42. Second Amended and Restated Ground Lease
149919404.10
SECOND AMENDED AND RESTATED GROUND LEASE
(Vista Breeze)
This Second Amended and Restated Ground Lease (this "Ground Lease") is made as of December
15, 2023 (the "Effective Date"), by and between the HOUSING AUTHORITY OF THE CITY OF MIAMI
BEACH, a public body corporate and politic ("Landlord"), and VISTA BREEZE, LTD., a Florida limited
partnership ("Tenant").
PREAMBLE
A. Landlord is the owner of certain real property located in Miami Beach, Miami-Dade
County, Florida, which Landlord desires to revitalize with the use of certain private and public funds.
B. In connection with the development proposal approved by Landlord, Landlord and Tenant
desire that Tenant construct, own, and operate one hundred nineteen (119) residential rental housing units,
all of which shall be low-income housing tax credit units and all of which shall be project-based voucher
units pursuant to Section 8 of the U.S. Housing Act of 1937, as amended, together with other related site
improvements and amenities, to be known as Vista Breeze (the "Project"), on certain real property
identified as the "Premises" in Section 2.01 hereof, to be ground leased by Landlord to Tenant.
C. Landlord and Tenant have previously entered into a Ground Lease Agreement dated as of
November 1, 2020, which Ground Lease was amended and restated pursuant to an Amended and Restated
Ground Lease Agreement dated as of August 6, 2021, as further amended pursuant to that certain First
Amendment to Amended and Restated Ground Lease Agreement dated as of June 1, 2023, that certain
Second Amendment to Amended and Restated Ground Lease Agreement dated as of September 13, 2023,
and that certain Third Amendment to Amended and Restated Ground Lease Agreement dated as of October
27, 2023 (collectively, the “Original Ground Lease”) with respect to the Premises.
D. Landlord and Tenant wish to amend and restate the Original Ground Lease in its entirety,
all upon the terms and conditions set forth herein.
LEASE
In consideration of the foregoing preamble, promises and mutual covenants, Landlord and
Tenant, with the intent to be legally bound, hereby agree that the Original Ground Lease is amended and
restated in its entirety to read as follows:
ARTICLE I - GRANT OF LEASED PREMISES; TERM
1.01. Grant of Leased Premises. Landlord hereby grants and demises the Premises to Tenant to
be effective as of the Effective Date and to have and to hold for a term commencing on the Effective Date
and expiring on the seventy-fifth (75th) anniversary thereof (the "Lease Term"), unless sooner terminated
as provided herein. Notwithstanding the foregoing, the parties acknowledge that the Landlord or an affiliate
thereof has the right to purchase the Project pursuant to that certain Right of First Refusal Agreement and
Purchase Option Agreement dated as of the Effective Date by and among Tenant, Landlord and certain
other parties thereto (together, the "Option Agreement").
ARTICLE II - PREMISES
2.01 Premises. The Premises consists of those certain tracts or parcels of land located in Miami
Beach, Miami-Dade County, Florida as more particularly described in Exhibit A attached hereto and
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incorporated herein, together with all appurtenances, easements and rights of way related thereto and the
improvements thereon (collectively, the "Premises").
2.02 Improvements.
(a) Tenant shall construct, or cause to be constructed, the Project on the Premises as
more particularly described in Exhibit B attached hereto and incorporated herein (the "Improvements"),
for use as new residential rental apartments of which one hundred nineteen (119) units will be low-income
housing tax credit units qualifying for occupancy pursuant to Section 42 of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations promulgated thereunder.
(b) The Improvements shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules, and regulations (collectively all "Applicable Laws") of all
governmental entities having jurisdiction over the Improvements (collectively the "Governmental
Authorities"), provided Landlord in its capacity as landlord, shall have no participation or control of the
construction or operation of the Project, subject to any Landlord approval rights set forth in this Ground
Lease.
(c) The Project is, or will be, subjected to and benefited by the terms and conditions of the
Low Income Housing Tax Credit requirements as set forth in the Code, and as required by the Florida
Housing Finance Corporation during the appropriate extended use period (collectively the "LIHTC
Housing Requirements").
(d) Tenant shall apply for and prosecute, with reasonable diligence, all necessary
approvals, permits, and licenses required by applicable Governmental Authorities for the construction,
development, zoning, use, and occupation of the Improvements.
(e) Construction of the Improvements shall be performed in a good and workmanlike
manner and in conformity with all Applicable Laws.
(f) In the event Tenant shall not (i) begin construction of the Improvements, as
evidenced by a notice to proceed, before January 31, 2024 (provided that the foregoing period shall be
extended for any amount of time in which a delay in construction commencement is attributable solely to
the actions or omissions of Landlord), or (ii) complete construction of the Improvements on or before May
31, 2026 (provided that the foregoing completion deadline shall be extended for any amount of time in
which a delay in construction completion is attributable solely to the actions or omissions of Landlord) or
such later date as permitted by the senior most Permitted Leasehold Mortgagee (as defined in Section 7.09)
or as extended by the senior most Permitted Leasehold Mortgagee and Section 42 of the Code, subject to
Section 7.09 hereof, Landlord shall have the right to terminate this Ground Lease, and if Landlord exercises
such right Landlord shall have no further obligations with respect to Tenant concerning the Premises and
the Improvements and all right, title, and interest in and to the Premises and the Improvements shall
automatically vest in Landlord, provided that such revesting of the estate in Landlord shall be subject to
and limited by, and shall not defeat, render invalid or limit in any way the provisions of Section 7.09.
(g) At all times during the Lease Term, the Improvements shall be owned by Tenant
and, during the Lease Term, Tenant alone shall be entitled to all of the tax attributes of ownership of the
Improvements including, without limitation, the right to deduct, claim, retain and enjoy any and all rental
income, appreciation gain, depreciation, amortization and tax credits for federal and state tax purposes
relating to all Improvements and any and all additions thereto, substitutions therefor, fixtures therein and
other property relating thereto. Landlord shall treat Tenant as the owner of the Improvements for federal
income tax purposes and shall not file any tax returns inconsistent with this treatment. Upon the termination
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of this Ground Lease and any new lease entered into pursuant to Section 7.09 (f) of this Ground Lease the
Premises shall become the sole property of Landlord, at no cost to Landlord, and shall be free of all liens
and encumbrances other than the Permitted Encumbrances (as defined herein).
2.03 No Relationship Involving HUD and Provisions Required for Use of Landlord Funds.
(a) Tenant and Landlord acknowledge that nothing contained in any agreement or contract
between Landlord and Tenant, nor any act of the U.S. Department of Housing and Urban Development
("HUD"), Landlord or Tenant shall be deemed or construed to create any relationship of third-party
beneficiary, principal and agent, limited or general partnership, joint venture or any association or
relationship involving HUD.
(b) Tenant and Landlord acknowledge that a transfer of Landlord funds pursuant to any
loan agreements and related contractual arrangements entered into between Landlord and Tenant, if
applicable, shall not be deemed to be an assignment of such funds and Tenant will not succeed to any rights
or benefits of Landlord under any grant or funding agreements between Landlord and HUD, or attain any
privileges, authorities, interests or rights in or under any agreement between Landlord and HUD.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
3.01 Landlord's Representations and Warranties. Landlord hereby represents and warrants to
Tenant as follows:
(a) Title. Landlord owns fee simple, good and marketable title to the Premises.
(b) Landlord and Approvals. (i) Landlord has full right, power, and authority to make,
execute, deliver, and perform its obligations under this Ground Lease; (ii) Landlord has obtained and
received all required and necessary consents and approvals to enter into and perform this Ground Lease
with Tenant; and (iii) the entry by Landlord into this Ground Lease with Tenant and the performance of all
of the terms, provisions, and conditions contained herein does not and will not, violate or cause a breach or
default under any agreement or obligation to which Landlord is a party or by which it is bound.
(c) Assessments. There are no unpaid special assessments of which Landlord has
received notice for sewer, sidewalk, water, paving, gas, electrical, or utility improvements or other capital
expenditures, matured or unmatured, affecting the Premises.
(d) Contractual Obligations. Landlord is not obligated under any contract, lease or
agreement, materially affecting the ownership, use, operation, management, maintenance, or lease of the
Premises.
(e) Full Disclosure. No representation, statement, or warranty by Landlord contained
in this Ground Lease or in any exhibit attached hereto contains or will contain any untrue statement of a
material fact or omits a material fact necessary to make the statement of fact therein recited not misleading.
(f) Litigation. There is no action, suit, litigation, or proceeding pending or to
Landlord's knowledge, threatened against Landlord that could prevent or impair Landlord's entry into this
Ground Lease or performance of its obligations hereunder.
(g) Environmental. There are, to the actual knowledge of Landlord, no Hazardous
Substances located in, on or under the Premises except as previously disclosed in writing by Landlord to
Tenant. Tenant acknowledges that Landlord has not performed any environmental testing of the Premises.
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For the purposes hereof "Hazardous Substances" includes any substances, chemicals, materials or
elements that are prohibited, limited or regulated by any and all federal, state or commonwealth, and local
laws, regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent orders,
guidance from regulatory agencies, policy statements, judicial decrees, standards, permits, licenses and
ordinances, or any judicial or administrative interpretation of, any of the foregoing, pertaining to the
protection of land, water, air, health, safety or the environment whether now or in the future enacted,
promulgated or issued (the "Environmental Laws"), or any other substances, chemicals, materials or
elements that are defined as "hazardous" or "toxic," or otherwise regulated under the Environmental Laws,
or that are known or considered to be harmful to the health or safety of occupants or users of the Premises.
The term Hazardous Substances shall also include, without limitation, any substance, chemical, material,
or element (i) defined as a 'hazardous substance' under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 USC §§ 9601, et seq.), as amended by the Superfund
Amendment and Reauthorization Act of 1986, and as further amended from time to time and regulations
promulgated thereunder; (ii) defined as a "regulated substance" within the meaning of Subtitle I of the
Resource Conservation and Recovery Act (42 USC §6991-6991 i), as amended from time to time and
regulations promulgated thereunder; (iii) designated as a "hazardous substance" pursuant to Section 311 of
the Clean Water Act (33 USC §1321), or listed pursuant to Section 307 of the Clean Water Act (33 USC
§1317); (iv) defined as "hazardous," "toxic," or otherwise regulated under any Environmental Laws adopted
by the state in which the Premises are located, or its agencies or political subdivisions; (v) which is
petroleum, petroleum products or derivatives or constituents thereof, (vi) which is asbestos or asbestos-
containing materials; (vii) the presence of which requires notification, investigation or remediation under
any Environmental Laws or common laws; (viii) the presence of which on the Premises causes or threatens
to cause a nuisance upon the Premises or to adjacent properties or poses or threatens to pose a hazard to the
health or safety of persons on or about the Premises; (ix) the presence of which on adjacent properties would
constitute a trespass by the owner; (x) which is urea formaldehyde foam insulation or urea formaldehyde
foam insulation-containing materials; (xi) which is lead-based paint or lead-based paint-containing
materials; (xii) which are polychlorinated biphenyls or polychlorinated biphenyl-containing materials; (xiii)
which is radon or radon-containing or producing materials; or (xiv) which by any laws of any governmental
authority requires special handling in its collection, storage, treatment or disposal. Notwithstanding any
contrary provision of this paragraph (g), the term Hazardous Substances shall not apply to such substances
that would otherwise meet such definition as long as (i) the use of such substance in, on or under the
Premises is in compliance with all Environmental Laws and (ii) such substance is used in de minimis
quantities incidental to the operation of the Premises.
3.02 Tenant's Representations and Warranties. Tenant hereby warrants and represents to
Landlord as follows:
(a) Existence. Tenant is a limited partnership presently existing under the laws of the
State of Florida.
(b) Authority. Tenant (i) has the partnership power and authority to own its properties
and assets, to conduct its business as presently conducted and to execute, deliver, and perform its obligations
under this Ground Lease and (ii) has obtained all partnership authorizations and approvals which are
necessary for it to execute, deliver, and perform its obligations under this Ground Lease.
(c) Binding Obligation. This Ground Lease has been duly and validly executed and
delivered by Tenant and constitutes a legal, valid, and binding obligation of Tenant enforceable in
accordance with its terms.
(d) Litigation. There is no pending or, to the best of Tenant's knowledge, threatened
investigation, action, or proceeding by or before any court, any governmental entity or arbitrator which (i)
149919404.10 5
questions the validity of this Ground Lease or any action or act taken or to be taken by Tenant pursuant to
this Ground Lease or (ii) is likely to result in a material adverse change in the authority, property, assets,
liabilities or condition, financial or otherwise, of Tenant which will materially impair its ability to perform
its obligations hereunder.
(e) Full Disclosure. No representation, statement, or warranty by Tenant contained in
this Ground Lease or in any exhibit attached hereto contains any untrue statement of a material fact or omits
a material fact necessary to make such statement of fact therein not misleading.
ARTICLE IV – RENT
4.01 Ground Rent. Tenant covenants and agrees, subject to Section 4.02 hereof, to pay to
Landlord annual fixed rent payments in an amount (the "Annual Base Rent") equal to $129,260.00 for the
Lease Term on or before each anniversary of the Effective Date. The Annual Base Rent will be paid at the
address specified for Landlord in Section 14.12, or at such other address as Landlord designates. Tenant
acknowledges and agrees that the construction of affordable housing on the Premises is a material
inducement for Landlord to offer the Premises on the terms set forth herein to Tenant, and but for Tenant's
promise to provide such housing the terms contained herein would not be offered.
4.02 Deferred Base Rent. During the first fifty (50) years following the Effective Date (the
"Initial Lease Period"), the Annual Base Rent and any Deferred Base Rent (as defined below) will be
payable solely to the extent of available cash flow from the Tenant’s previous fiscal year in the order and
priority set forth in the Tenant’s Amended and Restated Agreement of Limited Partnership (“LPA”) and
subject to the limitations therein, within 120 days following the end of each fiscal year of the Tenant. If
cash flow available pursuant to the terms of the LPA is insufficient to pay the full Annual Base Rent when
due, any unpaid portion shall accrue interest, compounding annually, at a rate equal to Five and Fifty-Four
Hundredths Percent (5.54%), which is equal to 110% of the Closing AFR (the "Deferred Base Rent") until
paid. All unpaid and accrued Deferred Base Rent and interest thereon shall be unconditionally due and
payable at the end of the Initial Lease Period. Following the Initial Lease Period for the remaining Lease
Term, Annual Base Rent shall be due and payable within 120 days following the end of each fiscal year of
the Tenant on a "must pay" basis, not solely from available cash flow. In the event Tenant’s leasehold
interest is acquired by foreclosure or an assignment in lieu of foreclosure or via the Permitted Leasehold
Mortgagee or its designee or assignee obtaining a new lease hereunder, then, at the sole option of the
Permitted Leasehold Mortgagee, any unpaid Deferred Base Rent in excess of available foreclosure proceeds
shall be cancelled and thereafter the amount of Annual Base Rent will be reduced to $1. Notwithstanding
anything to the contrary contained herein, except in the event of a foreclosure or an assignment in lieu of
foreclosure, or via the Permitted Leasehold Mortgagee or its designee or assignee obtaining a new lease
hereunder, any unpaid Deferred Base Rent shall not be cancelled or otherwise extinguished upon any
transfer of ownership in Tenant or in the Project or upon any assumption of the Ground Lease by a transferee
party, and the Annual Base Rent shall continue to be due and payable annually in accordance with the terms
of the Lease. Other than any party that becomes the owner of the Project, the Tenant hereunder or owner of
partnership interests in the Tenant as a result of foreclosure, assignment in lieu of foreclosure or via the
Permitted Leasehold Mortgagee or its designee or assignee obtaining a new lease hereunder, any successor
owner of the Project or of ownership interests in Tenant shall continue to be bound by the terms of the
Ground Lease with respect to payment of the Deferred Base Rent and the Annual Base Rent for the
remainder of the term of the Lease. Notwithstanding anything to the contrary herein, the liability of Tenant
for the payment of any amount due under this Ground Lease or any other obligation set forth herein shall
be to be paid from the revenues, incomes, rents, issues, and profits generated by the Project. The Landlord
shall have no right to seek collection of any amount due hereunder or the performance of any obligation
hereunder from the assets (personal or otherwise) of Tenant or any partner, member, stockholder, officer
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or director of any partner of the Tenant, it being understood that the Landlord's sole recourse shall be paid
from the revenues, incomes, rents, issues, and profits generated by the Project.
4.03 Payments by Tenant. Other than as expressly set forth in this Ground Lease, all costs,
expenses, liabilities, charges or other deductions whatsoever with respect to the Premises and the
Improvements or with respect to any interest of Landlord in the Premises, the Improvements, or this Ground
Lease shall be the responsibility of Tenant.
4.04 Application of Code §467. Annual Base Rent (including Deferred Base Rent) shall
constitute “fixed rent,” as such term is defined in Treas. Reg. §1.467-1(b)(3) and shall be allocated on a
level basis to each full or partial calendar year during the Lease Term (prorated for partial calendar years).
The amount of Deferred Base Rent on which interest is charged shall be adjusted annually to reflect the
amount of Deferred Base Rent as of a date no earlier than the date of the proceeding adjustment and no
later than the date of the succeeding adjustment. The provisions of this Section 4.04 are intended to comply
with the provisions of Treas. Reg. §1.467-2(b) and shall be interpreted and applied consistently therewith.
For Federal income tax purposes, Landlord and Tenant shall include as rental and interest income, or deduct
as rental or interest expense, the amounts required to be so included or deducted in accordance with Code
§467 and the treasury regulations thereunder. If this Ground Lease is terminated prior to the end of the
Lease Term, Tenant shall pay to Landlord on the date of such termination the then outstanding balance of
any “Section 467 loan,” as such term is defined in Treas. Reg. §1.467-4, such payment to be set off against
any amounts then owed by Landlord to Tenant pursuant to any provision of this Ground Lease.
ARTICLE V - TAXES, OPERATING EXPENSES,
INSURANCE REQUIREMENTS, AND RESTORATION
5.01 Taxes. Tenant will pay any payments in lieu of real estate taxes, any real estate taxes and
personal property taxes and assessments assessed, levied, confirmed, or imposed on the Premises or the
Improvements during the Lease Term whether or not now customary or within the contemplation of
Landlord and Tenant. Tenant will pay all real estate transfer taxes that are required in connection with this
Ground Lease. Landlord shall pay all local, state, or federal net income taxes assessed against Landlord,
including but not limited to all sale and use taxes imposed by the state of Florida on the payment due under
this Ground Lease; local, state, or federal capital levy of Landlord; or sales, excise, franchise, gift, estate,
succession, inheritance, or transfer taxes of Landlord. Landlord shall have the obligation to: (i) cause any
tax bills related to the Premises or Improvements to be sent directly to Tenant or (ii) provide copies of all
bills directly to Tenant promptly after receipt. HUD shall have no obligation to provide funding for any
payments required to be made by Landlord pursuant to this Section 5.01.
5.02 Operating Expenses.
(a) Tenant's Obligation. Tenant will pay or cause to be paid directly to the providers
of such services all costs and expenses attributable to or incurred in connection with the ownership, use,
leasing, occupancy, operation, maintenance, and repair of the Premises and the Improvements including
without limitation (i) all energy sources for the Improvements, such as propane, butane, natural gas, steam,
electricity, solar energy, and fuel oil; (ii) all water, sewer and trash disposal services; (iii) all maintenance,
repair, replacement and rebuilding of the Improvements including, without limitation, all mechanical,
electrical, HVAC, telecommunications and security systems within the Improvements, and all structural
and non-structural components of the Improvements, both interior and exterior; (iv) all landscaping, snow
removal, maintenance, repair and striping of all parking areas of the Improvements; (v) all insurance
premiums relating to the Premises, including fire and extended coverage, public liability insurance, rental
insurance and all risk insurance; and (vi) the costs and expenses of all capital improvements or repairs
(whether structural or non-structural) required to maintain the Improvements in good order and repair or
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required by any Governmental (or quasi-governmental) Authority having jurisdiction over the Premises
and the Improvements.
(b) Permits and Licenses. Tenant will also procure, or cause to be procured any and
all necessary permits, licenses, or other authorizations required for the installation and maintenance of
wires, pipes, conduits, equipment, and appliances for use in supplying any such service to and upon the
Premises and the Improvements. Landlord, upon request of Tenant, and at the sole expense and liability of
Tenant, will join with Tenant in any application required for obtaining or continuing any such services.
5.03 Insurance. Tenant shall maintain and keep in force insurance, naming Landlord
as an additional insured, if applicable, in the type and for not less than the amounts specified on
Exhibit C, which types and amounts may be adjusted from time to time by Landlord in its
reasonable discretion. All public liability, property damage liability, and casualty policies
maintained by Tenant will be written as primary policies, not contributing with and not secondary
to insurance coverage that Landlord may carry. If Tenant fails to maintain such insurance, at its
election, and upon five (5) days’ notice to Tenant, Landlord may procure such insurance as may
be necessary to comply with the insurance requirements of this Section 5.03 (but shall not be
obligated to procure same), and Tenant shall repay to Landlord as Additional Rent (defined in
Section 13.01(b) below) the cost of such insurance. Tenant shall furnish to Landlord certificates
of insurance which shall state that a thirty (30)-day notice of prior cancellation or change will be
provided to Landlord. Nothing in this Section 5.03 shall be construed to relieve Tenant from full
compliance with all of the insurance requirements imposed upon Tenant under any Permitted Leasehold
Mortgage.
5.04 Restoration.
(a) If the Improvements shall be damaged or destroyed in whole or in part, Tenant
shall give prompt notice thereof to Landlord. The net amount of all insurance proceeds received by Tenant
with respect to such damage or destruction, after deduction of the reasonable costs and expenses incurred
by Landlord in collecting the same (the "Net Proceeds"), shall, subject to the terms of any Permitted
Leasehold Mortgage (defined in Section 7.09) and the terms and conditions of the LPA, be disbursed by
the senior most Permitted Leasehold Mortgagee (or an independent trustee acceptable to Permitted
Leasehold Mortgagee) in accordance with the terms and conditions set forth in the senior-most Permitted
Leasehold Mortgage to pay for the costs and expenses of the Restoration (defined below), provided that (i)
no Event of Default (defined below) has occurred and remains uncured under this Ground Lease, (ii) except
as otherwise agreed to by Landlord and subject to the terms of any Permitted Leasehold Mortgage, Tenant
proceeds promptly after the insurance claims are settled with the restoration, replacement, rebuilding or
repair of the Improvements as nearly as possible to the condition the Improvements were in immediately
prior thereto (the "Restoration"), (iii) the Restoration shall be done in compliance with all Applicable
Laws, (iv) a set of the plans and specifications in connection with the Restoration shall be submitted to
Landlord and shall be reasonably satisfactory to Landlord, (v) all costs and expenses incurred by Landlord
in connection with the Restoration, including, without limitation, reasonable counsel fees and inspecting
engineer fees incurred by Landlord, shall be paid out of the Net Proceeds, and (vi) Landlord, in its sole
discretion, shall have determined that the Restoration is in its best interest, provided that the Landlord
hereby acknowledges and agrees that Restoration of the Project is in the Landlord's best interest (x) during
the initial 15 years of the tax credit compliance period and the extended use period and (y) in the event that
the Restoration is required by the terms of any Permitted Leasehold Mortgage and is undertaken in
compliance with clauses (iii), (iv) and (v) above in this paragraph (a).
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(b) Net Proceeds Held in Trust. Subject to the terms of any Permitted Leasehold
Mortgage, if the Net Proceeds are not held by the Permitted Leasehold Mortgagee, the Net Proceeds shall
be held in trust by Landlord with interest thereon from the date of deposit and shall be paid by Landlord to,
or as directed by, Tenant from time to time during the course of the Restoration upon the written request of
Tenant if the work for which payment is requested has been done in a good and workmanlike manner and
substantially in accordance with the plans and specifications thereof, if any, and (i) either no notices of
intention to file mechanics' or other liens or encumbrances on the Premises arising out of the Restoration
exist or any such notices, liens or encumbrances have been stayed, discharged or bonded, and (ii) the
balance of the Net Proceeds plus the balance of any deficiency deposits given by Tenant to Landlord or the
Permitted Leasehold Mortgagee holding the Net Proceeds pursuant to the provisions of this paragraph
hereinafter set forth shall be sufficient to pay in full the balance of the cost of the Restoration.
(c) Disbursement of Net Proceeds. Subject to the terms of any Permitted Leasehold
Mortgage, notwithstanding anything to the contrary contained herein, if the Net Proceeds shall be less than
$250,000.00, only one disbursement shall be required upon the completion of the Restoration to the
satisfaction of Landlord.
ARTICLE VI - USE OF PREMISES; COVENANTS RUNNING WITH THE LAND
6.01 Permitted Use. Subject only to the provisions of Section 7.09 below, during the Lease
Term, or such lesser period as may be permitted by Applicable Laws, Tenant will continuously set aside
one hundred nineteen (119) units located on the Premises as affordable residential rental housing units in
compliance with Section 42 of the Code and any requirements of the Florida Housing Finance Corporation,
and shall continuously use and operate all units in a manner which strictly satisfies the requirements of this
Ground Lease.
6.02 Compliance with Laws. Tenant shall not use or occupy, or suffer or permit any portion
of the Premises to be used or occupied in violation of any Applicable Laws, certificate of occupancy, or
other governmental requirement. Tenant will comply with all Applicable Laws and all rules, orders,
regulations, and requirements of the board of fire underwriters or insurance service office, or any other
similar body, having jurisdiction over the Premises and Improvements.
6.03 Special Provisions Relating to Compliance with Environmental Laws.
(a) Tenant's Environmental Covenants. Without limitation of any of Tenant's other
covenants, agreements and obligations under this Ground Lease, Tenant hereby specifically covenants and
agrees to fulfill the responsibilities set forth below with respect to environmental matters:
(i) Tenant shall comply with all Environmental Laws applicable to Tenant
relative to the Premises and Improvements. Tenant shall identify, secure, and maintain all required
governmental permits and licenses as may be necessary for the Premises and Improvements, or otherwise
required by Tenant's activities. Tenant shall maintain such permits and licenses in effect and shall renew
them in a timely manner, and Tenant shall comply and use reasonable efforts to cause all third parties to
comply with the terms of such permits and licenses. All Hazardous Substances present, handled, generated
or used by Tenant on the Premises will be managed, transported and disposed of in a lawful manner.
(ii) Tenant shall provide Landlord with copies of all forms and other
information concerning any releases, spills or other incidents relating to Hazardous Substances or any
violations of Environmental Laws promptly upon the discovery of such releases, spills, or incidents.
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(b) Landlord's Environmental Covenants. Without limitation of any of Landlord's
other covenants, agreements, and obligations under this Ground Lease, Landlord hereby specifically
covenants and agrees to provide Tenant with copies of all forms and other information concerning any
releases, spills, or other incidents relating to Hazardous Substances or any violations of Environmental
Laws with respect to the Premises of which Landlord has actual knowledge.
6.04 Tenant's Environmental Indemnity. Tenant covenants and agrees to indemnify, defend,
and hold Landlord free and harmless from and against any and all losses, liabilities, penalties, claims, fines,
litigation, demands, costs, judgments, suits, proceedings, damages, disbursements, or expenses (including
reasonable attorneys' fees) which may at any time be imposed upon, reasonably incurred by, or asserted or
awarded against Landlord in connection with or arising from:
(a) the existence of any Hazardous Substances which are first placed on, in, or under
all or any portion of the Premises during the Lease Term except to the extent so placed by Landlord; or
(b) any violation of any Environmental Laws by Tenant at or relating to the Premises
which does not arise out of conditions existing prior to the Effective Date or which are not solely caused
by or solely attributable to actions or omissions of Landlord.
6.05 Restrictions Applicable to the Premises and the Improvements.
(a) The provisions of this Section 6.05 are intended to create a covenant running with
the land and shall be binding upon Landlord and Tenant and each of their respective successors and assigns
and all subsequent owners of the Premises and the Improvements, including, without limitation, any entity
which succeeds to Tenant's interest in the Premises and the Improvements.
(b) Tenant shall not execute any agreement, lease, conveyance or other instrument
whereby the Premises and Improvements or any part thereof is restricted upon the basis of race, color,
creed, religion, ancestry, national origin, handicap, age, sex, or marital status in the sale, lease, rental, use,
or occupancy of the Premises and the Improvements.
(c) Tenant shall not unlawfully discriminate in the use, sale, lease, or occupancy of
the Premises and the Improvements against any person upon the basis of race, color, creed, religion,
ancestry, national origin, handicap, age, sex, or marital status.
(d) Tenant shall comply with all State, Federal and local laws, rules, and regulations
in effect from time to time, prohibiting unlawful discrimination or segregation by reason of race, color,
creed, religion, ancestry, national origin, handicap, age, sex, or marital status in the sale, lease, use, or
occupancy of the Premises and the Improvements.
6.06 Survival. This Article VI shall survive the expiration or early termination of this Ground
Lease.
ARTICLE VII - CONVEYANCES, ASSIGNMENTS AND TRANSFERS
7.01 Consent. This Ground Lease shall be binding upon and inure to the benefit of the
successors and assigns of Landlord and Tenant, except that other than as specifically set forth herein Tenant
may not assign or sublet its interest in this Ground Lease, without the prior written consent of Landlord,
subject to Section 7.05 hereof. Any attempted transfer without such consent shall be null and void.
149919404.10 10
7.02 Prohibited Transfers. Tenant agrees for itself and its successors and assigns in interest
hereunder that it will not, other than in accordance with Section 7.09 or pursuant to the Option Agreement:
(1) assign this Ground Lease or any of its rights under this Ground Lease as to all or any portion of the
Premises, or (2) make or permit any voluntary or involuntary total or partial sale, lease, assignment,
conveyance, mortgage, pledge, encumbrance, or other transfer of any or all of the Premises, or the
occupancy or use thereof, other than in accordance with this Ground Lease (including but not limited to (i)
any sale at foreclosure or by the execution of any judgment of any or all of Tenant's rights hereunder, or
(ii) any Transfer by operation of law), without first obtaining Landlord's express written consent thereto;
provided, however, that Tenant may, upon reasonable prior notice to Landlord but without first obtaining
Landlord's consent, convey or dedicate land for use as streets, alleys, or other public rights-of-way, and
make grants and easements for the establishment, operation and maintenance of public utilities.
7.03 Additional Restrictions on Transfers. In addition to the transfers described in Section
7.02, no transfer, conveyance, or assignment shall be made, without the prior written approval of Landlord,
of: (1) any interest of a managing member, general partner, or controlling stockholder (any such interest
being referred to as a "Controlling Interest") of Tenant; or (2) a Controlling Interest in any entity that has
a Controlling Interest in Tenant; or (3) prior to the payment in full of all equity contributions, any other
interest in Tenant, or in any partner or member thereof (each of such transfers, conveyances and
assignments, together with the transfers described in Section 7.02, is hereafter referred to as a "Transfer").
Notwithstanding the foregoing, Landlord consent is not required for a business organization's transfer of
any interest in Tenant that is not a "Controlling Interest" or a transfer of any interest in such business
organization; provided, however, that Tenant delivers to Landlord prompt written notice of such transfer
and certifies to Landlord that after such transfer the transferee remains obligated to fund the equity
contributions in accordance with the terms of the Landlord-approved organizational documents of Tenant.
Landlord agrees that it will not unreasonably withhold, delay, or condition a request by Tenant for consent
to an internal reorganization of the corporate or partnership structure of Tenant or any of the partners,
members, or stockholders of Tenant. Notwithstanding anything herein to the contrary, Landlord consent
shall not be required in connection with (a) the removal or substitution of a general partner of Tenant, (b)
transfers of limited partner interests in Tenant (but subject to the requirements regarding Tenant's notice to
Landlord and certification as to the transferee's obligation to fund equity contributions as set forth in this
Section 7.03), in each case, made in accordance with the terms of the LPA, as the same may be amended,
restated or otherwise modified from time to time, or (c) execution by a Permitted Leasehold Mortgagee of
its rights in connection with a security interest in the general partnership interests in Tenant.
7.04 No Remedy for Unauthorized Transferee. Any person to whom any Transfer is attempted
without such consent shall have no claim, right, or remedy whatsoever hereunder against Landlord, and
Landlord shall have no duty to recognize any person claiming under or through the same.
7.05 Permitted Transfers. Notwithstanding anything in this Ground Lease to the contrary, by
its execution of this Ground Lease, Landlord is deemed to have consented to any sublease of a housing
rental unit to a tenant. Tenant may also, without Landlord’s consent, assign or mortgage this Lease to any
Permitted Leasehold Mortgagee (or its nominee) pursuant to a foreclosure or deed in lieu, undertaken in
accordance with the terms of this Ground Lease.
7.06 Subsequent Assignment. Landlord's consent to one conveyance, assignment, or transfer
will not waive the requirement of its consent to any subsequent conveyance, assignment, or transfer
provided, however, that the first subsequent conveyance, assignment, or transfer by any Permitted
Leasehold Mortgagee (or its nominee) to a third-party purchaser or an affiliate of such Permitted Leasehold
Mortgagee pursuant to, or after, a foreclosure or assignment in lieu is hereby expressly permitted without
Landlord’s consent.
149919404.10 11
7.07 Request for Consent. If Tenant requests Landlord's consent to a specific conveyance,
assignment, or Transfer, Tenant shall provide to Landlord (a) the name and address of the proposed person
or entity; (b) a copy of all proposed conveyance, assignment, or Transfer instruments and other legal
agreements involved in effecting a Transfer; (c) reasonably satisfactory information about the nature,
business, and business history of the proposed person or entity; (d) banking, financial, or other credit
information, and references about the proposed person or entity sufficient to enable Landlord to determine
the financial responsibility and qualifications of the proposed person or entity; and (e) an instrument in
writing satisfactory to Landlord and in recordable form wherein the proposed transferee expressly assumes
all of the obligations of the transferor.
7.08 Documentation of Assignment. Upon the granting of any consent by Landlord with
respect to a conveyance, assignment, or Transfer by Tenant, this Ground Lease shall be binding upon and
inure to the benefit of Landlord, the assignee, and their respective successors and permitted assigns,
provided, however, that any Permitted Leasehold Mortgagee shall only be personally obligated for
performance of obligations under this Lease commencing as of the date of the foreclosure, sale or
conveyance in lieu of and ending as of the date of any assignment of this Ground Lease to a successor
Tenant.
7.09 Permitted Leasehold Mortgages. Neither Tenant nor any permitted successor in interest
to the leasehold estate in the Premises or any part thereof shall, without the prior written consent of Landlord
in each instance, engage in any financing or any other transaction creating any mortgage or other
encumbrance or lien upon the Premises, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attach to the Premises, except for the encumbrances set forth on
Exhibit D hereto (the "Permitted Encumbrances") and the leasehold mortgages securing the loans
described on Exhibit D attached hereto (the "Permitted Leasehold Mortgages"). Landlord consent (not
to be unreasonably withheld) shall be required for a refinancing of a Permitted Leasehold Mortgage, except
that Landlord consent shall not be required for (i) the conversion of the Construction Loan (as defined in
Exhibit D) to its permanent phase through the Permanent Loan (as defined in Exhibit D), (ii) another
refinancing of a Permitted Leasehold Mortgage that is upon substantially the same terms as the existing
loan being refinanced, including, without limitation (a) that the original principal amount of the refinanced
loan shall be no more than the existing loan balance then outstanding at the time of the refinancing, together
with any interest and other fees accrued in connection with the loan being refinanced, (b) that the security
for such refinanced debt shall cover, at most, the same collateral as the existing loan being refinanced, and
(c) that the refinanced interest rate would not lead to a debt service coverage ratio for the refinanced debt
of less than 1.05 to 1, or (iii) refinancings related to a subsequent transfer from a Permitted Leasehold
Mortgagee in possession following a foreclosure, deed in lieu of foreclosure or similar action.
With respect to the Permitted Leasehold Mortgages, the following provisions shall apply:
(a) When giving notice to Tenant with respect to any Event of Default, Landlord will
also send a copy of such notice to Tenant's investor limited partner at the address set forth in Section 14.12
hereof and the holder of each Permitted Leasehold Mortgage (each a "Permitted Leasehold Mortgagee"),
at the address for each Permitted Leasehold Mortgagee included on Exhibit D.
(b) Each Permitted Leasehold Mortgagee and Tenant's investor limited partner shall
be permitted, but not obligated, to cure any Event of Default within the same period of time specified for
Tenant to cure such Event of Default, or such longer time as is permitted in this Section below. Tenant
authorizes Tenant's investor limited partner and each Permitted Leasehold Mortgagee to take any such
action at such party's option and does hereby authorize entry upon the Premises for such purpose.
149919404.10 12
(c) Landlord agrees to accept payment or performance by Tenant's investor limited
partner and/or any Permitted Leasehold Mortgagee as though the same had been done by Tenant.
(d) In the case of a monetary Event of Default, Tenant's investor limited partner and
each Permitted Leasehold Mortgagee shall have the right, but not the obligation, to cure such monetary
Event of Default within thirty (30) days following receipt by the investor limited partner or Permitted
Leasehold Mortgagee of notice from Landlord of such monetary Event of Default. In the case of a non-
monetary Event of Default, and provided that a Permitted Leasehold Mortgagee or Tenant's limited partner
has commenced to cure the non-monetary Event of Default and is proceeding with due diligence to cure
the non-monetary Event of Default, Landlord will refrain from terminating this Ground Lease for a
reasonable period of time (in no event less than thirty (30) days and not to exceed one hundred twenty (120)
days from the date of the notice of such non-monetary Event of Default), unless (i) such cure cannot
reasonably be completed within one hundred twenty (120) days from the date of the notice of such non-
monetary Event of Default, and (ii) a Permitted Leasehold Mortgagee or Tenant's investor limited partner
continues to diligently pursue such cure to the reasonable satisfaction of Landlord (not to exceed two
hundred ten (210) days from the date of notice of such Event of Default, but subject to any stay in any
proceedings involving the insolvency of Tenant) within which time the Permitted Leasehold Mortgagee or
Tenant's investor limited partner, as the case may be, may either (i) obtain possession of the Premises
(including possession by receiver); (ii) institute foreclosure proceedings and complete such foreclosure;
(iii) otherwise acquire Tenant's interest under this Ground Lease; or (iv) replace a general partner of Tenant.
The Permitted Leasehold Mortgagee or Tenant's investor limited partner, as applicable, shall not be required
to continue such possession or continue such proceedings if the Event of Default which was the subject of
the notice shall have been cured; provided however, that if the Event of Default relates to a default arising
out of the construction of the Improvements any period for cure provided herein may, if necessary, be
extended to May 31, 2026 or such later date as permitted for completion of the Improvements pursuant to
the most senior Permitted Leasehold Mortgage to provide a successor tenant under a new lease pursuant to
the terms hereof, a Permitted Leasehold Mortgagee or Tenant’s investor limited partner, as applicable, a
meaningful opportunity to cure (so long as such cure is diligently commenced following receipt of notice
from Landlord of such default and such party is proceeding with due diligence to cure), however, nothing
in this Section 7.09(d) shall be construed to extend this Ground Lease beyond the Lease Term.
(e) Any Permitted Leasehold Mortgagee or other acquirer of Tenant's leasehold estate
and interest in this Ground Lease pursuant to foreclosure, an assignment in lieu of foreclosure or other
proceedings, may, upon acquiring Tenant's leasehold estate and interest in this Ground Lease, without
further consent of Landlord, sell and assign the leasehold estate and interest in this Ground Lease on such
terms and to such persons and organizations as are acceptable to such Permitted Leasehold Mortgagee or
acquirer and thereafter be relieved of all obligations under this Ground Lease, provided such assignee has
delivered to Landlord its written agreement to be bound by all of the provisions of this Ground Lease.
(f) In the event of a termination of this Ground Lease prior to its stated expiration
date, Landlord will enter into a new lease for the Premises and any Improvements with the Permitted
Leasehold Mortgagee (or its nominee), for the remainder of the Lease Term, effective as of the date of such
termination, at the same Annual Base Rent and Deferred Base Rent (in each case, subject to Section 4.02
of this Ground Lease) and subject to the same covenants and agreements, terms, provisions, and limitations
herein contained, provided that:
(i) Landlord receives the Permitted Leasehold Mortgagee's written request for
such new lease within sixty (60) days from the date of such termination and notice thereof by Landlord to
the Permitted Leasehold Mortgagee (including an itemization of amounts then due and owing to Landlord
under this Ground Lease), and such written request is accompanied by payment to Landlord of all amounts
then due and owing to Landlord under this Ground Lease and, within thirty (30) days after the delivery of
149919404.10 13
an accounting therefor by Landlord, pays any and all costs and expenses, including reasonable counsel fees,
court costs, and disbursements made by Landlord in connection with any such Event of Default and
termination as well as in connection with the execution and delivery of the new lease, less the net income
collected by Landlord from the Premises subsequent to the date of termination of this Ground Lease and
prior to the execution and delivery of the new lease, any excess of such net income over the aforesaid sums
and expenses to be applied in payment of the Annual Base Rent thereafter becoming due under the new
lease;
(ii) Upon the execution and delivery of the new lease at the time payment is
made in (i) above, all subleases which thereafter may have been assigned and transferred to Landlord shall
thereupon be assigned and transferred without recourse by Landlord to the Permitted Leasehold Mortgagee
(or its nominee), as the new Tenant;
(iii) Upon the execution and delivery of the new lease, any unpaid Deferred
Base Rent in excess of available foreclosure proceeds shall be cancelled and thereafter the amount of
Annual Base Rent will be reduced to $1; and
(iv) Notwithstanding anything to the contrary in this Ground Lease, any
liability of the Permitted Leasehold Mortgagee and its assigns shall be limited to the value of their respective
interests in the leasehold interest, including Improvements, under this Ground Lease.
If at the time of termination of this Ground Lease prior to its stated expiration date there exists more than
one Permitted Leasehold Mortgagee, then references to the "Permitted Leasehold Mortgagee" in this
subsection (f) shall apply to the Permitted Leasehold Mortgagee then holding the senior mortgage
encumbering the Premises.
(g) Notwithstanding anything to the contrary in this Ground Lease, Landlord shall not
mortgage, transfer or convey its interests under this Ground Lease without the prior written consent of the
Permitted Leasehold Mortgagee, in its sole and absolute discretion, which consent shall not be unreasonably
withheld, delayed or conditioned.
7.10 Estoppel Certificates. Each party hereto shall, at any time and from time to time within
ten (10) days after being requested to do so by the other party, Tenant's limited partner and/or any Permitted
Leasehold Mortgagee in writing, execute, acknowledge, and address and deliver to the requesting party not
more than twice per calendar year (or, at the latter's request, to any existing or prospective Permitted
Leasehold Mortgagee, transferee or other assignee of the requesting party's interest in the Premises or under
this Ground Lease which acquires such interest in accordance with this Ground Lease) a certificate in
recordable form:
(a) Certifying (i) that this Ground Lease is unmodified and in full force and effect (or, if
there has been any modification thereof, that it is in full force and effect as so modified, stating therein the
nature of such modification); (ii) that Tenant has accepted possession of the Premises, and the date on which
the Lease Term commenced; (iii) as to the dates to which any Annual Base Rent, Deferred Base Rent or
Additional Rent and other charges arising hereunder have been paid; (iv) as to the amount of any prepaid
Annual Base Rent, Deferred Base Rent or Additional Rent or any credit due to Tenant hereunder; (v) as to
whether, to the best of such party's knowledge, information and belief, the requesting party (or if requested
by a Permitted Leasehold Mortgagee or Tenant’s investor limited partner), Tenant is then in default in
performing any of its obligations hereunder (and, if so, specifying the nature of each such default); and (vi)
as to any other fact or condition reasonably requested by the requesting party; and
149919404.10 14
(b) Acknowledging and agreeing that any statement contained in such certificate may
be relied upon by the requesting party and any such other addressee.
7.11 Permitted Corporate or Partnership Transfers. Notwithstanding anything to the contrary
set forth elsewhere in this Ground Lease, Tenant may, subject to receipt of Landlord's prior written consent
(which consent shall not be unreasonably withheld), receipt of prior written consent from each Permitted
Leasehold Mortgagee whose consent is required, and compliance with any applicable restrictions, assign
all or part of this Ground Lease, or sublease all or a part of the Premises, to:
(a) any entity which has the power to direct Tenant's management and operation, or
any corporation whose management is controlled by Tenant; or
(b) any entity a majority of whose voting equity is owned by Tenant; or
(c) any entity in which or with which Tenant, its successors or assigns, is merged or
consolidated, in accordance with applicable statutory provisions for merger or consolidation, so long as the
liabilities of the entities participating in such merger or consolidation are assumed by the entity surviving
such merger or created by such consolidation.
7.12 Prepayment as Condition of Transfer. Notwithstanding anything to the contrary set forth
elsewhere in this Ground Lease, Tenant shall have no right to voluntarily transfer and assign this Ground
Lease to an unrelated third party unless it prepays to Landlord (from the net proceeds of the assignment)
all Annual Base Rent due for the remainder of the Lease Term, in an amount equal to the discounted present
value of all such scheduled Annual Base Rent payments discounted at the Closing AFR; provided however,
the foregoing shall not apply to an acquisition by a Permitted Leasehold Mortgagee or its designee by
foreclosure or an assignment in lieu of foreclosure.
ARTICLE VIII - MAINTENANCE AND REPAIR
8.01 Tenant's Obligations. Tenant will, at its sole cost and expense maintain the Premises and
the Improvements and make repairs, restorations, and replacements to the Improvements, including without
limitation the landscaping; heating, ventilating, air conditioning, mechanical, electrical, elevator, and
plumbing systems and other systems for the furnishing of utilities or services to the Premises, structural
roof, walls, and foundations; and the fixtures and appurtenances as and when needed to preserve them in
good working order and condition, and regardless of whether the repairs, restorations, and replacements are
ordinary or extraordinary, foreseeable or unforeseeable, capital or non-capital, or the fault or not the fault
of Tenant, its agents, employees, invitees, visitors, and contractors. All such repairs, restorations, and
replacements will be in quality and class equal to or better than the original work or installations.
8.02 No Obligation of Landlord. Landlord shall not be required to perform or to pay for any
maintenance, or make or pay for any repairs, replacements or improvements of any kind whatsoever to the
Premises or the Improvements or any part thereof during the Lease Term, regardless of the cause
necessitating any such maintenance, repairs, replacements, or improvements, in recognition that this
Ground Lease shall be net in all respects to Landlord. Tenant expressly waives the right to make repairs at
the expense of Landlord as may be provided in any statute, law, or ordinance in effect as of the Effective
Date.
ARTICLE IX - ALTERATIONS
9.01 Consent Required. Subject to the provisions of Article XI hereof, Tenant may not make
any alterations, additions, or improvements to the Premises (excluding the Improvements, which are
149919404.10 15
approved by Landlord) the cost of which is in excess of $100,000 for any one item or $250,000 in the
aggregate, without Landlord's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
9.02 No Liens. Tenant shall not have any right, authority, or power to bind Landlord, the
Premises or any other interest of Landlord in the Premises and will pay or cause to be paid all costs and
charges for work done by it or caused to be done by it, in or to the Premises, for any claim for labor or
material or for any other charge or expense, lien or security interest incurred in connection with the
development, construction or operation of the Improvements or any change, alteration or addition thereto.
Tenant shall not permit to remain any encumbrances of the Improvements, except as set forth in Section
7.02 and the Permitted Leasehold Mortgages and exceptions shown on Tenant's leasehold owner's title
insurance policy. Tenant shall comply with all laws which provide for the waiver of liens which may arise
under any contract for labor or materials for the Improvements and Tenant shall cause no lien agreements
to be executed and filed of record before any work is commenced upon the Premises. NOTICE IS HEREBY
GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES, OR
MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING ANY
OF THE PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS' OR OTHER
LIENS FOR ANY SUCH LABOR, SERVICES, OR MATERIALS SHALL ATTACH TO OR AFFECT
THE INTEREST OF LANDLORD IN AND TO ANY OF THE PREMISES. PURSUANT TO FLORIDA
STATUTES SECTION 713.10(2)(a) TENANT HEREBY ACKNOWLEDGES RECEIPT OF NOTICE
THAT THE INTEREST OF LANDLORD IN THE PREMISES SHALL NOT BE SUBJECT TO LIENS
FOR IMPROVEMENTS MADE BY TENANT. TENANT FURTHER ACKNOWLEDGES AND
AGREES THAT THE PROVISIONS OF FLORIDA STATUTES SECTION 713.10(2)(a) STATE THAT
TENANT SHALL NOTIFY ANY CONTRACTOR MAKING ANY SUCH IMPROVEMENTS, AND
THAT THE KNOWING OR WILLFUL FAILURE OF TENANT TO PROVIDE SUCH NOTICE TO ITS
CONTRACTOR SHALL RENDER THE CONTRACT BETWEEN TENANT AND ITS CONTRACTOR
VOIDABLE AT THE OPTION OF THE CONTRACTOR. LANDLORD SHALL BE PERMITTED TO
POST ANY NOTICES ON THE PREMISES REGARDING SUCH NON-LIABILITY OF LANDLORD.
ARTICLE X – SURRENDER
10.01 Expiration of Lease Term. At the end of this Ground Lease (whether upon the expiration
date or sooner termination), Tenant will surrender the Premises and the Improvements in the condition set
forth in Section 8.01, subject to reasonable wear and tear. Tenant may not remove from the Premises any
fixtures, equipment, or furniture (other than those items belonging to residents) without the approval of
Landlord except in the ordinary course of business and for replacements or repair. Notwithstanding the
foregoing, if there is no Event of Default on the expiration date or sooner termination of this Ground Lease,
Tenant may remove any fixtures, equipment, or movable furniture belonging to Tenant located on the
Premises. Tenant expressly waives to Landlord the benefit of any law now in force or hereafter adopted
requiring notice to vacate the Premises at the end of the Lease Term, and Tenant covenants and agrees to
give up quiet and peaceful possession and to surrender the Premises together with all the Improvements
thereon and appurtenances upon expiration of the Lease Term or earlier termination of this Ground Lease
without further notice from Landlord. Tenant acknowledges and agrees that upon the expiration of the
Lease Term or sooner termination of this Ground Lease any and all rights and interests it may have either
at law or in equity to the Premises and Improvements shall immediately cease.
ARTICLE XI - CASUALTY; CONDEMNATION
11.01 Damage or Destruction. In addition to the requirements set forth in the senior most
Permitted Leasehold Mortgage, Tenant shall give prompt written notice to Landlord after the occurrence of
any fire, earthquake, act of God, or other casualty to or in connection with the Premises or the Improvements
149919404.10 16
or any portion thereof (each a "Casualty"). Except as otherwise agreed to by Landlord and subject to the
provisions of the Permitted Leasehold Mortgages, if during the Lease Term, the Premises or the
Improvements shall be damaged or destroyed by Casualty, and all Permitted Leasehold Mortgagees shall
have consented to release the Net Proceeds to Tenant (if consent of a Permitted Leasehold Mortgagee is
required under its Permitted Leasehold Mortgage or as otherwise required under the terms of any of the
loan documents by and between Permitted Leasehold Mortgagees and Tenant), Tenant shall repair or restore
the Premises or the Improvements as nearly as possible to the condition the Premises or the Improvements
were in immediately prior thereto. Upon the occurrence of any such Casualty, Tenant, promptly and with
all due diligence, shall apply for and collect, subject to the terms of the Permitted Leasehold Mortgages, all
applicable insurance proceeds recoverable with respect to such Casualty.
11.02 Condemnation.
(a) Taking. If, by exercise of the right of eminent domain or by conveyance made in
response to the threat of the exercise of such right (in either case a "Taking"), all of the Premises are taken,
or if so much of the Premises are taken that Tenant believes the Premises cannot be used by Tenant for the
purposes for which they were used immediately before the Taking, then this Ground Lease shall terminate
on the earlier of the vesting of title to the Premises in the condemning authority, or the taking of possession
of the Premises by the condemning authority. In the event Landlord receives notification of any Taking,
Landlord will provide notice of the proceeding to Tenant and all Permitted Leasehold Mortgagees.
(b) Condemnation Award. Subject to the terms of the Permitted Leasehold Mortgages,
Landlord and Tenant agree that, in the event of a Taking that does not result in the termination of this
Ground Lease pursuant to subsection (a) above, this Ground Lease shall continue in effect as to the
remainder of the Premises, and the net amounts owed or paid to Landlord or pursuant to any agreement
with any condemning authority which has been made in settlement of any proceeding relating to a Taking,
less any costs and expenses incurred by Landlord in collecting such award or payment (the "Net
Condemnation Award") will be disbursed in accordance with subsection (d) below to Landlord and/or
Tenant. Tenant, Tenant's investor limited partner and any Permitted Leasehold Mortgagee shall have the
right to participate in negotiations of and to approve any such settlement with a condemning authority
(which approval shall not be unreasonably withheld).
(c) Temporary Taking. If there shall be a temporary Taking with respect to all or any
part of the Premises or of Tenant's interest in this Ground Lease, then the Lease Term shall not be reduced
and Tenant shall continue to pay in full all rents, impositions and other charges required herein, without
reduction or abatement thereof at the times herein specified; provided that Tenant shall not be required to
perform such obligations that Tenant is prevented from performing by reason of such temporary Taking,
subject to the terms of the Permitted Leasehold Mortgages.
(d) Subject to the terms of the Permitted Leasehold Mortgages, if there is a complete
or partial Taking which affects the use of the Premises only during the Lease Term, the Permitted Leasehold
Mortgagee shall be entitled to receive and retain the Net Condemnation Award on behalf of the Tenant if
required by the terms of the Permitted Leasehold Mortgage; provided, however if a Permitted Leasehold
Mortgage does not require that the Permitted Leasehold Mortgagee receive and retain the Net
Condemnation Award, Tenant shall be entitled to receive and retain the Net Condemnation Award, subject
to the following sentence and the terms of Section 11.02(e). Subject to the terms of the Permitted Leasehold
Mortgages, if there is a complete or partial Taking which affects the use of the Premises after the Lease
Term, the Net Condemnation Award shall be apportioned between Tenant and Landlord based on the ratio
of the remaining Lease Term and the remaining expected useful life of the Premises following the expiration
of the Lease Term.
149919404.10 17
(e) Subject to the terms of the Permitted Leasehold Mortgages, notwithstanding any
provision herein to the contrary, Landlord shall be entitled to receive and retain any portion of the Net
Condemnation Award apportioned to Landlord's remainder fee interest in the land upon which the
Improvements are located.
(f) Notwithstanding anything to the contrary herein, the senior most Permitted Leasehold
Mortgagee shall have the right to approve any settlement of an award pursuant to this Article XI, which
approval shall not unreasonably withheld, conditioned or delayed.
ARTICLE XII - QUIET ENJOYMENT
12.01 Quiet Enjoyment. So long as Tenant is not in default hereunder beyond any grace period
applicable thereto, Tenant's possession of the Premises will not be disturbed by Landlord, its successors
and assigns.
12.02 Landlord's Right of Inspection. Notwithstanding Section 12.01 above, Landlord, in person
or through its agents, upon reasonable prior notice to Tenant, shall have the right to enter upon the Premises
for purposes of reasonable inspections performed during reasonable business hours in order to assure
compliance by Tenant with its obligations under this Ground Lease, subject to the rights of residential
tenants.
ARTICLE XIII - DEFAULT; REMEDIES
13.01 Landlord's Right to Perform.
(a) Landlord's Option. If Tenant fails to pay when due amounts payable under this
Ground Lease or to perform any of its other obligations under this Ground Lease within the time permitted
for its performance, then Landlord, after ten (10) days' prior written notice to Tenant and Tenant's investor
limited partner without waiving any of its rights under this Ground Lease, may (but will not be required to)
pay such amount or perform such obligation.
(b) Additional Rent. In addition to Annual Base Rent and Deferred Base Rent
specified in Article IV of this Ground Lease, any and all payments that Tenant is required to make hereunder
to or for the benefit of Landlord, including expenditures to operate, repair and maintain the Premises and
the Improvements, and all costs and expenses incurred by Landlord in connection with the performance of
any such obligations will be payable by Tenant to Landlord on demand and shall constitute "Additional
Rent". The Annual Base Rent, Deferred Base Rent and Additional Rent payable hereunder shall be deemed
"Rents" reserved by Landlord, and any remedies now or hereafter given to Landlord under the laws of the
State of Florida for collection of the Rents shall exist in favor of Landlord, in addition to any and all other
remedies specified in this Ground Lease.
13.02 Events of Default. The occurrence of any of the following events shall constitute an "Event
of Default" by Tenant:
(a) Tenant defaults in the due and punctual payment of the Annual Base Rent,
Deferred Base Rent and/or Additional Rent, and such default continues for ten (10) days (subject to Section
7.09(d), provided that no Permitted Leasehold Mortgagee has any obligation to cure any such payment
default) after written notice from Landlord;
149919404.10 18
(b) Tenant vacates or abandons the Premises or any substantial part thereof for a period
of more than thirty (30) consecutive days, unless such vacation or abandonment of the Premises is in
connection with a Casualty;
(c) This Ground Lease, the Premises or the Improvements or any part thereof are taken
upon execution or by other process of law directed against Tenant, subject to Section 7.09, or are taken
upon or subjected to any attachment by any creditor of Tenant or claimant against Tenant, and such
attachment is not discharged or stayed within ninety (90) days after its levy;
(d) Tenant makes any sale, conveyance, assignment or transfer in violation of this
Ground Lease;
(e) Tenant violates, breaches or fails to comply with any of the other material
agreements, terms, covenants, or conditions which this Ground Lease requires Tenant to perform, and such
violation, breach or failure continues for a period of thirty (30) days after notice by Landlord to Tenant;
provided that if the nature of the breach is such that it cannot be cured by Tenant within the period of thirty
(30) days, Tenant shall not be deemed in default of this Ground Lease if Tenant commences the curing of
such default within such period of thirty (30) days and prosecutes in good faith the curing of same
continuously thereafter until the same is, in fact, cured (but in no event shall such cure period be in excess
of ninety (90) days following the date of notice of such default), subject to Section 7.09(d);
(f) Intentionally deleted;
(g) Tenant shall be unable to pay Tenant's debts as the same shall mature;
(h) Tenant shall file a voluntary petition in bankruptcy or a voluntary petition seeking
reorganization or to effect a plan or an arrangement with or for the benefit of Tenant's creditors;
(i) Tenant shall apply for or consent to the appointment of a receiver, trustee, or
conservator for any portion of Tenant's property or such appointment shall be made without Tenant's
consent and shall not be removed within ninety (90) days; or
(j) Tenant breaches any covenants, terms, or agreements of any agreement or
document relating to the Project or Premises to which Tenant and Landlord are parties, which breach is not
cured under any permissible cure period provided for the same in such other agreements.
Notwithstanding anything herein to the contrary, for so long as Landlord is affiliated with a general
partner of Tenant, (a) any act or omission of Tenant that would otherwise be deemed to be an Event of
Default hereunder and that is attributable to such general partner affiliated with Landlord shall not constitute
an Event of Default; and (b) upon the occurrence of any one or more Events of Default that are not caused
by an affiliate of Landlord acting as a general partner or that are caused by such affiliate acting as general
partner but at the direction of the investor limited partner of Tenant, the Landlord shall have no right to
exercise a Possessory Remedy, but shall retain any right or remedy it may have that is not a Possessory
Remedy for so long as Bank of America, N.A., or an affiliate of Bank of America, N.A. is the investor
limited partner of Tenant or a Permitted Leasehold Mortgagee. For purposes of this Section 13.02, a
"Possessory Remedy" shall mean termination, ejection, receivership, confession of judgment, or other
remedy that deprives the Tenant of possession of the Premises.
Notwithstanding anything to the contrary in this Ground Lease, for so long as a Permitted
Leasehold Mortgage remains outstanding, if the Tenant defaults as mortgagor under a Permitted Leasehold
Mortgage, such default shall not constitute an Event of Default hereunder except to the extent that Tenant’s
149919404.10 19
acts or omissions, in and of themselves, constitute an Event of Default under the express terms of this
Ground Lease.
13.03 Investor Limited Partner Notice and Right to Cure. Landlord agrees to provide Tenant's
investor limited partner with a copy of each default notice sent by Landlord to Tenant hereunder. Landlord
further agrees to accept a cure made by Tenant's investor limited partner on Tenant's behalf of any default
hereunder provided such cure meets any requirements of this Ground Lease applicable thereto.
13.04 Remedy. If any one or more Events of Default set forth in Section 13.02 occurs, then
Landlord may terminate this Ground Lease by written notice to Tenant of its intention to terminate this
Ground Lease on the date of such notice or on any later date specified in such notice, and, on the date
specified in such notice, Tenant's right to possession of the Premises and the Improvements will cease and
the estate conveyed by this Ground Lease shall revest in Landlord; provided that such revesting of the estate
and the reentry by Landlord shall be subject to and limited by, and shall not defeat, render invalid or limit
in any way the lien of any Permitted Leasehold Mortgage, and the provisions of Section 7.09.
ARTICLE XIV - MISCELLANEOUS
14.01 Option Agreement. As a material inducement for Landlord to enter into this Ground
Lease, Tenant agrees to enter into the Option Agreement on or prior to the Effective Date.
14.02 No Brokers. Neither Landlord nor Tenant has dealt with any broker or finder with regard
to the Premises or this Ground Lease. Both Landlord and Tenant will indemnify, defend, and hold the other
harmless from and against any loss, liability and expense (including attorneys' fees and court costs) arising
out of claims for fees or commissions in connection with this Ground Lease.
14.03 Access. Tenant agrees to grant a right of access to Landlord or any of its authorized
representatives, with respect to any books, documents, papers, or other records related to this Ground Lease
in order to make audits, examinations, excerpts, and transcripts.
14.04 Recordation. Landlord and Tenant shall record a Memorandum of Ground Lease in the
appropriate office of public record of the County of Miami-Dade. At the expiration of the Lease Term or
earlier termination of this Ground Lease, Tenant shall execute a quit claim termination of its interest in this
Ground Lease.
14.05 Time of Essence. Time is of the essence of each and every provision of this Ground Lease.
14.06 No Waiver. No waiver of any condition or agreement in this Ground Lease by either
Landlord or Tenant will imply or constitute a further waiver by such party of the same or any other condition
or agreement. No act or thing done by Landlord or Landlord's agents during the Lease Term will be deemed
an acceptance of a surrender of the Premises, and no agreement to accept such surrender will be valid unless
in writing signed by Landlord, subject Section 7.09. No payment by Tenant, nor receipt from Landlord, of
a lesser amount than the Annual Base Rent and/or Deferred Base Rent or other charges stipulated in this
Ground Lease will be deemed to be anything other than a payment on account of the earliest stipulated rent
payment. No endorsement or statement on any check, or any letter accompanying any check or payment
of a Annual Base Rent or Deferred Base Rent payment, will be deemed an accord and satisfaction. Landlord
will accept such check for payment without prejudice to Landlord's right to recover the balance of such
Annual Base Rent and/or Deferred Base Rent payment or to pursue any other remedy available to Landlord.
If this Ground Lease is assigned, or if the Premises or any part of the Premises are sublet or occupied by
anyone other than Tenant, Landlord may collect rent from the assignee, subtenant, or occupant and apply
the net amount collected to the Annual Base Rent and/or Deferred Base Rent reserved in this Ground Lease
149919404.10 20
(subject in all respects to Section 4.03 of this Ground Lease). No such collection will be deemed a waiver
of the covenant in this Ground Lease against assignment and subletting, or the acceptance of the assignee,
subtenant, or occupant as Tenant, or a release of Tenant from the complete performance by Tenant of its
covenants in this Ground Lease.
14.07 Joint and Several Liability. If Tenant is composed of more than one signatory to this
Ground Lease, each signatory will be jointly and severally liable with each other signatory for payment and
performance according to this Ground Lease.
14.08 Captions, Exhibits, Gender, Etc. The captions inserted in this Ground Lease are only for
convenience of reference and do not define, limit, or describe the scope or intent of any provisions of this
Ground Lease. The Exhibits to this Ground Lease are incorporated into the Ground Lease. Unless the
context clearly requires otherwise, the singular includes the plural, and vice versa, and the masculine,
feminine, and neuter adjectives include one another.
14.09 Intentionally Deleted.
14.10 Amendment. This Ground Lease may be amended, modified, restated, terminated,
surrendered or cancelled only by a written document signed by Landlord and Tenant, with the written
consent of the limited partner of Tenant and each Permitted Leasehold Mortgagee. No amendment shall
impair the obligations of Tenant to develop and operate the project in accordance all applicable
requirements.
14.11 Severability. If any provision of this Ground Lease is found by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Ground Lease will not be affected,
and in lieu of each provision which is found to be illegal, invalid, or unenforceable, there will be added as
a part of this Ground Lease a provision as similar to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid, and enforceable.
14.12 Notices. Any notice, request, demand, consent, approval, or other communication
required or permitted under this Ground Lease shall be in writing and shall be given by either (a) hand-
delivery, (b) first class, certified or registered mail return receipt requested (postage prepaid), (c) reliable
overnight commercial courier, or (d) telecopy or other means of electronic transmission, if confirmed
promptly by any of the methods specified in clauses (a), (b) and (c) of this sentence to the other party at its
address set forth below. Notice by telecopy or other means of electronic transmission shall be deemed to
have been given and received when sent. Notice by hand delivery, Unites States Postal Service mail, or
overnight courier service shall be deemed to have been given and received upon delivery. Notice to any
Permitted Leasehold Mortgagee shall be sent to the address or number designated for such Permitted
Leasehold Mortgagee as set forth on Exhibit D hereto. A party may change its notice address by giving
written notice to the other parties as specified herein.
If to Landlord:
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, FL 33139
Attention: Miguell Del Campillo, Executive
Director
Phone: (305) 532-6401, ext. 3020
Email: miguell@hacmb.org
If to Tenant:
Vista Breeze, Ltd.
161 NW 6th Street, Suite 1020
Miami, FL 33136
Attn: Kenneth Naylor
Fax: (305) 476-1557
Phone: (305) 357-4700
149919404.10 21
With a copy to:
Fox Rothschild LLP
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attn: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
If to Investor Limited Partner:
Bank of America, N.A.
100 Federal Street
Boston, MA 02110
MA5-100-04-11
Attention: Asset Manager for Vista Breeze
Apartments
Email: lihtcreporting@bofa.com
With a copy to:
Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
Attention: Sara C. Heskett, Esq.
With a copy to:
Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, FL 33146
Attn: Michael Fincher, General Counsel
Email: mfincher@apcommunities.com
Phone: (404) 200-8669
14.13 Attorneys' Fees. If Landlord and Tenant litigate any provision of this Ground Lease or
the subject matter of this Ground Lease, the unsuccessful litigant will pay the successful litigant all
reasonable attorneys' fees and court costs incurred by it in connection with such litigation. Payment by
Landlord of any settlement or litigation costs or expenses is subject to HUD's approval if required.
14.14 Waiver of Jury Trial. Landlord and Tenant may waive trial by jury in any action,
proceeding, or counterclaim brought by either of them against the other on all matters arising out of this
Ground Lease or the use and occupancy of the Premises.
14.15 Governing Law. This Ground Lease shall be governed by the law and construed in
accordance with the laws of the State of Florida, without regard to principles of conflict of laws.
14.16 Binding Effect. This Ground Lease will inure to the benefit of, and will be binding upon,
Landlord's successors and assigns except as otherwise provided in this Ground Lease. This Ground Lease
will inure to the benefit of, and will be binding upon, Tenant's successors and assigns so long as the
succession or assignment is permitted pursuant to the terms of this Ground Lease.
14.17 Effect of Exhibits. Each and every exhibit referred to or otherwise mentioned in this
Ground Lease is attached to this Ground Lease is and shall be construed to be made a part of this Ground
Lease by such reference or other mention at each point at which such reference or other mention occurs, in
the same manner and with the same effect as if each exhibit were set forth in full at length every time it is
referred to and otherwise mentioned.
149919404.10 22
14.18 Cumulative Rights. Except as expressly limited by the terms of this Ground Lease, all
rights, powers, and privileges conferred hereunder shall be cumulative and not restrictive of those provided
at law or in equity.
14.19 Relationship of Parties, Limited Third-Party Beneficiary. The parties hereto expressly
declare that, in connection with the activities and operations contemplated by this Ground Lease, they are
neither partners nor joint venturers, nor does a principal-agent relationship exist between them.
Notwithstanding anything to the contrary set forth elsewhere in this Ground Lease, the investor limited
partner of Tenant and the Permitted Leasehold Mortgagees shall be deemed a third-party beneficiary with
respect to all notice, cure, default, modification, amendment, entitlement to a new lease, casualty, and
condemnation provisions and other provisions herein to the extent such provisions expressly apply to such
parties.
14.20 Non-Merger. Except upon expiration of the Lease Term or upon termination of this
Ground Lease pursuant to an express right of termination set forth herein, there shall be no merger of either
this Ground Lease or Tenant's estate created hereunder with the fee estate of the Premises or any part thereof
by reason of the fact that the same person may acquire, own or hold, directly or indirectly, (a) this Ground
Lease, Tenant's estate created hereunder or any interest in this Ground Lease or Tenant's estate (including
the Improvements), and (b) the fee estate in the Premises or any part thereof or any interest in such fee
estate (including the Improvements), unless and until all persons, including any assignee of Landlord, and
all holder(s) of a Permitted Leasehold Mortgage having an interest in (i) this Ground Lease or Tenant's
estate created hereunder, and (ii) the fee estate in the Premises or any part thereof, shall join in a written
instrument effecting such merger and shall duly record the same. In the event Tenant acquires title to the
fee estate, the lien of all Permitted Leasehold Mortgages shall automatically extend to such fee estate and,
at such time, Landlord agrees to execute such documents as may be reasonably required by the Permitted
Leasehold Mortgagee(s) to effect such extension.
14.21 Counterparts. This Ground Lease may be executed in counterparts and all such
counterparts shall be deemed to be originals and together shall constitute but one and the same instrument.
14.22 Force Majeure. In the event that Landlord or Tenant shall be delayed, hindered in, or
prevented from the performance of any act required hereunder by reason of an act of God, strike, lockout,
labor trouble, inability to procure materials, failure of power, riot, insurrection, war, epidemic and/or
pandemic (including without limitation COVID-19) or the resulting act, failure to act, or default of the other
Party, or other reason beyond their reasonable control, but not including lack of financial capacity or
financing, then performance of such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equal to the period of such delay, provided
however that the time period for extension for performance of such act shall not go beyond the term of this
Ground Lease.
[SIGNATURE PAGE FOLLOWS]
149919404.10
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista
Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public
body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be
recorded over the following described lands:
PARCEL 1:
LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT THEREOF,
AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE
COUNTY, FLORIDA.
PARCEL 2:
LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING TO THE
PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA.
149919404.10
EXHIBIT B
IMPROVEMENTS
All buildings, structures, additions and improvements of every kind and description now or
hereafter erected on the Premises, including the one hundred nineteen (119) rental units, of which one
hundred nineteen (119) units shall be low-income housing tax credits rental units qualifying for occupancy
pursuant to Section 42 of the Code, together with other related site improvements and amenities to be
constructed on the Premises.
149919404.10
EXHIBIT C
INSURANCE
Tenant shall cause the appropriate entity to maintain and keep in force the following insurance:
A. General Liability including bodily injury and property damage:
$2,000,000 General Aggregate Limit (Other than Products &
Completed Operations)
$2,000,000 Products & Completed Operations Aggregate Limit
$1,000,000 Per Occurrence
$1,000,000 Personal Liability & Advertising Liability Insurance
$1,000,000 Fire/Legal Liability
$ 10,000 Medical Expense
B. Excess and Umbrella Liability:
$5,000,000 Per Occurrence
$5,000,000 Aggregate
C. Workers Compensation and Employers Liability:
$500,000 Each Accident
$500,000 Disease-Policy Limit
$500,000 Disease-Each Employee
D. Builders Risk:
(1) Tenant shall have "All Risk" insurance against loss or damage by fire,
flood and such other risks and matters, including without limitation,
business interruption, rental loss and public liability. The amount of such
insurance will not be less than 100% of the full replacement value of the
Project, including the cost of debris removal, without deduction for
depreciation.
Endorsement: Designated Construction Project General Aggregate
Limits.
E. Business Automobile Liability - $1,000,000
F. Professional Liability - $1,000,000. Additionally, the following contractors must
be required to provide $1,000,000 of professional liability coverage:
(a) Engineers
(b) Architects; and
(c) Attorneys
G. To the extent prefabricated product(s) will be used, Riggers Liability in an amount
appropriate for the situation and agreed upon by Landlord in writing.
149919404.10
H. Tenant's insurance shall include the following:
1. Waiver of subrogation all liability policies.
2. Hold Harmless Agreement covering Landlord, and all successors and
assigns, commissions, officers, directors, agents, lessees, employees and
authorized representatives.
3. All Carriers should be "A" rated by AM Best, unless otherwise approved
by Landlord.
All policies of insurance (other than professional liability) must be made on an occurrence basis.
149919404.10
EXHIBIT D
PERMITTED LEASEHOLD MORTGAGES
AND PERMITTED ENCUMBRANCES
Permitted Leasehold Mortgages and Addresses of Permitted Leasehold Mortgagees:
1. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of the Housing Finance Authority of Miami-Dade County ("HFA"), as assigned to The Bank of New
York Mellon Trust Company, N.A., as fiscal agent with respect to a project loan financed by a funding loan made
by Bank of America, N.A. to the HFA (the “Construction Loan”) which funding loan will be acquired by
Citibank, N.A. upon completion of construction upon such acquisition (the “Permanent Loan”).
Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Executive Director
Email: cgulley@hfamiami.com
With a copy to:
Miami-Dade County Attorney’s Office
111 N.W. First Street, Suite 2810
Miami, Florida 33128
Attention: David S. Hope, Esq.
Email: dhope@miamidade.gov
To the Fiscal Agent:
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Department
Facsimile: (904) 645-1998
If to Construction Lender:
Bank of America, N.A.
401 E. Las Olas Blvd.
Fort Lauderdale, FL 33301
FL6-812-18-02
Attention: Binyamin Rosenbaum
If to Permanent Lender:
Citibank, N.A
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
With a copy to:
Miami-Dade County Attorney’s Office
111 N.W. First Street, Suite 2810
Miami, Florida 33128
Attention: David S. Hope, Esq.
Email: dhope@miamidade.gov
With a copy to:
Holland & Knight LLP
31 West 52nd Street, 11th Floor
New York, New York 10019
Attention: Kathleen M. Furey, Esq.
With a copy to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Offic
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
149919404.10
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
2. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of Florida Housing Finance Corporation ("FHFC") with respect to a loan using funds from the Viability
Loan Program.
Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
With a copy to:
Weiss Serota Helfman Cole & Bierman, P.L. 2800
Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
3. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of FHFC with respect to a loan using funds from the State Apartment Incentive Loan Program.
Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
With a copy to:
Weiss Serota Helfman Cole & Bierman, P.L. 2800
Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
4. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of FHFC with respect to an extremely-low income program loan.
Florida Housing Finance
Corporation
227 North Bronough Street, Suite
5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
With a copy to:
Weiss Serota Helfman Cole &
Bierman, P.L. 2800 Ponce de Leon
Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
5. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of FHFC with respect to a loan using funds from the National Housing Trust Fund.
Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
With a copy to:
Weiss Serota Helfman Cole & Bierman, P.L. 2800
Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
6. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of Miami-Dade County with respect to a construction/permanent loan.
149919404.10
Miami-Dade County
111 N. W. 1st Street, 29th Floor
Miami, Florida 33128
Attn: County Mayor
With a copy to:
Miami-Dade County
Public Housing and Community Development
701 N.W. 1st Court, 16th Floor
Miami, Florida 33136
Attn: Director
And a copy to:
County Attorney's Office
111 N. W. 1st Street, Suite 2810
Miami, Florida 33128
Attn: [Terrence A. Smith, Esq.]
7. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of the City of Miami Beach with respect to a construction/permanent loan.
If to the City:
Alba Tarre, Department Director
Office of Housing and Community Services
Care of: Office of Housing and Community
Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With a copy to:
Rafael A. Paz, City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 3313
8. Leasehold mortgage and any related security documents and restrictive covenants made by Tenant
in favor of the Housing Authority of the City of Miami Beach (“HACMB”) with respect to a
construction/permanent loan.
If to HACMB:
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, FL 33139
Attention: Miguell Del Campillo, Executive
Director
Phone: (305) 532-6401, ext. 3020
Email: miguell@hacmb.org
With a copy to:
Fox Rothschild LLP
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attn: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
Permitted Encumbrances:
1. Each of the Permitted Leasehold Mortgages listed above and any related security documents.
2. Liens being contested in good faith in accordance with the terms of this Ground Lease.
3. Easements, rights of way, restrictions and other minor defects, encumbrances and irregularities in
the title to the Premises which do not materially impair the use of the Premises for its intended purpose or
materially and adversely affect the value thereof.
149919404.10
4. The Extended Low-Income Housing Agreement to be entered into between Tenant and Florida
Housing Finance Corporation.