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Filing # 105637293 E-Filed 03/30/2020 05:41:50 PM
EXHIBIT A
0099998\010901\9510537v1
FASHION SQUARE
ORLANDO, FLORIDA
DICK’S SPORTING GOODS, INC.
LEASE WITH
UP FIELDGATE US INVESTMENTS
— EAST COLONIAL, LLC
002435341 Exhibit 1
BTS Lease (Orlando ast Colonial}. FL)
LEASE
THIS LEASE (“Lease”) dated MAY 1 , 2014 (the “Effective Date”),
is entered into by and between UP Fieldgate US Investments - East Colonial, LLC, a Florida
limited liability company, as landlord (“Landlord”), and DICK’S SPORTING GOODS, INC., a
Delaware corporation, as tenant (“Tenant”) Landlord and Tenant are sometimes hereinafter
referred to as the “Party(ies)”. UP Fieldgate US Investments. Fashion Square, LLC, a
Florida limited liability company and an affiliate of Landlord, hereby joins in the execution of
this lease for the purposes detailed in Section 1.1 below.
ARTIC
DEMISE PR
Ll Demised Prem
Landlord, in consideration of the rents hereinafler reserved and agreed to be paid by Tenant,
hereby leases to Tenant and Tenant hereby ieases from Landlord the following described premises
(the “Demised Premises” situated within the City of Orlando, County of Orange, State of Florida,
being located in a shopping center which is adjacent to Fashion Square Mall as shown on Exhibit
«A (the “Lease Plan”) and legally described on Exhibit the “Shopping Center”); Fashion
Square Mall is legally described on Exhibit “A-2” (the “ fall”). Fashion Square Mall is currently
owned by M M M Lakewood, LLLP, a Florida limited liability partner ip (“MMM”) and is
entirely ground leased to Landlord’s affiliate, UP Fieldgate US Investments — Fashion Square, LLC,
a Florida limited liability company (together with its successors assigns, “Landlord’s Mall
Affiliate”) pursuant to that certain’ Shopping Center Ground Lease dated March 13, 1972 (as
amended) originally by and between, as “landlord”; The McCrory Holding Company, ‘The First
National Bank at Orland as Trustee, et al., predecessor in interest to MMM; and as “tenant” Leonard
I Farber, predecessor in interest to Landlord’s Mall Affiliate, a memorandum of which was
recorded on March 17, 1972 in by the Circuit Court of Orange County, Florida in OR Book 2194,
Page 642. Landlord’s Mall Affiliate has joined in the execution of this lease for the sole purpos of
acknowledging its agreement with the provisions in sections 1.4, 1.5 and 1.8 below which are
applicable to the Mall and Landlord’s Mall Affiliate.
The Demised Premises is a one-story building to be constructed containing a leasable floor
area (“LFA”) as further defined in Section 1.2(d) of approximately fifty thousand (50,000) square
feet with a minimum frontage of two hundred twenty-two (222) lineal feet located as shown on the
Lease Plan (the “Building”). The Demised Premises is demised subject to “Tithe Matter: set forth
on Exhibit “B” and with the benefit of the e asements, rights, restrictions, agreements and
encumbrances on the Shopping Center including the OEA ( a defined in Section 1.8) All land
comprising the Shopping Center is referred to as the “Property” and is legally described on Exhibit
“A-1". Landlord represents and warrants to Tenant that the terms and conditions of this Lease are
not in conflict with the provisions of the Title Matters and further, that there are no Title Matters
which prohibit Tenant from conducting its business in the Demised Premises in accordance with the
terms and conditions hereof. All buildings and improvements situated or to be situated on the
Property may sometimes be collectively referred to as “Shopping Center Buildings” as depicted
on the Lease Plan. The Building shall constitute one of the Shopping Center Buildings. The Tenant
shall also have the exclus ve Tight to locate its loading arca, trailer storage area, compactor and
dumpster station and electrical transformer and/or generator, if applicable (“Tenant’s Service
Area”), all as more particularly identified on the Lease Plan. Tenant shall, subject to compliance
with all Legal Requirements (as defined in Section 17.23), also have the right to usc the sidewalks.
adjacent to the Demised Premises and to use the Common Areas (as defined below) within the
Tenant's Preferred Area as identified on the Lease Plan (‘Tenant’s Preferred Area”) for seasonal
and promotional sales and other sales customary to Tenant's business operations. Tenant’s use of
the Tenant’s Preferred Area as aforesaid shall be limited to one (1) time cach year for Tenant’s
typical company-wide annual sale to be held within the period from June | to August 15. Tenant
shall maintain the Tenant’s Preferred Area during the period of such use: keep, protect and insure
(subject to Section 11.5 herein) any merchandise or other personal property located therein during
such period; keep such area in a clean and attractive condition; and return same to the condition
which existed prior thereto upon the conclusion of such use.
OUAMSL.1
BYS Lease (Orlando (Eest Colonial), FL.)
The Demised Premises shal also include a non-selling storage/office mezzanine arca; this
mevvanine square foot area shall not be used or included in the calculation of Rent or any other
charges due pursuant to this Lé e.
12 Definitive Areas and Terms.
(a) Landlord covenants that no buildings, monument or pylon signs, structures or
obstructions (whether temporary or permanent) other than canopies, building appurtenances and
signs attached to store buildings, lighting equipment and directional and other signs, permitted
by the provisions of this Lease or the OEA, if am may be located in any area of the Shopping
Center identified on the Lease Plan as the “No-Build Areas”
(b) Landlord covenants that (i) no portion of the Parking Areas (defined in $ ion.
below} identified on the Lease Plan as the “Protected Parking Areas” may be modified (including
any change in the configuration of the parking stalls, driveways, aisles or curbing, and any change
in the loc ion, or reduction in the number of expectant mother parking spaces required by Section
3.1(¢)Gi)_of this Lease) without Tenant’s consent, which consent shall not be unr onably
withheld; and (ii) the Parking Areas will always contain the handicap accessible parking spaces
required by Section 3.1(c)(iii) of this Lease.
(©) If the covenants with respect to Subsection (a) or (b) above are violated, and such
violation continues for a period of five (5) business days following written notice from Tenant to
Landlord, Tenant shall have the right to elect to deduct, from Rent, Two Thousand Dollars ($2,000)
per dar for cach day of such violation, in addition to Tenant right to seek other remedies available
at Jaw or in equity and any mount which Tenant may realize thereby shall constitute a partial
reimbursement to ‘Tenant for costs incurred and/or sales lost by Tenant in connection with the
interference with Tenan’ 5 No-Build Areas and Protected Parking Areas, the exact amount of which
would be impracticable or extremely difficult to ascertain
(d) The term “LFA” as used in this Lease means the number of gross square feet of
leasable floor area (whether occupied or unoccupied) of the Shopping Center Buildings intended for
the exclusive use y any tenant, subtenant, a ignee, licensee, concessionaire or other occupant of
this Shopping Center (“Occupant”) thereof including me: nines or oth if used for retail
sales (provided, in no event shalt Tenant's non-selling storage’office mez; anine area be included in
the LFA of the Demised Premises). The LFA of such premises shall be measured from the exterior
face of exterior walls and the exterior face of service corridor walls, the line along the front of sucl
premises where it abuts the sidewalk or other Common Areas, and the center line of any wall that
such premises shares with an adjoining premises. For purposes of Section 1.5 the term "Occupant"
means and includes any tenant, subtenant, assignee, licensee, concessionaire or other occupant of
the Restricted Property.
( cept with respect to determining the height of Tenant’s parapet wall or
storefront entrance feature, the height of the Building shall extend from the finished floor-slab to
the underside of the roof deck.
(® On and after the Rental Commencement Date, Landlord co’ ants that the points of
ingress and egress to and from the Shopping Center and adjacent right-of-ways identified on the
Lease Plan as “Critical Access Ways,” as shown. on the Lease Plan, shall remain ia an open and
functioning manner throughout the term of this Lease, subject only to temporary and incidental
losures for repair, improvement or maintenance or as required by Legal Requirements; provided,
Landlord shall use its commercially reasonable efforts to minimize any interference with the Critical
Access Ways during such temporary and incidental closures and, if such work is by Landlord, then
Landlord shail further commence and complete such repairs in a diligent and prudent manner. No
such work shall materially impair the access to or visibility of the Demis d Premises.
Ri ns on Common. re:
The areas of the Shopping Center shown on the Lease Plan as Parking Arcas shall at all
times be maintained as Parking Areas. The expression “Parking Areas” shall mean all parking
spaces, sidewalks, driveways and footways, and includes the areas ident ied on the Lease Plan as
Parking Areas plus such other areas as Landiord shall from time to time designate as Parking Areas.
The areas in the Shopping Center currently used or proposed to be used for service drives and
q00243491.1)
BTS Lease (Orlane ( st Colonial), FL)
identified on the Lease Plan as the “Service Drive” shall be maintained so that, during the term
hereof, there shall be adequate service roads or access ways to and from the Tenant’s Service Arca.
Notwithstanding the foregoing, Landlord shall have the right to change or modify such Service
Drive provided continuous and equivalent access to and from Tenant’s Service Area is maintained
and any such change shall permit a sixty-eight (68) foot tractor trailer to access the Tenant Service
Area, ‘Common Areas” means those ar d igned for the common use, convenience and benefit
of Landlord, Tenant and all other Occu; ants, whether or not identified on the Lease Plan located on
the Property exclusive of Tenant’s Building and any other Shopping Center Buildings designed to
be occupied by an Occupant. The Common Areas shall include: the Parking Areas, Tenant’s
Service Area, the Service Drive, the entrances and exits of the Shopping Center, idewalk: any
landscaped areas and exterior planted areas, retaining walls and other site improvements within the
Shopping Center. Landlord agrees that, except for necessary and/or emergency repairs, there will
be free and uninterrupted access shown on the Lease Plan and further that Landlord shall take no
action nor consent to a third party’s taking any action to materially and adversely affect access as
shown on the Lease Plan: (a) for motor vehicles between any and all access streets to the Shopping
Center and the Protected Parking Areas; and (b) for pedestrians between the Protected Parking
Areas and the main customer entrance of the Demised Premises. The entrances and exits between
all adjacent strects and Parking Arcas shall be maintained as shown on the Lease Plan. Landlord
agrees that the Parking Arcas within the Shopping Center will always contain at least five (5)
parking spaces for so-called standard size American automobiles, and riveways and footways
incidental thereto, for each one thousand (1,000) square feet of LFA existing in the Shopping Center
from time to time, unless the reduction in the parking is related to an action governed by Article X
hereof, in which event the terms of Article X shall govern and control,
Landlord reserves the right to alter the Common Areas and to construct any and all
improvements including, without limitation, buildings on the Common Areas as it determines and to
make changes to any of the Shopping Center Buildings identified on the Lease Plan, including
changes in configuration and/or location provided any such changes shall not adversely affect the
business operations of Tenant in the Demised Premises and/or the visibility of the Demised
Premises: notwithstanding the foregoing, the initial construction of the Shopping Center shall be
substantially as shown on the Lease Plan; provided, however, that in all events the parking ratio
provided for above shall not be violated, and there shall be no changes to the No Build Arcas or
Protected Parking Arcas which arc prohibited by 2a) and (b) except with Tenant’s
consent as provided the in (which consent shall not be unreasonably withheld), and the Critical
Access Ways shall remain in an open and functioning manner and signalized where required and the
Service Drive, if relocated, shall provide satisfactory access to the Tenant’s Service Arca.
Restrictions on Use of Shopping Center.
Landlord agrees (and Landlord’s Mall Affiliate agree: to the Mall) that during the term of
this Lease and as long as any retail sales activity shall be conducted in the Demised Prensises
excluding interruptions (a) not exceeding one hundred eighty (180) consecutive days, or (b) due to
alterations, restoration, casual aking and/or a Force ‘ajeure Event, which shall be deemed to be
the conduct of retail sales activity for purposes of this section, the Shopping Center and the Mal
shall not be used for any purpose that are inconsistent with a first-cl shopping center, the OFA.
matters set forth in Exhibit I and specifically they shall not be used for:
(a) tor any non-retail purposes (repairs, alterations, storage and offices incidental to
retailing, and banks and smail loan offic shall be deemed retail); provided that up to but not more
than ten percent (10%) of the total leasable floor area of the Mall may be used for educational or
training purposes which are compatible with a family oriented retail shopping environment;
(b) for any entertainment purposes such as a bowling alley ting rink, bar, night club,
discotheque, amusement gallery, cinema, poolroom, health club, massage parlor, sporting event
sports or game fac ty or off-track betting club; provided, however, that up to but not more than ten
percent (10%) of the total leasable floor area of the Mall may be used for entertainment purposes of
the type typically found in regional shopping malls which are compatible with a family oriented
retail shopping environment it being agreed that nightclubs, discotheques and bars (other than bars
located within restaurants) are not permitted in any event
(©) for any establishment which sells or displays pomographic materials (except for the
incidental sale of such items within an establishment that primarily sells non-pornographic materials
(00243491 }}
BTS Lease (Orlando (East Colomal), FL)
such as bookstores and those stores which are being operated under the trade name Spencer’ Gifts
as of the Effective Date);
@ for any establishment which sells or displays used merchandise or second hand
goods; or
(2) for any restaurant or establishment selling food prepared on prem: tor
consumption on or off premises located within five hundred (500) lineal feet of the Demised
Premis provided, however, that a restaurant may be operated in the location within the Mall
identified on the Lease Plan as “Olive Garden” and a single restaurant shall be permitted on the
Res aurant Qutparcel within the Shopping Center, as shown on the Lease Plan as the “Proposed
Restaurant”, so long as it meets the following requirements: (a) it occupies less than two thousand
five hundred 00) square fo b) the height thereof docs not exceed twent four feet (24°)
including architectural elements, (c) if it sells alcoholic beverages it does so only incidentally to the
sale of food and it shall not contain a bar or bar area which provides separate bar servi and (d) it
is either (i) the fast casual, family-oriented restawrant being operated under the trade name
“Noodles” (and the same continues to be operated as such fast sual style restaurant in
substantially the same manner as they are being operated as of the Effective Date) or (ii) is a
replacement fast casual style restaurant being similarly operated, or (c) is a restaurant, café or coffee
shop which operates in a manner such that the majority of its business is conducted by way of drive-
through service.
Landlord agrees that the Shopping Center shall not be used for any purpose that is not
permitted under the Title Matter specifically including the QEA, and that Landlord will enforce the
provisions of the Title Matters and the OFA against the parties to the OFA and other Occupants.
Reciprocally, subj to the representations by Landlord contained in 4 herein, Tenant agrees
that the Demis 4 Premises shall not be used for any purpose in violation of the matters set forth on
Exhibit]
LS Competition Rent Reduction.
@) Landlord warrants and agrees that, during the term of this Lease, it will not, nor
will any entity under common control with Landlord, enter into any lease, license agreement or
other similar agreement nor consent to or permit any premises in the Shopping Center (other than
the Demised Premises) or any land adjacent to, or contiguous (but for roadways or access ways) to,
or within three 3) miles of, the Shopping Center which is owned or otherwise controlled by
Landlord or a parent, subsidiary or affiliate of Landlord or in which any officer, partner, director or
owner of Landlord has any interest (collectively, the “Restricted Property”), or otherwise transfer
or allow a possessory interest in the Restricted Property to an Occupant to be used for the sale,
rental and/or distribution, cither singly or in any combination of (i) health, fitness and/or exercise
equipment; (ii) sporting goods and sporting equipment (including, but not limited to, golf
equipment and accessories); (iii) hunting, camping and fishing equipment and accessories; and/or
(iv) athletic footwear (“Precluded Use Activity(ies)"). Specifically, without limitation, the Mall
is part of the Restricted Property, and Landlord and Landlord's Mall Affiliate hereby agree that the
Mali shall not be used for the Precluded Use Activity(ies)
(b) Notwithstanding the foregoing Precluded Use Activity(ies) set forth in Subsection
(a) above, the retail sale and/or distribution of sporting goods and/or sporting equipment in the lesser
of (i) five percent (5%) in the aggregate of any such Occupant’s LFA (which shall include an
allocable portion of the aisle space adjacent to such sales floor area of such use) or (ii) one thousand
(1,000) square fect in the aggregate of such Occupant’s LFA (which shall include an allocable portion
of the aisle space adjacent to such sales floor area of such use) shall not be a violation of the
Precluded Use Activity(ies).
() If Landiot is in default of the provisions of this Section 1.5 and the Occupant of any
such premises shall engage in such Precluded Use Activity(ies) beyond those permitted under (b)
above then Tenant shall have the following remedies, said remedies being separate, distinct and
cumulative remedies, and the exercise of any one or more of which shall not be deemed to preclude
Tenant's rights to exercise any other legal or equitable remedy available, including, but not limited to,
an action for injunctive relief:
(oo2a3as1.ty
BTS Lease (Orlando (ast Colonial), FL)
@ to pay to Landlord monthly in respect of each applicable calendar month, in
are: not later than the thirtieth (30th) of each such following calendar month in lieu of
Rent (as defined in Section 4.1(c)), two percent (2%) of Gross Sales (as defined in Section
6.2), but never more than the Minimum Rent for that month that would have otherwise been
payable for such calendar month (‘Substitute Rent” turing the period which extends from
the beginning of the first full calendar month following the date on which the Precluded Use
Activity(ies) were commenced and continuing until the end of the calendar month in which
such Precluded Use Activity(ies) are ceased: and
Gi) if Landlord fails to cure such violation within one hundred and eighty (180)
days after the Precluded Use Activity(ies) commenced, then Tenant shall have the right to
terminate this Lease at anytime prior to the date of discontinuance of the Precluded Use
Activity(ies) by giving thirty (30) days’ advance notice to Landlord unless Landlord cures
such violation or such Precluded Use Activity(ies) ceases prior to the date Landlord receives
Tenant’s termination notice.
(d) In addition to the foregoing remedies, ‘Tenant shal iso have the right to recover
from Landlord any lost or reduced profits caused by Landlord's breach of this ion_L.S and the
cost of Tenant’s Leasehold Improvements (as defined in Section 11.1) and trade fixtures paid for by
Tenant if this Lease is terminated and any other rights or remedies available to Tenant at law or in
equity, including injunctive relief. Tenant’s rights and Landlord’s obligations under this Section 1.5
shall survive the termination of this Lease.
{e) (i) ‘The restrictions in Subsection (a) above shall not apply to existing Occupants
(or their assignees) of the Malt under the existing leases set forth in Exhibit M as of the date
hereof, provided Landlord shall not modify any such existing lease to permit any such
Occupant to use its premises in violation of Subsection (a)
Gi) In addition, Landlord shall not exercise any right of discretion or consent
it has under an existing lease or OEA to a request of an Occupant to change its use,
assign, sub-let or otherwise, where to do so would expand the rights of an Occupant or a
party listed on Exhib: if applicable, to be in violation of this Section 1
(iii) Department Stores (as hereafter defined) shall not be subject to the Precluded
Use Activities identified above in Section 1.5(a)(i) and (ii) for so long as they are operating
as a Department Store and are not operating as a Direct Competitor (as hereafter defined)
A “Department Store” shail mean a traditional multi-department store (such as Macy’s,
Sears, Filenes etc.) or other fashion department store (such as Nordstrom, Marshall Field
etc.) occupying at least eighty thousand (80,000) square
fe: et of LF A “Direct
Competitor” means an Occupant which is a multi-line spor goods retailer such as
Sports Authority or Academy Sports, or a sporting goods specialty superstore such as
Cabela’s, REI, or Bass Pro.
(® Landlord shall not be in violation of this Section 1.5 unless an Occupant of the
Restricted Property operates a use in violation of this provision and either (i) is permitted to do so
under the terms of its lease or occupancy agreement; or (ii) such Occupant operates a use in
violation of the terms of its | or occupancy agreement and Landlord does not use reasonable
efforts to cure such violation promptly and diligently (including the filing of appropriate legal action
including secking injunctive relief). Tenant shal so have the right to enforce the restrictions of
this Section 5 directly against the Occupant in breach.
(g) In the event the Demised Premises is not operated as a sporting goods store for a
period of one (1) year for reasons other than fire or casualty, a Force Majeure Event,
assignment/subletting or repairs, remodeling and renovation, then Landlord’s obligation with
respect to Subsection (a) above shall be of no further force and effect. In the event Tenant or its
assignee subsequently re-commences operations as a sporting goods store in the Demised
Premises, and provides Landlord written notice thereof, then from and after the date of Tenant’s
notice, Subsection (a) shal again be effective and Landlord’s obligations thereunder shall
resume; however, Occupants who enge cd in Precluded Use Activity(ies), or who were granted
rights to engage in Precluded Use Activities, in the interim period of time when Subsection (a)
was not effective pursuant to the this Subsection (g) shall be deemed not subject to the terms and
WO24349 L.A}
BTS Lease (Orlando (East Colonial), FL)
provisions thereof for such Precluded Use Activity(ies), provided that such Precluded Use
Activity(ies) are not in violation of said Occupant’s occupancy agreement.
16 Initial Co-Tenancy Requirement
{a} ‘The “Initial Co-Tenancy Requirement” shall mean that: (i) two of the following
anchor tenants: Macy’s, J . Penney’s and Sears (the, shall cach be open, fully staffed, stocked and
operated as a retail business in substantial ly all of their respective premises at the Mall (the three
named tenants being collectively, the “Inducement Tenants”); and (ii) at least ty percent
(80%) of the remaining LFA of the Mall as shown on Exhibit A, excluding the LFA of all the
Inducement Tenants and any Outparcels (as so designated on Exhibit A), shall be open or will
simultaneously be open with Tenant, fully staffed, stocked and operated by an Occupant in
substantially all of its premises, for the operation of a retail business hy a Required Tenant (as
hereinafter defined in § ion 1.7).
(b) In the ev nt the Initial Co-Tenaney Requirement is not satisfied s of the Rental
Commencement Date (as defined in Section 2.3), ‘Tenant shal have the right, tits sole option,
cither to (i) elect to open the Demised Premises for business to the general public, in which
event, subject to any other applicable provisions of this Lease, the Rental Commencem at Date
shall be determined a: forth in Sec ion 2.3 and Tenant shall be entitled to pay Substitute Rent
(as defined in Si ion in lieu Rent, in arrears, no later than the thirtieth (30"") day of the
following month until the end of the month in which the Initial Co-Tenancy Requirement is
satisfied (any benefit which Tenant may realize thereby shall constitute a reimbursement to
Tenant for certain opening expenses incurred by Tenant in connection with this Lease): or (ii)
elect to delay opening the Demised Premises for business to the general public, in which event,
ihe Rental Commencement Date shall be delayed until the sixtieth (60%) day after the date on
which the Initial Co-Tenancy Requirement is satisfied and Tenant receives notice from Landlord
setting forth the date that the Initial Co-Tenancy Requirement was satisfied: or if such sixtieth
(60") day does not occur during the Opening Day period (as determined by § ction 2.3), then the
Rental Commencement Date shall be delayed until the March 1 or September | next following
said period (as the case may be). Notwithstanding anything to the contrary contained in this
Lease, under no circumstances will Tenant be obligated under this Lease to open for business in
the Demised Premises or to pay any Rent to Landlord hereunder tinless and until the Initial Co-
Tenancy Requirement as defined in Subsection (a) above has been satisfied.
(©) (i) In the event Tenant does not elect to delay its opening and the Initial Co-
‘Tenancy Requirement has not been satisfied within two (2) years following the Rental
Commencement Date (the “Ini I Co-Tenancy Requirement Period”), Tenant shall
have the right to terminate this Lease upon written notice to Landlord given within sixty
(60) days following the expiration of the Initial Co-Tenancy Requirement Period.
Termination of this Lease shall be effective on the date set forth in Tenant’s notice of
termination, which in no event shall be more than thirty (30) days followi the
expiration of such sixty-(60) day period. In the t Tenant fails to provide such written
termination notice within the sixty-(60) day period set forth abo Tenant shall be
deemed to have waived its right to terminate this Le: as provided he
in. If this Lease
is terminated hereunder, neither Party shall have any further liability under this Lease
except: (A) as set forth in Se ion 17.13 below; (B) all of Tenan third-party costs and
expenses incurred in connection with this Le including without limitation, costs
associa’ ed with the preparation of the Final Plans (as defined on Exhibi “C-1"), legal
costs and the performance of Tenant’s Work (as defined in Section 3.1), if ar and (C)
as to any other terms of this Lease which expressly survive termination or expiration.
Landlord shall pay and/or reimburse such amount, as the case may be, within fifteen (15)
jays following the effective termination of this Lease. The foregoing obligation(s) on
behalf of Landlord to pay and‘or reimburse such costs and expenses shall expressly
survive the termination of this Lease.
{ii) In addition to the foregoing, in the event Tenant clects to delay opening
the Demised Premises for busin and the Rental Commencement Date as set forth in
Section 1.6(b)(ii) above, and if the Initial Co-Tenancy Requirement has not been satisfied
within two (2). years following what would otherwise have been the Rental
Commencement Date as defined in Section 2.3 (the “Initial Co-Tenancy Requirement
Deadline”), Tenant shall have the right to terminate this Lease upon written notice to
ouna3491 ty 6
BISL ¢ {Orlando (Hast Colonia’), FL)
Landlord given at any time following the expiration of the Initial Co-Tenancy
Requirement Deadline. Termination of this Lease shall be effective on the date set forth
in Tenant’s termination notice, which in no event shall be more than thirty (30) days
following the date of such notice. If this Lease is terminated hereunder, neither Party
shai ave any further liability under this Lease except: (A) as set forth in Section 17.13
below; (B) all of Tenant's third-party costs and expenses incurred in connection with this
Lease, including without limitation, costs associated with the preparation of the Final
Plans (as defined on Exhibit “C-1"), legal costs and the performance of Tenant’s Work
{as defined in Section 3.1), if any; and (C) as to any other terms this Lease which
expressly sutvive termination or expiration. Landlord shall pay and/or reimburse such
amount, as the case may be, within fifteen (15) days following the effective termination
of this Lease. The foregoing obligation(s) on behalf of Landlord to pay and/or reimburse
such costs and expenses shall expressly survive the termination of this Lease
{d) Beginning on the Landlord’s Demised Premises Work Commencement Date (as
hereinafter defined) and updated no less than cvery thirty (30) days thereafier until the Rental
Commencement Date, Landlord shall deliver to Tenant a written report with a lease plan
describing and depicting the status Requirement, including the
of the Initial
Co-Tenai
construction schedule and the proposed opening dates of the O pants ne sary to meet the
initial Co-Tenancy Requirement. Furthermore, if the Initial Co-Tenancy Requirement is not
satisfied upon receipt of the initial report, Landlord shall provide the informa ion set forth above
on the first day of each succeeding calendar month until the Initial Co-Tenancy Requirement bas
been satisfied. Landlord shali not be deemed in default of this provision, however, unless and
until Landlord has failed to deliver such written report after ten (10) days’ written notice from
‘Tenant.
{e) Landlord acknowledges and agrees that the provisions of this Section 1.6 are
material covenants and were instrumental in inducing Tenant to enter into this Lease and that
Landlord shall be subject to this Section 1.6 even if Landlord (or an affiliate of Landlord) no
longer owns or leases any interest in the Mall and even if Landlord no longer otherwise has any
control over the Mali.
17 Ongoing Co-Tenancy Requirement.
fa) As used in this Section 1.7. ; the term “Ongoing Co-Tenancy Requirement” shall
mean that: (i) at least two of the three Inducement Tenants shall be open, fully staffed, stocked
and operated in substantially all of their respective premises, for the operation of a retail business
(the “Anchor Tenant Inducement”) and (ii) at least eighty percent (30%) of the remaining
LFA, of the Mall as shown on Exhibit A, excluding all of the Inducement Tenants, the Demised
Premises and any Outparcels (as so designated on Exhibit_A), shall be open, fully staffed,
stocked and operated by an Occupant in substantially all of its premises, for the operation of a
retail business by a Required Tenant (the “Shop Space Inducement”). A “Required Tenant”
shall mean a: (i) national Occupant operating a minimum of fifty (30) high quality retail stores
of the types typically found in first-class regional shopping centers; or (ii) regional Occupant
satisfactory to Tenant.
(b) If at any time afier the Rental Commencement Date and the satisfaction of the
Initial Co-Tenancy Requirement, the Anchor Tenant Inducement component of the Ongoing Co-
Tenancy Requirement is not satistied for a period in ex ‘ss of eighteen (18) months, or the Shop
Space Inducement component is not satisfied for a period in excess of one hundred and twenty
(120) days (either such event, or both, being the “Ongoing Co-Tenancy Violation”), Tenant
shall then pay to Landlord monthly, in lieu of Rent, in arrears, no later than the thi eth 30")
day of the following month, Substitute Rent (defined in Section 1.5), during the period which
extends from the beginning of the first full calendar month following the Ongoing Co-Tenancy
Violation and continuing until the end of the calendar month in which both components of the
Ongoing Co-Tenancy Requirement are satisfied. In addition to the rights of Tenant to pay
Substitute Rent, if an Ongoing Co-Tenancy Violation sha continue for a period in excess of
twelve (12) months (meaning cither one component thereof, both components thereof, or a
combination thereof), Tenant shall have the right to continue to pay Substitute Rent or, at its
election, terminate this Lease by sixty (60) days’ written notice delivered to Landlord anytime
thereafter.
1243: O11
BIS Lease (Orlando (East Colonial}, PL}
©) Landlord shall deliver to Tenant, within five (5) days of Tenant’s request, a notice
certifying the then current tradename and the LFA of each Occupant of the Shopping Center and
Mall. Tenant, or its designated a it, shall have the right, at its own cost and expense, to audit
and/or inspect Landlord’s records with respect to the Ongoing Co-Tenancy Requirement. Tenant
shall give Landlord not less than fifteen (15) day ” written notice of its intention to conduct any such
audit. If such audit discloses a violation of the Ongoing Co-Tenancy Requirement and Tenant
elects to pay Substitute Rent for such period of violation in accordance with this section, Landlord
shall pay to Tenant the cost of such audit and return such amounts Tenant paid for Rent less the
amount of Substitute Rent due during such period due to the Ongoing Co-Tenancy Violation.
@ Landlord acknowledges and agrees that the provisions of this Section 1.7 are
material covenants and were instrumental in inducing Tenant to enter into this Lease and that
Landlord shall be subject to this Section 1.7 even if Landlord (or an affiliate of Landlord) no
longer owns or leases iny interest in the Mall and even if Landlord no longer otherwise has any
control over the Mall.
18 Operating Agreement (OEA).
As used in this Lease, the term “OEA® shall mean that certain Access Easement
Agreement among MMM and Landlord (and consented to by all parties with interests in the
subj t property superior thereto including, without limitation, Macy’s Florida Stores, LLC). in
the form attached hereto as Exhibit F (or such other form as is acceptable to Tenant in its
reasonable di ‘etion) and recorded in the Orange County Florida Recorder’s Office.
(a) Landlord and Landlord's Mall Affiliate covenant, represent and warrant to Tenant
that: (i) the OBA will be in full force and effet not later than the Demised Premises Delivery Date;
and (ii) the QEA will be, and shall remain, superior in lien to all mortgages and related liens
affecting the Shop; Center and the Mall. Landlord and Tenant cach acknowledge that this Lease
is made and sl continue to be subject and subordinate to the OEA, subject to the provisions of
this Section 1.8, provided, howev as between Landlord and Tenant, in the event of any conflict
between the OEA and this Lease, this Lease shall in all respects control. Any and all consents
which may be required under the OBA in connection with the performance of Landlord’s Work or
Tenant’s use of the Demised Premises pursuant to this Lease have been, or, prior to the Demised
Premises Delivery Date will be, obtained by Landlord at Landlord’s sole cost and expense.
(b) Landlord and Landlord’s Mal Affiliate shall, at their sole cost and expense,
during the term of this Lease: (i) perform and observe all of the terms, covenants, provisions and
conditions of the OEA on its part to be performed and observed; (ii) defend, indemnify and ho
harmless Tenant from and ainst any and all claims, demand: auses of action, suits, damages,
liabilities and expenses of any nature arising out of or in conne: ion with: (A) the enforcement
by Landlord or any other party to the OEA of any covenant, term, condition or provision of the
OEA; or (B) a claimed breach by Landlord, Landlord’s Mall Affiliate or any other party of any
covenant, term, condition or provision of the OEA. including any alleged breach by Tenant
arising out of its performance under this Lease (to the tent such performance is not in default
of this Lease or the construction of the Building and/or improvements 4 s provided for herein);
and (iii) diligently enforce, at its sole expense, the covenants, agreements, and obligations of the
OEA.
{c) Whenever, pursuant to the OLA, the consent or approval of Landlord Landlord’s
Mall Affiliate shall be required or requested, and such consent or approval could diminish the
rights or increase the obligations of Tenant thereunder or under this Lease (except to a de
minim extent), or could adversely affect Tenant use or occupancy of the Demised Premises,
or the conduct of Tenant's business therein (exe t to a de minimus extent), such consent or
approval shall not be granted without the prior consent of Tenant, which consent shall not be
unreasonably withhel or dela d
(d) Landlord shall, promptly and timely after r pt, forward to Tenant a copy of any
and all notices and/or demands received by Landlord under or pursuant to the OEA, which relate
to, or would materially and adversely affect, Tenant use or occupancy of the Demised Premises
(including, specifically, the cros access casements with the Mall provided thereunder), the
conduct of Tenant’s business therein. or Tenant's rights pursuant to this Lease.
(00243491.2}
BTS Lease (Orland Colonial), FL)
(e) Landlord and Landlord’s Mall Affiliate shall not (i) amend or modify the OEA
without Tenant’s prior written consent if such amendment or modification would: (A) diminish
the rights or increase the obligations of Tenant thereunder or under this Leas B) adversely
aftect Tenant’s use or occupancy of the Demised Premises (including, specifically, the cross
access easements with the Mall provided thereunder) or (C) adversel: affect the conduct of
Tenant’s business therein, or (ii) terminate the OEA.
In the event Landlord or Landlord Mall Affiliate defaults in the performance of
any of its obligations under the OFA or fails to enforce the obligations of any other obligee under
the OEA, and such default or failure to enforce does materially and adversely affect Tenant’s rights
thereund Fund this Ls se, Tenant’s Work, ‘Tenant’s use or occupancy of the Demised Premises
or the conduct of Tenant’s busines therein (including, specifically, the cross access easements with
the Mall provided thereunder) nant may, but shall not be obligated to, after thirty (30) days
written notice (except in the ¢' nt of emergency, in which case no notice shall be required) cure any
default by Landlord under the QEA and/or nforce, in its own name, at Landlord’s expense, the
obligations of any other obligee under the OEA, subject to the cure rights contained therein
Landlord shall, upon demand, reimburse Tenant for the costs incurred by Tenant in performing any
of Landlord's obligations under the OEA or enforcing the obligations of any obligee under the
OEA, together with interest thereon at the Default Rate, and failing such payment by Landlord.
Tenant may upon ten 10) days’ prior notice to Landlord, offset such costs from the next
succeeding payment or payments of any Rent or Substitute Rent due hereunder, together with
interest thereon at the Default Rate watil such amount is paid in full to Tenant,
ARTICLE I
RM
2.1 Original Term,
The original term of this Lease shall be the period commencing on the Demised Premises
Delivery Date (as defined in Section 3.3(h) hereof) and continuing for ten (10) years from the
Rental Commencement Date (as defined in Section 2.3 hereof) plus a fraction of a year
commencing on the tenth (10") anniversary of the Rental Commencement Date and terminating
on the January 31 following the tenth (10) anniversary of the Rental Commencement Date (the
original term’
2.2 Option to Extend
Tenant shall have the option at its election, to extend the original term of this Lease, for four
(4) consecutive, additional extension period(s) of five (55) years each (individuallly,ys © ‘h period is
referred to as an “Extension Periad(s)”), the first of which Extension Period(s) shall commence
upon the expiration of the original term. Tenant shall exercise an Extension Period(s) by delivering
to Landlord, no later than twelve (12) months prior to the expiration of the then current term or
Extension Period(s), written notice of Tenant’s desire to extend the term of this Lease (the “Notice
Date”). Notwithstanding the foregoing, i Tenant fails to give notice by such date, ‘enant’s time to
give notice of its election s8 all continue until the date which is fifteen (15) days after Landlord
notifies Tenant, in writing, that Tenant has failed to make such election. If Landlord does not give
such notice to Tenant on or before the seventy ifth (75") day before the effective expiration date of
the term of this Lease, the term wil] extend automatically past such expiration date to the d
seventy-fiv (75) days after the earlier of: (a) Landiord’s notice to Tenant of Tenant's failure to
exercise its Extension Period(s) (subject to Tenant’s right within such fifteen (15) day period to
extend the term of this Lease), or (b) Tenant’s notice to Landiord that it will not exe ¢ its option
to extend the term of this Lease. Time shall be of the essence for all time periods set forth in this
Se 2. Prior to the exercise by Tenant of any such elections, the expression “the term of this
Lease” shall mean the original term, after the exercise by Tenant of any such elections to extend the
origi: il term, the expression “the term of this Leas: shall mean the original term plus Extension
Period(s) so exercise: E xcept as otherwise expressly provided in this Lease, all the agreements and
conditions contained in this Lea: hall apply to each Extension Period(s) to which the original term
shall be extended as aforesaid. Tenant shall give notice of the exercise of any such election in the
manner and within the time provided aforesaid, the term of this Lease shall be automatically
extended upon the giving of such notice without the requirement of any additional action on the part
of Landlord or Tenant except that either Landlord or Tenant may request from the other Party
confirmation of any remaining Extension Period(s)
100242491 2)
BTS Lease (Orlando (Fast Colonial), FL)
223 __Rental Commencement Date.
(a) Subject to the provisions of this Lease, the “Rental Commencement Date” shall
be the first Opening Day to occur one hundred twenty (120) days afler the Demised Premises
Delivery Date (as defined in Section 3.3(0)). An “Opening Day” shall be any day between
March 1 and the following June 5, and any day between September 1 and the following
November 1. Within ninety (90) days following the determination of the Rental Commencement
Date, as provided in this section or otherwise in this Lease, Tenant and Landlord shall execute,
acknowledge and deliver, each to the other, a written statement in the form attached hereto as
Exhibit “J” sp ing the actual Rental Commencement Date.
(b) if cither Party shall be unable to obtain a certificate of occupancy (or local
equivalent) for the Demised Premises on or before the Rental Commencement Date (as defined in
Subsection (a) above) because of
@) the condition of the Property or any improvements thereon (and such
condition is not the result of some act or omi n of Tenant or Tenant’s employees,
invitees, agents or contractors) Landlord is required to maintain, or
(ii) any default by Landiord under this Lease and Tenant is unable to open for
business for such reason, then in either such event:
(A) Landiord shall promptly commence to correct such condition and
diligently pursue such correction or cure such default so that such certificate may be
obtained; and
(B) the Rental Commencement Date shall then be the day Tenant opens
for business that is more than thirty (30) days after su
Preview
Filing # 105637293 E-Filed 03/30/2020 05:41:50 PM EXHIBIT A 0099998\010901\9510537v1 FASHION SQUARE ORLANDO, FLORIDA DICK’S SPORTING GOODS, INC. LEASE WITH UP FIELDGATE US INVESTMENTS — EAST COLONIAL, LLC 002435341 Exhibit 1 BTS Lease (Orlando ast Colonial}. FL) LEASE THIS LEASE (“Lease”) dated MAY 1 , 2014 (the “Effective Date”), is entered into by and between UP Fieldgate US Investments - East Colonial, LLC, a Florida limited liability company, as landlord (“Landlord”), and DICK’S SPORTING GOODS, INC., a Delaware corporation, as tenant (“Tenant”) Landlord and Tenant are sometimes hereinafter referred to as the “Party(ies)”. UP Fieldgate US Investments. Fashion Square, LLC, a Florida limited liability company and an affiliate of Landlord, hereby joins in the execution of this lease for the purposes detailed in Section 1.1 below. ARTIC DEMISE PR Ll Demised Prem Landlord, in consideration of the rents hereinafler reserved and agreed to be paid by Tenant, hereby leases to Tenant and Tenant hereby ieases from Landlord the following described premises (the “Demised Premises” situated within the City of Orlando, County of Orange, State of Florida, being located in a shopping center which is adjacent to Fashion Square Mall as shown on Exhibit «A (the “Lease Plan”) and legally described on Exhibit the “Shopping Center”); Fashion Square Mall is legally described on Exhibit “A-2” (the “ fall”). Fashion Square Mall is currently owned by M M M Lakewood, LLLP, a Florida limited liability partner ip (“MMM”) and is entirely ground leased to Landlord’s affiliate, UP Fieldgate US Investments — Fashion Square, LLC, a Florida limited liability company (together with its successors assigns, “Landlord’s Mall Affiliate”) pursuant to that certain’ Shopping Center Ground Lease dated March 13, 1972 (as amended) originally by and between, as “landlord”; The McCrory Holding Company, ‘The First National Bank at Orland as Trustee, et al., predecessor in interest to MMM; and as “tenant” Leonard I Farber, predecessor in interest to Landlord’s Mall Affiliate, a memorandum of which was recorded on March 17, 1972 in by the Circuit Court of Orange County, Florida in OR Book 2194, Page 642. Landlord’s Mall Affiliate has joined in the execution of this lease for the sole purpos of acknowledging its agreement with the provisions in sections 1.4, 1.5 and 1.8 below which are applicable to the Mall and Landlord’s Mall Affiliate. The Demised Premises is a one-story building to be constructed containing a leasable floor area (“LFA”) as further defined in Section 1.2(d) of approximately fifty thousand (50,000) square feet with a minimum frontage of two hundred twenty-two (222) lineal feet located as shown on the Lease Plan (the “Building”). The Demised Premises is demised subject to “Tithe Matter: set forth on Exhibit “B” and with the benefit of the e asements, rights, restrictions, agreements and encumbrances on the Shopping Center including the OEA ( a defined in Section 1.8) All land comprising the Shopping Center is referred to as the “Property” and is legally described on Exhibit “A-1". Landlord represents and warrants to Tenant that the terms and conditions of this Lease are not in conflict with the provisions of the Title Matters and further, that there are no Title Matters which prohibit Tenant from conducting its business in the Demised Premises in accordance with the terms and conditions hereof. All buildings and improvements situated or to be situated on the Property may sometimes be collectively referred to as “Shopping Center Buildings” as depicted on the Lease Plan. The Building shall constitute one of the Shopping Center Buildings. The Tenant shall also have the exclus ve Tight to locate its loading arca, trailer storage area, compactor and dumpster station and electrical transformer and/or generator, if applicable (“Tenant’s Service Area”), all as more particularly identified on the Lease Plan. Tenant shall, subject to compliance with all Legal Requirements (as defined in Section 17.23), also have the right to usc the sidewalks. adjacent to the Demised Premises and to use the Common Areas (as defined below) within the Tenant's Preferred Area as identified on the Lease Plan (‘Tenant’s Preferred Area”) for seasonal and promotional sales and other sales customary to Tenant's business operations. Tenant’s use of the Tenant’s Preferred Area as aforesaid shall be limited to one (1) time cach year for Tenant’s typical company-wide annual sale to be held within the period from June | to August 15. Tenant shall maintain the Tenant’s Preferred Area during the period of such use: keep, protect and insure (subject to Section 11.5 herein) any merchandise or other personal property located therein during such period; keep such area in a clean and attractive condition; and return same to the condition which existed prior thereto upon the conclusion of such use. OUAMSL.1 BYS Lease (Orlando (Eest Colonial), FL.) The Demised Premises shal also include a non-selling storage/office mezzanine arca; this mevvanine square foot area shall not be used or included in the calculation of Rent or any other charges due pursuant to this Lé e. 12 Definitive Areas and Terms. (a) Landlord covenants that no buildings, monument or pylon signs, structures or obstructions (whether temporary or permanent) other than canopies, building appurtenances and signs attached to store buildings, lighting equipment and directional and other signs, permitted by the provisions of this Lease or the OEA, if am may be located in any area of the Shopping Center identified on the Lease Plan as the “No-Build Areas” (b) Landlord covenants that (i) no portion of the Parking Areas (defined in $ ion. below} identified on the Lease Plan as the “Protected Parking Areas” may be modified (including any change in the configuration of the parking stalls, driveways, aisles or curbing, and any change in the loc ion, or reduction in the number of expectant mother parking spaces required by Section 3.1(¢)Gi)_of this Lease) without Tenant’s consent, which consent shall not be unr onably withheld; and (ii) the Parking Areas will always contain the handicap accessible parking spaces required by Section 3.1(c)(iii) of this Lease. (©) If the covenants with respect to Subsection (a) or (b) above are violated, and such violation continues for a period of five (5) business days following written notice from Tenant to Landlord, Tenant shall have the right to elect to deduct, from Rent, Two Thousand Dollars ($2,000) per dar for cach day of such violation, in addition to Tenant right to seek other remedies available at Jaw or in equity and any mount which Tenant may realize thereby shall constitute a partial reimbursement to ‘Tenant for costs incurred and/or sales lost by Tenant in connection with the interference with Tenan’ 5 No-Build Areas and Protected Parking Areas, the exact amount of which would be impracticable or extremely difficult to ascertain (d) The term “LFA” as used in this Lease means the number of gross square feet of leasable floor area (whether occupied or unoccupied) of the Shopping Center Buildings intended for the exclusive use y any tenant, subtenant, a ignee, licensee, concessionaire or other occupant of this Shopping Center (“Occupant”) thereof including me: nines or oth if used for retail sales (provided, in no event shalt Tenant's non-selling storage’office mez; anine area be included in the LFA of the Demised Premises). The LFA of such premises shall be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of sucl premises where it abuts the sidewalk or other Common Areas, and the center line of any wall that such premises shares with an adjoining premises. For purposes of Section 1.5 the term "Occupant" means and includes any tenant, subtenant, assignee, licensee, concessionaire or other occupant of the Restricted Property. ( cept with respect to determining the height of Tenant’s parapet wall or storefront entrance feature, the height of the Building shall extend from the finished floor-slab to the underside of the roof deck. (® On and after the Rental Commencement Date, Landlord co’ ants that the points of ingress and egress to and from the Shopping Center and adjacent right-of-ways identified on the Lease Plan as “Critical Access Ways,” as shown. on the Lease Plan, shall remain ia an open and functioning manner throughout the term of this Lease, subject only to temporary and incidental losures for repair, improvement or maintenance or as required by Legal Requirements; provided, Landlord shall use its commercially reasonable efforts to minimize any interference with the Critical Access Ways during such temporary and incidental closures and, if such work is by Landlord, then Landlord shail further commence and complete such repairs in a diligent and prudent manner. No such work shall materially impair the access to or visibility of the Demis d Premises. Ri ns on Common. re: The areas of the Shopping Center shown on the Lease Plan as Parking Arcas shall at all times be maintained as Parking Areas. The expression “Parking Areas” shall mean all parking spaces, sidewalks, driveways and footways, and includes the areas ident ied on the Lease Plan as Parking Areas plus such other areas as Landiord shall from time to time designate as Parking Areas. The areas in the Shopping Center currently used or proposed to be used for service drives and q00243491.1) BTS Lease (Orlane ( st Colonial), FL) identified on the Lease Plan as the “Service Drive” shall be maintained so that, during the term hereof, there shall be adequate service roads or access ways to and from the Tenant’s Service Arca. Notwithstanding the foregoing, Landlord shall have the right to change or modify such Service Drive provided continuous and equivalent access to and from Tenant’s Service Area is maintained and any such change shall permit a sixty-eight (68) foot tractor trailer to access the Tenant Service Area, ‘Common Areas” means those ar d igned for the common use, convenience and benefit of Landlord, Tenant and all other Occu; ants, whether or not identified on the Lease Plan located on the Property exclusive of Tenant’s Building and any other Shopping Center Buildings designed to be occupied by an Occupant. The Common Areas shall include: the Parking Areas, Tenant’s Service Area, the Service Drive, the entrances and exits of the Shopping Center, idewalk: any landscaped areas and exterior planted areas, retaining walls and other site improvements within the Shopping Center. Landlord agrees that, except for necessary and/or emergency repairs, there will be free and uninterrupted access shown on the Lease Plan and further that Landlord shall take no action nor consent to a third party’s taking any action to materially and adversely affect access as shown on the Lease Plan: (a) for motor vehicles between any and all access streets to the Shopping Center and the Protected Parking Areas; and (b) for pedestrians between the Protected Parking Areas and the main customer entrance of the Demised Premises. The entrances and exits between all adjacent strects and Parking Arcas shall be maintained as shown on the Lease Plan. Landlord agrees that the Parking Arcas within the Shopping Center will always contain at least five (5) parking spaces for so-called standard size American automobiles, and riveways and footways incidental thereto, for each one thousand (1,000) square feet of LFA existing in the Shopping Center from time to time, unless the reduction in the parking is related to an action governed by Article X hereof, in which event the terms of Article X shall govern and control, Landlord reserves the right to alter the Common Areas and to construct any and all improvements including, without limitation, buildings on the Common Areas as it determines and to make changes to any of the Shopping Center Buildings identified on the Lease Plan, including changes in configuration and/or location provided any such changes shall not adversely affect the business operations of Tenant in the Demised Premises and/or the visibility of the Demised Premises: notwithstanding the foregoing, the initial construction of the Shopping Center shall be substantially as shown on the Lease Plan; provided, however, that in all events the parking ratio provided for above shall not be violated, and there shall be no changes to the No Build Arcas or Protected Parking Arcas which arc prohibited by 2a) and (b) except with Tenant’s consent as provided the in (which consent shall not be unreasonably withheld), and the Critical Access Ways shall remain in an open and functioning manner and signalized where required and the Service Drive, if relocated, shall provide satisfactory access to the Tenant’s Service Arca. Restrictions on Use of Shopping Center. Landlord agrees (and Landlord’s Mall Affiliate agree: to the Mall) that during the term of this Lease and as long as any retail sales activity shall be conducted in the Demised Prensises excluding interruptions (a) not exceeding one hundred eighty (180) consecutive days, or (b) due to alterations, restoration, casual aking and/or a Force ‘ajeure Event, which shall be deemed to be the conduct of retail sales activity for purposes of this section, the Shopping Center and the Mal shall not be used for any purpose that are inconsistent with a first-cl shopping center, the OFA. matters set forth in Exhibit I and specifically they shall not be used for: (a) tor any non-retail purposes (repairs, alterations, storage and offices incidental to retailing, and banks and smail loan offic shall be deemed retail); provided that up to but not more than ten percent (10%) of the total leasable floor area of the Mall may be used for educational or training purposes which are compatible with a family oriented retail shopping environment; (b) for any entertainment purposes such as a bowling alley ting rink, bar, night club, discotheque, amusement gallery, cinema, poolroom, health club, massage parlor, sporting event sports or game fac ty or off-track betting club; provided, however, that up to but not more than ten percent (10%) of the total leasable floor area of the Mall may be used for entertainment purposes of the type typically found in regional shopping malls which are compatible with a family oriented retail shopping environment it being agreed that nightclubs, discotheques and bars (other than bars located within restaurants) are not permitted in any event (©) for any establishment which sells or displays pomographic materials (except for the incidental sale of such items within an establishment that primarily sells non-pornographic materials (00243491 }} BTS Lease (Orlando (East Colomal), FL) such as bookstores and those stores which are being operated under the trade name Spencer’ Gifts as of the Effective Date); @ for any establishment which sells or displays used merchandise or second hand goods; or (2) for any restaurant or establishment selling food prepared on prem: tor consumption on or off premises located within five hundred (500) lineal feet of the Demised Premis provided, however, that a restaurant may be operated in the location within the Mall identified on the Lease Plan as “Olive Garden” and a single restaurant shall be permitted on the Res aurant Qutparcel within the Shopping Center, as shown on the Lease Plan as the “Proposed Restaurant”, so long as it meets the following requirements: (a) it occupies less than two thousand five hundred 00) square fo b) the height thereof docs not exceed twent four feet (24°) including architectural elements, (c) if it sells alcoholic beverages it does so only incidentally to the sale of food and it shall not contain a bar or bar area which provides separate bar servi and (d) it is either (i) the fast casual, family-oriented restawrant being operated under the trade name “Noodles” (and the same continues to be operated as such fast sual style restaurant in substantially the same manner as they are being operated as of the Effective Date) or (ii) is a replacement fast casual style restaurant being similarly operated, or (c) is a restaurant, café or coffee shop which operates in a manner such that the majority of its business is conducted by way of drive- through service. Landlord agrees that the Shopping Center shall not be used for any purpose that is not permitted under the Title Matter specifically including the QEA, and that Landlord will enforce the provisions of the Title Matters and the OFA against the parties to the OFA and other Occupants. Reciprocally, subj to the representations by Landlord contained in 4 herein, Tenant agrees that the Demis 4 Premises shall not be used for any purpose in violation of the matters set forth on Exhibit] LS Competition Rent Reduction. @) Landlord warrants and agrees that, during the term of this Lease, it will not, nor will any entity under common control with Landlord, enter into any lease, license agreement or other similar agreement nor consent to or permit any premises in the Shopping Center (other than the Demised Premises) or any land adjacent to, or contiguous (but for roadways or access ways) to, or within three 3) miles of, the Shopping Center which is owned or otherwise controlled by Landlord or a parent, subsidiary or affiliate of Landlord or in which any officer, partner, director or owner of Landlord has any interest (collectively, the “Restricted Property”), or otherwise transfer or allow a possessory interest in the Restricted Property to an Occupant to be used for the sale, rental and/or distribution, cither singly or in any combination of (i) health, fitness and/or exercise equipment; (ii) sporting goods and sporting equipment (including, but not limited to, golf equipment and accessories); (iii) hunting, camping and fishing equipment and accessories; and/or (iv) athletic footwear (“Precluded Use Activity(ies)"). Specifically, without limitation, the Mall is part of the Restricted Property, and Landlord and Landlord's Mall Affiliate hereby agree that the Mali shall not be used for the Precluded Use Activity(ies) (b) Notwithstanding the foregoing Precluded Use Activity(ies) set forth in Subsection (a) above, the retail sale and/or distribution of sporting goods and/or sporting equipment in the lesser of (i) five percent (5%) in the aggregate of any such Occupant’s LFA (which shall include an allocable portion of the aisle space adjacent to such sales floor area of such use) or (ii) one thousand (1,000) square fect in the aggregate of such Occupant’s LFA (which shall include an allocable portion of the aisle space adjacent to such sales floor area of such use) shall not be a violation of the Precluded Use Activity(ies). () If Landiot is in default of the provisions of this Section 1.5 and the Occupant of any such premises shall engage in such Precluded Use Activity(ies) beyond those permitted under (b) above then Tenant shall have the following remedies, said remedies being separate, distinct and cumulative remedies, and the exercise of any one or more of which shall not be deemed to preclude Tenant's rights to exercise any other legal or equitable remedy available, including, but not limited to, an action for injunctive relief: (oo2a3as1.ty BTS Lease (Orlando (ast Colonial), FL) @ to pay to Landlord monthly in respect of each applicable calendar month, in are: not later than the thirtieth (30th) of each such following calendar month in lieu of Rent (as defined in Section 4.1(c)), two percent (2%) of Gross Sales (as defined in Section 6.2), but never more than the Minimum Rent for that month that would have otherwise been payable for such calendar month (‘Substitute Rent” turing the period which extends from the beginning of the first full calendar month following the date on which the Precluded Use Activity(ies) were commenced and continuing until the end of the calendar month in which such Precluded Use Activity(ies) are ceased: and Gi) if Landlord fails to cure such violation within one hundred and eighty (180) days after the Precluded Use Activity(ies) commenced, then Tenant shall have the right to terminate this Lease at anytime prior to the date of discontinuance of the Precluded Use Activity(ies) by giving thirty (30) days’ advance notice to Landlord unless Landlord cures such violation or such Precluded Use Activity(ies) ceases prior to the date Landlord receives Tenant’s termination notice. (d) In addition to the foregoing remedies, ‘Tenant shal iso have the right to recover from Landlord any lost or reduced profits caused by Landlord's breach of this ion_L.S and the cost of Tenant’s Leasehold Improvements (as defined in Section 11.1) and trade fixtures paid for by Tenant if this Lease is terminated and any other rights or remedies available to Tenant at law or in equity, including injunctive relief. Tenant’s rights and Landlord’s obligations under this Section 1.5 shall survive the termination of this Lease. {e) (i) ‘The restrictions in Subsection (a) above shall not apply to existing Occupants (or their assignees) of the Malt under the existing leases set forth in Exhibit M as of the date hereof, provided Landlord shall not modify any such existing lease to permit any such Occupant to use its premises in violation of Subsection (a) Gi) In addition, Landlord shall not exercise any right of discretion or consent it has under an existing lease or OEA to a request of an Occupant to change its use, assign, sub-let or otherwise, where to do so would expand the rights of an Occupant or a party listed on Exhib: if applicable, to be in violation of this Section 1 (iii) Department Stores (as hereafter defined) shall not be subject to the Precluded Use Activities identified above in Section 1.5(a)(i) and (ii) for so long as they are operating as a Department Store and are not operating as a Direct Competitor (as hereafter defined) A “Department Store” shail mean a traditional multi-department store (such as Macy’s, Sears, Filenes etc.) or other fashion department store (such as Nordstrom, Marshall Field etc.) occupying at least eighty thousand (80,000) square fe: et of LF A “Direct Competitor” means an Occupant which is a multi-line spor goods retailer such as Sports Authority or Academy Sports, or a sporting goods specialty superstore such as Cabela’s, REI, or Bass Pro. (® Landlord shall not be in violation of this Section 1.5 unless an Occupant of the Restricted Property operates a use in violation of this provision and either (i) is permitted to do so under the terms of its lease or occupancy agreement; or (ii) such Occupant operates a use in violation of the terms of its | or occupancy agreement and Landlord does not use reasonable efforts to cure such violation promptly and diligently (including the filing of appropriate legal action including secking injunctive relief). Tenant shal so have the right to enforce the restrictions of this Section 5 directly against the Occupant in breach. (g) In the event the Demised Premises is not operated as a sporting goods store for a period of one (1) year for reasons other than fire or casualty, a Force Majeure Event, assignment/subletting or repairs, remodeling and renovation, then Landlord’s obligation with respect to Subsection (a) above shall be of no further force and effect. In the event Tenant or its assignee subsequently re-commences operations as a sporting goods store in the Demised Premises, and provides Landlord written notice thereof, then from and after the date of Tenant’s notice, Subsection (a) shal again be effective and Landlord’s obligations thereunder shall resume; however, Occupants who enge cd in Precluded Use Activity(ies), or who were granted rights to engage in Precluded Use Activities, in the interim period of time when Subsection (a) was not effective pursuant to the this Subsection (g) shall be deemed not subject to the terms and WO24349 L.A} BTS Lease (Orlando (East Colonial), FL) provisions thereof for such Precluded Use Activity(ies), provided that such Precluded Use Activity(ies) are not in violation of said Occupant’s occupancy agreement. 16 Initial Co-Tenancy Requirement {a} ‘The “Initial Co-Tenancy Requirement” shall mean that: (i) two of the following anchor tenants: Macy’s, J . Penney’s and Sears (the, shall cach be open, fully staffed, stocked and operated as a retail business in substantial ly all of their respective premises at the Mall (the three named tenants being collectively, the “Inducement Tenants”); and (ii) at least ty percent (80%) of the remaining LFA of the Mall as shown on Exhibit A, excluding the LFA of all the Inducement Tenants and any Outparcels (as so designated on Exhibit A), shall be open or will simultaneously be open with Tenant, fully staffed, stocked and operated by an Occupant in substantially all of its premises, for the operation of a retail business hy a Required Tenant (as hereinafter defined in § ion 1.7). (b) In the ev nt the Initial Co-Tenaney Requirement is not satisfied s of the Rental Commencement Date (as defined in Section 2.3), ‘Tenant shal have the right, tits sole option, cither to (i) elect to open the Demised Premises for business to the general public, in which event, subject to any other applicable provisions of this Lease, the Rental Commencem at Date shall be determined a: forth in Sec ion 2.3 and Tenant shall be entitled to pay Substitute Rent (as defined in Si ion in lieu Rent, in arrears, no later than the thirtieth (30"") day of the following month until the end of the month in which the Initial Co-Tenancy Requirement is satisfied (any benefit which Tenant may realize thereby shall constitute a reimbursement to Tenant for certain opening expenses incurred by Tenant in connection with this Lease): or (ii) elect to delay opening the Demised Premises for business to the general public, in which event, ihe Rental Commencement Date shall be delayed until the sixtieth (60%) day after the date on which the Initial Co-Tenancy Requirement is satisfied and Tenant receives notice from Landlord setting forth the date that the Initial Co-Tenancy Requirement was satisfied: or if such sixtieth (60") day does not occur during the Opening Day period (as determined by § ction 2.3), then the Rental Commencement Date shall be delayed until the March 1 or September | next following said period (as the case may be). Notwithstanding anything to the contrary contained in this Lease, under no circumstances will Tenant be obligated under this Lease to open for business in the Demised Premises or to pay any Rent to Landlord hereunder tinless and until the Initial Co- Tenancy Requirement as defined in Subsection (a) above has been satisfied. (©) (i) In the event Tenant does not elect to delay its opening and the Initial Co- ‘Tenancy Requirement has not been satisfied within two (2) years following the Rental Commencement Date (the “Ini I Co-Tenancy Requirement Period”), Tenant shall have the right to terminate this Lease upon written notice to Landlord given within sixty (60) days following the expiration of the Initial Co-Tenancy Requirement Period. Termination of this Lease shall be effective on the date set forth in Tenant’s notice of termination, which in no event shall be more than thirty (30) days followi the expiration of such sixty-(60) day period. In the t Tenant fails to provide such written termination notice within the sixty-(60) day period set forth abo Tenant shall be deemed to have waived its right to terminate this Le: as provided he in. If this Lease is terminated hereunder, neither Party shall have any further liability under this Lease except: (A) as set forth in Se ion 17.13 below; (B) all of Tenan third-party costs and expenses incurred in connection with this Le including without limitation, costs associa’ ed with the preparation of the Final Plans (as defined on Exhibi “C-1"), legal costs and the performance of Tenant’s Work (as defined in Section 3.1), if ar and (C) as to any other terms of this Lease which expressly survive termination or expiration. Landlord shall pay and/or reimburse such amount, as the case may be, within fifteen (15) jays following the effective termination of this Lease. The foregoing obligation(s) on behalf of Landlord to pay and‘or reimburse such costs and expenses shall expressly survive the termination of this Lease. {ii) In addition to the foregoing, in the event Tenant clects to delay opening the Demised Premises for busin and the Rental Commencement Date as set forth in Section 1.6(b)(ii) above, and if the Initial Co-Tenancy Requirement has not been satisfied within two (2). years following what would otherwise have been the Rental Commencement Date as defined in Section 2.3 (the “Initial Co-Tenancy Requirement Deadline”), Tenant shall have the right to terminate this Lease upon written notice to ouna3491 ty 6 BISL ¢ {Orlando (Hast Colonia’), FL) Landlord given at any time following the expiration of the Initial Co-Tenancy Requirement Deadline. Termination of this Lease shall be effective on the date set forth in Tenant’s termination notice, which in no event shall be more than thirty (30) days following the date of such notice. If this Lease is terminated hereunder, neither Party shai ave any further liability under this Lease except: (A) as set forth in Section 17.13 below; (B) all of Tenant's third-party costs and expenses incurred in connection with this Lease, including without limitation, costs associated with the preparation of the Final Plans (as defined on Exhibit “C-1"), legal costs and the performance of Tenant’s Work {as defined in Section 3.1), if any; and (C) as to any other terms this Lease which expressly sutvive termination or expiration. Landlord shall pay and/or reimburse such amount, as the case may be, within fifteen (15) days following the effective termination of this Lease. The foregoing obligation(s) on behalf of Landlord to pay and/or reimburse such costs and expenses shall expressly survive the termination of this Lease {d) Beginning on the Landlord’s Demised Premises Work Commencement Date (as hereinafter defined) and updated no less than cvery thirty (30) days thereafier until the Rental Commencement Date, Landlord shall deliver to Tenant a written report with a lease plan describing and depicting the status Requirement, including the of the Initial Co-Tenai construction schedule and the proposed opening dates of the O pants ne sary to meet the initial Co-Tenancy Requirement. Furthermore, if the Initial Co-Tenancy Requirement is not satisfied upon receipt of the initial report, Landlord shall provide the informa ion set forth above on the first day of each succeeding calendar month until the Initial Co-Tenancy Requirement bas been satisfied. Landlord shali not be deemed in default of this provision, however, unless and until Landlord has failed to deliver such written report after ten (10) days’ written notice from ‘Tenant. {e) Landlord acknowledges and agrees that the provisions of this Section 1.6 are material covenants and were instrumental in inducing Tenant to enter into this Lease and that Landlord shall be subject to this Section 1.6 even if Landlord (or an affiliate of Landlord) no longer owns or leases any interest in the Mall and even if Landlord no longer otherwise has any control over the Mali. 17 Ongoing Co-Tenancy Requirement. fa) As used in this Section 1.7. ; the term “Ongoing Co-Tenancy Requirement” shall mean that: (i) at least two of the three Inducement Tenants shall be open, fully staffed, stocked and operated in substantially all of their respective premises, for the operation of a retail business (the “Anchor Tenant Inducement”) and (ii) at least eighty percent (30%) of the remaining LFA, of the Mall as shown on Exhibit A, excluding all of the Inducement Tenants, the Demised Premises and any Outparcels (as so designated on Exhibit_A), shall be open, fully staffed, stocked and operated by an Occupant in substantially all of its premises, for the operation of a retail business by a Required Tenant (the “Shop Space Inducement”). A “Required Tenant” shall mean a: (i) national Occupant operating a minimum of fifty (30) high quality retail stores of the types typically found in first-class regional shopping centers; or (ii) regional Occupant satisfactory to Tenant. (b) If at any time afier the Rental Commencement Date and the satisfaction of the Initial Co-Tenancy Requirement, the Anchor Tenant Inducement component of the Ongoing Co- Tenancy Requirement is not satistied for a period in ex ‘ss of eighteen (18) months, or the Shop Space Inducement component is not satisfied for a period in excess of one hundred and twenty (120) days (either such event, or both, being the “Ongoing Co-Tenancy Violation”), Tenant shall then pay to Landlord monthly, in lieu of Rent, in arrears, no later than the thi eth 30") day of the following month, Substitute Rent (defined in Section 1.5), during the period which extends from the beginning of the first full calendar month following the Ongoing Co-Tenancy Violation and continuing until the end of the calendar month in which both components of the Ongoing Co-Tenancy Requirement are satisfied. In addition to the rights of Tenant to pay Substitute Rent, if an Ongoing Co-Tenancy Violation sha continue for a period in excess of twelve (12) months (meaning cither one component thereof, both components thereof, or a combination thereof), Tenant shall have the right to continue to pay Substitute Rent or, at its election, terminate this Lease by sixty (60) days’ written notice delivered to Landlord anytime thereafter. 1243: O11 BIS Lease (Orlando (East Colonial}, PL} ©) Landlord shall deliver to Tenant, within five (5) days of Tenant’s request, a notice certifying the then current tradename and the LFA of each Occupant of the Shopping Center and Mall. Tenant, or its designated a it, shall have the right, at its own cost and expense, to audit and/or inspect Landlord’s records with respect to the Ongoing Co-Tenancy Requirement. Tenant shall give Landlord not less than fifteen (15) day ” written notice of its intention to conduct any such audit. If such audit discloses a violation of the Ongoing Co-Tenancy Requirement and Tenant elects to pay Substitute Rent for such period of violation in accordance with this section, Landlord shall pay to Tenant the cost of such audit and return such amounts Tenant paid for Rent less the amount of Substitute Rent due during such period due to the Ongoing Co-Tenancy Violation. @ Landlord acknowledges and agrees that the provisions of this Section 1.7 are material covenants and were instrumental in inducing Tenant to enter into this Lease and that Landlord shall be subject to this Section 1.7 even if Landlord (or an affiliate of Landlord) no longer owns or leases iny interest in the Mall and even if Landlord no longer otherwise has any control over the Mall. 18 Operating Agreement (OEA). As used in this Lease, the term “OEA® shall mean that certain Access Easement Agreement among MMM and Landlord (and consented to by all parties with interests in the subj t property superior thereto including, without limitation, Macy’s Florida Stores, LLC). in the form attached hereto as Exhibit F (or such other form as is acceptable to Tenant in its reasonable di ‘etion) and recorded in the Orange County Florida Recorder’s Office. (a) Landlord and Landlord's Mall Affiliate covenant, represent and warrant to Tenant that: (i) the OBA will be in full force and effet not later than the Demised Premises Delivery Date; and (ii) the QEA will be, and shall remain, superior in lien to all mortgages and related liens affecting the Shop; Center and the Mall. Landlord and Tenant cach acknowledge that this Lease is made and sl continue to be subject and subordinate to the OEA, subject to the provisions of this Section 1.8, provided, howev as between Landlord and Tenant, in the event of any conflict between the OEA and this Lease, this Lease shall in all respects control. Any and all consents which may be required under the OBA in connection with the performance of Landlord’s Work or Tenant’s use of the Demised Premises pursuant to this Lease have been, or, prior to the Demised Premises Delivery Date will be, obtained by Landlord at Landlord’s sole cost and expense. (b) Landlord and Landlord’s Mal Affiliate shall, at their sole cost and expense, during the term of this Lease: (i) perform and observe all of the terms, covenants, provisions and conditions of the OEA on its part to be performed and observed; (ii) defend, indemnify and ho harmless Tenant from and ainst any and all claims, demand: auses of action, suits, damages, liabilities and expenses of any nature arising out of or in conne: ion with: (A) the enforcement by Landlord or any other party to the OEA of any covenant, term, condition or provision of the OEA; or (B) a claimed breach by Landlord, Landlord’s Mall Affiliate or any other party of any covenant, term, condition or provision of the OEA. including any alleged breach by Tenant arising out of its performance under this Lease (to the tent such performance is not in default of this Lease or the construction of the Building and/or improvements 4 s provided for herein); and (iii) diligently enforce, at its sole expense, the covenants, agreements, and obligations of the OEA. {c) Whenever, pursuant to the OLA, the consent or approval of Landlord Landlord’s Mall Affiliate shall be required or requested, and such consent or approval could diminish the rights or increase the obligations of Tenant thereunder or under this Lease (except to a de minim extent), or could adversely affect Tenant use or occupancy of the Demised Premises, or the conduct of Tenant's business therein (exe t to a de minimus extent), such consent or approval shall not be granted without the prior consent of Tenant, which consent shall not be unreasonably withhel or dela d (d) Landlord shall, promptly and timely after r pt, forward to Tenant a copy of any and all notices and/or demands received by Landlord under or pursuant to the OEA, which relate to, or would materially and adversely affect, Tenant use or occupancy of the Demised Premises (including, specifically, the cros access casements with the Mall provided thereunder), the conduct of Tenant’s business therein. or Tenant's rights pursuant to this Lease. (00243491.2} BTS Lease (Orland Colonial), FL) (e) Landlord and Landlord’s Mall Affiliate shall not (i) amend or modify the OEA without Tenant’s prior written consent if such amendment or modification would: (A) diminish the rights or increase the obligations of Tenant thereunder or under this Leas B) adversely aftect Tenant’s use or occupancy of the Demised Premises (including, specifically, the cross access easements with the Mall provided thereunder) or (C) adversel: affect the conduct of Tenant’s business therein, or (ii) terminate the OEA. In the event Landlord or Landlord Mall Affiliate defaults in the performance of any of its obligations under the OFA or fails to enforce the obligations of any other obligee under the OEA, and such default or failure to enforce does materially and adversely affect Tenant’s rights thereund Fund this Ls se, Tenant’s Work, ‘Tenant’s use or occupancy of the Demised Premises or the conduct of Tenant’s busines therein (including, specifically, the cross access easements with the Mall provided thereunder) nant may, but shall not be obligated to, after thirty (30) days written notice (except in the ¢' nt of emergency, in which case no notice shall be required) cure any default by Landlord under the QEA and/or nforce, in its own name, at Landlord’s expense, the obligations of any other obligee under the OEA, subject to the cure rights contained therein Landlord shall, upon demand, reimburse Tenant for the costs incurred by Tenant in performing any of Landlord's obligations under the OEA or enforcing the obligations of any obligee under the OEA, together with interest thereon at the Default Rate, and failing such payment by Landlord. Tenant may upon ten 10) days’ prior notice to Landlord, offset such costs from the next succeeding payment or payments of any Rent or Substitute Rent due hereunder, together with interest thereon at the Default Rate watil such amount is paid in full to Tenant, ARTICLE I RM 2.1 Original Term, The original term of this Lease shall be the period commencing on the Demised Premises Delivery Date (as defined in Section 3.3(h) hereof) and continuing for ten (10) years from the Rental Commencement Date (as defined in Section 2.3 hereof) plus a fraction of a year commencing on the tenth (10") anniversary of the Rental Commencement Date and terminating on the January 31 following the tenth (10) anniversary of the Rental Commencement Date (the original term’ 2.2 Option to Extend Tenant shall have the option at its election, to extend the original term of this Lease, for four (4) consecutive, additional extension period(s) of five (55) years each (individuallly,ys © ‘h period is referred to as an “Extension Periad(s)”), the first of which Extension Period(s) shall commence upon the expiration of the original term. Tenant shall exercise an Extension Period(s) by delivering to Landlord, no later than twelve (12) months prior to the expiration of the then current term or Extension Period(s), written notice of Tenant’s desire to extend the term of this Lease (the “Notice Date”). Notwithstanding the foregoing, i Tenant fails to give notice by such date, ‘enant’s time to give notice of its election s8 all continue until the date which is fifteen (15) days after Landlord notifies Tenant, in writing, that Tenant has failed to make such election. If Landlord does not give such notice to Tenant on or before the seventy ifth (75") day before the effective expiration date of the term of this Lease, the term wil] extend automatically past such expiration date to the d seventy-fiv (75) days after the earlier of: (a) Landiord’s notice to Tenant of Tenant's failure to exercise its Extension Period(s) (subject to Tenant’s right within such fifteen (15) day period to extend the term of this Lease), or (b) Tenant’s notice to Landiord that it will not exe ¢ its option to extend the term of this Lease. Time shall be of the essence for all time periods set forth in this Se 2. Prior to the exercise by Tenant of any such elections, the expression “the term of this Lease” shall mean the original term, after the exercise by Tenant of any such elections to extend the origi: il term, the expression “the term of this Leas: shall mean the original term plus Extension Period(s) so exercise: E xcept as otherwise expressly provided in this Lease, all the agreements and conditions contained in this Lea: hall apply to each Extension Period(s) to which the original term shall be extended as aforesaid. Tenant shall give notice of the exercise of any such election in the manner and within the time provided aforesaid, the term of this Lease shall be automatically extended upon the giving of such notice without the requirement of any additional action on the part of Landlord or Tenant except that either Landlord or Tenant may request from the other Party confirmation of any remaining Extension Period(s) 100242491 2) BTS Lease (Orlando (Fast Colonial), FL) 223 __Rental Commencement Date. (a) Subject to the provisions of this Lease, the “Rental Commencement Date” shall be the first Opening Day to occur one hundred twenty (120) days afler the Demised Premises Delivery Date (as defined in Section 3.3(0)). An “Opening Day” shall be any day between March 1 and the following June 5, and any day between September 1 and the following November 1. Within ninety (90) days following the determination of the Rental Commencement Date, as provided in this section or otherwise in this Lease, Tenant and Landlord shall execute, acknowledge and deliver, each to the other, a written statement in the form attached hereto as Exhibit “J” sp ing the actual Rental Commencement Date. (b) if cither Party shall be unable to obtain a certificate of occupancy (or local equivalent) for the Demised Premises on or before the Rental Commencement Date (as defined in Subsection (a) above) because of @) the condition of the Property or any improvements thereon (and such condition is not the result of some act or omi n of Tenant or Tenant’s employees, invitees, agents or contractors) Landlord is required to maintain, or (ii) any default by Landiord under this Lease and Tenant is unable to open for business for such reason, then in either such event: (A) Landiord shall promptly commence to correct such condition and diligently pursue such correction or cure such default so that such certificate may be obtained; and (B) the Rental Commencement Date shall then be the day Tenant opens for business that is more than thirty (30) days after su