Sie sind auf Seite 1von 184

Blt:

18170r[ OB94

TABLE OF CONTENTS

Page
TERMS OF

AGREElf\ ENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2
ARTICLE
1.
DEFINITIONS .2
. . . . .ARTICLE
. . . . . . . . 2.
. . . . . . . DEMISE
. . . . . . . . . OF
. . . . .LAND
..........

AND

TERM OF LEASE ...


16
.. . Section
... . . . ...........

2.

1.Demise

of

Land for Term.16


..........................

Section

2.
2.

. . . . . . . . . . . . . . Section 2.
No Encumbrances. . .16

Sale

of Entire

3.

17 ARTICLE
Interest. .............................

3.

RENTAL. 17
...............................................

Section

3.

1.

Method and

Place

of P~
nt. .......................

17
Section 3.
2.
Base
Rent. ....................................

17

Section 3.

3.

. . . . . . . . . . . . . . . . . . . .Section
.............
Additional Rent. 18

3.

4.
Incentive Rent. 19
..................................

Section

5.
3.

Imposit ons. . . 21Section


................................
3.
6.
Net

Lease. . . . . . . . . . . . . . . . . . .

ARTICLE

6.

t 18170f(
7.

0895

TABLE
Section

OFCONTENTS

continued) Page EXcq>

6.
tionsto
Use

Section

37

Section 7.
Section 7.
7.
6.

IN'

Section

7.4.
Covenants. ........................
Section 7.5.

7.

SlJRANCE . . . . . . . . . . .8.
. . . . Section
. . . . . . . . . . . . " . . . . . 7.
. . . .9.
. . . . . . .Section7.

37
Section
7.

10. Section 7.

11.
Section 7.
12.
Section
Section 7.
13.
14.
7.
ARTICLE8.

1.
Section
7.
2.

All Policies. .............


39 Additional

Section

Coverare. . . . -.: . . . . . . . . . . . . . . . . . . . . . . . . . .

7.

40 No

Insurance Re( Vlirements.37


.........
Treatment of
Provisions

General
Proceeds.38
............................

Applicableto

3.

RqJresentation as to Aitp.
qluu~

y of Coverage. ............

41

Blanket

Umbrella

Policies.41
........................

LiabilitY

Insurance Reql1irements. . . .41


........

or

PrQperty

Insurance Re(

Vlirements. .................... ..
42Other
Insurance

Re(
Vlirements. .......................

44

Construction Insurance Reqp. irement.


l;.
45
. . . . . . . . . . . . . . . . .
AgiT'egates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annual

45

Value.46
..........
DeterminationofReplacement
Subleases. . . . . . . . . . . 46
. . . . . . . . . . . . . . . . .Additional
. . . . . . . . Interests.
. . ..............................46DAMAGE, DESTRUCTION

47

Section 8.1.

Notice

to

47 Section8.
2.
CasualtY Restoration"

Owner. ................................

. . 47
. . . . . . . . . . . . . Sect.ion . . . . . . . . . . . . . .

AND

RESTORATION ...................

9.9. Section
10.ARTICLE
9.

10.

ft
Section

IBI70rr0896 TABLE OF

9.
8.

CONTENTS continued)
Page Intention of Parties. .55
. . . . . . . . . .Intentionally
....................

Section
Omitted .55
. . . . Effect
. . . . . .of
. . . . . . . . . Takini
. . . . . . onthis
....
55 SALE OF THE
Lease. .......................

HOTEL

73 Riihts Limited
s.
.
.
RecoiJli7. ed .
Mortiaeees. .
. . . . . . . . . ..
......
to .

AND SUBLEITIN'

55
Section
.......................................
10.
11.MORTGAGES . . . . .65
Section
1.
Sale

11.1.

of

11.3.Section 11.4. Section 11.


7.Section
5.
Section 11. 6.Section 11.

the

Section11.

Section
2.

11.8.Section11.

Hotel. . . . . .9.
. . . . .. Secti
. on.11.
. . .10.
. . . . Sec.tion 11.
. . " . . . . . . . "
55

Section 11.
12.Section
11.
Section
11. 13.

Section

10.

14. ARTICLE 12.


Riiht
11.
65
66
Mortiaie
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
to
Definitions ....................................
Effect. . . . . . . . . .

2.

of MoI'tiaies. ..............................
67

Sublease

Notice and Rieht to Cure Tenant'


efaults. 67
. . . . . . . .Rec.ogniz.ed .Mortia~
....
s l)
R~
ee or its Desipee as
irements. .............................
Tenant Under the
I...
ease 69
. .Execution
. . . . . . . . . . . . . . . . .
64

. . . . . . . . . . . . . .

ARTICLE

of
Tenant's Documents. .................
New
Application of Proceeds from Insurance or Condemnation Awards. . .73
70
. . . . ". . . . . . . Awearance
at
74

Modification . .74
. . . . . . . . . . . . . . . . . . . . . Recognition by Owner

Condemnation

No

Proce din~

Surrender or

Reco~
of

ized

tt:

18 I

7 Off 0897

TABLE

OF

CONTENTS
continued) Page ARTICLE 13.

FURNISHING .78. . Section


. . . . . . . . . . .13.
.......
to
s
Obl
i
a
ati
o
n
Tenant'
Hotel 78
..................
CONSTRUCTION

HOTEL
1.
Construct

AND

Section
13.
2.
Description
of

...........................
the Hotel. 78

Section

13.
3.

ARTICLE

Shorecrest Improvements. . . . .79


.........
14. MAINTENANCE AND REPAIR . . . . . . . . .79
. . . . . . . . . . . . .Section
. . . . . . . . . . 14. 1.
Maintenance

of

Premises ...........................
79

Section

Removal
14.2.

of

BuildiI\

Eqpipment. ......................
No Obliaation
Section 14. 3.
79
to

R~

air

or

to

Supply Utilities. ..............


80

Section
Waste Disposal.80
.................................
14.
4.

16.

Aaency
5.
14.
Obliptions. .....................
80 Section 14.
Section 15.....................
80 ARTICLE 15.
Alterations...........
. . . . . . . . . .REQUERE~
. . . . . . . . . . . . . . . . 82.....................
s Obliaation
1.Tenant'
Section 15.
to Comply. . . . . .82
..................

1.

2. Definition. . . .83
...............

Manaiement

Section

A~

3.
Owner'

Section

Maintenance
6.

15.
s

Obliaation

to

Comply. . . . . . . . . . . . . . . . . . . . . . . .

83 ARTICLE 16.
ment. ...........................
HOTEL

83

Section 16.

2.Term

of

MANAGER
Aweement. . . . . . . . . . . .
Manaiement

AND

MANAGEMENT
84

AGREEMENT . 83
. . . . . Section
.......

18170n0898

B~b:

TABLE OF CONTENTS

continued)

Page

ARTICLE
DISCHARGE OF
17.
LIENS . . . . . . .93
. . . . . . .Secti.on .17.
.....................
Liens. 93
................................

1.

Creation

Section

. .Section
........................"....
Discha~ e of Liens. 93
17 .2.

of

17.

3.
Authority to
No
Contract

in Name

of

Owner. ........ . " . . . .


. . . . . . . .Section
. . . . . . . . . . . . . . . . . . . . . . . . 18.
.....
94 ARTICLE 18.REPRESENTATIONS . .95
1.

No

95
Brokers. ...................................

2.

No

Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . .

95

ARTICLE 19.NO

OR

DAMAGE, ETC. . . .96


. . . . . . . . . . . .. . .

Section

Liability
19.1.

Other

LIABILITY

Section

18.

FOR

INJURY

ofOwner

or
Tenant.96
........................

Section

2.Owner'
19.

Section
Exculpation.97
.............................

19.

3.
Notice

of

ltijuty or Dam~e. . . . . . . . . . . . . . . . . . . .

98

Section 19.4.

Tenant'

Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
98 Section

ARTICLE 20.
INDEl\

19.

5.
No

Punitive

98...........
e..
Dam~
c;

fNIFICATION .......................................
99Section

20.

1.

18170r089

ff:

TABLE OF CONTENTS

continued)

Page
Section

21.

3.
102 ARTICLE 22.
Cooperation...................................
OWNER' S
SECURITY INTEREST IN BUll.. DING
EQUIPMENT

AND
FF&
. . . . . . . . . . .ARTIC.LE .24.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
E 102....."..."..............
ARTICLE 23.RESERVED] 103

103

TO PERFORM THE OTHER PARTY' S COVENANTS .........


Section24. 1.Riiht

to

. . .Section
. . . . .24.
. . . . ..
Perform Other PartY' s ObUiations. 103

2.

DischaJ: ie of

RIGHT

Liens.103.Section
. . . . . . . . . . . . . . . . . .

24.
3.
Reimbursement for Amounts
Paid

Pursuant to

this Article. ....

104

Section

24.

Waiver. Release
4.

104

ARTICLE

andAssumption

of ObUiations. . . . . . . . . . ..

EVENTS OF DEFAULT, CONDmONAL


25.

Section 25.
..... ..... ..................
L~ ATIONS, RE~DIES, ETC. 104

1.

Enforcement of
Section 25.2.
Definition. 104
...................................

Performance:

Damag. es:

and
3.

Termination. .106
. . .. Section 25.
iration and
E~

106

Section 25.4.Waiver

of

Riihtsof

Termination

of

Lease. ..................

Tenant

. . Section
. . . . . . . . . . . . . ..
and Owner.107
25.

or Termination.108
........... Section 25.

5.
Receipt of Moneys after Notice

Strict
6.

Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1817Of[ 09fD

t~:

TABLE OF CONTENTS
continued)

Page
Section

2.
26.
Consents

and
Approvals.112
..........................
ARTICLE 27.CERTIFICATES
OWNER AND TENANT .....................
BY
114

Section 27.1.

Certificates
of Tenant.114
.... Section
. . . . . . . . . . . . . . . . . . . . . . ..
27.

2.
Certificate of Owner. .115
. . . . . . . . . . . . . . . . . . . . . . . . . . ..
ARTICLE

28.
FINANCIAL REPORTS

AND

116 ARTICLE 29.


RECORDS ........................
TERM .............................
OF

AT END

SURRENDER
120

Section29. 1.Surrender

Section

Delivety of
29;2.

Subleases.

etc.
.........................
120

Section

29.
3.

of Premises. 120
............................

Title

to Itllpro~~
ents. . . . . . . . . . . . . . . . . . . . . . . . . . . ..

120
Section
4.
Title
29.
E
to FF&
Reserve

Account. .....................
121

29.

Cash andAccounts
5.

Section

Section
Receivable. . . . . . . . . . . 121
. . . . . . . . . . ..

29. 6.
Personal

Property.121
...............

29.
Section

7.

ft

18 )

70r 9

I TABLE OF
CONTENTS

continued)
Section

Page

32.

Owner' s Participation
4.

in

ContestProceedings. ............
124

ARTICLE 33.
RESTA'

URANT 124
..........................................
ARTICLE

35.

34.

Section
1.
Section 35. 2.

INVESTIGATIONS,

35.

ETC.

3.

ARTICLE

Section

35.

35.4. Section

126

35.

HAZARDOUS

5.
Section

MATERIALS

6.

35.

Section
7.
Section 35.
Section 35.
ARTICLE 36.
Definitions. . .Use
. . . . . . . . . . . . . . . . .of
...............
Section 35.9.
8.
Ha7, amous
Remedies.
.
Defaults.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
................
Indemnification.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
s
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
C
O
l
W
l
i
a
n
c
e
.
.
.
.
.
.
.
.
.
.
.
.
Materials. . . . . . . . . . . . . . . . . . . . .Notice.sOwner
. . . . '. ... . . . . . .
Owner

R~~

Survival .....................................
nsibilitY ............................
126126

127

128
129

129 129

PURCHASE;

RIGHT

OF

FIRST

OFFER .130
. . . . . . . . . . . . . . . . . . . . . . ..
of
Purchase
1.
36.

Section

Owner' sInterest

129 130 130

inthe

by
Premises

Tenant. . . . . ..

37.10.

Section

Section 37.11.

Section

37.
Section

12. Section

37.

37.
13.

5.

Section 37. 14.Section

Section

Section37.

15.Section 37.16.

18.Section
17.Section 37.

37.

37.
19.

6.

2 TABLE
B)

Section

OF CONTENTS continued)

37.
7.

er.
................
137
Remedi
e
s
Cumulative.
...............
. . . . . . . . . . . ..
137
Performance

Section

at Each Party' s

37.

Sole

8.

and EJtPense. ..."....

Section

137 Recoa:

37.

nized Mortia~ee Charies

9.

and

l~:
18170rr(

PageMer~

Cost

Fees. 137
............".. Successors and Assi&
JlS.

of
138 Recordiniof Lease.138
.............................
Notice

138

37.

Defaults. . . . . . . . . . . . . .". .

b:

18170r0903

TABLE OF CONTENTS

continued)

Page
EXRlBITS

EXHIBIT A

DESCRIPTION OF THE LAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..


143
EXHIKIT 2.1TlTI.

E
MATIERS ........................................
144 EXHIBIT
6.

300-1
145

...
DESCRIPI' ION

OF TERRITORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

EXHIBIT

6.
301)2
DESCRIPI' ION OF TEN

10)

YEAR
4(

TERRITORY . . 146
...............
EXHIKIT 6.

Jl)

BENCHMARK HOTELS .147


. . . . . . . . . .EXHIBIT
. . . . . 6.
. . . . . . . . . . . . . . . . . . ..
4(~)
148 EXHIBIT
OPERATIONAL AND PHYSJCAL STANDARDS ..................

8.

2
ARTICLE 2 OF HOTEL
DEVELOPMENT

AGREEMENT ............
162 EXHIBIT
10.

1(~)(

1)
SOURCES AND USES OF CASH
j)(

165 EXHIBIT14.5 TERMS

CONCESSION
OF

AGREEMENT (

1817Of[ tB}

i~b:

4 AGREEMENT OF I.

7; 7
EASE THIS AGREEMENT OF LEASE, dated as of
this ..
Commencement
the
"
1998
(
Date"),
between
MIAMI
'
AI t
REDEVELOPMENT AG CY,a public body corporate and politic, asOwner, and RDP ROY

day

of

BEACH

AL

HOTEL LIMITED

PALM

PARTNERSHIP,

Florida

limited

as Tenant.

partnership,

In February 1993,the City


RECITALS: A.

Redevelopment and Revitalization Area was

official y

by the adoption
the combined efforts of the
of
Owner, Metropolitan Dade County and the State
City of Miami Beach (the City"),
effort and commitment of Owner and the City
r
e
pr
e
sent
s
the
Plan
of Florida. The Redevelopment
to foster the development of convention quality hotels, ancillary improvements and facilities,
Convention Center ( the "Convention
and necessary linkages to the Miami Beach
Center"). Pursuant to the Redevelopment Plan,Owner has acquired the property commonly known as the Royal
CenterlHistoric Convention

Village

the Shorecrest Hotel

Florida, both

established

Plan. The Redevelopment Plan was the result of

has a street address of 1535 Collins Avenue,Miami Beach,Florida

Palm Hotel which


and

Redevelopment

of which

Owner

which has a street address of 1545 Collins Avenue, Miami Beach,


has agreed to make available for a convention center hotel which will

serve
as

part

The City
of the Redevelopment Plan. B.

and

Owner also have

to make a substantial commitment to provide the African- American community with


an opportunity in the hospitality industry. In connection with that commitment, Owner has agreed to
make available the Royal Palm Hotel and the Shorecrest Hotel and additional fInancial incentives

determined

for

American Persons. C.In furtherance of the Redevelopment


Plan and
African-American community referred to in the
published Request for Proposals Number
the Agency
preceding paragraph,
9596 (the RFP"),
" entitled "City CenterlHistoric Convention Village
45Development Opportunity",
Revitalization Area African- American
Redevelopment and
Hotel
1996, January 3,
1996 and March 5,
dated December 27,
1995 and amended on January 2,
hotel owned by African-

the commitment to the

1996.The RFP
operation of a convention center hotel owned
by African-American Persons. D.On June 5,1996, after a public review process,the
Chairman and Members of Owner selected an Affiliate of Tenant from aD10ng the groups that submit ed
Tenant

development

and

and directed representatives of Owner to negotiate the terms under


or its Afflliate would develop,own and operate the convention center

proposals pursuant to
which

the

bids for

sought

the

(
hotel referredto above the

RFP

as
Hotel"
,

18170r 09OS E.
and Affiliates of Tenant entered into a

Owner

March 5,

dated

provides for

1997, and

Letter

of Intent ( the "


Letter

of Intent"),

approved by the City, which,among other things,

the development, construction, furnishing and

equipping of the

extent provided therein) and Tenant ( acting


Developer") have entered into that certain Hotel Development Agreement ( the
as
Hotel Development Agreement") dated as of the date hereof, pursuant to which Tenant (acting
as Developer") has agreed to construct the Hotel and related Improvements ( as defined below)
F.Owner,

Hotel.

City ( to

the

the

in accordance with the terms

thereof.
hereof, Owner

Improvements

existing

hereof.
the

G.By that certain bill of sale from Owner to Tenant dated as of the date
has conveyed to Tenant Owner' s right, title and interest in and to the
as of the date
a definitive agreement for the lease of
ownership,management and operation of the

H.
Owner and Tenant desire to enter

Land ( as

dermed below) and

the

into

Hotel.TERMS OF

AGREEMENT NOW,TI EREFORE, it is hereby mutually covenanted


between

the

and agreed by and

parties hereto that this Lease is made upon the terms,covenants and conditions hereinafter

set

forth.
ARTICLE
1.DEFINITIONS For all purposes of this Lease the terms defined in
have the following meanings and the other provisions of this

Article 1
Accounts for

Hotels

Eighth Revised

shall
Edition

apply: Accounting

Principles" means

1986 (as in

this Article 1

the Uniform System

effect

on

the

of
Commencement Date),

by this Lease, with such changes as Owner and Tenant shall mutually
this Lease in order to reflect technologies and methodologies

except as otherwise provided


agree are consistent with

not
addressed

in

the Accounting

Principles .Additional

Equity" has the

meaning

provided

3).
Additional
Rent"
in Section lO.1(
c)(
i)(

has the

Reserve Deposit"has the meaning

shall

meaning

provided in

in
provided

3(a).
Section 3.
Ad itonal

"

18170r (

b:'

Affiliates"
"
means, with respect to any Person, any other
intermediaries, controls or is controlled by, or
Person directly or
is under common control with, such Person.For purposes hereof, the
term control"
" (including

9)
6
Affiliate"

that,

the
a

or

indirectly, through one

common
by"
and under
"

controlled

terms

or more

Controlling Interest. Unless the

Lease shall be deemed to

refer

control

with")
shall

otherwise requires,any

context

mean the pos es ion of

reference

to A"ffiliate" in this

to an AffIliate

of Tenant.African-

Person"

American

means ( i)
an individual ( a)who is

a citizen of

the United States of America and b)


whose blood-lines originate with one of the indigenous peoples
(
of Africa or ( ii)
with
regard
to which the Substantial Control ing Interest is held,
a Person
who are citizens of the United States of
directly or indirectly, by one or more individuals ( y)
America

and z)
whose

blood-lines originate

Africa. Agency"

of

opment

with one

of the

means the Miami Beach

Agency. Alterations"

in

Section

the

Assignment" has

in Section

the meaning
the meaning

Rent" has the

Financial Statements" has the

provided in

meaning provided

provided

has

Section 10.

Section 10.

in Section

the

meaning provided

I(a).
I(a). Back
10.

iIi

13(a).
Base Rent"has the
11.

in Section

meaning

27. 1(b).Assignee"

provided in

a)(
ili).
Balance" has
I(

Section

in

(
Annual
28.1 c)
Report"
(
i)

meaning provided

has

Redeve(

has the meaning provided

a).
Annual
Section 14.
6(

indigenous peoples

3.2(
a).
Benchmark Anniversary" has

meaning provided

the meaning

i).
Benchmark Hotels" has the meaning
b)(
provided in Section 6.4(
Building Equipment" means all installations incorporated in,
located at or attached
provided in Section 6.
4(b)(
i).
to and used or usable in the operation of,or in connection
with, the Premises and shall include, but shall not be limited to,
machinery, apparatus, devices, motors, engines, dynamos, compressors, pumps, boilers and burners,
heating, lighting, plumbing, ventilating, air cooling and air conditioning equipment; chutes,
ducts,pipes, tanks, fIttings, conduits and wiring; incinerating equipment; elevators,escalators and

hoists; washroom,toilet

andlavatory plumbing

equipment;

18170rrooo7

lt:
however, any
contractors (

personal property which

except

to the extent any

by Subtenants, licensees, concessionaires or


FF&
E and
foregoing are Affiliates of Tenant),

is owned

of the

Operating Equipment.
Building Index"

has the

meaning provided Section

7.

means a day other than Saturday, Sunday or a


day on which banking institutions in the State of Florida are authorized or obligated by law
Business Day"
12(
b).
or

"business

day"

or executive order to

be closed. Capital

Transaction"

has the

meaning provided

in

a).
Casualty Restoration" has the meaning
I(
10.

in

governing

of

the

Section

body of

a).
Chairman" means
8.2(

the Agency. City" has the

the Recitals to
City Commission of
the City

this

Section

provided

the chairman of the

meaning provided

in

Lease. Commi~oner" means a duly elected or appointed member

of Miami

Beach.Commencement

the preamble of this

Date" has

Lease.Condemnation

the meaning provided in


Restoration" has

the

2(
provided in Section 9.
meaning
b).Condominium" means the
Declaration of Condominium executed pursuant to Chapter 718,
condominium regime created by a

Florida Statutes,

as

amended

from

time to time.Condominium

Association"
means the "Association" under

the meaning

the Declaration

provided in

of Condominium. Connection

the Hotel

Development Agreement.

Fees"
has
Consenting

2(
Party"bas the meaning provided in Section 26.
c).
in
Construction
agreements
executed
any
all
Construction Agreements" means
connection with
Work affecting the Premises and the Improvements, including, without limitation, a Restoration, Alteration
or other Construction Work performed in
connection

with the

Construction Commencement

Date" hasthe meaning provided in the

Hotel

use, maintenance

or operation

of the

Premises.

BEt

any construction work performed under any provision of


the Premises and the Improvements. including. without limitation. the initial

Construction Work"
this Lease

affecting

18170r 0908

construction of the Hotel.

connection with the

use.

means

Restoration. Alteration

maintenance

or

operation

or

other construction work

performed

in

of the Premises.

Controlling Interest" means the ownership of greater than fifty percent (


the voting Equity Interests in a Person or the ownership of greater than fifty
of the votes necessary to elect a majority of the Board of Directors or other

50%)
of
percent ( 50%)
governing body

of
such Person. Convention Center" shall

in Section
meaning provided

the

in

meaning provided

Convention Center Agreement" has


5.
6.

Section 6.5.
Date of Taking"

in Section

Debt"has

have the meaning provided

the meaning

9.1(

has

the

has

c).

provided in Section 11.

Debt Service"
a).
c).

the

2(

meaning provided

in Section 3.
4(

eclarant" or " CoDeclarant" under the Declaration of


Declarant" means any D"
of
condomi
n
i
u
m.
if
and
decl
a
r
a
t
i
o
n
means a
when created, for the Hotel,consisting

Condominium. Declaration of Condominium"


only of

two (
2)
units. and with regard to which the declarant is the Tenant. Default" means
any condition or event,or failure of any condition or event to occur, which constitutes. or would
after the giving of notice and lapse of time (

in accordance

with the

terms of

Notice"has the

constitute.

an

Event

of Default. Default

provided

in

Section 25.1(b).
Delay Date" has the

meaning

provided

in Section

State of

meaningprovided

in

meaning

a).
DEP"
means the
2(
3.
Florida Department

of Environmental

the Dade County

has the

this Lease)

6.
Section

Department of

Protection. DERM"

Environmental Resources

means

Management. Designated

Components"

ft r
Designated

Holder" has the

3170r 0909

meaning provided in Section

Designee"has
10.1(1).

the meaning

provided

in Section

11.12(d).
Development Budget" bas the

in

Development Agreement. Environment" has

the Hotel

meaning

provided

Complaint"has

in Section

the meaning

meaning provided

the

c).
Environmental
35.
1(

provided in Section 35.

5.

Condition" has the meaning provided in Section

Environmental

Environmental Damages" has


d).
1(

the

meaning provided

35.

in

Environmental
e).
35.
1(

Laws"bas the meaning provided

Section

in

Section

35.1(
b).
EPA"means the

Agency of the

United States. Equity

Environmental

Protection

Interest"bas the

10.I(
a).
Event of Default"

meaning provided in Section

has

Event of Default Notice" has the meaning provided in


the meaning provided in Section 25.1.
the
means
the
Term"
Expiration of
expiration of this Lease and the
Section 25.1(j).

Term on

the Fixed

such earlier date

Expiration Date or on

as this

Lease may

Period" bas the meaning provided

be terminated

as

400. Facilities
in Section 6.
FF&E"
means
and Services" has the meaning provided in Section 6.4(a).
cover
i
n
gs,
fixtures
ceiling
all furniture, wall,floor and
and equipment other than Building Equipment
and Operating Equipment) located at or used in connection
all furniture, furnishings, builtwith the Hotel, including ( without limitation): ( a)
draperies,
furniture,
carpeting,
decorative millwork, decorative lighting, doors,
service
serving
in
or
permanent
walls),
cabinets, hardware, partitions ( but not
television receivers and other electronic
and
artwork,
water
features,
and
interior
interior and exterior
artifacts
equipment,interior plantings,
communications equipment; ( d)
graphics; (b)
office furniture; ( c)
all fixtures and specialized hotel
laundries,
dry
of
kitchens,
cleaning facilities, bars
equipment used in the operation
rooms management systems, point- ofaccounti
n
g
restaurants;
(
e)
systems;t)
(
and
telephone and call

provided

sale accounting

equipmentf, ront

herein.

Extension

andback

office

18

ft
70?(
09 I

all other similar items which are used in the


0 recreational equipment; and G)
operation of the Hotel, excluding, however, any personal property which is
owned by Subtenants, licensees, conces ionaires or contractors (except to the extent any of the foregoing
are

E
Affiliates of Tenant). FF&

provided in
by the

City' s

Building

Reserve Account"has the

meaning

a). Final CO"


Section 16. 6(
means

Department for

all

or a

portion

of occupancy issued
a certificate( s)
of the Improvements,

other

of

Fixed Expiration Date" means the date which


than a Temporary CO(s).
hundredth ( 100th) anniversary
the month in which the oneof the

Transfer"

Commencement

Date shall

occur. Foreclosure

is the last day

losure
Transferee" and Forec"

have

the

meaningsprovided

has the

meaning provided

in Section

Equity"has

Instrumenta1ity"

in Section 16. 3(

b).
Funded Deficit" has the

Funded

d)..
Foreign
11.
12(

meaning

the meaning

provided in

provided in

Section

Section

16. 7.

10.
1(

Garage" means the Garage described in


I).
c)(
i)(

the Garage Easement


provided

Agreement.

Garage Development

Agreement" has the

meaning

in Section 21.1.
Garage Easement Agreement" means
that

certain Garage Easement Agreement, dated as of the date


and Tenant. GDP Implicit Price Deflator Index" means the implicit price
for gross domestic product as

hereof, between Owner


deflator

index

S.
Department of Commerce ( 1987 =1(
0),
or
by the U.
Authori
t
y
adjusted.
Aut
h
or
i
t
i
e
s"
means
United
Governmental
thereto, appropriately
or
the
States of
America,the State of Florida, the City,Metropolitan Dade County,
the Agency (in its governmental as opposed to proprietary capacity) and any agency, department, commission,
board, bureau,instrumentality or political subdivision ( including any county or district) of any of the
foregoing, now existing or hereafter created, having jurisdiction over Tenant, or any owner, tenant or other occupant
or over or under the Premises or any portion thereof or any street, road, avenue or sidewalk comprising
of,
a part of,or

published

any successor index

in

any vaultin

orunder

front

of, the Premises,

Premises,
the

or

8170r 091 ~

Ult. J
Hazardous Materials" has the
a).
Hotel" has
1(

in Section

meaning provided

the

in Section

meaning provided

Chain"has the

13.1.Hotel

35.

meaning

provided in

3(
b).
Hotel of
Section 6.

the meaning

provided in

Comparable Quality"

Hotel of
Section 6.3(
a).
meaning provided

Size" has the

has

Comparable

6. 3(a).
Hotel

in Section

Construction
Costs"has

the

has the

meaning provided

Lease. Hotel

Documents"

Hotel Manager"means Town Park


e).
the Hotel, or any

successor,

substitute

or

the date on which the

meaning provided

in the

in the

has the meaning


Hotel

Corporation,

assign

thereof permitted

by

Recitals to

Tennessee

of

Substantial

Hotel Development

provided

Agreement. Hotel

Section

Section

Opening

Lease. Hotel

Date"means
with

opened to the public for business in ac ordance

of the

Hotel in

is thirty 30)days following

accordance with

Operating Profit"has the

in Section

in

in

the terms of this

Hotel is
than the date that

Completion

this

1(
28.
corporation, the manager and operator of

provided

Agreement, but not later

the Management
the date

Hotel Development Agreement. Hotel Development Agreement"

the

meaning

3.4(
c).
Hotel Revenue" has

c).
4(
Immediate Family
3.

Member" has

the

meaning

provided

the

VljA. Imposition" or
a)(
meaning provided in Section 10.I(
5(
Improvement( s)"
Section
3.
b).
means any
Impositions" has the meaning provided in
E,and other improvements and
building (including footings and foundations), Building Equipment, FF&
now
of every kind and description
existing or hereafter erected, constructed,
appurtenances

or placed

upon theLand (

and

whether temporary

any

and

orpermane t),

"

1817Of 09T2 Incentive


Rent"has

the meaning

provided in Section 3.

a).
Incentive Rent Cap" has

the meaning

4(

provided in

Section

Incentive Rent Threshold" has the meaning


a).
3.
4(

in

3.4(
a).
Initial Equity" has

Section

in

Section

federally chartered

meaning

provided

10.I(
1).
Installment
c)(
i)(

Payment"has the
which, at the time it

a Person

the

provided

meaning

provided in Section 36. 1(


0. Institutional

an

Lender"

means

Lender, is a state or

Institutional
becomes
association, credit union, commercial bank or
each case whether acting individually or

savings bank, savings and loan

trust

company
in a
or a foreign banking institution (in
fiduciary or representative ( Such as an agency) capacity); an insurance company organized and existing under the
laws of the United States of America or any state thereof or a foreign insurance company (
in a fiduciary or representative ( such as an agency
in each case whether acting individually or
capacity);an institutional investor such as a publicly held real estate investment trust,an entity
that
qualifies as a REMIC"
"
under the Internal Revenue Code of 1986, as amended, or other
or
i
n
v
e
s
t
m
e
n
t
entity in
( each case whether acting as principal or agent);
public private
a brokerage or investment banking organization ( in each case whether acting individually or in a fiduciary
or representative ( such as an agency) capacity as principal or agent);
an employe s'
fund;
an
institutional
leasing
a
or
r
e
t
i
r
e
ment
pensi
o
n
company;
welfare,benefit,
financing subsidiary or
division of a New York Stock Exchange listed company; any governmental agency or entity
insured by a governmental agency or any combination of Institutional Lenders; provided that each of the above entities
shall qualify

as

an Institutional Lender only

shall (

adjusted
of

if ( at

have assets of
a)

not

the time it becomes an Institutional Lender)it


less than One Hundred Mil ion Dollars ($
100, 000,000)

(
being
for inflation and (b)
not be an Affiliate of Tenant it

the standards

set

this definiton shall be applicable


Mortgage which is

forth in

a loan

secured

by

in a

individually or

fiduciary

to

participants

held

or representative ( such

or

further

agreed

that

none

colenders in

Institutional Lender ( whether acting


as an agency) capacity).The term
by an

Institutional
Lender"

paragraph.

also

includes an Affiliate of

an

Institutional Lender as described in this

Land"means

the

real

and

property

incorporated

descnDed on

Exhibit A

attached hereto

by reference herein.Late Charge Rate" has the meaning provided


and all exhibits
collectively, this Agreement of Lease

Article 4.Lease" means,


and attachments hereto,as any of the same may hereafter be sup lemented, amended,
restated, severed, consolidated, extended, revised and otherwise modified, from time to time, either

in

inaccordancewith

the terms

this
of

Bff"r S
Lease Year"
the last

170r 0913

the

period commencing on the Hotel Opening Date and expiring


12)
months
occurring December which is at least twelve (
succeeding 12the final shorter period,
month period during the Term; and (c)

means ( a)

of the next

day
thereafter; b)
each
if any, ending on the last day of
on

the Term. Letter

development

Intent" means that certain letter of intent with respect to the


dated March 5,1997, executed by the Agency, the
Tenant, and any replacements, substitutions,

of

and operation of the Hotel

City, and Affiliates

of

restatements or amendments

provided

in

thereof. Loews

Hotel Land"has the

Major Alteration"
Section 19.1(
c).

meaning

has

6(
a).
Management Agreement"
the meaning provided in Section 14.
wri
t
ten
agreement
between
and
Manager
to
Hotel
Manager has
means a
Tenant
Hotel
pursuant
which
agreed to manage and operate the Hotel in accordance with the

terms thereof,

and any

Engagement"has

replacements, substitutions,

the meaning

restatements or modifications thereof.

provided in

Section 16.

Management Transfer" has the meaning


a).
Transferee" has

c).
Management
16. 3(

meaning

provided in

of
the

3(

provided in

Section

the

Section 16.3(
c).
Mayor" means the Mayor

the City. Member"means a member


governing

Management

body of the Agency.

of

Mortgage"

has the meaning provided in Section

11.2(
b).
Mortgagee" means the

of a Mortgage. Net Cash

Flow After Debt Service"

the meaning provided

in Section

Award" bas the

Insurance Proceeds"bas the meaning

c).
Net
3.
4(

meaning provided

in
provided

has

Condemnation

Net
in Section 9.1( c).

holder

REf:
Net Sale Proceeds" has the
New Tenant" shall
10.10).

18170r 0914

meaning provided in Section

have the

New Tenant' s
Section 11.
6( b).

provided

in Section

meaning provided

in

Documents" has the

b).
Notice"
11.
6(

has the meaning provided in

Section 26.1.
Notice of Failure

Cure"has the meaning provided in Section 11.


Offer Notice" has the meaning
a).

to

4(

provided in

Section

Operating Deficit" has the


a).
36.
2(
in

meaning

meaning provided

Section

Operating Equipment" means


b).
7(
16.

linens,silverware,
meaning provided

uniforms and

in

all cbinaware,

menus.Operating Expenses" has

glas ware,

the

Section 3.4(
Operational Standards"
c).

4(c).
Original Subordinated Amount"has the meaning provided in
provided in Section 6.
Owner" means the Agency ( or the City if the City shall succeed
Section. 12.1.
to the interest of the Agency hereunder), acting in its proprietary capacity, and any assignee or transferee
of the entire Owner' s Interest in the Premises, from and after the date of the assignment
has

or

the

meaning

transfer

pursuant to which

entire Owner' s Interest in the


Premises was assigned
or transferee. Owner Indemnified Parties"means,
to
collectively, the Agency (and any successor Owner), the City and their respective elected
and appointed officials ( including the Agency' s Chairman and Members
and the City' s Mayor and City Commissioners), directors,
officials, officers, shareholders, members, partners, holders of other ownership interests, employees, successors,
assigns, agents, contractors, subcontractors,
the

such assignee

or transferred

experts, license s, lessees, mortgagees, trustees, partners,

principals,

invitees

and

any of the foregoing.


Owner' s Interest

s interestin

and
theLand

in the

Owner'

Premises" means

Owner'

Affiliates. An "Owner Indemnified Party" shall

mean

18170r 09IS Permit ed

ft:
the meaning

Operator"has

Permitted Transfer" has


d).

provided in

Section 16.

the meaning

provided in

3(
Section

an individual, corporation, partnership, joint


venture, limited liability company, limited liability partnership,estate,trust, unincorporated association
or other entity; any Federal, state, county or municipal government or any
bureau,department, political subdivision or agency thereof; and any fiduciary acting in such capacity on behalf of
any
c).
Person" means
16. 3(

foregoing. Physical

of the
in Section

Standards" has

the meaning

provided

c).
4(
Plans and Specifcations" bas the meaning given to such
6.

term
in

and the

the Land

meaning provided
between

Tenant

and

Owner

and/

hereto and

1934, as

Purchase Price" has

Uses" has

the

Project Agreements" means all of the agreements


Section 6.2(
a).

the City listed

is required to

Act of

Improvements. Prohibited

in

or

c)
attached

that

Development Agreement. ...Premises" means, collectively,

Hotel

the

on Exhibit

incorporated by reference

comply

2S.
1(

herein. Public Company" means

with the

reporting

requirements

amended, or any successor


the

meaning provided

QuaIity Deficiency" has the


1(
d).

in Section

meaning provided

has

the meaning

provided in

c).
Quality
in

k).
6.4(

Section

RaterQuaIifications"

Standard Anniversary"

in Section

in
meaning

has

e).
QuaIity
6.
4(

Standard"

Section 6. 4(

has the

Rater"has
c).
6.
4(

the
has

Exchange

36.

QuaIity Review"
Section 6.4(
d).

the meaning provided

the

Person

Securities

statute.

d).
4(
QuaIity Report"has the
Section 6.

provided in

under

meaning provided

the

meaning

provided in

Section

Uft: , 8

Recognized Accounting Firm" meansErnst Y


70rr09 6
,
&
ounglKenneth
&
KPMG Peat
Leventhal; Coopers &Lybrand; Arthur Andersen; Price Waterhouse; Deloitte Touche;
Marwick;
Pannell, Kerr &Foster; or any successor entity of any of the foregoing or any other
certified
national
public accountants mutually acceptable to Tenant

and Owner.

Recognized Mortgage"

has the meaning provided

c).
Recognized Mortgagee"
Section 11.2(

means

in

the holder of
permit ed by
Section 11.
Tenant is an Affiliate
assigned to such Affiliate in

a Recognized Mortgage; provided, however, that,except to the


extent
2(
a Recognized Mortgagee may not be an Affiliate of Tenant (
c),
except if

has caused the Lease


of the

of a Recognized Mortgagee that

lieu

of foreclosure

to be

Recognized Mortgage of such Recognized Mortgagee).Redevelopment Plan"means that


certain plan addressing the rehabilitation, conservation and redevelopment of that certain
City CenterlHistoric Convention Village Redevelopment and Revitalization Area described therein, of which the Land forms a
part, as the
same was adopted in February of 1993 by the Agency and the City
Commissioners of Dade County,
and approved by the Board of County
Florida
in March, 1993,and expiring on March 31, 2023. As used herein, except in the
Recitals,references to the "

Redevelopment

Plan" shall not

include any

provided

in Section

Section

meaning

Release" has
Section 11.5(
a).

the

1(
g).
Remediation Percentage" has the meaning
in Section 35.
Rental" means Base Rent, Additional Rent,Incentive Rent,Impositions, and any
4(
j).
6.

meaning
provided

Date"has the

in

amendments

the meaning provided in

thereof.Refmancing Times" has


11.13(a).
Reinstatement

extensions or

provided

pursuantto any of

other sums, costs or expenses which Tenant is obligated,

the provisions
or to
Replacement
Section

of this

pay into

Value" has

Lease,to

E Reserve
the FF&

Owner

Account.

the meaning provided in


Requesting Party"has

12(a).
7.

Section

26. 2(
c).
Requirements" has

pay to

meaning
the

the

meaning provided

in

Bfb:
70rr0917

Restriction" has

18

the meaning

provided in

Section

6.
3(
a).
Restaurant" has the meaning

Restaurant

provided

in

meaning

provided

or

Article 33.Restaurant
in

Agreement" has the

Article 33.
Restaurant Operator" means

the

operator of the

any

substitute

therefor pursuant

to Article.33.RFP" has

the meaning provided in the

Recitals. Right

the meaning provided in Section


Extension" has
the Hotel Revenue as

is

of First

Offer Transaction"

has

36.2(a).
Roadway

meaning provided in Section 21.2(


b).
Rooms Revenue" means such part
the
from

the

derived

sale or rental of rooms, suites or

other sleeping

accommodations. Royal

of

Palm Portion

of the
Purchase

Price"has the meaning provided in Section

RP Improvements" has
36.1(d)
fli).

Section

the

meaning provided

2.Sale of the
13.

in

Hotel" has

the meaning provided in Section 10. 1(a).


Shorecrest

Improvements"

has the

meaning provided

in Section
Price" has the

13.2.Shorecrest

meaning provided

Portion

in Section

Significant Alteration" has


iv).
d)(

Section

of the
36.

Purchase

1(

the meaning provided

Sublease" has
14.6(a).

in

the meaning provided

in

Section
Subordinated Amount" has the meaning provided in Section
a).
10.
I(
has the meaning provided in the Hotel Development Agreement. Substantial

Substantial Completion"
12.1(
b).

Control ing Interest"means

the ownership

greater
of

t: ,B , 7Ofro918
of the votes necessary to elect
such Person.

Substantially

majority

of the Board of Directors

All of the Premises" has the

c).
Subtenant" has
1(

the

or

meaning provided

meaning provided

in

other

governing body

in Section

of

9.

Section

Temporary CO"
I(
a).
means a temporary
10.
time,
by
to
issued the City's
portion

same may be amended from time

certificate

of

Building

Department for

as the
all or a
occupancy,

of

the Improvements. Tenant" meansRDP and any assignee, transferee or subtenant of the
entire Tenant' s Interest in the Premises that is permitted under this Lease from and after the date

of the permitted assignment, transfer or sublease pursuant to which die entire Tenant' s Interest
the Premises was assigned, transfer ed or sublet to such assignee,
transferee or

subtenant. Tenant

Document" has the meaning

in

provided

b).
Tenant Indemnified Parties" means Tenant
in Section 27. 1(

directors, officers, shareholders, employees, successors, assigns, subtenants,


agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, joint venturers, members, holders of
other ownership interests, partners of a partnership
constituting a partner of Tenant,

and

its

trustees,
partners, principals, invitees and Affiliates. Tenant'

this Lease and Tenant's ownership

Interest

in

the Premises" means Tenant' s interest

in

of the

Term" means the term of years


provided in Section 29.3.
commencing on the Commencement Date and,subject to
earlier termination as provided hereunder, expiring at

Improvements

as

11:59

p.m.
on the Fixed

Date.Territory" has
Threat of
Section

the meaning

Release" has

provided in

the meaning

provided

3( a).
provided in Section 6.

the meaning

provided in

3S.1(
h).
Title Matters" has

meaning

1.n
Section 2.
provided

in

to
inability

obtain

the

Transfer"

has

Section 10. 1(
a).
Transferee" has the meaning

Unavoidable
a).
in Section 10.I(
Delays" means

slowdowns, lockouts,acts of God,

Expiration

delays due

to

strikes,

817fJr{)
919 catastrophic weather

court order which

(
resulting frOm
a delay unless
present
or
party
Unavoidable Delay,
former
employees, officers, members, partners or shareholders of such alleging party or Affiliates ( or present
or former employees, officers, partners, members or shareholders of such Affiliates) of such
alleging party), the application of any Requirement, or another cause beyond such party' s control
or which, if susceptible to control by such party, shall be beyond the reasonable control of
such party.Such party shall use reasonable good faith efforts to notify the other party not later
than
twenty (20)days after such party knows of the occurrence of an Unavoidable
Delay; provided, however, that either party' s failure to notify the other of the occurrence of an
event constituting an Unavoidable Delay shall not alter,detract from or negate its character as an
Unavoidable Delay or otherwise result in the loss of any benefit or right granted to the delayed party under
this Lease. In no event shall (i)
any party' s.
financial condition or inability to fund or obtain
funding or fmancing constitute an "Unavoidable Delay" (except for an Instiutional Lender' s
inability to fund,which inability is not caused by Tenant)with respect to such party and (ll)
any
default under this Lease or any of the
delay arising from a party' s o
r its Affiliate' s)
(
Unavoidable Delay"with respect to such party's obligations hereunder.
Project Agreements constitute an "
The times for performance set forth in this Lease (other than for monetary obligations of a party)
shall be extended to the extent performance is delayed by Unavoidable Delay, except
as otherwise expressly set forth in

disputes

between

conditions, a

or among the

this

Lease. Weights" has

alleging

causes

an

the

meaning provided

in

Section
ARTICLE 2.
4(
c).
DEMISE OF
6.
AND TERM OF LEASE Section

LAND

2.
1.
Demise of Land for Tenn. Owner does hereby demise

and lease to Tenant,

lease and take from Owner, the Land,together with


IS"
subject to a)
(
the terms and conditions of this
"
rights,privileges and hereditaments thereto, AS

and Tenant does hereby


all

the ap urtenances,

(
T"
itle Matters")
Exhibit 2.1 the
attached hereto and incorporated by reference herein,to have and to hold unto Tenant, its successors
and assigns for a term commencing on the Commencement Date and expiring on the Fixed

Lease and (

b)the matters

set forth in

Expiration
Date,

unless soonerterminated

No Encumhrance. Cl.Owner will


terms hereof. Section 2.2.
not permit or suffer any encumbrance, mortgage, pledge or hypothecation of Owner' s Interest in the
Premises except with respect to those matters s(uch as utility easements and
nonmonetary reciprocal easement agreements) reasonably approved by Tenant and which do not adversely affect
such mortgage, pledge,encumbrance
the operation or development of the Hotel. Any
pursuant to the

orhypothecation in violation of

Section
this

1817OfC0920
Owner shall have the absolute right to pledge its interest in the Rental payable
hereunder so long as such pledge does not include a pledge of Owner' s Interest in the Premises
other than the Rental payable hereunder), and the pledgee shall have no rights under this Lease

foregoing.

right to receive payments of Rental. Any pledge of Rental permitted hereunder


shall not create any rights in the pledgee thereunder to enforce any of the provisions of this Lease.
15)days after
Owner shall deliver to Tenant and any Recognized Mortgagee, within fifteen (
the effective date thereof, a true and correct copy of any pledge instrument permitted

other than the

Sale
Section 2.3.

hereunder.

of Entire Interest. Owner shall not sell,transfer, conveyor assign Owner' s Interest in the
Premises, and the holder of any Equity Interest in Owner shall not sell, convey, transfer or
assign such Equity Interest, except for a sale, transfer,conveyance or assignment of the entire Owner'
s Interest in the Premises or the entire Equity Interest. as the case may be,subject to Tenant'
rights

under

Sections
36.

1 and 36.2.ARTICLE

Method and Place of Payment. Except as otherwise


RENTAL Section 3.
1.
3.
herein, all Rental shall be paid without notice or demand.All Rental
specifically provided
contrary) shall
payable to Owner ( except Impositions, if the Requirements governing such payment are to the
S.
or state chartered bank. in currency
be paid by good checks (payable upon presentment) drawn on a U.
be payable
of the United States of America. Rental that is payable to Owner (other than Impositions) shall
shall
as
place
Owner direct
at the address of Owner set forth herein or at such other
the location
by notice to Tenant. Impositions shall be payable in the form and at
parties
hereto
such.It is acknowledged by the
. of
provided by Requirements governing the payment
E Reserve
that the FF&

Account payments.

which are included in

the

definition of Rental. are not

payment of

in

Base Rent.
Base Rent. a)
2.
occupancy of the Premises. Section 3.
Base Rent")
(
Tenant shall
pay Owner annual base rent for each Lease Year the
220, 000) commencing on
during the Term in the amount of Two Hundred Twenty Thousand Dollars
the

use and

the
of i)
( the Hotel Opening Date and ( ii)
the earlier to occur
Delay
" Date").
Notwithstanding
( months after the Construction Commencement Date the
(
date which is twenty- four 24)
to
occur
prior the Delay Date
Tenant is unable to cause the Hotel Opening Date to
the foregoing.

if

as
the Base

Rent

of
a result of an Unavoidable Delay, Tenant shall be required to pay only fifty percent ( 50%)
set forth above from and after the Delay Date for a

period equal

to the period of such Unavoidable Delay; provided, however, in

the full amountof


UnavoidableDelay),

the Base

all cases n(otwithstanding

any

f~: 18
the earlier to

occur

of the Hotel

Opening

after the Construction Commencement

I7Dr0CJ92 I

Date and the date which is

42)
months
forty-two (
Hundred Twenty

Date. The initial Base Rent of Two

Thousand
Dollars ($220, 000)
shall be increased at the beginning
of the
tenth ( 10th),
fifteenth ( 15th) and twentieth (20th) years from the Hotel Opening Date in the same proportion
as the percentage increase in the GDP Implicit Price Deflator Index from the Hotel Opening Date, or

in the event of increases


date

of

the increase.

after the tenth (10th) year, from the date of the prior increase, to the
In no event shall Base Rent during an escalation period be less than

the Base Rent during


the

b)Pl\YMent

of Base Rent. Base

Rent

shall

be paid in monthly
installments
of the then applicable annual Base Rent and shall be paid in
advance, commencing on the date
provided in Section 3.2(
a)and on the first day of
each and every calendar month thereafter during the Term. All Base Rent which is due for any period of
less than a full month or a full calendar
priorperiod.
equal to one- twelfth

shall be

year

appomoned. Section

ap ropriately

Owner annual

3.
3.
Additional Rent. Tenant shall pay
Additional Rent.a)

additional rent

for each Lease Year (the "Additional Rent")during the Term in


amount of Two Hundred Seventy Thousand Dollars ($ 270, 000) commencing on the earlier to occur
( the Delay Date.Notwithstanding the foregoing, if
of i)
( the Hotel Opening Date and ii)
Tenant is unable to cause the Hotel Opening Date to occur prior to the Delay Date as a result
Tenant shall be required to pay only fifty percent ( 50%)
of the Additional
of an Unavoidable Delay,
Rent set forth above from and after the Delay Date for a period equal to the
period of such Unavoidable Delay; provided, however, in all cases notwithstanding any Unavoidable Delay),
the full amount of the Additional Rent shall be payable by Tenant commencing on the earlier to occur
Hotel Opening Date and the date which is fortytwo (
of the
Date.The initial Additional Rent of Two Hundred
42)months after the Construction Commencement
the

Seventy

Thousand

15th)
the percentage
of increases

be increased at the beginning of the tenth (10th),fifteenth (


years from the Hotel Operiing Date in the same proportion as
twentieth ( 20th)

Dollars ($ 270, 000)shall


and

in the GDP Implicit Price Deflator Index from the Hotel Opening Date, or in the event
after the tenth (10th) year, from the date of the prior increase, to the date
increase

of the increase. In no event

shall Additional Rent during

an
escalation period be less than the Additional Rent during the prior period.
Payment of Additional Rent. Additional Rent shall be paid in monthly installments equal to one- twelfth
b)
and shall be paid in advance, commencing on the date
of the then applicable annual Additional Rent
and on the first day of each and every calendar
3(
a)
provided in Section 3.
month thereafter during the Term.All Additional Rent which is due for any period

of lessthan a full

or
month

Bf~:

1817QrlU922

4.
3.

Section

payOwner an1ll1a1

Rent.a)
Tenant shall
Rent") during the Term in an amount
Incentive

equal

incentive rent for each Lease Year (the " Incentive


to

20%)
of that amount of

twenty percent (

annual Hotel Revenue that exceeds Seventeen Million Nine Hundred Thousand
Dollars ($ 17,
900,000) the "Incentive Rent Threshold")for

the

Hotel

such

Lease Year

commencing

on

Opening Date; provided, however, the Incentive Rent shall not exceed

(
"Incentive Rent Cap")
per Lease Year;
200, 000)the
provided further, however, for the initial and final Lease Years, the Incentive Rent Threshold and the
Incentive Rent Cap shall be prorated according to the actual number of days in such Lease Year.

Hundred Thousand

Two

Dollars

Except as provided in the previous sentence, if the

Lease Year

Incentive Rent

produces

an amount

for that particular Lease

that

exceeds

calculation of Incentive Rent in any particular


the applicable Incentive Rent Cap, the excess

Year shall not be carried forward for the calculation of Incentive

Rent
due in any future Lease 0 Year.The Incentive Rent Threshold and the Incentive Rent
the beginning of the tenth (10th),fifteenth (15th)and
Cap sball each be increased at

the Hotel Opening Date in the same proportion as the percentage increase
in the GDP Implicit Price Deflator Index from the Hotel Opening Date,or in the event of increases after
the tenth ( 10th) year, from the date of the prior increase, to the date of the increase.
In no event sball ncentive Rent during an escalation period be less than

twentieth (20th) years

from

Payment of Incentive Rent. Tenant shall pay


Incentive Rent during the prior period. b)
( 0)
the full amount of Incentive Rent due, if any,
in annual instal ments, in arrears, within sixty 6
the
Year,
preceding
Lease
Year.
days after the end of each Lease
for
The obligation
to pay Incentive Rent sball survive Expiration of the Term as to any Incentive Rent if
( any) which
accrued prior to

the

the

Expiration of

Debt Service"means
Article 28.
c)Certain Definitions. i)
all payments in respect of principal and interest on Debt (including, without limitation,the
net cost to Tenant of interest rate protection agreements and arrangements, and any and all fees paid

the

Term,subject

to

admini~
to the lender( s),
trative

Hotel Operating

fees and charges,


Profit" means Hotel Revenue

extension

ii) "
fees, and the like).

Expenses on an annual basis. ill)Hotel


"
operati
o
n
of
the
cash
or
in
kind)
whet
h
er
in
Revenue"means, without duplication, total revenue of any kind
from
the Hotel and all other portions of the Premises from and after the Hotel Opening
after

deduction of

Operating

Date as determined under the Accounting Principles and sball include, without limitation, all income of every kind (
whether in cash or in kind) and all gross proceeds of sales of any kind w(hether in
cash oron credit or otherwise)

resulting

from

"

18170rlD923
operation of the Hotel, and all other portions of the Premises, and all of the facilities therein and
goods and services provided thereby, including, without limitation, all income and proceeds from
the rental of rooms, food and beverage sales, telephone revenues, parking revenues received by
Tenant from or with respect to parking facilities located on the Premises, the Garage or any other
parking facility or from valet or other parking services provided to Hotel guests and other patrons
of the Hotel, leasing, brokerage and management fees and commissions, or other compensation,
derived by Tenant or any Affiliate of Tenant under any leasing agreement, management
retail
agreement, master lease or similar agreement regarding the leasing or management of any
with the owner of the Garage, all revenues
space entered into by Tenant or any Affiliate of Tenant
derived by Tenant or any Affiliate of Tenant from the operation of any concession agreements
14.5),
including, without limitation, the concession agreement described in Section
and proceeds received from
all
and
commissions,
income
vending
gross
income
any
Restaurant Operator, tenants, lessees,licensees, concessionaires and other persons occupying space at the Hotel
and or rendering services to Hotel guests or other patrons of the Hotel ( but not including
the gross receipts of such tenants, lessees,licensees, concessionaires and other persons),
after
interest income except as expressly excluded below) and the proceeds ( deducting all
necessary expenses incurred in the adjustment or collection thereot) of business interruption
insurance actually received by Tenant which replace lost revenues with respect to the operation of the Hotel
or any other portion of the Premises. The followmg shall, however,be excluded from
Hotel Revenue: 1)
Federal,state and municipal excise, sales, resort, use,and
other taxes collected from patrons or guests as a part of or based upon the sales price of
any goods Of services, including with limitation, gross receipts, room,
bed,

admission, cabaret,

or similar taxes;
Allowances, rebates and refunds not included in
Any gratuities collected; 3)
2)
Hotel

Revenue in

accordance

with

proceeds

of

the Accounting

Principles; 4)The

any financing or

refinancing;5)Interest on

E Reserve
funds in the FF&

Proceeds from the sale


Account; 6)

of any Building Equipment or FF&E;


anything to

Proceeds from the Sale of the Hotel. Notwithstanding


and 7)
and 6)
(
above shall be
contrary contained herein, the funds described in clauses 5)
the
deposited into the FF&E Reserve Account upon receipt thereof, and such deposit shall be in addition

to, and

the
not inlieu of,

otherwise
deposits

17Qrc{)

Bl~: I B

4 iv)
Net
"Cash Flow After

92

Profit after deduction of Debt

Service and receipt

Debt

Service" means Hotel Operating

of

Operating Expenses"
" means, without duplication, all costs
Deficit.v)
and expenses incurred in owning,maintaining, conducting and operating the Hotel and all other portions
of the Premises, other than Debt Service and any other payments of principal or interest ( whether
or not permitted hereunder ( and this reference thereto not constituting consent or
approval thereot)),
Rental,depreciation, amortization and the original costs of constructing and furnishing
Hotel
pursuant
to
the
the Hotel Development Agreement. Operating Expenses shall
include, without limitation, all operating costs; all wages and benefits and payroll taxes; the cost of
all food,beverages,Operating Equipment and other goods, supplies, utilities and services; all
repairs and maintenance; all professional fees and expenses; all costs of advertising,
marketing and promotion; all credit card discounts; all costs incurred by Tenant relating to parking
facilities and services (including, but not limited to,
payments under the Garage Easement Agreement);
all costs incurred by Tenant or any Affiliate of Tenant under any leasing
agreement, management agreement, master lease or other similar agreement regarding the leasing or management
of the Retail Space entered into by Tenant or any AffIliate of Tenant with the owner of the
Garage; all costs incurred by Tenant or any Affiliate of Tenant in connection with the operation
of any concession agreements ( including, without limitation, the concession agreement
5);
all Hotel Manager fees and payments to the
described
in Section 14.
extent
all capital additions and improvements ( including,
permitted under Article 16;
E,
without limitation, expenditures for Building Equipment and FF&
other than such expenditures funded through
no
deduction
shall be permitted for Alterations which
FF&
Reserve
Account)
except
E
that
the
Funded

require the consent of Owner (unless

under this Lease

deemed to

such

obtained);all insurance costs ( including

be
equipment leases;all

consent has been obtained or

is

self- insured risks

and
property and other
taxes, assessments, governmental charges and other Impositions (other than income taxes, unless imposed in lieu of
any of the foregoing taxes, assessments, charges or Impositions); all payments into the
FF&
E Reserve Account i(ncluding without limitation, any Additional Reserve Deposit);
and annual reimbursement of Connection Fees, together with interest thereon, as provided in
the Hotel Development Agreement. Any Operating Expense payable to an Affiliate of Tenant or Hotel
Manager shall be deemed an Operating Expense only to the extent of the fair market value of
the goods or services supplied by such Affiliate. The immediately preceding sentence shall
Agreement
not apply, however, to amounts payable under the Hotel Management
deductibles); all payments under

in

accordance
Article 16

with

POsitions. From

real estate, personal

and after

the

hereunder.

Commencement

Obli~ation to Pay III\


Impositions. a)

Section 3.5.
Date, Tenant

shall

payor

cause to

all Impositions that


c),
in Section 3.5(
levied, confirmed, imposed upon, or charged to Owner or Tenant with
any

adjoining

vault, passageway
the

or space in,over

or

Premises, or ill)
any
(

FF&E,
Building Equipment or

facility
other

under any

otherap urtenances

of

paid, in the manner provided


any time thereafter are assessed,
be

at

respect to i)
(
( the Premises, or il)
or street in front of or
(
any personal property,
the Premises, or iv)
sidewalk

18Irorm25

m:
operation
interest

or

Premises,

or ( v) any document to which Tenant is a party


the Premises of, by or to Tenant, or ( vi) the
in
estate

thereof,
or (vii)

creating
use

or

transferring

an

and occupancy of the

this transaction.

Definition.

b)

Imposition" or " Impositions" means the following imposed by a Governmental


Authority or the Condominium Association, if any, or any other governing body of any other
condominium regime, if any, comprising any portion of the Premises:
real property taxes and general and special assessments ( including, without
limitation, any special assessments for business improvements or imposed by any special
i)

assessment

district);
ii)

personal property

iii)

sales taxes

iv)

real property taxes and


assessments, if any, and

on

Tenant under

taxes;

Rental;

general and special assessments, condominium


charges and other charges payable by Owner or
any condominium regime, if any, comprising any portion of

the Premises;

v)

water, water meter

vi)

excises;

vii)

levies;

viii)

license and

any other
taxes and charges,

ix)

assessments or

unforeseen,

now or

street and

foregoing,

and

charges;

permit fees;
governmental levies of general application,
general and special, ordinary and extraordinary,

fees,

rents,

foreseen and

charges of general application with respect to police and fire


highway maintenance, lighting, sanitation and water supply; and
service

any fines, penalties and other similar governmental charges


together with any interest or costs with respect to the foregoing.

xi)

the

sewer rents, rates

hereafter enacted of any kind whatsoever;

x)

protection,

and

CMB\ GLEASE.EX2(
A:\JNM\

2)\
EXECUTION.

applicable

to

8[

70'ID926 c)

181'

the
provisions of Section 32.
from and after the Commencement Date,Tenant shall pay each Imposition or instal ment
2,
thereof not later than the date the same may be paid without interest or penalty ( which
Payment

of

Impositions.

i)
Subject

to

date of delinquency). However, if by law of the applicable Governmental Authority


any Impositon may at the taxpayer' s option be paid in installments ( whether or not interest
unpaid balance of such Imposition), Tenant may exercise the option to
shall accrue on the
pay the Imposition in such instal ments and shall be responsible for the payment of such
is

the

with interest, if any.ii)


If Tenant twice

instalments

fails

within

any thirty-six (

of an Imposition (or installment thereot) on or before the


Tenant
penalty,
shall,
at Owner' s request,
the
above,pay all Impositions or installments thereof thereafter payable
and notwithstanding paragraph ( i)
by
Tenant not later than twenty ( 20)days before the date of delinquency. However, if

month
36)

period

to

make

any

same may be paid

date

payment

without

in this paragraph ( ii)


for
Tenant thereafter makes all such payments as required
thirty-six 36)
( consecutive months without failure, the Imposition payment date in paragraph ( i)
above shall again become applicable, unless and until there
are two further failures within a thirtysix 36)
( month period, in which case Tenant shall again have the right to cure the failure so that
above shall again be applicable, and this provision shall continue
the payment date in paragraph (i)
there are two further failures within a thirtyto be applicable to each situation in which
six 36)
(
month period. Nothing in this paragraph shall be construed to limit Owner' s Default remedies
as set forth elsewhere in this

Lease

Tenant timely to pay any Imposition. d)

after failure by

Payment. Tenant shall furnish

to

Owner,within

therefor, an official

thirty (30)

receipt of

after the

Evidence of
date of Owner' s request

days
the appropriate taxing authority

satisfactory to Owner, evidencing the payment thereof.e)


Evidence of
Non-Payment" Any certificate, advice or bill of the appropriate official designated by law to make or
issue the same or to receive payment of any Imposition asserting non-payment of such Imposition
or

shall

other proof reasonably

such Imposition is due and unpaid at the time of the making or issuance
certificate, advice or bill,at the time or date stated therein. Tenant

be prima facie evidence that

of such

shall,immediately upon receipt of

any such

certificate,

Awortionment
advice
or bill, deliver a copy of the same to Owner. t)
of Inwosition. Any Imposition relating to a fiscal period of the taxing authority, a part of which
occurs after the Commencement Date and a part of which occurs before the Commencement Date or

after the Expiration of

be apportioned pro rata between Owner and Tenant.


g)
Exclusions from Impositions. Except as expressly set forth above,nothing contained herein shall be construed to
municipal, state or
require Tenant to payor to be charged for any portion of i)
the

Term, shall

federal incomeor gross receipts taxes

assessed against

8f~:
sales taxes

imposed

on

Rental); ( ii)

municipal,

1817OflOO27
state or federal

capital levy,

estate, succession,

inheritance, transfer or gains taxes, of Owner; ( ill) corporation or franchise taxes imposed on
Owner or any corporate owner of the fee of the Land; or ( iv) any penalties or late charges
assessed against Owner (unless the same result from Tenant' s failure to timely pay Impositions).

h)

Tax Abatements and Reductions. Tenant shall be entitled to the benefit of any tax

may be, available under applicable law as if Tenant were the


fee owner of the Premises. Owner shall not be required to join in any action or proceeding in
connection with such abatement or reduction unless the provisions of any Requirement at the time
abatements and reductions

as are, or

require that such action or proceeding be brought by and/or in the name of Owner. If
so required, Owner shall join and cooperate in such proceedings or permit them to be brought by

in effect

Tenant shall pay all reasonable costs and expenses


including, without limitation, attorneys' fees and disbursements) incurred by Owner in connection
therewith. .
Tenant in Owner' s

name,

in which

case

6.
3.

Section

( Rental be absolutely net to


Net Lease. It is the intention of Owner and Tenant that a)
Owner without any abatement, diminution, reduction, deduction,counterclaim, setoff or offset
( Tenant pay all costs, expenses
whatsoever, except to the extent expressly set forth in this Lease, and b)
and charges of every kind or nature ( except as expressly provided for herein to the contrary)
relating or allocable to the Premises that may arise or become due or payable during or after (
but at ributable

to a

period falling within)

the
Term.ARTICLE
4.LATE CHARGES If Tenant shall fail to make any payment of Base Rent,Additional Rent,
Incentive Rent or other
Rental within thirty (30)days after the same shall be due,the late
equal to
payment shall bear interest from the date due until the date paid at a rate ( the Late
" Charge Rate")
%)
four percent (4 per
the lesser
anmJm in excess of the prime rate in effect from
of a)
(
. shall
if Citibank, N A.
Chase
Manhattan Bank, N . A.,
or The
(
.
time to time at Citibank, N A.
not then have an established prime rate; or the prime rate of any major banking institution doing
be
business in New York City , as selected by Owner,if none of the aforementioned banks shall

the maximum interest rate permitted


an established prime rate)and (b)
but shall not be compounded)
by law. All interest payable under this Section shall be deemed Rental (
days' demand. The collection
payable by Tenant on fifteen ( 15)
and shall be due and
by Owner of any interest under this Section shall not be construed as a waiver of Tenant' s default
or of Tenant' s obligation to perform any term,covenant or condition of this Lease nor shall it
in

existence or

have

affect any other right or

remedy ofOwner under

thisLease.

A:\ JNM\

B~~:

1817Ofm28
ARTICLE s.

INFLATION ADJUSTMENT
descn"bed in this Lease
expressly provided hereunder any dollar amount
as " adjusted for inOation" or " subject to adjustment for inflation" ( or words of similar import)
shall be adjusted by multiplying such amount by a fractiont the numerator of which shall be the
GDP Implicit Price Deflator Index for the calendar year immediately preceding the date of such
adjustmentt and the denominator of which shall be the GDP Implicit Price Deflator Index for the
calendar year during which the Hotel Opening Date occurred. All amounts subject to adjustment
1 of each year pursuant to the
hereunder shall be adjusted effective as of January
Deflator
Index ceases to be publishedt and there
formula described above. If the GDP Implicit Price
is no successor theretot such other reasonably similar index as Owner and Tenant mutually
designate shall be substituted for the GDP Implicit Price net1ator Index.
Unless otherwise

ARTICLE

6.
USE

Section6.
IK. a)Continuous ~~
a1
l.

1.

Use. Tenant

sball use and operate the

Premises throughout the Term as required by this Lease. In any eventt the Premises shall be used only
in accordance with the Final COs therefor ( or Temporary COSt to the extent that Final COs have

not

issued

been

therefor). b)Scqpe of Use.In

ac ordance

with

Tenant' s obligations

to meet

and other provisions of this Leaset Tenant shallt from and


Premises as a first class convention center

comply with the Quality Standards


after the Opening Date t operate the
hotel with appropriate ancillary uses and amenitiest and for no other purpose, without
course of
interruption (except for Unavoidable Delays and except in the ordinary
business).Notwithstanding the preceding sentencet Tenant reserves the right to close or restrict access to any
portion of the Premises in connection with Alterations undertaken in accordance with the
provisions of this Lease or to such extent as may,in the reasonable opinion of Tenant' s
of prescriptive rights to
counsel.be legally neces ary to prevent a dedication thereof or the accrual

and

Hotel

any
Person
Section

shall

the

not

or Persons.

Prohibited Uses.a)Without limiting the provisions of Section 6.lt Tenant


6.
2.
of the Premises, and neither permit nor suffer
use or occupy the Premises or any part

Premises to be used

or

Prohibited Uses"):
any ofthe following ("

occupied,for

A:\

1817orf0929
i)

for any unlawful

ii)

for any

ill)

in such manner

with respect to the Premises;


iv)

interval,

use

or

illegal

which is
as

business,

use or

purpose;

public nuisance;

may make void

or

voidable any insurance then in force

or

for any use involving any ownership structure such


or condominium (other than as may be contemplated

cooperative
Condominium creating only two (
the Improvements which Tenant, at

2)
units
its

sole

as

time share, time

by

Declaration of

consisting of the Restaurant and the remainder of

option,reserves

the

right to

create).
b)
Immediately upon its discovery of any Prohibited Use, Tenant shall take
all reasonably necessary steps, legal and equitable, to compel discoJJtiml~ nce of such business or

use,including, if necessary, the removal from the Premises of any Subtenants, licensees, invitees
or concessionaires, subject to applicable
Section 6.3.
Prohibition

Requirements.

Competine

of

itself

PrQjects. a)
QperatiQi

and its Affiliates, ( i)


not to own or

and

Franchisine

Restrictions. Tenant hereby covenants for

operate, without the prior

consent of Owner,

and ii)
(

to cause Hotel Manager and its Affiliates, not to own,operate or grant a franchise with regard
to,without the prior written consent of Owner, a Hotel of Comparable Size within the area
1 attached hereto and
described
on Exhibit 6.3(
incorporated by reference
a)In the event Hotel Manager breaches the Management Agreement as
herein (the Territory").
"
to the foregoing provision, Tenant shall diligently, in good faith and using its best efforts pursue all
of its remedies under the Management Agreement to enforce the terms of such agreement; provided,
however, such breach shall not be deemed a default under this Lease so long as Tenant is diligently and
in good faith using its best efforts to enforce the agreement as provided above;
provided further,however, Tenant shall not be required to perform or incur expenses to perform a futile
Size" shall mean a
"
hotel CODtaining
act. For purposes hereof, a Hotel of
Comparable
square
feet
of
meeting
space
(
including
any meeting
or
more
000 or more
rooms and 40,
600
space made

license or

available
shared

commencing with

to such hotel on a

facilities agreements
the

long-term

basis

pursuant

to any

or otherwise). However,for the ten 10)


(year

Commencement Date

in addition

period

to the foregoing restriction (the "Restriction")

and

a)2 attached
to the area described on Exhibit 6.3(
Hotel
a
"
of
Comparable
Size"
herein
hereto and incorporated by reference
shall mean a
full service hotel containing three hundred (300) or more rooms. For purposes of the applicability
of the definition of Hotel
" of Comparable Size" to Hotel Manager and its Affiliates only,for so long as the
with regard only

Hotel is a

part

of the Crowne Plaza

el of Comparable Size" as used


definition of Hot"
a hotel that is part of the Crowne Plaza
Hotel

Chain, the

a)means
Section 6.3(
number of rooms
containing
the
Hotel Chain

in this

amount ofmeeting space as

describedin

the

and

Otf.'
17QrrrlFln

Exclusions fromRe. mictions.Notwithstanding anything to the contrary


b)

REC.' ~

above, the Restriction shall terminate or exclude certain


a)
as applicable, upon the occurrence of any of the following

contained in
descnDed

below,

1 B

Subsection (

properties,

as

is acquired by a Person
(
"
or more hotels as part of a chain (a
two (2)
the Hotel
Hotel Chain"),y)
already owning
Chai
n
,
Hotel
or
z)
(
Tenant
or
a
Af
f
i
l
i
a
t
e
of
an
the
Manager is acquired by a Person who is
Hotel Manager, or an Affiliate of either, purchases a Hotel Chain, then in any such case the Restriction
shall not be applicable to any hotels comprising a portion of the Hotel Chain at the time the
Hotel Manager is purchased or the Hotel Chain is acquired,
the
i)if ( x)

events:

Hotel Manager

upon
applicable; ii)
Premises, the Restriction
as

shall

to

any
shall

properties

in

the

purchases

or

the purchase by Tenant of

terminate; iii)upon the termination


the Restriction
extensions thereof),

the

Owner' s Interest in the

of the Redevelopment Plan wi(thout

regard

extent Hotel Manager is operating or franchising


1997, such properties shall be
of March 5,

terminate; iv)to the

Territory as

any

so long as the Hotel is part of the Crowne


Plaza Hotel located at 1601
Plaza Hotel Chain, with regard to the Crowne
or
restoration
Fl
o
ri
d
a,
any
Biscayne Boulevard, Miami,
renovation at that location or any replacement of
from

excluded

the

Restriction;

v)for

such hotel with another hotel, which is part of the


city limits of the City shall be

Crowne

Plaza Hotel Chain, at a location outside

the

vi)for so long as the Hotel is part of the


Crowne Plaza Hotel located at 16701
Crowne Plaza Hotel Chain,with regard to the
that location or any replacement
Collins Avenue,Sunny Isles Beach, Florida, any restoration or renovation at
Hotel Chain, at a location outside the
Plaza
of such hotel with another hotel,which is part of the Crowne

excluded

from

the

Restriction;

and

city limits of the City and the town limits of the Town of Surfside, Florida

Tenant acknowledges that Owner


will be irreparably harmed in the event Tenant violates the Restriction and that money
damages would be inadequate to compensate Owner for such harm. Consequently, Tenant agrees that Owner, in
addition to all of its rights and remedies contained herein, shall have the right to apply
for, seek and demand injunctive relief to
shall

be

compel thecure of

excluded

JNM\
suchviolation.A:\

from

Enforcement.
the Restriction. c)

18

B~~:
I

Section

17Of093

6.

QJlality Standards. a)

4.

Tenant shall operate, maintain and manage, or shall


Class Hotel. i)
cause the operation,maintenance and management of, the Hotel as a first class, convention center
First

hotel, which Hotel shall contain first class facilities and services customarily found in
convention center hotels, including, without limitation,guest rooms, reservation services, front door and

facilities, convention and meeting services and facilities,


multiple food and beverage outlets, room service, bell service, laundry and valet service and a
health and fitness facility (the "Facilities and Services"),at the level of quality provided by
the Benchmark Hotels, as provided herein, consistent with the Hotel' s physical facilities (
assup lemented
E expenditures pursuant
by FF&
check- in

services and

to
taste

Tenant will maintain


this Lease).ll)

as the same

relate

to decor, styling

Hotel and its


of quality

Facilities and

Services,

or

the appearance ( without regard to matters of


aesthetics) and quality of the Hotel, the

and
will conduct the
cause the same to be

and the FF&E therein, and

Facilities and Services

level

facilities,banquet

operation and management of the


managed and operated, at

to that provided at the Benchmark Hotels as determined

comparable

accordance
to
and the Benchmark Hotels, the parties have established the Quality
more
the Physical Standards and the Operational Standards which are

determined

pursuant to

for

Standard, consisting of

c).
ill)The
4(
in Section 6.
applied
to
the operation
4
shall
Sect
i
o
n
6.
be
this

the entire Premises

described

excluding the Restaurant.

in

measure the level of quality of the Hotel

In order
with Section 6.4(
b).

fully

Quality Standards

of

The Quality Standards

the Restaurant

Benchmark Hotels.i)
as set forth in Article 33.b)
Prior to the
date hereof,the parties have selected the comparable first class hotels ( which number at
least three but
are

listed on Exhibit 6.4(b)attached hereto and incorporated


more than five)
be
by reference herein the
( "Bencbmark Hotels")
to be representative of the level of Quality Standard to
above.
4(a)
achieved by Tenant with respect to the Hotel pursuant to Section 6.
f1fth
(
Lease,
be
as
the
of
The Benchmark Hotelsshall, subject to the provisions
reestablished
of
this
5th)
anniversary of the
no

Hotel

Opening

Date

and every

)
five 5
(
years thereafter (

(months prior to each


the Benchmark Anniversary") as follows: commencing six 6)
and
Benchmark Anniversary, Owner
Tenant shall, in order to determine
occurring Benchmark Anniversary, meet and
the successor Benchmark Hotels by the next
at
but
the
selection
of
least three (3),
negotiate
in good faith
no more than five 5),
(comparable first class hotels to serve
as BenchmarkHotels

untilthe

shall
same

70nt)93Z

UU: , e,
if Owner and Tenant shall not have

agreed on the successor Benchmark


months after the applicable Benchmark
Hotels within six ( 6)
Anniversary, then either party may, not later than
thirty (30)
days thereafter,
by written notice to the other proceed to litigate such matter. Until such time
as

the successor Benchmark Hotels have been determined pursuant to


thereof, the previous Benchmark Hotels shall continue as such

the terms

for all purposes under


this

Lease.

The
ii)

parties

acknowledge that,unless otherwise

agreed

in

writing,the Benchmark Hotels shall consist of first class hotels in the continental United States
which

have been designed and constructed generaly at a level comparable to that of


and compete generally for the same business at the same market- level as

the Hotel

on
Hotel.c)
Physical and Qperational Standards."The parties have set forth
Exhibit 6.
4(
c),
attached hereto and incorporated by reference herein, the components
of the physical
standards the "Physical Standards") and the operational
standards (
Operat
i
o
nal
Operational
the
together
with
the
Physi
c
al
Standards
the "
Standards") (
Standards
are referred

the

to

herein collectively

as the Quality
" Standard") which form the basis on which the Hotel
from time to time as set forth in this Lease. Also
set

and the Benchmark Hotels shall be evaluated

on Exhibit 6.
c)
are i)
( the relative weights for each of the components
4(
of the Quality Standard ( the "Weights"),which Weights are to be taken into account by the Rater
forth

during

its

evaluation as provided below, and ii)


certain components of the Quality Standard which
(
have designated as the Designated Components". In order to assure that the
the parties

Hotel

be operated and maintained as a first class hotel in accordance with this


parties
the
Lease,
recognize that the components of the Quality Standard, as well as
their respective Weights, may require modification from time to time during the term of this Lease and hereby agree
that subject to the provisions of this Lease,the components
ofthe
Quality Standard shall be
recontinues to

evaluated as of the tenth 10th)


( anniversary of the
10) years
ten (
thereafter (the "

Quality

Standard

Hotel Opening Date

Anniversary") as

and every

follows: commencing six

months prior to each Quality Standard Anniversary, Owner and Tenant, in


6)

orderto

evaluation of the Quality Standard,


need, if any, for reshall
and the Weights thereof, by the next occurring Quality StandardAn iversary,
faith
reevaluate
the components of the
meet and in good
Quality Standard and their respective Weights and make such changes therein, if any,
which are consistent with this Lease as they may deem necessary, to serve
as
theQuality
evaluated pursuant
Standard until the same shall be reto the terms hereof; provided, however, that if Owner and Tenant shall
agreed with respect to the foregoing within
not have
six 6)
(
Standard Anniversary, then either party
months after the applicable Quality
written notice to the other
may, not later than 30 days thereafter, by
proceed to litigate such matter.Until such time as the
determine the

successor components

ofthe

Quality

and
Standard

Bff: I a
1700933 shall be determined pursuant to the terms hereof, the existing
components and their respective Weights shall remain in full force and

effect. Any such modification of the Quality Standard shall be consistent with this Lease and no
evaluation of matters of taste as the same relate to the
such modification shall require
areor
of
the Hotel' s design ( i. e.,
decor, styling and aesthetics' of the Hotel
the design of the
physical structure (building and appurtenances and Building Equipment) which has been or will
be determined with the approval of Owner under the Hotel Development
Agre ment).

d)

R~rt

Review.

on

i)
The

Rater'

Quality

on

report

Quality Review (

shall 1
(
)
address each component of the Quality Standard
of quality at the Hotel with the level of quality at the

whether

Quality Deficiency or

the Quality
"
speci
with ficity comparing

Report")
the level

Benchmark Hotels, 2)
( address

Designated Component Deficiency shall

have occurred and 3)


(

take into account the age of the Hotel and such other matters as the Rater deems relevant to the
evaluation of the Hotel in accordance with this Lease.The Rater shall consult with Owner and
Tenant

prior to
issuing

the

In conducting its Quality Review


Quality Report. ii)

Hotel' s Quality Standard, the Rater shall not

into account

matters ( x)
of

and

measuring

the

taste as the same

relate
(
relating to the design, construction or
of the Hotel, or y)
operation of the Garage. In addition, the Rater shall recognize that the Quality Standard is not
intended to evaluate the Hotel' s design (Le.,the design of the physical structure ( building
and appurtenances and Building Equipment) which has been or will be determined with the approval of
Owner under
to the decor, styling and

the

take

aesthetics

If the Rater determines that the


Hotel Development Agreement).ill)

Hotel has failed to provide to


its guests a level of quality with respect to the Quality Standard substantially comparable to
that provided at the Benchmark Hotels ( on average), then there shall be deemed to
have
If
a Quality
" Deficiency" .iv)

Rater determines that no Quality Deficiency


has occurred, but has determined that the level of quality of any Designated Component is
unacceptable as
acomponent
of a frrst- class hotel based on the level of quality of any such
Designated Component at the Benchmark Hotels ( on average), then there shall be deemed to
have occurred
occurred

a "

the

In the
Designated Component Deficiency" . v)

acting reasonably, contests the determination of


Deficiency or a Designated Component Deficiency
be deemed to have

arisen which shall

be subjectto litigation.A:\

CMB\
JNM\

event

Tenant or Owner, each


the existence of a Quality
as contained in the Quality Report, a dispute shall

the Rater

with respect

to

18170rf0934
Ratil\i of Hotel

e)

i)

Commencing

annrta])
thereafter,

on

the first ( 1st)

Owner shall have the

right

anniversary

of the Hotel

Opening

Date and

to cause the Rater to conduct an evaluation of the

Hotel and the Benchmark Hotels in accordance with the provisions of this Lease ( a " Quality
Review"). However, if the most recent Quality Review indicates that there has been no Quality

Deficiency, or in the event of a Designated Component Deficiency such Designated Component


months of the determination of the existence of
12)
Deficiency has been cured within twelve (
such Designated Component Deficiency, then, in either of these events,Owner may not cause
Rater to conduct a subsequent Quality Review prior to
years from the date of the
two 2)
(
most recent Quality Review. Provided, however,the immediately preceding sentence shall not
be applicable during any period in which a foreclosure
is

pending. ii)
In addition, notwithstanding

the foregoing, during

the twelve

months after any Sale of the Hotel by Tenant or


period commencing six 6)
(
Transfer or a Management Engagement, Owner shall have the right to require

month
12)
a

Management

Before requiring a Quality Review, if Owner believes


ill)
Tenant has failed to meet the Quality Standard, Owner shall endeavor
to give Tenant
sixty 60)
(
days prior written notice during which time the parties shall meet in a good faith effort
to attempt to resolve any claim by Owner that Tenant has failed
one

additional

to

meet the Quality

Quality

Standard.

Review.

All costs of a
iv)

Quality

Review

By Tenant, if the Quality Review


shall be borne as follows: 1)
determines that there has been a Quality Deficiency, and such costs shall
not be an Operating Expense or deductible in detennining
Hotel Operating Profit; provided,however, that, if following a foreclosure of a
Recognized Mortgage or an assignment of lease in lieu of the foreclosure of
a Recognized Mortgage, Tenant is a Recognized Mortgagee or an
Affiliate of a Recognized Mortgagee, then during the period in which such
Recognized Mortgagee or Affiliate of a Recognized Mortgagee is Tenant such
costs shall be an Operating
By Tenant, if the Quality
Expense in determining Hotel Operating Profit.2)
Review determines that there has been no Quality Deficiency, but
that there has been a Designated Component Deficiency, and such costs shall
be an Operating Expense
By Owner, if the
and deducted in determining Hotel Operating Profit.3)
Quality Review determines that there has been no Quality
Deficiency or Designated Component Deficiency, and such costs shall

be paidby

its
Ownerfrom

own

18170rf0935
Notwithstanding anything to the contrary in this Lease, in the event the
Recognized Mortgagee does not maintain the FF& E Reserve Account continually funded pursuant
to Section
16. 5(
d)during the pendency of the foreclosure, then, in that event,
a Foreclosme Transferee, other than a Recognized Mortgagee or its Designee, shall be required to cure
all existing Quality Deficiencies and all existing Designated Component Deficiencies by no later
v)

( year from the date such Foreclosure Transferee becomes the Tenant
than one 1)

under
Report

this

Lease. f)
Desi~

concludes that a

tedComponent

Deficiency: Reme< ty.


If the

Quality

Designated Component Deficiency

days after the receipt


shall, within sixty (60)
the
and
Quality
di
l
i
g
ent
l
y
pursue
implementation of a Remediation
of
Report,prepare, commence
Plan which in the opinion of the Rater is designed to remedy such Designated
Component Deficiency within a reasonable amount of time
giventhe
nature of such1>esignated Component
Deficiency; but in all events (i)
to the extent the Remediation Plan addresses deficiencies
in the Operational Standards, the Remediation Plan shall be designed to remedy such deficiencies within
a period of
six 6
()months to twelve ( 12)months (as determined by the Rater
taking into account the adverse impact of the deficiency on the Hotel and the amount of time reasonably
required to remedy the same as well as any adverse impact on the on-going operations. of the Hotel (
s)to be repaired))
such as bookings and Tenant' s ability to have access to the area(
from establishment of the Remediation Plan and ii)
( to the extent the Remediation Plan addresses
deficiencies in the Physical Standards, the Remediation Plan shall be designed
to remedy
such deficiencies within four 4)
( years from establishment of the Remediation Plan.If Tenant and
the Rater cannot reasonably agree upon a Remediation Plan, a Dispute shall be deemed to have

the

has

occurred, then: i)
Tenant

arisen,

which shall be subject to

Designated Component Deficiency relates

from the FF& E Reserve

required to deposit

to

litigation. ii)
If
a Physical
.
Standard which

the remediation

of

requiresthe expenditure of funds

Account,then, at Tenant' s election, Hotel Manager may be


the FF&
E

the Additional Reserve Deposit into

until such

in

Reserve Account

in the manner set

forth

as the Designated Component

Article 16 hereof
time
Deficiency
Designated Component Deficiency is not
is remedied; provided, however, that if such
remedied within three (3)
years from establishment of the Remediation Plan, Hotel Manager shall be
required,until such deficiency is cured, to deposit the Additional Reserve Deposit
into the
FF&
E Reserve Account pursuant to Article 16 and Tenant shall cause an amount equal
tothe
E Reserve Account ( on an annual basis)
Remediation Percentage multiplied by the funds in the FF&
to be expended on remediation of the deficiencies in the Physical Standards addres ed in
the Remediation Plan; provided such use of FF&
Owner shall have
Reserve Account funds is otherwise permit ed under this Lease. iii)
the right to cause Rater to monitor the implementatio~ of such Remediation Plan ( the cost of which

shall be an

Operating

accordance with

its

Expense)

and, to the

Owner
shall beentitled to specific

extent Tenant shall

terms, no Event of Default shall

to
performance

fail

to implement such plan in

be deemed

to

occur,

but

18 '
70rf0936
Deficiency

DeficiencyReme4y.
:

Quality
g)

If the

Quality Report concludes that

Quality

has occurred, then:

60)days after receipt of the Quality Report,


prepare,commence and diligently pursue implementation of a Remediation Plan which in the opinion
of the Rater is designed to remedy such Quality Deficiency within a reasonable amount of time
to the extent the Remediation
given the nature of such Quality Deficiency; but in all events ( i)
Plan addresses deficiencies in the Operational Standards, the Remediation Plan shall be designed
six 6)
(months
to twelve ( 12)
to remedy such deficiencies within a period of
months ( as determined by the Rater after taking into account the adverse impact of the deficiency on the
Hotel and the amount of time reasonably required to remedy the same as well as any adverse impact
( as bo kings and Tenant' s ability to have access to
on the on-going operations of the Hotel such
to the
to be repaired)) from establishment of the Remediaion Plan and (ii)
the area( s)
the.
Physical
Standards,
in
the
Remediation Plan shall
extent the Remediation Plan addresses deficiencies
years from establishment of
(
deficiencies within four 4)
be designed to remedy such
the Remediation Plan. If Tenant and the Rater cannot reasonably agree upon a Remediation Plan, a
Dispute shall be deemed to have arisen,which shall
i) Tenant shall, within

sixty (

subject to litigation. ii)Until such time as the Quality Deficiency is remedied,


E,
expenditureof funds for FF&
then the Additional
if the ReMediation Plan provides for the
E Reserve
Account pursuant to Article 16
Reserve Deposit shall be deposited into the FF&
be

an amount equal to the Remediation Percentage multiplied by the funds


in the FF&E Reserve Account ( on an annual basis)to be expended on remediation of
useof funds
the deficiencies in the Physical Standards addressed in the Remediation Plan; provided such
and

Tenant

shall cause

in the FF&
E Reserve Account is

otherwise

failed to

If the Rater shall determine that Tenant bas


permit ed under this Lease. ill)
the deficiencies in the Operational Standards addressed by the Remediation Plan

remedy
as provided above within the

period provided above, Owner shall provide Tenant


thereafter determines that Tenant has failed to

appropriate time

with notice of such failure.If the Rater


remedy such deficiencies within three 3)months after Tenant'
shall constitute an Event

of

Default

hereunder, but

in

receipt of

such

notice, the same

all cases

If the Rater shall determine that


to the provisions of Article 25.iv)
the
Physical Standards
in
def
i
c
i
e
nci
e
s
to remedy the
addressed by the
subject

Tenant bas

failed
( )years, Owner
Remediation Plan within four 4
If the Rater thereafter determines that Tenant
after Tenant'

an Event

of

extent funds

the
during

the same shall constitute


of Owner' s notice (the Extension Period"),
To the
25.
pr
o
vi
s
i
o
nsof
Article
in all cases subject to the
hereunder, but
E Reserve Account are not sufficient to accomplish
the FF&

Default
in

shall provide Tenant with notice of such failure.


year
has failed to remedy such deficiencies within one ( 1)

receipt

deficiencies in the Physical Standards addressed by the Remediation Plan


expiration
the Extension Period,Tenant shall provide the funds necessary to complete such remediation by the
remediation of the

of theExtension Period.For so

long

Br~:
the Tenant, any funds
funds available in the

so

expended by

18170r 0937

Tenant pursuant to

Remediation Plan in

FF&E Reserve Account shall be amortized

over

excess

of the

the useful life of the

FF&
E

determined in accordance with the Code) to which such monies are allocable and deducted as
an Operating Expense in accordance with such amortization schedule. If a Person other than RDP
shall be the Tenant hereunder, any such excess funds shall not be amortized or otherwise deducted
as

Operating Expense; provided, however, that. if following the foreclosure or assignment of


lease in lieu of the foreclosure of a Recognized Mortgage, Tenant is a Recognized Mortgagee or
an Afflliate of a Recognized Mortgagee, then during the period in which such Recognized
Mortgagee or Affiliate of a Recognized Mortgagee is Tenant any such excess funds may be
amortized or otherwise deducted as an Operating Expense.
as an

v)

right to cause Rater to monitor the implementation of the


shall be an Operating Expense) and, to the extent Tenant

Owner shall have the

Remediation Plan ( the cost of which


shall fail to implement such plan in accordance withits terms, Owner shall be entitled, in addition
to any other

remedy available

to Owner under this Lease, to

specific performance

to ensure such

implementation.
6. 4(f)
Any Remediation Plan pursuant to Section
400 shall be subject to and consistent with
or Section 6.
the requirements of Section 6.
this
Lease.
Accordingly,
provi
s
i
o
ns
except
as provided
and the other
d)(
ii)
of
4(
in the next sentence, a Remediation Plan may not require structural changes or the construction of additions
the Hotel.
Subject to the foregoing, a Remediation
or the removal of any portion of,
to,
in
addition
to FF&
may
E expenditures in
provide,
Plan to cure a Quality Deficiency
ii),
4(
g)(
for reconfigurations which may involve structural changes
accordance with Section 6.
h)

Remediation Plan.

in the
aggregate will not cost
of the Hotel other than the guest rooms which (i)
the
val
u
e
of
the
by such
required
of
10%)
more than ten percent (
expenditures
do not require modifications to the Hotel' s certificate of
Remediation Plan; ( ii)
occupancy; and (

to

portions

iii)
as otherwise provided in the last sentence
do not conflict with any Requirements. Except
4OO(iv)and subject to the penultimate sentence of such subsection, all
of Section 6.
(
costs
in complymg with any Remediation Plan shall be an Operating Expense except

incurred

to the

extent expenditures made


Rem diaton

pursuant to the

Plan

cooperate with Owner (and

the

E Reserve Account). i)
Cooperation. Tenant shall
are out of the FF&
Rater)in order to enable Owner to exercise its rights

which cooperation shall include ( subject to the provisions of Section 28.


to
1(f)),
without limitation, the inspection by Owner (and the Rater)of all records
relating to customer satisfaction (Le.,complaints) and the inspection of the Premises by Owner, the
Rater and their representatives, upon reasonable advance notice to Tenant and no such inspection
shall unreasonably interfere with the operations of the Hotel. No advance notice shall be necessary in
connection with the
pursuant

this Article,

inspection ofthose areas of the

Premises

Rf~:
Certain Definitions.

G)

i) " Additional Reserve


Revenue

18170rf0938

1 of
%) Hotel
Deposit" shall mean one percent (
i
n
adequat
e
to
fund
such
amount,
then such
is

or, if Net Cash Flow After Debt Service

lesser amount as is available from Net Cash Flow After Debt

ll)
Remediation

Service.

Percentage""
shall mean the percentage

obtained by

the aggregate percentage obtained by


%)
percent ( 3.5 by
percentage
By way
adding the Additional Reserve Deposit
equivalent
to four percent ( 4%).
equivalent to one percent ( 1 %)
of example, if the Additional Reserve Deposit is
dividing three

and

of

one-half

Hotel Revenue, then the Remediation Percentage shall equal the


half percent

three and oneby


Rater Qualifications" shall mean

five

the

quotient

obtained

by dividing

3.
5%)

i.
e.,
ill) "
percent (5%),
seventy percent 70%).
(

fol owing qualifications required for

any Person to be qualified to be a Rater:I)


The

Rater

shall have

extensive experience in evaluating


have

been employed or engaged by

the qualitative performance

party

hereto

of hotels; ll)
The Rater shall not
or its hotel consultants within the previous

five (5)
year period, except as

a Rater"
" pursuant to
be neutral and independent
w)

of

the

terms of this

the parties

to

Lease;and Ill)The

this Lease and their then

Rater shall (

current

respective

(
not be affiliated with either party' s auditors; y)
not have a
consultants; ( x)
including, without limitation, any bias towards or against) a party
conflict of interest with (
hereto or
z)
have ( 1)
and
(
consul
t
a
nt
s
;
then
experience in evaluating the
its
current hotel
a business reputation, in each case comparable to
that as of the date
qualitative performance of hotels and (2)
or
any
k)
other Person employed as a Rater
hereof of the Persons listed in Section 6.4(

hotel

hereunder
of the

as

date such Person

Rater: Desi~
tion of Rater.Prior
was designated to serve as a Rater hereunder. k)
to the commencement of a Quality Review, Owner shall notify Tenant of Owner' s choice
for the "Rater"to perform the Quality Review. Such notice shall include a statement describing
how such proposed Rater has all of the Rater Qualifications in accordance with the

is

herein (including, without limitation, a statement from the Owner that its selected Rater
willing and able to perform the functions contemplated by this Lease, and

is otherwise

qualified

standards set forth

of

to serve as the Rater hereunder, including, without limitation, that Owner knows of no conflict
its selected Rater and a party hereto and/ or its hotel
interest between

0)busines days after receipt


(
consultants).Within ten 1
Tenant ( i)
ap rovesof

Owner'

choice
s

of

Owner' s notice, Tenant

shall

notify Owner either that

1817Ofr0939
Rater selected

by Owner

limitation,

result of

as a

is not

qualified

to serve as the Rater hereunder (

such notice shall state Tenant' s

including,

without

party hereto and/or its hotel consultants), and


for disapproval with reasonable specificity. Failure of

conflict of interest with


reasons

10)
business day period shall be deemed to
notify Owner within such ten (
constitute Tenant' s approval of the Rater selected by Owner. If Tenant so disapproves of Owner' s
ten 10)
( business days after Owner' s receipt of
selection for the Rater, the parties shall,within
to
select
an alternate Rater having all of the
good
faith
Tenant' s notice, meet and endeavor in
Rater'

Tenant to

so

If the parties are unable to mutually designate an alternate Rater within


such ten (10)business days after the receipt of Tenant' s notice as provided above,Tenant
business days thereafter, give notice to Owner of its choice for such
(
shall,within five 5)
alternate Rater. Within ten 10) business days after Owner' s receipt of such notice, Owner' s choice for
the Rater and Tenant' s choice for the Rater shall mutually select the Rater who sball act as the
designate or approve any
sole Rater for such Quality Review. Tenant and Owner agree not to i)
(
Rater of which such party has knowledge of an actual or potential conflict of interest and ii)
(
" pursuant to the terms of
employ any Rater except
this Lease)within the three (
( as the Rater"
such
per
i
o
d
3)
year after
s Qualifications .

of the date hereof, the parties agree that the


Persons listed below qualify as an acceptable Rater;provided, however, that Tenant may object to
Owner' s designation of such Rater if Owner selects such Rater for a Quality Review and at such
time Tenant believes that the Rater is not qualified to serve as the Rater hereunder ( including, without
Rater has performed a Quality Review.

limitation, as a result

of

a conflict

of

interest with a

party
Gettys

As

The
hereto):1)

Group;and

5.Convention Center. Tenant has entered into


Section 6.
City
(
or
an agreement with
its designated nominee) ( the Convention Center
the
Hotel Facilities and Services shall be made available
Agreement"), pursuant to which, among other things, (i)
Linda Novey Enterprises,
2)

for support

of the City of

Inc.

Miami

Beach Convention

Center events and

(ii)Tenant and the

undertake joint marketing efforts, in accordance with the terms thereof. The term of the
(
March 31,
2023 and y)
shall terminate upon the earlier to oc ur of x)
aforesaid agreement
Beach
the
Miami
location
of
to
maintain
s
failure
City'
the
(
thesubject to Unavoidable Delays,i)
Convention Center at the site bounded by the streets in Miami Beach,Florida that as

City

shall

Center Drive, Dade Boulevard, Washington Avenue and


no less than one million (
17th
Street, with a gross building area of
hall
exhibit
capacity
aggregating not less than five
1,
000,000) square feet and
Center"); and (ii)
the City' s failure to
"
(
Convention
hundred thousand 5
( 00,000)square feet the
of

the

maintain theConvention Center with

date hereof

bear the following

material
no

names:

Convention

such

material adverse

renovation and
Section

change, the City' s failure to make arrangements for


diligently implement and complete such renovation.

an

imminent

6. 6.
Exc~ tions to

this Article 6,if,


at any
time during the Term,the Convention Center ceases to be open and available for business (
except for Unavoidable Delays),including, without limitation, as a result of a condemnation or casualty,

Use

Covenant~. Notwithstanding

the

then (a)
during such period of time, Tenant shall

foregoing provisions of

be required to

Premises as a hotel (but


convention center hotel),and for

operate the

Premisesas
a first-class
shall not be required to operate the
other
except
as
no
purpose
permitted hereunder),without interruption (except for Unavoidable
Delays and except in the ordinary course of business), and b)
provisions of Section
(the
4 shall be inapplicable during such period
of time and for twelve (12)
6.
months
addition,
if
within
ninety
90)
days
the
date
the
Convention
Center
following
thereafter. In
that
ceases to be open and available for business ( except for Unavoidable Delays),the City does not
elect, by Notice to Tenant, to restore and/ or reopen the Convention Center, and,
thereafter, diligently pursue thecompletion of any such restoration or re-opening, then for the remainder
of
the Term, the provisions of Sections 6.
4 and
6. 5 shall
be inapplicable and, notwithstanding the provisions of Section 6.
Tenant
b),
sball
requi
r
ed
1(
be to operate the
Premises as a hotel (but shall not
be required to operate the Premises as a first
class convention center hotel), and for no other purpose ( except as permitted hereunder),

without

interruption (
except
Unavoidable Delays

for
except
Liability Insnrance,
a)

and

in the
At all

expense (as an Operating Expense),shall carry


respect to

off

the

ordinary course of

business) ARTICLE
.

7.
INSURANCE Section 7.1,
Imll1TAnce Requjrement~.

at its sole

the Term, Tenant,

or

cause to be carried

Premises and the operations related thereto, whether conducted

an
the
and
c
o
mbi
n
ed
limit,
occur
r
e
nce,
single
per

insurance against

liability with

or

on
less than Ten Million Dollars ($10,000, 000)
designating Tenant as a named insured

amount

Premises in

cost and

times during

of not

and Owner, the City and, if required by a Recognized

Mortgage,a

Recognized Mortgagee

additional insureds. Such insurance shall meet all of the standards, limits, minimums and requirements
b)
Property Insurance. At all times during the Term, Tenant at its
7.
described in Section 7.
sole cost and expense,as an Operating Expense, shall carry or cause to be
carried "All Risk" (or its equivalent) property damage insurance protecting Tenant, Owner and the City
as their interests may appear
as

against lossto thePremises

and

1817Qr 094'

m:
Other Insurance.

c)

insurance

meeting

At all times

during the Term, Tenant shall


requirements

all of the standards, limits, minimums, and

procure and carry


descn"bed in Section

d)
9.
Construction Insurance. Prior to the commencement of any
Construction Work. Tenant shall procure or cause to be procured. and after such dates shall carry or cause

7.

to be carried,

the insurance

required

until final completion


by the foregoing

Section 7.10.

in

7.
2.Treatment of Proceeds.

Section

in

peneral. Insurance

of such work,in addition to and not in lieu of


b). and
( (c),
the insurance described
subsections ( a).

proceeds payable with respect

to

a property

Proceeds of Casualty
a)
loss

shall be

payable

Insurance

either to

a Recognized Mortgagee or other Institutional Lender pursuant to a mutually acceptable insurance trust
agreement, either of which shall hold such proceeds in trust for the purpose of paying the cost of

the

or shall be payable to Tenant with respect to insurance


proceeds not exceeding One Million Dollars 1,
000,000)adju(sted for inflation) per

Casualty Restoration,

occurrence, and such proceeds shall


such

Casualty
Rent Insurance. Rent

be applied to

the

payment in full of the

cost of

Restoration in accordance with


Insurance

referred to

in

the provisions of Article 8.b) Proceeds of


9 shall be carried in the name of Tenant as
Section 7.

named insured
payable to Owner and Tenant to be applied to Rental
for the period from the occurrence of the damage or destruction until completion
of the Restoration as determined in accordance with
the provisions of Article 8. Without
7.
Secti
o
n
if required by a Recognized Mortgage, such
2(
b),
limiting the foregoing provisions of this
shall
a
Mor
t
g
agee
so
be
to
amounts
paid
Recognized
and shall be

Rental is first paid

to Owner subject to the


Coo.peration in Collection of Proceeds. Tenant,Owner and
provisions of Article 12~c)
any Recognized Mortgagee shall cooperate in con ection with the collection of any insurance proceeds that may be due in the event
of a loss, and Tenant, Owner and any RecogJ" i7Pi1 Mortgagee shall as soon as practicable
long

execute and

asall

deliver

such

proofs of loss
any

and other instruments as

may

be

required of Tenant. Owner or

Mortgagee, respectively, for the purpose of obtaining the recovery of any


such insurance proceeds. d)Acljustments for Claims. All property insurance policies required by this Article shall provide
that all
adjustments for claims with the insurers involving a loss in excess
of One
Recognized

Mil ion Dollars1.


($
000.000)

for
adjusted

18170fr0942
7.
3.
General Provisions Applicable to

Section

All

Article

Policies.a)
Insurance Companies. All of

from

be

the insurance policies required by this


licensed or authorized to do business in the State of Florida

shall
procured
the latest edition of " Best' s Key Rating Guide" of " A: X"
a
rating
in
or
have
or another comparable rating reasonably acceptable to Owner,considering
companies

that

shall be

Required Forms.All references to


conditions. b)
used
by
the
Insurance Services
those

forms

reasonably satisfactory to Owner in

market

better

forms and coverages in this Article


Organization ( ISO)
or equivalent

all

ReQllired Certificates. Certificates of insurance evidencing the issuance


respects. c)
of all insurance required by this Article to the extent ...
then required, describing the
days
prior
30)
to
Owner
notice
for thirty (
coverage and providing
by the insurance company
of cancellation or non-renewal, shall have been delivered to Owner by the Commencement Date, and in
the case of any policies replacing or renewing any policies expiring during the Term, not
days before the expiration dates of any expiring policies. The certificates
later than thirty (30)
of insurance shall be issued by or on behalf of the insurance company and shall bear the original
signature of an officer or duly authorized agent having the authority
to issue the
i
n
sur
a
nce
shall
deliver
to
issuing
the
The
company
Owner,
insurance
also
certificate.
together with
Owner
that
the
premi
u
ms
for
least
reasonabl
y
sat
i
s
f
a
ct
o
ry
the
cer
t
i
f
i
c
at
e
s,
proof
first
year
of the term
at
to
the
payments
to
i
n
sur
a
nce
carrier
installment.
then
policy
(
or
to
have
been paid
of each
the
required .
on account of such premiums) have been paid. During the performance of any
Construction Work, Tenant shall deliver to Owner an entire duplicate original or a copy ( certified by Tenant
to be true, complete and correct) of each policy. At all other times, Tenant shall deliver to
Owner an entire duplicate original or a copy ( certified by Tenant to be true, complete and correct)of
Owner' s request therefor. Tenant shall
each policy within a reasonable period of time after
notify Owner of any material changes in the coverage provided under any policy promptly
after requesting an insurance company to make such change or receiving any notice from
an insurance company advising Tenant of any such change; provided, however, that no such change
may reduce or otherwise modify the insurance coverage required under this Lease. Tenant' s
days prior to the expiration
failure to provide certificates of insurance
no later than thirty (30)
of any insurance policies shall not constitute a Default so long as all insurance coverages required under
this Lease remain in full force and effect and such certificates are provided prior to the
material

Compliance with Policy Reqpirements. Tenant shall not


existing policies. d)
any
the
violate or permit to be violated
of conditions, provisions or requirements of any
insurance policy required by this Article, and Tenant shall perform, satisfy and comply with,or
all conditions, provisions and
cause to be performed, satisfied and complied with,
expiration

of

such

Req1lired Insurance Policy Clauses.Each policy of insurance


policies. e)
provi
s
i
o
ns
of
this
Article and each certificate issued by or on
pur
s
uant
to
the
to
be
required
carried
a provision stating substantial y that no act or omission of
behalf of the insurer shall contain (i)
requirements

ofall

Tenant ( orany other A:\

insurance

CMB\
JNM\

1817Ofr0943
Person)

by

the

or

any

policy

occupation of the Premises for purposes more hazardous than are permitted
invalidate the policy as to Owner or affect or limit the obligation of the

use or

shall

insurance company to pay to Owner the amount of any loss sustained and that no act or omission
of Owner shall invalidate the policy as to Tenant or affect or limit the obligation of the insurance
company to pay to Tenant the amount of any loss; ( ii) a written waiver of the right of subrogation
against all of the named insureds and additional insureds, including Owner in its capacity as owner

of the Land and any Recognized


under such policy; ( iii) a clause
loss payee
Dollars ($

Mortgagee named in such policy, with respect to losses payable


designating Owner, the City and any Recognized Mortgagee as

their interests may appear for losses in excess of One Million


adjusted for inflation; and iv)
000, 000),
( an agreement by the insurer
1,

additional insured,

or

that such policy shall

as

not be

canceled,

thirty 30)
(
days prior written notice to Owner and

materially modified, or denied renewal without

of the

at least

the holder
mortgagee endorsement or its equivalept,
specifically covering, without limitation, cancellation or non-renewal for non-payment of
premium, except that
days notice or statutory notice, whichever is greater, shall be given with respect
ten 10)
(
only
under a standard New York

form

Recognized

Mortgage named

of

of premium. t)
~ Tenant sball not carry
arate Insurance.
form
c
o
nc
u
r
e
nt
in
or
contri
b
uti
n
g
in
the event of loss with that required
insurance

non-payment

to
separate

liability or

property

by Tenant, unless Owner,the City and any


Recognized Mortgagee are included therein as additional insureds with respect to liability or loss payee with
respect to property, as their interests may appear, with loss payable as in this Lease
provided. Tenant shall immediately notify Owner of the carrying of any such separate insurance and shall cause the
same to be delivered as in this Lease hereinbefore required. Unintentional duplication of
by

this

be furnished
Lease to.

coverage
not constitute a Default. g)
Duration of Policies. Tenant shall procure policies
shall
of not less than one (
for all insurance required by any provision of this Lease for periods
to
time
thereof
1)
year and shall procure renewals
from
time
at least thirty (30)
days before the expiration thereof, except that.Builders' Risk Insurance shall only be renewed
the

for
of

term

any construction

period. Section 7.
4.
Additional Coveraie. a)Other

insurance,in such amounts as from time to time reasonably


such other insurable hazards as at the time are commonly insured

Insurance. Tenant shall maintain such other

may

by Owner, against
case of oceanfront hotels in South Florida of a size, nature and character similar

be required

against in

the

Acljustment of Limits.
the size, nature and character of the Hotel. b)
All of the limits of insurance required pursuant to this Article 7 shall be subject to
review by Owner and, in connection therewith, Tenant shall carry or cause to be carried such
additional amounts as Owner may reasonably require from time to time,but Owner may not impose such
year period from the date
new limits any more frequently than once in every five (5)
to

of SubstantialCompletion

ofthe

Any
Hotel.

8'

Off. .,
70rr0944

REt.Tenant carry or cause to be carried additional amounts of insurance shall not be


deemed reasonable unless such additional amounts are commonly carried in the case of oceanfront
hotels in South Florida

the

of

a size,nature and character similar to the size,nature and character of


shall not relieve Tenant of
the provisions of this subsection ( b)

Hotel; provided, however, that

its obligation to carry or to cause to be carried All Risk insurance in an amount not less than
Section
12( a).
7.
the Replacement Value as provided in
Except as otherwise
provided herein, Owner shall also have the right, throughout the Term, to approve the amount of
any loss deductible contained in any insurance policy required pursuant to the provisions hereof.
Tenant shall be responsible
all deductibles.

for
as

to

Adeqpacy

Section

No

7.5.

R~
resentation

The
ofCov~e.

requirements set forth herein with rewect to the


maintained or caused to be maintained by Tenant
or warranty by Owner or Tenant that such insurance

nature and amount of insurance coverage to be

hereunder

shall

not constitute a
in

is

any

representation

respect adequate.

Blanket or Umbrella
Section 7.
6.

Policies. The insurance required

to

be carried by Tenant
pursuant to the provisions of this Lease may, at Tenant' s election, be effected by blanket,
wrap-up andlor umbrella policies issued to Tenant covering the Premises and other properties owned
or leased by Tenant or its Affiliates, provided such policies otherwise comply with the provisions
of this Lease and allocate to the Premises the specified coverage, including,
without limitation, the specified coverage for all insureds required to be named as
insureds or additional insureds hereunder, without possibility of reduction or coinsurance by reason of,
or because
of damage to,any other properties named therein. If the insurance required by this Lease shall be
effected by any such blanket or umbrella policies, Tenant shall furnish to Owner, upon
Owner' s request, certificates of insurance and copies (certified by Tenant to be true, complete and
3(c),
together with
correct)
of
such policies as provided in Section 7.
annexed
thereto
setting
schedules
forth

the

amount

ofinsurance

7. 7.
Liability Insurance ReqJ1irements. The insurance
the Premises. Section
1(a)
required by Section 7.
shall consist of commercial general liability
Such
insurance protecting against liability for bodily injury, death, property damage and personal injury.

applicable to

thin the limits of the insurance required by Section 7.


shall wi(
a)):
a)include a broad form property damage liability endorsement
with fire
1(

insurance

legal liability

limit

of
000),
subject
to adjustmentfor inflation;b)

not less than

blanket
contain

One Hundred Fifty

Thousand Dollars ($150,

8,
45 c)
contain contractual

70rr09'

Tenant's indemnification obligations


obligation is for

under Article 20,to

liability insurance specifically covering


the extent such indemnification

an

insurable

d)
risk;
contain

independent

contractors

coverage;

e)
contain a notice

of

occurrence

clause;

contain a knowledge
t)

of

occurrence

clause; g)
contain

and

omissions clause;h)
contain coverage for suits ariSing from the use of reasonable

an errors

force to protect

and

persons
foundation work are

covered

i)
contain an endorsement providing that excavation
and the XeD"
"
exclusions
property;

have

been

occupancy

condition; and

Completed

Operations

and

fj)
contain a waiver of completion and

deleted;

k)
contain Products

Liability/

coverage. Section7.

8.PrQpe~Insurance

insurance required by Section 7.1(b)


ReqJ1irements. The
shall
i
n
surance
under
Risk"
or its
policy
damage
an All
"
equivalent covering the Premises and all Improvements with replacement cost valuation and a
stipulated value endorsement ( to be provided not later than promptly following the Substantial Completion of the
Hotel)in an amount not less than the full Replacement
Value (determined in
accordance with Section 7.
consist at

of property

least

and including

12)

for

physical

the

loss

following

cost valuation without

depreciation

or
Tenantbut,

clause;

by

000)per

loss for
( other than flood

be acommercially reasonable amount),subject

to adjustment

clauses: a)
coverage

the

c)
debris

not

determined

deduction shall

or

or damage to

replacement

obsolescence

coverages

or

removal coverage;

Improvements;

b)
a

d)
provision

for

a deductIble

150,
more than One Hundred Fifty ni'ousand Dollars ($
windstorm,with regard to which the

f~:
liability

1817orf09'
from operation of

46

e)
contingent

laws;

t)
demolition cost for

building

undamaged portion

g)
increased cost of construction

coverage;

h)
coverage;
an agreed or stipulated amount endorsement ( to be provided not later
the
fol
l
o
wi
n
g
than promptly
Substantial Completion of the Hotel) in an amount not less than the
full Replacement Value negating any coinsurance

i)
flood coverage ( to the extent available

clauses;

at commercially

reasonable

rates, limits and


G)
windstorm coverage ( to the extent available

deductibles);
reasonable

at commercially

rates, limits and

deductibles);
which coverage may

coverage for explosion caused by steam pressure- tired


k)
provided
under a separate policy reasonably approved by
be

vessels (

Owner);1)
business inter uption coverage in accordance
Section

with

a Recognized

Mortgagee

interests

m)a
7.
9;

clause designating

Owner,

the City.and

as.additional insureds, as their

may

appear;

and n)
contain no

exclusions unless

approved in writing by

Owner,other than the industry standard exclusions for hotels of


similar size and location. Tenant shall be named

insured, and Owner, the City


their interests may appear. The

and

Mortgagee

be additional insureds, as
Recognized
loss
payee
such
All
be
designated
Risk
policy
for the benefit of
Owner shall
on

above, Tenant

and any Recognized Mortgagee. If not included within the All Risk coverage
also carry or cause to be carried coverage against damage due to i)
( water

any Recognized Mortgagee

shall

or
Owner,Tenant
shall

sprinkler leakage and collapse, which shall be written with limits of coverage of not less
than the full Replacement Value per occurrence, with a deductible of not more than One
(
flood,
Hundred Fifty Thousand Dollars 150,000), subject to adjustment for inflation and ii)

and

which shall be written with limits of coverage of


10,000,000),
with a
deductible of
subject to adjustment for
Dollars 500,
($000),
inflation, to the extent available at

Tenant' s personal
such personal property shall

insure

be addedto

theamount

property

com ercialy

less

than Ten Million

not more than

reasonable rates and

used in

insurance
of

not

Dollars ($

Five Hundred Thousand

deductibles. If Tenant elects to

connection with the Premises, the replacement value of

18170r {)

f~:

947 For the purposes of this


any rate,
limit or
Section 7.8,
shall be "commercial y reasonable" if such rate,limit or deductible is comparable to the

bles in

the

insurance carried by oceanfront hotels in

South

deductible
rates,limits

or deductt"

Florida of a size,nature and

character similar to the size,nature and character


the Hotel.Section

of

9.
7.
Other Insurance Reqpirements.

The

insurance required by Section 7.1(


c)

consist

Business Interruption Insurance to


at least of the following: a)
include Rent Insurance on an All
( prior to the Substantial Completion
" Risk" basis in an amount equal to i)
of the Hotel, not less than the annual Base Rent and annual Additional Rent, to the extent
following the Substantial Completion of the Hotel, not less thaq.
any is due, and (ii)
the aggregate amount of anDllal Base Rent, annual Additional Rent and annual Incentive Rent,if
any based
( upon the then current budget prepared by Tenant).
shall

The

against

all

reasonably

insurable risks

insurance
of
physical

loss

specified

provide coverage
in this subsection shall:i)

or damage

to the Improvements; ii)


Extra Expense coverage, with a

limit of at least One Million Dollars 1,


000, 000)
to cover

and

other extra

overtime

costs incurred to

repairing or rebuilding the damaged portion of

expedite

thePremises;

iii)

provide

coverage through the attainment of pre- existing business levels; iv)


flood and windstorm coverage to
for

contain

extent

the

v)
contain explosion caused

by steam

be
a deductible

Dollars

determined

pressure

at

commercial y reasonable rates,limits and deductibles;


fired vessels coverage which coverage may

available

provided under a separate policy reasonably approved

by Tenant,

( than for
150, 000)per loss other
($

by Owner);vi)provide for

but for not more than One Hundred Fifty Thousand


flood or windstorm, with regard to

which the

deductible
subject to adjustment
shall be a commercial y reasonable amount),
Recognized
as
loss
and
any
desi
g
nat
e
Mortgagee
payee but shall
for inflation; vii) Owner, Tenant
with respect to
be payable only to Tenant
Business

Interruption

proceeds

not

exceeding

Five Hundred

000)per occurrence; and viii)contain no exclusions, unless approved


by Owner,other than

industrystandard

exclusions

Thousand

Dollars ($500,

Bf~:

18170r -

Statutory Workers'Compensation and Disability Benefits Insurance and


b)
insurance required by law covering all persons employed by Tenant,
contractors, subcontractors, or any entity performing work on or for the Premises or the Improvements (
unless and to the extent provided by such other parties),
including Employers Liability coverage, all
in amounts not less than the statutory minimum, except that Employers Liability coverage shall

0948

any other

be

in an amount

Dollars ($

and Machinery

Insurance,

not less than One Million

c)
After Substantial Completion, Boiler
000,
1,
000).
and
ent
i
r
e
heat
i
n
g,
air-conditioning systems,in all
ventilating
covering the

its applicable forms, including Broad Form, boiler explosion, extra expense and loss of use in an amount
not less than the replacement cost of such heating,ventilating and air conditioning systems,
located on any portion of the Premises and other machinery located on any portion of the
Premises, which shall designate Tenant as named insured and loss payee and designate Owner, the
City and any Recognized
as additional

Mortgagee

Section 7.
Constnlction Insurance
10.

insureds.
Reqpirements. The insurance required by Section 7.1(

at least of

the following:

Builder's Risk
Insurance ( standard "All Risk" or equivalent coverage) in an amount not less than the cost of reconstruction,
written on a completed value basis or a reporting basis, for property damage
protecting Tenant, Owner,the City,the general contractor,and any Recognized Mortgagee, with a deductible
determined by Tenant of
not more than One Hundred Fifty Thousand Dollars ($150,
as
to flood and windstorm,with regard
e
xcept
for
inflation
(
to
000),subject
adjustment
to which the deductible shall be a commercial y reasonable amount),
to include rental payment coverage
and
projected
completion
from the
date of
extending for
d)

shall

consist

a)

least twelve (12)


months following such date of projected
insurance
covering
completion. b)
Automobile liability
any automobile or other motor vehicle used in connection with work
being performed on or for
the Premises in an amount not less
000,000)
1,
than One Million Dollars ($
a deductible determined
per occurrence, with

at

by Tenant
of

Thousand

not more

than One Hundred

Fifty

Dollars ($
150,

subject to adjustment for inflation. c)The insurance required pursuant


000),
Annual Aawea tes. Excluding Umbrel alExces Liability Insurance, if
Section 7.
7.
to Section 7.
11.
there is imposed under any liability insurance policy. required hereunder an annual aggregate which is
applicable to claims other than products liability and completed
operations, suchan annual aggregate

shallnot

be

18170Pf0949

f~:
7.
12. Det rmination of

Section
Placement

Value.

Improvements (the
according to Requirements
of

construction

a)
Definition.

Replacement Value") shall be the


in

well as the

as

Rt':

effect at

costsof

that

The current replacement value of the


full cost of replacing the Improvements

time,including, without limitation, all hard costs

post-casualty debris removal, and

soft

costs,including

limitation, architects', engineers', surveyors', assessors' and other professional fees and
fees.Upon Substantial Completion of the Premises, Replacement Value of the Improvements

without

development

shall be deemed

amount equal to the

actual

incurred or expended in connection


with the construction of the Premises as certified by the architect upon completion of the
Premises, other than foundations and fmancing and other soft costs not applicable to replacement,
adjusted for each year after completion of the Premises inaC'i,
ordance with the percentage change
by Section 7.8 above is not
in the Building Index. If the insurance required
cover
the
Replacement
then
to
within
sufficient
Value,
fifteen (15)days after such
adjustment, said insurance shall be increased or supplemented to
fully cover such Replacement Value.
In no event shall such Replacement Value be reduced by depreciation
to be

or

an

of

obsolescence

BuDding Index" shall mean the

the Improvements. b)
Buildini

costs

Index.As

used

herein, the

and Swift

Cost Index or such other published index of


selected
to time by Owner and reasonably agreed to
by Tenant, provided that such index shall be a measure of construction costs widely recognized
in the insurance industry and appropriate to the type
construction costs which shall be

and

Marshall

from time

location
Subleases. All Subleases shall require the
Section 7.13.
naming Tenant,Owner, the City and any Recognized

of the Improvements.
Subtenant to

Mortgagee

carry liability insurance


as additional insureds

limits reasonably

with

Additional Interests. All liability policies shall contain


under the circumstances. Section 7.14.
that
i
n
sur
a
the
effect
a
the nce provided under the policy is extended to apply
to
to Owner and the City. Any holder of a Recognized Mortgage which, pursuant to
prudent

provision substantial y

the Recognized Mortgage, is required to be named under any


be named under a standard

New Yorkform

ofmortgagee

or
endorsement

of

the insurance carried hereunder shall

"

l~: ,

8170p[{)

9SO

ARTICLE

8.
DAMAGE,DESTRUCTION AND
Section 8.1.

RESTORATION

the Premises are damaged or destroyed in whole or in any material part by


casualty, Tenant shall notify Owner of same as soon as reasonably pos ible

Notice to Owner.If

fire or other

after

Tenant' s
of

discovery

same.

Casual~ Restoration. a)Obli~ation to Restore. If all.or any portion


8.2.
are damaged or destroyed by fire or other casualty, ordinary or

Section

the Premises
extraordinary, foreseen or unforeseen, whether prior to or after completion of the initial construction of the
of this Article 8 and Article 2
Hotel, Tenant shaU,in accordance with the provisions
of the Hotel Development Agreement ( a copy of which is attached hereto
and incorporated
the provisions of which shall be deemed to apply
by reference herein as Exhibit 8.2;
all
Const
r
u
ct
i
o
n
necessary
to
complete
the Casualty Restoration, to the extent the same are
to
Work
not inconsistent with the terms hereof) restore the Premises to the
condition
thereof
"
Restoration"), regardless of
as
it existed immediately before such casualty (a Casualty
whether the Net Insurance Proceeds shall be sufficient therefor; provided, however, this provision shall not create any
the Completion Guarantee has expired
liability on the part of the Guarantor if,and only if,
by its terms before the occurrence of any such damage or destruction. " Net
Insurance Proceeds" shall mean the actual amount of insurance
of

paid fol owing a fire

or other insured casualty.


shall commence the
Construction
Work in connection with a Casualty Restoration within ninety ( 90)days after receipt
of the Net Insurance Proceeds by the Recognized Mortgagee or Owner arising from the
damage or destruction which caused the need for such Casualty Restoration
proceeds

b)
Commencement

of

Subject to Unavoidable Delays, Tenant


Construction Work.

such Casualty Restoration. c)


the completion of
P~
down of Mortp~ es Prohibited. No Mortgagee ( Recognized or otherwise). shall have the right
to apply any insurance proceeds paid in connection with any casualty toward payment of the sum secured
by its Mortgage to the extent that this Lease
and

shall

diligently pursue

that Tenant

requires
effect

Except as
a)

Restoration with such proceeds. Section 8.3.


Restoration Funds.
2(
otherwise be required by any Recognized Mortgage but subject to Section 8.

a
may

Casualty

Net Insurance Proceeds shall, if in an amount


adj
u
st
e
d
000),
for inflation, or less per occurrence,
500,

c),
all

Thousand

Dollars ($

paid toTenant and applied

provided
as

equal to Five Hundred


be

18170rrD951

Bf~:

for inflation, then all Net Insurance Proceeds shall be

deposited with the Recognized Mortgagee,


or, if none, with another Institutional Lender pursuant to a mutually acceptable trust agreement.
Provided Tenant is conducting the Casualty Restoration in accordance with this Lease, the Net
Insurance Proceeds shall be paid out from time to time as the Casualty Restoration progresses, ~~
upon the written request of Tenant, which request shall be accompanied by the following: ".:,' "
i)

A certificate

signed by Tenant and the architect or engineer in charge


of the Casualty Restoration, reasonably satisfactory to Owner, dated not more than fifteen (
15)days prior to such request, setting

by
engineers,

forth: 1)
that the sum then requested either has been paid
Tenant or is justly due to contractors, subcontractors, materialmen,
architects or other persons who have rendered. services or furnished materials for

specified, and stating that no part of such expenditures has been or is


being made the basis of any previous or then pending request for the withdrawal of

the

work

the Net
Insurance

Proceeds; 2)
a brief description of the

services and materials; 3)


that,
exceptfor the amount
descn" bed
in Section 8.3(
a)(
1),
there
is
i
n
debtedness
actually
i)(
no outstanding
known to the persons signing such certificate, after due inquiry, which is then due for

labor, materials, or
services in connection

cost,as estimated by

with

such

the Casualty Restoration; 4)


that the
of
the work required to
certificate,

the signing
Restoration does not exceed the amount
any amount deposited by Tenant to
persons

complete the Casualty

Insurance

Proceeds, plus

of

defray the expenses of the Casualty

that the

work

thereto, in

described

has been
a good and
workerlike

discharged

filed

respect

with

which

bas not

to

the Premises,

the

shall
Mortgagee

any vendor'

and

specifications

applicable

s,
mechanic' s,
laborer' s,

been discharged of record, except

by payment of

documentation regarding

as Owneror the Recognized

with

Restoration; and 5)

the plans

and in accordance with all Requirements; ii)


insurance company reports or such other evidence, reasonably satisfactory to Owner, to the

materi~trnan's or other lien


will be

iii)
Such other

ac ordance

Net

rn~
nner

Lien ,
waivers,title
effect that there has not been

completed in

the remaining

the
Casualty Restoration

amount

such as

then requested; and

18170rf0952
Tenant shallt

to the commencement of the

Casualty Restoration,
Casualty
by the architect
If such cost estimate or any subsequent
or engineer in charge of the Casualty Restoration.
8. 3(
a)(
i)(
4)
shall show that the cost
estimate provided pursuant to Section
excess
of
the
amount
of
the
is
in
completing
Casual
t
y
Restoration
the Net Insurance
of
Proceeds then available, Tenant shall promptly deposit with the holder of the Net Insurance Proceeds an
amount equal to such excess. The amount so deposited shall be included in the Net Insurance
b)

furnish to Owner

an

prior

estimate of the total cost of the

Restoration certified

Proceeds for all purposes

this Article.c)Upon compliance by Tenant with

of

the foregoing provisions

of this Article, the holder of the Net Insurance Proceeds shall pay to Tenant or the persons
in Section 8.
3(
to
named in the certificate referred
a),
from the Net Insurance

ofthe cost of the Casualty Re. storation


amount equal to ninety percent ( 90%)
Proceeds, an
which is evidenced by the request.At the completion of each contract or subcontract in'
connection with the Casualty Restoration, the balance of the Net Insurance Proceeds relating to that portion of the work,
to the extent of and as required to complete the payment of Casualty Restoration costs
relating to that portion of the work, shall be paid to Tenant and Tenant shall, promptly
following the release of the retainage, provide to Owner reasonable evidence that the Casualty Restoration
relating to that portion of the work
has
If the amount of any Net
been paid for in full.d)
pursuant
Insurance Proceeds, excluding deposits
by
Tenant
to Section 8.
3(b)
made
above,shall
exceed the entire cost of the Casualty Restoration, such exces , upon completion of the Casualty Restoration, shall, (

i)
if this Lease shall
Instal ment

not be

in default,be disbursed to Owner as an

Payment pursuant to the terms of Section 36.1(1)


or (ii)
if this Lease

shall be

in

default, be disbursed to Owner as Rental


hereunder or as other monies due under
3(
this
b)
Leaset as applicable. Any amounts deposited by Tenant pursuant to Section 8.
above shall be
returned to Tenant to

the extent
same are not

the

necessary

to fund

the cost of the Casualty Restoration. Section

8.4.Effect of CasualtY on this Lease. This


be forfeited or be affected in any manner, and there shall be no
except
reduction or abatement of Rental (
to the extent Owner receives the net proceeds of the
a)),
insurance described in Section 7.9(
by reason of damage to,or total or

Lease

shall

not

terminate,

the Premises or any part thereof resulting from


untenantability of,
such damage or destruction. Tenant' s Rental obligations hereunder shall continue as
though the Premises had not been damaged or destroyed and shall continue without
abatement,suspension, diminution or reduction whatsoever. Subject to Unavoidable Delays and taking into
account Tenant' s Casualty Restoration obligations ( including, without limitation, the effect of the casualty and the
Casualty Restoration on the Tenant' s ability to comply with the Quality Standard), Tenant'
s non-Rental obligations hereunder shall continue as though the

partial destruction

Premises hadnot been damaged

of,

or

destroyed
or

Rf~:

1817{)ff09Sj

ARTICLE

9.
Section

CONDEMNATION

9.

Termination of
Substantial Takini. a)

for Substantial

If all or
Premises taken
if,
after such taking, Tenant' s rights under this Lease are not affected and no rights of any
Recognized Mortgagee are affected) for any public or quasi- public purpose by any lawful power or authority
by the exercise of the right of condemnation or eminent domain or by agreement
among Owner, Tenant,RecogJ1; 7ed Mortgagee and those authorized to exercise such right, this Lease
shall terminate on the Date of Taking and the Rental payable by Tenapt hereunder shall be apportioned
and paid to the
1.

Substantial y All

of

the

Lease

Takini.

(excluding a taking of the fee interest in the Premises

are

of Taking. b)
Disbursement of

If all or Substantial y All of


provided
in Section 9.
the Premises are taken or condemned as
1(
the Net
a),
Condemnation Award paid or payable to Owner, Tenant or any lender or mortgagee claiming through either
of them in connection with such taking or condemnation
shall be paid as follows: 1
( )there shall
first be paid to Owner that portion of the Net Condemnation Award equal to the Purchase Price
on the date of such taking; 2)there shall next be paid to the Recognized
Mortgagee so much of the Net Condemnation Award as shall equal the unpaid
principal indebtedness secured by such Recognized Mortgagee with interest thereon at the rate specified therein to
Date

Award.

the date of payment ( includingany


called " yield maintenance"
prepayment fees thereon andany soor make-"
whole"amounts or other sums intended to assure to the Recognized Mortgagee a certain rate

return under the loan secured by the Recognized Mortgage, if any, as well as any costs
payable by Tenant in connection with such Recognized Mortgage pursuant to any " swap"
interest rate protection or hedging mechanism); and (3)
or other
the remaining
of

Net

Condemnation

Award

shall be

disbursed

to

Tenant. c)
Defmitions.

i)
Date

of
"
Taking"

means

( )the date on which actual possession of all or Substantial y All of the Premises, or
the earlier of 1
is acquired by any lawful power or
authority
any part thereof, as the case may be,
the
date
on
which
all
or
Subst
a
nt
i
a
l
y
All
pursuant to the provisions of applicable law or 2)
(
title to
of

the Premises, or any part thereof, as


power
All

of

the

or

case may be, has vested

authority pursuant to the

Premises" means such portion of

Tenant' s good faith determination,


the

the

part so taken

the

Premises

provisions

of

as,when

so

in any lawful

applicable

Substantially
"
law. ii)

taken,would leave, in

Premises that,due either to the area so taken or the location of


in relation to the part not so taken,

a balance

of

the

would not, under economic conditions, physical constraints, zoning laws, building regulations and
other Requirements then existing, readily accommodate a new or reconstructed building or buildings and
other improvementsof

a type

comparable
fully

B~~:

18170fr0954

existing at the Date of Taking. Tenant shall notify Owner, on or about the Date of Taking, in
writing of its determination as to whether or not " Substantially All of the Premises" has been
taken. If Tenant does not determine that " Substantially All of the Premises" has been taken,
then this Lease shall not terminate and expire but shall continue in force and effect, subject to the
9.If Tenant determines that Substa"
ntial y All of the
other provisions of this Article
Premises" has been taken, then this Lease shall terminate and expire on the Date of Taking pursuant
to

Section

9.

Net"
ill)
Condemnation Award"
a).
'
shall mean the actual amount
1(

of the award paid in connection with or arising from the acquisition or other taking of all
or Substantial y All of the Premises or any portion of the Premises by any authority,
lessall reasonable
ofOwner,Tenant or RecogJ' li7.ed Mortgagee in connection
pocket expenses incurred by
outi
n
cl
u
di
n
g,
with obtaining such award,
without limitation, all reasonable attorneys' fees
and disbursements incurred
connection therewith. Section 9. 2.Less

in
than

Substantial Taki11l. a)
Takini of Less than Substantially

purpose

by

any lawful

All of the

of the Premises are taken for any public or quasi- public


power or authority by the exercise of the right of condemnation or

Premises.If less than Substantially

All

eminent domain or by agreement among Owner,Tenant, any Recognized Mortgagee and the
entity

to or after the completion of the initial construction


of the Hotel,this Lease shall continue for the remainder of the Term ( subject to
paragraph b
( )below) without diminution of any of Tenant' s obligations hereunder, but with a fair

authorized

to

exercise

such right, whether prior

and

abatement of Rental.b)ObIiiation to Restore the Premises.If less than


as
provided in Section 9.2(
Substantially All of the Premises are taken
a),
whether prior to
or after the completion of the initial construction of the Hotel, Tenant shall, in accordance
with the
provisions of this Article 9 and Article 2 of the Hotel Development Agreement (
hereto and incorporated by reference herein as Exhibit 8.
a copy of which is attached
2;the provisions of which shall be deemed to apply to all Construction Work
necessary to complete the Condemnation Restoration, to the extent the same are not inconsistent with
the terms hereof) restore the remaining portion of the Premises, to the extent feasible, to the
condition thereof
as it existed immediately before such taking (a Condemnation
equitable

Restoration"),
regardless
Disbursement.
Condemnation Award shall be sufficient therefor. c)
of the Premises are taken as provided in Section 9.
All
IfIess than Substantially
or mortgagee claiming through
2(
a),
the Net Condemnation Award payable to Owner, Tenant and any lender

of

whether

either of them shall

the Net

be paid as follows: (1)


first to the cost

of

the

Condemnation Restoration; (2)


second to Owner for payment of the Purchase Price, or if the

Net CondemnationAward

than
isless

the

tb:
shall be applied

subject

to the

Award

3)
to the Purchase Price as an Installment Payment;and (
rights of any Recognized Mortgagee).
Commencement of Construction Work.

d)

Tenant shall

18170rnJ95S

commence

Subject

the Construction Work in connection with

to

third to Tenant

Unavoidable

Delays,

Condemnation Restoration

within ninety (
90)days after receipt of the Net Condemnation Award arising from the
taking which caused the need for such Condemnation Restoration and shall diligently pursue
the completion of such Condemnation
Mort~~ es
Paydown of
Prohibited. No Mortgagee (Recognized
e)
or otherwise) shall have the right to apply any award proceeds paid in connection with any
taking toward payment of the sum secured by its Mortgage to the extent that this Lease requires
that Tenant effect a Condemnation Restoration with such

Restoration.

Section 9.

proceeds.

If in
Restoration Funds. a)

connection with a taking the Net Condemnation Funds


are in excess of Five
500,000),adjusted for
Hundred Thousand Dollars ($
inflation, then the Net Condemnation Award shall be deposited with the Recognized Mortgagee, or,
if none,with an Institutional Lender pursuant to a mutually acceptable trust agreement. Except
as may otherwise be required by a Recognized Mortgagee, if such Net Condemnation Funds are less
than or equal
to Five Hundred Thousand Dollars ($500,000),adjusted for inflation,.
Tenant to be applied as provided
the same shall be paid directly to
herein.Provided Tenant is conducting the Condemnation Restoration in accordance with this Lease, the Net
3.

paid out from time to time as the Condemnation Restoration


progresses, upon the written request of Tenant, which

Condemnation Award shall

be

A certificate signed by Tenant


accompanied by the following: i)
charge
of
the Condemnation Restoration, reasonably satisfactory
engineer in
not more than fifteen
request

shall be

and the architect or

to Owner, dated

15)days
sum

then

requested

prior

to

such request, setting

either has been paid by

forth:1)
that the

Tenant or

is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who
have rendered services or furnished materials for the work specified, and stating that no part

of such expenditures has been


then pending
request

that, except

I),
thereis no outstanding

for

or

is

being made

the basis of any previous or

for the withdrawal of the Net Condemnation

and materials; 3)
a brief description of the services
Award; 2)
i)(
a)(
the amount described in Section 9.3(

actually
indebtedness

18170ff09S6certificate,

R~[

after due inquiry, which is then due for labor, materials, or


with the Condemnation Restoration;4)
that the cost,

as

estimated

services

in connection

by the persons signing such

required to complete the Condemnation Restoration does


not exceed the amount of the remaining Net Condemnation Award, plus any
amount deposited by Tenant to defray the expenses of the Condemnation
certificate, of the work

Restoration; and
5)
that the work described has
accordance with
workerlike

manner

plans

waivers, title company

Lien
ii)

Requirements;

evidence, reasonably

and specifications applicable


and in accordance with all

the

satisfactory to

been completed
thereto, in a good

reports

in
and

or such other

Owner, to the effect that there has not been filed

with

respect to

mechanic' s,
laborer' s,
materialman' s or other lien which has not
the Premises, any vendor' s,
been discharged of record,except such as will be discharged by payment of the amount then

requested;

and
Restoration

as

Owner

or

the Recognized
Tenant
b)

require.
Restoration, furnish to
the

architect

any
that

Such other documentation regarding the Condemnation


ill)

Owner

the

shall reasonably

shall,prior to the commencement of the Condemnation

an estimate of the total cost of the Condemnation Restoration

or engineer in charge of the Condemnation


subsequent

estimate provided

pursuant

to

the cost of completing the

of the Net Condemnation Award

of

Mortgagee

Net

Condemnation

Condemnation

Section

9.

certified

by

Restoration. If such cost estimate or


3(
a)(
i)(
4)shall show

Restoration is in excess of the amount

then available, Tenant shall promptly deposit with the holder


equal to such excess.The amount so deposited shall be

Award an amount

included in the Net Condemnation Award for all


purposes

Upon compliance by Tenant


of this Article. c)

with the foregoing

provisions of this Article, the holder of the Net Condemnation Award shall pay to Tenant or the
3(
a)(
i),
from the
in Section 9.
refer ed to
persons named in the certificate
of the cost of the
(
an amount equal to ninety percent 90%)
Condemnation Award,
the
completion
of each contract
Condemnation Restoration which is evidenced by the request. At
or subcontract in connection with the Condemnation Restoration, the balance of the Net Condemnation Award relating
to that portion of the work,to the extent of and as required to complete
the payment of Condemnation Restoration costs relating to that portion of the work,shall be paid to
Tenant and Tenant shall, promptly fol owing the release of the retainage, provide to
Owner reasonable evidence that the Condemnation Restoration relating to that portion of the
Net

work hasbeen paid for

full.
in

8 17Grr09Jr

f~: ,
d)

If the amount of any Net Condemnation Award,

by Tenant pursuant to Section


the Condemnation Restoration, such

9.

excess,upon

completion of the Condemnation

if this Lease shall not be in default,be disbursed


to the

terms

to

Owner as

of

Section

excluding deposits

made

b)
above, shall exceed the entire cost of
3(
to Owner

as

Restoration, shall, (i)

an Installment

pursuant

Payment

36. 1(t)
or ii)
( if this Lease shall be in default, be disbursed

Rental hereunder or as other monies

due

under

this

Lease, as

3(b)
above shall be returned
Any amounts deposited by
Tenant pursuant to Section 9.
fund
the
same
are
not
necessary
to
extent
the

applicable.

to Tenant to

costof the

the
Condemnation

y Taki~.a)
Notice of Tem, porBlY

Temporm:

Restoration. Section

9.4.
or
any
temporary use of the whole

Takin&.If

a public or.
is taken
the
exercise
of
power
the right
of condeIimation or eminent domain or by agreement between Tenant and those authorized to exercise
business days thereof. The Term shall not
such
right,Tenant shall give Owner notice within five (5)
be reduced or affected in any way by reason of such temporary taking and Tenant shall

the
quasi-public

purpose by a lawful

portion

of

the Premises

or authority

for

by

pay to Owner the Rental without reduction or abatement; provided, however, if such temporary
days, then such taking shall
taking is for a period in excess of ninety 90)
(
deemed a permanent taking
continue

to

be

1 and
9.2,as
the provisions of Sections 9.
applicable, shall apply. b) TernporaIY Takini Not Extendin~Beyond the Term.If the temporary taking is
for a period not extending beyond the Term (including a taking restricted entirely to Tenant' s Interest in
the Premises and not affecting Owner' s Interest in the Premises in any
award it receives in compensation therefor toward a Condemnation
way),
Tenant shall apply the
9.
3,and Tenant shall, subject to the rights
Restoration in accordance with Section
of any Recognized Mortgagee, pay any remaining

and

pursuant to the terms of


as an InstalmentPayment
Extendil\ i Beyond the E' tPiration of the
c) Tempom: y Takin~
Section 36.1( 1).
for
period extending beyond the Expiration of the
a
Term.If the temporary taking is
3 to
Term, the award or payment shall first be disbursed pursuant to Section 9.
be applied toward such restoration of the Improvements as may have been necessitated

ofsuch award

amount

by

toOwner

such taking,and the

remainder

shall

be

Section 9.
between Owner and Tenant as of the Expiration of the Term.
In
of
any
gover
n
ment
a
l
action
Governmental Action Not Resultin~ in a Takin~. case
not resulting in
5.
the taking or condemnation of any portion of the Premises but creating a right to compensation therefor, such
equitably

apportioned

as the changing

then thisLease shall continue

of

the grade of

full
in

any

street

upon which the Premises abut,

18170r D958

f~:

fIrst to reimburse Tenant for any Construction Work performed by Tenant resulting from such
9.
governmental action and any balance shall be distributed in accordance with Section
2(

Section 9.
c).

Each of the parties

execute such documents


be reasonably required to facilitate collection of any awards made in connection
condemnation pr~ing referred

6.
Collection of

Awards.

Section 9.7.
Ne~otiated Sale.In the event

Premises in lieu of

of a

the

condemnation,

proceeds

negotiated sale of all

shall

or a portion of

be distributed

provided in cases

as

of condemnation. Section 9.
Intention of Parties. The existence
8.

of

any present or

notwithstanding, Tenant and Owner waive all rights to quit or


or any part thereof by reason of any condemnation or taking
future law

as may
with any

in this Article.

to

the

shall

or

statute

the Premises

than

of

less

Substantially

All of the

Intentionally Omitted. Section


9.

surrender

Premises.

Section 9.

9.

this Lease shall


provided in Section 9.
1,
and there shall be no reduction or abatement

not

10. Effect of Takin~ on this Lease. Except as


terminate, be forfeited or be
reason of

affected

in

any manner,

any
taking of the
of Rental, by
as
provided
in
Section
9.
2(
a),
Tenant' s
Except
Premises
Rental obligations hereunder shall continue as though the Premises had
not been taken and shall continue without abatement,suspension,diminution or reduction
whatsoever. Subject to Unavoidable Delays and taking into account Tenant's Condemnation Restoration obligations( including, without
limitation, the effect of the taking and the Condemnation Restoration on the Tenant' s
ability to comply with the Quality Standard), Tenant' s non-Rental obligations hereunder

or any part

shall

continue

thereof.

as though

the
Premises had not been taken and
continue without abatement, suspension,

shall
diminution

reduction whatsoever.ARTICLE 10.


SALE

or

THE
OF

18170rf0959
Assignment" means a sale, exchange, assignment, transfer or other
portion of Tenant' s Interest in the Premises, whether by operation
disposition by
of law or otherwise, which is not a Transfer or a Sublease. The creation or granting of a
Mortgage shall not constitute an Assignment or a Transfer.
i) "

Tenant of all

or a

Assignee" means a purchaser, assignee, transferee, orotherPerson


portion of Tenant' s Interest in the Premises.

ii) "
which

acquires

all

or

any

ill) "

Back Rent"

means

the amount of

interest

accrued

Reinstatement Date,

the

unpaid

Rental

as

of the

Rental from the date due at

unpaid
simple
including
as
well
as reasonable attorneys' fees and
in
the
Recognized Mortgage,
specified
costs at the trial court and all appellate levels and other expenses incurred by Owner in connection
with enforcing this Lease.
on

the default rate

iv) "
or

refmancing

Transaction"

Equity

Interest"

means an

Assignment, Transfer, Sublease

of the Debt.
v) "

legal other

Capital

means,

with respect to any

ownership

or

entity, ( 1)the
non-voting stock

of outstanding
beneficial
such entity if such entity is a business corporation, a real estate investment trust or a
entity, ( 2)the legal (other than as a nominee) or beneficial ownership of
similar
any partnership, membership or other voting or non-voting ownership interest in a partnership,
similar entity, ( 3)
a legal ( other than as a
joint venture, limited liability company or
a trust and 4)
( any
nominee) or beneficial voting or non- voting interest in a trust if such entity is
other voting or non- voting interest that is the functional equivalent of
than as

nominee)

voting or

of

" of the Hotel" means any Assignment


of the foregoing. vi)Sale
Tenant of fifty percent (50%)or more of Tenant' s Interest in the Premises, a Transfer, a
by
Sublease or a sale of the Restaurant so long as the proceeds or substantial y all of the proceeds
of such sale of the Restaurant ~ e not required by the terms of a Recognized Mortgage to
any.

be applied
does

to the
not

reduction of such Recognized

Mortgage. "Sale

of

the Hotel" does not mean, and

an Equity
from the holder of
or child (
to a mother, father, spouse,brother, sister
Interest in Tenant ( 1)
2)
trust
thereof,
of
that
to
any combination
an Immediate
" Family Member"),or
holder; (
a whose sole beneficiary(
an Immediate Family Member
a holder of an Equity Interest in Tenant or (z)
ies)is y)(
( to a personal representative of the estate
of a
holder of an Equity Interest in Tenant; 3)
deceased holder of an Equity Interest in Tenant; ( 4)to a Person in which a holder
of a
holds, directly or indirectly, the Substantial Controlling Interest; or (
of an Equity Interest in Tenant
Equi
t
y
in
I
n
t
e
r
e
st
an
5)
to any other holder of
Tenant; ( for purposes of this Section lO. l(
vi)A only,the term " transfer" shall include a transfer of an Equity Interest in a Person

include,

A transfer
any of the following: A.

or
Persons havingan Equity Interest,directly

or

indirectly,

18170fr0960

Bf~:
B.

A Foreclosure Transfer to
to the Hotel

however,

prior
Instrumentality; provided,
be
shall
its
or
subject
Designee
Mortgagee

to Owner' s

Person that is
Date, any sale

Opening
approval.

not

by

Foreign
Recognized
a

33, the sale, lease or


Subject to the provisions of Article
disp,?
sition of
other disposition of the Restaurant so long as the proceeds of the sale or
other
the Restaurant are required by the terms of a Recognized Mortgage to be applied directly to
the reduction of such Recognized

C.

shall (1)not be

vi)A
Mortgage. Any Transfer pursuant to Section lO. l(a)(
satisfy the provisions of Section
Instrumentality and 2)

to a

Foreign

a sub(
e).
l(
means any sublease including
vii)Sublease"
"
the Premises, but does
sublease or any further level of sublet ing) of all or any portion o(
Mortgage or subleases in
a
Recognized
not include subleases serving the functional equivalent of

lO.

provided in Article 33 as
business (e.g.,
subleases for restaurants (except as
to the sale,lease or other
disposition of the Restaurant), parking, retail space or other
greater than
in the event of a sublease of
that
space at the Premises; provided, however,
of the parking on the Premises, Owner shall have the
fifty percent ( 50%)

the ordinary

course

of

to approve the subtenant). viii)


Subtenant"
" means any party
under a Sublease or by any other Subtenant ( immediate
right

rights

by

Tenant

granted

i)
a Sublease. ix)
Transfer" means
( any change, by
"
operation of law or otherwise, in ownership of an Equity Interest in Tenant, where such
change in ownership directly or indirectly produces any change in the Substantial Controling Interest
( any transaction or series of transactions, by operation of
of Tenant, or ii)
or

remote)

law or otherwise, including, without

under

limitation, the

issuance

of additional

Equity

Interests or the direct

of the beneficial ownership or control structure of the


of Tenant or any direct or indirect constituent entity of Tenant, which, in
produces any change, by operation of law or otherwise, in the

or

indirect

revision

Substantial

Controlling

Interest in

or operation

either case,

means a Person to
"
Tenant.x)Transferee"

No Sale of the Hotel Prior


a Transfer is made. b)
Hotel QpeniJli Date.Notwithstanding anything in this Lease to the contrary, there shall not be

which

the
Hotel

management

to
any Sale of the

prior
to

the Hotel Opening Date. c)Sale of the Hotel

After the Hotel Opening Date,Tenant may effect


Person.i)
a Sale of the Hotel to an African- American Person, approved by Owner, that
distributed, to the extent
is not a Foreign Instrumentality, provided that the Net Sale Proceeds are
to

available, inthe following order:

an African- American

JNM\
A:\

18170rf0961
1)to Tenant, in an

amount equal to the funded equity as

entitled "Sources and Uses of Cash"


i)(
1)
c)(
1(
attached
plus
hereto and incorporated by reference herein (the Funded
additional
equity
"
Equity")
any
funded
by Tenant to complete the Hotel after the Commencement Date not to exceed an amount
equal to
shown

on

10.

Exhibit

of the Development
ten percent ( 10%)
Budget ( collectively, the "Initial Equity'');
to Tenant, in an amount
2)

to

return of

equal

percent 18%)
per

eighteen

annum,

simple interest, on the Initial Equity; 3)


to Tenant, in

aggregate cash advances made by Tenant to cover Operating Deficits and


to pay for replacements and repairs and restoration after any casualty which are not Operating Expenses and
which are in excess of the amount available in the FF&E Reserve Account or available insurance proceeds,
not
as the case may be,
to exceed, in the
an amount equal to

the

aggregate,

Tenant, in

an amount

equal

;
)
Five Mil ion Dollars ($5,
000,000f( the "Additional Equity'')4
to

to a

return

of fifteen percent 15%),


per

annum, simple interest, on the

to Owner, in
Equity; 5)

to

Additional

an amount equal

the Purchase Price;and 6)any remaining sums shall be paid to Tenant.ii)

In the event of a Sale of the Hotel to such African- American Person,the amount of any
new financing in connection with such sale shall not exceed the market loan- tovalue ratio,pertaining to existing hotels,then prevailing among Institutional Lenders at the time of

such financing; provided, however, Owner shall not be entitled


any such fmancing in connection

of

with

to

participate

such sale as provided

in the
in

proceeds

Section 11.
13(

d)
Sale of the Hotel to a Person Who is Not an African- American Person. i)
Tenant may not effect a Sale of the Hotel
to a Person who is not

b).

an

African- American Person

expiration

to the expiration of five ( 5) years from the Hotel

Opening

is
of the Hotel to a Person who
not
a
Foreign
is
after
the
Instrumentality
that

Date.ii)
Tenant may effect a
not an African- American Person

prior

Sale

years from the Hotel Opening


of five (5)

Date;

provided, however, that

Tenant

firstpurchases or simultaneously purchase

all of

Owner'

as P ADC Hospitality Corporation I,


a Florida corporation,or
at any time, R.
its Affiliate has an Equity Interest in Tenant, in the event that,
Donahue Peebles or the General Partner of Tenant becomes insolvent ( which, for
thepurposes hereof, shall be defined
s

Interest in the

Premises.

as the occurrence
h)withthe

For so long
ill)

of any of

wordTenant"
being
"

replaced

the

eventsdescribed

in Sections

2S.

1(

e)-(

18170f[)

is applicable), then, in that event,Tenant may effect a Sale of the Hotel


year
Hotel Corporation, a Tennessee corporation,provided that,within
one 1)
(
from such Sale of the Hotel,Town Park Hotel Corporation shall sell all of the Equity Interest it
acquired from Tenant from such Sale of the Hotel to another African- American Person, failing which,
Town Park Hotel Corporation shall pay the entire Purchase Price stated in this Lease
962

corporation",whichever

to Town Park

Owner.e)
Additional Restriction on Sale of

to

in Sections

lO.

this Lease

l(
(
Tenant may
c) and d),

to the contrary,

hotel room

not

Tenant may not effect a Sale

condominium

the Hotel. Except as specified


the Hotel.Notwithstanding anything in
of the Hotel by selling individual

effect a Sale of

units, cooperative units or time-

units.t)
African- American

ardin~
Person Ownership ReqJIirements Re~
and
the
City'
s
deci
sion
s
to make a substantial commitment to provide the African- American community with
a significant opportunity in the
hospitality industry, and (2)
the intent and language of the RFP issued
by Owner, at all times during the Term an African-American Person or
African- American Persons coUectively shall hold, directly or indirectly, the Substantial

share

Tenant' s Interest in

Interest in

Control ing
this Lease

the Premises.

to the

be subordinate after any Sale

Consistent

with (

1)
Owner'

Subordinated Amount.
Tenant.g)

Notwithstanding anything in

contrary, the new amount to which Owner' s interest in the Rental shall

of

the Hotel shall never

exceed

the Subordinated Amount as of the time of

such
Payment of
of the Hotel.h)

Sale

Twenty-Five (25)Years. Notwithstanding

Purchase

Price

after

in

this Lease to the contrarY, Tenant must pay to Owner no


of
years from the Hotel Opening Date,the full
expiration
twentythe
five 25)
(

later than

anything

Purchase Price of
s Interest in the Premises. i)
Distribution of Net Sale Proceeds

Owner'

the

by a Recoinized Mortiaiee. If a Recognized Mortgagee becomes the


result of a Foreclosure Transfer and subsequently sells its interest in
the Hotelt thent in that event,unless such Recognized Mortgagee, in connection with such sale,
pays to Owner Back Rent and the Purchase Price in fullt such Recognized Mortgagee shall be
obligated to apply the Net
Sale of

the

from

Hotel

Tenant under this Lease as a

Sale Proceeds in the following

to the Subordinated Amount

as

order: 1)to itself,in

the

time of

such

amount equal to all the Back Rent excluding


(
included as part of Back Rent)then

of

amount equal

of the time of such sale, including all accrued interest


thereon at

outsandigas

an

interest,

sale; 2)to Owner, in

an

attorneys' fees, costs and other expenses

18170flOO63
amount equal to the Balance as of the time of
judgment interest), and costs
such sale,including all accrued interest thereon (including all postand expenses related thereto as of the time of such sale, less the amount specified in
3)to itself, in an

Section lO. l( i)(


to Owner, in
l);
4)
of the time of

paid under

such

sale on the

Back

Rent

plus

an amount

equal to all

that portion of Back

accrued interest owing as


Rent
to be
not required

Section

i)(
2);
lO. 1(
5)
to Owner, in an amount up to the
of the

Purchase Price. If the amount paid

be

6)
any remaining sums shall
i),
in the event that a Recognized

deemed
be paid to

Owner under this

to

5)
is insufficient to equal the Purchase Price, such
to

payment

be an

Section

amount

10.1(
i)(

shall

Installment Payment; and

itself.For purposes

of this Section 10. 1(


Mortgage becomes a Tenant under this Lease as a result
the
a
foreclosure
sale,
Balance shall presumptively be deemed to equal the amount
of
of such Recognized Mortgagee' s foreclosure judgment, together with all costs and expenses incurred by
such Recognized Mortgagee in connection with taking title to Tenant' s Interest in the Premises ( but only
to the extent such costs and expenses are not already included in such foreclosure
judgment) and

interest

on such

foreclosure judgment at

term Net
" Sale Proceeds" means, with respect

applicable statutory post- judgmett rate. G)


The
arms- length transaction with

the

to an

parties,the actual selling price less brokerage commissions, taxes and other prorations
and all reasonable and customary closing and selling costs (including without limitation, all reasonable
unrelated third

actually paid in connection with the sale.k)


Capital
Notice to Owner. Subject to Requirements, Tenant shall provide notice to Owner of any
than
later
2)
Days
after the
s
consent
requi
r
i
n
g
Owner'
two ( Business
not
Transaction not
which
occurrence of such Capital Transaction or promptly after becoming aware of a Capital Transaction to
Tenant is not a party.
attorneys'

Assignee

fees and costs)

k)
shall
by this Section 10.1(

The

notice

contain

the following information: i)


the name and address of the

required

or

nature of the Capital Transaction and the percent interest conveyed;


and iii)
if the applicable Capital Transaction is a sale of the Restaurant, then Tenant shall
if the Assignee or Transferee is not a Public Company, disclosure of
provide OWner with (x)
Transferee;

theownershipof

theControl ing

ii)the

of
Interest

8 '
70frDg6~ the extent that such information
inquiry, and (

is

reasonably available to Tenant

y)a copy of the instrument described in Section lO.

l(n)as

after making reasonable


it applies to the

Restaurant. 1)Approvals. In any instance in which a Sale of the Hotel requires


shall submit to Owner a written request for Owner' s consent to such Sale
s
consent,
Tenant
Owner'
of the Hotel,which request shall

the

include

and a description of the nature and


character of the business operations of the proposed Assignee or Transferee, including, without
limitation, the name and address of the Person that the proposed Assignee or Transferee intends to engage
as the
fol wing

information:

i)
the

name, address

the proposed Assignee or Transferee ( or its parent,


if such parent owns, directly or through its subsidiaries, all or substantial y all of such
proposed Assignee
or Transfere ) is a Public Company, Tenant shall provide a copy of the
security ownership information disclosed in the most recent filing for such company ( or any Person filing
Act of 1934, as amended, or
with respect to such company) under the Securities Exchange
its successor, with the Securities and Exchange Commission
Hotel

Manager; ii)A)
( if

or
mTransfereeis~ a~~
C~~
and is a

its

successor;

posedAsm~

ifthe~

shall provide a

partnership,
certificate from the managing general
partner or other authorized Person of the proposed Assignee or Transferee, which certificate
shall contain the names of i)
any general partners holding ( whether individually or together
(
than five percent (5%)
with their respective Affiliates) more
of the general partnership
any
interests in such proposed Assignee or Transferee ( a "Designated Holder")and ii)
(
with
together
their
respecti
v
e
whether
individually
more
than
ten
Affiliates)
limited partners holding (
or
of the limited partnership interests in such proposed Assignee or
percent (10%)
ted Holder");provided, however, that if the general partnership interests
Transferee ( also, a Designa"
to
less than fiftypursuant
B)ag regate
to
disclosed
the foregoing provisions of this paragraph (
of the general partnership interests in such proposed Assignee or Transferee,
one percent (51 %)
then there shall be disclosed the names of the President, Chief Operating Officer,
the individuals holding the equivalent positions), and members of the
Chief Executive Officer or
(
Board of Directors ( or other governing body)
of

Tenant

the proposed

Assignee or

Transferee;

C)
if the

proposed

Assignee

and
is a limited liability
~Company
or Transferee is not a blic
p
a
r
t
n
e
r
s
h
i
p
or
corporation), Tenant shall provide a
than
other
other
a
or
entity (
certificate from the managing member, trustee or other authorized Person of the proposed Assignee
Person holding ( whether individualy or
or Transferee, which certifcate shall contain the names of i)
any
(
interest comprises more than five
together with its Affiliates)a voting interest which voting
trust
LLC,
or
Designated
in
(
percent ( 5 of
the total voting interests
%)
other entity a
"
such
whether individuaUy or together with its Affiliates) a
Person
holding
(
any
and
(
Holder") ii)
of the total
voting interest comprises more than ten percent ( 10%)
non-voting interest which nontrust
company ("LLC"),

non- votinginterests in such

trust
LLC,

18 ,

"Bolder");provided, however, that if the voting


other entity ( also, a Designated
interests disclosed pursuant to the foregoing provisions of this paragraph ( C)
aggregate to less than
percent (51 of
%) the total voting interests in such LLC, trust or other entity, then
fifty-one

70ff0965

there shall be

the names of the

disclosed

individuals

or

the
holding the
or other governing body) of the proposed

President, Chief

Operating Officer,Chief

equivalent positions),and members of the Board

of

Executive

Officer (

Directors (

Assignee

Assignee or Transfere is a
certificate from an authorized officer
corporation that is not a Public Company, Tenant shall
or other authorized Person of the proposed Assignee or Transferee, which certificate. shall
any holder whether
contain the names of i)
( individually or together with its Affiliates) of voting
(
Transferee; D)if

or

the

proposed

provide a

five percent ( 5 of%)


any class of the
stock which voting stock comprises more than
a "
Designated Bolder"),and (ii)
outstanding voting stock of such corporation (
any holder (
than ten percent ( 10%)
of any
whether individually or together with its Affiliates) of more
of
stock
corporation
(
of
the
outstanding
a
Designated
"
Holder");provided,
such
nonvoting
also
class
however, that if the voting interests disclosed pursuant to the foregoing provisions of this
%)
than fifty-one percent (51 of
paragraph (D) ag regateto
each class of the outstanding
less
voting stock of such corporation, then there shall be disclosed the names of the President,
individuals holding the equivalent positions), and
Chief Operating Officer, Chief Executive Officer ( or the
or
Di
r
e
ct
o
r
s
(
body)
members of the Board of
of
other governing

disclosed

proposed Assignee or Transferee; E)


with respect to any
the
there shall also be disclosed the name of
C)
or
(D
(
),
paragraphs ( B),

to
Designated Holder
the natural person or Public Company holding, directly or indirectly through one or
more intermediaries, a Controlling Interest in such Designated Holder; provided, however, that if no natural
person or Public Company holds a Controlling Interest in such Designated Holder.then there shall be
disclosed the names of the President, Chief Operating Officer, Chief Executive Officer (
or the individuals holding the equivalent positions),and members of the Board of Directors ( or
other governing
pursuant

body)

of

officer, managing

the Designated

Holder;

ill)
a

applicable instrument

certificate of an
authorized Person, whichever
Transferee stating whether the

partner, managing member, trustee,or other

authorized
shall be applicable, of the proposed Assignee
Substantial ControIIing Interest in the proposed Assignee or Transferee
American Person or African- American
general

Person

collectively

proposed

Sale

or

is held

by

an African-

the principal terms and conditions of the


if then applicable; iv)

a
of the Hotel; v)

proposed form of the

described

in

with

respect

to

Section
the

JNM\ CMB\
Owner todetermine the financialA:\

lO. l(
n);
vi)
banking and financial

information

proposed Assignee or Transferee reasonably sufficient to enable

18170ff.

R~~:
0966

responsibil ty of

the proposed

Assignee

or

Transferee, to the

extent reasonably

available

to Tenant;
such other additional information as Owner shall reasonably
vii)
request in connection with its evaluation of the proposed Sale of the Hotel, to the extent
ten 10)
( Business
reasonably available to Tenant;provided Owner shall make such request within

and

Days

after receipt

of

Tenant' s

for

request

consent. m)

Owner'

consent or refuse to consent


in accordance
to Section 10.1(1)
Business Days after receipt of Tenant' s request for

s Approval. Owner

shall

any transaction proposed pursuant


with Article 26 hereof within ten 10)
consent or Owner's receipt of such additional information. Notwithstanding the foregoing,
if any change in circumstances prior to the closing of the proposed Sale of the
1(
1)materially incomplete or
Hotel renders the information provided in Section 10.
materially incorrect, any consent previously given by Owner shall be deemed nuU and void and Tenant shall
the receipt of such notice,Owner shall thereupon
notify Owner of the change. Upon
have ten (10)Business Days to notify Tenant whether Owner' s consent

to

of the Hotel is given or


denied.Notwithstanding anything to the contrary contained herein, Owner' s decision whether to consent or refuse to
1)shall
consent to a proposed Sale of the Hotel pursuant to Section 10.
1(

to such

changed Sale

whether the proposed Assignee or Transferee has the


only upon the following factors: (i)
if the
f
i
n
anci
a
l
obligations of Tenant under this Lease; ( ii)
capability to carry out the remaining
does not intend to engage)
(
proposed Assignee or Transferee is not and
a Permit ed Operator, whether the proposed Hotel Manager which such proposed Assignee or Transferee intends to engage for
the capability to carry out the obligations of the Hotel Manager
the Hotel has
whether the proposed Assignee or Transferee is an African- American Person if
(
under this Lease; iii)
be based

then applicable;
and (

such other reasonable matters


iv)

ments.
the Hotel In.~

In

to Owner, or shall
the execution

the

case of

to

relating

to the

proposed

Sale

of

the Hotel. n)
Sale of

shall

a Sale of the Hotel,Tenant

be delivered

to Owner,within ten (10)Business

cause
and delivery thereof,a true

and

correct

Days

deliver
after

copy of

effectuating such transfer, including an


the instIUment( s)

instrument

of assignment and assumption, if

Assunwtion of Liability. If Tenant does not survive a Sale of the Hotel as the tenant
applicable. 0)
Premises, then
under this Lease and the holder of the Tenant' s Interest in the
the other
this
Lease,
to
assume
deemed
and
be
the successor to Tenant shall assume
Documents and the Declaration of Condominium ( if any) to the extent that Tenant ( or any Assignee,

Project

shall
Transferee or Subtenant) is a party or
( a successor- in-interest to a party)thereto and
compliance
be liable for the payment of Rental and the performance of and
the
Document
s
and
Lease,
Project
the
with all the terms,covenants, conditions and agreements contained in this
interest
of Condominium (
any)on the part of Tenant ( or any successor- in-

if

Declaration
to Tenant)

tobe

performed

from
accruing

18170r :

W~~:
0967

Sublease ( provided, however, that such Assignee,Transferee or Subtenant shall be liable for
any Defaults of Tenant continuing after the date of Assignment, Transfer or
Sublease).
binding
Assignment,
Transfer
shall
on
or
Sublease
Owner
unless
and
until
No
be
such
Assignee,Transferee or Subtenant shall enter into a written agreement containing a covenant of
assumption as
aforesaid. Upon Owner' s receipt of such assumption instrument from such
Assignee, Transferee or Subtenant, Tenant shall, to the extent Tenant has conveyed the entire Tenant'
s Interest in the Premises be released from liability accruing after the date of such
Assignment, Transfer or
Invalidity of
Transactions. Any Sale of the Hotel entered into
p)
without Owner' s consent as and if required in this
Article 10 or sought to be entered into
without the execution, and delivery to Owner
within ten 1
0)
Business Days thereafter,
(
the
p
r
o
v
i
d
e
d
in
Section
10.
n)
unless such Capi(
of instruments
I(
tal Transaction is effected by
operation of law, in which case no such instrument shall be required),sliall have no validity and shall
be null and void and without effect until such time as such consent i
( frequired) is obtained

Sublease.

and/ or

instruments

such

aredelivered.

2.
Sublease
10.

Section

Each

ReQ}lirements. a)
Required

Sublease shall provide as

It
follows:i)

Sublease

Clauses.

is

subordinate

Except for security deposits


and subject to this Lease. ii)
and any other amounts deposited with Tenant or with any Recognized Mortgagee in connection
with the payment of insurance premiums, real property taxes and assessments and other similar charges or
expenses, and any rent paid in advance upon execution of the Sublease (but not to
exceed
an
amount equal to two (2)
months' rent), the Subtenant shall not pay rent or other sums
payable under the
Sublease to Tenant for more than one (1)
month in advance (unless
Owner
gives its consent to a longer period).
ill)At Owner' s option,
on
the termination of this Lease pursuant to Article 25,the Subtenant shall attorn to,
or shall
enter into a direct lease (on terms identical to its Sublease, consistent, however, with the

terms hereof) with, Owner

for
the

respect

to

those

balance of the unexpired term

to Tenant, Subtenant shall maintain full


s business operations
least

of

the Sublease. iv)


With

Subleases providing for the payment of percentage rent by such Subtenants

at

the

and

accurate

books

Premises, which books and records shall

of account

and records of Subtenant'

be so kept and maintained for at

three 3
( )years after the end
of

Its termsand conditions are

each Lease Year during

to
subject

the

term of such

Sublease.

v)

Bf~:

18170r D968

Subtenant Obli~ations.

During the Term, Tenant shall use commercially


comply with their obligations under their Subleases.
A violation or breach of any of the terms, provisions or conditions of this Lease that results from,
or is caused by, an act or omission by a Subtenant shall not relieve Tenant of Tenant' s obligation
b)

reasonable efforts to

cause

all Subtenants to

to cure such violation or breach.

c)

Schedule of Subleases. etc.

shall deliver to Owner, within ten (

At any time upon Owner' s demand, Tenant


10)
demand, ( 1)
a
business days following such

all Subleases ( and licensees, franchises and concession agreements), giving the names
of all Subtenants ( and licenses, franchisees and concessionaires),a description of the space that

schedule of

or licensed, expiration dates, rentals and other fees,and such other information
request,and 2)
( photostatic copies of all Subleases (
as Owner reasonably may
including licenses,franchises and concession agreements) which have not been previously delivered (
unless modified subsequent
to such delivery).Upon reasonable request of Owner, Tenant shall permit Owner
and its agents and representatives to inspect original counterparts of all Subleases (and
licenses,franchises and concession agreements) available to Tenant. Owner agrees to act reasonably with
respect to the frequency of its requests for schedules and investigation of documents
has

been

sublet

as

provided above. d)
Restaurant A~
reement. The Restaurant Agreement

be deemed a Sublease

under

this Lease

subject

to the

provisons

of

shall

Section 10.

vi)(
e)
Licensini Sublease. Upon notice to Owner,Tenant
C).
a)(
shall have authority to sublease the Premises to thegeneral partner of Ten ant,or to an Affiliate of
said general partner,to the extent necessary and for the sole purpose of complying
with applicable Requirements regarding licensing for the service of alcoholic beverages. Such sublease shall not
modify or otherwise affect any of Tenant' s obligations to Owner under this Lease and shall
this Lease. This Section 10.2(
e)
shall be applicable
otherwise comply with the provisions of
only during the period that Town Park Hotel Corporation, a Tennessee corporation, or its AffIliate
I(

has

an

Interest in Tenant.

Equity

ARTICLE 11.

e.a)
Except as otherwise
Riiht to Mort~a~
Section 11. 1.
expressly provided for in this Lease,Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber Tenant' s Interest in the Premises. In connection with the condominium
s leasehold
regime described in the Declaration of Condominium that may be created upon Tenant'
also
apply
11
shall
Ar
t
i
c
l
e
of
this
estate hereunder, the provisions
MORTGAGES

any mortgage of Tenant' s Interest


to
right to secure
Debt withoutOwner' s approval by

Recognized Mortgage(

in

the Premises. b)
Tenant shall

have

the

Rfb:

18170r 0969

11.

Section

Definitions.

2.

Debt"
a)

"
means

the principal amount of

debt

secured

by

Tenant' s

Interest in the Premises. In addition, Debt shall include any debt obtained in connection with ( I)
a required Casualty Restoration or Condemnation Restoration, as applicable, if the Net
Insurance

Casualty

Proceeds

Award is,inadequate to achieve the required


any advances made by
Restoration, as applicable and (IT)

are, or the Net Condemnation

Restoration or

Condemnation

a Recognized Mortgagee with respect to Tenant' s Interest in the Premises for the payment of
taxes,assessments, insurance premiums or other costs incurred for the protection of Tenant' s Interest in
the Premises or the liens created by the Recognized Mortgage, and reasonable expenses incurred
by such Recognized Mortgagee, by reason of a default by Tenant under such
Recognized Mortgage, together with any sums payable by Tenant (as Graqtee) under the Garage
this
a),upon and
Section 11.2(
Easement Agreement. Notwithstanding the provisions of
after a Foreclosure Transfer, if the Recognized Mortgagee (or an Affiliate thereof) is the successful bidder
and by operation of law the applicable Recognized Mortgage is extinguished, then the
applicable Recogni7, ed Mortgage and the advances described in the preceding clause (IT) shall be deemed
be applicable to Tenant' s Interest in the Premises for all purposes of this Lease,
which purposes shall include, without limitation, the deduction of the Debt Service that would have

to

been payable on the applicable Recognized Mortgage (had the Recognized Mortgage not been
extinguished as a matter of law)from Hotel Operating Profit in determining Net Cash
After

Flow

trust, and

replacements, modifications and

the Premises, and

Debt

Mortgage" means any


mortgage
Service. b)
"

all extensions,
any

amendments

thereof, that constitutes

security

a lien

on

interest in or

assignment

or deed of

spreaders, splitters,consolidations, restatements,


all or a portion of Tenant' s Interest in
of the Lease

or

the

rents,issues

that is
Recognized Mortga e" means a Mortgage ( i)
is
an
held by a Person other than
Institutional Lender,ii)
( which expres ly
provides that it is subject and subordinate to the terms of this Lease and, except as
expressly set forth herein regarding Owner' s subordination in certain circumstances of its right to Rental
and its lien rights on Tenant' s personal property to the Debt Service on the Subordinated
Amount, to Owner' s Interest in the Premises, and (ill)a photostatic copy of which is,
foUowing the execution and delivery thereof,delivered to Owner,together with a certification by
Tenant confirming that the photostatic copy is a true copy of the Mortgage and a certification
by the Recognized Mortgagee thereunder confirming the address of such Recognized
Mortgagee for notices. Notwithstanding anything contained herein to the contrary, an Affiliate may be part of
does not own more
a lending group constituting a Recognized Mortgagee for so long as such Affiliate (i)
in
49
beneficial
%)
nine
percent
(
a fortythe debt held by such
interest
than
is not the lead lender or
Recognized Mortgagee with respect to Tenant or the Hotel and (ii)
or

profits related
an

agent forthe lending group.

thereto. c) "

Affiliate)which

JNM\
A:\

Rf~:
11.3.Effect

Section
a~

of

18170r 0970

Mort~

es.
a) Owner' s

Owner's Interest in

or encumbrance upon,
thereto which have not been granted to
lien or encumbrance upon the

entire

Interest.No Mortgage shall extend to or be a lien


Premises or any part thereof or any appurtenant rights
Tenant under this Lease.A Mortgage may extend to and be a

the

Tenant' s Interest in

The execution
the
Premises. b)Morti~ ee's Riihts Not Greater than Tenant' s.
Mortgage
not
and delivery of a Recognized
give or be deemed to give a Recognized
shall
against
Owner
rights
Mortgagee any greater
than those granted to Tenant hereunder, except
as otherwise expressly provided in
ht to
Lease. Section 11. 4.Notice and Ri~

this
Cure

iee. Owner shall


Defaults. a)Notice to RecogJ117. ed Mort~~
the provisions of Section 26.
Mortgagee, in the manner provided by

Tenant' s

give to the Recognized


1 at such address as such Recognized Mortgagee may confIrm to Owner in
the certifIcation
2(c)
delivered to Owner pursuant to Section 11.
or given
by notice to Owner
a copy of each notice of Default at the same time as it gives
in accordance with Section 26. 1,
notice of Default to Tenant,and no such notice of Default shall be deemed effective
with respect to any Recognized Mortgagee unless and until a copy thereof shall have been
so received by or refused by such Recognized Mortgagee, as applicable. Owner shall
also give the Recognized Mortgagee notice ("Notice of Failure to Cure")
in the event Tenant fails to cure a
Default within the period,if any, provided in this Lease for such cure, promptly fol owing the
expiration
an Event of Default). Only Events of Default expressly described in the
of such period (i.
e.,
Notice of Failure to Cure may give rise to a termination of

Time

Right and
the
Lease by Owner pursuant to its termination rights hereunder. b)
Mor
t
g
agee
shall
have
a
period
The
of
sixty
(
60)
days
after
recei
p
t
the
Notice
Recognized
Cure.
of

to

of Failure
Default referred to in

to

(
Cure, in the case of any Event of Default, to 1)
cure the
to Cure

Notice of

Event

of

or (

2) cause it to be cured,
Failure
the
b).
Nothing contained herein shall be construed as
the provisions of Section 2S.1(
imposing any obligation upon any Mortgagee to so perform or comply on behalf of
Tenant. Anything contained in this Lease to the contrary notwithstanding, Owner shall have no right to terminate this Lease
or foUowing the delivery of a Notice
prior to the delivery of a Notice of Failure to Cure
60)
of Failure to Cure if,
within sixty (
subject

to

days

after receipt of

Owner's

Notice

of Failure

to

Cure, any

notify Owner of such Recognized


RecognizedMortgagee shall: 1)
Mortgagee' s desire to cure the matter descn"bed in such Notice of Failure to Cure;
payor cause to be paid all Rental then
2)
due and in

(
Owner tosuch Recognized Mortgageeprovided,

however,

arrears as

specified in the

Default

Notice from

3)
18
4)

1 cause

17Ofr097

to be

paid any amounts

payable

by

b)to the extent such amounts relate to any


1(
Tenant under Section 28.
Lease Year other than the Lease Year for which the most
recent Annual Financial Statements have been made available to Owner; provided

further,however,
notice

provides

to Owner

in
pursuant

event that the Recognized Mortgagee ( A)


1),
b)(
to Section 11.
and (
4(

the

B)files a foreclosure within sixty ( 60)days of its receipt of


Notice of Failure to Cure and diligently prosecutes such foreclosure,

the

s curative obligations with


Default as provided in this
Section
be excused,subject to the
the Recognized

Mortgagee'

to an Event

regard

of
11.4(
b)(
shall
2)

applicable during the


pendency of a foreclosure); cure all Defaults by Tenant in the observance or performance
of any term,covenant or condition of this Lease on Tenant' s part to
provisions

of Section

4),
which
b)(
11. 4(

shall

be

the payment of Rental),or if


any such Default is of such a nature that it
such sixty (60)day period ( but is
cannot reasonably be remedied within
Recognized Mortgagee shall,i)
(
otherwise reasonably susceptible to cure),
within sixty ( 60)
days after the giving of such Notice of Failure to Cure,advise Owner
of such Recognized Mortgagee' s intention to institute all steps (and
from time to time, as reasonably requested by Owner, such Recognized
Mortgagee shall advise Owner of the steps being taken)necessary to remedy
Default ( which such steps shall be reasonably designed to effectuate
such
thereafter
(
the cure of such Default in a professional manner), and ii)
it
same,
remedy
the
st
e
ps
to
all
such
necessary
diligently prosecute to completion
if
pos es ion or control of the
Owner that,
by
being acknowledged
Premises is required to effect such cure, the diligent prosecution
of a foreclosure of a Recognized Mortgage,and the continuing efforts by
foreclosure,
such Recognized Mortgagee to effect such cure following completion of such
remedy
to
necessary
steps
the
shall constitute a part of
Recognized Mortgagee or
such Default. Nothing in this Lease shall require a
its Designee or Foreclosure Transferee to cure any
be

observed or

performed (other than

being cured by such


such Recognized Mortgagee
files a foreclosure, during the pendency of such foreclosure, payor cause to
be paid all current monthly Rental due beginning upon the
filing of such foreclosure but only to the extent sufficient
from
RecognizedMortgage
funds are received by such
default of

Tenant not

reasonably

susceptible

a bankruptcy- related
Person (e.
g.,

Amount

and Operating Expenses

of

default);and if

the Subordinated
Hotel Revenue after deducting Debt Service on
the
basis.
Not
w
i
t
h
st
a
ndi
n
g
foregoing provisions of this
on a monthly non- cumulative

following
Section 11.
4(
b),

delivery
the

18170rroon

Bft:'

request of any Recognized Mortgagee ( which request may be contained in the notice from such
Owner
4(
b)(
1)),
11.
Recognized Mortgagee to Owner given pursuant to Section
shall deliver to such Recognized Mortgagee a statement certifying the aggregate amount of Rental
then due and in arrears hereunder and the estimated per diem increase in such amount, but no
such request shall increase any of the time periods provided for
in

Section

this

11.4(

b).
c) Acceptance

of Mo~
ee's

accept performance by a Mortgagee of any covenant, conditon or agreement on


s part to be performed hereunder with the same force and effect

Performance.

Owner

Tenant'

shall

hts of Mortiaiees. Notwithstanding


performed by Tenant.-d)
Other Rj~
to
Owner
by
Lease,
any other provision of this
any Mortgage shall
no payment made
constitute the Mortgagee' s agreement that such payment was, in fact, due under
though

as

Owner's Self-Help Ripts.Notwithst8nding the


Lease. e)
provisions of this Section 11. 4,if a Recognized Mortgagee fails (for any reason)
foregoing
Default by
to cure any
Tenant described in
paragraph ( 3)
of Section 11.
within sixty ( 60)days following receipt of the Notice of Failure to Cure regarding such
4(
b)
perform the obligation of
Default, then Owner may upon notice,but shall be under no obligation to,
such
rise
wi
t
hout
waiving
or releasing
gave
Tenant the breach of which
to
Default,
Tenant from its obligations with respect to such Default. Tenant hereby grants Owner access to the
in
performing
Premises in order to perform any such obligation. Any amount paid by Owner
4(
all
Sect
i
o
n
11.
e),
including
this
provided
Tenant' s obligations as
in
costs and expenses incurred by Owner in connection therewith,
shall constitute Rental hereunder and
shall be reimbursed to Owner within thirty (30)
days following Owner' s demand therefor, together with
a late charge on amounts actually paid by Owner, calculated at the Late Charge Rate from the date of
notice of any such payment by Owner
terms

the

to

of

this

on which

thedate

payment

of

such amounts

is

received

by Owner.

Mortgages to contain

of Owner' s Performance. Tenant shall cause all


a provision requiring that all Mortgagees shall accept performance by Owner, within the applicable
grace periods available to Tenant, to cure defaults under any covenant,condition or agreement on Tenant' s
part to be performed under
Acce. ptance
f)

Section 11.
as though performed by Tenant.
with the same force and effect
as Tenant Under the Lease. If a
Mort~ aiee or its Desi~

Mortgages

such

ized
Reco~
5.
Recognized Mortgagee or

its

Designee

becomes the Tenant

under

the

Lease, then, in

event, such Recognized Mortgagee or such Designee shall, during the


pay all current Rental commencing as
tenancy: a)
that

of

its

of
b)comply
Date");

the date such Recognized Mortgagee or such Designee becomes


the Lease,
with all the covenants and conditions of

that thepayment of Rental

be
shall

period

the Tenant (the R"einstatement

except

17OfrG973

f~:I B
pay all Back Rent

c)

as

of the Reinstatement Date in the

following

manner:

During the period in which the Subordinated Amount is greater than


zero, such Recognized Mortgagee or such Designee shall pay Back Rent monthly, but only to the
extent sufficient funds are received by such Recognized Mortgagee or such Designee from Hotel
Revenue after deducting Debt Service on the Subordinated Amount, Operating Expenses and
i)

current Rental;

such

the Subordinated Amount is not greater than zero,


such Designee shall pay Back Rent monthly, but only to the extent

At such time

ii)

Recognized Mortgagee

or

as

by such Recognized Mortgagee


Revenue after deducting Operating Expenses;
sufficient funds

are

received

ill)

d)

not be

Back Rent shall continue to

required to

fund

Operating

6.Execution of
11.

Section

New

accrue

or

such

until

Designee from Hotel

paid

in full; and

Deficits of the Hotel.

Tenant'

Documents. a)Notice of Termination. If this Lease is terminated by reason of


an Event of Default, or by reason of the rejection thereof by or on behalf of the Tenant in
bankruptcy or for any other reason, Owner shall give prompt notice thereof to each
s

Recognized

Mortgagee. b)Request

for and Execution of

New

Tenant' s Documents. If,

6(
in Section 11.
to
days of receipt of the notice referred
within sixty 60)
of
the Recognized Mortgage shall request, in writing,a new lease and Declaration
a),
to
Document
s
")
,
to
the
Mort
g
agee
or
Condominium, if any (collectively, " New Tenant's
Recognized
other than a Foreign Instrumentality ( if the
a Designee or Foreclosure Transferee identified in such request (
Premises are owned by the Agency or the City or any instrumentality of the Agency or the City)
provisions of
to the
then, subject
or an Affiliate of Tenant),
Sections 11.6(
7,
c)
and 11.
within ninety (90)days after Owner shall have
request, Owner shall execute and deliver New Tenant' s Documents covering the remainder
Term to the Recognized Mortgagee or to any Designee or Foreclosure
that has

satisfied the

set

forth

in

such

of

the

Transferee

and (
0)
1(
Sections 10.

or its Designee or Foreclosure


Transferee) shall execute and
thirty (30)days folowing
Tenant' s Documents to Owner within

0),
and such Recognized

deliver such New

requirements

received

Mortgage (

receipt thereof by such Recognized Mortgagee ( or Designee or Foreclosure Transferee). Such New Tenant'
execution thereof by both Owner and such Recognized
Documents shall be effective upon the

Mortgagee or its Designee or Foreclosure Transferee. The New Tenant' s Documents shall be
the covenants, conditions, limitations and
at the then current Rental and otherwise contain all of
cluding,
andremedies,
contained in this Lease in(
agreements, and all of Tenant' s rights

without limitation, a
provided,
of Condominium,if any;

conveyance

by Owner of all then- existing Improvements) and

Owner
however,

the

Declaration

f~:

18170fr0974

covenanted that such New Tenant' s Documents are superior to claims of Tenant, its other
creditors or a judicially appointed receiver or trustee for Tenant; provided further, however, such
any encumbrances on the estate of
virtue of this Lease and the Declaration of Condominium, if

New Tenant' s Documents will have the

Owner which Tenant has

had

same

priority

over

by
any, and the Recognized Mortgagee ( or its Designee or Foreclosure Transferee) will not have any
obligation to perform any acts under the Lease which shall at such time have already been
performed by Tenant. Simultaneously with the making of such New Tenant' s Documents, the
party obtaining such New Tenant' s Documents and all other parties junior in priority of interest
in the Premises shall, at the option the Recognized Mortgagee or its Designee or Foreclosure
Transferee, execute, acknowledge and deliver such new instruments, including new mortgages
and new Subleases, as applicable, and shall make such payments and adjustments among
themselves, as shall be necessary and proper for the purposes of restoring to each of such parties
as nearly as reasonably possible, the respective interest and status with respect to the Premises
which was possessed by the respective parties prior to the termination of the Lease as aforesaid.
or

Concurrently with the execution and delivery of such New Tenant' s Documents, Owner
the " New Tenant") named therein all of its
shall assign to the tenant, declarant or co-declarant (
to
moneys ( including, without limitation, ( i) subrents coUected
right, title and interest in and
which have not been applied or are not being held for application to rent and the costs incurred
by Owner to operate, maintain and repair the Premises and ( il) insurance and condemnation
proceeds which have not been applied or are not being held for application to the costs incurred
by Owner to restore the Premises), if any, then held by or payable to Owner which Tenant would
have been entitled to receive but for termination of this Lease or Owner' s exercise of its rights
upon the occurrence of an Event of Default; provided, however, that Owner shall not be required
to assign such moneys to such New Tenant unless and until such New Tenant shall have cured all
Events of Default that existed under the this Lease prior to the execution of such New Tenant' s
Documents to the extent such Events of Default are reasonably susceptible to cure by such New
Tenant.

11.
Upon the execution and delivery of New Tenant' s Documents under this Section
may
been
assigned
to
Owner
theretofore
all Subleases which
6(b),
shall be
have
assigned and transferred, without recourse, representation or warranty, by Owner to the New
Tenant' s Documents. Between the date of termination of this Lease and the
than
date of execution and delivery of the New Tenant' s Documents ( but not later
such New Tenant' s Documents by such Recognized
of
receipt
following
days
thirty 30)
(

Tenant named in such

New

provided in

Mortgagee, as

Section

if a
b)),
6(
11.

as provided in this Section


New Tenant' s Documents
shall not enter into any new Subleases, cancel or modify any
requested

such

Recognized Mortgagee shall

have

b),
Owner
11.6(
then existing Subleases

or accept any cancellation, termination or surrender thereof ( unless such termination shall be effected as a matter
of law on the termination of this Lease)without the written consent of a
Recognized

Mortgagee,

exceptas

permitted in

Subleases.
the

B~ b:'

18170fr0975

long as the Recognized Mortgagee ( or its Designee or Foreclosure Transferee) shall


11.
have the right to enter into a new ground lease with Owner pursuant to this Section
any
Person
other
with
of
the
lease
new
a
ent
e
r
into
not
Owner
shaU
than
b),
6(
Land
Transferee), without the prior written consent
Foreclosure
or
Designee
its
Mor
t
g
agee
(
Recogni
z
ed
or
the
shall survive
b)
of the Recognized Mortgagee. The provisions of Section 1l.6(
For

so

termination, rejection or disaffirmance of this Lease and shall continue in full force and effect thereafter
were a separate and independent contract
6(
to the same extent
b)
as if Section 11.
Mortgagee
and, from the effective date
Recognized
any
and
by Owner, Tenant
the

made

of such termination, rejection or disaffirmance of this Lease to the date of execution and delivery of such
new ground lease if such Recognized Mortgagee (or its Designee or Foreclosure
days after receipt of
Transferee) has requested the New
Tenant' s Documents within sixty (60)
aforesaid notice from Owner, the Recognized Mortgagee may use and enjoy the leasehold

the
estate created by this Lease without hindrance by Owner. The aforesaid agreement of Owner to enter
into a new ground lease with the Recognized Mortgagee shall be deemed a
separate agreement between Owner and such Recognized Mortgagee, separate and apart from this Lease as well as
a part of this Lease, and shall be unaffected by the rejection of this Lease in
any

Execution

bankruptcy proceeding by any

New Tenant'
be obligated

of

Owner shall

not

party.

Conditions Precedent to
c)

Owner'

notwithstanding,
6(b)
s Documents. The provisions of Section 11.
to enter into New Tenant' s Documents with a

Recognized

the
or its Designee or Foreclosure Transferee unless: i)
Recognized Mortgagee or its Designee or Foreclosure Transferee shall pay to Owner, concurrently with the execution
and delivery of the New Tenant' s Documents, all unpaid Rental due under this Lease up to and
theNew Tenant' s Documents and all
including the date of the com encement of the term of
out-ofpocket expenses, as evidenced by receipted bills therefor,
Mortga e

reasonable

including, without limitation, reasonable attorneys' fees and disbursements and court costs,incurred in connection with the
Default or Event of Default,the termination of this Lease and the preparation of such New Tenant'
less the net revenue of the Premises actually received by Owner from the date of
s

Documents,

termination of this Lease to the date of execution of the New Tenant' s Documents, with any excess
of the total of such sums and expenses to be applied by Owner to the payment of fixed
rent

and

additional

in the case of
New Tenant' s Documents; ii)
Recognized
the
Mortgagee or its Designee or Foreclosure
a Default or Event of Default,
Transferee shall promptly after execution of the New Tenant' s Documents, satisfy all obligations and
cure all Events of Defaults existing or continuing under this Lease at the time of its termination ( as
due under

rent

though

the

Term had

by such

Recognized

Mortgagee ( orits Designee or Foreclosure

Transferee);

and

such

not been

terminated) and which are

reasonably

susceptible

to

cure

18170P[)

Rf~:
976

contrary, Owner'

ill)
Notwithstanding anything contained in this Lease to the
right
to
Rental shall be at the Subordinated Amount as of
s subordination of its

the effective date of the New


Documents.

Tenant'

d)
No Waiver of

Default. The execution of New

Tenant' s Documents
a waiver of any Default existing or continning immediately before termination
of this Lease and,except as to a Default which is not reasonably susceptible of being cured by
the Recognized Mortgagee or its Designee or Foreclosure Transferee( e. g.,
the insolvency of

shall

not

consti ute

Tenant), the New Tenant under the New

s Documents

cure,within

the applicable periods


in such New Tenant' s Documents (which periods shall be identical to the periods set forth in
Section 25.
all Defaults existing under this Lease immediately before its termination.
1),
Nothing in this Lease shall require a Recognized Mortgagee or its Designee or Foreclosure
Transferee, as a condition to the exercise of its right to enter into New Tenant' s Documents, to
cure any default of Tenant not reasonably susceptible of being cured by such Person ( e.
g.,
Tenant'

shall

a
related

bankruptcy-

default). e)
P~
ents under

Lease.If

the

Recognized

Mortgagee

or

its Designee or Foreclosure Transferee shall enter

into New Tenant' s Documents pursuant to this


such
termination
of
this
Lease,
Tenant, but for such termination, would
and
if,
upon
Article
have been entitled to receive any amount pursuant to the provisions of this Lease, then Owner

agrees that, subject to

Recognized

Mortgagee

Tenant' s

or

any rights of setoff Owner may have, the same shall be paid
its Designee or Foreclosure Transferee, as the New Tenant under

Documents, in

to or for the

the same manner

and to the

benefit of

the

Recognized

same extent as it would

Mortgagee

or

have

been paid

its Designee

to the
the

New

or apply the
or

same

Foreclosure Transferee as

if this Lease had

not

been

The
terminated. f)

provisions

of this Section

6
11.

shall

survive
the

Expiration

of the Term. Section

11. 7.
Application

Awards. To the extent that this Lease requires that


insurance proceeds paid in connection with any damage or destruction to the Premises, or the proceeds of
an award paid in connection with a taking referred to in Article 9,be applied to
restore any portion of the Premises, no Mortgagee shall have the right to apply the proceeds of insurance .
or awards toward the payment of the sum secured by its Mortgage,
of Proceeds from Insurance or Condemnation

except

for

reasonable

costs

coIIection thereof.Section 11.8.Appearance at Condemnation Proceedinis. A Recognized Mortgagee


the right to appear in any condemnation proceedings and to participate in
of

shall have

the

any andall hearings,trials and

appeals

1
17Of[

0971

Reco~zed

this Lease shall

not

Section 11. 9. Riihts

Limited to

MortP.iees. The rights granted to a Recognized


apply in the case of any Mortgage that is

not

a Recognized

Mortgagee under the provisions of

Section

Mortgagee.

11.10.No Surrender or Modifcation. Owner agrees not to accept a voluntary


shall remain
surrender, termination or modification of this Lease at any time while such Recognized Mortgage( s)
a
lien on Tenant' s leasehold estate. It is further understood and agreed that any such
Recognized

Mortgagee(

shall
s)

not

be

bound by any surrender, termination or modification

or modification is made with the prior


written consent of such Recognized Mortgagee, and this Lease shall not terminate by merger or otherwise as long
remains undischarged. The foregomg is not meant to
as the lien of the Recognized Mortgage( s)
and shall not prohibit a sale of the fee to Tenant so long as no merger of estates
shall result therefrom unless all Recognized Mortgagees are satisfied concurently therewith.
Notwithstanding the foregoing, Owner' s waiver or postponement of any obligation of Tenant or any remedy

of this

Lease unless such surrender, termination

Owner may have

under

this Lease shall not


a

constitute

modification

for

purposes hereof. Section

11.11. Reco~tion

by Owner

in Lien. If there is more than one


RecogTI17ed Mortgagee, only that RecogTli7ed Mortgagee, to the exclusion of all other Recognized Mortgagees,
as having rights
recognized
whose Recognized Mortgage is most senior in lien shall be
unless such first
5 or 11. 6,
4,11.
under Sections 11.
priority Recognized Mortgagee has designated in writing to Owner a
of Reco~Mortp~ ee Most

Senior

Mortgagee whose

Recognized

Mortgage

is junior

12. RecoiDized Mortiaiee' s Assipment


lien to exercise such right. Section 11.
to the
Riihts. a) Notwithstanding anything contained in Article 10 or elsewhere in this Lease
or
the
the
Agency
long
as
contrary, a Foreclosure Transfer ( other than to a Foreign Instrumentality for so
City is the Owner) shall not require the consent of Owner or constitute a breach of
any provision of or a Default under this Lease. Upon any such Foreclosure
Tenant
Transfer, Owner shall recognize the Foreclosure Transferee as Tenant hereunder, provided, however, that such new
thirty
(
Owner
,
wi
t
hi
n
to
be
delivered
cause
or
Owner,
shall deliver to
to
shall
days after the execution thereof,
the
30)
in

ap ropriate

instruments

provided

and
l(
n)
in Sections lO.

(0)subject

b)
Except as expressly provided otherwise in
provisions of Section 11.12(b)).
Mortgagee or other Foreclosure Transferee shall be liable under this Lease unless and

until suchtime as it

Tenant
becomes

this

to

the

Lease, no

18 ,
c)
Notwithstanding anything contained in this ,Lease to the contrary, Owner'
s subordination of its right to Rental shall be at the Subordinated Amount as of the date of
70rf0978

the Foreclosure
d)

Transfer.

Defintons:

i)
Foreclosure Transfer" means a

"
occurring as a result
transfer

a Recognized Mortgage, or any sale of Tenant' s Interest in the Premises, or


or assignment of Tenant' s Interest in the Premises by judicial proceedings
pertaining to a Recognized Mortgage or by virtue of the exercise of any power contained in a
Recognized Mortgage, or by assignment- in-Iieu or other consensual conveyance, or
of the foreclosure of

any other

transfer

x)by or on behalf of Tenant

otherwise:

its

Designee

or Foreclosure

to

RecogTIi7, ed

Mortgagee ( or

Transferee};

y)by or on behalf of Tenant or a Recognized Mortgagee ( or


to a purchaser of Tenant' s Interest in
its
the Premises at a foreclosure sale pursuant to a Recognized Mortgage or by
a Recognized Mortgagee ( or its Designee or its Foreclosure Transferee)
above or after
after consum ating a Foreclosure Transfer as descnDed in clause ( x)

or

Designee

or Foreclosure Transferee)

such foreclosure
sale.

other

assignee

in

Transfer.
is

the

ii)
Foreclosure

Transferee"
"
means

the purchaser, transferee or

a Foreclosure

designee

Designee""
means an
ill)
such Recognized

Affiliate

of

a Recognized

Mortgagee that

or nominee of

Section11. 13.Refinancil\

Mortgagee.

Debta
. ) RequiredRefinancil\ i b.
y Tenant. Notwithstanding anything in this
the
event
that
the
contrary,
except
in
Tenant
is
unable
to
Lease to
refinance on a
commercial y reasonable basis and obtain at least
One Million Dollars 1,
000, 000)
($
i

of

Proceeds from such refinancing for the period beginning with the
Hotel Opening
the
Hotel
10)
years
from
Opening
ten
(
Date
and at
ending
least Five Hundred Thousand Dollars ($500,000) in Net Refmancing Proceeds
thereafter, Tenant shall refinance the outstanding principal balance ( the Balance") of its Debt on each and every one
of the fifth 5th),
( tenth (10th)and
of the following occasions: on or prior to the beginning
Opening
the
Hotel
and
ten
(
every
10) years thereafter (
twenty- fifth 25th)
Date
years after
(
collectively,
all such time
each such time period referred to as the "Refinancing Time" and,
ancing Times").Tenant, at its option,may refinance the Balance of
periods referred to as the Rerm"

in

Net Refinancing

Date and

its

Debt onother

occasionsin addition

to

the

18 ,
RefinancitW Not Related to a Default. If and when Tenant refinances
b)
Balance of its Debt in the ordinary course of business and not related to any Event of
Net Refinancing Proceeds shall be applied to the extent available in the following

70rf0979

the
Default, the

order:

to Owner to pay the Purchase Price for Owner' s Interest in the


i)

and

ii)to Tenant if any funds remain

Premises;

Price for

Owner'

after

paying Owner the fuII Purchase

s Interest in the

Notwithstanding anything contained


Premises.1)
the contrary, Owner's subordination of its right to Rental shall be at
the date of such refinancing

in this Lease to
the Subordinated Amount as of

by Tenant. 2)
The term "Net Rermancing Proceeds" means the
the Balance immediately before such refinancing of
(
amount of the refinancing of the Debt less x)
the interest owing on such Balance,and z)
the Debt,y)
(
reasonable refinancing
(
fees
transaction expenses, brokerage commissions and prepayment
and yield maintenance charges relating to the

Debt
to

be refinanced.

c)Amount

In each instance in which Tenant refinances the Balance


i)
Refinancin, e.
of its Debt,including without limitation in connection with required refinancings as
Tenant shall cause the amount of such Debt upon refinancing to be as large as
(
provided for herein, 1)
of

able to obtain; provided, however, Tenant is not required to incur Debt in an amount
that will exceed the market loan-to- value ratio, pertaining to existing hotels,
( Tenant shall make
of such refinancing; and 2)
then prevailing among Institutional Lenders at the time

Tenant

is

for Owner' s review all fInancing packages or presentations prior to their


submission to any Recognized Mortgagee. Tenant shall provide to Owner Notice of the availability for review
such financing
of each
( days of Owner' s receipt
package or presentation. Within thirty 30)
either
13(c)(
i),
criteria stated in this Section 1l.
of such Notice, Owner shall, based on the
as
Debt
Tenant is seeking, stated
approve or disapprove the amount of such refinancing
The
presentation.
package
of Owner to respond within such thirty (
in the particular financing
failure
or
available

30)
Tenant agrees to hold
time period shall be deemed an approval. ii)
damages,
claims,
costs,
liability,
lost profits, expenses (
Owner harmless from any and all losses,
attorneys' fees and costs at the trial court and all appellate
including, but not limited to,
levels and in any post-judgment proce dings), penalties and fines in connection with Owner' s
day

review,approval

or disapproval of Tenant'

refinancing applicationas referenced in this

Section

18170r 0980
iii)

The

provisions

of Section

11.

iI)
shall survive the Expiration
13( c)(

of
Term.Section 11. 14.Notices Under a Mortiaie. Tenant shall give
the
(
to Owner copies of all notices of default received from
a Mortgagee within ten 10)

days

after

receiving

written

all Mortgages to contain


a provision requiring that all Mortgagees shall send to Owner and the City, simultaneously with
the sending of such default notices to Tenant or Guarantor, copies of all default notices or other
notices relating to the failure of Tenant to keep any Mortgage in good standing, which notices are
sent pursuant to any loan document or security document to
notice

same from

of

Mortgagee.

a)Notices.Tenant shall

cause

Esto. ppel ReqJlests. Tenant shall cause all


Guarantor. b)
Tenant
and/or the
Mortgagee shall comply with all reasonable estoppel
that
the
Mortgages to contain a provision requiring
requests of Owner or the City. Owner shall comply with all reasonable

estoppel

requests
any Mortgagee.ARTICLE 12.

of
SUBORDINATION

Owner'

Section

12. L SubordiJUltion of

s right to
Service on

Debt

Rental.

Subordination. In
a)

the

event of a Default,

Rental shall be subordinate, expressly as described in this Lease, only to the

the

first

10, 000,
Ten Million Dollars ($

000)

of Debt
b)
Subordinated Amount").
"
Subordinated Amount.The current balance of the Original Subordinated Amount the Subordinated
a
m
o
r
t
i
z
a
t
i
o
n
on
a
Subordinated
the
Original
mortgage basis
Amount
Amount") shall be calculated by reducing
year term at the interest rate, as
(
5)
upon a twenty- five 2
based
Openi
n
g
Date
Hotel
the
commencing
on
it may exist from time to time, on the Debt; provided, however, that the application of proceeds

existing

as of

( "Original
the Commencement Date the

from the sale or lease of the Restaurant

shall

not be included in

the

calculationof the Subordinated Amount. Section

12.2. No Subordination of Owner' s ProprietaJ: Y Interest in the Land.


Owner' s proprietary interest in the Land, including, without limitation, Owner' s interest in this Lease,
of this Lease,
as the same may be modified, amended or renewed in accordance with the provisions
( any Mortgage now or hereafter existing, (b)
shall not be subject or subordinate to a)
c)
(any
any other liens or encumbrances hereafter affecting Tenant' s Interest in the Premises or
liens
or
Sublease or any mortgages,
encumbrances nowor hereafter placed on

any

18

b:
Section

12.

70r 98

3.
Tenant' s Interest

in the

Premises SuQject to

Title

Matters.

in the Premises, including, without limitation, this Lease and the leasehold
of Tenant created hereby and all rights of Tenant hereunder are and shall be subject to

Tenant' s Interest
estate

Title

the

Matters. Section

Priori~of
12.4.

Recognized Mortgage of Tenant' s Interest

on the fee estate of


the

fee

in the
Owner in the

estate which were

Lease.This

Premises shall have priority

executed prior to

the

execution

Land

of

demised

hereby

over

Lease and

any

all liens and encumbrances

including mortgages or liens

on

this Lease or which are executed

Lease unless subordinated to such mortgages, liens or encumbrances in


Tenant or any Recognized Mortgagee, except for the Title
recorded contemporaneously with,

after the execution of this

writing by
Matters and documents

and
this Lease,.
contemplated by,

ARTICLE

13.
HOTEL CONSTRUCTION AND FURNISHING Section 13.

1.
Tenant' s Obli~ation to Construct

Hotel. The

parties

acknowledge

that Tenant shall

center hotel as described in Section


2 and other improvements described in the Plans and Specifications in accordance with
13.
with
the terms of the Hotel Development Agreement and the terms hereof together
(
If,
with respect to
and all permitted additions thereto and replacements thereof, the Hotel").
any
initial
const
r
u
ct
i
o
n
of
the
a matter relating to the Construction Work for the
Hotel,
Agreement
and
Hotel
Dev
e
l
o
pment
the
of
the
terms
arises
between
conflict
the terms of
a
this Lease, the terms of the Hotel Development Agreement shall govern until the Hotel Opening
construct on the Land a first

Date,

and

class convention

thereafter the terms

of this Lease shall govern. Section 13. 2. Description of the Hotel. The Hotel will
portions of the Royal Palm Hotel which has a street
restored
)
(
consist of the following: i
address of 1545 CoIIins Avenue, Miami Beach, Florida, and a new tower to be developed to the east
specifications approved by the
of the Royal Palm Hotel, as per the plans and
1996,
Review and Historic Preservation Boards on December 3,

joint Design
approximately
plans and specifications may be amended and approved, together comprising
as said
RP Improvements")
seven (257) hotel rooms (hereinafter collectively refer ed to as the "
two hundred fiftyAvenue, Miami
CoIIins
street
address
of
1535
a
which
Hotel
Shorecrest
restored portions of the
and ii)
has
be developed to the east of the
Beach, Florida, and a new tower to
and
per the plans
Shorecrest Hotel, as
specifications approved by the joint Design
3,1996, as
Review and Historic Preservation Boards on December
and approved,together comprising
said plans and specifications may be amended
Sborecrest Improvements"). The
einafter collectively referred to as the "
five (165) hotel suites her(
approximately one hundred sixty-

Shorecrest Improvementswill be operated

conjunction
in

18170rf0982

f~:
class,

upscale property

with convention, conference and

meeting space and amenities meeting

the

standards set forth in this Lease.


Section

13.
3.

a)
The completion of construction
Qpe~.

and the opening to the public


for business of both the Shorecrest Improvements and the RP Improvements shall occur no later than
on the Hotel
Improvements.

Shorecrest

b)
1)Hotel Manager.
One (

Date. -

Opening

and without interruption, both the Shorecrest Improvements


and

managed by

one

and

At all times during the Term


and the RP Improvements shall be operated

the
same

Hotel Manager. ARTICLE. 14.


AND REPAIR; ALTERATIONS

MAINTENANCE
Section

14.
1.
Maintenance

of

Premises. a)
Maintenance

and

R~
air.

Tenant

care of,
and keep and maintain, the Premises in good and safe order

make all repairs

therein and thereon,

and

shall

take good

condition, and shall

and
exterior,

structural and
nonstructural, ordinary and extraordinary, foreseen and.unforeseen, necessary to keep the Premises in good and safe order
and condition and as a fIrst class convention center hotel,however the

nec s ity
use

all

reasonable

interior

Tenant shall not commit, and shall


or desirability therefor may arise. i)
efforts to prevent, waste,

All repairs made by Tenant shall be


injury to the Premises. ii)
substantial y equal in quality and class to the original quality of the Improvements being repaired and
shall be
damage

made
and

or

in

compliance with

the Requirements.

Cleanin~of
b)

Premises. Tenant shall keep

clean

free from dirt,mud,standing water, rubbish, obstructions and physical


all areas

encumbrances

of

not,without
E from
ordispose of any Building Equipment and/or FF&
the consent of Owner,remove
i)
prompt
l
y
by
E
(
is
r
e
pl
a
ced
the Premises unles such Building Equipment and/ or FF&
Building Equipment and
(
E of at least equal utility and quality, or ii)
is removed for repairs,
FF&
E with
cleaning or other servicing, provided Tenant reinstalls such Building Equipment and FF&
reasonable diligence; except,however, Tenant shall not be required to replace any Building Equipment or FF&
the

Premises.

E thatperformed a function

Section 14.2.Removal ofBuildin~ Eqpipmeot. a)Premises.

has
that

Tenant shall

f~:

18170rf0983

obsolete, unnecessary or undesirable in connection with the


accordance with the terms of this Lease.

operation of

the Premises in

Other Areas. Tenant shall

b)

promptly rectify any damage or interference caused by


or vegetation located in the areas described on Exhibit

Tenant to any equipment, structures


14.
5 attached hereto and incorporated by
reference

herein. Section 14.3.No

or to Supply

Utilities.Owner (in

Obli~ation

to

Repair

its proprietary capacity

only)shall not be required


to supply any facilities,services or utilities whatsoever to the Premises. Owner shall not have any
duty or obligation to make any alteration,change, improvement, replacement, Restoration or repair
with
to the

respect

Premises.

sa1. Tenant
Waste Di~
Section 14. 4.

of

the Premises

in

in

accordance with Requirements

prompt

shall

dispose of waste from all areas

and

and

sanitary manner. Section 14. 5.


Aiency Maintenance Oblieations. From and after the Hotel Opening
take good care of,
Date,
Owner shall, or shall cause the appropriate Governmental Authority to,
and keep and maintain, the

broadwaIk

adjacent to the Premises and the beach area

described

in

the

last sentence of this Section 14.5 in


make
order

all

good and safe order and condition and shall


necessary to keep such beach area and broadwaIk in good and' safe

repairs therein and


an

and condition as

thereon
amenity

to the first

The provisions of this Section 14.

Lease
sand

dunes immediately adjacent

northerly

prior to the Hotel Opening Date, the City and Tenant


agreement covering the area of the beach west and east of the

until March 31,2023. In

shall enter into a concession

addition,

to the

line of the Land and


boundary of the Land

easterly boundary

to the southerly

boundary

class nature of the Hotel.


5 shall survive any expiration or termination of this

having

a width from the

the

on

incorporated by reference herein.


on Exhibit 14. 5 attached hereto and
this
terms
conditions
of
Article
14 and the other applicable
and
to
the
Subject
Section 14. 6.Alterations. a)
provisions of this Lease,Tenant may,at any time

set

terms

forth

from time to time,at its sole cost and expense,


instal ations,substi utions, improvements, renovations or betterments ( collectively, A"lterations"; but Alterations shall not encompass
alterations,additional

and
make

the

or
performance of

any portion thereof

anyAlterations ( or

of FF&E)in and to
in connection with the
that: i)

addition, renewal and replacement


provided

of
series

the Premises

t~:J
for inflation (

adjusted

as

estimated

8170rf0984

by Tenant' s architect

or

engineer) (

Alteration"), Tenant shall provide broad form Builders All Risk insurance,

reporting form) which


provisions of Article
or

insurance shall be effected

7;

ii)

engineer;

ill)the Alterations will not result

on a

Significant
completed value
a "

by policies complying with all of

the

no Significant Alteration and no Alteration affecting the structural


portions, roofs or the heating,
airconditioni: g,
Q.
elevator, plumbing, electrical, sanitary,mechanical or
other service or utility systems shall be undertaken except under the supervision of a licensed
architect or licensed professional

require

material

change in any certificate of

in

a violation of

occupancy applicable

any

Requirement

or

to the

Premises;

not

be

impair

iv)the outside appearance, character or permitted use of the Premises shall


materially (1)weaken or
materially adversely affected, and the Alterations shall not
the structure, ( 2)
reduce
the size or 3)
( lessen the
value

heating,

Premises; v)the proper functioning of any of the


elevator,plumbing, . electrical, sanitary, mechanical and other service or utility

of,the

air

systems of the

conditioning,
Premises shall

not

(
material y adversely affected;vi) if any Alteration is or
related series of Alterations
are)estimated to cost more than
Five Hundred Thousand Dollars ($ 500,000),
be

adjusted

for

estimated by Tenant' s architect or engineer),Tenant shall obtain the prior


"
Alteration") in
ac ordance with
of Owner for such Alterations (a Major

inflation (as

written

consent

the

d)below;and vii) no Major Alteration


6(
Section 14.
del
i
v
er
i
n
g
to
Tenant
shall
undertaken prior to
Owner,at Tenant' s option, either (x)
a performance
bond and a labor and materials payment bond issued by a surety company reasonably satisfactory to
in an amount equal
Owner and licensed to do business in the State of Florida),
each
the
cost
estimated
otherwise
to one hundred percent ( 100%)
in
of
and
form reasonably satisfactory
such other security for the completion of the Major
to Owner or (y)
be reasonably satisfactory to Owner; provided, however, this Section 14. 6(a)(
Alteration, as may
Recogni
zed Mortgagee or its Designee
apply
to
a
shall
vii) not
provisions

of

be

during

the period that

it

is

the

Tenant under this Lease.b)


Reimbursement of

nses.Tenant shall reimburse Owner for all actual outE~


pocket architectural and engineering expenses for architectural and engineering review reasonably incurred by Owner in
ofconnection with its decision to grant or withhold consent to a proposed Major Alteration
and inspecting the Major Alteration to determine whether the same is being or has been performed in
accordance with the terms of this Lease,including only the actual reasonable fees and
expenses of any architect or engineer employed for such purposes. Any Major Alteration
Owner' s

for whichconsent bas been

shall
received

18170rf0985
approved plans and specifications, and no material amendments or material
plans and specifications shall be made without the prior consent of Owner in

accordance with the

additions to the

accordance with the terms hereof.


c)
Approvals. Tenant, at its expense, shall obtain all necessary permits and
certificates from Governmental Authorities for the commencement and prosecution of any
Alterations and final approval from Governmental Authorities upon completion, promptly deliver

copies of the same to Owner and cause the Alterations to be performed in compliance with all
applicable Requirements and requirements of Mortgagees and insurers of the Premises, and any
Board of Fire Underwriters, Fire Insurance Rating Organization, or other body having similar
functions, and in good and workerlike manner, using materials and equipment at least equal in
quality and class to the original quality of the installations at the Premises that are being replaced.
Submission and Review of Alterations.

d)

i) Tenant shall submit to Owner plans and specifications showing in reasonable


45)days after Owner' s receipt of
proposed Major Alteration. Within forty- five (
such plans and specifications, Owner shall notify Tenant of its approval or disapproval
detail any

modify in any material respect previously.


approved plans and specifications ( as such may have been modified by approved plans and
specifications), Tenant shall submit any such proposed modifications to Owner for Owner' s approval.
thereof.

ii)If Tenant desires

to

twenty (20)days of its receipt of the proposed modifications. Owner shall notify Tenant
in writing with specificity of any material inconsistencies of which Owner disapproves between the
plans and specifications as modified and the plans and specifications previously approved by
Owner. Tenant shall, at its election, have the option of x)
( submiting Owner's disapproval to arbitration as
and/
ii)
of disap roval or
i
n
consi
s
t
e
ncy
or
(
to the i)
materiality of the
(
reasonableness
y)
submitting revised modifications to the plans and specifications to meet Owner' s objections (
which revised plans and specifications shall be reviewed as
Within

provided).e)Costs

hereinabove

Tenant and

accounted for

of Alterations. The costs of all Alterations shall

as an Operating Expense, subject

to

be

borne by

Section

3.

4(
Tenant' s Oblip.tion to COII\
Ply. In connection with any
and with the maintenance, management, use and
operation of the Premises and Tenant' s performance of its obligations hereunder,
Tenant shaU comply promptly with all Requirements, without regard to the nature of the work required
to be done,whether extraordinary or ordinary, and whether requiring the removal of any encroachment (
cure an encroachment,
but Tenant may seek to obtain an easement in order to
REQUIREMENTS Section
v).
ARTICLE 15.
c)(

if permittedby

Requirements),or

the
affecting

15.1.
Construction Work,

fb:

18 70r 986

maintenance, management, use or occupancy of the Premises, or involving or requiring any


structural changes or additions in or to the Premises and regardless of whether such changes or

particular use to which the Premises, or any part thereof,


may be put. No consent to, approval of or acquiescence in any plans or actions of Tenant by
Owner, in its proprietary capacity as landlord under this Lease, or Owner' s designee shall be
relied upon or construed as being a determination that such are in compliance with the
Requirements, or, in the case of construction plans, are structurally sufficient, prudent or in
compliance with the Requirements.
additions

are

required by

reason

of any

15.

Section

Definition.
2.

any and all laws, rules, regulations, constitutions,


means: i)
orders, ordinances, charters, statutes, codes, executive orders and requirements of all
Requiremnts"

Governmental Authorities having jurisdiction over aPerson and/ or the Premises or any street, road, avenue
the Premises or any vault in,
or under
or sidewalk comprising a part of,or lying in front of,
the Premises including, without limitation, any of the foregoing relating to handicapped access or
parking,the Building Code of the City and the laws, rules, regulations, orders, ordinances, statutes,
codes and requirements of any applicable Fire Rating Bureau or other body exercising
the temporary and/or
functions); ii)
of occupancy issued for the Premises as then in
similar

other

Lease. Section

this
with

the

certificate or certificates

any and all provisions and requirements of


and iii)
insurance policy required to be carried by Tenant under

force;

or

permanent

performance

of

any

property,

casualty

3.Owner' s Obliiation to Comply. In


15.
Owner' s obligations hereunder, Owner shall comply

connection

promptly
with all Requirements. ARTICLE 16.
HOTEL
AGRE MENT

operated
conditions

MANAGER ANDMANAGEMENT

ireement. a)Tenant shall cause the Hotel to be


Manaiement J\
Section 16.1.
and managed exclusively by the Hotel Manager in accordance with the terms and
of this Lease, including,without limitation, Article 6 and this Article, pursuant

providing for services,and containing terms and conditions, reasonable and


customary for the operation of a first class convention center hotel in accordance with the terms
of this Lease.The services to be performed by
to

Hotel Managershall

written Management Agreement

include,without

the
limitation,

Bf~:

1817Off0987

Manager will provide technical services to assist Tenant in the


furnishing
equipping of the Hotel. These services will include, among other
review and approval of architectural plans, plans for design and decor and plans
things, ( 1)
for furnishing, all of which will be subject to Hotel Manager' s approval to ensure that the Hotel
develop criteria for furniture and
will meet the standards set forth in this
Lease;2)
(
supply; and ( 3)
equipment and assistance in obtaining sources of
assistance in
i)

Hotel

and

construction,

co rdinatingpurchases

and

insta1Iation

of

furnishings

Hotel Manager will provide required services to Tenant to prepare


equipment. ii)
and
opening,
including,
(
without limitation, 1)
Hotel for
recruiting,training and
marketing
and
2)
advertising;
( 3)
negotiating
preopening
staff; (
employingHotel
suppl
i
e
s
leases,
( assistance in
and similar items; 4)
contracts for stores, concessions,
obtaining necessary licenses and permits; and (

the

assistance in

5)

purchasing

initial operating

Tenant shall provide


supplies. b)

in

shall operate and manage the Hotel as part of the Crowne


Plaza Resorts Hotel Chain and in accordance with the provisions
of this Lease,
including without limitation, Article 6 hereof.Hotel Manager shall have exclusive authority to operate the Hotel in the
the Management Agreement that Hotel

of,
and for the

name

incorporate the covenants

Manager

and agreements

as

covenants and

agreements

in the Mangemnt Agreement shall

be

of

account

of,Tenant.c)
Tenant hereby agrees to

contained in

the Hotel Manager.

this Article in the Management

d)
The

Agreement

Hotel Manager'

s interest

( the Owner' s Interest in the Premises;


subject and subordinate to i)

and ( ii)
the terms and conditions of this Lease. As between Owner and Tenant, in the event
of any conflict between the terms of this Lease and the terms of the Management Agreement,

of this Lease shall govern. Tenant shall


its obligations hereunder notwithstanding the fact that the

the terms
all of

Hotel

is being managed by

remain

responsible

for performing

the

Term of Mana~ ement Aifeement. As long as


Manager. Section 16.2.
Town Park Hotel Corporation, a Tennessee corporation, or its Afflliate, maintains ownership of
initial Management Agreement shall provide for a term
any Equity Interest in Tenant , the
of fifteen (15)years from the Hotel Opening Date (with appropriate commencement of pre( year renewal
periods unless
opening services prior to the Hotel Opening Date) with subsequent five 5)
In the
canceled as provided in the next sentence of this Section 16. 2.
its
a
or
Afflliate
fails
to maintain,
event that Town Park Hotel Corporation,
Tennessee corporation,
for any reason whatsoever,ownership of any Equity Interest in Tenant , then
in that event
for
of
the initial Management Agreement shall provide
fifteen (15) years from
a term
appropriate commencement of pre-opening services prior to
(
the Hotel Opening Date with
the Hotel Opening Date)
unless canceled upon Notice given no later
with subsequent one (1)year renewal periods
year
days prior to the end of anyone ( 1)
than ninety (90)
Hotel

period by either

Tenant

or

Owner'

IkI817Gfr098
s

ap roval,

if

Premises or

ii)
(
the

O(
wner has not been paid the full Purchase Price for Owner' s
i)
Lease is in Default. In

the case

of

Interest

in the

an Event of Default, Owner and/orthe Recognized

the Management

Agreement at no cost to Owner and/orthe Recognized


Mortgagee can
Mortgagee and without liability to Owner and/ or the Recognized Mortgagee; provided,
however, Owner does not have the right to terminate the Management Agreement until such
time as the Event of Default has continued beyond any cure period applicable to a Recognized
Mortgagee under this Lease; provided further, however, Owner and/ orthe Recognized
Mortgagee shall give Notice of such termination no later than ninety (90)
days after
such Event of Default at which time the Management Agreement shall be terminated without
liability to Owner and/or the Recognized Mortgagee. Notwithstanding the foregoing, Tenant may
cancel the Management Agreement for cause or as may otherwise be provided in the Management
Agreement. Any subsequent Management Agreement shall be for a term not greater than the
balance of the term remaining under the prior
MaI\ilgement
Agreement.
terminate

16.
3.Transfer

Section

of

Hotel

Manager' s Interest

in the

hts. Except for a Permitted Transfer, any i)


(
Agreement. a)Approval Ri~
Management Transfer,ii)
termination of the Management Agreement subject to the provisions
of Section
manager
2 or (ill)
"
Engagement")
engagement of a new
for the Hotel (a Management
16.
shall be subject to the prior
Management

Forei~Instrumentality. Tenant acknowledges that for so long


of Owner.b)
as the Premises are owned by the Agency, the City or any other instrumentality of the Agency
or the City, Owner may disapprove a Management Transfer to or a Management Engagement of,
a foreign ( Le.,
non- United States)government or instrumentality thereof or
Person
Instrumental
i
t
y"),
and
disapproval
thereby
(
a
"
shall
be
such
Foreign
controlled
conclusively
by"a
deemed reasonable for purposes hereof. A Person shall be deemed to be controlled
"
foreign government or instrumentality if such government or instrumentality, directly or indirectly, directs or causes
the direction of the management and

writ en

policies

approval

of

Definitions. i)
Management
Transfer" means any transaction
"
Person.c)
with the result that 1)
(Hotel
or series of transactions, by operation of law or otherwise,
interest in the Management
per
c
ent
(
50%)
owner
s
hi
p
fifty
has
or
greater
a
conveyed
Manager'
not have a Control ing Interest or
Agreement to a Person in which Hotel Manager does
a Controlling Interest in the Hotel Manager has been transferred, directly or indirectly, to any
2)
Person who

such

is

of Hotel

not an Affiliate

means aPerson to which

Management
a

Manager. ii) Transfer is

made.

Management

Transferee"

ill) "

i~~:

18170f 0989

Permitted Transfer"

means (

a Management Transfer to a
or (
Permitted Operator or a Person that is an Affiliate of a Permitted Operator or the Hotel Manager
new
that
En
g
a
g
e
m
e
n
t
oper
a
t
o
r
is
a Permitted Operator or a Person that
2)
a Management of a
is an Affiliate of a Permitted Operator or the
1)

Manager. d)
Pennitted Operator. The

term "Permitted Operator" shall mean a Person


that ( i)
is not a Foreign Instrumentality ( for so long as the Agency, the City or any instrumentality
its Affiliates (
( together with
of the Agency or the City is the Owner hereunder); and ii)
or
management
of
hotels
for
at
been
in
oper
a
t
i
o
n
has
five
years
prior
to
least the
1) engaged the
the date such Person will become the Hotel Manager hereunder and has operated or managed for
first-class hotels which meet the Quality Standard
atleast
three (3)
such five year period
has a national
set forth in Article
6 of this Lease,and 2)
marketing operation under
(
a national
"flag"
or has entered into an agreement pursuant to which the Hotel shall be operated as
part of a Hotel Chain which has a national
Hotel

operation under a

" flag" e
Notice
national
. )

Owner. Tenant

shall,and shall
Manager
any Management Engagement, Permitted
days prior to such occurrence or
Transfer
or Management Transfer at least ninety ( 90)
promptly after becoming aware of such occurrence, if
later. The notice required by this
marketing

Management

to

notify Owner
to,

cause the Hotel

of

information: i)
the name

Section

e)
shall contain the
16.3(

and

the nature
address of the new Hotel Manager or transferee; ii)

such

transaction and

the

percent interest

to be

Engagement, a true
complete

copy

of the instrument

following

conveyed; iii)
in

of

the

case of a

and

effectuating

such transaction; and

iv)a copy

of

any new Management


Approvals. In
Agre ment
or any modifications to an existing Management Agreement. f)
requires Owner' s consent,
any instance in which a Management Transfer or Management Engagement
60)
to
days
prior
such
shall,
at
Management Transfer
least sixty (
Tenant
or Management Engagement, submit to Owner a written request for Owner' s consent to such
transaction, which

the name, address


by the following information: i)
and a description of the nature and character of the business

or be

request

shall

operations

of the proposed

contain

of the ownership of
new Hotel Manager ( unless the

Person thatowns such Controlling

ac ompanied

Management Transferee or new Hotel Manager; ii)


disclosure
the Controlling Interest of such.proposed Management Transferee or

is
Interest

18170rrog90

f~:
Hi)

the

iv)

proposed

terms and conditions of the

form of the instrument

proposed transaction;

effectuating

such transaction;

copy of the

proposed Management Agreement or any modifications


existing Management Agreement; and
v)

then

principal

to the

vi)
such other additional information as Owner shall reasonably request, which
information may include information regarding ownership, banking and financial matters, in
connection with its evaluation of such transaction to the extent reasonably available to Tenant,

Owner shall make such request within ten (


s request for

provided

g)
Owner'
sAp,

consent.

proposed pursuant to
within ten 10)
( business

Section
days

10)
business days

proval.Owner shall
16. 3(
t)
in

approve

after

receipt of

Tenant'

or

disapprove any transaction


accordance with Article
26 hereof

after receipt

of Tenant' s request for consent or Owner' s


additional information. Notwithstanding' the foregoing,if any change in circumstances prior to

of

receipt
such
the closing of the proposed Management Transfer or Management Engagement renders
the information provided in this Section material y incomplete or materially incorrect, any
consent previously given by Owner shall be deemed null and void and Tenant shall notify
Owner of the
change. Upon receipt of such notice,
Owner shall thereupon have ten 10)
(
business days
to notify Tenant whether Owner's consent to such changed Management Transfer or
Engagement is

Management

or shall cause to

a true and

given or denied.h)Transfer

Instruments. Tenant shall deliver to Owner,


to
Owner,
within
ten
1
(
0)
business days after the execution thereof,
delivered
copy of the instrument of transfer or engagement' and a true and correct copy

be
correct

i)
( in the case

of
of a Management Transfer, the instrument of assumption
by the assignee or transferee of Hotel Manager' s obligations under the Management Agreement accruing
from and after the date of such assignment or transfer and any modifications to the
Management Agreement and ii)
in the case of
(
Management Engagement, the new Management Agreement.i)
Invalidity of

Transactions. Any Management

without

Engagement

or Management Transfer which

is

not a Permitted Transfer

and is i)
(
entered

into

Owner' s consent

as and if required in this Article or ii)


(sought to be entered
execution, and delivery to Owner within ten (10)
business days thereafter,
the instrument of transfer or engagement,if applicable ( unless such Management

into without the

of

Transfer or Management Engagement

is effected

by operation of

have no validity and shall be null

law,

and

in which

void and

without

no
effect until
case

instrument shall be required), shall


such time as such

consent (if required) is obtained and!or the applicable instrument is received.If


Hotel Manager enters into any such transaction without compliance with the terms of this Lease,
Tenant

shall diligentlypursue its remedies against

Hotel

18170r 09 ,
16.4. Owner' s Riibts

Section

will i)
( perform or cause to be performed Tenant' s
i
Agreement,
( i)
M
a
n
a
g
e
m
e
n
t
enforce the performance by Hotel Manager of all
under the
of Hotel Manager' s material obligations under the Management Agreement, ( ill)
give
Remedies. a)Tenant

and

material obligations

and a copy of any notice of default, event of default, termination


promptly deliver to Owner executed copies of
or canceUation sent or received by Tenant and iv)
(
Management Agreement, or
any amendment or modification of the
if applicable, any

Owner prompt written

notice

new
Tenant shall
Agreement. b)

Management

to the engagement of any


Owner and Tenant providing

cause

Hotel Manager (

and

any

new Hotel

Manager, prior

Hotel Manager) to enter into

such
an attornment agreement with
as follows: i)
(
Hotel Manager ~give Owner prompt written notice

and a copy of any notice of default, event of default, termination or cancellation sent or
Hotel Manager will promptly deliver to Owner executed copies.
Hotel Manager, (ii)
received by

of

of the Management Agre ment, or if applicable, any


Hotel Manager will not assert any right it might have to
Agreement, ( ill)
the Management Agreement or performance of its services thereunder as the result of a

any

new
terminate

amendment or modification

Management

default by

without giving written notice thereof

to Owner, specifying the claimed


default,Hotel Manager shall take no action
to rescind or terminate the Management Agreement and shall, at the request of Owner,
continue performance of its obligations thereunder, in accordance with the terms thereof, provided that the
default shall be cured in accordance with the terms hereof, and Hotel Manager shall be paid for its
services in accordance with the fee schedules set forth in the Management Agreement; in furtherance
of the foregoing, Hotel Manager shall afford Owner an opportunity to cure defaults
under the Management Agreement, which rights shall be coincident and coterminous with the
right of Tenant to effect such cure, except that Owner shall have an
additional sixty (60)
day period,after the expiration of the period in which Tenant is required to effect such cure, to effect
the same ( and performance by Owner shall be accepted by Hotel Manager as though the
same had been performed by Tenant), and there shall be no default deemed to exist
under the Management Agreement unless such cure shall not have been completed within such period, (iv)

Tenant

default,and

notwithstanding

terminate Tenant' s leasehold interest in the Premises or shall


Tenant and no New Tenant' s Documents are delivered,

in the event Owner


otherwise

to the rights

succeed

the

Management

Agreement

Manager

shall,

of

at

the occurrence of any such

shall

Owner' s option, exercisable by written

fifteen (15)business

within
and effect, and

days

notice

to Hotel

after such termination or other succession, remain in full force

Manager shall continue to perform its services thereunder for the


benefit of Owner,. provided, however, that (x)if Owner fails to timely exercise such right, Owner shall have
no right to cause Hotel Manager to continue performance as described herein, and y)
(
deemed
to have
if Owner timely exercises such right,then the Management Agreement shall be
been amended in the following respects (and, at the request of Owner, the parties shall enter into
a modification of the Management Agreement

to evidencesuch

amendments)A
: :\

Hotel

CMB\
JNM\

870fro'99Z
1)
There shall

be

no payment by Owner of any

admini~tion fee,

or any other fee or charge under the Management Agreement in connection with
termination of Tenant' s leasehold interest or Owner' s succession to the' rights of Tenant under
termination

fee

the Management
The term
Agreement; 2)

of the Management Agreement shall immediately convert


have the right to terminate the Management Agreement

year term and Owner shall


to ayear-to-

the beginning of each successive year, with


of any administration fee, termination fee, or any other

at

of a termination

Owner

shall

give

or

without cause, and without payment


or charge, provided that in the event

fee
less

Hotel Manager not

days
than ninety (90)

prior written notice


Manager shall:Upon
termination; 3)

of

termination

or expiration

of

such

the extent of Hotel Manager' s interest and


by
to Owner or its designee any
to the
and all licenses,permits and/or governmental authorizations required for the
Management Agreement, Hotel

the

A)to

Requirements, surrender and assign

extent permitted

of the Hotel; B)deliver to Owner any and all of Owner'


operation
s properties within the possession of Hotel Manager, including, without limitation, all keys,
locks and safe combinations, reservation lists, ledgers, bank statements for the Hotel accounts,
books and records, insurance policies, bonds and other documents, agreements, leases and licenses

required for the operation


the Hotel; and C)remit to Owner the balance of

of

Hotel accounts,after computation

and disbursement to

Hotel Manager

of all accrued

any

and unpaid

management

and reimbursable costs ;4)Hotel Manager shall not be permitted to


for in the then- effective annual plan of the Hotel (other than inconnection

fees
undertake any actions

with

to

notprovided

the day-to-day operations

of

the Hotel)without the prior

Owner shall not incur any liability


written consent of Owner; and 5)
to
Agreement
the extent
Management
the
except
Hotel Manager under

if the Management Agreement shall terminate for any


under the Lease; v)
reason,or be rejected or disaffirmed pursuant to any bankruptcy law any other law affecting
creditors I rights, Hotel Manager shall, if notice has not theretofore been provided to
Owner, immediately notify Owner of such termination, rejection or disaffmnance, and Owner shall have
the right,exercisable by
notice to Hotel Manager within sixty (60)days after Owner obtains
to
enter into a new Management Agreement for the management of the
pos es ion of the Hotel,
Hotel on the same terms and conditions as are contained in the Management Agreement ( as amended
Owner

has liability

or

above) forthe

remainderof

term
the

18170r o9 3
Management Agreement; the execution of such new Management Agreement shall be
subject to the curing by Owner of any outstanding defaults under the Management Agreement
which are reasonably susceptible to cure by Owner; in connection with any prospective sale of
Owner' s Interest in the Premises and at the request of Owner, Hotel Manager will execute and
deliver to the party so requesting an estoppel certificate indicating that the Management
Agreement is unmodified ( or, if modified, setting forth the modifications) and in fuU force and
effect, and that to the knowledge of Hotel Manager there is no default ( or specifying any default
of which Hotel Manager has knowledge or notice), the date of expiration of the term of the
Management Agreement, and the date through which Hotel Manager has received payment under
the Management Agreement, it being understood that any such certificate may be relied upon by
Owner; and, Owner will give Hotel Manager a copy of any default notice under the Lease and
afford Hotel Manager the right to cure the same (provided such cure is effectuated within the time
period provided herein for Tenant to cure the
same;).
of the

The

c)

in conflict

rights

of Owner set forth in this Section


Recognized

with the rights of


such Recognized Mortgagee provided
diligently,

exercising

its rights

Mortgage,
any
is in
Re
c
o
g
n
i
z
e
d
Mor
t
g
agee
such
under the applicable
Mortgage.

Recognized

so

to the rights of
the process of, and is

Section 16.

E
FF&

5.

16. 4 shall, to the extent


be subject

Reserve.

a)
Tenant

(
shall cause and

provide) the Hotel Manager to establish, in Tenant' s name and for the

the

Management

Agreement shall

benefit of Tenant,

E Reserve Account")solely for the purpose


separate interest- bearing account (the "FF &
E and Building Equipment required for
of funding the renewal, replacement and additions of FF&
a

the operation of the Hotel

in accordance

with the terms of this lease from

E
Opening Date. To fund the FF&

Reserve

Account,

Tenant

shall

and after the Hotel


shall cause the

deposit, or

deposit, within thirty (30)days after

the end of each month during the term of


Manager
to
this Lease from and after the Hotel Opening Date for such month an amount equal to the
percentage of Hotel Revenues for such month as set
Hotel

forth in

the

fol owing schedule: Lease

Year PercentaJe
To the extent Net Cash Flow
4%
of Hotel Revemes 1 2 3 and thereafter 3%
5%
requi
r
ed
E
Reserve
Accountpayments) for any month
FF&
the
After Debt Service ( without regard to

is insufficient
sixty (

to allow for

60)days after the

amount

Owner, inits

sufficient to

cause

soleand

the

the

E Reserve
FF&

Account deposit required above, Tenant

Lease Year,deposit into

each
E Reserve Account to be fully funded as
FF&

end of

discretion,
absolute

shall,within
an

the FF&
E Reserve Account
so

required above.

18170r n9 4

f~:

whatsoever, may consider a reduction of the Percentages of Hotel Revenues


above any time after the Hotel
in this Section
16. 5(
a)

no reason

Opening

Tenant shall cause


Date. b)

the

Hotel Manager

to make

as set

expenditures

forth

fromthe

FF&
E Reserve Account for the purposes permitted hereunder as is necessary to maintain the
Hotel in accordance with this Lease i(ncluding, without
limitation,

6.
4 hereof).c)Tenant hereby grants to Owner a security interest in the
FF&
E Reserve Account, and all profits and proceeds thereof, in order to secure Tenant' s
Section

under this Section 16. 5,which security interest in such FF&


E Reserve
Account shall be automatically fully subject and subordinate only to the rights of the Recognized
Tenant hereby agrees not to
Mortgagee and any
purchasemoney lender with regard to FF&E.
granta security
E Reserve Account to any Person other than a Recognized MOItgagee,
interest in the FF&
Owner or a purchase money lender. Owner shall execute and deliver all such instruments
as any Recognized Mortgagee or purchase money lender shall reasonably require in order to confirm
obligations

Owner' s subordination
of

its

security interest

as aforesaid. d)
Fundin~ of

FF&E

Reserve
RecoiJlizedMort~ a~ee or its Desiil1ee is Tenant. During the period that (
a Recognized Mortgagee is pursuing a foreclosure against Tenant or (B)a Recognized Mortgagee
A)
or its Designee is the Tenant under this Lease, such Recognized Mortgagee or its Designee
E Reserve Account; provided, however,
shall have the option of (1)
not funding the FF&
such relief from funding shall not be deemed to affect in any way the operational and
this Lease (including,
maintenance standards imposed upon the Hotel pursuant to
further,
however,
such
from
funding, in any event, shall end
without limitation, Section 6.
relief
4 hereof); provided
a
f
t
e
r
four
years
the
of
the
of
x)
(
4)
earlier
(
to
occur
to occur of i)
the
earlier
date
upon
the date upon which such Recognized Mortgagee or
the ftling of such foreclosure, or (ii)
this
Lease
or y)
under
Desi
g
nee
becomes
the
Tenant
the date a Foreclosure Transferee
its
becomesthe Tenant under this Lease or (2)
funding
other than a Recognized Mortgagee or
its Designee
which event the Percentage
the FF&
E Reserve Account as provided in this Section 16.5,in
in
Revenue
Hotel
Section
as set forth
of
Account

durin~ Foreclosure or

while

16.
be five

shall
5(
a)

percent (

each and
5%)

every year

during

such

period. Section 16. 6.

Management Agreement shall so provide) that,


Mana~ement Personnel. Tenant shall cause (and the
the
%)
at all times during the Term, at least twenty- five percent (25 of
Af
r
i
c
anhowev
e
r
,
this Section
provi
d
ed,
the
Hot
e
l
shall
salaried management and supervisory staff of
be
American Persons;

6.
16.

shall notapply (i)


during

pendency
the

1817Drf0995

Bt~:
16.7.
Hotel

Section
Qperatini

the
up

Fundini

Manaier

During the initial term and any extensions thereto of


Deficits.a) Fundil\ i.
Management Agreement, Tenant shall cause the Hotel Manager to fund Operating Deficits of the Hotel

to

an aggregate amount of not less than One

000, 000)the
(

F
" unded

Deficit")or

Tenant

shall otherwise cause

funded; provided, however, if the

initial

Million
the

Management Agreement

Dollars ($
1,

Operating

Deficit to be so
is terminated prior to the expiration

the provisions of this


its initial term,the successor agreement shall provide that
Section 16.7 will remain
(
in effect until the expiration of five 5)
years from
of

Dateunl, ess waived

Hotel Opening

the

Deficit. The term O"


perating Deficit"shall
Expenses

amount

mean that sum

Debt Service and

plus

by Owner.

Definition
b)

Hotel

Operatil\ i

of money by which total Operating

Rental exceed Hotel Revenue.

Deficits funded by the


of the Operating
shall be no more than Two

of

Maximum
c)

Annual

Amount. The

Manager in anyone (1)


year

Hundred

Thousand Dollars 200,000)provided,

that amount
of Operating Deficits that exceeds Two Hundred Thousand Dollars
200, 000);in anyone ( 1)
year shall be carried forward to the next ensuing year and included
however, that

($

the Operating Deficits for that yearto be funded by the Hotel Manager. d)
ReJ>~
ment of Operatini Deficits b.y Tenant. To the extent of any repayments by Tenant
Hotel Manager of Operating Deficits funded by the Hotel Manager pursuant to this Section
to
be made only if funds are available after payment
16.7,
1)
(
such repayments may
the interest rate attributable to
of all
Rental then due and payable and (2)
in

such

repayment

shall

ten ( 10) percent per annum; provided, however, this provision ( i)


shall

not exceed

terminate

(
shall not be included in
of a Foreclosure Transfer, and ii)
Proviso. As long as Town
Park Hotel Corporation,
any New Tenant' s Documents. e)
maintains
ownershi
p
of
any
Equi
t
y
Interest
in
Tenant,
Tennessee
corporat
i
o
n,
or
its Affiliate,
a
this Section 16. 7 shall not be
the

upon

occurrence

to the

applicable

Hotel

definitions in this Section 16.7 shall remain applicable,


as necessary, in this Lease. Section 16.8.One Hotel Manaier. Tenant shall cause (
and the Management Agreement shall so provide) that,at all times during the
Manager; provided,

Term,

however,

the

shall be managed
Le.,the

Hotel

that the

RP

and

Improvements

operated

and

the Shorecrest Improvements

exclusively

by one and the same hotel manager;


Equity Owner of Tenant. Town

Manager. Section 16. 9.Hotel Manaier as

Park HotelCorporation, a Tennessee corporation,

present

Hotel

the

18170rf0996

f~:

under any of the provisions in the Management Agreement which are required under this Lease,
then, in that event, Tenant may replace Town Park Hotel Corporation with another entity as an
equity owner of Tenant provided that the Substantial Controlling Interest in Tenant at all times

consists of African-American Persons and

relating

to

Management Transfers

provided further,

that all other

provisions

in this Lease

have been satisfied.

ARTICLE
DISCHARGE OF
17.
Section 17.1.

LIENS

create, cause

to

c~
ted, or suffer or permit to exist (
i)
any lien,encumbrance or charge upon this Lease, the leasehold estate created hereby,
the income therefrom or the Premises or any part thereof or ap urtenance thereto, which is not removed
Creation

Tenant
of Liens. a)

shall not

within the time period required


or charge upon any assets of,or

pursuant to Section 17.


2,ii)
(
any lien, encumbrance
funds appropriated to,
Owner, or ill)
(
any other matter or

Interest in the Premises or any


might be materially impaired. Notwithstanding the above, Tenant shall

thing whereby Owner'

thereto

be

part thereof or appurtenance


have the right to
including, without limitation, equipment leases) as

execute Mortgages, Subleases and other instruments (


provided by,and in accordance with, the provisions of this Lease, including, without

limitation,

Owner shall not create, cause to be created, or suf er or permit


b)
E.
liens on FF&
to exist (i)
any lien,encumbrance or charge upon this Lease, the leasehold estate
otherwise set permitted in Article 2)
or the
created hereby, the income therefrom except as

any

Premises or any part

thereof or appurtenance thereto, which

is not removed within the


ii)
time period required pursuant to Section 17.2,
( any lien, encumbrance or charge upon
or
ill)
(
any
other matter or thing whereby Tenant' s Interest
appr
o
pr
i
a
t
e
d
any assets of,or funds
to,Tenant,
in the Premises or any part
thereof

or

appurtenance thereto

be material y impaired. Section 17.2. Discharie of Liens.a) If any mechanic' s,


materialman' s or similar statutory lien including, without limitation, tax
vendor' s,
laborer' s,
liens, provided the underlying tax is an obligation of Tenant by law or by a provision of this Lease) is filed
might

against the

Premises or

any

part

thereof,

improvement lien created, or caused


any assets of,
or

or if any public

or suffered to be created by Tenant shall be filed against


days
after Tenant receives notice
funds appropriated to,Tenant or Owner, Tenant shall, within thirty (30)
vendor' s,
materialman' s or similar statutory
of the filing of such mechanic' s,laborer' s,
to
be
di
s
char
g
ed
cause
it
lien or public improvement lien,
of record by payment,
deposit, bond,order of a court of competent jurisdiction or otherwise. However, Tenant shall not be required
furnished Owner with,at Tenant' s option,
to discharge any such lien if Tenant shall have (i)
a cash deposit,bond,letter of credit from an Institutional Lender in form reasonably satisfactory to
Owner) orother

securitysuch
(

a
as

18 '
70rttJ997 company indemnity)reasonably satisfactory to Owner, in an amount sufficient to pay the lien
brought an appropriate proceeding to discharge such lien and
with interest and penalties; and ( ii)

despite Tenant' s
is prosecuting such proceeding with diligence and continuity; except that if,
efforts to seek discharge of the lien, Owner reasonably believes that a court judgment or
order foreclosing such lien is about to be entered or granted and so notifies Tenant, Tenant shall,
within
days after notice to such effect from Owner ( but not later
than three (
ten 10)
(
of
such
j
u
dgment
entry
or
or
busi
n
ess
to
order
of foreclosure), cause such
the
granting
3) days prior
may
thereafter
di
s
char
g
e
of
or
to
di
s
charged
the
be
lien
in
Owner
record
lien
accordance with Section 24. 2 and look to the security furnished by Tenant for reimbursement of
contrary
contained in this Section 17. 2(
its cost in so doing.Notwithstanding anything to the
in the case of a public improvement lien which provides' for installment payments
a),
as a means of satisfying such lien, Tenant shall be required only to pay,on

contrary

contained

in

17.
2(

Section

s,
materialman' s

an

instal ments when due.b)Notwithstanding


anything
to the
a),
if any mechanic' s,
laborer' s,
vendor'

timely basis,all

or

obligation of Owner by law

statutory lien (including, without limitation, tax liens, provided the underlying tax is
or by a provision of this Lease)is filed against the Premises

similar

or Owner' s Interest in the Premises as


officers, employeest representatives or
a result of any action of Owner,its
r
e
c
e
i
v
e
s
notice of the fIling of such mechanic'
agents, Owner shall, within thirty ( 30)days after Owner

or any

part

thereof

or

Tenant' s Interest in

the Premises

s,laborer' s,vendor' s,materialman' s or

similar statutory lien, cause it to be discharged of record


by payment, deposit, bondt order of a court of competent jurisdiction or otherwise. However, Owner
shall not be required to discharge any such lien if Owner shall have (i)
furnished Tenant with,
at Owner' s option,a cash deposit, bond,letter of credit from an Institutional
Lender (in form reasonably satisfactory to Tenant) or other security such as a personal guaranty
or title company indemnity) reasonably satisfactory to Tenant, in an amount suf icient to pay the
lien with interest and penalties and (ii) brought an appropriate proceeding to discharge
such lien and is prosecuting such proce ding with diligence and continuity; except that if,despite Owner'
Tenant reasonably believes that a court judgment or order foreclosing
s efforts to seek discharge of the lien,
such lien is about to be entered
or granted and so notifies Owner, Owner shall,within ten (
notice to such effect from Tenant (but not later than three 3)
10)days of
( business days
prior to the entry or granting of such judgment or order of foreclosure),cause such
record or Tenant may thereafter discharge the lien in
lien to be discharged of
accordance with Section 24.2 and look
to

the security

its cost

furnished by Owner for reimbursement of

No Authori~
to Contract in Name
in so doing.Section 17.3.

in this Article shall be deemed or construed to constitute


the consent or request of Owner, express or implied, by implication or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
of

Owner. Nothing contained

materials
nor as

or repair of,the Premises or any part thereof,


specific improvement of,alteration to,
authority to contract for, or permit the rendering of,any
power
or
Tenant
any
giving
right,

for any

services orthe furnishing of materials

that

Rf~:
or
cause

all

Owner' s

encumbrance against

Interest in the Premises or any


part thereof or against
in any Rental. Notice is hereby given,and Tenant shall
Construction Agreements to provide, that to the extent enforceable under Florida law,

other

of Owner, or

assets

18170r 09 Bmortgage

Owner'

interest

Owner shall not be liable for any work performed or to be performed at the Premises or any part
thereof for Tenant or any Subtenant or for any materials furnished or to be furnished to the Premises
or any part thereof for any of the foregoing, and no mechanic' s,
laborer' s,
vendor' s,
materialman'

similar statutory lien for such work or materials shall attach to or affect Owner'
s Interest in the Premises or any assets of Owner, or Owner' s interest in any Rental. The foregoing
shall not require Tenant to request advance waivers of lien from contractors or subcontractors .

or other

ARTICLE
18.

REPRESENTATIONS
18.1.

Section

No Brokers. Each of Owner and Tenant represents to the other that it has not dealt with
any broker, fmder or like entity in connection with this Lease or the transactions contemplated
hereby, and each

party shall indemnify the other against any claim for brokerage commissions, fees
or other compensation by any Person alleging to have acted for or dealt with the indemnifying
party in connection with this Lease or the transactions
contemplated

hereby. Section

18.

2.
No Other Representation. Tenant
repair

accepts the Premises

in existing

except for the


and Tenant confirms that:

1 and
(
any
18.

other representation

expres ly

forth

condition

and state of

representation contained in

Section

no
Lease),i)
(
or
implied,
have
been
statements,
warranties,
made
or
by,
on
behalf
Owner
with
of,
expr
e
ss
representations,
or
respect to the Premises or the transactions contemplated by this Lease, the status of title thereto (
except as set forth in Exhibit 2.1 attached hereto and
incorporated by reference herein),the physical condition thereof including but not limited to subsurface

set

conditions),the leases and occupancies thereof or


or

with

respect thereto,

in

this

if any,the zoning, wetlands

laws, regulations, rules and orders applicable thereto or the use that may be made of the
" substances"as
Premises, or the presence or absence of hazardous
(
other

defined in the
USCA ~9601

Comprehensive

et seq.)on

Environmental

or

Response,
under

Compensation and
the

Liability Act

of 1980, as

amended, 42

Premises, (ii)
Tenant has relied on no such

Owner shall not be liable to Tenant, in any event


ill)
or warranties, and (
patent defects in the Premises. Notwithstanding anything
whatsoever,to correct any latent or

representations, statements

contained

Section 18.
2

in this

donot

Section

18.2 to the contrary, the

alter
modify,

provisions of this

18170fr09 9

f~:

ARTICLE

19.NO LIABILITY FOR INJURY OR DAMAGE,


Section

ETC.

Liabili~ of
19.1.

or Tenant. a)
Owner NotLiable

Owner

for

Inju(

or

Dam~e_
Etc.
The Owner

shall not be liable to

any Tenant Indemnified Party for,and Tenant shall indemnify and


harmless from and against, any loss, cost, liability,
claim, damage, expense including, without limitation, reasonable attorneys' fees and disbursements),
penalty or fine incurred in connection with or arising from any injury (whether

Indemnified Parties

hold the Owner Indemnified Parties

physical ( including,

without

limitation,

death),economic or

otherwise)

to Tenant or to any

other

Person

concerning the Premises or any damage to,or loss ( by theft


any
or otherwise) of,
s
property
of
property
of
any
other
Person
about
of
the
or
in, or concerning
the Premises, irrespective of the cause of injury, damage or loss i(
ncluding, without limitation, the acts or

about or
in,
Tenant'

of the Premises or of any owners


or occupants of
caused
by
any
or
by
operations in construction
adjacent
property or
Construction Work
of any private, public or quasi- public work)or any latent or patent defects in the Premises, except

negligence of

any tenant or occupant

or

neighboring

to the extent

any of the foregoing is due to the gross negligence or willful misconduct


of any Owner Indemnified Party.The Owner Indemnified Parties shall not be liable,to the
extent of insurance proceeds paid by insurance car iers under Tenant' s insurance policies, for any loss
or damage to any Person or property even if due to the gross negligence or willful misconduct
of any Owner Indemnified Party and, to that extent, Tenant relieves the Owner Indemnified
Parties from such liability. Without limiting the generality of the foregoing, except to the extent caused
by the grossnegligence or wi11fuI misconduct of any of the Owner Indemnified Parties (and then only
in such Owner Indemnifed Party's proprietary capacity as opposed to its governmental
Capacity),the Owner Indemnified Parties shall not be liable for a)
any failure of water supply, gas
(
or electric current, (b)
any injury or damage to person or property resulting from gasoline, oil,
steam, gas, electricity, or hurricane, tornado, act of God, act of war, enemy action, flood, wind
or similar storms or disturbances, water, rain or ice, or c)
(
leakage of gasoline or oil
frompipes,
applianr. es, sewer or plumbing works, except as otherwise provided
Article 35.b) Zonitw Chan~es.Owner hereby assigns to Tenant any and all rights
of Owner, as owner of the Land, under Requirements to execute objections or waivers.
of objections to applications for variances or other exceptions or exemptions from zoning
(
(the owner of the Loews Hotel Land or ii)
or other Requirements by i)
the owner of any other property
with respect to which, under applicable Requirements, the owner of the Land would have the right
to object or consent to variances or other exceptions or exemptions from zoning
or
way
limit
in
no
otherwise
or
restrict any other rights of the City
other Requirements. Such assignment shall
or
of
the
City,
any
or
the
Agency,
Agency
the
or
instrumentalities
any elected or appointed
officials or employees of the Agency or the City,in their respective governmental capacities, from
taking or refraining from taking any action or expressing any views and opinions in connection
in

with suchapplication.

JNM\
A:\

GLEASE.
CMB\

fb:
1 000 If

Owner

so provided Tenant pays

required to join in such application by


all costs,including reasonable attorneys' fees,

is

same.

for

18170r&

c)COQperation. In connection
Land at 1601

land located adjacent to the


and the City, if the City succeeds

with

Requirements, Owner

shall

do

the development of that certain

Collins Avenue (the " Loews Hotel Land"),Owner (

interests of the Agency as owner of the Loews Hotel


Land),as owner of the Loews Hotel Land,and Tenant hereby covenant and agree to work together
to attempt to minimize any material y negative effect of shadows onthe Premises and/or
the adjacent beach caused by any proposed improvements to the
to the

Survival. The provisions of this Section


Hotel Land. d)

Loews

of

the

Tenn.

shall survive the

Expiration

Section

Except as such liability may be eliminated or


Owner' s Exculpation. a)
2.
law or other protections afforded to public bodies or
common
any
constitutional,
reduced
statutory,
the Agency or any instrumentality of the City
governments (for such time as Owner is the City,
sovereign immunity statutes, the liability
limited
not
or the Agency), including,but
to,
19.

by

of Owner in(cluding, without limitation, with respect toany gross negligence or wi1Iful misconduct),or of any other Person
who has at any time acted as Owner ( for such time as Owner is the City, the Agency
or any instrumentality of the City or the Agency) hereunder, for damages or otherwise, arising out of
or in connection with any breach of this Lease or any injury (whether physical ( including
death)economic or otherwise) incurred in connection with this Lease or the Premises, shall be limited
to Two Million Dollars 2,000,000),adjusted for inflation, under this Lease

Agreements ( which may not include all


used in the preceding sentence, the terms
injuries arising out of the facts and
and the Project

the parties hereto), in the aggregate. As


breach"

and i"njury" shall

include all breaches and

Except for conversion, fraud or willful misconduct (


resulting in such breach or injury.b)
and then only to the extent such party acted in its proprietary capacity as opposed to
Parties (
except Owner as provided
its governmental capacity), none of the Owner Indemnified
a))
shall have any liability personal or otherwise) hereunder, and except for
in Section 19.2(
Owner' s Interest in the Premises (to the extent permitted by applicable Requirements),
no property or assets of the Owner Indemnified Parties shall be subject to enforcement procedures
any other liability of the Owner Indemnified
for the satisfaction of Tenant' s remedies hereunder or
or
Lease
the Premises. Nothing contained herein shall
Parties arising from
or in connection with this

circumstances

be deemed a waiver
Nothing contained in this Section or
limitation of any equitable remedies available to Tenant. c)
elsewhere in this Lease is in any way intended to be a waiver of the limitation placed upon Owner' s
and the City' s liability as set forth in 768. 28, Fla.Stat. ,
or of any other constitutional, statutory, common law or other protections afforded to public bodies
19.
governments; provided, however, that the limitation set forth in this Section
or
or

2shallnot

be applicable

Owner'
to

18 , 70f~

I Section

00

19.3. Notice

of1tUut:

within thirty (30)


days of any occurrence
at the Premises of which Tenant has notice and which Tenant believes could give rise to a
Y or

Damale. Tenant

shall

claim of One Hundred


or more, whether or not any
Tenant' s failure to

the

terms

or conditions

of

granted

so

notify Owner

Tenant

Owner

Twenty-Five
shall

Thousand

Dollars ($125,

has been made, complaint

claim

this Lease or result


to

notify

not
in

constitute

or result in a breach or

a loss

filed

000)adjusted(for inflation)
or suit commenced; however,

default

of any of

of any benefit or right

under

(
Tenant' s liability
this Lease. Section 19.4. Tenant' s Exculpation. Except for a)
for conversion, willful misconduct, or fraud,b)
( liabilities of Tenant arising under applicable Requirements. when
or
capacity, ( c)Tenant' s indemnity
act
i
n
g
in
pursuant to its governmental
Owner is
liability with respect to Tenant' s obligation to pay Rental that
a),
and (d)
pursuant to Section 35. 3(
is past due but not yet paid, and except with respect to any rights
the liability of Tenant under this
or remedies for non- monetary relief i(ncluding, without limitation, equitable relief),
Lease and with respect to the Premises for damages or
other monetary
2,
to
Two
000),
adjusted
for
inflation, under
amounts shall be limited
Million Dollars ($
000,
this Lease and the Project Agreements (which may not include all the parties hereto), in
the aggregate. Notwithstanding anything to the contrary in this Lease, Owner' s right to terminate this
shall
Lease and force Tenant to surrender title to and possession of the Improvements to Owner
Other than Tenant' s
not be subject to the limitation of liability contained in this Section 19.4.
property
or
assets
of
Tenant
shal
l
be subject
Interest in the Premises, no other
to levy of execution or enforcement procedure for the satisfaction of Owner' s remedies hereunder or any
other liability of Tenant arising from or in con ection with this Lease or the Premises.
a Tenant Indemnified Party
Without limiting the preceding sentence, if,and only if,
other than Tenant engages in conversion, fraud or willful misconduct, then such Tenant Indemnified
Party shall have personal liability hereunder and the property and assets of such Tenant Indemnified

be subject to levy of execution or enforcement procedure for the


satisfaction of Owner' s remedies hereunder with respect to such conversion, fraud or willful
misconduct. Nothing contained
Party

shall

herein

shall be

deemed

of any equitable remedies available to Owner. Section 19.5.


No Punitive
to
other
for
any
shall
liable
Tenant
nor
Damales. Neither Owner, the City
the
punitive damages
be
in connection with this Lease and Owner, the City and Tenant agree not to seek

a waiver or

punitive damagesfrom each other

limitation

connection
in

Bft:

1817QrC J

002

ARTICLE
20.

INDEMNIFICATION Section 20.

of Owner. Tenant shall indemnify and hold the Owner Indemnified Parties
loss,cost, liability, claim, damage and expense (including,
from
without limitation, reasonable attorneys' fees and disbursements), penalties and tines, incurred in connection with
the use or occupancy or
claims by a Person against an Owner Indemnifed Party arising from (a)
by
of
the
any
Person
claiming through or under
of
use
or
Premises
Tenant or
occupancy
manner
Tenant or b)
(
any acts, omissions or negligence of Tenant, the Condominium Association, if
a
Declarant, if any, under the Declaration of Condominium, if any,or
any,Tenant, as
any Person claiming through or under Tenant, the Condominium Association, if any, Tenant, as such a
Declarant, if any, or of the contractors, agents, servants, employees, guests, invitees or
licensees of Tenant, the Condominium Association, if any,or Tenant, as such Declarant, if any,
or any Person claiming through or under such Person, in each case to the extent in,about
or concerning the Premises either during or after the expiration or termination of the Term,
including, without limitation, any acts, omissions or negligence in connection with any Construction Work or
in the making or performing of any repairs, restoration, alterations or improvements, except to
the extent any of the foregoing is caused by the gross negligence or willful misconduct of
1.
Indemnification

all

harmless

any of
Owner Indemnified Parties.

the

Section

2.
20.
Indemnification of Tenant, a)Owner shall indemnify and hold the

from all loss, cost, liability, claim, damage


and expense ( including, without limitation, reasonable attorneys' fees and disbursements),penalties and fines, incurred
in connection with claims by a Person against a Tenant Indemnified Party arising from
any acts, omissions or negligence of Owner ( only in its proprietary capacity) or of the
contractors, agents, servants or employees of Owner acting in the proprietary capacity of such Owner, in each case
about or concerning the Premises either during, or after the expiration of,
to the extent in,
the Term, except to the extent any of the foregoing is caused by the gross negligence or willful
Tenant

Indemnified

Parties

harmless

misconduct of

In the event that any suit,action or proceeding


of the Tenant Indemnified Parties. b)
of any
document described in Article 27
is brought against Owner to compel disclosure
is
suit,
action
or
whether such
proceeding
brought under Chapter 119,
or Article 28,

any

or any other provision of law,Tenant agrees to defend, indemnify and hold


the Owner Indemnified Parties harmless from and against any loss, claim,
house
without limitation, reasonable attorneys' fees and disbursements, including both indamage, expense including,
(
and outside counsel, and also including any attorneys'fees and disbursements which any court of competent
jurisdiction may award to the plaintiff in such suit,action or proceeding, in all

Florida Statutes

cases includingany appealsthereof

postor

1817Of~ I

ft:

003 relating thereto),penalty or fine incurred in connection with or arising from such suit,action
or proceeding. Owner shall notify Tenant of any such public records request but failure to give
such notice shall not impose any liability on Owner.Notwithstanding the foregoing, in the event
Chapter 119, Florida Statutes, as amended, to
that Owner receives a proper notice under
produce a document, and Owner has such document in its possession and Owner fails to
produce such document due to Owner' s own negligence, malfeasance or misfeasance, Tenant shall not
be liable for any loss, claim,damage, penalty or fine
aforesaid. Section

as

The obligations of
3.
Contractual Liability. a)

Tenant under
this Article or Article 19
by
the
or
way
absence
presence of insurance coverage (
shall not be affected in
any
statutory
thereon,
limitation
or any
including
limitations with respect to Workers' ~ompensation insurance),
or by the failure or refusal of any insurance carrier to perform an obligation on
its part under insurance policies affecting the Premises; provided, however, that if Owner

20.

any

any proceeds of Tenant' s insurance with respect to an obligation of Tenant under


this Article, the amount thereof shall be credited against, and applied to reduce, any amounts paid

actually

receives

and/or payable hereunder by


respect

with

Tenant

to

such obligation. b)
The obligations

of

Owner

under this Article or Article

any way by the absence or presence of insurance coverage, or by


19 shall not
the failure or refusal of any insurance carrier to perform an obligation on its
be affected

part

under

in

insurance. policies affecting the

Premises; provided, however, that if Tenant

actually

receives

any proceeds of Owner' s insurance with respect to an obligation of Owner under this Article,
the amount thereof shall be credited against,and applied to reduce,any amounts paid and/or
payable hereunder by
with respect to such

Owner

If any claim.,action or
Section 20. 4.Defense of Claim. Etc. a)
event to
proceeding is made or brought against any Owner Indemnified Party by reason of any
which reference is made in Section 20.1 or Article 19,then, upon demand
obligation.

by

Owner

or

such Owner Indemnified

Party,

Tenant

shall either resist,defend

or

satisfy such

claim,

action or proceeding in such Owner Indemnified Party' s name, by the attorneys for,or approved
by
by, Tenant' s insurance carrier ( if such claim, action or proceeding is covered
attorneys
shall
n
o
t
w
i
t
h
s
t
a
n
d
i
n
g
,
such
such
other
r
e
asonabl
y
approve.
as Owner
The foregoing
insurance)or

Party may at its own expense engage its own attorneys to defend such
Owner Indemnified Party,or to assist such Owner Indemnified Party in such Owner Indemnified Party' s defense of

Owner

Indemnified

such
action

claim., action or

or proceeding

is

proceec1ing,

as

the

case may

be.

b)
If

made or brought against any Tenant Indemnif ed Party by reason

any claim.,
of any

event to which reference is made in Section 20.


2 or Article 19,then,
such
Tenant
I
n
demni
f
i
e
d
Owner,
or
any successor owner,as applicable,
or
Tenant
upon demand by
Party,
shall eitherresist,defend or

such
satisfy

18170rn I
name, by the attorneys for, or approved by,Owner' s insurance
carrier if such claim,action or proce ding is covered by insurance) or by such other attorneys as
Tenant shall reasonably approve. The foregoing notwithstanding, such Tenant Indemnified Party
may at its own expense engage its own attorneys to defend such Tenant Indemnified Party, or to
assist such Tenant Indemnified Party in such Tenant Indemnified Party' s defense of such claim,
action or proceeding, as the case may
004 Tenant Indemnified

Party' s

Section 20.5.

be.

and Payment. a)
Each Owner

Indemnified Party shall promptly notify Tenant of


the imposition of, incurrence by
such Owner Indemnified Party of any cost or
expense as to which Tenant has agreed to indemnify such Owner Indemnified Party pursuant
to the provisions
of this Article 20.Tenant agrees to pay such OwneI Indemnified Party,
due under
as Rental hereunder, all amounts
this Article 20 within sixty (60)days after
Notif cation

or assertion against

receipt of

the

from such Owner

notice

Indemnified

Party. b)
Each Tenant Indemnified Party

shall promptly

imposition of,incurrence by or assertion against such Tenant Indemnified Party of


any cost or expense as to which Owner has agreed to indemnify such Tenant
Indemnified Party pursuant
to the provisions of this Article 20.
Owner agrees to pay such Tenant
Indemnified
Party all
days after
amounts due under this Article 20 within sixty (60)
notify

Owner

of

the

receipt
the

of

notice

from such Tenant Indemnified Party.Section

6.Survival. The
20.

provisions

of this
Article

shall

survive the Expiration of the Term. ARTICLE 21.AGENCY IMPROVEMENTS Section 21.1.
the construction
Garaie. Subject to Unavoidable Delays,Owner shall, at Owner' s expense,cause
such
Plans"
(
as
and
"
of the Garage in accordance with the Development
"
Drawings"
Construction
terms are defmed in the Garage Development Agreement) provided
"
for pursuant to that certain Garage Development Agre ment ( the Garage
Development Agreement") dated September
and
St.
Owner
20, 1996,
Moritz Hotel Corp.,
between

a Floridacorporation, by the

Opening
Hotel

18170f~ I

f~:

Construction
Section 21.2.

005

Subject to Unavoidable Delays, the City, at the City' s


Roadway Extension. a)
construct, or cause the construction of,
the Roadway Extension by the
of

shall

Opening Date.

Hotel

b)
Roadway

"
Extension"
means

the extension of

expense,

16th

Street from Washington Avenue

to

Collins

3.
Avenue. Section 21.
COQperation. Owner and Tenant shall cooperate
the

scheduling and

with

each other in

construction of the foregoing

improvements
described in this Article.
ARTICLE 22.
OWNER'S SECURITY

INTEREST

IN BUILDING EQUIPMENT AND FF& E Solely for the purpose of securing Tenant' s
obligations to deliver to Owner the Improvements upon Expiration of the Term, Tenant hereby
grants to Owner a security interest in all of the Building Equipment and FF&E now or hereafter
located on the Premises and owned by Tenant,and in all products and proce ds thereof;
provided, however, that Owner's security interest shall be automatically fully subordinate and
subject to any purchase money financing permited hereunder and any Recognized Mortgagee' s
security interest in
the Building Equipment and FF&E.Upon the Expiration of the Term, Owner shall be
entitled to all of the rights, remedies, powers and privileges available to a secured party
under ( and subject to the provisions of)the Uniform Commercial Code enacted by the State
of Florida. Tenant shall execute and deliver all such instruments and take all such action as Owner,
from time to time, may reasonably request in order to obtain the full benefits of the security interest
described in this Section and of the rights and powers herein created and to maintain
and perfect the security interest granted above. To the extent permitted by Requirements,
Tenant irrevocably authorizes Owner to file financing statements and continuation statements with
respect to the foregoing coIIateral without the signature of Tenant. Owner shall execute and deliver
all such instruments as any Recognized Mortgagee or permitted purchase money lender shall
as
interest
reasonably - require in order to confirm Owner' s subordination of its security
a),
Tenant may, during the Term,remove,replace
aforesaid. Subject to Section 14.2(
E in the ordinary course of the operation of the
and otherwise deal with the Building Equipment and FF&
Hotel. To

the extent this

or in

part,

Lease

Owner shall not

this Article 22 for the

period

not requiredto be paid by

enforce

Back Rent or current Rental, in whole


its statutory landlord' s lien for
rent or the lien granted in

of

time

non- payment

allows the

during which

such

of

rent is

18170r~ I
006

ARTICLE
23.
RIGHT TO PERFORM THE OTHER
RESERVED] ARTICLE 24.
Right to
S COVENANTS Section 24.1.

PARTY'
Other

s Obliiations.

a)
If

Default shall occur and be continuing


perform the obligation
be under no obligation to,
to such Default, without waiving o~
releasing Tenant
from any of its obligations contained herein,provided that Owner shall exercise such right only in the
fide emergency or after five 5)
(
business days notice, and Tenant
event of a bona
hereby grants Owner access to the Premises in
Perform

PatV'

beyond any applicable grace period, Owner may, but shall


of Tenant the breach of which gave rise

to perform any

order

If a
such obligation. b)

default

Owner under

this Lease shall


continuing
any
applicable
grace
period,
Tenant
but
beyond
may, shall be under
occur and be
no obligation to,
perform the obligations of Owner ( other than those described in Article 21
by

those which are governmental as opposed to proprietary obligations) the breach of which gave
rise to such default or event of default, without waiving or releasing Owner from
any of its obligations contained herein, provided that Tenant shall exercise such right only in the event of
a bona fide emergency or after five (5)business days
hereof

and

notice

toOwner

or the

City,
as applicable.. Section 24. 2.
Dischat: ie of Liens. a) If Tenant fails to cause
vendor' s,materialman' s or similar statutory lien ( including,
any mechanic' s,laborer' s,
without limitation, tax liens, providing the underlying tax is an obligation of Tenant by law or by a
discharged of record in accordance with the provisions of
provision of this Lease)to be

discharge such
shall not be obligated to,
claimed to be due or by procuring

Article 17,Owner may,but


the amount

lien

of

record either

by

paying

If Owner fails to
deposit or by bonding proce dings. b)
vendor'
s,
s,
s
laborer'
cause any mechanic' s,
materialman'
or similar statutory lien (
including, without limitation, tax liens, providing the underlying tax is an obligation of Owner by law or by

the

discharge of such lien

by

be discharged of record in accordance with the provisions


this Lease) to
be
obligated to,discharge such lien of record either by
not
shall
paying the amount claimed to be due or by procuring the discharge of such lien by deposit or
by bonding proce dings. If Tenant' s Interest in the Premises (or any portion thereof) is threatened
or a material interest of Tenant is impaired, Tenant may also, if Owner has not done so (
a provision of

of Article 17,Tenant may,but

or bondedsuch

compel
lien),

prosecution
the

18170r~ I

f~:

007 foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor
of the lienor with interest, costs and
Reimbursement for Amounts Paid Pursuant
Section 24.3.

allowances.

Any amount paid by Owner in performing Tenant' s obligations as


this Article.a)
provided in this Article, including, without limitation, all costs and expenses incurred by
Owner in connection therewith, shall constitute Rental hereunder and shall be reimbursed to
Owner within thirty (30) days of Owner' s demand, together with a late charge on amounts
actually paid by Owner, calculated at the Late Charge Rate from the date of notice of any such payment
by Owner to the date on which payment . of such amounts
to

is
received by Owner. b)Any amount
paidby Tenant in perfof!Iling Owner' s obligations
Article,
including,
without
in
this
provided
limitation, all costs and expenses incurred
by Tenant in connection therewith, shall be reimbursed
to Tenant within thirty ( 30)days of
Tenant' s demand, together with a late charge on amounts actually paid by Tenant,calculated at the Late
Charge Rate from the date of notice of any such payment by Tenant to the date on which
payment of such
as

is received by

amounts
4.

Waiver. Release and Assumption of Obliaations. a)Owner' s payment or performance pursuant


of this Article shall not be, nor be deemed to constitute, Owner' s

to the

provisions

assumption

of Tenant' s

Tenant.Section 24.

obligations

to payor

perform

any

of

Tenant'

obligations hereunder. b)Tenant' s payment or performance pursuant


not be, nor be deemed to constitute, Tenant' s
to payor perform any of Owner'

past,present or

future

of this Article shall

to the

provisions

assumption

of Owner' s

obligations

spast,
present or future obligations

hereunder. ARTICLE2S. EVENTS


DEFAULT,

OF
CONDmONAL LIMITATIONS, REMEDIES,

. Definition. Each of the following


ETC.Section 25 1.

" of Default" hereunder:


shall be an Event
or any part thereof)of Rental due hereunder and
events

days

after notice is

given byOwner that the

is
same

a)if

Tenant fails to make any payment (

such failure continues for a period of

thirty (30)

1817Qrn

f~:

b)if Tenant shall default in the

008

or condition of this

Lease

on

Tenant'

or performance of any term,covenant


or performed (other than the
set forth below) and Tenant shall fail to remedy

part to

observance

be

observed

covenants for the payment of Rental or as expressly


such Default within
thirty (30)days after notice by Owner of such
Notice"),or

if

such a Default is

of such

thirty (30) days but

is otherwise

a nature that

it

Default (the " Default

cannot reasonably be

susceptible to cure), Tenant shall

not (

within
remedied
within thirty (30)
i)

days after the giving of such Default Notice, advise Owner of Tenant' s intention to institute all
steps ( and from time to time, as reasonably requested by Owner, Tenant shall advise Owner of
the steps being taken)necessary to remedy such Default (which such steps shall be reasonably
in a professional manner),and ii)
designed to effectuate the cure of such Default
(

thereafter

diligently prosecute to completion all

to

remedy

to

such

steps

necessary

if a default by
same;c)

Tenant under theHotel Development Agreement


and/
or the Garage Easement Agreement shall have occurred and be continuing beyond
any applicable cure period, including any cure period applicable

the
provided

same

the

if a
Mortgagee; d)
within the applicable time periods
Recognized

for in Article

writing, that it is generally

debts

unable

e)to
6;

Quality Deficiency shall occur

the extent permitted by

and

Tenant

shall

not cure

law, if Tenant admits, in

to pay its

such become due;f)


creditors; to the extent permitted by

if
law,

Tenant makes an

as

of g)to

the extent permitted

law,if Tenant files


a voluntary petition under Title 11 of the United States Code,or if Tenant files a petition or
an answer seeking, consenting to or acquiescing in,
any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future
Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy
acquiesces in or suffers the
or insolvency statUte or law, or seeks, consents to,
appointment of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant,
of all or any substantial part of its properties, or of all or any part of Tenant' s Interest in
( 50)
the Premises, and the foregoing are not stayed or
dismissed within one hundred and fifty 1

as ignment

for the benefit

by

within
law,if,
or other action; h) to the extent permitted by
days after the commencement of
one hundred and fifty 150)
(
seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or
Tenant
a proceeding against
similar relief under the present or any future Federal bankruptcy code or any other
present or future applicable Federal, state or other bankruptcy or insolvency statute or law, such proceeding
days
has not been
dismissed, or if,within one hundred and eighty ( 180)
Tenant,
any
of
consent
after the appointment, without the
or acquiescence of
trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant, of all or any substantial part of its properties,

days

after such filing

or ofall or any

of
part

Tenant'

f~:

1817or~

Premises,such appointment has not been vacated or stayed on appeal


one hundred
and eighty (180) days after the expiration of any

1 009 Interest in the


or

otherwise, or

within
if,

such stay, such appointment

has

if a levy under execution or attachment in an aggregate amount


i)
125, 000),
adjusted for inflation, at
Five Thousand Dollars ($
of One Hundred Twentyanyone time,is made against the Premises or any part thereof or rights appertaining thereto ( except
for a levy made in connection with actions taken by Owner (other than solely as holder of
s Interest in the Premises)),the income therefrom, this Lease or the leasehold
Owner'
estate created hereby and such execution or attachment is not vacated or removed by court
order, bonding or otherwise
within a period of sixty (60)days after Tenant becomes aware of
such levy or
been

not

at achment,

vacated;

UnavoidableDelays;

subject to

any event descn" bed


or j)

in Section 35. 7

which

is
In the event of a Default which with the
not cured by Tenant as provided in Section 35.7.
giving of notice to Tenant and the passage of time would constitute an Event of Default, Owner'
s notice of such Default to Tenant shall state with specif city the provision of this Lease
under which the Default is

claimed, the

such Default, the date by which such Default

Default by the

date

set

forth

nature and character


must

of such

Default, the

facts giving rise to

be cured,and that the failure of Tenant to cure such

in such notice will

result in Owner having the right to terminate this Lease.Notwithstanding the foregoing,no
Default shall be deemed to have occurred until such time as Owner shall have given Tenant

Event of

notice of the occurrence


an Event of Default ( an Event of

of

es: andTennination. If an Event of Default occurs


Enforcement of Performance: Dama~
Default Notice").Section 25.2.
and Owner chooses to pm:sue a remedy with respect to that Event of Default, Owner
( enforce performance or observance by Tenant of the applicable provisions of this
shall elect to:a)

Lease; (b)
recover daniages for

breach

Lease;or c)
( terminate this Lease pursuant to
a remedy hereunder with respect to an Event of Default shall
of

this

25.3(a).
Owner' s election of
not limit or otherwise affect Owner' s right to elect any of
Section

remedies

the

available to Owner hereunder with

iration and Tennination


Section 25.3.E~
Event of Default occurs, provided Owner has elected the remedy of termination,
If an
of Lease. a)
Business Days after the date of entry by a court of a
Owner may,within ten (10)
( ut without Tenant waiving any rights
final judgment that an Event of Default exists b
it may have to stay the termination pending appeal),give Tenant and any Recognized Mortgagee notice stating that
respect

thisLeaseand

to

any

theTerm

other Event of

terminate
shall

Default.

f~:

18170r~

( days after the giving of the notice, and this Lease and the
than ten 10)
Term and all rights of Tenant under this Lease shall expire and terminate as if the date specified
in the notice were the Fixed Expiration Date, and Tenant shall quit and surrender Tenant' s
Interest in the Premises and posses ion thereof forthwith.If such termination is stayed by order
described in Sections 25. 100 or (h)
of any court having jurisdiction over any case
or by federal or state statute, then, following the expiration of any such stay,or if the
pos es ion fails to assume
trustee appointed in any such case,Tenant or Tenant as debtor- inprescribed
the
period
Lease
Tenant' s obligations under this
therefor
by law or within thirty (
within
days after entry of the order for relief or as may be allowed by the court, Owner, to the
30)
extent permit ed by law or by leave of the court having jurisdiction over such case, shall have
days' notice to Tenant,
the right, at its election,
to terminate this Lease on five ( 5)
day
possession or the
Tenant
trustee. Upon the expiration of the five (5)
as debtor- inpossessi
o
n
and/
Tenant,
Tenant
debtorterminate
and
expi
r
e
shall
period, this Lease
as
inand

101 0 not be less

or

the

trustee immediately shall quit and

Lease is terminated
a),Owner may, without notice, re3(
Section 25.
enter and repossess Tenant' s
not
include,
but
which may
thePremises (
re-entering
be limited to,
repossessing the Premises) and may dispossess Tenant by summary proceedings, writ
in the Premises and possession

Interest
as

surrender Tenant' s

providedin

Interest in

thereof

forthwith. b)If

this

and
of possession,
proce dings

in bankruptcy court or otherwise,subject

to

applicable Requirements.

c)

Tenant
a):
this Lease is terminated as provided in Section 25.3(
i)
shall pay to Owner all Rental payable under this Lease by Tenant to Owner to the date upon which the
Term shall have expired and come to an end and Tenant shall surrender to Owner
If

Interest in the Premises ( and possession thereof) in the manner required by this
the
Lease, and both parties shall be relieved of all further obligations hereunder, except to
extent this Lease expressly provides

Tenant' s

that

event

an

obligation

hereunder shall survive the Expiration of the Term; and ii)


In no

shall Tenant be entitled to receive any

credit

or payment with respect

to

the value

of the Land and


Iniprovements,

title to which shall automatically vest in

25.4.Waiver of Riihts of Tenant and Owner.To the


or
extent not prolnoited by law, Owner and Tenant hereby waive and release all rights now
hereafter conferred by statute or otherwise that would have the effect of limiting or
(
neither party shall be deemed
modifying any of the provisions of this Article.Notwithstanding the foregoing, i)
to have waived the benefit of any automatic stay provisions under any present or future bankruptcy code
and ii)
( Owner shall not be deemed to have waived or released any rights
Owner upon such termination. Section

confer ed

by

any sovereignimmunity conferred by

or
statute

f~:
5.Receipt
25.

Section

10t I .

18170f~
of Moneys

after

Notice

Termination. No receipt of money by Owner from

or

Tenant after the termination of

this

Lease,

after the giving of any notice of the termination of this Lease,shall reinstatet continue or
extend the Term or affect any notice theretofore given to Tenant, or operate as a waiver of the

or

to recover Tenantts Interest in the Premises ( which may include, but not be
recovering possession of the Premises) by proper remedy. After the service of notice
limited to,
right of

Owner

Lease or the commencement of any suit or summary proceedings or after a final


order or judgment for the possession of Tenant' s Interest in the Premises ( which may include, but
a judgement for possession of the Premises), Owner may demand, receive
not be limited to,

to terminate

this

and collect any moneys due or thereafter falling due without in any manner affecting the
notice, proceeding, order, suit or judgment, all such moneys collected being deemed payments on account of

use and occupation of Tenant' s Interest in the Premises (including, without limitationt the
use and occupation of the Premises) or, at the election of Owner, on account of Tenant'
the

s
hereunder. Section

liability

failure by Owner or Tenant to insist upon strict


performance of any covenant,agreement, term or condition of this Lease or to exercise any right or
remedy available to such party by reason of the other party' s default or an Event of Default, and

25. 6.
Strict Performance.

no payment

or

acceptance

of

No

full or partial

Rental

during the

continuance (

or

with Owner' s

Default, shall constitute a waiver of any such


knowledge of the occurrence) of any Default or Event
Default or Event of Default or of such covenant, agreement, term or condition or of
condition. Subject to Section 11. 10,
no covenant,
any other covenant, agreement, term or
of

be performed or complied with by either party, and no


default by either party,shall be waived, altered or modified except by a written instrument executed
by the other party. No waiver of any Default or Event of Default shall affect or alter this
agreement, term or

condition

of

this Lease to

Lease, but each and every covenant, agreement, term and condition of this Lease shall continue in

full

with respect to any other then existing or subsequent Default. Payment by Tenant
to Owner of any Rental shall be without prejudice tot and shall not constitute a waiver of,
any rights of Tenant against Owner provided for under this Lease or at law or in equity.Tenant'
s compliance with any request or demand made by Owner shall not be deemed a waiver of Tenant' s
force and effect

right to

contest

the

of

validity

such request

or demand.

t to EyUoin
Section 25. 7.
Ri~

Defaults.

In the event of Tenant' s Default or Event of

Default,Owner shall be entitled to seek to enjoin the Default or Event of Default and shall have
the right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise,
except to the extent Owner' s remedies are expressly limited by the terms hereof.In the event of
any default by Owner of any term,covenant or condition under this Leaset Tenant shall be entitled to
seek to enjoin the default and shall have the right to invoke any rights and remedies allowed at law
or in

equityor

by

or
statute

ft:

18170r~ I

remedies are expressly limited by the terms


hereof. Provided however, in the event of any such default, Tenant shall be required to give Owner notice
days from receipt of such notice to effect a
of such default and Owner shall
have thirty (30)
cure of such default or if such default is not reasonably susceptible of being cured
within
period, Owner shall have a reasonable time to effect a cure of such default so
3
0)
day
thirty
(
such
long as Owner is diligently prosecuting such cure.Each right and remedy of Owner and
Tenant provided for in this Lease shall be cumulative and shall be in addition to every other
right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise except to the extent Owner' s remedies and Tenant' s remedies are expressly limited
by the terms hereof, and the exercise or beginning of the exercise by Owner or Tenant of anyone or
more of the rights or remedies provided for in this Lease or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by
now or
Owner or Tenant of any or all other rights or remedies provided for in this Lease or
hereafter existing at law or in equity or by statute or otherwise, except to the extent Owner' s
remedies and Tenant' s remedies are expressly limited
0

12 except to the extent Tenant' s

by

the terms

8.
hereof.Section 25.

Remedies Under Bankruptcy and Insolvency Codes. If an order for relief is entered or if any stay of
proceeding or other act becomes effective against Tenant or Tenant' s Interest in the Premises or Owner or

s Interest in the Premises as applicable, in any proceeding which is commenced by


or against Tenant or Owner, as applicable, under the present or any future Federal Bankruptcy Code
or in a proceeding which is commenced by or against Tenant or Owner,
as applicable, seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any other present or future applicable federal,state or other bankruptcy or insolvency
statute or law,Owner or Tenant, as applicable, shall be entitled to invoke any and all rights and
remedies available to it under such bankruptcy or insolvency code, statute or law or this Lease (

Owner'

the events stated in


except that Owner shall not be allowed to accelerate Rental if any of
this Section 25.8 occur and except to the extent Owner' s remedies and Tenant' s
remedies are expressly limited by the terms hereof).Notwithstanding anything in the foregoing to
Owner' s maximum recovery in any such proceeding shall be limited to the then
the

contrary,

outstanding

balance

of the Purchase Price and Back Rent


of

the date

as

of

fIling

of such proceeding. Section 25. 9. Funds Held by Tenant. From and after the date,
if any, on which an Event of Default (including, without limitation, any Event of Default that
has
occurs during the course of the Construction Work for the initial construction of the Hotel)
occurred and while such Event of Default shall be continuing, Tenant shall
been deemed to

have
or distribute any rents, issues or profits of the Premises, or portion
or any
thereof, the proceeds of any insurance policies covering or relating to the Premises
portion thereof, or any awards payable in connection with the condemnation of the Premises or
or condemnation awards are
any portion thereof (except to the extent such insurance proceeds
not pay, disburse

required inconnection

with any Restoration

to

8,

13

70P~

or any undistributed
8 or 9)
which are not Affiliates, in payment of

from any sale or financing


amounts then due and owing by
Tenant to such creditors with respect to work at the Premises, ii)
( Affiliates, in payment of amounts
then due and owing by Tenant to such Affiliates for items and services provided to Tenant
in connection with its operations conducted at the Premises or any portion thereof, only to the
extent such amounts do not exceed that which is customarily and reasonably paid in armslength transactions to Persons who are not Afflliates for comparable items and services, and (ill) the
holder of a Recognized Mortgage, in payment of the principal amount of,and all unpaid
and accrued interest then outstanding under, such Recognized Mortgage and any other amounts
payable pursuant to such Recognized Mortgage and any instruments
lO

except

to

Article

proceeds

to i)
(
creditors

documents

and

related

on.Owner and its representatives shall


I~
thereto.Section 25.10.
to enter upon the

upon twenty- four ( 24)


hours prior notice to Tenant,

have

the right,

a)

Premises (
safety, maintenance and use of the same (but Owner shall not thereby
assume any responsibility or liability for the performance of Tenant' s obligations hereunder,
( to conduct inspections
nor any liability arising from the improper performance thereof) and b)
occurred, provided that
for the purpose of determining whether a Default or Event of Default has
representative
of
Tenant
(
in
of
a
the
Hotel
accomp~
ed
by
shall
be
areas
other
Owner
to

inspect

than

the operation,

areas

sanitation,

shall not unreasonably


representative

of Tenant

available to the general public),and provided further that such entry


interfere with the operation of the Premises. Tenant agrees to make a

readily

available
to

accompany Owner on any


such

NOTICES, CONSENTS AND


inspection. ARTICLE 26.

Service of Notices and Other Communications. a)


1.
In Writin~.
communi
cation shall or may
consent
,
approval
or
demand,
other
Whenever it is provided herein that notice, request,
any Recognized Mortgagee),
(
be given to,or served upon,either of the parties by the other or
AP ROVALS

Section 26.

other
whenever either of the parties desires to give or serve upon the
any notice, demand, request, consent, approval or other communication with respect hereto or to the
other communication ( refer ed to in this Section
consent, approval or
Premises, each such notice, demand, request,
or

" shall be in writing ( whether or not so indicated elsewhere in this Lease)


as a Notice")
and shall be effective for any purpose only if given or served by certified
Mail, postage prepaid,return receipt requested, personal delivery with
or registered U.
S.
26. 1

a signedreceiptor

arecognized

national

18170r~ I

f~:
if to Tenant:

14 RDP Royal Palm Hotel


c/
o Peebles Atlantic

0
Limited Partnership

Development
Corporation Suite 4650 100
S.
E.

Second

with

Street Miami,Florida 33131

copy to:
Donahue Peebles, President
Attention: R.
Royal Palm

RDP
c/

Hotel Limited Partnership

o Peebles
2600 Virginia

Atlantic pevelopment

Corporation

Avenue, N. W., Suite 606 Washington, DC


20037 Attention:
S.P.
NeweU,
Executive Vice-

President and
to:Holland &
Knight LLP Thirtieth Floor

if to Owner:

Brickell Avenue

701

Miami,Florida

33131 Attention:
Hoffman,
Stuart K.

Esq.Miami Beach
Redevelopment

Agency

Executive Director

1700 Convention

Center Drive

Miami Beach,

Florida 33139 with


a copy to:
Miami

Beach Redevelopment Agency


Counsel 1700

General

Convention Center Drive


Miami Beach, Florida

18170r~ IO IS
with

copy to:

City of Miami Beach


City Attorney
1700 Convention Center
Drive Miami Beach,
Florida 33139

and

copy

with a

to:

Bloom &
Minsker Suite
700 1401

Brickell Avenue Miami,

Florida

33131 Attention:

Joel N.Minsker, P.A.Any such Notice may be given, in the


26.
1,x)
(on either party' s behalf by its attorneys designated
hereunder,

and (y)
at Tenant' s

request,on

manner

by

such

in this Section
party by notice
provided

its behalf by

Recognized

Mortgagee designated in such request. b)Effectiveness. Every Notice shall be


effective on the date actually received, as indicated on the receipt therefor or on the date delivery
any

is refused by the recipient thereof. c)References.

thereof

the date"
"

of

Notice

as

shall mean

provided in

subsection (b).
Section

preceding

the

to Grant Approvals

AIl

references in this

Lease

to

effective date,

the

26. 2.
Consents and

or Consents. All consents and

Approvals. a)Effect

of Granting or

may be given under this Lease


granting by a party of any consent

Failure
shall, as a condition of their effectiveness, be in writing. The
to or approval of any act requiring consent or approval under the terms of this Lease, or the failure on the
part of a party to object to any such action taken without the required consent or approval,
shall not be deemed a waiver by the party whose consent was required of its right to
require

such

which may be given

approvals which

consent or approval
by a party

for any other act. b)


Standard. All consents and approvals
under this Lease shall not (
whether or not

elsewhere in this Lease) be unreasonably withheld or conditioned by such party and shall be
the time period provided, and if no such time period has been
provided, within a reasonable time. Upon disapproval of any request for a consent or approval,
the disapproving party shall, together with notice of such disapproval, submit to the requesting
party a written statement
so

given

indicated

or

denied within

setting forthwith specificity its

for
reasons

170f~ I

fb: I B
0

16

c)

Approval. i)
If a party entitled to grant or deny its consent or approval
the "Consenting Party")within the specified time period shall fail to do so,then, except as otherwise
and (ill),
in Section 26. 2( c)(
provided
and provided that the request for consent
ii)
De med

or approval ( and the envelope


the carrier) bears the legend set
provided below, the matter for
to

or

approved,

which

in which such request is


forth below in capita1 eters

such

consent

and in

or

transmitted to

the extent permitted by

a type size not

less than that


deemed consented

approval is requested shall be

as the

FAILURE TO
case may be:

RESPOND TO THIS

REQUEST WITHIN

THE TIME PERIOD PROVIDED IN THE HOTEL LEASE AGREEMENT


BETWEEN MIAMI BEACH REDEVELOPMENT AGENCY AND RDP ROYAL
PALM
HOTEL LIMITED COMPANY [ NAME OF CURRENT

TENANT] SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE MAnERS


[
IN APPLICABLE SECTION]
DESCRIBED HEREIN WITH RESPECT TO SECTION FILL
OF SUCH

which consent or approval is


ARTICLE 10 or ARTICLE 16,then such matter shall not be
pertains to
requested
the Consenting Party shall fail to timely respond to the
deemed consent d to or approved unless (i)
initial request, which request (and the envelope in which
s")
Requesting
( "
Party'
other party' s the
such request is transmit ed to the extent permitted by the carrier) shall bear the legend set forth
the Requesting Party shall thereafter send a second request to the Consenting
above and (ii)
Party which request (and the envelope in which such request is transmit ed to the extent
permitted by the carrier) conspicuously bears the legend set forth above, and Owner shall fail to timely
HOTEL

If the matter
LEASE AGREEMENT." ii)

to

Notwithstanding anything to the contrary


to such second request. Hi)
i)
limitation, Sections 26. 2(c)(
Lease, including, without
contained in this
and ( ii)above,
the
City
shall be
or
of
the
Agency
i
n
strumental
i
t
y
or
any
if the Agency, the City
c)(
matter referred to in Section 26.
than a
the "
Owner" hereunder and the matter ( other
2(
s
the
Agency'
to be consented to or approved requires the consideration of
board of
iv))
instrumentality
such
governi
n
g
body
or
and/
of the
directors, the City Commission
of
other
the
Agency or the City as applicable ( whether pursuant to Requirements or the written opinion of
the City Attorney, the Agency' s General Counselor the chief legal officer of such other instrumentality
then,provided Owner gives Tenant notice of such requirement
of the Agency or the City)
be deemed
within the time period provided for such consent or approval,such matter shall not
request ( or second
approved or consented to unless the Owner shall fail to respond to Tenant' s
are applicable) by the date which is fifteen (
ii)
request if the provisions of Section 26.2( c)(
days after thefirst regular meeting of the Agency's board of directors and/( or
IS)
s governing body, as applicable) which
of the City Commission and/or such other instrumentality'

respond

occurs noearlierthan ten (

days
10)

18

fb:

170fU017 request ( or second request, as applicable); but in any event not later than
days following such request (or second request),

sixty (60)

applicable. iv)
Owner hereby agrees, for so long as the Agency, the City or
"
any other Governmental Authority shall be the Owner"
hereunder, that, subject to
Requirements, the Executive Director of the Agency, the City Manager or the chief operating officer of
such other Governmental Authority, as applicable, shall be authorized to grant consents or
as

of the Agency, the City and/or other Governmental Authority


Lease: Article
7
respect to the fol owing Sections of this
a),14.
14. 2(

approvals on behalf
with

6(

as applicable,
and

Sections

iv)(
4),
20.4,32.
2(b)
4(
b)(
a)(
iii),
16.

provisions of this Subsection shall not be construed to modify or otherwise affect a


party' s right to litigate the failure of a party to act reasonably in granting or denying a request
for consent or to timely respond' to a request for a consent, but such right to litigate shall not
serve to
and

v)The
3.
32.

foregoing

thetime period within which a grant or denial of such request is required hereunder. d)
pursuant to the terms of this
Reme4y for Refusal to Grant Consent or Approval. If,
or
Tenant
is alleged to have been unreasonably
approval
Lease, any consent or
by Owner
withheld, conditioned or delayed,then any dispute as to whether such consent or approval
has been unreasonably withheld, conditioned or delayed shall be settled by litigation. In the
event there shall be a final determination that the consent or approval was unreasonably withheld, conditioned
or delayed so that the consent or approval should have been granted, the consent or approval
shall be deemed granted and the Requesting Party shall be entitled
delay

damages resulting therefrom,subject to the limitations provided in this Lease.


e)
No Fees.etc.Except as specifically provided herein, no fees or charges of any kind or amount shall
be required by either party hereto as a condition of the grant of any consent or
approval which may be required under this Lease (provided that the foregoing shall not be deemed
in any way to limit Owner acting in its
to

any and

all

governmental,

as distinct from its proprietary,


from charging governmental

capacity
fees

on a

nondiscriminatory basis).

ARTICLE 27.CERTIFICATES BY OWNER AND TENANT

Tenant shall, within fifteen (


Certificates of Tenant. a)
days after
15)
Section 27.1.
Owner, or any other Person specified
request by Owner for reasonable purposes, execute, acknowledge and deliver to
that
a)
such
Person)
( certifying ( i)
relied
upon
by
by Owner,a written statement ( which may be
this Lease is unmodified and in fuU force and effect (or if there are modifications, that this

Lease, asmodified, is in

force
full

18170f~ I

0I

the
B annexed copy of this Lease is a true,correct and complete copy of this Lease), and ( ii)
sta ing (
date to which each item of Rental payable by Tenant hereunder has been paid, and ( b)
any
event
that,
with
i)
whether Tenant has given Owner written notice of any default, or
the
c
o
ns
t
i
u
t
e
a
by
Owner
in
would
both,
time,
or
of
passage
or
giving of notice
default,
the
the

performance of any covenant, agreement, obligation or condition contained in this Lease, which default
whether, to the actual knowledge of Tenant ( but
or event has not been cured, and ( ii)
without independent inquiry),Owner is in default in performance of any covenant, agreement,
specifying in detail each such
obligation or condition contained in this Lease, and, if so,

default.
authorized

officer

Tenant shall file with Owner at least annually, a certificate, signed by an


b)
or representative of Tenant, to the effect that since the date oftbe last certificate ( or in

Lease) (1)
no changes
case of the first such certificate, since the date of execution of this
have been made to the partnership agreement or other organic document under which Tenant is
if changes shall have been. made to the Tenant Document, a
Tenant Document' ),or,
organized (the

the

statement as

to the general nature of the changes and a notification to Owner that the amended or

is on file at the office of Tenant located in Dade County, Florida, and that it
the Substantial Controlling Interest in Tenant is
by Owner,2)
(
is available for inspection
owned by African- American Persons,or if changes have been made in the ownership of Tenant, an
modified Tenant

Document

explanation of the changes, which shall include a description of the general and limited partners
or shareholders, their respective equity ownership percentages and whether or not they are
African- American Persons such listing shall also include any assignee of any partner's partnership interest
under the Tenant Document even if such assignee has not been admitted as a substitute general or
( )
such certificate),and 3
limited partner as of the date of
the obligation of the partners of
7(
d)
hereof), and the obligation of
Section
to
deficits ( pursuant
Tenant to fund operating
16.
Tenant' s partners to each other related thereto under the Partnership Agreement have not been amended
is material y adverse to Owner,and 4)
or modified in any way that
( as long as the
in
good standing and
a
Florida
remains
a
general partner of Tenant is
corporation
corporation, it
the
the annual report of said corporation, required to be filed with the Department of State of
and any
Report''),
amended
(the
"
Statutes,
607
,
Annual
State of Florida pursuant to Chapter
Florida
as
fees required for the filing thereof,are not delinquent; or, if not a Florida corporation, it is
a corporation properly authorized to do business in the State of Florida, and a statement to the
effect that the Substantial Controlling Interest in said general partner or any successor thereto is owned by
African-American Persons. A copy of the latest such Annual Report of the general partner of
Tenant

shallbe

attached to

ertificate of Owner. Owner shall,


the aforesaid certificate. Section
C..
27.2.
within fifteen 15)
( days after request by Tenant for reasonable purposes,execute, acknowledge and deliver
relied
to Tenant, or such other Person specified by Tenant, a written staement( which may be
that this Lease is unmodified and in full force and
certifying ( i)
upon by such Person) (a)
effect ( or if there are modifications, that this Lease, as modified, is in full force and effect
copy of this Lease is a true, correct and
and stating such modifications) (and, if so requested, that the annexed
the date to which each item of Rental payable by
complete copy of this Lease),
and (ii)
Tenant hereunderhas been paid,

b)
and
(

Bfb:
10 19 Event of Default
that, with the giving

Default, which

has

18170r~

occurred or whether

given Tenant notice of any event


time, or both,would constitute an Event of

Owner has

notice or the passage of


Default or Event of Default has not been cured, and (
ii)whether, to
of

the actual
i
n
qui
r
y
)
,
independent
Tenant
is
in
knowledge of Owner but
(
default
the
without
in performance of
any covenant,agreement, obligation or condition contained in this Lease, and, if so, specifying, in
detail, each

such

Default or Event

of
Default.ARTICLE 28.FINANCIAL
AND RECORDS Section 28.1.

REPORTS

and Records: Audit Rights. a)


Tenant shall at all times during

Books

the

Term

of
this

Lease keep and maintai1) sep(arate from any of Tenant' s other books, records and accounts),and shall
cause the Hotel Manager to keep and maintain,accurate and complete records pertaining to

the Construction Work

the Hotel and

related thereto, including, without limitation,

account reflecting the operations of the Hotel and such other matters

books of
referenced in this Lease,
be provided for in this

Principles with such exceptions as may


Lease, and provided that Tenant and Hotel Manager)may make such reasonable modifications in such
books of account as are consistent with Hotel Manager' s standard practice in

in

accordance with

the

Accounting

operations under management

contracts generally. Owner and its


representatives shall have, during normal business hours and upon reasonable advance notice, access to
inspect (but not photocopy) the books and records of Tenant and the Hotel Manager pertaining
to the Hotel, including, without limitation, books of account properly reflecting the operations of
the Hotel, which books and records shall be kept at the Hotel.Notwithstanding anything to the
contrary in the foregoing, such books and records may be maintained at the Hotel Manager' s
principal office inthe continental United States of America and in such case,provided such books and
records are not readily available in Dade County, Florida,Tenant shall pay the reasonable travel expenses
( employees or agents of Owner to travel to and stay in the city in
of not more than two 2)
which such books and records are maintained for the purpose of inspecting such bo ks and records not
accounting

for

its

once
once in each calendar year if Tenant is not in default under this Lease or ii)
(
more than (i)
each month if Tenant is in default under this Lease. Owner shall have the right to

in accordance with the Accounting Principles) of


audit by any Recognized Accounting Firm (
but not more frequently
than one (
such books and records to be made at any time (
copy of which shall be
1)time in any twelve ( 12)month period),at Owner' s expense ( a
be
exerci
s
ed
at
any time within three (3)years
and
audit
right
inspection
delivered to Tenant). Such
may
of

cause an

after the end of the Lease Year to which such books and records relate, and Tenant
and Hotel Manager shall maintain all such books and records for at least such period of time and,
if any Dispute between the parties has arisen and remains unresolved at the expiration of such period
of time,for such

period oftime

untilthe

further

of
resolution

f~:

18170r~ I

b) If,
020
upon any audit by Owner as described above of the books or records of
( hich shall mean a mistake in calculation, allocation of
an error w
Man ger,( i)
Tenant or Hotel
cluding the home offices of
overhead costs properly chargeable to Hotel Manager' s home office in(

cost fraudulently incurred, but shall exclude


assertio~ that Tenant acted imprudently or unwisely in connection with
any error based on
the operation and management of the Hotel) shall be revealed which results in there being due
to Owner Incentive Rent for any Lease Year for which Annual Financial Statements are
a)the amounts of any such underpayments
Section 28. 1(
being audited pursuant to
of Incentive Rent which may be disclosed by such audit,together with interest accrued thereon at
the Late Charge Rate from the date on which such underpayment was made until the date of payment
an error (
of the correct amount, shall be paid to
Owner upon thirty ( 30) days demand or (ii)
an
by
Tenant
in
be
revealed
overpayment
above)shall
as defined in clause i)
which resulted
Affiliates of

Hotel

Manager),

an

accounting

error, or a

to Owner of Incentive Rent, Owner shall remit the amount of such overpayment ( less the cost of
such audit)
( days after the completion of such audit. If such error
to Tenant within thirty 30)
being audited pursuant
results in there being due to Owner Incentive Rent for any Lease Year
to

in an
Section 28. 1(a)

amount equal to or exceeding

three percent ( 3

of the Incentive Rent theretofore paid by Tenant in respect of such Lease Year, then the cost of such audit
be paid by Tenant to Owner upon thirty (30) days demand. If Owner does not
shall
years after the
error in the calculation of Incentive Rent within three (3)
waived any
to
conclusively
be
Lease Year, then Owner shall
deemed
have

notify Tenant of any


end of

any

and all obligations with respect to

The fol owing financial


Incentive Rent payments with respect to such Lease Year.c)
if,
Tenant fails to
statements for the applicable year shall be delivered to Owner by Tenant if,and only
the Incentive Rent,
3)
fully
pay
the
Addi
t
i
o
nal
pay
( fully
Rent, (
I)
fully pay the Base Rent,2)
any

if any is due,

or (

4)keep

the

Lease otherwise in

good standing

As soon
and not in Default: i)

( days
but in no event later than the date which is one hundred fIfty 150)
available,
to
deliver
Year,
after the end of each Lease Tenant shall
have executed a confidentiality agre ment as
Owner or its representatives, which representatives shall
descnbed' below,annual fmancial statements which shall include 1
( ) an information copy of a
a
(
projected income statement reflecting the budget for the upcoming year, 2)
shallinclude, without limitation, occupancy and average
statement of Hotel Revenue which
E,
(a statement of expenditures for FF&
daily rate information) and 3)
and general
capital expenditures, Operating Expenses ( including, separately, rooms expense, administrative
expense, utility expense and repair and maintenance expense), Debt Service, and Hotel Operating
(hich statements shall be audited
"Annual Financial Statements") for such Lease Year w
Profit the
(
by any Recognized Accounting Firm) accurately reflecting the financial condition of Tenant and the
sheets,
Hotel and the results of the Hotel's operations, including, without limitation, balance
profit and loss statements and statements of changes in financial condition,all
prepared and certified by Tenant and such independent certified public accountant in accordance with
the Accounting Principles; all such financial statements shall set forth separately
as

the
the propertyincluded in,

relating
liabilities

18170fG1OZ1

f~:
As

soon

as available,

but in no event

of each month, Tenant shall deliver to Owner


have executed

confidentiality agreement

the contents of which shall be the

same as

as

or

its

ii)
later

than thirty 30)


(

representatives,

described below,

an

which

days after the end


representatives shall

unaudited financial statement,

the Annual Financial Statements and

and loss statement comparing actual results to both the then current

budget

an

unaudited

and the

profit

previous year' s

actual results, for both the current month and Lease Year to date.
d)

As

available, but in

later than

thirty (

30)days prior to
the commencement of each Lease Year,Tenant shall make available at the Hotel for inspection
and examination ( but not photocopying) by Owner or its representatives, which representatives
shall have executed a confidentiality agreement as described below, an information copy of a
projected summary income and expense statement reflecting the budget of the estimated Hotel
Revenue including, separately, gross room revenues and food and beverage revenues),expenditures
for FF& E,
capital expenditures, Operating Expenses ( including, separately, rooms
expense,administrative and general expense, utility expense and repair and maintenance expense),
Debt Service, and Hotel Operating Profit for such coming Lease
soon as

no event

Article 28,so long


e)
Notwithstanding any of the foregoing provisions of this
as the Owner is the Agency, the City or any instrumentality of the Agency or the City,the
books and records of the Hotel,the Annual Financial Statements and any other documents (
collectively, the
this Article
Hotel Documents") required to be made available to Owner under
28 shall be maintained at the Hotel; provided, however, that certain Hotel Documents are
pursuant
required to be delivered to Owner by Tenant
Year.

If an extract of any Hotel Document is made by


c).
Sections 28. 1(
f)
to
its
repres ntaives and delivered to Owner' s offices, there shall be
of
or
any
Owner
attached by Owner or its representatives to the front of the first page of such Hotel Document a
sheet of paper bearing the legend set forth below in capital letters and in a type size not
less than that provided below: THE ATTACHED
DOCUMENT CONTAINS BUSINESS OR FINANCIAL INFORMATION THAT HAS
BEEN DESIGNATED AS CONFIDENTIAL BY INSERT NAME OF TENANT]. THE ATTACHED

DOCUMENT IS TO BE KEPT SOLELY IN TIlE OFFICE OF THE CITY ATTORNEY


CITY OF MIAMI BEACH, FLORIDA. THE ATTACHED
OF THE
DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICE AND
SHALL BE RELEASED SOLELY
Any third party representatives (
g)
ACCORDANCE WITH APPLICABLE LAW."
IN
including, without limitation, any Recognized Accounting Firm) of Owner that review any Hotel
Documents shall execute a confidentiality agreement mutually acceptable to Owner and Tenant. If an extract
of any Hotel Document is made by any such representative for use in the offices of
such representative, there shall be attached by Owner or its representative to the front of the first page
JNM\
of suchHotel Document aA:\

8 \

k'
70nl022 sheet of paper bearing
than that provided

the

legend set forth below

in capital

letters and

in

a type

size not less

below: THE ATIACBED DOCUMENT CONTAINS BUSINESS OR


FINANCIAL INFORMATION THAT HAS BEEN DESIGNATED AS CONFIDENTIAL
BY INSERT NAME OF TENANTJ. THE ATIACHED DOCUMENT IS SUBJECT

TO A CONFIDENTIALITY AGREEMENT AND SHALL BE KEPT SOLELY IN

NAME OF
REPRESENTATIVE].
THEA'
THE OFFICES OF INSERT
[
ITACHED DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICES AND SHALL
BE RELEASED SOLELY IN ACCORDANCE WITH SUCH

CONFIDENTIALITY AGREEMENT AND APPLICABLE

Promptly following receipt of a request under any Requirement for the release
h)
of a copy of any Hotel Document, Owner shall notify Tenant of such request, but neither Owner
nor any Owner Indemnified Party shall incur any liability to Tenant or any Tenant Indemnified
Party if Owner unintentionally fails to provide any such
LAW."

Neither Owner nor any Owner Indemnified Party shall incur any liability to
i)
Tenant or any Tenant Indemnified Party in the event any Hotel Document is stolen,misplaced
or otherwise unintentionally released in violation of the foregoing provisions of
Sections 28.
notice.

e)-(
G>So long as the Owner is not the Agency, the City or the State of
1(
h).
Florida,or any instrumentality of the Agency, the City or the State of Florida,then the provisions
shall be applicable to Owner: " Owner acknowledges
of this Section 28.1( j)
its rights under this Article 28
that it may acquire certain information pursuant to
that Tenant desires to keep confidential, including, without limitation, the Hotel Documents
and other financial
information
Information"). Subject to Requirements,
made available to Owner (the "
(to disclose or
to keep such Information confidential and ii)
permit
Owner agrees i)
(
1)
to
and
agencies,
reinsurers,
liquidity
disclosure of the Information only (
securities rating
credit providers, legal and other advisors and insurance and other regulatory bodies, in each
case, for reasons consistent with the performance of their duties; provided, that Owner shall obtain, for the
benefit of Tenant,from any such Person a confidentiality
agre ment incorporating the terms of
1(
this Section 28.
prior to the disclosure of such Information,
j)
thereof;provided, however,
upon subpoena by any Governmental Authority having jurisdiction
or 2)
(
Business Days after service of such subpoena and
that Owner shall notify Tenant within five (5)
Tenant shall thereafter have the

right

to

The obligations
seek a protective order preventing disclosure of such Information. "k)

of Tenant and

Owner underthis Article shall survive

the

Expiration

8170PG ,

b: ,

023

ARTICLE 29.SURRENDER AT END


TERM Section 29.

OF

Surrender of Premises. Upon


1.

the

Expiration

Interest in the

of

the

Termo( r

entry
upon a re-

by

Owner upon

limitation, a reentry upon the


Premises) pursuant to Article 25),Tenant, without any payment or allowance whatsoever by
Owner,shall surrender Tenant' s Interest in the Premises,and shall yield up possession of the Premises,

Tenant' s

Premises (

including,without

in good order, condition and repair,reasonable wear and tear excepted and (subject
damage from casualty excepted, free and clear of
to the provisions of Article 8)

to Owner
all

and encumbrance other than as set forth below and the Title Matters. Tenant hereby
any notice now or hereafter required by law with respect to vacating the Premises

Subleases, liens

waives

on

the

Expiration of the

2.Delivety of Subleases. etc.Upon theExpiration


of the Term (or upon a reTerm.Section 29.
entry by Owner upon Tenant' s Interestin
the Premises ( including, without limitation, a
Tenant shall deliver to Owner the following ( to
reentry upon the Premises) pursuant to Article 25),
the extent then in Tenant' s possession or control): Tenant' s original executed counterparts, if

available ( and if not available, true and correct copies thereof),of all Subleases then in
effect, any service and maintenance contracts then affecting the Premises, true and complete
maintenance records for the Premises, all original licenses and permits then pertaining to
the Premises, permanent or temporary certificates of occupancy then in effect for the Premises, and all
anywork
warranties and guarantees then in effect which Tenant has received in connection with
E installed in the Premises ( such
or services performed or Building Equipment and FF&

to be delivered without representation or warranty by Tenant),together with a duly executed assignment


for recording, and all financial reports required
thereof (without recourse) to Owner in form suitable
by Article 28 and any and all other documents of every kind and nature whatsoever relating
to the
of the

operation

Premises

condition of the Improvements. Section 29.3.Title to Improvements. Owner recognizes and


ownership of and title to Tenant' s Interest in
(
agrees that until Expiration of the Term i)
Tenant shall own the Improvements now existing or in the future located on
(
the Premises shall be in Tenant, ii)

and

the

rights and privileges of


ownership of Tenant' s Interest in the Premises.Ownership of and to Tenant' s Interest in
the Premises shall automatically vest in Owner upon the Expiration of the Term, without
the payment of consideration therefor, and without the necessity
for the execution
and delivery by Tenant of any instrument transferring title. Notwithstanding the foregoing, Tenant covenants and agrees
the

Land

and ill)
( Tenant

that uponthe Expiration of

has, and

Term,
the

shall

be entitled to,all

Bf~: r
024

8170P~

request,execute and deliver to Owner any instrument or

Owner to

confirm title to

Owner.

Tenant'

document reasonably requested

by

s Interest in the Premises in

Section 29. 4. Title to FF&

E Reserve Account and all


E Reserve Account. Ownership of and to the FF&
proceeds thereof shall automatically vest in Owner ( subject to the lien therein of the Recognized
Mortgagee)upon the Expiration of the Term,without the payment of consideration therefor, and
without the necessity for the execution and delivery by Tenant of any instrument
transferring title thereto. Notwithstanding the foregoing, Tenant covenants and agrees that upon the Expiration

of the Term,Tenant shall, upon Owner' s request, execute and deliver to Owner any
titleto said FF&
E Reserve
instrument or document reasonably requested by Owner to confirm
Account and proceeds

thereof

in Owner. Section 29.

5.
Cash and Accounts

Receivable. Tenant shall retain the right to all cash and accounts receivable
in
Premises existing as of the Expiration of the Term and Owner
shall pay Tenant for all unopened consumable supplies located at the Premises upon the Expiration
of the Term (based on Tenant' s actual cost therefor); provided, however that Tenant shall
turn over to Owner all deposits, accounts receivables and other payments with respect to
all bookings for periods after the Expiration of the Term.Owner shall assume all advanced
bookings for periods after the Expiration of the Term made in the ordinary course of the operation of
the Hotel. If,after the Expiration of the Term,Owner collects any accounts receivable
to which Tenant is entitled, Owner shall promptly remit such amounts to Tenant, subject to
on or

connection

with the

the
rights

of

anyRecognized

6.Personal Pro. pe~.


Mortgagee. Section 29.
Any personal property of
Subtenant which remains on the

Premises

after the termination of this

Lease

Tenant

or of any

or after the removal of

Tenant or such Subtenant from the Premises, may,at the option of Owner, be deemed to have
been abandoned by Tenant or such Subtenant, and either may be retained by Owner as its property
or be disposed of,
without accountability, in such manner as Owner may see fit,in its absolute

and sole discretion, but in compliance with applicable


any loss or damage occurring to any such
property
Tenant

shall

not be

owned by

or

this Articleshall survive the

Requirements. Owner

Survival
any Subtenant. Section 29.7.

of
Expiration

Clause.The provisions

of

responsible for

18170P~

t~:

025

ARTICLE 30.
QUIET ENJOYMENT Owner
Event

of Default

reservations, terms and conditions of

covenants

that,as long as

proprietary

effect

without an

existing hereunder, Tenant shall and


to the exceptions,
Lease)
and
quietly
have,
peaceably
this
hold and enjoy Tenant' s Interest
may ( subject

in the Premises for the Term

in its
its

this Lease is in full force and

capacity) or any

without

Person

molestation

claiming

or disturbance by or from Owner ( solely


under or through Owner ( solely in

by,

proprietary

capacity)A.RTICLE
31.
RESERv'kD]ARTICLE

32.
ADMINISTRATIVE AND
JUDICIAL

PROCEEDINGS, CONTESTS, ETC.

Tax
Section 32.1.

Contest Proceedinis. Tenant shall have the right (

subject to the provisions of

at its sole cost and expense, to seek reductions in


32. 2),

Section

the

valuation

of the Premises assessed for real property tax purposes and to prosecute any
action or proceeding in connection therewith by appropriate proceedings diligently conducted
in

good faith,

inacordance

32.2.Imposition Contest Proceed. iIlis.Tenant shall have the right to contest,


at its sole cost and expense, the amount or validity in
,
whole or in part,
of any Imposition by appropriate proceedings diligently conducted in good faith,in which event payment
of such Imposition may be
with applicable Requirements. Section

Neither the Premises


subject to Requirements, if,
and only as long as: a)
thereof would, by reason of such postponement or deferment, be,in the reasonable
nor any part
judgment of Owner, in danger of being forfeited to a Governmental Authority ( other than
Owner when the Agency or the City or an instrumentality thereof is Owner) and Owner is not
postponed,

of being subjected to crimina1liability or penalty or civi1liability or penalty in


Tenant has furnished security as provided in
amount for which
in

danger

by reason of
Section 32.
2(
b)

nonpayment

excess

of

the

18 70?~
026 b)
Tenant has

with a Recognized Mortgagee, if any (or if not, with


by Tenant, subject to Owner' s consent, not to
a
party escrow agent
be unreasonably withheld ( failure to respond
within fifteen (15)days after notice
amount
in
the
conclusively
deemed
approval
)
),
cash
alternatively, at Tenant'
so contested and unpaid or,
being
s option,a surety company bond or an irrevocable letter of credit issued by an Institutional
Lender i
( n form reasonably satisfactory to Owner) or other security ( for example, a
personal guaranty) reasonably satisfactory to Owner, in the amount so contested and unpaid, together with
all interest and penalties in connection therewith and all charges relating to such contested
Imposition that may or might, in Owner' s reasonable judgment, be assessed against, or become a
charge on, the Premises or any part thereof in or during the pendency of such
proceedings; provided, however,any amount deposited with any governmental entity, the making of which deposit
is required by law in order for Tenant to contest such matters,shall be considered part of the
amount so required of Tenant by Owner (the intent being that Tenant shall not be required
2(b)).
under
this Section 32.
to make duplicitous deposits
Upon the termination of
such proceedings, Tenant shall pay the amount of such Imposition or part thereof as finally
determined in such proceedings, the payment of which was deferred during the prosecution of
such proceedings, together with any costs,fees (
including, without limitation, reasonable
attorneys' fees and disbursements),interest, penalties or other liabilities in connection therewith, and,
upon such payment, any Recognized Mortgagee or escrow agent holding any amount or other security
deposited with it with respect to such Imposition shall ( subject to the terms of any
agreement between Tenant and any Recognized Mortgagee or escrow agent)return the same, together with
the interest, if any,earned thereon.However, if such Recognized Mortgagee or escrow agent
is so requested by Tenant, such Recognized Mortgagee or escrow agent shall disburse said moneys
which such Imposition is payable. If
on deposit with it directly to the Person to whom or to
at any time during the continuance of such proceedings Owner, in its reasonable
judgment, deems insufficient the amount or nature of the
10)
security deposited, Tenant, within ten (
days after Owner' s demand, shall make an additional deposit of such additional sums or
other acceptable security as Owner may request, and upon failure of Tenant to so do,the
amount theretofore deposited, together with the interest, if any, earned thereon, shall,upon demand by
Owner,be applied by such Recognized Mortgagee or escrow agent to the payment,removal and
est and penalties in connection therewith and
discharge of such Imposition and the inte~
any costs, fees (including, without limitation, reasonable attorneys' fees and disbursements) or other
liability accruing in any such proceedings and the balance, if any, remaining thereafter, together with the
earned thereon and remaining after application by Owner as aforesaid, shall be returned
interest,if any,
If there is a deficiency, Tenant shall pay
Person
entitled to receive it.
Tenant
to
the
to
or
the deficiency to Owner or the Person
entitled to receive it, within
I

proposed

third

ten (

deposited

days
10)

after

32.3.ReqJ1irement Contest. Tenant shall have the right to contest


the validity of any Requirement or the application thereof.During such contest, compliance
with any such contested Requirement may be deferred by Tenant provided that before
(
if not, with
instituting any such proceeding, Tenant shall furnish such Recognized Mortgagee, if any or
Owner' s demand. Section

a thirdparty escrow agent proposed by

A:\

Tenant,

f~:

18170r~

027 subject to Owner' s consent, not to be unreasonably withheld (failure to respond within
deemed approval) , with a surety company
fifteen ( 15)days after notice being conclusively
s
cash
option,
deposit,
an ir evocable letter of credit issued
a
bond or, alternatively at Tenant'
per
s
onal
guaranty),in form and
by an Institutional Lender or other security ( e.g.,
a
amount reasonably satisfactory to Owner,securing compliance with the contested Requirement and payment
of all interest, penalties, fines, civil liabilities, fees and expenses in connection
therewith; provided, however, any amount deposited with any governmental entity,the making of which
deposit is required by law in order for Tenant to contest such matters, shall be considered part of
the amount so required of Tenant by Owner (the intent being that Tenant shall not be required
3).
this Section 32.
Any such proceeding instituted
to make duplicitous deposits under
soon
possi
b
l
e
the
as
as
issuance
by Tenant shaH be commenced
after
of any such contested
be
prosecuted
diligence
and
settlement,compliance
with
Requirement
shall
to final adjudication,
sted. The furnishing of
or other mutua1Iy acceptable disposition of the Requirement so con~
any bond, deposit, letter of credit or other security notwithstanding, Tenant shall comply with
provisions of Section 15. 1 if,
any such Requirement in accordance with the
in
noncompliance therewith would create an emergency condition involving
Owner's reasonable judgment, (i)
Premises, or any part thereof, are in material danger
the
of
heal
t
h
or
safety
persons, (ii)
the
of being forfeited to an authority ( other than Owner when the Agency or the City or
an instrumentality thereof is Owner) or ill)
Owner is in danger of being subjected to criminal liability or
(
penalty, or civil liability in excess of the amount for which Tenant shall have furnished
security as hereinabove provided by reason of noncompliance therewith, and any security posted by Tenant
shall (subject to the terms of any agreement between Tenant and any Recognized Mortgagee
or

escrow agent) be returned to Tenant


with

any

interest

accrued thereon. Section 32.

in Contest Proceedings. Owner shall not be required to join in any action


or proceeding referred to in this Article unless the provisions of any law, rule or regulation at the
and/ or in the name of Owner.
time in effect require that such action or proceeding be brought by
in
and
cooper
a
t
e
shall
required,
so
such proceedings or permit them to be brought by
Owner join
If
Tenant in Owner' s name, in which case Tenant shall pay all reasonable
costs and expenses ( including, without limitation, attorneys' fees and
disbursements) incurred
by Owner in connection therewith. Notwithstanding the foregoing, Owner' s joinder and cooperation shall be
limited to actions necessary to enable Tenant to satisfy technical requirements of any such action or proceeding
and in no event shall Owner be required to join in any such
4.
Owner' s Participation

action

or

RESTAURANT Tenant shall enter into a


Agreement") with the Restaurant Operator
lease or purchase
000)square feet of retail space in the Shorecrest
who shaI1lease or purchase approximately twelve thousand ( 12,
proceeding in any substantive

capacity.

ARTICLE

33.

Restaurant
agreement ( the "

Hotel forthe operation of

destination
a

18170P~

t
the " Restaurant").

The Restaurant

Agreement

I028
shall include, without limitation, the

foUowing

terms and conditions:

Commencement.

a)

one

The Restaurant shall be open to the


120)days from the Hotel Opening

hundred twenty (

b)
Restaurant

Date.

A~
nt

public

for business within

Execution. The

Restaurant Agreement shall be executed


provided,
however,
the date of the execution of
Date;
the Restaurant Agreement may be postponed until the Hotel Opening Date if Tenant posts, on
or before the Construction Commencement Date, an irrevocable standby letter of credit, in the
no later than the Commencement

form reasonably

acceptable to

the amount of Three

Owner, payable on presentation ( sight credit), in favor of Owner in


Hundred Thousand
Dollars ($300,000)
and payable according

to the fol owing: This letter of credit may be drawn upon in.fu11 by the
beneficiary hereunder upon the presentation to the Bank of a statement signed by an officer
of

beneficiary that a monetary Event of Default exists under the Agreement of

Lease between the beneficiary and RDP Royal Palm Hotel Limited
Partnership [

and

date].c)
"
Approval

of the Restaurant. The selection of the Restaurant


the Restaurant Operator,and any substitutes thereto, shall be subject to the

insert

of Owner.d)The Restaurant as

ap roval

a Condominium Unit.If Tenant

elects

to file

a Declaration of Condominium for the Hotel, the Restaurant


shall be one ( 1)
out of
a
total of two 2
(
)
condominium units allowed under such Declaration
of Condominium
pursuant
to Section 6.
Tenant shall cause
2(
a)iv)
(
.
said Declar tion of Condominium to contain provisions that (
i)
the sale or lease of the Restaurant unit shall be subject to Owner' s approval and (
ii)the Restaurant unit

shall

be operated in accordance with the

standards referred to in this Article 33.e)


QJ1ality Standards.
to
contain
standards
per
t
a
i
n
i
n
g
Rest
a
ur
a
nt
Agreement
the
operati
o
n
and
physical
The
quality
shall
condition of
the Restaurant. All of the quality standards shall be subject to the approval of Owner. Tenant
quality

shall cause the Restaurant

to

the quality
standards. t)
allof
Restaurant Ail' eeIIlent a Sublease. The Restaurant
it is in the nature of a lease,shall be deemed to be a Sublease under

comply

Agreement, if

Operator

this

with

Lease requiring Owner'

approval

under

a)(
V11(c).
g)Nonsubject to Section 10.1(
a
shall execute
non-disturbance agreement
in favor of the Restaurant Operator containing terms general y found in such agreements in
form and content reasonably acceptable to the Restaurant Operator and Owner, but the term of which shall be no longer
than the earlier to occur
of (

Section

10.2

Disturbance Aweement. Upon request of Tenant, Owner

i)
theexpiration

of the

Agreement
Restaurant

18170r~ I

ft:
029

ARTICLE 34.
INVESTIGATIONS, ETC. To

by Requirements, Tenant shall cooperate fuIIy and


conducted by any Governmental Authority that
to compel the attendance of witnesses and to examine

the extent required


investigation, audit or inquiry

any

faithfully with
is empowered directly or by designation
witnesses under oath,or conducted by a Governmental Authority that is a party in interest to
the transaction, submitted bid,submitted proposal, contract, lease, permit, or license that is the subject
of the investigation, audit or inquiry. In addition, Tenant shall promptly report in writing to
the City Attorney of the City of Miami Beach, Florida any solicitation) of which Tenant' s
officers or directors have knowledge, of money, goods, requests for future employment or other
benefit or thing of value, by or on behalf of any employee of.the Agency, City or other Person
relating to the procurement or obtaining of this Lease by the Tenant or affecting the performance

of
this

Lease.ARTICLE
HAZARDOUS

35.
the

following

MATERIALS Section 35.


1.Definitions. For the

this Lease,

a) " Hazardous Materials" shall mean (i)petroleum and


any form which is or could become

have the

shall

purposes of

terms
following

definitions:

its constituents; ( il)


radon gas,asbestos in
friable,urea formaldehyde foam insulation, transformers or other

fluid

containing

levels

of polychlorinated biphenyls

in

excess

equipment which contain dielectric


of federal, state or local safety guidelines,

( any substance, gas, material or chemical which is or may hereafter be


whichever are more stringent; ill)
defined as or included in
the defmition
of hazardous
"
hazardous" wastes,"
pollutants or cont. 9min~nts,"solid
"
materials,"
substances,"hazardous"
wastes"or words of
similar import under any Requirement including the Comprehensive Environmental Response,
amended, 42 U.
Compensation
and Liability Act,
C. 9061~
ct~;
as
S.
the Hazardous Materials
C. 1801,
~
ct
gg..;the Resource
Transportation Act, as amended, 49 U.S.

Conservation and Recovery Act,as amended,42 D. S.C. 6901, ct SCQ...;


the Federal
amended, 33 U S.
as
Water Pollution Control Act)
C.
~
1251,
.
ct KQ...;

and

Florida Statutes, Chapters

376

iv) any
and 403; and (

substance,the exposure to

any
the operations

governmental or
thereon;

Environmental
b)
"

shal

mean

release of

quasi- governmental entity

Environment,

which

other chemical, material, gas or


regulated by

is

having jurisdiction

over the

Premises or

Laws"

all Requirements

human health or the

and remediationof Releases or

or

relating

to the protection of
reporting, licensing, permit ing, investigation

including: i)
all Requirements relating to

of
Threat

B~ t: 1
170P~
1 030

manufacture, processing,

distribution, use, treatment, storage, disposal, transport

or handling of
Materials;

Hazardous

and

safety

of

all Requirements pertaining


and ii)

Environment" "
shall mean
the public; c)
surface
or
subsurface
strata
groundwaters, land,stream sediments,
and

the health

employees

or

to

to the protection of

soil,surface

waters,

Environmental
"
ambient air;d)
Condition" shall mean any condition with respect
not
yet
di
s
covered,
or
which
could or does result in
whether

the Premises,

Environmental Damages,including any condition resulting from the operation of Tenant' s business or the
operation of the business of any subtenant or occupant of the Pretpises or that of any other
property owner or operator in the vicinity of the Premises or any activity or operation formerly

any

conducted

by any

Person on or

"Damages" shall mean all claims,


Environmental
Premises; e)
judgments, damages ( including punitive damages), losses, penalties, fines, liabilities ( including
strict liability), encumbrances, liens,costs and expenses of investigation and defense of any claim, whether or
not such is ultimately defeated, and of any settlement or judgment, of whatever kind or
off

the

nature, contingent

incurred

at any

or

otherwise, matured

or

time as a result

of an Environmental Condition (and

unmatured, foreseeable or unforeseeable, any of which are


the assessment, monitoring, remediation or mitigation

of
shall include any damages

for the failure

to

do so),

including, without limitation, fees incurred for the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with investigation and remediation,
including the preparation of any feasibility studies or
remedial, abatement, containment, closure,restoration

or

and the performance of any

t)
"
Permit" shall
mean any environmental permit, license,
issued by a federal, state or local governmental or

work;

monitoring

approval,consent

reports

or

authorization

entity; g)
Release"

"
shall
mean any releasing, seeping, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing or

quasi-

governmental

dumping of a Hazardous Material into


11)Threat
"

the Environment; and


a Release which

requires

result

action to

Release"shall mean

substantial likelihood

of

from such Release. Section 35.

Use of
2.

Ha7.ardous

be brought on,kept or used


s business and
in compliance with all Environmental

of

prevent or mitigate damage to the Environment which may

in

Materials. Tenant
or

A:\
Laws.

shall not cause or

about

the Premises except

as

permit

any

Hazardous

Material

to

necessary or useful to Tenant'

f~:

18170r~

Section

03 ,

Tenant hereby indemnifies and holds harmless the Owner


3.
Indemnification. a)

35.

from and against any and all Environmental Damages to the Premises during the term
of this Lease, except to the extent any such Environmental Damage is caused, permitted,
allowed, suffered or contributed to,
directly or indirectly, by any of the Owner Indemnified Parties

Indemnified

Parties

Date. Such obligation of Tenant shaII include the burden


expense of defending all claims,suits and administrative proceedings (with

the

prior to

and
counsel reasonably

Commencement

to Owner),even

if

claims,suits or proceedings are groundless, false


negotiations of any description, and paying and discharging, when and
or
and
as the same become due, any and all judgments, penalties or other sums due against any
of the Owner Indemnifed Parties.Tenant' s obligations shall not apply with respect
to Environmental Damages resulting from Environmental Conditions existing in the Land prior to
the execution hereof regardless of whether the same were caused by any of the Owner
Indemnified Parties). Without limiting the foregoing, if the presence or Release on or from the Premises caused
or permitted by Tenant results in contamination of the Premises, Tenant shall promptly take all actions
at its sole cost and expense as are necessary to remediate the Premises in
compliance with Environmental Laws in effect from time to time and to comply with any requirements
imposed by any Governmental Authorities; provided that Owner' s approval of such actions shall
first be obtained, which approval shall not
satisfactory

such

conducting all

fraudulent,

Owner hereby indemnifies and holds harmless the Tenant


withheld. b)
and all Environmental Damages resulting from
the Commencement Date, but only in the Land and
Such
obligation of Owner shall include the burden and expense
I
m
pr
o
v
e
ment
s
.
excluding
the
specifically
of defending all claims,suits and administrative proceedings (with counsel reasonably satisfactory
to Tenant), even if such claims, suits or proceedings are groundless, false or fraudulent,
and conducting all negotiations of any description, and paying and discharging, when and as the
same become due, any and all judgments, penalties or other sums due against any of the

be

unreasonably

Indemnified

Parties from and against any


Environmental Conditions existing prior to

Indemnified Parties.c)Notwithstanding anything to the contrary contained herein, Owner


agrees to take such action as necessary to immediately remove the undergound storage tank( s),
if any, located on the Premises; to expeditiously undertake such further assessment,
remediation, and monitoring of the soil and ground water impacted by the Release from such tank( s),
if any,
Env
i
r
o
nment
a
l
Laws;
and
appl
i
c
abl
e
to
take
action
as necessary to obtain
such
as required under
a No Further Action determination from DERM or DEP,if required
Tenant

under Environmental
this Section

Laws. Owner

c)in
35. 3(

Tenant' s

such

shall use reasonable efforts to

a manner

as to minimize

disruption

undertakethe work descn" bed


to

and

to

in

avoid delaying

plans to

work described in
renovate and develop the Premises.Owner agrees that in connection with the
it will provide to Tenant all correspondence,
this Section 35.3(c)

reports, studiesand other

documentsexchanged

A:\
between

18170P~
1 032 Owner, its consultants, and DERM

to or received

from

or

or

DEP promptly after

those

documents

are provided

DERM

DEP.Section

35.4.COlI\ Pliance. Tenant, at its sole cost and expense (except as otherwise provided
in this Lease),shall comply and cause the Hotel Manager and all Subtenants to comply
with all Environmental Laws with respect to the use and
of

operation

the Premises. Section 35.


5.
Notices. If Tenant or Owner receives any notice

Release,Threat

Release or

of

or a

notice with regard to air


or any other
the Premises ( an Envi
"
ronmental Complaint")
independently or by notice from any Governmental Authority having jurisdiction over the Premises,
including the EPA,or with respect to any litigation regarding Environmental Conditions at or
about the Premises, then such party shall give prompt oral and written notice of same to the other
of

Environmental Condition

emissions, lVater discharges, noise emissions,


violation of any Environmental Law
environmental, health or safety matter affecting Tenant
or
recycling,

party
all

detailing

relevant

facts

Owner's Remedies. Provided


and circumstances. Section 35.6.

Tenant does
not diligently commence to remediate the applicable Environmental Conditions promptly after becoming aware
of the same and thereafter diligently pursue the completion thereof in a reasonable time (
and in any event in accordance with Requirements), Owner shaII have the right, but not the obligation,
to enter onto the Premises or remediate the Premises in compliance with Environmental Laws in effect
from time to time and to comply with any requirements imposed by any
Governmental Authorities upon its obtaining knowledge of such matters independently or by receipt ofany
notice

from

Defaults. Except to the extent the same


any Person, including the EP A.Section 35. 7.
b)
is a matter for which Owner is responsible pursuant to Section 3S. 3(
allowed
or
caused,
suf
f
e
red,
cont
r
i
b
ut
e
d
Envi
r
o
nment
a
l
Condition
to
above or relates to an
let,permitted,
by an Owner Indemnified Party prior to the Commencement Date, the occurrence of any of the
fol owing

events shall constitutean

state or local body

Event

of Default under this

or agency creates

Lease:

a)
if

lien

the

upon

EP A

the

or

Premises

any other federal,


which

if the EP A or any
b)
makes
a
cl
a
i
m
( which shaII mean, for
or
agency
other federal, state or-local body
issuance of a warning notice, citation, notice
the purposes of this Section 35.7,

is

not discharged bypayment

of violationor admini~
trative

Tenat(

or

bonding within ninety (90)days; or

against
complaint)

I033

t: l8170P~
Premises or

of the Premises), the


or

an Environmental

Complaint

shall not constitute an

Event

on

Owner,

ocupant

for damages

or pertaining

to

costs related to a Release


however,such claim
days of the lien or claim:

cleanup

the Premises; provided

(
of Default if,
within thirty 30)

Tenant has commenced and is

i)

or

diligently pursuing either: (

x) cure or

correction of the event which constitutes the basis for the lien or claim and continues diligently
to pursue the cure or correction to the satisfaction of the Governmental Authority that asserted the

discharge of any lien, or (y) proceedings for an injunction,


restraining order, administrative or other appropriate emergency relief contesting the validity of
the claim and, if such relief is granted, the emergency relief is not thereafter dissolved or reversed
on appeal; and
lien

claim and obtains the

or

Tenant has

ii)

posted

bond,

tter of credit or
le;.

other

security satisfactory in

the proper and complete cure or correction of the event


which constitutes the basis of the claim. The amount of the bond, letter of credit or other security

form and substance to Owner to

shall be determined in the

secure

following

manner: (

A) Owner, Tenant and their

respective consultants

their best efforts to agree upon the most probable cost to cure or correct the event which
constitutes the basis of the claim; (B) in the event Owner and Tenant are unable to agree despite
their best efforts, Owner' s consultant and Tenant' s consultant shall select a third consultant who
shall

shaU

use

provide

an

estimate of the most

probable

cost of

curing

or

correcting

the event which

Owner and Tenant shall each pay the cost of their own
iI1 and shall share evenly the cost of the
35. 7( b)(

constitutes the basis of the claim.


consultant under this Section

third

consultant

should use of a third consultant


necessary. Section

become

35.

8.Owner R~nsibilitY.

In

proprietary capacity)is responsible


caused by

b),Owner in
35.
( its
3(
for all Environmental Damages resulting from an Environmental Condition

of

any
the

addition to Section

Owner

Indemnified Parties. Section

35.9.
Survival.

The provisions of

this

Article

35 shall survive the Expiration


the Term. ARTICLE

of
36.

36.

PURCHASE; RIGHT OF FIRST

1.
Purchase of Owner' s

Interest

in

OFFER

Section

the Premises by

Tenant.a)Purchase

by Owner.Tenant shall be required to pay the Purchase Price


each
(
or make Installment Payments toward the Purchase Price of Owner' s Interest in the Premises at i)

by Tenant When

Required

of theRefinancing Times to the

extent

18170rG \

Bft:

or ( ii)
any time Tenant voluntarily refinances
any Net Refinancing
034

Proceeds.
Purchase

Price

s Interest in the Premises to the extent of

Tenant'

Voluntaty Purchase by Tenant.Tenant may voluntarily purchase at the


b)
Installment Payments toward the Purchase Price of Owner' s Interest in the
Section 36.
time subject to the provisions of

or make

Premises at any

ii).
c)(
c)Mandatoty Purchase by Tenant.Tenant shall purchase all of Owner'
s Interest in the Premises at the fuU Purchase Price upon the earlier happening of either
1(

of

the

any Sale of
following events: i)

I(

e),
or ii)the expiration

the

Hotel except a Sale of the Hotel pursuant to

Section

IO.

however, that this time period may be extended if Owner, in


and absolute discretion,gives Notice to Tenant that Owner is rescheduling this mandatory

the

its sole
purchase of Owner' s

sole

of twenty- five (25)years from

Hotel Opening Date; provided,

Interest in the Premises to a

later

date to be decided by Owner. in its


such rescheduling of this mandatory

and absolute discretion; provided further, however,that if

purchase occurs, then,in that

the

event,

date of such

the

there shall be

no

subordination of Owner' s interest in the Rentals from

expiration of twenty- five (25)years until

Purchase
end of the Term.d)

from

Qpenin~ Date. For

the Hotel
ending ten (10)years from
Interest in the

Premises (

the

the Hotel

the "Purchase Price")shall be calculated


sum of

Opening

Price if Paid Within

the period

Years

commencing
the Commencement Date and
Date,the purchase price of Owner' s

as

all of the

fol owing:

i)
the amount required

eight percent (8 per


%)
year on

return

Ten (10)

on

for Owner

Royal Palm

Portion of the
to achieve
of
Purchase Price a
( s hereinafter defined) (or on such lesser amount after deducting any Installment Payments
made so that the return is calculated on the basis of the amount outstanding on the Royal

Portion

the

time to

time over the period commencing on the


Hotel Opening Date and continuing until payment of all of the Royal Palm Portion of the Purchase Price)after
all Base Rent paid and
giving Tenant a credit for
Palm

of

the

Purchase Price

fifty-

sum

five

from

of
percent (55%)

all Incentive Rent paid;ii)

of Five Mil ion Five Hundred Thousand

Palm

Portion of

the

Dollars ($5,
(
500, 000) the

Purchase Price"for purposes

of this

the

Royal
Lease

only);ill)

(
per
%)
year on the
the amount required for Owner to achieve a return of eight percent 8
herei
n
af
t
e
r
defined)
o
(
r
on
such
lesser
Shorecrest Portion of the Purchase Price as
amount after deducting
(
any Instal ment Payments made so that the return is calculated on the basis of the amount outstanding
on

the Shorecrest

on theHotel

OpeningDate

Portion

of the

Purchase

continuing
and

Price from

time

to time over the period commencing

18170P~

R~ t:
1 035 Shorecrest Portion of the Purchase

Price)after giving Tenant a credit for Additional Rent

five percent ( 45 of
%)
all Incentive Rent paid; provided, further, however,
paid and fortyspecif ed in Section 36.1(
d)(
i)
that any Incentive Rent paid after amounts
have been paid
credited

shall be

and iv)
the sum:of
one hundred percent (100%);

at

($
500, 000)the (
Shorecrest Portion
Million Five Hundred Thousand Dollars 4,

the Purchase Price" for

purposes

of this

only)At.ached

Lease

Four

of
hereto

and

incorporated

d)
are examples of
herein as ExIu"bit 36.1(

aforementioned

Purchase Price

calculation.

Such

examples

are

attached

for il ustrative pUIposes

only

and

in no

by reference

the

way modify the

provisions
d)
or any other provision of this
this Section 36.1(

of

Ten IQ)
(
Years from the Hotel
if Paid After
ten (10)
years have elapsed from the Hotel Opening Date,

and

Purchase

the

sum of

and ii)
the
(iv);

Price

Qpenirw

shall be calculated as the sum

the

the

of

amounts stated in Sections

amount required for Owner to

achieve

Lease.e)Purchase Price

Date. For the period after

36.

of

all

the

foUowing:

i)

1(
d)(
i),
ii),

a return

of eight

percent (8

( on such
on the Shorecrest Portion of the Purchase Price (as hereinafter defined)or
so
that
I
n
st
a
l
m
ent
Payments
made
the
return
is
calculated
on
the basis
any
lesser amount after deducting
of the amount outstanding on the Shorecrest Portion of the Purchase Price from time to time
over the period commencing on the Hotel Opening Date and continuing until. payment of all of
of the Purchase Price)after giving Tenant a credit for Additional
the Shorecrest Portion
of all Incentive Rent paid; provided, further, however, that any
Rent paid and forty-five percent ( 45%)
per year

Incentive Rent

paid

1(
d)(
i)
have
after amounts specified in Section 36.

paid shall be
Purchase Price
Such examples are

attached

one hundred

credited at
contained in Exhibit

calculation are

for

illustrative

been

percent (100%).
Examples of the aforementioned

d)attached hereto
36.1(

and

purposes only and in no way


any other

of this Section 36.1( e)


or
Payments. Tenant shall be allowed to make partial payments

provision

incorporated

by reference

herein.

modify the

provisions

Installment
of this Lease. f)

towards

the

Purchase

Price ( each

an

Installment
Payment")
Premises.
subject to the

following conditions:

of Owner's Interest

in

the

Each Installment Payment shall be made only in the fol owing manner and
all Rental shall continue
each Installment Payment is non-refundable; ii)
i)

to bedue and payable by

Tenant

%)

"

18170PG ,

full. At the time of final payment of the full Purchase Price,Tenant


against the Purchase Price for all Installment Payments made along with

036 Price has been paid in


shall

receive

the

credit

appropriate credit for all

d)
to the Purchase

Price

Rental

paid,

as

applicable,

and (e);
ill)the proceeds

in the same order

and in the

as

provided in

Sections 36.

of each Instal ment Payment shall

1(

be applied

same manner as listed for the

amounts

iv)
d)(
i)
(
Payments made within
ten (
1(
for Installment
in ( 1) Sections 36.
2)
from the
10)
e)(
i)
Cd) years
Hotel Opening Date and ( Sections 36.
1(
Payments
Installment
for

stated

made

ten 10)
(
years from

the Hotel Opening Date; and iv)


a document executed by Owner evidencing receipt by Owner of each Installment Payment made by
Tenant shall be recorded in the Public Records of Dade County, Florida, and such document shall
after

be
Transfer of
of Owner prior to recordation. g)
Premises upon Full Payment of Purchase Price.Upon payment in ful of the Purchase
by Special Warranty Deed, all of Owner' s right, title and interest
Price, Owner shall simultaneously convey to Tenant ( i)
by Assignment of the Lease, all of Owner' s right,title and
in and to the Premises and (ii)
the Lease.
The conveyances shall be as provided in
to
interest in and

subject

review and approval


to he!

Items

3,

and

5of

Exhibit 36.2(

Tenant' s
hereto and incorporated by reference herein. Section 36. 2.
If,
during the Term, Owner shall desire to sell, conveyor otherwise transfer, directly
ht of First Offer. a)
Ri&
a)

attached

indirectly, all of such Owner' s estate in and to the Premises ( a


Right of First Offer Transaction"),such Owner shall fIrst deliver to Tenant a Notice (an "Offer
Notice") thereof setting
forth the material terms of such proposed Right of First Offer Transaction. For a period
or

of forty- fIve 45)


( days after

Tenant' s receipt of the Offer Notice,Tenant

shall

have

the right to elect in writing to consummate the Right of First Offer Transaction described therein at the
price and upon such other material terms set forth in the Offer Notice. As used in this Secti~
n

the
2,
36.

Right

material terms of

the terms set forth iIi Exhibit 36. 2(


If Tenant does not consummate
reference herein. b)

of First Offer Transaction shall

be

a) attached hereto and incorporated by


the Owner shall have the right
a Right of First Offer Transaction pursuant to this Section 36. 2,
to consummate the proposed transaction with any other Person upon such terms
and conditions as shall
are
set
forth
be no less favorable to the Owner than
those which
in the Offer Notice, within one
( the expiration of such forty- fIve (
hundred eighty (180)days following the earlier of i)
the receipt by Owner
(
day period and ii)
45)
Tenant does not elect to consummate such Right of

shall failto

Right
consummatethe

of

of a notice from Tenant stating that


First Offer Transaction. If the Owner

"

18170P~

fK:

exceed, in the aggregate,


the provisions of
this Section
sixty ( 60) days),
2 shall be applicable to any future Right
of First Offer Transaction.
36.

037 to

Notwithstanding anything to the contrary contained herein, Owner may in good faith negotiate with any other
Person the

terms

and

not

elected
First

Offer

conditions of a Right of First Offer Transaction that Tenant has


material terms of such Right of

to consummate; provided, however, that if the

Transaction are modified so

the Owner, then such

transaction shall

that

such

be

so modified are more favorable to


deemed a new Right of First Offer Transaction and
terms when

of this Section

the

36.
2 includi(
ng, without limitation, subsection
provisions
36. 2(
shall be applicable with respect to such Right of First Offer
a)),
Transaction; provided, further,however, that such Owner may modify the material terms of any such Right
of First Offer Transaction, and provide notice thereof to Tenant as provided
herein, only once. The
Owner shall give twenty ( 20)days notice to Tenant of the terms of any Right of First
Offer Transaction as so modified prior to
consum ating the same,so that Tenant may
determine whether sucJ; l modifications are sufficiently material that Tenant wishes to consummate such Right of
a Right of First
First Offer Transaction. If Tenant does not elect to consummate
Owner
shall
provide
Offer Transaction pursuant to Section 36.2,
the
Tenant with a true,complete
and correct copy of the executed purchase agreement
for such Right of First Offer Transaction not less than

ten 10)
(

prior to the closing of

days

Owner and

involving

Tenant

Tenant

under

such Right of First Offer Transaction. c)The


consummate any Right of First Offer Transaction
36.2 as soon as practicable after Tenant' s election as hereinabove
defaults in its obligation to close the Right.of First
the terms thereof s(ubject toreasonable extensions not to exceed, in the

shall diligently undertake to

thisSection

If Tenant
descn" bed.

Offer Transaction in accordance with


aggregate, sixty 60)
( days),the foregoing right offll' st offer

be null and void with respect to any future Right of First Offer Transaction.
d)
In addition, Owner may not sell such interest in the Premises together with any other interests

shall

or

other assets. Any sale of the Premises together with


other interests or other assets,shall

be null and void and of no effect.e)


If Tenant does not exercise its right of first offer and the Owner consummates its
Right of First Offer Transaction, the purchaser shall be deemed to have acquired the Premises subject to
the provisions of this Lease and the purchaser shall be deemed to have assumed
any

the obligations of Owner hereunder accruing from

and

after

the effective

date of such consummation, and the

be delivered to Tenant, within ten (


business days after the execution thereof,a true,complete and correct copy of an executed
10)
instrument of transfer and a true, complete and correct copy of an instrument of assumption by the transferee

Owner

shall

deliver to Tenant,or

shall cause

to

of
Owner' s obligations under this Lease accruing from and after the date
of such transfer. t)
If an Owner does not comply with the terms of this Section 36.2,any Right of

the

First Offer Transaction


entered intoby such Owner

have
shall

Off. \
REC.

8l7GP~\ 038

36.2,
Owner
Notwithstanding the foregoing provisions of this Section
her
e
i
n
a
Right
the
procedures
set
forth
of
First
Offer
more
than
Transaction
for
institute
once in any fiscal year,except with respect to any modifications of the Right of First
Offer Transaction as provided
in

g)

may not

Section

36.

AssiiMlent. The
Section 36.
2(
3.
b).

and

2 above shall not be severed


36.

and

shall be

assigned,

transferred or otherwise conveyed

a Sale

upon

to the

rights

from

of Tenant pursuant to Sections 36.

Tenant's Interest

in

the Premises,

transferee only

of

the Hotel

or a Foreclosure Transfer. Section 36. 4.

No

er.
M~

1 through 36.
under
Notwithstanding anything set forth to the contrary in Sections 36.
3,
no circumstances shall the fee estate of Owner and the leasehold estate created hereby merge, even

though
owned

by
sameparty, without the prior written

the
consent of the holder

ofa Recognized

Govemil\ i Law
Mortgage. ARTICLE 37.MISCELLANEOUS Section 37.1.

and Exclusive Venue. This Lease shall be governed by, and construed in accordance with, the
laws of the State of Florida,both substantive and remedial, without regard to principles of conflict of laws.

The exclusive venue for any litigation arising out of this Lease shall be Dade County,
if

Florida,

state

in

in

court,

District Court, Southern District of Florida, if


and the U.S.

Captions.
References. a)
federal court. Section 37. 2.

Thecaptions of this

Lease

are for the purpose

of

convenience of

reference only,and in

in

or descn"be the scope or intent of this Lease or


way affect this Lease. b)Table of Contents. The Table of Contents is for the purpose

way define, limit

no

any

is not to be deemed or construed in any


to
Owner and Tenant.The use herein of
Reference
c)
Lease.
way as part of this
the neuter pronoun in any reference to Owner or Tenant shall be deemed to include any
of

convenience of reference only, and

individual Owneror Tenant,and

use
the

18170r~ I

f~:
039 Tenant shall be deemed to include the
individual

Owner

representatives

and

assigns of any

or

Tenant.

the

heirs, legal

parties' acts

d)Aienc. y' s and City' s Governmental


Capacity. Nothing in this Lease or in
or omissions in connection herewith shall be deemed in any manner to waive,

impair, limit or otherwise affect

the

authority of

the

Agency

or

City in

the

discharge of

its

police

or governmental
e)
Reference to

power.

terms

"
herein". hereunder".
" etc.All references in this Lease to the

herein",hereunder"
" and words of

distinguished from

the

similar import shall refer to this


paragraph, Section or Article within which such term is

Reference
t)
toAp,
"

Lease,

as

or Consent'
". etc.All references in this Lease to the
approval", "consent" and words of similar import shall mean reasonable
"
terms
written approval"
or reasonable written consent"except where specifically provided
located.

Section 37.

otherwise.

proval"

3.
Entire

ment.etc. a)
Entire A~
eement.This Lease, together with the attachments

A~

all of the promises, agreements, conditions,inducements and understandings


Owner and Tenant concerning the Premises and there are no
promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written,
express or implied, between them other than as expressly set forth herein and in such attachments hereto
or as may be expressly contained in any enforceable written agreements
or instruments executed simultaneously herewith by the parties hereto. Notwithstanding anything to the
contrary set forth in this Lease, the terms of this Lease shall supersede the terms of the Letter of Intent
hereto, contains

between

and the
which

RFP

shall

and RDP' s response thereto. This Lease may be executed in counterparts, each of
be deemed an original but all of which together shall

represent
condition of this

one instrument. b) Waiver. Modification. etc.No covenant, agreement, term or


Lease shall be changed, modified, altered,waived or terminated except by

written instrument

and Tenant. No waiver

of

of change, modification, alteration,waiver


any Default or

default

or

termination executed by

Owner

shall affect or alter this Lease, but each

agreement, term and condition of this Lease shall continue in full force and
and
with respect to any other then existing or subsequent Default
every covenant,

or

Effect
default thereof. c)

of Other

effect

Transactions. No Sublease, Mortgage

or Capital Transaction,whether executed simultaneously with this Lease or otherwise, and whether or
not consented to by Owner, shall be deemed to modify this Lease in any respect, and in the

event

Leaseshallcontrol.

of

an inconsistency or conflict between this Lease and any such instrument, this

A:\
CMB\
JNM\

GLEASE.

18

f~:
170n'

040

Section 37.
4.

Certain Provisions. If any provision of this Lease or the application thereof to any
Person or circumstances is,
to any extent, fmally determined by a court of competent jurisdiction
to be invalid and unenforceable, the remainder of this Lease, and the application of such
Invalidity of

provision to Persons or

circumstances other

unenforceable, shall not be affected thereby

and enforceable

to the

extent

than those as to which it is

and each term

held invalid and

and provision of this Lease shall be valid

fullest

permitted

by law. Section 37. 5.Merier. Unless Owner, Tenant and all Mortgagees execute
e leasehold
and record an agreement to the contrary. there shall be nomerger of this Lease or tl),
estate created hereby

the
hereby

same

or

with

Person

fee estate in the Premises or any part thereof by reason of


acquiring or holding, directly or indirectly, this Lease and the leasehold estate created
the

any interest in this

the

or

such leasehold estate as well as

in

fee estate

the

in

Lease

Premises. Section 37.6.


Remedies

Cumulative. Each

right and remedy of either party provided

for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided
for in this Lease, or now or hereafter existing at law or in equity or by statute
or otherwise (except as otherwise

expressly limited by

the

terms

of this Lease),
and

or more of the

of

the

exercise or beginning

provided

of

in this Lease,

for
anyone
a
in
equity
by
or otherwise, except as
law
existing
at
statute
or
or
her
e
af
t
e
r
now
later exercise by
of
this
Lease,
not
the
or
the
terms
limited
otherwise expressly
shall
preclude
simultaneous
by
such party of any or all other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise except as otherwise

the

exercise by

or

party

rights or remedies

or

expressly

limited by the

terms

of

this Lease. Section

37.

at Each Party' s Sole Cost and Expense. Unless otherwise expressly provided
in this Lease,when either party exercises any of its rights, or renders or performs any of its
7.
Performance

obligations hereunder, such

party

shall do

soat

its sole

cost and expense. Section 37.8.Recopized Mortgaiee Chat: ies and Fees. Tenant shall pay
any and all fees, charges and expenses owing to a Recognized Mortgagee in connection with any services

rendered

by itas a depositary

to
pursuant

f~:
041

18170P~

Section 37.9.

Successors and AssiiJlS. The agreements, terms,covenants and conditions herein shall be binding
Owner and Tenant and,except as otherwise provided
upon, and inure to the benefit of,

herein,their respective permitted successors and permitted assigns and shall be construed as covenants
while the Agency is Owner hereunder, the Agency shall cease to exist, the
running with the Land. If,
City,by its signature hereto, hereby agrees, from and after the date the Agency shall cease to
exist,to be bound by the terms,covenants and conditions of Owner hereunder and Tenant
agrees to recognize the City
as

Owner

hereunder. Section

37.10.Recordini of Lease. Tenant shall cause this Lease and any amendments hereto to
the Public Records of Dade County,Florida promptly after the execution and delivery
of this Lease or any such amendments and shall pay and discharge all costs,fees

be recorded in

and taxes in connection therewith; provided, however, a memorandum of this Lease may be recorded in
and only if,
such public records in place of the recording of this Lease if,
the parties to this
upon the contents of same. In the event the parties to this Lease do not
Lease mutually agree
mutually agree as aforesaid, this Lease in its entirety shall be recorded in such public records and
no
such

memorandum shall be

recorded.Section

37. 11.Notice of

Defaults. Notwithstanding anything to the

contrary

set

forth in this Lease, under no circumstances shall any party to this Lease lose any right or benefit granted
under this Lease or suffer any harm as a result of the occurrence of any Default or default of such
party as to which Default or default such party has not

received

noticethereof

from

party.Section 37.12. COJ: POrate Obliiations. It is expressly understood


corporate obligations, and,except as
that this Lease and obligations issued hereunder are solely
otherwise provided in Article 19 and as provided in a separate personal guarantee of
or is
even date herewith from the Guarantor, that no personal liability will attach to,
stockholders,
officers,
partners,
the
incorporators,
be
incurred
shall
holders
by,
members,
or
of other ownership interests,directors, elected or appointed officials (including, without limitation, the Chairman
and Members of the Owner and the Mayor and Commissioners of the City and the members of any
other governing body of Owner) or employees, as such,of the Owner or Tenant, or of any
successor corporation or other successor entity, or any of them,under or by reason of the
or implied therefrom; and, except as
obligations, covenants or agreements contained in this Lease
otherwise provided in Article 19 and as provided in separate personal guaranties of even date
herewith from the Guarantor, that any and all such personal liability, either at common law or in equity or by
constitution or statute, of,and any and all such rights and claims
the other

against, everysuch
partne,

holder

of

incorporator, stockholder,

member,
officer,

18170f~

elected or appointed official (including, without


limitation,the Chairman and any Member of the Owner and the Mayor and Commissioners of the City
and the members of any other governing body of Owner) or employee, as such,or under or by
reason of the obligations, covenants or agreements contained in this Lease or implied
the execution
therefrom are expressly waived and released as a condition of, and as a consideration for,
042

ownership interest, director,

of
13.Nonliability
Lease.Section 37.

this

Officials

and

ElllP1oyees. Except as otherwise

member, officer, director, stockholder, partner,holder of


City shall be

of

provided

in Article 19,no

other

ownership

interest, official

or

employee

Tenant, or any successor in interest, in the

of

Owner or

of

liable
any
or obligation which may ome
~ due to Tenant
breach by Owner or for any amount
or successor under the terms of this Lease;and,except as
otherwise provided in Article 19,
ei
t
her
personal
liability,
common
or
in
all
such
equity
or by constitution or statute, of,
and
at law
any

the
default

and

to

personally

event

or

any and

all

such rights and claims

against,

every

such

Person, under

or

by reason

of the obligations, covenants or agreements contained in this Lease or implied therefrom


waived and released as a condition of, and as a consideration for,

are expressly

execution of this Lease.

the

14. No Conflict of Interest. Tenant represents and warrants that, to the


Section 37.
best of its actual knowledge, no member, official or employee of Owner or the City has any
direct or indirect financial interest in this Lease,nor has participated in any decision relating to this
is prohibited

Lease that

by law.

Tenant represents and

warrants

that,

to

the best

of

officer, agent, employee or representative of the City or Owner has received


other consideration for the making of this Lease,directly or indirectly, from
Tenant. Tenant represents and warrants that it has not been paid or given, and will not payor give,
any third person any money or other consideration for obtaining this Lease,other than
normal costs of conducting business and costs of professional services such as
architects, engineers, and attorneys. Tenant acknowledges that Owner is relying upon the foregoing representations and

its
any payment or

knowledge, no

warranties in entering into this Lease and would


into

enter

not

this

absent the same.Section 37. 15. No Partnership. The parties hereby acknowledge that it
tocreate
is not their intention under this Lease
between themselves apartnership,
ownership or agency relationship for the purpose
joint venture, tenancy- in-common, joint tenancy, coof developing the Hotel, or for any other purpose whatsoever.
except for the limited purpose of being
containedherein,
Accordingly, notwithstanding any expressions or provisions
declarants under the Declaration of Condominium, if any,nothing in this Lease or the other documents
coLease

executed by
or otherwise,

shaII

the

be

parties with respect to

construed or deemed

a partnership,joint venture,tenancy-in-

to

the

Hotel, whether based on

create, or to express

common,

anintent

the

calculation of Rental

to create,

fb:

18170f~

or agency relationship of any kind or nature whatsoever between


provisions of this Section shall survive Expiration of the

ownership

1043co-

hereto. The

the

parties

Section 37.

Term.

days shall be
less than thirty (30)
16.Time Periods. Any time periods in this Lease of
deemed to be computed based on business days (regardless of whether any such time period is
already designated as being computed based on business days).In addition, any time period which shall end
on a day other than a Business Day shall be deemed to extend to

next Business

the

Day.Section 37.17.
Notice. NOTICE

REQUIRED

Radon

OF FLORIDA Chapter 88-285,Laws of


respect to the contract for sale and purchase

BY CHAPTER 88-285,LAWS

Florida, requires the following notice to

be

provided with

rental agreement for any building: RADON GAS: Radon


is a naturaI y occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time.Levels of
and state guidelines have been found in buildings in
radon that exceed federal
Florida.Additional information regarding radon and radon
of any

building, or

may be obtained

testing

from

Beneficiaries. Nothing in this Lease


"
37.18.No Third P~
your county public health unit.Section
shall confer upon any Person, other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies under or by reason of this Lease; provided, however,
that a Recognized Mortgagee or its Designee shall be a third party beneficiary hereunder

to

the
is

extent such Recognized Mortgagee or such Designee

granted rights hereunder. Section 37.19.Relationship of this Lease to Tenant Document. Tenant acknowledges

and agrees that in the event, and to the extent, of any conflict between the terms of this Lease
and the terms of the Tenant

Document,the terms of

this Leaseshall govern the

between
relationship

Blt:

18170r~ I

044

EXECUTION IN WITNESS
have executed this

Lease

as of

the

WHEREOF, Owner and

to

Tenant, intending

be

legally

bound,

day and year first above

DADE M
) IAMI BEACH REDEVELOPMENT

written.

By:
J/

AGENCY

iA Neisen O.

Chairman

Kasdin,
i' ;)

1;"

0 "',

t.

J -/,)'

T. (';

rho:

J;,

1 ')~'
~_\
J;~,\..
WITNESSES:

11
By:U WAf-

r7 tO~.

--:

=>,

;;

1~:"~~.
o,"</
Robert
Parcher, APPROVED
SEAL]STATE OF
FLORIDA)

lANGUAGE

ss:
COUNTY OF

As~TOSecretary

FOR EXeCUnON
ii!IJ~WIV eCl opment

FORM &
1J!

f'
Agency Dote Gp."
rol CotJn, el The
foregoing instrument
bef
o
re
this
~
day
of
1998,
~
'
by
me
Neisen O.
Kasdin, as Chairman,
and
was acknowledged
Robert Parcher, as Secretary, of the MIAMI CH REDEVELOPMENT AGENCY, a public body corporate
and politic, on behalf of such public body.They are personally known to me or

produced

valid

Florida

driver's licenses
as identifcation. My
commission expires:OFACIAL NOTARY SEAL BARBARA

FLORIDA COMMISSION

NO.

CC410840

EXP.

h ISSION
~

C FERRER NOTARY
sr ATE OF
PUBUC

OCT.2 1998 Notary


Publi~
rida

r_
Print
'" _ Name:
. /

c.

RDP

ROYAL PALM
Florida

limited

partnership

HOTEL

LIMITED PARTNERSIDP,
HOSPITALITYCORPQ~

By: PADC

PON!
l;

u'
a

Florida

corporatio
tal:

as

Gen~
P~

J ......
"
1 p\

q . . ' . ../'

1-ICO)0....
-,
-'
.
0:::
J.

0;.
~. . <::). ;
~...
.

J "' ,

ft:1870fG

identifcation.

STATE OF FLORIDA)
ss:

COUNTY OF DADE )
The foregoing instrument was acknowledged before me this~ Jr day of ~ '
Donahue Peebles, as President ofPADC Hospitality Corporation I,a Florida
1998, by R.
rporation, on behalf of such corporation, and as General Partner of RDP ROYAL PALM HOTEL
partnership. He
LIMITED PARTNERSHIP, a Florida limited partnership, on behalf of such limited
to me or produced a valid Florida driver' s license as
known
personally
is

45
I 0'

commissionexpires:

My
BARBARAC (1

d'
da

jyy-/
COMMIS ION NarARY PUBUCSfA:

te f Fl .
on ' feIut-/MY
0 cu clJ ":::~~,,~.:

n.'bliNO.S
COMMISSION

CC41

~ THE CITY OF MIAMI BEACH IS


EXP. ocr. 2,Btin Name: c.
BEING
BOUND
OF
EXECUTING THIS LEASE SOLELY FOR THE PURPOSES
SECTION
SECTION 14.5,

ONLY BY

1(

v..
tl"'...
_
N';'
rI~,~

c),

21.SECTION
37.

...
2

AND

SECTION

9OFTHE

FOREGOING

LEASE:

By:
t,"_".

19.

ifU"

t>
o. v,;,',"
H"

I
i::

..

C ,..

11.
':,:,

,>

WI. ,~, "'."

v~)('~~? '.... ~~~.

r{ ;.
~
CITY OF
f'"\....I"
r';
Neisen
O.
MIAMI BEACH

Kasdin, Mayor
1'
SEAL] ST:
By:~

APPROVEDAS

t Robert Parcher,
~_

Clerk

FORM &

TO

COUNTY OF
DADE )1{
FOR EXECUTION STATE OF FLORIDA)ss:
before me this ~ day
acknowledged
i
n
st
r
ument
foregoing
Date
The
iiy.
~
fg
if~
.
was
mev
1fI!L
City
as
Robert
Parcher,
and
Mayor,
Kasdin,
as
o.
Clerk,of
of 1998,~
. Neisen
,
by
on behalf
Florida,
of
State
the
corporat
i
o
n
municipal
a
BEACH,
CITY
of

the

MIAMI

Florida Print ARBAAA

of such

municipal corporation. They

are
personally known
produced valid Florida .
to meor
as identification.
erlicenses
lBUC STATE
C NryrARY P\

FLORIDA
OF

COMM6SION

of
Notary Public State

City

LANGUAGE

18170r~,
0' 49
3(
EXHIBIT 6.

DESCRIPTION

OF TEN (10)YEAR TERRITORY


of Dade

County, Florida

a)2

That

portion

The Dade
bordered by:1.

to the north and south, 2.The western boundary of


Biscayne Bay and the western boundary of the northern extension of
County line
Biscayne Bay

aIkIa the Intracoastal Waterway to the


west, and

Ocean tothe east;and

The Atlantic
3.

Key
excluding

B~ f:

18170P~

050

EXHIBIT

4(
6.

b)
llENCHMARJ( HOTELS CROWNE PLAZA HOTELS INTHE

FOLLOWING LOCA nONS: 1.


HILTON
ISLAND,
HEAD
SOUTH CAROLINA
130 Shipyard Drive Shipyard Plantation
Hilton Head Island~
S.C.

29928 2.
W

ASHlNGTON,

DISTRICT

OFCOLUMBIA14th and

KStreets Washington, DC

20005 3.
RA VINIAI ATLANTA,
GA.4355 AshfodDunwoody Rd Atlanta.
Ga.

30346 4.
REDONDO

BEACH. CALIFORNIA 300

North Harbor

18 ,
70n

1 051 EXHIBIT 6.

4(~

OPERATIONAL AND

PHYSICAL

STANDARDS

I.

OPERATIONAL
STANDARDS Category Relative
Weight 1.
Reservations
3%
2.

Guest
ServicesDoor
3.
1%
Guest Services-

Bell

1%
Front Desk. 4%
4.
5.
Concierge
1%
6.
Telephone
3%
7.
Housekeeping.
4% 8.
Laundry

Valet ..

1%
9.

Room Service
2%
10.
11.BarlLounge
Restaurant 2%
12.
1%
Group Services- Sales, Catering,3%
Conference

Management

13.
Banquets

14.
3%

Complaint

HandlinglMaintenance

4%
Requests

15.Business
PHYSICAL
ll.
STANDARDS
Amenities. 3%
Category
Relative
EntrancelLobbylFront Desk.6%
Weight
1.
2.
Public Restrooms 6%
3.
Dining and

Bar Facilities6%
Lounge
4.

Lounges
Facilities:

18170P~

V~~:

1 052
OPERATIONAL
STANDARDS

Answers

RESERVATIONS
1.

phone promptly

with professional greeting Informs guest of rate

ranges

for

available rooms Knowledgeable of rate variances, reservation

and arrival

Able

policies

to

answer common questions about hotel

services, facilities, location Requests and clarifies


necessary reservation
information

Offers confirmation

Extends

comment

friendly departing

GUEST SERVICES -DOOR Uniformed attendant


2.
scheduled

entrance

at Hotel

Extends

when assisting a guest


bell

staff/front

friendly

greeting

Promptly unloads guest luggage and delivers to

desk

Valet parking services

available, which

include

numbered
receipts and

secure storage Able


procedures

in procuring

taxi Able

directions to

popular destinations

to provide

Able

to

information about

hotel services and facilities

neatly uniformedand groomed A:\

CMB\
JNM\

explain

guest

parking options and

Assists

to

Staff

answer

common questions and provide

f~:

18170r~ I

053 3.
GUEST

SERVICES -BELL Luggage assistance

available for check in and

check out Luggage


storage

available Extends

guest

friendly

Efficiently

delivers

greeting

luggage

when

assisting

to

guest room,

placing appropriately
facilities

Able to provide information about


and to answer

common questions Efficiently assists


guest

guests

room features, hotel services and

checking out by picking

up luggage

from

room Staff neatly uniformed

and

groomed Extends

friendly

departing comment

4.
FRONT DESK Provides courteous, prompt, efficient check in
and check

out

Confirms rate, room type and departure by

presenting written

information

at check

in

Discreetly gives

room

provides room key Arranges for bell staff

wish

luggage

number

to help

and

guests who

assistance Express or video check

out service available Provides copy of


bill for review

Posts to

s account appropriately
deliver phone

Able

guest'

to

messages Able

to

answer

about room features, hotel


services and facilities Staff

neatly

uniformed

Extends

friendly departingcomment A:\


JNM\

and groomed

GLEASE.
CMB\

common questions

and

provide

information

Bf[

1817or~ I

054

5.
CONCIERGE Staff available to
and efficiently

handle

requests

professionally

answer common questions and


attractions, events, restaurants, shopping,

Able to

local area

transportation, etc. Able to provide directions/

maps to

popular destinations

common

Able to

answer

questions and

provide information

about

provide information about

hotel services

and facilities Staff neatly

and groomed

Follows-

uniformed

up on open guest

requests

and

questions 6.
TELEPHONE
promptly

Calls

answered

with

professional greeting Prompt,

Answers phone

efficient message service Wake up

requests executed

properly Able

call

to

answer

common questions

and provide information

about hotel
services

and facilities

Extends

friendly

departing comment

proper

level

HOUSEKE PING
7.

of

Rooms

cleaned daily to a

cleanliness Carts

are orderly and clean

Room

entered after knocking Room cleaning


changing linens, providing roomlbath supplies and

is

amenities, dusting

and vacuum

available and delivered promptly


neatly uniformedand groomed A:\

CMB\
JNM\

Room

Staff

includes

emptying trash,

items commonly requested

are

18 '

B~~:
70r~,
055

8.
LAUNDRY VALET

Extend

courteous

off
service Drop-

andfriendly

procedure appropriately explained Dry cleaning and

laundry professionally

done and

delivered on

a
reasonably

Garments

timely basis

attractively

presented

Receipts

attached or provided Staff

uniformed and

neatly

groomed Special requests

retrieved

and delivered

ROOM SERVICE Private


9.

promptly

dining

in guest room available

with

greeting

professional

and

time estimate

to

to guest

delivery

appropriate

are adequate and consistent

bill

request

fresh in

accompaniments Portions

Presents

for guest approval

roomJha1l asrequested A:\


JNM\

questions

Delivers

table/
with

common

Sets up table/tray

Extends friendly departing comment Food is

tray

answer

Gives

for

order professionally and efficiently

Able

provide

information about menulfoodlbeverage items

according

with

selection of foodlbeverage Answers phone

suitable
promptly

Professionally printed menu available

GLEASE.
CMB\

Trayremoved

from

guest

taste

and attractively presented

on

f~:

18170r~ I

056

10.
RESTAURANT

a guest

Extends

friendly

greeting

Able

to

about

menu

foodlbeverage items

Delivers

and efficiently Food is fresh in


appropriate

accompaniments

Portions

and consistent Presents bill


payment
departing

seating

Seats

guests promptly Professionally printed


food! beverage

when

order

common

questions and provide

information

professionally

taste and

attractively

presented with

are adequate

for

promptly Extends

comment

answer

menu presented with suitable selectionof

guest approval and

processes

friendly

Tables promptly set

and reset Reservations made and

honored

in

professional

manner 11. BARlLOUNGE

Able

about beverage

items

professionally and efficiently Presents

processes

friendly

to
Delivers

bill

payment promptly

answer

common questions and provide information

order

for guest approval

and

Extends

departing comment

Tables promptly

cleared 12.
GROUP SERVICES -

SALES. CATERING, CONFERENCE

MANAGEMENT Greets clients professionally Obtains


relevant

information about group Uses selling materials

brochures andbanquetmenus A:\

CMB\
JNM\

including

distinctive hotel

t.
057 Professionally
services Able to

quote

charges
hotel

describes

menu

Knowledgeable of

facility and

prices, room

questions about

Asks specific
arrangements

requests Follows-

hotel

rates,rental

credit policies, booking

policies

accordingly

18170r~ I

group'

process and other group related

s meeting plans, making

Competently addresses group

on

up

initial

meeting, when

appropriate
BANQUETS
13.

Meeting rooms

as

requested

Meeting

as

scheduled Extends

a guest

set

and

accompaniments

consistent

friendly

Portions

greeting

order

when

assisting

professionally

taste and

attractively

presented with

are adequate

Staff neatly

and groomed

refreshed

Delivers

and efficiently Food is fresh in

appropriate

rooms

uniformed

Audio/ visual equipment, available, properly

working order
COMPLAINT HANDLINGIMAINTENANCE REQUESTS Staff

trained

customer care technique Guests know

set-up

in

where to make

Staff uniformed

and neatly groomed Staff

helpful andcourteous

A:\
JNM\

GLEASE.
CMB\

in

14.

complaints, if appropriate Complaint and special


promptly, taking into account nature and
severity of item

and

requests

special

requests/

handled efficiently and

AMENITES 18 70r~

BUSINESS
15.
I 058 Staff available to

handle

requests

professionally

and efficiently Staff


adequately trained Staff

services

able to

answer

common

questions

and provide information about

and

facilities provided Staff neatly

uniformed

and groomed Adequate facsimile, mailIpackage, duplicating, conference


computerand print-out services available to handle guest
requests promptly
toguests

to

resources available A:\


JNM\CMB\

Secretarial/ word

coming facsimiles
In-

and

guests Directory of local

EX2(
GLEASE.

processing services available


mail/packages delivered promptly

business

services/

call,

18 ,
059
70r~
,
PHYSICAL STANDARDS 1.

ENTRANCEILOBBY /

CMB\GLEASE.

FRONT DESK

EX2( EXECUTION.

498
S2)\

Overall

clean.

Floors,

Structure -ConditionIFF&

walls, ceilings, doors, vents, windows, etc.;


well maintained. Carpet, wall treatment, furnishings,
well maintained.
window treatment, telephone areas, lighting, etc.;

Well organized and free

Front

of clutter; well maintained. Professionally prepared; well

DeskSignage

maintained. Performs in

Cleanliness

Condition/

with specifications; well maintained.


Areas safe and secure.Emergency exits properly identified.
Key access and control
accordance

HVAC Safety

ISecurity

areas properly

PUBLIC
2.

secured. Emergency

RESTROOMS

lighting

present

and operable.

Overall clean.

well maintained.
Floors, walls,ceilings, vents, doors, etc.;

Cleanlines

Vanities,

toilets and

seats, urinals,

well
lighting, mirrors, etc.;

Condition/

chrome,wall

Structure -

maintained.Sufficient

ConditionIFF&

locks operable; well maintained. Professionally prepared; well

maintained. Performs in accordance

treatment,

for privacy;

with

specifications;

well

maintained.

PartitionslPrivacy Signage HVAC Amenities

3.

Soap,towels,

DINING AND

toilet tissue,

BAR FACILITIES

Floors, walls,

waste

receptacles, etc.,provided.

ceilings, vents, doors, etc.;


well maintained.

Carpet,buffets, wall

Cleanliness Condition/Structure -ConditionIFF&E

JNM\
A:\

Overall clean.

treatment,

light fIxtures,

high chairs,

18170n ,

b:
060

Seating

Condition! FF&E

Tables,

chairs, bar

stools,

booths,

etc;

well

maintained. Service

Areas

organized. Table

China, glassware, flatware, linens,condiment


etc., clean. Menus in good
containers,
condition.
Professionally prepared. Variety

provided.

HVAC Performs in accordance

maintained. Safety/

Security Areas safe

Shielded,

ToplMenus

secure.Emergency exits properly


control areas properly
secured.
and

and

access and

identified.
Emergency lighting present
Key

specifications; well

with

ITIES: LOUNGES AND


LOUNGE FACTl~
operable.4.

LOBBY

AREA Cleanliness

Overall clean.

Condition/

Structure -

Floors,

walls,

doors,

ceilings,

windows,

etc.;

ConditionIFF&

well maintained.

wall

treatment, light

accordance

with specifications;

E Carpet, wall decor,

fixtures, window

treatment, etc.;

well

maintained. Glassware Clean;

well maintained. Bar/

Service

well

maintained. HVAC Performs in

well roaintained.

and secure. Emergency exits


and control areas
properly
properly
lighting
present
secured. Emergency

Areas Organized;

Safety/ Security Areas

safe

identified. Key access

CORRIDORSIF. I,
andoperable. 5.

RV

ATORS/ STAIRWELLS

Cleanliness Overall

clean. Condition/

frames, room

numbers,

maintained. Elevators/

well
etc.;
GLEASE.

walls,

railings,

doors,

ceilings, windows,

maintained. ConditionIFF& E
window treatment, furnishings,

well
etc.;

maintained; operatingproperly.A:\
JNM\CMB\

Floors,

Structure -

Carpet, wall
telephone

treatment,

areas, lighting,

Stairwells -Well

18170P~

Bff:

Ice Machines

061 Well

FUNCTION

properly.Performs in accordance

FACILITIESHVAC

maintained. Proper
storage. Required emergency
and equipment present;

Safety

operable. Adequate; well

maintained; operating

with

specifications; well
lighting

maintained.
6.
MEETINGIPRE-

ISecurity

RECREATION FACILITIES

Signage Cleanliness

Cleanliness

Overall

clean.

Floors,

walls,

doors,

ceilings,

windows,
Condition/ Structure -

etc.;well maintained. Carpet, wall decor, wall


furnishings, window treatment, telephone areas, lighting,

treatment,

ConditionIFF&E

well maintained.
etc.;

Movable

Operable;well maintained.Performs

Walls

well maintainP. d.

HVAC

Operable; well maintained.

EquipmentSignage

Adequate; well maintained. Areas

in

accordance

withspecifcations;

safe and secure.Emergency


exits properly identified. Key access and control areas
properly secured. Emergency lighting

Safety ISecurity

7.

present and

EXECUTlON.
EX2(

operable, Overall clean. Floorst

walls, doors, ceiling,

vents,

windows,

S2)\

well
etc.;
lighting,

clear; properlytreated.

maintained.

Carpet, wall treatment,

furnishings,

pool cover,

498

well maintained.Operable in accordance with


etc.;
specifications; well maintained; paint, caulking, grouting and tiling in
good condition; odor- free;water

158

clear;properly treated.Operable in
specification; well maintained; odor- free;water

A:\
JNM\CMB\

GLEASE.

accordance with

ROOMS
Cleanliness J 8

Equipment
Safety/ Security/
SignagelPhone

1062 Exercise
,
70~~

machines clean; operable; well maintained. Required


safety equipment present; signage adequate; professional;
well maintained;
emergency lighting present and operable. Performs in

HVAC

EXTERIOR
8.
COMPONENTS

accordance with

Cleanliness Condition/

specifications;

well maintajned. Overall

windows, doors,frames, walkways,

clean.

Stairs, railings,

walls, roof,

Structure -

storage areas, etc.;well

Canopy On-Site

ined; clearance
main~

maintained. Well
height posted.

Garage Driveway/
curbs,

Curbsl

Adequately striped, lighted; well maintained. Well marked; clean;


curb

Sidewalks

well Dulintained. Adequate; professionally


stops, sidewalks,etc.;
prepared; in
good condition and

Signage Safety/

well

maintained. Areas safe and

secure.
Security Building
Facadel

Emergency lighting present

Exterior Entry

and operable. Clean; windows clean.

Doors

Clean; well lighted; well maintained.

Free of weeds,

Landscape 9.

GUEST

litter,debris; healthy; well-kept. Overall clean;

EX2(

artwork, windows, and

mirrors

cleaned. Mattresses and box springs

in proper

EXECUT10N.2)\condition and well U1aintained. Floors, walls, ceilings,


doors, windows,vents,etc.;in appropriate
condition andwell

maintained.A:\
JNM\ CMB\

GLEASE.

closets,

18170f~ I

ft:

065
EXHTRTT

8.
2 ARTICLE 2

OF
HOTEL

AGREEMENT ARTICLE 2.CONSTRUCTION

DEVELOPMENT

1 Conditions Precedent to

Section

2.

Developer'

Developer shall subject


( to
Commencement of Construction of the Project. a)
Approvals
by
not
more
Delays)
all
Permits
one
(
obtain
1)
year
Unavoidable
and
than
from the
1(
Developer shal not Commence Construction of the Project
c),
Commencement Date.Subject to Section 2.
unless and until i()Developer shall have obtained and delivered to the Owner' s Consultant copies of
(Developer shall have delivered to the Owner
all Permits and Approvals required to Commence Construction and ll)
of
insurance
requi
r
ed
to
original ceftificates of the policies
be
s

pursuant to the provisions of Article 7 of this Agreement. b)


carried
The Owner (solely in its capacity
Project
and
owner
in
its governmental capacity)
of the
as the
Site not
Devel
o
per
Permits
with
cooperate
Approvals
obtaining
the
in
and
shall reasonably
required by Section 2.
1(
a)and any neces ary utility access agreements, shall sign any application reasonably made by Developer which
is required in order to obtain such Permits andApprovals and utility access
agreements and shall provide Developer with any information and/ or documentation not otherwise reasonably available to
Developer ( if available to the Owner) which is necessary to procure such Permits and
Approvals and utility access agreements. Any such accommodation by Owner shall be without prejudice to,and shall not constitute
a waiver of,
Owner's rights to exercise its discretion
in connection with its governmental
(0)days after the Owner' s demand, for any
functions. Developer shall reimburse the Owner, within ten 1
reasonable out-of-pocket cost or expense payable to the Owner' s technical consultants other than the
Owner' s Consultant and Owner's employees),such as architects and engineers, so incurred by the Owner
assistance
in connection with Owner' s

obtaining the Permits and Approvals and utility access agreements required by Section
1(
a).
c)
Developer shall not Commence Construction of the Project, or any portion thereof,unless
2.
and until the Owner shall have approved the Plans and Specifications ( to the extent required herein).
"
track"basis, Developer
However, if Developer chooses to perform any Construction of the Project on a fastmay request the necessary approval of the Owner in stages and perform that portion
Developer shall comply with all other requirements with
(
of the Construction Work which has been approved provided
respect to such portion of the Construction Work),even if
in

progres

plans and specifications for other portions of

the Construction Work have not

Prior to Commencement
of Construction of the Project, Developer
prepared. d)
g
u
a
r
a
n
t
e
(
completion
the
Completion
"
a
in the form attached hereto
Owner
to
Guarantee"),
shall furnish
and incorporated by reference herein as Exhibit
yet

been

2.

guarantees timely

d),
from
1(

Guarantor, pursuant to which,


among other matters,Guarantor

Payment and Performance Bond.Prior to Commencement of Construction


completion of the Project.e)

of theProject, Developer shallcause

the

t
066

the Payment
" and Performance

18 70r~ I

Bond''),in a form

reasonably acceptable to Owner,issued by a


ofTreasmy listing of approved sureties,guaranteeing
certain guaranteed maximwn price contract for

surety listed in the most recent United States Department

the

performance of the General Contractor under that

the Project.Owner may accept, in its sole and absolute discretion, for any reason and
whatsoever, a completion guarantee from the General Contractor in substitution for such
Payment and Performance Bond.Owner shall be named as a dual obligee under the Payment and Performance
Bond; provided, however, Owner' s rights under the Payment and Performance Bond shall be subordinate to
(
defined in the Lease)rights under the Payment and Performance Bond
the Recognized Mortgage ' s as
and Owner shall agree in writing with such Recognized Mortgagee that Owner shall only seek to enforce
its rights under the Payment and Performance Bond if the Ground Lease is terminated and such
Section 11.6 of the Ground Lease for the
Recognized Mortgagee fails to exercise its rights under
the Construction of

for no

execution

of

reason

New

Tenant'

s Docwnents ( as defined in

Ground Lease).Section 2.2 Commencement and

the

COIllPletion

of Construction of the Project.Developer shall, subject to Unavoidable Delays:at its expense (


a)
days after all Permits and Approvals
Construction on or before sixty (60)
Commence
are issued ( the Construction
necessary for
the
Commencement of Construction
"
Commencement Date")
and b)
(
thereafter continue to prosecute Construction of the Project with diligence and continuity to
after Developer has Commenced Construction,Developer fails to diligently prosecute Construction
completion. If,
of the Project (subject to Unavoidable Delays), and such failure continues (subject
to Unavoidable
Delays)for thirty consecutive (30)days after Developer' s receipt of notice of such failure, the Owner shall,in addition
to all of its other remedies under this Agreement and the Ground Lease,have the right to
seek such equitable relief ( either mandatory or injunctive in nature)as may be necessary to cause
diligent and continuous prosecution of Construction of the Project ( subject to Unavoidable Delays)by Developer,
it being understood that Construction of the Project is a material inducement to the Owner to enter into
the Ground Lease and monetary damages shall be inadequate to compensate the Owner for harm
resulting from such failure. Notwithstanding anything to the contrary contained herein,if Developer fails to
Substantial y Complete Construction of the Project by the Default Date,then the same shall constitute an Event of
Default under this Agreement and under the Ground Lease and the Owner shall be entitled to all
of its remedies hereunder and thereunder, including,without limitation, the termination of this Agreement
and the Ground Lease. Notwithstanding anything to the contrary contained in this Agreement, the Default Date shall
not
be

extended

by reason of Unavoidable

Delay.

2.
3 COIIlPletion of Construction of the PrQject a)Substantial Completion of the
Project shall be accomplished in a diligent manner, and in any event by the Completion Deadline, and
final completion of the Construction of the Project, including but not limited to completion of all punch-list
Section

items, shall

be

ac omplished

in

a diligent manner thereafter, in each case in a good and worker1ike manner,


the Plans and Specifications, in accordance with all applicable Requirements and, except

in substantial accordance with


as provided in

Upon Substantial
at Developer' s sole cost and expense. b)
6,
Completion of Construction of the

Article

Project, Developershall furnish the

with
Owner

13170P~ ,

ft:
067

i)
a

certification of the Architect c(ertified to the

Owner

on the standard

and Specifications and that, in


its professional judgment, after diligent inquiry, Construction of the Project has
been Substantially Completed in accordance with the Plans and Specifications applicable
thereto and, as constructed, the Improvements comply with all applicable
AIA certification

form) that it has examined the Plans

ii)if Requirements require the same, a copy or copies of the


cer
t
i
f
i
c
at
e
s
temporary
of occupancy for the Hotel (or portion thereof, as applicable) issued by the

Requirements;

City of Miami

Beach Building

substance reasonably satisfactory to Owner


from each contractor, subcontractor, supplier or materialman retained by or on behalf of
Developer in connection with the Construction of the Project,evidencing that such Persons have
been paid in full for all work performed or materials supplied in connection with the
Construction of the
Department;

lien waivers in form and


iii)

"
s built"plans and a survey showing the Improvement(
a complete set of a
for
which
the
Construction of the Project has been completed.
s)
excluding personalty)
The Owner shall have an unrestricted license to use such " as built"plans and survey for
any purpose related to the Project Site without paying any additional cost or
compensation therefor,subject to copyright and similar rights of the Architect to prohibit use of designs
for purposes unrelated to the Project Site, as such rights exist in law or may appear in
laws. The
the Architect' s contract, and subject to applicable public records
" s built"plans shall be satisfied by Developer furnishing to
foregoing requirement with respect to a
the Owner, at Developer' s expense, a complete set of Plans and Specifications, with all
addenda thereto and change orders in respect thereof,marked to show all changes, additions,
deletions and selections made during the course of the Construction of the

Project;

iv)

substance reasonably
evidencing that all
executed by the General Contractor( i)
behalf of Developer
materialmen
by
or
on
suppliers
and
contractors, subcontractors,
retained
in connection with the Constructionof the Project have been paid in full for all work
performed or materials supplied in connection with the Construction of the Project; and ( ii)
otherwise complying with all of the requirements under the Florida Construction Lien Law,
Project;

satisfactory

v)a Contractor'

s Final Affidavit in form and

to Owner

Chapter 713,Florida Statutes, as


amended;

E necessary to use and operate the Hotel


all FF&
Ground Lease, Management Agreement, Plans and SpecifiCations

evidence that
and vi)

in accordance with the


and the Development Budget has been installed in

the Hotel.A:\
JNM\CMB\

EX2(
GLEASE.

EXHIBIT

10.

1(

1)
SOURCES AND
i)(
c)(

USES
eft:8170r~
, I

068 Royal

Palm Crowne Plaza

Resort

Sources and

Uses Sources:
0 0,
Union Planters $40,
000 City Land 10,
000,

000

Partner

Equity (phase
9,
I)
000,000 Partner

Equity p
( hase
000.
5.
II)
521

OF CASH

18170P~

ft:.

069

EXHIBIT 14.5 TERMS OF

CONCESSION

AGREEMENT (

the "

Concession

City

Agreement") 1.Parties. The

its successors

and

of

assigns. Tenant,

its

Miami

Beach,

successors

and
years
2.Icrm.Five (5) years, renewable by Tenant every five (5)
of this Lease,but expiring on March 31,2023.
during the Term
Notwithstanding the preceding sentence, upon an Event of Default under this Lease that results in

assigns,

concessionaire.

as

a
termination"

Lease,the Concession Agreement shall terminate.3.Location. The Concession Agreement shall cover the
beach concession for the area of the beach west and east of the sand dunes immediately adjacent
to the Hotel and having a width from the northerly boundary
of this

to the southerly

boundary of the

Land (the "Concession Area").4.Uses

and

Services. Tenant

will

conduct

only

the followingtypes of businesses and provide only the following services: 4.1 Food
and/or beverage services from pushcarts or other mobile vehicles and,if permitted under
concession agreements entered into by the City with other beach

concessionaires, from permanent

locations as

may be designated or permitted by the

City.

4.

2 Rental
of beach

equipment, including, but not

limited to, chairs, umbrellas, rafts or other flotation devices. 4. 3


4 Rental of special recreational equipment, including, but not
Sale of clothing and beach products. 4.
be
activity
limited to,surtboards, windsailing, catamarans and jet skis.Any special water recreational shall
is
subject to
prior approval of the Marine Authority and any other Governmental Authority whose approval

the
required and shall be

required and

permitted only if Tenant obtains,


5 Special Events (
approved by the City.4.

as hereinafter defined) desired by

provided,
Tenant;

at Tenant' s

sole

cost and

expense, insurance

18170r~ I

ft:
6 Such other
070 4.
applicable Governmental Authorities

services

businesses and

to be conducted by other beach

conces ionaires

permitted by the

from

time

to time. 5.
Facilities. All facilities ( which may not be permanently situated structures

and which

must movable on a daily basis, except that Tenant may erect permanently situated structures that
are similar to any permanently situated structures that the City permits other beach concessionaires
to erect on the beach) used in connection with the Concession Agreement shall be
constructed or provided by Tenant, at Tenant' s sole cost and expense,in accordance with
Requirements and

the

provisions this Lease

if such facilities were

as

part of the Premises. Tenant shall

maintain such facilities at its sole cost and expense and in accordance with Requirements and the
part of the Premises. Without limiting the
provisions of this Lease as if such facilities were

foregoing,

Tenant shall each

the
pursuant to

day remove or cause the

Concession

post, at

Tenant'

Concession

Agreement

shall

the Lease. In

of
s sole

have

of all litter , garbage and trash

in

obligations
effect on Owner' s
to
will
have
riiht
to
r
e
qui
r
e
Tenant
addition, City
the
cost and expense,a performance bond for beach concessions similar

Area. The

Section 14.5

removal
no

the

that required of other owners or operators of hotels in Miami Beach of a similar size and location
as the Hotel, in an amount and on such terms, and issued by a surety company,
to

reasonably satisfactory to Owner,in

order to

secure such removal obligations. 6.Concession Fees. Tenant shall pay to the State of Florida concession fees in
the amount, if any, required from time to time by law or regulation by the State of Florida. Such fees
will

be

be subject to sales

and use taxes. Concession fees

shall

net

State of Florida.7.Special Events. The Concession Agreement shall provide


however, have the right
for exclusivity for Tenant within the Concession Area. The City will,
to allow other conces ionaires to operate upon the Concession Area covered by the
Concession Agreement during Special Events approved by the City. The Concession Area will be for the use
of the public for recreation and other public purposes, and the public' s right to such use shall not
be infringed upon by any activity of Tenant. The City shall not be precludedfrom using the
Concession Area for public and/ or civic purposes as deemed necessary or desirable. For
" pecial Event"shall mean a concert or other attraction
purposes of the Conces ion Agreement, the term S
which will involve production expenses
of at least Two Hundred Fifty Thousand
Dollars ($250, 000.00),
adjusted for inflation as provided in the
Lease, including, without limitation, expenses in connection with talent and accommodations therefor, advertising and
promotion, security,

to the

beacharea
and other professional expenses. 8.ReqJ1irements. Tenant will obtain all permits
and licenses necessary for the conduct of the business and other activities under
the Concession Agreement, and Tenant will comply

clean-up,insurance, and

legal

with allother Requirements applicable to

such

Util es. B~

9.

b:

will be responsible for,and shall pay for,all utilities used in connection


and
other
activities under
with the business

18170PG 1 071

theConces ion

Tenant

Agreement.

e.
Subject to Requirements, Tenant shall have the right to advertising,
Si&na~
10.
Tenant
in the Concession Area of a type and manner allowed to owners
signage and postings desired by
or operators of hotels in Miami Beach of a similar size and location as the Hotel, subject to the
prior approval of the City,.if such approval is required of other owners or operators of hotels in

Miami Beach of a

similar

size and

location as the

11.Books and Records The


books and records regarding

Hotel.

City

will have the right

the

Concession

Agreement in

to

examine and audit

Tenant' s

the manner provided

in Article

Lease. 12. Insurance: Indemnification. Tenant will be required to provide the City
insurance consistent with the provisions of Article 7 of this
with
indemnification provisions consistent
Lease.The Concession Agreement shall contain
28 of this

with the

provisions of

Article

Employees: ManaKers: Hours


this Lease. 13.
contain provisions governing employees, managers and hours of operation

20 of

Agreement
the City

will

for

concession agreements with owners

or

of Operation. The Concession


as then required by

operators of

hotels of

a similar

constitute

shall notbe

size

and location as

lease and the Tenant

a tenant

thereunderor

of

the

Hotel. 14. No Lease. The Concession Agreement

shall

not

eement.
15.
Definitive

eft

A~

this Exluoit 14.5 only summarize certain of


the terms and provisions of the Concession Agreement. The actual rights and obligations of Tenant and
the City shall be only as set forth in the Concession Agreement, and the Concession
Agreement shall contain the terms and conditions set forth above and such other terms and provisions
provisions of this Exhibit 14. 5 for concession
not inconsistent with the foregoing
of
hotels
in Miami Beach of a similar size and
or
oper
a
t
o
r
s
the
owners
agreements granted to
location as the Hotel. Without limiting the preceding sentence, upon each renewal
of the Concession Agreement, the Concession Agreement will be modified to include such terms
and conditions then included in concession agreements granted to the owners or operators of hotels in Miami
Beach of a similar size and location as the Hotel; provided, however, that such terms
and conditions are not inconsistent
18170P~ 1072

The

with theforegoing provisions of

foregoing provisions of

14.
Exhibit

18170f~ I
073

EXHIBIT

LIST
c:)
25.1(

OF

PROXECT AGREEMENTS
Hotel Development Agreement
Garage Easement Agreement

Convention CenterAgreement

JNM\
A:\

GLEASE.
CMB\

Bff: r817(

JP~ I

36.
1(
d)

EXHIBIT

074

PURCHASE
PRICE

CALCULATION

2~~:
8

l8~~ ~.~~~ ~!!~


0

on :

N.
eel

on

Il8~~ ~~~~ ~!~~

8 ~!!~
~;?!~
I

on
Il'

N.

Il'
I

on ~ ~
i

o~

m8 ~

lii

~!~

o ~~
3~

o ~~~;?

I
8
N .., N ..,
Il'
i

on
q
I .

cll

on
I

Io~

o~
f2li2 ~ ~

8 ~!!

O ~!!~

N ..,
on

0
N ..,

N ..,

on

Il'

II

o~

o ~~

o~

lii ~!~~ ~ ~~~

o ~

ol

N ..,

C')0 .

on

N . , " :.

fDl

on

Il'
i

..,
I
.

g ~~

o ~
8

lii

8 ~~~

~!~~

N ..,

8 ~
on ~ ~,

Il'i -

o~

on

I
I
o~
o ~

lii

o ~~

o~

~~~~

8~

ol

Non..,

onj
0

N.,
N .
I

on

Il'

o~

on

N .

o ~~

lii

~~~;

8o~!~
~~~~

8
0

N., ..
N .., on
QI
I

on ~

Il'

II::

o~

lii8~~~~
~~~

o ~~

o ~~ ~

f2! ~

CD
N ..,

N.,
on ..,

8 ~~~

IeN ..,

N'

Il'

Q
o~

...

o0~~~~:

~
I
.
o ~~

lii

1
8!

lii ~;~~ ~ ~
ICC
AI

i ilo ~~

e"
l!!
H
C

S!
l

_<,

VI

z
a::"'

o ~~

o~

ilgi

II
i

III

~ =

g_

s!
Sg
c

c:~

acre 0
"

u ~~

0
2 ...

a::.

Z
01
lSS

E: 2
Q -

C
a.

g11

0 ~

~~ -~~
l!!
i-:
w

e
i: ~g

on

III

III

EE .!!

2i2

OCD

II. :

ji

iiiE

E :
W

c.!!

Jj:
i.!!
irCi.

a::r !!!~ ~.
C

0 ~

on

N ..,
.
M'

It)
O0

eH

1;

iS

ii

E:
:::.-~
It)

C ~a::'

So E.!!
0

ui~~&

E
a ::I

II)

~ ~

:::.

w "

i~

Iii

J~ ~
Z
~

Jj:

cc
1~
~ !~~ ~ll :;)
III &
N-~
ii
ii
1
~
III :;)
::
c..
1111 B "
c..
Z ~ 111111
U
1=

0<

Cii
ii c:
III :~

co

a. = =

E
8

e"

l
0

~~

Jj:

Il'

a;

Il'
1

N ..,

N.-

i~~

on

...

i
:::.
0
on

N ..,
i

1-

J'

E-

0 :
c

a.CllI

1l~ ~~&
i

f~:
077

18170P~

5.

E~
nses. Each party shall pay its own attorneys' fees.All transfer taxes, title charges,
recording fees,survey charges and other expenses incurred in connection with the purchase shall be
paid by Tenant; provided, however, that Owner sball pay all documentary stamp taxes and surtax,

if

any, payable in connection

with

OFRCJAL.
the purchase.IN
RECORDS
8CiOI-

OF
M
RiiCOR......."
""

DADe

couNTY.FlORI""",.

RECORD VERIFIED
RUVlN
HARvEY

r:""
PTA:\
JNM\CMB\

EX2(
GLEASE.

Clflf(

1lJ''''

Das könnte Ihnen auch gefallen