for actuation.

 

d.                                      The installation of the above systems tobe made only by persons properly trained and qualified by the manufacturer ofthe system being installed. Tenant shall also have an inspection agreement withthe firm whose personnel are properly trained and qualified (by themanufacturer) to make such inspections.

 

e.                                       If dry chemical systems are used, theexhaust fan must run during the actuation of the extinguishing system in orderto draw the dry chemical extinguishant up through the ductwork.

 

f.                                         Before the system is fabricated andinstalled, the systems vendor shall submit plans and other pertinentinformation on the proposed system to Landlord for review and approval.

 

F.                                      Electrical

 

1.**                                      **Electrical service and design

 

a.                                       Landlord will provide an electricdistribution system of 480/277 volts, three phases, 60 cycle, electrical distribution toelectrical meter rooms. Tenant will furnish all necessary labor, disconnects,branch and main circuit breakers, panels, transformer, conduit, wire, etc., toprovide a complete approved electric distribution system within the leasedpremises.

 

b.                                      Landlord has sized electrical service sufficient to accommodate an electrical installation of 10watts per square foot for retail Tenants, 30 watts per square foot for fastfood Tenants, and 60 wafts per square foot for restaurants and cafeterias.

 

16

----

 

c.                                       Tenant’s electrical drawing submittalmust include a tabulation of the electrical load including quantities and sizesOf 12MPS, appliances, signs, water heaters, equipment, etc., and a KW demandfor each installed item. A complete electrical panel schedule is required foreach installation.Tenant plan shall provide a single line diagram showing electrical distributionwith method of grounding of Tenant’s system clearly shown.

 

2.                                       Electrical construction

 

a.                                       General material: All electricalmaterials shall be new and shall be National Electrical Code Standard unlessbetter grade is required by local, code, and shall bear the Underwriters’Laboratories label.

 

b.                                      Lighting fixtures shall bear Underwriters’label and be of a type approved by City and NEC codes. Recessed fixturesinstalled in furred spaces shall be connected by means of flexible conduit withwire run to a branch circuit outlet box which is independent of the fixture.Fluorescent ballast shall be energy efficient.

 

c.                                       The following equipment shall beidentified with engraved bakelite nameplates: distribution panels, motorstarters, lighting panels, and push button stations.

 

d.                                      Electric hot water heaters, if needed,shall be provided by Tenant for its domestic water requirements, shall beautomatic and shall be limited to 12 gallon capacity. Special approval forheaters of larger capacity will be required. Unit shall be U.L. approved. Heaterswill have a pressure relief piped to nearest drain in Tenant space. All waterheaters above ceiling must have overflow drain pan piped to nearest drain.

 

e.                                       All fluorescent fixtures shall, beprovided and installed by Tenant with switch legs and local switches rated 20amps at 277 volts. All fluorescent fixtures must have internal protectiondevices.

 

f.                                         Panel board furnished and installed byTenant for 120/208 volt lighting within the [eased premises shall be equal totype NLAB class panels and 277/480 volt panels shall be equal to type NHB classwith single or multiple pole bolted thermal magnetic breakers.

 

g.                                      Transformer shall be furnished andinstalled by Tenant, as required.

 

G.                                     Plumbing

 

1.                                       Domestic cold water will be provided by Landlordat or near the boundary of the leased premises. The location for this point ofservice shall be in Tenant’s blackout area. Tenant shall connect at this pointand extend service according to Tenant’s requirements. All runs downstream ofLandlord’s valve shall be insulated to prevent condensation.

 

2.                                       Tenant’s plumbing facilities shall beconfined to the limits of the leased premises and in the immediate vicinity ofadjacent service corridors. Plumbing installation shall be in accordance withall applicable codes.

 

3.                                       Sanitary sewer

 

a.                                       Sanitary sewer taps to which Tenant mayconnect will be provided by Landlord, under each leased premises. All Tenantsare required to provide toilet facilities within their leased premises, atTenant’s expense.

 

b.                                      Tenants are encouraged to locate toiletsin areas where sewer taps are provided. Tenant shall excavate for sewer taps,complete plumbing connections, and backfill to a 90 percent density. If Tenant’sdesign does not work with location established by Landlord, then Tenant shall removeexisting stab according to accepted construction practice.

 

c.                                       Common vents are provided atstrategically located points. Tenant shall connect to these vents and provide “T”connection with plug to allow connection by other Tenants.

 

d.                                      All Tenants shall provide floor drains intoilets, however, boutique and restaurant Tenants shall also provide floordrains in kitchen areas. Local codes shall govern; however, a minimum of one (I) drain shall be required.

 

e.                                       All Tenants shall provide accessible clean-outsin toilet and kitchen areas.

 

f.                                         Tenant shall provide access to allLandlord clean-outs that may occur in Tenant’s leased premises.

 

17

----

 

4.                                       Grease trap

 

All food service Tenantsare required to use the Landlord’s grease distribution system. Landlordprovides the grease line tap within the Tenants premises. Connection to thissystem will be at Tenant’s expense.

 

5.                                       Water consumption

 

Large water consumerssuch as food preparation establishments, hair salons, and other large waterconsumers in the judgment of Landlord, shall furnish and install a water meterconforming to American Water Works Association specifications for domesticservice. If a meter is required, it shall be installed by Tenant at Tenant’sexpense in an area easily accessible to Landlord’s personnel. The meter readingshall be used to calculate Tenant’s bill in accordance with established utilityrates.

 

H.                                    Telephone System

 

All telephone servicesshall be provided by Tenant. All telephone charges shall be paid by Tenantdirectly to the telephone utility company furnishing the service. Completeconduit system, if required, shall be provided by Tenant for utility companywith pull wires installed in all conduit. Outlet boxes shall be 4" squareminimum with single device cover and telephone plate.

 

I.                                         Gas Service

 

Gas service will beavailable from the local gas company at a designated area. All piping and associated work for extension of services from thedesignated area to the Tenant’s leased space is by Tenant contractor at Tenant’sexpense subject to Landlord’s approval and governing code requirements.

 

J.                                        Fire Life Safety

 

1.                                       Landlord has installed within the leasedpremises a fire protection system with standard head spacing in accordance withcode requirements.Modifications made to Landlord’s system due to Tenant requirements,requirements ofgoverning agencies or for any other reason shall be at Tenant’s expense. Thefinal system shall be engineered in accordance with the codes and standards ofall governing bodies.

 

Tenant’s contractor shallnotify Landlord’s local authority 24 hours in advance to each shut down ofsprinkler system. Tenant shall reimburse Landlord for the cost of each shutdown sprinkler system in the amount of One Hundred Fifty Dollars (S150.00) for each occurrence.

 

2.                                       Exit requirements and exitidentifications within Tenant’s premises shall be furnished and installed byTenant in accordance with requirements of the governing building code as it maybe revised and amended, up to the time that construction is completed byTenant, and approved by the local building authority. Exit lights will have auxiliary batterypower provided with individual battery units for each fixture. Exit lights mustbe illuminated at all times, exit lights must also have auxiliary batterypower.

 

3.                                       Tenant shall furnish and install aminimum of one fire extinguisher throughout Its leased premises. Therequirement is one extinguisher per 3000 square feet of space with a maximum separation of75'- O' walking distance. Type of extinguisher shall be Class ABC, 10 lb.dry chemical. This requirement is necessary for insurance ratings. Locationsmust be approved by Landlord’s fire protection consultant.

 

K.                                    General

 

1.                                       Tenant must submit design and constructiondocuments in two phases. For the first phase, Tenant will submit preliminarydrawings. For the second phase, Tenant will submit Working Drawings sealed by a RegisteredArchitect. Three (3) sets of plans and one (1) set of sepias shall besubmitted to Landlord for approval. Work shall not commence until Landlord hasreceived and approved Tenants drawings.

 

2.                                       Landlord, Tenant or utility company shallhave the right, subject to Landlord’s approval, to run utility lines, pipes,roof drainage pipes, and conduit, wire or ductwork where necessary,above ceiling space,column space, or other parts of the leased premises, and to maintainsame in a mannerwhich does notinterfere unnecessarily with Tenant’s use. It shall be Tenant’s responsibility to provide accesspanels in its finish work where required by Landlord.

 

3.                                       Tenant shall prepare all its plans and perform allits work to comply with allgoverning statutes, ordinances, regulations, codes and insurance rating boards;obtain all necessary permits and obtain Certificates of Occupancy for the work performed.Landlord’s approval of Tenant’s plans does not relieve Tenant of its obligationto complete the construction in accordance with the terms of the LeaseAgreement, nor does it relieve Tenant of complying with the laws, rules,regulations, and requirement of local governing authorities. Certificates of Occupancy orcopy is mandatory and shall be filed with Landlord before Tenant opens for business.

 

18

----

 

4.                                       All drilling, welding, or other attachmentto the structural system must be approved by Landlord in writing before work is begun, and must be clearly identified on Tenant’s drawings.Landlord’s approval of drawings does not relieve Tenant of the responsibilityto make the request in writing.

 

5.                                       Tenant’s contractor shall be responsiblefor providing and maintaining a temporary storefront barricade made of paneling or painted sheetrock during Tenant construction. The temporarystorefront shall completely enclose Tenant storefront and is subject toapproval by Landlord. If Landlord has previously constructed a temporary barricade, thenTenant shall reimburse Landlord for Landlord’s cost.

 

6.                                       Existingmaterials, fixtures and equipment planned to be reused must be of quality level equal to new, and aresubject to Landlord’sapproval. Used materials other than that which is existing on the premiseswill not be permitted. Any damaged materials must be replaced as directed by Landlord.

 

7.                                       Tenant’s contractor will be heldresponsible for all clean-up in the common mall or joint use area. Tenant’scontractor must provide a walk-off mat.

 

8.                                       All construction plans in the field mustbear the Landlord’s approval.

 

9.                                       All work performed in the leased premises is contingent upon final approval by the Landlord.

 

10.                                 Tenant shall repaint neutral piers andsoffit after completion of Tenant construction if required by Landlord.

 

11.                                 All construction work shall be donewithin Tenant’s leased premises. All materials shall be stored and confinedwithin Tenant’s leased premises.

 

12.                                 Tenant shall comply with all currentprovisions of the “Occupational Safety and Health Act” (OSHA) that may apply toTenant’s operations.

 

19

----

 

**EXHIBIT “C-1”**

 

**PLANS FOR LANDLORD’S WORK**

 

 

20

----

 

 

21

----

 

 

22

----

 

**EXHIBIT “D”**

** **

**MALL OFTHE AMERICASEXCLUSIVES and RESTRICTIONS**

 

**AMC Theatres:**    No portion of the RestrictedArea outside Tenant’s Building shall be used (y) as a nightclub or bowlingalley or (z) for any purpose other than for the operation of establishments selling goods wares, merchandise, food, beverages,and services to thepublic at retail and for such office and storage areas as may reasonably be needed in connection with the operation of theShopping Center; PROVIDED, HOWEVER, the foregoing shall not be construed toprohibit the operationof a health club, nor the leasing of premises for office purposes, so long asoffice premises located in the enclosed mall north of the “Office Line” shown on Exhibit B are not utilized by the occupant thereof during evening hours (i.e., after 6:00 pm). The covenants and agreements of Landlord set forth in this Section aresometimes collectively herein referred to as the “Landlord’s Operating Covenant.”

 

**Casa Larios:**         During the term and forso long as the Premises are operated as Casa Larios Restaurant in accordancewith the Applicable Use, Landlord agrees hereafter not to enter into any leasefor space in the Center (excluding, however, (i) other tenants inthe Center alreadyengaged in such use as of the date of this Agreement, (ii) any renewals,transfers, or assignment of such leases, and (iii) any new tenants occupyingspace previously occupied by tenants set forth in (i) and (ii), and furtherexcluding food court tenants within the Center) with any tenant whose primarybusiness is that of a full service sit down restaurant serving Cuban food and/or cuisine as its primary menu.Landlord further agrees not to modify any lease in the center to permit a usein violation of the foregoing restrictions.”

 

**Citicorp Savings of Florida:**              Providedthat Tenant is not in default under this Lease, Landlord agrees, during the termof this Lease or any extensions hereof, not to enter into any leases for space inthe southern half of the Shopping Center, as now existing, as said southernhalf is depicted on Exhibit “B” attached to the Lease for use as a savings andloan institution or for banking services.

 

**Citicorp Savings of Florida #2**          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 free standing banking or ATM facility;and (ii) it shall not agree or permit an ATM facility to be installed in the Shopping CenterBuildings (exclusive of outparcels) by any party other than tenant.

 

**CFO****Mall of the Americas, Inc. d/b/a Cohen Fashion Optical****:** No other tenants whose primary business (grosssales therefrom shallconstitute more than 50% of the gross sales of such tenant’s business in suchspace at the Shopping Center) is the sale of prescription eyeglasses, contactlenses and/or sunglasses. In no event shall any occupant or tenant perform eyeexaminations.

 

**EB Games:**            So long as no Event ofDefault (or event with the notice and/or lapse of time could become an Event ofDefault) has occurred under this Lease. Landlord agrees that it shall not, atany time during the Term of the Lease, enter into any lease of space in theShopping Center with any tenant whose primary business is the sale of hand-heldgame hardware and software,electronic board games, or video game hardware and software. The term “primarybusiness” as used in this Section, shall means sales aggregating at leastseventy percent (70%) of such tenant’s gross sales. Any existing leases in the Shopping Center on the Commencement Dateand any future leases to tenants leasing at least 7,500 square feet of space inthe Shopping Center, including their respective renewal options, are notsubject to the above- described exclusive right. If Landlord should at any timebreach this restriction on Tenants lease rights, Tenant shall notify Landlordin writing within ninety (90) days after such other tenant opens for businessin the Shopping Center, and shall provide Landlord an additional ninety (90) days to cure such breach. If Landlord does not cure such breach within 90 day period, Landlord shall pay to Tenant anamount equal to $32,480.00 as liquidated damages for such breach and Tenantshall continue to be obligated to perform all of its obligations under thisLease as if no such breach had occurred. Tenant shall not be entitled to, anddoes hereby waive, any other rights or remedies to which Tenant may be entitledunder applicable law, in equity, or otherwise by reason of such, breach by Landlord and failure of Landlord to cure,including, without limitation, any right to terminate this Lease. Landlordagrees it shall not lease space to “GameStop”

 

**Final Round Arcade:**           Landlordagrees at no time will Landlord lease space in the Shopping Center to a tenantwho shall be authorized by its lease to carry on, as its principal business, the operation of a video arcade. The term “primarybusiness” means that greater than ten percent (10%) of such othertenant’s Net Salesshall derive from the revenue of video arcade machines.

 

**Footlocker:**           Solong as F.W. Woolworth Co. leases, uses, or occupies any space in the areadescribed in Schedule “A” hereof as Entire Premises, the Landlord covenantsthat notwithstanding the amendment, cancellation, termination, or expiration ofthe herein lease: (a) no covenant or agreement not specified in Schedule “BV”hereof made by the Landlord with any other person or corporationrestricting the use or occupancyof all r part of said Entire Premises shall be of any force or effect against F. W. Woolworth Co., (b) no building or structure shallbe erected or maintained on any part of the Entire Premises except in the areadesignated Building Area or Future Building Area on the drawing attached toSchedule “A” hereof; (c) no building, structure, or other space in said EntirePremises having a ground floor area in excess of 10,000 square feet shall beleased to or used or occupied by any person or corporation unless said lease,use or occupancy is specifically consented to in writing by the Tenant, and (d)no other space in said Entire Premises, shall be used or occupied as, or inconnection with, a store commonly known as a variety store or junior departmentstore.

 

23

----

 

**GNC:**      Landlord shall not enter into any new leaseswith other tenants in the Shopping (excluding kiosks and pushcarts providedsuch kiosks and pushcarts are not within the “Restricted Zone” as indicated on ExhibitA attached hereto), which contain a use clause permitting the tenant to conducta business for the primary purpose of the sale of health foods, vitamins,mineral, and herbal supplements or sports nutrition supplements (the “RestrictedBusiness”), nor permit any tenant to conduct the Restricted Business inviolation of such tenant’s use clause. “Primary purpose” shall be defined as astore selling the aforesaid items within an area which occupies in excess ofthe lesser of: (a) ten percent (10%) of its floorarea or (b) 200 square feet of floor area.

 

**Home Depot:** Tenantshall at all times have the right to assign this Lease, or to sublet all or anyportion of the Premises at its option providedsubsequent to such subletting or assignment. Tenant remains liable for the payment andperformance of all Rent and other obligations of the tenantrequired hereunder. Such assignee shall agree to be bound by the terms hereofand shall assume the obligations of Tenant hereunderin writing. Tenant shall also have the right to mortgage, pledge or encumberthis Lease, and any entry or foreclosure and sale by the mortgagee of any suchmortgage shall be a permitted assignment. Landlord shall provide allnotices to be provided to Tenant hereunder to any such mortgagee and Landlordshall provide such mortgagee the opportunities to cure any defaults provided inSection 14.2 hereof.

 

**Marshallsof Miami-Flagler, FL., Inc.  d/b/aMarshalls****:** Landlord will not lease,sell, or otherwise permit any structure within the Shopping Center to be used in wholeor in part as a:

 

(a)          food supermarket(except within the premises shown and identified on the Site Plan as “WinnDixie”);

 

(b)                                 restaurant(except within (i) the areas shown and identified on the Site Planas “Food Court”, (ii) the accessory restaurants currently operated within thepremises shown and identified on the Site Plan as “Woolworth’s” and “Walgreen”,(iii) those portions of the Shopping Center located outside of the “ProhibitedRestaurant Area” shown on the Site Plan and (iv) the free-standing structuresshown on the Site Plan);

 

(c)                                  bar (unless suchbar is included within permitted restaurant premises which derive at leastfifty percent (50%) of their annual gross revenues from the sale of foodfor on-premises consumption);

 

(d)                                 theatre of anykind (except within the premises shown andidentified on the Site Plan as “AMC Theatre 8-Plex”);

 

(e)                                  bowling alley(except within the premises shown and identified on the Site Plan as (i) “WinnDixie”. “T.J. Maxx”. “Lurias” or (ii) the northerly forty thousand (40,000)square feet of the premises identified as “Home Depot”);

 

(f)                                    skating rink(except within the premises shown and identified on the Site Plan as (i) “WinnDixie”, “T.J. Maxx”, “Lurias” or (ii) the northerly forty thousand (40,000)square feet of the premises identified as “Home Depot”);

 

(g)                                 amusement park;

 

(h)                                 carnival;

 

(i)                                     meeting hall;

 

(j)                                     bingo parlor(except within the premises shown and identified on the Site Plan as “West SideAmusement Bingo”);

 

(k)                                  “disco” or otherdance hall;

 

(I)                                    sporting eventor other sports facility;

 

(m)                               auditorium or any other likeplace of public assembly.

 

Landlord agrees that in no event will Landlord lease,sell or otherwise permit more than a total of thirty thousand (30,000) squarefeet of floor area (exclusive of the areas identified on the Site Plan as “FoodCourt” and the free-standing structures shown on the Site Plan) to be used forrestaurant purposes within the Shopping Center nor, further, will Landlordlease, sell or otherwise permit any single restaurant operation within theShopping Center to occupy more than ten thousand (10,000) square feet of floorarea. [Article IX, §2(A)]

 

Landlord agrees during the term of this leasethat it will not lease, sell or otherwise permit any structure within theShopping Center to be used in whole or in part for any manufacturing operation;as a factory; for any industrial usage; as a warehouse; any establishmentselling cars, trailers or mobile homes; for the operation of a billiard parlor,amusement center (other than one such center consisting of no more than seventhousand (7,000) square feet of floor area, provided the same is locatedoutside of the areas shown and identified on the Site Plan as the “Food Court” andthe “Prohibited Restaurant Area”), flea market, massage parlor; for a so-called“off-track betting” operation (other than operations having no direct access totheir premises from the Mall); lottery ticket sales (unless located withinareas of the Shopping Center outside of the area identified on the Site Plan as“Food Court” and the area identified on the Site Plan as “Prohibited RestaurantArea”); for the sale or display of pornographic materials; or for any otherpurpose which would be considered

 

24

----

 

to be inconsistent withthe use of the Shopping Center as a community oriented retail shopping center.[Article IX, §2(B)]

 

**RossDress for Less:**          Shopping Center is and will remainretail in character, and, further, that no part of which shall be used foroffice purposes (except [a] such space as is so used as of January 1, 1998, [b]that second story space located above the Store and the adjacent T.J. Maxxpremises which is, as of the date of this Lease, occupied by Santa CruzFurniture, and [c] that space designated on the Site Plan as “Offices”) orresidential purposes, and no part of which within five hundred (500) feet ofthe Store shall be used as a theatre; auditorium, meeting hall, or schoollarger than 3,000 square feet; church or other place of public assembly; “fleamarket;” gymnasium; health club(other than north of the Center Court shown on the Site Plan); dance hall; billiard or pool hall;massage parlor; video game arcade (other than north of the Center Court shown on the SitePlan); bowling alley; skating rink;car wash; facility for the sale, leasing or repair of motor vehicles; night club; adultvideo store (which are defined as stores at least ten percent (10%) of the inventory of which is not available for sale orrental to children under 15 years old because such inventory explicitly dealswith or depicts human sexuality). Except for restaurant space existing as of January1, 1998 and thatspace which is used as a Blockbuster Music store as of January 1, 1998, noadditional restaurant space shall be permitted in the Shopping Center within fivehundred (500) feet of the Store. Notwithstanding anything contained herein tothe contrary, Landlord may (a) lease premises within the Shopping Center forthe operations of storefront type financial, banking, insurance,real estate and brokerage offices, and (provided the same are at least two hundred fifty (250)feet from the Store) dental and medical offices; and (b) permit theleasing or repair of motor vehicles if such activity is associated with the operation of a business engaged primarily in thesale of automotive parts and/or tires and is located at least four (400) feetfrom the Store. [§ 3.1]

 

**PizzaUSA:**           During the term of this Lease, Landlord agreeshereafter not to enter into any lease for in-line (that is, space with an entrancedirectly into the enclosed Mall) space in the Shopping Center owned by Landlordwith any tenant whose permitted use includes the right to sell at retail cooked and prepared ready to eathot pizza only; subject however to the following terms and conditions including those relating to restaurants.Nothing contained in this Rider 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. spacescontaining 20,000 sq. ft. of gross leasable area or more), (iii) any space inor upon so-called “outparcels” of the Shopping Center (that is, spaceswhich do not have entrancesleading directly into the enclosed Mall, including parcels surrounded by or abuttingportions of the common areas which are exterior to the enclosed Mall), or (iv) Landlord’s leases, tenantsor their uses respecting the operation of a full service (eat in and take out)restaurant, including an Italian restaurant, unless such restaurant’s “primary business” (hereafterdefined) is comprisedentirely of the sale of cooked and prepared ready to eat hot pizza (forpurposes of this sentence, “primary business” shall refer to such a restaurantwhere more than fifteen (15%) of its gross sales are derived from the sale atretail of such cooked and prepared ready to eat hot pizza).

 

**Subway:**  Landlord agrees it shall not enter into a lease for space inthe building of which the demised premises forms a part with any other tenant whose primarybusiness (i.e. occupying more than fifty percent (50%) of its gross leasablearea and constituting more than fifty percent (50%) of its annual gross sales)is the sale of submarine and/or hoagie sandwiches.

 

**TechnicalCareer Institute:**              Accredited postsecondary educational services. If Landlord leases to an accredited postsecondary school or allows “New Horizons” to become an accredited postsecondary school, Tenantmay terminate the Lease after the twenty-fourth (24th)month of the Lease term.

 

25

----

 

**EXHIBIT “E”**

 

**PARKING PLAN OF ADDITIONAL PARKING SPACES**

 

 

26

----