2016-29481 Reso RESOLUTION NO. 2016-29481
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE A LANDLORD WAIVER, SUBSTANTIALLY IN THE FORM ATTACHED
TO THIS RESOLUTION, IN FAVOR OF BANK OF AMERICA, INVOLVING THE
LEASE AGREEMENT BETWEEN THE CITY (LANDLORD) AND THE MIAMI CITY
BALLET, INC. (TENANT) FOR THE BUILDING LOCATED AT 2200 LIBERTY
AVENUE, MIAMI BEACH, FLORIDA (PREMISES); SAID WAIVER SUBORDINATING
THE CITY'S STATUTORY LIEN RIGHTS AGAINST THE PERSONAL PROPERTY IN
THE PREMISES (IN THE EVENT OF A DEFAULT UNDER THE LEASE); AND
WHICH WAIVER IS BEING REQUIRED BY BANK OF AMERICA, AS SECURITY
FOR A REVOLVING LINE OF CREDIT, HAVING A LIMIT OF $1,500,000, WHICH IS
BEING SECURED BY THE TENANT'S COLLATERAL, WHICH INCLUDES THE
PERSONAL PROPERTY IN THE PREMISES.
WHEREAS, Miami City Ballet was founded in 1985 and has grown to maturity and national
acclaim while headquartered in the City of Miami Beach where it has been located for more than
thirty years; and
WHEREAS, the City and the Miami City Ballet, Inc. (MCB) executed a ground lease, dated
April 13, 1994, as amended (the Ground Lease), and pursuant to said Ground Lease, the City
initially contributed $2.5 Million Dollars, as well as public land located at 2200 Liberty Avenue,
Miami Beach, Florida, toward the cost of the MCB studio facility and improvements therein (the
Building), which was designed, constructed, owned, operated and maintained by the MCB under
the terms of the Ground Lease; and
WHEREAS, in an effort to assist the Ballet with serious financial problems it had encountered,
and to continue to house the MCB headquarters in the City of Miami Beach, on September 21,
2005, the Mayor and City Commission, adopted Resolution No. 2005-26017, and the Chairman
and Members of the Miami Beach Redevelopment Agency adopted a companion Resolution No.
518-2005, ratifying a term sheet containing agreed upon terms, which provided, in material part,
for the City's purchase of the Building from MCB, in the amount of $5.24 Million Dollars; and
further authorized the City to negotiate with MCB a long term lease agreement of the Building and
improvements contained therein (the Premises), following the purchase of the Building; and
WHEREAS, on February 8, 2006, the Mayor and City Commission adopted Resolution 2006-
26125, approving the execution of the Lease Agreement (the Lease) between the City, as
landlord, and MCB, as Tenant, dated February 9, 2006, for the lease of the Premises, consisting
of a 63,000 square foot facility, containing administrative offices, a school, studio space, and a gift
shop; and
WHEREAS, the Lease has an initial term of forty (40) years and sixty-three (63) days,
commencing on February 9, 2006, with four possible separate renewal options (the first three
options for fifteen (15) years each and the fourth of fourteen (14) years), subject to meeting certain
Renewal Conditions; and
WHEREAS, in order to ensure future funding for the maintenance and capital improvements of
the Premises, Section 6 of the Lease requires MCB to pay the City, as additional rent, funds (the
Funds) which are owned, held and disbursed by the City in sub-accounts for maintenance and
capital improvements; and
WHEREAS, in 1986, its first performance season, the Miami City Ballet had a budget of
$1,000,000, a troupe of 19 dancers and a handful of staff, and today, in its 31st season, the MCB
has grown to a budget of more than $16.5 Million and includes the a troupe of 52 dancers, 1,200
students (as young as three), and more than 85 administrative and artistic staff members who
provide support the MCB and School; and
WHEREAS, Miami City Ballet earns seasonal revenue and is in need of a revolving line of
credit to cover operating expenses during its slower periods; and
WHEREAS, in order to secure a line of credit, in the amount of $1,500,000, Bank of America
(BOA) is requiring a Landlord Waiver, substantially in the form attached to this Resolution as
Exhibit A; and
WHEREAS, pursuant to the Landlord Waiver, the City would be agreeing to subordinate it's
interest in the MCB's personal property (the City's statutory lien rights against MCB's personal
property in the Premises), in the event of a default by MCB under the Lease; and
WHEREAS, the Landlord Waiver additionally provides: (1) clarification that that the City is not
subordinating its interest to its property, and more particularly, the following: (i) fixtures and
improvements contained in the Premises, (ii) the Lease, or (iii) the maintenance and capital
improvement Funds; (2) BOA with a right of entry to the Building in the event MCB defaults under
the loan documents; (3) Indemnifies the City when entering the Building; and (4) requires notice to
the City along with a thirty (30) day cure period before exercising its rights against the Collateral.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby
approve and authorize the City Manager to execute a Landlord Waiver, substantially in the form
attached to this Resolution, in favor of Bank of America, involving the Lease Agreement between
the City (Landlord) and the Miami City Ballet, Inc. (Tenant) for the building located at 2200 Liberty
Avenue, Miami Beach, Florida (Premises); said waiver subordinating the City's statutory lien rights
against the personal property in the Premises (which Landlord would have in the event of a default
under the lease); and which waiver is being required by Bank of America, as security for a
revolving line of credit, having a limit of $1,500,000, which is being secured by the Tenant's
collateral, which includes the personal property in the Premises.
PASSED and ADOPTED this I3 day of k( 2016.
ATTEST:
/0/•
Rat�el E. anado, i ity Clerk ti\ . E,1 °i 'ip �-vifi .yor
..�:
r/' ��Q; ' APPROVED AS TO
°� �RF FORM & LANGUAGE
T:\AGENDA\2016\June\TCED\SSCC-Ne C seS t. L se Agreemet FSIA RESO.docx
/; �\\, . /_� & FOR EXECU ON
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�. ity At orney 4 at Date
COMMISSION ITEM SUMMARY
Condensed Title:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,APPROVING
AND AUTHORIZING THE CITY MANAGER TO EXECUTE A LANDLORD WAIVER, SUBSTANTIALLY IN THE FORM
ATTACHED TO THIS RESOLUTION, IN FAVOR OF BANK OF AMERICA, INVOLVING THE LEASE AGREEMENT
BETWEEN THE CITY (LANDLORD) AND THE MIAMI CITY BALLET, INC. (TENANT) FOR THE BUILDING LOCATED
AT 2200 LIBERTY AVENUE, MIAMI BEACH, FLORIDA (PREMISES); SAID WAIVER SUBORDINATING THE CITY'S
STATUTORY LIEN RIGHTS AGAINST THE PERSONAL PROPERTY IN THE PREMISES (IN THE EVENT OF A
DEFAULT UNDER THE LEASE);AND WHICH WAIVER IS BEING REQUIRED BY BANK OF AMERICA,AS SECURITY
FOR A REVOLVING LINE OF CREDIT, HAVING A LIMIT OF $1,500,000, WHICH IS BEING SECURED BY THE
TENANT'S COLLATERAL,WHICH INCLUDES THE PERSONAL PROPERTY IN THE PREMISES.
Key Intended Outcome Supported:
N/A
Supporting Data(Surveys, Environmental Scan,etc.):
N/A
Item Summary/Recommendation:
Miami City Ballet is requesting a revolving line of credit in the amount of$1,500,000 from Bank of America("BOA") in order
to cover operating expenses during slower revenue periods in their season. As a condition for the line of credit, BOA is
requiring the City sign a Landlord Waiver agreement stipulating the following:
• Separating all collateral from Real Property;
• Subordination to Lender of City's interest, if any, in the Collateral (as defined below);
• Providing Lender the right of entry to the premises in order to take possession of, and dispose of or remove the
collateral;
• Indemnification, defense, and hold harmless by the Bank in favor of the City; and
• Provide the City written notice of default and thirty(30) days to cure the default.
"Collateral"shall mean all of the following assets(whether now owned or existing or hereafter acquired or arising)
in which the Borrower now has or hereafter acquires any right, title or interest:(a) all of the Borrower's Accounts,
Additional Revenues, Chattel Paper, Contract Rights, Deposit Accounts, Documents, Equipment (subject to the
limitations set forth herein). Fixtures, General Intangibles, Receivables, Instruments and Inventory; (b) all of the
Borrower's cash, bank accounts, special collateral accounts, uncertificated securities (as that term is defined in
the UCC) and insurance policies; (c) all of the Borrower's books and records (in whatever form or medium),
customer lists, credit files, computer files, programs, printouts, source codes, software and other computer
materials and records related to any of the foregoing; (d) all monies and property of the Borrower in the
possession or under the control of the Bank or any agent or affiliate thereof; and (e) all Proceeds (including,
without limitation, all proceeds as that term is defined in the UCC), Insurance proceeds, unearned premiums, tax
refunds, rents, profits and products thereof; provided, however, that "Collateral"shall not include any restricted
pledges, restricted endowments, restricted investments or other similarly restricted funds (collectively, the
"Restricted Accounts').
The City Attorney's office has modified the original propose Landlord Waiver to clarify that the City is not subordinating its
rights to: 1.) the Lease, 2.) any of the fixtures at the Premises, 3.) or any of the Fund accounts(as defined in section 6 of
the Lease) consisting of the Maintenance and Capital Improvement Accounts which are paid to the City, as additional rent
under the Lease, for the City to use in connection with the necessary Maintenance and Capital improvements to the
Premises.
Advisory Board Recommendation:
N/A
Financial Information:
Amount Account
Source of Funds: 1 N/A
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Max Sklar, ext. 6116
Sign-Offs:
De ailment irector Assistant City Manager Ci Manager
T:\AGE DA\201 TCED\Miami City Ballet\Miami City Ballet-SUM.docx
® MIAMIBEACH AGENDA ITEM C7 T
DATE 7-/3-14,
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members of e City Corn fssion
FROM: Jimmy L. Morales, City Manager )
DATE: July 13, 2016
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER TO EXECUTE A LANDLORD WAIVER,
SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION, IN FAVOR OF BANK OF AMERICA,
INVOLVING THE LEASE AGREEMENT BETWEEN THE
CITY (LANDLORD) AND THE MIAMI CITY BALLET, INC.
(TENANT) FOR THE BUILDING LOCATED AT 2200
LIBERTY AVENUE, MIAMI BEACH, FLORIDA
(PREMISES); SAID WAIVER SUBORDINATING THE
CITY'S STATUTORY LIEN RIGHTS AGAINST THE
PERSONAL PROPERTY IN THE PREMISES (IN THE
EVENT OF A DEFAULT UNDER THE LEASE); AND
WHICH WAIVER IS BEING REQUIRED BY BANK OF
AMERICA, AS SECURITY FOR A REVOLVING LINE OF
CREDIT, HAVING A LIMIT OF $1,500,000, WHICH IS
BEING SECURED BY THE TENANT'S COLLATERAL,
WHICH INCLUDES THE PERSONAL PROPERTY IN THE
PREMISES.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BACKGROUND
Miami City Ballet was founded in 1985 and has grown to maturity and national acclaim
while headquartered in the City of Miami Beach where it has been located for more than
thirty years. In 1986, its first performance season, the Company had a budget of
$1,000,000, a troupe of 19 dancers and a handful of staff. In 2001, the Company
opened its state-of-the-art building and dance facility in Miami Beach, boasting eight
dance studios, an expansive administrative wing, physical therapy, weight training, and a
Commission Memorandum
Miami City Ballet—Landlord Waiver
July 13, 2016
Page 2of4
thriving dance academy with students from more than 44 states and 13 countries in
attendance. Today in its 31st season, the Company has grown to a budget of more than
$16.5 Million and includes a troupe of 52 dancers, 1,200 students as young as three,
and more than 85 administrative and artistic staff members who provide support to the
Company and School.
The Miami City Ballet Studios building, 2200 Liberty Ave, is an approximately 63,000
square feet building containing the offices, school and studios of the Ballet and is an
anchor in the City's Cultural Campus. It was completed at the end of 1999 at a cost of
approximately $7,000,000. During 1999, the City contributed $2,500,000 towards the
construction of the building and also owns the land on which the Building was built. The
Ballet has also added approximately $1,000,000 of interior finishes and improvements
which includes two studios that when combined by opening an air wall between them
can create a performance venue with seating for approximately 225. Our Open Barre
performance series at MCB studios provides a behind the scenes look at classical ballet
with choreographers, collaborators, and MCB dancers. They have also donated or
rented this facility , when available, to other arts groups, such as: New World Symphony,
the Miami Light Project and the South Beach Gay Men's Chorus, as well as permitted
television, film, and music video production companies, and photographers doing
fashion shoots to use the facility.
Since 1998, through its Miami City Ballet Inner-City Outreach Program, the Ballet has
partnered with. several Miami Beach Schools, including South Pointe Elementary,
Feinberg-Fisher Elementary and North Beach Elementary, through their Exploring
Dance Program, which provides in-school residencies, conducted by the School's
Outreach Faculty, to children with financial needs. The Ballet also continues to provide
scholarships to attend the Miami City Ballet School to talented children with financial
need. This past year, MCB School awarded 150 scholarships at a value of more than
$500,000, including 22 from Miami Beach. Nearly 5,000 Miami Beach community
members attended the outreach programs and community performances at the facility
this past season, and each season the ballet provides thousands of complimentary
tickets to community members, children and local Miami charities.
ANALYSIS
In 2005 the Ballet was struggling to achieve short-term financial stability and
sustainability in the long-term. They had incurred approximately $2,500,000 of operating
debt over the previous six years. The Ballet had cited a reduction in contributions from
donors as a result of a weaker economy post 2001, reductions or eliminations of
government support to the arts, as well as more intense competition, most notably from
the Miami Performing Arts Center, for contributions from a finite pool of donors, as the
major reasons for their decreased revenue. After reviewing several other financing
options which the Ballet and the City determined to be unviable, The Administration
proposed and the Commission adopted a resolution to execute a lease with Miami City
Ballet that included a financial package to make the Ballet financially solvent and
continue its cultural partnership with the City as follows:
1. The City of Miami Beach acquired the Ballet's interest in the Miami City Ballet
Studio Building for $4.5 M and lease it back to the Ballet, at a rent of $1 a year in
addition to covering all future capital and maintenance expenses;
Commission Memorandum
•
Miami City Ballet-Landlord Waiver
July 13, 2016
Page3of4
2. The City provided, $740,000 to fund imminent major capital replacements which
consist of: roof replacement - $500,000; five rooftop air conditioning units -
$175,000, and pressure-cleaning, waterproofing, and painting of the building
• exterior- $65,000; and
3. That the City formally and regularly assess the costs of lifecycle maintenance
(through VFA or similar company) for the Ballet building and determine a
consistent method of allocating building capital maintenance and replacement
costs at that time;
In order to ensure future funding for the maintenance and capital improvements of the
Premises, Section 6 of the Lease requires MCB to pay the City, as additional rent, funds
(the Funds) which are owned, held and disbursed by the_City. in sub-accounts for
maintenance and capital improvements; and
As of June 2016, the Ballet is current on its payments to the Maintenance and Capital
reserve accounts and is leveraging those reserves to apply for the Cultural Facilities
Program grant from the State of Florida to provide further improvements to the site.
Miami City Ballet is requesting a revolving line of credit in the amount of$1,500,000 from
Bank of America ("BOA") in order to cover operating expenses during slower revenue
periods in their season. As a condition for the line of credit, BOA is requiring the City
sign a Landlord Waiver agreement stipulating the following:
• Separating all collateral from Real Property;
• Subordination to Lender of City's interest, if any, in the Collateral (as defined
below);
• Providing Lender the right of entry to the premises in order to take possession of,
and dispose of or remove the collateral;
• Indemnification, defense, and hold harmless by the Bank in favor of the City; and
• Provide the.City written notice of default and thirty (30) days to cure the default.
"Collateral"shall mean all of the following assets (whether now owned
or existing or hereafter acquired or arising) in which the Borrower now
has or hereafter acquires any right, title or interest: (a) all of the
Borrower's Accounts, Additional Revenues, Chattel.Paper, Contract
Rights, Deposit Accounts, Documents, Equipment (subject to the
limitations set forth herein). Fixtures, General Intangibles,
Receivables, Instruments and Inventory; (b) all of the Borrower's
cash, bank accounts, special collateral accounts, uncertificated
securities (as that term is defined in the UCC) and insurance policies;
(c) all of the Borrower's books and records (in whatever form or
medium), customer lists, credit files, computer files, programs,
printouts, source codes, software and other computer materials and
records related to any of the foregoing; (d) all monies and property of
the Borrower in the possession or under the control of the Bank or any
agent or affiliate thereof, and (e) all Proceeds (including, without
limitation, all proceeds as that term is defined in the UCC), Insurance
proceeds, unearned premiums, tax. •refunds, rents, profits and
Commission Memorandum
Miami City Ballet-Landlord Waiver
July 13, 2016
Page 4 of 4
products thereof. provided, however, that "Collateral"shall not include
any restricted pledges, restricted endowments, restricted investments
' or other similarly restricted funds (collectively, the "Restricted
Accounts').
The City Attorney's office has modified the original propose Landlord Waiver to clarify
that the City is not subordinating its rights to: 1.) the Lease, 2.) any of the fixtures at the
Premises, 3.) or any of the Fund accounts (as defined in section 6 of the Lease)
consisting of the Maintenance and Capital Improvement Accounts which are paid to the
City, as additional rent under the Lease, for the City to use in connection with the
necessary Maintenance and Capital improvements to the Premises.
•
CONCLUSION
The Administration recommends adopting the Resolution which authorizes the Mayor and
City Clerk to execute the Landlord Waiver in substantial form attached.
Exhibits:
A Landlord Waiver •
•
JLM/KG :I=' MM/GT/RJG
•
•
•
•
•
•
T:\AGENDA\2016\June\TCED\SSCC-New Leases\SSCC Lease Agreements MEMO.docx
Bank of America -st
LANDLORD WAIVER
The undersigned has an interest as owner of certain real property commonly known as 2200 Liberty
Avenue, Miami Beach, Florida, including a building ("Building") having 63,000 square feet, together with
all improvements and fixtures located thereon (the "Real Property"), and has leased the Building
togerther with all improvements and fixtures (the "Premises") to Borrower (as defined below) pursuant to
that certain Lease Agreement, dated as of February 9, 2006 (the "Lease"), as more particularly described
in the Lease, a copy of which is attached hereto as Exhibit"A".
Bank of America, N.A. (the "Bank") has extended certain financial accommodations to Miami City Ballet,
'HV f,.
Inc., a Florida not-for-profit corporation (the "Borrower") and securit therefore, the Borrower has
executed one or more finance agreements, consisting of a Loan'Agreement and Promissory Note for a
revolving line of credit, in an amount not to exceed $1,500,000, and se urity agreements, consisting of a
Security Agreement and a UCC-1 Financing Statement(collectively, t e"Loan Documents"), granting to
the Bank a security interest in and to the Borrowers''collateral, as described in the security agreements
(the "Collateral"). A copy of the Security Agreement and UCC-1 Financing Statement are attached hereto
and incorporated herein by reference as Exhibit"B",:;;;›
In order to induce the Bank to extend credit to the Borrower,_and in consideration of-such extension of
credit, the undersigned agrees as followss,,',�'subject to the term's and conditions set forth in this Landlord
Waiver: •�_ -�,� <'��:_.
1. Notwithstanding anything to the contrary in'tfeSLoan Documents the following shall be excluded
from the definition of--:Collateral uncle the Loan>Documento%s it pertains to the Lease and
Premises, and shall be clarified herein as "Landlords-Property': M:(.1') the Premises; (2) the Lease;
(3) all Fund accounts owned and held by La ndlorrd (as defiibeed in Section 6 of the Lease); (4) all
current or future`ir,provements`to the Premses (5) all Fixtures (as defined under Florida Statutes
Section 679.1021:(11),(00) and the security agreements), including fixed trade fixtures; and (6) any
other improvements, equipment machinery anchappurtenances which are essential to maintain a
secure;and.habitable environmentfor_legal occupancy of the Premises, which may include, but
are not=limited (i) air conditioning/heating.system equipment, (ii) electrical equipment, such as
lig ting fixtures, switches, and electrical outlets (iii) plumbing equipment; (iv) interior and exterior
doffs and windows; (v) flooring and trim; (vi) networking and telephone cables; (vii) all bathroom
fixtures including cabinetry, and plumbing fixtures (sinks and toilets); (viii) kitchen fixtures
(including cabinetry and plumbing fixtes (sinks and related attachments), all of which shall be
considereart of the Premises. The Borrower's Collateral, with respect to the Premises shall
be limited,to Borrower's personal property and unaffixed trade fixtures, which are not defined as
Landlords Property herein;(hereinafter referred to as"Borrower's Personal Property").
2. The Borrower's Personal':Property shall be deemed to be personal property and shall not be
considered a part oftlReal Property. To the extent the undersigned has any interest in or lien
on Borrower's Personal Property, the undersigned hereby subordinates such interest or lien to
the security interest which the Bank now has or may hereafter acquire in Borrower's Personal
Property.
3. The undersigned consents to the Bank, its agents, employees and invitees entering upon the
Real Property for the purpose of removing Borrower's Personal Property; provided, however, that
the Bank has sent Notice to the Landlord and Landlord's agent is permitted to be present during
the removal of Borrower's Personal Property, and Bank shall repair any physical damage to the
Real Property caused by its removal of the Personal Property.
4. The Bank shall and does hereby indemnify, defend and hold harmless the undersigned against
and from any and all claims, demands, losses, liabilities, obligations, suits, damages, penalties,
costs, charges and expenses, including, without limitation, reasonable - • A- s' fees and other
EXHIBIT
Page 1 of 6 • I i
professional fees (if and to the extent permitted by law), that may be imposed upon, incurred by,
or asserted against the undersigned or the Real Property, which arise from the Bank's entry upon
the Real Property or its efforts to protect, control, take control of or dispose of Borrower's
Personal Property; provided, however, that the Bank shall not indemnify the undersigned for
losses resulting directly from the undersigned's breach of this Agreement, gross negligence or
intentional misconduct.
5. The Bank agrees to provide Landlord with copies of all notices of default for any default by
Borrower under the Loan Documents, and shall permit the City of Miami Beach, at its sole
option and discretion (and without an obligation to do so), totcure any defaults under the Loan
Documents within thirty (30) days written notice ("Notice,)yof said default.
:fit :
6. All notices to the Bank and City of Miami Beach shall tseert-to the following address:
Bank of America, N.A. <•'m:::, I.=
Doc Retention :r4 ' '''="5:;:=:::,..
NC1-001-05-13 ~' "..
One Independence Center 4
101 North Tryon St, Charlotte, NC 28255-0001 -f Y .°
' 1-k. ; s
City of Miami Beach r.-_...- l,,'
1700 Convention Center Drive w. '- {,
Miami Beach, Florida 33139
4.* ::
Attention: City Manager = °' '4
With a copy to.' � I '*; ::; -':
- i,: os-
City of Miami Beacfav:. ._,
::::,:,...,%.,
1700-Convention Cener;Drive- -.:,;,::::: £_„
".. 'X::kN..,% ='•::,w-1\- • "SS:'
Miami=Beaeh .Florida 33139x. ". t;W .i.k?
;:Attention: City Attorney '71:11.k.. ''''4,134:,:...,- '
a,
Neither Borrower nor the Bank,shall be allowed to conduct any public or liquidation sale in, on or about
the Premises rthe Real Property without thundersigned's prior written consent, which may be granted
or denied in the undersigned's sole discretion.
--ter
Except to thent that any law of the United States may apply, this Agreement shall be
governed and interpreted'according to the laws of Florida, without regard to any choice of law, rules or
principles to the contrary.W he exclusive venue for any litigation arising out of this Agreement shall be
Miami-Dade County, Florida, ifin State Court, and the U.S. District Court, Southern District of Florida, if in
Federal Court. Nothing in this paragraph shall be construed to limit or otherwise affect any rights or
remedies of the Bank under federal law.
Page 2 of 6
Dated: July 13, 2016
ATTEST: CITY OF MIAMI BEACH, FLORIDA
By: <_ -x
City Clerk Print Name: - w.
:Title: +• I7.}w r
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ACKNOWLEDGED AND AGREED TO TherBank: : ;.:-
BANKOF AMERICA, N.A. •:� `-
a national bankingrassociation <v "_
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Page 3of6
Exhibit A
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Exhibit B
Security Documents
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Page 5 of 6
Exhibit A
Lease
(See Attached)
fri 0 V71. e
LEASE AGREEMENT
THIS LEASE AGREEMENT(this"Lease")is made and entered into this 9th day of February,
2006(the"Effective Date"),by and between the CITY OF MIAMI BEACH,a Florida municipal
corporation ("City" or"Landlord"), and MIAMI CITY BALLET, INC, a Florida not-for-profit
corporation("Tenant").
1. Leased Premises. Landlord,in order to create a significant educational and cultural
facility for the use and enjoyment of the general public and for and in consideration of the covenants,.
conditions and agreements to be kept and performed by Tenant,hereby leases, lets and demises to
Tenant,and Tenant hereby leases and hires from Landlord,those certain premises,located in the City
of Miami Beach,Florida, and more fully described as follows:
the building located at 2200 Liberty Avenue,Miami Beach,Florida,
encompassing approximately Sixty Three Thousand(63,000)square
feet,together with all improvements and fixtures located therein(the
"Building") (the Building and all improvements and fixtures are
hereinafter collectively referred to as the"Leased Premises"). The
Building is located on that certain parcel of real property legally
described on Exhibit A attached hereto and made a part hereof(the
"Land");provided,however, the Land does not constitute a part of
the Leased Premises and no lease rights or other rights in and to the
Land are granted to Tenant pursuant to this Lease.
2. Term.
. 2.1. Initial Term. The initial term of this Lease shall be forty(40)years and sixty-
three(63)days(the"Initial Term")commencing on February 9,2006(the"Commencement Date")
and ending on April 12, 2046 (the"Expiration Date").
2.2. Renewal Option. Landlord shall provide Tenant four separate options(each,a
"Renewal Option")to extend the term of this Lease for additional term(s)(each,a"Renewal Term")
of fifteen(15)years each(as to each of the first three Renewal Terms)and one(1)additional term of
fourteen (14)years (as to the fourth Renewal Term),under the same terms and conditions of this
Lease as are applicable during the Initial Term;provided,however, each Renewal Option shall be
available only if Tenant has satisfied the Renewal Conditions as specified in Section 2.3 below.
Tenant shall exercise a Renewal Option by delivering written notice of such exercise to Landlord not
more than twenty-four(24) months norss than twelve (12) months prior to the end of the then
current Lease Term. If a Renewal Option is properly exercised by Tenant, the Renewal Term shall
commence at the expiration of then current Term of the Lease and shall expire at the end of fifteen
(15) years thereafter (fourteen (14) years in the case of the last Renewal Term). If Tenant is not
entitled to,or fails to,timely exercise a Renewal Option,Tenant shall have no further rights to renew
the Term of this Lease. (The Initial Term,together with any Renewal Term,is sometimes hereinafter
referred to collectively as the"Term").
2.3. Renewal Conditions. Tenant shall not be entitled to exercise.a Renewal
Option at any time when(a)Tenant is in default under any provisions of this Lease,or(b)Tenant has
ceased to operate as a not-for-profit regional ballet company with a full schedule of performances.
Any attempt by Tenant to exercise a Renewal Option during the occurrence of any event described in
(a) or(b)shall be void and of no force or effect. If Tenant properly exercises a Renewal Option but
any event described in(a)or (b) exists at the time the Renewal Term would otherwise commence,
Landlord may at its option declare the exercise of the Renewal Option void,in which case the Lease
shall terminate:as if the Renewal Option had not been exercised.
3. Rent.
•
3.1. Base Rent. For the Term of the Lease,Tenant shall pay Landlord a nominal.
annual rent for the Leased Premises of One.Dollar($1.00)(the`Base Rent"),which shall be payable
in advance without demand,commencing on the Commencement Date and thereafter on the first day
of each Lease Year. "Lease Year"shall mean each consecutive twelve(12)calendar month period of
the Initial Term, and of each Renewal Term, if applicable, commencing on the Commencement
Date;provided,however,that the first Lease Year shall include the partial month of February.2006
plus the following twelve(12)calendar months..The Base Rent and all other amounts due hereunder
shall be paid to Landlord in legal tender of the United States ofAmerica at the Office of Landlord
designated in Section 4 or at such other place as Landlord shall from:time:to time designate by notice
in writing.
3.2. Additional Rent. In addition:.to the Base Rent as Set forth in Section 3.1,
Tenant shall also pay to Landlord as Additional Rent the following:
3:2.1. Taxes;Impositions. Tenant shall be responsible for all Property Tax
Payments, Taxes and Impositions (as such terms are hereafter defined). The parties
anticipate that the Building is tax exempt; however, in the event that any Property Tax
Payment or any Imposition is required in connection with the Leased Premises,Tenant shall
be solely responsible for such payment.
3.2:2. Operating Expenses. Tenant shall pay all costs and expenses'related to
the ownership, maintenance and operation of the Leased Premises except as otherwise
specifically provided herein (thereby leaving all rents owed by Tenant hereunder as an
absolutely net return to Landlord).
3.2.3. Contributions to Fund. Tenant shall pay as and when due all
contributions required by Section 6.1.
3.2.4. Other Amounts. Tenant shall also pay when due all other amounts
required by this.Lease.
Tenant shall pay all Base.Rent and Additional Rent,and other charges and expenses
in connection with:the Leased Premises throughout the Term,without abatement,deduction
or setoff:
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445940 8.DOC
3.3. Sales Tax. Tenant shall also pay all applicable sales and use tax now or
• hereafter prescribed by state, federal or local law, concurrent-with any payment due hereunder by
Tenant.
4. Location for Payments. All rents and other payments due hereunder shall be paid to
Landlord at following address:
City of Miami Beach
Finance Department.
do Revenue Supervisor
1700 Convention Center Drive
Miami Beach,Florida 33139
5.. Use and Possession of Leased Premises.
5.1. Permitted Uses: Tenant shall use the Leased Premises solely and exclusively
as the headquarters for its not-for-profit regional ballet company, Such uses shall include only the
following(the'Permitted Uses"):
(i) dance.studio;
(ii) dance school;
(iii) dance.museum;
(iv) ,practice rooms;
(v) performance halls;
(vi) Tenant's administrative offices;
(vii) as uses ancillary to those specified in(i)-(vi) above, a cafeteria for
Tenant's employees and°a small café;
(viii) as ancillary uses,from time to..tiine,as a site for receptions and other
similar events;
(ix) as an ancillary use, from time to time as a site for filming.
commercials,photo shoots,orchestra and other rehearsals for a'fee,
as a means of producing income to support Tenant's regional ballet
company;
(x) as ancillary uses,for Miami City Ballet's wardrobe shop,wardrobe
storage area and production:offices; and
(xi) as ancillary uses from time to time, for alternative type of classes
including yoga,martial arts and other related exercise classes.
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445940 8.DOC
•
No other uses "shall be permitted without'the prior written approval'of Landlord (acting by and
through the City Manager), which approval may be granted. or withheld in Landlord's sole and
absolute discretion. Any such other use which Landlord approves must,however,be in accordance
with (i) the Articles of Incorporation and other charter documents of Tenant, (ii) all laws and
regulations applicable to not-for-profit entities, and(iii)all ad valorem tax exempt uses ofproperty
under Chapter 196,Florida Statutes.
5.2. Other Uses Prohibited. The Leased Premises shall be used by Tenant during
the Term of this Lease only for the Permitted Uses specified in Section 5.1,and for the purposes
specified in Section 33 below, and for no other purposes or uses whatsoever. The Leased Premises
shall never be used for a for-profit business or enterprise (except, however;:that (i) those uses
contemplated tinder Section 5:1(viii) may involve for-profit entities, and (ii) the café which is a
Permitted Use under Section 5.1 may be a for-profit entity so long as Landlord, acting by and.
through the City Manager,has approved the cafe operator, in writing,prior to commencement:of
such use). Tenant will not make or permit any use of the Leased Premises that-directly or indirectly
is prohibited by law,Ordinance or government regulation or that may be dangerous to life,limb or
property. Tenant may not commit waste on the Leased Premises,use the Leased Premises for any
illegal purpose, commit a nuisance on the Leased.Premises, or allow any toxic, hazardous or
dangerous substance to be brought into the Leased Premises or stored therein (other than small
quantities of materials customarily-used in the operation of regional ballet facilities,which Shall be
• used and stored in compliance with applicable law). In the event that Tenant uses. the Leased
Premises for any purposes not expressly permitted herein,then Landlord may declare this Lease in
default and in addition to all other remedies available to Landlord restrain such improper use by
• injunction or other legal action with or without notice,to Tenant.
6. Financial Covenants.
•
6.1. Establishment and Use ofFund;Contributions. To help pay the cost of certain
capital repairs and replacements and to pay for:certain specified maintenance:contracts,Tenant shall
pay, as Additional Rent, annual contributions to a fund (the "Fund") to be held and disbursed by
Landlord pursuant to the provisions of this Section 6.1.
The annual contribution shall be Ninety Thousand and 00/100 Dollars($90,000)for each
of the first three(3) Lease Years but shall be increased each Lease Year thereafter as provided in
Sections 6.1.1 and 6.12 below. All disbursements from the Fund shall be subject to the approval of
the City Manager. The.Fund shall be divided into two Sub-Accounts (a Capital Sub-Account
pursuant to section 6:1.1 below and a Maintenance Sub-Account pursuant to Section 6.1.2 below).
Each.Sub-Account shall be established, held, and disbursed as hereafter provided. Each Sub-
Account shall be held in an interest-bearing bank account,established by Landlord with all interest
being added to, and constituting a part of,the applicable Sub-Account.
6.1.1. Capital Sub-Account. For each of the first three Lease Years,Tenant
shall pay an annual amount of$47,500 to Landlord to be placed in the Capital Sub-Account;
provided,however,as an accommodation to.Tenant,Landlord agrees that all such payments
(in the aggregate amount of$142,500)shall be deferred and paid(without interest)in equal
annual installments of$3,852.00 each,which shall be due and payable in full on the first day
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445940 B.DOC
of'each and every April during the remaining thirty-seven years of the forty,year Initial,Term.
All such installments of the deferred amount shall be in addition to the annual contributions
to. be paid by Tenant to the Capital Sub-Account for the fourth Lease Year and each
succeeding Lease Year.
Commencing With the fourth Lease Year,,the required annual contribution to
the Capital Sub-Account of$47,500 (subject'to increases,as herein provided)shall be due
and payable in four equal quarterly installments-of$11,875`each, which shall be due and
payable on the first day of each April, July, October, and January of each.Lease Year
Amounts in the Capital Sub-Account shall be disbursed from time to time by Landlord to pay
for such capital repairs and replacements as Landlord shall approve. From time to time,in
Landlord's sole discretion,the annual contribution to be paid by Tenant to the Capital Sub-
Account shall be adjusted to equal(i) the replacement cost for the capital repair/replacement
item(s)being reserved for, escalated to reflect the anticipated replacement cost atthe end of
the useful life of such items divided by (ii) the useful life of such items, Landlord shall
notify Tenant of the amount and effective date of each;iricrease with such increase to be
effective no sooner than three (3) months after notice and Tenant shall thereafter pay the
increased annual contributions in quarterly installments. In no event' shall the annual
contribution to the Capital Sub-Account be less than$47;500.
6.1.2. Maintenance.Sub-Account. For each of the first three Lease Years
during the Tenn,Tenant shall also pay an annual amount Of$42,500 to Landlord to be placed
{ in a Maintenance Sub-Account; provided, however, as an accommodation to Tenant
Landlord agrees that all such payments in the aggregate amount of$127,500 shall be deferred
and paid (without interest) owed for the first three. (3) Lease Years in equal annual
installments of$3,445.95 each,which shall be due and payable in full on the first day of each
and every April during the remaining thirty-seven'(37) years of the forty (40) year Initial
Term, All such deferred payments shall be in addition to the annual contribution to be paid
by Tenant to the Maintenance Sub-Account.
Commencing with the fourth Lease Year,the required annual contribution to the
Maintenance:Sub-Account of$42,500(subject to increases as herein provided)shall be due
and payable in twelve(12)equal installments'on the first day of each and every during
each Lease Year. The Maintenance Sub-Account shall be applied towards monthly payments
of amounts due under maintenance contracts for the following items only (the `Required
Items"):: HVAC, elevator, fire alarm, roof, security alarm and fire protection systems.
Tenant shall at all times:during the Term enter into and maintain in effect a maintenance
contract(each,a"Maintenance Contract") for each of the Required Items with a qualified,
reputable and licensed company approved by City Manager and which shall be in forth and
substance approved by City Manager,which approval shall not unreasonably be withheld.
Landlord shall make monthly disbursements from the Maintenance Sub-Account to pay
monthly installments due under the Maintenance Contracts upon Tenant's request,
accompanied by such invoices and,other documents as Landlord shall reasonably request: To
the extent that the aggregate amount due under the Maintenance Contracts increases in any
Lease Year,the annual amounts to be paid by Tenant toward"the,Maintenance Sub-Account
shall similarly increase(and the monthly installments to be did by Tenant shall be increased
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445940 S.DOC
accordingly).In no event,however,shall the annual contributions.to the Maintenance Sub-
Account be less than$42,500. In the event Landlord determines that there are excess hinds
in the Maintenance Sub-Account, Landlord may transfer the excess to the Capital Sub-
, Y p
Account.
Nothing in this Section 6.1 shall limit Tenant's obligation to maintain the Leased-Premises as
required by this Lease. The Fund and the Maintenance Contracts are intended only to address
specific items of maintenance and such items are not all-inclusive. Additional work and additional
funds will be required.
6.2. Fiscal Responsibility. Tenant recognizes that it is a material consideration for
Landlord's entering into this Lease and granting the accommodations provided herein that Tenant
shall operate in a fiscally responsible manner throughout the Term in order to assure its continued
existence as a regional ballet company. Accordingly, Tenant agrees to(a) adopt an annual budget
each year pursuant to which projected revenues equal or exceed projected expenses and containing
reasonable contingencies to address unexpected decreases in revenues or increases in expenses;and
• (b) monitor the budget not less than quarterly and if necessary modify operations to achieve a
•
balanced budget for the applicable fiscal year. Landlord recognizes that a significant portion of
Tenant's revenues,:consist of charitable contributions,the ainount of which varies from year to year,
making it difficult for Tenant to accurately determine in advance its revenues for the coming year
Tenant agrees,however,to make reasonable revenue projections in each annual budget based upon
historical. contributions and binding pledges. The quarterly monitoring of the budget and the
adjustment to operations is intended in part to provide a mechanism to alter Tenant's operations and
achieve a,.balanced budget as revenue projections become more dependable during each year.
6.3. Operating Capital Account. Throughout the entire Term of this Lease Tenant
shall maintain.an operating capital account with a financial institution having offices in Miami-Dade
County,Florida (the"Operating Capital Account"). Upon execution of this Lease,the Operating
Capital Account shall be funded in an amount not less than$1,354,906.00. Not later than the end of
the first Lease Year,the Operating Capital Account shall be increased to an amount not less than
$2,000,000("Annual Required Balance"). From time to time during each Lease Year,Tenant may
withdraw'funds from the.Operating Capital Account for the sole purpose of paying the costs of
operating the ballet company and the Leased Promises. The parties recognize that from time to time
the Operating Capital Account will be reduced below the.Annual Required Balance but Tenant
agrees,however,that at some point during each Lease Year,Tenant shall increase the balance in the
account to an amount equal to or.in excess of the Annual Required Balance. At Landlord's request
• Tenant shall provide Landlord with such financial statements and information as Landlord may
reasonably request,including evidence of the balance of the Operating Capital Account. Tenant.
further covenants that it shall not borrow funds for the purpose of achieving the Annual Required
Balance in the Operating Capital Account,
7. Improvements.
7.1. Required Approvals;Procedures. Subject to Landlord's prior written consent
which may be granted or withheld at Landlord's reasonable discretion,Tenant may, at its own cost
and expense, construct or cause to be constructed,any improvements to the Leased Premises which
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4459408 DOC
•
in Tenant's opinion are reasonably necessary for it to carry on the Permitted Use(s) asset forth.in
Section 5 above (the `Improvements"). The plans for the Improvements shall be submitted to
Landlord for Landlord's prior written consent and approval. All permanent(fixed)improvements to
the Leased Premises shall remain the property of Landlord upon termination of the Lease. Upon the
expiration or termination of the Lease for reasons other than Tenant's default,all personal property
and removable trade fixtures maybe removed by Tenant from the Leased Premises without damage,
•
to the. Leased Premises (but flooring:shall not be removed without Landlord's prior written
approval). If such:removal of'personal property or trade fixtures damages,the Leased Premises,
Tenant shall repair,such damage promptly, If Tenant is not entitled,or fails,to remove its personal
property or trade fixtures within ten(10)days after the expiration or termination of;this Lease,then
all such personal property and trade fixtures shall become the property of Landlord, Tenant will not
permit.any liens to attach to the Leased Premises arising from,connected with or related to any work
performed or materials supplied to the Leased Premises(and if any are filed Tenant shall promptly
cause them to be transferred to bond and released as a lien upon the.Leased Premises). Any
construction shall be accomplished through the use of licensed, reputable contractors who are.
approved.by Landlord and who shall provide the following, all of which shall be approved by
Landlord prior to commencement of any work(a)unconditional payment and performance bond
issued by a surety acceptable to Landlord and reflecting Landlord and.Tenant as co-obligees;and(b)
insurance in amounts, form and substance acceptable to Landlord. Any:and all permits, and
approvals (including,but not limited to, any permits and approvals required to be issued by any
governmental or regulatory authorities,including,without limitation,City building permits,and City
land use and zoning board approvals)and/or licenses required for the installation of Improvements
shall be the sole responsibility of Tenant. Prior to commencement of construction,Tenant shall also
provide such additional insurance as Landlord may reasonably require,including,without limitation,
builders' risk:
7.2. Exceptions. The above requirements for submission of plans and the use of
• specific contractors shall not apply to maintenance, repairs, or other Improvements which do not
exceed$1,000 so long as such maintenance,repairs or other Improvements are not structural and not
visible from the exterior of the Leased Premises and are permitted by all applicable laws.
8. :Landlord's Right of Entry.
8.1. Entry. Landlord and its authorized agents shall have.the right,to enter the
Leased Premises at all times for the purpose of inspecting the Leased Premises,preventing waste,
making such repairs as Landlord may deem necessary and for the purpose of preventing fire,theft;or
vandalism. Landlord agrees that,if possible,it shall provide advance written notice.of such entry to
Tenant;unless the need to enter the Leased Premises is an emergency,in Landlord's opinion,which
if not immediately addressed could cause property damage, loss of life or limb, or other injury to
persons. Nothing contained herein shall imply any duty on the part of Landlord to do any work
required to be performed by Tenant under this Lease,and the performance thereof by Landlord shall
not constitute_a,waiver of any default by Tenant.
8.2. Master Key;Forcible.Entry. If Tenant is not present to open and provide entry
into the Leased Premises at anytime and for any reason, and such entry is necessary or permissible
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445940_8.00C
•
as contemplated by-Section.8.1,Landlord,or its agents,may enter the Leased Premises with a master
key or by force,without rendering Landlord or such agents liable in connection therewith.
8.3: Duplicate Keys. Tenant agrees to furnish Landlord.on the Effective Date
duplicate keys to all locks in the Leased Premises,including exterior and interior doors. Tenant shall
not change the locks to the Leased Premises without the prior written consent of Landlord,which
shall not be unreasonably withheld or delayed;and in the event such consent is given,Tenant shall
furnish Landlord with duplicate keys to said locks in advance.of their installation.
9. Tenant's Insurance.
9.1. Coverage. Tenant shall, at its sole cost and expense, comply with all •
insurance requirements from time to time established by.Landlord.(including, without limitation,
requirements as to coverage,amounts and insurer). Prior to the Coniniencement Date,Tenant shall
provide proof of the following insurance coverage for approval by the City's Risk Manager:
9.1.1. Comprehensive General Liability in an amount not less than
$1,000;000 per occurrence for bodily injury and property damage;
9.1.2. Comprehensive Public Liability Insurance in an amount not less than
.$1,000,000 per occurrence for bodily injury, death and property damage;
9.1.3. Excess Liability Coverage with limits not'less than$2,000,000; and
9.1.4. Workers Compensation and Employers Liability coverage in
accordance with.Florida statutory requirements.
9.2. Form. All insurance policies hereunder shall name the City of Miami Beach
and the Miami Beach Redevelopment Agency (so long as it remains in existence) as additional
insured parties. Proof of coverage must be provided by submitting original certificates of insurance
to Landlord. All policies shall provide thirty(30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager at 1700 Convention Center Drive,Miami Beach,Florida,
33139. All insurance policies shall be issued by companies authorized to do business under the laws
of the State of Florida.and shall have a rating of B+:VI or better per A.M.Bests Key Rating Guide,
latest edition. All such certificates are subject to the approval ofthe City's Risk Manager as to-form
and content.
10. Taxes and Impositions.
10.1. Taxes. The term "Taxes" shall mean (i) all real or personal property taxes,
assessments, and special assessments of any kind which may be imposed upon the Land or the
Leased Premises, and (ii) any expenses incurred by Landlord in obtaining:a reduction of any such
taxes or assessments. Landlord and Tenant shall cooperate in submitting and pursuing any
application,petition,or request required or permissible in order to preserve the tax exempt status for
the Leased Premises. Tenant shall pay any and all costs and expenses in connection with any efforts
to obtain or maintain tax exempt status for the Leased Premises. Notwithstanding the foregoing,
however,in the event that at any time during the Term of this Lease,the Land,the Building, or the
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Leased Premises become subject to the payment of Taxes,Tenant shall be exclusively responsible
for all such payments.
10.2. Impositions. For the Term of this Lease, Tenant agrees to pay all of the
:following items ("Impositions") as apply to the.Leased Premises:
(i) all sales and use,taxes and excise taxes relating to the occupancy of
the Leased Premises or the Base Rent or the Additional Rent;
(ii) water and sewer rents,rates and charges;
(iii) excises;
(iv) levies;
(v) license and permit fees; .
(vi) service charges or assessments, including,but not limited to, those
charges incurred in connection with police protection,fire protection,
• street and road construction,maintenance,lighting and landscaping,
sanitation and water supply;
(vii) certified special assessment liens;
(viii) fines,penalties,late charges and other similar governmental charges
applicable to the foregoing and any interest or costs with respect
thereto; and
(ix) all other governmental levies,fees,rents and charges,and any interest
that would:be an encumbrance or lien on (i) the Land,the Leased
Premises and the sidewalks, streets or roadways in front of or
adjoining the Land, (ii) any personal property, equipment or other
facility used in the operation of the Leased Premises,or(iii)the rent
and other amounts due hereunder.
'10.3. Due Dates. During the Term,Tenant shall pay all Impositions,or installments
thereof,prior to the date on which any fine,penalty,interest or cost may be added thereto or imposed
by for the non-payment thereof;provided,however,that if,by law,any"hiposition may, at the
option of the taxpayer;be paid in installments (whether or not interest will accrue on the unpaid
balance of such Imposition),Tenant may,with Landlord's prior written consent,exercise'the option
to pay thesame in such installments,provided that all Such installment payments"relating to periods
prior to the end of the Term are required to be made prior to the end of the Term.
10:4. Receipts. Upon the request of Landlord, Tenant shall-furnish to Landlord,
within-thirty (30) days after the date an Imposition is due and payable under this Lease, official
receipts. of the appropriate authority or other evidence reasonably "satisfactory to Landlord,
evidencing the payment thereof.
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445940_8.DOG
11. Assignment and Subletting.
11.1. Required Consent.• Tenant shall not have the right to assign:this Lease or
sublet the Leased Premises or grant any other occupancy rights to third parties;in whole or in part,
without the prior written consent of Landlord in each case;_provided,however;Tenant shall not be
required to obtain Landlord's priorwritten consent for periodic short term uses pursuant to Section ,
5.1(viii)above. Landlord may grant or withhold its:consentin its sole and absolute discretion. Any
assignment or sublease will not release Tenant from any of its obligations under this.Lease.
11.2. Continuing Requirements: Any consent by Landlord to any act of assignment
or subletting shall apply only to the specific transaction thereby authorized. Such consent shall not
be construed as a waiver of the duty of Tenant,its legal representatives or assigns,to obtain from
Landlord consent to any other or subsequent assignment or sublet,or as modifying or limiting the
rights of Landlord under the foregoing covenants of Tenant not to assign without such consent. If
Landlord elects to grant its consent to any such assignment, sublease or occupancy rights; the
Permitted Uses as specified in Section'5.1 shall remain the same and no other use shall be permitted
without.Landlord's prior written consent.
11.3. Effect of Violations. Any violation of the provisions,°of this Lease,whether by
act or omission,by assignee,sub-tenant or occupant,shall be deemed a violation of such provision
• by Tenant,it being the intention and meaning of the parties hereto,that Tenant shall assume and be
liable to Landlord for any and all acts and omissions of any and all assignees, sub tenants or.
occupants. If the Lease is assigned,Landlord.may and is hereby empowered to collect rent from the
• assignee. If the Leased Premises or any part thereof are underlet or occupied by any person other
than Tenant, then Landlord, in the event of Tenant's default, may, and is hereby empowered to,
collect rent from the sub-tenant or occupants. In either of such.events,Landlord may apply the net
amount received by it for rent or other amounts herein reserved, and no such collection shall be
deemed a waiver of the covenant herein against assignment or the acceptance of the assignee,
subtenant, occupant, or a release of Tenant from the further performance of the covenants herein
contained on the part of Tenant. •
12: Maintenance and Repair.
12.1. Tenant's Capital Maintenance Obligations. Subject to the terms of this
Section 12,Tenant shall be responsible for major capital repairs and replacements:in connection with
the Leased Premises, including,but not limited to, capital repairs and replacements to the roof,
;foundation,exterior,walls,elevators,HVAC,plumbing,electrical and fire protection systems. In the
event of any repair or replacement under this Section 12.1,Landlord shall either(a)elect to perform
the work or arrange for such work to be performed on behalf of Landlord, or(b) allow Tenant to
perform such work with Landlord's prior approval. All costs of such capital repairs and
replacements shall be paid from the Capital Sub-Account. All costs of such capital repairs and
replacements which exceed the amount of monies in the Capital Sub-Account shall be paid by
Tenant(or if Landlord has advanced the funds,shall be promptly reimbursed,by Tenant to Landlord).
12.2. Tenant's Non-Capital Maintenance Obligations, Tenant shall maintain the
Leased Premises,in good order,repair and appearance. Tenant shall be responsible for the day-to-
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day maintenance and repairs of the Leased Premises, including, without limitation, all interior
maintenance,housekeeping,non-capital repairs and garbage and waste disposal. Without limiting
the generality of the foregoing,Tenant shall at all times keep in full force and effect the Maintenance
Contracts for such purposes as are specified in Section 6.1.2 of this Lease. Tenant shall be entitled
to disbursements from the Maintenance Sub-Account of the Fund towards the costs thereof as and
when specified in Section 6.1.2. In the event Tenant,its contractors,agents, employees or invitees
cause any damage to the Leased Premises,Tenant shall at its sole cost be responsible for,and shall
promptly cause the repair of, all such damage (regardless of whether such repairs are capital or
structural)caused by the act or omission of Tenant,its agents,contractors,employees or invitees. If
Tenant or its contractors,agents,employees,or invitees cause any rubbish to be placed upon the land
surrounding the Leased Premises Tenant shall cause such rubbish to be promptly removed. Tenant
shall prevent graffiti from being placed on the interior and exterior of the Leased Premises and if any
graffiti is placed thereon,Tenant shall have it promptly removed. Tenant shall permit Landlord to
inspect the Leased Premises at all reasonable times,and shall implement all reasonable suggestions
of Landlord as to the maintenance and repair of the Leased Premises.
12.3. Tenant shall be solely responsible for(a)the cost of all maintenance,repairs,
and replacements under Section 12.2 to the extent such costs exceed the monies contained in the
Maintenance Sub-Account of the Fund and(b)the cost of all capital repairs and replacements under
Section 12.1 to the extent such costs exceed the monies contained in the Capital Sub-Account of the
Fund.
12.4. AS-IS. LANDLORD AND TENANT AGREE AND ACKNOWLEDGE
THAT THE LEASED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS,"
"WHERE-IS" CONDITION AND WITHOUT WARRANTY OR REPRESENTATION,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN..
12.5. Renovations and Repairs. It shall be Tenant's obligation to insure that any
renovations,repairs and/or Improvements made by Tenant to the Leased Premises comply with all
applicable building codes and life safety codes of all governmental authorities having jurisdiction.
12.6. Capital Improvements. Landlord agrees to expend up to $740,000 to fund
certain major capital replacements and repairs in connection with the Leased Premises,which may
consist of:roof replacement in an amount not to exceed$500,000;five rooftop air conditioning units
in an amount not to exceed $175,000, and pressure-cleaning, waterproofing, and painting of the
Building exterior in an amount not to exceed$65,000.
13. Encumbrances. Tenant shall not directly or indirectly create or allow to remain,and
will promptly discharge at its expense,any lien,encumbrance,attachment,title retention agreement
or claim upon the Leased Premises or any attachment,levy, claim or encumbrance with respect to
any rent or other obligations required to be paid under this Lease,not including,however: (a)this
Lease; (b)utility easements and road rights-of-way in the customary form(i)provided the same do
not adversely affect the intended use of the Leased Premises(including the Improvements) and do
not create an adverse effect on the value of the Leased Premises or(ii)which result solely from the
action or inaction of Landlord; (c) zoning and building laws or ordinances,provided they do not
prohibit the use of the Leased Premises for the Permitted Uses and so long as the Leased Premises
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are in compliance with same;and(d)such encumbrances as are subsequently consented to in writing
by Landlord.
14. Tenant Responsibilities for Utilities. Tenant is solely, responsible for and shall
promptly pay when due all charges for water,gas,electricity,sewer, cable,telephone and any other
utility service provided to the Leased Premises,including,without limitation, all hook-up fees and
impact fees. In addition to other rights.and remedies hereinafter reserved to Landlord, upon the
failure of Tenant to pay for such utility services•when due, Landlord may elect,to pay the same
whereby Tenant agrees to promptly reimburse Landlord upon demand. In no event,however,shall
Landlord be liable for an interruption or failure in the supply of any utility services to the Leased
Premises.
15. Governmental Regulations. Tenant covenants and agrees to fulfil and comply with
all statutes, ordinances, rules, orders, regulations, and requirements of:all governmental bodies,
including,but not limited to,federal,state,county,and city governments,and all of their.departments
and bureaus as applicable to the Leased Premises. Tenant shall also comply with and fulfill all rules,
orders,and regulations and all insurance company:requirements in connection With the prevention of
fire or other casualty or protection from hurricanes and storms,at Tenant's sole cost and expense;
provided, however, that.Landlord will be responsible for the costs (but may use the Capital Sub-
Account of the Fund)to pay for capital improvements required to be made to the Building in order to
comply with such rules,orders or regulations unless.the capital improvements are required as a result
of Tenant's specific use of the Leased Premises (in_which case Tenant shall pay for all such
improvements). Tenant shall pay all cost,.expenses,claims;fines,penalties,and damages that may
be imposed because of the failure of Tenant to comply with this Section 15,and shall indemnify and
hold Landlord harmless from all liability arising from.any non-compliance.
16. Mechanic's Liens. Tenant shall not permit any mechanics,laborers,or materialinen's
liens tb be filed against the Leased Premises for,any labor or materials furnished,or'claimed to have
been furnished,to the Leased Premises for or on behalf of Tenant. Any lien for work performed or
materials or services provided for or on behalf of Tenant shall attach solely to Tenant's leasehold
estate under this Lease and shall not attach to Landlord's interest in the Leased Premises or the Land:
In the event any mechanic's or material-lien's lien is filed against the Leased Premises,Tenant shall
within ten(10)days after notice from Landlord cause such lien to be paid and satisfied of record or
shall cause it to be transferred to bond pursuant to Florida Statutes Chapter 713 and removed as a
lien from the Leased Premises.'Tenant will immediately pay any judgment rendered with all proper
cost and charges and shall have such lien released or judgment:satisfied at Tenant's sole expense.
•
17. Condemnation.
• 17.1. Total Taking. If all or substantially all of the Leased Premises,or such portion
of the Leased Premises or the Building shall be permanently taken or condemned for any public or
quasi-public purpose as would render, in Landlord's reasonable judgment, the continuance of
Tenant's business from the Leased Premises impracticable,then this,Lease shall forthwith cease and
terminate;
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17.2. Partial Taking. If less than all or substantially'all of the Leased Premises or
any portion of the Building shall be permanently taken or condemned for any public or quasi-public
purpose,then Landlord shall have the option of terminating this Lease by providing written notice to
Tenant within ten (10) days from the date of such condemnation or taking. Tenant shall also be
entitled to terminate this Lease,by written notice to Landlord within ten(10) days after such notice
of taking,if the remaining portion of the Leased Premises is not suitable for Tenant's continued use
and operation in accordance with the terms of this Lease.
17.3. Effect on Lease. If this Lease is terminated as provided in Sections.17.1 or
17.2 above,this Lease shall cease and expire as if the date of transfer of possession of the Leased.
Premises,the Building,or any portion thereof,were the expiration date. In the event that this Lease
is not terminated by Landlord or Tenant as aforesaid,Tenant shall pay the Base Rent up to the date of
transfer of possession of such portion of the Leased Premises so taken or condemned and this Lease
shall thereupon cease and terminate with respect to such,portion of the Leased Premises so taken or
condemned as if the date of transfer of possession of the Leased Premises were the expiration date
relating to such portion of the Leased Premises.
• 17.4. Temporary Taking: In the event of any temporary taking or condemnation for
any public or quasi-public purpose of the Leased Premises or any portion thereof,this Lease shall
continue in full force and effect except that Base Rental and Additional Rental shall be adjusted on a
pro rata basis for the period of time that the Leased Premises are so taken as of the.date of transfer of
possession of the Leased Premises and Landlord shall be under no obligation to make any repairs or
alterations.
17.5. Condemnation Award. In the event of any condemnation or taking of the
Leased Premises,Tenant hereby assigns to Landlord the value of all or any portion of the unexpired
term of the Lease and all leasehold improvements and Tenant may not assert a claim for a
condemnation award therefore;provided,however,Tenant may pursue a separate attempt to recover
an award or compensation against or from the condemning authority for the value-of any fixtures,
furniture,furnishings and other personal property which were paid for by Tenant subsequent to the
Effective Date and not by Landlord and which were condemned but which under the.terms of this
Lease,Tenant is permitted to remove at the end of the term of this Lease.
18. Default by Tenant. The following events shall each constitute an"Event of Default"
under this Lease:
18.1. Any failure of Tenant to pay any Base Rent, Additional Rent, or any
installment thereof as and when due and Tenant does not cure such failure within thirty(30) days
after receipt of written notice from.Landlord of Tenant's failure to make any such payment on its due
date;
18.2. Tenant fails to make any other payment provided for under this Lease as and
when due and Tenant does not cure such failure within thirty(30)days after receipt of written notice
from Landlord;
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445940_B.DOC
18.3. Tenant deserts,abandons,or vacates the Leased Premises,:or suffers this Lease
to be taken under any writ of execution;
18.4. Tenant fails to comply with any term, provision, condition or covenant
contained herein,and such failure is not cured within sixty(60)days after receipt,of written notice
from Landlord;provided,however,if such failure is curable but is not reasonably capable of being
cured within.sixty(60) days, Tenant shall not be deemed in default.if Tenant commences curative
action within thirty(30)days after receipt of notice of default,thereafter diligently pursues curative
action, and effects the cure within one hundred eighty (180) days after receipt of notice of the
default;
18.5. Any notice of violation is issued by any governmental.authority of competent
jurisdiction with respect to Tenant or the Leased Premises and such violation remains uncured for a
period of thirty(30)days from its issuance;
1816. If(i)any petition is filed by or against Tenant under any section or chapter of
the Bankruptcy:Act,as amended,which remains pending for more than sixty(60)days,or any other
proceedings now or hereafter authorized by the laws of the United States or of any`state for the
purpose of discharging or extending the time for payment of debts,or(ii)Tenant becomes insolvent
or files any debtor proceedings, or(iii)Tenant makes an assignment for the benefit of creditors,or
(iv) a receiver is appointed for Tenant by any court'and is not dissolved within thirty (30) days .
thereafter,or(v)the leasehold interest under this Lease is levied under execution;or(vi)Tenant fails
to cause the Operating Capital Account to equal or exceed the Annual Required Balance in any two
consecutive Lease Years;
18.7. If on or before May 15,2006,Tenant does not appoint the City Manager and
the Chief Financial Officer of the City of Miami Beach as voting members of Tenant's Board of
Trustees (and cause Tenant's By-laws to be,appropriately amended), or if at any time thereafter
Tenant does not allow the City Manager and the Chief Financial Officer of the City of Miami Beach
to full voting members of Tenant's.Board of Trustees;
18.8. If Tenant shall at any time cease to be a not-for-profit corporation;
• 18.9. If Tenant shall cease for more than 120 days to operate as a regional ballet.
company; or
18.10. If Tenant shall fail to maintain the insurance requirements pursuant to Section
9 herein and Tenant does:not cure such failure within fifteen(15)days after receipt of written notice
from Landlord.
19. Rights on Default. If any of the Events of Default shall occur,Landlord may, at its
option exercise any and all rights and remedies provided under this Lease or otherwise available to
Landlord at law or in equity. Landlord may also institute such proceedings as in its opinion are
necessary to cure such defaults and to compensate Landlord for damages resulting from such defaults
and/or to regain possession of the Leased Premises and Landlord may terminate this Lease by written
notice to Tenant. The terms of this Lease shall terminate upon the date specified in such notice from
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445940 8.DOC
•
Landlord to Tenant as fully and completely as if that date were the expiration.date. On the date so
specified, Tenant shall then quit and surrender the Property to Landlord in accordance with the
provisions of Section 41,but if Tenant shall fail to do so Landlord may,without further notice,and
• without prejudice to any other remedy Landlord may have for possession or arrearages in rent or
• damages for breach of contract, enter upon Leased Premises and expel or remove Tenant and its
effects in accordance with law, without being liable for prosecution or any claim for damages
therefore: Upon the termination of this Lease, all rights and interest of Tenant in and to the Leased
Premises shall cease and terminate and Landlord may,in addition to any other rights and remedies it
may have,retain all sums paid to it by Tenant under this Lease. In:addition to the rights set forth
above, and any other remedies available to it under law or equity,Landlord shall have the right to
pursue any of-.the following:
19.1. Acceleration. Declare the entire amount,of the Base Rent, any Additional
Rent,and any other payment due hereunder(other than the annual contribution to the'Fund for future
• Lease Years),which would become due and payable during the remainder of the term of this Lease
to be due and payable immediately,in which event Tenant agrees to pay the same at once, at the
address of Landlord, as provided in:Section 4; provided, however, that such payment shall not
constitute a penalty,forfeiture,or liquidated damage,but shall merely constitute payment in advance
of the rents for the remainder of said term and such payment shall be considered,construed and taken
to be a debt provable in bankruptcy or receivership. Tenant shall have rib obligation,however,to pay
installments of the Fund for periods subsequent to the termination date of this Lease.
19.2. Reletting. Enter the Leased Premises as the agent of Tenant, by force if
necessary,without being liable to prosecution or any claim for damages therefore,remove Tenant's
property therefrom,and re-let the Leased Premises,or portions thereof,for such terms and upon such
conditions which.Landlord deems,in its sole'discretion,desirable,and to.receive the rents therefor,
and Tenant shall pay Landlord any deficiency that may arise by reason of such re-letting,on demand
at any time and from time to time at the office of Landlord; and for the purpose of re-letting,
Landlord.may(i)make any repairs, changes, alterations or additions in or to said Leased Premises
that may be necessary or convenient; (ii)_pay all costs and expenses therefore from rents resulting
from re-letting; and(iii)Tenant shall pay Landlord any deficiency as aforesaid.
19.3. Personal Property. Take possession of any personal property owned by Tenant
on the Leased Premises and sell the same at public or private sale,and applysame to the payment of
rent due,holding Tenant liable for the deficiency,if any.
19.4. ,Late Payments. Any installments of B ase Rent and Additional Rent accruing.
under the provisions of this Lease which shall not be paid when due shall bear interest at the
,maximum legal rate of interest per annum then prevailing in Florida from the date when the same
was payable by the terms hereof;until the same shall be paid by Tenant. Any failure on Landlord's
behalf to enforce,this Section 19;4 shall not constitute a waiver of this provision with respect to
future accruals of past due rent. No interest will be charged for payments made within five days of
the due date(the"Grace Period"). There will be a late charge of$50.00 for any payments submitted
after the Grace Period.
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19.5. Option of Landlord to Pay. If tenant defaults in making any payment of
monies to any person or for any purpose as maybe required hereunder,Landlord may at its option
pay such expense but Landlord shall not be obligated to do so. If Landlord elects to pay such.
expense,Tenant agrees to promptly reimburse Landlord for the entire amount thereof All monies
payable by Tenant to Landlord hereunder shall constitute Additional Rent hereunder and shall be
Collectable by Landlord from Tenant,and shall be due from Tenant toLandlord on the first day of the
month following the payment of the expense by Landlord.
19.6. Additional Rights and Remedies. In addition to Landlord's rights and
remedies specified herein,Landlord shall also be entitled to exercise any and all other remedies at
law or in:equity: Landlord's failure to promptly exercise any rights granted hereunder shall not
operate to waive or to forfeit such rights.
20. Default by Landlord. The failure of Landlord to perform any of the covenants,
conditions and agreements of the Lease which are to be performed by Landlord and the continuance
of such failure for a period of sixty(60)days after notice thereof in writing from Tenant to Landlord
(which notice shall specify the respects in which Tenant contends that Landlord failed to perform any
such covenant,conditions'and agreements)shall constitute an`Event of Landlord Default'',unless
such default is one which cannot be cured within sixty(60)days and Landlord within such sixty(60)
day period shall have commenced and thereafter shall continue diligently to prosecute all actions
necessary to cure such defaults.
If an Event of Landlord Default shall occur,Tenant shall have the right to pursue any of the
following remedies: (i) the right to_terminate this Lease by giving notice of such election to
Landlord within thirty (30) days of the Event of Landlord Default, whereupon this Lease shall
terminate as of the date of such notice, or(ii)the right to a writ of mandamus,injunction or other
similar relief, available to it under Florida law against Landlord. Tenant agrees and acknowledges
that, to the extent permitted by applicable law, in no event shall Tenant be entitled to damages
• hereunder and any remedies pursued in connection with this Lease shall be subject.to Section 40.
21. Indemnity Against Costs and Charges.
21.1. Costs and Charges. Tenant shall be liable to Landlord for all costs,charges,
expenses,reasonable attorney's fees at all levels,and damages which may be incurred or sustained
by Landlord as a result of Tenant's breach of any of the provisions of thisLease, Any sums due to
Landlord under the provisions of this Lease shall constitute alien-against the interest of Tenant and
the Leased Premises and all of Tenant's property situated thereon to the same extent and on the same
conditions as delinquent rent would constitute a lien on the Leased Premises.
21.2. Attorney's Fees. If Tenant shall at any time be in default hereunder, and if
Landlord shall deem it necessary to engage an attorney to enforce Landlord''s rights and Tenant's
obligations hereunder,Tenant agrees to promptly reimburse Landlord for the reasonable expenses
incurred thereby,including,but not limited to;court costs and reasonable attorney's fees,whether
suit be brought or not and if suit be brought,then Tenant shall be liable for expenses incurred at both
the trial and all.appellate levels.
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•
22. Indemnification Against Claims.
22.1. Certain.Claiins. Landlord shall not be liable to Tenant,its agents, servants,
employees, contractors,customers,or invitees for any damage to person or property caused by any
act,omission,or neglect of Tenant. Without limiting or being limited by any other indemnity in this
Lease,but rather in confirmation and furtherance thereof,Tenant shall indemnify and'save Landlord,
its affiliates,employees and agents harmless from and against any and all losses,damages,liabilities,
claims,liens,costs and expenses(including,but not limited to,court costs,reasonable:attorneys'fees
and litigation expenses at all levels)in connection with injury to or death of any person or damage to
or theft, loss or loss of the use of any property occurring in or about the Leased Premises or the
Building or arising from Tenant's use and occupancy of the Leased Premises,or from the conduct of
its business or from any activity,work,or thing done,permitted or suffered by Tenant in or about the
Leased Premises or the Building,or occasioned in whole Or.in part by any of the following:
22.1.1. An act or omission on the part of Tenant, or any employee,agent,
contractor,invitee,guest, assignee or sub-tenant of Tenant;
22.1.2. Any Misuse,.neglect,or unlawful use of the Le_ased Premises or any
of its facilities by Tenant, or any employee,agent, contractor,invitee,or guest, assignee or
sub-tenant of Tenant, excluding trespassers upon the Leased Premises;•
22.1:3. Any breach, violation,or non-performance of any undertaking of
Tenant under this Lease; or
22.1.4. Any other damage, injury or loss in connection with the use or
occupancy of the Leased Premises by Tenant or anyone holding or claiming to hold through
or under the Lease.
22.2. Repair. Tenant agrees topromptly repair at Tenant's cost all damages to the
Leased Premises or other facilities used in connection therewith,caused by Tenant,its contractors,
agents, employees or invitees.
• 22.3. Defense of Claims. If any claim, action, or proceeding is made or brought
against Landlord by reason of any act or omission of Tenant,its contractors; agents, employees or
invitees,then,upon demand byLandlord,Tenant at its sole cost and expense, shall resist or defend
such claim, action or proceeding on behalf of Landlord, by the attorneys for Tenant's insurance
carrier(if such claim,action,or proceeding is covered by insurance),and otherwise by such attorneys
as Landlord shall approve,which approval shall not be unreasonably withheld. S
23. Signs and Advertising. Except for temporary promotional signage and banners for
Miami City Ballet events which comply with all applicable codes and governmental requirements,
Tenant shall not permit the painting and display of any additional signs, plaques, lettering or
advertising material of anykind on the Leased Premises which did not exist on the Effective Date;
without the prior written consent of Landlord. All additional signage shall comply with any signage
standards established by Landlord(including,without limitation;the City's Naming Ordinance,as
codified in Chapter 82,Article VI,Sections 82-501 through 82-505 of the City Code,if applicable,
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445940 8.DOC
•
and provided that Tenant has not been expressly exempted from the provisions therein), all
applicable building codes; and any other municipal, county, state and federal laws.
Unless Landlord(acting by and through its City Manager)shall otherwise agree in writing,
the Leased Premises shall bear the name"Ophelia&Juan Js.Roca Center"throughout the Term of
this Lease and all existing signage on the exterior or interior of the Leased Premises shall be
maintained throughout the Term. At all times during the Lease Term,Tenant shall comply withthe
City's Naming Ordinance, provided that Tenant,has not been expressly exempted from the
provisions therein.
24. Effect of Conveyance. The term "Landlord" as used in this:Lease means only the
owner of the Land and the Leased Premises on the Effective Date;.so that in the event of any sale of
the Land or Leased Premises,or in the event of a lease of such Land orLeased.Premises,Landlord
shall be and hereby is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement between the parties,or
between the parties and the purchaser at such sale,or the lease of the Building,that the purchaser or
Tenant has assumed and agreed to carry out all.covenants and obligations of Landlord hereunder.
25. Damage to the Leased Premises.
25A. Casualty Damage.
25..1.1. Leased Premises Usable. In the event the Leased Premises shall be
damaged by fire, explosion or any other casualty Or occurrence not due to Tenant's
negligence(hereinafter collectively referred to as the"damaged property"),and such damage
does not render the.Leased Premises untenantable in whole or in part, as determined by
Landlord,in whole or in part, and such damage is covered by Landlord's insurance,if any,
Landlord,shall,as soon as practicable,utilize the insurance proceeds to repair the damaged
property;provided,however,that the Base.Rent and Additional.Rent due hereunder shall not
be abated.
25.1.2. Leased Premises Unusable. In the event the damaged property
renders the'Leased Premises untenantable in whole or in part, as determined by Landlord,
Landlord shall as soon as practicable utilize the insurance proceeds to repair the damaged
property,and the rent shall be abated proportionately as to the portion of the Leased Premises
• rendered untenantable until such time as Tenant may reopen for business after restoration or
repair of the damaged property;.provided,however,that Landlord shall have the right to elect
not to repair or restore the damaged property, and in such event,this Lease.and the tenancy
hereby created shall cease as of the date of said occurrence of damage or casualty,with any
rent to be adjusted as of such date. Notwithstanding the foregoing,in the event(a)Landlord
• elects not to restore or repair the damage;(b)Tenant gives written notice to Landlord within
sixty(60)days of the casualty that Tenant is willing to repair the damage with its own funds;
(c) within six (6) months following. such notice, Tenant proves; to Landlord's sole
satisfaction and discretion, that it has adequate funds immediately available to effect the
repair; and (d)Landlord and Tenant; each acting in its reasonable discretion, agree within
sixty(60)days after.Landlord deems that Tenant has demonstrated that it has adequate funds
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44594D_8.DOC
to effect the repair, to the conditions,timing,plans,procedures,contractors,subcontractors,
disbursement mechanisms and other matters with respect to the repair,then and in that event,
Tenant shall•be entitled to effect the repair with its own funds;provided that Tenant must
complete-any and all repairs and/or restoration no later than eighteen 0,8)months from the
date of Landlord's approval of Tenant's funding capability (as provided in subsection (c)
above).
• 25.2. Other Damage. Landlord shall not be liable or responsible to Tenant for any
loss or damage to anypropertyor person occasioned by theft, fire, act of God,public enemy,riot,
•, strike, insurrection, war, act or omission of.any tenant or occupant of the Leased Premises, any
nuisance or interference caused or created by any tenant or occupant of the Leased.Premises,
requisition or order of governmental body or authority, order or injunction, or any cause
q g dy t3'� ] Y_.
beyond Landlord's reasonable control or, except in the case of the gross negligence or intentional
misconduct.of Landlord, for any damage or inconvenience which may arise through:repair or
alteration of any part of the Leased Premises. Tenant shall notify Landlord of any damage to the
Leased Premises,regardless of the cause of such damage.
26. Waiver of Subrogation Rights. Notwithstandinganything to the contrary contained in
this Lease, Tenant hereby waives any and all rights of recovery, claim, action or cause of action,
against Landlord,its agents;servants, officers or employees,for personal,injury,loss or damage to
business, and loss or damage that may occur to the Leased Premises, the Building or any
improvements thereto or thereon or ariypersonal property of such party therein or thereon by reason
of fire,the elements,or anybther cause insured under any insurance policy maintained by Landlord
or Tenant,as applicable,regardless of cause or origin,including negligence of the other party hereto,
its agents,officers,partners,shareholders,servants or employees,and covenants that no,insurer shall
hold any right of subrogation against such other party. The foregoing waiver shall apply regardless.
of the cause or origin of such claim,including,but not limited to,the negligence of a party, or such
party's agents,officers,employees Or contractors,butshall not apply if it would have the effect;but
only to the extent.of such effect, of invalidating any insurance coverage of Landlord'or Tenant.
Tenant shall obtain any special endorsements, if any, required to evidence compliance'with the
aforementioned waiver.
27. Quiet Eni ovment.Tenant shall have.quiet enjoyment of the Leased Premises•and shall
not be evicted;or disturbed in possession of the Leased Premises by persons claiming by,through or
under Landlord so long as Tenant complies with the terms and conditions of this Lease.
28. Waiver.
28.1. Continuing Rights. It is mutually covenanted and agreed to by the parties
hereto that:the failure of Landlord to insist upon the strict performance of any of the.conditions, -
covenants,terms or provisions of this.Lease,or to exercise any option herein conferred,shall not be
considered or construed as a waiver or relinquishment of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in frill force and effect.
28.2. Receipt of Funds. The receipt of any sum paid by Tenant to Landlord after
breach of any condition, covenant,term or provision herein contained:shall not deemed a waiver
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445940 8.DOC
of such breach,but shall betaken,considered and construed as payment for use and occupancy,and
not as rent,unless such breach is expressly waived by Landlord in writing.
29. Public.Benefits. As prime consideration for the:granting of this L•ease,'Tenant agrees
to comply with, and provide to Landlord the public benefits set forth in Exhibit B.(the `,`Public
Benefits")hereto throughout the Lease Term.
29:1. Continuation of Public Benefits. Tenant acknowledges that the continued
provision of the Public Benefits is a prime consideration for Landlord's granting of this Lease. To
that end,no Public Benefit may be materially altered,suspended,or terminated without Landlord's
prior written consent,which consent will not be unreasonably withheld.
29.2. Request to Change Public Benefits. If Tenant determines,in its reasonable
judgment, that one or more of the Public Benefits cannot be provided because they are either not
financially self-sustaining or.generatingsufficient public interest,Tenant shall provide.Landlord with
a minimum of sixty(60) days prior written notice(a`Benefit,Termination Notice"),which notice
shall:
29.21 set forth the reason that the Benefit can no longer be provided;
29.2.2. include financial documentation in support of the argument that the
Benefit is not:financially feasible or self sustaining of generating sufficient public interest;
29.2.3, provide the date.upon which Tenant intends to cease providing the
Benefit; and
29.2.4. provide at least two(2)alternative Benefits of equal or greater value
• than the Benefit being terminated,_and a`proposed commencement date for the new Benefit.
29.3. Landlord's Review of Request to Change Benefit. Upon Landlord's receipt
and review of a Benefit Termination Notice, Landlord (acting through its City Manager), in its
reasonable discretion,may:
29.3.1. approve Tenant's request to terminate the Public Benefit,and advise
Tenant of Landlord's selection of the new Benefit from the options presented by Tenant, and
thereafter Landlord and Tenant shall amend.the Public Benefits exhibit to.this Lease; or
29.3.2. approve Tenant's request to terminate the Public Benefit,but require
Tenant to.provide additional options for the new Benefit (other than the options provided in the
Benefit Termination Notice),which additional options shall be submitted-to Landlord within thirty
(30)days after Landlord requests the additional options.
29.4. Failure to Agree'on Public Benefit Change. If, after making a diligent, good
faith effort,Landlord and Tenant are unable to agree upon the provision of a new Benefit within one
year after receipt of Tenant's Benefit Termination Notice,then Landlord, at its sole option and
discretion,may declare the Lease in default,pursuant to Section 18 of the Lease.
•
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445940.B.DOC
30. MPAC Performances. During the Term Tenant agrees to perform as a resident
company at the Miami Performing Arts Center("MPAC")located in the City of Miami beginning in
October-2006. Tenant's obligation to perform at the MPAC is subject,however,to the following
conditions:
30.1. MPAC in Operation. Tenant's obligations shall only arise after the MPAC is
open for business and shall continue only during periods in which the MPAC remains in,operation.
30.2. Financial Viability. Landlord will perform an annual evaluation during May
• of each calendar year to determine Tenant's financial success at'MPAC,with the first evaluation to
take`place two years after Tenant commences performing at MPAC.
30:3. ,Return to Jackie Gleason Theater of the Performing Arts(TOPA).- If either
Landlord or Tenant reasonably determines that performing at MPAC is not financially practical for
Tenant,and TOPA retains available for performances,Tenant shall return to TOPA for its Miami-
Dade subscription season performances as soon as reasonablypractical and will continue to perform
its season performances there so long as TOPA is available. If TOPA is no longer available for
performances,Tenant may stage its major productions at MPAC,and stage its smaller productions at
other locations within the City of Miami Beach,including Tenant's own studio theater.
30.4. Acknowledgment of Landlord. Tenant agrees to include an acknowledgment
of Landlord prominently displayed in all printed Playbills; with the language for such
acknowledgmentto be approved by the City Manager.
.. 31. Estoppel.Certificate. Within ten(10)days after requestby Landlord or Tenant,or in
the event that upon any sale,assignment,or hypothecation of the property by Landlord,an estoppel
certificate shall be required from the other,Tenant and Landlord agree to deliver in recordable form a
certificate to any proposed mortgagee or purchaser, or to Landlord or Tenant or their respective
designee, certifying, if applicable, that this Lease is in full force and effect and that there are no
defenses or off-sets thereto,or stating those claims by Tenant or Landlord.
32. Landlord and Tenant not in Business Together. It is understood and agreed that
neither Landlord nor Tenant shall in any event be construed or held to be partner or co-venturer of
the other party,nor shall either party liable for'any debts incurred by the otherpartyin the conduct
of their respective businesses,but it is understood and agreed that the r_elationship is and at all times.
shall remain that of landlord and tenant.
33. Availability of Leased Premises. Tenant shall continue to make the Leased Premises
available to the City of Miami Beach as a polling place for all elections as well as an emergency
management command center during hurricanes or other emergency situations.
34. Notices. For purpose of giving any notice to, or making any demand or request of;
•
any party of matters relating to this Lease,such notice,demand or request shall be given in writing
•
and shall be sent by facsimile (with electronic transmission confirmed) or delivered by hand,
certified mail (return receipt requested), or overnight courier, postage and fees pre-paid, to the
-21 -
445940 &.DOC
•
following addresses(or at such other addresses as may be designated in writing by the parties)'and
shall be deemed effective upon receipt;
Landlord:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
With copies to (which shall not constitute notice):
:City Attorney
City of Miami Beach
• 1700 Convention Center Drive •
Miami Beach,Florida 33.139
and:
Asset Manager
City of.Miami Beach
1700 Convention.Center Drive
Miami Beach,Florida 33139
Tenant:
,Miami City Ballet,Inc.
Attn: Executive Director
2200 Liberty.Avenue
Miami Beach,Florida 33139
With copy to (which shall not constitute notice):
Weiss Scrota'Helfman Pastoriza Cole&Boniske,PA
•
2665 South,'Bayshore Drive, Suite 420
Miami,Florida 33156
Attn: Gail D. Scrota,.Esq.
35. Entire and Binding Agreement. This Lease.contains all of the,agreements between
the parties hereto, and it may not be modified in any manner other than by agreement in writing
signed by all the parties hereto or their successors in interest: The terms,covenants and conditions
contained herein shall inure to the benefit of and be binding upon Landlord and Tenant and their
respective successors and assigns,except as maybe otherwise expressly provided for in this Lease.
-22
445940_8 DOC
36. Provisions Severable. If any term orprovision of this Lease or the application thereof
to any person or circumstance shall to any extent be invalid Or unenforceable;the remainder ofthis
•
Lease,or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable,shall not be affected thereby and each term and provision
of this Lease shall be valid and enforced to the fullest extent permitted by law,
37. Captions. The captions contained herein are for convenience and reference only and
shall not be deemed a part of this Lease'or construed as in any manner limiting or:amplifying the
terms and provisions of this Lease to which they relate:
38. Number and Gender. Whenever used herein,:the singular shall include the plural and
the plural shall include the singular, and the use of one gender shall include all genders.
39. Governing Law. This Lease shall be governed by, construed and enforced in
accordance with the laws of the State of Florida.
40. Limitation of Liability. The Landlord desires to enter into this Lease only if it can
limit Landlord's liability for any cause of action for money damages due to an alleged breach by
Landlord of this Lease, so that its liability for any such breach never exceeds the sum of Ten
Thousand Dollars and no/100($10,000:00). Tenant hereby expresses its willingness to enter into
this Lease with Tenant's recovery from Landlord for any dariiage action for breach of contract to be
limited to a maximum amount of Ten Thousand (10,0.00.00) Dollars.. Accordingly, and
notwithstanding any other term or condition of this Lease,Tenant hereby agrees that Landlord shall
not be liable to Tenant for damage in an amount in excess of Ten Thousand ($10,000.00)Dollars
for any action or claim for breach of contract arising out of the performance or non-performance of
any obligations ofLandlord under this Landlord. Nothing contained in this Section 40 or elsewhere.
in this Lease is in any way intended to be a waiver of the limitation placed upon Landlord's liability
as set forth in Florida Statutes, Section 768;28.
4L Surrender of the Leased Premises. The Tenant shall,on or before the last day of the
Term, or the sooner termination thereof,peaceably and quietly leave,surrender and yield upon to
Landlord the Leased Premises,together with any and all equipinen t,fixtures,furnishings,appliances
or other personal property; if any, located at or on the Leased Premises and used by Tenant in the
maintenance, management or:operation of.-the Leased Premises, excluding any trade fixtures or
personal property,if any;which can be removed without damage or injury to the Leased Premises,
free of all liens;claims and encumbrances and rights of others or broom-clean, together with all
structural changes,alterations, additions,and Improvements which may have been made upon the
Leased Premises,in good order, condition arid repair,reasonable.wear and tear excepted, subject,
however, to the subsequent provisions of this Section 41. Any property which pursuant to the
provisions of this.Section is removable by Tenanton,or at the Leased Premises upon the termination
of this Lease and is not so removed may,at the option of Landlord,be deemed abandoned by Tenant,
and either may be retained by Landlord as its property or may be removed and disposed of at the sole
cost of Tenant in such manner as Landlord may see fit: If the Leased Premises and personal
property;if any,are not surrendered at the end Of the Term as_provided in this Section,Tenant shall
compensate Landlord for all damages which Landlord may suffer by reason thereof, and shall
indemnify and hold Landlord harmless against all claims made by any.succeeding, tenant or
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445940. 8.DOC
•
purchaser, so far as such delay is occasioned by the failure e of Tenant to surrender the Leased-
Premises as and when herein.required.
42. Time is of the Essence- Time is of the essence in every particular and particularly
where the obligation to pay money-is involved.
43. Venue. This Lease shall be enforceable in Miami-Dade County,:Florida,and if legal
action is necessary by either party with respect to the enforcement of any and all the terms or
conditions herein,exclusive venue for the enforcement of same:shall he in Miami-Dade County,
Florida.
44. Waiver of Jury Trial. LANDLORD AND TENANT HEREBY KNOWINGLY
AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT LANDLORD AND TENANT MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS-LEASE.
[SIGNATURES ON THE FOLLOWING PAGE]
•
-24-
445940_8 DOC
IN WITNESS WHEREOF,Landlord and Tenant have duly'executed this Lease as of the
date and year first above mentioned..
ATTEST: LAND I • I.
-''OF, • _ ' BEACH,FLORMA
o V �
PA1L &-
:y: 4.
CITY CLERK r MAYOR
•
WITNESSES: 'TENANT:
•
• _/ate. - mum"CITY BALLET,INC.,
Prjiat Name: h ci �7�, ��h., a Florida lit-for-profit corporation
Print 7)2_1
ame: NJark '. Roserb n By: iv, 1 U f
P' • :PENT
L eavi:s s: rids-a:1
Print Name
CORPORATE SEAL
(afx,here) . •• •
•
•
1.
I ,
APPROVED AS TO
FORM&,LAN GUAGE
&FOR EXECUTION
LiG P 1, . • 2^
City Attome Date
--25-
City of Miami Beach-Lease Agreement-2 06-RMG
I . .
Exhibit"A"
Legal Description
A part.of Section 34, Township 53 South, Range 42 East, being more particularly described as
follows:.
Commence at the intersection of the center lines of Meridian Avenue and 17th Street, as shown
in the Amended Plat of Golf Course Subdivision of the.Alton Beach Realty Company, recorded
in Plat Book 6, Page 26, Public Records of Dade County, Florid a; thence run South 89 degrees
59' 05" East, along the center line of 17th Street for a distance of 768.52 feet to a point; thence
run North 0 degrees 00' 58" West for a distance of 173.38 feet to the POINT OF BEGINNING;
thence continue along the last described bearing for a distance of 33.12 feet to a point; thence run
North:89 degrees 59'52 East for a distance of 99.24 feet to a point; thence run North 0 degrees
06' 53"West, for a distance of 144.02 feet to a point;thence nun North 89 degrees 56'37"West,..
for a distance of.195:00 feet to a point of tangency; thence run along the arc of a circular curve
concave to the Southeast having a central angle of 50 degrees 06'23" and a'radius of 40.00 feet.
for a distance of 34.98 feet to a point on intersection with a circular curve which radius bears
North 70 degrees 28'44" East from said point of intersection; thence run along the arc of said
curve, which is concave to the Northeast, having a central angle of 30 degrees 40' 19" and a
radius of 155.00 feet for a distance of 82.98 feet to a point; thence;run South 44 degrees 26' 55"
East for a distance of 51.26 feet to a point located on a circular curve which radius bears South
45 degrees 33' 05" West from said point; thence run along the arc of a circular curve, concave to
the Southwest having a central angle of 16 degrees 12' 58" and a radius of 260.29 feet for a
distance of 73.67 feet to the POINT OF BEGINNING.
•
•
EXHIBIT"B"
PUBLIC BENEFITS
Commencing with the 2006-2007 season,and for each successive season thereafter throughoutthe
term of the Lease,Miami City Ballet("MCB')will organize and administer the following programs
exclusively for the residents of Miaini Beach:
•
1. Provided that the nevi.Contemporary Dance Series is financially self-sustaining during the
2005-2006'season, MCB will continue to produce this series each season. The,series will
include,a minimum of 2•programs;each season,with 3 performances of each program.
•
2, MCB or its school will produce at least one Young People's Program, per season, for
• children and families.
3. MB.(My Beach/My Ballet),Days at MCB:.For each month that the dancers are on contract,
MCB will designate a special day;for Miami.Beach residents only,:to;attend a rehearsal in its
studios. Miami Beach ID and advance reservation will be required.
4. Free attendance at a rehearsal for the Miami City Ballet School's"annual Student Showcase
I program. Miami Beach ID and advance reservation will be required.
5. The Miami City Ballet School:will award at least ten(10)financial scholarships:each season
to talented children with f nancial need who are residents of Miami Beach.
6. Arts students(music,dance,Visual arts,etc.)enrolled at Miami Beach High School may sign
up to attend a free studio rehearsal.
7. MCB will give a minimum of 100 free tickets to each of its performance.series(Programs.1
through 4 and The Nutcracker)at Miami Performing-Arts Center'(MPAC), or inthe event
MCB is no longer performing at MPAC, at the nearest successor South Florida venue,to
Miami Beach-based charitable organizations that serve children and seniors.
8. Miami Beach residents who are registered voters will receive a 10% discount in the MCB
gift shop.
9. MCB will provide the following number of complimentary tickets to the City of Miami
Beach each annual performance season: 26 tickets per program at Jackie Gleason Theater of
the Performing Arts(TOPA)or MPAC; 18 tickets per program at the Byron-Carlyle Theater,
ColonyTheater,or at MCB's in-house performance facility.
Exhibit B
445940 8.DOC
Exhibit B
Security Documents
(See Attached)
May/31/2016 10:36:13 AM bank of america 2678861017 27/38
SECURITY AGREEMENT
THIS AGREEMENT is made as of May 31, 2016, by MIAMI CITY BALLET, INC., a Florida non-
profit corporation (the "Borrower"), whose address is 2200 Liberty Ave., Miami Beach, FL 33139, and
BANK OF AMERICA, N.A. (the"Bank"),whose address is Bank of America, N.A., Doc Retention, NC1-
001-05-13, One Independence Center, 101 North Tryon St, Charlotte, NC 28255-0001.
Recitals
The Borrower and the Bank have entered Into that certain Loan Agreement (as amended or
restated from time to time, the "Loan Agreement"), of even date herewith, pursuant to which the Bank
has provided or continued to provide that certain line of credit (the "Loan') to the Borrower, as more
particularly described In the Loan Agreement.The Loan Is evidenced by that certain Promissory Note(as
amended, extended or renewed from time to time, the "Note"), of even date herewith, executed by the
Borrower In favor of the Bank In the original principal amount of$1,500,000.00.
The Borrower has agreed to secure certain obligations in accordance with the terms hereof.
Now therefore,for good and valuable consideration,the parties agree as follows:
1. pefllpect Terms. Capitalized terms not otherwise defined that are defined in the UCC shall
have the meaning set forth therein. In addition to any other terms defined elsewhere In this Agreement,
the following terms shall have the following meanings:
"Accounts"shall mean all accounts as that term is defined in the UCC and all rights of the
Borrower now existing and hereafter acquired in relation to payment for goods sold or leased or
for services rendered that are not evidenced by an Instrument or Chattel Paper, whether or not
earned by performance,together with (i)all security interests or other security held by or granted
to the Borrower to secure such rights to payment, (ii) all other rights related thereto (including
rights of stoppage In transit) and (iii) all rights in any of such sold or leased goods that are
returned or repossessed.
"Additional Revenues"shall mean (to the fullest extent the Borrower may grant a security
interest therein): (a) all of the Borrower's receipts from unrestricted pledges, unrestricted
endowments, unrestricted capital campaign funds, maintenance fees, use fees, dues and other
similar amounts.
"Chattel Paper"shall mean all chattel paper as that term is defined in the UCC end any
document or documents that evidence both a monetary obligation and a security interest In, or a
lease or consignment of, specific goods (except, however, that when a transaction is evidenced
both by a security agreement or a lease and by an Instrument or series of Instruments, the group
of documents taken together constitute Chattel Paper).
"Collateral" shall mean all of the following assets (whether now owned or existing or
hereafter acquired or arising) in which the Borrower now has or hereafter acquires any right, title
or interest: (a) all of the Borrower's Accounts, Additional Revenues, Chattel Paper, Contract
Rights, Deposit Accounts, Documents, Equipment (subject to the limitations set forth herein),
Fixtures, General intangibles, Receivables, Instruments and inventory; (b) all of the Borrower's
cash, bank accounts, special collateral accounts, uncertificated securities (as that term is defined
In the UCC) and Insurance policies; (c) all of the Borrower's books and records (In whatever form
or medium), customer lists, credit files, computer files, programs, printouts, source codes,
software and other computer materials and records related to any of the foregoing; (d) all monies
May/31/2016 10:36:13 AM bank of america 2678861017 28/38
and property of the Borrower In the possession or under the control of the Bank or any agent or
affiliate thereof; and (e) all Proceeds (Including, without limitation, all proceeds as that term is
defined In the UCC), Insurance proceeds, unearned premiums, tax refunds, rents, profits and
products thereof; provided, however, that "Collateral" shall not include any restricted pledges,
restricted endowments, restricted investments or other similarly restricted funds (collectively, the
°Restricted Accounts").
"Contract Rights"shall mean any right to payment under a contract not yet earned by
performance and not evidenced by an instrument or Chattel Paper.
"Deposit Accounts" shall mean all deposit accounts and all moneys, securities,
instruments and other assets therein from time to time.
"Documents" shall mean all documents as that term is defined in the UCC and all
documents of title and goods evidenced thereby (including, without limitation, all bills of lading,
dock warrants, dock receipts, warehouse receipts and orders for the delivery of goods), together
with any other document that in the regular course of business or financing is treated as
adequately evidencing that the person or entity in possession of it is entitled to receive, hold and
dispose of such document and the goods it covers.
"Equipment" shall mean all equipment as that term is defined in the UCC and all
equipment (including, without limitation, all machinery, vehicles, tractors, trailers, office
equipment, communications systems, computers,furniture,tools, molds and goods)owned, used
or bought for use in the Borrower's business whether now owned, used or bought for use or
hereafter acquired, used or bought for use and wherever located, together with all accessories,
accessions, attachments, parts and appurtenances thereto. Notwithstanding the foregoing,
"Equipment" does not Include: (a) equipment leased from third parties under capital leases
obtained by the Borrower In the ordinary course of Borrower's business and disclosed to the Bank
prior to the date hereof, and(b)golf course equipment, including, but not limited to golf carts.
"Fixtures"shall mean all fixtures as that term Is defined In the UCC and all goods that are
or are to be attached to real property in such a manner that their removal would cause damage to
the real property and that have therefore taken on the character of real property.
"General Intangibles" shall mean all general intangibles as that term is defined in the
UCC and all payment Intangibles and all Intangible personal property of every kind and nature
other than Accounts. General Intangibles Include, without limitation, all Contract Rights, other
rights to receive payments of money, chases in action, security interests, indemnification claims,
Judgments, tax refunds and tax refund claims, royalty and product rights, inventions, work in
progress, patents, patent applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, permits, licenses, franchises, leasehold Interests In real or
personal property, rights to receive rentals of real or personal property or payments under letters
of credit, Insurance proceeds, know-how, trade secrets, other items of intellectual property,
goodwill (whether or not associated with any of the foregoing), computer software and guarantee
claims.
"Instruments" shell mean all instruments (as that term is defined in the UCC) and all
negotiable instruments, Member Debt Instruments (as defined in Section 5(c) of this Agreement)
certificated securities (as that term is defined In the UCC) and any replacements therefor and
stock rights related thereto, and other writings that evidence rights to the payment of money
(whether absolute or contingent) and that are not themselves security agreements or leases and
are of a type that In the ordinary course of business are transferred by delivery with any
necessary endorsement or assignment (including, without limitation, all checks, drafts, notes,
bonds, debentures, government securities, certificates of deposit, letters of credit, preferred and
common stocks, options and warrants).
May/31/2016 10:36:13 AM bank of america 2678861017 29/38
"inventory"shall mean all Inventory as that term Is defined In the UCC and all goods (as
that term is defined in the UCC)other than Equipment and Fixtures.
"Proceeds"shall mean all proceeds (as that term is defined in the UCC) and any and all
amounts or items of property received when any Collateral or proceeds thereof are sold,
exchanged, collected or otherwise disposed of, both cash and non-cash, Including proceeds of
Insurance, indemnity, warranty or guarantee paid or payable on or in connection with any
Collateral.
"Receivables" shall mean all Accounts, Additional Revenues, Chattel Paper, payment
intangibles and Contract Rights and all Instruments representing rights to receive payments.
"UCC" shall mean the Uniform Commercial Code as in effect In any applicable
Jurisdiction.
2. Security Interest. The Borrower hereby: (a) gives the Bank a continuing and
unconditional security interest (the"Security Interest") in the Collateral; and (b) collaterally assigns all of
its right, title and Interest in and to the Collateral to the Bank.
3. Obligations Secured. The Security Interest secures payment when due of all Secured
Obligations (as defined herein) to the Bank. As used in this Agreement, the term "Secured Obligations"
means: (a)all principal, interest,costs, expenses and other amounts now or hereafter due under the Loan
Agreement(Including, without limitation, all principal amounts advanced as part of any Loan before, on or •
after the date hereof)and/or the Note; and(b)all other amounts now or hereafter payable by the Borrower
under any of the Loan Documents(as such term is defined In the Loan Agreement).
The Collateral also secures all obligations to the Bank arising under any Swap Contract and any
Treasury Services Contract now or hereafter entered into between the Borrower and the Bank; provided,
that with respect to the Borrower,the Collateral of the Borrower shall not secure obligations arising under
any Swap Contract to which It is not party if, and to the extent that, all or a portion of the guaranty by the
Borrower to the Bank of, or the grant by the Borrower of a security Interest to the Bank to secure, such
Swap Contract, would violate the Commodity Exchange Act by virtue of the Borrower's failure to
constitute an "eligible contract participant" as defined in the Commodity Exchange Act at the time such
guaranty or grant of such security Interest becomes effective with respect to such Swap Contract.
"Commodity Exchange Act" means 7 U.S.C. Section 1 at seq., as amended from time to time, any
successor statute, and any rules, regulations and orders applicable thereto. All of the obligations secured
under this Agreement are collectively referred to as the"Indebtedness."
"Swap Contract" means any Interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency option, securities puts,
calls, collars, options or forwards or any combination of, or option with respect to, these or similar
transactions. "Treasury Services Contract" means any contract between the Borrower and the Bank
covering treasury management services, including, but not limited to, intraday credit,Automated Clearing
House (ACH) services, foreign exchange services, daylight overdrafts, corporate credit card programs,
wire transfers, electronic funds transfers, electronic trade services, controlled disbursement and zero
balance arrangements.
Except as otherwise agreed In writing by the Bank and the Borrower, if the Secured Obligations(as
defined above) includes, now or hereafter, any Special Flood Zone Loan, then the following shall apply:
The Special Flood Zone Loan shall not be secured under this Security Agreement by any Collateral which
would constitute "contents" located within the Flood Zone Improvements. For the purposes of this
subparagraph, (a) "Flood Zone Improvements"means any,"improved"real property that is located within a
Special Flood Hazard Area; (b) a "Special Flood Zone Loan" means a loan or line of credit which is
secured by Flood Zone improvements; and (c)the terms"improved" real property, "Special Flood Hazard
Area' and "contents" shall have the meaning ascribed to them by the Flood Disaster Protection Act of
1973, 42 U.S.C. § 4001 et seq., and implementing regulations, 44 C.F.R.Parts 59 at seq., and/or the
May/31/2016 10:36:13 AM bank of america 2678861017 30/38
Federal Emergency Management Agency("FEMA"). Notwithstanding the foregoing, It is the Intent of the
parties that all of the above listed collateral secure all of the Secured Obligations described above.
4, Warranties of Borrower. The Borrower warrants and so long as this Agreement
continues in force shall be deemed continuously to warrant that:
(a) The Borrower is the owner of the Collateral free of all security Interests or other
encumbrances, except for the Security Interest and permitted liens (as set forth in the Loan
Agreement).
(b) The Borrower is authorized to enter into the Security Agreement.
(c) The Collateral is used or bought for use primarily in business or professional
operations.
(d) The Collateral is or will be located at the Borrower's address set forth above.
(a) The chief executive office of the Borrower Is at the address set forth above.
(f) The exact legal name of the Borrower is set forth in the introductory paragraph
hereof, and the Jurisdiction of organization or incorporation of the Borrower is set forth in the
Introductory paragraph hereof.
5. Covenants of Borrower.
(a) So long as this Agreement has not been terminated as provided hereafter, the
Borrower. (1) will defend the Collateral against the claims of all other persons; (ii) will keep the
Collateral free from all security interests or other encumbrances, except for the Security Interest
and permitted liens(as set forth in the Loan Agreement); (iii)will not assign, deliver, sell, transfer,
lease or otherwise dispose of(other than in the ordinary course of the Borrower's business) any
of the Collateral or any interest therein without the prior written consent of the Bank, which shall
not be unreasonably withheld, delayed or conditioned; (iv) will keep in accordance with generally
accepted accounting principles consistently applied, accurate and complete records concerning
the Collateral and will, at reasonable times and upon reasonable notice, permit the Bank or its
agents to audit and make abstracts of such records or any of the Borrower's books, ledgers,
reports, correspondence and other records; (v) within five (5) days of demand therefore, will
deliver to the Bank copies of any contracts or other documents representing or relating to the
Collateral and Proceeds thereof and any and all other schedules, documents and statements that
the Bank may from time to time reasonably request; (vi) will not change the location of the
Borrower's principal office without prior written notice to the Bank; (vii) will notify the Bank
promptly In writing of any change in the Borrower's principal address, name or identity from that
specified above or of any change In the location of the Collateral; (viii) will not change its legal
name or reincorporate or reorganize itself under the laws of any other Jurisdiction without prior
written notice to the Bank; (ix) will, at reasonable times and upon reasonable notice, permit the
Bank or its agents to Inspect all records relating to the Collateral; (x) will execute and deliver to
the Bank such financing statements and other documents reasonably requested by the Bank, and
take such other action and provide such further assurances as the Bank may reasonably deem
advisable to evidence, perfect or enforce the Security Interest created by this Agreement; and (xi)
will pay when due all taxes, assessments and other charges of every nature that may be levied or
assessed against the Collateral(unless the same are being contested in good faith).
(b) For so long as any Secured Obligations remain outstanding, the Borrower will
maintain reasonably adequate policies of Insurance (the"Policies")to cover all property owned or
operated by the Borrower against loss or damage(Including loss by windstorm, fire, and flood, if
applicable). The Borrower shall pay the premiums for the Policies as the same become due and
payable. If requested by the Bank, the Borrower shall provide to the Bank evidence satisfactory
May/31/2016 10:36:13 AM bank of america 2678861017 31/38
to the Bank that all Policies are in full force and effect. Upon request by the Bank, the Borrower
shall furnish to the Bank a statement certified by a duly authorized officer of the Borrower of the
amounts of insurance maintained in compliance with this section, a general description of the
risks covered by such insurance and of the insurance company or companies which carry such
Insurance. The Bank has reviewed the Borrower's current insurance, and such insurance meets
the Bank's requirements, and shall continue to be acceptable provided that such insurance is
maintained at its current level and substantially In Its current form.
6. Verificatiort. The Bank may verify any Collateral in any reasonable manner and through
any reasonable medium that the Bank may deem appropriate, and the Borrower shall furnish such
assistance as the Bank may reasonably require in connection therewith.
7. pefault.
(a) Following the expiration of any applicable notice and/or cure period, each of the
following shall constitute an "Event of Default" hereunder; (i) the occurrence of any Event of
Default under the Loan Agreement; (II)failure by the Borrower to perform any material obligations
under this Agreement; (ill)material falsity In any certificate,statement, representation,warranty or
audit at any time furnished by or on behalf of the Borrower, pursuant to or In connection with this
Agreement or otherwise to the Bank, including warranties in this Agreement and Including any
omission to disclose any substantial contingent or liquidated liabilities or any material adverse
change in facts disclosed by any certificate, statement, representation, warranty or audit
furnished to the Bank; or(iv) any material attachment or levy against the Collateral, provided that
the Borrower shall have a period of thirty (30) days to either settle or bond off any such material
lien which attaches to the Collateral provided that the Bank's rights hereunder are not prejudiced
by the grant of such thirty(30)day cure period.
(b) Upon the occurrence of an Event of Default, the Bank may exercise such
remedies and rights as are available hereunder, under the Loan Agreement or otherwise. This
paragraph Is not intended to affect or impair any rights of the Bank with respect to any Secured
Obligations that may now or hereafter be payable on demand.
(c) Upon the occurrence of any Event of Default,the Bank's rights with respect to the
Collateral shall be those of a secured party under the UCC and any other applicable law in effect
from time to time. The Bank shall also have any additional rights granted herein and In any other
agreement now or hereafter in effect between the Borrower and the Bank. If requested by the
Bank after the occurrence of an Event of Default, the Borrower will assemble the Collateral and
make it available to the Bank at a place to be designated by the Bank.
(d) The Borrower shall pay all reasonable costs and expenses incurred by the Bank
In enforcing this Agreement, realizing upon any Collateral and collecting any Secured Obligations
(including reasonable attorneys' fees) whether suit is brought or not and whether incurred in
connection with collection, trial, arbitration, appeal or otherwise and, to the extent of the
Borrower's liability for repayment of any of the Secured Obligations, shall be liable for any
deficiencies in the event the Proceeds of disposition of the Collateral do not satisfy the Secured
Obligations in full. Nothing contained herein shall be deemed to require the Bank to proceed
against the Collateral or any part thereof before or as a condition to the pursuit of any of its other
rights and remedies with respect to the Secured Obligations.
t3. Miscellaneous.
(a) The Borrower authorizes the Bank to file financing statements and continuation
statements and amendments thereto with respect to the Collateral without authentication by the
Borrower to the extent permitted by law and the Borrower consents to and ratifies any filings
made by the Bank prior to the date hereof. The Borrower agrees not to file any financing
statement, amendment or termination statement with respect to the Collateral prior to the
May/31/2016 10:36:13 AM bank of america 2678861017 32/38
payment and satisfaction in full of all Secured Obligations.
(b) The Borrower hereby irrevocably consents to any reasonable act by the Bank or
its agents in entering upon any premises for the purposes of either(l) inspecting the Collateral(at
reasonable times and with reasonable prior written notice) or (II) taking possession of the
Collateral after any Event of Default In any commercially reasonable manner. The Borrower
hereby waives its right to assert against the Bank or its agents any claim based upon trespass or
any similar cause of action for entering upon any premises where the Collateral may be located,
provided that Bank complies with the notice required under this Section 8.
(c) Upon the Borrower's failure to perform any of its duties hereunder, and such
failure continues for a period of thirty(30) days after written notice from the Bank to the Borrower
of such failure, the Bank may, but it shall not be obligated to, perform any of the duties and the
Borrower shall forthwith upon demand reimburse the Bank for any reasonable expenses incurred
by the Bank in so doing.
(d) No delay or omission by the Bank in exercising any right hereunder or with
respect to any Secured Obligations shall operate as a waiver of that or any other right, and no
single or partial exercise of any right shall preclude the Bank from any other or further exercise of
the right or the exercise of any other right or remedy. The Bank may cure any Event of Default by
the Borrower in any reasonable manner without waiving the Event of Default so cured and without
waiving any other prior or subsequent Event of Default by the Borrower.
(e) All rights and remedies of the Bank under this Agreement, the UCC, any other
applicable law, shall be deemed cumulative and not In limitation of any other right or remedy of
the Bank provided for thereunder or otherwise.
(f) The Bank may demand, collect and sue for all Proceeds (either In the Borrower's
name or the Bank's name at the Bank's option), with the right to enforce, compromise, settle or
discharge any Proceeds, From and after the occurrence and during the continuation of an Event
of Default, the Borrower irrevocably appoints the Bank as the Borrower's attorney-in-fact to
endorse the Borrower's name on all checks, commercial paper and other Instruments pertaining
to the Proceeds before or after the occurrence of an Event of Default.
(g) The rights and benefits of the Bank under this Agreement shall, if the Bank
agrees, Inure to any party acquiring an interest in the Secured Obligations or any part thereof.
(h) The terms "Bank" and "Borrower" as used in this Agreement Include the
successors or assigns of those parties.
(i) This Agreement may not be modified or amended nor shall any provision of it be
waived except in writing signed by the Borrower and by an authorized officer of the Bank.
Q} This Agreement shall be governed and construed by Florida law and any other
applicable laws in effect from time to time.
(k) The parties agree that this Agreement is intended to be as broad and inclusive as
permitted by law. If any provision of this Agreement is held to be invalid or unenforceable, It is
agreed that the balance of this Agreement shall, notwithstanding, be enforceable and continue In
full force and effect to the fullest extent permitted by law or equity.
(I) This Agreement Is a continuing agreement that shall remain In force until the last
to occur of: (i) the payment in full of all Secured Obligations if such payment of the Secured
Obligations has become final and is not subject to being refunded as a preference or fraudulent
transfer under the Bankruptcy Code or other applicable law, (II) the termination of all agreements
May/31/2016 10:36:13 AM bank of america 2678861.017 33/38
or obligations (whether or not conditional) of the Bank to extend credit to the Borrower; and (iii)
the termination of the Loan Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
[REMAINDER OF PAGE INTENTIONALLY BLANK]
•
•
May/31/2016 10:36:13 AM bank of america 2678861017 34/38
EXECUTED and delivered as of the day and year first above written.
BANK OF AMERICA, N.A. MIAMI CITY BALLET, INC.,
a Florida non-profit cor•oration
By ,..� By Lt�it�,
Print 7,1e: I .. c.ft Michael Scolamiero
Title: IP ci7 P.'c5 r- iii t /ei tiIr -LC .tfnr✓4&c. Executive Director
•
•
From:Pat Davidson Fax:.(904)930.4087 To: Fax: +1
STATE.OF FLORIDA UNIFORM COMMERCIAL CODE FLORIDA SECURED TRANSACTION REGISTRY
FINANCING STATEMENT FORM FILED
A.NAME&DAYTIME PHONE,NUMBER OF CONTACT PERSON 2016 Jun 02 10:30 AM
Pal Davidson.904.930-4087
B.Email Address ****** 201607764162 *15**-`�`
C.SEND ACKNOWLEDGEMENT TO: '
Name James L.Purcell.Jr.
Address Stonebumor Berry Purcell 8 Campbell.PA
Address 200 Weal Forsyth Street.Suite 1810
CityjSlate-Lip Jacksonville.FL 32202
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
I. DEBTOR'S ENACT FULL LEGAL NAME-INSERT ONLY ONE DEBTOR NAME(I a OR Ib)-Do Not Abbrcviatc or Combine Noises
Le ORGANIZATION'S NAME
MIAMI CITY BALLET.INC.
I.b INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONALNAME(SYiNITIAL(S) I SUFFIX
l.c MAILING ADDRESS Line One•
2200 LIBERTY AVENUE This space not available.
MAILING ADDRESS Line Two CITY STATE POSTAL CODE COUNTRY
MIAMI BEACH FL 33139 `USA
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME-INSERT ONLY ONE DEBTOR NAME(2a OR 2b)-Do Not Abbreviate or Combine Names
2.a ORGANIZATION'S NAME
2.6 INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) I SUFFIX
2.c MAILING ADDRESS Line One
This spare not available.
MAILING ADDRESS Line Two CITY —STATE POSTAL CODE I COUNTRY
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR SIP)-INSERT ONLY ONESECURED PARTY(3a OR lb)
3a ORGANIZATION'S NAME
BAN K OF AMERICA,N.A.
- 3.b INDIVIDUAL:5 SURNAME FIRST PERSONAL NAME I ADDITIONAL NAME(S)/INITIAL(5) SUFFIX
•
3.e MAILING ADDRESS Line One
DOC RETENTION,NC1-001-05.13 This space not available.
MAILING ADDRESS Line Two CITY ' STATE POSTAL CODE COUNTRY
ONE INDEPENDENCE CENTER.101 N.TRYON ST. CHARLOTTE NC 28255-0001 I USA
4.-this FINANCING STATEMENT coven the following collateral:
The collateral shell Include all of the assets idenliried an Schedule 1 attached hereto.
5.ALTERNATE UL'SIGNATION(if applicable) U LESSEE/LESSOR Li CONSIGNEE/CONSIGNORU BAILEE/BAILOR
❑ AG LIEN ❑ NON-UCC FILING ❑ SELLER/BUYER
6.Florida DOCUMENTARY STAMP TAX-.YOU ARE REQUIRED TO CHECK EXACTLY ONE BOX
0 All documentary stamps due and payable'or to become due and payable pursuant to 3.201.22 F.S.,have been paid.
❑ Florida Documentary Stamp Tax is.not required.
7.OPTIONAL FILER REFERENCE DATA
STANDARD FORM-FORM UCC-I(ItEV.O$/2013) FUIng 0111ce Copy Approved by the Secretary of State,Slate of Florida
From Pal Davidson Fax:(904)930-4087 To: Fav: +1(850)2223385 Pogo 3 of 4 06!0212016 10:28 AM
SCHEDULE 1
The Collateral shall include:
Collateral shall mean all of the following assets(whether now owned or existing or hereafter
acquired or arising) in which the Debtor now has or hereafter acquires any right,title or interest:(a)all
of the Debtor's Accounts,Additional Revenues,Chattel Paper,Contract Rights,Deposit Accounts,
Documents,Equipment(subject to the limitations set forth herein),Fixtures,General Intangibles,
Receivables,Instruments and Inventory;(b)all of the Debtor's cash,bank accounts,special collateral
accounts,uncertificated securities,and insurance policies; (c)all of the Debtor's books and records(in
whatever form or medium),customer lists,credit files,computer files,programs,printouts,source
codes,software and other computer materials and records related to any of the foregoing;(d)all
monies and property of the Debtor in the possession or under the control of the Secured Party or any
agent or affiliate thereof;and(e)all Proceeds(including,without limitation,all proceeds, insurance
proceeds,unearned premiums,tax refunds, rents,profits and products thereof;provided,however,that
"Collateral"shall not include any restricted pledges,restricted endowments,restricted investments or
other similarly restricted funds(collectively,the"Restricted Accounts"). The Collateral shall also have
the following meanings:
"Accounts"shall mean all accounts and all rights of the Debtor now existing and hereafter
acquired in relation to payment for goods sold or leased or for services rendered that are not evidenced
by an Instrument or Chattel Paper,whether or not earned by performance,together with(i)all security
interests or other security held by or granted to the Debtor to secure such rights to payment,(Ii)all
other rights related thereto(including rights of stoppage in transit)and(iii)all rights In any of such sold
or leased goods that are returned or repossessed.
"Additional Revenues"shall mean(to the fullest extent the Debtor may grant a security interest
therein):(a) all of the Debtor's receipts from unrestricted pledges,unrestricted endowments,
unrestricted capital campaign funds,maintenance fees,use fees,dues and other similar amounts.
"Chattel Paper" shall mean all chattel paper and any document or documents that evidence
both a monetary obligation and a security Interest in,or a lease or consignment of,specific goods
(except, however,that when a transaction is evidenced both by a security agreement or a lease and by
an Instrument or series of Instruments,the group of documents taken together constitute Chattel
Paper).
"Contract Rights"shall mean any right to payment under a contract not yet earned by
performance and not evidenced by an Instrument or Chattel Paper.
"Deposit Accounts"shall mean all deposit accounts and all moneys,securities,instruments and
other assets therein from time to time.
"Documents"shall mean all documents,and all documents of title and goods evidenced thereby
(including,without limitation,all bills of lading,dock warrants,dock receipts,warehouse receipts and
orders for the delivery of goods),together with any other document that in the regular course of
business or financing is treated as adequately evidencing that the person or entity in possession of it is
entitled to receive, hold and dispose of such document and the goods it covers.
From:Pat Davidson Fax:(904)930-4087 To: Far: +1 j850)2223385 Page 4 of 4 06/02/2016 10:28 AM
"Equipment"shall mean all.equipment,and all equipment(including,without limitation,all
machinery,vehicles,tractors,trailers,office equipment,communications systems,computers,furniture,
tools,molds and goods)owned,used or bought for use In the Debtor's business whether now owned,
used or bought for use or hereafter acquired,used or bought for use and wherever located,together
with all accessories,accessions,attachments,parts and appurtenances thereto. Notwithstanding the
foregoing,"Equipment"does not include:(a)equipment leased from third parties under capital leases
obtained by the Debtor In the ordinary course of Debtor's business and disclosed to the Secured Party
prior to the date hereof.
"Fixtures"shall mean all fixtures and all goods that are or are to be attached to real property in
such a manner that their removal would cause damage to the real property and that have therefore
taken on the character of real property.
"General Intangibles"shall mean all general intangibles and all payment intangibles and all
intangible personal property of every kind and nature other than Accounts. General Intangibles include,
without limitation,all Contract Rights,other rights to receive payments of money,choses in action,
security interests,indemnification claims,judgments,tax refunds and tax refund claims,royalty and
product rights, inventions,work in progress, patents,patent applications,trademarks,trademark-
applications,trade names;copyrights,copyright applications,permits,licenses,franchises,leasehold
interests in real or personal property,rights to receive rentals of real or personal property or payments
under letters of credit,insurance proceeds,know-how,trade secrets,other items of intellectual
property,goodwill(whether or not associated with any of the foregoing),computer software and
guarantee claims.
"Instruments"shall mean all instruments and all negotiable instruments,Member Debt
Instruments,certificated securities and any replacements therefor and stock rights related thereto,and
other writings that evidence rights to the payment of money(whether absolute or contingent)and that
are.not themselves security agreements or leases and are'of a type that in the ordinary course of
business are transferred by delivery with any necessary endorsement or assignment(including,without
limitation,all checks,drafts,notes,bonds,debentures,government securities,certificates of deposit,
letters of credit,preferred and common stocks,options and warrants).
"Inventory"shall mean all inventory and all goods other than Equipment and Fixtures.
"Proceeds"shall mean all proceeds, and any and all amounts or items of property received
when any Collateral or proceeds thereof are sold,exchanged,collected or otherwise disposed of,both
cash and non-cash, including proceeds of insurance,indemnity,warranty or guarantee paid or payable
on or in connection with any Collateral.
"Receivables"shall mean all Accounts,Additional Revenues,Chattel Paper,payment intangibles
and Contract Rights and all Instruments representing rights to receive payments.
"UCC"shall mean the Uniform Commercial Code as in effect in any applicable jurisdiction.
From:Pat Davidson Fax:1904)930-4087 To: Fax: +1
STATE OF FLORIDA UNIFORM COMMERCIAL CODE FLORIDA SECURED TRANSACTION REGISTRY
FINANCING STATEMENT FORM. FILED
A.NAME&DAYTIME PHONE NUMBER OF CONTACT PERSON 2016 Jun 02 10:30 AM
Pat Davidson,904.930-4087
B.Email Address 1****** 201607764162 **lc*"
C.SEND ACKNOWLEDGEMENT TO:
Name James L.Purcell,Jr.
Address Stonebumer Bony Purcell 8 Campbell,PA
Address 200 West Forsyth Street,Suite 1810
City/StetcILip Jacksonville.FL 32202
THE ABOVE SPACE IS FOR PILING OFFICE USE ONLY
1. DEBTOR'S EXACT FULL LEGAL NAME-INSERT ONLY ONE DEBTOR NAME(I a OR Ib)-Do Not Abbreviate or Combine Nom
Le ORGANIZATION'S NAME
MIAMI CITY BALLET,INC.
Lb INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)ANITIAL(S) I SUFFIX
I.c MAILING ADDRESS Line One This s ace not available.
2200 LIBERTY AVENUE p
MAILING ADDRESS Line Two CITY STATE POSTAL CODE COUNTRY
MIAMI BEACH FL 33139 IUSA
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME-INSERT ONLY ONE DEBTOR NAME(2i OR 2b)-Do Not Abbreviate or Combine Names
2.a ORGANIZA1lON'S NAME
2.b INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)IINITIAL(S) I'SUFFIX
2.c MAILING ADDRF.SS Line One This space not available.
MAILING ADDRESS Line Iwo CITY STATE POSTAL CODE I COUNTRY
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR SIP)-INSERT ONLY ONE SECURED PARTY(.3a OR 3b)
J. ORGANIZATION'S NAME
BANK OF AMERICA,NA.
• 3.b INDIVIDUAL'S SURNAME FIRST PERSONAL NAME I ADDITIONAL NAME(S)/INITIAL(S) SUFFIX
3.c MAILING ADDRESS Line One
DOC RETENTION,NCI-001-0513 This space not available.
MAILING ADDRESS Line Two CITY STATE POSTAL CODE 1 COUNTRY
ONE INDEPENDENCE CENTER,101 N.TRYON ST. CHARLOTTE NC 28255-0001 USA
4.'Ihts FINANCING STATEMENT covers the following collateral:
The collateral shall Include all of the assets identified on Schedule 1 attached hereto.
5.ALTERNATE DESIGNATION(if applicable) U LESSEFJLESSOR u CONSIGNEEJCONSIGNORU 'BAILEE/BAILOR
-❑ AG LIEN ❑ NON•UCC FILING El SELLER/BUYER
6.Florida DOCUMENTARY STAMP TAX-YOU ARE REQUIRED TO CHECK EXACTLY ONE BOX
0 All documentary stamps due and payable or to become due and payable pursuant to s.201.22 F.S.,have been paid.
❑ Florida.Documentary Stamp Tax is not required.
7.OPTIONAL FILER REFERENCE DATA
STANDARD FORM-FORM UCC-t(REVA5n0l3) Filing Mee Copy Approved by the Secretary of State,State of Florida
From:Pat Davidson Fax:(804)830-4087 To: Far: +1 0850)2223385 Page 3 of 4 06i0212016 10:28 P.M
SCHEDULE 1
The Collateral shall include:
Collateral shall mean all of the following assets(whether now owned or existing or hereafter
acquired or arising)in which the Debtor now has or hereafter acquires any right,title or interest:(a)all
of the Debtor's Accounts,Additional Revenues,Chattel Paper,Contract Rights,Deposit Accounts,
Documents,Equipment(subject to the limitations set forth herein),Fixtures,General intangibles,
Receivables,Instruments and Inventory;(b)all of the Debtor's cash,bank accounts,special collateral
accounts, uncertificated securities,and insurance policies; (c)all of the Debtor's books and records(in
whatever form or medium),customer lists,credit files,computer files,programs,printouts,source
codes,software and other computer materials and records related to any of the foregoing;(d)all
monies and property of the Debtor in the possession or under the control of the Secured Party or any
agent or affiliate thereof;and(e)all Proceeds(including,without limitation,all proceeds, insurance
proceeds, unearned premiums,tax refunds,rents,profits and products thereof;provided,however,that
"Collateral"shall not include any restricted pledges,restricted endowments,restricted investments or
other similarly restricted funds(collectively,the"Restricted Accounts"). The Collateral shall also have
the following meanings:
"Accounts"shall mean all accounts and all rights of the Debtor now existing and hereafter
acquired in relation to payment for goods sold or leased or for services rendered that are not evidenced
by an-Instrument or Chattel Paper,whether or not earned by performance,together with(i)all security
interests or other security held by or granted to the Debtor to secure such rights to payment, (II)all
other rights related thereto(including rights of stoppage in transit)and(iii)all rights In any of such sold
or leased goods that are returned or repossessed.
"Additional Revenues"shall mean(to the fullest extent the Debtor may grant a security interest
therein):(a) all of the Debtor's receipts from unrestricted pledges,unrestricted endowments,
unrestricted capital campaign funds,maintenance fees,use fees,dues and other similar amounts.
"Chattel Paper"shall mean all chattel paper and any document or documents that evidence
both a monetary obligation and a security Interest in,or a lease or consignment of,specific goods
(except, however,that when a transaction is evidenced both by a security agreement or a lease and by
an Instrument or series of Instruments,the group of documents taken together constitute Chattel
Paper).
"Contract Rights"-shall mean any right to payment under a contract not yet earned by
performance and not evidenced by an Instrument or Chattel Paper.
"Deposit Accounts"shall mean all deposit accounts and all moneys,securities,instruments and
other assets therein from time to time.
"Documents"shall mean all documents,and all documents of title and goods evidenced thereby
(including,without limitation,all bills of lading,dock warrants,dock receipts,warehouse receipts and
orders for the delivery of goods),together with any other document that In the regular course of
business or financing is treated as adequately evidencing that the person or entity in possession of it is
entitled to receive, hold and dispose of such document and the goods it covers.
From:Pat Davidson Fax:(904)930-4097 To: Far: +1(850)=33135 Page 4 of 4 06!1212016.10:28 AM
"Equipment"shall mean all equipment,and all equipment(including,without limitation,all
machinery,vehicles,tractors, trailers,office equipment,communications systems,computers,furniture,
tools,molds and goods)owned,used or bought for use in the Debtor's business whether now owned,
used or bought for use or hereafter acquired,used or bought for use and wherever located,together
with all accessories,accessions,attachments,parts and appurtenances thereto. Notwithstanding the
foregoing,"Equipment"does not include:(a)equipment leased from third parties under capital leases
obtained by the Debtor in the ordinary course of Debtor's business and disclosed to the Secured Party
prior to the date hereof.
"Fixtures"shall mean all fixtures and all goods that are or are to be attached to real property in
such a manner that their removal would cause damage to the real property and that have therefore
taken on the character of real property.
"General Intangibles"shall mean all general intangibles and all payment intangibles and all
intangible personal property of every kind and nature other than Accounts. General Intangibles include,
without limitation,all Contract Rights,other rights to receive payments of money,choses in action,
security interests,indemnification claims,judgments,tax refunds and tax refund claims, royalty and
product rights,inventions,work in progress,patents,patent applications,trademarks,trademark
applications,trade names,copyrights,copyright applications,permits,licenses,franchises,leasehold
interests in real or personal property,rights to receive rentals of real or personal property or payments
under letters of credit,insurance proceeds,know-how,trade secrets,other items of intellectual
property,goodwill(whether or not associated with any of the foregoing),computer software and
guarantee claims.
"Instruments"shall mean all instruments and all negotiable instruments,Member Debt
Instruments,certificated securities and any replacements therefor and stock rights related thereto,and
other writings that evidence rights to the payment of money(whether absolute or contingent)and that
are not themselves security agreements or leases and are of a type that in the ordinary course of
business are transferred by delivery with any necessary endorsement or assignment(including,without
limitation,all checks,drafts,notes,bonds,debentures,government securities,certificates of deposit,
letters of credit,preferred and common stocks,options and warrants).
"inventory"shall mean all inventory and all goods other than Equipment and Fixtures.
"Proceeds"shall mean all proceeds, and any and all amounts or items of property received
when any Collateral or proceeds thereof are sold,exchanged,collected or otherwise disposed of,both
cash and non-cash, including proceeds of insurance,indemnity,warranty or guarantee paid or payable
on or in connection with any Collateral.
"Receivables"shall mean all Accounts,Additional Revenues,Chattel Paper,payment intangibles
and Contract Rights and all Instruments representing rights to receive payments.
"UCC"shall mean the Uniform Commercial Code as in effect in any applicable jurisdiction.