Beruflich Dokumente
Kultur Dokumente
18170r[ OB94
TABLE OF CONTENTS
Page
TERMS OF
AGREElf\ ENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
ARTICLE
1.
DEFINITIONS .2
. . . . .ARTICLE
. . . . . . . . 2.
. . . . . . . DEMISE
. . . . . . . . . OF
. . . . .LAND
..........
AND
2.
1.Demise
of
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.
Lease. . . . . . . . . . . . . . . . . . .
ARTICLE
6.
t 18170f(
7.
0895
TABLE
Section
OFCONTENTS
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.
Section
Coverare. . . . -.: . . . . . . . . . . . . . . . . . . . . . . . . . .
7.
40 No
General
Proceeds.38
............................
Applicableto
3.
RqJresentation as to Aitp.
qluu~
y of Coverage. ............
41
Blanket
Umbrella
Policies.41
........................
LiabilitY
or
PrQperty
Insurance Re(
Vlirements. .................... ..
42Other
Insurance
Re(
Vlirements. .......................
44
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
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.
2.
of MoI'tiaies. ..............................
67
Sublease
. . . . . . . . . . . . . .
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.
HOTEL
1.
Construct
AND
Section
13.
2.
Description
of
...........................
the Hotel. 78
Section
13.
3.
ARTICLE
of
Premises ...........................
79
Section
Removal
14.2.
of
BuildiI\
Eqpipment. ......................
No Obliaation
Section 14. 3.
79
to
R~
air
or
to
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
No
95
Brokers. ...................................
2.
No
Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . .
95
ARTICLE 19.NO
OR
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
. . .Section
. . . . .24.
. . . . ..
Perform Other PartY' s ObUiations. 103
2.
DischaJ: ie of
RIGHT
Liens.103.Section
. . . . . . . . . . . . . . . . . .
24.
3.
Reimbursement for Amounts
Paid
Pursuant to
104
Section
24.
Waiver. Release
4.
104
ARTICLE
andAssumption
of ObUiations. . . . . . . . . . ..
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
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.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
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.
.
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.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
................
Indemnification.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
s
.
.
.
.
.
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.
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.
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.
.
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
inthe
by
Premises
Tenant. . . . . ..
37.10.
Section
Section 37.11.
Section
37.
Section
12. Section
37.
37.
13.
5.
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.
Section
137 Recoa:
37.
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
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)
8.
2
ARTICLE 2 OF HOTEL
DEVELOPMENT
AGREEMENT ............
162 EXHIBIT
10.
1(~)(
1)
SOURCES AND USES OF CASH
j)(
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,
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
Florida, both
established
Redevelopment
of which
Owner
serve
as
part
The City
of the Redevelopment Plan. B.
and
determined
for
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
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"),
equipping of the
Hotel.
City ( to
the
the
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
the
into
Hotel.TERMS OF
the
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
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
not
addressed
in
the Accounting
Principles .Additional
meaning
provided
3).
Additional
Rent"
in Section lO.1(
c)(
i)(
has the
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
common
by"
and under
"
controlled
terms
or more
refer
control
with")
shall
otherwise requires,any
context
reference
to A"ffiliate" in this
to an AffIliate
of Tenant.African-
Person"
American
means ( i)
an individual ( a)who is
a citizen of
and z)
whose
blood-lines originate
Africa. Agency"
of
opment
with one
of the
Agency. Alterations"
in
Section
the
Assignment" has
in Section
the meaning
the meaning
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(
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 (
except
is owned
of the
Operating Equipment.
Building Index"
has the
7.
"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 Recitals to
City Commission of
the City
this
Section
provided
meaning provided
in
of Miami
Beach.Commencement
Date" has
Lease.Condemnation
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
Hotel
use, maintenance
or operation
of the
Premises.
BEt
Construction Work"
this Lease
affecting
18170r 0908
use.
means
Restoration. Alteration
maintenance
or
operation
or
performed
in
of the Premises.
50%)
of
percent ( 50%)
governing body
of
such Person. Convention Center" shall
in Section
meaning provided
the
in
meaning provided
Section 6.5.
Date of Taking"
in Section
Debt"has
the meaning
9.1(
has
the
has
c).
Debt Service"
a).
c).
the
2(
meaning provided
in Section 3.
4(
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
has the
this Lease)
6.
Section
Department of
Protection. DERM"
Environmental Resources
means
Management. Designated
Components"
ft r
Designated
3170r 0909
Designee"has
10.1(1).
the meaning
provided
in Section
11.12(d).
Development Budget" bas the
in
the Hotel
meaning
provided
Complaint"has
in Section
the meaning
meaning provided
the
c).
Environmental
35.
1(
5.
Environmental
the
meaning provided
35.
in
Environmental
e).
35.
1(
Section
in
Section
35.1(
b).
EPA"means the
Agency of the
Environmental
Protection
Interest"bas the
10.I(
a).
Event of Default"
has
Term on
the Fixed
Expiration Date or on
as this
Lease may
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
E
Affiliates of Tenant). FF&
provided in
by the
City' s
Building
meaning
Department for
all
or a
portion
of occupancy issued
a certificate( s)
of the Improvements,
other
of
Transfer"
Commencement
Date shall
occur. Foreclosure
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(
Agreement.
Garage Development
meaning
in Section 21.1.
Garage Easement Agreement" means
that
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
in
any vaultin
orunder
front
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
has
Comparable
6. 3(a).
Hotel
in Section
Construction
Costs"has
the
has the
meaning provided
Lease. Hotel
Documents"
successor,
substitute
or
meaning provided
in the
in the
Corporation,
assign
thereof permitted
by
Recitals to
Tennessee
of
Substantial
Hotel Development
provided
Agreement. Hotel
Section
Section
Opening
Lease. Hotel
Date"means
with
of the
Hotel in
accordance with
in Section
in
in
Hotel is
than the date that
Completion
this
1(
28.
corporation, the manager and operator of
provided
the Management
the date
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),
"
the meaning
provided in Section 3.
a).
Incentive Rent Cap" has
the meaning
4(
provided in
Section
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
an
Lender"
means
Lender, is a state or
Institutional
becomes
association, credit union, commercial bank or
each case whether acting individually or
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
shall (
adjusted
of
if ( at
have assets of
a)
not
(
being
for inflation and (b)
not be an Affiliate of Tenant it
the standards
set
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"
paragraph.
also
includes an Affiliate of
an
Land"means
the
real
and
property
incorporated
descnDed on
Exhibit A
attached hereto
in
inaccordancewith
the terms
this
of
Bff"r S
Lease Year"
the last
170r 0913
the
means ( a)
of the next
day
thereafter; b)
each
if any, ending on the last day of
on
development
of
of
restatements or amendments
provided
in
thereof. Loews
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
provided in
Section 16.
c).
Management
16. 3(
meaning
provided in
of
the
3(
provided in
Section
the
Section 16.3(
c).
Mayor" means the Mayor
Management
of
Mortgage"
11.2(
b).
Mortgagee" means the
in Section
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
have the
New Tenant' s
Section 11.
6( b).
provided
in Section
meaning provided
in
b).
Notice"
11.
6(
Section 26.1.
Notice of Failure
to
4(
provided in
Section
meaning
meaning provided
Section
linens,silverware,
meaning provided
uniforms and
in
all cbinaware,
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
such assignee
or transferred
principals,
invitees
and
s interestin
and
theLand
in the
Owner'
Premises" means
Owner'
mean
ft:
the meaning
Operator"has
provided in
Section 16.
the meaning
provided in
3(
Section
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
Uses" has
the
is required to
Act of
Improvements. Prohibited
in
or
c)
attached
that
Hotel
the
on Exhibit
incorporated by reference
comply
2S.
1(
with the
reporting
requirements
meaning provided
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
Person
Securities
statute.
d).
4(
QuaIity Report"has the
Section 6.
provided in
under
meaning provided
the
meaning
provided in
Section
Uft: , 8
and Owner.
Recognized Mortgage"
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
lieu
of foreclosure
to be
Redevelopment
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
extensions or
provided
pursuantto any of
the provisions
or to
Replacement
Section
of this
pay into
Value" has
Lease,to
E Reserve
the FF&
Owner
Account.
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
Article 33.
Restaurant Operator" means
the
operator of the
any
substitute
therefor pursuant
to Article.33.RFP" has
Recitals. Right
is
of First
Offer Transaction"
has
36.2(a).
Roadway
the
derived
other sleeping
accommodations. Royal
of
Palm Portion
of the
Purchase
RP Improvements" has
36.1(d)
fli).
Section
the
meaning provided
2.Sale of the
13.
in
Hotel" has
Improvements"
has the
meaning provided
in Section
Price" has the
13.2.Shorecrest
meaning provided
Portion
in Section
Section
of the
36.
Purchase
1(
Sublease" has
14.6(a).
in
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).
the ownership
greater
of
t: ,B , 7Ofro918
of the votes necessary to elect
such Person.
Substantially
majority
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
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
in
provided
b).
Tenant Indemnified Parties" means Tenant
in Section 27. 1(
and
its
trustees,
partners, principals, invitees and Affiliates. Tenant'
Interest
in
in
of the
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
Expiration
delays due
to
strikes,
817fJr{)
919 catastrophic weather
(
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
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
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
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.
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
Account payments.
the
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
the Base
any
f~: 18
the earlier to
occur
of the Hotel
Opening
I7Dr0CJ92 I
42)
months
forty-two (
Hundred Twenty
Thousand
Dollars ($220, 000)
shall be increased at the beginning
of the
tenth ( 10th),
fifteenth ( 15th) and twentieth (20th) years from the Hotel Opening Date in the same proportion
as the percentage increase in the GDP Implicit Price Deflator Index from the Hotel Opening Date, or
of
the increase.
after the tenth (10th) year, from the date of the prior increase, to the
In no event shall Base Rent during an escalation period be less than
b)Pl\YMent
Rent
shall
be paid in monthly
installments
of the then applicable annual Base Rent and shall be paid in
advance, commencing on the date
provided in Section 3.2(
a)and on the first day of
each and every calendar month thereafter during the Term. All Base Rent which is due for any period of
less than a full month or a full calendar
priorperiod.
equal to one- twelfth
shall be
year
appomoned. Section
ap ropriately
Owner annual
3.
3.
Additional Rent. Tenant shall pay
Additional Rent.a)
additional rent
Seventy
Thousand
15th)
the percentage
of increases
in the GDP Implicit Price Deflator Index from the Hotel Opening Date, or in the event
after the tenth (10th) year, from the date of the prior increase, to the date
increase
an
escalation period be less than the Additional Rent during the prior period.
Payment of Additional Rent. Additional Rent shall be paid in monthly installments equal to one- twelfth
b)
and shall be paid in advance, commencing on the date
of the then applicable annual Additional Rent
and on the first day of each and every calendar
3(
a)
provided in Section 3.
month thereafter during the Term.All Additional Rent which is due for any period
of lessthan a full
or
month
Bf~:
1817QrlU922
4.
3.
Section
payOwner an1ll1a1
Rent.a)
Tenant shall
Rent") during the Term in an amount
Incentive
equal
20%)
of that amount of
twenty percent (
annual Hotel Revenue that exceeds Seventeen Million Nine Hundred Thousand
Dollars ($ 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
Lease Year
Incentive Rent
produces
an amount
that
exceeds
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
from
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
extension
ii) "
fees, and the like).
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&
to, and
the
not inlieu of,
otherwise
deposits
17Qrc{)
Bl~: I B
4 iv)
Net
"Cash Flow After
92
Debt
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
deemed to
such
be
equipment leases;all
is
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
and after
the
hereunder.
Commencement
Section 3.5.
Date, Tenant
shall
payor
cause to
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
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,
thereof,
or (vii)
creating
use
or
transferring
an
this transaction.
Definition.
b)
assessment
district);
ii)
personal property
iii)
sales taxes
iv)
on
Tenant under
taxes;
Rental;
the Premises;
v)
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
xi)
the
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
the
instalments
fails
within
any thirty-six (
month
36)
period
to
make
any
date
payment
without
Lease
after failure by
to
Owner,within
therefor, an official
thirty (30)
receipt of
after the
Evidence of
date of Owner' s request
days
the appropriate taxing authority
shall
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
of such
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
Term, shall
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
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
name,
in which
case
6.
3.
Section
to a
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
existence or
have
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
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
ac ordance
with
Tenant' s obligations
to meet
and
Hotel
any
Person
Section
shall
the
not
or Persons.
Premises to be used
or
Prohibited Uses"):
any ofthe following ("
occupied,for
A:\
1817orf0929
i)
ii)
for any
ill)
in such manner
interval,
use
or
illegal
which is
as
business,
use or
purpose;
public nuisance;
or
or
cooperative
Condominium creating only two (
the Improvements which Tenant, at
2)
units
its
sole
as
by
Declaration 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
Franchisine
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
Commencement Date
in addition
period
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
Chain, the
a)means
Section 6.3(
number of rooms
containing
the
Hotel Chain
in this
describedin
the
and
Otf.'
17QrrrlFln
REC.' ~
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
regard
Territory as
any
excluded
the
Restriction;
v)for
Crowne
the
excluded
from
the
Restriction;
and
city limits of the City and the town limits of the Town of Surfside, Florida
be
compel thecure of
excluded
JNM\
suchviolation.A:\
from
Enforcement.
the Restriction. c)
18
B~~:
I
Section
17Of093
6.
QJlality Standards. a)
4.
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
services and
to
taste
as the same
relate
to decor, styling
Facilities and
Services,
or
and
will conduct the
cause the same to be
level
facilities,banquet
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
described
in
In order
with Section 6.4(
b).
fully
Quality Standards
of
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
Hotel
Opening
Date
and every
)
five 5
(
years thereafter (
untilthe
shall
same
70nt)93Z
UU: , e,
if Owner and Tenant shall not have
the terms
Lease.
The
ii)
parties
agreed
in
writing,the Benchmark Hotels shall consist of first class hotels in the continental United States
which
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
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
Hotel
Quality
Standard
Anniversary") as
and every
orderto
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
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
into account
matters ( x)
of
and
measuring
the
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
a "
the
In the
Designated Component Deficiency" . v)
be subjectto litigation.A:\
CMB\
JNM\
event
the Rater
with respect
to
18170rf0934
Ratil\i of Hotel
e)
i)
Commencing
annrta])
thereafter,
on
right
anniversary
of the Hotel
Opening
Date and
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
pending. ii)
In addition, notwithstanding
the twelve
month
12)
a
Management
additional
to
Quality
Standard.
Review.
All costs of a
iv)
Quality
Review
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
Quality
the
has
occurred, then: i)
Tenant
arisen,
required to deposit
to
litigation. ii)
If
a Physical
.
Standard which
the remediation
of
until such
in
Reserve Account
forth
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
to
performance
fail
be deemed
to
occur,
but
18 '
70rf0936
Deficiency
DeficiencyReme4y.
:
Quality
g)
If the
Quality
sixty (
Tenant
shall cause
in the FF&
E Reserve Account is
otherwise
failed to
remedy
as provided above within the
appropriate time
of
Default
hereunder, but
in
receipt of
such
all cases
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
Default
in
receipt
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
over
excess
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
v)
remedy available
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
pursuant to the
Plan
the
E Reserve Account). i)
Cooperation. Tenant shall
are out of the FF&
Rater)in order to enable Owner to exercise its rights
this Article,
Premises
Rf~:
Certain Definitions.
G)
18170rf0938
1 of
%) Hotel
Deposit" shall mean one percent (
i
n
adequat
e
to
fund
such
amount,
then such
is
ll)
Remediation
Service.
Percentage""
shall mean the percentage
obtained by
and
of
one-half
five
the
quotient
obtained
by dividing
3.
5%)
i.
e.,
ill) "
percent (5%),
seventy percent 70%).
(
Rater
shall have
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
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
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
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
Owner'
choice
s
of
shall
1817Ofr0939
Rater selected
by Owner
limitation,
result of
as a
is not
qualified
including,
without
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
limitation, as a result
of
a conflict
of
interest with a
party
Gettys
As
The
hereto):1)
Group;and
for support
of the City of
Inc.
Miami
Beach Convention
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
the
date hereof
material
no
names:
Convention
such
material adverse
renovation and
Section
an
imminent
6. 6.
Exc~ tions to
Use
Covenant~. Notwithstanding
the
then (a)
during such period of time, Tenant shall
foregoing provisions of
be required to
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
off
the
ordinary course of
business) ARTICLE
.
7.
INSURANCE Section 7.1,
Imll1TAnce Requjrement~.
at its sole
or
cause to be carried
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
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
and
1817Qr 094'
m:
Other Insurance.
c)
insurance
meeting
At all times
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
Section 7.10.
in
7.
2.Treatment of Proceeds.
Section
in
peneral. Insurance
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
Casualty Restoration,
Casualty
Rent Insurance. Rent
be applied to
the
cost of
referred to
in
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
execute and
asall
deliver
such
proofs of loss
any
may
be
for
adjusted
18170fr0942
7.
3.
General Provisions Applicable to
Section
All
Article
Policies.a)
Insurance Companies. All of
from
be
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
forms
market
better
all
of
such
ofall
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
additional insured,
or
as
not be
canceled,
thirty 30)
(
days prior written notice to Owner and
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
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
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
the
of
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.
hereunder
shall
not constitute a
in
is
any
representation
respect adequate.
Blanket or Umbrella
Section 7.
6.
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
insurance
legal liability
limit
of
000),
subject
to adjustmentfor inflation;b)
blanket
contain
8,
45 c)
contain contractual
70rr09'
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
of property
least
and including
12)
for
physical
the
loss
following
depreciation
or
Tenantbut,
clause;
by
000)per
loss for
( other than flood
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
deductibles);
reasonable
at commercially
deductibles);
which coverage may
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
may
appear;
and n)
contain no
exclusions unless
approved in writing by
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
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
Tenant' s personal
such personal property shall
insure
be addedto
theamount
property
com ercialy
less
used in
insurance
of
not
Dollars ($
18170r {)
f~:
bles in
the
South
deductible
rates,limits
or deductt"
of
9.
7.
Other Insurance Reqpirements.
The
consist
The
against
all
reasonably
insurable risks
insurance
of
physical
loss
specified
provide coverage
in this subsection shall:i)
or damage
and
other extra
overtime
costs incurred to
expedite
thePremises;
iii)
provide
contain
extent
the
v)
contain explosion caused
by steam
be
a deductible
Dollars
determined
pressure
at
available
by Tenant,
( than for
150, 000)per loss other
($
by Owner);vi)provide for
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
industrystandard
exclusions
Thousand
Dollars ($500,
Bf~:
18170r -
0948
any other
be
in an amount
Dollars ($
and Machinery
Insurance,
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 ($150,
as
to flood and windstorm,with regard
e
xcept
for
inflation
(
to
000),subject
adjustment
to which the deductible shall be a commercial y reasonable amount),
to include rental payment coverage
and
projected
completion
from the
date of
extending for
d)
shall
consist
a)
at
by Tenant
of
Thousand
not more
Fifty
Dollars ($
150,
shallnot
be
18170Pf0949
f~:
7.
12. Det rmination of
Section
Placement
Value.
Improvements (the
according to Requirements
of
construction
a)
Definition.
well as the
as
Rt':
effect at
costsof
that
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
actual
or
an
of
obsolescence
the Improvements. b)
Buildini
costs
Index.As
used
herein, the
and Swift
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
limits reasonably
with
provision substantial y
New Yorkform
ofmortgagee
or
endorsement
of
"
l~: ,
8170p[{)
9SO
ARTICLE
8.
DAMAGE,DESTRUCTION AND
Section 8.1.
RESTORATION
Notice to Owner.If
fire or other
after
Tenant' s
of
discovery
same.
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
b)
Commencement
of
shall
diligently pursue
that Tenant
requires
effect
Except as
a)
a
may
Casualty
c),
all
Thousand
Dollars ($
provided
as
18170rrD951
Bf~:
A certificate
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
the
work
the Net
Insurance
Proceeds; 2)
a brief description of the
labor, materials, or
services in connection
cost,as estimated by
with
such
the signing
Restoration does not exceed the amount
any amount deposited by Tenant to
persons
Insurance
Proceeds, plus
of
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,
by payment of
documentation regarding
with
Restoration; and 5)
the plans
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
18170rf0952
Tenant shallt
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
Restoration certified
of
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
i)
if this Lease shall
Instal ment
not be
shall be
in
the extent
same are not
the
necessary
to fund
Lease
shall
not
terminate,
partial destruction
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.
are
of Taking. b)
Disbursement of
Award.
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
of
the
or
the
part so taken
the
Premises
provisions
of
as,when
so
in any lawful
applicable
Substantially
"
law. ii)
taken,would leave, in
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
All
eminent domain or by agreement among Owner,Tenant, any Recognized Mortgagee and the
entity
authorized
to
exercise
and
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
the Net
of
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
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)
be
shall be
to Owner, dated
15)days
sum
then
requested
prior
to
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
that, except
I),
thereis no outstanding
for
or
is
being made
and materials; 3)
a brief description of the services
Award; 2)
i)(
a)(
the amount described in Section 9.3(
actually
indebtedness
18170ff09S6certificate,
R~[
as
estimated
services
in connection
Restoration; and
5)
that the work described has
accordance with
workerlike
manner
plans
Lien
ii)
Requirements;
evidence, reasonably
the
satisfactory to
been completed
thereto, in a good
reports
in
and
or such other
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
Owner
the
shall reasonably
estimate provided
pursuant
to
of
Mortgagee
Net
Condemnation
Condemnation
Section
9.
certified
by
Award an amount
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
full.
in
8 17Grr09Jr
f~: ,
d)
9.
excess,upon
terms
to
Owner as
of
Section
excluding deposits
made
b)
above, shall exceed the entire cost of
3(
to Owner
as
an Installment
pursuant
Payment
36. 1(t)
or ii)
( if this Lease shall be in default, be disbursed
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
ofsuch award
amount
by
toOwner
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
of
the grade of
full
in
any
street
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).
6.
Collection of
Awards.
Section 9.7.
Ne~otiated Sale.In the event
Premises in lieu of
of a
the
condemnation,
proceeds
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
as may
with any
in this Article.
to
the
shall
or
statute
the Premises
than
of
less
Substantially
All of the
surrender
Premises.
Section 9.
9.
not
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
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
ii) "
which
acquires
all
or
any
ill) "
Back Rent"
means
the amount of
interest
accrued
Reinstatement Date,
the
unpaid
Rental
as
of the
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
iv) "
or
refmancing
Transaction"
Equity
Interest"
means an
of the Debt.
v) "
legal other
Capital
means,
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
be applied
does
to the
not
Mortgage. "Sale
of
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
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
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)
under
limitation, the
issuance
of additional
Equity
or
indirect
revision
Substantial
Controlling
Interest in
or operation
either case,
means a Person to
"
Tenant.x)Transferee"
which
the
Hotel
management
to
any Sale of the
prior
to
an African- American
JNM\
A:\
18170rf0961
1)to Tenant, in an
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,
the
aggregate,
Tenant, in
an amount
equal
;
)
Five Mil ion Dollars ($5,
000,000f( the "Additional Equity'')4
to
to a
return
to Owner, in
Equity; 5)
to
Additional
an amount equal
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
of
with
to
participate
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
expiration
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
Date;
Tenant
all of
Owner'
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[)
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
condominium
effect a Sale of
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
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
exceed
such
Payment of
of the Hotel.h)
Sale
Purchase
Price
after
in
later than
anything
Purchase Price of
s Interest in the Premises. i)
Distribution of Net Sale Proceeds
Owner'
the
the
from
Hotel
as
the
time of
such
of
amount equal
outsandigas
an
interest,
an
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
paid under
such
sale on the
Back
Rent
plus
an amount
equal to all
Section
i)(
2);
lO. 1(
5)
to Owner, in an amount up to the
of the
be
6)
any remaining sums shall
i),
in the event that a Recognized
deemed
be paid to
to
5)
is insufficient to equal the Purchase Price, such
to
payment
be an
Section
amount
10.1(
i)(
shall
itself.For purposes
interest
on such
foreclosure judgment at
term Net
" Sale Proceeds" means, with respect
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
Assignee
k)
shall
by this Section 10.1(
The
notice
contain
required
or
theownershipof
theControl ing
ii)the
of
Interest
8 '
70frDg6~ the extent that such information
inquiry, and (
is
l(n)as
the
include
information:
i)
the
name, address
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"),
trust
LLC,
18 ,
70ff0965
there shall be
disclosed
individuals
or
the
holding the
or other governing body) of the proposed
President, Chief
Operating Officer,Chief
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
disclosed
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
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-
a
of the Hotel; v)
described
in
with
respect
to
Section
the
JNM\ CMB\
Owner todetermine the financialA:\
lO. l(
n);
vi)
banking and financial
information
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'
s Approval. Owner
shall
to
to such
changed Sale
then applicable;
and (
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
be delivered
cause
and delivery thereof,a true
and
correct
Days
deliver
after
copy of
instrument
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
It
follows:i)
Sublease
Clauses.
is
subordinate
for
the
respect
to
those
of
at
the
and
accurate
books
of account
three 3
( )years after the end
of
to
subject
the
term of such
Sublease.
v)
Bf~:
18170r D968
Subtenant Obli~ations.
reasonable efforts to
cause
all Subtenants to
c)
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
Recognized Mortgage(
in
the Premises. b)
Tenant shall
have
the
Rfb:
18170r 0969
11.
Section
Definitions.
2.
Debt"
a)
"
means
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
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
Debt
all extensions,
any
amendments
security
a lien
on
interest in or
assignment
or deed of
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
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
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
Tenant' s
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
(
Owner tosuch Recognized Mortgageeprovided,
however,
arrears as
specified in the
Default
Notice from
3)
18
4)
1 cause
17Ofr097
to be
payable
by
further,however,
notice
provides
to Owner
in
pursuant
the
the
Mortgagee'
to an Event
regard
of
11.4(
b)(
shall
2)
of Section
4),
which
b)(
11. 4(
shall
be
observed or
Tenant not
reasonably
susceptible
a bankruptcy- related
Person (e.
g.,
Amount
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
Performance.
Owner
Tenant'
shall
as
the
to
of
this
on which
thedate
payment
of
such amounts
is
received
by Owner.
Mortgages to contain
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
under
the
Lease, then, in
of
its
of
b)comply
Date");
be
shall
period
except
17OfrG973
f~:I B
pay all Back Rent
c)
as
following
manner:
current Rental;
such
At such time
ii)
Recognized Mortgagee
or
as
are
received
ill)
d)
not be
required to
fund
Operating
6.Execution of
11.
Section
New
accrue
or
such
until
paid
in full; and
Tenant'
Recognized
Mortgagee. b)Request
New
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.
0),
and such Recognized
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
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
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)
(
New
provided in
Mortgagee, as
Section
if a
b)),
6(
11.
such
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
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
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
Transferee);
and
such
not been
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
Tenant'
d)
No Waiver of
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
s Documents
cure,within
shall
a
related
bankruptcy-
default). e)
P~
ents under
Lease.If
the
Recognized
Mortgagee
or
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
and to the
benefit of
the
Recognized
Mortgagee
or
have
been paid
its Designee
to the
the
New
or apply the
or
same
Foreclosure Transferee as
not
been
The
terminated. f)
provisions
of this Section
6
11.
shall
survive
the
Expiration
11. 7.
Application
except
for
reasonable
costs
shall have
the
appeals
1
17Of[
0971
Reco~zed
not
Limited to
not
a Recognized
Section
Mortgagee.
Mortgagee(
shall
s)
not
be
of this
under
constitute
modification
for
11.11. Reco~tion
by Owner
Senior
Mortgagee whose
Recognized
Mortgage
is junior
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
any other
transfer
otherwise:
its
Designee
or Foreclosure
to
RecogTIi7, ed
Mortgagee ( or
Transferee};
or
Designee
or Foreclosure Transferee)
such foreclosure
sale.
other
assignee
in
Transfer.
is
the
ii)
Foreclosure
Transferee"
"
means
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:
and
Premises;
Price for
Owner'
after
s Interest in the
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
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
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'
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
same from
of
Mortgagee.
a)Notices.Tenant shall
cause
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,
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
shall
not be included in
the
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.
fee
in the
Owner in the
Lease.This
executed prior to
the
execution
Land
of
demised
hereby
over
Lease and
any
on
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
Date,
and
class convention
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-
conjunction
in
18170rf0982
f~:
class,
upscale property
the
13.
3.
a)
The completion of construction
Qpe~.
Shorecrest
b)
1)Hotel Manager.
One (
Date. -
Opening
managed by
one
and
the
same
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
and
shall
take good
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
made
and
or
in
compliance with
the Requirements.
Cleanin~of
b)
clean
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
has
that
Tenant shall
f~:
18170rf0983
operation of
the Premises in
b)
or to Supply
Utilities.Owner (in
Obli~ation
to
Repair
respect
Premises.
sa1. Tenant
Waste Di~
Section 14. 4.
of
the Premises
in
in
prompt
shall
and
and
broadwaIk
described
in
the
all
and condition as
thereon
amenity
to the first
Lease
sand
northerly
addition,
to the
easterly boundary
to the southerly
boundary
having
the
on
set
terms
forth
and
make
the
or
performance of
anyAlterations ( or
of FF&E)in and to
in connection with the
that: i)
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,
7;
ii)
engineer;
on a
Significant
completed value
a "
the
require
material
in
a violation of
occupancy applicable
any
Requirement
or
to the
Premises;
not
be
impair
heating,
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
inflation (as
written
consent
the
of
be
during
it
is
the
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
additions to the
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)
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
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
are
required by
reason
of any
15.
Section
Definition.
2.
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
force;
or
permanent
performance
of
any
property,
casualty
connection
promptly
with all Requirements. ARTICLE 16.
HOTEL
AGRE MENT
operated
conditions
MANAGER ANDMANAGEMENT
Hotel Managershall
include,without
the
limitation,
Bf~:
1817Off0987
Hotel
and
construction,
co rdinatingpurchases
and
insta1Iation
of
furnishings
the
assistance in
5)
purchasing
initial operating
in
of,
and for the
name
Manager
and agreements
as
covenants and
agreements
be
of
account
of,Tenant.c)
Tenant hereby agrees to
contained in
d)
The
Agreement
Hotel Manager'
s interest
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,
the terms
all of
Hotel
is being managed by
remain
responsible
for performing
the
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
the Management
16.
3.Transfer
Section
of
Hotel
Manager' s Interest
in the
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
Management
a
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
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,
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
iv)a copy
of
or be
request
shall
operations
of the proposed
contain
of the ownership of
new Hotel Manager ( unless the
ac ompanied
is
Interest
18170rrog90
f~:
Hi)
the
iv)
proposed
proposed transaction;
effectuating
such transaction;
copy of the
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,
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
after receipt
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
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
without
Engagement
is
and is i)
(
entered
into
Owner' s consent
of
is effected
by operation of
law,
and
in which
void and
without
no
effect until
case
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
notice
new
Tenant shall
Agreement. b)
Management
cause
Hotel Manager (
and
any
new Hotel
Manager, prior
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
any
new
terminate
amendment or modification
Management
default by
Tenant
default,and
notwithstanding
to the rights
succeed
the
Management
Agreement
Manager
shall,
of
at
shall
fifteen (15)business
within
and effect, and
days
notice
to Hotel
to evidencesuch
amendments)A
: :\
Hotel
CMB\
JNM\
870fro'99Z
1)
There shall
be
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)
at
of a termination
Owner
shall
give
or
fee
less
days
than ninety (90)
of
termination
or expiration
of
such
the
A)to
extent permitted
of
and disbursement to
Hotel Manager
of all accrued
any
and unpaid
management
fees
undertake any actions
with
to
notprovided
of
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
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.
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,
in accordance
E
Opening Date. To fund the FF&
Reserve
Account,
Tenant
shall
deposit, or
forth in
the
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
amount
Owner, inits
sufficient to
cause
soleand
the
the
E Reserve
FF&
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~:
no reason
Opening
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
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
6.
16.
pendency
the
1817Drf0995
Bt~:
16.7.
Hotel
Section
Qperatini
the
up
Fundini
Manaier
to
000, 000)the
(
F
" unded
Deficit")or
Tenant
initial
Million
the
Management Agreement
Dollars ($
1,
Operating
Deficit to be so
is terminated prior to the expiration
Hotel Opening
the
amount
plus
by Owner.
Definition
b)
Hotel
Operatil\ i
of
Maximum
c)
Annual
Amount. The
Hundred
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
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
Term,
however,
the
shall be managed
Le.,the
Hotel
that the
RP
and
Improvements
operated
and
exclusively
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
relating
to
Management Transfers
provided further,
provisions
in this Lease
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
thereto
be
limitation,
any
or
appurtenance thereto
against the
Premises or
any
part
thereof,
or if any public
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
timely basis,all
or
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 any
part
thereof
or
Tenant' s Interest in
the Premises
the security
its cost
No Authori~
to Contract in Name
in so doing.Section 17.3.
materials
nor as
for any
that
Rf~:
or
cause
all
Owner' s
encumbrance against
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
in existing
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
with
respect thereto,
in
this
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
representations, statements
contained
Section 18.
2
in this
donot
Section
alter
modify,
provisions of this
18170fr09 9
f~:
ARTICLE
ETC.
Liabili~ of
19.1.
or Tenant. a)
Owner NotLiable
Owner
for
Inju(
or
Dam~e_
Etc.
The Owner
Indemnified Parties
physical ( including,
without
limitation,
death),economic or
otherwise)
to Tenant or to any
other
Person
about or
in,
Tenant'
negligence of
or
neighboring
to the extent
with suchapplication.
JNM\
A:\
GLEASE.
CMB\
fb:
1 000 If
Owner
is
same.
for
18170r&
c)COQperation. In connection
Land at 1601
with
Requirements, Owner
shall
do
Loews
of
the
Tenn.
Expiration
Section
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
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:
Damale. Tenant
shall
the
terms
or conditions
of
granted
so
notify Owner
Tenant
Owner
Twenty-Five
shall
Thousand
Dollars ($125,
claim
notify
not
in
constitute
or result in a breach or
a loss
filed
000)adjusted(for inflation)
or suit commenced; however,
default
of any of
under
(
Tenant' s liability
this Lease. Section 19.4. Tenant' s Exculpation. Except for a)
for conversion, willful misconduct, or fraud,b)
( liabilities of Tenant arising under applicable Requirements. when
or
capacity, ( c)Tenant' s indemnity
act
i
n
g
in
pursuant to its governmental
Owner is
liability with respect to Tenant' s obligation to pay Rental that
a),
and (d)
pursuant to Section 35. 3(
is past due but not yet paid, and except with respect to any rights
the liability of Tenant under this
or remedies for non- monetary relief i(ncluding, without limitation, equitable relief),
Lease and with respect to the Premises for damages or
other monetary
2,
to
Two
000),
adjusted
for
inflation, under
amounts shall be limited
Million Dollars ($
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
shall
herein
shall be
deemed
a waiver or
limitation
connection
in
Bft:
1817QrC J
002
ARTICLE
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
Indemnified
Parties
harmless
misconduct of
any
Florida Statutes
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
actually
receives
with
Tenant
to
such obligation. b)
The obligations
of
Owner
part
under
in
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
Party,
Tenant
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
any claim.,
of any
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
or assertion against
receipt of
the
notice
Indemnified
Party. b)
Each Tenant Indemnified Party
shall promptly
Owner
of
the
receipt
the
of
notice
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
shall
Opening Date.
Hotel
b)
Roadway
"
Extension"
means
the extension of
expense,
16th
to
Collins
3.
Avenue. Section 21.
COQperation. Owner and Tenant shall cooperate
the
scheduling and
with
each other in
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
or in
part,
Lease
period
enforce
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
PatV'
to perform any
order
If a
such obligation. b)
default
Owner under
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
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
by
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.
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.
to the
provisions
assumption
of Tenant' s
Tenant.Section 24.
obligations
to payor
perform
any
of
Tenant'
past,present or
future
to the
provisions
assumption
of Owner' s
obligations
spast,
present or future obligations
OF
CONDmONAL LIMITATIONS, REMEDIES,
days
after notice is
is
same
a)if
thirty (30)
1817Qrn
f~:
008
or condition of this
Lease
on
Tenant'
part to
observance
be
observed
if
such a Default is
of such
is otherwise
a nature that
it
cannot reasonably be
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
to
remedy
to
such
steps
necessary
if a default by
same;c)
the
provided
same
the
if a
Mortgagee; d)
within the applicable time periods
Recognized
for in Article
debts
unable
e)to
6;
and
Tenant
shall
not cure
to pay its
if
law,
Tenant makes an
as
of g)to
as ignment
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
or ofall or any
of
part
Tenant'
f~:
1817or~
otherwise, or
within
if,
has
not
at achment,
vacated;
UnavoidableDelays;
subject to
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
Default by the
date
set
forth
of such
Default, the
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
of
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
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
or
the
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
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
credit
to
the value
confer ed
by
or
statute
f~:
5.Receipt
25.
Section
10t I .
18170f~
of Moneys
after
Notice
or
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
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
25. 6.
Strict Performance.
no payment
or
acceptance
of
No
full or partial
Rental
during the
continuance (
or
with Owner' s
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.
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
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
Owner'
contrary,
outstanding
balance
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
to
8,
13
70P~
or any undistributed
8 or 9)
which are not Affiliates, in payment of
except
to
Article
proceeds
to i)
(
creditors
documents
and
related
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,
of Tenant
readily
available
to
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
a signedreceiptor
arecognized
national
18170r~ I
f~:
if to Tenant:
0
Limited Partnership
Development
Corporation Suite 4650 100
S.
E.
Second
with
copy to:
Donahue Peebles, President
Attention: R.
Royal Palm
RDP
c/
o Peebles
2600 Virginia
Atlantic pevelopment
Corporation
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,
General
18170r~ IO IS
with
copy to:
and
copy
with a
to:
Bloom &
Minsker Suite
700 1401
Florida
33131 Attention:
and (y)
at Tenant' s
request,on
manner
by
such
in this Section
party by notice
provided
its behalf by
Recognized
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
Approvals. a)Effect
of Granting or
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
approvals which
consent or approval
by a party
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
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
approved,
which
such
consent
and in
or
transmitted to
as the
FAILURE TO
case may be:
RESPOND TO THIS
REQUEST WITHIN
If the matter
LEASE AGREEMENT." ii)
to
respond
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
approvals on behalf
with
6(
as applicable,
and
Sections
iv)(
4),
20.4,32.
2(b)
4(
b)(
a)(
iii),
16.
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
any and
all
governmental,
capacity
fees
on a
nondiscriminatory basis).
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
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
b)
and
(
Bfb:
10 19 Event of Default
that, with the giving
Default, which
has
18170r~
occurred or whether
Owner has
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
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
account reflecting the operations of the Hotel and such other matters
books of
referenced in this Lease,
be provided for in this
in
accordance with
the
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
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(
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)
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
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
confidentiality agreement
same as
as
or
its
ii)
later
representatives,
described below,
an
which
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
8 \
k'
70nl022 sheet of paper bearing
than that provided
the
in capital
letters and
in
a type
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
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
the
Expiration
8170PG ,
b: ,
023
OF
the
Expiration
Interest in the
of
the
Termo( r
entry
upon a re-
by
Owner upon
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
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&
operation
Premises
and
the
Land
and ill)
( Tenant
has, and
Term,
the
shall
be entitled to,all
Bf~: r
024
8170P~
Owner to
confirm title to
Owner.
Tenant'
by
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
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
Premises
Lease
Tenant
or of any
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
shall
not be
owned by
or
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
covenants
that,as long as
proprietary
effect
without an
in its
its
capacity) or any
without
Person
molestation
claiming
by,
proprietary
capacity)A.RTICLE
31.
RESERv'kD]ARTICLE
32.
ADMINISTRATIVE AND
JUDICIAL
Tax
Section 32.1.
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
danger
by reason of
Section 32.
2(
b)
nonpayment
excess
of
the
18 70?~
026 b)
Tenant has
proposed
third
ten (
deposited
days
10)
after
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
any
interest
action
or
capacity.
ARTICLE
33.
Restaurant
agreement ( the "
destination
a
18170P~
t
the " Restaurant").
The Restaurant
Agreement
I028
shall include, without limitation, the
foUowing
Commencement.
a)
one
hundred twenty (
b)
Restaurant
Date.
A~
nt
public
Execution. The
form reasonably
acceptable to
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
Lease between the beneficiary and RDP Royal Palm Hotel Limited
Partnership [
and
date].c)
"
Approval
insert
of Owner.d)The Restaurant as
ap roval
elects
to file
shall
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
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
i)
theexpiration
of the
Agreement
Restaurant
18170r~ I
ft:
029
ARTICLE 34.
INVESTIGATIONS, ETC. To
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
this Lease,
have the
shall
purposes of
terms
following
definitions:
fluid
containing
levels
of polychlorinated biphenyls
in
excess
and
376
iv) any
and 403; and (
substance,the exposure to
any
the operations
governmental or
thereon;
Environmental
b)
"
shal
mean
release of
Environment,
which
is
having jurisdiction
over the
Premises or
Laws"
all Requirements
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,
or handling of
Materials;
Hazardous
and
safety
of
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
the
nature, contingent
incurred
at any
or
otherwise, matured
or
time as a result
of
shall include any damages
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
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
requires
result
action to
Release"shall mean
substantial likelihood
of
Use of
2.
Ha7.ardous
of
in
Materials. Tenant
or
A:\
Laws.
about
as
permit
any
Hazardous
Material
to
f~:
18170r~
Section
03 ,
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
the
prior to
and
counsel reasonably
Commencement
to Owner),even
if
such
conducting all
fraudulent,
be
unreasonably
Indemnified
under Environmental
this Section
Laws. Owner
c)in
35. 3(
Tenant' s
such
a manner
as to minimize
disruption
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)
documentsexchanged
A:\
between
18170P~
1 032 Owner, its consultants, and DERM
to or received
from
or
or
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
Release,Threat
Release or
of
or a
Environmental Condition
party
all
detailing
relevant
facts
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
Event
or agency creates
Lease:
a)
if
lien
the
upon
EP A
the
or
Premises
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
of violationor admini~
trative
Tenat(
or
against
complaint)
I033
t: l8170P~
Premises or
an Environmental
Complaint
Event
on
Owner,
ocupant
for damages
or pertaining
to
cleanup
(
of Default if,
within thirty 30)
i)
or
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
or
Tenant has
ii)
posted
bond,
tter of credit or
le;.
other
security satisfactory in
secure
following
manner: (
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
probable
cost of
curing
or
correcting
Owner and Tenant shall each pay the cost of their own
iI1 and shall share evenly the cost of the
35. 7( b)(
third
consultant
become
35.
8.Owner R~nsibilitY.
In
b),Owner in
35.
( its
3(
for all Environmental Damages resulting from an Environmental Condition
of
any
the
addition to Section
Owner
35.9.
Survival.
The provisions of
this
Article
of
36.
36.
1.
Purchase of Owner' s
Interest
in
OFFER
Section
the Premises by
Tenant.a)Purchase
by Tenant When
Required
extent
18170rG \
Bft:
or ( ii)
any time Tenant voluntarily refinances
any Net Refinancing
034
Proceeds.
Purchase
Price
Tenant'
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
Section
IO.
the
its sole
purchase of Owner' s
sole
later
the
event,
date of such
the
there shall be
no
Purchase
end of the Term.d)
from
the Hotel
ending ten (10)years from
Interest in the
Premises (
the
the Hotel
Opening
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
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
of
the
Purchase Price
fifty-
sum
five
from
of
percent (55%)
Palm
Portion of
the
Dollars ($5,
(
500, 000) the
of this
the
Royal
Lease
only);ill)
(
per
%)
year on the
the amount required for Owner to achieve a return of eight percent 8
herei
n
af
t
e
r
defined)
o
(
r
on
such
lesser
Shorecrest Portion of the Purchase Price as
amount after deducting
(
any Instal ment Payments made so that the return is calculated on the basis of the amount outstanding
on
the Shorecrest
on theHotel
OpeningDate
Portion
of the
Purchase
continuing
and
Price from
time
18170P~
R~ t:
1 035 Shorecrest Portion of the Purchase
five percent ( 45 of
%)
all Incentive Rent paid; provided, further, however,
paid and fortyspecif ed in Section 36.1(
d)(
i)
that any Incentive Rent paid after amounts
have been paid
credited
shall be
and iv)
the sum:of
one hundred percent (100%);
at
($
500, 000)the (
Shorecrest Portion
Million Five Hundred Thousand Dollars 4,
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
only
and
in no
by reference
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
the
the
of
achieve
Lease.e)Purchase Price
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
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)
Tenant
%)
"
18170PG ,
receive
the
credit
d)
to the Purchase
Price
Rental
paid,
as
applicable,
and (e);
ill)the proceeds
and in the
as
provided in
Sections 36.
1(
be applied
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
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
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
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
be
shall failto
Right
consummatethe
of
"
18170P~
fK:
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
transaction shall
that
such
be
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)
(
days
Owner and
involving
Tenant
Tenant
under
thisSection
If Tenant
descn" bed.
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
and
after
the effective
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
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
and
shall be
assigned,
a Sale
upon
to the
rights
from
Tenant's Interest
in
the Premises,
transferee only
of
the Hotel
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,
Captions.
References. a)
federal court. Section 37. 2.
Thecaptions of this
Lease
of
convenience of
reference only,and in
in
no
any
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
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
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~
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
written instrument
of
default
or
termination executed by
Owner
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
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
and enforceable
to the
extent
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
the
or
in
fee estate
the
in
Lease
Cumulative. Each
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
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
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
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
against, everysuch
partne,
holder
of
incorporator, stockholder,
member,
officer,
18170f~
of
13.Nonliability
Lease.Section 37.
this
Officials
and
of
provided
in Article 19,no
other
ownership
interest, official
or
employee
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
against,
every
such
Person, under
or
by reason
are expressly
the
Lease that
by law.
warrants
that,
to
the best
of
its
any payment or
knowledge, no
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
construed or deemed
a partnership,joint venture,tenancy-in-
to
the
create, or to express
common,
anintent
the
calculation of Rental
to create,
fb:
18170f~
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
BY CHAPTER 88-285,LAWS
be
provided with
building, or
may be obtained
testing
from
to
the
is
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
between
relationship
Blt:
18170r~ I
044
EXECUTION IN WITNESS
have executed this
Lease
as of
the
to
Tenant, intending
be
legally
bound,
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
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
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.
':,:,
,>
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
of such
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
County, Florida
a)2
That
portion
The Dade
bordered by:1.
The Atlantic
3.
Key
excluding
B~ f:
18170P~
050
EXHIBIT
4(
6.
b)
llENCHMARJ( HOTELS CROWNE PLAZA HOTELS INTHE
29928 2.
W
ASHlNGTON,
DISTRICT
OFCOLUMBIA14th and
KStreets Washington, DC
20005 3.
RA VINIAI ATLANTA,
GA.4355 AshfodDunwoody Rd Atlanta.
Ga.
30346 4.
REDONDO
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
ranges
for
and arrival
Able
policies
to
Offers confirmation
Extends
comment
friendly departing
entrance
at Hotel
Extends
staff/front
friendly
greeting
desk
available, which
include
numbered
receipts and
in procuring
taxi Able
directions to
popular destinations
to provide
Able
to
information about
CMB\
JNM\
explain
guest
Assists
to
Staff
answer
f~:
18170r~ I
053 3.
GUEST
available Extends
guest
friendly
Efficiently
delivers
greeting
luggage
when
assisting
to
guest room,
placing appropriately
facilities
guests
up luggage
from
and
groomed Extends
friendly
departing comment
4.
FRONT DESK Provides courteous, prompt, efficient check in
and check
out
presenting written
information
at check
in
Discreetly gives
room
wish
luggage
number
to help
and
guests who
Posts to
s account appropriately
deliver phone
Able
guest'
to
messages Able
to
answer
neatly
uniformed
Extends
and groomed
GLEASE.
CMB\
common questions
and
provide
information
Bf[
1817or~ I
054
5.
CONCIERGE Staff available to
and efficiently
handle
requests
professionally
Able to
local area
maps to
popular destinations
common
Able to
answer
questions and
provide information
about
hotel services
and groomed
Follows-
uniformed
up on open guest
requests
and
questions 6.
TELEPHONE
promptly
Calls
answered
with
Answers phone
requests executed
properly Able
call
to
answer
common questions
about hotel
services
and facilities
Extends
friendly
departing comment
proper
level
HOUSEKE PING
7.
of
Rooms
cleaned daily to a
cleanliness Carts
Room
is
amenities, dusting
and vacuum
CMB\
JNM\
Room
Staff
includes
emptying trash,
are
18 '
B~~:
70r~,
055
8.
LAUNDRY VALET
Extend
courteous
off
service Drop-
andfriendly
laundry professionally
done and
delivered on
a
reasonably
Garments
timely basis
attractively
presented
Receipts
uniformed and
neatly
retrieved
and delivered
promptly
dining
with
greeting
professional
and
time estimate
to
to guest
delivery
appropriate
bill
request
fresh in
accompaniments Portions
Presents
questions
Delivers
table/
with
common
Sets up table/tray
tray
answer
Gives
for
Able
provide
according
with
suitable
promptly
GLEASE.
CMB\
Trayremoved
from
guest
taste
on
f~:
18170r~ I
056
10.
RESTAURANT
a guest
Extends
friendly
greeting
Able
to
about
menu
foodlbeverage items
Delivers
accompaniments
Portions
seating
Seats
when
order
common
information
professionally
taste and
attractively
presented with
are adequate
for
promptly Extends
comment
answer
processes
friendly
honored
in
professional
Able
about beverage
items
processes
friendly
to
Delivers
bill
payment promptly
answer
order
and
Extends
departing comment
Tables promptly
cleared 12.
GROUP SERVICES -
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
policies
accordingly
18170r~ I
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
appropriate
rooms
uniformed
working order
COMPLAINT HANDLINGIMAINTENANCE REQUESTS Staff
trained
set-up
in
where to make
Staff uniformed
helpful andcourteous
A:\
JNM\
GLEASE.
CMB\
in
14.
and
requests
special
requests/
AMENITES 18 70r~
BUSINESS
15.
I 058 Staff available to
handle
requests
professionally
services
able to
answer
common
questions
and
uniformed
to
Secretarial/ word
coming facsimiles
In-
and
EX2(
GLEASE.
business
services/
call,
18 ,
059
70r~
,
PHYSICAL STANDARDS 1.
ENTRANCEILOBBY /
CMB\GLEASE.
FRONT DESK
EX2( EXECUTION.
498
S2)\
Overall
clean.
Floors,
Structure -ConditionIFF&
Front
DeskSignage
maintained. Performs in
Cleanliness
Condition/
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&
treatment,
for privacy;
with
specifications;
well
maintained.
3.
Soap,towels,
DINING AND
toilet tissue,
BAR FACILITIES
Floors, walls,
waste
receptacles, etc.,provided.
Carpet,buffets, wall
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
provided.
maintained. Safety/
Shielded,
ToplMenus
and
access and
identified.
Emergency lighting present
Key
specifications; well
with
LOBBY
AREA Cleanliness
Overall clean.
Condition/
Structure -
Floors,
walls,
doors,
ceilings,
windows,
etc.;
ConditionIFF&
well maintained.
wall
treatment, light
accordance
with specifications;
fixtures, window
treatment, etc.;
well
Service
well
well roaintained.
Areas Organized;
safe
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
maintained; operating
with
specifications; well
lighting
maintained.
6.
MEETINGIPRE-
ISecurity
RECREATION FACILITIES
Signage Cleanliness
Cleanliness
Overall
clean.
Floors,
walls,
doors,
ceilings,
windows,
Condition/ Structure -
treatment,
ConditionIFF&E
well maintained.
etc.;
Movable
Operable;well maintained.Performs
Walls
well maintainP. d.
HVAC
EquipmentSignage
in
accordance
withspecifcations;
Safety ISecurity
7.
present and
EXECUTlON.
EX2(
vents,
windows,
S2)\
well
etc.;
lighting,
clear; properlytreated.
maintained.
furnishings,
pool cover,
498
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~~
HVAC
EXTERIOR
8.
COMPONENTS
accordance with
Cleanliness Condition/
specifications;
clean.
Stairs, railings,
walls, roof,
Structure -
Canopy On-Site
ined; clearance
main~
maintained. Well
height posted.
Garage Driveway/
curbs,
Curbsl
Sidewalks
Signage Safety/
well
secure.
Security Building
Facadel
Exterior Entry
Doors
Free of weeds,
Landscape 9.
GUEST
EX2(
mirrors
in proper
maintained.A:\
JNM\ CMB\
GLEASE.
closets,
18170f~ I
ft:
065
EXHTRTT
8.
2 ARTICLE 2
OF
HOTEL
DEVELOPMENT
1 Conditions Precedent to
Section
2.
Developer'
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
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(
the
t
066
the Payment
" and Performance
18 70r~ I
Bond''),in a form
the
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
the
COIllPletion
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
Upon Substantial
at Developer' s sole cost and expense. b)
6,
Completion of Construction of the
Article
with
Owner
13170P~ ,
ft:
067
i)
a
Owner
on the standard
Requirements;
City of Miami
Beach Building
"
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'
to Owner
evidence that
and vi)
the Hotel.A:\
JNM\CMB\
EX2(
GLEASE.
EXHIBIT
10.
1(
1)
SOURCES AND
i)(
c)(
USES
eft:8170r~
, I
068 Royal
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
CONCESSION
AGREEMENT (
the "
Concession
City
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
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
locations as
City.
4.
2 Rental
of beach
the
required and shall be
required and
provided,
Tenant;
at Tenant' s
sole
cost and
expense, insurance
18170r~ I
ft:
6 Such other
070 4.
applicable Governmental Authorities
services
businesses and
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
as
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,
the
pursuant to
Concession
post, at
Tenant'
Concession
Agreement
shall
the Lease. In
of
s sole
have
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
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
shall
net
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
such
Util es. B~
9.
b:
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
Hotel.
City
the
Concession
Agreement in
to
Tenant' s
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
20 of
Agreement
the City
will
for
or
operators of
hotels of
a similar
constitute
shall notbe
size
and location as
a tenant
thereunderor
of
the
shall
not
eement.
15.
Definitive
eft
A~
The
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
on :
N.
eel
on
8 ~!!~
~;?!~
I
on
Il'
N.
Il'
I
on ~ ~
i
o~
m8 ~
lii
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o ~~
3~
o ~~~;?
I
8
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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
with
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the purchase.IN
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