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Declaration of Condominium #4 DECLARATION OF CONDOMINIUM FOR THE LOEWS MIAMI BEACH HOTEL, A CONDOMINIUM PREPARED BY, RECORD AND RETURN TO: Kolleen O. P. Cobb, Esq. Hughes Hubbard & Reed 201 South Biscayne Boulevard Suite 2500 Miami, Florida 33131 MI962630,0679/20/96 ARTICLE I ARTICLE II ARTICLE III ARTICLE IV ARTICLE V ARTICLE VI ARTICLE VII ARTICLE VIII ARTICLE IX ARTICLE X ARTICLE XI ARTICLE XII ARTICLE XIII ARTICLE XIV ARTICLE XV ARTICLE XVI ARTICLE XVII ARTICLE XVIII ARTICLE XIX EXHIBITS Exhibit A Exhibit B Exhibit C Exhibit D MI962630,0679120/96 TABLE OF CONTENTS Page Introduction and Submission.................... ...........,.. ............. ..... ....... 1 Definitions....................................................................................... 2 The Condominium........................................................................... 6 Restraint Upon Separation and Partition of Common Elements ..... 12 Ownership of Common Elements and Common Surplus and Share of Common Expenses................................................... 12 Association; Membership in Association; Voting Rights ................. 12 Maintenance and Repair; Replacement; Alteration and Improvements.......................................................................... 13 Assessments; Special Assessments .............................................. 14 Operation of the Condominium by The Association; Powers and Duties.......................................................................... 16 Insurance ......................... ............................................ ........ ........... 18 Reconstruction or Repair After Casualty......................................... 19 Use Restrictions.............................................................................. 19 Compliance..................................................................................... 20 Amendments................................................................................... 21 Termination..................................... ...... .......................................... 21 Severability..................................................................................... 22 Notification to Mortgage Holders..................................................... 22 Condemnation................................................................................ 22 Miscellaneous................................................................................. 23 Legal Description Articles of Incorporation of the Association Ownership of Common Elements and Common Surplus Share of Common Expenses Bylaws of the Association DECLARATION OF CONDOMINIUM FOR LOEWS MIAMI BEACH HOTEL, A CONDOMINIUM MB REDEVELOPMENT, INC., a Florida corporation ("Developer"), and THE MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency"), (each a "Declarant" and together, the "Co-Declarants") do hereby declare as follows: ARTICLE I INTRODUCTION AND SUBMISSION 1.1 The Location. Developer, as tenant, holds leasehold title pursuant to the Ground Lease of that certain real property (the "Leasehold") located in Dade County, Florida, as more particularly described in Exhibit A attached hereto and made a part hereof. 1.2 Submission Statement. The Developer hereby submits the Leasehold and the existing improvements located thereon and the Co-Declarants submit all Improvements to be erected thereon, together with all easements, rights and appurtenances belonging thereto, which serve the Improvements erected or to be erected on the Leasehold, and all other personal property located in or used in the maintenance of the Common Elements, or mixed property, owned by the Co-Declarants, and all other property of Developer, real, personal, or mixed property, intended for use in connection with the Leasehold, to the condominium form of ownership pursuant to the presently existing provisions of Chapter 718 of the Florida Statutes, as amended to the date hereof, which condominium form of ownership means that form of ownership of real property which is created pursuant to the provisions of the Act and which is composed of units that may be owned by one (1) or more persons, and there is appurtenant to each unit an undivided share in the Common Elements. The Developer shall be the initial owner of the Hotel Unit and the Agency shall be the initial owner of the Public Unit and, therefore, the Developer disclaims any ownership interest in the Public Unit and the Agency disclaims any ownership interest in the Hotel Unit. All provisions of this Declaration, the Articles, the By-Laws and applicable rules and regulations of Association shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be for the term of the Leasehold and any extensions thereof, and be construed to be covenants running with the Leasehold and with every part thereof and interest therein (provided, however, subject and subordinate in all respects to the Ground Lease), and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Co-Declarants and any subsequent owners of any Unit and their respective heirs, personal representatives, successors or assigns, but the same are not intended to create, nor shall they be construed as creating, any rights in or for the benefit of any parties other than the Unit Owners. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of the Ground Lease and this Declaration and any applicable rules and regulations adopted by Association in accordance with this Declaration, as this Declaration and such rules and regulations may be amended from time to time in accordance with this Declaration. The acceptance of a deed of conveyance MI962630,0679120196 to, or the entering into of a lease of, or the entering into occupancy of, any Unit, shall constitute an adoption and ratification by such Unit Owner, tenant or occupant of the provisions of this Declaration (including, but not limited to, a ratification of any appointments of attorneys-in-fact contained herein) and the rules and regulations of Association, as they may be amended from time to time, in accordance with this Declaration. 1.3 Name. The name by which this condominium is to be identified is Loews Miami Beach Hotel, a Condominium (hereinafter called the "Condominium"). ARTICLE II DEFINITIONS 2.1 Definitions. The terms used in this Declaration and in its exhibits, including the Articles of Incorporation and By-Laws of Association, shall have the following meanings (such meanings shall be applicable to both the singular and plural forms of the term defined): 2.1.1 Act or the Condominium Act means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof. 2.1.2 Articles means the Articles of Incorporation of Association, which are set out in Exhibit B attached hereto and made a part hereof, as same may be amended from time to time in accordance with the terms thereof. 2.1.3 Assessment means a share of the funds required for the payment of Common Expenses, which share may from time to time be assessed against the Unit Owners in accordance with the percentages set forth on Exhibit C attached hereto and made a part hereof and in accordance with the provisions and terms of this Declaration. 2.1.4 Association means LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., a Florida corporation not-for-profit, and its successors. 2.1.5 Board or Board of Directors means the Board of Directors of Association. 2.1.6 By-Laws means the By-Laws of Association, which are set out in Exhibit D attached hereto and made a part hereof, as same may be amended from time to time in accordance with the terms thereof. 2.1.7 Common Elements mean and shall include the following as the same now exist and as the same may from time to time exist: -2- 2.1.7.1 The portions of the Condominium Property which are not included within the Units and which have been identified as Common Elements in Exhibit A. 2.1.7.2 Tangible personal property which is required for the maintenance and operation of the other Common Elements. 2.1.7.3 (a) Easements for ingress and egress to and from each Unit, (b) easements through any Unit for conduits, ducts, plumbing, wiring and similar installations required for the transmittal or return of utilities, plumbing, mechanical, electrical and other services to the Units and the Common Elements, and (c) an easement of support in every portion of a Unit which contributes to the support of the other Unit and/or a Common Element as each is more particularly described in Section 3.3 of this Declaration. 2.1.8 Common Expenses mean and shall include: 2.1.8.1 All expenses which are properly incurred by Association pursuant to, and undertaken in accordance with, this Declaration, for or relating to the Condominium Property including, but not limited to, the expenses of maintenance, operation, repair, replacement, or management of the Common Elements required to be maintained by Association. 2.1.8.2 Administrative expenses of Association. 2.1.8.3 Costs and expenses of capital improvements and betterments, additions and alterations to and/or relocations of the Common Elements required to be maintained by Association and undertaken in accordance with this Declaration and the Ground Lease. 2.1.8.4 Any valid charge against the Condominium Property as a whole (as opposed to an assessment against one Unit). 2.1.9 Common Surplus means the amount of all receipts of Association, including, but not limited to Assessments, and rents, profits and revenues on account of the Common Elements, in excess of the amount of Common Expenses. 2.1.10 Condominium has the meaning set forth in Section 1.3 hereof. 2.1.11 Condominium Property means the Leasehold, all Improvements on the Leasehold, and all personal property that is subjected to condominium ownership under this Declaration and all easements and rights appurtenant thereto intended for use in connection with the Condominium. 2.1.12 Declaration or Declaration of Condominium means this instrument and the exhibits attached hereto, as they may be amended from time to time. -3- 2.1.13 Developer means MB Redevelopment, Inc., a Florida corporation, and any successor or assignee of all or part of said Developer's rights hereunder; provided that no Unit Owner shall, solely by reason of purchasing or owning a Unit, be considered a successor or assignee of such rights unless such Unit Owner is expressly designated as such in an instrument executed and recorded by Developer. 2.1.14 Dispute Resolution Procedure means the procedure described in Section 19.7. 2.1.15 Governmental Authority or Authorities means the United States of America, the State of Florida, the City of Miami Beach, Metropolitan Dade County, the Agency (in its governmental as opposed to proprietary capacity) and any agency, department, commission, board, bureau, instrumentality or political subdivision (including any county or district) of any of the foregoing, now existing or hereafter created, having jurisdiction over Association, Unit Owners or over or under the Condominium Property or any portion thereof or any street, road, avenue or sidewalk comprising a part of, or in front of, the Condominium Property, or any vault in or under the Condominium Property, or airspace over the Improvements and Condominium Property. 2.1.16 Ground Lease means that certain Agreement of Lease entered into between the Agency and Developer dated the 20th day of September, 1996, recorded under Clerk's File No. , of the Public Records of Dade County, Florida, as such Agreement of Lease may be amended or modified from time to time. 2.1.17 Hotel Unit means the Hotel Unit as graphically described on pages 1 through 19, inclusive, of Exhibit A. 2.1.18 Hotel Owner means the Owner of the Hotel Unit. 2.1.19 Improvement or Improvements means all structures, or any portion thereof, and artificial changes to the natural environment (exclusive of landscaping) located on the Leasehold, and any other improvements and appurtenances of every kind and description now or hereafter erected, constructed, or placed upon the Leasehold (whether temporary or permanent), and any and all alterations and replacements thereof, additions thereto and substitutions therefor made upon the Leasehold, including, but not limited to, the Hotel Unit, the Public Unit, and the Building Equipment. 2.1.20 Late Charge Rate means a rate equal to the lesser of (a) four percent (4%) per annum in excess of the prime rate in effect from time to time at Citibank, N.A. (or The Chase Manhattan Bank, N.A., if Citibank, N.A. shall not then have an established prime rate; or the prime rate of any major banking institution doing business in New York City, as selected by Public Unit Owner, if none of the aforementioned banks shall be in existence or have an established prime rate) and (b) the maximum interest rate permitted by law. -4- 2.1.21 Loews Miami Beach Hotel means the Improvements and the personal property hereby submitted to condominium ownership by the Co-Declarants. 2.1.22 Percentage Share means a Unit's common ownership percentage, as described on Exhibit C. 2.1.23 Public Unit means the Public Unit as graphically depicted on pages 1 through 5, inclusive, of Exhibit A. 2.1.24 Public Unit Owner means the Owner of the Public Unit. 2.1.25 Requirements means (i) any and all laws, rules, regulations, constitutions, orders, ordinances, charters, statutes, codes, executive orders and requirements of all Governmental Authorities having jurisdiction over a Unit Owner, Association and/or the Condominium Property or any street, road, avenue or sidewalk comprising a part of, or lying in front of, the Condominium Property or any vault in, or under the Condominium Property (including, without limitation, any of the foregoing relating to handicapped access or parking, the Building Code of the City of Miami Beach and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of any applicable Fire Rating Bureau or other body exercising similar functions); (ii) the temporary and/or permanent certificate or certificates of occupancy issued for the Condominium Property as then in force; and (iii) any and all provisions and requirements of any property, casualty or other insurance policy required to be carried by the Unit Owners under this Declaration. 2.1.26 Special Assessment means such sums in addition to the Assessments which may be assessed directly against one (1) or both Unit Owners in accordance with the provisions and terms of this Declaration. 2.1.27 Unit means a part of the Condominium Property which is a separate estate and subject to exclusive ownership, as separately shown and designated on Exhibit A. 2.1.28 Unit Owner or Owner means the owner of a Unit or any successor (whether by purchase (including, without limitation, by judicial sale), operation of law or otherwise) . 2.1.29 Utility Services means electric power, gas, water, garbage, drainage, sanitary and storm sewage disposal, cable television, telephone service and other similar services and other required services imposed by governmental authorities. 2.2 Other Terms. All defined terms (denoted by capitalization or other indication of special definition such as quotation marks) used in this Declaration which are not defined in this Article II, shall have the meaning set forth elsewhere in this Declaration or in the Ground Lease. -5- ARTICLE 11/ THE CONDOMINIUM 3. The Condominium is described as follows: 3.1 Units. There are two (2) Units submitted to condominium ownership pursuant to this Declaration of Condominium: the Hotel Unit and the Public Unit. Both of these Units are non-residential Units pursuant to the Act. The designation of each such Unit is set forth on Exhibit A, which consists_of a graphic description of the Leasehold being submitted to Condominium ownership, and a survey and floor plans of the Improvements erected thereon. Each Unit is described in Exhibit A in such a manner that, taken together with this Declaration, there can be determined therefrom the identification, relative locations and approximate dimensions of each Unit and the Common Elements appurtenant thereto. There shall pass with each Unit as appurtenances thereto: (a) an undivided share in the Common Elements and Common Surplus in the percentages set forth in Exhibit C; (b) the right to use such portion of the Common Elements as may be provided by this Declaration in accordance with the terms of the Declaration; (c) an exclusive easement for the use of air space occupied by the Unit as it exists at any particular time and as the Unit may be lawfully altered or reconstructed from time to time; (d) membership in Association, with full voting rights appertaining thereto; and (e) other appurtenances as may be provided in this Declaration. 3.2 Boundaries. 3.2.1 Unit Boundaries of the Hotel Unit. The boundaries of the Hotel Unit are as follows: (a) Upper and Lower Boundaries of the Hotel Unit. The upper and lower boundaries of the Hotel Unit shall be the following boundaries extended to their planar intersections with the perimetrical boundaries: (i) Upper Boundaries of the Hotel Unit. The Hotel Unit has no upper boundaries provided, however, that (x) for those portions of the Hotel Unit located on the Grade Level as depicted on Page 1 of Exhibit A beneath those portions of the Public Unit described as Areas 8 and 9 on page 2 of Exhibit A, the upper boundaries of such portions of the Hotel Unit shall be the horizontal plane immediately below and adjacent to the undecorated, unfinished upper surface of the concrete floor or other building material of the respective portions of said Public Unit directly above said Hotel Unit, as graphically depicted in Exhibit A, and (y) for those portions of the Hotel Unit -6- located on the Lobby Level as depicted on Page 2 of Exhibit A beneath the Public Unit described as on page 3 of Exhibit A, the upper boundaries of such portions of the Hotel Unit shall be the horizontal plane immediately below and adjacent to the undecorated, unfinished upper surface of the concrete floor or other building material of the respective portions of said Public Unit directly above said Hotel Unit, as graphically depicted in Exhibit A. (ii) Lower Boundaries of the Hotel Unit. The Hotel Unit includes the subterranean space beneath the Public Unit and the Hotel Unit and any other real property rights appurtenant thereto as provided under the laws of the State of Florida, except as otherwise provided in the Ground Lease or by this Declaration; provided, however, that (y) for those portions of the Hotel Unit located on the Lobby Level as depicted on Page 2 of Exhibit A above portions of the Public Unit described as on page 1 of Exhibit A, the lower boundaries of such portions of the Hotel Unit shall be the horizontal plane immediately above and adjacent to of the undecorated, unfinished structural ceiling of said Public Unit directly below said Hotel Unit, as graphically depicted in Exhibit A, (z) for that portion of the Hotel Unit located on the Fourth Level as depicted on Page 5 of Exhibit A above portions of the Public Unit described as on page 4 of Exhibit A, the lower boundaries of such portions of the Hotel Unit shall be the horizontal plane immediately above and adjacent to the undecorated, unfinished structural ceiling of said Public Unit directly below said Hotel Unit, as graphically depicted in Exhibit A, and (z) for that portion of the Hotel Unit located on the Fifth Level as depicted on Page 6 of Exhibit A above portions of the Public Unit described as on page 5 of Exhibit A, the lower boundaries of such portions of the Hotel Unit shall be the horizontal plane immediately above and adjacent to the undecorated, unfinished structural ceiling of said Public Unit directly below said Hotel Unit, as graphically depicted in Exhibit A. (b) Perimetrical Boundaries of the Hotel Unit. (i) The peri metrical boundaries of the Hotel Unit shall be the vertical planes of the boundaries of the Hotel Unit, as the Hotel Unit is graphically described on Exhibit A, extended to their planar intersections with each other and with the upper and lower boundaries. 3.2.2 Unit Boundaries of Public Unit. The boundaries of the Public Unit are as follows: (a) Upper and Lower Boundaries of Public Unit. The upper and lower boundaries of the Public Unit shall be the following boundaries extended to their planar intersections with the perimetrical boundaries: (i) Upper Boundaries of the Public Unit. (A) With -7- respect to those portions of the Public Unit located on the Grade Level described as Areas 1, 2 and 3 on Page 1 of Exhibit A, those portions of the Public Unit described as Areas 8, 9 and 10 on the Lobby Level on Page 2 of Exhibit A, those portions of the Public Unit located on the Second Level on Page 3 of Exhibit A, those portions of the Public Unit located on the Third Level on Page 4 of Exhibit A and those portions of the Public Unit located on the Fourth Level on Page 5 of Exhibit A, the upper boundary of such portions of the Public Unit shall be the horizontal plane of the undecorated, unfinished structural ceiling and the lower surface of the unfinished adjacent intruding structural elements immediately above the respective portion of said Public Unit; as graphically depicted on Exhibit A, (B) with respect to that portion of the Public Unit located on the Grade Level described as Area 4 on Page 1 of Exhibit A and those portions of the Public Unit located on the Lobby Level described as Areas 2 and 3 on Page 2 of Exhibit A, the upper boundary of such portions of the Pubic Unit shall be the horizontal plane twenty feet above the surface of the lower boundary of the Public Unit, as graphically depicted on Exhibit A, (C) with respect to those portions of the Public Unit located on the Lobby Level described as Areas 1, 4 and 7 on Page 2 of Exhibit A, the upper boundary of such portions of the Pubic Unit shall be the horizontal plane of the undecorated, unfinished structural ceiling above Area 7 extending to its intersection with each other and with the perimetrical boundaries over Areas 1, 4, and 7 as graphically depicted on Exhibit A, and (D) with respect to those portions of the Public Unit located on the Lobby Level described as Areas 5 and 6 on Page 2 of Exhibit A, the upper boundary of such portions of the Pubic Unit shall be the horizontal plane of the undecorated, unfinished structural ceiling above Area 6 extending to its intersection with each other and with the perimetrical boundaries over Areas 5 and 6, as graphically depicted on Exhibit A. (ii) Lower Boundaries of the Public Unit (A) With respect to those portions of the Public Unit located on the Grade Level (except for Area 4 as depicted on Page 1 of Exhibit A), those portions of the Public Unit located on the Lobby (except for Areas 2 and 3 depicted on Page 2 of Exhibit A), those portions of the Public Unit described Pages 2, 3 and 4 of Exhibit A, the lower boundary of such portions of the Public Unit shall be the horizontal plane immediately above and adjacent to the subsurface of the respective portions of said Public Unit, as graphically depicted on Exhibit A, and (B) with respect to that portion of the Public Unit described as Area 4 located on the Grade Level on page 1 of Exhibit A and those portions of the Public Unit described as Areas 2 and 3 located on the Lobby Level described on Page 2 of Exhibit A, the lower boundary of such portions of the Public Unit shall be the horizontal plane of the subsurface area immediately below and adjacent to the subsurface of the respective portions of said Public Unit, as graphically depicted on Exhibit A. -8- (b) Perimetrical Boundaries of the Public Unit. The perimetrical boundaries of the Public Unit shall be the vertical planes of the undecorated and/or unfinished inner surfaces of the walls bounding the Unit, or the exterior boundary of the flooring material where no wall exists, extending to their intersection with each other and with the upper and lower boundaries. 3.2.3 Apertures. Where there are apertures in any wall constituting a peri metrical boundary, including, but not limited to, windows, doors and skylights, such boundaries shall be extended to all such places, to the dimension of such aperture, so that the perimetrical boundary, at such places shall be coincident with the interior undecorated and/or unfinished surface of such aperture. 3.2.4 Exceptions. In cases not specifically covered above, and/or in any case of conflict or ambiguity, the graphic description of the Unit set forth in Exhibit A shall control in determining the boundaries of a Unit. In the event it shall appear that any dimension shown on Exhibit A is erroneous, the Developer or Association shall have the right to unilaterally amend this Declaration to correct such survey, and any such amendment shall not require the joinder of any Unit Owner or mortgagee so long as the purpose of the amendment is merely to correct an error and correctly describe the boundaries of the Unit. Developer shall deliver a copy of such amendment to the Unit Owners, promptly following the execution thereof. 3.3 Easements. The following easements are hereby created (in addition to any easements created under the Act): 3.3.1 Support. (a) Each Unit and the Common Elements shall have an easement of support and of necessity and shall be subject to an easement of support and necessity in favor of the other Unit and the Common Elements. (b) A non-exclusive easement is hereby created, in favor of each Unit Owner, their agents, employees and contractors, in order to have access to any portion of the Condominium Property where support columns, beams, poured slabs and shear walls relied upon by both Units or a Unit and a Common Element are constructed, in order to inspect and test same, as well as to allow for the maintenance, reconstruction or repair of such support columns, beams, poured slabs and shear walls pursuant to the provisions of this Declaration; provided, however, that such uses of this easement shall be performed in accordance with the provisions of the Ground Lease concerning maintenance, reconstruction and repair. 3.3.2 Utility Services. Non-exclusive easements for Utility Services in favor of each Unit Owner and their respective providers of Utility Services are hereby reserved under, through and over the Condominium Property for Utility Services presently serving the Condominium, as well as to allow for such additional Utility Services as may be -9- required to serve the Condominium in the future; provided, however, that such easements as may be required in the future for additional services may not unreasonably interfere with a Unit Owner's permitted use of its Unit or require the removal or relocation of any existing structures and provided that such easement, to the extent practicable, shall be located in the Condominium Property outside of the Improvements, rather than through the Improvements. Subject to the provisions of the Ground Lease, the Board or its designee shall have a right of access to each Unit at reasonable times after reasonable notice, and without undue interference in order to inspect same, as well as to test, maintain, repair or replace the pipes, wires, ducts, vents, cables, conduits and other utility, service and drainage facilities (to the extent that such facilities service the Common Elements), and the Common Elements. 3.3.3 Encroachments. If (a) any portion of the Common Elements encroaches upon any Unit or vice versa; (b) any Unit encroaches upon any other Unit; or (c) any encroachment shall hereafter occur as a result of (i) the settling or shifting of the Improvements; (ii) any alteration or repair to the Common Elements made pursuant to the provisions of this Declaration; or (iii) any repair or restoration of the Improvements (or any portion thereof) or any Units (or any portion thereof) after damage by fire or other casualty or any taking by condemnation or eminent domain proceeding of all or any portion of any Unit or the Common Elements, then, in such event, a valid easement shall exist for such encroachment and for the maintenance of the same so long as the Improvement shall stand, provided that such encroachment does not materially adversely affect the Unit encroached upon, the use of such Unit or the rights of the Owner of such Unit with respect to such Unit. 3.3.4 Ingress and Egress. A non-exclusive easement in favor of each Unit Owner and its tenants, guests, invitees, employees, contractors, agents, servants and licensees shall exist for: (a) pedestrian traffic over, through and across those portions of the Condominium Property designated for public passage, from time to time, by a majority vote of the Board of Directors, and those portions of the Common Elements designated for public passage, from time to time by Association, including, without limitation, (i) the lobby, (ii) the palm court, (iii) covered gallery, (iv) convention level, and convention drop-off, (v) the elevator lobbies, (vi) stairways, stairwells, service passages, and other similar areas, (vii) the walkways to and from the garage, and (v) the pedestrian walkways, great lawn, and such other sidewalks, streets, paths and walks located outside the Improvements, subject, however, to the reasonable relocation of such easements from time to time pursuant to the standards set forth in Section 3.3.7, and such reasonable rules and regulations adopted by the Board of Directors, or Association, as to Common Elements; (b) vehicular and pedestrian traffic over, through and across such portions of the Condominium Property as from time to time may be paved and/or designed for such purposes; (c) vehicular traffic over, through and across such portions of the asphalt pavement at the entrance to the Loews Miami Beach Hotel as from time to time may be paved and/or designed for such purposes, subject to such reasonable rules and regulations adopted from time to time by the Board of Directors; and (d) in the event of emergency, pedestrian traffic over, through and across those portions of the Units and Common Elements designated as fire safety passages and/or staircases. -10- 3.3.5 Maintenance and Repair. A non-exclusive easement in favor of Association and the Hotel Owner, their agents, employees, servants, licensees, and contractors, over each and every portion of the Condominium Property as may be reasonably necessary in order to have access to any portion of the Condominium Property that said parties are required to inspect, test, maintain and repair under Article VII or the Ground Lease, provided that such inspections, testing, maintenance and repair shall be performed in accordance with the provisions of the Ground Lease concerning inspections, testing, maintenance and repair. A non-exclusive easement in favor of the Public Unit Owner, its agents, employees, servants, licensees, and contractors, over each and every portion of the Condominium Property as may be reasonably necessary in order for Public Unit Owner to exercise its cure rights with respect to the provisions of the Ground Lease concerning inspections, testing, maintenance and repair. 3.3.6 Construction. A non-exclusive easement and right of encroachment is hereby created in favor of the Developer, its successors and assigns, designees, agents, employees and contractors for the purpose of completing any alterations of or additions to the Improvements that may be allowed or required pursuant to the Ground Lease in accordance with the provisions of the Ground Lease concerning alterations and additions. 3.3.7 Additional Easements; Relocation of Easements. The Developer, on its behalf and on behalf of the Unit Owners (each of whom hereby appoints the Developer irrevocably as its attorney-in-fact for this purpose), has the right to grant such additional electrical, drainage, gas, cable television, water, sanitary and storm sewage disposal, telephone, or other utility or service easements or relocate any existing utility or service easements or drainage facilities (subject to applicable restrictions), in any portion of the Improvements, and to grant access easements or relocate any existing access easements in any portion of the Improvements, as the Developer shall deem necessary for the proper operation and maintenance of the Improvements, or any portion thereof, or for the general health or welfare of the Unit Owners, or for the purpose of carrying out any provisions of this Declaration or otherwise, provided that such easements or the relocation of existing easements: (a) are in accordance with the provisions of the Ground Lease, (b) will only be performed after five (5) days written notice to both Unit Owners, (c) will not unreasonably interfere or diminish the service being supplied to the Unit(s), except for temporary interference when relocation is necessary, and (d) will not materially adversely affect any Unit, the use of any Unit or the rights of the Owner of any Unit with respect to its Unit. 3.3.8 Savings Clause. Should the intended creation of any easement described in this Declaration fail by reason of the fact that, at the time of creation, there may be no grantee in being having the capacity to take and hold such easement, then such grant of easement shall be considered as having been granted directly to Association for the purpose of allowing the original party or parties to whom the easements were originally granted the benefit of such easement, and the Unit Owners and their mortgagees designate Association as their lawful attorney-in-fact to execute any -11- instrument on their behalf as may hereafter be required or deemed necessary for the purpose of creating such easement. 3.3.9 Indemnity. Each Co-Declarant, during the time it owns or leases either Unit, hereby covenants and agrees, and each Unit Owner thereafter (including, without limitation, any purchaser at a judicial sale) by acceptance of a deed for its Unit, whether or not it shall be so expressed in any such deed, shall hereafter be deemed to covenant and agree to reimburse, indemnify and hold the other Unit Owner harmless as set forth in Article 20 of the Ground Lease as if all references to "Tenant" were to Hotel Owner and all references to "Owner" were to "Public Unit Owner. ARTICLE IV RESTRAINT UPON SEPARATION AND PARTITION OF COMMON ELEMENTS 4. Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit shall not be separated therefrom, shall pass with title to such Unit, whether or not separately described, and cannot be conveyed or encumbered except together with such Unit. The respective shares in the Common Elements appurtenant to Units shall remain undivided, and no action for partition of the Common Elements, the Condominium Property, or any part thereof, shall lie, except as provided in Article XV with respect to termination of the Condominium. ARTICLE V OWNERSHIP OF COMMON ELEMENTS AND COMMON SURPLUS AND SHARE OF COMMON EXPENSES 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses. The undivided percentage interest in the Common Elements and Common Surplus, and the percentage share of the Common Expenses, appurtenant to each Unit, is set forth in Exhibit C. ARTICLE VI ASSOCIATION; MEMBERSHIP IN ASSOCIATION; VOTING RIGHTS 6.1 Association. The Association is the entity responsible for the operation of the condominium regime at Loews Miami Beach Hotel, a Condominium. 6.2 Membership in Association. Membership of each Unit Owner in Association shall be acquired pursuant to the provisions of Article IV of the Articles of Incorporation of Association. The interest of each Unit Owner in the funds and assets of -12- the Condominium held by Association and the liability of each such Unit Owner for Common Expenses shall be equal to its respective Percentage Share. 6.3 Voting Rights. On all matters upon which the members of Association shall be entitled to vote, the Hotel Owner shall be entitled to three (3) votes and the Owner of the Public Unit shall be entitled to one (1) vote. ARTICLE VII MAINTENANCE AND REPAIR; REPLACEMENT; ALTERATION AND IMPROVEMENT 7.1 Maintenance and Repair. Responsibility for maintenance and repair of the Condominium Property in accordance with the provisions of the Ground Lease concerning maintenance and repair shall be as follows: 7.1.1 Maintenance and Repair by Association. The Association shall inspect, test, maintain and repair at Association's expense: (a) The Common Elements; and (b) The tangible personal property required for the maintenance and operation of the other Common Elements. 7.1.2 Maintenance and Repair by the Unit Owner. The Hotel Owner shall inspect, test, maintain and repair the Condominium Property pursuant to the tenant's responsibilities set forth in the Ground Lease, including, but not limited to: (a) All portions of the Loews Miami Beach Hotel, excluding the Common Elements, which Common Elements shall be inspected, tested, maintained and repaired by Association pursuant to Section 7.1.1, and (b) Any portion of conduits, ducts, plumbing, wIring or similar installations required for the transmittal or return of utilities, plumbing, air conditioning, mechanical, electrical or other services located within the Loews Miami Beach Hotel. 7.1.3 All such inspections, testing, maintenance and repairs conducted pursuant to Section 7.1 shall be performed in accordance with the provisions of the Ground Lease concerning inspections, testing, maintenance and repairs. 7.1.4 In the event there is a question as to whether the standards set forth in Section 7.1 have been satisfied, the question shall be arbitrated pursuant to Section 19.7.1 hereof. -13- 7.2 Replacement. In the event that a portion of the Condominium Property must be replaced as a result of ordinary wear and tear, the same party who has the responsibility to maintain and repair such items shall have the responsibility to replace same in accordance with the obligations and requirements of the tenant under the Ground Lease. 7.3 Alteration and Improvement. 7.3.1 Interior of the Unit. The Hotel Unit has the right to change the interior design and/or arrangement of the Loews Miami Beach Hotel; provided, however, that such change is in compliance with all Requirements and is in compliance with the Ground Lease. 7.3.2 Exterior of the Units and Common Elements. The Hotel Owner has the right to make alterations and improvements to the landscaping and exteriors of the Loews Miami Beach Hotel, which alterations or improvements shall be in compliance with all Requirements and in compliance with the Ground Lease. 7.4 Incidental Damage. Any damage caused to a Unit or the Common Elements by reason of the maintenance and repair under Article VII or elsewhere in this Declaration shall be promptly repaired to a condition substantially the same or superior to the condition existing prior to such damage by the party causing such damage, at such party's expense. ARTICLE VIII ASSESSMENTS; SPECIAL ASSESSMENTS 8.1 Assessments. 8.1.1 Determination of Common Expenses and Fixing of Assessments. The Board of Directors shall prepare a condominium budget on a calendar year basis. Such budget shall be distributed to the Unit Owners on or before October 31 preceding the year for which such budget is effective. The Board shall determine each Unit's Assessment which shall be equal to the product of (a) the total Common Expenses set forth in such budget and (b) the Percentage Share of the Owner of such Unit. The Board of Directors shall advise the Unit Owners promptly in writing of the amount of their respective Assessments. The budget shall be adopted pursuant to the terms of the By- Laws. 8.1.2 Common Expenses. The Common Expenses shall include, but not be limited to, the expenses of the operation, maintenance, repair, replacement and management of the Common Elements, costs of carrying out the powers and duties of Association and any other expenses designated as Common Expenses by the Condominium Act, this Declaration, the Articles of Incorporation or By-Laws of Association, applicable Requirements or by Association. -14- 8.1.3 Revisions to Budget; Enforcement. Any budget adopted by Association may be revised from time to time by Association to cover actual Common Expenses. The Association shall assess each Unit its share of the Common Expenses (as determined in accordance with Section 8.1.1), and shall enforce collection of same so that at all times the solvency of Association, pursuant to generally accepted accounting principles, consistently applied, is maintained and assured. 8.2 Special Assessments. Each Co-Declarant, for the Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed for its Unit, whether or not it shall be so expressed in such deed, shall hereafter be deemed to covenant and agree: (a) to pay Association any Special Assessment imposed by the Board against its Unit, pursuant to this Declaration, (b) that such Special Assessment shall be a lien on its Unit, (c) that such Special Assessment shall be an obligation of the Owner of the affected Unit at the time when the Special Assessment falls due and all subsequent Owners of such Unit until paid, and (d) that such Special Assessment may be enforced in the manner set forth in Article XIII, this Article VIII or as otherwise provided in this Declaration. These provisions are independent covenants running with the Leasehold between and among Association and each Unit Owner, and the power to impose and enforce Special Assessments, as provided herein, is not pursuant to or in reliance on the Act. 8.3 Lien for Assessment and Special Assessment. To the extent permitted by law, Association shall have a lien against a Unit upon recording a claim of lien in the Public Records of Dade County, Florida, for any unpaid Assessment(s) and/or Special Assessment(s) against the Owner of such Unit, and for interest accruing thereon, which lien shall also secure reasonable attorneys' fees incurred by Association incident to the collection of such assessment or enforcement of such lien, whether or not legal proceedings are initiated, and if initiated, on the trial court and appellate levels. Such claims of lien may be signed and verified by the President and a Vice President or Secretary of Association. Upon full payment, the party making payment shall be entitled to a recordable satisfaction of lien, to be prepared and recorded at its expense. All such liens shall be subordinate to the Ground Lease and the lien of mortgages recorded prior to the date of recording the claim of lien, and all such liens may be foreclosed by suit brought in the name of Association in like manner as a foreclosure of a mortgage on real property. The Association may, at its option, sue to recover a money judgment for unpaid assessments without thereby waiving the lien securing the same. 8.4 Interest, Application of Payments. Assessments and Special Assessments, and installments on such assessments paid on or before ten (10) days after the date when due shall not bear interest, but all sums not paid on or before ten (10) days after the date when due shall bear interest at the Late Charge Rate. All payments on account shall be first applied to interest, and then to the assessment payment first due. -15- 8.5 Commencement. The Assessments and Special Assessments provided for in this Article shall be due and payable on the date or dates fixed by the Board of Directors of Association, as provided in the resolution authorizing such assessment. 8.6 Common Surplus. In any year in which there is a Common Surplus, the Unit Owners, within thirty (30) days after Association's year end, shall elect to: (a) distribute the Common Surplus to the Unit Owners or (b) apply the excess to Common Expenses to be incurred in the current year. If the Unit Owners elect to apply the Common Surplus in accordance with clause (b) of this Section 8.6, and the Common Surplus is in excess of the present year's budgeted expenditures, the excess shall be applied in accordance with clause (a) of this Section 8.6. In the event that the Unit Owners fail to make any election within the prescribed time period, they shall be deemed to have elected the alternative set forth in subsection (b). 8.7 Violation of Declaration. The Board may impose a Special Assessment on a Unit Owner to pay the cost to correct a violation by such Unit Owner of the Declaration and/or Association rules and regulations, after such Unit Owner has received written notice from Association of such violation and reasonable opportunity to cure. ARTICLE IX OPERATION OF THE CONDOMINIUM BY THE ASSOCIATION; POWERS AND DUTIES 9.1 Powers and Duties. The Association shall be the entity responsible for overseeing the operation of the Condominium in accordance with this Declaration, and the Act. The powers and duties of Association shall include those set forth in the By-Laws and Articles, as amended from time to time, as well as the powers and duties set forth in the Act. In addition, subject to the provisions of the Ground Lease, Association shall have all the powers and duties granted to or imposed upon it by this Declaration, including, but not limited to: 9.1.1 The irrevocable right to have access to the Condominium Property in accordance with this Declaration. 9.1.2 The power to make and collect Assessments, Special Assessments and other charges against Unit Owners. 9.1.3 The duty to maintain accounting records according to generally accepted accounting principles, consistently applied, which records shall be open to inspection by Unit Owners or their authorized representatives at reasonable times. 9.1.4 To contract for the management and maintenance of the Common Elements and to authorize a management agent to assist Association in carrying -16- out its powers and duties by performing such functions as the submission of proposals, collection of Assessments and Special Assessments, preparation of records, enforcement of rules and the inspection, testing, maintenance, repair, and replacement of the Common Elements with funds available from Association for such purposes. The Association shall, however, retain at all times the powers and duties granted by this Declaration and the Condominium Act, including, but not limited to, the making of Assessments and Special Assessments, promulgation of rules and execution of contracts on behalf of Association. 9.1.5 The power to adopt and amend rules and regulations regarding the use of the Common Elements, consistent with the provisions of this Declaration and the Ground Lease. 9.1.6 The power to employ personnel (part-time or full-time). 9.1.7 The power to inspect, test, maintain, repair and replace the Common Elements that Association is required to maintain and repair in accordance with Section 7.1.1. 9.2 Limitation upon Liability of Association. Notwithstanding the duty of Association to maintain and repair portions of the Condominium Property, Association shall not be liable to Unit Owners for injury or damage resulting from inadequate or improper repair or maintenance (including gross negligence), other than to the extent of the cost to correct such inadequate or improper repair and maintenance. 9.3 Restraint Upon Assignment of Shares and Assets. The share of a Unit Owner in the funds and assets of Association cannot and shall not be assigned, hypothecated or transferred in any manner except as an appurtenance to its Unit. 9.4 Approval or Disapproval of Matters. Whenever the decision of a Unit Owner is required upon any matter, whether or not the subject of an Association meeting, such decision shall be expressed by the same person who would cast the vote of such Owner if an Association meeting was held, unless the joinder of record Owners is specifically required by this Declaration or By-Laws. 9.5 Acts of Association. Unless the approval or action of Unit Owners, and/or a certain specific percentage of the Board of Directors is specifically required in this Declaration, the Articles or By-Laws, applicable rules or regulations or applicable law, all approvals or actions required or permitted to be given or taken by Association shall be given or taken by a majority vote of the Board of Directors, without the consent of Unit Owners, and the Board may so approve an act through the proper officers of Association without a specific resolution. When an approval or action of Association is permitted to be given or taken hereunder or under the Articles, By-Laws, applicable rules or regulations, or applicable law, such action or approval may be conditioned in any manner Association deems appropriate or Association may refuse to take or give such action or approval. -17- ARTICLE X INSURANCE 10.1 Insurance. The Hotel Owner shall obtain and maintain insurance and casualty coverage for both Units and the Common Elements in accordance with the provisions of the Ground Lease concerning insurance. Should it be determined, at any time, that such insurance (or any portion thereof) has not been obtained or maintained, then Association may secure, after providing written notice, at the expense of the Hotel Owner, such additional coverage or policy as may be necessary to comply with the provisions of this Article X or the Ground Lease and, it shall assess the Hotel Owner, as a Special Assessment, any monies advanced by Association for such coverages. This provision is an independent covenant running with the Leasehold. The Developer, during the time it owns either Unit, hereby covenants and agrees, and each Unit Owner thereafter, by acceptance of a deed for its Unit, whether or not it shall be so expressed in any such deed, shall hereafter be deemed to covenant and agree to purchase such insurance policies containing the coverages described in the Ground Lease, and otherwise abide by the provisions of this Article X. 10.2 Named Insured. Each policy purchased by the Hotel Owner shall include Association and the other Unit Owner, as their interests may appear, as named insureds/additional insureds. 10.3 Payee for Losses. The insurance policies shall provide that the payments by the insurer for losses shall be made payable in accordance with the Ground Lease, and the proceeds of such insurance shall be held and disbursed in accordance with the terms of the Ground Lease. 10.4 Copies of Policies. Copies of all certificates, policies and their endorsements shall be held by the Hotel Owner; such copies shall be available for inspection by Association and the Unit Owners or their authorized representatives at reasonable times at the office of the Hotel Owner. 10.5 Policies Secured by Association. 10.5.1 The Association may obtain insurance coverage for all Directors and Officers (if available at reasonable rates) as well as the employees of Association and managing agents who handle Association funds, if any, and such other insurance as it may determine from time to time to be necessary. 10.5.2 Premiums for insurance policies purchased by Association pursuant to Section 10.5.1 shall be assessed against Unit Owners as a Common Expense. Premiums may be financed in such manner as the Board of Directors deems appropriate. -18- 10.6 Mortgages. In the event a mortgagee endorsement has been issued as to the insurance policy covering a Unit, the mortgagee has the rights set forth in the Ground Lease. 10.7 Distribution of Proceeds. Proceeds of insurance policies shall be held and disbursed in accordance with the terms of the Ground Lease. 10.8 Service Companies. Any service company hired by Association to provide services on the Condominium Property shall be required to maintain adequate liability insurance, in such amounts and coverages as Association may require from time to time. ARTICLE XI RECONSTRUCTION OR REPAIR AFTER CASUAL TV 11.1 Determination of Reconstruction or Repair After Casualty. If all or any part of the Condominium Property shall be damaged by casualty, all or such portion of the Condominium Property shall be reconstructed or repaired in accordance with the provisions of the Ground Lease applicable to reconstruction and repair. 11.2 Reconstruction or Repair. If all or any portion of the Condominium Property is to be reconstructed or repaired, such reconstruction or repair shall be pursuant to the terms of the Ground Lease for the benefit of Association, Agency, and the Unit Owners. 11.3 Disbursement of Funds. If the Condominium is terminated after casualty, the proceeds of insurance shall be disbursed pursuant to the Ground Lease. If the Condominium is not terminated after casualty, the insurance proceeds and Special Assessment (if any) shall be used for reconstruction and repair in accordance with the Ground Lease and shall be disbursed in the manner specifically provided in the Ground Lease. ARTICLE XII USE RESTRICTIONS 12. Use Restrictions. The use of the Condominium Property shall be in accordance with the following provisions as long as the Condominium exists and the Improvements exist to-wit: 12.1 Use of the Condominium Property. The Units and the Common Elements may only be used for the purposes permitted under the Ground Lease, subject to existing laws, ordinances or regulations effecting the Condominium Property. The responsibility of meeting the requirements of governmental bodies for maintenance, -19- modification or repair of the Condominium Property shall be the same as the responsibility for the maintenance, modification and repair of the property concerned. 12.2 Nuisances. Condominium Property. No public nuisance shall be allowed upon the 12.3 Regulations. Reasonable regulations concerning the use of the Common Elements may be made and amended, from time to time, by Association in the manner provided by its Articles and By-Laws; provided, however, that said regulations are not inconsistent with the provisions of Section 12.1 hereof or the Ground Lease. Copies of such regulations and amendments shall be furnished by Association to the Unit Owners. 12.4 Retail Tenants. The Hotel Owner may lease any portion of its Unit to a retail tenant solely in accordance with the provisions of the Ground Lease concerning Subleases (as defined therein). Unless the Hotel Owner agrees in writing, the Owner of the Public Unit shall not lease any of its space, except that the Owner of the Public Unit may lease all of the Public Unit to the Hotel Owner. ARTICLE XIII COMPLIANCE 13.1 Compliance. Each Co-Declarant, during the time period that it owns either Unit, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, shall hereafter be deemed to covenant and agree that each Unit Owner, for the period of its ownership, shall be governed by and shall comply with the terms of this Declaration and the rules and regulations adopted pursuant to this Declaration, as this Declaration and such rules and regulations may be amended from time to time, as provided in this Declaration. In the event a Unit Owner, or any of its tenants, guests, invitees, employees, contractors, agents, servants or licensees (as applicable), fails: (a) to maintain a Unit or fails to cause a Unit to be maintained in accordance with the requirements of this Declaration; or (b) to observe and perform all the covenants and provisions of this Declaration and the rules and regulations, in the manner required by this Declaration, then Association shall have the right to assess such Unit Owner and such Unit Owner's Unit for sums necessary to do whatever work is required to put such Unit Owner or the affected Unit in compliance and to collect such Special Assessment and have a lien therefor as elsewhere provided. In addition, Association shall have the right, for itself and its employees and agents, contractors, servants, and licensees to enter the affected Unit and perform the necessary work to enforce compliance with the above provisions (by force, if necessary), without having committed a trespass or incurred any other liability to the Owner of such affected Unit. In the event there is a question as to whether a Unit is in compliance with this Declaration, a decision pursuant to the Dispute Resolution Procedure shall be determinative. -20- 13.2 No Waiver of Rights. The failure of Association or any Unit Owner to enforce any covenant, restriction or other provision of the Condominium Act, this Declaration and/or the rules and regulations shall not constitute a waiver of the right to do so thereafter. ARTICLE XIV AMENDMENTS 14.1 Amendments. Except as provided in Section 18.6, this Declaration of Condominium may be amended from time to time only upon written approval of such amendment or amendments by both Unit Owners, provided, that no such amendment shall be effective unless each mortgagee of a Unit shall join in the execution of such amendment. 14.2 Execution and Recording. A copy of each amendment to this Declaration shall be attached to a certificate certifying that such amendment was duly adopted, and the certificate shall be executed by the President of Association and attested to by the Secretary of Association with the formalities of a deed and shall be effective upon recordation thereof in the Public Records of Dade County, Florida. ARTICLE XV TERMINATION 15.1 Termination. This Declaration and the Condominium established herein may be terminated at any time by the approval in writing by both Unit Owners and all record owners of mortgages on the Units. 15.2 Certificate. If this Declaration and the Condominium established herein is terminated as provided above, such termination shall be evidenced by a Certificate of Association executed by its President and Secretary certifying to the facts effecting the termination; said Certificate to become effective upon being recorded in the Public Records of Dade County, Florida. 15.3 Shares of Owners After Termination. 15.3.1 After termination of the Condominium pursuant to 15.1, the Unit Owners shall own all of the Condominium Property and all assets of Association attributable to the Condominium as tenants in common in the following percentages: 75% Hotel Owner and 25% Public Unit Owner. 15.3.2 Upon a termination of this Declaration and the Condominium established herein, the lien of any mortgage or other encumbrance upon a Unit shall be -21- transferred to the undivided share in the Condominium Property attributable to such Unit and such lien or other encumbrance shall have the same priority with respect to such undivided share as such lien or other encumbrance had against such Unit. ARTICLE XVI SEVERABILITY 16. Severability. The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, clause, phrase or word, or other provisions of this Declaration of Condominium or the Articles of Incorporation, By-Laws or rules and regulations of Association shall not affect the validity of the remaining portions. ARTICLE XVII NOTIFICATION TO MORTGAGE HOLDERS 17.1 Repair and Maintenance. The Association shall notify, in writing, the holder of a mortgage encumbering a Unit of the failure of such Owner to adequately repair or maintain its Unit in accordance with the terms of this Declaration after the expiration of any applicable notice and cure periods; provided, however, such notice need only be given when Association has been notified, in writing, of the existence of such mortgage, such notice to include the name and address of the mortgagee. 17.2 Assessments. The Association shall notify, in writing, the holder of a mortgage encumbering a Unit of any default in the payment of any assessments against said Unit after the expiration of any applicable notice and cure periods; provided, however, notice of such default need only be given where the holder of a mortgage has notified Association, in writing, of the existence of such mortgage, such notice to include the name and address of the mortgagee. ARTICLE XVIII CONDEMNATION 18. Condemnation. 18.1 Determination of Partial or Total Taking. The determination of whether there has been a partial or total taking of the Condominium Property for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain (a "Taking") shall be made pursuant to the terms of the Ground Lease. Any award for a Taking of all or portions of the Condominium Property by the exercise of the power of eminent domain shall be paid pursuant to the terms of the Ground Lease. -22- 18.2 Determination Whether to Continue the Condominium. If pursuant to the Ground Lease, the Condominium Property will be reconstructed after a partial or total Taking, then, the Condominium established herein will be continued. 18.3 Disbursement of Funds. If the Condominium is terminated after a Taking, the proceeds of the awards will be distributed pursuant to the terms of the Ground Lease. If the Condominium is not terminated after a Taking, the size of the Condominium Property will be reduced and the property damaged by the taking will be made usable in the manner provided in the Ground Lease. The proceeds of the awards shall be used for these purposes and shall be disbursed in the manner specifically provided in the Ground Lease. 18.4 No Adjustment of Shares in Common Elements. If a Unit is reduced by a Taking, the Percentage Share appurtenant to each Unit, as set forth in Exhibit C, and its voting rights shall remain the same. 18.5 Amendment of Declaration. The changes, if any, in the Units, in the Common Elements and in the ownership of the Common Elements and Percentage Share in the Common Expenses and Common Surplus that are affected by a Taking shall be evidenced by an amendment to this Declaration of Condominium that is approved and effected in accordance with Article XIV of this Declaration. ARTICLE XIX MISCELLANEOUS PROVISIONS 19.1 Miscellaneous Provisions. 19.1.1 Notice. Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or may be given to, or served upon, a Unit Owner, Association or any mortgagee, or whenever either Unit Owner or Association desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto, each such notice, demand, request, consent, approval or other communication (referred to in this Article XIX as a "Notice") shall be in writing and shall be effective for any purpose only if given or served by (a) certified or registered U.S. Mail, postage prepaid, return receipt requested, (b) personal delivery with a signed receipt or (c) a recognized national courier service, except as provided specifically in the Act, addressed as follows: -23- if to Association prior to the Hotel Opening Date: Loews Miami Beach Hotel Owners' Association, Inc. c/o MB Redevelopment, Inc. 407 Lincoln Road Suite 6K Miami Beach, Florida 33139 Attention: Mr. Eric A. Nesse if to Association on or after the Hotel Opening Date: Loews Miami Beach Hotel Owners' Association, Inc. c/o Loews Miami Beach Hotel General Manager 1601 Collins Avenue Miami Beach, Florida 33139 if to Hotel Owner prior to the Hotel Opening Date: MB Redevelopment, Inc. 407 Lincoln Road Suite 6K Miami Beach, Florida 33139 Attention: Mr. Eric A. Nesse if to Hotel Owner on or after the Hotel Opening Date: MB Redevelopment, Inc. c/o Loews Miami Beach Hotel General Manager 1601 Collins Avenue Miami Beach, Florida 33139 in each case with a copy to: Loews Hotels Holding Corporation 667 Madison Avenue New York, New York 10021 Attention: Corporate Secretary and to: Hughes Hubbard & Reed 201 S. Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Attention: William A. Weber, Esq. -24- if to Public Unit Owner: Miami Beach Redevelopment Agency Executive Director 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: Miami Beach Redevelopment Agency General Counsel 1700 Convention Center Drive Miami Beach, Florida 33139 and City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: City of Miami Beach City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139 Any Notice may be given, in the manner provided in this Section, (i) on either party's behalf by its attorneys designated by such party by Notice hereunder, and (ii) at Hotel Owner's request, on its behalf by any mortgagee designated in such request. 19.1.2 Effectiveness. Every Notice shall be effective on the date actually received, as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof. 19.1.3 Standard. All notices to members of the Board shall be in writing and shall be effective for any purpose only if given or served by (a) certified or registered U.S. mail (return receipt requested), postage paid, (b) personal delivery with a signed receipt, or (c) recognized national courier service, and shall be effective on the date actually received, as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof. 19.2 Governing Law. This Declaration shall be governed by the laws of the State of Florida. -25- 19.3 Waiver. No provision contained in this Declaration shall be deemed to have been waived by reason of any failure to enforce the same, without regard to the number of violations or breaches which may occur. 19.4 Ratification. Each Unit Owner, by reason of having acquired ownership, and each tenant or occupant of a Unit, by reason of its occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of this Declaration, and the Articles and By-Laws, and applicable rules and regulations, are fair and reasonable in all material respects. 19.5 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all or no genders. 19.6 Captions. The captions and headings used herein and in the exhibits attached hereto and made a part hereof are only inserted as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or of any provision thereof. 19.7 Dispute Resolution Procedure. 19.7.1If this Declaration calls for the approval, consent, or acknowledgment of a Unit Owner with respect to any matter or action to be taken by the other Unit Owner, and such requested approval, consent, or acknowledgment is not given, or if a dispute, other than a Dispute as defined in subsection 19.7.2, below, arises between Unit Owners or any Unit Owner and Association, then such dispute shall be submitted in writing by either Unit Owner to arbitration in accordance with Article 31 of the Ground Lease, with a copy to the other Unit Owner and a copy to the Board of Directors. The failure to copy the Board of Directors shall not constitute a default hereunder. 19.7.2 Prior to the institution of court litigation, the parties to a Dispute, defined below, shall petition the Division of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business and Professional Regulations, State of Florida (the "Division") for nonbinding arbitration. The arbitration shall be conducted according to rules promulgated by the Division and before arbitrators employed by the Division. The filing of a petition for arbitration shall toll the applicable statute of limitation for the applicable Dispute, until the arbitration proceedings are completed. At the request of any party to the arbitration, such arbitrator shall issue subpoenas for the attendance of witnesses and the production of books, records, documents, and other evidence and any party on whose behalf a subpoena is issued may apply to the court for orders compelling such attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law. Any arbitration decision shall be presented to the parties in writing, and shall be deemed final if a complaint for trial de novo is not filed in a court of competent jurisdiction in which the Condominium Property is located within thirty (30) days following the issuance of the arbitration decision. The prevailing party in the arbitration proceeding -26- may be awarded the costs of the arbitration, reasonable attorneys' fees, or both, in an amount determined in the discretion of the arbitrator. The party who files a complaint for a trial de novo shall be assessed the other party's arbitration costs, court costs and other -- reasonable costs, including, without limitation, attorneys' fees, investigation expenses and expenses for expert or other testimony or evidence incurred after the arbitration decision, if the judgment upon the trial de novo is not more favorable to such party than the arbitration decision. If the judgment is more favorable, the party who filed a complaint for trial de novo shall be awarded reasonable court costs and attorneys' fees. Any party to an arbitration proceeding may enforce an arbitration award by filing a petition in a court of competent jurisdiction in which the Condominium Property is located. A petition may not be granted unless the time for appeal by the filing of a complaint for a trial de novo has expired. If a complaint for a trial de novo has been filed, a petition may not be granted with respect to an arbitration award that has been stayed. If the petition is granted, the petitioner may recover reasonable attorneys' fees and costs incurred in enforcing the arbitration award. For purposes of this Section 19.7.2, "Dispute" means any disagreement between two or more parties that involves: (a) the authority of the Board under any law, rule or regulation or under this Declaration, the Articles or the By-Laws to: (i) require any Owner to take any action, or not to take any action, involving that Owner's Unit; or (ii) alter or add to a common area or Common Element; or (b) the failure of Association, when required by law, rule or regulation or this Declaration, the Articles or By-Laws to: (i) properly conduct elections; (ii) give adequate notice of meetings or other actions; (iii) properly conduct meetings; or (iv) allow inspection of books and records. "Dispute" shall not include any disagreement that primarily involves title to any Unit, or Common Elements; the interpretation or enforcement of any warranty; or the levy of a fee or Assessment or the collection of an Assessment levied against a party. 19.8 Signs. The Hotel Owner shall be entitled to affix signs to the Loews Miami Beach Hotel. The Public Unit Owner shall not be entitled to affix signs to the Loews Miami Beach Hotel. 19.9 Approvals and Consents. All consents and approvals which may be given by a party under this Declaration shall be given in a manner consistent with the Ground Lease (whether or not so indicated elsewhere in this Declaration). 19.10 Effect on Ground Lease. Nothing herein contained, nor any action taken hereunder, including but not limited to a conveyance of a Unit, shall operate to modify or amend any of the terms and provisions of the Ground Lease, as amended, or the obligations of the parties to the Ground Lease, as amended, that are also parties to this Declaration. The Agency's interest in the land underlying the Leasehold remaining after the Agency's demise and lease of the Leasehold pursuant to the Lease is specifically not included in the submission statement set forth in Section 1.2 of this Declaration, and such interest shall not constitute any portion of the Condominium Property (including, without limitation, the Units and Common Elements) created hereunder. To the extent the Ground Lease and this Declaration are inconsistent, the Ground Lease shall control. In connection therewith, the Developer shall continue to have all of the rights as "Tenant" under the Ground Lease and shall be required to perform all of the obligations of "Tenant" -27- under the Ground Lease pursuant to the prlJvisions thereof. This Declaration is subjeet and subordinate to the Ground Lease. 19.11 Transfer. Neither party may transfer, pledge, encumber, sell, exchange, assign, sublease, or otherwise dispose of its interest in its Unit (by operation of law or otherwise), except in a manner consistent with the provisions of the Ground Lease. IN WITNESS WHEREOF, the Co-Declarants have executed this Declaration this ZO day of September, 1996. By: By: ATTEST: Robert Parcher, Secretary MB REDEVELOPMENT, INC., a Florida corpora' n A TTE.S STTV'/l-. .; J 1 J /:JL~~ v~ . ,Secretary By: Name: Title: FORM APPROVED REDEVELOPMENT AGENCY GENERAL COUNSEL BY~W~ Date Cf/~/rjf) -28- STATE OF FLORIDA) )SS: COUNTY OF DADE ) BEFORE ME, the undersigned authority, personally appeared Seymour Gelber, Chairman and Robert Parcher, Secretary of THE MIAMI BEACH REDEVELOPMENT AGENCY, to me known to be the persons who signed the foregoing instrument and acknowledged the execution thereof to be the act and deed of said agency for the uses and purposes therein mentioned, and that they affixed thereto the official seal of said agency. Each such person is personally known to me or produced a valid driver's license as identification. r ~ WIT~ my ~ and official seal in the coun~d State last afo"resa.id this :JV day of ~ 1996. (} \\ . !~ j ~/t lL;p{1QJ III ()( Notary Public, State of Florida at Lar STATE OF FLORIDA ) )SS: COUNTY OF DADE ) II n~_BEFORF ME, the d undFS\Qned, of. authority, f1 personally fI appeared .1\_ , ,L J Q\ ~ So . ~ ({/WJl- , as ~. VI' r 1 ~ ' ~t and \.k:OVL~ W. V'~ as ~1 Secretary of the MB REDEVELOPMENT, INC., a Florida corporation, to me known to be the persons who signed the foregoing instrument and acknowledged the execution thereof to be the act and deed of said corporation for the uses and purposes therein mentioned, and that he affixed thereto the official seal of said corporation. Each such person is personally known to me or produced a valid driver's license as identification. - n'-) WI~N~S~ my hand and official seal in the County and State last aforesaid this ?-- U day of ~, 1996. . \ {],' D() of&) (L1 ~ Ji Notary Public My Commission Expires: A"~ ''Q~ j~ <It" " .~~ lC).7-t1! ~ '~-.oF f\.(S -29- STATE OF FLORIDA) )SS: COUNTY OF DADE ) FOR GOOD AND VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowledged, LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., a Florida corporation not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities, obligations, and burdens imposed on it by the provisions of the Declaration and the exhibits attached hereto and made a part hereof. IN WITNESS WHEREOF, LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., has this ~ day of Sef~, 1996, caused these presents to be signed in its name by its Vice President, attested by its Secretary. ATTEST: LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., a Florida corporation not for profit By: ~WI~and and official seal in the County and State last aforesaid this :2-0 day of , 1996. r, ..~ \\ , '---(gl' 0\ ) V-Jod {)1rLc J Notary Public -30- Exhibit A Legal Description and Plans The construction of the Condominium is not substantially completed. W6-MI962630.06 7 /07 /03/96 HOTEL LEGAL DESCRIPTION PAACEL /: LOTS " 2, 17 AND 18, BLOCK 55, riSHER'S FIRST SUBDIVISION OF Al TON BEACH, ACCORDING TO PLAT THEREOF, RECORDED IN PLAT BOOK 2. AT PAGE 77. OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, LESS THAT PAAT OF LOTS 2 AND 17 LYING NORTH OF A LINE, WHICH SAID LINE IS LOCATED .AND DESCRIBED AS FOLLOWS: BEGIN AT THE NORTHWEST CORNER OF LOT 16. BLOCK 55. F'ISHER'S FIRST SUBDIVISION OF' AlTON BEACH, THENCE RUN SOUTHWESTERLY AlONG THE wESTERL Y LINE OF' SAID LOTS 16 ~D 17 FOR A DIST ~CE OF' 72 FEET TO A POINT. SAID POINT BEING THE POINT OF BEGINNING OF THE LINE BEING DESCRIBED; THENCE EASTERLY PARAlLEL TO THE NORTHERLY LINE OF LOT 16 AND LOT 3, BLOCK 55 OF FISHER'S FIRST SUBDIVISION OF' A.l TON BEACH FOR A DIST ANCE OF 400 FEET TO A POINT IN THE EASTERLY LINE OF LOT 2. OF SAID BLOCK 55. F'lSHER'S FIRST SUBDIVISION OF Al. TON BEACH. AS TO LOTS 2 AND 17, SAID PROPERTY MAY AlSO BE DESCRIBED AS LOTS 2 AND 17, LESS THE NORTH 21.3 FEET THEREOF. IN BLOCK 55. ALTON BEACH FISHER'S FIRST SUBDIVISION, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 2. AT PAGE 77. OF' THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. PARCEL II: PARCEL OF LAND L VING BETWEEN BLOCK 55, OF FISHER'S FIRST SUBDIVISION OF A.L. TON BEACH. ACCORDING TO PLAT THEREOF'. RECORDED IN PLAT BOOK 2. AT PAGE 77. OF THE PUBLIC RECORDS OF DADE COUNTY. FLORIDA. AND THE HIGH WATER MARK OF THE ATL.ANTlC OCEAN. WHICH SAID PARCEL OF' LAND IS PARTICULARL Y DESCRIBED AS FOLLOWS: 9EGI~ AT THE SOUTHEAST CORNER OF SAID LOT " BLOCK 55, FISHER'S FIRST SUBDIVISION OF Al TON BEACH, THENCE RUN NORTHERLY AlONG THE EASTERL Y LINE OF LOT 1 AND LOT 2 OF SAID BLOCK 55, FISHER'S FIRST SUBDIVISION OF Al TON BEACH A DISTANCE OF' 102.2 FEET MORE OR LESS TO A POINT IN THE EASTERLY LINE OF SAID LOT 2, WHICH SAID POINT IS 72 FEET SOUTH OF THE NORTHEAST CORNER OF LOT J OF' SAID BLOCK 55 OF' FISHER'S FIRST SUBDIVISION OF Al. TON BEACH: THENCE RUN IN AN EASTERL Y DIRECTION ALONG A LINE PARAlLEL TO THE EASTERLY EXTENSION OF' THE NORTH LINE OF SAJD LOT .3. TO THE HIGH WATER MARK OF THE ATLANTIC OCEAN: THENCE RUN IN A SOUTHERL Y DIRECTION AlONG THE HIGH WATER MARK OF THE ATLANTIC OCE AN A DISTANCE OF 102.2 FEET MORE OR LESS TO A POINT ON SAID HIGH WATER MARK or THE ATLANTIC OCEAN WHICH IS THE INTERSECTION WITH THE E ASTERL v EXTENSION OF' THE SOUTHERLY LINE OF SAID LOT 1: THENCE IN A WESTERL Y DIRECTION AlONG THE EASTERLY EXTENSION OF' SAID SOUTH LINE OJ:" LOT , TO THE POINT OF BEGINNING. 1 of It '3 HOTEL LEGAL DESCRIPTION PARCEL III: LOTS 3 AND 16 AND THE NORTH 21.3 FEET (AS MEASURED ALONG LOT LINES) OF LOTS 2 AND 17, BLOCK 55, FISHER'S FIRST SUBDIVISION OF AI.. TON BEACH, ACCORDING TO THE PLAT THEREOF AS FILED FOR RECORD IN PLAT BOOK 2, PAGE 77, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA: TOGETHER WITH: THAT CERT AlN PAACEL OF LAND LYING EAST OF AND ADJACENT TO THE LAND DESCRIBED ABOVE.S~D LAND BOUNDED ON THE SOUTH BY THE SOUTH LINE OF THE ABOVE DESCRIBED PARCEL EXTENDED EASTERLY BOUNDED ON THE NORTH BY THE NORTH LINE OF THE ABOVE DESCRIBED PARCEL EXTENDED EASTERL Y BOUNDED ON THE EAST BY THE MEAN HIGH WATER LINE OF THE ATLANTIC OCEAN AND BOUNDED ON THE WEST BY THE EAST LINE OF SAID LOTS 2 AND 3 AFOREMENTIONED. PARCEL IV: LOTS 9, 10, 11, 12 AND NORTH Yz OF LOT 8 AND THE NORTH 112 OF LOT 13, BLOCK 56 OF FISHER'S FIRST SUBDIVISION OF AI.. TON BEACH FLORIDA. A SUBDIVISION IN F'RACTlONAL. SECTION 34, TOWNSHIP 53 SOUTH, RANGE 42 EAST, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 2, AT PAGE 77, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. PARCEL V: BEGINNING AT THE NORTHEAST CORNER OF LOT 9, IN BLOCK 56 OF FISHER'S FIRST SUBDIVISION OF ALTON BEACH, AS THE SAME IS SHOWN MARKED AND DESIGNATED ON A PLAT OF S~D SUBDIVISION, RECORDED IN PLAT BOOK 2, AT PAGE 77, IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN .AND FOR DADE COUNTY, FLORIDA. THENCE RUN IN AN EASTERLY DIRECTION ALONG THE NORTH LINE OF LOT 9 OF' BLOCK 56, PRODUCED TO THE HIGH WATER LINE Of THE ATLANTIC OCEAN. THENCE RUN IN A SOUTHERLY DIRECTION MEANDERING SAID HIGH WATER LINE A DISTANCE OF' 76.05 FEET PLUS OR MINUS TO A POINT, S~D POINT BEING AT THE INTERSECTION OF THE LAST MENTIONED COURSE WITH THE CENTER LINE OF LOT 8 OF BLOCK 56 PRODUCED TO THE HIGH WATER LINE OF THE ATLANTIC OCEAN: THENCE RUN IN A WESTERLY DIRECTION ALONG S~D CENTER LINE OF LOT 8, BLOCK 56 PRODUCED TO THE HIGH WATER LINE OF THE ATLANTIC OCEAN: THENCE RUN IN A WESTERLY DIRECTION ALONG S~D CENTER LINE OF LOT 8. BLOCK 56 PRODUCED TO THE EAST LINE OF BLOCK 56,AT ITS INTERSECTION WITH THE CENTER LINE OF LOT 8, IN BLOCK 56. THENCE RUN IN A NORTHERLY DIRECTION ALONG SAID EAST LINE OF BLOCK 56, A DIST "NCE OF 76.05 FEET PLUS OR MINUS TO A POINT OF' BE,GINNING. 2 of J '3 PARCEL/I: BEGINNING AT THE SOUTHEAST CORNER OF LOT 10, IN BLOCK 56 AS SHOWN By THE PLAT ENTITLED "FISHER'S FIRST SUBDIVISION OF' ~ TON BEACH", S~D PL AT BEING RECORDED IN PLAT BOOK 2, AT PAGE 77, OF THE PUBLIC RECORDS or DADE COUNTY. FLORIDA; RUN IN A NOR THERL Y DIRECTION ALONG THE EAST LINE OF S~D LOT la, A DIST ANCE O~ 50.7 FEET TO THE NORTHEAST CORNER or LOT 10; THENCE RUN IN AN EASTERL Y DIRECTION ALONG THE NORTH LINE OF SAJD LOT la, PRODUCED EASTERL Y TO THE HIGH WATER LINE OF THE ATLANil:: OCE~; THENCE RUN IN A SOUTHERL'Y DIRECTION, MEANDERING SAID HIGH WATER LINE A DISTANCE OF '50.7 FEET, PLUS OR MINUS, TO A POINT; THENCE RUN IN A WESTERLY DIRECTION AlONG THE SOUTH LINE OF LOT 10, IN BLOCK 56, PRODUCED EASTERLY. TO THE POINT OF BEGINNING. PARCEL VII: THE SOUTH 1/2 OF' LOTS 8 AND 1.3 AND All OF lOTS 7 AND 14, LESS THE SOUTH 12.65 FEET OF SAID LOTS 7 AND 14, TOGETHER WITH THAT PIECE or PARCEL OF LAND LYING BETWEEN THE NORTH AND SOUTH BOUNDARIES OF SAJD PROPERTY EXTENDING EASTWARD TO THE ATLANTIC OCEAN, AlL lYING AND BEING IN BLOCK 56, OF FISHER'S FIRST SUBDIVISION OF AI.. TON BEACH, ACCORDINC TO THE PLAT THEREOF', AS RECOROED IN PLAT 800K 2. AT PAGE 77, OF THE PUBLIC RECORDS OF DADE COUNTY. FLORIDA. PARCEL VIII: THAT PORTION OF AVENUE C (A/K/A 16TH STREET> AS SHOWN IN FISHER'S FIRST SUBDIVISION OF' AlTON BEACH, RECORDED AT PLAT BOOK 2, AT PAGE 77, OF THE PUBLIC RECORDS OF' DADE COUNTY, FLORIDA. AND ITS EASTERLY EXTENSION BOUNDED ON THE WEST BY THE EASTERLY RIGHT-OF-WAY LINE OF COLLINS AVENUE AND BOUNDED ON THE EAST BY THE EROSION CONTROL LINE, ALL OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE. AT THE NORTHWEST CORNER OF LOT 11. BLOCK 56. FISHER'S FIRST SUBDIVISION OF AlTON BEACH. PLAT BOOK 2, AT PAGE 77, OF' THE oUBLlC RECORDS OF DADE COUNTY. FLORIDA, SAID 'POINT BEING THE POINT OF BEGINNING; THENCE NORTH- 88 DEGREES 00 MINUTES 49 SECONDS EAST ALONG THE NORTH LINE OF S.6JD BLOCK 56 AND ITS EASTERLY EXTENSION FOR A DIST ANCE OF 576.20 FEET TO THE POINT OF INTERSECTION WITH THE EROSION CONTROL LINE OF THE ATLANTIC OCEAN; THENCE NORTH 8 DEGREES 54 MINUTES 53 SECONDS EAST, ALONG THE EROSION CONTROL LINE FOR A OIST ANCE OF 71.28 FEET TO THE POINT OF INTERSECTION WITH THE EASTERL Y EXTENSION OF THE SOUTH LINE OF BLOCK 55 OF THE ABOVE MENTIONED FISHER'S FIRST SUBDIVISION OF ALTON BEACH; THENCE SOUTH 88 DEGREES 00 MINUTES 49 SECONDS WEST. ALONG THE SOUTH LINE OF' SAID BLOCK 55 AND ITS EASTERL Y EXTENSION FOR A DIST ANCE OF' 577.88 FEET TO THE POINT OF' INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF COLLINS AVENUE; THENCE SOUTH 07 DEGREES 35 MINUTES 04 SECONDS WEST, ALONG THE EASTERL Y RIGHT-OF-WAY LINE OF COLLINS AVENUE FOR A DISTANCE OF 70.98 FEET TO THE POINT or BEGINNING. 3 of j.'3 II ------- ~ f.L2~ ~ !v/fr11$- -::-- . ~,~ I,r )tj~)C:""'" O~Th~\,l~~. --1 ~ ill" ~I) ),~.~~fA~~~~" -. ..,-Q. ~ I D, 0 dr! ~,,__..,c~~- ~ I} \ (0 ;~ (j~ '\:.. 171" ~~: t ,/1 ,,1-=: ~ I ~ 00 q ~Io. :'..J 0" s ~ o~-~ A-"1!. . ~l ~ ~Y'/;j. 0 I~ l /ti ~~A "n~ IT "F-'fL I o. ~ ! ~ .ll....\i I ~ ~_I_III II I i ~ ()~ ~ ~~ ; ,I h- 1\..1 / / ., -: I T I ;. """'~ ---(j) / d'=-:?" -..;C "'" . II 'H ;; "Ii ,m.,:.:,. '.' ',;,.; -- - · ~ 8----' '~"~ ~ ~,~~ ~t ~I'~ ~~' ,~~ ~" . r-I H ~ ~ ~ . .",... .. ~,.... ~. "fJ S...... ~ I ~ ,,' Y"'~!o" ~~. _ J-'It1 0 0 r1i ~ ... ,,~ "I ~ .... ljJt:='" ~ '-'ba ~ w ~ ~ \ ~,-0 II [/: ,13""" ~ ~ ~ ~.....'" ~......... 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X a: o o -l U. :I: ~ ~ - N ~ a: o :E ~ V) 0'1 r--i ~ o r-- r--i (j) tJl rtl O-l c Z lIJ C1 lIJ ..J. I- Z ::l o ::; CD ::l Q, I: z ::::I ..J g X 0'1 rl 4-1 o co rl QJ tJ"'l rd fJ..I ~D t-~ t- '-' Z Z Q :) :) ffi 0 .... ::; w CJ 111 b w :) ...., a. J: e- 0- 0:>, Z <( ...J a. LL 0 0 ~ a: N I- a: 0 ::!: 0 l- (/) ~ ~0 ~ (j) .--I 4-l o (j) .--I Q) tJO n:l P, Exhibit B Articles of Incorporation of Association ".lnQ"'~,)" na-, ARTICLES OF INCORPORATION OF LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC. a Florida corporation not for profit The undersigned by these articles associate themselves for the purpose of forming a corporation not-for-profit pursuant to the provisions and the laws of the State of Florida, and hereby adopt the following articles of incorporation: ARTICLE I NAME The name of the corporation shall be LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., a Florida corporation not-for-profit. Hereinafter the corporation shall be referred to as the "Association", with its principal place of business located at 407 Lincoln Road, Suite 6-K, Miami Beach, Florida 33139. ARTICLE II PURPOSE The purpose for which the Association is organized is to provide an entity pursuant to Section 718.111 of Chapter 718, Florida Statutes, as it exists on the date hereof, hereinafter called the "Condominium Act" or the "Act", for the operation of Loews Miami Beach Hotel, a non-residential condominium to be created pursuant to the provisions of the Condominium Act. ARTICLE 11/ POWERS The powers of the Association shall include and be governed by the following provisions: A. General. The Association shall have all of the common law and statutory powers of a corporation not-for-profit under the laws of the State of Florida that are not in conflict with the provisions of these Articles, the Declaration, the By-Laws or the Act. B. Enumeration. The Association shall have all of the powers and duties set forth in the Act, except as limited by these Articles, the By-Laws and the Declaration, and all of the powers and duties reasonably necessary to operate the Condominium pursuant to the Declaration and as more particularly described in the By-Laws and these Articles, as they may be amended from time to time, including, but not limited to, the following: 1. To make and collect assessments and other charges against members as Unit Owners, and to use the proceeds thereof in the exercise of its powers and duties. 2. and personal property. 3. To maintain, repair, replace, reconstruct, add to and operate the Common Elements, and other property acquired or leased by the Association. To buy, own, operate, lease, sell, trade and mortgage both real 4. To purchase insurance upon the Condominium Property and insurance for the protection of the Association, its Officers, Directors and Unit Owners. 5. To make and amend reasonable rules and regulations, consistent with the use restrictions set forth in Article XII of the Declaration, for the maintenance, conservation and use of the Condominium Property and for the health, comfort, safety and welfare of the Unit Owners. 6. To enforce by legal means the provIsions of the Act, the Declaration, these Articles, the By-Laws, the rules and regulations for the use of the Condominium Property. 7. To contract for the operation, management and maintenance of the Condominium Property and to authorize a management agent to assist the Association in carrying out its powers and duties by performing such functions as the submission of proposals, collection of assessments, preparation of records, enforcement of rules and maintenance, repair and replacement of the Common Elements with such funds as shall be made available by the Association for such purposes. The Association and its Officers shall, however, retain at all times the powers and duties granted by the Condominium Act, including, but not limited to, the making of assessments, promulgation of rules and execution of contracts on behalf of the Association. 8. To employ personnel to perform the services required for the proper operation of the Condominium. C. Condominium Property. All funds and the titles to all properties acquired by the Association, and their proceeds, shall be held for the benefit and use of the members in accordance with the provisions of the Declaration, these Articles and the By-Laws. D. Distribution of Common Surplus. The Association shall distribute Common Surplus pursuant to the provisions of Section 8.6 of the Declaration. E. Limitation. The powers of the Association shall be subject to and shall be exercised in accordance with the provisions hereof and of the Declaration, the By-Laws and the Act. - 2 - W6-MI953400.043 ARTICLE IV MEMBERS A. Membership. The members of the Association shall consist of the record Owners of the Units in the Loews Miami Beach Hotel, a Condominium, and after termination of the Condominium, shall consist of those who are members at the time of such termination, and their successors and assigns. B. How Membership Acquired. Membership shall be acquired by recording in the Public Records of Dade County, Florida, a deed or other instrument establishing record title to a Unit in Loews Miami Beach Hotel, a Condominium, the Owner designated by such instrument thus becoming a member of the Association, and the membership of the prior Owner being thereby terminated, provided, however, any party who owns more than one (1) Unit shall remain a member of the Association so long as he shall retain title to or a fee ownership interest in a Unit. C. Assignment. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to his Unit for which that share is held. D. Voting. On all matters upon which the members shall be entitled to vote, the Owner of the Hotel Unit shall be entitled to three (3) votes and the Owner of the Public Unit shall be entitled to one (1) vote, which votes may be exercised or cast in such manner as may be provided in the By-Laws of the Association. E. Membership Meetings. The By-Laws shall provide for an annual membership meetings, and may provide for regular and special meetings of members other than the annual meetings. ARTICLE V TERM OF EXISTENCE The Association shall have perpetual existence. ARTICLE VI INCORPORATOR The name and address of the person signing these Articles of Incorporation is: William A. Weber, Esq. c/o Hughes Hubbard & Reed 201 Biscayne Blvd., Suite 2500 Miami, Florida 33131 - 3- W6.MI953400.043 ARTICLE VII OFFICERS The affairs of the Association shall be administered by a President, a Vice President, a Secretary and a Treasurer, and such Assistant Secretaries and Assistant Treasurers as the Board of Directors may, from time to time, designate. Any person may hold two (2) offices, excepting that the same person shall not hold the office of President and Vice President and the same person shall not hold the office of President and Secretary. Officers of the Association shall be elected by the Board of Directors following each annual meeting of the members of the Association, and shall serve at the pleasure of the Board of Directors. The names and addresses of the Officers who shall serve until their successors are elected by the Board of Directors in accordance with these Articles or the Bylaws of the Association, are as follows: Jonathan M. Tisch 667 Madison Avenue New York, New York 10021 PRESIDENT SENIOR VICE PRESIDENT Jack S. Adler 667 Madison Avenue New York, New York 10021 VICE PRESIDENT OF CONSTRUCTION Eric Nesse MB Redevelopment, Inc. 407 Lincoln Road Suite 6-K Miami Beach, Florida 33139 VICE PRESIDENT AND SECRETARY Gary W. Garson 667 Madison Avenue New York, New York 10021 TREASURER John J. Kenny 667 Madison Avenue New York, New York 10021 ARTICLE VIII BOARD OF DIRECTORS A. Number and Qualification. The affairs of the Association shall be managed by a Board of Directors. The number of persons which shall constitute the entire Board of Directors shall be not less than four (4). -4- W6-Ml953400.043 B. Directors. The names and addresses of the members of the initial Board of Directors who shall hold office until their successors are elected and have qualified, or until removed, are as follows: NAME ADDRESS Jack S. Adler 667 Madison Avenue New York, New York 10021 Jonathan M. Tisch 667 Madison Avenue New York, New York 10021 Gary W. Garson 667 Madison Avenue New York, New York 10021 Jose Garcia-Pedrosa Miami Beach Redevelopment Agency Executive Director 1700 Convention Center Drive Miami Beach, Florida 33139 Subsequent to the conveyance by the Co-Declarants of both Units, the number of Directors who shall constitute the entire Board of Directors shall remain four (4). The Hotel Owner shall then elect three (3) Directors and the Public Unit Owner shall then elect one (1) Director. Hotel Owner and Public Unit Owner acknowledge that for so long as the Public Unit is owned by the Agency, the Director for the Public Unit shall be the Executive Director of the Miami Beach Redevelopment Agency, and if the Public Unit is owned by the City of Miami Beach, the Director for the Public Unit shall be the City Manager for the City of Miami Beach. C. Duties and Powers. All of the duties and powers of the Association existing under the Act, the Declaration, these Articles and the By-Laws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by Association members when such approval is specifically required by these Articles, the By-Laws or the Declaration. In the event of deadlock between the Directors, either Unit Owner may elect, in writing, to submit the dispute to be resolved pursuant to the Dispute Resolution Procedure set forth in Section 19.7 of the Declaration (the "Dispute Resolution Procedure"), and such resolution shall be binding upon the Unit Owners and their Directors, who shall immediately comply with the decision rendered. D Election; Removal. Except as otherwise provided in these Articles, Directors of the Association shall be elected at the annual meeting of the members in the manner determined by and subject to the qualifications set forth in the By-Laws. Except as otherwise provided in these Articles, Directors may be removed and vacancies on the Board of Directors shall be filled in the manner provided by the By-Laws. - 5 - W6-MI953400.043 ARTICLE IX INDEMNIFICATION A. Indemnity. The Association shall, and does hereby, indemnify to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions (but, in the case of any future legislation or decisions, only to the extent that it permits the Association to provide broader indemnification rights than permitted prior to such legislation or decisions), each person (including the heirs, executors, administrators or the estate of such person) who was or is a party or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), against any liability (which for purposes of this Article shall include any judgment, settlement, penalty or fine) or cost, charge or expense (including attorneys' fees) asserted against him or incurred by him by reason of the fact that such indemnified person (1) is or was a Director or Officer of the Association or (2) is or was an employee or agent of the Association as to whom the Association has agreed to grant such indemnity or (3) is or was serving, at the request of the Association, as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of any employee benefit plan) or is serving as an employee or agent of such other corporation, partnership, joint venture, trust or other enterprise as to whom the Association has agreed to grant such indemnity. Each Director, Officer, employee or agent of the Association to whom indemnification rights under this Paragraph A of this Article have been granted shall be referred to as an "Indemnified Person." Notwithstanding the foregoing, except as specified in Paragraph C of this Article, the Association shall not be required to indemnify an Indemnified Person in connection with a Proceeding (or any part thereof) initiated by such Indemnified Person unless such authorization for such Proceeding (or any part thereof) was approved by the Board of Directors of the Association prior to sixty (60) days after receipt of notice thereof from such Indemnified Person stating his intent to initiate such Proceeding and only upon such terms and conditions as the Board of Directors may deem appropriate. B. Expenses. Costs, charges and expenses (including reasonable attorneys' fees) incurred by an Officer or Director who is an Indemnified Person in defending a Proceeding shall be paid by the Association to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions (but, in the case of any such future legislation or decisions only to the extent that it permits the Association to provide broader rights to advance costs, charges and expenses than permitted prior to such legislation or decisions) in advance of the final disposition of such Proceeding, upon receipt of an undertaking by or on behalf of the Indemnified Person to repay all amounts so advanced in the event that it shall ultimately be determined that such person is not entitled to be indemnified by the Association as authorized in this Article and upon such other terms and conditions, in the case of employees and agents as to whom the Association has agreed to grant such indemnity, as the Board of Directors may deem appropriate. The Association may, upon approval of the - 6- W6.MI953400.043 Indemnified Person which approval shall not be unreasonably withheld, authorize the Association's counsel to represent such person in any Proceeding, whether or not the Association is a party to such Proceeding. Such authorization may be made by the Board of Directors by majority vote, including Directors who are parties to such Proceeding. C. Advances. Any indemnification or advance under this Article shall be made promptly and in any event within sixty (60) days upon the written request of the Indemnified Person. The right to indemnification or advances as granted by this Article shall be enforceable by the Indemnified Person in any court of competent jurisdiction, if the Association denies such request under this Article, in whole or in part, or if no disposition thereof is made within sixty (60) days. Such Indemnified Person's costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Association. It shall be a defense to any such action that the claimant has not met the standard of conduct, if any, required by current or future legislation or by current or future judicial or administrative decisions for indemnification (but, in the case of any such future legislation or decisions, only to the extent that it does not impose a more stringent standard of conduct than permitted prior to such legislation or decisions), but the burden of proving such defense shall be on the Association. Neither the failure of the Association (including its Board of Directors or any committee thereof, its independent legal counsel, and its members) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct, if any, nor the fact that there has been an actual determination by the Association (including its Board of Directors or any committee thereof, its independent legal counsel, and its members) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. D. Miscellaneous. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-laws, agreement, vote of members or disinterested Directors or recommendation of counselor otherwise, both as to actions in such person's official capacity and as to actions in another capacity while holding such office, and shall continue as to an Indemnified Person who has ceased to be a Director, Officer, employee or agent and shall inure to the benefit of the heirs, executors, administrators and the estate of such person. All rights to indemnification under this Article shall be deemed to be a contract between the Association and each Indemnified Person who serves or served in such capacity at any time while this Article is in effect. Any repeal or modification of this Article or any repeal or modification of relevant provisions of Chapter 617, Florida Statutes, Chapter 607, Florida Statutes, or any other applicable law shall not in any way diminish any rights to indemnification of such Indemnified Person, or the obligation of the Association arising hereunder, for claims relating to matters occurring prior to such repeal or modification. E. Insurance. The Association may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Association, or is or was serving, at the request of the Association, as a director, officer, -7- W6-MI953400.043 employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Association would have the power to indemnify him against such liability under the provisions of this Article or the applicable provisions of the Florida Business Corporation Act. F. Amendment. Anything to the contrary herein notwithstanding, the provisions of this Article IX may not be amended without the unanimous vote of the Board of Directors and the voting interests of the Association. G. Savings Clause. If this Article IX or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Association shall nevertheless indemnify each Indemnified Person as to costs, charges and expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement with respect to any Proceeding, including an action by or in the right of the Association, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and as permitted by applicable law. ARTICLE X BY-LAWS The first By-Laws of the Association in the form attached to the Declaration as Exhibit "D" shall be adopted by the Board of Directors and, thereafter, may be altered, amended or rescinded in the manner provided in the By-Laws. ARTICLE XI AMENDMENTS Amendments to these Articles of Incorporation shall be proposed and adopted in the following manner: A. Notice. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. B. Adoption. A resolution for the adoption of a proposed amendment may be proposed by the Board of Directors of the Association or by one (1) of the members of the Association. A member may propose such an amendment by instrument in writing directed to the President or Secretary. Amendments may be proposed by the Board of Directors by action of a majority of the Board at any meeting thereof. Upon an amendment being proposed as herein provided, the President, or in the event of his refusal or failure to act, the Board of Directors, shall call a meeting of the membership to be held not sooner than fifteen (15) days nor later than sixty (60) days thereafter for the purpose of considering such amendment. Directors and members not present in person or by proxy at the meeting considering the amendment may express their approval or - 8- W6-MI953400.043 disapproval in writing provided such document is delivered to the Secretary at or prior to the meeting. The amendment shall be effective upon the adoption by a majority of the Board of Directors and by not less than three fourths of the voting interests of the Association. C. Limitation. Notwithstanding the foregoing, no amendment shall (a) alter or amend the rights of the Developer or mortgagees of Units without their consent or (b) make changes in the qualifications of membership or the voting rights or property rights of members without the approval in writing of all members. No amendment shall be made that is in conflict with the Act or the Declaration. D. Filing and Recording. A copy of each amendment shall be filed with the Department of State, pursuant to the provisions of the applicable Florida Statutes, and a copy certified by the Secretary of State shall be recorded in the Public Records of Dade County. ARTICLE XII DEFINITIONS Unless herein provided to the contrary, or unless the context otherwise requires, the terms used in these Articles shall have the same definitions and meanings as set forth in the Declaration of Condominium. ARTICLE XIII INITIAL REGISTERED OFFICE; ADDRESS AND NAME OF REGISTERED-AGENT The initial Registered Agent to accept service of process within this state for said corporation shall be William A. Weber, and the initial Registered Office of the Association shall be located at 201 Biscayne Boulevard, Suite 2500, Miami, Florida 33131. Having been named to accept service of process for the above stated corporation at the place designated herein, the undersigned hereby accepts to act in this capacity, and agrees to comply with the provision of said Act relative to keeping open said office. By: William A. Weber on this IN WITNESS WHEREOF, the Incorporator has affixed his signature hereto ,day of ,1996. By: William A. Weber - 9- W6.MI953400.043 STATE OF FLORIDA ) COUNTY OF DADE ) BEFORE ME, the undersigned authority, personally appeared William A. Weber, who after being duly sworn, acknowledged that he executed the foregoing Articles of Incorporation for the purposes expressed therein. He is personally known to me or produced a valid Florida drivers license as identification. WITNESS my hand and official seal in Miami, Dade County, Florida, this day of September, 1996. Notary Public, State of Florida at Large - 10- W6-MI953400.043 Exhibit C Ownership of Common Elements and Common Surplus and Share of Common Expenses Public Unit 25% Hotel Unit 75% aAln~.,a':)n na7 Exhibit D Bylaws of Association aalna.,a")" "&:7 BY-LAWS OF LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC. a Florida corporation not for profit I. IDENTITY These are the By-Laws of LOEWS MIAMI BEACH HOTEL OWNERS ASSOCIATION, INC., hereinafter called the "Association", a corporation not for profit under the laws of the State of Florida, organized for the purpose of operating that certain non-residential condominium located in Dade County, Florida, and known as the Loews Miami Beach Hotel, a Condominium (the "Condominium"). 1.1 Principal Office. The principal office of the Association shall be at located at 407 Lincoln Road, Suite 6-K, Miami Beach, Florida 33139, or at such other place as may be subsequently designated by the Board of Directors. All books and records of the Association shall be kept at its principal office. 1.2 Fiscal Year. The fiscal year of the Association shall be the calendar year. 1.3 Seal. The seal of the Association shall bear the name of the corporation, the word "Florida", the words "corporation not for profit", and the year of incorporation. 1.4 Definitions. For convenience, these By-Laws shall be referred to as the "By- Laws"; the Articles of Incorporation of the Association as the "Articles"; and the Declaration of Condominium for the Condominium as the "Declaration." The other terms used in the By-Laws shall have the same definitions and meaning as those set forth in Chapter 718, Florida Statutes, as existing on the date hereof, hereinafter called the "Condominium Act" or the "Act", as well as those set forth in the Declaration and the Articles, unless otherwise provided to the contrary in these By-Laws, or unless the context otherwise requires. II. MEMBERS'MEETINGS. 2.1 Annual Meetings. The annual members' meeting shall be held on the date and at the place and time as determined by the Board of Directors from time to time, provided that there shall be an annual meeting every calendar year and, to the extent possible, no later than thirteen (13) months after the last preceding annual meeting. The purpose of the meeting shall be to elect Directors and transact any other business authorized to be transacted by the members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof. 2.2 Special Meetings. Special members' meeting shall be held at such places as provided for annual meetings, and may be called by the President or Vice President or by any member of the Board of Directors, and must be called by such Officers upon receipt of a written request from a Unit Owner. Such request shall state the purpose(s) of the meeting. The business conducted at the special meeting shall be limited to the matters set forth in the notice for such special meeting. Special meeting may also be called by Unit Owners in the manner provided in the Act. Notwithstanding the foregoing: (i) as to special meetings regarding the adoption of the Condominium's estimated operating budget, reference shall be made to Section 6.1 (a) of these By-Laws; and (ii) as to special meetings regarding recall of Directors, reference shall be made to Section 3.3 of these By-Laws. 2.3 Notice of Annual Meeting and Special Meetings. Notice of all members' meetings (annual or special) stating the time and place and the object for which the meeting is called shall be given by the President or Vice President or Secretary. Such notice shall be in writing to each member at his address as it appears on the books of the Association, by mail, not less than fourteen (14) days nor more than forty-five (45) days prior to the date of the meeting, unless the Unit Owner waives in writing the right to receive notice of the annual meeting by mail. Notice of meetings shall be posted conspicuously on the Condominium Property at least fourteen (14) continuous days in advance of the annual meeting for the members' attention; no such posting is required in connection with special meetings of the membership, unless required by applicable law. The Board of Directors shall adopt by rule, and give notice to the Unit Owners of, a specific location on the Condominium Property upon which all notices of members' meetings shall be posted; however, if there is no Condominium Property upon which notices can be posted, this requirement does not apply. An Officer of the Association shall provide an affidavit to be included in the official records of the Association affirming that notices of the Association meeting were mailed or hand delivered to each Unit Owner at the address last furnished to the Association. Notice of any members' meetings may be waived before or after the meeting and the attendance of any member (or any person authorized to vote for such member) shall constitute such member's waiver of notice of such meeting, and a waiver of any and all objections to the place of the meeting, the time of the meeting or the manner in which it has been called or convened, except when his (or his authorized representative's) attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened. 2.4 Participation by Unit Owners. Subject to the following and such further reasonable restrictions as may be adopted from time to time by the Board, Unit Owners shall have the right to speak at the annual and special meetings of the Unit Owners, committee meetings and Board meetings with reference to all designated agenda items. A Unit Owner does not have the right to speak with respect to items not specifically designated on the agenda, provided, however, that the Board may permit a Unit Owner to speak on such items in its discretion. Every Unit Owner who desires to speak at a meeting, may do so, provided that the Unit Owner has filed a written request with the Secretary of the Association not less than 24 hours prior to the scheduled time for commencement of the meeting. Unless waived by the chairman of the meeting (which may be done in the chairman's sole and absolute discretion and without being deemed to constitute a waiver as to any other subsequent speakers), all Unit Owners speaking at a meeting shall be limited to a maximum of three (3) minutes per speaker. The Association may also adopt other reasonable rules governing the frequency, duration and manner of Unit Owner statements. Any Unit Owner may tape record or videotape a meeting, subject W6-MI953400.043 -2- to the following and such further reasonable restrictions as may be adopted from time to time by the Board: (a) The only audio and video equipment and devices which Unit Owners are authorized to utilize at any such meeting is equipment which does not produce distracting sound or light emissions; (b) Audio and video equipment shall be assembled and placed in position in advance of the commencement of the meeting. (c) Anyone videotaping or recording a meeting shall not be permitted to move about the meeting room in order to facilitate the recording; and (d) At least 48 hours prior written notice shall be given to the Secretary of the Association by any Unit Owner desiring to make an audio or video taping of the meeting. 2.5 Quorum. A quorum at members' meetings shall consist of persons entitled to exercise, either in person or by proxy, in excess of 33 1/3% of the voting interests of the entire membership. 2.6 Majority Vote. The acts approved by a majority of the voters present in person or by proxy at a meeting at which a quorum is present shall constitute the acts of the members, except where otherwise provided by law, the Declaration, the Articles, or these By-Laws. As used in these By-Laws, the Articles or the Declaration, the term "majority of the members" shall mean a majority of the votes entitled to be cast by the members and not a majority of the members themselves and shall further mean more than fifty (50%) percent of the then total authorized votes present in person or by proxy and voting at any meeting of the Unit Owners at which a quorum shall have been attained. Similarly, if some greater percentage of members is required herein or in the Declaration or Articles, it shall mean such greater percentage of the votes of members and not the members themselves. 2.7 Voting. (a) In any meeting of members, the Owners of the Hotel Unit shall be entitled to cast three (3) votes, while the Owner of the Public Unit shall be entitled to cast one (1) vote. The vote(s) of a Unit shall not be divisible. (b) If a Condominium Unit is owned by one (1) person, that person's right to vote shall be established by the record title to his Unit. If any Condominium Unit is owned by more than one (1) person, the person entitled to cast the vote(s) for the Condominium Unit shall be designated by a certificate signed by all of the record Owners of the Condominium Unit and filed with the Secretary of the Association. If a Condominium Unit is owned by a corporation, the person(s) entitled to cast the vote(s) for the Condominium Unit shall be designated by a certificate signed by the President or Vice President and attested by the Secretary or Assistant Secretary of the corporation and filed with the Secretary of the Association. Such certificates shall be valid until revoked or until superseded by a W6.MI953400.043 -3- subsequent certificate or until a change in the ownership of the Condominium Unit concerned. A certificate designating the person(s) entitled to cast the vote of a Condominium Unit may be revoked by any Owner of a Condominium Unit. 2.8 Proxies. Votes to be cast at meetings of the Association membership may be cast in person or by proxy. Except as specifically provided herein, Unit Owners may not vote by general proxy, but may vote by limited proxies substantially conforming to the limited proxy form approved by the Division. Limited proxies shall be permitted for votes taken to: waive or reduce reserves; waive financial statements, amend the Declaration, Articles or these By-Laws; or for any other matter requiring or permitting a vote of Unit Owners. No proxy, limited or general, shall be used in the election of Board members. General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. A proxy may be made by any person entitled to vote, but shall only be valid for the specific meeting for which originally given and any lawfully adjoined meetings thereof. In no event shall any proxy be valid for a period longer than ninety (90) days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the person executing it. A proxy must be in writing, signed by the person authorized to cast the vote for the Unit (as above described), name the person(s) voting by proxy and the person authorized to vote for such person(s) and shall be filed with the Secretary before the appointed time of the meeting, or before the time to which the meeting is adjourned. Each proxy shall contain the date, time and place of the meeting, or before the time to which the meeting is adjourned. Each proxy shall contain the date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the matters on which the proxy holder may vote and the manner in which the vote is to be cast. The proxy form must conform to any requirements of the Condominium Act and applicable administrative rules as amended from time to time. There shall be no limitation on the number of proxies which may be held by any person (including a designee of the Developer). If a proxy expressly provides, any proxy holder may appoint, in writing, a substitute to act in its place. If such provision is not made, substitution is not permitted. 2.9 Adjourned Meetings. If any meeting of the members cannot be organized because a quorum has not attended, the members who are present, either in person or by proxy, may adjourn the meeting, from time to time, until a quorum is present, provided notice of the newly scheduled meeting is given in the manner required for the giving of the notice of a meeting. Except as required above, proxies given for the adjourned meeting shall be valid for the newly scheduled meeting unless revoked for reasons other than the new date of the meeting. 2.10 Order of Business. The order of business at annual members' meetings, and as far as practical at other members' meetings, shall be: (a) Calling to order by the President or by the Vice President or by the chairman of the meeting. W6-MI953400.043 -4- (b) Election of a chairman of the meeting, unless the President or Vice President as present, in which case he or she shall preside. (c) Calling of the roll, certifying of proxies and determination of a quorum. (d) Proof of notice of meeting or waiver of notice. (e) Reading and disposal of any unapproved minutes. (f) Reports of Officers. (g) Reports of committees. (h) Appointment of inspectors of election. (i) Determination of the number of Directors to be elected. (j) Election of Directors. (k) Unfinished business. (I) New business. (m) Adjournment. 2.11 Action by Members Without a Meeting. Notwithstanding anything to the contrary, to the extent lawful, any action required to be or which may be taken at any annual or special meeting of the Association, may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by all of the by the members (or persons authorized to cast the vote of any such members as elsewhere herein set forth) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of members at which all members (or authorized persons) entitled to vote thereon were present and voted. In order to be effective, the action must be evidenced by one or more written consents describing the action taken, dated and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the Secretary of the Association, or other authorized agent of the Association. Written consent shall not be effective to take the corporate action referred to in the consent unless signed by members having the requisite number of votes necessary to authorize the action within sixty (60) days of the date of the earliest dated consent and delivered to the Association as aforesaid. Any written consent may be revoked prior to the date the Association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the Secretary of the Association, or other authorized agent of the Association. Within ten (10) days after obtaining such authorization by written consent, notice must be given to members who have not consented in writing. The notice shall fairly summarize the material features of the authorized action. A consent signed in accordance with the foregoing has the effect of a meeting vote and may be described as such in any document. W6-MI953400.043 -5- 2.12 Minutes. The minutes of all meetings of Unit Owners shall be kept in a book available for inspection by Unit Owners or their authorized representatives and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven (7) years. III. DIRECTORS. 3.1 Membership. The affairs of the Association shall be governed by a Board of Directors. The number of Directors who shall constitute the entire Board of Directors shall be four (4). Directors must be natural persons who are eighteen (18) years of age or older. 3.2 Election of Directors. Election of directors shall be held at the annual members' meeting, except as herein provided to the contrary. Not less than sixty (60) days prior to a scheduled election, the Association shall mail or deliver to each Unit Owner entitled to vote, a first notice of the date of election. Any Unit Owner or other eligible person desiring to be a candidate for the Board must give written notice to the Secretary of the Association not less than forty (40) days prior to the scheduled election. Any eligible candidate may furnish the Association with an information sheet which shall be not larger than 8~ inches by 11 inches. The candidate's information sheet, if any, must be received by the Secretary by no later than thirty-five (35) days prior to the election. The Association shall have no liability for the contents of this information sheet prepared by the candidate. The Board shall hold a meeting within five (5) days after the deadline for candidates to provide notice to the Association of their intent to run. At this meeting, the Board shall accept additional nominations. Any Unit Owner or other eligible person may nominate himself or may nominate another Unit Owner or eligible person, if he has permission in writing to nominate himself or may nominate another Unit Owner or eligible person, if he has permission in writing to nominate the other person. Not less than thirty (30) days prior to the scheduled election, the Association shall then mail or deliver a second notice of the election to all Unit Owners entitled to vote therein, together with a ballot which shall list all eligible candidates. Upon request of a candidate, the Association shall include the information sheet, with the mailing of the ballot, with the costs of mailing and copying to be borne by the Association. The election of directors shall be by written ballot or voting machine. No Unit Owner shall permit any other person to cast his ballot, and any such ballots improperly cast shall be deemed invalid. The Association shall follow any administrative rules applicable to safeguarding the secrecy of ballots. Proxies shall in no event be used in electing the Board, either in general elections or elections to fill vacancies caused by recall, resignation or otherwise, unless otherwise provided in the Act. Elections shall be decided by a plurality of those ballots and votes cast. There shall be no quorum requirement; however, at least twenty percent (20%) of the eligible voters must cast a ballot in order to have a valid election of members of the Board. There shall be no cumulative voting. Notwithstanding the provisions of this Section, an election and balloting are not required unless more candidates file notices of intent to run or are nominated than vacancies exist on the Board. W6-MI953400.043 -6- 3.3 Vacancies. (a) Except as to vacancies resulting from the removal of Directors (as addressed in subsection (b), below), vacancies in the Board of Directors occurring between annual meetings of members shall be filled by the appointment of another Director by the remaining Directors at any Board meeting. (b) Any Director elected by the members may be removed by concurrence of a majority of the voting interests of the members at a special meeting of members called for that purposes or by written agreement signed by a majority of the voting interests. The vacancy in the Board of Directors so created shall be filled by the members at a special meeting of the members called for such purpose, or by the Board of Directors, in the case of removal by a written agreement unless said agreement also designates a new director to take the place of the one removed. 3.4 Term. Except as provided herein to the contrary, the term of each Director's service shall extend until the next annual meeting of the members and subsequently until his successor is duly elected and qualified or until he is removed in the manner elsewhere provided. 3.5 Organizational Meeting. The organization meeting of a newly-elected Board of Directors shall be held within ten (10) days of their election or appointment at such place and times as shall be fixed by the Directors at the meeting at which they were elected or appointed. No further notice of the organization meeting shall be necessary; provided, however, in the event the organizational meeting shall follow the annual meeting in which Directors were newly elected or appointed, the notice of the annual meeting shall serve as notice of the organizational meeting if said notice is properly provided for the organizational meeting to be held at that time. 3.6 Meetings. Meetings of the Board of Directors may be held at such time and place as shall be determined, from time to time, by a majority of the directors. Notice of meetings shall be given to each director, personally or by mail, telephone or telegraph, and shall be transmitted at least three (3) days prior to the meeting. Meetings of the Board of Directors and any Committee thereof at which a quorum of the members of that Committee are present shall be open to all Unit Owners. Any Unit Owner may tape record or videotape meetings of the Board, in accordance with the rules of the Division, subject to the restrictions in Section 2.4 of these By-Laws and any modifications thereof adopted from time to time by the Board. The right to attend such meetings includes the right to speak at such meetings with respect to all designated agenda items. The Association may adopt reasonable rules governing the frequency, duration and manner of Unit Owner statements. Adequate notice of such meetings, which notice shall specifically incorporate an identification of agenda items, shall be posted conspicuously on the Condominium Property at least forty-eight (48) continuous hours preceding the meeting, except in the event of an emergency. Any item not included on the notice may be taken up on an emergency basis by at least a majority plus one of the members of the Board of Directors. Such emergency action shall be noticed and ratified at the next regular meeting of the Board of Directors. Notwithstanding the foregoing, written notice of any meeting of the W6-MI953400.043 -7- Board at which nonemergency special assessments, or at which amendment to rules regarding Unit use will be considered, shall be mailed or delivered to all Unit Owners and posted conspicuously on the Condominium Property or Association Property upon which notices of Board meetings can be posted. If there is no Condominium Property or Association Property upon which notices can be posted, notices of Board meetings shall be mailed or delivered at least fourteen (14) days before the meeting to the Owner of each Unit. Evidence of compliance with this fourteen (14) day notice shall be made by an affidavit executed by the person providing the notice and filed among the official records of the Association. The Board may adopt by rules, and give notice to Unit Owners of, a specific location on the Condominium Property upon which all notices of Board and/or Committee meetings shall be posted. Special meetings of the directors may be called by the President, and must be called by the President or Secretary at the written request of one-third (1/3) of the directors or where required by the Act. 3.7 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting and such waiver shall be deemed equivalent to the due receipt by said Director of notice. Attendance by any Director at a meeting shall constitute a waiver of notice of such meeting, and a waiver of any and all objections to the place of the meeting, the time of the meeting or the manner in which it has been called or convened, except when a Director states at the beginning of the meeting, or promptly upon arrival, any objection to the transaction of business because the meeting is not lawfully called or convened. 3.8 Quorum. A quorum at Directors' meetings shall consist of a majority of the entire Board of Directors. The acts approved by a majority of those present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors, except where approval is specifically required by law, the Declaration, the Articles, or these By- Laws. After a quorum has been established at a meeting, the subsequent withdrawal of members, so as to reduce the number of voting interests entitled to vote at the meeting below the number required for a quorum, shall not affect the validity of any action taken at the meeting or any adjournment. 3.9 Adjourned Meetings. If, at any proposed meeting of the Board of Directors, there be less than a quorum present, the majority of those present may adjourn the meeting from time to time, until a quorum is present; provided notice of such newly scheduled meeting is given as required hereunder. At any newly scheduled meeting, any business that might have been transacted at the meeting as originally called may be transacted as long as notice of such business to be conducted at the rescheduled meeting is given, if required (e.g., with respect to budget adoption). 3.10 Presiding Officer. The presiding officer of Directors' meetings shall be the chairman of the Board if such an Officer has been elected; and if none, the President shall preside. In the absence of the presiding Officer, the Directors present shall designate one (1) of their number to preside. W6-MI953400.043 -8- 3.11 Order of Business. The order of business at Directors' meetings shall be: (a) Calling of roll. (b) Proof of due notice of meeting. (c) Reading and disposal of any unapproved minutes. (d) Reports of Officers and committees. (e) Election of Officers. (f) Unfinished business. (g) New business. (h) Adjournment. Such order may be waived in whole or in part by direction of the presiding Officer. 3.11 Minutes. The Minutes of all meetings of Board of Directors shall be kept in a book available for inspection by Unit Owners or their authorized representatives and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven (7) years. 3.12 Joinder in Meeting by Approval of Minutes. The Joinder of a Director in the action of a meeting by signing and concurring in the minutes of that meeting shall constitute the approval of that Director of the business conducted at the meeting, but such joinder shall not allow the applicable Director to be counted as being present for the purposes of quorum. 3.13 Resignations. Any Director may resign his post at any time by written resignation, delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is specified in the resignation, in which event the resignation shall be effective from such date unless withdrawn. The acceptance of a resignation shall not be required to make it effective. IV. POWERS AND DUTIES OF THE BOARD OF DIRECTORS The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Condominium and may take all acts, through the proper Officers of the Association, in executing such powers, except such acts which by law, the Declaration, the Articles or these By-Laws may not be delegated to the Board of Directors by the Unit Owners. Such powers and duties of the Board of Directors shall include, without limitation (except as limited elsewhere herein), the following: (a) Operating and maintaining the Common Elements. W6-MI953400.043 -9- (b) Determining the expenses required for the operation of the Condominium and the Association. (c) Collecting the Assessments for Common Expenses from Unit Owners. (d) Employing and dismissing the personnel necessary for the maintenance and operation of the Common Elements. (e) Adopting and amending rules and regulations concerning the details of the operation and use of the Condominium Property, subject to Paragraph 10 hereof. (f) Maintaining bank accounts on behalf of the Association and designating the signatories required therefor. (g) Obtaining and reviewing insurance for the Condominium Property. (h) Making repairs, additions and improvements to, or alternations of, the Condominium Property, and repairs to and restoration of the Condominium Property, in accordance with the provisions of the Declaration after damage or destruction by fire or other casualty, or as a result of condemnation or eminent domain proceedings or otherwise. (i) Enforcing obligations of the Unit Owners, allocating profits and expenses and taking such other actions as shall be deemed necessary and proper for the sound management of the Condominium. G) Levying fines against appropriate Unit Owners for violations of the rules and regulations established by the Association to govern the conduct of such Unit Owners. (k) Exercising (i) all powers specifically set forth in the Declaration, the Articles, these By-Laws and in the act, (ii) all powers incidental thereto, and (iii) all other powers of a Florida corporation not for profit. V. OFFICERS. 5.1 Executive Officers. The executive officers of the association shall be a President, who shall be a Director, a Vice President, a Treasurer and a Secretary, all of whom shall be elected annually by the Board of Directors, and there may also be such Assistant Secretaries and Assistant Treasurers as the Board of Directors may, from time to time, determine upon. Any person may hold two (2) or more offices except that the same person shall not hold the office of President and Vice President. Any Officer may be removed for cause. A vacancy in any office shall be filled by the Board of Directors. 5.2 President. The President shall be the chief executive Officer of the Association. He shall have all of the powers and duties usually vested in the office of president of an association, including, but not limited to, the power to appoint committees from among the members from time to time, as he, in his discretion, may determine appropriate to assist in the conduct of the affairs of the Association; provided, however, W6-MI953400.043 -10- that there must be equal representation between the Office Unit and the Hotel Unit on each committee appointed by the President. 5.3 Vice President. Each Vice President shall act as chairman of a committee of the Board. Any Vice President may be elected by the Board of Directors at any duly constituted meeting to exercise the powers and duties of the president in the event of the President's absence or disability. The Vice Presidents shall also assist the President generally and exercise such other powers and perform such other duties as shall be prescribed by the Board of Directors. 5.4 Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the members. He shall attend to the giving and serving of all notice to the members and Directors and other notices required by law. He shall have custody of the seal of the Association and affix it to instruments requiring a seal when duly signed. He shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of secretary of an association and as may be required by the Directors or the President. The Assistant Secretary, if any, shall perform the duties of the Secretary when the Secretary is absent, and shall otherwise assist the Secretary. 5.5 Treasurer. The Treasurer shall have custody of all property of the Association, including funds, securities and evidences of indebtedness. He shall keep the books of the Association in accordance with good accounting practices; and he shall perform all other duties incident to the office of Treasurer. The Assistant Treasurer, if any, shall perform the duties of the Treasurer when the Treasurer is absent, and shall otherwise assist the Treasurer. 5.6 Compensation. No compensation shall be paid to any Officer of the Association for his services as an Officer, except with the approval by both members of the Association, reflected by a vote taken at a duly constituted membership meeting. Nothing herein shall be construed so as to prohibit or prevent the Board of Directors from employing any Director or Officer as an employee of the Association at such compensation as the Board shall determine upon, nor shall anything herein be construed so as to preclude the Board from contracting with a Director or Officer or with any corporation in which a Director or Officer of the Association may be a stockholder, officer, director or employee, for the management of the Condominium for such compensation as shall be mutually agreed between the Board and such Officer or Director. 5.7 Resignation. Any Officer may resign his post at any time by written resignation, delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is specified in such resignation, in which event the resignation shall be effective from such date unless withdrawn. The acceptance of the resignation shall not be required to make it effective. VI. FISCAL MANAGEMENT. The provisions for fiscal management of the Association set forth in the Declaration and Articles shall be supplemented by the following provisions: W6-MI953400.043 -11- 6.1 Budget. (a) Adoption by Board; Items. The Board of Directors shall from time to time, and at least annually, prepare a budget for the Condominium governed and operated by the Association (which shall detail all accounts and items of expense and contain at least all items set forth in Section 718.504(20) of the Act, if applicable), determine the amount of Assessments payable by the Unit Owners to meet the expenses of such Condominium and allocate and assess such expenses among the Unit Owners in accordance with the provisions of the Declaration. In addition to annual operating expenses, the budget shall include reserve accounts for capital expenditures and deferred maintenance (to the extent required by law). The amount of reserves shall be computed by means of a formula which is based upon the estimated life and the estimated replacement cost or deferred maintenance expense of each reserve item. The Association may adjust replacement reserve assessments annually to take into account any extension of the useful life of a reserve item caused by deferred maintenance. Reserves shall not be required if both members of the Association vote at a duly called meeting of members, determined for a specific fiscal year to provide no reserves or reserves less adequate than required hereby. If a meeting of Unit Owners has been called to determine whether to provide no reserves or reserves less adequate than required, and such result is not attained or a quorum is not attained, the reserves as included in the budget shall go into effect. Reserve funds and any interest accruing thereon shall remain in the reserve account for authorized reserve expenditures, unless their use for other purposes is approved in advance by a vote of the majority of the voting interests present at a duly called meeting of the Association. The adoption of a budget for the Condominium shall comply with the following requirements: (i) A copy of the proposed budget of Common Expenses shall be mailed to each Unit Owner not less than fourteen (14) days prior to the meeting of the Board of Directors at which the budget will be considered, together with a notice of that meeting indicating the time and place of such meeting. (ii) If a budget is adopted by the Board of Directors which requires Assessments against such Unit Owners in any year exceeding one hundred fifteen percent (115%) of such Assessments for the preceding year, as hereinafter defined, upon written application of ten percent (10%) of the Unit Owners, a special meeting of the Unit Owners shall be held within thirty (30) days of delivery of such application to the Board of Directors. Each Unit Owner shall be given at least ten (10) days' notice of said meeting. At the special meeting, Unit Owners shall consider and adopt a budget. The adoption of said budget shall require a vote of Owners of not less than fifty percent (50%) of all the Units (including Units owned by the Developer). If a meeting of the Unit Owners has been called as aforesaid and a quorum is not obtained or a substitute budget has not been adopted by the Unit Owners, the budget adopted by the Board of Directors shall go into effect as scheduled. (iji) In determining whether a budget requires Assessments against Unit Owners in any year exceeding one hundred fifteen percent (115%) of Assessments for the preceding W6-MI953400.043 -12- year, there shall be excluded in the computations any authorized provisions for reasonable reserves made by the Board of Directors with respect to repair or replacement of the Condominium Property or with respect to anticipated expenses of the Association which are not anticipated to be incurred on a regular or annual basis, and there shall be excluded further from such computation Assessments for improvements to the Condominium Property. (b) Adoption by Membership. In the event that the Board of Directors shall be unable to adopt a budget for a fiscal year in accordance with the requirements of Paragraph 6.1 (a) above, the Board of Directors may call a special membership meeting for the purpose of considering and adopting the budget for the Association, which meeting shall be called and held in the manner provided for such special meetings in said paragraph, or propose a budget in writing to the members, and if such budget is adopted by the members, upon ratification by all members of the Board of Directors, it shall become the budget for such year. 6.2 Assessments. Assessments against the Condominium Unit Owners for their share of the items of the budget shall be made for the calendar year annually in advance on or before December 20 preceding the year for which the Assessments are made. Such Assessments shall be due in equal installments, payable on the first day of each month (or each quarter at the election of the Board) of the year for which the Assessments are made. If an annual assessment is not made as required, an Assessment shall be presumed to have been made in the amount of the last prior Assessment, and monthly (or quarterly) installments on such Assessments shall be due upon each installment payment date until changed by amended Assessments. In the event the annual Assessment proves to be insufficient, the budget and Assessments may be amended at any time by the Board of Directors, subject to section 6.1, above, if applicable. Unpaid Assessments for the remaining portion of the calendar year for which an amended Assessment is made shall be payable in as many equal installments as there are full months (or quarters) of the calendar year left as of the date of such amended Assessment, each such monthly (or quarterly) installment to be paid on the first day of the month (or quarter), commencing the first day of next ensuing month (or quarter). Provided, nothing herein shall serve to prohibit or prevent the Board of Directors from imposing a lump sum Assessment in case of any immediate need or emergency. 6.3 Special Assessments; Reconstruction Assessments. Special Assessments and Reconstruction Assessments shall be due after five (5) business days' notice is given to the Unit Owner(s) concerned, and shall be paid in such manner as the Board of Directors of the Association may require in the notice of such Assessments. The funds collected pursuant to a Special Assessment shall be used only for the specific purpose or purposes set forth in the notice of adoption of the same. However, upon completion of such specific purpose or purposes, any excess funds will be considered Common Surplus, and may, at the discretion of the Board, either be returned to the Unit Owners or applied as a credit towards future assessments. 6.4 Depository. The depository of the Association shall be such federally insured bank or banks in Dade County, Florida as shall be designated from time to time by W6-MI953400.043 -13- the Directors and in which the monies of the Association shall be deposited. Withdrawal of monies from those accounts shall be only by checks signed by such person or persons as are authorized by the Directors. All sums collected by the Association from Assessments or contributions to working capital or otherwise may be commingled in a single fund or divided into more than one fund, as determined by a majority of the Board of Directors. 6.5 Acceleration of Installments Upon Default. If a Unit Owner shall be in default in the payment of an installment upon his Assessments, the Board of Directors or its agent may accelerate the remaining installments of the Assessments upon thirty (30) days' prior written notice to the Unit Owner and the filing of a claim of lien, and the then unpaid balance of the Assessments for the balance of the year shall be due upon the date stated in the notice, but not less than five (5) days after delivery of the notice to the Unit Owner, or not less than ten (10) days after the mailing of such notice to him by certified mail, whichever shall first occur, with a copy to that Unit Owner's mortgagee. 6.6 Fidelity Bonds. Fidelity bonds shall be required by the Board of Directors for all persons handling or responsible for Association funds in such amounts as shall be determined by a majority of the Board and as required by the Act. The premiums on such bonds shall be paid by the Association as a Common Expense. 6.7 Accounting Records and Reports; Contracts. The Association shall maintain accounting records in Dade County, Florida, according to sound accounting practices consistently applied. The records shall be open to inspection by Unit Owners and their mortgagees or their authorized representatives at reasonable times and written summaries of them shall be supplied at least annually. The records shall include, but not be limited to, (a) a record of all receipts and expenditures, and (b) an account for each Unit designating the name and current mailing address of the Unit Owner, the amount of Assessments, the dates and amounts in which the Assessments come due, the amount paid upon the account and the dates so paid, and the balance due. Within ten (10) days of receipt of written request from a Unit Owner or its mortgagee requesting the information contained in subsection 6.7(b) above, the Association shall provide such information, as well as whether, to the best knowledge of the Association, there are any defaults on the part of the Unit Owner who is the subject of the request. Written summaries of the records described in subsection 6.7(a) above, in the form and manner specified below, shall be supplied to each Unit Owner annually, and at the same time, to their mortgagee. Within sixty (60) days following the end of the fiscal year, the Board shall mail, or furnish by personal delivery, to each Unit Owner a complete financial report of actual receipts and expenditures for the previous twelve (12) months. The report shall show the amount of receipts by accounts and receipt classifications and shall show the amount of expenses by accounts and expense classifications, including, if applicable, but not limited to, the following: (a) Cost for security. (b) Professional and management fees and expenses. W6-MI953400.043 -14- (c) Taxes. (d) Expenses for refuse collection and utility services. (e) Expenses for landscaping. (f) Cost for maintenance and repair. (g) Insurance costs. (h) Administrative and salary expenses. (i) General reserves, maintenance reserve and depreciation reserves. Every contract made by or on behalf of the Board shall state that it is made by the Board only as agent for all Unit Owners, that the Board members shall have no personal liability thereon, and shall provide that the liability of any Unit Owner with respect to any contract, act or omission concerning the Condominium shall be limited to (i) such proportionate share of the total liability as set forth in Exhibit A to the Declaration and (ii) to the extent permitted by applicable law, such Unit Owner's interest in its Unit and the Common Elements, so that such Unit Owner shall have no personal liability for such contract, act or omission. Nothing in the preceding sentence shall limit a Unit Owner's liability for the payment of Common Expenses. 6.8 Application of Payment. All payments made by a Unit Owner shall be applied as provided in these By-Laws and in the Declaration or as otherwise determined by the Board. 6.9 Notice of Meetings. Notice of any meeting where Assessments against Unit Owners are to be considered for any reason shall specifically contain a statement that Assessments will be considered and the nature of any such Assessments. VII. ROSTER OF UNIT OWNERS. Each Unit Owner shall file with the Association a copy of the deed or other document showing his ownership. The Association shall maintain such information. The Association may rely upon the accuracy of such information for all purposes until notified in writing of changes therein as provided above. Only Unit Owners of record on the date notice of any meeting requiring their vote is given shall be entitled to notice of and to vote at such meeting, unless prior to such meeting other Owners shall produce adequate evidence, as provided above, of their interest and shall waive in writing notice of such meeting. No Owner shall be entitled to vote or to be counted for purposes of determining a quorum if delinquent in the payment of Assessments as elsewhere herein provided. VIII. PARLIAMENTARY RULES. Roberts' Rules Of Order (latest edition) shall govern the conduct of the Association meetings when not in conflict with this Declaration, the Articles or these By-Laws. W6-MI953400.043 -15- IX. AMENDMENTS. A resolution for the adoption of a proposed amendment of these By-Laws may be proposed by either the Board of Directors of the Association or by a member of the Association. A member may propose such an amendment by instrument in writing directed to the President or Secretary of the Board. Amendments may be proposed by the Board of Directors by action of a majority of the Board at any regularly constituted meeting thereof. Upon an amendment being proposed as herein provided for, the President, or, in the event of his refusal or failure to act, the Board of Directors, shall call a meeting of the membership to be held within fourteen (14) days for the purpose of considering said amendment. Directors and members not present in person or by proxy at the meeting considering the amendment may express their approval or disapproval in writing providing such document is delivered to the Secretary at or prior to the meeting. Such approvals must be by a majority vote of the members of the Board of Directors any by a majority vote of the Unit Owners. 9.1 Proviso. Provided, however, that no amendment shall discriminate against (i) any Unit Owner nor against any Unit or class or group of Units unless the Unit Owners so affected consent or (ii) any mortgagee holding a mortgage on a Unit, unless the mortgagee so affected consents. No amendment shall be made that is in conflict with the Condominium Act, the Articles of Incorporation or any of the provisions of the Declaration of Condominium. 9.2 Execution and Recording. A copy of each amendment shall be attached to a certificate certifying that the amendment was duly adopted as an amendment to the Declaration and By-Laws, which certificate shall be executed by the Officers of the Association with the formalities of a deed. The amendment shall be effective when the certificate and a copy of the amendment is recorded in the Public Records of the Dade County with an identification on the first page of the amendment of the Official Records Book and Page of said Public Records where the Declaration is recorded. X. RULES AND REGULATIONS. The Board of Directors may, from time to time, promulgate rules and regulations concerning the use of portions of the Condominium Property, and from time to time, modify, amend or add to such rules and regulations; provided, however, that such amendments to the rules and regulations shall be consistent with the use restrictions set forth in Article XII of the Declaration. Copies of such modified, amended or additional rules and regulations shall be furnished by the Board of Directors to each affected Unit Owner not less than thirty (30) days prior to the effective date thereof. XI. CONSTRUCTION. Whenever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all genders. The terms used in these By-Laws shall have the same definition and meaning W6-MI953400.043 -16- as those set forth in the Declaration of Condominium, unless herein provided to the contrary, or unless the context otherwise requires. XIII. CAPTIONS. The captions herein are inserted only as a matter of convenience and for reference, and in no way define or limit the scope of these By-Laws or the intent of any provision hereof. XIV. CONFLICT. Notwithstanding anything in the Declaration to the contrary, in the event any of the provisions of these By-Laws conflict with the provision of the Condominium Act, the provisions of the Act shall control. The foregoing were adopted as the By-Laws of LOEWS MIAMI BEACH HOTEL OWNERS' ASSOCIATION, INC., a Florida corporation not for profit, at the first meeting of the Board of Directors on this _ day of September, 1996. Approved: , President , Secretary W6-MI953400.043 -17-