First Amendment to Lease Agreement with CLPF - Lincoln, LLC aoaa—322 17
Prepared By and After Recording Return to:
Ricardo J. Dopico, Esq.
Deputy City Attorney
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
FIRST AMENDMENT TO AGREEMENT OF LEASE
This FIRST AMENDMENT TO AGREEMENT OF LEASE (this "Amendment"), is
made as of the day of , 2022 (the "Effective Date"), by and between CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida ("Owner"), and
CLPF—LINCOLN,LLC, a Delaware limited liability company("Tenant").
WHEREAS, Owner and Tenant(as successor in interest to Lincoln Plaza Partners, LLC)
previously entered into that certain Agreement of Lease, dated as of September 1, 1999, as
recorded in Official Records Book 18770,Page 447,of the Public Records of Miami-Dade County,
Florida (the"Lease Agreement"),pursuant to which Owner agreed to lease to Tenant,and Tenant
agreed to lease from Owner, the Premises (as defined in the Lease Agreement), for the
development, management and operation of a parking garage, office space, retail space and/or
commercial space as more particularly described in the Lease Agreement; and
WHEREAS, Owner and Tenant desire to enter into this Amendment to amend the Lease
Agreement as hereinafter set forth; and
WHEREAS, on July 22,2022,the City Commission adopted Resolution No. 2022-32217
approving this Amendment and authorizing the Mayor and City Clerk to execute this Amendment.
NOW, THEREFORE, for and in consideration of the above-stated premises and certain
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Owner and Tenant hereby agree as follows:
1. Incorporation of Recitals; General Provisions. The foregoing recitals are true
and correct and are incorporated in and made a part of this Amendment by reference. All
capitalized terms used herein but not otherwise defined herein shall have the respective meanings
ascribed thereto in the Lease Agreement.
2: Revised Definitions; Sale of Project and Transfer.
(a) Additional Definitions in Section 1.1. Section 1.1 of the Lease Agreement
is hereby amended to add or modify the following definitions:
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"Affiliate"or"Affiliates"means,with respect to any Person,any other Person that,
directly or indirectly, through one or more intermediaries, controls or is controlled
by, or is under common control with, such Person. For purposes hereof, the term
"control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, by Governmental Requirements or
otherwise, or the power to elect in excess of fifty percent (50%) of the directors,
managers, general partners or other Persons exercising similar authority with
respect to such Person(it being acknowledged that a Person shall not be deemed to
lack Control of another Person even though certain decisions may be subject to
"major decision" consent or approval rights of limited partners, shareholders or
members, as applicable).
"Debt"has the meaning provided in Section 11.2(a).
"First Transferee"has the meaning given in Section 11.11(c).
"Foreclosure Transferee"and"Foreclosure Transfers"have the meanings provided
in Section 11.11(c).
"Institutional Lender" means a Person which, as of the date of closing of any
financing provided by such Person to Tenant or Mezzanine Borrower(or as of the
date such Person acquires an interest in such financing after the date of closing), is
(a) 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; (b) 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; (c) 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, a hedge fund, an opportunity fund, a public or private
debt fund or other public or private investment entity in each case whether acting
as principal or agent; (d) 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; (e) an employees' welfare,benefit,pension
or retirement fund; (f) an institutional leasing company; (g) a financing subsidiary
or division of a New York Stock Exchange listed company; (h) any governmental
agency or entity insured by a governmental agency, (i) a private wealth
management firm managing commercial lending investments for one or more
families or (j) any combination of any of the foregoing (provided that each such
lender satisfies the Institutional Lender criteria (other than in connection with a
syndicated loan meeting the requirements expressly set forth below));provided that
each of the above Persons shall qualify as an Institutional Lender only if(i)it is not
a Prohibited Person, (ii) as of the date of closing of any financing provided by such
Person to Tenant or Mezzanine Borrower(or as of the date such Person acquires an
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interest in such financing after the date of closing),it has total assets of not less than
One Hundred Seventy-Five Million Dollars ($175,000,000) adjusted for inflation
from and after July 1, 2022 and(iii)it is not an Affiliate of Tenant(it being further
agreed that none of the standards set forth in this definition shall be applicable to
participants in a loan secured by the Recognized Mortgage or a Mezzanine Loan
which is held by an Institutional Lender whether acting individually or in a
fiduciary or representative (such as an agency) capacity). The term "Institutional
Lender" also includes an Affiliate of an Institutional Lender as described in this
paragraph. In the event of a syndicated loan, if as of the date of the closing of any
financing, the lenders holding not less than fifty-one percent (51%) of the
outstanding principal balance of such loan secured by the Recognized Mortgage or
such Mezzanine Loan, are Institutional Lenders, then the syndicated loan shall be
deemed to be made by an Institutional Lender. Without limiting the foregoing, for
reference purposes, in the case of any syndicated loan secured by a Recognized
Mortgage obtained by Tenant or syndicated Mezzanine Loan obtained by the
Mezzanine Borrower, references herein to "Recognized Mortgagee" and
"Recognized Mezzanine Lender," respectively, shall refer to the Institutional
Lender that is the administrative agent or collateral agent for the applicable
syndicate.
"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 subdivision or agency thereof; a foreign
government or any bureau,department,political subdivision or agency thereof;and
any fiduciary acting in such capacity on behalf of any of the foregoing.
"Recognized Mortgagee" means an Institutional Lender that is the holder of a
Recognized Mortgage,provided,in the case of a syndicated loan,references herein
to "Recognized Mortgagee" shall refer to the Institutional Lender then serving as
the administrative agent or collateral agent for the syndicate of lenders. A
Recognized Mortgagee may not be an Affiliate of Tenant except(a) if Tenant is an
Affiliate of a Recognized Mortgagee that has caused this Lease to be assigned to
such Affiliate in lieu of foreclosure of the Recognized Mortgage of such
Recognized Mortgagee and(b)an Affiliate that is a credit fund or other investment
vehicle that provides loans in the ordinary course of its business may be part of a
lending group constituting a Recognized Mortgagee so long as such Affiliate (i)
does not own, collectively with any other Affiliate, more than forty-nine percent
(49%)of the debt with respect to Tenant or the Project; (ii) is not the lead lender or
agent for the lending group; and(iii)otherwise meets the definition of Institutional
Lender.
In addition, Section 1.1 is hereby amended to delete the definition of"Foreclosed Tenant".
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(b) Additional Definitions in Section 10.2.
(i) Section 10.2 of the Lease Agreement is hereby amended to add the
following definitions:
"Controlling Interest Transfer" means any Transfer to any proposed Transferee
that will result in such Transferee having the power to direct and Control, directly
or indirectly,the business and affairs of Tenant.
"Domestically Sponsored Fund" means any private equity fund, real estate
investment trust or other pooled investment vehicle which directly or indirectly
owns an Equity Interest in Tenant or a Permitted Buyer and whose sponsor and/or
manager is an entity organized under the laws of the United States of America or
any state thereof.
"Exempt Pledge" means a single pledge (other than in connection with the
Mezzanine Loan) by a single Person of such Person's indirect Equity Interests in
Tenant in favor of one Institutional Lender providing financing secured by
substantial collateral in addition to such indirect Equity Interests in Tenant.
"OFAC Regulations" means all applicable orders, rules, regulations, sanctions
programs and recommendations of the Office of Foreign Asset Control of the U.S.
Department of Treasure, including without limitation the Specially Designated
Nationals and Blocked Persons List, as the same may be amended.
"Prohibited Person" shall mean any of the following Persons: any Person
organized in or controlled from a country, the effects of the activities with respect
to which are regulated or controlled pursuant to the following United States laws
and the regulations or executive orders promulgated thereunder to the extent the
same are then effective: (x) the Trading with the Enemy Act of 1917, 50 U.S.C.
App. §1, et seq., as amended; (y) the International Emergency Economic Powers
Act of 1976, 50 U.S.C. §1701, et seq., as amended; and(z) the Anti-Terrorism and
Arms Export Amendments Act of 1989, codified at Section 6(j) of the Export
Administration Act of 1979, 50 U.S.C. App. § 2405(j), as amended; or (iii) any
Person who has engaged in any dealings or transactions(A) in contravention of the
applicable money laundering laws or regulations or conventions or (B) in
contravention of Executive Order No. 13224 dated September 24, 2001 issued by
the President of the United States (Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism), as may be amended or supplemented from time to time or any
published terrorist or watch list that may exist from time to time;or(iv) any Person
with whom U.S. Persons are prohibited to engage in transaction pursuant to the
OFAC Regulations, including without limitation any person who appears on or
conducts any business or engages in any transaction with any person appearing on
the list maintained by the U.S. Treasury Department's Office of Foreign Assets
Control list located at 31 C.F.R., Chapter V, Appendix A or is a person described
in Section 1 of the Anti-Terrorism Order, as the same may be amended or
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supplemented from time to time;or(v)any Affiliate of any of the Persons described
in paragraphs (i) through(iv) above.
"Publicly Traded U.S.Company"means any publicly traded company organized
under the laws of the United States of America or any state thereof.
"U.S. Person" means any United States citizen, permanent resident alien, entity
organized under the laws of the United States or any jurisdiction within the United
States (including foreign branches), or any person in the United States.
(ii) Section 10.2(a) of the Lease Agreement is hereby further amended
by deleting the definition of"Assignment"in its entirety and replacing it with the following:
"Assignment"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, which is not a Transfer or a Master Sublease. The creation,
pledge or granting of the Recognized Mortgage to the Recognized Mortgagee or of
the Mezzanine Loan Documents to the Recognized Mezzanine Lender shall not
constitute an Assignment or a Transfer."
(c) Restrictions on Sale of the Project or Transfer. Section 10.3(b) of the
Lease Agreement is hereby deleted in its entirety and replaced with the following:
"No Sale of the Project or Transfer to a Foreign Instrumentality.
Notwithstanding anything in this Lease to the contrary, there shall not be any Sale
of the Project or any Transfer to a Foreign Instrumentality; provided that,
notwithstanding the foregoing or anything contained in this Article 10 or elsewhere
in this Lease, nothing herein shall, or shall be construed to, prohibit or restrict the
indirect ownership of Equity Interests in Tenant or a Permitted Buyer (as
hereinafter defined) at any time by any one or more Foreign Instrumentalities, so
long as (a) any such Equity Interests in Tenant held by a Foreign Instrumentality
are owned indirectly by such Foreign Instrumentality through a Domestically
Sponsored Fund or a Publicly Traded U.S. Company; (b) the interests in such
Domestically Sponsored Fund or Publicly Traded U.S. Company owned by any
such Foreign Instrumentalities are non-Controlling Interests; (c) subject to the next
sentence, such Foreign Instrumentalities with interests, whether direct or indirect,
in the Domestically Sponsored Fund or a Publicly Traded U.S. Company are not,
to Tenant's knowledge, Prohibited Persons and (d) such Domestically Sponsored
Fund and/or Publicly Traded U.S. Company maintains a compliance program to
ensure it does not permit any Foreign Instrumentalities that are Prohibited Persons
to acquire direct interests in the applicable Domestically Sponsored Fund or
Publicly Traded U.S. Company or Tenant in violation of applicable federal laws of
the United States of America. In the event Tenant obtains knowledge that any such
Foreign Instrumentality holds an indirect Equity Interest in Tenant in violation of
clause (c) of this Section, such ownership shall not be an Event of Default under
this Lease, but Tenant shall use best efforts to cure such violation as soon as
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reasonably practicable but in any case not later than three(3)months following the
date that it first obtains knowledge of such violation (which cure may be effected
by the applicable Domestically Sponsored Fund and/or Publicly Traded U.S.
Company complying with the applicable federal laws of the United States of
America with respect to such Prohibited Person's indirect interest in the Tenant).
Upon Owner's written request from time to time, Tenant shall certify to the City
that,to its knowledge,there is no Foreign Instrumentality having an indirect interest
in Tenant as permitted by this Lease that is a Prohibited Person. For the avoidance
of doubt, no Foreign Instrumentality shall be entitled to exercise control over
Tenant or the day to day operation and leasing of the Premises."
(d) Amendments to Sections 10.3, 10.4, 10.5 and 10.6.
(i) Section 10.3(d) is hereby amended by replacing "Section 11.12"
with"Section 11.11."
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(ii) The following language is hereby deleted from the last sentence of
Section 10.4(c) of the Lease Agreement:
"(for purposes of this Section 10.4(c)only,the term"Transfer"shall include
a transfer of an Equity Interest in a Person or Persons having an Equity
Interest, directly or indirectly, in Tenant)."
(iii) Sections 10.5 and 10.6 of the Lease Agreement are hereby amended
to replace the terms "Transfer" and "proposed Transfer" with the terms "Controlling Interest
Transfer" and "proposed Controlling Interest Transfer," respectively, such that the terms,
provisions and/or requirements of Sections 10.5 and 10.6 shall apply only to a Sale of the Project
and/or a Controlling Interest Transfer.
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3. Mezzanine Financing. Article 11 of the Lease Agreement is hereby deleted in its
entirety and replaced with the following:
"Article 11 -Mortgages and Financing
Section 11.1 Right to Mortgage and Other Financing.
(a) Except for an Exempt Pledge or as otherwise expressly provided for in this
Article 11, Tenant shall not mortgage, pledge, hypothecate or otherwise encumber Tenant's
Interest in the Premises or permit to be mortgaged, pledged, hypothecated or otherwise
encumbered all or any portion of the direct or indirect Equity Interests in Tenant.
(b) Tenant shall have the right to mortgage,pledge,hypothecate or otherwise
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encumber Tenant's Interest in the Premises to secure Debt by a Recognized Mortgage without
Owner's approval,provided,the loan agreement or other debt instruments secured by the
Recognized Mortgage must be for Debt exclusively related to the Premises. Tenant
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acknowledges and agrees that the loan secured by the Recognized Mortgage shall not be cross-
defaulted with any other loan.
(c) The Mezzanine Borrower shall have the right to secure a Mezzanine Loan
to finance or refinance the direct and/or indirect Equity Interests of Tenant and, in conjunction
with and to secure that financing,such Mezzanine Borrower may enter into a pledge of all (but not
less than all) of its direct and/or indirect Equity Interests in Tenant in favor of the Mezzanine
Lender in accordance with this Article 11. For the avoidance of doubt, there shall not be more
than one Mezzanine Loan outstanding at any time. Tenant acknowledges and agrees that the
Mezzanine Loan shall not be cross-defaulted with any other loan (other than the loan secured by
the Recognized Mortgage).
Section 11.2 Definitions.
(a) "Debt" means the principal amount of debt and interest thereon (x) of
Tenant and secured by Tenant's Interest in the Premises, together with any other amounts owed
by Tenant under the Recognized Mortgage to the Recognized Mortgagee, or (y) of Mezzanine
Borrower and secured by a pledge of all (but not less than all) of the direct or indirect Equity
Interests in Tenant, together with any other amounts owed by Mezzanine Borrower under the
Mezzanine Loan Documents to the Recognized Mezzanine Lender, or(z) to the extent permitted
hereby, of Tenant to the Institutional Lender providing the C-PACE financing. 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 the Recognized
Mortgagee or the Recognized Mezzanine Lender, as applicable, 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, pledges or security interests
created by the Recognized Mortgage or the Mezzanine Loan Documents, as applicable, and
reasonable expenses incurred by the Recognized Mortgagee or the Recognized Mezzanine Lender,
as applicable, by reason of a Default by Tenant under such Recognized Mortgage or under this
Lease.
(b) "Mezzanine Borrower" means the borrower under the Mezzanine Loan,
which borrower is the owner, directly or indirectly,of all of the Equity Interests of Tenant.
(c) "Mezzanine Loan" means the mezzanine loan, if any, made by the
Recognized Mezzanine Lender to the Mezzanine Borrower to provide financing or refinancing
related to the Premises in accordance with this Lease, which shall be secured by a pledge of the
direct and/or indirect Equity Interests in Tenant.
(d) "Mezzanine Loan Documents" means, collectively, any loan agreement,
promissory note, pledge, guaranty, UCC-1 Financing Statement, or other documents evidencing
or securing the Mezzanine Loan.
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(e) "Mortgage" means any mortgage or deed of trust, 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.
Notwithstanding anything to the contrary set forth herein,Tenant shall not enter into and shall not
permit to exist at any time any Mortgage on the Property other than a single Recognized Mortgage
in favor of the Recognized Mortgagee.
(f) "Recognized Mezzanine Lender" means an Institutional Lender that is
making the Mezzanine Loan to the Mezzanine Borrower.
(g) "Recognized Mortgage" means the single Mortgage (i) that secures Debt
exclusively for and directly related to the Premises; (ii) that is held by a Person (other than an
Affiliate except as contemplated in the definition of Recognized Mortgagee) which is an
Institutional Lender, (iii) that expressly provides that it is subject to the terms of this Lease and,
except as expressly set forth herein regarding Owner's subordination in certain circumstances of
its right to Percentage Rent,is subordinate to Owner's Interest in the Premises(including Owner's
interest in the Lease), and(iv) a copy of which is provided in accordance with Section 11.4(a).
Section 11.3 Effect of Mortgages.
(a) Owner's Interest. No Mortgage or other encumbrance executed by Tenant
or the Mezzanine Borrower shall extend to or be a lien or encumbrance upon, Owner'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 and shall at all times, without the necessity for the execution of
any further documents, be subject and subordinate to Owner's Interest in the Premises.
(b) Mortgagee's Rights Not Greater than Tenant's. The execution and
delivery of the Recognized Mortgage shall not give or be deemed to give the Recognized
Mortgagee any greater rights against Owner than those granted to Tenant hereunder, except as
otherwise expressly provided in this Lease.
Section 11.4 Notice and Right to Cure Tenant Defaults.
(a) Notice to Owner. Tenant shall deliver to Owner, promptly after execution
by Tenant or Mezzanine Borrower,(i)with respect to the Recognized Mortgagee,a true and correct
copy of the recorded Recognized Mortgage, and any amendment, modification or extension
thereof(other than any amendments or modifications to cure any ambiguities or scriveners errors
or that are otherwise de minimis in nature) together with the name and address for notices of the
Recognized Mortgagee and (ii) with respect to the Recognized Mezzanine Lender, a true and
correct copy of any pledge agreement executed in connection with the Mezzanine Loan and any
amendment, modification or extension thereof(other than any amendments or modifications to
cure any ambiguities or scriveners errors or that are otherwise de minimis in nature),together with
the name and address for notices of the Recognized Mezzanine Lender.
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(b) Notice to Recognized Mortgagee and Recognized Mezzanine Lender.
Owner shall give to the Recognized Mortgagee and the.Recognized Mezzanine Lender, in the
manner provided by the provisions of Section 26.1 at such address as Tenant has delivered to
Owner pursuant to Section 11.4(a) or as the Recognized Mortgagee or Recognized Mezzanine
Lender, as applicable,may from time to time deliver to Owner in accordance with Section 26.1, 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 the Recognized Mortgagee or the
Recognized Mezzanine Lender unless and until a copy thereof shall have been so received by or
refused by the Recognized Mortgagee or Recognized Mezzanine Lender, as applicable. Owner
shall also give the Recognized Mortgagee and Recognized Mezzanine Lender 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 Owner pursuant to its termination rights hereunder. Owner
shall be deemed to have fulfilled its notice obligation by providing the required notice to the
address delivered to Owner in accordance with Section 11.4(a) or at such other address as the
Recognized Mortgagee or Recognized Mezzanine Lender, as applicable, may from time to time
deliver to Owner in accordance with Section 26.1, and Owner shall not be responsible for any
liability in the event such address is not current.
(c) Right and Time to Cure. Subject to the provisions of Section 11.13,either
the Recognized Mortgagee or the Recognized Mezzanine Lender shall have the right to cure or
caused to be cured the Event(s) of Default set forth in the Notice of Failure to Cure. The
Recognized Mortgagee and the Recognized Mezzanine Lender shall have a concurrent period of
ninety (90) days after receipt of the Notice of Failure to Cure (the"Cure Period"which, for the
avoidance of doubt, shall not be extended pursuant to the provisions of Section 25.1(b)), 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 25.1(b). Nothing contained
herein shall be construed as imposing any obligation upon (x) the Recognized Mortgagee or the
Recognized Mezzanine Lender to so perform or comply on behalf of Tenant or(y)Owner to notify
the Recognized Mezzanine Lender of whether the Recognized Mortgagee cured (or caused to be
cured)any such Event(s) of Default or to notify the Recognized Mezzanine Lender of whether the
Recognized Mortgagee cured (or caused to be cured) any such Event(s) of Default. Anything
contained in this Lease to the contrary notwithstanding, Owner 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 the Cure Period, (x)the Recognized Mortgagee complies with clauses
(i),(ii) and(iii)below, or(y)the Recognized Mezzanine Lender complies with clauses(i), (ii) and
(iv)below:
(i) notify Owner in writing of the Recognized Mortgagee's or
Recognized Mezzanine Lender's, as applicable, desire to cure the matter described in such Notice
of Failure to Cure;
(ii) pay or cause to be paid all Rental and/or Impositions then due and
in arrears as specified in the Default Notice from Owner to the Recognized Mortgagee and the
Recognized Mezzanine Lender (provided, however, that such Recognized Mortgagee or
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Recognized Mezzanine Lender shall not be required to pay or cause to be paid any amounts
payable by Tenant under Section 28.1(b)to the extent such amounts relate to any Lease Year other
than the Lease Year for which the most recent Annual Financial Statements have been made
available to Owner; provided further, however, in the event that the Recognized Mortgagee or
Recognized Mezzanine Lender (A) provides notice to Owner pursuant to Section 11.4(c)(i), and
(B) files a foreclosure or other enforcement action within the Cure Period, and diligently
prosecutes such foreclosure or other enforcement action, the Recognized Mortgagee's and/or
Recognized Mezzanine Lender's curative obligations with regard to an Event of Default as
provided in this Section 11.4(c)(ii)shall be governed by the provisions of Section 11.4(c)(iii)(with
respect to a Recognized Mortgagee) or Section 11.4(c)(iv) (with respect to a Recognized
Mezzanine Lender));
(iii) with respect to the Recognized Mortgagee,cure or cause to be cured
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 (including the payment of Rental and/or
Impositions),or if any such Default is of such a nature that it cannot reasonably be remedied before
the end of the Cure Period(but is otherwise reasonably susceptible to cure),Recognized Mortgagee
shall, (A) by or before the end of the Cure Period advise Owner of the Recognized Mortgagee's
intention to institute all steps (and from time to time, as reasonably requested by Owner, the
Recognized Mortgagee shall advise Owner 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(B)thereafter diligently prosecute to completion all such steps necessary
to remedy the same,it being acknowledged by Owner that,if possession or control of the Premises
is required to effect such cure, the diligent, continuous prosecution of a foreclosure or other
enforcement action that would result in possession or control of the Premises by the Recognized
Mortgage, and the continuing efforts by the Recognized Mortgagee to effect such cure following
completion of such foreclosure or other enforcement action, shall constitute a part of the steps
necessary to remedy such Default, and during the period of such pursuit, all other obligations of
Tenant under this Lease, to the extent they are susceptible of being performed by the Recognized
Mortgagee(e.g.,payment of all Rental and Impositions),are being performed;provided,however,
Percentage Rent shall be due only if, and to the extent that, Project Revenues are sufficient to pay
Percentage Rent after payment of Operating Expenses and Debt Service in respect of the loan
secured by the Recognized Mortgage,it being understood and agreed that Debt Service in respect
of any Mezzanine Loan shall be subordinate to the obligation to pay Percentage Rent. Until such
time as the applicable Event of Default is fully cured, the Recognized Mortgagee shall provide to
Owner a monthly statement setting forth Project Revenues and Operating Expenses. Nothing in
this Lease shall require the Recognized Mortgagee, or its Designee or Foreclosure Transferee to
cure any Default of Tenant not reasonably susceptible of being cured by such Person (including,
without limitation,the Defaults stated in Section 25.1 (f), (g), (h), (i) and (k));
(iv) with respect to the Recognized Mezzanine Lender,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 (including the payment of Rental and/or Impositions),
or if any such Default is of such a nature that it cannot reasonably be remedied before the end of
the Cure Period (but is otherwise reasonably susceptible to cure), Recognized Mezzanine Lender
shall, (i) by or before the end of the Cure Period, advise Owner of the Recognized Mezzanine
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Lender's intention to institute all steps (and from time to time, as reasonably requested by Owner,
the Recognized Mezzanine Lender shall advise Owner 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, it being acknowledged by Owner that, if title to the direct or
indirect Equity Interests in Tenant is required to effect such cure, the diligent, continuous
prosecution of a foreclosure under the Uniform Commercial Code of the Recognized Mezzanine
Lender's security interest in all of the direct or indirect Equity Interests in Tenant or other
enforcement action,and the continuing efforts by the Recognized Mezzanine Lender to effect such
cure following completion of such foreclosure or other enforcement action, shall constitute a part
of the steps necessary to remedy such Default, and during the period of such pursuit, all other
obligations of Tenant under this Lease, to the extent they are susceptible of being performed by
the Recognized Mezzanine Lender (e.g., payment of all Rental (including, for the avoidance of
doubt,Percentage Rent)and Impositions),are being performed. Nothing in this Lease shall require
the Recognized Mezzanine Lender or its Designee or UCC Transferee to cure any Default of
Tenant not reasonably susceptible of being cured by such Person (including, without limitation,
the Defaults stated in Section 25.1 (f), (g), (h),(i) and(k)).
Notwithstanding the foregoing provisions of this Section 11.4(c), following the delivery
of a Notice of Failure to Cure, within five(5) Business Days following the written request of the
Recognized Mortgagee and/or the Recognized Mezzanine Lender (which request may be
contained in the written notice to Owner from the Recognized Mortgagee and/or Recognized
Mezzanine Lender, as applicable, pursuant to Section 11.4(c)(i)), Owner shall deliver to the
Recognized Mortgagee or Recognized Mezzanine Lender,as applicable,a statement certifying the
aggregate amount of Rental and/or Impositions then due and/or in arrears hereunder (including
Percentage Rent if the amount then due and/or in arrears is known to Owner) and the estimated
per diem increase in such amount, but no such request shall increase any of the time periods
provided for in this Section 11.4(c).
(d) Acceptance of Performance. Owner shall accept performance pursuant to
and in accordance with this Article XI by the Recognized Mortgagee or the Recognized
Mezzanine Lender 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.
(e) Other Rights of the Recognized Mortgagee and Recognized Mezzanine
Lender. Notwithstanding any other provision of this Lease, no payment made to Owner by the
Recognized Mortgagee or the Recognized Mezzanine Lender shall constitute such Person's
agreement that such payment was,in fact, due under the terms of this Lease.
(f) Owner's Self-Help Rights. Notwithstanding the foregoing provisions of
this Section 11.4, if, as applicable, the Recognized Mortgagee or Recognized Mezzanine Lender
fails (for any reason) to cure any Default by Tenant described in Section 11.4(c)(iii) or (iv), as
applicable, within the Cure Period following receipt of the Notice of Failure to Cure regarding
such Default, then Owner 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 Owner access to
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the Premises in order to perform any such obligation. Any amount paid by Owner in performing
Tenant's obligations as provided in this Section 11.4(e),including all costs and expenses incurred
by Owner in connection therewith, shall constitute Rental hereunder and shall be reimbursed to
Owner within thirty(30) days following Owner's demand therefor, together with a late charge on
amounts actually paid by Owner,calculated at the Late Charge Rate from the date of notice of any
such payment by Owner to the date on which payment of such amounts is received by Owner.
(g) Acceptance of Owner's Performance. Tenant shall cause the loan
documents with respect to any Recognized Mortgagee and the Mezzanine Loan Documents of the
Recognized Mezzanine Lender to contain a provision requiring that the Recognized Mortgagee
and the Recognized Mezzanine Lender, respectively, must accept performance by Owner, 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 loan documents or Mezzanine Loan
Documents, as applicable,with the same force and effect as though performed by Tenant.
Section 11.5 Recognized Mortgagee, Recognized Mezzanine Lender or its Designee, as
Tenant Under this Lease.
If the Recognized Mortgagee or its, Designee becomes Tenant under this Lease or if
Mezzanine Lender or its Designee becomes the owner of all of the direct or indirect Equity
Interests in Tenant, then, in that event, the Recognized Mortgagee, the Recognized Mezzanine
Lender or such Designee shall, during the period of its tenancy:
(a) pay or cause to be paid, as applicable, all current Rental and/or Impositions
commencing as of the date such Recognized Mortgagee or its Designee becomes Tenant or
Recognized Mezzanine Lender or its Designee becomes the holder of all of the direct or indirect
Equity Interests in Tenant (the "Reinstatement Date"); provided, however, if the Recognized
Mortgagee or its Designee becomes the Tenant, Percentage Rent which was due for periods prior
to the Reinstatement Date shall be forgiven and shall not thereafter be payable;
(b) comply with all the covenants and conditions of this Lease, including the
payment of Rental and/or Impositions; except for payment of Rental and/or Impositions shall be
as specified in this Section 11.5;
(c) pay all Back Rent and/or Impositions that were due and owing as of the
Reinstatement Date in the following manner:
(i) Monthly; provided, however, if the Recognized Mortgagee or its
Designee or its Foreclosure Transferee becomes the Tenant, then the payment of Back Rent and
Impositions that were due and owing as of the Reinstatement Date shall be payable only to the
extent sufficient funds are received by such Recognized Mortgagee, its Designee or its Foreclosure
Transferee from Project Revenue after deducting Operating Expenses, Debt Service (solely in
respect of the loan secured by the Recognized Mortgage, which Debt Service shall be retained by
the Recognized Mortgagee) and amounts paid pursuant to Section 11.5(a);
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(ii) Back Rent and/or Impositions that were due and payable as of the
Reinstatement Date shall continue as an obligation of the Recognized Mortgagee, Recognized
Mezzanine Lender or any Designee until paid in full ; and
(d) pay all Percentage Rent which accrues subsequent to the Reinstatement
Date as follows:
(i) For so long as a Recognized Mortgagee or its Designee is Tenant,
Percentage Rent shall be payable monthly, but only to the extent that funds are available therefor
after making the payments set forth in Section 11.5(a), (b) and (c) above. If the Recognized
Mortgagee or its Designee becomes the Tenant,Percentage Rent shall be waived(and not accrued)
to the extent that Project Revenue in any Lease Year is not sufficient to pay Percentage Rent after
payments have been made with respect to amounts set forth in Sections 11.5(a)-(c).
(ii) Upon a Foreclosure Transfer by a Recognized Mortgagee or its
Designee, any amounts of Percentage Rent accrued, but unpaid due to the insufficiency of funds
pursuant to Section 11.5(d)(i), shall be forgiven.
For the avoidance of doubt, the provisions in Section 11.4(c) and this Section 11.5 that provide
for the abatement, deferral, subordination and/or forgiveness of Back Rent, Impositions and/or
Percentage Rent are applicable only in respect of a Recognized Mortgagee, Debt Service
associated with a Recognized Mortgage, and/or a Foreclosure Transfer by a Recognized
Mortgagee to a Foreclosure Transferee, and are not intended to be applicable to any Recognized
Mezzanine Lender, Debt Service associated with a Recognized Mezzanine Loan or a Foreclosure
Transfer by a Recognized Mezzanine Lender to UCC Transferee. In addition, notwithstanding
anything herein to the contrary, there shall be no abatement, deferral, subordination and/or
forgiveness of Back Rent,Impositions and/or Percentage Rent if any portion of the Equity Interest
in the Person that is the First Transferee is owned,either legally or beneficially,by the tenant under
this Lease that was foreclosed upon.
Section 11.6 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, Owner shall give prompt notice thereof to the Recognized Mortgagee and the
Recognized Mezzanine Lender("Notice of Termination").
(b) Request for and Execution of New Tenant's Documents. If, within
ninety(90) days of receipt of Notice of Termination(the"New Documents Option Period"),the
Recognized Mortgagee or Recognized Mezzanine Lender shall request, in writing,a new lease for
the remainder of the Term, on the same terms and conditions as set forth in this Lease(the"New
Tenant's Documents"),then,subject to the provisions of Sections 11.6(c)and 11.7,within ninety
(90) days after Owner shall have received such request from the Recognized Mortgagee or
Recognized Mezzanine Lender, as applicable,Owner shall execute and deliver,to an escrow agent
and subject to escrow instructions, each as mutually agreed by Owner and such Person, New
Tenant's Documents covering the remainder of the Term with the Recognized Mortgagee or the
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Recognized Mezzanine Lender, as applicable, or its applicable Designee, Foreclosure Transferee,
or UCC Transferee, in each case, that has satisfied the requirements set forth in Section 10.3 and
10.4(such Person, a"New Tenant"). Such New Tenant's Documents shall be effective upon the
execution thereof by both Owner and such New Tenant. The New Tenant's Documents shall be at
the then current Rental and/or Impositions (subject, however to Sections 11.4 and 11.5, to the
extent applicable) and otherwise 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 Owner of all then-existing Improvements) and shall be accepted by
such New Tenant in "AS IS" "WHERE IS" and "WITH ALL FAULTS" condition without any
representation or warranty by Owner;provided,however,that Owner 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 a judicially appointed receiver or trustee for Tenant; provided, further, such
New Tenant's Documents will have the same priority over any encumbrances on the estate of
Owner which Tenant has or had by virtue of this Lease and the New Tenant will not have any
obligation to perform any acts under this Lease which shall at such time have already been
performed by Tenant.
Concurrently with the execution and delivery of such New Tenant's Documents, Owner
shall assign to the New Tenant 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 Rental and/or Impositions and the costs incurred by Owner 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 Owner to restore the Premises),if any,then held
by or payable to Owner which Tenant would have been entitled to receive but for termination of
this Lease or Owner's exercise of its rights upon the occurrence of an Event of Default; provided,
however, that Owner shall not be required to assign such moneys to such New Tenant unless and
until such New Tenant shall have cured all Events of Default that existed under this Lease prior to
the execution of such New Tenant's Documents to the extent such Events of Default are reasonably
susceptible to cure by such New Tenant.
Upon the execution and delivery of New Tenant's Documents under this Section 11.6(b),
all Master Subleases which theretofore may have been assigned to Owner shall be assigned and
transferred, without recourse, representation or warranty, by Owner 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,Owner shall not enter into any new Master
Subleases, cancel or modify any then existing Master 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 the Recognized Mortgagee or
Recognized Mezzanine Lender, as applicable.
For so long as the Recognized Mortgagee or Recognized Mezzanine Lender, as applicable,
(or its Designee) shall have the right to enter into the New Tenant's Documents with Owner
pursuant to this Section 11.6(b), Owner shall not enter into a new lease of the Land with any
Person other than the Recognized Mortgagee or Recognized Mezzanine Lender, as applicable (or
its Designee), without the prior written consent of the Recognized Mortgagee or the Recognized
Mezzanine Lender, as applicable. The provisions of Section 11.6(b)shall survive the termination,
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rejection or disaffirmance of this Lease and shall continue in full force and effect thereafter to the
same extent as if Section 11.6(b)were a separate and independent contract made by Owner,Tenant
and the Recognized Mortgagee or Recognized Mezzanine Lender, as applicable, and, from the
effective date of such termination,rejection or disaffirmance of this Lease to the date of execution
and delivery of the New Tenant's Documents to the extent requested and entered into in
accordance with and pursuant to this Section 11.6(b) below, the Recognized Mortgagee or
Recognized Mezzanine Lender, as applicable, may use and enjoy the leasehold estate created by
this Lease without hindrance by Owner. Notwithstanding anything to the contrary set forth in
this Section 11.6(b) or otherwise, if the Recognized Mortgage or the Recognized Mezzanine
Lender, as applicable(or its Designee) fails to timely request, or thereafter fails to timely execute
and deliver the New Tenant's Documents to Owner within thirty(30)days after Owner's delivery
of the executed New Tenant's Documents to the escrow agent, Owner shall have no further
obligation,and the Recognized Mortgagee or Recognized Mezzanine Lender, as applicable,(or its
Designee) shall have no further right, to enter into the New Tenant's Documents or to use and
enjoy the leasehold estate. The aforesaid agreement of Owner to enter into New Tenant
Documents with the Recognized Mortgagee or the Recognized Mezzanine Lender,or its respective
Designee, shall be deemed a separate agreement between Owner and the Recognized Mortgagee
and between Owner and the Recognized Mezzanine Lender,in each case, separate and apart from
this Lease as well as a part of this Lease, and shall be unaffected by the rejection of this Lease in
any bankruptcy proceeding by any party.
(c) Conditions Precedent to Owner's Execution of New Tenant's
Documents. The provisions of Section 11.6(b)notwithstanding, Owner shall not be obligated to
enter into New Tenant's Documents with the Recognized Mortgagee or Recognized Mezzanine
Lender, as applicable (or its applicable Designee, Foreclosure Transferee or UCC Transferee)
unless:
(i) the Recognized Mortgagee or Recognized Mezzanine Lender, as
applicable (or its applicable Designee, Foreclosure Transferee or UCC Transferee) shall pay to
Owner, concurrently with the execution and delivery of the New Tenant's Documents, all unpaid
Rental and/or Impositions due under this Lease(subject,however to Sections 11.4 and 11.5,to the
extent applicable) 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 of the Premises actually
received by Owner 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 applied by
Owner to the payment of Base Rent or Percentage Rent, as applicable, (subject, however to
Sections 11.4 and 11.5,to the extent applicable) due under such New Tenant's Documents; and
(ii) in the case of a Default or Event of Default, the Recognized
Mortgagee or Recognized Mezzanine Lender, as applicable (or its applicable Designee,
Foreclosure Transferee or UCC 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
15
reasonably susceptible to cure by such Recognized Mortgagee or Recognized Mezzanine Lender,
as applicable(or its applicable Designee, Foreclosure Transferee or UCC 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 Recognized Mezzanine Lender, as applicable (or its applicable
Designee, Foreclosure Transferee or UCC 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 25.1), all
Defaults existing under this Lease immediately before its termination. Nothing in this Lease shall
require the Recognized Mortgagee or the Recognized Mezzanine Lender, as applicable (or its
applicable.Designee, Foreclosure Transferee or UCC 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 of Tenant).
(e) Payments under Lease. If the Recognized Mortgagee or Recognized
Mezzanine Lender, as applicable (or its applicable Designee, Foreclosure Transferee or UCC
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 pursuant to the provisions of this Lease,then Owner agrees that, subject to any rights
of setoff Owner may have, the same shall be paid to the Recognized Mortgagee or Recognized
Mezzanine Lender, as applicable (or its applicable Designee, Foreclosure Transferee or UCC
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 Recognized Mezzanine Lender, as applicable (or its applicable Designee,
Foreclosure Transferee or UCC Transferee) as if this Lease had not been terminated.
(g) The provisions of this Section 11.6 shall survive the Expiration of the Term.
Section 11.7 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 Person(whether the
Recognized Mortgagee,Recognized Mezzanine Lender or otherwise) shall have the right to apply
the proceeds of insurance or awards toward the payment of the sum secured by.its loan documents,
except for the reasonable costs of collection thereof; provided, however, Recognized Mortgagee
and Recognized Mezzanine Lender shall be permitted "additional insureds" under any insurance
policies maintained with respect to the Premises.
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Section 11.8 Appearance at Condemnation Proceedings.
The Recognized Mortgagee and Recognized Mezzanine Lender shall have the right to
appear in any condemnation proceedings and to participate in any and all hearings, trials and
appeals in connection therewith.
Section 11.9 Rights Limited to Recognized Mortgagee and Recognized Mezzanine Lender.
The rights granted to the Recognized Mortgagee under the provisions of this Lease shall
not apply in the case of any Mortgagee that is not the Recognized Mortgagee. The rights granted
to the Recognized Mezzanine Lender under the provisions of this Lease shall not apply in the case
of any mezzanine lender that is not the Recognized Mezzanine Lender. Tenant acknowledges and
agrees that no mortgage other than the Recognized Mortgage is permitted to encumber the
Premises and Tenant's Interest in the Premises without Owner's prior written consent,which may
be granted or withheld in its sole discretion. Tenant acknowledges and agrees that except for the
Exempt Pledge, no loan documents, other than the Mezzanine Loan Documents, are permitted to
encumber the direct or indirect Equity Interests in Tenant without Owner's prior written consent,
which may be granted or withheld in its sole discretion.
Section 11.10 No Surrender or Modification.
Owner agrees not to accept a voluntary surrender,termination or modification of this Lease
at any time while the Recognized Mortgage shall remain a lien on Tenant's leasehold estate or
while the Mezzanine Loan Documents shall remain an encumbrance on the direct or indirect
Equity Interests in Tenant. It is further understood and agreed that(a)the Recognized Mortgagee
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 the Recognized
Mortgagee, and this Lease shall not terminate by merger or otherwise as long as the lien of the
Recognized Mortgage remains undischarged and (b) the Recognized Mezzanine Lender 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 the Recognized Mezzanine
Lender and this Lease shall not terminate by merger or otherwise as long as the lien of the
Recognized Mezzanine Lender's pledge of all of the direct or indirect Equity Interests of Tenant
remains undischarged. Notwithstanding the foregoing, Owner's waiver or postponement of any
obligation of Tenant or any remedy Owner may have under this Lease shall not constitute a
modification for purposes hereof.
Section 11.11 Recognized Mortgagee's Assignment Rights.
(a) Notwithstanding anything contained in Article 10 or elsewhere in this Lease
to the contrary, (i) a Foreclosure Transfer described in Sections 11.11(c)(i)(1) or a Foreclosure
Transfer described in Section 11.11(c)(i)(2)(x) to Recognized Mezzanine Lender or its Designee
(in either case, other than to a Foreign Instrumentality except as permitted by Section 10.3(b) for
so long as the City is Owner) shall not require the consent of Owner or constitute a breach of any
provision of or a Default under this Lease, and shall not constitute a Right of First Offer
Transaction subject to Section 36.2 and (ii) a Foreclosure Transfer described in Section
17
11.11(c)(i)(2)(x) to a UCC Transferee other than Recognized Mezzanine Lender or its Designee
or Section 11.11(c)(i)(2)(y),in either case,to a Permitted Buyer that is not, for so long as the City
is Owner, a Foreign Instrumentality except as permitted by Section 10.3(b), shall not require the
consent of Owner or constitute a breach of any provision of or a Default under this Lease,and shall
not constitute a Right of First Offer Transaction subject to Section 36.2. Upon any such
Foreclosure Transfer, Owner shall recognize the Foreclosure Transferee as Tenant or the UCC
Transferee as the owner of all of the direct or indirect Equity Interests of Tenant hereunder, as
applicable,provided,however,that such new Tenant or such owner, as applicable, shall deliver to
Owner,or shall cause to be delivered to Owner,within thirty(30) days after the execution thereof,
the appropriate instruments provided in Sections 10.5 and 10.6 (subject to the provisions of
Section 11.11(b)).
(b) Except as expressly provided otherwise in this Lease, the Recognized
Mortgagee or Recognized Mezzanine Lender, as applicable, (or its applicable Designee,
Foreclosure Transferee or UCC Transferee) shall not be liable under this Lease unless and until
such time as it becomes Tenant or becomes the owner of all of the direct or indirect Equity Interests
of Tenant hereunder, as applicable, and then only for so long as it remains Tenant or such owner
hereunder.
(c) Definitions:
(i) "Foreclosure Transfer"means, as applicable:
(1) a transfer occurring as a result of the foreclosure of the
Recognized Mortgage,or any 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 the
Recognized Mortgage or by virtue of the exercise of any power contained in the
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 the Recognized Mortgagee (or its Designee or
Foreclosure Transferee); or
(y) by or on behalf of Tenant or the Recognized
Mortgagee (or its Designee or Foreclosure Transferee) or pursuant to foreclosure
proceedings to a purchaser of Tenant's Interest in the Premises at a foreclosure sale
pursuant to the Recognized Mortgage or by the Recognized Mortgagee (or its
Designee or its Foreclosure Transferee)after consummating a Foreclosure Transfer
as described in clause(1)(x) above or after such foreclosure sale; or
(2) a transfer occurring as a result of the foreclosure pursuant to
the UCC of the Recognized Mezzanine Lender's pledge of all of the direct or indirect
Equity Interests in Tenant, or any sale of all of the direct or indirect Equity Interests in
Tenant, or any other transfer or assignment of all of the direct or indirect Equity Interests
in Tenant pursuant to the UCC pertaining to the Mezzanine Loan Documents or by virtue
18
of the exercise of any power contained in the Mezzanine Loan Documents, or by an
assignment-in-lieu or other consensual conveyance, or otherwise:
(x) by or on behalf of Tenant or•pursuant to
foreclosure proceedings pursuant to the UCC to the Recognized Mezzanine Lender
(or its Designee or UCC Transferee); or
(y) by or on behalf of Tenant or the Recognized
Mezzanine Lender (or its Designee or Foreclosure Transferee) or pursuant to
foreclosure proceedings pursuant to the UCC to a purchaser of all of the direct or
indirect Equity Interests in Tenant at a UCC foreclosure sale pursuant to the
Mezzanine Loan Documents or by the Recognized Mezzanine Lender (or its
Designee or its Foreclosure Transferee)after consummating a Foreclosure Transfer
as described in clause(2)(x) above or after such foreclosure sale.
(ii) "Foreclosure Transferee"means the purchaser,transferee or other
assignee in a Foreclosure Transfer described in Section 11.11(c)(i)(l).
(iii) "First Transferee"means the Person that acquires Tenant's Interest
in the Premises from a Recognized Mortgagee or its Designee that acquired Tenant's
Interest in the Premises pursuant to a Foreclosure Transfer described in Section
11.11(c)(i)(1).
(iv) "UCC Transferee" means the purchaser, transferee or other
assignee in a Foreclosure Transfer described in Section 1 1.11(c)(i)(2).
(v) "Designee"means, as applicable, (x) an Affiliate of the Recognized
Mortgagee that is the designee or nominee of such Recognized Mortgagee or (y) an
Affiliate of the Recognized Mezzanine Lender that is the designee or nominee of such
Recognized Mezzanine Lender.
(d) If a Recognized Mortgagee or its Designee acquires Tenant's Interest in the
Premises pursuant to a Foreclosure Transfer, all accrued but unpaid Percentage Rent shall be
forgiven and shall not thereafter be due and payable (except to the extent that the Recognized
Mortgagee has failed to pay amounts it was required to pay pursuant to Section 11.4(c)(iii) and/or
Section 11.5(d)(i)).
(e) All accrued but unpaid Percentage Rent at the time of a conveyance by a
Recognized Mortgagee or its Designee to a First Transferee shall be forgiven and shall not
thereafter be due and payable (except to the extent the Recognized Mortgagee or its Designee
failed to pay amounts it was required to pay pursuant to Section 11.4(c)(iii) and/or Section
11.5(d)(i)).
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Section 11.12 Notices of Defaults under Financing.
Tenant shall give to Owner copies of all notices of Default received from or delivered by
the Recognized Mortgagee and/or the Recognized Mezzanine Lender within ten (10) days after
receiving written notice of same from such Person.
(a) Notices. Tenant shall cause all loan documents with the Recognized
Mortgagee and Recognized Mezzanine Lender to contain a provision requiring the Recognized
Mortgagee and Recognized Mezzanine Lender, respectively, to send to Owner, simultaneously
with the sending of any Default notices to Tenant, copies of all Default notices or other notices
relating to the failure of Tenant to keep such loan documents in good standing, which notices are
sent pursuant to any loan document or security document to Tenant.
(b) Estoppel Requests. Tenant shall cause loan documents with the
Recognized Mortgagee and Recognized Mezzanine Lender to contain a provision requiring that
such Institutional Lender shall comply with all reasonable estoppel requests of Owner. Owner
shall comply with all reasonable estoppel requests of the Recognized Mortgagee and Recognized
Mezzanine Lender.
Section 11.13 Priority. If at any time there is a Recognized Mortgagee and a
Recognized Mezzanine Lender, and both have exercised any of the rights afforded by Sections
11.4, 11.5 or 11.6(the"Lender Rights"), then the Recognized Mortgagee,to the exclusion of the
Recognized Mezzanine Lender, shall be recognized by Owner as having exercised such right, for
so long as such Recognized Mortgagee shall be exercising its rights under this Lease with respect
thereto. For the avoidance of doubt, the foregoing provisions are not intended to, nor shall they,
. confer upon the Recognized Mezzanine Lender,its Designee or a UCC Transferee any rights that
are included for the benefit of the Recognized Mortgagee, its Designee or Foreclosure Transferee,
including, without limitation, any, provisions that provide for the abatement, deferral,
subordination and/or forgiveness of Back Rent, Impositions and/or Percentage Rent. Owner shall
have the right to conclusively rely on any notice from Recognized Mortgagee and shall have no
liability to any Person including Tenant,Recognized Mortgagee or Recognized Mezzanine Lender
in connection therewith."
4. Subordination.
(a) Section 12.1 of the Lease Agreement is hereby deleted in its entirety and
replaced with the following:
"In the event of a foreclosure under the Recognized Mortgage, Owner's right to
Percentage Rent shall be subordinate, expressly as described in this Lease. This
subordination shall not extend to (a) any Mortgage other than a first mortgage by a
Recognized Mortgagee on Tenant's Interest in the Premises now or hereafter
existing, (b) the Mezzanine Loan Documents, (c) any other liens or encumbrances
hereafter affecting Tenant's Interest in the Premises or (d) any Master Sublease or
any mortgages, liens or encumbrances now or hereafter placed on any Master
Subtenant's interest in the Premises."
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(b) Section 12.2 of the Lease Agreement is hereby deleted in its entirety and
replaced with the following:
"Owner's proprietary interest in the Land, including, without limitation, Owner's
interest in 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) the Mezzanine Loan Documents,
(c) any other liens or encumbrances hereafter affecting Tenant's Interest in the
Premises or the direct or indirect Equity Interests in Tenant or (d) any Master
Sublease or any mortgages, liens or encumbrances now or hereafter placed on any
Master Subtenant's interest in the Premises."
5. Reserve Account. Section 16.5 of the Lease Agreement is hereby deleted in its
entirety and replaced with the following:
"Section 16.5 Repair,Renovation and Replacement Reserve Account.
(a) Maintenance and operation of the Premises will be at no cost to Owner,and
Tenant shall establish a separate interest bearing account(the"Reserve Account")for the purpose
of funding the repair, renovation and replacement of fixtures and equipment required for the
operation of the Premises as a first-class project in accordance with the terms of this Lease, as well
as to assure that funds are available for maintenance of the Premises from and after the CO Date.
To fund the Reserve Account, Tenant shall deposit (or shall cause the Acceptable Operator or
Property Manager to deposit) into the Reserve Account within thirty (30) days after the end of
each month during the Term of this Lease from and after the CO Date an amount which is equal
to the lesser of(i)one twelfth(1/12`h)of the sum of(A) the product of Twenty-Five Cents($0.25)
times the total number of square feet in the office space (including common areas) and (B) the
product of Ten Cents ($0.10) times the number of square feet in the Garage (including common
areas) or (ii) the amount as may be required by the Recognized Mortgagee (the "Required
Reserves");provided,however,if the Recognized Mortgagee has no reserve requirement,then the
Required Reserves shall be the amount set forth in clause(i)above. Owner,in its sole and absolute
discretion, for any reason and for no reason whatsoever, may consider a reduction of the required
payments to the Reserve Account as set forth in this Section 16.5(a) above any time after the CO
Date. Within thirty (30) days after the end of each calendar year during the Term, Tenant shall
certify to Owner the amounts then being held by Tenant as Required Reserves pursuant to this
Section 16.1(a);provided,however,Tenant may instead certify the amounts of Required Reserves
to Owner at the same time it delivers its accounting of Percentage Rent.
(b) Tenant shall make expenditures from the Reserve Account for the purposes
permitted hereunder as is necessary to maintain or improve the Premises in accordance with this
Lease (including capital expenditures); provided, however, that in the event that the Recognized
Mortgage or the Mezzanine Loan Documents provide for a method or procedure for making or
authorizing expenditures from the Reserve Account, the provisions of the Recognized Mortgage
or Mezzanine Loan Documents shall control over the provisions hereof.
21
•
(c) Tenant hereby grants to Owner a security interest in the Reserve Account,
and all profits and proceeds thereof, in order to secure Tenant's obligations under this Section
16.5, which security interest in such Reserve Account shall be automatically fully subject and
subordinate only to the rights of the Recognized Mortgagee. Tenant hereby agrees not to grant a
security interest in the Reserve Account to any Person other than the Recognized Mortgagee or
Owner. Owner shall execute and deliver all such instruments as the Recognized Mortgagee shall
reasonably require in order to confirm Owner's subordination of its security interest as aforesaid.
(d) During the period that (i) the Recognized Mortgagee is pursuing a
foreclosure against Tenant; or(ii) the Recognized Mortgagee or its Designee is the Tenant under
this Lease; or(iii)the Recognized Mezzanine Lender is pursuing a foreclosure of its pledge of all
of the direct or indirect Equity Interests in Tenant;or(iv)the Recognized Mezzanine Lender or its
Designee is the owner of all of the direct or indirect Equity Interests in Tenant, then such
Recognized Mortgagee or Recognized Mezzanine Lender, as applicable (or its Designee) shall
have the option of not funding the Reserve Account; provided,however, such relief from funding
shall not be deemed to affect in any way the operational and maintenance standards imposed upon
the Project pursuant to this Lease (including, without limitation, Section 6.4); provided further,
however, such relief from funding,in any event,shall end upon the earlier to occur of(A)four(4)
years after the date of the earlier to occur of(i) the filing by the Recognized Mortgagee of the
foreclosure of the Recognized Mortgage or the foreclosure by the Recognized Mezzanine Lender
of its pledge of all of the direct or indirect Equity Interests in Tenant, as applicable, or(ii)the date
upon which the Recognized Mortgagee or its Designee becomes the Tenant under this Lease or
the date upon which the Recognized Mezzanine Lender or its Designee becomes the owner of all
of the direct or indirect Equity Interests in Tenant, as applicable; or (B) the date a Foreclosure
Transferee (other than the Recognized Mortgagee or Recognized Mezzanine Lender (or its
Designee))becomes the Tenant under this Lease; or(2) funding the Reserve Account as provided
in this Section 16.5.
(e) Notwithstanding anything to the contrary herein contained,to the extent and
during the period that the Recognized Mortgage or the Mezzanine Loan Documents,as applicable,
contains provisions requiring Tenant to maintain a Reserve Account for the same purpose as this
Section 16.5, the provisions of this Section 16.5,including,without limitation,the requirement to
grant a security interest in favor of Owner (unless otherwise consented to by Recognized
Mortgagee), shall be waived and the provisions of the Recognized Mortgage or Mezzanine Loan
Documents, as applicable, shall be controlling , provided that (i) Tenant maintains the Required
Reserves with such Recognized Mortgagee or Recognized Mezzanine Lender, as applicable and
(ii) Tenant annually certifies to Owner, in accordance with Section 16.1(a), the amount of the
Required Reserves being maintained pursuant to the Recognized Mortgage and/or Mezzanine
Loan Documents. In no event shall Tenant be required to maintain more than one (1) Reserve
Account for the entire Project for the purposes set forth herein."
•
6. Creation of Liens. Section 17.1(a)of the Lease Agreement is hereby deleted in its
entirety and replaced with the following:
"(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
22
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
17.2,(ii)any lien, encumbrance or charge upon any assets of,or funds appropriated
to, Owner,or(iii) any other matter or thing whereby the estate,rights or interest of
Owner 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 the Recognized Mortgage, Mezzanine Borrower shall have the right to
execute the Mezzanine Loan Documents in favor of the Recognized Mezzanine
Lender, and Tenant shall have the right to execute subleases and other instruments
(including,without limitation,equipment leases) as provided by,and in accordance
with,the provisions of this Lease."
7. Leasehold Condominium. The last sentence of Section 23.l(b)(viii) of the Lease
Agreement is hereby deleted in its entirety and replaced with the following:
"The rights and obligations of a Designee from a Recognized Mortgagee relative
to Percentage Rent shall similarly apply."
8. Certain Bankruptcy Matters. Section 25.3 of the Lease Agreement is hereby
amended to add the following as a new subparagraphs (d) and (e):
"(d) As an additional inducement to and material consideration for Owner
agreeing to this Lease, Tenant agrees that in the event any Bankruptcy or Judicial
Action(as hereinafter defined) is commenced which subjects Owner to any stay in
the exercise of Owner's rights and remedies under this Lease, including the
automatic stay imposed by section 362 of the United States Bankruptcy Code
(individually and collectively,"Stay"),then,provided the Stay is lifted and released
as to the Recognized Mortgagees and Recognized Mezzanine Lender(to the extent
the applicable mortgage and mezzanine loan documents include Stay relief
provisions), Tenant irrevocably consents and agrees to the Stay being lifted and
released against Owner, and Owner shall thereafter be entitled to exercise all of its
rights and remedies against Tenant under this Lease. Tenant acknowledges that it
is knowingly, voluntarily, and intentionally waiving its rights to any Stay and
agrees that the benefits provided to Tenant under the terms of this Lease are
valuable consideration for such waiver. As used in this Section, the term
"Bankruptcy or Judicial Action" shall mean any voluntary or involuntary case
filed by or against Tenant under the Bankruptcy Code, or any voluntary or
involuntary petition in composition, readjustment, liquidation, or dissolution, or
any state and federal bankruptcy law action filed by or against Tenant, any action
where Tenant is adjudicated as bankrupt or insolvent, any action for dissolution of
Tenant or any action in furtherance of any of the foregoing, or any other action,
case, or proceeding that has the effect of staying (or in which a Stay is being
obtained against) the enforcement by Owner of its rights and remedies under this
Lease.
23
(e) Notwithstanding the foregoing, in the event that Tenant seeks to assume and
assign this Lease pursuant to section 365 of the Bankruptcy Code it will be required
to provide to Owner adequate assurance of future performance which shall consist
of evidence that such assignee satisfies the applicable"Acceptable Owner Criteria"
set forth in Exhibit B."
9. Polystyrene and Plastic Straw and Stirrer Restrictions.
The following is added as new Section 6.2(c) of the Lease:
(c) Tenant shall include the following provisions in any leases entered into with new tenants
(or lease amendments entered into with existing tenants):
(i) Tenant shall not sell,use,provide food in,or offer the use of expanded polystyrene
food service articles in the Premises.A violation of this section shall be deemed a default under the
terms of this Lease.Notwithstanding the above,this section shall not apply to expanded polystyrene
food service articles used for prepackaged food that have been filled and sealed prior to receipt by
Tenant.
(ii) Tenant shall not sell, use, provide food in, or offer the use of single-use plastic
beverage straws or single-use plastic stirrers in the Premises. A violation of this section shall be
deemed a default under the terms of this Lease.Notwithstanding the above,the foregoing shall not
restrict Tenant from providing a beverage with,or offering the use of,a single-use plastic beverage
straw or single-use plastic stirrer to an individual with a disability or medical condition that impairs
the consumption of beverages without a single-use plastic beverage straw or single-use plastic
stirrer.
24
10. Public Records Act. The following is added as new Section 15.4 of the Lease:
"15.4 Public Records Act. Records copied by Owner, if any, shall be subject to the
requirements of the Florida Public Records Act set forth in Chapter 119 of the Florida Statutes
("Public Records Act"). To the fullest extent permitted by law, Owner shall protect from
disclosure any records that are confidential and exempt from disclosure under Florida law;
provided, however, that nothing herein shall preclude Owner or its employees from complying
with the Public Records Act, and any such compliance shall not be deemed a default by Owner
under this Lease."
11. Inspector General. The following is added as new Section 15.5 of the Lease:
"15.5 Inspector General.
(a) Pursuant to Section 2-256 of the City Code, the City has established the office of
the inspector general which may, on a random basis, perform reviews, audits, inspections and
investigations on all City contracts, throughout the duration of said contracts. This random audit
is separate and distinct from any other audit performed by or on behalf of the City.
(b) The office of the inspector general is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records, contracts and
transactions. In addition, the inspector general has the power to subpoena witnesses, administer
oaths, require the production of witnesses and monitor City projects and programs. Monitoring of
an existing City project or program may include a report concerning whether the project is on time,
within budget and in conformance with the contract documents and applicable law. The inspector
general shall have the power to audit,investigate,monitor,oversee,inspect and review operations,
activities, performance and procurement process including, but not limited to, project design, bid
specifications, (bid/proposal) submittals, activities of Tenant, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents and to
detect fraud and corruption.
(c) Upon ten (10) days' written notice to Tenant, Tenant shall make all requested
records and documents available to the inspector general for inspection and copying.The inspector
general is empowered to retain the services of independent private sector auditors to audit,
investigate, monitor, oversee, inspect and review operations activities, performance and
procurement process including,but not limited to,Project design,bid specifications,(bid/proposal)
submittals,activities of Tenant,its officers, agents and employees,lobbyists,City staff and elected
officials to ensure compliance with the Lease documents and to detect fraud and corruption.
(d) The inspector general shall have the right to inspect and copy all documents and
records in Tenant's possession, custody or control which in the inspector general's sole judgment,
pertain to performance of this Lease, including, but not limited to original estimate files, change
order estimate files, worksheets, proposals and agreements from and with successful
subcontractors and suppliers, all Project-related correspondence, memoranda, instructions,
financial documents, construction documents, (bid/proposal) and contract documents, back-
change documents, all documents and records which involve cash, trade or volume discounts,
25
insurance proceeds, rebates, or dividends received,payroll and personnel records and supporting
documentation for the aforesaid documents and records.
(e) Tenant shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance of this
Lease, for examination, audit, or reproduction, until three years after final payment under this
Lease or for any longer period required by statute or by other clauses of this Lease. In addition:
(i) If this Lease is completely or partially terminated, Tenant shall make available
records relating to the work terminated until three years after any resulting final termination
settlement; and
(ii) Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Lease until such appeals,litigation, or
claims are finally resolved.
(f) The provisions in this Section 15.5 shall apply to Tenant, its officers, agents,
employees, subcontractors and suppliers. Tenant shall incorporate the provisions in this Section
15.5 in all contracts, subcontracts and all other agreements executed by Tenant in connection with
the performance of this Lease.
(g) Nothing in this Section 15.5 shall impair any independent right to the City to
conduct audits or investigative activities. The provisions of this Section 15.5 are neither intended
nor shall they be construed to impose any liability on the City by Tenant or third parties."
12. Representations and Warranties.Owner hereby represents to Tenant,and Tenant
hereby represents to Owner, that:
(a) it has full power and authority to enter into this Amendment and perform in
accordance with its terms and provisions;
(b) that the individuals executing this Amendment on its behalf have the
authority to bind it and to enter into this transaction;
(c) it has taken all requisite action and steps to legally authorize it to execute,
deliver and perform pursuant to this Amendment; and
(d) the Lease Agreement, together with this Amendment, constitute its valid
and binding obligations, enforceable against it in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting enforcement of creditors'rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or law).
26
13. Recording of Amendment. Tenant shall cause this Amendment to be recorded in
the Public Records of Miami-Dade County, Florida promptly after the execution and delivery of
this Amendment and shall pay and discharge all costs, fees and taxes in connection therewith.
14. Effectiveness of Amendment. Upon approval of this Amendment by the City
Commission in accordance with the City Code,the Parties shall each execute this Amendment and
deliver original executed copies of this Amendment to an escrow agent reasonably approved by
the Parties to be held in escrow and released upon the closing of the contemplated sale of the
Project by CLPF — Lincoln, LLC to 1691 Michigan Avenue Property Owner, L.P., provided, if
such sale does not close on or before December 31, 2022,this Amendment shall be null and void
and of no further force and effect.
15. Miscellaneous Provisions.
(a) Owner and Tenant hereby represent and agree that no real estate broker or
other person is entitled to claim a commission as a result of the execution and delivery of this
Amendment.
(b) The Lease Agreement, as modified by this Amendment, sets forth all the
covenants, promises, agreements, conditions and understandings between Owner and Tenant
concerning the Premises, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than those set forth in the Lease
Agreement, as modified by this Amendment.
(c) Except as expressly modified in this Amendment,all of the terms,covenants
and conditions of the Lease Agreement shall remain in full force and effect and are ratified and
confirmed;provided that in the event of a conflict between the terms,covenants and conditions of
the Lease Agreement and this Amendment,the terms of this Amendment shall govern.
(d) This Amendment shall constitute a part of the Lease Agreement and
references to the Lease Agreement hereafter shall automatically include a reference to this
Amendment.
(e) This Amendment may be executed in counterparts, each of which shall be
deemed an original and all of which together constitute one and the same instrument. Facsimile or
electronically transmitted signatures shall be deemed for all purposes to be originals.
Signature pages follow.
27
IN WITNESS WHEREOF, Owner and Tenant have executed this Lease, or have caused
the same to be executed, as of the date and year first above written.
WITNESSES: CITY OF MIAMI BEACH,FLORIDA,
• a municipal corporation of the State of Florida
Milk...) • •
Print Name:WVIAtt,t « to By:
Dan Gelber,Mayor
ATTEST:.......„)(//
Print Name: /1/I i%t{. Bk By: 3 1 T Z"Li ? o U...J Rafael E. Granado, City Clerk
.„ ,, [SEAL]
�Mi s
STATE OF FLORIDA ) ,�
)ss: s 1.11aORPIORATED,°
'%' COUNTY OF MIAMI-DADE ) , , ,& ...;?"
The foregoing instrument was acknowledged pefore me, by means of [0 physical
presence or [ 1 online notarization, this 22 day of fu IV/ , 2D,71....., by
4 Gd&e-y , as Mayor, and /24tf"ae/ E 6ainah, as City Clerk, of the.CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such
municipal corporation. They are personally known to me or produced valid Florida driver's
licenses as identification.
My commission.expires:
P
0Lr"�•. .
.VA/AILEX u0PALES
f• worary Public.State rior+da N. . 'ublic, State of Florida
iy t tmunission N Hm+04i42
': PfA.6 m.My Corm Expires mar 22.20i2 Pro -flame: Ya.nae1G Mvl 'S
Banded through Natiooa'.01ar..i;;•. eQmn SS&o4 4. f{f.' h12.
~' E:KpiaS: /1/4-farth 24? zv26
APPROVED AS TO 0
FORM&LANGUAGE
&FOR EXECUTION
' ,:. 7/ate- /?o zz
City Attorney D
LEGAL_US_E k 164380524.4
WITNESSES: CLPF—LINCOLN,LLC,a Delaware limited liability
company
Print Name: aeAn 6\17-7. By: Clarion Lion Properties Fund Holdings,L.P.,
a Delaware limited partnership
4 Its: Sole Member
Print 1,19tittiptaJ
By: CLPF-Holdings,LLC,
a Delaware limited liability company
Its: General Partner
By: Clarion Lion Properties Fund Holdings REIT,
LLC,a Delaware limited liability company
Its: Sole Member
By: Clarion Lion Properties Fund,LP,
a Delaware limited partnership
Its: Managing Member
By: Clarion Partners LPF GP,LLC, a.
Delaware limited liability company
Its: General Partner
By: Clarion Partners,LLC,
a New York limited liability company • . .
Its: 'Sole Member
By:
Name: Ys, o U Q
Title: 0✓1 �
[SEAL]
o4
STATE OF k)Ve s-kk3IPf )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me, by means of [.4 physical
presence or{ 1:online notarization,this 2-I day of &)v , 9.0e-2,by kaki e kre
as authorized signatory of Clarion Partners,LLC, a New York limited liability company,the sole
member.of Clarion Partners LPF GP, LLC, a Delaware limited liability, company, the general
partner of Clarion Lion Properties Fund, LP, a Delaware limited partnership, the managing.:
member of Clarion Lion Properties Fund Holdings REIT, LLC, a Delaware limited liability
company, the sole member of CLPF-Holdings, LLC, a Delaware limited liability company, the
general partner of Clarion Lion Properties Fund Holdings, L.P.,:a Delaware limited partnership,
the sole member of CLPF--LINCOLN,LLC,a Delaware limited liability company,on behalf of
such companies. He/she [:,/A is personally known to me or r 1 produced
as identification.
My commission expires:
Gam" _ W� �:--
Notary Public, State-o,
Print Name: • 1' =
Navy ��atr��ie�fo�c;e
NotarySeal: }itgavice_airrNN