NWS Agreement of Lease
()o03 - 25'33'3 - R-.76 9!1tJ/O 3
AGREEMENT OF LEASE
between
CITY OF MIAMI BEACH, FLORIDA
(Landlord)
and
NEW WORLD SYMPHONY
(Tenant)
Dated as of //6
I
, 2001 /-
SoundSpace Project
AGREEMENT OF LEASE
between
CITY OF MIAMI BEACH, FLORIDA
(Landlord)
and
NEW WORLD SYMPHONY
(Tenant)
Dated as of
,2003
SoundS pace Project
Prepared By and Record and Return To:
Patricia G. Welles, Esquire
Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A.
150 West Flagler Street
Museum Tower, Suite 2200
Miami, Florida 33130
TABLE OF CONTENTS
RECITALS ......... ............................ .................................................. .............................................. 1
TERMS OF AGREEMENT ........................................................................................................... 2
Article 1 - Definitions ......................................................................................................................2
Section 1.1 Definitions............................................................................................2
Article 2 - Demise of Land and Term of Lease .............................................................................12
Section 2.1 Demise of Land for Term ..................................................................12
Section 2.2 Extension of Time....................................................................... .......12
Section 2.3 Title to the Land.................................................................................13
Section 2.4 No Encumbrances ..............................................................................14
Section 2.5 Sale of Landlord's Entire Interest......................................................14
Section 2.6 The Improvements to Be Owned by Tenant During the Term ..........15
Section 2.7 Delivery of Title to Landlord............................................................. 15
Article 3 - Rent...............................................................................................................................15
Section 3.1 Method and Place of Payment ...........................................................15
Section 3.2 Rent Payments ...................................................................................15
Section 3.3 Impositions.......................................... ................................... ......... ...16
Section 3.4 Net Lease ..........................................................................................18
Section 3.5 Tax Exempt Status............................................................................18
Article 4 - Construction of Project and Infrastructure................................................................... 19
Section 4.1 Coordination of Plans and Construction............................................19
Section 4.2 Parties' Obligation under Development Agreement ..........................19
Section 4.3 Delivery of Possession of Premises (the............................................19
Section 4.4 Easements ..........................................................................................20
Article 5 - Intentionally Deleted....................................................................................................20
Article 6 - Use..................... ............................................... .......................... ............................... ...20
Section 6.1 Use .....................................................................................................20
Section 6.2 Operations ............................................... ................................... ...... ..21
Section 6.3 Financial Matters ...............................................................................22
Section 6.4 Prohibited Uses ..................................................................................22
Article 7 - Insurance................. ......................................... ...... ....................... ............................ ....23
Section 7.1 Insurance Requirements.....................................................................23
Section 7.2 Treatment of Proceeds .......................................................................23
Section 7.3 General Provisions Applicable to All Policies...................................24
Section 7.4 Additional Coverage ..........................................................................25
Section 7.5 No Representation as to Adequacy of Coverage ...............................26
Section 7.6 Blanket or Umbrella Policies .............................................................26
Section 7.7
Section 7.8
Section 7.9
Section 7.10
Section 7.11
Section 7.12
Section 7.13
Section 7.14
Liability Insurance Requirements ......................................................26
Property Insurance Requirements ......................................................27
Other Insurance Requirements..................... ..................................... .29
Construction Insurance Requirements ...............................................29
Annual Aggregates.. ... .,. ... ... ... .., ............. .......... ... ... ........................... .30
Determination of Replacement Value. ............................................ ...30
Subleases........................................................................................... .30
Additional Interests........... ................................ ............................ .....31
Article 8 - Damage, Destruction and Restoration..........................................................................31
Section 8.1 Notice to Landlord .............................................................................31
Section 8.2 Casualty Restoration ..........................................................................31
Section 8.3 Restoration Funds ..............................................................................32
Section 8.4 Effect of Casualty on This Lease .......................................................33
Section 8.5 Collection of Proceeds .......................................................................34
Section 8.6 Governmental Prohibitions ................................................................34
Article 9 - Condemnation............ .................................................. ................................... ..............34
Section 9.1 Substantial Taking .............................................................................34
Section 9.2 Less Than Substantial Taking............................................................36
Section 9.3 Restoration Funds ..............................................................................37
Section 9.4 Temporary Taking .............................................................................39
Section 9.5 Governmental Action Not Resulting in a Taking ..............................39
Section 9.6 Collection of Awards .........................................................................40
Section 9.7 Negotiated Sale ..................................................................................40
Section 9.8 No Waiver..........................................................................................40
Section 9.9 Effect of Taking on This Lease..........................................................40
Article 10 - Transfer and Subletting ..............................................................................................41
Section 10.1 Purpose of Restrictions on Transfer..................................................41
Section 10.2 Restrictions on Transfer of the Tenant's Interest in the Premises ....41
Section 10.3 Landlord's and Tenant's Agreement...................................................42
Section 10.4 The Qualified Replacement Tenant ...................................................42
Section 10.5 Dispute...................................... ....................... ............................... ...43
Section 10.6 Subleasing ..........................................................................................43
Article 11 - Mortgages ...................................................................................................................43
Section 11.1 Right to Mortgage ..............................................................................43
Section 11.2 Effect of Mortgages ...........................................................................44
Section 11.3 Notice and Right to Cure Tenant Defaults.........................................44
Section 11.4 Recognized Mortgagee as Tenant Under this Lease..........................46
Section 11.5 Execution of New Tenant's Documents.............................................46
Section 11.6 Application of Proceeds from Insurance or Condemnation
Awards ... ... ............. ... ... ... ............. ... .... .......... ................ ... ......... ... ... ..49
11
Appearance at Condemnation Proceedings .......................................49
Rights Limited to Recognized Mortgagees........................................50
No Surrender or Modification............................................................50
Recognition by Landlord of Recognized Mortgagee Most
Senior in Lien........... ................................................................... ......50
Section 11.11 Recognized Mortgagee's Assignment Rights ....................................50
Section 11.12 Notices Under a Mortgage .................................................................50
Article 12 - Subordination .............................................................................................................51
Section 12.1 No Subordination of Landlord's Proprietary Interest in Land ...........51
Section 12.2 Tenant's Interest in the Premises Subject to Title Matters.................51
Article 13 - Maintenance, Repair and Alterations .........................................................................51
Section 13.1 Maintenance Standards ......................................................................51
Section 13.2 No Obligation to Repair or to Supply Utilities ..................................52
Section 13.3 Maintenance by Landlord ..................................................................52
Section 13.4 Alterations.................................. .................... .......... ......................... .52
Section 11.7
Section 11.8
Section 11.9
Section 11.10
Article 14 - Requirements.... ............................................... ....................... ................................... .53
Section 14.1 Tenant's Obligation to Comply With Requirements..........................53
Section 14.2 Landlord's Obligation to Comply With Requirements ......................54
Article 15 - Discharge of Liens......................................................................... .............................54
Section 15.1 Creation of Liens............................................................................ ....54
Section 15.2 Discharge of Liens .............................................................................54
Section 15.3 No Authority to Contract in Name of Landlord.................................56
Article 16 - Representations............... ............................................ ....................... .........................56
Section 16.1 No Brokers .........................................................................................56
Section 16.2 Limited Representations by Landlord...............................................56
Section 16.3 Tenant's Representations ...................................................................57
Article 17 - Limited Liability for Injury or Damage......................................................................58
Section 17.1 Indemnification of Landlord ..............................................................58
Section 17.2 Landlord's Exculpation ......................................................................58
Section 17.3 Notice of Injury or Damage ...............................................................59
Section 17.4 Tenant's Exculpation..........................................................................59
Section 17.5 No Punitive Damages ........................................................................59
Section 17.6 Survival..............................................................................................59
Article 18 - Indemnification............................ ............. ......................... ...................................... ...60
Section 18.1 Indemnification of Landlord ..............................................................60
Section 18.2 Contractual Liability ..........................................................................60
Section 18.3 Notification and Payment ..................................................................61
Section 18.4 Governs Lease....................................................................................61
Section 18.5 Survival................................ .................... ....................... ...................61
111
Article 19 - Covenant Against Waste and Inspection....................................................................61
Section 19 .1 Waste.................. ................................... ....................... ......................61
Section 19.2 Inspection of Premises .......................................................................61
Article 20 - Landlord's Security Interest in Building Equipment ..................................................62
Section 20.1 Grant of Security Interest...................................................................62
Article 21 - Right to Perform the Other Party's Obligations..........................................................62
Section 21.1 Right to Perform the Other Party's Obligations.................................62
Section 21.2 Discharge of Liens .............................................................................63
Section 21.3 Reimbursement for Amounts Paid Pursuant to this Article...............63
Section 21.4 Waiver, Release and Assumption of Obligations ..............................63
Article 22 - Events of Default, Conditional Limitations, Remedies, Etc. .....................................64
Section 22.1 Definition ...........................................................................................64
Section 22.2 Enforcement of Performance; Damages and Termination.................66
Section 22.3 Expiration and Termination of Lease ................................................66
Section 22.4 Landlord's Default..................................................... ...... ...... .............67
Section 22.5 Enforcement of Performance; Damages and Termination.................68
Section 22.6 Waiver of Rights of Ten ant and Landlord .........................................68
Section 22.7 Strict Performance .............................................................................69
Section 22.8 Right to Enjoin Defaults ....................................................................69
Section 22.9 Remedies Under Bankruptcy and Insolvency Codes.........................70
Section 22.10 Funds Held By Tenant .......................................................................71
Section 22.11 Waiver of Jury Trial...........................................................................71
Article 23 - Notices, Consents and Approvals...............................................................................71
Section 23.1 Service of Notices and Other Communications.................................71
Section 23.2 Consents and Approvals ....................................................................72
Article 24 - Certificates By Landlord and Tenant .........................................................................75
Section 24.1 Certificate of Tenant ..........................................................................75
Section 24.2 Certificate of Landlord..................................................................... ..75
Article 25 - Surrender at End of Term......................................................................................... ..76
Section 25.1 Surrender of Premises ........................................................................76
Section 25.2 Delivery of Subleases, Etc. ................................................................76
Section 25.3 Title to Improvements........................................................................77
Section 25.4 Cash and Accounts Receivable..........................................................77
Section 25.5 Personal Property ............................................................................... 77
Section 25.6 Survival Clause .................................................................................. 77
Article 26 - Quiet Enjoyment ........................................................................................................77
Article 27 - Reserved .....................................................................................................................78
Article 28 - Administrative and Judicial Proceedings, Contests, Etc. ...........................................78
Section 28.1 Tax Contest Proceedings....................................................................78
IV
Section 28.2 Imposition Contest Proceedings ........................................................78
Section 28.3 Requirement Contest..........................................................................78
Section 28.4 Landlord's Participation in Contest Proceedings...............................79
Article 29 - Reserved .....................................................................................................................79
Article 30 - Indictment, Investigations, Etc. ..................................................................................79
Section 30.1 Cooperation in Investigations ............................................................79
Article 31 - Environmental Matters ...............................................................................................79
Section 31.1 Definitions.......................................................................................... 79
Section 31.2 Intentionally Deleted..........................................................................81
Section 31.3 Use of Hazardous Materials...............................................................81
Section 31.4 Tenant Indemnification of Landlord..................................................81
Section 31.5 Compliance ........................................................................................82
Section 31.6 Notices ...............................................................................................82
Section 31.7 Landlord's Remedies .........................................................................82
Section 31.8 Defaults ..............................................................................................82
Section 31.9 Landlord Responsibility.....................................................................83
Section 31.10 Environmental Report and Remediation...........................................83
Section 31.11 Survival.............................................................................................84
Article 32 - Miscellaneous.. ....................... ................ ...................... .......................... ....................84
Section 32.1 Governing Law ..................................................................................84
Section 32.2 References and Interpretation ofLease..............................................84
Section 32.3 Entire Agreement ...............................................................................85
Section 32.4 Counterparts ......................................... ....................... ......... ...... ........85
Section 32.5 Waiver, Modification, Etc..................................................................86
Section 32.6 Effect of Other Transactions ..............................................................86
Section 32.7 Severability ........................................................................................86
Section 32.8 Merger ............................................... .................... ...................... ...... .86
Section 32.9 Remedies Cumulative ........................................................................86
Section 32.10 Performance at Each Party's Sole Cost and Expense ........................87
Section 32.11 Recognized Mortgagee Charges and Fees .........................................87
Section 32.12 Successors and Assigns......................................................................87
Section 32.13 Notice of Defaults ..............................................................................87
Section 32.14 No Liability of Officials and Employees of Landlord or
Tenant............. ... ... ... ... ... ... ...... .......... .......... ............. ... ... .................. .87
Section 32.15 Conflict of Interest .............................................................................88
Section 32.16 No Partnership or Joint Venture ........................................................88
Section 32.17 Time Periods ......................................................................................88
Section 32.18 Time is of the Essence .......................................................................88
Section 32.19 Radon Notice .....................................................................................89
Section 32.20 No Third Party Beneficiaries .............................................................89
List of Exhibits...................... ................. ................................... .................................................... 92
v
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, dated as of the _ day of , 2003, by
and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation duly
organized and existing under the laws of the State of Florida, as Landlord, and NEW WORLD
SYMPHONY, a Florida not-for-profit corporation, as Tenant.
RECITALS
A. Tenant has submitted a proposal to develop, construct and operate an
approximately 700 seat state-of-the-art performance, cultural, educational facility, and internet
broadcast facility now known as "SoundSpace", having a footprint not to exceed 50,000 square
feet, to be used by Tenant and others for musical and other cultural performances, education,
rehearsals, and broadcasts, and other permitted uses. SoundSpace shall include the amenities
more particularly described in the Tenant's Improvements" herein. The descriptions of the
amenities contained in these recitals are for illustrative purposes only, and where in conflict, the
"Construction Documents" (as defined herein), as based on the Development Agreement
between Tenant, as Developer, and Landlord, as Owner, shall control.
B. In order to create a significant educational and cultural facility for the use and
enjoyment of the residents of the City of Miami Beach ("City") and of the general public, and,
further, in consideration of Tenant's status as a not for profit organization which has enriched
and shall continue to enrich the cultural and educational fabric of the City of Miami Beach,
Landlord has determined that it is in the best interest of the City to accept Tenant's proposal and
to enter into an agreement with Tenant to demise, lease and let unto Tenant for the term and
upon the conditions hereinafter stated, that certain real property described on Exhibit A attached
hereto and made a part hereof, which consists of approximately square feet of land,
currently improved with a surface parking lot, located in the City of Miami Beach, Miami-Dade
County, Florida, together with all appurtenances to such land, including, without limitation, all
vegetation, air rights, easements, rights-of-way or appurtenances owned by Landlord and held in
connection with such land, and all rights of Landlord in and to any streets, sidewalks, alleys and
land lying in the bed of existing or proposed streets adjacent to such land (collectively, the
"Land") for the Term (as defined herein), and Tenant desires to accept such demise and lease, all
subject to the covenants, agreements, terms and conditions hereinafter set forth. (The exact legal
description is not yet determined. Tenant shall submit a survey to Landlord for its verification
and approval evidencing the correct legal description which will be attached when the Project
Design is selected by the Commission.)
1
TERMS OF AGREEMENT
NOW, THEREFORE, it is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease is made upon the terms, covenants and conditions hereinafter set
forth.
Article 1- Definitions
Section 1.1 Definitions.
For all purposes of this Lease the terms defined in this Article I shall have the following
meanings and the other provisions of this Article I shall apply:
"Accounting Principles" means generally accepted accounting principles as
promulgated by the American Institute of Certified Public Accountants, except as otherwise
provided by this Lease, with such changes as Landlord and Tenant shall mutually agree are
consistent with this Lease in order to reflect technologies and methodologies not addressed in the
Accounting Principles.
"Adjacent Property" means the parcel of land owned by Landlord immediately
adjacent to the Land, which shall be legally described upon approval of the "Project Design" (as
said term is defined in the Development Agreement) by the Mayor and City Commission
attached as Exhibit B and made a part hereof [The exact legal description not yet determined.
Correct legal description will be attached when the Project Design is selected by the
Commission.].
"Alterations" has the meaning provided in Section 13.4(a).
"Base Rent" has the meaning provided in Section 3.2(a).
"Bonds" shall mean those certain bond issues described below:
City of Miami Beach, Florida Parking Revenue Refunding Bonds, Series 1996 A
Dade County, Florida Special Obligation and Refunding Bonds, Series 1996 B
"Building Equipment" means all installations incorporated in, located at or attached to
and used or usable in the operation of, or in connection with, the Premises and shall include, but
shall not be limited to, machinery, apparatus, devices, motors, engines, dynamos, compressors,
pumps, boilers and burners, heating, lighting, plumbing, ventilating, air cooling and air
conditioning equipment; chutes, ducts, pipes, tanks, fittings, conduits and wiring; incinerating
equipment; elevators, escalators and hoists; washroom, toilet and lavatory plumbing equipment;
2
window washing hoists and equipment; and all additions or replacements thereof, excluding,
however, any personal property which is owned by subtenants, licensees, concessionaires or
contractors (except to the extent any ofthe foregoing are Affiliates of Tenant).
"Business Day" or "business day" means a day other than Saturday, Sunday or a day
on which banking institutions in the State of Florida are authorized or obligated by law or
executive order to be closed and are, in fact, closed.
"Bond Counsel" [to be inserted]
"Casualty Restoration" has the meaning provided in Section 8.2(a).
"Certificate of Occupancy" means the document by that name that is required prior to
the occupancy of any premises by Section 307.1 of the South Florida Building Code as amended
from time to time; provided, however, that such definition shall not apply to a temporary
certificate of occupancy if issued only for a period not to exceed twelve (12) months prior to the
Project receiving a final Certificate of Occupancy. Such term shall include both a Temporary
Certificate of Occupancy ("TCO") and a final certificate of occupancy ("Final CO"), as the
context may require.
"City" means the City of Miami Beach, Florida, a municipal corporation duly organized
and existing under the laws of the State of Florida.
"City Commission" means the Mayor and City Commission of the City of Miami
Beach, Florida the governing body of the City, or any successor commission, board or body in
which the general legislative power of the City shall be vested.
"City Manager" means the chief administrative officer of the City, or his or her
designee.
"City Hall Parking Expansion" means the expansion by Landlord, at its sole cost and
expense, of the existing City-owned parking facility located behind City Hall ("Expansion
Property") from its current parking capacity to approximately 800 parking spaces.
"CO Date" means the date on which Tenant receives a Certificate of Occupancy for the
Project.
"Commencement Date" shall mean the date this Ground Lease and the Development
Agreement commence, which shall be the date of execution of this Lease, and upon satisfaction
of the requirements of Section 26.18 of the Development Agreement.
"Condemnation Restoration" has the meaning provided in Section 9.2(b).
"Consenting Party" has the meaning provided in Section 23.2(c)(i).
3
"Construction Commencement Date" has the meaning provided in the Development
Agreement.
"Construction Documents" means the final working drawings and specifications
including definitive architectural and landscape architectural drawings, foundation and structural
drawings, electrical and mechanical drawings, and plans for all lighting facilities affecting the
exterior appearance of the Proj ect.
"Construction Work" means any construction work performed under any provision of
the Development Agreement or this Lease affecting the Premises, including, without limitation,
the initial construction of the Proj ect, and any Restoration, Alteration or other construction work
performed in connection with the use, maintenance or operation of the Premises.
"Date of Taking" has the meaning provided in Section 9.1 (c )(i).
"Debt" means the principal amount of debt and interest thereon secured by Tenant's
Interest in the Premises, together with any other amounts owed by Tenant under a Recognized
Mortgage to a Recognized Mortgagee. In addition, Debt shall include any debt obtained in
connection with (i) a required Casualty Restoration or Condemnation Restoration, as applicable,
if the Net Insurance Proceeds are, or the Net Condemnation Award is, inadequate to achieve the
required Casualty Restoration or Condemnation Restoration, as applicable, and (ii) any advances
made by a Recognized Mortgagee with respect to Tenant's Interest in the Premises for the
payment of taxes, assessments, insurance premiums or other costs incurred for the protection of
Tenant's Interest in the Premises or the liens created by the Recognized Mortgage, and
reasonable expenses incurred by such Recognized Mortgagee, by reason of a default by Tenant
under such Recognized Mortgage or under this Lease.
"Default" means any condition or event, or failure of any condition or event to occur,
which constitutes, or would after the giving of notice and lapse of time (in accordance with the
terms ofthis Lease) constitute, an Event of Default.
"Default Notice" has the meaning provided in Section 22.1 (b).
"DEP" means the State of Florida Department of Environmental Protection.
"DERM" means the Miami-Dade County Department of Environmental Resources
Management.
"Development Agreement" means the agreement entered into by Landlord, as Owner
and Tenant, as Developer, dated concurrently herewith, setting forth the parties' respective
obligations in connection with the design, permitting, preparation of final plans and
specifications, construction and development of the Project.
4
"Development Budget" has the meaning provided for "Project Budget" in Section 3.2 of
the Development Agreement.
"Environment" has the meaning provided in Section 31.1 (c).
"Environmental Compliance" has the meaning provided in Section 31.5.
"Environmental Condition" has the meaning provided in Section 31.1 (d).
"Environmental Damages" has the meaning provided in Section 31.1 (e).
"Environmental Laws" has the meaning provided in Section 31.1.
"Environmental Remediation" has the meaning provided in Section 31.10.
"EPA" means the Environmental Protection Agency of the United States.
"Event of Default" has the meaning provided in Section 22.1.
"Expiration of the Term" means the expiration of the Term of this Lease, as the Term
may be extended in accordance herewith, or such earlier date as this Lease may be terminated as
provided herein.
"Extended Term" means four (4) successive periods of ten (10) years each, each such
period being herein sometimes referred to as an "Extended Term," as further described in Section
2.2 herein.
"Fair Market Rent" means the rent that the Land would bring if it were raw and
unimproved (i.e., all then-existing Improvements shall be disregarded) and if it were available
for use only for the same uses as the Land as it is then being used, in a competitive and open
market under all conditions requisite to a fair lease, Landlord and Tenant each acting prudently,
knowledgeably, and assuming the rent is not affected by undue stimulus. Implicit in this
definition is consummation of a lease as of a specified date under conditions whereby:
(i) Landlord and Tenant are typically motivated;
(ii) Both parties are well-informed or well-advised and acting in what they
consider their own best interests;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in U.S. dollars or in terms of financial
arrangements comparable thereto; and
5
(v) The rent represents the normal consideration for property leased
unaffected by special or creative financing or concessions granted by anyone associated with the
lease.
"Fixed Expiration Date" means the date which is the last day ofthe month in which the
fifty-fifth (55th) anniversary ofthe Commencement Date shall occur, or such later date as may be
extended pursuant to the terms hereof.
"Foreclosure Transfer" means a transfer occurring as a result of the foreclosure of a
Recognized Mortgage, or any foreclosure sale of Tenant's Interest in the Premises, or any other
transfer or assignment of Tenant's Interest in the Premises by judicial proceedings pertaining to a
Recognized Mortgage or by virtue of the exercise of any power contained in a Recognized
Mortgage, or by an assignment-in-lieu or other consensual conveyance, or otherwise:
(x) by or on behalf of Tenant or pursuant to foreclosure
proceedings to a Recognized Mortgagee or to the nominee
of a Recognized Mortgagee ("Foreclosure Transferee"); or
(y) by or on behalf of Tenant or a Recognized Mortgagee (or
Foreclosure Transferee) or pursuant to foreclosure
proceedings to a purchaser of Tenant's Interest in the
Premises at a foreclosure sale pursuant to a Recognized
Mortgage or by a Recognized Mortgagee (or its
Foreclosure Transferee) after consummating a Foreclosure
Transfer as described in clause (x) above or after such
foreclosure sale.
"Foreclosure Transferee" and "Foreclosure Transfer" means the purchaser,
transferee or other assignee in a Foreclosure Transfer.
"Garage" has the meaning provided in the Development Agreement.
"Governmental Authority or Authorities" means the United States of America, the
State of Florida, the City (acting in its governmental, not proprietary, capacity), Miami-Dade
County, and any agency, department, commission, board, bureau, instrumentality or political
subdivision (including any county or district) of any of the foregoing, now existing or hereafter
created, having jurisdiction over Tenant, or any owner, tenant or other occupant of, or over or
under the Premises or any portion thereof or any street, road, avenue or sidewalk comprising a
part of, or in front of, the Premises, or any vault in or under the Premises, or airspace over the
Premises.
"Imposition(s)" has the meaning provided in Section 3.3(b).
6
"Infrastructure Improvements" has the meamng provided In the Development
Agreement.
"Institutional Lender" means a Person which, at the time it becomes an Institutional
Lender, is a state or federally chartered savings bank, savings and loan association, credit union,
commercial bank or trust company or a foreign banking institution, in each case whether acting
individually or in a fiduciary or representative (such as an agency) capacity; an insurance
company organized and existing under the laws of the United States of America or any state
thereof or a foreign insurance company (in each case whether acting individually or in a
fiduciary or representative (such as an agency) capacity; an institutional investor such as a
publicly held real estate investment trust, an entity that qualifies as a "REMIC" under the Internal
Revenue Code of 1986, as amended (in each case whether acting as principal or agent); a
brokerage or investment banking organization in each case whether acting individually or in a
fiduciary or representative (such as an agency) capacity as principal or agent; an employees'
welfare, benefit, pension or retirement fund; an institutional leasing company; a financing
subsidiary or division of a New York Stock Exchange listed company; any governmental agency
or entity insured by a governmental agency or any combination of Institutional Lenders;
provided that each of the above entities shall qualify as an Institutional Lender only if (at the
time it becomes an Institutional Lender) it shall (a) have assets of not less than One Hundred
Million Dollars ($100,000,000) adjusted for inflation and (b) not be an Affiliate of Tenant (it
being further agreed that none of the standards set forth in this definition shall be applicable to
participants or co-lenders in a loan secured by a Mortgage which is held by an Institutional
Lender, whether acting individually or in a fiduciary or representative (such as an agency)
capacity.
"Land" means the real property and air rights, if any, legally described on Exhibit A
attached hereto and made a part hereof. [The exact legal description not yet determined. Correct
legal description will be attached when the Project Design is selected by the City Commission.]
"Landlord" means the City acting in its proprietary capacity, and any assignee or
transferee of the entire Landlord's Interest in the Premises, from and after the date of the
assignment or transfer pursuant to which the entire Landlord's Interest in the Premises was
assigned or transferred to such assignee or transferee.
"Landlord Indemnified Parties" means, collectively, the City (and any successor
Landlord), and their respective elected and appointed officials (including the City's Mayor and
City Commissioners), directors, officials, officers, shareholders, members, partners, holders of
other ownership interests, employees, successors, assigns, agents, contractors, subcontractors,
experts, licensees, tenants, mortgages, trustees, partners, principals, invitees and Affiliates. A
"Landlord Indemnified Party" shall mean any ofthe foregoing.
"Landlord's Improvements" means the Infrastructure Improvements, as defined in the
Development Agreement and as may be agreed upon and approved by the City Commission, the
7
Garage, as designed and constructed by Tenant and funded by Landlord, the City Hall Parking
Expansion, and related improvements to all of the foregoing to be constructed or supplied by
Landlord.
"Landlord's Interest in the Premises" means Landlord's interest in the Land and in this
Lease.
"Lease" means, collectively, this Agreement of Lease and all exhibits and attachments
hereto, as any of the same may hereafter be supplemented, amended, restated, severed,
consolidated, extended, revised and otherwise modified, from time to time, either in accordance
with the terms of this Lease or by mutual agreement of the parties.
"Lease Year" means (a) the period commencing on the Commencement Date, and
expiring on the last day of the next occurring December which is at least twelve (12) months
thereafter; (b) each succeeding 12-month period (January 1 - December 31) during the Term;
and (c) the final shorter period, if any, ending on the last day ofthe Term.
"Mortgage" means any mortgage or deed of trust, or similar instrument securing bond
financing, and all extensions, spreaders, splitters, consolidations, restatements, replacements,
modifications and amendments thereof, that constitutes a lien on all or a portion of Tenant's
Interest in the Premises, and any security interest in or assignment of the Lease or the rents,
issues or profits related thereto.
"Mortgagee" means the holder of a Mortgage.
"Net Condemnation Award" has the meaning provided in Section 9. 1 (c)(iii).
"Net Insurance Proceeds" has the meaning provided in Section 8.2(a).
"Notice" has the meaning provided in Section 23.1.
"Notice of Failure to Cure" has the meaning provided in Section 11.3(a).
"Park" has the meaning provided in Section 23.4 of the Development Agreement.
"Parties" means Landlord and Tenant.
"Permit" has the meaning provided in Section 31.1(f).
"Permitted Exceptions" has the meaning provided in Section 2.I(a).
"Person" means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other entity;
any Federal, state, county or municipal government or any bureau, department, political
8
subdivision or agency thereof, and any fiduciary acting in such capacity on behalf of any of the
foregoing.
"Plans and Specifications" has the meaning given to such term in the Development
Agreement.
"Possession Date" has the meaning provided in Section 4.3.
"Premises" means, collectively, the Land and "Tenant's Improvements," as defined
herein.
"Prohibited Uses" has the meaning provided in Section 6.4(a).
"Project" means Tenant's Improvements to be constructed and operated on the Land,
the Garage to be constructed and operated on the Garage Property, and all appurtenances thereto,
together with any and all permitted additions, alterations or replacements thereof.
"Project Opening Date" means the date on which the Project is opened to the public for
business.
"Public Benefits" means the benefits and contributions provided by Tenant to Landlord,
the City and all its citizens, which public benefits and contributions arise from the creation and
operation of SoundSpace, as more specifically described on Exhibit "C" attached hereto and
made a part hereof.
"Recognized Accounting Firm" means Ernst & Young/Kenneth Leventhal; Coopers
& Lybrand; Price Waterhouse; Deloitte & Touche; KPMG Peat Marwick; Pannell, Kerr &
Foster; Mallah, Furman, Berkowitz, Dick, Pollack & Burnet; Rachlin, Cohen & Holtz, or
any successor entity of any of the foregoing or any other certified public accountants mutually
acceptable to Tenant and Landlord.
"Recognized Mortgage" means a Mortgage (i) that is held by an Institutional Lender,
(ii) which expressly provides that it is subject and subordinate to the terms of this Lease and to
Landlord's Interest in the Premises, and (iii) a photostatic copy of which is, following the
execution and delivery thereof, delivered to Landlord, together with a certification by Tenant
confirming that the photostatic copy is a true copy of the Mortgage and a certification by the
Recognized Mortgagee thereunder confirming the address of such Recognized Mortgagee for
notices.
"Recognized Mortgagee" means the holder of a Recognized Mortgage or its designee.
"Reinstatement Date" has the meaning provided in Section 11.4(a).
"Release" has the meaning provided in Section 31.1(g).
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"Replacement Value" has the meaning provided in Section 7.12(a).
"Rent" means Base Rent and any other sums, costs, expenses or deposits which Tenant
is obligated, pursuant to any provisions of this Lease, to pay and/or deposit.
"Requesting Party" has the meaning provided in Section 23.2(c)(ii).
"Requirements" has the meaning provided in Article 13 of the Development
Agreement.
"Restoration" means either a Casualty Restoration or a Condemnation Restoration, or
both.
"Screen" means a large outdoor audio and video presentation system used for
presentations to viewers outside the SoundSpace buildings.
"South Florida Building Code" means the South Florida Building Code (Revised
[1994)], as amended from time to time, or any successor thereto.
"Substantial Completion" has the meaning provided in the Development Agreement.
"Sublease(s)" means any lease, sublease (including a sub-sublease or any further level of
subletting), license, concession or other agreement) by which Tenant or other Person claiming
under Tenant demises, leases, subleases, licenses or sublicenses to, or permits the use and
occupancy by another of all or any portion of the Premises, but does not include subleases
serving the functional equivalent of a Recognized Mortgage, and does not include short-term
license agreements or performance agreements.
"Subtenant" means any party granted rights by Tenant under a Sublease or by any other
Subtenant (immediate or remote) under a Sublease.
"Temporary CO" means a temporary certificate of occupancy, as the same maybe
amended from time to time, issued by the City's Building Department for all or a portion of the
improvements.
"Tenant" means New World S)'TIlphony, and any transferee of the entire Tenant's
Interest in the Lease and the Premises that is permitted under this Lease from and after the date
of the permitted transfer.
"Tenant's Improvements" means the SoundSpace facility and related improvements to
be constructed or supplied by Tenant, including but not limited to all buildings or structures
(including footings and foundations), the Screen, Building Equipment, infrastructure
improvements and other improvements and appurtenances of every kind and description now
existing or hereafter erected, constructed, or placed upon the Land (whether temporary or
10
permanent), and any and all alterations and replacements thereof, additions thereto and
substitutions therefore. Tenant's Improvements has the same meaning as "Developer's
Improvements" as defined in the Development Agreement.
"Tenant's Interest in the Premises" means Tenant's interest in this Lease and in the
Land and Tenant's ownership of the Improvements as provided in Section 2.6.
"Term" means the term of years commencing on Commencement Date and, subject to
extension or to earlier termination as provided hereunder, expiring at 11 :59 p.m. on the Fixed
Expiration Date.
"Threat of Release" has the meaning provided in Section 3l.1(h).
"Total Construction Costs" means all costs, including but not limited to all hard
construction costs, costs of furnishings, fixtures, machinery and equipment, and also all so-called
soft costs including, but not necessarily limited to, taxes during construction, interim interest
expenses, cost of financing, financing fees, if any, development costs, architectural, engineering
and design fees, survey, title insurance charges and premiums, permits and licenses, insurance
premiums during construction, accounting, marketing costs, advertising, brokerage and all legal
fees relating to the Tenant's Improvements, leasing, and construction; utilities, tap-in connection
fees, topographical and soil tests, if any; all payments made to contractors and subcontractors,
and costs of similar items, and all other costs related to the cost of the construction of the
Tenant's Improvements.
"Transfer" means a sale, exchange, assignment, transfer or other disposition by Tenant
of all or a portion of Tenant's Interest in the Premises, whether by operation of law or otherwise,
and which disposition is not a Sublease or a Mortgage.
"Transferee" has the meaning provided in Section 10.3.
"Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God,
inability to obtain labor or materials, war, enemy action, terrorist action, civil commotion, fire,
casualty, eminent domain, catastrophic weather conditions, a court order which actually causes a
delay (unless resulting from disputes between or among the party alleging an Unavoidable
Delay, present or former employees, officers, members, partners or shareholders of such alleging
party or Affiliates (or present or former employees, officers, partners, members or shareholders
of such Affiliates) of such alleging party), the application of any Requirement, or another cause
beyond such party's control or which, if susceptible to control by such party, shall be beyond the
reasonable control of such party. Such party shall notify the other party not later than twenty
(20) days after such party knows of the occurrence of an Unavoidable Delay.;. Failure to provide
timely notice, as set forth herein, shall be deemed a waiver by the party alleging an Unavoidable
Delay. In no event shall (i) any party's financial condition or inability to fund or obtain funding
or financing constitute an "Unavoidable Delay" (except for an Institutional Lender's inability to
11
fund, which inability is not caused by Tenant) with respect to such party and (ii) any delay
arising from a party's (or its Affiliate's) default under this Lease or the Development Agreement
constitute an "Unavoidable Delay" with respect to such party's obligations hereunder. The times
for performance set forth in this Lease (other than for monetary obligations of a party) shall be
extended to the extent performance is delayed by Unavoidable Delay, except as otherwise
expressly set forth in this Lease.
"U.S. Government" means the federal government of the United States of America,
including all agencies and departments thereof.
Article 2 - Demise of Land and Term of Lease
Section 2.1 Demise of Land for Term.
(a) Landlord does hereby demise and lease to Tenant, and Tenant does hereby
lease and take from Landlord, the Land, together with all the appurtenances, rights, privileges
and hereditaments thereto, "AS IS" and, upon Tenant's approval of "Permitted Exceptions" (as
defined below), subject to (i) the terms and conditions of this Lease, and (ii) the title matters set
forth in Exhibit D (the "Permitted Exceptions") attached hereto and incorporated by reference
herein, to have and to hold unto Tenant, its successors and assigns for an initial Term,
commencing on the execution date and continuing until the fifty-fifth (55th) anniversary of the
Commencement Date or such later date as extended pursuant to the terms hereof, unless sooner
terminated pursuant to the terms hereof.
Section 2.2 Extension of Term.
(a) Provided Tenant is in good standing under the terms and conditions of this
Lease, and not in default herein, the Term ofthis Lease may be extended, at the option of Tenant,
for four (4) successive periods often (10) years each, each such period being herein sometimes
referred to as an "Extended Term," as follows:
(i) Each option to extend shall be exercised by Tenant by giving
written notice to Landlord not less than three hundred sixty-five (365) days prior to the
expiration of the Term or the Extended Term, as the case may be.
(ii) The Extended Terms shall be on the same terms, covenants, and
conditions of this Lease except as set forth below. The Tenant shall not be permitted to extend
this Lease beyond the fourth Extended Term. Any termination of this Lease during the Term of
this Lease or an Extended Term shall terminate all rights hereunder.
(iii) It shall be a condition of Tenant's right to exercise its option to
extend the Term of this Lease that: (a) Tenant shall not be in default under any of the terms,
covenants, or conditions of this Lease at the time it notifies Landlord of the exercise of its option
to extend the Term ofthis Lease and upon the effective date of such option; and (b) not less than
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365 days prior to the expiration of the Term or the Extended Term, as the case may be, the
Parties shall have reviewed and revised the Public Benefits to be provided by Tenant during the
Extended Term to the reasonable satisfaction of both parties, as and if revisions to such Public
Benefits are necessitated by changed circumstances at the time of the extension.
(iv) In the event Tenant exercises its option under this Article, the
Parties agree in each such case to enter into a Lease amendment setting forth the terms of such
option within 150 days of exercise of such option by Tenant.
Section 2.3 Title to the Land.
(a) Title to the Land. Landlord represents that Landlord is the fee owner of
the Land and the Garage Property, which ownership is unencumbered by any lien or security
interest, and also represents that there are no covenants, conditions, restrictions, rights-of-way
and/or easements or other matters relating to or encumbering title to the Land or the Garage
Property which would interfere with the construction obligations of Tenant under Article 4
hereof or under the Development Agreement, or the utilization of the Premises by Tenant as
contemplated in this Lease, other than the Permitted Exceptions.
(b) Title Opinion and Permitted Exceptions. Landlord shall deliver to
Tenant, at no cost to Tenant, within sixty (60) Business days of the Commencement Date, the
most recent opinion of title in Landlord's possession (the "Title Opinion"), prepared by counsel
for Landlord, together with copies of all exceptions to title. The Title Opinion shall confirm that
Landlord is the fee owner of the Land and shall further confirm that the Land is subject only to
those exceptions enumerated in the Title Opinion and acceptable to Tenant (the "Permitted
Exceptions").
(c) Objections to Title. In the event the Title Opinion discloses a defect(s) in
the title to the Land which renders it unsuitable for the purposes herein provided, Tenant shall
notify Landlord of the defect within thirty (30) Business days of receipt of the Title Opinion.
Landlord shall use its reasonable efforts to cure the defect. In the event Landlord is unable to
cure the defect within one hundred twenty (120) Business days of Tenant's notice, Tenant shall
have the option of accepting title in its present condition, or terminating this Lease and the
Development Agreement, whereby both parties shall be released from any and all further
obligations hereunder.
(d) Additional Termination Events. Notwithstanding anything to the
contrary contained herein, Tenant shall also have the right to be released from its liability and
obligations and to terminate this Lease and the Development Agreement prior to the Possession
Date because (i) changes to the Preliminary Plans and Specifications and/or the Plans and
Specifications required by the DRB, or any other Governmental Authority (including the City),
render the Project economically unfeasible in the reasonable business judgment of Tenant, (ii)
the Project cannot meet concurrency requirements under Section 163.3180, Florida Statutes
13
(1997), or the costs of concurrency mitigation are, in the reasonable business judgment of
Tenant, economically unfeasible, (iii) Tenant, after good faith efforts, has been unable to obtain a
Building Permit for the Project pursuant to the Plans and Specifications submitted by Tenant, or
(iv) Tenant and Landlord cannot come to a mutual agreement regarding the Parties' respective
shares of costs and other obligations relative to the retail portion(s) of the Garage, if required,
Environmental Remediation, if required, and/or the Infrastructure Improvements. In the event of
termination of this Lease and the Development Agreement pursuant to this Section 2.3, each
Party shall bear its own costs and expenses incurred in connection with this Lease and the
Development Agreement and neither Party shall have any further liability to the other.
Section 2.4 No Encumbrances.
After the Commencement Date and other than the Permitted Exceptions, Landlord will
not permit or suffer any further encumbrance, mortgage, pledge or hypothecation of Landlord's
Interest in the Premises except with respect to those matters (such as utility easements and non-
monetary reciprocal easement agreements) reasonably approved by Tenant in writing and which
do not adversely affect the operation or development of the Project. Notwithstanding the
foregoing, Landlord shall have the absolute right to pledge its interest in the Rent and/or
Impositions payable hereunder so long as such pledge does not include a pledge of Landlord's
Interest in the Premises (other than the Rent and/or Impositions payable hereunder), and the
pledgee shall have no rights under this Lease other than the right to receive payments of Rent
and/or Impositions. Any pledge of Rent and/or Impositions permitted hereunder shall not create
any rights in the pledgee thereunder to enforce any of the provisions of this Lease. Landlord
shall deliver to Tenant and any Recognized Mortgagee, within fifteen (15) days after the
effective date thereof, a true and correct copy of any pledge instrument permitted hereunder.
Section 2.5 Sale of Landlord's Entire Interest.
Landlord shall not sell, transfer, conveyor assign (each, a "Transfer") Landlord's Interest
in the Premises, except for a Transfer ofthe entire Landlord's Interest in the Premises subject to
this Lease and to a transferee capable of fulfilling all of Landlord's obligations under the Lease,
and Landlord shall not be released from its obligations hereunder unless the transferee shall
assume in writing all such Lease obligations. Landlord shall give Tenant thirty (30) days' prior
written notice of any such Transfer and assumption, if applicable, along with such information
pertinent to the foregoing as may be reasonably requested by Tenant. No Transfer shall modify
or reduce Landlord's obligations under this Lease or modify or increase Tenant's obligations
under the Lease. Notwithstanding the above, Landlord may subject the Land to a commercial
condominium regime subject to the terms of this Lease (including the restrictions on Transfer
contained in this section), so long as the Land compromises only one (1) condominium unit and
cannot be further subdivided.
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Section 2.6 The Improvements to Be Owned by Tenant During the Term. So long as this
Lease remains in force, Tenant's Improvements shall be owned in fee simple by the Tenant, but
upon termination of this Lease, whether by passage of time or otherwise, Tenant's Improvements
shall become the sole property of the Landlord in fee simple, and free and clear of all
encumbrances subject to only: (i) the lien of taxes assessed but not yet due and payable (for
which the Tenant shall remain obligated to pay to the extent that they are allocable to the period
prior to the termination ofthis Lease); (ii) any installments oflevies for public improvements not
yet due and payable prior to the termination of this Lease (for which the Tenant shall remain
obligated to pay to the extent that they are allocable to the period prior to the termination of this
Lease); (iii) the Landlord's rights and remedies in the event of the termination of this Lease
because of Tenant's default; (v) the Permitted Exceptions; and (vi) such other encumbrances as
Landlord has agreed to during the Term.
Section 2.7 Delivery of Title to Landlord. Upon the expiration of the Lease Term, or any
earlier termination of this Lease, Tenant agrees to execute, acknowledge and deliver to Landlord
a proper instrument in writing, releasing and quitclaiming to Landlord all right, title, and interest
of Ten ant in and to Tenant's Improvements.
Article 3 - Rent
Section 3.1 Method and Place of Payment.
Except as otherwise specifically provided herein, all Rent and/or Impositions shall be
paid without notice or demand. All Rent and/or Impositions payable to Landlord (except
Impositions, if the Requirements governing such payments are to the contrary) shall be paid by
good checks (payable upon presentment) drawn on a United States or state chartered bank, in
currency of the United States of America. Rent and/or Impositions that are payable to Landlord
(other than Impositions, if the Requirements governing such payments are to the contrary) shall
be payable at the address of Landlord set forth herein or at such other place as Landlord shall
direct by notice to Tenant. Impositions that are not payable directly to Landlord shall be payable
in the form and at the location provided by Requirements governing the payment of such.
Section 3.2 Rent Payments.
(a) Base Rent. On the Commencement Date, Base Rent in the amount of one
dollar ($1.00) per year for the initial Term shall be paid in advance. All Rent and Base Rent
which is due for any period of less than a full month or a full Lease Year shall be appropriately
apportioned.
(b) Additional Consideration. As additional consideration for the Lease,
Tenant shall provide to Landlord the public, cultural and educational benefits described as Public
Benefits on Exhibit C hereto.
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Section 3.3 Impositions.
(a) Obligation to Pay Impositions. In addition to the payment of Base Rent,
from and after the Possession Date, Tenant shall payor cause to be paid, in the manner provided
herein, all Impositions except as provided herein that at any time thereafter are assessed, levied,
confirmed, imposed upon, or charged to Landlord or Tenant with respect to (i) the Premises, or
(ii) any vault, passageway or space in, over or under any sidewalk or street in front of or
adjoining the Premises, or (iii) any other appurtenances of the Premises, or (iv) any personal
property, Building Equipment or other facility used in the operation thereof, or (v) any document
to which Tenant is a party creating or transferring an interest or estate in the Premises of, by or to
Tenant, or (vi) the use and occupancy of the Premises, or (vii) this transaction, as contemplated
in this Lease and the Development Agreement. However, in the event execution of or operations
under this Lease causes any Impositions to be imposed on the Land by the City or Miami-Dade
County in their respective governmental capacities, so long as the Bonds remain outstanding,
Landlord shall pay such Impositions or portions thereof relating to the Land, and Tenant shall
pay such Impositions or portions thereof relating to Tenant's Improvements; provided that, to the
extent Landlord obtains a Bond Counsel opinion to the effect that payment by Tenant of the
aforestated impositions will not adversely affect the tax exempt status of the Bonds, Tenant shall
payor cause to be paid, in the manner provided herein, all such Impositions.
(b) Definition.
"Imposition" or "Impositions" means the following imposed by a
Governmental Authority:
(i) real property taxes and general and special assessments (including,
without limitation, any special assessments for business
improvements or imposed by any special assessment district);
(ii) personal property taxes;
(iii) sales and/or use taxes on Base Rent;
(iv) water, water meter and sewer rents, rates and charges;
(v) eXCises;
(vi) levies;
(vii) license and permit fees (except as otherwise set forth herein);
(viii) any other governmental levies of general application, fees, rents,
assessments or taxes and charges, general and special, ordinary and
16
extraordinary, foreseen and unforeseen, now or hereafter enacted
of any kind whatsoever;
(ix) service charges of general application with respect to police and
fire protection, street and highway maintenance, lighting,
sanitation and water supply (except as otherwise provided herein);
and
(x) any fines, penalties and other similar governmental charges
applicable to the foregoing, together with any interest or costs with
respect to the foregoing.
(c) Payment ofImpositions.
(i) Subject to the provisions of Section 3.5 hereof, from and after the
Possession Date, Tenant shall pay each Imposition or installment
not later than the last date the same may be paid without interest or
penalty (which is the date of delinquency). However, if by law of
the applicable Governmental Authority any Imposition may at the
taxpayer's option be paid in installments (whether or not interest
shall accrue on the unpaid balance of such Imposition), Tenant
may exercise the option to pay the Imposition in such installments
and shall be responsible for the payment of such installments with
interest, if any.
(ii) If Tenant twice fails within any thirty-six (36) month period to
make any payment of an Imposition (or installment thereof) on or
before the date the same may be paid without penalty, Tenant
shall, at Landlord's request, and notwithstanding paragraph (i)
above, pay all Impositions (or installments thereof) thereafter
payable by Tenant not later than twenty (20) days before the date
of delinquency. However, if Tenant thereafter makes all such
payments as required in this paragraph (ii) for thirty-six (36)
consecutive months without failure, the Imposition payment date
in paragraph (i) above shall again become applicable, unless and
until there are two further failures within a thirty-six (36) month
period, in which case Tenant shall again have the right to cure the
failure so that the payment date in paragraph (i) above shall again
be applicable, and this provision shall continue to be applicable to
each situation in which there are two further failures within a
thirty-six (36) month period. Nothing in this paragraph shall be
construed to limit Landlord's Default remedies as set forth
17
elsewhere in this Lease after failure by Tenant timely to pay any
Imposition.
(d) Evidence of Payment. Tenant shall furnish to Landlord, within thirty
(30) days after the date of Landlord's request therefor, an official receipt of the appropriate taxing
authority or other proof reasonably satisfactory to Landlord, evidencing the payment of an
Imposition which has become due and payable prior to the date of Landlord's request.
(e) Evidence of Non-Payment. Any certificate, advice or bill of the
appropriate official designated by law to make or issue the same or to receive payment of any
Imposition asserting non-payment of such hnposition shall be prima facie evidence that such
Imposition is due and unpaid at the time of the making or issuance of such certificate, advice or
bill, at the time or date stated therein. Tenant shall, immediately upon receipt of any such
certificate, advice or bill, deliver a copy ofthe same to Landlord.
(f) Apportionment of Imposition. Any Imposition relating to a fiscal period
of the taxing authority, a part of which occurs before the Commencement Date or after the
Expiration of the Term, shall be apportioned pro rata between Landlord and Tenant.
(g) Tax Abatements and Reductions. Tenant shall be entitled to the benefit
of any tax abatements and reductions as are, or may be, available under applicable law as if
Tenant were the fee owner of the Premises. Landlord shall not be required to join in any action
or proceeding in connection with such abatement or reduction unless the provisions of any
Requirement at the time in effect require that such action or proceeding be brought by and/or in
the name of Landlord. If so required, Landlord shall join and cooperate in such proceedings or
permit them to be brought by Tenant in Landlord's name, in which case Tenant shall pay all
reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by Landlord in connection therewith.
Section 3.4 Net Lease.
It is the intention of Landlord and Tenant that (a) Rent be absolutely net to Landlord
without any abatement, diminution, reduction, deduction, counterclaim, setoff or offset
whatsoever, except to the extent expressly set forth in this Lease, and (b) Tenant pay all costs,
expenses and charges of every kind or nature (except as expressly provided for herein to the
contrary) relating or allocable to the Premises that may arise or become due or payable during or
attributable to a period falling within the Term.
Section 3.5 Tax-Exempt Status.
It is understood that, on the date immediately preceding the Commencement Date, the
Land was not subject to the payment of real property Taxes. The City has advised Tenant that
there exist those certain tax-exempt Bonds which affect the Land, but it is the understanding of
18
the parties that as of the Commencement Date, such Bonds will not affect the validity and
enforceability of this Lease or the Development Agreement.
Article 4- Construction of Project and Infrastructure
Section 4.1 Coordination of Plans and Construction
The parties hereto specifically acknowledge that the success of the Project requires the
best efforts of both Landlord and Tenant in cooperating with one another so as to facilitate the
efficient and cost-effective construction of the agreed upon Infrastructure Improvements and the
construction of the Project. Concurrently herewith, the parties have entered into the
Development Agreement pursuant to which the Parties shall agree upon the Project Design, the
Plans and Specifications and the Construction Documents which, following the approval of the
City and other applicable authorities, will govern the development and construction of the
Project.
Section 4.2 Parties' Obligation under Development Agreement.
The parties hereto shall perform all of their respective obligations under the Development
Agreement.
Section 4.3 Delivery of Possession of Premises (the "Possession Date").
(a) The City shall deliver possession of the Land to Tenant on the date the
Building Permit is issued as contemplated by the Development Agreement. The date that the
City delivers possession of the Land to Tenant in accordance with this Article and the
Development Agreement, by notice in writing, shall be the "Possession Date." Landlord and
Tenant agree to execute a Memorandum of Lease and Possession Date Certificate in
substantially the form of the Memorandum attached hereto as Exhibit E. In the event the
Possession Date does not fall on the first day of the month, the Possession Date shall be adjusted
to be the first day ofthe following month.
(b) Tenant and the City shall use good faith efforts to satisfy all of the
conditions precedent to the Commencement of Construction, as set forth in the Development
Agreement, as conditions precedent to Tenant's taking possession of the Land. It is recognized
by the Parties hereto that it is not the intention of either party to encumber the Land with this
Lease for an indefinite period of time during the period of satisfaction of the aforesaid conditions
precedent, and that therefore the Tenant or the Landlord may terminate this Lease if Tenant fails
to obtain a Building Permit on or before seven (7) years from the Commencement Date, unless
such date is otherwise extended by Landlord.
(c) Prior to the Possession Date, Tenant shall submit to the City Manager for
Landlord's approval, which approval shall not be umeasonably withheld or delayed, the
commitment or commitments for the construction financing and/or permanent financing or other
19
funding of the Tenant's Improvements to be constructed on the Land, or such other evidence as
may be reasonably satisfactory to the City Manager that such financing or funding has been
committed or is available.
(d) Notwithstanding anything herein to the contrary, prior to the Possession
Date, the Tenant shall not be required to perform any of its obligations hereunder except as
provided for in and necessary to comply with the requirements of Article 4 and with respect to
Tenant's entry upon the Land for purposes of conducting or causing the investigation and
evaluation of the environmental conditions at the Land and the Garage Property, and Tenant's
efforts to secure sufficient capital or financing.
Section 4.4 Easements. The parties acknowledge that, in order to construct the Project in
accordance with the Project Design, Plans and Specifications and the Construction Documents,
certain easements and rights-of-way may be required by Tenant, on behalf of itself or third
parties (which third parties specifically include all utility companies). Landlord agrees to use its
reasonable efforts to provide such easements or right of way documents as may reasonably be
required to facilitate construction of the Tenant's Improvements, but any final decisions to grant
such easements or right-of-way documents shall be that of Landlord. Tenant shall be responsible
to pay for all reasonable out-of-pocket costs and fees incurred by Landlord in connection
herewith.
Article 5
[This Article Intentionally Deleted]
Article 6 - Use
Section 6.1 Use
(a) Continuous Legal Use. Tenant shall use and operate the Premises
throughout the Term only as permitted by this Lease. In any event, the Premises shall be used
only in accordance with the final Certificate[ s] of Occupancy therefor which from time to time
exist (or Temporary Certificate[s] of Occupancy, to the extent that final Certificate[s] of
Occupancy have not been issued therefor).
(b) Scope of Use. In accordance with Tenant's obligations to meet and
comply with the maintenance and operating standards set forth in this Lease, including its
obligation to provide Public Benefits described on Exhibit C, Tenant shall, from and after the
Project Opening Date, operate the Premises as a multi-purpose facility for use by Tenant and
third parties (subject to Tenant's approval) for musical, cultural, artistic, educational and other
20
performances and events, education, interactive cultural experiences, office and administrative
use related to the uses of the Premises, meetings, rehearsals, recording, multi-media activities,
broadcasts, and appurtenant uses at Tenant's option, including but not limited to cafeterias for
Tenant's students and staff and Landlord's employees, snack or coffee bars or similar facilities
serving food and beverages, gift shops selling merchandise as would customarily be found in gift
shops in similar facilities, practice rooms, performance halls, museum, meeting rooms, recording
and broadcast facilities, outdoor and indoor video screens, soundstages, classrooms, libraries,
and such other uses as may be contemplated in connection with providing Public Benefits.
Tenant reserves the right to close or restrict access to any portion of the Premises which are
customarily restricted in similar facilities (such as but not limited to office, administrative and
maintenance areas, or areas subject to subleases or licenses to use a portion of the Premises
pursuant to this Lease), or for reasons of public safety, or in connection with Alterations
undertaken in accordance with the provisions of this Lease, or to such extent as may, in the
reasonable opinion of Tenant's counsel, be legally necessary to prevent a dedication thereof or
the accrual of prescriptive rights to any Person or Persons.
(c) Character and Operation of the Premises. The parties recognize and
acknowledge that the manner in which the Premises are developed, operated and maintained are
matters of critical concern to the City by reason of its public educational and cultural mission,
and Tenant hereby agrees to develop, operate and maintain the Premises and all other property
and equipment located thereon which are owned, leased or maintained by Tenant in a manner
consistent with other comparable first class projects of similar age and in good order, condition,
repair and appearance, in compliance with Article 13, and in order to provide the Public Benefits
as described on Exhibit C. To accomplish this result, Tenant shall establish such reasonable
rules and regulations governing the use and operation of the Premises by Subtenants and the
public as Tenant shall deem necessary or desirable in order to comply with Article 13 and assure
the level of quality and character of operation of the Premises required herein, and it will use all
reasonable efforts to enforce such rules and regulations.
Section 6.2 Operations.
Tenant will bear sole responsibility for operating and maintaining the Premises and shall
retain all income derived therefrom. Similarly, the Landlord shall be solely responsible for
operating and maintaining the Garage, the City Hall Parking Expansion, the Adjacent Property,
and the Park (if applicable), and shall retain all income derived therefrom. Tenant will
collaborate with the City and other arts organizations with respect to their use of the Screen in
accordance with the Public Benefits set forth on Exhibit C. Prior to the issuance of the Building
Permit, the Parties shall negotiate an agreement for the management and operation, including,
without limitation, the scheduling and content of programming, for the Screen.. The Parties
agree that there shall be no commercial advertising permitted for display on the Screen.
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Section 6.3 Financial Matters.
(a) Tenant covenants and agrees: (i) to continuously operate Tenant's
Improvements consistent with prudent business and financial practices and in accordance with
Accounting Principles; (ii) to budget and expend sufficient funds to maintain and operate
Tenant's Improvements in a first-class manner and in accordance with the requirements of
Article 13 herein; and (iii) to operate Tenant's Improvements in a manner reasonably calculated
to allow Tenant to satisfy all of its obligations under this Lease including the obligations
imposed by the Public Benefits set forth on Exhibit "e".
(b) In connection therewith, Tenant shall provide to Landlord annually: (i)
Tenant's proposed annual operating budget for Tenant's Improvements, reviewed by a
Recognized Accounting Firm and accompanied by a letter certifying that there exist no material
events of default under the Lease; and (ii) a rolling five-year projection of operations for Tenant's
Improvements and sources and uses of operating funds.
Section 6.4 Prohibited Uses.
(a) Without limiting the provisions of Section 6.1, Tenant shall not use or
occupy the Premises or any part of the Premises, and neither permit nor suffer the Premises to be
used or occupied, for any of the following ("Prohibited Uses"):
(i) for any unlawful or illegal business, use or purpose, including, but
not limited to businesses, uses or purposes which are immoral or
disreputable (including "adult entertainment establishments" and
"adult bookstores"), or any business, use or purpose that is extra
hazardous, or which will violate the Environmental Laws;
(ii) for any use which is a public nuisance;
(iii) tattoo parlors, psychics, palm and tarot card readers, body piercing
shops or as a gambling casino or facility, in the event that
gambling is ever made a legal activity under Federal, state or local
law;
(iv) in any manner that will violate any Certificate of Occupancy for
the Premises, or which will violate any laws, ordinances or other
rules or regulations applicable to the Premises;
(v) in such manner as may make void or voidable any insurance then
in force with respect to the Premises.
(b) Immediately upon its discovery of any Prohibited Use, Tenant shall take
all reasonably necessary steps, legal and equitable, to compel discontinuance of such business or
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use, including, if necessary, the removal from the Premises of any subtenants, licensees, invitees
or concessionaires, subject to applicable Requirements.
Article 7- Insurance
Section 7.1 Insurance Requirements.
(a) Liability Insurance. Commencing on the Possession Date and
thereafter at all times during the Term, Tenant, at its sole cost and expense, shall carry or cause
to be carried Commercial General Liability insurance with respect to the Premises and the
operations related thereto, whether conducted on or off the Premises in an amount of not less
than One Million Dollars ($1,000,000.00) per occurrence, subject to adjustment for inflation,
combined single limit, and designating Tenant and Landlord as named insureds, and, if required
by a Recognized Mortgage, a Recognized Mortgagee as additional insured. Such insurance shall
meet all of the standards, limits, minimums and requirements described in Sections 7.3 and 7.7.
(b) Property Insurance. Commencing on the Possession Date and
thereafter at all times during the Term, Tenant at its sole cost and expense, shall carry or cause
to be carried "Special Form" (or its equivalent) property damage insurance protecting Tenant,
Landlord and any Recognized Mortgagees as their interests may appear against loss to the
Premises and Improvements and meeting all of the standards, limits, minimums and
requirements described in Section 7.8.
(c) Other Insurance. Commencing on the Possession Date and thereafter
at all times during the Term, Tenant shall procure and carry insurance meeting all of the
standards, limits, minimums, and requirements described in Section 7.9.
(d) Construction Insurance. Prior to the commencement of any
Construction Work, Tenant shall procure or cause to be procured, and after such dates shall carry
or cause to be carried, until final completion of such work, in addition to and not in lieu of the
insurance required by the foregoing subsections (a), (b), and (c), the insurance described in
Section 7.10.
Section 7.2 Treatment of Proceeds.
(a) Proceeds of Casualty Insurance in General. Insurance proceeds
payable with respect to a property loss shall be payable either to Landlord, Tenant or any
Recognized Mortgagee or other Institutional Lender pursuant to a mutually acceptable insurance
trust agreement, each of which shall hold such proceeds in trust for the purpose of paying the
cost of the Casualty Restoration, and such proceeds shall be applied to the payment in full of the
cost of such Casualty Restoration in accordance with the provisions of Article 8.
(b) Cooperation in Collection of Proceeds. Tenant, Landlord and any
Recognized Mortgagee shall cooperate in connection with the collection. of any insurance
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proceeds that may be due in the event of a loss, and Tenant, Landlord and any Recognized
Mortgagee shall as soon as practicable execute and deliver such proofs of loss and other
instruments as may be required of Tenant, Landlord or any Recognized Mortgagee, respectively,
for the purpose of obtaining the recovery of any such insurance proceeds.
(c) Adjustments for Claims. All property insurance policies required by this
Article 7 shall provide that all adjustments for claims with the insurers involving a loss in excess
of One Million Dollars ($ 1,000,000) adjusted for inflation be made jointly with Tenant,
Landlord and the Recognized Mortgagee.
Section 7.3 General Provisions Applicable to All Policies.
(a) Insurance Companies. All of the insurance policies required by this
Article shall be procured from companies licensed or authorized to do business in the State of
Florida that have a rating in the latest edition of "Best's Key Rating Guide" of ["A-VIII"] or
better or another comparable rating reasonably acceptable to Tenant, Landlord and any
Recognized Mortgagee, considering market conditions.
(b) Required Forms. All references to forms and coverages in this Article 7
shall be those used by the Insurance Services Organization (ISO) or equivalent forms reasonably
satisfactory to Landlord in all material respects.
(c) Required Certificates. Certificates of insurance evidencing the issuance
of all insurance required by this Article 7 to the extent then required, describing the coverage and
providing for thirty (30) days prior notice to Landlord by the insurance company of cancellation
or non-renewal, shall have been delivered to Landlord by the Possession Date, and in the case of
any policies replacing or renewing any policies expiring during the Term, before the expiration
dates of any expiring policies. The certificates of insurance shall be issued by or on behalf of the
insurance company and shall bear the original signature of an officer or duly authorized agent
having the authority to issue the certificate. The insurance company issuing the insurance, or its
duly authorized agent, shall also deliver to Landlord proof reasonably satisfactory to Landlord
that the premiums for at least the first year of the term of each policy (or installment payments to
the insurance carrier then required to have been paid on account of such premiums) have been
paid. During the performance of any Construction Work, Tenant shall deliver to Landlord an
entire duplicate original or a copy (certified by Tenant to be true, complete and correct) of each
policy. At all other times, Tenant shall deliver to Landlord an entire duplicate original or a copy
(certified by Tenant to be true, complete and correct) of each policy within a reasonable period
of time after Landlord's request therefor. Tenant shall notify Landlord of any material changes in
the coverage provided under any policy promptly after requesting an insurance company to make
such change or receiving any notice from an insurance company advising Tenant of any such
change; provided, however, that no such change may reduce or otherwise modify the insurance
coverage required under this Lease.
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(d) Compliance with Policy Requirements. Tenant shall not violate or
permit to be violated any of the conditions, provisions or requirements of any insurance policy
required by this Article, and Tenant shall perform, satisfy and comply with, or cause to be
performed, satisfied and complied with, all conditions, provisions and requirements of all
insurance policies.
(e) Required Insurance Policy Clauses. Each policy of insurance required
to be carried pursuant to the provisions of this Article and each certificate issued by or on behalf
of the insurer shall contain (i) a provision stating substantially that no act or omission of Tenant
(or any other Person) or any use or occupation of the Premises for purposes more hazardous than
are permitted, by the policy shall invalidate the policy as to Landlord or affect or limit the
obligation of the insurance company to pay to Landlord the amount of any loss sustained and that
no act or omission of Landlord shall invalidate the policy as to Tenant or affect or limit the
obligation of the insurance company to pay to Tenant the amount of any loss; (ii) a written
waiver of the right of subrogation against all of the named insureds and additional insureds,
including Landlord in its capacity as owner of the Land and any Recognized Mortgagee named
in such policy, with respect to losses payable under such policy; (iii) a clause designating
Landlord, and any Recognized Mortgagee as loss payee or additional insured, as their interests
may appear for losses in excess of One Hundred Thousand Dollars ($100,000.00), adjusted for
inflation; and (iv) an agreement by the insurer that such policy shall not be canceled, materially
modified, or denied renewal without at least thirty (30) days prior written notice to Landlord and
the holder of any Recognized Mortgage named under a standard New York form of mortgagee
endorsement or its equivalent, specifically covering, without limitation, cancellation or non-
renewal for non-payment of premium, except that ten (10) days' notice or statutory notice,
whichever is greater, shall be given with respect only to non-payment of premium.
(t) Separate Insurance. Tenant shall not carry separate liability or property
insurance concurrent in form or contributing in the event of loss with that required by this Lease
to be furnished by Tenant, unless Landlord and any Recognized Mortgagee are included therein
as additional insureds with respect to liability or loss payee with respect to property, as their
interests may appear, with loss payable as in this Lease provided. Tenant shall immediately
notify Landlord of the carrying of any such separate insurance and shall cause the same to be
delivered as in this Lease hereinbefore required.
(g) Duration of Policies. Tenant shall procure policies for all insurance
required by any provision of this Lease for periods of not less than one (1) year and shall procure
renewals thereof from time to time prior to the expiration thereof, except that Builders' Risk
Insurance shall only be renewed for the term of any construction period.
Section 7.4 Additional Coverage.
(a) Other Insurance. Tenant shall maintain such other insurance regarding
the Premises in such amounts as from time to time reasonably may be required by Landlord,
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against such other insurable hazards as at the time are commonly insured against in the case of
similar projects in South Florida of a size, nature and character similar to the size, nature and
character ofthe Premises.
(b) Adjustment of Limits. All of the limits of insurance required pursuant to
this Article 7 shall be subject to review by Landlord and, in connection therewith, Tenant shall
carry or cause to be carried such additional amounts as Landlord may reasonably require from
time to time, but Landlord may not impose such new limits any more frequently than once in
every five- (5-) year period from the CO Date. Any request by Landlord that Tenant carry or
cause to be carried additional amounts of insurance shall not be deemed reasonable unless such
additional amounts are commonly carried in the case of similar projects in South Florida of a
size, nature and character similar to the size, nature and character of the Premises; provided,
however, that the provisions of this subsection (b) shall not relieve Tenant of its obligation to
carry or to cause to be carried All Risk insurance in an amount not less than the Replacement
Value as provided in Section 7.12(a). Tenant shall be responsible for all deductibles.
Section 7.5 No Representation as to Adequacy of Coverage.
The requirements set forth herein with respect to the nature and amount of insurance
coverage to be maintained or caused to be maintained by Tenant hereunder shall not constitute a
representation or warranty by Landlord or Tenant that such insurance is in any respect adequate.
Section 7.6 Blanket or Umbrella Policies.
The insurance required to be carried by Tenant pursuant to the provisions of this Lease
may, at Tenant's election, be effected by blanket, wrap-up and/or umbrella policies issued to
Tenant covering the Premises and other properties owned or leased by Tenant or its Affiliates,
provided such policies otherwise comply with the provisions of this Lease and allocate to the
Premises the specified coverage, including, without limitation, the specified coverage for all
insureds required to be named as insureds or additional insureds hereunder, without possibility of
reduction or coinsurance by reason of, or because of damage to, any other properties named
therein. If the insurance required by this Lease shall be effected by any such blanket or umbrella
policies, Tenant shall furnish to Landlord, upon Landlord's request, certificates of insurance and
copies (certified by Tenant to be true, complete and correct) of such policies as provided in
Section 7.3(c), together with schedules annexed thereto setting forth the amount of insurance
applicable to the Premises.
Section 7.7 Liability Insurance Requirements.
The insurance required by Section 7.1(a) shall consist of commercial general liability
insurance protecting against liability for bodily injury, death, property damage and personal
injury. Such insurance shall (within the limits of the insurance required by Section 7.1(a)):
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(a) include a broad form property damage liability endorsement with legal
liability limit of not less than One Hundred Thousand Dollars ($100,000.00), subject to
adjustment for inflation;
(b) contain blanket contractual liability insurance covering written and oral
contractual liability;
(c) contain contractual liability insurance specifically covering Tenant's
indemnification obligations under Article 18, to the extent such indemnification obligation is for
an insurable risk;
(d) contain independent contractors coverage;
( e) contain a notice of occurrence clause;
(t) contain a knowledge of occurrence clause;
(g) contain an errors and omissions clause;
(h) contain coverage for suits arising from the use of reasonable force to
protect persons and property;
(i) contain an endorsement providing that excavation and foundation work
are covered and the "XCD" exclusions have been deleted;
G) contain a waiver of completion and occupancy condition;
(k) contain no exclusions unless specifically approved in each instance by
Landlord, other than the industry standard exclusions for projects of similar size and location;
(1) contain Products Liability/Completed Operations coverage; and
(m) provide for a deductible determined by Tenant, but not more than [Fifty]
Thousand Dollars ($[50],000) per loss, subject to adjustment for inflation.
Section 7.8 Property Insurance Requirements.
The insurance required by Section 7.1 (b) shall consist at least of property damage
insurance under a "Special Form" policy or its equivalent covering the Premises and all Tenant's
Improvements with replacement cost valuation and an Agreed Amount Endorsement (to be
effective not later than promptly following the CO Date) in an amount not less than the full
Replacement Value (determined in accordance with Section 7.12) and including the following
coverages or clauses:
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(a) coverage for physical loss or damage to Tenant's Improvements;
(b) a replacement cost valuation without depreciation or obsolescence clause;
(c) debris removal coverage;
(d) provision for a deductible determined by Tenant, but not more than One
Hundred Thousand Dollars ($100,000.00) per loss (for other than flood or windstorm, with
regard to which the deductible shall be a commercially reasonable amount), subject to
adjustment for inflation;
(e) contingent liability from operation of building laws;
(f) demolition cost for undamaged portion coverage;
(g) increased cost of construction coverage;
(h) an Agreed Amount Endorsement (to be effective not later than promptly
following the CO Date) in an amount not less than the full Replacement Value negating any
coinsurance clauses;
(i) flood coverage (to the extent available at commercially reasonable rates,
limits and deductibles);
G) windstorm coverage (to the extent available at commercially reasonable
rates, limits and deductibles);
(k) coverage for explosion caused by steam pressure-fired vessels (which
coverage may be provided under a separate policy reasonably approved by Landlord);
(1) a clause designating Landlord and a Recognized Mortgagee as additional
insureds, as their interests may appear; and
(m) contain no exclusions unless approved in writing by Landlord, other than
the industry standard exclusions for projects of similar size and location.
Tenant shall be named insured, and Landlord and any Recognized Mortgagee shall be
additional insureds, as their interests may appear. The Recognized Mortgagee or Landlord shall
be designated loss payee on such "Special Form" policy for the benefit of Landlord, Tenant and
any Recognized Mortgagee. If not included within the "Special Form" coverage above, Tenant
shall also carry or cause to be carried coverage against damage due to (i) water and sprinkler
leakage and collapse, which shall be written with limits of coverage of not less than the full
Replacement Value per occurrence, with a deductible of not more than One Hundred Thousand
Dollars ($100,000.00), subject to adjustment for inflation and (ii) flood, which shall be written in
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accordance with the maximum level of coverage available through the National Flood Insurance
Program (NFIP).
If Tenant elects to insure Tenant's personal property used in connection with the
Premises, the replacement value of such personal property shall be added to the amount of
insurance required by this Section.
For the purposes of this Section 7.8, any rate, limit or deductible shall be "commercially
reasonable" if such rate, limit or deductible is comparable to the rates, limits or deductibles in the
insurance carried by similar projects in South Florida of a size, nature and character similar to
the size, nature and character of the Premises.
Section 7.9 Other Insurance Requirements.
The insurance required by Section 7.l(c) shall consist at least of the following:
(a) Statutory Workers' Compensation and any other insurance required by law
covering all employees of Tenant or any entity performing work on or for the Premises or the
improvements (unless and to the extent provided by such other parties), including Employers
Liability coverage, all in amounts not less than the statutory minimum.
(b) After CO Date, Boiler and Machinery Insurance, covering the entire
heating, ventilating and air-conditioning systems, in all its applicable forms, including Broad
Form, boiler explosion, extra expense and loss of use in an amount not less than the replacement
cost of such heating, ventilating and air conditioning systems, located on any portion of the
Premises and other machinery located on any portion of the Premises, which shall designate
Tenant as named insured and loss payee and designate Landlord and any Recognized Mortgagee
as additional insureds.
Section 7.10 Construction Insurance Requirements.
The insurance required by Section 7.1 (d) shall consist at least of the following:
(a) Builder's Risk Insurance (standard "Special Form" or equivalent coverage)
in an amount not less than the cost of construction, written on a completed value basis or a
reporting basis, for property damage protecting Tenant, Landlord, the general contractor, and any
Recognized Mortgagee, with a deductible determined by Tenant of not more than One Hundred
Thousand Dollars ($100,000.00), subject to adjustment for inflation (except as to flood and
windstorm, with regard to which the deductible shall be a commercially reasonable amount), to
include rental payment coverage from the date ofprojected completion and extending for at least
twelve (12) months following such date of projected completion.
(b) Automobile liability insurance covering any automobile or other motor
vehicle used in connection with work being performed on or for the Premises in an amount not
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less than One Million Dollars ($1,000,000.00), subject to adjustment for inflation, per
occurrence, with a deductible determined by Tenant of not more than Fifty Thousand Dollars
($50,000.00), subject to adjustment for inflation.
(c) The insurance required pursuant to Section 7.7.
Section 7.11 Annual Aggregates.
Excluding UmbrellalExcess Liability Insurance, if there is imposed under any liability
insurance policy required hereunder an annual aggregate which is applicable to claims other than
products liability and completed operations, such an annual aggregate shall not be less than two
(2) times the per occurrence limit required for such insurance.
Section 7.12 Determination of Replacement Value.
(a) Definition. The current replacement value of the Improvements (the
"Replacement Value") shall be the full cost of replacing Tenant's Improvements according to
Requirements in effect at that time, including, without limitation, all hard costs of construction as
well as the costs of post-casualty debris removal, and soft costs, including without limitation,
architects', engineers', surveyors', assessors' and other professional fees and development fees.
On the CO Date, Replacement Value of the Tenant's Improvements shall be deemed to be an
amount equal to the actual costs incurred or expended in connection with the construction of the
Premises as certified by the architect upon completion of the Premises, other than foundations
and financing and other soft costs not applicable to replacement, adjusted for each year after
completion of the Premises in accordance with the percentage change in the Building Index. If
the insurance required by Section 7.8 above is not sufficient to cover the Replacement Value,
then within fifteen (15) days after such adjustment, said insurance shall be increased or
supplemented to fully cover such Replacement Value. In no event shall such Replacement Value
be reduced by depreciation or obsolescence ofthe Tenant's Improvements.
(b) Building Index. As used herein, the "Building Index" shall mean the
Marshall and Swift Cost Index or such other published index of construction costs which shall be
selected from time to time by Landlord and reasonably agreed to by Tenant, provided that such
index shall be a measure of construction costs widely recognized in the insurance industry and
appropriate to the type and location of the Improvements.
Section 7.13 Subleases.
All Subleases shall require the Subtenant to carry liability insurance naming Tenant,
Landlord and any Recognized Mortgagee as additional insureds with limits reasonably prudent
under the circumstances.
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Section 7.14 Additional Interests.
All insurance policies in this Article 7 shall contain a provision substantially to the effect
that the insurance provided under the policy is extended to apply to Landlord, as its interests may
appear. Any holder of a Recognized Mortgage which, pursuant to the Recognized Mortgage, is
required to be named under any of the insurance carried hereunder shall be named under a
standard New York form of mortgagee endorsement or its equivalent.
Article 8- Damage, Destruction and Restoration
Section 8.1 Notice to Landlord.
If the Premises are damaged or destroyed in whole or in any material part by fire or other
casualty, Tenant shall notify Landlord of same as soon as reasonably possible after Tenant's
discovery of same.
(a) Obligation to Rebuild. In the event of fire or other casualty, Tenant shall
be obligated to restore the Premises, except as otherwise set forth herein.
(b) Final Years of Term. If Tenant's Improvements are substantially
destroyed by fire or other casualty at any time within any Extended Term, Tenant may terminate
this Lease by written notice to Landlord within one hundred twenty (120) days after the
destruction and Tenant shall be discharged from any obligation to repair or restore, but all
proceeds of casualty insurance covering the loss of the improvements on the Land shall be paid
or assigned to Landlord. Tenant shall deliver to Landlord the Premises in its "as-is" condition
and free of mortgages, indebtedness, but subject to the Permitted Exceptions and any other
matters affecting title to which the Landlord has previously agreed. Notwithstanding this Section
8.1(b), if Tenant's Improvements are substantially destroyed by fire or other casualty at any time
within the last ten (10) years of the Term, Tenant shall be obligated to restore the Premises, and
Tenant may exercise the four (4) successive Extended Terms provided in Section 2.2(a),
provided Tenant completes said restoration pursuant to this Article 8, and provided further that
the Parties agree to review and revise the Public Benefits to be provided by Tenant during the
Extended Terms.
Section 8.2 Casualty Restoration.
(a) Obligation to Restore. If all or any portion of the Premises are damaged
or destroyed by fire or other casualty, ordinary or extraordinary, foreseen or unforeseen, whether
prior to or after completion of the initial construction of the Project, Tenant shall, in accordance
with the provisions of this Article 8, restore the Premises to substantially the same the condition
thereof as it existed immediately before such casualty (a "Casualty Restoration"), subject to
Sections 8.1 and 8.6 herein. "Net Insurance Proceeds" shall mean the actual amount of
insurance proceeds paid following a fire or other insured casualty.
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(b) Commencement of Construction Work. Subject to Unavoidable
Delays, Tenant shall commence the Construction Work in connection with a Casualty
Restoration within ninety (90) days after receipt by Tenant or the Recognized Mortgagee of the
Net Insurance Proceeds arising from the damage or destruction which caused the need for such
Casualty Restoration, and shall diligently pursue the completion of such Casualty Restoration.
(c) Pay Down of Mortgages Prohibited. No Mortgagee (Recognized or
otherwise) shall have the right to apply any insurance proceeds paid in connection with any
casualty toward payment of the sum secured by its Mortgage to the extent that this Lease
requires that Tenant effect a Casualty Restoration with such proceeds.
Section 8.3 Restoration Funds.
(a) Except as may be otherwise required by any Recognized Mortgage, all Net
Insurance Proceeds shall be paid to Tenant and applied as provided herein. Landlord hereby
assigns to Tenant any right, title or interest in and to any such Insurance Proceeds to which
Landlord may be entitled, subject to Tenant's compliance herewith. Provided Tenant is
conducting the Casualty Restoration in accordance with this Lease, the Net Insurance Proceeds
shall be paid out from time to time as the Casualty Restoration progresses, upon the written
request (certification) of Tenant, which request shall be accompanied by the following:
(i) A certificate signed by Tenant and the architect or engineer in
charge of the Casualty Restoration, reasonably satisfactory to
Landlord, dated not more than fifteen (15) days prior to such
request, setting forth:
(1) that the sum then requested either has been paid by Tenant or is
justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the work specified, and
stating that no part of such expenditures has been or is being
made the basis of any previous or then pending request for the
withdrawal of the Net Insurance Proceeds;
(2) a brief description of the services and materials;
(3) that, except for the amount described in Section 8.3(a)(i)(1),
there is no outstanding indebtedness actually known to the
persons signing such certificate, after due inquiry, which is
then due for labor, materials, or services in connection with the
Casualty Restoration;
(4) that the cost, as estimated by the persons signing such
certificate, of the work required to complete the Casualty
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Restoration does not exceed the amount of the remaining Net
Insurance Proceeds, plus any amount deposited by Landlord or
Tenant to defray the expenses of the Casualty Restoration; and
(5) that the work described has been completed in accordance with
the plans and specifications applicable thereto, in a good and
workmanlike manner and in accordance with all Requirements.
(ii) Lien waivers, title insurance company reports or such other
evidence, reasonably satisfactory to Landlord, to the effect that
there has not been filed with respect to the Premises any vendor's,
mechanic's, laborer's, materialman's or other lien which has not
been discharged of record, except such as will be discharged by
payment of the amount then requested; and
(iii) Such other documentation regarding the Casualty Restoration as
Landlord or the Recognized Mortgagee shall reasonably require.
(b) Tenant shall, prior to the commencement of the Casualty Restoration,
furnish to Landlord an estimate of the total cost of the Casualty Restoration certified by the
architect or engineer in charge of the Casualty Restoration.
(c) Upon compliance by Tenant with the foregoing provisions of this Article,
the holder of the Net Insurance Proceeds shall pay to Tenant or the persons named in the
certificate referred to in Section 8.3(a), from the Net Insurance Proceeds, an amount equal to
ninety percent (90%) of the cost of the Casualty Restoration which is evidenced by the request.
At the completion of each contract or subcontract in connection with the Casualty Restoration,
the balance of the Net Insurance Proceeds relating to that portion of the work, to the extent of
and as required to complete the payment of Casualty Restoration costs relating to that portion of
the work, shall be paid to Tenant and Tenant shall provide to Landlord reasonable evidence that
the Casualty Restoration relating to that portion of the work has been paid for in full.
(d) If the amount of any Net Insurance Proceeds, excluding deposits made by
Landlord or Tenant pursuant to Section 8.3(b) above, shall exceed the entire cost of the Casualty
Restoration, such excess, upon completion of the Casualty Restoration, shall, if this Lease shall
be in full force and effect and not in default, be disbursed to Tenant, or if this Lease is no longer
in full force and effect or is in default, such excess shall be paid to and retained by Landlord and
shall be credited against any amounts due hereunder which are in default; any remaining balance
shall be paid to Tenant.
Section 8.4 Effect of Casualty on This Lease.
Except as provided in Sections 8.1 and 8.6 herein, this Lease shall not terminate, be
forfeited or be affected in any manner, and there shall be no reduction or abatement of Rent
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(except to the extent Landlord receives the net proceeds of the insurance described in Section
7.8), by reason of damage to, or total or partial destruction of, or untenantability of, the Premises
or any part thereof resulting from such damage or destruction except as set forth herein. Tenant's
Rent obligations hereunder shall continue as though the Premises had not been damaged or
destroyed and shall continue without abatement, suspension, diminution or reduction
whatsoever. Subject to Unavoidable Delays and taking into account Tenant's Casualty
Restoration obligations (including, without limitation, the effect of the casualty and the Casualty
Restoration on the Tenant's ability or inability to comply with its obligations under this Lease),
Tenant's non-Rent obligations hereunder shall continue as though the Premises had not been
damaged or destroyed and shall continue without abatement, suspension, diminution or reduction
whatsoever; however, if the casualty or Casualty Restoration impairs Tenant's ability to provide
any or all of the Public Benefits, Tenant shall work diligently to resume providing Public
Benefits as soon as feasible.
Section 8.5 Collection of Proceeds
Each of the parties shall execute such documents as may be reasonably required to
facilitate collection of any insurance proceeds paid or payable in connection with any casualty
affecting the Premises.
Section 8.6 Governmental Prohibitions.
If Tenant is prohibited from repairing or restoring the Tenant's Improvements in
accordance with Section 8.2 by statutes, laws, ordinances, rules or regulations of the appropriate
Governmental Authorities, Tenant shall have the right, to be exercised by written notice to
Landlord within sixty (60) days of the date Tenant receives notice from such Governmental
Authorities that Tenant's proposed repairs or restoration are prohibited, to terminate this Lease
and the Development Agreement. Such notice from Tenant to Landlord shall operate to
terminate all obligations and liabilities of Tenant under this Lease and the Development
Agreement from and after the date of such notice, except those obligations and liabilities which
specifically survive termination of this Lease and the Development Agreement and except as set
forth in this Section. In the event of termination of this Lease and the Development Agreement
pursuant to this provision, all proceeds of casualty insurance shall be retained by Tenant; except,
that Tenant, if requested by Landlord, shall remove from the Land Tenant's Improvements and
restore the Land to a level grade but the foregoing shall not be construed to obligate Tenant to
remove any underground improvements such as utility lines or to add any fill to the Land.
Article 9- Condemnation
Section 9.1 Substantial Taking.
(a) Termination of Lease for Substantial Taking. If all or Substantially All
of the Premises are taken (excluding a taking of the fee interest in the Premises if, after such
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taking, Tenant's rights under this Lease are not affected and no rights of any Recognized
Mortgagee are affected) for any public or quasi-public purpose by any lawful power or authority
by the exercise of the right of condemnation or eminent domain or by agreement among
Landlord, Tenant, Recognized Mortgagee and those authorized to exercise such right, this Lease
shall terminate on the Date of Taking, all obligations and liabilities of Tenant under this Lease
shall be terminated, and the Rent and/or Impositions payable by Tenant hereunder shall be
apportioned and paid to the Date of Taking.
(b) Disbursement of Award. If all or Substantially All of the Premises are
taken or condemned as provided in Section 9.l(a), the Net Condemnation Award paid or payable
to Landlord, Tenant or any lender or mortgagee claiming through either of them in connection
with such taking or condemnation shall be paid as follows: (1) there shall first be paid to
Landlord an amount equal to the Net Condemnation Award multiplied by a fraction, the
numerator of which is the appraised value of the Land immediately prior to such condemnation,
and the denominator of which is the appraised value of the Premises immediately prior to such
condemnation; (2) there shall next be paid to the Recognized Mortgagee so much of the Net
Condemnation Award as shall equal the unpaid principal indebtedness secured by such
Recognized Mortgagee with interest thereon at the rate specified therein to the date of payment
(including any prepayment fees thereon and any so-called "yield maintenance" or "make-whole"
amounts or other sums intended to assure to the Recognized Mortgagee a certain rate of return
under the loan secured by the Recognized Mortgage, if any, as well as any costs payable by
Tenant in connection with such Recognized Mortgage pursuant to any "swaps" or other interest
rate protection or hedging mechanism); and (3) the remaining Net Condemnation Award shall be
disbursed to Tenant. The appraised values referred to in Section 9.1 (b )(1) shall be determined
using an appraisal process based upon "fair market value."
(c) Definitions.
(i) "Date of Taking" means the earlier of (1) the date on which
actual possession of all or Substantially All of the Premises, or any
part thereof, as the case may be, is acquired by any lawful power
or authority pursuant to the provisions of applicable law, or (2) the
date on which title to all or Substantially All of the Premises, or
any part thereof, as the case may be, has vested in any lawful
power or authority pursuant to the provisions of applicable law.
(ii) "Substantially All of the Premises" means such portion of the
Premises as, when so taken, would leave, in Tenant's good faith
determination, a balance of the Premises that, due either to the area
so taken or the location of the part so taken in relation to the part
not so taken, would not, under economic conditions, physical
constraints, zoning laws, building regulations and other
Requirements then existing, readily accommodate a new or
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reconstructed building or buildings and other improvements of a
type fully comparable to the Tenant's Improvements existing at the
Date of Taking. Tenant shall notify Landlord, on or about the Date
of Taking, in writing of its determination as to whether or not
"Substantially All of the Premises" has been taken. If Tenant does
not determine that "Substantially All of the Premises" has been
taken, then this Lease shall not terminate and expire but shall
continue in force and effect, subject to the other provisions of this
Article 9. If Tenant determines that "Substantially All of the
Premises" has been taken, then this Lease shall terminate and
expire on the Date of Taking pursuant to Section 9.l(a).
(iii) "Net Condemnation Award" shall mean the actual amount of the
award paid in connection with or arising from the acquisition or
other taking of all or Substantially All of the Premises or any
portion of the Premises by any Governmental Authority, less all
reasonable out-of-pocket expenses incurred by Landlord, Tenant or
Recognized Mortgagee in connection with obtaining such award,
including, without limitation, all reasonable attorneys' fees and
disbursements incurred in connection therewith.
Section 9.2 Less Than Substantial Taking.
(a) Taking of Less than Substantially All of the Premises. If less than
Substantially All of the Premises are taken for any public or quasi-public purpose by any lawful
power or authority by the exercise of the right of condemnation or eminent domain or by
agreement among Landlord, Tenant, any Recognized Mortgagee and the entity authorized to
exercise such right, whether prior to or after the completion of the initial construction of the
Premises, this Lease shall continue for the remainder of the Term without diminution of any of
Tenant's obligations hereunder, but with a fair and equitable abatement and modification of Rent
and ofthe obligation to provide the Public Benefits.
(b) Obligation to Restore the Premises. If less than Substantially All of the
Premises are taken as provided in Section 9.2(a), whether prior to or after the completion of the
initial construction of the Premises, Tenant shall, in accordance with the provisions of this
Article, restore the remaining portion of the Premises, to the extent feasible, to substantially the
same condition thereof as it existed immediately before such taking (a "Condemnation
Restoration ").
(c) Condition to Obligation to Restore. Tenant shall make such repairs and
restoration regardless of whether the Award Balance is less than the full amount required to
restore the Tenant's Improvements as provided herein.
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(d) Disbursement. If less than Substantially All of the Premises are taken as
provided in Section 9.2(a), the Net Condemnation Award payable to Landlord, Tenant and any
lender or mortgagee claiming through either of them shall be paid as follows: (1) first to the cost
of the Condemnation Restoration; (2) second to Landlord for payment of any amounts due and
payable hereunder which are in default; (3) third to the Recognized Mortgagee for any amounts
due and payable under its Recognized Mortgage which are in default; (4) fourth to Recognized
Mortgagee to the extent required by the Recognized Mortgage as a result of the less than
Substantial Taking; and (5) fifth pursuant to Section 9.l(b)(1).
(e) Commencement of Construction Work. Subject to Unavoidable
Delays, Tenant shall commence the Construction Work in connection with a Condemnation
Restoration within ninety (90) days after receipt of the Net Condemnation Award arising from
the taking which caused the need for such Condemnation Restoration and shall diligently pursue
the completion of such Condemnation Restoration.
(f) Pay Down of Mortgages Prohibited, No Mortgagee (Recognized or
otherwise) shall have the right to apply any award proceeds paid in connection with any taking
toward payment of the sum secured by its Mortgage to the extent that this Lease requires that
Tenant effect a Condemnation Restoration with such proceeds.
Section 9.3 Restoration Funds.
(a) Provided Tenant is conducting the Condemnation Restoration in
accordance with this Lease, the Net Condemnation Award shall be paid out from time to time as
the Condemnation Restoration progresses, upon the written request of Tenant, which request
shall be accompanied by the following:
(i) A certificate signed by Tenant and the architect or engineer in
charge of the Condemnation Restoration, reasonably satisfactory to
Landlord, dated not more than fifteen (15) days prior to such
request, setting forth:
(1) that the sum then requested either has been paid by Tenant
or is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the work specified, and
stating that no part of such expenditures has been or is
being made the basis of any previous or then pending
request for the withdrawal of the Net Condemnation
Award;
(2) a brief description of the services and materials;
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(3) that, except for the amount described in Section
9.3(a)(i)(1), there is no outstanding indebtedness actually
known to the persons signing such certificate, after due
inquiry, which is then due for labor, materials, or services
in connection with the Condemnation Restoration;
(4) that the cost, as estimated by the persons signing such
certificate, of the work required to complete the
Condemnation Restoration does not exceed the amount of
the remaining Net Condemnation Award, plus any amount
deposited by Tenant to defray the expenses of the
Condemnation Restoration; and
(5) that the work described has been completed in accordance
with the plans and specifications applicable thereto, in a
good and workmanlike manner and in accordance with all
Requirements;
(ii) Lien waivers, title company reports or such other evidence,
reasonably satisfactory to Landlord, to the effect that there has not
been filed with respect to the Premises, any vendor's, mechanic's,
laborer's, materialman's or other lien which has not been
discharged of record, except such as will be discharged by
payment of the amount then requested; and
(iii) Such other documentation regarding the Condemnation
Restoration as Landlord or the Recognized Mortgagee shall
reasonably require.
(b) Tenant shall, prior to the commencement of the Condemnation
Restoration, furnish to Landlord an estimate of the total cost of the Condemnation Restoration
certified by the architect or engineer in charge ofthe Condemnation Restoration.
(c) Upon compliance by Tenant with the foregoing provisions of this Article,
the holder of the Net Condemnation Award shall pay, to Tenant or the persons named in the
certificate referred to in Section 9.3(a)(i), from the Net Condemnation Award, an amount equal
to ninety percent (90%) of the cost of the Condemnation Restoration which is evidenced by the
request. At the completion of each contract or subcontract in connection with the Condemnation
Restoration, the balance of the Net Condemnation Award relating to that portion of the work, to
the extent of and as required to complete the payment of Condemnation Restoration costs
relating to that portion of the work, shall be paid to Tenant and Tenant shall provide to Landlord
reasonable evidence that the Condemnation Restoration relating to that portion of the work has
been paid for in full.
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(d) If the amount of any Net Condemnation Award, excluding deposits made
by Tenant pursuant to Section 9.3(b) above, shall exceed the entire cost of the Condemnation
Restoration, such excess, upon completion of the Condemnation Restoration, shall, if this Lease
shall be in full force and effect, be disbursed to Tenant, or if this Lease shall not be in full force
and effect, such excess shall be paid to and retained by Landlord. Any amounts deposited by
Tenant pursuant to Section 9.3(b) above shall be returned to Tenant to the extent the same are not
necessary to fund the cost of the Condemnation Restoration.
Section 9.4 Temporary Taking.
(a) Notice of Temporary Taking. If the temporary use of the whole or any
portion of the Premises is taken for a public or quasi-public purpose by a lawful power or
authority by the exercise of the right of condemnation or eminent domain or by agreement
between Tenant and those authorized to exercise such right, Tenant shall give Landlord notice
within five (5) Business Days thereof. The Term shall not be reduced or affected in any way by
reason of such temporary taking and Tenant shall continue to pay to Landlord the Rent and/or
Impositions without reduction or abatement; provided, however, if such temporary taking is for a
period in excess of ninety (90) days, then such taking shall be deemed a permanent taking and
the provisions of Sections 9.1 and 9.2, as applicable, shall apply.
(b) Temporary Taking Not Extending Beyond the Term. If the temporary
taking is for a period not extending beyond the Term (including a taking restricted entirely to
Tenant's Interest in the Premises and not affecting Landlord's interest in any way), Tenant shall
apply the award it receives in compensation therefor toward a Condemnation Restoration in
accordance with Section 9.3, and Tenant shall, subject to the rights of any Recognized
Mortgagee, be entitled to retain any remaining amount of such award.
(c) Temporary Taking Extending Beyond the Expiration of the Term. If
the temporary taking is for a period extending beyond the Expiration of the Term, the award or
payment shall first be disbursed pursuant to Section 9.3 to be applied toward such restoration of
the Tenant's Improvements as may have been necessitated by such taking, and the remainder
shall be equitably apportioned between Landlord and Tenant as of the Expiration of the Term.
Section 9.5 Governmental Action Not Resulting in a Taking.
In case of any governmental action not resulting in the taking or condemnation of any
portion of the Premises but creating a right to compensation therefor, such as the changing of the
grade of any street upon which the Premises abut, then this Lease shall continue in full force and
effect without reduction or abatement of Rent and/or Impositions. Any award payable
thereunder shall be applied (i) first to reimburse Tenant for any Construction Work performed by
Tenant resulting from such governmental action and for attorneys' fees and costs related thereto
as well as to Landlord for its attorneys' fees, and c6sts related thereto; provided, however, that
Landlord was not acting in its governmental capacity, (ii) second, any remaining amount shall be
39
used to cure any monetary defaults under this Lease, and (iii) the remainder shall be paid to
Tenant.
Section 9.6 Collection of Awards.
Each of the parties shall execute such documents as may be reasonably required to
facilitate collection of any awards made in connection with any condemnation proceeding
referred to in this Article 9.
Section 9.7 Negotiated Sale.
As applied to this Article 9 only, in the event of a negotiated sale of all or a portion of the
Premises in lieu of condemnation, the proceeds shall be distributed as provided in cases of
condemnation.
Section 9.8 No Waiver.
Notwithstanding anything to the contrary contained herein, the City, acting in its
governmental capacity, does not waive, and hereby reserves, its right to consent or withhold
consent to any acquisition of property owned by or belonging to, the City, including the
Premises.
Section 9.9 Effect of Taking on This Lease.
Except as provided in Section 9.1 and Section 8.6, this Lease shall not terminate, be
forfeited or be affected in any manner, and there shall be no reduction or abatement of Rent
and/or Impositions, by reason of any taking of the Premises or any part thereof. Except as
provided in Section 9.2(a), Tenant's Rent and/or Imposition obligations hereunder shall continue
as though the Premises had not been taken and shall continue without abatement, suspension,
diminution or reduction whatsoever. Subject to Unavoidable Delays and taking into account
Tenant's Condemnation Restoration obligations, (including, without limitation, the effect of the
taking and the Condemnation Restoration on the Tenant's ability or inability to comply with its
obligations under this Lease, including but not limited to its inability to provide any or all of the
Public Benefits) Tenant's non-Rent obligations hereunder shall continue as though the Premises
had not been taken and shall continue without abatement, suspension, diminution or reduction
whatsoever; however, if the taking or Condemnation Restoration impairs Tenant's ability to
provide any or all of the Public Benefits, Tenant's obligations to provide such Public Benefits
shall be proportionately reduced or abated, as necessary, in accordance with such impairment,
and Tenant shall work diligently to resume providing Public Benefits as soon as feasible.
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Article 10- Transfer and Subletting
Section 10.1 Purpose of Restrictions on Transfer.
Subject to the provisions of this Article, this Lease is granted to Tenant solely for the
purpose of development of the Premises and its subsequent use in accordance with the terms
hereof, and not for speculation in landholding or development. Tenant recognizes that, in view
of the importance of the development of the Premises to the educational and cultural welfare of
the City, as more fully described in Recital B and Exhibit "C", the qualifications and identity of
Tenant are of particular concern to Landlord. Tenant further recognizes that it is because of such
qualifications and identity that Landlord is entering into this Lease with Tenant and, in so doing,
is further willing to accept and rely on the obligations of Tenant for the faithful performance of
all undertakings and covenants by it to be performed.
Section 10.2 Restrictions on Transfer of the Tenant's Interest in the Premises.
(a) No Transfer of Tenant's Interest in the Premises. Tenant shall not sell,
transfer, conveyor assign (each, a "Transfer") Tenant's Interest in the Premises, other than a
Foreclosure Transfer, without the prior written consent of Landlord and to a transferee capable of
fulfilling all of Tenant's obligations under the Lease, and Tenant shall not be released from its
obligations hereunder unless the Transferee shall assume in writing all such Lease obligations.
Tenant shall give Landlord thirty (30) days' prior written notice of any such Transfer and
assumption, if applicable, along with such information pertinent to the foregoing as may be
reasonably requested by Landlord. No Transfer shall modify or reduce Tenant's obligations
under this Lease or modify or increase Landlord's obligation under this Lease. Any consent to a
Transfer shall not waive any of Landlord's rights to consent to a subsequent Transfer. Any
Transfer made in violation of the terms hereof shall be null and void and of no force and effect.
(b) Foreclosure Transfer. A Foreclosure Transfer pursuant to the provisions
of Article 11 shall not require the consent of the Landlord. Following a Foreclosure Transfer, a
Recognized Mortgagee shall not be liable under this Lease with respect to any matter arising
prior to its actual ownership of the Premises, except:
(i) unpaid Rent and/or Impositions (but only to the extent the
Recognized Mortgagee is obligated to pay such unpaid Rent and/or
Impositions pursuant to Article 11), other monetary obligations of
Tenant under this Lease, including defaults which can be cured by
the payment of money and are in a liquidated amount, non-
monetary defaults which a Recognized Mortgagee can cure or
remedy without title and possession, (all such defaults to include
any then existing event, matter or occurrence which, with the
passage of time or the happening of future events, matters or
occurrences, becomes an Event of Default); and
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(ii) as provided in Article 11 (it being understood, nevertheless, that
the limitation of any such liability of Recognized Mortgagee shall
not impair, impede or prejudice any other right or remedy available
to Landlord for default by Tenant and/or the then current
transferee).
(c) Mortgagee Liabilitv After Foreclosure Transfer. A Recognized
Mortgagee shall be liable under the Lease only during its period of ownership, but shall not be
liable under this Lease with respect to any matter arising after it transfers Tenant's Interest in the
Premises to a third party pursuant to a transfer permitted under Article 10, as more particularly
described below.
(d) Conditions of Consent to Transfer. Following a Recognized Mortgagee's
obtaining title to the Premises pursuant to a Foreclosure Transfer, a Recognized Mortgagee may
not Transfer the Premises to a third party ("Transferee") without the prior written consent of
Landlord, which consent shall be given, if at all, at Landlord's sole and absolute discretion.
(i) In the event the proposed Transferee is a for-profit commercial
entity which intends to use the Premises for uses other than those permitted by Article 6 herein,
Landlord may impose other reasonable restrictions on such Transfer, and also reserves the right
to: (A) renegotiate the amount of Base Rent to be paid under the Lease to the Fair Market Rent;
and (B) further condition its consent by requiring Transferee to pay any and all expenses or other
charges and costs that, in the opinion of Bond Counsel, are necessary to preserve the tax exempt
status of the Bonds including, without limitation, retirement of all or a portion of the Bonds.
Section 10.3 Landlord's and Tenant's Agreement.
Both Parties recognize that each has entered into this Lease in order to provide an
educational and cultural benefit to the community. Tenant recognizes Landlord's desire that the
Land continue to be utilized for the public purpose for which this Lease was granted and Tenant
shall use its best efforts to continue to utilize the Land in accordance with the intent of this
Lease. Landlord recognizes Tenant's commitment to developing the Premises and further
recognizes the financial cost to Tenant in constructing the Premises on Landlord's Land.
However, both parties recognize that, notwithstanding the best efforts of Tenant, there is a
possibility that an Event of Default could occur under this Lease.
Section 10.4 The Qualified Replacement Tenant.
Notwithstanding anything to the contrary contained in this Lease, in exerclSlng its
remedies upon an Event of Default under Section 22.1 (b), Landlord may begin searching for an
appropriate entity to lease and utilize the Premises (the "Qualified Replacement Tenant").
Landlord shall, however, not enter into any agreement with a Qualified Replacement Tenant or
in any other manner encumber the improvements, the leasehold estate or enter into a substitute
42
lease agreement for a period of nine (9) months after the occurrence of the Event of Default (the
"Search Period"). During the Search Period, Tenant shall be permitted to solicit offers from
Qualified Replacement Tenants. Each of Landlord and Tenant shall negotiate with prospective
Qualified Replacement Tenants during the Search Period in order to produce the best offer for a
new lease with Landlord (the "Best Offer"). Any and all offers shall consist of a list of the
qualifications of the Qualified Replacement Tenant to utilize the Premises in a manner that
would meet the requirements of Section 1 0.2( d)(i) or (ii). In addition, the offer shall include the
amount such Qualified Replacement Tenant would agree to pay for the Building.
Section 10.5 Dispute.
In the event Landlord and Tenant are unable to agree upon which offer is the Best Offer,
such dispute shall be handled by arbitration in the manner provided in Section 22.11 below.
Section 10.6 Subleasing.
During the Lease Term or Extended Term, if applicable, Tenant shall not have the right
to enter into one or more Subleases having a term of more than one (1) year, including renewal
terms, without the prior written consent of the Landlord, which consent shall not be unreasonably
withheld or delayed. Tenant shall also not have the right to enter into Subleases having a term of
less than one (1) year, including renewal terms without the prior written consent of the Landlord,
which consent shall be given, if at all, at Landlord's sole and absolute discretion.
Notwithstanding the above, Landlord's consent shall not be required for Subleases having a term
of thirty (30) days or less, and which are in the nature oflicense agreements for temporary use of
the Premises or a part thereof. As to each Sublease: (i) the terms and conditions of each
Sublease shall be subject to and subordinate to this Lease; (ii) the use of the subleased or
licensed premises shall be solely for the Uses permitted under Section 6.1; (iii) the term of the
Sublease shall be for a period of time less than the Lease Term; and (iv) at the commencement of
each Lease Year, Tenant shall deliver to landlord a current list of all Subtenants under Subleases.
If requested by Landlord, Tenant shall provide to Landlord copies of all Subleases and
amendments thereto.
Article 11- Mortgages
Section 11.1 Right to Mortgage.
(a) Except as otherwise expressly provided for in this Lease, Tenant shall not
mortgage, pledge, hypothecate or otherwise encumber Tenant's Interest in the Premises.
(b) Tenant shall have the right to mortgage, pledge, hypothecate or otherwise
encumber Tenant's Interest in the Premises to secure Debt by one or more Recognized
Mortgage(s) without Landlord's approval.
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Section 11.2 Effect of Mortgages.
(a) Landlord's Interest. No Mortgage shall extend to or be a lien or
encumbrance upon, Landlord's Interest in the Premises or any part thereof or any appurtenant
rights thereto which have not been granted to Tenant under this Lease. A Mortgage may extend
to and be a lien or encumbrance upon the entire Tenant's Interest in the Premises.
(b) Mortgagee's Rights Not Greater than Tenant's. The execution and
delivery of a Recognized Mortgage shall not give or be deemed to give a Recognized Mortgagee
any greater rights against Landlord than those granted to Tenant hereunder, except as otherwise
expressly provided in this Lease.
Section 11.3 Notice and Right to Cure Tenant Defaults.
(a) Notice to Recognized Mortgagee. Landlord shall give to each Recognized
Mortgagee, in the manner provided by the provisions of Section 10.3 and Section 2.3 at such
address as such Recognized Mortgagee may confirm to Landlord, a copy of each notice of
Default at the same time as it gives notice of Default to Tenant, and no such notice of Default
shall be deemed effective with respect to any Recognized Mortgagee unless and until a copy
thereof shall have been so received by or refused by such Recognized Mortgagee, as applicable.
Landlord shall also give each Recognized Mortgagee notice ("Notice of Failure to Cure") in
the event Tenant fails to cure a Default within the period, if any, provided in this Lease for such
cure, promptly following the expiration of such period (i.e., an Event of Default). Only Events
of Default expressly described in the Notice of Failure to Cure may give rise to a termination of
this Lease by Landlord pursuant to its termination rights hereunder.
(b) Right and Time to Cure. The Recognized Mortgagee shall have a period
of sixty (60) days after receipt of the Notice of Failure to Cure, in the case of any Event of
Default, to (1) cure the Event of Default referred to in the Notice of Failure to Cure, or (2) cause
it to be cured, subject to the provisions of Section 22.l(b). Nothing contained herein shall be
construed as imposing any obligation upon any Mortgagee to so perform or comply on behalf of
Tenant. Anything contained in this Lease to the contrary notwithstanding, Landlord shall have
no right to terminate this Lease prior to the delivery of a Notice of Failure to Cure or following
the delivery of a Notice of Failure to Cure if, within sixty (60) days after receipt of Landlord's
Notice of Failure to Cure, any Recognized Mortgagee shall:
(i) notify Landlord of such Recognized Mortgagee's desire to cure the
matter described in such Notice of Failure to Cure;
(ii) payor cause to be paid all Rent and/or Impositions then due and in
arrears as specified in the Default Notice from Landlord to such
Recognized Mortgagee (provided, however, in the event that the
Recognized Mortgagee (A) provides notice to Landlord pursuant
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hereto, and (B) files a foreclosure action within sixty (60) days of
its receipt of the Notice of Failure to Cure and diligently
prosecutes such foreclosure, the Recognized Mortgagee's curative
obligations with regard to an Event of Default as provided in this
Section l1.3(b)(ii) shall be excused, subject to the provisions of
Section l1.3(b)(iv), which shall be applicable during the pendency
of a foreclosure);
(iii) cure all Defaults by Tenant in the observance or performance of
any term, covenant or condition of this Lease on Tenant's part to be
observed or performed (other than the payment of Rent and/or
Impositions), or if any such Default is of such a nature that it
cannot reasonably be remedied within such sixty (60) day period
(but is otherwise reasonably susceptible to cure), Recognized
Mortgagee shall, (i) within sixty (60) days after the giving of such
Notice of Failure to Cure, advise Landlord of such Recognized
Mortgagee's intention to institute all steps (and from time to time,
as reasonably requested by Landlord, such Recognized Mortgagee
shall advise Landlord of the steps being taken) necessary to
remedy such Default (which such steps shall be reasonably
designed to effectuate the cure of such Default in a commercially
reasonable manner), and (ii) thereafter diligently prosecute to
completion all such steps necessary to remedy the same, it being
acknowledged by Landlord that, if possession or control of the
Premises is required to effect such cure, the diligent prosecution of
a foreclosure of a Recognized Mortgage, and the continuing efforts
by such Recognized Mortgagee to effect such cure following
completion of such foreclosure, shall constitute a part of the steps
necessary to remedy such Default. Nothing in this Lease shall
require a Recognized Mortgagee or its Designee or Foreclosure
Transferee to cure any default of Tenant not reasonably susceptible
of being cured by such Person; and
(iv) if such Recognized Mortgagee files a foreclosure, during the
pendency of such foreclosure, pays or causes to be paid all current
monthly Rent and/or Impositions due beginning upon the filing of
such foreclosure.
Notwithstanding the foregoing, following the delivery of a Notice of Failure to Cure, within five
(5) Business Days following the written request of any Recognized Mortgagee, Landlord shall
deliver to such Recognized Mortgagee a statement certifying the aggregate amount of Rent
and/or Impositions then due and in arrears hereunder, but no such request shall increase any of
the time periods provided for in this Section 11.3(b).
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(c) Acceptance of Mortgagee's Performance. Landlord shall accept
performance by a Mortgagee of any covenant, condition or agreement on Tenant's part to be
performed hereunder with the same force and effect as though performed by Tenant.
(d) Other Rights of Mortgagees. Notwithstanding any other provision of
this Lease, no payment made to Landlord by any Mortgagee shall constitute the Mortgagee's
agreement that such payment was, in fact, due under the terms of this Lease.
(e) Landlord's Self-Help Rights. Notwithstanding the foregoing provisions
of this Section 11.3, if a Recognized Mortgagee fails (for any reason) to cure any Default by
Tenant described in Section l1.3(b)(iii) within sixty (60) days following receipt of the Notice of
Failure to Cure regarding such Default, then Landlord may upon notice, but shall be under no
obligation to, perform the obligation of Tenant, the breach of which gave rise to such Default,
without waiving or releasing Tenant from its obligations with respect to such Default. Tenant
hereby grants Landlord access to the Premises in order to perform any such obligation. Any
amount paid by Landlord in performing Tenant's obligations as provided herein, including all
costs and expenses incurred by Landlord in connection therewith, shall constitute Rent hereunder
and shall be reimbursed to Landlord within thirty (30) days following Landlord's demand
therefore.
(f) Acceptance of Landlord's Performance. Tenant shall cause all
Mortgages to contain a provision requiring that all Mortgagees shall accept performance by
Landlord, within the applicable grace periods available to Tenant, to cure defaults under any
covenant, condition or agreement on Tenant's part to be performed under such Mortgages with
the same force and effect as though performed by Tenant.
Section 11.4 Recognized Mortgagee as Tenant Under this Lease.
If a Recognized Mortgagee becomes Tenant under this Lease, then, in that event, such
Recognized Mortgagee shall, during the period of its tenancy:
(a) pay all current Rent and/or Impositions commencing as of the date such
Recognized Mortgagee becomes Tenant (the "Reinstatement Date");
(b) comply with all the covenants and conditions of this Lease; and
(c) pay all Impositions as ofthe Reinstatement Date.
Section 11.5 Execution of New Tenant's Documents.
(a) Notice of Termination. If this Lease is terminated by reason of an Event
of Default, or by reason of the rejection thereof by or on behalf of Tenant in bankruptcy or for
any other reason, Landlord shall give prompt notice thereof to each Recognized Mortgagee.
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(b) Request for and Execution of New Tenant's Documents. If, within
sixty (60) days of receipt of the notice referred to in Section l1.5(a), the Recognized Mortgagee
shall request, in writing, a new lease (the "New Tenant's Documents") with the Recognized
Mortgagee or Foreclosure Transferee identified in such request, then, subject to the provisions of
Sections l1.5(c) and 11.6, within ninety (90) days after Landlord shall have received such
request, Landlord shall execute and deliver New Tenant's Documents covering the remainder of
the Term to the Recognized Mortgagee or Foreclosure Transferee that has satisfied the
requirements set forth in Sections 10.3 and 10.4, and such Recognized Mortgagee (or
Foreclosure Transferee) shall execute and deliver such New Tenant's Documents to Landlord
within thirty (30) days following receipt thereof by such Recognized Mortgagee (or Foreclosure
Transferee). Such New Tenant's Documents shall be effective upon the execution thereof by
both Landlord and such Recognized Mortgagee or Foreclosure Transferee. The New Tenant's
Documents shall contain all of the covenants, conditions, limitations and agreements, and all of
Tenant's rights and remedies, contained in this Lease (including, without limitation, a
conveyance by Landlord of all then-existing Tenant's Improvements); provided, however,
Landlord shall not be deemed to have represented or covenanted that such New Tenant's
Documents are superior to claims of Tenant, its other creditors or judicially appointed receiver or
trustee for Tenant; provided further, however, such New Tenant's Documents will have the same
priority over any encumbrances on the estate of Landlord which Tenant has or had by virtue of
this Lease and the Recognized Mortgagee (or Foreclosure Transferee) will not have any
obligation to perform any acts under this Lease which shall at such time have already been
performed by Tenant. Simultaneously with the making of such New Tenant's Documents, the
party obtaining such New Tenant's Documents and all other parties junior in priority of interest
in the Premises shall, at the option the Recognized Mortgagee or Foreclosure Transferee,
execute, acknowledge and deliver such new instruments, including new mortgages and new
Subleases, as applicable, and shall make such payments and adjustments among themselves, as
shall be necessary and proper for the purposes of restoring to each of such parties as nearly as
reasonably possible, the respective interest and status with respect to the Premises which was
possessed by the respective parties prior to the termination of this Lease as aforesaid.
Concurrently with the execution and delivery of such New Tenant's Documents,
Landlord shall assign to the tenant, declarant or co-declarant (the "New Tenant") named therein
all of its right, title and interest in and to moneys (including, without limitation, (i) subrents
collected which have not been applied or are not being held for application to Rent and/or
Impositions and the costs incurred by Landlord to operate, maintain and repair the Premises, and
(ii) insurance and condemnation proceeds which have not been applied or are not being held for
application to the costs incurred by Landlord to restore the Premises), if any, then held by or
payable to Landlord which Tenant would have been entitled to receive but for termination of this
Lease or Landlord's exercise of its rights upon the occurrence of an Event of Default; provided,
however, that Landlord shall not be required to assign such moneys to such New Tenant unless
and until such New Tenant shall have cured all Events of Default that existed under this Lease
prior to the execution of such New Tenant's Documents to the extent such Events of Default are
reasonably susceptible of cure by such New Tenant.
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Upon the execution and delivery of New Tenant's Documents under this Section 11.5(b),
all Subleases which theretofore may have been assigned to Landlord shall be assigned and
transferred, without recourse, representation or warranty, by Landlord to the New Tenant named
in such New Tenant's Documents. Between the date of termination of this Lease and the date of
execution and delivery of the New Tenant's Documents (but not later than thirty (30) days
following receipt of such New Tenant's Documents by such Recognized Mortgagee, Landlord
shall not enter into any new Subleases, cancel or modify any then existing Subleases or accept
any cancellation, termination or surrender thereof (unless such termination shall be effected as a
matter of law on the termination of this Lease) without the written consent of a Recognized
Mortgagee, except as permitted in the Subleases.
For so long as the Recognized Mortgagee (or Foreclosure Transferee) shall have the right
to enter into a new ground lease with Landlord pursuant to this Section l1.5(b), Landlord shall
not enter into a new lease of the Land with any Person other than the Recognized Mortgagee (or
Foreclosure Transferee), without the prior written consent of the Recognized Mortgagee. The
provisions of Section 11.5(b) shall survive the termination, rejection or disaffirmance of this
Lease and shall continue in full force and effect thereafter to the same extent as if Section 11.5(b)
were a separate and independent contract made by Landlord, Tenant and any Recognized
Mortgagee and, from the effective date of such termination, rejection or disaffirmance of this
Lease to the date of execution and delivery of such new ground lease if such Recognized
Mortgagee (or Foreclosure Transferee) has requested the New Tenant's Documents within sixty
(60) days after receipt ofthe aforesaid notice from Landlord, the Recognized Mortgagee may use
and enjoy the leasehold estate created by this Lease without hindrance by Landlord. The
aforesaid agreement of Landlord to enter into a new ground lease with the Recognized
Mortgagee shall be deemed a separate agreement between Landlord and such Recognized
Mortgagee, separate and apart from this Lease as well as a part of this Lease, and shall be
unaffected by the rejection ofthis Lease in any bankruptcy proceeding by any party.
(c) Conditions Precedent to Landlord's Execution of New Tenant's
Documents. The provisions of Section 11.5(b) notwithstanding, Landlord shall not be obligated
to enter into New Tenant's Documents with a Recognized Mortgagee or Foreclosure Transferee
unless:
(i) the Recognized Mortgagee or Foreclosure Transferee shall pay to
Landlord, concurrently with the execution and delivery of the New Tenant's Documents, all
unpaid Rent and/or Impositions due under this Lease (subject, however, to Sections _ and
_ as to Impositions) up to and including the date of the commencement of the term of the
New Tenant's Documents, and all reasonable out-of-pocket expenses, as evidenced by receipted
bills therefor, including, without limitation, reasonable attorneys' fees and disbursements and
court costs, incurred in connection with the Default or Event of Default, the termination of this
Lease and the preparation of such New Tenant's Documents, less the net revenue ofthe Premises
actually received by Landlord from the date of termination of this Lease to the date of execution
of the New Tenant's Documents, with any excess of the total of such sums and expenses to be
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applied by Landlord to the payment of Rent and Impositions due under such New Tenant's
Documents; and
(ii) m the case of a Default or Event of Default, the Recognized
Mortgagee or Foreclosure Transferee shall promptly after execution of the New Tenant's
Documents, satisfy all obligations and cure all Events of Defaults existing or continuing under
this Lease at the time of its termination (as though the Term had not been terminated) and which
are reasonably susceptible to cure by such Recognized Mortgagee (or Foreclosure Transferee).
(d) No Waiver of Default. The execution of New Tenant's Documents shall
not constitute a waiver of any Default existing or continuing immediately before termination of
this Lease and, except as to a Default which is not reasonably susceptible of being cured by the
Recognized Mortgagee or Foreclosure Transferee (e.g., the insolvency of Tenant), the New
Tenant under the New Tenant's Documents shall cure, within the applicable periods in such New
Tenant's Documents (which periods shall be identical to the periods set forth in Section 2.2), all
Defaults existing under this Lease immediately before its termination. Nothing in this Lease shall
require a Recognized Mortgagee or Foreclosure Transferee, as a condition to the exercise of its
right to enter into New Tenant's Documents, to cure any default of Tenant not reasonably
susceptible of being cured by such Person (e.g., a bankruptcy-related default).
(e) Payments under Lease. If the Recognized Mortgagee or Foreclosure
Transferee shall enter into New Tenant's Documents pursuant to this Article and if, upon such
termination of this Lease, Tenant, but for such termination, would have been entitled to receive
any amount of money pursuant to the provisions of this Lease, then Landlord agrees that, subject
to any rights of setoff Landlord may have, the same shall be paid to the Recognized Mortgagee
or Foreclosure Transferee, as the New Tenant under the New Tenant's Documents, in the same
manner and to the same extent as it would have been paid or apply the same to or for the benefit
of the Recognized Mortgagee or Foreclosure Transferee as if this Lease had not been terminated.
(f) The provisions of this Section 11.5 shall survive the Expiration of the
Term.
Section 11.6 Application of Proceeds from Insurance or Condemnation Awards.
To the extent that this Lease requires that insurance proceeds paid in connection with any
damage or destruction to the Premises, or the proceeds of an award paid in connection with a
taking referred to in Article 9, be applied to restore any portion of the Premises, no Mortgagee
shall have the right to apply the proceeds of insurance or awards toward the payment of the sum
secured by its Mortgage, except for the reasonable costs of collection thereof.
Section 11.7 Appearance at Condemnation Proceedings.
A Recognized Mortgagee shall have the right to appear in any condemnation proceedings
and to participate in any and all hearings, trials and appeals in connection therewith.
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Section 11.8 Rights Limited to Recognized Mortgagees.
The rights granted to a Recognized Mortgagee under the provisions of this Lease shall
not apply in the case of any Mortgagee that is not a Recognized Mortgagee.
Section 11.9 No Surrender or Modification.
Landlord agrees not to accept a voluntary surrender, termination or modification of this
Lease at any time while such Recognized Mortgage(s) shall remain a lien on Tenant's leasehold
estate. It is further understood and agreed that any such Recognized Mortgagee(s) shall not be
bound by any surrender, termination or modification of this Lease unless such surrender,
termination or modification is made with the prior written consent of such Recognized
Mortgagee, and this Lease shall not terminate by merger or otherwise as long as the lien of the
Recognized Mortgage(s) remains undischarged. The foregoing is not meant to and shall not
prohibit a sale of the fee to Tenant so long as no merger of estates shall result therefrom unless
all Recognized Mortgagees are satisfied concurrently therewith. Notwithstanding the foregoing,
Landlord's waiver or postponement of any obligation of Tenant or any remedy Landlord may
have under this Lease shall not constitute a modification for purposes hereof.
Section 11.10 Recognition by Landlord of Recognized Mortgagee Most Senior in Lien.
If there is more than one Recognized Mortgagee, only that Recognized Mortgagee, whose
Recognized Mortgage is most senior in lien shall be recognized as having rights under Sections
11.3, 11.4 or 11.5, unless such first priority Recognized Mortgagee has designated in writing to
Landlord a Recognized Mortgagee whose Mortgage is junior in lien to exercise such right.
Section 11.11 Recognized Mortgagee's Assignment Rights.
(a) Notwithstanding anything contained in Article 10 or elsewhere in this
Lease to the contrary, a Foreclosure Transfer shall not require the consent of Landlord or
constitute a breach of any provision of or a Default under this Lease. Upon any such Foreclosure
Transfer, Landlord shall recognize the Foreclosure Transferee as Tenant hereunder, provided,
however, that such new Tenant shall deliver to Landlord, or shall cause to be delivered to
Landlord, within thirty (30) days after the execution thereof, the appropriate instruments
provided in Section 10.4 (subject to the provisions of Section 1 1.1 1 (b)).
(b) Except as expressly provided otherwise in this Lease, no Mortgagee or
other Foreclosure Transferee shall be liable under this Lease unless and until such time as it
becomes Tenant hereunder, and then only for so long as it remains Tenant hereunder.
Section 11.12 Notices Under a Mortgage.
Tenant shall give to Landlord copies of all notices of default received from a Mortgagee
within ten (10) days after receiving written notice of same from Mortgagee.
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(a) Notices. Tenant shall cause all Mortgages to contain a provision requiring
that all Mortgagees shall send to Landlord, simultaneously with the sending of such default
notices to Tenant, copies of all default notices or other notices relating to the failure of Tenant to
keep any Mortgage in good standing, which notices are sent pursuant to any loan document or
security document to Tenant.
(b) Estoppel Requests. Tenant shall cause all Mortgages to contain a
provision requiring that the Mortgagee shall comply with all reasonable estoppel requests of
Landlord. Landlord shall comply with all reasonable estoppel requests of any Mortgagee.
Article 12- Subordination
Section 12.1 No Subordination of Landlord's Proprietary Interest in Land.
Landlord's proprietary interest in the Land, including, without limitation, Landlord's
interest in the Development Agreement and this Lease, as the same may be modified, amended
or renewed in accordance with the provisions of this Lease, shall not be subject or subordinate to
(a) any Mortgage now or hereafter existing, (b) any other liens or encumbrances hereafter
affecting Tenant's Interest in the Premises and Developer's interest in the Development
Agreement, or (c) any Sublease or any mortgages, liens or encumbrances now or hereafter placed
on any Subtenant's interest in the Premises.
Section 12.2 Tenant's Interest in the Premises Subject to Title Matters.
Tenant's Interest in the Premises, including, without limitation, this Lease and the
leasehold estate of Tenant hereby created and all rights of Tenant hereunder and under the
Development Agreement are and shall be subject to the Permitted Exceptions.
Article 13- Maintenance, Repair and Alterations
Section 13.1 Maintenance Standards.
(a) Tenant shall, at its own cost and expense, take good care of, and keep and
maintain, the Premises in good and safe order and condition, and shall make all repairs therein
and thereon, interior and exterior, structural and nonstructural, ordinary and extraordinary,
foreseen and unforeseen, necessary to keep the Premises in good and safe order and condition, as
other comparable first class projects in similar usage and of similar age are kept (reasonable wear
and tear excepted).
(b) Tenant shall not commit, and shall use all reasonable efforts to prevent,
waste, damage or injury to the Premises.
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(c) All repairs, replacements and renovations made by Tenant shall be
substantially equal in quality and class to the original quality of the Tenant's Improvements
being repaired and shall be made in compliance with the Requirements.
(d) Tenant shall keep reasonably clean and free from dirt, mud, standing
water, rubbish, obstructions and physical encumbrances all areas of the Premises.
(e) Tenant shall dispose of waste from all areas of the Premises in accordance
with Requirements and in a prompt and sanitary manner.
Section 13.2 No Obligation to Repair or to Supply Utilities.
Landlord (in its proprietary capacity only) shall not be required to supply any facilities,
services or utilities whatsoever to the Premises except for Landlord's Infrastructure
Improvements. Landlord shall not have any duty or obligation to make any alteration, change,
improvement, replacement, Restoration or repair with respect to the Premises except for
Landlord's Infrastructure Improvements.
Section 13.3 Maintenance by Landlord.
As an inducement to Tenant to enter into this Lease, Landlord shall maintain the Garage,
in good condition and repair, including the maintenance of all landscaping and other amenities.
Section 13.4 Alterations.
(a) Subject to the terms and conditions of this Article 13 and the other
applicable provisions of this Lease, Tenant may, at any time and from time to time, at its sole
cost and expense, make alterations, additional installations, substitutions, improvements,
renovations or betterments (collectively, "Alterations") in and to the Premises or any portion
thereof provided that:
(i) no Alterations affecting the structural portions, roofs or the
heating, air conditioning, elevator, plumbing, electrical, sanitary,
mechanical or other service or utility systems shall be undertaken
except under the supervision of a licensed architect or licensed
professional engineer;
(ii) the Alterations will not result in a violation of any Requirement or
change the use permitted in Section 6.1 or violate any other
provision of this Lease;
(iii) the outside appearance, character or permitted use of the Premises
shall not be materially adversely affected unless approved pursuant
to the provisions of Section l3.5(d), and the Alterations shall not
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materially (1) weaken or impair the structure, (2) reduce the size of
or (3) lessen the value of the Premises;
(iv) the proper functioning of any of the heating, air conditioning,
elevator, plumbing, electrical, sanitary, mechanical and other
service or utility systems of the Premises shall not be materially
adversely affected;
(v) no Alteration in excess of One Million Dollars ($1,000,000),
adjusted for inflation, shall be undertaken prior to Tenant's
delivering to Landlord, at Tenant's option, either (x) a performance
bond and a labor and materials payment bond (issued by a surety
company reasonably satisfactory to Landlord and licensed to do
business in the State of Florida), each in an amount equal to one
hundred percent (100%) of the estimated cost and otherwise in
form reasonably satisfactory to Landlord, or (y) such other security
for the completion of such Alteration, as may be reasonably
satisfactory to Landlord; provided, however, this Section 13.4 shall
not apply to a Recognized Mortgagee during the period that it is
Tenant under this Lease.
(b) Approvals. Tenant, at its expense, shall obtain all necessary permits and
certificates from Governmental Authorities for the commencement and prosecution of any
Alterations and final approval from Governmental Authorities upon completion, and cause the
Alterations to be performed in compliance with all applicable Requirements and requirements of
Mortgagees and insurers of the Premises, and any Board of Fire Underwriters, Fire Insurance
Rating Organization, or other body having similar functions, and in good and workman-like
manner, using materials and equipment at least equal in quality and class to the original quality
of the installations at the Premises that are being replaced.
(c) Costs of Alterations. The costs of all Alterations shall be borne by
Tenant.
Article 14- Requirements
Section 14.1 Tenant's Obligation to Comply With Requirements.
In connection with any Construction Work, and with the maintenance, management, use
and operation of the Premises and Tenant's performance of its obligations hereunder, Tenant
shall comply promptly with all Requirements, without regard to the nature of the work required
to be done, whether extraordinary or ordinary, and whether requiring the removal of any
encroachment (but Tenant may seek to obtain an easement in order to cure an encroachment, if
permitted by Requirements), or affecting the maintenance, management, use or occupancy of the
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Premises, or involving or requiring any structural changes or additions in or to the Premises and
regardless of whether such changes or additions are required by reason of any particular use to
which the Premises, or any part thereof, may be put. No consent to, approval of or acquiescence
in any plans or actions of Tenant by Landlord, in its proprietary capacity as landlord under this
Lease, or Landlord's designee shall be relied upon or construed as being a determination that
such are in compliance with the Requirements, or, in the case of construction plans, are
structurally sufficient, prudent or in compliance with the Requirements. Failure of this Lease to
address a particular permit, condition, term or restriction shall not relieve Tenant of the necessity
of complying with the law governing such permitting requirements, conditions, terms or
restrictions.
Section 14.2 Landlord's Obligation to Comply With Requirements.
In connection with the performance of Landlord's obligations hereunder, Landlord shall
comply promptly with all Requirements.
Article 15- Discharge of Liens
Section 15.1 Creation of Liens.
(a) Tenant shall not create, cause to be created, or suffer or permit to exist (i)
any lien, encumbrance or charge upon this Lease, the leasehold estate created hereby, the income
therefrom or the Premises or any part thereof or appurtenance thereto, which is not removed
within the time period required pursuant to Section 15.2; (ii) any lien, encumbrance or charge
upon any assets of, or funds appropriated to, Landlord; or (iii) any other matter or thing whereby
the estate, rights or interest of Landlord in and to the Premises or any part thereof or
appurtenance thereto might be materially impaired. Notwithstanding the above, Tenant shall
have the right to execute Mortgages and other loan documents, Subleases and other instruments
(including, without limitation, equipment leases) as provided by, and in accordance with, the
provisions of this Lease.
(b) Landlord shall not create, cause to be created, or suffer or permit to exist
(i) any lien, encumbrance or charge upon this Lease, the leasehold estate created hereby, the
income therefrom (except as otherwise set permitted in Article 11) or the Premises or any part
thereof or appurtenance thereto, which is not removed within the time period required pursuant
to Section 15.2, (ii) any lien, encumbrance or charge upon any assets of, or funds appropriated
to, Tenant, or (iii) any other matter or thing whereby the estate, rights or interest of Ten ant in and
to the Premises or any part thereof or appurtenance thereto might be materially impaired.
Section 15.2 Discharge of Liens.
(a) If any mechanic's, laborer's, vendor's, materialman's or similar statutory
lien (including tax liens, provided the underlying tax is an obligation of Tenant by law or by a
provision of this Lease) is filed against the Premises or any part thereof, or if any public
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improvement lien created, or caused or suffered to be created by Tenant shall be filed against any
assets of, or funds appropriated to, Tenant or Landlord, Tenant shall, within thirty (30) days after
Tenant receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or
similar statutory lien or public improvement lien, cause it to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or otherwise. However, Tenant shall not
be required to discharge any such lien if Tenant shall have (i) furnished Landlord with, at
Tenant's option, a cash deposit, bond, letter of credit from an Institutional Lender (in form
reasonably satisfactory to Landlord), or other security (such as a personal guaranty or title
company indemnity) reasonably satisfactory to Landlord, in an amount sufficient to pay the lien
with interest and penalties; and (ii) brought an appropriate proceeding to discharge such lien and
is prosecuting such proceeding with diligence and continuity; except that if, despite Tenant's
efforts to seek discharge of the lien, Landlord reasonably believes that a court judgment or order
foreclosing such lien is about to be entered or granted and so notifies Tenant, Tenant shall,
within ten (10) days after notice to such effect from Landlord (but not later than three (3)
business days prior to the entry or granting of such judgment or order of foreclosure), cause such
lien to be discharged of record or Landlord may thereafter discharge the lien in accordance with
Section 21.2 and look to the security furnished by Tenant for reimbursement of its cost in doing
so. Notwithstanding anything to the contrary contained in this Section 15.2, in the case of a
public improvement lien which provides for installment payments as a means of satisfying such
lien, Tenant shall be required only to pay, on a timely basis, all installments when due.
(b) Notwithstanding anything to the contrary contained in Section 15.2(a), if
any mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax liens,
provided the underlying tax is an obligation of Tenant by law or by a provision of this Lease) is
filed against the Premises or any part thereof or Tenant's or Landlord's respective interests
therein as a result of any action of Landlord, its officers, employees, representatives or agents,
Landlord shall, within thirty (30) days after Landlord receives notice of the filing of such
mechanic's, laborer's, vendor's, materialman's or similar statutory lien, cause it to be discharged
of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise.
However, Landlord shall not be required to discharge any such lien if Landlord shall have (i)
furnished Landlord with, at Tenant's option, a cash deposit, bond, letter of credit from an
Institutional Lender (in form reasonably satisfactory to Landlord), or other security (such as a
personal guaranty or title company indemnity) reasonably satisfactory to Landlord, in an amount
sufficient to pay the lien with interest and penalties; and (ii) brought an appropriate proceeding to
discharge such lien and is prosecuting such proceeding with diligence and continuity; except that
if, despite Landlord's efforts to seek discharge of the lien, Tenant reasonably believes that a court
judgment or order foreclosing such lien is about to be entered or granted and so notifies
Landlord, Landlord shall, within ten (10) days of notice to such effect from Tenant (but not later
than three (3) business days prior to the entry or granting of such judgment or order of
foreclosure), cause such lien to be discharged of record or Tenant may thereafter discharge the
lien in accordance with Section 21.2(a) and look to the security furnished by Landlord for
reimbursement of its cost in so doing.
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Section 15.3 No Authority to Contract in Name of Landlord.
Nothing contained in this Article shall be deemed or construed to constitute the consent
or request of Landlord, express or implied, by implication or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement of, alteration to, or repair of, the Premises or any part
thereof, nor as giving Tenant any right, power or authority to contract for, or permit the
rendering of, any services or the furnishing of materials that would give rise to the filing of any
lien, mortgage or other encumbrance against Landlord's interest in the Land or any part thereof
or against assets of Landlord, or Landlord's interest in any Rent and/or Impositions. Notice is
hereby given, and Tenant shall cause all Construction Agreements to provide, that to the extent
enforceable under Florida law, Landlord shall not be liable for any work performed or to be
performed at the Premises or any part thereof for Tenant or any Subtenant or for any materials
furnished or to be furnished to the Premises or any part thereof for any of the foregoing, and no
mechanic's, laborer's, vendor's, materialman's or other similar statutory lien for such work or
materials shall attach to or affect Landlord's interest in the Land or any part thereof or any assets
of Landlord, or Landlord's interest in any Rent and/or Impositions. The foregoing shall not
require Tenant to request advance waivers oflien from contractors or subcontractors.
Article 16- Representations
Section 16.1 No Brokers.
Each of Landlord and Tenant represents to the other that it has not dealt with any broker,
finder or like entity in connection with this Lease or the transactions contemplated hereby, and
each party shall indemnify the other against any claim for brokerage commissions, fees or other
compensation by any Person alleging to have acted for or dealt with the indemnifying party in
connection with this Lease or the transactions contemplated hereby.
Section 16.2 Limited Representations by Landlord.
(a) Landlord makes the following representations, covenants and warranties which
shall survive the execution of this Lease and the taking of possession of the Property by the
Tenant:
(i) The Landlord does not know of any latent or hidden defects affecting the
Land or the uses contemplated by this Lease;
(ii) Landlord has taken all requisite actions to make this Agreement binding
upon the Landlord; the Landlord is the fee owner ofthe Land and the Garage Property, and is the
sole owner of and has good right, title and authority to convey and transfer all property, rights
and benefits which are the subject matter of this Agreement, free and clear of all liens and
encumbrances except the Permitted Exceptions; and it has no knowledge of any other liens or
claims on or affecting the Land or the Garage Property;
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(iii) No party except Tenant and Landlord (subject to the terms of this Lease)
shall, on the Possession Date, be in or have any right to possession of the Land or the Garage
Property;
(iv) Landlord has no knowledge of any suit, action, claim, audit, arbitration,
or legal, administrative, judicial or other proceeding, (including, without limitation, any of the
foregoing relating to violations of any Requirements, of any governmental authority having
jurisdiction of the Land or the Garage Property), litigation, investigation or proceeding pending,
or, to the knowledge or belief of Landlord, threatened, which relates to, affects, or involves the
Land or the Garage Property, or which would impair or otherwise adversely affect Landlord's
ability to perform its obligations under this Lease, which would affect the Land; or which is or
could become a lien upon the Land;
(v) As of the Lease Commencement Date, the Land has been exempt from all
ad valorem real property taxes and therefore no tax is due for the year 2002 and all prior years;
(vi) There is, and during the Term, Landlord shall continue to provide
perpetual legal and physical ingress and egress to the Land from a paved public street for
vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic.
(vii) All of the representations and warranties of Landlord contained in this
Lease are true as of the date hereof and shall continue to be true as of the Commencement Date.
Should any of the representations and warranties prove to be incorrect, it shall be Landlord's
obligation to cure forthwith those warranties and representations which are set forth herein at
Landlord's expense.
Section 16.3 Tenant's Representations.
Tenant acknowledges, represents and confirms that it or its authorized representatives
shall visit the Land and become fully familiar with the physical condition thereof (including but
not limited to subsurface conditions) and title matters affecting the Land. Tenant accepts the
Land in existing AS IS condition and state of repair and Tenant confirms that, except for the
representations expressly set forth in this Lease, (i) no representations, statements, or warranties,
express or implied, have been made by, or on behalf of, Landlord with respect to the Land or the
transactions contemplated by this Lease, the status of title thereto (except as set forth in Exhibit
I), the physical condition thereof, the zoning, wetlands or other laws, regulations, rules and
orders applicable thereto or the use that may be made of the Land, or the presence or absence of
"hazardous substances" (as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 USCA ~ 9601 et seq.) on or under the
Land, (ii) Tenant has relied on no such representations, statements or warranties, and (iii)
Landlord shall not be liable to Tenant, in any event whatsoever, to correct any latent or patent
defects in the Land, except as otherwise set forth herein.
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Article 17 - Limited Liability for Injury or Damage
Section 17.1 Indemnification of Landlord.
The Landlord Indemnified Parties shall not be liable to any Tenant Indemnified Party for,
and Tenant shall indemnify and hold Landlord Indemnified Parties harmless from and against,
any loss, cost, liability, claim, damage, expense (including, without limitation, reasonable
attorneys' fees and disbursements), penalty or fine incurred in connection with or arising from
any injury (whether physical (including, without limitation, death), economic or otherwise) to
Tenant or to any other Person in, about or concerning the Premises or any damage to, or loss (by
theft or otherwise) of, any of Tenant's property or of the property of any other Person in, about or
concerning the Premises, irrespective of the cause of injury, damage or loss (including, without
limitation, the acts or negligence of any tenant or occupant of the Premises or of any owners or
occupants of adjacent or neighboring property or caused by any Construction Work or by
operations in construction of any private, public or quasi-public work) or any latent or patent
defects in the Premises, except to the extent any of the foregoing is due to the gross negligence
or willful misconduct of any Landlord Indemnified Party. The Landlord Indemnified Parties
shall not be liable, to the extent of insurance proceeds paid by insurance carriers under Tenant's
insurance policies, for any loss or damage to any Person or property even if due to the gross
negligence or willful misconduct of any Landlord Indemnified Party and, to that extent, Tenant
relieves Landlord Indemnified Parties from such liability. Without limiting the generality of the
foregoing, except to the extent caused by the gross negligence or willful misconduct of any of
Landlord Indemnified Parties (and then only in such Landlord Indemnified Party's proprietary
capacity as opposed to its governmental capacity), Landlord Indemnified Parties shall not be
liable for (i) any failure of water supply, gas or electric current, (ii) any injury or damage to
person or property resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado, act
of God, act of war, act of terrorism, enemy action, flood, wind or similar storms or disturbances,
water, rain or ice, 'or (iii) leakage of gasoline or oil from pipes, appliances, sewer or plumbing
works.
Section 17.2 Landlord's Exculpation.
(a) Except for conversion, fraud or willful misconduct (and then only to the
extent such party acted in its proprietary capacity as opposed to its governmental capacity), none
of the Landlord Indemnified Parties shall have any liability (personal or otherwise) hereunder,
and except for Landlord's Interest in the Premises (to the extent permitted by applicable
Requirements), no property or assets of the Landlord Indemnified Parties shall be subject to
enforcement procedures for the satisfaction of Tenant's remedies hereunder or any other liability
of the Landlord Indemnified Parties arising from or in connection with this Lease or the
Premises. Nothing contained herein shall be deemed a waiver of any equitable remedies
available to Tenant.
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(b) Nothing contained in this Section 17.2 or elsewhere in this Lease is in any
way intended to be a waiver of the limitation placed upon Landlord's liability as set forth in
Section 768.28, Fla. Stat., or of any other constitutional, statutory, common law or other
protections afforded to public bodies or governments.
Section 17.3 Notice ofInjury or Damage.
Tenant shall notify Landlord within thirty (30) days of any occurrence at the Premises of
which Tenant has notice and which Tenant believes could give rise to a claim of One Hundred
Thousand Dollars ($100,000.00), adjusted for inflation, or more, whether or not any claim has
been made, complaint filed or suit commenced; however, Tenant's failure to so notify Landlord
shall not constitute or result in a breach or default of any of the terms or conditions of this Lease
or result in a loss of any benefit or right granted to Tenant under this Lease.
Section 17.4 Tenant's Exculpation.
Notwithstanding anything to the contrary in this Lease, Landlord's right to terminate this
Lease and force Tenant to surrender title to and possession of the Improvements to Landlord
shall not be subject to the limitation of liability contained in this Section 17.4. Other than
Tenant's Interest in the Premises, no other property or assets of Tenant shall be subject to levy of
execution or enforcement procedure for the satisfaction of Landlord's remedies hereunder or any
other liability of Tenant arising from or in connection with this Lease or the Premises. Without
limiting the preceding sentence, if, and only if, a Tenant Indemnified Party other than Tenant
engages in conversion, fraud or willful misconduct, then such Tenant Indemnified Party shall
have personal liability hereunder and the property and assets of such Tenant Indemnified Party
shall be subject to levy of execution or enforcement procedure for the satisfaction of Landlord's
remedies hereunder with respect to such conversion, fraud or willful misconduct. Nothing
contained herein shall be deemed a waiver of any equitable remedies available to Landlord.
Section 17.5 No Punitive Damages.
Neither Landlord nor Tenant shall be liable to the other for any punitive damages in
connection with this Lease and Landlord and Tenant agree not to seek punitive damages from
each other in connection with any lawsuit or other claim relating to this Lease.
Section 17.6 Survival.
The provisions ofthis Article 17 shall survive the Expiration of the Term.
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Article 18- Indemnification
Section 18.1 Indemnification of Landlord.
(a) Tenant shall indemnify and hold Landlord Indemnified Parties harmless
from all loss, cost, liability, claim, damage and expense (including, without limitation,
reasonable attorneys' fees and disbursements), penalties and fines, incurred in connection with
claims by a Person against an Landlord Indemnified Party arising from (a) the use or occupancy
or manner of use or occupancy of the Premises by Tenant or any Person claiming through or
under Tenant, or (b) any acts, omissions or negligence of Tenant or any Person claiming through
or under Tenant, or of the contractors, agents, servants, employees, guests, invitees or licensees
of Tenant or any Person claiming through or under such Person, in each case to the extent in,
about or concerning the Premises either during or after the expiration of, the Term, including,
without limitation, any acts, omissions or negligence in connection with any Construction Work
or in the making or performing of any repairs, restoration, alterations or improvements, except to
the extent any of the foregoing is caused by the gross negligence or willful misconduct of any of
the Landlord Indemnified Parties.
(b) In the event that any suit, action or proceeding is brought against Landlord
to compel disclosure of any document described in Article 28, whether such suit, action or
proceeding is brought under Chapter 119, Florida Statutes or any other provision of law,.
Landlord shall notify Tenant of any such public records request but failure to give such notice
shall not impose any liability on Landlord. Notwithstanding the foregoing, in the event that
Landlord receives a proper notice under Chapter 119, Florida Statutes, as amended, to produce a
document, and Landlord has such document in its possession and Landlord fails to produce such
document due to Landlord's own negligence, malfeasance or misfeasance, Tenant shall not be
liable for any loss, claim, damage, penalty or fine.
Section 18.2 Contractual Liability.
(a) The obligations of Tenant under this Article 18 or Article 17 shall not be
affected in any way by the absence or presence of insurance coverage (or any limitation thereon,
including any statutory limitations with respect to Workers' Compensation insurance), or by the
failure or refusal of any insurance carrier to perform an obligation on its part under insurance
policies affecting the Premises.
(b) The obligations of Landlord under this Article 18 or Article 17 shall not be
affected in any way by the absence or presence of insurance coverage, or by the failure or refusal
of any insurance carrier to perform an obligation on its part under insurance policies affecting the
Premises.
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Section 18.3 Notification and Payment.
Each Landlord Indemnified Party shall promptly notify Tenant of the imposition of,
incurrence by or assertion against such Landlord Indemnified Party of any cost or expense as to
which Tenant has agreed to indemnify such Landlord Indemnified Party pursuant to the
provisions of this Article 18. Tenant agrees to pay such Landlord Indemnified Party, as Rental
hereunder, all amounts due under this Article 18 within sixty (60) days after receipt of the notice
from such Landlord Indemnified Party.
Section 18.4 Governs Lease.
The provisions of this Article shall govern every other provision of this Lease. The
absence of explicit reference to this Article in any particular provision of this Lease shall not be
construed to diminish the application of this Article to such provision.
Section 18.5 Survival.
The provisions of this Article 18 shall survive the Expiration of the Term.
Article 19- Covenant Against Waste and Inspection
Section 19.1 Waste.
Except as otherwise permitted or contemplated by this Lease, Tenant covenants not to do
or suffer any demolition, waste or damage, disfigurement or injury to the Premises or any part of
it. The provisions of this Section 19.1 shall not apply to any demolition or disfigurement
involved with repairs, renovations, upgrading or new construction.
Section 19.2 Inspection of Premises.
Landlord and its representatives shall have the right, upon twenty-four (24) hours prior
notice to Tenant, to enter upon the Premises (a) to inspect the operation, sanitation, safety,
maintenance and use of the same (but Landlord shall not thereby assume any responsibility or
liability for the performance of Tenant's obligations hereunder, nor any liability arising from the
improper performance thereof, and (b) to conduct inspections for the purpose of determining
whether a Default or Event of Default has occurred, provided that Landlord shall be
accompanied by a representative of Tenant (in areas of the Premises other than areas readily
available to the general public), and provided further that such entry shall not unreasonably
interfere with the operation of the Premises. Tenant agrees to make a representative of Tenant
available to accompany Landlord on any such inspection.
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Article 20- Landlord's Security Interest in Building Equipment
Section 20.1 Grant of Security Interest.
Solely for the purpose of securing Tenant's obligations to deliver to Landlord the
Improvements upon Expiration of the Term, Tenant hereby grants to Landlord a security interest
in all of the Building Equipment now or hereafter located on the Premises and owned by Tenant,
and in all products and proceeds thereof, provided, however, that Landlord's security interest
shall be automatically fully subordinate and subject to any purchase money financing permitted
hereunder and any Recognized Mortgagee's security interest in the Building Equipment. Upon
the Expiration of the Term, Landlord shall be entitled to all of the rights, remedies, powers and
privileges available to a secured party under (and subject to the provisions of) the Uniform
Commercial Code enacted by the State of Florida. Tenant shall execute and deliver all such
instruments and take all such action as Landlord, from time to time, may reasonably request in
order to obtain the full benefits of the security interest described in this Section 20 and of the
rights and powers herein created and to maintain and perfect the security interest granted above.
To the extent permitted by Requirements, Tenant irrevocably authorizes Landlord to file
financing statements and continuation statements with respect to the foregoing collateral without
the signature of Tenant. Landlord shall execute and deliver all such instruments as any
Recognized Mortgagee or permitted purchase money lender shall reasonably require in order to
confirm Landlord's subordination of its security interest as aforesaid. Subject to Section 13.2,
Tenant may, during the Term, remove, replace and otherwise deal with the Building Equipment
in the ordinary course ofthe operation ofthe Premises.
Article 21- Right to Perform the Other Party's Obligations.
Section 21.1 Right to Perform the Other Party's Obligations.
(a) If a Default shall occur and be continuing beyond any applicable grace period,
Landlord may, but shall be under no obligation to, perform the obligation of Tenant the breach of
which gave rise to such Default, without waiving or releasing Tenant from any of its obligations
contained herein, provided that Landlord shall exercise such right only in the event of a bona fide
emergency or after five (5) Business Days notice, and Tenant hereby grants Landlord access to
the Premises in order to perform any such obligation.
(b) If a default by Landlord under this Lease shall occur and be continuing
beyond any applicable grace period, Tenant may, but shall be under no obligation to, perform the
obligations of Landlord (other than those which are governmental as opposed to proprietary
obligations) the breach of which gave rise to such Default or Event of Default, without waiving
or releasing Landlord from any of its obligations contained herein, provided that Tenant shall
exercise such right only in the event of a bona fide emergency or after five (5) Business Days
notice to Landlord or the City, as applicable.
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Section 21.2 Discharge of Liens.
(a) If Tenant fails to cause any mechanic's, laborer's, vendor's, materialman's
or similar statutory lien (including tax liens, providing the underlying tax is an obligation of
Tenant by law or by a provision of this Lease) to be discharged of record in accordance with the
provisions of Article 15, Landlord may, but shall not be obligated to, discharge such lien of
record either by paying the amount claimed to be due or by procuring the discharge of such lien
by deposit or by bonding proceedings. If Landlord's title is threatened or a material interest of
Landlord is impaired, Landlord may also, if Tenant has not done so (or bonded such lien),
compel the prosecution of an action for the foreclosure of such lien by the lienor and the
payment of the amount ofthe judgment in favor ofthe lienor with interest, costs and allowances.
(b) If Landlord fails to cause any mechanic's, laborer's, vendor's,
materialman's or similar statutory lien (including tax liens, providing the underlying tax is an
obligation of Landlord by law or by a provision of this Lease) to be discharged of record in
accordance with the provisions of Article 15, Tenant may, but shall not be obligated to, discharge
such lien of record either by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit or by bonding proceedings. If Tenant's leasehold interest in the Premises
(or any portion thereof) is threatened or a material interest of Tenant is impaired, Tenant may
also, if Landlord has not done so (or bonded such lien), compel the prosecution of an action for
the foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor
ofthe lienor with interest, costs and allowances.
Section 21.3 Reimbursement for Amounts Paid Pursuant to this Article.
(a) Any amount paid by Landlord in performing Tenant's obligations as
provided in this Article 21, including all costs and expenses incurred by Landlord in connection
therewith, and shall be reimbursed to Landlord within thirty (30) days of Landlord's demand,
together with a late charge on amounts actually paid, calculated at the rate of 5% from the 3151
day after Landlord's demand to the date on which payment of such amounts is reimbursed.
(b) Any amount paid by Tenant in performing Landlord's obligations as
provided in this Article 21, including all costs and expenses incurred by Tenant in connection
therewith, shall be reimbursed to Tenant within thirty (30) days of Tenant's demand, together
with a late charge on amounts actually paid, calculated at the rate of 5% from the date of notice
of any such payment to the date on which payment of such amounts is reimbursed.
Section 21.4 Waiver, Release and Assumption of Obligations.
(a) Landlord's payment or performance pursuant to the provisions of this
Article 21 shall not be, nor be deemed to constitute, Landlord's assumption of Tenant's
obligations to payor perform any of Tenant's past, present or future obligations hereunder.
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(b) Tenant's payment or performance pursuant to the provisions of this Article
21 shall not be, nor be deemed to constitute, Tenant's assumption of Landlord's obligations to
payor perform any of Landlord's past, present or future obligations hereunder.
Article 22- Events of Default, Conditional Limitations, Remedies, Etc.
Section 22.1 Definition.
Each ofthe following events shall be an "Event of Default" hereunder:
(a) if Tenant fails to make any payment (or any part thereof) of Rent and/or
Impositions due hereunder and such failure continues for a period of ninety (90) days after notice
is given by Landlord that the same is past due;
(b) if Tenant shall default in the observance or performance of any term,
covenant or condition of this Lease on Tenant's part to be observed or performed (other than the
covenants for the payment of Rent and/or Impositions or as expressly set forth above) and
Tenant does not remedy such Default within thirty (30) days after notice by Landlord of such
Default (the "Default Notice") (or such other period as may be specifically provided in the Lease
or the Development Agreement); or if such a Default is of such a nature that it cannot reasonably
be remedied within thirty (30) days (or such other period as may be specifically provided in the
Lease or the Development Agreement) (but is otherwise susceptible to cure), and if Tenant does
not (i) within the appropriate cure period after the giving of such Default Notice, advise Landlord
of Tenant's intention to institute all steps (and from time to time, as reasonably requested by
Landlord, Tenant shall advise Landlord of the steps being taken) necessary to remedy such
Default (which such steps shall be reasonably designed to effectuate the cure of such Default in a
professional manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same;
(c) if a default by Tenant under the Development Agreement shall have
occurred and be continuing beyond any applicable cure period, including any cure period
applicable to a Recognized Mortgagee;
(d) to the extent permitted by law, if Tenant admits, in writing, that it is
generally unable to pay its debts as such become due;
(e) to the extent permitted by law, if Tenant makes an assignment for the
benefit of creditors;
(f) to the extent permitted by law, if Tenant files a voluntary petition under
Title 11 of the United States Bankruptcy Code, or if Tenant files a petition or an answer seeking,
consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code
or any other present or future applicable Federal, state or other bankruptcy or insolvency statute
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or law, or seeks, consents to, acquiesces in or suffers the appointment of any trustee, receiver,
custodian, assignee, sequestrator, liquidator or other similar official of Tenant, of all or any
substantial part of its properties, or of all or any part of Tenant's Interest in the Premises, and the
foregoing are not stayed or dismissed within one hundred and fifty (150) days after such filing or
other action;
(g) to the extent permitted by law, if, within one hundred and fifty (150) days
after the commencement of a proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under the
present or any future Federal bankruptcy code or any other present or future applicable Federal,
state or other bankruptcy or insolvency statute or law, such proceeding has not been dismissed,
or if, within one hundred and eighty (180) days after the appointment, without the consent or
acquiescence of Tenant, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or
other similar official of Ten ant, of all or any substantial part of its properties, or of all or any part
of Tenant's Interest in the Premises, such appointment has not been vacated or stayed on appeal
or otherwise, or if, within one hundred and eighty (180) days after the expiration of any such
stay, such appointment has not been vacated;
(h) if a levy under execution or attachment in an aggregate amount of Two
Hundred Fifty Thousand Dollars ($250,000.00), adjusted for inflation, at anyone time, is made
against the Premises or any part thereof or rights appertaining thereto (except for a levy made in
connection with actions taken by Landlord (other than solely as holder of Landlord's Interest in
the Premises)), the income therefrom, this Lease or the leasehold estate created hereby and such
execution or attachment is not vacated or removed by court order, bonding or otherwise within a
period of sixty (60) days after Tenant becomes aware of such levy or attachment, subject to
Unavoidable Delays; or
(i) if any of the representations made by Tenant in Article 16 is proved to be
or becomes false or incorrect in any material respect and the circumstances are not cured or
modified so as to eliminate such material incorrectness within thirty (30) days after notice;
(j) any event described in Section 29.8 which is not cured by Tenant as
provided in Section 29.8;
(k) in the event the Tenant's status as an organization described in 501(c)(3)
of the Internal Revenue Code of 1986, as amended (the "Code"), which is exempt from federal
income tax under Section 50l(a) of the Code (or any successor provisions of similar import), is
revoked by the Internal Revenue Service after expiration of all applicable appeals, and fails to re-
instate its tax-exempt status or otherwise cure such loss of status within the appropriate period
after notice and opportunity to cure, as otherwise provided herein.
In the event of a Default which with the giving of notice to Tenant and the passage of
time would constitute an Event of Default, Landlord's notice of such Default to Tenant shall state
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with specificity the provision of this Lease under which the Default is claimed, the nature and
character of such Default, the facts giving rise to such Default, the date by which such Default
must be cured pursuant to this Lease, if applicable, and, if applicable, that the failure of Tenant to
cure such Default by the date set forth in such notice will result in Landlord having the right to
exercise its remedies hereunder.
Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred
until such time as Landlord shall have given Tenant notice of the occurrence of an Event of
Default (an "Event of Default Notice"), and if applicable, to all Recognized Mortgagees.
Notwithstanding anything to the contrary contained herein, Landlord shall be entitled to
seek any injunctive or other equitable relief that may be available to Landlord during the
pendency of any Default. .
Section 22.2 Enforcement of Performance; Damages and Termination.
If an Event of Default occurs and Landlord chooses to pursue a remedy with respect to
that Event of Default, Landlord may elect to: (a) enforce specific performance or observance by
Tenant of the applicable provisions of this Lease; (b) recover damages for breach of this Lease;
or (c) in the circumstances described in Section 22.3, terminate this Lease pursuant to Section
22.3. Landlord's election of a remedy hereunder with respect to an Event of Default shall not
limit or otherwise affect Landlord's right to elect any of the remedies available to Landlord
hereunder with respect to any other Event of Default.
Section 22.3 Expiration and Termination of Lease.
(a) If an Event of Default occurs, provided Landlord has elected the remedy
of termination, Landlord may, within twenty (20) Business Days after the date of entry by a court
of a final judgment that an Event of Default exists (but without Tenant waiving any rights it may
have to stay the termination pending appeal), give Tenant and any Recognized Mortgagee notice
stating that this Lease and the Term shall terminate on the date specified in such notice, which
date shall not be less than twenty (20) days after the giving of the notice, and this Lease and the
Term and all rights of Tenant under this Lease shall expire and terminate as if the date specified
in the notice were the Fixed Expiration Date, and Tenant shall quit and surrender Tenant's
Interest in the Premises and possession thereof forthwith. If such termination is stayed by order
of any court having jurisdiction over any case described in Sections 22.1(f) or (g), or by federal
or state statute, then, following the expiration of any such stay, or if the trustee appointed in any
such case, Tenant or Tenant as debtor-in-possession fails to assume Tenant's obligations under
this Lease within the period prescribed therefor by law or within thirty (30) days after entry of
the order for relief or as may be allowed by the court, Landlord, to the extent permitted by law or
by leave of the court having jurisdiction over such case, shall have the right, at its election, to
terminate this Lease on ten (10) days' notice to Tenant, Tenant as debtor-in-possession or the
trustee. Upon the expiration of the ten (10) day period, this Lease shall expire and terminate and
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Tenant, Tenant as debtor-in-possession and/or the trustee immediately shall quit and surrender
Tenant's Interest in the Premises and possession thereof forthwith.
(b) If this Lease is terminated as provided in Section 22.3(a), Landlord may,
without notice, re-enter and repossess Tenant's Interest in the Premises (which may include, but
not be limited to, re-entering and repossessing the Premises) and may dispossess Tenant by
summary proceedings, writ of possession, proceedings in bankruptcy court or otherwise, subject
to applicable Requirements.
(c) If this Lease is terminated as provided in Section 22.3(a) Tenant shall pay
to Landlord all Rent and/or Impositions payable under this Lease by Tenant to Landlord to the
date upon which the Term shall have expired and come to an end and Tenant shall surrender to
Landlord Tenant's Interest in the Premises (and possession thereof) in the manner required by
this Lease, and both parties shall be relieved of all further obligations hereunder, except to the
extent this Lease expressly provides that an obligation hereunder shall survive the Expiration of
the Term.
(d) In the event the Development Agreement is properly terminated pursuant
to the terms thereof, then this Lease shall terminate.
Section 22.4 Landlord's Defaults.
Each of the following events shall be a "Landlord Landlord's Event of Default"
hereunder:
(a) if Landlord fails to make any payment (or any part thereof) of money due
hereunder and such failure continues for a period of thirty (30) days after notice is given by
Tenant that the same is past due;
(b) if Landlord shall default in the observance or performance of any term,
covenant or condition of this Lease on Landlord's part to be observed or performed (other than
the covenants for the payment of money or as expressly set forth below) and Landlord shall fail
to remedy such Default within thirty (30) days (or such other period as may be specifically
provided in this Lease or in the Development Agreement) after notice by Tenant of such Default
(the "Default Notice"), or if such a Default is of such a nature that it cannot reasonably be
remedied within thirty (30) days (or such other period as may be specifically provided in this
Lease or in the Development Agreement) (but is otherwise susceptible to cure), if Landlord shall
not (i) within thirty (30) days (or such other period as may be specifically provided in this Lease
or in the Development Agreement) after the giving of such Default Notice, advise Tenant of
Landlord's intention to institute all steps (and from time to time, as reasonably requested by
Tenant, Landlord shall advise Tenant of the steps being taken) necessary to remedy such Default
(which such steps shall be reasonably designed to effectuate the cure of such Default in a
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professional manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same;
(c) if a default by Landlord under the Development Agreement shall have
occurred and be continuing beyond any applicable cure period;
(d) if any of the representations made by Landlord in Article 16 is proved to
be or becomes false or incorrect in any material respect and the circumstances are not cured or
modified so as to eliminate such material incorrectness within thirty (30) days after notice; or
(e) any event described in [Section 31.8] which is not cured by Landlord as
provided in [Section 31.8].
In the event of a Default which with the giving of notice to Landlord and the passage of
time would constitute a Landlord's Event of Default, Tenant's notice of such Default to Landlord
shall state with specificity the provision of this Lease under which the Default is claimed, the
nature and character of such Default, the facts giving rise to such Default, the date by which such
Default must be cured, and that the failure of Landlord to cure such Default by the date set forth
in such notice will result in Tenant having the right to terminate this Lease.
Notwithstanding the foregoing, no Landlord's Event of Default shall be deemed to have
occurred until such time as Tenant shall have given Landlord notice of the occurrence of a
Landlord's Event of Default (a "Landlord's Event of Default Notice").
Section 22.5 Enforcement of Performance; Damages and Termination.
If a Landlord's Event of Default occurs and Tenant chooses to pursue a remedy with
respect to that Landlord's Event of Default, Tenant shall elect to: (a) specifically enforce
performance or observance by Landlord of the applicable provisions of this Lease; (b) recover
damages for breach of this Lease; or (c) terminate this Lease pursuant to Section 22.3. Tenant's
election of a remedy hereunder with respect to a Landlord's Event of Default shall not limit or
otherwise affect Tenant's right to elect any of the remedies available to Tenant hereunder with
respect to any other Landlord's Event of Default.
Section 22.6 Waiver of Rights of Tenant and Landlord.
To the extent not prohibited by law, Landlord and Tenant hereby waive and release all
rights now or hereafter conferred by statute or otherwise that would have the effect of limiting or
modifying any of the provisions of this Article. Notwithstanding the foregoing, (i) neither party
shall be deemed to have waived the benefit of any automatic stay provisions under any present or
future bankruptcy code and (ii) Landlord shall not be deemed to have waived or released any
rights conferred by any sovereign immunity conferred by statute or otherwise, as provided in
Section 17.2 hereof.
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Section 22.7 Strict Performance.
No failure by Landlord or Tenant to insist upon strict performance of any covenant,
agreement, term or condition of this Lease or to exercise any right or remedy available to such
party by reason of the other party's default or an Event of Default, and no payment or acceptance
offull or partial Rental and/or Impositions during the continuance (or with Landlord's knowledge
of the occurrence) of any Default or Event of Default, shall constitute a waiver of any such
Default or Event of Default or of such covenant, agreement, term or condition or of any other
covenant, agreement, term or condition. Subj ect to Section 11.11, no covenant, agreement, term
or condition of this Lease to be performed or complied with by either party, and no default by
either party, shall be waived, altered or modified except by a written instrument executed by the
other party. No waiver of any Default or Event of Default shall affect or alter this Lease, but each
and every covenant, agreement, term and condition of this Lease shall continue in full force and
effect with respect to any other then existing or subsequent Default. Payment by Tenant to
Landlord of any Rental and/or Impositions or provision of Public Benefits shall be without
prejudice to, and shall not constitute a waiver of, any rights of Tenant against Landlord provided
for under this Lease or at law or in equity. Tenant's compliance with any request or demand
made by Landlord shall not be deemed a waiver of Tenant's right to contest the validity of such
request or demand.
Section 22.8 Right to Enjoin Defaults.
In the event of Tenant's Default or Event of Default, Landlord shall be entitled to seek to
enjoin the Default or Event of Default and shall have the right to invoke any rights and remedies
allowed at law or in equity or by statute or otherwise, except to the extent Landlord's remedies
are expressly limited by the terms hereof. In the event of any default by Landlord of any term,
covenant or condition under this Lease, Tenant shall be entitled to seek to enjoin the default and
shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or
otherwise, except to the extent Tenant's remedies are expressly limited by the terms hereof.
Provided however, in the event of any such default, Tenant shall be required to give Landlord
notice of such default and Landlord shall have thirty (30) days (or such other period as may be
specifically provided in this Lease) from receipt of such notice to effect a cure of such default or
if such default is not reasonably susceptible of being cured within such thirty (30) day period (or
such other period as may be specifically provided in this Lease), Landlord shall have a
reasonable time to effect a cure of such default so long as Landlord is diligently prosecuting such
cure. Each right and remedy of Landlord and Tenant provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise except to the extent
Landlord's remedies and Tenant's remedies are expressly limited by the terms hereof, and the
exercise or beginning of the exercise by Landlord or Tenant of anyone or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by Landlord or Tenant of any
or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in
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equity or by statute or otherwise, except to the extent Landlord's remedies and Tenant's remedies
are expressly limited by the terms hereof.
Section 22.9 Remedies Under Bankruptcy and Insolvency Codes.
If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Tenant or Tenant's Interest in the Premises or Landlord or Landlord's Interest in the
Premises as applicable, in any proceeding which is commenced by or against Tenant or
Landlord, as applicable, under the present or any future Federal Bankruptcy Code or in a
proceeding which is commenced by or against Tenant or Landlord, as applicable, seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
under any other present or future applicable federal, state or other bankruptcy or insolvency
statute or law, Landlord or Tenant, as applicable, shall be entitled to invoke any and all rights
and remedies available to it under such bankruptcy or insolvency code, statute or law or this
Lease, including, without limitation, such rights and remedies as may be necessary to adequately
protect Landlord's or Tenant's, as applicable, right, title and interest in and to the Premises or this
Lease or any part thereof and adequately assure the complete and continuous future performance
of the other party's obligations under this Lease. Landlord or Tenant, as applicable, may petition
the Bankruptcy Court to determine that adequate protection of Landlord's or Tenant's, as
applicable, right, title and interest in and to the Premises or this Lease, and adequate assurance of
the complete and continuous future performance of the other party's obligations under this Lease,
shall include, without limitation, all ofthe following requirements:
(a) that the other party shall comply with all of its obligations under this
Lease-
(b) in the case of a proceeding concerning Tenant, that Tenant shall continue
to use the Premises in the manner required by this Lease;
(c) in the case of a proceeding concerning Tenant, that Landlord shall be
permitted to supervise the performance of Tenant's obligations under this Lease;
(d) in the case of a proceeding concerning Tenant, that Tenant shall hire such
security personnel as may be necessary to insure the adequate protection and security of the
Premises;
(e) in the case of a proceeding concerning Tenant, that Tenant shall have and
will continue to have unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease; and
(f) in the case of a proceeding concerning Tenant, that Landlord shall be
granted a security interest acceptable to it in property of Tenant to secure the performance of
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Tenant's obligations under this Lease, subject to the rights of any Recognized Mortgagee under
the Recognized Mortgage.
Section 22.10 Funds Held By Tenant.
From and after the date, if any, on which an Event of Default (including, without
limitation, any Event of Default that occurs during the course of the Construction Work for the
initial construction of the Project) has been deemed to have occurred and while such Event of
Default shall be continuing, Tenant shall not pay, disburse or distribute any rents, issues or
profits of the Premises, or portion thereof, the proceeds of any insurance policies covering or
relating to the Premises or any portion thereof, or any awards payable in connection with the
condemnation of the Premises or any portion thereof (except to the extent such insurance
proceeds or condemnation awards are required in connection with any Restoration to be
performed pursuant to Article 8 or 9) or any undistributed proceeds from any sale or financing
except to (i) creditors which are not Affiliates, in payment of amounts then due and owing by
Tenant to such creditors with respect to work at the Premises, (ii) Affiliates, in payment of
amounts then due and owing by Tenant to such Affiliates for items and services provided to
Tenant in connection with its operations conducted at the Premises or any portion thereof, only
to the extent such amounts do not exceed that which is customarily and reasonably paid in arms-
length transactions to Persons who are not Affiliates for comparable items and services, and (iii)
the holder of a Recognized Mortgage, in payment of the principal amount of, and all unpaid and
accrued interest then outstanding under, such Recognized Mortgage and any other amounts
payable pursuant to such Recognized Mortgage and any instruments and documents related
thereto.
Section 22.11 Waiver of Jury Trial
Landlord and Tenant, to the extent allowed by law, hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto against the other
on any matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises, any claim of
injury or damage, or any emergency or statutory remedy.
Article 23- Notices, Consents and Approvals
Section 23.1 Service of Notices and Other Communications.
(a) In Writing. Whenever it is provided herein that notice, demand, request,
consent, approval or other communication shall or may be given to, or served upon, either of the
parties by the other (or any Recognized Mortgagee), or whenever either of the parties desires to
give or serve upon the other any notice, demand, request, consent, approval or other
communication with respect hereto or to the Premises, each such notice, demand, request,
consent, approval or other communication (referred to in this Section 23.1 as a "Notice") shall be
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in writing (whether or not so indicated elsewhere in this Lease) and shall be effective for any
purpose only if given or served by certified or registered U.S. Mail, postage prepaid, return
receipt requested, or by personal delivery with a signed receipt, or by a recognized national
courier service, addressed as follows:
if to Tenant:
New World Symphony
541 Lincoln Road
Miami Beach, Florida 33139
Attention: Chief Executive Officer
with a copy to:
New World Symphony
541 Lincoln Road
Miami Beach, Florida 33139
Attention: Chief Financial Officer
if to Landlord:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
with a copy to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
Any such Notice maybe given, in the manner provided in this Section 23.1, (x) on
either party's behalf by its attorneys designated by such party by notice hereunder, and (y) at
Tenant's request, on its behalf by any Recognized Mortgagee designated in such request.
(b) Effectiveness. Every Notice shall be effective on the date actually
received, as indicated on the receipt therefor or on the date delivery thereof is refused by the
recipient thereof. All references in this Lease to the "date" of Notice shall mean the effective
date.
Section 23.2 Consents and Approvals.
(a) Effect of Granting or Failure to Grant Approvals or Consents. All
consents and approvals which may be given under this Lease shall, as a condition of their
effectiveness, be in writing. The granting by a party of any consent to or approval of any act
requiring consent or approval under the terms of this Lease, or the failure on the part of a party to
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object to any such action taken without the required consent or approval, shall not be deemed a
waiver by the party whose consent was required of its right to require such consent or approval
for any other act.
(b) Standard. All consents and approvals which may be given by a party
under this Lease shall not (whether or not so indicated elsewhere in this Lease) be unreasonably
withheld or conditioned by such party and shall be given or denied within the time period
provided, and if no such time period has been provided, within a reasonable time. In furtherance
of the foregoing, in determining whether Landlord has acted reasonably in not giving its consent
or approval, the trier of fact shall take into consideration (for so long as Landlord is the City or
any Governmental Authority) that Landlord is a political body governed by elected officials or
persons that are appointed, directly or indirectly, by elected officials. Upon disapproval of any
request for a consent or approval, the disapproving party shall, together with notice of such
disapproval, submit to the requesting party a written statement setting forth with specificity its
reasons for such disapproval.
(c) Deemed Approval.
(i) If a party entitled to grant or deny its consent or approval (the
"Consenting Party") within the specified time period shall fail to
do so, then, except as otherwise provided in Section 23.2(c)(ii) and
(iii), and provided that the request for consent or approval (and the
envelope in which such request is transmitted to the extent
permitted by the carrier) bears the legend set forth below in capital
letters and in a type size not less than that provided below, the
matter for which such consent or approval is requested shall be
deemed consented to or approved, as the case may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN
THE TIME PERIOD PROVIDED IN THE LEASE
AGREEMENT BETWEEN CITY OF MIAMI BEACH,
FLORIDA and NEW WORLD SYMPHONY SHALL
CONSTITUTE AUTOMATIC APPROVAL OF THE
MATTERS DESCRIBED HEREIN WITH RESPECT TO
SECTION [FILL IN APPLICABLE SECTION] OF SUCH
LEASE AGREEMENT."
(ii) If the matter to which consent or approval is requested pertains to
Article 10, then such matter shall not be deemed consented to or
approved unless (i) the Consenting Party fails to timely to respond
to the other party's (the "Requesting Party's") initial request, shall
bear the legend set forth above, and (ii) the Requesting Party shall
thereafter send a second request to the Consenting Party, and
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Consenting Party shall fail to timely respond to such second
request.
(iii) Notwithstanding anything to the contrary contained in this Lease,
including, without limitation, Sections 23.2(c)(i) and 23.2(c)(ii)
above, if the City or any instrumentality of the City shall be the
Landlord hereunder and the matter other than a matter referred to
in Section 23.2(c)(iv)) to be consented to or approved requires the
consideration of the City Commission and/or the governing body
of such instrumentality, as applicable (whether pursuant to
Requirements or the written opinion of the City Attorney, or the
chief legal officer of such other instrumentality of the City) then,
provided Landlord gives Tenant notice of such requirement within
the time period provided for such consent or approval, such matter
shall not be deemed approved or consented to unless Landlord
shall fail to respond to Tenant's request (or second request if the
provisions of Section 23.2(c)(ii) are applicable) by the date which
is fifteen (15) days after the first regular meeting of the City
Commission (and/or such other instrumentality's governing body,
as applicable) which occurs no earlier than ten (10) days following
the receipt of such request (or second request, as applicable); but in
any event not later than sixty (60) days following such request (or
second request as applicable.
(iv) Landlord hereby agrees, for so long as the City or any other
Governmental Authority shall be the Landlord hereunder, that,
subject to Requirements, the City Manager or the chief operating
officer of such other Governmental Authority as applicable, shall
be authorized to grant consents or approvals on behalf of the City
and/or other Governmental Authority as applicable, with respect to
the following Sections of this Lease: Article 7 and Sections 8.3,
9.3, 10.7 (for execution of instruments), _, _,18.4,24.2,
28.2(b) and 28.3.
(v) The foregoing provisions of this Section 23.2(c) shall not be
construed to modify or otherwise affect a party's right to litigate
the failure of a party to act reasonably in granting or denying a
request for consent or to timely respond to a request for a consent,
but such right to litigate shall not serve to delay the time period
within which a grant or denial of such request is required
hereunder.
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(d) Remedy for Refusal to Grant Consent or Approval. If, pursuant to the
terms of this Lease, any consent or approval by Landlord or Tenant is alleged to have been
unreasonably withheld, conditioned or delayed, then any dispute as to whether such consent or
approval has been unreasonably withheld, conditioned or delayed shall be settled by litigation.
In the event there shall be a final determination that the consent or approval was unreasonably
withheld, conditioned or delayed so that the consent or approval should have been granted, the
consent or approval shall be deemed granted and the Requesting Party shall be entitled to any
and all damages resulting therefrom, subject to the limitations provided in this Lease.
(e) No Fees, Etc. Except as specifically provided herein, no fees or charges
of any kind or amount shall be required by either party hereto as a condition of the grant of any
consent or approval which may be required under this Lease (provided that the foregoing shall
not be deemed in any way to limit Landlord acting in its governmental, as distinct from its
proprietary, capacity from charging governmental fees on a nondiscriminatory basis).
(f) Governmental Capacity. Notwithstanding anything to the contrary
contained in this Section 23.2, the City shall not be required by this Lease to give its consent to
any matter arising from or in connection with this Lease when the City is acting in its
governmental capacity.
Article 24- Certificates By Landlord and Tenant
Section 24.1 Certificate of Tenant.
Tenant shall, within fifteen (15) days after notice by Landlord, execute, acknowledge and
deliver to Landlord, or any other Person specified by Landlord, a written statement (which may
be relied upon by such Person) (a) certifying (i) that this Lease is unmodified and in full force
and effect (or if there are modifications, that this Lease, as modified, is in full force and effect
and stating such modifications) (and, if so requested, that the annexed copy of this Lease is a
true, correct and complete copy of this Lease), and (ii) the date to which each item of Rent and/or
Impositions payable by Tenant hereunder has been paid, and (b) stating (i) whether Tenant has
given Landlord written notice of any default, or any event that, with the giving of notice or the
passage of time, or both, would constitute a default, by Landlord in the performance of an
covenant, agreement, obligation or condition contained in this Lease, which default or event has
not been cured, and (ii) whether, to the actual knowledge of Tenant (but without independent
inquiry), Landlord is in default in performance of any covenant, agreement, obligation or
condition contained in this Lease, and, if so, specifying in detail each such default.
Section 24.2 Certificate of Landlord.
Landlord shall, within fifteen (15) days after notice by Tenant, execute, acknowledge and
deliver to Tenant, or such other Person specified by Tenant, a written statement (which may be
relied upon by such Person) (a) certifying (i) that this Lease is unmodified and in full force and
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effect (or if there are modifications, that this Lease, as modified, is in full force and effect and
stating such modifications) (and, if so requested, that the annexed copy of this Lease is a true,
correct and complete copy of this Lease), and (ii) the date to which each item of Rent and/or
Impositions payable by Tenant hereunder has been paid, and (b) stating (i) whether an Event of
Default has occurred or whether Landlord has given Tenant notice of any event that, with the
giving of notice or the passage of time, or both, would constitute an Event of Default, which
Default or Event of Default has not been cured, and (ii) whether, to the actual knowledge of
Landlord (but without independent inquiry), Tenant is in default in the performance of any
covenant, agreement, obligation or condition contained in this Lease, and, if so, specifying, in
detail, each such Default or Event of Default.
Article 25- Surrender at End of Term
Section 25.1 Surrender of Premises.
Upon the Expiration of the Term (or upon a re-entry by Landlord upon the Premises
pursuant to Article 22), Tenant, without any payment or allowance whatsoever by Landlord,
shall surrender the Premises to Landlord in good order, condition and repair, reasonable wear
and tear excepted and (subject to the provisions of Article 8) damage from casualty excepted,
free and clear of all Subleases, liens and encumbrance other than as set forth below and the
Permitted Exceptions and other encumbrances to which Landlord shall have agreed during the
term. Tenant hereby waives any notice now or hereafter required by law with respect to vacating
the Premises on the Expiration of the Term.
Section 25.2 Delivery of Subleases, Etc.
Upon the Expiration of the Term (or upon a re-entry by Landlord upon the Premises
pursuant to Article 22), Tenant shall deliver to Landlord the following (to the extent then in
Tenant's possession or control): Tenant's original executed counterparts, if available (and if not
available, true and correct copies thereof), of all subleases then in effect, any service and
maintenance contracts then affecting the Premises, true and complete maintenance records for
the Premises, all original licenses and permits then pertaining to the Premises, permanent or
temporary certificates of occupancy then in effect for the Premises, and all warranties and
guarantees then in effect which Tenant has received in connection with any work or services
performed or Building Equipment installed in the Premises (such to be delivered without
representation or warranty by Tenant), together with a duly executed assignment thereof (without
recourse) to Landlord in form suitable for recording, and any and all other documents of every
kind and nature whatsoever relating to the operation of the Premises and the condition of the
Improvements.
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Section 25.3 Title to Improvements.
Landlord recognizes and agrees that until Expiration of the Term, ownership of and title
to the Tenant's Improvements shall be in Tenant's name and that until such time, Tenant has, and
shall be entitled to, all rights and privileges of ownership of such Tenant's Improvements.
Ownership of and to all Tenant's Improvements shall automatically vest in Landlord upon the
Expiration of the Term, without the payment of consideration therefor, and without the necessity
for the execution and delivery by Tenant of any instrument transferring title. Notwithstanding
the foregoing, Tenant covenants and agrees that upon the Expiration of the Term, Tenant shall,
upon Landlord's request, execute and deliver to Landlord any instrument or document
reasonably requested by Landlord to confirm title to said Tenant's Improvements in Landlord.
Section 25.4 Cash and Accounts Receivable.
Tenant shall retain the right to all cash and accounts receivable on or in connection with
the Premises existing as of the Expiration of the Term and Landlord shall pay Tenant for all
unopened consumable supplies located at the Premises upon the Expiration of the Term (based
on Tenant's actual cost therefor); provided, however that Tenant shall turn over to Landlord all
deposits, accounts receivables and other payments for periods after the Expiration of the Term.
If, after the Expiration of the Term, Landlord collects any accounts receivable to which Tenant is
entitled, Landlord shall promptly remit such amounts to Tenant, subject to the rights of any
Recognized Mortgagee.
Section 25.5 Personal Property.
Any personal property of Tenant or of any Subtenant which remains on the Premises
beyond one hundred twenty (120) days after the termination of this Lease or after the removal of
Tenant or such Subtenant from the Premises, may, at the option of Landlord, be deemed to have
been abandoned by Tenant or such Subtenant, and either may be retained by Landlord as its
property or be disposed of, without accountability, in such manner as Landlord may see fit, in its
absolute and sole discretion, but in compliance with applicable Requirements. Landlord shall
not be responsible for any loss or damage occurring to any such property owned by Tenant or
any Subtenant.
Section 25.6 Survival Clause.
The provisions of this Article 25 shall survive the Expiration ofthe Term.
Article 26- Quiet Enjoyment
Landlord covenants that, as long as this Lease is in full force and effect without an Event
of Default existing hereunder, Tenant shall and may (subject to the exceptions, reservations,
terms and conditions ofthis Lease) peaceably and quietly have, hold and enjoy Tenant's Interest
in the Premises for the Term without molestation or disturbance by or from Landlord (solely in
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its proprietary capacity) or any Person claiming by, under or through Landlord (solely in its
proprietary capacity).
Article 27- Reserved
Article 28- Administrative and Judicial Proceedings, Contests, Etc.
Section 28.1 Tax Contest Proceedings.
Tenant shall have the right (subject to the provisions of Section 28.2), at its sole cost and
expense, to seek reductions in the valuation of the Premises assessed for real property tax
purposes and to prosecute any action or proceeding in connection therewith by appropriate
proceedings diligently conducted in good faith and in accordance with applicable Requirements.
Section 28.2 Imposition Contest Proceedings.
Tenant shall have the right to contest, at its sole cost and expense, the amount or validity,
in whole or in part, of any Imposition by appropriate proceedings diligently conducted in good
faith, in which event payment of such Imposition may be postponed, subject to Requirements, if,
and only as long as:
(a) Neither the Premises nor any part thereof would, by reason of such
postponement or deferment, be, in the reasonable judgment of Landlord, in danger of being
forfeited to a Governmental Authority and Landlord is not in danger of being subjected to
criminal liability or penalty or civil liability or penalty in excess of the amount for which Tenant
has furnished security as provided in Section 28.2(b) by reason of nonpayment thereof; and
(b) Upon the termination of such proceedings, Tenant shall pay the amount of
such Imposition or part thereof as finally determined in such proceedings, the payment of which
was deferred during the prosecution of such proceedings, together with any costs, fees
(including, without limitation, reasonable attorneys' fees and disbursements), interest, penalties
or other liabilities in connection therewith.
Section 28.3 Requirement Contest.
Tenant shall have the right to contest the validity of any Requirement or the application
thereof. During such contest, compliance with any such contested Requirement may be deferred
by Tenant provided that before instituting any such proceeding, Tenant shall furnish such deposit
as may be required by the governmental entity. Any such proceeding instituted by Tenant shall
be commenced as soon as possible after the issuance of any such contested Requirement and
shall be prosecuted with diligence to final adjudication, settlement, compliance or other mutually
acceptable disposition of the Requirement so contested. The furnishing of any bond, deposit,
letter of credit or other security notwithstanding, Tenant shall comply with any such
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Requirement in accordance with the provisions of this Section 28.3 if, in Landlord's reasonable
judgment, (i) noncompliance therewith would create an emergency condition involving the
health or safety of persons, (ii) the Premises, or any part thereof, are in material danger of being
forfeited to an authority (other than Landlord when the Agency or the City or an instrumentality
thereof is Landlord), or (iii) Landlord is in danger of being subjected to criminal liability or
penalty, or civil liability in excess of the amount for which Tenant may have furnished a deposit
as hereinabove provided by reason of noncompliance therewith.
Section 28.4 Landlord's Participation in Contest Proceedings.
Landlord shall not be required to join in any action or proceeding referred to in this
Article 28 unless the provisions of any law, rule or regulation at the time in effect require that
such action or proceeding be brought by and/or in the name of Landlord. If so required,
Landlord shall join and cooperate in such proceedings or permit them to be brought by Tenant in
owner's name. Notwithstanding the foregoing, Landlord's joinder and cooperation shall be
limited to actions necessary to enable Tenant to satisfy technical requirements of any such action
or proceeding and in no event shall Landlord be required to join in any such action or proceeding
in any substantive capacity.
Article 29
[RESERVED]
Article 30- Indictment, Investigations, Etc.
Section 30.1 Cooperation in Investigations.
To the extent required by Requirements, Tenant shall cooperate fully and faithfully with
any investigation, audit or inquiry conducted by any Governmental Authority that is empowered
directly or by designation to compel the attendance of witnesses and to examine witnesses under
oath, or conducted by a Governmental Authority that is a party in interest to the transaction,
submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the
investigation, audit or inquiry. In addition, Tenant shall promptly report in writing to the City
Attorney of the City any solicitation, of which Tenant's officers or directors have knowledge, of
money, goods, requests for future employment or other benefit or thing of value, by or on behalf
of any employee of the City or other Person relating to the procurement or obtaining of this
Lease by Tenant or affecting the performance ofthis Lease.
Article 31- Environmental Matters
Section 31.1 Definitions.
For the purposes of this Lease, the following terms shall have the following definitions:
(a) "Hazardous Materials" shall mean (i) petroleum and its constituents; (ii)
radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam
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insulation, transformers or other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are
more stringent; (iii) any substance, gas, material or chemical which is or may hereafter be
defined as or included in the definition of "hazardous substances," "hazardous materials,"
"hazardous wastes," "pollutants or contaminants," "solid wastes" or words of similar import
under any Requirement including the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, 42 U.S.C. ~ 9061 et seq.; the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. ~ 1801, et ~. the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ~ 6901, et seq.; the Federal Water Pollution Control Act, as amended, 33
U.S.c. ~ 1251, et seq.; and Florida Statutes, Chapters 376 and 403; and (iv) any other chemical,
material, gas or substance, the exposure to or release of which is regulated by any governmental
or quasi-governmental entity having jurisdiction over the Premises or the operations thereon;
(b) "Environmental Laws" shall mean all Requirements relating to the
protection of human health or the Environment, including:
(i) all Requirements relating to reporting, licensing, permlttmg,
investigation and remediation of Releases or Threat of Release into
the Environment, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials; and
(ii) all Requirements pertaining to the protection of the health and
safety of employees or the public;
(c) "Environment" shall mean soil, surface waters, groundwaters, land,
stream sediments, surface or subsurface strata and ambient air;
(d) "Environmental Condition" shall mean any condition with respect to the
Land or the Garage Property, whether or not yet discovered, which could or does result in any
Environmental Damages, including any condition resulting from the operation of Tenant's
business or the operation of the business of any subtenant or occupant of the Premises or that of
any other property owner or operator in the vicinity of the Premises or any activity or operation
formerly conducted by any Person on the Land or the Garage Property;
(e) "Environmental Damages" shall mean all claims, judgments, damages
(including punitive damages), losses, penalties, fines, liabilities (including strict liability),
encumbrances, liens, costs and expenses of investigation and defense of any claim, whether or
not such is ultimately defeated, and of any settlement or judgment, of whatever kind or nature,
contingent or otherwise, matured or un-matured, foreseeable or unforeseeable, any of which are
incurred at any time as a result of the assessment, monitoring, remediation or mitigation of an
Environmental Condition (and shall include any damages for the failure to do so), including,
without limitation, fees incurred for the services of attorneys, consultants, contractors, experts,
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laboratories and all other costs incurred in connection with investigation and remediation,
including the preparation of any feasibility studies or reports and the performance of any
remedial, abatement, containment, closure, restoration or monitoring work;
(f) "Permit" shall mean any environmental permit, license, approval, consent
or authorization issued by a federal, state or local governmental or quasi-governmental entity;
(g) "Release" shall mean any releasing, seeping, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping of
a Hazardous Material into the Environment; and
(h) "Threat of Release" shall mean a substantial likelihood of a release
which requires action to prevent or mitigate damage to the Environment which may result from
such Release.
Section 31.2 Intentionally Deleted. .
Section 31.3 Use of Hazardous Materials.
Tenant shall not cause or permit any Hazardous Material to be brought on, kept or used in
or about the Premises except as necessary or useful to Tenant's business and in compliance with
all Environmental Laws.
Section 31.4 Tenant Indemnification of Landlord.
Tenant hereby indemnifies and holds harmless the Landlord Indemnified Parties from
and against any and all Environmental Damages to the Premises during the term of this Lease
except for Environmental Damages to the Premises caused by any of the Landlord Indemnified
Parties at any time. Such obligation of Tenant shall include the burden and expense of defending
all claims, suits and administrative proceedings (with counsel reasonably satisfactory to
Landlord), even if such claims, suits or proceedings are groundless, false or fraudulent, and
conducting all negotiations of any description, and paying and discharging, when and as the
same become due, any and all judgments, penalties or other sums due against any of the
Landlord Indemnified Parties. Without limiting the foregoing, if the presence or Release on or
from the Premises caused or permitted by Tenant results in contamination of the Premises,
Tenant shall promptly take all actions at its sole cost and expense as are necessary to remediate
the Premises in compliance with Environmental Laws in effect from time to time and to comply
with any requirements imposed by any Governmental Authorities; provided that Landlord's
approval of such actions shall first be obtained.
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Section 31.5 Compliance.
Tenant, at its sole cost and expense (except as otherwise provided in this Lease), shall
comply and cause all property managers and all subtenants to comply with all Environmental
Laws with respect to the use and operation of the Premises.
Section 31.6 Notices.
If Tenant or Landlord receives any notice of a Release, Threat of Release or
Environmental Condition or a notice with regard to air emissions, water discharges, noise
emissions, recycling, violation of any Environmental Law or any other environmental, health or
safety matter affecting Tenant or the Premises (an "Environmental Complaint") independently
or by notice from any Governmental Authority having jurisdiction over the Premises, including
the EP A, or with respect to any litigation regarding Environmental Conditions at or about the
Premises, then such party shall give prompt oral and written notice of same to the other party
detailing all relevant facts and circumstances.
Section 31.7 Landlord's Remedies.
Provided Tenant does not diligently commence to remediate the applicable
Environmental Conditions promptly after becoming aware of the same and thereafter diligently
pursue the completion thereof in a reasonable time (and in any event in accordance with
Requirements), Landlord shall have the right, but not the obligation, to enter onto the Premises
and remediate the Premises in compliance with Environmental Laws in effect from time to time
and to comply with any requirements imposed by any Governmental Authorities, at Tenant's
sole cost and expense, upon its obtaining knowledge of such matters independently or by receipt
of any notice from any Person, including the EP A.
Section 31.8 Defaults.
From and after the Possession Date, the occurrence of any of the following events shall
constitute an Event of Default under this Lease:
(a) if the EP A or any other federal, state or local body or agency creates a lien
upon the Premises which is not discharged by Tenant by payment or bonding within ninety (90),
days except in the event said lien is the result of Environmental Damages caused solely by any of
the Landlord Indemnified Parties; or
(b) if the EP A or any other federal, state or local body or agency makes a
claim (which shall mean, for the purposes ofthis Section 31.8, issuance of a warning notice,
citation, notice of violation or administrative complaint) against Tenant (or any subtenant,
licensee or other occupant ofthe Premises), the Premises or Landlord, for damages or cleanup
costs related to a Release or an Environmental Complaint on or pertaining to the Premises and
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caused by Tenant; provided however, such claim shall not constitute an Event of Default if,
within thirty (30) days of the lien or claim:
(i) Tenant has commenced and is diligently pursuing either: (x) cure
or correction of the event which constitutes the basis for the lien or
claim and continues diligently to pursue the cure or correction to
the satisfaction of the Governmental Authority that asserted the
lien or claim and obtains the discharge of any lien, or (y)
proceedings for an injunction, restraining order, administrative or
other appropriate emergency relief contesting the validity of the
claim and, if such relief is granted, the emergency relief is not
thereafter dissolved or reversed on appeal; and
(ii) Tenant has posted a bond, letter of credit or other security
satisfactory in form and substance to Landlord to secure the proper
and complete cure or correction of the event which constitutes the
basis of the claim. The amount ofthe bond, letter of credit or other
security shall be determined in the following manner: (A)
Landlord, Tenant and their respective consultants shall use their
best efforts to agree upon the most probable cost to cure or correct
the event which constitutes the basis of the claim; (B) in the event
Landlord and Tenant are unable to agree despite their best efforts,
Landlord's consultant and Tenant's consultant shall select a third
consultant who shall provide an estimate of the most probable cost
of curing or correcting the event which constitutes the basis of the
claim. Landlord and Tenant shall each pay the cost of their own
consultant under this 3l.8(b )(ii) and shall share evenly the cost of
the third consultant should use of a third consultant become
necessary.
Section 31.9 Landlord Responsibility.
Landlord shall be responsible for payment of Environmental Damages to the Land
resulting from an Environmental Condition caused solely by any of the Landlord Indemnified
Parties, subject to Section 2.11 of the Development Agreement. In addition, Landlord shall be
responsible for payment of all Environmental Damages to the Garage Property (unless caused
solely by any of the Tenant Indemnified Parties), subject to Section 2.11 of the Development
Agreement.
Section 31.10 Environmental Report and Remediation.
Within sixty (60) days of the Lease Commencement Date, Tenant shall order, with the
cooperation of Landlord, a Phase I Environmental Report on the Land and the Garage Property,
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to be prepared in accordance with the industry standard of practice, known as ASTM E 1527-93,
Standard Practice for Environmental Site Assessments; Phase I Site Assessment Process (the
"Phase I Report"). The Phase I Report shall be prepared by an environmental engineering firm
reasonably acceptable to Landlord. The environmental engineer will be required to complete the
Phase I Report within ninety (90) days of the Lease Commencement Date, and its cost shall be
paid by Tenant. In the event the results reflected in the Phase I warrant or the parties jointly
determine, Tenant shall order a Phase II Environmental Report ("Phase II Report") to be
completed within forty-five (45) days thereafter. The cost of the Phase II Report shall initially
be borne by Tenant; however, in the event the Phase II Report recommends Environmental
Remediation on the Garage Property, Landlord shall reimburse Tenant for the cost of such report
in proportion to the remediation recommended on their respective properties. In the event the
Phase II Report discloses the existence of "hazardous substance" or "petroleum products" on the
Land or the Garage Property, the Parties shall instruct the environmental engineer to estimate the
cost of Environmental Remediation. Within thirty (30) days of the Tenant's receipt of the Phase
II Report, together with the estimated cost of Environmental Remediation, Tenant shall have the
option to terminate this Lease and the Development Agreement, in accordance with Section 2.11
of the Development Agreement, by providing notice to Landlord pursuant to the terms of this
Lease and the Development Agreement.
Section 31.11 Survival.
The provisions of this Article 31 shall survive the Expiration of the Term.
Article 32 - Miscellaneous
Section 32.1 Governing Law.
This Lease shall be governed by, and construed in accordance with, the laws of the State
of Florida, both substantive and remedial, without regard to principles of conflict of laws. The
exclusive venue for any litigation arising out of this Lease shall be Miami-Dade County, Florida,
ifin state court, and the U.S. District Court, Southern District of Florida, ifin federal court.
Section 32.2 References and Interpretation of Lease.
(a) Captions. The captions of this Lease are for the purpose of convenience
of reference only, and in no way define, limit or describe the scope or intent of this Lease or in
any way affect this Lease. All captions, when referring to Articles or Sections, refer to Articles
or Sections in this Lease, unless specified otherwise.
(b) Table of Contents. The Table of Contents is for the purpose of convenience
of reference only, and is not to be deemed or construed in any way as part ofthis Lease.
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( c) Reference to Landlord and Tenant. The use herein ofthe neuter pronoun in
any reference to Landlord or Tenant shall be deemed to include any individual Landlord or
Tenant, and the use herein of the words "successors and assigns" or "successors or assigns" of
Landlord or Tenant shall be deemed to include the heirs, legal representatives and assigns of any
individual Landlord or Tenant.
(d) City's Governmental Capacity. Nothing in this Lease or in the parties' acts
or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or
otherwise affect the authority of the City in the discharge of its police or governmental power.
(e) Reference to "herein", "hereunder", etc. All references in this Lease to the
terms "herein", "hereunder" and words of similar import shall refer to this Lease, as
distinguished from the paragraph, Section or Article within which such term is located.
(f) Reference to "Approval" or "Consent", etc. All references in this Lease to
the terms "approval", "consent" and words of similar import shall mean "reasonable written
approval" or "reasonable written consent" except where specifically provided otherwise.
(g) Singular and Plural, Gender, Etc. Words importing singular number shall
include the plural number in each case and vice versa, and words importing "persons" shall
include firms, associations, corporations, and other entities, including governments and
governmental bodies, as well as natural persons, unless the context shall otherwise indicate.
Words of the masculine gender shall be deemed and construed to include correlative words of
the feminine and neuter genders, and vice versa, as the context may require.
Section 32.3 Entire Agreement.
This Lease, together with the attachments hereto, contains all of the promises,
agreements, conditions, inducements and understandings between Landlord and Tenant
concerning the Premises other than the Development Agreement, and there are no promises,
agreements, conditions, understandings, inducements, warranties or representations, oral or
written, express or implied, between them other than as expressly set forth herein and in such
attachments hereto, in the Development Agreement, or as may be expressly contained in any
enforceable written agreements or instruments executed simultaneously herewith by the parties
hereto.
Section 32.4 Counterparts.
This Lease may be executed in counterparts, each of which shall be deemed an original
but all of which together shall represent one instrument.
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Section 32.5 Waiver, Modification, Etc.
No covenant, agreement, term or condition of this Lease shall be changed, modified,
altered, waived or terminated except by a written instrument of change, modification, alteration,
waiver or termination executed by Landlord and Tenant. No waiver of any Default or default
shall affect or alter this Lease, but each and every covenant, agreement, term and condition of
this Lease shall continue in full force and effect with respect to any other then existing or
subsequent Default or default thereof.
Section 32.6 Effect of Other Transactions.
No Sublease, Mortgage or other agreement of any kind, whether executed simultaneously
with this Lease or otherwise, and whether or not consented to by Landlord, shall be deemed to
modify this Lease in any respect, and in the event of an inconsistency or conflict between this
Lease and any such instrument, this Lease shall control, except where specifically stated
otherwise herein.
Section 32.7 Severability.
If any provision of this Lease or the application thereof to any Person or circumstances is,
to any extent, finally determined by a court of competent jurisdiction to be invalid and
unenforceable, the remainder of this Lease, and the application of such provision to Persons or
circumstances other than those as to which it is held invalid and unenforceable, shall not be
affected thereby and each term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
Section 32.8 Merger.
Unless Landlord, Tenant and all Mortgagees execute and record an agreement to the
contrary, there shall be no merger of this Lease or the leasehold estate created hereby with the
fee estate in the Premises or any part thereof by reason of the same Person acquiring or holding,
directly or indirectly, this Lease and the leasehold estate created hereby or any interest in this
Lease or in such leasehold estate as well as the fee estate in the Premises.
Section 32.9 Remedies Cumulative.
Each right and remedy of either party provided for in this Lease shall be cumulative and
shall be in addition to every other right or remedy provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by
the terms of this Lease), and the exercise or beginning of the exercise by a party of anyone or
more ofthe rights or remedies provided for in this Lease, or now or hereafter existing at law or in
equity or by statute or otherwise, except as otherwise expressly limited by the terms of this
Lease, shall not preclude the simultaneous or later exercise by such party of any or all other
86
rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise except as otherwise expressly limited by the terms of this Lease.
Section 32.10 Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Lease, when either party exercises any of its
rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole
cost and expense.
Section 32.11 Recognized Mortgagee Charges and Fees.
Tenant shall pay any and all fees, charges and expenses owing to a Recognized
Mortgagee in connection with any services rendered by it as a depositary pursuant to the
provisions of this Lease.
Section 32.12 Successors and Assigns.
The agreements, terms, covenants and conditions herein shall be binding upon, and inure
to the benefit of, Landlord and Tenant and, except as otherwise provided herein, their respective
permitted successors and permitted assigns and shall be construed as covenants running with the
Land.
Section 32.13 Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Lease, under no circumstances
shall any party to this Lease lose any right or benefit granted under this Lease or suffer any harm
as a result of the occurrence of any Default or default of such party as to which Default or default
such party has not received notice thereof from the other party.
Section 32.14 No Liability of Officials and Employees of Landlord or Tenant.
It is expressly understood that this Lease and obligations issued hereunder are solely
corporate, obligations, and, except as otherwise provided in Article 17, that no personal liability
will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, members,
partners, holders of other ownership interests, directors, elected or appointed officials (including,
without limitation, the Mayor and Commissioners of the City and the members of any other
governing body of Landlord) or employees, as such, of Landlord or Tenant, or of any successor
corporation or other successor entity, or any of them, under or by reason of the obligations,
covenants or agreements contained in this Lease or implied therefrom; and, except as otherwise
provided in Article 17, that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer, member, partner, holder of other ownership interest, director,
elected or appointed official (including, without limitation, the Mayor and Commissioners of the
City and the members of any other governing body of Landlord) or employee, as such, or under
87
or by reason of the obligations, covenants or agreements contained in this Lease or implied
therefrom are expressly waived and released as a condition of, and as a consideration for, the
execution of this Lease.
Section 32.15 Conflict of Interest.
Tenant represents and warrants that, to the best of its actual knowledge, no member,
official or employee of the City has any direct or indirect financial interest in this Lease, nor has
participated in any decision relating to this Lease that is prohibited by law. Tenant represents
and warrants that, to the best of its knowledge, no officer, agent, employee or representative of
the City has received any payment or other consideration for the making of this Lease, directly or
indirectly, from Tenant. Tenant represents and warrants that it has not been paid or given, and
will not payor give, any third person any money or other consideration for obtaining this Lease,
other than normal costs of conducting business and costs of professional services such as
architects, engineers, and attorneys. Tenant acknowledges that Landlord is relying upon the
foregoing representations and warranties in entering into this Lease and would not enter into this
Lease absent the same.
Section 32.16 No Partnership or Joint Venture.
The parties hereby acknowledge that it is not their intention under this Lease to create
between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-
ownership or agency relationship for the purpose of developing the Project, or for any other
purpose whatsoever. Accordingly, notwithstanding any expressions or provisions contained
herein, nothing in this Lease or the other documents executed by the pa'rties with respect to the
Project, whether based on the calculation of Rental or otherwise, shall be construed or deemed to
create, or to express an intent to create, a partnership, joint venture, tenancy-in-common, joint
tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the
parties hereto. The provisions of this Section 32.17 shall survive Expiration of the Term.
Section 32.17 Time Periods.
Any time periods in this Lease of less than thirty (30) days shall be deemed to be
computed based on business days (regardless of whether any such time period is already
designated as being computed based on business days). In addition, any time period which shall
end on a day other than a Business Day shall be deemed to extend to the next Business Day.
Section 32.18 Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this Lease as to
both Landlord and Tenant, including, but not limited to, the times within which Tenant must
commence and complete construction of the Project.
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Section 32.19 Radon Notice.
Chapter 88-285, Laws of Florida, requires the following notice to be provided with
respect to the contract for sale and purchase of any building, or a rental agreement for any
building:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit."
Section 32.20 No Third Party Beneficiaries.
Nothing in this Lease shall confer upon any Person, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies under or by reason of this
Lease; provided, however, that a Recognized Mortgagee or its Designee shall be an intended
third party beneficiary hereunder to the extent such Recognized Mortgagee or such Designee is
granted rights hereunder.
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EXECUTION
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound, have
executed this Lease as of the day and year first above written.
WITNESSES:
~/~ ()~~
Print Name: 11ez.(So1A /It/;//,.,.....J
~S~
Print Name: q ~/ It- C:, ,0 ,f~T7tU''f' L-
WITNESSES:
(fJn-1:- X t.?f.:'Q\; ~_
AMI BEACH, FLORIDA, a
o tion of the State of Florida
By:
, Mayor
ATTEST:
By ~~~~~
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Il--'(f~a
Date
By:
Howard Herring
President and Chief Executive Officer
90
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this /4 day of ~ '
_, by L.I:7/..//d ~/J?er , as Mayor, and -:?1Jk/I-&_. as City
Clerk, of the CITY OF IAMI BEACH, FLORIDA, a municipai corporation of the State of
Florida, on behalf of such municipal corporation. They are personally known to me.
;{l~d&-~~ /
Notary Public, State of Florida
Print Name: Lillitm. D~Mleh!tlTIf'
1=Ou \0 CctlderO.{'\
My commission expires:
~~ULA'=~:".'
\\'4iJ, Expqe 713CWlX1P I
~~~~....:;;;;.
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
. (The foregoing instrument was acknowledged before me this ? day of -.fAvv~,
200j,'tby Howard Herring, as President of New World Symphony, a Florida not-for-profit
organization, on behalf of such &~~ON. He is personally known to me or produced a
valid Florida driver's licenses as identification.
My commission expires:
t>llV I'll
0'" 0><;.. SANDRAGORTIZ
'" J:~ ~ COMMISSIOO NUMBER
:y ~,~ 00081461
~ o~ MY OOMMISSION EXPIRE
OF F\. JAN. 1,2006 .
91
Not . , State ofFl n a
Print name: ~L:t/YI fa. {)tY72.
List of Exhibits
Exhibit A
*Legal Description of the Land
Exhibit B
*Legal Description of Adjacent Property
Exhibit C
Public Benefits
Exhibit D
Permitted Exceptions
Exhibit E
Form of Memorandum of Lease and Possession Date Certificate
Exhibit F
Legal Description of City Parking Expansion
Exhibit G
*Legal Description of Garage Property
Exhibit H
Form of Estoppel Certificate
*Exact legal description cannot be determined until the Project Design IS selected by the
Commission.
F:\atto\$ALLlLiz\NWS Ground Lease Agr (12-9-03 Revision - FinaJ).doc
92
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