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99-23188 RESO RESOLUTION NO. 99-23188 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT BETWEEN MIAMI CITY BALLET, INC., AND SUNTRUST BANK/MIAMI, NATIONAL ASSOCIATION; AUTHORIZING THE CITY MANAGER TO EXECUTE AN ESTOPPEL LETTER AND LANDLORD'S (I.E. CITY'S) WAIVER OF LIEN, PURSUANT TO THE AFORE STATED LEASEHOLD MORTGAGE DOCUMENTS; AUTHORIZING THE CITY ATTORNEY'S OFFICE TO PREPARE A MEMORANDUM OF LEASE, TO BE RECORDED BY THE BALLET AT ITS SOLE COST AND EXPENSE; AND AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL RELATED DOCUMENTS, SUBJECT TO APPROVAL AND REVIEW BY THE CITY ATTORNEY'S OFFICE; PROVIDED FURTHER THAT THE AFORESTATED APPROVAL IS CONDITIONED UPON AND SUBJECT TO ANY FUTURE ADVANCES UNDER THE LEASEHOLD MORTGAGE, IN EXCESS OF THE $4.5 MILLION DOLLARS APPROVED HEREIN, BEING APPROVED BY THE MAYOR AND CITY COMMISSION IN THE SAME MANNER AS PROVIDED PURSUANT TO SECTION 13.02 OF THE GROUND LEASE BETWEEN THE CITY AND THE BALLET, AND THAT FAILURE TO OBTAIN SUCH APPROVAL FROM THE CITY SHALL BE DEEMED AN EVENT OF DEF AUL T UNDER SAID LEASE. WHEREAS, on April 13, 1994, the City entered into a Ground Lease Agreement (Ground Lease) with the Miami City Ballet, Inc. (the Ballet), for the Ballet's proposed headquarters, currently under construction within the Cultural Campus, in the Collins Park area of the City of Miami Beach; and WHEREAS, to date, there ~ave b'een three Amendments to the Ground Lease: a First Amendment, dated June 18, 1991; Second Amendment, dated October 21, 1997; and Third Amendment, dated January 6, 1999; and WHEREAS, pursuant to Section 13.02 of the Ground Lease, the City agreed to cooperate with the Ballet in its efforts to obtain financing for its proposed facility, including the execution of any necessary documents, such as leasehold mortgages, so long as such documents are subject to the reasonable approval of the City Attorney's Office; and WHEREAS, no leasehold mortgage shall be valid or of any force or effect unless or until the City has consented thereto in writing; and WHEREAS, the Ballet has negotiated the attached Leasehold Mortgage and Security Agreement, with Suntrust Bank/Miami, National Association; said Mortgage in an amount up to $4.5 million dollars, and having a term of five (5) years; and WHEREAS, the City Attorney's Office has reviewed the attached Leasehold Mortgage; Security Agreement; Estoppel Letter; and Landlord's Waiver of Lien with the Ballet's administrative staff, as well as counsel for the Ballet and Suntrust Bank, respectively; and WHEREAS, following the aforestated negotiations, the attached Leasehold Mortgage and Security Agreement complies with the City's requirements for same under Section 13.02 of the Ground Lease, including, in pertinent part, (i) that it be subject to all of the terms and conditions of the Ground Lease; (ii) that it encumbers only the Ballet's interest created by the lease in the Land and the Building; (iii) that the rights of the City pursuant to the Ground Lease will not be affected by the terms of the Leasehold Mortgage; (iv) that the Ballet, by virtue of the Leasehold Mortgage, obtains no interest whatsoever in the underlying fee of the Land; and (v) that any person or entity who by purchase at a foreclosure sale and/or by transfer in lieu of foreclosure acquires any right, title or interest in or to the Ground Lease, accepts same subject to all of the terms and conditions of said Ground Lease; and WHEREAS, accordingly, the City Attorney's Office would recommend that the Mayor and City Commission approve the attached Leasehold Mortgage and Security Agreement, and further authorize the City Manager to execute the attached Estoppel Letter, Landlord's Waiver of Lien, and any and all other related documents, on behalf of the City, subject to review and approval by the City Attorney's Office; and WHEREAS, the subject approval is further conditioned upon and subject to any future advances under the Leasehold Mortgage, in excess of the $4.5 million dollars approved herein, being approved by the Mayor and City Commission in the same manner as provided pursuant to Section 13.02 of the Ground Lease between the City and the Ballet, and that failure to obtain such approval from the City shall be deemed an Event of Default under said Lease. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein approve the attached Amended and Restated Leasehold Mortgage and Security Agreement between Miami City Ballet, Inc., and Suntrust Bank/Miami, National Association; authorize the City Manager to execute the attached Estoppel Letter and Landlord's Waiver of Lien, pursuant to the aforestated Leasehold Mortgage documents; authorize the City Attorney's Office to prepare a Memorandum of Lease, to be recorded by the Ballet at its sole cost and expense; and authorize the City Manager to execute any and all related documents, subject to approval and review by the City Attorney's Office; provided further that the aforestated approval is conditioned upon and subject to any future advances under the Leasehold Mortgage, in excess of the $4.5 million dollars approved herein, being approved by the Mayor and City Commission in the same manner as provided pursuant to Section 13.02 of the Ground Lease between the City and the Ballet, and that failure to obtain such approval from the City shall be deemed an Event of Default under said Lease. PASSED and ADOPTED this 9th day of June ,1999. r/ III MAYOR APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~T~J PcuLk CITY CLERK RJA\l<w ~. '\ATrO\AllllR\RJ.~1I0~\I.~F.III.IJMO,M(,R 4tHy~ ~~ 2 OFFICE OF THE CITY ATTORNEY ~ tfJlUomi 1/mM F L o R o A MURRAY H. DUBBIN City Attorney Telephone: Telecopy: (305) 673-7470 (305) 673-7002 COMMISSION MEMORANDUM NO. '349- 99 DATE: JUNE 9,1999 TO: MAYOR NEISEN KASDIN MEMBERS OF THE CITY COMMISSION FROM: MURRAYDUBBIN I~"~ CITY ATTORNEY ~~Y.. SERGIO RODRIGUEZ CITY MANAGER SUBJECT: RESOLUTION APPROVING AN AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT BETWEEN MIAMI CITY BALLET, INC., AND SUNTRUST BANKlMIAMI, NATIONAL ASSOCIATION; AUTHORIZING THE CITY MANAGER TO EXECUTE AN ESTOPPEL LETTER AND LANDLORD'S (I.E. CITY'S) WAIVER OF LIEN, PURSUANT TO THE AFORE STATED LEASEHOLD MORTGAGE DOCUMENTS; AUTHORIZING THE CITY ATTORNEY'S OFFICE TO PREPARE A MEMORANDUM OF LEASE, TO BE RECORDED BY THE BALLET AT ITS SOLE COST AND EXPENSE; AND AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL RELATED DOCUMENTS, SUBJECT TO APPROVAL AND REVIEW BY THE CITY ATTORNEY'S OFFICE. RECOMMENDA TION Approve the Resolution. Date 1700 Convention Center Drive - Fourth Floor - Miami BI Agendaltem Lit b - 9 - 9'1 BACKGROUND / ANALYSIS On April 13, 1994, the City entered into a Ground Lease Agreement with the Miami City Ballet, Inc. (the Ballet), for the Ballet's proposed headquarters, currently under construction within the proposed Cultural Campus, in the Collins Park area of the City of Miami Beach. To date, there have been subsequent Amendments to the Ground Lease; a First Amendment, dated June 18, 1997; Second Amendment, dated October 21, 1997; and Third Amendment, dated January 6, 1999. Pursuant to Section 13.02 of the Ground Lease, the City agreed to cooperate with the Ballet's efforts to obtain financing for construction of its proposed facility, including the execution of any necessary documents, including leasehold mortgages, so long as such documents be subject to the reasonable approval of the City Attorney's Office. No leasehold mortgage shall be valid or of any force or effect unless or until the City consents to same in writing. At this time, the Ballet is seeking to obtain a Leasehold Mortgage from Suntrust Bank/Miami, National Association, in an amount up to $4.5 million dollars, said Mortgage having a term of five (5) years. The City Attorney's Office has met with the Ballet's administrative staff and counsel for the Ballet, as well as counsel for Suntrust, and has reviewed the attached documents, including the Amended and Restated Leasehold Mortgage and Security Agreement; Estoppel Letter; and Landlord's Waiver of Lien. In particular, the City Attorney's Office has concentrated its review of the attached documents, particularly the Leasehold Mortgage, to assure that the verbiage conforms to the following requirements under Section 13.02 of the Ground Lease: a) That the Leasehold Mortgage is subject to all of the terms, covenants, and conditions of the Ground Lease; b) That the Leasehold Mortgage encumbers only the Ballet's interest created by the Ground Lease in the Land and the Building; c) That the rights of the City pursuant to the Ground Lease will not be affected by the terms of the Leasehold Mortgage; d) That the holder of the Leasehold Mortgage shall waive all rights and options to obtain and apply proceeds of any insurance or the proceeds of any condemnation award toward payment of the sum secured by the Leasehold Mortgage, to the extent such proceeds are required by the terms of the Ground Lease for the demolition, repair, or restoration of the property; e) That the holder of the Leasehold Mortgage shall agree to send to the City copies of all notices to the Ballet in which such mortgagee claims that there exists one or more uncured defaults under the terms and provisions of the Leasehold Mortgage, such notices to be sent simultaneously to the City and the Ballet; 2 f) That the Leasehold Mortgage is a leasehold mortgage only and that such mortgagee has obtained no interest whatsoever in the underlying fee of the Land as a result of the execution of the mortgage the Ballet; and g) That any person or entity who by purchase at a foreclosure sale and/or by transfer in lieu of foreclosure acquires any right, title or interest in or to the Ground Lease, by acceptance of a deed or other instrument of conveyance thereof, will conclusively be deemed to have accepted such right, title or interest subject to all of the terms, covenants and conditions of the Ground Lease; it being the specific intent of the Ballet and the leasehold mortgagee that the Leasehold Mortgage encumber only the Ballet's leasehold interest created by the Ground Lease, and that except as specifically set forth in the Ground Lease, the rights of the City shall not be effected by the terms of the Leasehold Mortgage. Additionally, the City Attorney's Office is preparing a Memorandum of Lease, as requested by the Ballet pursuant to the Ground Lease, which will be recorded in the public records. The Office would further recommend that the Mayor and City Commission authorize the City Manager to execute the attached Estoppel Letter and Landlord's Waiver of Lien (as to personal property of the Ballet only), as well as any related documents incident to the aforestated Leasehold Mortgage. CONCLUSION Following review of the attached documents, and the aforestated meetings with the Ballet, counsel for the Ballet, as well as discussions with Suntrust Bank, the City Attorney's Office would recommend that the Mayor and City Commission consent to the attached Amended and Restated Leasehold Mortgage, and authorize the City Manager to execute any related documents, including the attached Estoppel Letter and Landlord's Waiver of Lien. The Leasehold Mortgage documents have been revised, so that they expressly conform to the aforestated requirements of Section 13.02 of the Ground Lease. The Estoppel Letter has also been similarly revised such that it is given subject to all the pertinent terms and conditions of the Ground Lease. Additionally, the Landlord's Waiver of Lien applies only to personal property of the Ballet, as defined in the Ground Lease, and does not impact the City's rights as to either the Land or the actual Building for the proposed Miami City Ballet facility. RJA Ikw F:IA TTOIAGURIRESOSIMEMOSILSEHLDMG.MCB 3 EXHIBIT "B" AMENDED AND RESTATED LEASEHOLD MORTGAGE AND SECURITY AGREEMENT THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (the "Mortgage"), made as of the _ day of May, 1999, between Miami City Ballet, Inc., a Florida not for profit corporation (the "Mortgagor"), as mortgagor and debtor, whose principal place of business is 905 Lincoln Road, Miami Beach, Florida 33139 and SunTmst Bank/Miami, National Association, a national banking association (the "Mortgagee"), as mortgagee and secured party, whose address is 777 Brickell Avenue, Miami, Florida 33131-2803. ARTICLE I DEFINITIONS, HEADINGS, RULES OF CONSTRUCTION AND SECURITY AGREEMENT 1.1 Definitions. As used in this Mortgage and in the exhibits attached hereto, the following terms shall have the following meanings herein specified, such definition to be applicable equally to the singular and plural forms of such tem1S: (a) Commitment: The commitment letter from Mortgagee to Mortgagor dated January 22, 1999, together with any amendments thereto. (b) Default Rate: The Default Rate as defined in the Note. (c) Environmental Law: Any law, enactment, statute, code, ordinance, order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority, as same may be amended from time to time, whether now in existence or established or hereafter enacted, promulgated, adopted, entered or issued, both within and outside the present contemplation of the parties hereto, relating to pollution or protection of the environment, including but not limited to, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.e. 999601-9657, (ii) the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. 1613, (iii) the Resource Conservation and Recovery Act, 42 u.s.e. 996901-6987, (iv) the Florida Resource Recovery and Managemcnt Act, Fla. Stat. 99 403.702-403.7893, (v) the Pollutant Spill Prevcntion and Control Act, Fla. Stat. ~~ 376.011- 376.21 (vii) any common law ofnuisance or trespass, (viii) any law, rule or regulation, whether state, federal, county, municipal or local, relating to emissions, discharges, releases or threatened releases of pollutants, contaminants or chemicals, or industrial, toxic or other Hazardous Substances or waste into the environment (including without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), (ix) any law otherwise relating to the manufacture, processing, .\111\-321354-4 distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or chemicals or industrial, toxic or other Hazardous Substances or wastes, and (x) any other designations as toxins, pollutants or contaminants by any other Governmental Authority (including, without limitation, the United States Environmental Protection Agency). (d) Events of Default: Those events described in Article VII hereof. ( e) Fixtures: All property and equipment now owned or hereafter acquired by Mortgagor and now or hereafter located under, on, or above the Land, whether or not permanently affixed, which, to the fullest extent permitted by applicable law in effect from time to time, shall be deemed fixtures and a part of the Land. (f) Future Advances: Any loan of money from Mortgagee to Mortgagor made within twenty (20) years from the date hereof. The total amount of such loan or loans may decrease or increase from time to time, but the total unpaid aggregate balance secured by this Mortgage at any one time shall not exceed Twenty Million and No/lOO Dollars ($20,000,000.00) plus interest thereon, and any disbursements made for the payment of the Impositions (whether taxes, levies or otherwise), insurance, or other liens on the Mortgaged Property, with interest on such disbursements. The Mortgagee has no obligation, whatsoever, to make a Future Advance. (g) Governmental Authority: Any (domestic or foreign) federal, state, county, municipal or other governmental department, entity, authority, commission, board, bureau, court, agency or any instrumentality of any of them. (h) Governmental Requirement: Any law, enactment, statute, code, ordinance, order, rule, regulation, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued applicable to Mortgagee, the Mortgagor, the Land, the Improvements, or any of the Mortgaged Property, including, without limitation, any Environmental Law. (i) Ground Lease. That certain Lease by and between the City of Miami Beach, as Landlord, and Mortgagor, as tenant, dated April 13, 1994 as amended by that certain An1endment to Ground Lease dated June 13,1997, Second Amendment to Lease dated October 21,1997 and Third Amendment to Lease dated January 16, 1999, and as memorialized in the public records by that certain Memorandum of Lease dated recorded in Official Records Book , at Page , of the Public Records of Miami-Dade County, Florida. U) Hazardous Suhstances: Any hazardous, toxic or dangerous waste, substance or material including, but not limited to, any elements or compounds which are now or hereafter (i) identified in Section 101(14) of the CERCLA, 42 U.S.c., S9601(14), and as set forth in 40 C.F.R. S302, as the same may be amended from time to time, (ii) determined to be toxic, a pollutant or contaminant, under any Environmental Law, (iii) contained in the list of hazardous substances adopted by the United States Environmental Protection Agency, (iv) defined as "petroleum" and "petroleum products" as defined in Fla. Stat. 9376.301, as same may be amended forn1 time to time, MIA-32135.J.4 - 2 - and (v) asbestos, radon, polychlorinated biphenyls and such other elements, compounds, materials, substances or waste which are otherwise dangerous, hazardous, harmful or deleterious to human or animal health or safety, or the environment. (k) Impositions: All (i) real estate and personal property taxes and other taxes and assessments, public or private; utility rates and charges including those for water and sewer; all other governmental and non-governmental charges and any interest or costs or penalties with respect to any ofthe foregoing; and charges for any public improvement, easement or agreement maintained for the benefit of or involving the Land, the Improvements or any of the Mortgaged Property, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that at any time prior to or after the execution of this Mortgage may be assessed, levied or imposed upon the Land, the Improvements or any of the Mortgaged Property or the Rent or income received therefrom, or any use or occupancy thereof, (ii) other taxes, assessments, fees and governmental and non-governmental charges levied, imposed or assessed upon or against Mortgagor or any of its properties and (iii) taxes levied or assessed upon this Mortgage, the Note, and the other Obligations, or any of them excluding income tax or comparable tax imposed upon the income of Lender.. (I) Improvements: All buildings, structures, appurtenances and improvements, including all additions thereto and replacements and extensions thereof, now constructed or hereafter to be constructed under, on or above the Land, which term includes any part thereof. (m) Junior Mortgage: Any mortgage permitted by Mortgagee which now or hereafter encumbers all or any portion of the Mortgaged Property and which is junior or subordinate to the lien of this Mortgage, which term shall collectively refer to all such mortgages and the note or notes secured thereby. (n) Land: The real property described in Exhibit "A" attached hereto and made a part hereof, together with all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages, projections, appurtenances, water rights including riparian and littoral rights, streets, ways, alleys, and strips and gores ofland now or hereafter in any way belonging, adjoining, crossing or pertaining to the Land. (0) Leasehold Estate: The leasehold estate held by Mortgagor in the Land created by, arising under and by virtue of the Ground Lease which includes, but is not limited to, all Improvements and Fixtures now or hereafter erected thereon or affixed thereto and any and all rights and privileges appurtenant thereto. (p) Lessee: Mortgagor. (q) Lessor: The City of Miami Beach, Florida. (r) L.o.an: Four Million Five Hundred Thousand and Noll 00 Dollars ($4,500,000.00), as evidenced by the Note. MIA-321354-4 - 3 - (s) Loan Agreement: The construction loan agreement or the loan agreement, if any, of even date herewith, between Mortgagor and Mortgagee. (t) Loan Documents: The Commitment and those items required by the Commitment and any other document or instrument executed, submitted, or to be submitted by Mortgagor or others in connection with the Loan, including but not limited to the: (i) Note, (ii) Mortgage, (iii) assignments of subleases and rents, (iv) Loan Agreement, (v) financing statements, (vi) environmental indemnity agreement, and any other document or instrument defined as "Loan Documents" in the Loan Agreement. (u) Mortgaged Property: The Leasehold Estate, Improvements, Fixtures, Subleases, Rents and Personal Property together with: (i) all judgments, awards of damages and settlements hereafter made resulting from condemnation proceedings or the taking of the Land, the Improvements or any of the Mortgaged Property or any part thereof under the power of eminent domain, or by agreement in lieu thereof, or for any damage thereto caused by any governmental action (whether by such taking or otherwise), such as without limitation, any award for change of grade of streets; (ii) all judgments, awards and settlements hereafter made, and all insurance proceeds hereafter made, and all insurance proceeds hereafter paid for any damage to the Land, the Improvements or any of the Mortgaged Property, and all unearned insurance premiums on any insurance policies maintained by the Mortgagor pursuant to this Mortgage; (iii) all awards and refunds hereafter made with respect to any Imposition; (iv) the estate, right, title, interest, privilege, claim or demand whatsoever of Mortgagor, now or hereafter, either at law or in equity, in and to the Mortgaged Property; (v) all rights and benefits of every nature whatsoever derived or to be derived by the Mortgagor under or by virtue of the Ground Lease, including, without limitation, the right to exercise options, to give consents, and to receive monies payable to the Lessee thereunder. (vi) any extension, renewal or modification, as permitted by Mortgagee, of the Leasehold Estate created by the Ground Lease; (vii) all rights, title and interest that Mortgagor now has or may hereafter acquire in the Land; and (viii) all right, title and interest of the Mortgagor in and to all and singular tenements, hereditaments, easements, rights, privileges and appurtenances of the Leasehold Estate at any time belonging or in any way appertaining thereto. MIA-321354-4 - 4 - The tenn Mortgaged Property includes any part of the foregoing property described as Mortgaged Property, and all proceeds, products, replacements, improvements, bettern1ents, extensions, additions, substitutions, renewals, accessories, and appurtenances thereto and thereof. (v) Mortgagee: SunTrust BanklMiami, National Association, a national banking association, its successors and assigns. (w) Mortgagor: Miami City Ballet, Inc., a Florida not for profit corporation. (x) Nill.e.: The Promissory Note in the amount of $100.00 from Mortgagor to Mortgagee, dated , 1999, as consolidated and renewed renewal by that certain Renewal Note dated of even date herewith from Mortgagor to Mortgagee, in the amount of Four Million Five Hundred Thousand and No/lOO Dollars ($4,500,000.00) and by this reference made a part hereof to the same extent as though set out in full herein, and any other note give to Mortgagee evidencing a future advance, as any of said notes may from time to time hereafter be modified, amended, extended or renewed. (y) Obligations: (i) Any and all of the indebtedness, liabilities, covenants, promises, agreements, terms, conditions, and other obligations of every nature whatsoever, whether joint or several, direct or indirect, absolute or contingent, liquidated or unliquidated, of Mortgagor in favor of Mortgagee, evidenced by, secured by, under and as set forth in the Note, this Mortgage, the Loan Agreement or the other Loan Documents; (ii) Any and all Future Advances. (z) Partnership: Any general or limited partnership, joint venture, or other form of partnership, howsoever designated. (aa) Permitted Title Exceptions: Those matters, if any, described in Schedule B to the title insurance policy insuring Mortgagee's interest in this Mortgage and the Mortgaged Property. (bb) Person: Any individual, corporation, partnership, joint venture, association, joint stock company, trust, incorporated organization, government, or agency or political subdivision thereof, or any other form of entity. (cc) Personal Property: All of the following property of Mortgagor whether now owned or existing, or hereafter acquired or arising, located in, on, pertaining to, used or intended to be used in connection with or resulting or created from Mortgagor's Leasehold Estate in, or Mortgagor's development, management, or operation of the Land: (i) all Improvements (to the extent same are not deemed to be real property) and landscaping; MIA-321354-4 - 5 - (ii) all Fixtures (to the extent same are not deemed to be real property) and goods to become Fixtures; (iii) all accounts, accounts receivable, other recei\'ables, contract rights, chattel paper, instruments and documents; any other obligations or indebtedness owed to Mortgagor from whatever source arising; all rights of Mortgagor to receive any performance or any payments in money or kind; all guaranties of the foregoing and security therefor; all ofthe right, title and interest of Mortgagor in and with respect to the goods, services, or other property that gave rise to or that secure any of the foregoing, and all rights of Mortgagor as an unpaid seller of goods and services, including, but not limited to, the rights to stoppage in transit, replevin, reclamation, and resale; each of the foregoing, however, is limited to the extent same are used or useful in connection with the development, management or operation of the Mortgaged Property; (iv) all goods, including without limitation, all machinery, equipment, furniture, furnishings, building supplies and materials, appliances, business machines, tools of every kind and description, to the extent same are used or useful in connection with the development, management or operation ofthe Mortgaged Property (expressly excluding sets, costumes, props, and personalty used or useful in connection with Mortgagor's performances and/or productions) and all warranties and guaranties for any of the foregoing; (v) all general intangibles used or useful in connection with the development, management or operation of the Mortgaged Property, including without limitation, blueprints, surveys, architectural or engineering drawings, plans and specifications, licenses, governmental approvals, permits, payment and performance bonds, tax refund claims, and agreements with utility companies, together with any deposits, prepaid fees and charges paid thereon; (vi) all Subleases and Rents (to the extent same are not deemed to be real property); (vii) all judgments, awards of damages and settlements paid or payable to Mortgagor from any condemnation or eminent domain proceedings regarding the Land, the Improvements or any of the Mortgaged Property; (viii) all insurance policies required by this Mortgage, the unearned premiums therefor and all loss proceeds thereof; (ix) all other personal property, to the extent same are used or useful in connection with the development, management or operation of the Mortgaged Property, including without limitation, management contracts, construction contracts, architectural contracts, service contracts, engineering contracts, contracts for purchase and sale of any of the Mortgaged Property, purchase orders, equipment leases, deposits and down payments MIA-3113S4-4 - 6 - with respect to the sale or rental of any of the Mortgaged Property, end-loan commitments, abstracts of title. all brochures, advertising materials and prospectuses; and (x) all proceeds, products, replacements, additions, betterments, extensions, improvements, substitutions, renewals and accessions of any and all of the foregoing. (dd) Rents: All of the rents, royalties, issues, revenues, income, profits, security deposits and other benefits whether past due, or now or hereafter arising from the Mortgaged Property and the occupancy, use and enjoyment thereof. (ee) Subleases: Any and all leases (other than the Ground Lease), and subleases for space in excess of 3,000 square feet, licenses, concessions, or grants of other possessory interests, together with the security therefor, now or hereafter in force, oral or written, covering or affecting the Mortgaged Property or any part thereof. 1.2 Headings. The Article headings and the Section and Subsection titles hereof are inserted for convenience ofreference only, and shall in no way alter or modify the test or substance of such Articles, Sections and Subsections. 1.3 Rules of Construction. The use of any gender shall include all other genders. The singular shall include the plural and the plural shall include the singular. The captions of Articles, Sections and Subsections of this Mortgage are for convenient reference only, and shall not affect the construction or interpretation of any of the terms and provisions set forth herein. 1.4 Security Aereement. This Mortgage constitutes a "Security Agreement" within the meaning of and shall create a security interest under the Uniform Commercial Code-Secured Transactions as adopted by the State of Florida, with respect to the Fixtures, Subleases, Rents and Personal Property. A carbon, photographic or other reproduction of this Mortgage or of any financing statement shall be sufficient as a financing statement. The debtor's principal place of business and the secured party's address is set forth in the introduction to this Mortgage. ARTICLE II GRANT 2.1 Grant. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to secure the payment, observance, performance and discharge of the Obligations, Mortgagor does by these presents give, transfer, grant, bargain, sell, alien, remise, release, assign, mortgage, hypothecate, deposit, pledge, set over, confirm, convey and warrant unto Mortgagee all estate, right, title and interest of Mortgagor in and to the Mortgaged Property, whether now owned or held or hereafter acquired by Mortgagor, subject, however, to the Permitted Title Exceptions, and the terms, covenants and conditions of the Ground Lease, to have and to hold the Mortgaged Property unto Mortgagee, its successors and assigns forever. MIA-32\ 354-4 - 7 - 2.2 Condition of Grant. Subject to the provisions of this Mortgage, the condition of these presents is such that if Mortgagor shall pay in full, observe, perform and completely discharge the Obligations, or cause same to be paid in full, observed, perfom1ed and completely discharged in strict accordance with the terms thereof, then this Mortgage and the estates, interests, rights and assignments granted hereby shall be null and void, but otherwise shall remain in full force and effect. 2.3 Subrogation. The Mortgagee is hereby subrogated to the claims and liens of all parties whose claims or liens are fully or partially discharged or paid with the proceeds of the indebtedness secured by this Mortgage notwithstanding that such claims or liens may have been cancelled and satisfied of record. ARTICLE In ASSIGNMENT OF SUBLEASES AND RENTS 3.1 Assienment. The Mortgagor does hereby absolutely and unconditionally assign and transfer to Mortgagee all of Mortgagor's estate, right, title and interest in and to any Subleases and Rents, to have and to hold the Subleases and Rents unto Mortgagee, its successors and assigns forever. From time to time, upon request of Mortgagee, Mortgagor shall give further evidence of this assignment to Mortgagee by executing and delivering to Mortgagee specific assignments of the Subleases and Rents, in form and content approved by Mortgagee. All such specific assignments shall be of the same dignity and priority as this Mortgage. From time to time, upon request of Mortgagee, Mortgagor shall also execute and deliver to Mortgagee any notification to subtenants or other document reasonably required by Mortgagee. 3.2 Payment of Rents to Mortgagor, as Trustee, Until Default. So long as no Event of Default has occurred, Mortgagor may, as trustee for the use and benefit of Mortgagee, collect, receive and accept the Rents as they become due and payable (but in no event for more than two (2) months in advance); provided, however, that if the Rents exceed the payments due under the Note, the Mortgagor may use such excess, first, for the operation and benefit of the Mortgaged Property and, second, for the general benefit of the Mortgagor. Upon the occurrence of an Event of Default Mortgagee may, at its option, remove the Mortgagor as trustee for the collection of the Rents and appoint any other person including, but not limited to, itself as a substitute trustee to collect, receive, accept and use all such Rents in payment of the Obligations, in such order as Mortgagee shall elect in its sole and absolute discretion, whether or not Mortgagee takes possession of the Mortgaged Property. Mortgagor hereby directs each of the respective subtenants under the Subleases, and any rental agent, to pay to Mortgagee all such Rents, as may now be due or shall hereafter become due, upon demand for payment thereof by Mortgagee without any obligation on the part of any such subtenant or rental agent to determine whether or not an Event of Default has in fact occurred. Upon an Event of Default, the permission hereby given to Mortgagor to collect, receive and accept such Rents as trustee shall terminate and such permission shall not be reinstated upon a cure of the Event of Default without Mortgagee's specific written consent. Exercise of Mortgagee's rights under this Section, and the application of any such Rents to the obligations, shall not cure or waive any default MIA-32 135-\-4 - 8 - or notice of default hereunder or invalidate any act done pursuant hereto, but shall be cumulative and in addition to all other rights and remedies of Mortgagee. 3.3 Performance Under Subleases. Mortgagor covenants that it shall, at its sole cost and expense, (a) duly and punctually perform and discharge, or cause to be performed and discharged, all of the obligations and undertakings of Mortgagor, as sublessor, under the Subleases, (b) use its best efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every obligation and undertaking of the respective subtenants under the Subleases, (c) promptly notify Mortgagee if Mortgagor receives any notice from a subtenant claiming that Mortgagor is in default under a Sublease and (d) appear in and defend any action or proceeding arising under or in any manner connected with the Subleases. 3.4 Provisions of Subleases and Approval of Subtenants. All Subleases shall be inferior and subordinate to the lien of this Mortgage and the terms of each Sublease shall so expressly provide. Mortgagor covenants that all Subleases hereafter entered into by Mortgagor shall be in form and substance reasonably satisfactory to Mortgagee. Further, the Mortgagee specifically reserves the right to approve all proposed subtenants, and any assignee or sublessee of any existing subtenant in its reasonable discretion. 3.5 Termination or Modification. Mortgagor covenants that it shall not, without the prior express written consent of Mortgagee, not to be unreasonably withheld or delayed enter into a Sublease, or modify, in any manner, terminate, extend, or permit any subtenant under any Sublease to assign or sublet its rights thereunder. 3.6 Delivery of Executed Subleases and Monthly Status Reports. Mortgagor covenants that it shall furnish Mortgagee with executed copies of all Subleases within ten (10) days after the execution thereof, and a monthly status report on all leasing activities, together with such other related information as may be reasonably required by Mortgagee. 3.7 No Obligation of Mortgagee. This Assignment shall not be deemed or construed to constitute Mortgagee as a mortgagee in possession of the Mortgaged Property nor shall it obligate Mortgagee to take any action or to incur expenses or perform or discharge any obligation, duty or liability of Mortgagor under any Sublease. 3.8 Cumulative Remedies. Each and every right, remedy and power granted to Mortgagee by this Article shall be cumulative and in addition to every other right, remedy and power given by the Loan Documents and now or hereafter existing in equity, at law, or by virtue of statute or otherwise. The failure of Mortgagee to avail itself of any of its rights, remedies and powers shall not be construed or deemed to be a waiver thereof. 3.9 Notification of Mortgagee's Rights. Mortgagee shall have the right, but not the obligation, at any time and from time to time, to notify any subtenant under any Sublease of the rights of Mortgagee as provided in this Article and Mortgagor, upon demand from Mortgagee, shall confirm to such subtenant the existence of such rights. MIA-321354-4 - 9 - 3.10 Attorney-in-Fact. To further effectuate Mortgagee's rights under this Article, Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in- fact, which appointment is coupled with an interest, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney-in-fact, and only following the occurrence of an Event of Default to (i) collect and receive the Rents and to issue receipts therefor, (ii) to make, enter into, extend, modify. amend, terminate, consent to the cancellation or surrender of any Sublease, or permit any subtenant to assign or sublet its rights thereunder, (iii) to execute, acknowledge and deliver any and all instruments and documents that Mortgagee may deem necessary or proper to implement its rights as provided in this Article, and (iv) to perform and discharge any and all obligations and undertakings of Mortgagor under any Sublease. 3.11 Other Assignments. Mortgagor shall not further assign or transfer the Subleases or Rents except in favor of Mortgagee as provided in this Article, and shall not create or permit to be created or to remain, any mortgage, pledge, lien, encumbrance, claim, or charge on the Subleases or Rents. Any transaction prohibited under this Section shall be null and void. ARTICLE IV REPRESENT A TIONS AND WARRANTIES Mortgagor hereby represents and warrants to Mortgagee that: 4.1 Organization, Corporate Power, Etc. Mortgagor (i) is a not for profit 501 (c)(3) tax exempt corporation, A) duly organized, validly existing and in good standing under the laws of the State of Florida, (B) has the corporate power and authority to own its properties and to carry on its business as now being conducted, (C) is qualified to do business in the State of Florida, (D) to its best knowledge, is in material compliance with all Governmental Requirements, and (E) has not amended or modified its organizational documents or its bylaws except as previously disclosed in writing to Mortgagee prior to the execution hereof. 4.2 Validity of Loan Documents. (i) The execution, delivery and perfomlance by Mortgagor of the Ground Lease and the Loan Documents, and the borrowing evidenced by the Note, (A) are within the powers and purposes of Mortgagor, (8) have been duly authorized by all requisite action of Mortgagor, (C) do not require the approval of any Governmental Authority, and (D) will not violate any Governmental Requirement, the organizational documents and bylaws of Mortgagor or any indenture, agreement or other instrument to which Mortgagor is a party or by which it or any of its property is bound, or be in conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of its property or assets, except as contemplated by the provisions of the Loan Documents; and (ii) the Ground Lease and Loan Documents, constitute the legal, valid and binding obligations of Mortgagor and other obligors named therein, if any, in accordance with their respective tCffilS. MIA-32 1354-4 - 10 - 4.3 Financial Statements. All balance sheets, statements of profit and loss, and other financial data that have been given to Mortgagee with respect to the Mortgagor, (i) are complete and correct in all material respects, (ii) accurately present the financial condition of Mortgagor as of the dates, and the results of its operations, for the periods for which the same have been furnished, and (iii) have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods covered thereby; all balance sheets disclose all known liabilities, direct and contingent, as of their respective dates; and there has been no change in the condition of the Mortgagor, financial or otherwise, since the date of the most recent financial statements given to Mortgagee with respect to Mortgagor, other than changes in the ordinary course of business, none of which changes has been materially adverse. 4.4 Other Aereements. Mortgagor is not a party to any agreement or instrument materially and adversely affecting any of the Mortgaged Property, Mortgagor, or Mortgagor's present or proposed businesses, properties or assets, operation or condition, financial or otherwise, and Mortgagor is not in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions set forth in any agreement or instrument to which it is a party. 4.5 Other Information. All other information, including reports, financial statements, certificates, papers, data and otherwise, given and to be given to Mortgagee with respect (i) to Mortgagor, (ii) to the Ground Lease, (iii) to the Loan and (iv) to others obligated under the terms of the Loan Documents, are true, accurate and correct in all material respects and complete. 4.6 Iitle. Mortgagor is the sole owner and holder of the entire Lessee's interest in the Ground Lease and of the Leasehold Estate created thereby and Mortgagor has and will have good, absolute and marketable leasehold title to the Land and Improvements free and clear of any and all mortgages, liens, encumbrances, claims, charges, equities, covenants, conditions, restrictions, easements, rights-of-way and all other matters affecting the Land and Improvements and Mortgagor's Leasehold Estate therein, whether or not of record, except for the Permitted Title Exceptions. Mortgagor has and will have good, absolute and marketable title to the Fixtures and Personal Property all free and clear of any and all liens, charges, encumbrances, security interests and adverse claims whatsoever, except those in favor of Mortgagee. Mortgagor will preserve its title to the Mortgaged Property and will forever warrant and defend the same to Mortgagee and will forever warrant and defend the validity and priority of the lien of this Mortgage against the claims of all persons and parties whomsoever. 4.7 No Violations. To the best of Mortgagor's knowledge after diligent inquiry, no Governmental Requirement and no covenant, condition, restriction, easement or similar matter affecting the Land, the Improvements or any of the Mortgaged Property have been violated, and Mortgagor has not received any notice of violation from any Governmental Authority or any other person with respect to any of the foregoing matters. 4.8 Ground Lease. The fully executed copy of the Ground Lease delivered to Mortgagee by Mortgagor is a true, correct and complete copy of the Ground Lease. The Ground Lease is in full force and effect, in good standing, and is unmodified as of the date hereof. All rents (including additional rents and other charges) reserved in the Ground Lease have been paid to the extent that MIA.321354-4 - 11 - they were payable prior to the date hereof. To the best of Mortgagor's knowledge after diligent inquiry there is no existing default under the Ground Lease or in the performance of any ofthe terms, covenants, conditions or warranties thereof by Mortgagor or by Lessor, and no event has occurred which with due notice or the lapse of time, or both, would constitute a default thereunder. The Lessor has consented to Mortgagor's execution and delivery of this Mortgage. 4.9 I.axes. Mortgagor has filed all federal, state, county and municipal income tax returns required to have been filed by it, and has paid all taxes that have become due pursuant to such returns, pursuant to any assessments received by it or pursuant to law, and Mortgagor does not know of any basis for additional assessments with respect to such taxes or additional taxes. The Land is assessed separately from all other adjacent land for the purposes ofreal estate taxes and to Mortgagor's knowledge there is no intended public improvements which may involve any charge being levied or assessed, or which may result in the creation of any lien upon the Land, the Improvements or any of the Mortgaged Property. 4.10 Litigation. There are no judgments outstanding against Mortgagor and there is no action, suit, proceeding, or investigation now pending (or to the best of Mortgagor's knowledge after diligent inquiry, threatened) against, involving or affecting Mortgagor or the Mortgaged Property, or any part thereof, at law, in equity or before any Governmental Authority that if adversely determined as to the Mortgaged Property or as to Mortgagor would result in a material adverse change in the business or financial condition of the Mortgagor or Mortgagor's operation and ownership of the Mortgaged Property, nor is there any basis for such action, suit, proceeding or investigation. 4.11 Utilities. There is available to the Land and Improvements through public or private easements or rights-of-way abutting or crossing the Land (which would inure to the benefit of Mortgagee in case of enforcement of this Mortgage) a water supply and a sanitary sewer service approved by all health and other authorities having jurisdiction, and electric, gas (if applicable) and telephone service, all of sufficient capacity to serve the needs of the Land and Improvements according to their intended purpose. 4.12 Condition of Mortgaged Property. Neither the Land, the Improvements nor any of the Mortgaged Property or any part thereof, now existing, is damaged or injured as a result of any fire, explosion, accident, flood or other casualty. The Improvements, as of the date of this Mortgage, are free of any defects in material, structure and construction and do not violate any Governmental Requirements. To the best of Mortgagor's knowledge there is no existing, proposed or contemplated plan to modify or realign any street or highway or any existing, proposed or contemplated eminent domain proceeding that would result in the taking of all or any part of the Land, the Improvements or any of the Mortgaged Property, or that would adversely affect the use or the operation of the Land, the Improvements or any of the Mortgaged Property. 4.13 Zoning. The Land is zoned so as to permit the Land and Improvements to be used for their intended purpose. MIA-321354-4 - 12 - 4.14 No Default. No default or to the best of Mortgagor's knowledge no Event of Default exists under any of the Loan Documents; and no event has occurred and is continuing which, with notice or the lapse of time, or both, would constitute a default under any provision thereof. 4.15 Fictitious Name Statute. Mortgagor, if applicable, has duly complied with all ofthe requirements of the Florida Fictitious Name Statute. 4.16 Junior Mortgage. There is no Junior Mortgage encumbering the Mortgaged Property. 4.17 Environmental Contamination/Hazardous Substances. To Mortgagor's actual knowledge and in reliance on the conclusions disclosed in that certain Heating Oil Tank Closure Assessment and Source Removal Completion Report dated October 28, 1998 prepared by Miami- Dade County Department of Environmental Resources Management and that certain City of Miami Beach Memorandum dated May 10, 1999 from Bruce D. Henderson Environmental Specialist and any and all other documents and materials associated therewith, the Mortgaged Property is in full compliance with all Environmental Laws, and there are no civil, criminal or administrative actions, suits, demands, claims, hearings, notices or demand letters, notices of violation, investigations, or proceedings pending or threatened against the Mortgagor or the Land, the Improvements or the Mortgaged Property relating in any way to any Environmental Law or any agreement, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved under any Environmental Law. To Mortgagor's knowledge there have never been or are there currently any Hazardous Substances located on, in, or under the Mortgaged Property or used in connection therewith, and to Mortgagor's actual knowledge, neither Mortgagor nor any other person has ever used the Land, the Improvements or the Mortgaged Property for the manufacture, processing, distribution, use, transport, handling, treatment, storage, disposal, emission, discharge or release of any Hazardous Substance. No notice or advice has been received by Mortgagor of any condition or state of facts that would be contributing to a claim of pollution or any other damage to the environment by reason of the conduct of any business on the Land, the Improvements or any of the other Mortgaged Property or the operation thereof, whether past or present. 4.18 Representations and Warranties in Other Loan Documents. All of the representations and warranties contained in the other Loan Documents are true and correct in all material respects. 4.19 Reliance on Representations. The Mortgagor acknowledges that the Mortgagee has relied upon the Mortgagor's representations, has made no independent investigation of the truth thereof, is not charged with any knowledge contrary thereto that may be received by an examination of the public records in Tallahassee, Florida and where the Land is located, or that may have been received by any officer, director, agent, employee or shareholder of Mortgagee. MIA-321354-4 - 13 - ARTICLE V AFFIRMATIVE COVENANTS 5.1 Payment and Performance. Mortgagor shall promptly pay and punctually perform, or shall cause to be promptly paid and punctually performed, all of the Obligations as and when due and payable. 5.2 Existence. Mortgagor shall preserve and keep in full force and effect its existence, rights, franchises, trade names and qualification to transact business in the State of Florida and Mortgagor's status as a 501(c)(3) tax exempt not for profit corporation. 5.3 Compliance With Laws. Mortgagor shall promptly and faithfully comply with, conform to and obey all Governmental Requirements and the rules and regulations now existing or hereafter adopted by every Board of Fire Underwriters having jurisdiction, or similar body exercising similar functions, that may be applicable to Mortgagor, the Land, the Improvements, or any of the Mortgaged Property or to the use or manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Land, the Improvements or any of the Mortgaged Property, whether or not such Governmental Requirement or rule or regulation shall necessitate structural changes or improvements or interfere with the use or enjoyment of the Land, the Improvements or any of the Mortgaged Property. 5.4 Impositions. (a) Mortgagor shall, when due, pay all Impositions on the Land, the Improvements and the other Mortgaged Property and all taxes levied or assessed upon this Mortgage, the Note and the Obligations, or any of them. In the event of the passage, after the date of this Mortgage, of any law (i) making it illegal for the Mortgagor to pay the whole or any part of the Impositions, or charges or liens herein required to be paid by Mortgagor, or (ii) rendering the payment by Mortgagor of any and all taxes levied or assessed upon this Mortgage, the Note, or the Obligations or the interest in the Mortgaged Property represented by this Mortgage unlawful, or (iii) rendering the covenants for the payment of the matters set forth in Subparts (i) and (ii) of this Subsection by Mortgagor legally inoperative, the Mortgagor shall pay, upon demand, the entire Obligations notwithstanding anything in the Note, this Mortgage, or the other Loan Documents to the contrary. (b) Mortgagor shall deliver to Mortgagee, on or before December 31 st of each year, tax receipts evidencing the payment of all ad valorem taxes upon the Land, the Improvements and the other Mortgaged Property for the then current calendar year, and shall deliver to Mortgagee receipts evidencing the payment of all other Impositions within thirty (30) days after same become due and payable or before same shall become delinquent, whichever is sooner. In the alternative, Mortgagor shall deliver to Mortgagee on or before December 31 of each calendar year written evidence that Mortgagor and Lessor have received an exemption from the payment of ad valorem taxes upon the Land, Improvements and other Mortgaged Property and that Mortgagor and Lessor have received an exemption from the payment of any other Imposition. MIA-321354-4 - 14 - 5.5 Insurance. (a) The Mortgagor shall obtain, maintain and keep in full force and effect during the term of this Mortgage, with all premiums paid thereon, and without notice or demand, the following insurance with respect to the Land, the Improvements and the other Mortgaged Property: (i) During construction of the Improvements, Builder's All-risk, Completed Value, Non-Reporting Form Insurance ("Builder's Risk Insurance") reflecting coverage in such amounts as Mortgagee may require, but in no event less than 100% of the full replacement cost of the Mortgaged Property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure or the acquisition of the Mortgaged Property by a deed in lieu thereof, a change in ownership of the Land, the Improvements or any of the Mortgaged Property, a more hazardous use of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by Mortgagor, Lessor, or any Person having an interest therein, provided that the Mortgagee pays any premium demanded should the Mortgagor or Lessor fail to do so; the aforesaid mortgage endorsement (which creates a separate agreement between the insurance company and the Mortgagee) shall also specifically cover and apply to that portion of the Mortgaged Property constituting Personal Property; (B) a replacement cost endorsement, (C) a stipulated value/agreed amount endorsement, (D) flood insurance, if the Land is in a designated flood plain area, (E) collapse and earthquake coverage, and (F) vandalism and malicious mischief coverage. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. Such policy shall also cover all Mortgaged Property whether on the Land, stored off the Land, or in transit and the transit coverage shall equal or exceed the largest single shipment. In addition, consequential and resulting losses from an insured peril shall also be covered; (ii) Upon completion of construction of the Improvements, All-Risk (Special) Hazard Insurance ("All-Risk Hazard Insurance") (which shall include and not be limited to flood insurance) reflecting coverage in such amounts as Mortgagee may require, but in no event less than 100% of the full replacement cost of the Mortgaged Property that includes: (A) a mortgage endorsement naming the Mortgagee as mortgagee, which endorsement shall provide that the mortgagee's coverage will not be invalidated by a foreclosure or the acquisition of the Mortgaged Property by a deed in lieu thereof, a change in ownership of the Land, the Improvements or any of the Mortgaged Property, a more hazardous use of the Land, the Improvements or any of the Mortgaged Property, or a loss caused by the neglect of the Land, the Improvements or any of the Mortgaged Property by Mortgagor, Lessor, or any Person having an interest therein, provided that the Mortgagee pays any premium demanded should the Mortgagor or Lessor fail to do so; the aforesaid mortgage endorsement (\vhich creates a separate agreement between the insurance company and the Mortgagee) shall also specifically cover and apply to that portion of the Mortgaged Property constituting Personal Property; (B) a replacement cost endorsement, (C) a stipulated value/agreed amount endorsement, (D) boiler explosion coverage, ifapplicable, (E) sprinkler leakage coverage, if applicable (F) vandalism and malicious mischief coverage, (G) business M/A-321354-4 - 15 - interruption coverage, and (H) flood insurance, if the Land is in a designated flood plain area. Such policy shall provide that any and all loss payments thereunder be payable to Mortgagee alone and not jointly with Mortgagor. In addition, consequential and resulting losses from an insured peril shall also be covered; (iii) General Comprehensive Public Liability Insurance ("Liability Insurance") against claims for bodily injury, death and property damage, occurring in, on, or about the Land, the Improvements or any of the Mortgaged Property, in such amounts as may be required by Mortgagee, but in no event less than $2,000,000 per occurrence for bodily injury and property damage. Such policy shall include an additional insured endorsement naming the Mortgagee. The Mortgagor's general contractor (if applicable) shall also carry the aforesaid insurance coverage; (iv) Workers' Compensation Insurance ("Workers' Compensation") in the statutory amount, naming the Mortgagor as owner of the Mortgaged Property; and (v) Insurance in such amounts and against such other casualties and contingencies as required under the Ground Lease and as may from time to time be reasonably required by Mortgagee ("Other Insurance"). (b) All policies of insurance required hereunder shall: (i) be written by carriers which are licensed or authorized to transact business in the State of Florida, and are rated "A" or higher, Class XII or higher, according to the latest published Best's Key Rating Guide and which shall be otherwise acceptable to Mortgagee in all other respects, (ii) provide that the Mortgagee shall receive thirty (30) days' prior written notice from the insurer before a cancellation, modification, material change or non-renewal of the policy becomes effective, (iii) be written with a deductible of not more than $10,000.00 and for such amounts as are sufficient to prevent the Mortgagor from becoming a coinsurer thereunder, and (iv) be otherwise reasonably satisfactory to Mortgagee. (c) Mortgagor shall not, without the prior written consent of Mortgagee, take out separate insurance concurrent in form or contributing with regard to any insurance coverage required by this Mortgage. (d) At all times during the term of this Mortgage, Mortgagor shall have delivered to Mortgagee the original (or a certified copy) of all policies of insurance required hereby, together with receipts or other evidence that the premiums therefor have been paid. (e) Not less than thirty (30) days prior to the expiration date of any insurance policy, Mortgagor shall deliver to Mortgagee the original (or certj fied copy), or the original certificate, as applicable, of each renewal policy, together with receipts or other evidence that the premiums therefor have been paid. (f) The delivery of any insurance policy and any renewals thereof, shall constitute an assignment thereof to Mortgagee, and Mortgagor hereby grants to Mortgagee a security interest in all sllch policies, in all proceeds thereof and in all unearncd prcmiums thcrefor. MIA-J2IJ54-4 - 16 - 5.6 Tax and Insurance Escrow. If required by Mortgagee, following the occurrence of, and during the pendency of any Event of Default, Mortgagor shall pay to Mortgagee on the payment date of installments of interest as provided in the Note, together with and in addition to such installments of interest, an installment of the Impositions and Insurance premiums for such insurance as is required hereunder, next due on the Mortgaged Property, in an amount sufficient, as estimated by Mortgagee, to accumulate the sum required to pay such Impositions and insurance, as applicable, thirty (30) days prior to the due date thereof. Amounts held hereunder shall not be, nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, and no interest shall be payable with respect thereto. Upon demand of Mortgagee, Mortgagor shall deliver to Mortgagee, within ten (10) days after such demand, such additional money as is necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such Impositions and insurance premiums when due. In case of an Event of Default, Mortgagee may apply any amount under this Section remaining to Mortgagor's credit to the reduction of the Obligations, at such times and in such manner as Mortgagee shall determine. 5.7 Repair. Mortgagor shall keep the Land, the Improvements and the other Mortgaged Property in good order and condition and make all necessary or appropriate repairs and replacement thereof and betterments and improvements thereto, ordinary and extraordinary, foreseen and unforeseen, and use its reasonable good faith efforts to prevent any act that might impair the value or usefulness of the Land, the Improvements or any of the Mortgaged Property. 5.8 Restoration Following Casualty. (a) Subject to the terms and provisions of the Ground Lease, if all or any part of the Improvements or any of the Mortgaged Property shall be damaged or destroyed by a casualty covered by insurance, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adj ust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance shall be paid to Mortgagee and shall be applied first to the payment of all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and may be applied secondly to the payment of the Obligations; any sums remaining thereafter shall be payable to Mortgagor. In the alternative, and at Mortgagee's sole option, after payment of all expenses incurred by Mortgagee in obtaining the insurance proceeds (including without limitation reasonable attorneys' fees and expenses), Mortgagee may disburse to Mortgagor the net proceeds of any such insurance for the restoration, repair, or replacement of the Improvements and the other Mortgaged Property damaged or destroyed (provided, that if the term of the Ground Lease shall so require, Mortgagee shall so disburse such funds): Such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content reasonably satisfactory to Mortgagee, and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild the Improvements and the other Mortgaged Property as near as practically possible to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The application of the insurance proceeds to the restoration, repair or M1A-321354-4 - 17 - replacement of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or any of the Improvements or the other Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing, thereof, Mortgagor shall immediately give written notice thereofto Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Improvements and the other Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (c) If any work required to be performed under this section shall involve an estimated expenditure of more than $100,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect reasonably satisfactory to Mortgagee, have been submitted to and approved by Mortgagee such approval not to be unreasonably withheld or delayed, unless such plans and specifications are the same or substantially similar to those previously provided by Mortgagor to Mortgagee at the closing of the Loan. 5.9 Condemnation. (a) Subject to the terms of the Ground Lease Mortgagor shall immediately notify Mortgagee upon obtaining any knowledge of the institution of any proceedings for the "condemnation" (which term when used in this Mortgage shall include any damage or taking by any Governmental Authority and any transfer by private sale in lieu thereof, either temporarily or permanently) of the Land, the Improvements or any of the Mortgaged Property or any part thereof. In the event of such Condemnation, Mortgagee at its option may declare all of the unpaid Obligations to be immediately due and payable, and upon ten (10) days written notice from Mortgagee to Mortgagor all such Obligations shall immediately become due and payable as fully and to the same effect as if such date were the date originally specified for the final payment or maturity thereof. (b) Subject to the terms of the Ground Lease, the Mortgagee shall be entitled to all condemnation awards, compensation and other payments (collectively the "Condemnation Awards") due Mortgagor in accordance with the terms of the Ground Lease, ifany, and Mortgagee is hereby authorized, at its option, to commence, appear in and prosecute, in its own or in Mortgagor's name, any action or proceeding relating to any Condemnation, and the settlement or compromise of any claim in connection therewith. All such Condemnation Awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by Mortgagor to Mortgagee and shall be applied first, to the payment of all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in connection with any action or proceeding under this section, and may be applied secondly and at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair or alteration of the Land, the Improvements and the other Mortgaged Property (provided, that if the term of the Ground Lease shall so require, Mortgagee shall MIA-321354-4 - 18 - so disburse such funds). The Condemnation Awards shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content reasonably satisfactory to Mortgagee and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient Condemnation Awards therefor, restore, repair and alter the Land, the Improvements and the other Mortgaged Property in a manner reasonably satisfactory to Mortgagee. During the period of restoration, repair and alteration, the Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The application of the Condemnation Awards to such restoration, repair or alteration shall not affect this Mortgage or affect or reduce the Obligations. If any restoration, repair or alteration shall involve an estimated expenditure of more than One Hundred Thousand and No/IOO Dollars ($100,000.00), same shall not be commenced until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee. 5.10 Inspection. Mortgagor shall permit Mortgagee and its agents to inspect the Land, Improvements and the other Mortgaged Property at any time during normal business hours and at all other reasonable times. 5.11 Expenses. (a) Mortgagor shall pay all costs and expenses in connection with the Loan and the preparation, execution, and delivery of the Loan Documents including, but not limited to, the reasonable fees and disbursements of counsel appointed by Mortgagee, and all recording costs and expenses, documentary stamp tax and any nonrecurring intangible taxes, if applicable, and intangible tax on the entire amount of funds disbursed under the Loan, and other taxes, surveys, appraisals, premiums for policies of title and other insurance and all other fees, costs and expenses, if any, set forth in the Commitment, the Loan Agreement, or otherwise connected with the Loan transaction. (b) Mortgagor shall payor reimburse Mortgagee for all reasonable costs, charges, expenses, and reasonable attorneys' fees paid or incurred by Mortgagee pursuant to this Mortgage including but not limited to those costs, charges, expenses and fees paid or incurred for the payment of the Impositions, insurance, completion of construction, repairs, or in any action, proceeding or dispute of any kind in which Mortgagee is a party because of any Obligation not being duly and promptly performed or being violated, including, but not limited to, the foreclosure or other enforcement of this Mortgage, any condemnation or eminent domain action involving the Land, the Improvements or any of the Mortgaged Property or any part thereof, any action to protect the security hereof, or any proceeding in probate, reorganization, bankruptcy, or forfeiture in rem. All such amounts paid or incurred by Mortgagee, together with interest thereon at the Default Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately, whether or not there be notice or demand therefor. (c) Any reference in this Mortgage to attorneys' or counsels' fees paid or incurred by Mortgagee shall be deemed to include paralegals' fees and legal assistants' fees. Moreover, wherever provision is made herein for payment of attorneys' or counsels' fees or expenses incurred by the Mortgagee, said provision shall include, but not be limited to, such fees or expenses incurred in any and all judicial, bankruptcy, reorganization, administrative, or other proceedings, including MIA.321354.4 - 19 - appellate proceedings, whether such fees or expenses arise before proceedings are commenced or after entry of a final judgment. All such fees shall be reasonable. 5.12 Performance of the Commitment. The Obligations of the Mortgagor under the Commitment shall survive the execution and delivery of this Mortgage and Mortgagor shall timely comply with, abide by and perform all the Obligations of the Commitment on its part to be complied with, abided by and performed. 5.13 Preservation of Agreements. Mortgagor shall preserve and keep in full force and effect, or cause to be preserved and kept in full force and effect, all agreements, approvals, permits and licenses necessary for the development, use and operation of the Land, the Improvements and the other Mortgaged Property for its intended purpose or purposes. 5.14 Books and Records. The Mortgagor shall keep and maintain, at all times, full, true and accurate books of accounts and records, adequate to correctly reflect the results of the operation of the Mortgaged Property. 5.15 Estoppel Affidavits. Either party, shall within ten (10) days after written request from the other party, furnish a written statement, duly acknowledged, setting forth the unpaid principal balance of, and interest on, the Obligations secured by this Mortgage, and whether or not any off-sets or defenses exist thereto. 5.16 Indemnification. (a) Mortgagor shall at its own expense, and does hereby agree to, protect, indemnify, reimburse, defend and hold harmless Mortgagee and its directors, officers, agents, employees, attorneys, successors and assigns from and against any and all liabilities (including strict liability), losses, suits, proceedings, settlements, judgments, orders, penalties, fines, liens, assessments, claims, demands, damages, injuries, obligations, costs, disbursements, expenses or fees, of any kind or nature (including reasonable attorneys' fees and expenses paid or incurred in connection therewith) arising out of or by reason of (i) an incorrect legal description of the Land; (ii) any action, or inaction of Mortgagee in connection with the Note, this Mortgage, the other Loan Documents or the Mortgaged Property; (iii) the construction of any Improvements; (iv) the Improvements; (v) the use and operation of the Mortgaged Property; (vi) any acts or omissions of Mortgagor or any other Person at, on or about the Land, the Improvements or the other Mortgaged Property regarding the contamination of air, soil, surface waters or groundwaters over, on or under the Land; (vii) the presence, whether past, present or future, of any Hazardous Substances on, in or under the Land; or (viii) any past, present or future events, conditions, circumstances activities, practices, incidents, actions or plans involving the manufacture, processing, distribution, use, transport, handling, treatment, storage, disposal, cleanup, emission, discharge, seepage, spillage, leakage, release or threatened release of any Hazardous Substance on, in, under or from the Land, in connection with Mortgagor's operations on the Land, the Improvements of the other Mortgaged Property, or otherwise; Mortgagor agrees to all of the foregoing regardless of whether or not any events or circumstances described in this Section are or were within the control of Mortgagee. MIA-321354.4 - 20 - (b) The indemnifications of this Section shall survive the full payment and performance of the Obligations and the satisfaction of this Mortgage. 5.17 Mortgagor to Furnish Financial Statements. Mortgagor shall annually, until all the Obligations have been fully paid and performed, furnish Mortgagee with audited financial statements of Mortgagor, certified by Mortgagor's accountant, all in such detail as Mortgagee may reasonably require. Such statement shall be furnished not later than one hundred and twenty (120) days after the end of Mortgagor's fiscal year. 5.18 Further Assurances. Mortgagor, at its sole expense, upon the request of Mortgagee, shall execute, acknowledge and deliver such further instruments and do such further acts as may, in the reasonable opinion of the Mortgagee, be necessary, desirable, or proper to carry out more effectively the purpose of this Mortgage and to subject to the lien hereof any property intended by the terms hereof to be covered hereby, including, without limitation, any proceeds, renewals, additions, substitutions, replacements, products, betterments, accessions and appurtenances thereto and thereof. 5.19 Financing Statements. Mortgagor shall execute and deliver to Mortgagee, in forn1 and substance satisfactory to Mortgagee, such financing statements, continuation statements, and such further assurances as Mortgagee may from time to time consider reasonably necessary to create, perfect, preserve and maintain in full force and effect Mortgagee's lien upon the Fixtures, Subleases, Rents and Personal Property; and, Mortgagee, at the expense of Mortgagor, may cause such statements and assurances to be recorded and rerecorded, filed and re-filed, in the name of Mortgagor, and Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, to execute and file any and all financing statements. 5.20 Withholding Taxes. (a) If under any applicable law or regulation or the interpretation thereof by any Governmental Authority charged with the administration thereof, Mortgagor shall be required to make any withholding or deduction from any payment of the Obligations (whether of principal, interest or otherwise) to be made by or on behalf of Mortgagor to Mortgagee for or in respect of any present or future taxes, levies, imposts, duties, charges, or fees of any nature (excepting only Mortgagee's income taxes of the United States of America and its political subdivisions), the amount due to Mortgagee from Mortgagor in respect of such payment shall be increased to the extent necessary to ensure that after making such withholding or deduction and any withholdings or deductions required to be made in respect to any such increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have received had no such withholding or deduction been required to be made. In the event of any such withholding or deduction, Mortgagor shall deliver to Mortgagee forthwith after receipt thereof the official receipt or other official documentation evidencing the payment of the amount so withheld or deducted. (b) If Mortgagor shall fail to make any withholding or deduction so required to be made, Mortgagee reserves the right to make payment thereof to the appropriate Governmental Authority. If Mortgagee makes such payment under any applicable law or regulation or if as a result MIA-3213S4-4 - 21 - of the interpretation thereof by any Governmental Authority charged with the administration thereof in respect of any such payment, whether of principal, interest or otherwise made or to be made by Mortgagor, Mortgagee shall be required to pay any tax, levy, impost, duty, charge or fee of any nature (excepting only Mortgagee's income taxes of the United States of America and its political subdivisions), Mortgagor shall and does hereby indemnify Mortgagee against and shall forthwith upon demand of Mortgagee pay to Mortgagee the amount of such payment, together with any interest, penalties, and expenses in connection therewith, and interest thereon at the Default Rate; and in the event any of the aforesaid amounts, interest, penalties or expenses shall be subject to withholding or deduction, the amount thereof shall be increased to the extent necessary to ensure that after making such withholding or deduction and any withholdings or deductions in respect of any such increase, Mortgagee shall receive an amount equal to the amount which Mortgagee would have received had no such withholding or deduction been required to be made. (c) Any increased amount required to be paid by Mortgagor in accordance with the provisions of this Section shall have the same character as the amount in respect of which such increased amount is determined, but shall not (i) if characterized as principal, be applied in reduction of the principal amount outstanding under the obligations or (ii) if characterized as interest, be applied in reduction of accrued, unpaid interest under the Obligations. 5.21 Hazardous Substances. (a) Mortgagor shall immediately notify Mortgagee orally and in wntmg if Mortgagor (i) becomes aware of the presence of any Hazardous Substance or other environmental problem or liability on, in, under, released from or associated with the Land, the Improvements or the Mortgaged Property, or (ii) receives any complaint, order, citation, notice or other written or oral communication (collectively an "Environmental Complaint") regarding air emissions, water discharges or any other environmental, health or safety matter affecting the Land, the Improvements, or the other Mortgaged Property or any part thereof, or the presence of any Hazardous Substance on, in, under, released from or associated with the Land, the Improvements or the other Mortgaged Property, or any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans involving the manufacture, processing, distribution, use, transport, handling, treatment, storage, disposal, cleanup, emission, discharge, seepage, spillage, leakage, release or threatened release of any Hazardous Substance on, under or from the Land, the Improvements or the other Mortgaged Property. Mortgagor shall forthwith transmit to Mortgagee copies of any Environmental Complaint. (b) Mortgagor shall, at its own cost and expense, take any action necessary or advisable for the cleanup of any Hazardous Substance on, in, under, released from or associated with the Land, the Improvements or the other Mortgaged Property, including any removal, containment or remedial actions in accordance with all applicable Environmental Laws, and shall payor cause to be paid all cleanup, administrative, enforcement and other costs, expenses or fines which may be asserted against Mortgagor, Mortgagee, the Land, the Improvements or the other Mortgaged Property, or any other Person in connection therewith. Mortgagee shall following an Event of Default, have the right but not the obligation, and without any limitation of Mortgagee's other rights under this Mortgage, to enter onto the Land and the Improvements or to take any action MIA-321354-4 - 22 - as it deems necessary or advisable to cleanup, remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Substance or any Environmental Complaint following receipt of any notice from any Person or Governmental Authority asserting the existence of any Hazardous Substance or an Environmental Complaint pertaining to the Land, the Improvements or any of the Mortgaged Property or any part thereof which, iftme, could result in an order, suit or other action against Mortgagor or Mortgagee which, in the sole opinion of Mortgagee, could jeopardize Mortgagee's security under this Mortgage. All costs and expenses incurred by Mortgagee in the exercise of any such rights shall be secured by this Mortgage and shall be payable by Mortgagor upon demand. (c) Mortgagee shall have the right, in its reasonable discretion if Mortgagee shall have reasonable cause to believe any condition of environmental contamination exists on the Mortgaged Property, to require Mortgagor to periodically perform an environmental audit of the Land, the improvements and the other Mortgaged Property (but not more frequently than annually unless an Environmental Complaint is then outstanding) and, if deemed reasonable necessary by Mortgagee, an environmental risk assessment of the Hazardous Substances waste management practices and Hazardous Substances waste disposal sites thereon. All environmental audits and environmental risk assessments shall be at Mortgagor's expense, shall be performed and prepared by an environmental consultant reasonably satisfactory to Mortgagee, and shall otherwise be in form and substance reasonably satisfactory to Mortgagee. Should Mortgagor fail to provide such environmental audit or environmental risk assessment within thirty (30) days of the Mortgagee's written request, Mortgagee shall have the right, but not the obligation, to retain an environmental consultant to perform and prepare same. All reasonable costs and expenses incurred by Mortgagee in the exercise of such rights shall be secured by this Mortgage and shall be payable by Mortgagor upon demand or charged to Mortgagor's loan balance at the discretion of Mortgagee. 5.22 Financial Reports, Etc. Mortgagor shall, at Mortgagor's sole cost and expense, provide Mortgagee with any financial statements, financial reports, appraisals or other documentation with respect to Mortgagor, the Land, the Improvements or the other Mortgaged Property which may be required from time to time by any Governmental Authority having regulatory authority over Mortgagee. Such infonnation shall be provided by Mortgagor within thirty (30) days after written request from Mortgagee but in any event not prior to the time Mortgagor is required to furnish same to any such Governmental Authority. 5.23 Performance of Loan Documents. Mortgagor shall duly and punctually perform all covenants, terms and agreements expressed as binding upon it under all of the Loan Documents. 5.24 Performance of Other Agreements. Mortgagor shall duly and punctually perform all covenants, terms and agreements expressed as binding upon it under any Permitted Title Exception, or any other agreement of any nature whatsoever binding upon it with respect to the Land, the Improvements or any of the Mortgaged Property. 5.25 Construction Loan Agreement. The Loan evidenced by the Note and secured by this Mortgage is to be disbursed in accordance with the terms and provisions of the Loan Agreement. The Note, this Mortgage and the Loan Agrcement shall always bc taken and read together as MIA-321354-4 - 23 - constituting parts of one transaction. All sums disbursed pursuant to the terms of the Loan Agreement shall be secured by this Mortgage with the same priority as if advanced on the date hereof. Mortgagor shall fully, duly and promptly discharge each and every of its agreements contained in the Loan Agreement and comply with, abide by and perform all of the provisions and conditions thereof. 5.26 Ground Lease. (a) Mortgagor shall (i) duly and punctually observe, perform and discharge, or cause to be observed, performed and discharged, all of the obligations and undertakings of Mortgagor or its agents under the Ground Lease and will do all things necessary to keep unimpaired Mortgagor's right in and to the Leasehold Estate created by the Ground Lease; (ii) enforce or secure, or cause to be enforced or secured, the due and punctual performance of each and every obligation and undertaking of the Lessor under the Ground Lease; (iii) deliver to Mortgagee promptly upon receipt thereofby Mortgagor, a copy of any notice that Mortgagor is in default and any pleading and other notices received subsequent to the default (the "Default Notice") under the Ground Lease or that an event has occurred which with due notice or the lapse of time, or both, would constitute an "event of default" (as the term may be defined in the Ground Lease) under the Ground Lease; upon receipt by Mortgagee of any such Default Notice, Mortgagee may rely thereon even though the existence of such "event of default" or the nature thereof may be questioned or denied by Mortgagor or by any party on behalf of Mortgagor the receipt by Mortgagee of a Default Notice shall not be deemed an Event of Default under this Mortgage unless Mortgagor has committed an "Event of Default" under the Ground Lease; and (iv) deliver to Mortgagee, promptly upon receipt thereofby Mortgagor, copies of all other notices, certificates, requests, demands and other instruments furnished or delivered to or by Mortgagor under the Ground Lease in any way relating to the Ground Lease or Mortgagor's interest therein. (b) If Mortgagor fails to observe, perform, or discharge any obligation or undertaking of Mortgagor under the Ground Lease, then Mortgagee may on behalf of Mortgagor, but without obligation to do so, and without notice to and demand upon Mortgagor, and without releasing Mortgagor from any Obligation and without waiving any Event of Default hereunder, take any action Mortgagee deems necessary or desirable to prevent or cure any such "event of default" by Mortgagor, including, but without limitation, the right to pay any and all rental payments, insurance premiums, taxes and assessments and other sums due or to become due under the Ground Lease. Mortgagor hereby expressly grants to Mortgagee and agrees that Mortgagee and its agents shall have the absolute and immediate right to enter upon the Land and the Improvements or any part thereof to such extent and as often as Mortgagee in its sole discretion deems necessary or desirable in order to prevent or cure any such "event of default" by Mortgagor. All reasonable payments and all costs and expenses incurred by Mortgagee in connection with any such prevention or cure (including, without limitation, reasonable attorneys' fees and expenses), together with interest thereon at the Default Rate from the date incurred by Mortgagee, shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately, whether or not there be notice, demand, an attempt to collect same, or suit pending. To further effectuate Mortgagee's rights under this Subsection, Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an interest, with full pO\ver of substitution, and MIA-321354-4 - 24 - empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney-in- fact, to perform and discharge any and all obligations and undertakings of Mortgagor under the Ground Lease. (c) Mortgagor covenants and agrees that unless Mortgagee shall otherwise expressly consent in writing, the fee title to the property demised by the Ground Lease and the Leasehold Estate shall not merge but shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor, Mortgagor, or a third party by purchase or otherwise; and in case Mortgagor acquires the fee title or any other estate, title or interest in the Mortgaged Property, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. (d) No release or forbearance of any of Mortgagor's obligations under the Ground Lease, pursuant to the Ground Lease, or otherwise, shall release Mortgagor from any of its obligations under this Mortgage, including its obligation with respect to the payment of rent as provided for in the Ground Lease and the performance of all of the terms, provisions, covenants, conditions and agreements contained in the Ground Lease, to be kept, performed and complied with by the Lessee therein. (e) Mortgagor shall not make any election or give any consent or approval (other than the exercise of a renewal right or extension right or other right conferring a benefit on Mortgagor, provided that any such action has no adverse effect or consequence to the Mortgagee) for which a right to do so is conferred upon Mortgagor as Lessee under the Lease without Mortgagee's prior written consent, su~h consent not to be unreasonably withheld or delayed. In case of any Event of Default hereunder, all such rights, together with the right of termination, cancellation, modification, change, supplement, alteration or amendment of the Ground Lease, all of which have been assigned for collateral purpose to Mortgagee, shall vest in and be exercisable solely by Mortgagee. (f) The lien of this Mortgage shall attach to all of Mortgagor's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the United States Bankruptcy Code (the "Bankruptcy Code"), 11 U.S.C. S 365(h), including without limitation, all of Mortgagor's rights to remain in possession of the Mortgaged Property. Mortgagor shall not, without Mortgagee's prior written consent, such consent not to be unreasonably withheld or delayed, elect to treat the Ground Lease as terminated under Subsection 365(h)(I) of the Bankruptcy Code, 11 U.S.C. 9 365(h)( I). Any such election made without Mortgagee's consent shall be void. Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection of the Ground Lease by Lessor or any other fee owner of the Mortgaged Property under the Bankruptcy Code. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of the Lease, including MIA-321354-4 - 25 - without limitation, the right to file and prosecute, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect to the Lessor or any fee owner under the Bankruptcy Code. Unless an Event of Default hereunder shall have occurred, Mortgagor shall be entitled to join with Mortgagee in such proceedings, provided, however, that in doing so Mortgagor shall take no actions which are adverse to the interests of Mortgagee. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee as damages arising out of the rej ection of the Ground Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including without limitation, attorneys' fees) incurred in connection with the exercise of any of its rights or remedies under this section. Mortgagor shall promptly make, execute, acknowledge and deliver, in form and substance satisfactory to Mortgagee, a UCC Financing Statement (Form UCC-1) and all such additional instruments, agreements and other documents, as may at any time hereafter be required by Mortgagee to effectuate and carry out the assignment made pursuant to this section. Ifpursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U.S.C. S 365(h)(2), Mortgagor shall seek to offset against the rent reserved in the Lease the amount of any damages caused by the nonperformance by the Lessor or any fee owner of any of their obligations under the Lease after the rejection by the Lessor or any fee owner of the Lease under the Bankruptcy Code, Mortgagor shall, prior to effecting such offset, notify Mortgagee of its intent to do so, setting forth the amounts proposed to be so offset and the basis therefor. Mortgagee shall have the right to object to all or any part of such offset that, in the reasonable judgment of Mortgagee, would constitute a breach of the Ground Lease, and in the event of such objection, Mortgagor shall not effect any offset of the ~ounts so objected to by Mortgagee. Neither Mortgagee's failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Mortgagee. Mortgagor shall pay and protect Mortgagee, and indemnify and save Mortgagee harmless from and against, any and all claims, demands, actions, suits, proceedings, damages, losses, costs and expenses of every nature whatsoever (including without limitation, reasonable attorneys' fees) arising from or relating to any offset by Mortgagor against the rent reserved in the Ground Lease. If any action, proceeding, motion or notice shall be commenced or filed in respect of the Lessor or any fee owner, the Mortgaged Property or the Ground Lease in connection with any case under the Bankruptcy Code, Mortgagee shall have the option, exercisable upon notice from Mortgagee to Mortgagor, to conduct and control any such litigation with counsel of Mortgagee's choice reasonably satisfactory to Mortgagor. Mortgagee may proceed in its own name or in the name of Mortgagor in connection with any such litigation, and Mortgagor agrees to execute any and all powers, authorizations, consents or other documents required by Mortgagee in connection therewith. Mortgagor shall, upon demand, pay to Mortgagee all reasonable costs and expenses (including reasonable attorneys' fees) paid or incurred by Mortgagee in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by Mortgagor as aforesaid shall be secured by the lien of this Mortgage and shall be added to the principal amount of the indebtedness secured hereby. Unless an Event of Default hereunder shall have occurred, Mortgagor shall be entitled to join with Mortgagee in such proceedings, provided, however, that in doing so Mortgagor shall take no actions which are adverse to the interests of Mortgagee. Mortgagor MIA-321354-4 - 26 - shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Ground Lease in any such case under the Bankruptcy Code without the prior written consent of Mortgagee, which consent shall not be unreasonably withheld or delayed. Mortgagor shall, after obtaining knowledge thereof, promptly notify Mortgagee of any filing by or against the Lessor or other fee owner of a petition under the Bankruptcy Code. Mortgagor shall promptly deliver to Mortgagee, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Mortgagor in connection with any such petition and any proceedings relating thereto. If there shall be filed by or against Mortgagor a petition under the Bankruptcy Code and Mortgagor, as Lessee under the Ground Lease, shall determine to reject the Lease pursuant to Section 365( a) of the Bankruptcy Code, Mortgagor shall give Mortgagee not less than thirty (30) days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court for authority to reject the Ground Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such thirty (30) day period a notice stating that Mortgagee demands that Mortgagor assume and assign the Ground Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code. If Mortgagee shall serve upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject the Ground Lease and shall comply with the demand provided for in the preceding sentence. ARTICLE VI NEGATIVE COVENANTS 6.1 Use Violations, Etc. ~lortgagor shall not use the Land, the Improvements or any of the Mortgaged Property or allow the same to be used or occupied for any unlawful purpose or in violation of any Governmental Requirement or restrictive covenant covering, affecting or applying to the ownership, use or occupancy thereof, commit or permit or suffer any act to be done or any condition to exist on the Land, the Improvements or any of Mortgaged Property or any article to be brought thereon that may be dangerous, or that may in any way increase any ordinary fire or other hazard, unless safeguarded as required by law, or that may, in law, constitute a nuisance, public or private. 6.2 Care of the Mortgaged Property. (a) Mortgagor shall not commit or permit any waste, impairment, or deterioration of the Land, the Improvements or any of Mortgaged Property, or perform any clearing, grading, filling or excavation thereof, or make or permit to be made any alterations or additions thereto that would have the effect of materially diminishing the value thereof (in Mortgagee's sole but reasonable opinion) or take or pemlit any action that will in any way increase any ordinary fire or other hazard arising out 0 f the construction or operation the reo f. MIA.3213S4-4 - 27 - (b) Mortgagor shall not, without the prior written consent of Mortgagee which consent shall not be unreasonably denied or delayed, remove, demolish or substantially alter, or permit the removal, demolishment or substantial alteration of, any Improvements on the Land. In the event such consent is given and if any work to be performed shall involve an estimated expenditure of more than $100,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect reasonably satisfactory to Mortgagee, shall have been submitted to and approved by Mortgagee. (c) Mortgagor shall not permit any of the Fixtures or Personal Property to be demolished or to be removed from the Land and Improvements without the prior written consent of Mortgagee not to be unreasonably withheld or delayed. In the event such consent is given, the Mortgagee may require that said Fixture or Personal Property be replaced by an article of equal suitability and value, owned by Mortgagor free and clear of any vendor's lien, chattel mortgage, or security interest of any kind, except such as may be approved in writing by Mortgagee, and that such replacement article be encumbered by the lien of this Mortgage. Notwithstanding the foregoing, the Mortgagor may remove or demolish any Fixture or Personal Property without first obtaining the Mortgagee's prior written consent provided (i) the value of such article does not exceed in value at the time of disposition thereof $100,000.00 for any single item, or a total of $250,000.00 in anyone year for all such items and (ii) that said article is replaced and subject to the lien of this Mortgage as aforesaid. 6.3 Other Liens and Mortgages. (a) Mortgagor shall not, without the prior written consent of Mortgagee, create or permit to be created or to remain, any mortgage, pledge, construction lien or other lien, conditional sale or other title retention agreement, encumbrance, claim, or charge on (whether prior or subordinate to the lien of this Mortgage or the other Loan Documents) the Mortgaged Property or income therefrom, other than this Mortgage, the other Loan Documents and the Permitted Title Exceptions. Any transaction prohibited under this Section shall be null and void. (b) Mortgagor shall not, without the prior written consent of Mortgagee, (i) enter into any agreement either oral or in writing, whereby any permitted Junior Mortgage is modified or amended in any manner whatsoever, (ii) permit the release of any guarantor or modification of any guaranty affecting any permitted Junior Mortgage, or (iii) incur any additional indebtedness secured thereby. (c) Mortgagor shall not directly or indirectly, take, acquire, or pem1it to be taken or acquired by any other party, any interest whatsoever in any pem1itted Junior Mortgage without the prior written consent of Mortgagee. 6.4 Transfer of Mortgaged Property. Mortgagor shall not sell, convey, or transfer or permit to be sold, conveyed or transferred any interest in the Mortgaged Property or any part thereof. A contract to deed or agreement for deed, or an assignment, pledge, or encumbrance of a beneficial interest in any land trust, or a lease for all or substantially all of the Land or Improvements shall constitute a transfer prohibited by the provisions of this Section and shall be null and void. MI^-321354-4 - 28 - 6.5 Chanee in Ownership of Mortgagor. Mortgagor shall not, without the prior written consent of Mortgagee, do or permit any other Person to do any of the following: (a) if Mortgagor is a corporation or a limited partnership with a corporate general partner(s), (i) transfer, directly or indirectly, in the aggregate 25% or more of the issued and outstanding stock in Mortgagor, or its corporate general partner(s) as of the date hereof, or (ii) issue any additional stock of Mortgagor, or its corporate general partner(s) after the date hereof; or (b) if Mortgagor is a Partnership, (i) transfer any Partnership interest of any partner whose interest, directly or indirectly, in the Partnership is 5% or more as of the date hereof, (ii) transfer, directly or indirectly, in the aggregate a 25% or more interest in the Partnership, or (iii) admit to Mortgagor any new partner; or (c) if Mortgagor owns the Mortgaged Property as trustee, resign as trustee or permit the appointment ofa successor trustee. Any transfer described in Subsections (a) or (b) above shall be deemed to have occurred where such purported transfer shall be (i) a direct transfer, sale, or conveyance by a stockholder or partner, (ii) the result of an encumbrance or pledge of such stock or Partnership interest, or (iii) the result of action by any Person against such stockholder or partner. 6.6 Mortgagor's Certificate of Incorporation: Mortgagor, if a corporation shall not, without the prior written consent of Mortgagee, amend, modify, or change the charitable purpose for which the corporation was established, as set forth in its charter documents or articles or certificate of incorporation or bylaws or lose its not for profit status. 6.7 Environmental Contamination/Hazardous Substances. Mortgagor, the Land, the Improvements and the Mortgaged Property shall at all times remain in full compliance with all Environmental Laws. Mortgagor shall not, nor permit any other person to manufacture, process, distribute, use, transport, handle, treat, store, dispose, emit, discharge, leak, spill or release any Hazardous Substance on, in, under or from the Land, the Improvements or the Mortgaged Property. 6.8 Ground Lease. Mortgagor shall not (a) amend, modify, extend, or in any way alter the terms of the Ground Lease without prior written consent of the Mortgagee which consent shall not be unreasonably withheld or delayed, or cancel, terminate, or surrender the Ground Lease; and Mortgagor does hereby expressly release, relinquish and surrender unto Mortgagee all of the Mortgagor's right, power and authority to amend, modify, extend or alter any of the terms or provisions of the Ground Lease or to cancel, terminate or surrender the Ground Lease, and any attempt on the part of Mortgagor to exercise any such right without the prior written consent of Mortgagee shall be null and void ah initill and shall be of no force and effect; (b) waive, condone, or in any way release or discharge the Lessor from duly and punctually performing any of Lessor's obligations or undertakings under the Ground Lease; or (c) do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair or tend to impair the security of this Mortgage or will be grounds for terminating or declaring a forfeiture of the Ground Lease. MIA-321354-4 - 29 - ARTICLE VII EVENTS OF DEFAULT 7.1 Events of Default. An "Event of Default", as used in this Mortgage, shall occur at any time or from time to time: (a) Failure to Pay. Ifany Obligation or any installment thereof is not paid within five (5) days from the date when it is due and payable; (b) Failure to Perform. If any Obligation [other than an Obligation requiring the payment of money or the occurrence of an event described in Subsections 7.1 (c) through 7.1 (0), inclusive, below] is not duly and promptly performed or is violated and such non-performance or violation is not curable, or if curable continues for a period of thirty (30) days after written notice thereof from Mortgagee to Mortgagor, provided, however, if such non-performance or violation may not reasonably be cured within such thirty (30) day period, an Event of Default shall not be deemed to have occurred so long as same shall be diligently and continuously endeavored to be cured. Notwithstanding the foregoing, it shall be an Event of Default if such non-performance or violation has not been cured within sixty (60) days after notice thereof; (c) False Representation. If any material representation or warranty made in the Ground Lease or in any Loan Document by or on behalf of Mortgagor is at any time false, misleading, or breached; (d) Judgment. If a final judgment for the payment of money in excess of $50,000.00 is rendered against Mortgagor and the same remains unsatisfied except for such period of time as execution on the judgment is effectively stayed; (e) Voluntary Bankruptcy, Etc. If Mortgagor (i) is voluntarily adjudicated a bankrupt or insolvent, (ii) seeks or consents to the appointment of a receiver or trustee for itself or for all or any part of its property, (iii) files a petition seeking relief, including reorganization, arrangement or similar relief, under the present Bankruptcy Code or other similar present or future applicable laws of the United States or any state or any other competent jurisdiction, (iv) makes a general assignment for the benefit of creditors or (v) admits in writing its inability to pay its debts as they mature; (f) Involuntary Bankruptcy, Etc. If a receiver or trustee is appointed for Mortgagor or for all or any part of its properties without Mortgagor's consent and such appointment is not vacated within sixty (60) days, or if a petition is filed against Mortgagor seeking relief, including reorganization, arrangement or similar relief, under the present Bankruptcy Code or other similar present or future applicable laws of the United States or any state or other competent jurisdiction, and such petition is not dismissed within sixty (60) days after the filing thereof; (g) Dissolution. If Mortgagor voluntarily or involuntarily dissolves or liquidates; MIA-3213S4-4 - 30 - (h) Financial Condition. If a material adverse change has occurred, at any time or times subsequent to the date hereof during the term of the Loan, in the financial condition of the Mortgagor. The Mortgagee shall in its sole but reasonable discretion determine that which is "material" or "adverse"; Mortgagor acknowledges that Mortgagee has relied on Mortgagor's financial statements submitted in approving the Loan. Mortgagor agrees that until the Loan is paid in full, it will not transfer any of its assets either directly or by merger, consolidation, sale of any interest in Mortgagor or otherwise in such manner as to cause a material adverse effect on Mortgagor's ability to repay its current obligations and liabilities. (i) Default Under Loan Documents. If any default occurs under any of the other Loan Documents or ifany obligation of Mortgagor under any of the other Loan Documents is not fully performed following the passage of any applicable cure period. U) Affirmative Covenants. If Mortgagor fails to perform or observe any of the covenants and conditions contained in this Mortgage, or if curable, fails to correct same within any applicable grace period provided for herein; (k) Foreclosure of Other Liens. Ifthe holder of any mortgage or other lien on the Mortgaged Property, whether a Permitted Title Exception or not (without hereby implying Mortgagee's consent to any such mortgage or other lien) institutes foreclosure or other proceedings for the enforcement of any of its remedies thereunder; (I) Notice Limiting Future Advances. If Mortgagor, pursuant to Florida Statutes 697.04(1)(b) as amended from time to time, files for record a notice limiting the maximum amount which may be secured by this Mortgage; (m) Default Under Junior Mortgage. If any default or any event of default occurs under any permitted Junior Mortgage, whether or not foreclosure or other proceedings have been instituted thereunder; (n) Ground Lease. If any "default" or "event of default" (as the term may be defined under the Ground Lease) occurs under the Ground Lease which is not cured within any applicable cure period, or if Mortgagor fails to give Mortgagee notice within two (2) business days of any default under the Ground Lease, or if Mortgagor fails to furnish to Mortgagee within ten (10) business days any and all information which Mortgagee may reasonably request concerning the performance by Mortgagor of its obligations and undertakings under the Ground Lease, or if Mortgagor fails to permit Mortgagee or Mortgagee's agents at all reasonable times to investigate or examine Mortgagor's performance under the Ground Lease, or if Mortgagor fails to permit Mortgagee from curing any default of Mortgagor under the Ground Lease; MIA-321354-4 - 31 - ARTICLE VIII RIGHTS AND REMEDIES 8.1 Remedies. If an Event of Default shall have occurred, Mortgagee may, at its option, subject to the tenns and conditions of the Ground Lease, including, without limitation, Sections 13- 02 and Article 24, exercise any, some or all of the following remedies, concurrently or consecutively. (a) Acceleration. Mortgagee may declare all of the unpaid Obligations, together with all accrued interest thereon, to be due and payable without notice or demand which are hereby expressly waived, and upon such declaration all such Obligations shall immediately become due and payable as fully and to the same effect as if the date of such declaration were the date originally specified for the full payment or maturity thereof. (b) Mortgagee's Right to Enter and Take Possession, Operate and Apply Income. (i) Mortgagee may demand that Mortgagor surrender the actual possession of the Mortgaged Property and upon such demand, Mortgagor shall forthwith surrender same to Mortgagee and, to the extent permitted by law, Mortgagee itself, or by such officers or agents as it may appoint, may enter and take possession of all of the Mortgaged Property and may exclude Mortgagor and its agents and employees wholly therefrom. (ii) If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or order conferring on Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession to Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. (iii) Mortgagee may from time to time: (A) continue and complete construction of, hold, store, use, operate, manage and control the Mortgaged Property and conduct the business thereof, (B) make all reasonably necessary maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional Fixtures and Personal Property; (C) insure or keep the Mortgaged Property insured; (D) exercise all the rights and powers of the Mortgagor in its name or otherwise with respect to the same; and (E) enter into agreements with others (including, without limitation, a new ground lease, new Subleases or amendments, extensions, or cancellations to existing Subleases) all as Mortgagee from time to time may determine in its reasonable sole discretion. Mortgagor hereby constitutes and irrevocably appoints Mortgagee its true and lawful attorney-in-fact, which appointment is coupled with an interest, with full power of substitution, and empowers said attorney or attorneys in the name of Mortgagor, but at the option of said attorney-in-fact, to do any and all acts and execute any and all agreements that Mortgagee may reasonably deem necessary or proper to implement and perforn1 any and all of the foregoing. MIA-321354-4 - 32 - (iv) The Mortgagee may, with or without taking possession of the Mortgaged Property as hereinabove provided, collect and receive all the Rents therefrom, including those past due as well as those accruing thereafter, and shall apply the monies so received first, to the payment of all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee and its agents in connection with the collection of same, whether or not in possession of the Mortgaged Property, and second, in such order as Mortgagee may elect, to the payment of the Obligations. (c) Proceedings To Recover Sums Due. (i) If there shall occur an Event of Default with regard to the payment of any installment or part of any Obligation after the expiration of any applicable grace period, Mortgagee shall be entitled to sue for and to recover judgment against the Mortgagor for the amount so due and unpaid together with all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate from the date incurred by Mortgagee. All such costs and expenses shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately. (ii) If Mortgagor shall fail to pay upon the Mortgagee's demand, after acceleration as provided in Subsection 8.1 (a), all of the unpaid Obligations, together with all accrued interest thereon, Mortgagee shall be entitled to sue for and to recover judgment against the Mortgagor for the entire amount so due and unpaid together with all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in connection with such proceeding, together with interest thereon at the Default Rate from the date incurred by Mortgagee. All such costs and expenses shall be secured by this Mortgage and shall be payable by Mortgagor immediately. Mortgagee's right under this Sub-section (ii) may be exercised by Mortgagee either before, after or during the pendency of any proceedings for the enforcement of this Mortgage, including appellate proceedings. (iii) No recovery of any judgment as provided in Subsections (i) and (ii) above and no attachment or levy of any execution upon any of the Mortgaged Property or any other property shall in any way affect the lien of this Mortgage upon the Mortgaged Property or any part thereof, or any lien, rights, powers, or remedies of Mortgagee hereunder, but such lien, rights, powers and remedies shall continue unimpaired as before. (d) Foreclosure. (i) Mortgagee may institute proceedings for the partial or complete foreclosure of this Mortgage and Mortgagee may, pursuant to any final judgment of foreclosure, sell the Mortgaged Property as an entirety or in separate lots, units, or parcels. ~\I^-321354-4 - 33 - (ii) In case of a foreclosure sale of all or any part of the Mortgaged Property, the proceeds of sale shall be applied in accordance with Section 8.8 hereof, and the Mortgagee shall be entitled to seek a deficiency judgment against the Mortgagor to enforce payment of any and all Obligations then remaining due and unpaid, together with interest thereon, and to recover a judgment against the Mortgagor therefor. (iii) The Mortgagee is authorized to foreclose this Mortgage subject to the rights of any subtenants of the Mortgaged Property, or Mortgagee may elect which subtenants Mortgagee desires to name as parties defendant in such foreclosure and failure to make any such subtenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be, nor be asserted by the Mortgagor to be, a defense to any proceedings instituted by the Mortgagee to collect the unpaid Obligations or to collect any deficiency remaining unpaid after the foreclosure sale of the Mortgaged Property. (e) Receiver. Mortgagee may apply to any court of competent jurisdiction to have a receiver appointed to enter upon and take possession of the Mortgaged Property, collect the Rents therefrom and apply the same as the court may direct, such receiver to have all of the rights and powers permitted under the laws of the State of Florida. The right of the appointment of such receiver shall be a matter of strict right without regard to the value or the occupancy of the Mortgaged Property or the solvency or insolvency of Mortgagor. The reasonable expenses, including receiver's fees, attorneys' fees, costs and agent's commission incurred pursuant to the powers herein contained, together with interest thereon at the Default Rate, shall be secured hereby and shall be due and payable by Mortgagor immediately without notice or demand. Notwithstanding the appointment of any receiver or other custodian, Mortgagee shall be entitled as pledgee to the possession and control of any cash or deposits at the time held by, payable, or deliverable under the terms ofthis Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the unpaid Obligations against any such cash or deposits in such order as Mortgagee may elect. (f) Remedies as to Personal Property. Mortgagee may exercise any or all of its rights and remedies under the Uniform Commercial Code-Secured Transactions as adopted by the State of Florida or other applicable law as well as all other rights and remedies possessed by Mortgagee, all of which shall be cumulative. Mortgagee is hereby authorized and empowered to enter the Land and Improvements or other place where the Personal Property may be located without legal process, and to take possession of the Personal Property without notice or demand, which hereby are waived to the maximum extent permitted by the laws of the State of Florida. Upon demand by Mortgagee, Mortgagor shall make the Personal Property available to Mortgagee at a place reasonably convenient to Mortgagee. Mortgagee may sell at one or more public or private sales and for such price as Mortgagee may deem commercially reasonable, any and all of the Personal Property secured by this Mortgage, and any other security or property held by Mortgagee and Mortgagee may be the purchaser of any or all of the Personal Property. (g) Q1hcr. Mortgagee may institute and maintain any suits and proceedings as the Mortgagee may deem advisable (i) to prevent any impainnent of the Mortgaged Property by any acts which may be unlawful or in violation of this Mortgage, (ii) to prcserve or protect its intercst in the Mortgaged Property, and (iii) to restrain the enforcement of or compliance with any MIA-321354-4 - 34 - Governmental Requirement that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such Governmental Requirement might impair the security hereunder or be prejudicial to the Mortgagee's interest. 8.2 Remedies Cumulative and Concurrent. No right, power or remedy of Mortgagee as provided in the Note, this Mortgage, or the other Loan Documents is intended to be exclusive of any other right, power, or remedy of Mortgagee, but each and every such right, power and remedy shall be cumulative and concurrent and in addition to any other right, power or remedy available to Mortgagee now or hereafter existing at law or in equity and may be pursued separately, successively or together against Mortgagor, or any endorser, co-maker, surety or guarantor of the Obligations, or the Mortgaged Property or any part thereof, or anyone or more of them, at the sole discretion of Mortgagee. The failure of Mortgagee to exercise any such right, power or remedy shall in no event be construed as a waiver or release thereof. 8.3 Waiver, Delay or Omission. No waiver of any Event of Default hereunder shall extend to or affect any subsequent or any other Event of Default then existing, or impair any rights, powers or remedies consequent thereon, and no delay or omission of Mortgagee to exercise any right, power or remedy shall be construed to waive any such Event of Default or to constitute acquiescence therein. 8.4 Credit of Mortgagee. To the maximum extent permitted by the laws of the State of Florida, upon any sale made under or by virtue of this Article, Mortgagee may bid for and acquire the Mortgaged Property, or any part thereof, and in lieu of paying cash therefor may apply to the purchase price, any portion of or all of the unpaid Obligations in such order as Mortgagee may elect. 8.5 Salf. Any sale or sales made under or by virtue of this Article shall operate to divest all the estate, right, title, interest, claim and demand whatsoever at law or in equity, ofthe Mortgagor and all Persons, except subtenants pursuant to Subleases approved by Mortgagee, claiming by, through or under Mortgagor in and to the properties and rights so sold, whether sold to Mortgagee or to others. 8.6 Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, seizure of the Mortgaged Property by any Governmental Authority, or other judicial proceedings affecting the Mortgagor, any Guarantor, any endorser, co-maker, surety, or guarantor of the Obligations, or any of their respective properties, the Mortgagee, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have its claim allowed in such proceedings for the entire unpaid Obligations at the date of the institution of such proceedings, and for any additional amounts which may become due and payable after such date. 8.7 Waiver of Redemption, Notice, Marshalling, Etc. Mortgagor hereby waives and releases, for itself and anyone claiming through, by, or under it, to the maximum extent permitted by the laws of the State of Florida: MIA-32 I 35.J-4 - 35 - (a) all benefit that might accrue to Mortgagor by virtue of any present or future law exempting the Mortgaged Property, or any part of the proceeds arising from any sale thereof, from attachment, levy or sale on execution, or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment, (b) unless specifically required herein, all notices of default, or Mortgagee's actual exercise of any option or remedy under the Loan Documents, or otherwise, and (c) any right to have the Mortgaged Property marshalled. 8.8 Application of Proceeds. The proceeds of any sale of all or any portion of the Mortgaged Property shall be applied by Mortgagee first, to the payment of receiver's fees and expenses, if any, and to the payment of all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee, together with interest thereon at the Default Rate from the date so incurred, in connection with any entry, action or proceeding under this Article and, second, in such order as Mortgagee may elect, to the payment of the Obligations. Mortgagor shall be and remain liable to Mortgagee for any difference between the net proceeds of sale and the amount of the Obligations until all of the Obligations have been paid in full. 8.9 Discontinuance of Proceedings. If Mortgagee shall have proceeded to enforce any right under any Loan Document and such proceedings shall have been discontinued or abandoned for any reason, then except as may be provided in any written agreement between Mortgagor and Mortgagee providing for the discontinuance or abandonment of such proceedings, Mortgagor and Mortgagee shall be restored to their former positions and the rights, remedies and powers of Mortgagee shall continue as ifno such proceedings had been instituted. 8.10 Mortgagee's Actions. Mortgagee may, at any time without notice to any Person and without consideration, do or refrain from doing any or all of the following actions, and neither the Mortgagor, any endorser, co-maker, surety or guarantor of the Obligations, nor any other Person (hereinafter in this Section 8.10 collectively referred to as the "Obligor") now or hereafter liable for the payment and performance of the Obligations shall be relieved from the payment and performance thereof, unless specifically released in writing by Mortgagee: (a) renew, extend or modify the terms of the Note, this Mortgage, and the other Loan Documents, or any of them; (b) forbear or extend the time for the payment or performance of any or all of the Obligations; (c) apply payments by any Obligor to the reduction of the unpaid Obligations in such manner, in such amounts, and at such times and in such order and priority as Mortgagee may see fit; (d) release any Obligor; (e) substitute or release in whole or in part the Mortgaged Property or any other collateral or any portion thereof now or hereafter held as security for the Obligations without affecting, disturbing or impairing in any manner whatsoever the validity and priority of the lien of this Mortgage upon the Mortgaged Property which is not released or substituted, or the validity and priority of any security interest of the Mortgagee in such other collateral which is not released or substituted; (I) subordinate the lien ofthis Mortgage or the lien of any other security interest in any other collateral now or hereafter held as security for the Obligations; (g) join with Mortgagor in the execution of a plat or replat of the Land; (h) join with Mortgagor in and consent to the filing of a declaration of condominium or MIA-321354-4 - 36 - declaration of restrictive covenants regarding all or any part of the Land; (i) consent to the granting of any easement on the Land; and U) generally deal with any Obligor or any other party as Mortgagee may see fit. ARTICLE IX MORTGAGEE'S PERFORMA~CE 9.1 Governmental Regulation of Mortgagee. Mortgagee is subject to various Governmental Authorities and the laws, mles and regulations enacted, adopted and promulgated by them. To the extent that Mortgagee's authority to perform its obligations (if any) under this Mortgage, now or hereafter, may be limited or regulated by such Governmental Authorities, Mortgagee is hereby excused from such performance. 9.2 Mortgagee's Failure to Perform. If Mortgagee fails to perform its obligations (if any) under this Mortgage (except to the extent excused therefrom as provided in Section 9.1 above), Mortgagor shall notify Mortgagee in writing (the "Notice") forthwith upon Mortgagor's obtaining knowledge of such failure. Each such Notice shall describe in detail the act or event constituting the non-performance by Mortgagee. Mortgagee shall have thirty (30) days after its receipt of the Notice to cure any such failure to perform, unless such cure can not be accomplished using reasonable efforts within said thirty (30) day period, in which case Mortgagee shall have such additional time as may be necessary, using reasonable efforts, to cure such non-performance (the "Mortgagee Cure Period"). 9.3 Mortgagor's Rights and Remedies. The giving of the Notice and the expiration of the Mortgagee Cure Period shall be conditions precedent to any right of the Mortgagor to bring an action against Mortgagee. Mortgagor hereby expressly agrees that its sole remedy against Mortgagee in any such action shall be that of specific performance. 9.4 Ground Lease. Mortgagee agrees to send to Landlord copies of all notices to Mortgagor in which the Mortgagee claims that there exists one (1) or more uncured defaults under the terms and provisions of the Mortgage, such notice to be sent simultaneously to landlord and Mortgagor. If at any time during the term of the Loan Mortgagee, its successors and/or assigns, shall acquire, by purchase at a foreclosure sale and/or by transfer in lieu of foreclosure, any right, title or interest in or to the Ground Lease, by the acceptance of a deed or other instrument of conveyance thereof, will conclusively be deemed to have accepted such right, title or interest subject to all of the terms, covenants and conditions of the Ground Lease, as may be modified or limited by terms of this Mortgage; it being the specific intent of the Mortgagee and Mortgagor that this Mortgage encumber only the Leasehold Estate, and that the rights of the Landlord shall not be affected by the terms of this Mortgage. MIA-3213S4-4 - 37 - Mortgagee shall subordinate its Lien to the rights of any "Permanent Lender" (as the term is defined in the Ground Lease) and agrees to execute within thirty (30) days from receipt of a request from the Landlord, without expense to Landlord, any instrument that may be reasonably necessary to confim1 the subordination of this Mortgage. Notwithstanding anything herein seemingly to the contrary, this Mortgage hereby expressly incorporates by reference the terms of Section 13-02 of the Ground Lease. ARTICLE X MISCRLLANEOUS 10.1 Maximum Rate of Interest. Nothing contained herein, in the Note, in the Commitment, or in any other Loan Document or in any instrument or transaction related thereto, shall be construed or so operate as to require the Mortgagor or any person liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any Obligations, to pay interest, or any charge in the nature of interest, in an amount or at a rate which exceeds the maximum rate of interest allowed by applicable law, as amended from time to time. Should any interest or other charges in the nature of interest received by Mortgagee or paid by the Mortgagor or any parties liable for the payment of the Loan made pursuant to the Note, or liable for the payment of any Obligations, exceed the maximum rate of interest allowed by applicable law, as amended from time to time, then such excess sum shall be credited against the principal balance ofthe Note or the balance of the other Obligations, as applicable, unless the Mortgagor or such other parties liable for such payments, as applicable, shall notify the Mortgagee, in writing, that the Mortgagor or such other party elects to have such excess sum returned to it forthwith, it being the intent of the parties hereto that under no circumstances shall the Mortgagor or any parties liable for any of the aforesaid payments be required to pay interest in excess ofthe maximum rate of interest allowed by applicable law, as amended from time to time. The Mortgagee may, in determining the maximum rate of interest allowed under applicable law, as amended from time to time, take advantage of any state or federal law, rule or regulation in effect from time to time which may govern the maximum rate of interest which may be reserved, charged or taken. 10.2 Continuing Agreement. This Mortgage and all of the Mortgagor's representations, warranties and covenants herein, Mortgagee's security interest in the Mortgaged Property and all of the rights, powers and remedies of Mortgagee hereunder shall continue in full force and effect until all of the Obligations have been paid and performed in full; until Mortgagee has no further obligation to make any advances under the Loan; and until Mortgagee, upon the request of the Mortgagor, has executed a satisfaction of mortgage. Furthermore, if for any reason no Obligations are owing, notwithstanding such occurrence, this Mortgage shall remain valid and in full force and effect as to subsequent Obligations, so long as Mortgagee has not executed a satisfaction of mortgage. 10.3 Survival of Warranties and Covenants. The warranties, representations, covenants and agreements set forth in this Mortgage shall survive the making of the Loan and the execution :v!IA-321354-4 - 38 - and delivery of the Note, and shall continue in full force and effect until all of the Obligations shall have been paid and performed in full. 10.4 No Representation By Mortgagee. By accepting or approving anything required to be observed, performed or fulfilled, or to be given to Mortgagee, pursuant to this Mortgage, the Commitment, or the other Loan Documents, including, but not limited to, any officer's certificate, balance sheet, statement, surveyor appraisal, Mortgagee shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or representation with respect thereto by Mortgagee. 10.5 Notice. All notices, demands, requests and other communications required under this Mortgage may be given orally (either in person or by telephone if confirmed in writing within three (3) days thereafter), by telex, telegram, or telecopy, or in writing delivered by hand or mail and shall be conclusively deemed to have been received if delivered or attempted to be delivered by United States first class mail, return receipt requested, postage prepaid, addressed to the party for whom it is intended at its address set forth in the introduction to this Mortgage. Any party may designate a change of address by written notice to the other party, received by such other party at least ten (10) days before such change of address is to become effective. 10.6 Mortgagee's Right to Pay and Perform. If Mortgagor shall fail to duly payor perform any of the Obligations required by this Mortgage, then at any time following an Event of Default, without notice to or demand upon Mortgagor, and without waiving or releasing any right, remedy, or power of Mortgagee, and without releasing any of the Obligations or any Event of Default, Mortgagee may payor perform such Obligation for the account of and at the expense of Mortgagor, and shall have the right to enter and to authorize others to enter upon the Land and the Improvements for such purpose and to take all such action thereon and with respect to the Mortgaged Property as may be necessary or appropriate for such purpose. All payments made and all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee, together with interest thereon at the Default Rate from the date incurred by Mortgagee shall be secured by this Mortgage and shall be due and payable by Mortgagor immediately, whether or not there be notice, demand, an attempt to collect same, or suit pending. 10.7 Covenants Running With the Land. All covenants contained in this Mortgage shall be binding on the Mortgagor and shall run with the Leasehold Estate. 10.8 Successors and Assigns. All of the terms of this Mortgage shall apply to and be binding upon, and inure to the benefit of, the heirs, devisees, personal representatives, successors and assigns of Mortgagor and Mortgagee, respectively, and all persons claiming under or through them. MIA-321354-4 - 39 - 10.9 Invalidity. (a) If anyone or more of the provisions contained in this Mortgage is declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision or portion thereof shall be deemed stricken and severed and the remaining provisions hereof shall continue in full force and effect. (b) If anyone or more of the Obligations is declared or found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining Obligations shall continue in full force and effect. 10.10 Modification. No agreement unless in writing and signed by an authorized officer of Mortgagee and no course of dealing between the parties hereto shall be effective to change, waive, terminate, modify, discharge, or release in whole or in part any provision of this Mortgage. No waiver of any rights or powers of Mortgagee or consent by it shall be valid unless in writing signed by an authorized officer of Mortgagee and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 10.11 Applicable Law. This Mortgage shall be construed, interpreted, enforced and governed by and in accordance with the laws ofthe State of Florida (excluding the principles thereof governing conflicts oflaw), and federal law, in the event federal law permits a higher rate of interest than Florida law. 10.12 Year 2000 Compliance. The Mortgagor has fully implemented its plan (the "Y2K Plan") which insures that the Mortgagor's and each subsidiary's software and hardware which impact or affect in any material way the business operations of the Mortgagor and its subsidiaries is Year 2000 Compliant and Ready (defined below). As used herein, "Year 2000 Compliant and Ready" means that the Mortgagor's and each subsidiary's hardware and software systems with respect to the operation of their business and their general business plan will: (i) handle date information involving any and all dates before, during and/or after January I, 2000, including accepting input, providing output and performing date calculations in whole or in part; (ii) operate accurately without interruption and in respect of any and all dates before, during and/or after January 1, 2000 and without any change in performance; (iii) respond to and process two digit year input without creating any ambiguity as to the century; and (iv) store and provide date input information without creating any ambiguity as to the century. 10.13 Strict Performance. It is specifically agreed that time is of the essence as to all matters provided for in this Mortgage and that no waiver of any Obligation hereunder or secured hereby shall at any time thereafter be held to be a waiver of the Obligations. 10.14 .Joint and Several Liability. If more than one Person executes this Mortgage, each is and shall be jointly and severally liable hereunder; and if Mortgagor is a general partnership, then all partners in Mortgagor (and if Mortgagor is a limited partnership, then all general partners in Mortgagor) shall be jointly and severally liable hereunder, notwithstanding any contrary provision in the partnership laws of the State of Florida. MIA.J21354-4 - 40- 10.15 No-Merger. So long as this Mortgage is in existence, the Lessor's fee simple interest in the Land and Improvements and the Mortgagor's Leasehold Estate therein shall not merge, but shall remain separate and distinct, notwithstanding the acquisition of both estates by Lessor, or by Mortgagor, or by Mortgagee, or by any other Person. 10.16 Waiver of Trial by Jury. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS MORTGAGE, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE NOTE, OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE AND MORTGAGOR ENTERING INTO THE SUBJECT LOAN TRANSACTION. MIA-321354-4 - 41 - IN WITNESS WHEREOF, Mortgagor has executed this instmment as of the day and year first above written. Signed, sealed and delivered in the presence of: MIAMI CITY BALLET, INC., a Florida non- profit corporation By: (SEAL) PRESIDENT Witness Signature Print Name of Witness Witness Signature Print Name of Witness STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE) The foregoing instmment was acknowledged before me this _ day of May, 1999, by , as President of Miami City Ballet, Inc., a Florida non-profit corporation, on behalf of said corporation. He/she is personally known to me or has produced _ as identification. My Commission Expires: Notary Public State of Florida at Large Print or Stamp Name of Notary MIA-321354-4 - 42 - EXHIBIT" A" LEGAL DESCRIPTION MIA-321354-4 - 43 - LANDLORD'S WAIVER OF LIEN Landlord: City of Miami Beach, a Florida municipal corporation Leased Premises: 22nd Street Park Avenue in Miami Florida. between Liberty Avenue and (or Lots 2, 4, 6, 8 and 10) Beach, Miami-Dade County, Tenant: Miami City Ballet, Inc., a Florida not- for-profit corporation WHEREAS, the undersigned is the owner and landlord of the Leased Premises and Tenant is an occupant under that certain ground lease agreement dated April 13, 1994 (such lease, together with all amendments thereto, extensions thereof or replacements or substitutions therefore hereinafter referred to as the "Lease"); and WHEREAS, Tenant has requested a loan from SunTrust Bank, Miami, N.A., a national banking association, (the "Lender") for construction of a 60,000 net square foot office and practice facility to be constructed on the Leased Premises and in connection therewith, Tenant has granted a security interest to Lender in certain personal property to be located on the Leased Premises and more specifically described in Exhibit "A" attached hereto and made a part hereof (the "Personal Property II ) . NOW, THEREFORE, Landlord and Lender, intending legally to be bound hereby, agree as follows: 1. For and in consideration of the sum of $10.00 and other good and valuable consideration, the receipt of which is hereby acknowledged, Landlord hereby waives, relinquishes and releases any lien that the Landlord has or may have against the Personal Property which secures any rent not paid by Tenant to Landlord under the Lease, whether such lien results from Florida Statutes 83.08, the Lease or otherwise. 2. The Personal Property of Tenant now or hereafter pledged to Lender or, in which Lender has or is granted a security interest, shall at all times be considered to be personal property and not fixtures, so long as any monies are owing Lender by Tenant. 3. Subject to the terms and provisio~s of this Agreement, Lender shall have the right to enter upon the Leased Premises for the purpose of exercising any right of removal and/or repossession 1 i'eJ!Cf! 't 1 u,t.-I 'W v:Z~ t:r /rJ,,) #t'~ it may have under the terms of any security agreement with Tenant or otherwise, and Landlord hereby consents thereto. 4. That Landlord will notify any purchaser of the Leased Premises and any subsequent mortgagee or other encumbrance holder of the existence of this Agreement which shall be binding upon the successors, transferees or assignees of Landlord and'shall inure to the benefit of the successor and assigns of Lender. 5. In the event of any action or proceeding brought by any party against any of the other parties under this Agreement, the prevailing party shall be entitled to recover for the costs and fees of its attorneys in such action or proceeding, including costs of appeal, if any, in such amount as the court may judge reasonable. 6. This Agreement shall be construed in accordance with and by the laws of the State of Florida. If any provision of this Agreement shall be prohibited by or held invalid under such laws, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or remaining provisions of this Agreement. No modification hereof shall be binding unless in writing and signed by each of the parties hereto. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date set forth below each signature. LANDLORD: APPROVED }.S TO FORM & lANGUAGE & FOR EXECUTION CITY OF MIAMI BEACH, a Florida municipal corporation 1.,. '{;)j91 By: Print Name: Print Title: Dated: April . 1999 LENDER: SUNTRUST BANK, MIAMI, N.A., a national banking association By: Print Name: Print Title: Dated: April , 1999 MIA5-729255.2 2 EXHIBIT "A" Personal property which is not permanently affixed to the Leased Premises or is otherwise removable without substantial damage to the Leased Premises, including, without limitation, furniture, trade fixtures, art work, signs and "inside" plants, inventory, props, customs equipment, together with any proceeds of the conversion, voluntary or involuntary thereof, now or hereafter owned by Tenant. This definition expressly excludes all alterations, decorations, additions and improvements to the Leased Premises constituting fixtures. MIA-347790-1 .~ 1 EXHIBIT "1\-1" LEGA~ DESCRIPTIO~ PA.QCEL 1: Locs 6, 8 and 10, Block 1, C::=:.;N FRC:::- ?RO::::::~T':' O? T::::: :O!I.:l.,,;'-!I BEA:::: I1'I!?~OV::::-::::NT COMPk~Y. according to the Flat there~:, rec0=de~ ir. Plat Sook 5, ;age 7 a~d 8, of the Public Records of Miami-Cade County, ?lo=ida. PPdtCEL 2: Lots 2 and 4. Block 1, OC::.~; ?RONT ??O?:::RT"f G? ':"::::: MI.=-_'-!I 3::ACH n-:?ROVEI':::N"I' COM?:.SY, according to the Plat there=f, record:d in Plat Soak 5, page 7 a~d 0, of t~e Public Records of Miami-Dade County, Florida. END OF LEGAL DESCRIPTIOn JUN 04 lS99 14:48 FR HOLLAND-KNIGHT TO 93055737002!:l P.02/05 I 19 SunTrust Bank, Miami, N.A. 777 Brickell Avenue Miami, Florida 33131 Attention: Martha Opitz Re: Tenant: Leased Area: Miami City Ballet, Inc. See Exhibit IlA-1" attached hereto and made a part hereof Gentlemen: You have advised us that Su.."'1Trust Bank, Miami, N .A. ("Lender") is planning to make a loan secured by a Leasehold Mortgage on the property described above, in which Miami City Ballet, Inc., a Florida not-for-profit corporation (the "Tenant") presently occupies space under a lease dated April 13, 1994 (the "Lease") between Tenant and City of Miami Beach, a Florida municipal corporation (the "Landlord"). In connection with that loan and Leasehold Mortgage and at your request, we hereby certify as follows: 1. Tenant, as of the date hereof, is the holder of Tenant's interest under the Lease, and the Lease has not been modified, amended or supplemented in any manner except as follows: Amendment to Ground Lease dated June 18, 1987; Second Amendment to Ground Lease dated October 21, 1997; and Third Amendment to Ground Llease dated January 6, 1999. 2. The term of the Lease is to commence as defined by Section 1.02 of the Lease. The term of the Lease, as defined by Section 1.01 of the Lease shall be for fifty- one (51) Lease Years. 3. Tenant is currently in possession of all the premises demised to the Tenant by the Lease (II Premises"), as defined by Section 3.06 thereof, and the Lease is in full force and effect. 4. Payment of rent commences uoon the Commencement Date, refere:lced above, and defined. in the Lease. This has not occ1lrred yet. 5. Base Rent is de:ined by Section 4.01 of the Lease, and is $100.00 per year. 1 JUN 04 1999 14:49 FR HOLLAND-KNIGHT TO 93055737002;:1 P.03/05 6. Provided that Tenant and Lender comply with the reaui~ements of Sections 13.01 and 13.02 of the Lease, th~ Lease and all options and rer.ewals thereof is and shall be subject and subordinate to the lien and effect of the Leasehold Mortgage insofar as it affects Tenant's interest in property of which the ?remises forms a part, and to all renewals, modifications, consolidations, ~eplacements and extensions of the Leasehold Mortgage to the full extent of the principal sum secured thereby and interest thereon, with the same force and effect as if the Leasehold Mortgage had been executed, delivered, and duly ~ecorded prior to the execution and delivery of the Lease. 7. Provided that Tenant and Lender comply with the requirements of Sections 13.01 and 13.02 of the Lease, Landlord acknowledges that Landlord's execution of this letter shall evidence Landlord's agreement that so long as Tenant is not in default under the Lease beyond any applicable cure period, then (al Tenant shall not be dispossessed of the Premises by Landlord without prior notice to Lender, as provided in the Lease and the opportunity to cure such default afforded to Lender, and (b) Tenant's rights, titles and interests under the Lease shall not be terminated or disturbed by Landlord. 8. In the event that Lender succeeds to the interest of the Tenant under the Lease by foreclosure or by transfer in lieu of foreclosure, Lender and Landlord hereby agree to be bound to one another under all of the terms, covenants and conditions of the Lease; accordingly, from and after such event, Lender and Landlord shall have the same remedies against one another for t.he breach of any agreement contained in t.he Lease as Tenant and Landlord had before Lender succeeded to the interest of the Tenant i provided, however, that Lender shall not be bound by defenses against payment of rent which Landlord may have against Tenant nor shall Lender be liable to Landlord for any damages arising cut of events occurring prior to the date Lender succeeds to the interest of the Tenant under the lease, nor shall Lender be obligated to expand the Premi ses or the bui 1 diner, cons t ruct addi t ional improvements or otherwise expend funds which are capital in nature except for items of ordinary maintenance and repai r . 9. ?rovided that Tenant and Lender comply with the requirements of Sections 24.01, 24.02 and 24.03 of the Lease, in the event that anyone else acquires title to or the right of possession of the Premises following the foreclosure of the Leasehold Mortgage or upon the sale of the Premises by Lender or i~s successors or assigns after 2 JUN 04 1999 14:49 FR HOLLAND-KNIGHT TO 930567370021:: P.04/05 foreclosure or acquisition of title in lieu thereof or otherwise, Landlord agrees not to seek to terminate the Lease by reason thereof, but shall remain bound unto the new owner, and the new owner agrees to be bound to Landlord under all of the terms, covenants and conditio:ls of the Lease. 10. Tenan:. and Landlord hereby covenant and agree to and with Lender: (al to deliver to Lender a duplicate of each notice of default delivered to Landlord or Tenant, as applicable, at the same time as such notice is given to Landlord or Tenanti (b) not to seek to terminate the Lease by reasons of any default of Tenant without written notice thereof to Lender, as provided in the Lease, and the opportunity to cure such default, such cure period to include such time as may be required for Lender to cure the default; (c) Tenant shall not assign its interest in the Lease without the prior written consent of Landlord, as provided in the Lease, and Lender. Tenant shall remain obligated under the Lease notwithstanding any such assignment; The undersigned intends to be legally bound hereby and acknowledges that Lender will be relying on this letter and on the Landlord's and Tenant's agreements set forth herein in proceeding with the loan and the Leasehold Mortgage. Very truly yours, APPROVED }oS TO FORM & LANGUAGE & FOR EXECUTION TENANT MIAMI CITY BALLET, INC., a Flo.iaa not-for-profit corporation 1fi~ '(l}1 By: Title LANDLORD CITY OF MI~~I BEACH, a Florida municipal corporation By: Title MIA5-729253.2 3 JUN 04 1999 14:49 FR HOLLRND-KNIGHT TO 9305&737002t:t P.05/05 F.Xl[iBIT .. A-i" LEGA~ D~SCRI~rIO~ :'.:..:;,:::::. l.: Lo:s .;. B a~.d 10, E 10'::<' l, J::.;":~ F~':::: :?~O~::~~.:' 0: T:-:::: ~::.~_\.:! 32.~:~: ::-:?::.Jir:::-:::NT CO:-:::.~\;:. ac:c:o:-ding c.o c.he :: :~!: chere.:l:. re~.:l=::~~ !.r. ?la::. :;~ok. S. ;:.?::: 7 a~.:' S, of cr:e ?u~lic Reco=ds of Miarni'D~:.: Councy. ~lo=i~a. :';._~c:::. 2: Loc.s 2 a:".d 4., Sloc~ 1, OC:::.:'':: :?O~T ~::.J?::?.'!'! C::' ::::. ~!L~Y: 3:::.;::-! !l-:::?:'l:::.:::).-r :OL'-!?J.....\"Y. ac:c:c=ciing co c.he Plac. ::.he=e==. recorce:. i~ ?la: ;OO~ 5, ;a:e 7 a~:. C, 0: c.~= ?~olic aec:c:ds of Miami-Dade Cou~:y. F1o=ic~. E:~ro O? L::G.AL D~SCR!P1'IOU