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HomeMy WebLinkAboutAgreement to Enter Group Lease (Part 2)AMENDED AND RESTATED GROUND LEASE BETWEEN THE CITY OF MIAMI, FLORIDA AND FLAGSTONE ISLAND GARDENS, LLC DATED AS OF , 20_ ARTICLE I INCORPORATION, EXHIBITS, ATTACHMENTS, AND DEFINITIONS 4 Section 1.1 Incorporation by Reference 4 Section 1.2 Exhibits and Attachments 4 Section 1.3 Singular, Plural And Gender 6 Section 1.4 Section References 6 Section 1.5 Defined Terms 6 Section 1.6 Notice to Third Parties of Composite Attachment 3 19 ARTICLE II DEMISE 20 Section 2.1 Demise 20 Section 2.2 Leasehold Improvements 20 Section 2.3 Delivery of Title to Lessor 21 ARTICLE III TERM 21 Section 3.1 Initial Term 21 Section 3.2 Extension Terms 22 Section 3.3 Total Term 22 ARTICLE IV DELIVERY OF POSSESSION AND DEVELOPMENT AND OPERATION OF THE PROJECT 24 Section 4.1 Delivery of Possession of Property 24 Section 4.2 Memorandum 24 Section 4.3 Development of the Project 24 Section 4.4 Operating Team 24 ARTICLE V RENT AND SECURITY DEPOSIT 26 Section 5.1 Application of Composite Attachment 3 to Pre -Paid Construction Rent, Option Payments, and Construction Rent 26 Section 5.2 Application of Composite Attachment 3 to Base Rent 28 Section 5.3 Percentage Rent 30 Section 5.4 Security Deposit 32 Section 5.5 Place of Payment 35 Section 5.6 Default Interest 35 Section 5.7 Late Charge 36 Section 5.8 Rent To Be Without Deduction 36 ARTICLE VI LEASEHOLD AND SUBLEASEHOLD MORTGAGES 36 Section 6.1 Definitions of Terms 36 Section 6.2 Prohibited Mortgages 47 Ground Lease -Final Page i Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9 Section 6.10 Section 6.11 Section 6.12 ARTICLE VII USE Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Section 7.10 Section 7.11 Section 7.12 Section 7.13 Section 7.14 Section 7.15 Permitted Mortgages 47 Notification of Lessor 48 Foreclosure 49 New Lease 50 Subordination, Non -Disturbance and Attornment Aereement. 53 Major Subleasehold Estates Liability of Approved Mortgagee Assignment of Development Plans and Project Approvals Mezzanine Financing Purchase Money Financing OF SUBJECT PROPERTY Certain Conditions of Leasing Major Subleases and Space Leases Permitted Uses; Long -Terra Changes No Discrimination Use of the Property Leasehold Improvements to be Open to Public Safety Continuous Operation Compliance with Laws Compliance with Insurance Requirements Prohibited Uses Casino Gambling Signage Cure of Defaults Under Approved Leasehold Mortgages and Approved Major Subleasehold Mortgages Enforceability ARTICLE VIII RESTRICTIONS ON TRANSFERS AND APPROVAL OF INVESTORS Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Definition of Terms Bayraktar Interests Leasehold and Major Subleasehold Estates City Manager Review and Approval Procedures Release from Liability No Consent Required for Affiliate or Related Party Transfer 53 53 55 56 58 59 59 59 60 61 61 61 62 62 63 64 64 64 67 68 69 69 69 74 75 78 81 81 Ground Lease -Final Page ii Section 8.7 Section 8.8 Section 8.9 Section 8.10 Section 8.11 Section 8.12 Section 8.13 Section 8.14 Section 8.15 Approved Leasehold Mortgages, Leases and Subleases Going Public Other Transactions for Which No Consent Is Required Violation Acceptance of Rent from Transferee Lessor's Participation In Proceeds Organizational Documents of Lessee Investors Transfers of the City's Interest ARTICLE IX EASEMENTS AND LICENSES Section 9.1 Utility Easements Section 9.2 Easements in Favor of Lessee Section 9.3 Access Easement in favor of the Public Section 9.4 Duration of Easements Section 9.5 Dredging to Facilitate Safe Passage of Vessels Section 9.6 Confirmatory Instruments ARTICLE X PAYMENT OF IMPOSITIONS Section 10.1 Payment of Impositions Section 10.2 Taxes on Lessor Section 10.3 Lessee's Right to Contest Impositions Section 10.4 Proof of Payment ARTICLE XI INSURANCE Section 11.1 Insurance on the Leasehold Improvements Section 11.2 Section 11.3 Section 11.4 Section 11.5 Section 11.6 Section 11.7 Section 11.8 Other Insurance To Be Carried Policies Obtained by Independent Contractors Policies Obtained by Major Subtenants Delivery of Insurance Policies Lessor's Right to Obtain Insurer To Be Approved; Premium Receipts Waiver of Subrogation ARTICLE XII RECORDS AND AUDITING Section 12.1 Records of Sales Section 12.2 Audit ARTICLE XIII REPRESENTATIONS AND COVENANTS Section 13.1 Limited Representations by Lessor 82 83 83 83 83 84 85 86 87 88 88 90 90 90 90 91 91 91 92 92 94 94 94 95 99 99 99 100 101 101 102 102 103 106 107 Ground Lease -Final Page iii Section 13.2 Authority 107 Section 13.3 Lessee's Representations and Covenants 108 Section 13.4 Disclaimer of Lessor's Representations 110 Section 13.5 Survival 110 ARTICLE XIV DEVELOPMENT AND CONSTRUCTION; REPAIRS, MAINTENANCE, ALTERATIONS AND IMPROVEMENTS 110 Section 14.1 Construction of Project Components; Composite Attachment 3 110 Section 14.2 Commencement and Completion of Construction 111 Section 14.3 Ombudsman and Consultant 112 Section 14.4 Landscaping and Roadways 114 Section 14.5 Pre -Construction Maintenance 115 Section 14.6 Maintenance of Construction Site 115 Section 14.7 Construction Traffic; Coordination 115 Section 14.8 Avoidance of Nuisance 116 Section 14.9 Other Construction 117 Section 14.10 Payment and Performance Bond 117 Section 14.11 Damage to Other Improvements; Interference 118 Section 14.12 Underground Utilities 118 Section 14.13 Liability 119 Section 14.14 Entrance Road 120 Section 14.15 Joinders 120 Section 14.16 Maintenance and Repair 121 Section 14.17 Alteration and Modification to Leasehold Improvements After Completion of Leasehold Improvements 122 Section 14.18 Removal of Liens ...123 ARTICLE XV LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS; REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED 125 Section 15.1 Performance of Lessee's Covenants to Pay Money 125 Section 15.2 Lessor's Right to Cure Lessee's Default 126 Section 15.3 Reimbursement of Lessor and Lessee 126 ARTICLE XVI DAMAGE OR DESTRUCTION 127 Section 16.1 Definitions of Terms 127 Section 16.2 Net Insurance Proceeds; Obligation to Fund Restoration Work 128 Section 16.3 Restoration Work. 130 Section 16.4 Termination 132 Ground Lease -Final Page iv Section 16.5 No Other Right to Terminate 133 Section 16.6 Rights of Approved Leasehold Mortgagee 133 Section 16.7 Major Subleases 133 Section 16.8 Deferral of Base Rent 133 ARTICLE XVII ARBITRATION 134 Section 17.1 Binding Arbitration 134 Section 17.2 Procedures 135 Section 17.3 No Delay in Completion of Work 139 Section 17.4 Right of Approved Mortgage to Participate 139 ARTICLE XVIII MECHANICS' LIENS 140 Section 18.1 Definition 140 Section 18.2 No Consent by Lessor 140 Section 18.3 Notice of No Liability of Lessor 140 Section 18.4 Inclusion in Memorandum of Lease 141 Section 18.5 Discharge of Mechanics' Liens 141 Section 18.6 Right to Contest 142 Section 18.7 Releases 142 ARTICLE XIX COVENANT AGAINST WASTE; INSPECTION 143 Section 19.1 Waste 143 Section 19.2 Inspection of Property. 143 Section 19.3 Major Subleases and Space Leases 145 ARTICLE XX ENVIRONMENTAL LIABILITY 146 Section 20.1 Definition of Terms 146 Section 20.2 Environmental Obligations of Lessee 148 Section 20.3 Lessee's Liability for Contamination During Lease Term 149 Section 20.4 Indemnity 149 Section 20.5 Notices 150 Section 20.6 Lessor's Remedies 150 Section 20.7 Phase I Environmental Assessment at End of Lease Tenn 150 Section 20.8 Major Subleases and Space Leases 151 Section 20.9 Survival of Lessee's Obligations 152 ARTICLE XXI PUBLIC UTILITY CHARGES 152 Section 21.1 Lessee to Provide and Pay for Utilities 152 Section 21.2 Compliance with Utility Services 153 Section 21.3 Permits 153 Ground Lease -Final Page v Section 21.4 No Obligation for Utilities not on Property 153 Section 21.5 Notice and Disclaimer as to Utility Services and Other Services 153 ARTICLE XXII INDEMNIFICATION AND RELEASE OF LESSOR 154 Section 22.1 General Indemnification of Lessor Without Limitation of Any Other Indemnity Given Hereunder 154 Section 22.2 Defense 155 Section 22.3 Lessor's Participation 155 Section 22.4 No Limitation 155 Section 22.5 Challenges to Lease 155 Section 22.6 Survival 156 ARTICLE XXIII LIEN FOR RENT AND OTHER CHARGES 156 Section 23.1 Lien for Rent 156 Section 23.2 Other Liens 157 Section 23.3 Limitations 157 ARTICLE XXIV CONDEMNATION 158 Section 24.1 Definition of Terms 158 Section 24.2 Entire Property Taken by Condemnation 160 Section 24.3 Part of Property Taken by Condemnation 161 Section 24.4 Takings for Temporary Period 162 Section 24.5 Event of Lessee's Default 163 Section 24.6 Rights of Approved Leasehold Mortgagee 164 Section 24.7 Major Subleases 164 ARTICLE XXV DEFAULT PROVISIONS 164 Section 25.1 Events of Default by Lessee 168 Section 25.2 Remedies in Event of Lessee's Default 171 Section 25.3 Events of Default — Lessor 172 Section 25.4 Mitigation 173 ARTICLE XXVI COVENANTS OF LESSOR AND LESSEE 173 Section 26.1 Partial Modification of Restrictions 173 Section 26.2 Civic Arts Endowment Trust 174 ARTICLE XXVII QUIET ENJOYMENT 175 ARTICLE XXVIII LESSEE NOT TO ENCUMBER LESSOR'S INTEREST 175 ARTICLE XXIX LIMITATION OF LIABILITY 176 Section 29.1 Limitation of Liability of Lessee 176 Section 29.2 Limitation of Liability of Lessor 178 Ground Lease -Final Page vi ARTICLE XXX ESTOPPEL CERTIFICATES 178 Section 130.1 Estoppel Certificates from Lessee 178 Section 30.2 Certificates from Lessor 179 ARTICLE XXXI NO WAIVER 180 Section 31.1 Delays in Exercising Rights 180 Section 31.2 Waivers to be in Writing 180 Section 31.3 Receipt of Rent 180 Section 31.4 Consents 181 ARTICLE XXXII SURRENDER AND HOLDING OVER 181 Section 32.1 Surrender at End of Term 181 Section 32.2 Rights Upon Holding Over 183 Section 32.3 No Waiver 183 Section 32.4 Survival 183 ARTICLE XXXIII MAJOR SUBLEASES, SPACE LEASES AND APPROVED TIME SHARE LICENSES 183 Section 33.1 Leasing and Subleasing 183 Section 33.2 Major Subtenant SNDA's 184 Section 33.3 Major Subleases 184 Section 33.4 Composite Attachment 3 Time Periods for Cross - Defaults 187 Section 33.5 Space Leases 187 Section 33.6 Approved Time Share Licenses 187 ARTICLE XXXIV MINORITY AND WOMEN PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITIES 190 Section 34.1 First Source Hiring Agreement 190 Section 34.2 Minority and Women Participation and Equal Employment Opportunity 190 Section 34.3 Skills, Training and Employment Center 191 Section 34.4 Tax Credits 192 Section 34.5 Labor Peace Agreement(s) .192 ARTICLE XXXV OPERATING AGREEMENTS FOR HOTELS AND MARINA 192 Section 35.1 Approval 193 Section 35.2 Approved Operators 193 Section 35.3 Terms 193 Section 35.4 Non -Disturbance and Attormnent Agreement 193 Ground Lease -Final Page vii ARTICLE XXXVI UNAVOIDABLE DELAY 193 Section 36.1 Unavoidable Delay(s) 194 Section 36.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations 194 ARTICLE XXXVII NOTICES 195 Section 37.1 Notices 195 Section 37.2 Notice to Approved Mortgagees 196 Section 37.3 Sufficiency of Service 196 ARTICLE XXXVIII MISCELLANEOUS PROVISIONS 196 Section 38.1 Captions 197 Section 38.2 Conditions and Covenants 197 Section 38.3 Entire Agreement 197 Section 38.4 Modification 197 Section 38.5 Time of Essence as to Covenants of Lease 198 Section 38.6 Recording 198 Section 38.7 City Manager Approval Procedures 198 Section 38.8 Governing Law 201 Section 38.9 Jurisdiction and Venue 201 Section 38.10 Waiver of Jury Trial 202 Section 38.11 Conflict of Interest 202 Section 38.12 Covenants to Run with the Leasehold Estate 203 Section 38.13 No Merger 203 Section 38.14 Brokerage 203 Section 38.15 Counterparts 204 Section 38.16 No Third Party Beneficiaries 204 Section 38.17 Attorney's Fees and Expenses 204 Section 38.18 Invalidity of Provisions 204 Section 38.19 No Conflicts of Interest .205 Ground Lease -Final Page viii AMENDED AND RESTATED GROUND LEASE' This Amended and Restated=Ground Lease ("Lease") made as of 201, between The City of Miami, a municipal corporation of the State of Florida ("Lessor" or "City"), having its offices at 3500 Pan American Drive, Miami, Florida 33133, and Flagstone Island Gardens LLC, a Delaware limited liability company (successor by merger to Flagstone Properties, LLC, a Florida limited liability company) ("Lessee"), whose principal office is located at 888 MacArthur Causeway, Miami, Florida 33132. Lessor and Lessee are sometimes hereinafter collectively referred to as the "Parties." STATEMENT OF BACKGROUND AND PURPOSE A. The City is the owner in fee simple of certain land located in the City of Miami, Miami -Dade County, Florida known as and hereinafter referred to as "Watson Island". Watson Island is shown on the sketch set forth in Exhibit A. B. A portion of land located in the northwest quadrant of Watson Island, consisting of approximately 10.79 acres, is legally described in Exhibit B and is hereinafter referred to as the "Upland Parcel". C. The City is also the owner in fee simple of certain submerged land, consisting of approximately 13.35 acres, located adjacent and contiguous to the Upland Parcel and legally described in Exhibit C. Such submerged land, together with the right to use and enjoy the waters located above same, is sometimes hereinafter referred to as the "Submerged Parcel." I If this Amended and Restated Ground Lease is used for a Major Project Component separately, then (i)except as set forth in Section 33.4 concerning cross -defaults, independent non-disturbable ground leases will be signed for each Major Project Component, (ii) provisions which apply to the Property or the Project as a whole will be revised to conform and apply proportionately to the Major Project Component, (iii) this document will be substantially preserved but revised as logically required and as contemplated in the Amended and Restated Agreement to Enter into Ground Lease to make it applicable to a Major Project Component and (iv) Composite Attachment 3 (as hereinafter defined in Recital L) will be attached to each ground lease and the relevant provisions of same will be incorporated. Ground Lease -Final Page 1 D. The respective locations of the Upland Parcel and the Submerged Parcel are shown on that certain survey prepared by Weidener Surveying and Mapping PA dated July 11, 2002 under Project No. 1712, a copy of which is attached hereto as Exhibit D. The Upland Parcel and the Submerged Parcel, located on Watson Island at approximately 1050 MacArthur Causeway, together with all appurtenant rights belonging thereto, are sometimes hereinafter collectively referred to as the "Property." E. Pursuant to the authority expressly conferred in the City of Miami Charter, and general law, the City Commission of Miami (the "City Commission"), on December 14, 2000, adopted Resolution No. 00-1081, which authorized the publication of a Mega Yacht Marina and Mixed Use Waterfront Development Opportunity - Watson Island, Miami, Florida, Request for Proposals dated February, 2001, as amended (the "Watson Island RFP"), for the development of the Property as described in the Watson Island RFP. F. In response to the Watson Island RFP, Lessee submitted to Lessor a proposal entitled "Island Gardens at Watson Island RFP" dated July 13, 2001 (the "Island Gardens Proposal"). The Island Gardens Proposal was approved by voter referendum by the electorate of the City of Miami on November 6, 2001 and by the City Commission on November 15, 2001 under Resolution No. 01-1198. G. The Island Gardens Proposal consists of a proposal for the development on the Property of the Project. The Island Gardens Proposal contemplates that the Project will include, but not necessarily be limited to, the Major Project Components, consisting of the Marina, Hotel A, Hotel B, the Retail Space and the Parking Garage (as all of such terms are hereinafter defined), together with certain other amenities as are described with greater particularity in Exhibit E. The Major Project Components, together with such other amenities, are sometimes Ground Lease -Final Page 2 hereinafter collectively referred to as the "Project Components". The Conceptual Site Plan for the Project is set forth in Exhibit F. H. It is the mutual desire of the Parties that the Property be leased and demised by Lessor to Lessee for the purposes set forth in this Amended and Restated Ground Lease (including the development and construction of the Project pursuant to the terms and provisions set forth herein), subject to and upon the express terns and conditions contained herein. The Parties believe that this Amended and Restated Ground Lease is consistent in all material respects with the Watson Island RFP and the Island Gardens Proposal. I. This document is an Amended and Restated Ground Lease, which incorporates various revisions to and completely amends, restates and supersedes the original form of Lease agreed to by the parties. J. The City is authorized to enter into this Amended and Restated Ground Lease pursuant to City Commission Resolution No. 10-0402 adopted September 23, 2010 (attached hereto and made a part hereof as Composite Attachment 1), and Flagstone is authorized to enter into this Amended and Restated Ground Lease pursuant to its Company Authorization dated February 1 2010 (attached hereto and made a part hereof as Attachment 2). K. Flagstone has requested in accordance with the Watson Island RFP and the Island Gardens Proposal for certain revisions, including among other things, revisions concerning construction schedules, rents, options and option payments, development rights, obligations, and time periods; and L. The City Commission pursuant to Resolution No. 10-0402, adopted September 23, 2010 with Exhibit A and other attachments thereto which sets forth the key business terms applicable to, among other things, rents, options and option payments, development rights, Ground Lease -Final Page 3 obligations, time periods (attached hereto, made a part hereof, and collectively referred to hereinafter as "Composite Attachment 3") as such terms and conditions relate to this Amended and Restated Ground Lease and to the Amended and Restated Agreement to Enter Into Ground Lease, dated 20 to which a form of this Amended and Restated Ground Lease is attached as an exhibit (the "Agreement to Enter"). In consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the Parties do hereby covenant and agree as follows: INCORPORATION, EXHIBITS AND DEFINITIONS Incorporation by Reference. The foregoing Statement of Background and Purpose is hereby incorporated into this Amended and Restated Ground Lease by this reference as if set out in full in the body of this Amended and Restated Ground Lease. Furthermore, as individual Amended and Restated Ground Leases are prepared with reference to each individual Major Project Component, Composite Attachment 3 and the relevant terms and conditions thereof shall be included in such Amended and Restated Ground Lease(s). Exhibits and Attachments. Attached hereto and forming a part of this Amended and Restated Ground Lease are the following Exhibits, Attachments, and Riders: Exhibit A Sketch of Watson Island Exhibit B Legal Description of Upland Parcel Exhibit C -- Legal Description of Submerged Parcel Exhibit D Copy of Survey Exhibit E Description of Project Components and Amenities Exhibit E-1 -- Description of Public Art Exhibit F Conceptual Site Plan Ground Lease -Final Page 4 Exhibit G Definition of Gross Revenues Exhibit H Definition of Marina; Marina Approval Procedures Exhibit I Permitted Title Exceptions Exhibit J List of Pre -Approved Hotel Franchisors Exhibit K List of Pre -Approved Lenders Exhibit L Approved Leasehold Mortgage Subordination, Non -Disturbance and Attornment Agreement Exhibit M Approved Major Subleasehold Mortgage Subordination, Non -Disturbance and Attornment Agreement Exhibit N. Prohibited Uses Exhibit N-1 -- Covenants as to Port of Miami Exhibit 0 List of Approved Financial Advisors Exhibit P Organizational Documents Exhibit Q Provisions Not Applicable to Private Lessor Exhibit R Civic Arts Endowment Trust Exhibit S Approved Major Subtenant Subordination, Non -Disturbance and Attornment Agreement Exhibit T Form of First Source Hiring Agreement Exhibit 14.14 -- Entrance Road Exhibit 14.18 -- Hold Harmless and Indemnification Agreement Composite Attachment 1 — City's Authorizing Resolution No. 10-0402, adopted September 23, 2010 Attachment 2 — Flagstone's Company Authorization Ground Lease -Final Page 5 dated February 1_ 2010 Composite Attachment 3 — City's Resolution No. 10-0402, adopted September 23,2010 with Exhibit A and other attachments thereto (previously and hereafter referred to as "Composite Attachment 3") Composite Attachment 4 — City Commission Resolution No. 09-0263, adopted May 28, 2009 and Form of Labor Peace Agreement (if applicable to the particular Ground Lease and the related Major Project Component) Composite Attachment 5 — Amended Partial Modification and City Resolution No. R-11-0337, adopted September 15, 2011 Section 1.3 Singular, Plural And Gender. Any word contained in the text of this Amended and Restated Ground Lease shall be read as the singular or the plural, and as the masculine, feminine or neuter gender, as may be applicable in the particular context. Section 1.4 Section References. All references herein to an "Article", "Section", "Subsection", "paragraph", "subparagraph", or "clause" shall be deemed to refer to the applicable "Article", "Section", "Subsection", "paragraph", "subparagraph" or "clause" of this Amended and Restated Ground Lease, unless there is a specific reference to another document. Section 1.5 Defined Tenns. Certain teens are defined in various Articles of this Amended and Restated Ground Lease. In addition, for the purposes of this Amended and Restated Ground Lease, the following words shall have the meanings attributed to them in this Section 1.5: Ground Lease -Final Page 6 a. "Affiliate" means any Person which, either directly or indirectly (through one or more intermediaries) controls, is controlled by, or is under common control with another Person (where control means the possession, directly or indirectly, by a Person of the power, acting on one's own, to direct or cause the direction of the management decisions and policies of another Person, whether through the ownership or control of voting securities, or beneficial interests, by contract or otherwise). b. "AAA" means the American Automobile Association, Mobil, or any similar rating agency or any successor thereto. c. "Applicable Laws" means any and all applicable laws, statutes, codes, ordinances, orders, rules, regulations, requirements, judgments, decrees and injunctions of any Governmental Authority, now existing or hereafter enacted, adopted, issued or amended from time to time, whether foreseen or unforeseen, ordinary or extraordinary, which may be applicable to the Property and/or the Leasehold Improvements or any part thereof. d. "Approved Initial Construction Lender" has the meaning ascribed to it in Section 6.1. e. "Approved Operators" has the meaning ascribed to it in Article XXXV. f. "Approved Time Share License" means any Time Share License as defined in Section 721.05(35), Florida Statutes. g. `Bayraktar Family Members" means Mehinet Bayraktar and/or any spouse, sibling, parent and/or lineal descendant of Mehmet Bayraktar, subject to Section 4.1.3.1 of the Amended and Restated Agreement to Enter Into Ground Lease dated as of February 1, 2010 and Section 8.14 herein. In the case of lineal descendants, such individuals must be eighteen (18) years of age or older, unless represented by a legal guardian. Ground Lease -Final Page 7 h. `Bayraktar Family Equity Contribution" means that the equity in the Project Provided by Mehmet Bayraktar personally or the Bayraktar Family, through one or more Persons which are wholly owned by the Bayraktar Family and over which Mehmet Bayraktar has Voting and Operational Control, shall equal not less than $22,400,000. The foregoing sum shall include all demonstrable hard costs and soft costs reasonably related to the Project expended or reimbursed by the foregoing parties prior to or after the date hereof. i "Base Rent" means the base rent to be paid by Lessee as set forth inARTICLE V. j. "Business Days" means Monday through Friday, excluding legal holidays in the City of Miami. k. "Certificate of Occupancy" means a certificate issued by the City of Miami Building and Zoning Department as defined within the Florida Building Code Section 106.1 and in accordance with City of Miami Ordinance No. 6145. 1. "City Manager" means the administrative head of the City's government who is authorized to execute this Amended and Restated Ground Lease and other documents, including notices required hereunder. m. "City Manager Approval Procedures" has the meaning ascribed to it in Section 38.7. n. "Commence(s) Construction" means that all material plans and permits are approved and issued and the actual act of physical construction has begun. o. "Completion Date" means the date upon which the earlier of the temporary certificate of occupancy ("TCO") or the certificate of occupancy ("CO"), has been issued for the completion of construction. Ground Lease -Final Page 8 p. "Construction Plans and Specifications" means the detailed and complete plans and specifications for all proposed construction on the Property (including, without limitation, infrastructure, elevations, site plans, colors, signage plans, lighting, materials, access, utilities, security, setbacks, floor plans and landscaping) which are approved by Lessor for the Project or any applicable Major Project Component. q. "Construction Rent" has the meaning ascribed to it in Section 5.1. r. "Debt Service Coverage Ratio" means the ratio of the net operating income on average of the Project (or the applicable portion thereof) during a consecutive twelve (12) month period over the annual debt service payable in connection with any and all applicable Approved Leasehold Mortgages during such twelve (12) month period. s. "Default Rate" means a per annum interest rate equal to the lesser of: (i) the LIBOR Rate, plus Seven Percent (7%), with such Default Rate being adjusted each time the LIBOR Rate is adjusted, effective on the date such adjustment in the LIBOR Rate becomes effective; or (ii) the highest rate permitted by Applicable Law. t. "Development and Construction -Repairs, Maintenance, Alterations and Improvements" and the provisions concerning same means as set forth in Article XIV of this Amended and Restated Ground Lease. u. "Development Plans" means those plans required in connection with the design and construction of the Project ,or the applicable portion(s) thereof for the particular Major Project Component(s) being developed at such time including, without limitation: (i) the Construction Plans and Specifications, (ii) all application materials or other materials necessary or required in connection with obtaining the Project Approvals; and (iii) any and all other plans, Ground Lease -Final Page 9 drawings or renderings, including, without limitation, design development plans, conceptual layouts and artistic or architectural renderings, elevations or plans. v. "Direct Space Lease" means any Space Lease where Lessee is the landlord. w. "Direct Space Tenant" means any Space Tenant occupying any portion of the Leasehold Improvements pursuant to a Direct Space Lease. x. "Disqualified Person" means any Person who, as of the time when the applicable transaction occurs or approval or consent of the City Manager is requested: (i) shall have committed a material breach under any material lease or other written agreement with Lessor; (ii) has had any criminal felony convictions within the immediately preceding ten (10) years; (iii) has a widespread reputation (as evidenced by newspaper articles or other media reports of the mainstream press which are not subsequently retracted) for corrupt or unlawful business dealings; or (iv) is named on any Terrorist List. y. "Event of Lessee's Default" has the meaning ascribed to it in Section 25.1. z. "Extension Option" has the meaning ascribed to it in Section 3.2. aa. "Extension Tenn" has the meaning ascribed to it in Section 3.2. bb. "Force Majeure Events" means any of the following items, events or conditions, provided that such item, event or condition has a reasonably demonstrable effect on the Project or its construction or operation: (i) lockouts; (ii) labor strikes; (iii) shortages in labor, materials or supplies other than occasional and ordinary shortages in the ordinary course of business (provided that any such shortages are not caused by any failure to timely order materials or supplies); (iv) casualty; (v) terrorist acts or threats; (vi) war; (vii) hurricanes; (viii) earthquakes or other natural catastrophes and other acts of God; or (ix) any similar item, event or condition beyond the reasonable control of Lessee. Ground Lease -Final Page 10 cc. "Governmental Authority" means any court, agency, authority, board (including, without limitation, any environmental protection, planning or zoning board), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi -governmental unit of the United States or the State of Florida, whether now or hereafter in existence, having jurisdiction over Lessee, Watson Island, the Property or any aspect of the development or operation of the Project; provided, however, that such term shall include the City only in its municipal capacity and not its proprietary capacity. dd. "Gross Revenues" has the meaning ascribed to it in Exhibit G. ee. "Hotel Retail Operations" means any Retail operations or facilities located within, near or as part of either Hotel, which operations or facilities are part of or integrated into the operation of such Hotel or are otherwise for the use, support or operation of such Hotel (including, but not limited to, any spa and fitness facilities made available for the usage of such Hotel's guests, whether or not such facilities are located within such Hotel). ff. "Hotel(s)" shall mean, either individually or collectively, Hotel A and/or Hotel B. gg."Hotel A" means a hotel which: (i) shall have the number of units specified in Exhibit E; (ii) may have (in addition to those units described in clause (i) above) units allocated to Approved Time Share Licenses, as specified in Exhibit E; (iii) shall be built to, and operated pursuant to, the standards of a four (4) diamond hotel or better (as defined in the AAA's hotel rating standards); and (iv) shall participate in a franchise system of a national or international hotel brand approved by the City Manager pursuant to Section 4.4. For purposes of the foregoing, the Parties understand and agree that the tern "units" does not include, and Hotel A may have, associated facilities and amenities, including, but not necessarily limited to: (A) spa and fitness areas; (B) administrative and office areas; (C) cabanas; (D) lounges; (E) conference Ground Lease -Final Page 11 and banquet facilities; and (F) customary non -lodging facilities available for seasonal use by Marina staff and employees; and (G) Hotel Retail Operations. hh. "Hotel B" means a hotel which: (i) shall have the number of units specified in Exhibit E; (ii) may have (in addition to those units described in clause (i) above) keys which units allocated to Approved Time Share Licenses, as specified in Exhibit E; (iii) shall be built to, and operated pursuant to, the standards of a four (4) diamond hotel or better (as defined in the AAA's hotel rating standards); and (iv) shall participate in a franchise system of a national or international hotel brand approved by the City Manager pursuant to Section 4.4. For purposes of the foregoing, the Parties understand and agree that the term "units" does not include, and Hotel B may have, associated facilities and amenities, including, but not necessarily limited to: (A) spa and fitness areas; (B) administrative and office areas; (C) cabanas; (D) lounges; (E) conference and banquet facilities; and (F) customary non -lodging facilities available for seasonal use by Marina staff and employees; and (G) Hotel Retail Operations. ii."hnpositions" means all governmental assessments, fees, charges and levies unposed by any Governmental Authority, including, without limitation, assessments imposed by the City (in its municipal capacity), franchise fees, excises, license and permit fees, levies, charges and taxes (including ad valorem real estate taxes on the land under the Property and/or on the Leasehold Improvements), personal property taxes, bed taxes, sales taxes, fire fees and parking surcharges of any kind now or hereafter enacted, whether general or special, ordinary or extraordinary, foreseen or unforeseen, any of which is properly levied against the Property, the Leasehold hnprovements, the Leasehold Estate and/or any Major Subleasehold Estate, as applicable. jj."Initial Term" has the meaning ascribed to it in Section 3.1. Ground Lease -Final Page 12 kk. "Lease Tenn" has the meaning ascribed to it in Section 3.2. 11. "Leasehold Estate" means all of Lessee's right, title and interest as Lessee pursuant to this Amended and Restated Ground Lease, including, without limitation, the right, title and interest granted hereunder in and to the Property. mm. "Leasehold Improvements" means all the buildings, structures and improvements constituting the Project Components, including the improvements described in the approved Development Plans, and any improvements constructed thereafter from time to time, which are now or hereafter during the Lease Term located upon the Property and owned by Lessee or any Major Subtenant, as applicable; as well as any apparatus and equipment permanently attached and incorporated into such buildings, structures and improvements at any time, including all fixtures, fittings, appliances, machinery, garage equipment, heating equipment, lighting equipment, cooling equipment, air conditioning and ventilating equipment, wiring, controls, communications equipment, plumbing, switchboards, antennae, elevators, escalators, floor coverings, refrigerating equipment, hot water heating and all other appliances and equipment, to the extent same are owned by Lessee or any Major Subtenant, as applicable; provided, however, that the term "Leasehold Improvements" does not include any Personal Property. nn. "Lessee" has the meaning ascribed to it in the opening paragraph of this Amended and Restated Lease, and shall include Lessee's successors and/or permitted assigns. oo. "Lessor" or "City" has the meaning ascribed to it in the opening paragraph of this Amended and Restated Ground Lease, and shall include Lessor's successors and/or permitted assigns. pp. "LIBOR Rate" means the rate per annum (rounded upward to the nearest 1/16th of 1.00%) appearing on Telerate Page 3750 (or any successor page) as the London interbank Ground Lease -Final Page 13 offered rate for deposits in U.S. Dollars with ninety (90) day maturities; provided, however, that: (i) if for any reason such rate is not available, the applicable rate shall be the rate per annum (rounded upward to the nearest 1/16th of 1.00%) appearing on a Reuters Screen LIBOR Page as the London interbank offered rate for deposits in U.S. Dollars with ninety (90) day maturities; (ii) if more than one such rate is specified on such Telerate Page or Reuters Screen LIBOR Page, the applicable rate shall be the arithmetic mean of all such rates; and (iii) if the LIBOR Rate by reference to either such Telerate Page or such Reuters Screen is unavailable, then the applicable rate shall be the arithmetic mean of the rates per annum at which U.S. Dollar deposits for a ninety (90) day term are offered by three (3) prime banks in the London interbank market. qq. "Major Project Components" means, individually and collectively, the Marina, Hotel A, Hotel B, the Retail Space and the Parking Garage. rr. "Major Sublease" means any sublease agreement pursuant to which Lessee subleases any Major Project Component to a Major Subtenant. ss. "Major Subleasehold Estate" means all of an applicable Major Subtenant's right, title and interest as a sublessee pursuant to the applicable Major Sublease, including, without limitation, the right, title and interest granted thereunder to the Major Project Component demised thereby. tt. "Major Subtenant" means any Person using or occupying or entitled to use or occupy any Major Project Component under a Major Sublease in accordance with the provisions of this Amended and Restated Ground Lease. uu. "Major Use Special Permit" has the meaning ascribed to it in Article 17 of Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, Florida. Ground Lease -Final Page 14 vv. "Marina" shall have the meaning ascribed to it in Exhibit H and Composite Attachment 3. ww. "Mega -Yachts" means marine vessels eighty (80) feet or longer. xx. "Open for Business" or "Opened for Business" means the Completion Date. yy. "Operating Agreements" has the meaning ascribed to it in Article 35. zz. "Operating Team" means: (i) the franchisor or licensor, if applicable, of Hotel A, and the operator or manager of Hotel A; (ii) the franchisor or licensor, if applicable, of Hotel B, and the operator or manager of Hotel B; (iii) the operator or manager of the Marina; (iv) Fairchild Tropical Garden; and (v) The Historical Museum of South Florida. aaa. "Option Payment(s)" has the meaning ascribed to it in Section 5.1. bbb. "Parking Garage" means a multi -level parking garage containing at least the minimum required number of dedicated parking spaces for the Hotels, the Marina and the Retail Space. ccc. "Partial Modification of Restrictions" means collectively, that certain Partial Modification of Restrictions approved by the Trustees with respect to the Project, which instrument modifies the restrictions set forth within Deed No. 19447 from the Trustees in favor of Lessor filed for record April 11, 1949 in Deed Book 3130, Page 257, of the Public Records of Miami -Dade County, Florida, as subsequently amended by that certain Amended Partial Modification of Restrictions approved by the Trustees and dated September 15, 2011 as set forth in Composite Attachment 5 hereto. ddd. "Percentage Rent" means Rent payable by Lessee to Lessor based on a percentage of Gross Revenues as set forth in Section 5.3. Ground Lease -Final Page 15 I. eee. "Permitted Title Exceptions" means those certain title matters set forth in Exhibit fff. "Permitted Uses" means those certain uses described in the description of the Project Components and amenities set forth in Exhibit E. ggg. "Person" means any natural person, trust, firm, partnership, corporation, joint venture, association, company, or any other legal or business entity or investment enterprise. hhh. "Personal Property" means any and all items of personal property which are: (i) located on the Property and/or the Leasehold Improvements but not permanently attached thereto and incorporated therein; and (ii) any and all trade fixtures (i.e., fixtures which can be removed without permanently defacing or materially injuring any of the Leasehold Improvements) located on the Property and/or the Leasehold Improvements. iii. "Possession Date" has the meaning ascribed to it in Section 4.1. jjj. "Pre -Paid Construction Rent/Base Rent" has the meaning ascribed to it in Section 5.1. kkk. "Prohibited Uses" has the meaning ascribed to it in Section 7.11 and Exhibit N 111. "Project" means all of the Leasehold Improvements (including, but not limited to, all of the Major Project Components) to be completed pursuant to Article XIV hereof and substantially in accordance with the approved Development Plans. minm. "Project Approvals" means those approvals and permits from Governmental Authorities which are required in order to commence and complete construction of the Project, including, but not necessarily limited to: (i) the approval of the "Notice of Proposed Change" which shall, among other things, include the Property within Increment Two of the Downtown Development of Regional Impact; (ii) a Major Use Special Permit which shall have been issued Ground Lease -Final Page 16 for the Project in connection with the Development Plans approved by the City Manager; (iii) the Partial Modification of Restrictions; and (iv) with respect to the Marina, such applicable permits and approvals for the Marina as are defined in Section 7.7 of the Amended and Restated Agreement to Enter Into Ground Lease (it being understood and agreed, however, that Lessee shall not be required to obtain all Project Approvals for all Major Project Components in order to commence construction of a particular portion or phase of the Project or a particular Major Project Component) and in Exhibit H. nnn. "Pro-Rata Share" means the proportionate amount of any Rents, Security Deposit, or other amounts payable to the City that is attributed to each Ground Lease based upon its related Major Project Component's cost as a percentage of the overall Projected Development Cost (as described in Section 5.4(b) below) for the Project so that the total amount of any such Rents, Security Deposits, or other amounts payable to the City are fairly divided among the Ground Lessees and the City receives one hundred percent (100%) of all required Rents, Security Deposits and any other amounts due to the City. 000. "Rent" shall be as set forth in Article V and shall include Pre -Paid Construction Rent/Base Rent, Construction Rent, Option Payments, Base Rent, Percentage Rent and any additional rent or other sums owing or which may be owing from Lessee to Lessor pursuant to the provisions of this Amended and Restated Ground Lease. ppp. "Retail" means the sale of any and all commodities, food and beverages, merchandise or services to the consumer. qqq. "Retail Space" means up to 221,000 square feet of first-class space for Retail facilities and operations (exclusive of any Hotel Retail Operations), as measured in accordance with Exhibit E. Ground Lease -Final Page 17 rrr. "Space Lease" means any sublease or sub -sublease or other arrangement between Lessee or any Major Subtenant, as sublessor, and a Space Tenant, as sublessee, for the leasing of any portion of the Retail Space or any other space within the Leasehold Improvements (including, but not limited to, the Parking Garage and the Hotel Retail Operations) in accordance with Section 33.5. The term "Space Leases" includes Direct Space Leases, but does not include Major Subleases. sss."Space Tenant" means any tenant, subtenant, licensee and other occupant (including, but not limited to, any Direct Space Tenant) of any portion of the Leasehold Improvements pursuant to a Space Lease. The term "Space Tenant" does not include any Major Subtenant. ttt. "Start(s) Construction" means that all material plans and permits are approved and issued and the actual act of physical construction has begun. uuu. "Terrorist List" means any list issued by a Governmental Authority of individuals and/or entities engaged in terrorist activities, including, but not limited to, the following: (i) list of Specially Designated Terrorists (SDTs) issued by the Office of Foreign Assets Control ("OFAC") pursuant to Executive Order 12947; (ii) list of Specially Designated Global Terrorists (SDGTs) issued by OFAC pursuant to Executive Order 13224; and (iii) list of Foreign Terrorist Organizations (FTOs) issued by the Secretary of State. vvv. "Trustees" means the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. www."Unavoidable Delay(s)" means delays on account of Force Majeure Events. Such term shall be deemed to exclude: (i) delays on account of any lack of funds or economic conditions; and (ii) typical ordinary delays in obtaining any permits or other approvals from Governmental Authorities. Such term shall be deemed to include: (i) delays in the completion of Ground Lease -Final Page 18 the Project on account of any injunction or other order issued by any court having jurisdiction of the Property; and (ii) any extraordinary delays in obtaining any permits or other approvals from Governmental Authorities. xxx. "Voting and Operational Control", as used with respect to any Person, means that such Person: (i) owns, directly or through one or more intermediary Persons, not less than Twenty Percent (20%) of the ownership interests of another Person; and (ii) has voting and day- to-day control over the operation, management and decision -making of such other Person, subject to usual and customary consent rights of other investors with respect to certain "major" decisions or actions. yyy "Work" means all construction to be performed by Lessee under this Amended and Restated Ground Lease, including any repairing, restoring, removing, or replacing of the Leasehold Improvements. Section 1.6 Notice to Third Parties of Composite Attachment 3. All persons or entities reviewing and/or relying upon this Amended and Restated Ground Lease are hereby put on notice as follows: (a) Composite Attachment 3 is a material part of this Amended and Restated Ground Lease and is intended to have the same weight, and require the same compliance, as each and every other provision of this Amended and Restated Ground Lease. (b) The rights and interests of any and all lenders, assignees, sublessees and other types of encumbrance holders, transferees or holders of any other type of lien, right or interest whatsoever (collectively, an "Interest") in, to or under this Amended and Restated Ground Lease or the Leasehold Estate created hereby (collectively, "Interest Holder"), are hereby provided notice that each of them acquires such Interest subject to all of the terms and Ground Lease -Final Page 19 conditions of this Amended and Restated Ground Lease, specifically including, but not limited to, the terms of Composite Attachment 3, and the foregoing is specifically intended to apply, by way of example and not limitation, with respect to all Approved Construction Lenders, Approved Lenders, Approved Mezzanine Lenders, Approved Mortgages and Mortgagees, Approved Leasehold Mortgages and Mortgagees, Approved Subleasehold Mortgages and Mortgagees, Approved Major Subleases, Major Space Leases, Space Leases, Direct Space Leases, and any and all other types of Interests) or Interest Holders. ARTICLE II DEMISE Section 2.1 Demise. Subject to and in accordance with the terms and conditions of this Amended and Restated Ground Lease and the Permitted Title Exceptions, Lessor, for and in consideration of the Rent and of the covenants and agreements made by Lessee to be kept, observed and performed hereunder, does demise and lease the Property to Lessee, and Lessee does lease the Property from Lessor. Section 2.2 Leasehold Improvements. So long as this Amended and Restated Ground Lease remains in force, the Leasehold Improvements shall be owned in fee simple by Lessee and be the sole property of Lessee, and Lessor shall have no interest therein. Upon expiration of the Lease Tenn or sooner termination of this Amended and Restated Ground Lease, the Leasehold Improvements (as well as any Personal Property which is to be delivered to Lessor pursuant to Section 32.1(a) below and all licenses, easements, permits, and governmental approvals related to the Property) shall become the sole property of Lessor in fee simple, and free and clear of all encumbrances other than: (i) the lien of any Impositions assessed but not yet due and payable Ground Lease -Final Page 20 (for which Lessee shall remain obligated to pay to the extent that they are allocable to the period prior to the termination of this Amended and Restated Ground Lease); (ii) any rights surviving an early termination of this Amended and Restated Ground Lease (i.e., prior to the stated expiration date of the Lease Term) which are granted hereunder or under an applicable Subordination, Non -Disturbance and Attornment Agreement to any Approved Mortgagees (as defined in Section 8.1), Major Subtenants, holders of Approved Timeshare Licenses, and Space Tenants (it being understood that any and all rights to possession or occupancy of the Property and/or the Leasehold Improvements or any portion thereof shall in no event extend beyond the stated expiration date of the Lease Term, as same may be extended pursuant to Section 3.2); and (iii) the Permitted Title Exceptions and any other title matters consented to in writing by the City Manager or Lessor during the Lease Term. The provisions of this Section 2.2 shall not affect the rights and obligations of the Parties under Article XVI or Article XXIV. Section 2.3 Delivery of Title to Lessor. Upon the expiration or sooner termination of this Amended and Restated Ground Lease, Lessee shall execute, acknowledge and deliver to Lessor a proper instrument in writing, releasing and quit -claiming to Lessor all right, title, and interest of Lessee in and to the Leasehold Improvements (as well as any Personal Property which is to be delivered to Lessor pursuant to Section 32.1(a) below and all licences, easements, permits, and governmental approvals related to the Property). ARTICLE III TERM Section 3.1 Initial Term. This Amended and Restated Ground Lease shall be for an initial term of forty-five (45) years (the "Initial Term"), commencing on the Possession Date applicable to this Amended and Restated Ground Lease and ending on the date which is forty - Ground Lease -Final Page 21 five (45) years thereafter, unless this Amended and Restated Ground Lease is terminated at an earlier date pursuant to the terms hereof. Notwithstanding Flagstone's right to determine whether to develop the Project all at once under one ground lease or on a component by component basis under multiple ground leases, in which case the Initial Term for each ground lease begins on the Possession Date of the first executed ground lease, subject to lessee's rights to extend its ground lease pursuant to Section 3.2 below. Section 3.2 Extension Terms. Lessee is hereby granted two (2) consecutive options (each, an "Extension Option") to extend this Amended and Restated Ground Lease for a period of fifteen (15) years for each such Extension Option (each such fifteen (15) year period, an "Extension Term" and collectively, the "Extension Terms"). Provided that Lessee has properly and timely exercised an Extension Option, the term of this Amended and Restated Ground Lease shall be extended for the period of the applicable Extension Teini (the Initial Term, together with any exercised Extension Tenn(s), shall be referred to herein as the "Lease Term"). During any such Extension Tenn, the terms, covenants and conditions of this Amended and Restated Ground Lease, including the Rent provisions of Section 5, shall remain unmodified and in full force and effect (other than any such terns, covenants or conditions which are no longer applicable); (a) Exercise of First Extension Option. For purposes hereof, the tern "First Extension Option Exercise Period" shall mean the period of time commencing on the thirtieth (30th) anniversary of the Possession Date and ending on the forty-second (42nd) anniversary of the Possession Date such date to be defined as the date the first ground lease is executed. The first (1st) Extension Option shall be deemed to have been properly and timely exercised if: (i) Lessee provides written notice to the City Manager of Lessee's exercise thereof at any time Ground Lease -Final Page 22 during the First Extension Option Exercise Period, and (ii) no Material Uncured Lessee Default (as hereinafter defined) then exists. Notwithstanding Flagstone's right to determine whether to develop the Project all at once under one ground lease or on a component by component basis under multiple ground leases. (b) Exercise of Second Extension Option. For purposes hereof, the term "Second Extension Option Exercise Period" shall mean the period of time commencing on the first day of the first (1st) Extension Term and ending on the twelfth (12th) anniversary thereof. If the first (1st) Extension Option is duly exercised, then Lessee may exercise the second (2nd) Extension Option, which shall be deemed to have been duly and timely exercised if: (i) Lessee provides written notice to the City Manager of Lessee's exercise thereof at any time during the Second Extension Option Exercise Period; and (ii) no Material Uncured Lessee Default then exists. Notwithstanding Flagstone's right to determine whether to develop the Project all at once under one ground lease or on a component by component basis under multiple ground leases each subsequent ground lease shall use the Possession Date of the first executed ground lease. (c) Exercise is Irrevocable. Once received by Lessor, any such notice of extension described above shall be irrevocable by Lessee. (d) Material Uncured Lessee's Default. For purposes hereof, the term "Material Uncured Lessee's Default" means an Event of Lessee's Default: (i) which is material in nature; and (ii) whose occurrence would cause a landlord, acting in a commercially reasonable manner and in good faith, to elect to terminate this Amended and Restated Ground Lease (regardless of whether Lessor has not elected to terminate this Amended and Restated Ground Lease in connection therewith). Notwithstanding the foregoing, no Material Uncured Lessee Default shall be deemed to exist at a given point in time if it is cured at any time prior to the expiration of the Ground Lease -Final Page 23 Initial Tenn or the first Extension Term, as applicable (whether or not the cure has been effected within the applicable cure period for the default giving rise to such Event of Lessee's Default), so long as Lessee shall have pursued such cure diligently and in good faith. Section 3.3 Total Term: The total tern of the ground lease(s), regardless if the Project is developed all at once under one ground lease or on a component by component basis under multiple ground leases, includes the Initial Term of forty-five (45) years and two Extension Periods of fifteen (15) years each, for a total of not to exceed seventy-five (75) years from the Possession Date of the first Ground Lease. ARTICLE IV DELIVERY OF POSSESSION AND DEVELOPMENT AND OPERATION OF THE PROJECT Section 4.1 Delivery of Possession of Property. Simultaneously with the execution and delivery of this Amended and Restated Ground Lease by the Parties, Lessor shall deliver possession of the Property to Lessee; it being understood and agreed that the date of execution and delivery of this Amended and Restated Ground Lease by the latter of the Parties shall be deemed to be the "Possession Date" hereunder. Section 4.2 Memorandum. At the time of the mutual execution and delivery of this Amended and Restated Ground Lease, the City Manager and Lessee, upon request of either Party, shall execute a memorandum in recordable form, setting forth the beginning and termination dates of the Initial Term, describing the right to the extension of this Amended and Restated Ground Lease pursuant to Section 3.2, and including such other items as are contemplated by Section 18.4 and Section 38.6. Ground Lease -Final Page 24 Section 4.3 Development of the Project. Lessee shall cause the Project Components to be constructed on the Property substantially in accordance with all applicable Development Plans and with the Project Approvals and the terms and conditions set forth in Article XIV hereof. Section 4.4 Operating Team. (a) Selection. Lessee's selection of each member of the Operating Team shall be subject to the prior written approval of the City Manager in accordance with the City Manager Approval Procedures; provided, however, that Fairchild Tropical Garden and The Historical Museum of South Florida shall be deemed to have been approved by Lessor. (b) Replacement. The replacement of any such member of the Operating Team (including Fairchild Tropical Garden and The Historical Museum of South Florida) by Lessee shall be subject to the prior written approval of the City Manager in accordance with the City Manager Approval Procedures. Lessee acknowledges and agrees that the inclusion of Fairchild Tropical Garden and The Historical Museum of South Florida were important factors in the City's selection of the Island Gardens Proposal. (c) No Approval Required for Lessee or Affiliates. Notwithstanding the foregoing, no approval by the City Manager shall be required for Lessee and/or any of its Affiliates to be the initial or replacement operator or manager of either or both Hotels or the Marina so long as the franchisor or licensor for the applicable Hotel or the Marina is approved by the City Manager in accordance with the provisions of this Section 4.4. (d) Pre -Approved Hotel Franchisors. For purposes hereof, the teen "Pre -Approved Hotel Franchisor" means any of the franchisors or licensors listed in Exhibit J, as well as any of their successors. Notwithstanding anything to the contrary contained herein, the initial selection of any Pre -Approved Hotel Franchisor as the franchisor or licensor for Hotel A and/or Ground Lease -Final Page 25 Hotel B is hereby pre -approved by, and shall not require any further approval of or consent by, the City Manager on behalf of Lessor. Furthermore, the subsequent replacement from time to time of any then -existing franchisor or licensor (whether or not a Pre -Approved Hotel Franchisor) with any Pre -Approved Hotel Franchisor shall not require any further approval of or consent by the City Manager on behalf of Lessor, so long as such replacement is made prior to the tenth (10t11) anniversary of the Possession Date. (e) Operator. If the franchisor or licensor of either Hotel or the Marina is approved (or deemed pre -approved) by the City Manager pursuant to this Section 4.4, then any operator of such Hotel which: (i) is an Affiliate of such franchisor or licensor; or (ii) is a Person which has been retained by such franchisor or licensor for a substantial number of the hotels in its franchise or license system (or is an Affiliate of any such Person) shall not be subject to the City Manager's approval. (f) Manager. If an operator of either Hotel or the Marina has been approved (or is, pursuant to subparagraph (e) above, not required to be approved) by the City Manager, then any individual who is employed by such operator as the general manager and any other employee of such Hotel or the Marina shall not be required to be approved by the City Manager. ARTICLE V RENT AND SECURITY DEPOSIT Section 5.1 Application of Composite Attachment 3 to Pre -Paid Construction Rent/Base Rent, Option Payments, and Construction Rent: (a) In Section II of Composite Attachment 3, the parties have set forth the "General Payment Schedule for All Major Project Components" detailing the general payment commencement dates, end dates, and per annum amounts for Prepaid Construction Rent/Base Ground Lease -Final Page 26 Rent and Construction Rent for the entire Project for each lease year. Additionally, Composite Attachment 3 sets forth the circumstances (i) for transitioning from the payment of Prepaid Construction Rent/Base Rent to the payment of Construction Rent, (ii) for any credits to Flagstone of Prepaid Construction Rent/Base Rent, (iii) for no credits to Flagstone of Prepaid Construction Rent, (iv) for any acceleration of time for Construction Rent payments, and (v) any overlaps of Construction Rent with Option Payments and with Base Rent payments. (b) Each ground lease fora Major Project Component shall pay its Pro-Rata Share of the Prepaid Construction Rent and the Construction Rent as set forth in Composite Attachment 3; provided, however, that, (subject to Subsection 5.2(c) below concerning special circumstances applicable if the Marina Component Ground Lease is executed and the Marina Component so developed), until ground leases have been signed for all Major Project Components, the total payment amounts set forth for each lease year in Section II of Composite Attachment 3 shall be paid by the Lessee(s) who have previously signed Ground Leases so that in all cases the City shall receive in total the aggregate amount required to be paid per annum. (c) Composite Attachment 3, particularly in Sections III, IV and V, also sets forth option exercise and payment provisions, commencement dates, end dates, and per annum amounts for two (2) option period of 5 years each for particular lease years related to construction of the Hotel(s) Component(s) of the Project. Additionally, Composite Attachment 3 sets forth the circumstances (i) for transitioning from the Section I General Construction Schedule for All Major Components to the construction schedules for one or both Hotel(s) Components, and (ii) for the related overlapping payments of Construction Rent, Option payments, and Base Rent. Ground Lease -Final Page 27 (d) Composite Attachment 3, Sections VI and VII also set forth (i) certain provisions relating to Prepaid Construction Rent/Base Rent and Construction Rent payments for the Marina Component, and (ii) for certain lump sum payment circumstances due to the construction schedule for the Marina Component. (e) Monthly Installments: All Prepaid Construction Rent/Base Rent, Construction Rent, and Option payments to the City are to be paid in equal monthly installments in advance on the first day of the month. (0 Potential Construction Rent Payment Schedule Acceleration; Potential Option Payment Schedule Acceleration. Composite Attachment 3 sets forth circumstances under which Construction Rent payment schedules and Option payment schedules may be accelerated. Section 5.2 Application of Composite Attachment 3 to Base Rent. In Sections II and IV of Composite Attachment 3, the parties have set forth the details regarding payment commencement dates, end dates, and per annum amounts for Base Rent for the entire Project for each lease year. Additionally, Composite Attachment 3 sets forth the circumstances (i) for transitioning from the payment of Prepaid Construction Rent/Base Rent and Construction Rent to the payment of Base Rent, (ii) for any increases in Base Rent due to certain construction circumstances, (iii) for any acceleration of time for Base Rent payments, and (iv) any overlaps of Construction Rent with Option Payments and with Base Rent payments. (a) Each ground lease for a Major Project Component shall pay its Pro-Rata Share of the Base Rent as set forth in Composite Attachment 3; provided, however, that subject to Subsection 5.2(c) below concerning special circumstances applicable if the Marina Component Ground Lease is executed and the Marina Component so developed) until ground leases have been signed for all Major Project Components, the total payment amounts set forth for each lease year Ground Lease -Final Page 28 in Section II of Composite Attachment 3 shall be paid by the Lessee(s) who have previously signed ground leases so that in all cases the City shall receive in total the aggregate amount required to be paid per annum. (b) Monthly Installments: All Base Rent payments to the City are to be paid in equal monthly installments in advance on the first day of the month in accordance with Composite Attachment 3;_provided, however, that if the Possession Date occurs on a day other than the first (1st) day of the month, Lessee shall, on the Possession Date pay to Lessor the pro rata portion of Base Rent due for any partial month in which the Possession Date occurs. (c) CPI Adjustment. For purposes hereof: (i) "Consumer Price Index" means the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as "The Consumer Price Index for All Items, Miami -Ft. Lauderdale (Base Year 1982-84 = 100)" or its successor; provided, however, that if such index is discontinued during the Lease Term and there is no successor index, "Consumer Price Index" shall mean such other index as the parties shall mutually agree as reasonably replacing such index. (ii) "Reference Year Base Rent" means the per annum Base Rent amount for the twelve (12) month period commencing on the Possession Date. (d) CPI Adjustment. Commencing on the first anniversary of the Possession Date, and on each anniversary thereafter during the Lease Term, the per annum Base Rent amount shall be adjusted to an amount equal to the product of the Reference Year Base Rent multiplied by a fraction, the numerator of which is the Consumer Price Index number as of three (3) months prior to the beginning of the applicable adjustment date, and the denominator of which is the Consumer Price Index number as of three (3) months prior to the Possession Date. Ground Lease -Final Page 29 (e) Floor and Cap. In no event shall any such annual adjustment to the Base Rent result in an increase which is less than One Percent (1%), or more than Five Percent (5°l°), of the Base Rent amount immediately prior to the effective date of such adjustment. (f) Notice of CPI Adjustment. If any such Consumer Price Index adjustment is to be made, then Lessor shall notify Lessee in writing of the amount of the increased Base Rent for the twelve (12) month period commencing on the date of the adjustment, and if Lessor fails to so notify Lessee prior to the commencement of such twelve (12) month period, Lessee shall continue paying the previously applicable Base Rent installments until such time as Lessee is notified in writing of the appropriate increase in Base Rent, and within thirty (30) days thereafter, Lessee. shall pay Lessor any deficiency in the Base Rent installments otherwise paid by Lessee prior to such notification. Section 5.3 Percentage Rent In addition to the Base Rent above, Lessee shall pay Percentage Rent to Lessor as follows: (a) Gross Revenues Other Than from the Sale of Approved Time Share Licenses. Lessee shall pay to Lessor Percentage Rent in an amount equal to one percent (1%) of Gross Revenues (except for Gross Revenues from the sale of Approved Time Share Licenses as described in subparagraph (b) below) earned during the period from and after the third (3rd) anniversary of the Possession Date(the "Percentage Rent Commencement Date") and continuing thereafter throughout the Lease Term. Such Percentage Rent shall be payable in monthly installments, in arrears, on the first (1st) day of each month, commencing on the first (1st) day of the month which is two months after the Percentage Rent Commencement Date. Each such monthly installment shall be in an amount equal to the Percentage Rent payable under Ground Lease -Final Page 30 this Section 5.3(a) for the month which is two (2) months before the due date of such installment (e.g., an installment due on July 1 shall be for the Percentage Rent for the preceding May). (b) Gross Revenues from the First Sale of Approved Time Share Licenses. Defined Tenn. For purposes hereof, the term "First Sale" means the closing (i.e., delivery of evidence of ownership by Lessee or the applicable Major Subtenant to the licensee thereof, as opposed to entering into a contract for sale, taking reservations or deposits, etc.) of the sale or transfer of any Approved Time Share License at either Hotel A, Hotel B or the Marina to the first licensee thereof (it being understood that such terrn shall not apply to, and no Percentage Rent shall be payable with respect to, any subsequent re -sales or transfers of the same Approved Time Share License). (ii) Percentage Rent. In addition to the Percentage Rent specified in Section 5.3(a) above, Lessee shall pay to Lessor Percentage Rent in an amount equal to Two and One - Half Percent (2.5%) of Gross Revenues with respect to the First Sale of each Approved Time Share License (as such Gross Revenues are defined and described in Exhibit G) earned during the period from and after the date such First Sales commence.. Such Percentage Rent shall be payable in monthly installments, in arrears (in the same manner as provided for by Section 5.3(a) above), on the first (1st) day of each month, commencing on the first day of the month which is two (2) months after the month in which such First Sales commence. (iii) Penalty Fee: Should the Time Share component of the project not be constructed by the Lessee, then the Lessee shall pay to the Lessor a penalty fee in an amount equal to Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00), which amount is pursuant to Flagstone Island Garden's response to the RFP issued by the City of Miami, within Ground Lease -Final Page 31 thirty (30) days upon the completion of the Hotel Option periods or at such time as Flagstone notifies the City of its intent not to construct the Hotel Components whichever comes first. (c) Statements Concerning Percentage Rent. Together with each installment of Percentage Rent, Lessee shall provide Lessor with a statement of its Gross Revenues for the applicable month signed by the managing member or any duly elected officer of Lessee. Such statement shall show Gross Revenues and an itemization of any exclusions or deductions therefrom for such month, as well as year-to-date amounts for the current calendar year. Within one hundred twenty (120) days after the end of each calendar year, Lessee shall deliver to Lessor audited statements of the Gross Revenues for the preceding calendar year prepared by a nationally recognized accounting firm reasonably acceptable to the City Manager, along with the additional amount of Percentage Rent, if any, which is due from Lessee to Lessor for that preceding calendar year. In the event that the statement of Gross Revenues for the preceding calendar year indicates that the estimated Percentage Rent paid by Lessee for the preceding calendar year is greater than the actual Percentage Rent due Lessor, then the Parties shall reconcile the estimated -Percentage Rent paid and the actual Percentage Rent due in the form of a credit to Lessee against next accruing monthly Rent installments due hereunder (or a refund if there are no more monthly Rent installments due hereunder). (d) Major Subleases. Each Major Sublease shall require that the applicable Major Subtenant furnish similar statements to Lessee in the same manner as provided for by subparagraph (c) above. Upon Lessee's receipt of such statements, Lessee shall promptly furnish copies thereof to Lessor. Section 5.4 Security Deposit. Ground Lease -Final Page 32 (a) Security Deposits for the Security Rent/Base Rent. Prior to the execution of this Amended and Restated Ground Lease, Flagstone shall continue the Security Rent Deposit payments, as indicated below, either by (a) delivering the amount equal to one year's Construction Rent/Base Rent to the Escrow Agent, or (b) provide to City, at Flagstone's sole cost and expense, a Letter of Credit in the amount equal to one year's Construction Rent/Base Rent as defined herein. Notwithstanding the foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of Credit so long as the Security Deposit for the Pre -Paid Construction Rent/Base Rent equals the amounts defined in the aggregate. The Security Deposit for the Construction Rent/Base Rent, shall herein after be referred to as the "Security Rent Deposit" and shall provide security for the faithful performance by Flagstone of all rent payment provisions in full of this Amended and Restated Ground Lease to be performed or observed by Flagstone. During the periods outlined below, Flagstone shall deliver the Security Deposits as defined below: Commencing Annual Amount Required for Security Deposit Rent October 1, 2010 $300,000 October 1, 2011 $500,000 October 1, 2012 $750,000 October 1, 2013 $1,000,000 October 1, 2014 $1,000,000 October 1, 2015 $1,000,000 October 1, 2016 $1,500,000 October 1, 2017 $1,675,000 Ground Lease -Final Page 33 October 1, 2018 $2,000,000 Any LOC Deposit held by the Lessor or Cash Deposit held by Escrow Agent, as defined in the Agreement to Enter between the Parties (having an effective date of February 1, 2010) as security under such Agreement to Enter may be credited toward the following year's Security Rent Deposit, beginning on October 1, 2010. The annual amount due on October 1, 2018 of TWO MILLION DOLLARS ($2,000,000) shall remain in effect for the life of the Agreement. Flagstone shall have a 10-day grace period beyond the first of the month to increase the annual payment as set forth in this Section 5.4. If an Event of Lessee's Default for non-payment of rent occurs hereunder, Lessor may, at its option and without prejudice to any other right or remedy that Lessor may have hereunder, apply or require distribution of all or any portion of the Security Deposit Rent for the payment of any sum to which Lessor may become entitled by reason of such Event of Lessee's Default, including, without limitation, reasonable attorneys' fees and costs which Lessor may incur in connection therewith. If Lessor so applies or requires the distribution to Lessor of all or any portion of the Security Deposit Rent, Lessee shall, within thirty (30) days after written demand therefor, deposit cash with Lessor in an amount sufficient to restore any such deficiency or amend or replace any LOC Deposit, whichever is applicable, to the full amount thereof, and Lessee's failure to do so shall, at Lessor's option, constitute an Event of Lessee's Default hereunder. In the event Lessor applies or requires distribution of all or any portion of an LOC Deposit where no Event of Lessee's Default then existed, Lessor shall be deemed to have improperly requested and received such application or distribution, and Lessee shall be entitled to recover from Lessor the amount which was improperly requested and received, or to reduce the Security Deposit by an equivalent amount. Ground Lease -Final Page 34 (b) Security for the Easements. Prior to the execution and delivery of the new Amended and Restated Agreement to Enter, and for the term of all Ground Leases for so long as any and all such easements are in effect, Flagstone shall either (a) deliver the amount of Thirty - Five Thousand and No/100 Dollars ($35,000.00) (the "Easement Deposit") to Escrow Agent or (b) provide to City, at Flagstone's sole cost and expense, a Letter of Credit in the amount of Thirty -Five Thousand and No/I00 ($35,000.00) (the "Easement Security LOC"). Notwithstanding the foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of Credit so long as the easement deposit equals Thirty -Five Thousand and No/100 Dollars ($35,000.00) in the aggregate. The Easement Deposit or the Easement Security LOC, as applicable, shall hereinafter be referred to as the "Easement Security" and shall provide security for the faithful performance by Flagstone of all of the provisions of the Easements to be performed or observed by Flagstone. Security for Hold Harmless and Indemnification and Security Provisions under Attachment 3. Flagstone shall also comply with the provisions of Section IX of Composite Attachment 3 hereto, and Section 9.3 of the Amended and Restated Agreement to Enter regarding Security Deposit(s) required regarding any lawsuits, pending against the City relating to any Lien(s) on the subject Property and Section 14.18 hereof. Deposits; Letters of Credit. Any Security Deposit held by Escrow Agent shall be held in accordance with the Escrow Agreement, in form and substance as set forth in the Amended and Restated Agreement to Enter in Exhibit 5.3 (the "Escrow Agreement"), which Escrow Agreement shall be executed by City, Flagstone and Escrow Agent simultaneously with the execution of the this Amended and Restated Agreement to Enter which shall remain in effect for so long as any Ground Lease Remains in effect, in connection with the Easements and shall Ground Lease -Final Page 35 continue for Additional Security to be deposited under the Escrow Agreement upon the execution of the first Ground Lease and then thereafter any subsequent Ground Lease(s) and any additional security deposits required thereunder. Any Letter of Credit elected by Flagstone pursuant to the provisions of this ARTICLE 5 in the Amended and Restated Agreement to Enter (or a replacement thereof satisfactory to City) shall remain in effect throughout the term of the related Ground Lease(s), unless the Easements and the related Ground Lease(s) are otherwise terminated. (e) Release. Upon termination of the applicable Ground Lease, Lessor shall, within fifteen (15) days after written request of Lessee, return and/or release the applicable amount of the Security Deposits currently held by Lessor to Lessee (less such portion thereof as Lessor may have appropriated and applied in accordance with the provisions of this Section 5.4, Composite Attachment 3 and Composite Attachment 5), whereupon no further or other security deposits shall be required hereunder. Section 5.5 Place Of Payment. Lessee shall pay all Rent to Lessor in lawful money of the United States of America at a place Lessor shall from time to time designate by written notice to Lessee, and in the absence of such designation, at the office of the Finance Director of the City at the address set forth in Section 37.1. Section 5.6 Default Interest. If any Rent or other sums due from Lessee to Lessor hereunder are not paid when due and payable, then such unpaid Rent or other sums shall bear interest at the Default Rate from and after the date when same became due and payable until the date paid. Such interest payment shall be deemed to be additional Rent and shall not be deemed a consent by Lessor to late payments, nor a waiver of Lessor's right to insist upon timely Ground Lease -Final Page 36 payments at any time, nor a waiver of any remedies to which Lessor is entitled as a result of the late payment. Section 5.7 Late Charge. If any Rent or other sums due from Lessee to Lessor hereunder are not paid when due and payable, and Lessee thereafter fails to cure such default within the applicable cure period hereunder (such that an Event of Lessee's Default occurs on account thereof), then, on each such occasion, Lessee shall pay to Lessor a late fee equal to Four Percent (4%) of the past due sum, as compensation to Lessor for the inconvenience of the collection and processing of each such late payment. Such late fee shall be in addition to any interest payable under Section 5.6. Such late fee shall be deemed to be additional Rent and shall not be deemed a consent by Lessor to late payments, nor a waiver of Lessor's right to insist upon timely payments at any time, nor a waiver of any remedies to which Lessor is entitled as a result of the late payment. Section 5.8 Rent To Be Without Deduction. This Amended and Restated Ground Lease shall be deemed and construed to be a triple net lease, and Lessor shall receive all Rent, and all other payments to be made by Lessee, free from any charges, assessments, Impositions, expenses, defenses, set -offs or deductions of any nature, except as may be otherwise specifically provided for herein (including, but not limited to, Lessee's set-off rights described in Section 25.3(b)(iv) and Section 26.1(c) below). Lessor shall not be called upon to make any expenditure for the maintenance, repair or preservation of all or any portion of the Property. ARTICLE VI LEASEHOLD AND SUBLEASEHOLD MORTGAGES Section 6.1 Definition of Terns. For purposes of this Article VI, the following terms shall have the meanings attributed to them in this Section: (a) "Approved Initial Construction Lender" means the initial Construction Lender approved Ground Lease -Final Page 37 pursuant to the terms of this Amended and Restated Ground Lease.. (b) "Approved Leasehold Mortgage" means any mortgage, deed of trust or similar security instrument (as same may be supplemented, extended, split, consolidated, or otherwise amended or modified from time to time, all without Lessor's consent) encumbering the Leasehold Estate and/or Leasehold Improvements or any portion thereof, so long as: (i) such instrument does not encumber the City's fee simple estate; (ii) such instrument secures an Approved Construction Loan or an Approved Permanent Loan or Approved Mezzanine Financing; (iii) the funding availability pursuant to any Approved Construction Loan, together with the funding availability pursuant to any Approved Mezzanine Financing, will not result in the Initial Equity Requirement not being satisfied; (iv) the funding availability pursuant to any Approved Permanent Loan, together with the funding availability pursuant to any Approved Mezzanine Financing, will not cause the Maximum Project Debt to Value Ratio to be exceeded. For purposes of clauses (iii) and (iv) above, the term "funding availability" shall not include any provision for a future advance which is entirely within the lender's discretion to make, and any such future advance shall be treated as a separate loan for such purposes. Notwithstanding the foregoing, the term "Approved Leasehold Mortgage" shall also include any other such mortgage, deed of trust or security instrument approved in writing by the City Manager pursuant to the terms hereof. (c) "Approved Leasehold Mortgagee" means the holder of an Approved Leasehold Mortgage. (d) "Approved Major Subleasehold Mortgage" means any mortgage, deed of trust or similar security instrument (as same may be supplemented, extended, split, consolidated, or Ground Lease -Final Page 38 otherwise amended or modified from time to time, all without Lessor's consent) encumbering any Major Subleasehold Estate or any portion thereof, so long as: (i) such instrument does not encumber the City's fee simple estate; (ii) such instrument secures an Approved Construction Loan or an Approved Permanent Loan or any Approved Mezzanine Financing; (iii) the funding availability pursuant to any Approved Construction Loan, together with the funding availability pursuant to any Approved Mezzanine Financing, will not result in the Initial Equity Requirement not being satisfied; and (iv) the funding availability pursuant to any Approved Permanent Loan, together with the funding availability pursuant to any Approved Mezzanine Financing, will not cause the Maximum Project Component Debt to Value Ratio to be exceeded. For purposes of clauses (iii) and (iv) above, the teen "funding availability" shall not include any provision for a future advance which is entirely within the lender's discretion to make, and any such future advance shall be treated as a separate loan for such purposes. (e) "Approved Major Subleasehold Mortgagee" means the holder of an Approved Major Subleasehold Mortgage. (f) "Approved Mortgage" means any Approved Leasehold Mortgage or Approved Major Subleasehold Mortgage. (g) "Approved Mortgagee" means any Approved Leasehold Mortgagee or Approved Major Subleasehold Mortgagee. (h) "Approved Lender" means any Person meeting any of the following criteria: (i) any insurance company, bank or trust company, pension or Ground Lease -Final Page 39 retirement fund or trust, governmental agency or fund, or other financial or lending institution or other lender which is regulated by, or makes any loans which are regulated by, state or federal laws of the United States, provided; however, that in the case of a first priority Approved Leasehold Mortgage or a first priority Approved Major Subleasehold Mortgage, the Financial Standards must be satisfied; (ii) any similar type of foreign domiciled entity or institution or other lender which is regulated by, or makes any loans which are regulated by, the country of its domicile provided; however, that in the case of a first priority Approved Leasehold Mortgage or a first priority Approved Major Subleasehold Mortgage, the Financial Standards must be satisfied; (iii) any Person which is listed in the "S&P 500" or the "Fortune500", or any Affiliate of such Person; any of the lenders listed in Exhibit K (whether or not they independently satisfy the requirements of clauses (i), (ii) or (iii) above), provided that such lender continues to satisfy the Financial Standards; (iv) any other lender which may be approved in writing from time to time by the City Manager as an "Approved Lender"; (v) in the case of Mezzanine Financing, any Approved Mezzanine Financer; (vi) any successor of any Person described in clauses (i) through (vi) above; and (vii) any assignee of any Person described in clauses (i) through (vi) above, so long as such assignee independently meets any of the criteria set forth in clauses (i) through (vi) above. Notwithstanding the foregoing, the criteria set forth in clauses (i) through (vi) above shall not apply to: (A) any loan participants not in privity with or having direct legal rights with Ground Lease -Final Page 40 respect to the borrower; or (B) any certificate holder or similar Person holding an interest from time to time in a securitized loan, conduit loan or similar loan. (i) "Financial Standards" means that, at the time any applicable loan is made, the lender making such loan shall have assets in excess of $50,000,000,000 and shall have a credit rating of not less than "A"; provided, however, that the foregoing requirements: (i) may be satisfied by aggregating the assets of such lender with those of all of its Affiliates; and (ii) need not be satisfied by any co -lenders, so long the lender (together with all of its Affiliates as described in clause (i) above) designated by such co -lenders as the "agent" or "lead lender" or any similar designation satisfies such requirements. (j) "Approved Construction Loan" means any loan extended by an Approved Lender to Lessee or any Major Subtenant for the primary purpose of the initial construction and completion of the Project or any applicable Major Project Component or any other portion thereof, which loan is secured by an Approved Leasehold Mortgage. The Approved Construction Loan shall be submitted no later than 60 days prior to the Commission meeting date for the consideration of the respective ground lease. (k) "Approved Mezzanine Financer" means: (i) any company, corporation, fund or other entity, whether public or private, which: (A) has a portfolio of obligations similar in type or size to the applicable Mezzanine Financing, which portfolio has a value in excess of $250,000,000 at the time such Mezzanine Financing is made; (B) is prepared to "front-end" its commitments (i.e., make advances or place funds into escrow for the purpose of funding initial or early Project costs); (C) is not named, and has no controlling investor therein, named on any Terrorist List at the time of the making of such Mezzanine Financing; and (D) has not had (nor has any controlling investor therein which has Ground Lease -Final Page 41 had) any criminal felony convictions within the immediately preceding ten (10) years prior to the making of such Mezzanine Financing; or (ii) any other Person meeting the criteria for an Approved Lender as set forth in the definition thereof. (1) "Approved Mezzanine Financing" means any financing extended by an Approved Mezzanine Financer to Lessee or any Major Subtenant with respect to the Project or any Major Project Component(s), which financing: (i) is secured primarily by assets other than the Property (such as a pledge or hypothecation of shares or other interests in the borrowing entity), but may (in addition to being secured by such collateral), be secured by a subordinate mortgage encumbering the Leasehold Estate and/or Leasehold Improvements or any Major Subleasehold Estate, as applicable; (ii) may include an equity participation (including any preferred equity or other ownership interest in Lessee or the applicable Major Subtenant, as applicable), or a participation in profits or other "equity kicker". (m) "Approved Permanent Loan'.' means any loan extended by an Approved Lender to Lessor or any Major Subtenant after the initial construction and completion of the Project or any applicable Major Project Component, which loan is secured by an Approved Leasehold Mortgage, including, but not limited to: (i) any permanent or mini -permanent loan (whether a new loan or a conversion of any Approved Construction Loan); (ii) any loan made in connection with any subsequent construction, demolition, renovation and/or rehabilitation from time to time of any portion of the Leasehold Improvements; and Ground Lease -Final Page 42 (iii) if the Property is being developed on a component by component basis, then each Approved Permanent Loan shall include the applicable, if any, additional terms and conditions of Composite Attachment 3 attached to and incorporated by this Amended and Restated Ground Lease. (n) "Initial Equity Requirement" means that: (i) the Bayraktar Family Equity Contribution shall have been made; and i. Lessee, either directly or through one or more Investors (as defined in Section 8.1), shall have contributed not less than ONE HUNDRED AND TWELVE MILLION DOLLARS AND NO/100 ($112,000,000) (with the amount of the Bayraktar Family Equity Contribution being counted toward such sum) in equity into the Project; provided, however, that in the event that the budgeted Project cost exceeds THREE HUNDRED AND TWENTY MILLION DOLLARS AND NO/100 ($320,000,000), such required equity contribution by Lessee shall be an amount not less than Thirty -Five Percent (35%) of such budgeted Project cost. The foregoing equity contribution amounts shall include all demonstrable hard costs and soft costs reasonably related to the Project expended or reimbursed by Lessee and/or the Bayraktar Family prior to or after the date hereof. In no event shall the required Bayraktar Family Equity Contribution amount be affected by any increase in Project costs. Notwithstanding the foregoing, in the event the Project is developed on a component by component basis, the Initial Equity Requirement shall be calculated using the same Ground Lease -Final Page 43 formula that is used for calculation of the Security Deposit as stated in this Amended and Restated Ground Lease. In other words, the amount of the Initial Equity Requirement at any given time shall be equal to the product obtained by multiplying ONE HUNDRED AND TWELVE MILLION DOLLARS AND NO CENTS ($112,000,000) or the amount that is Thirty -Five Percent (35%) of the budgeted Project cost, as applicable, by the percentage that the Projected Development Cost of all Major Project Components under construction at that time bears=to the Projected Development Cost of the total Project. The Projected Development Cost shall be determined by Lessee and subject to approval by the City Manager, after review of such financial information as shall be satisfactory to the City Manager, and shall be contained in the development budgets submitted to Lessor pursuant to the Agreement to Enter. (o) "Maximum Project Debt to Value Ratio" means that: (i) the aggregate principal indebtedness of all Approved Permanent Loans secured by Approved Leasehold Mortgages, and all Approved Permanent Loans secured by Approved Major Subleasehold Mortgages, shall not exceed (exclusive of advances to protect security and overdue and default interest) Seventy Five Percent (75%) of the Fair Market Value of the Project; and (ii) the aggregate principal indebtedness of all Approved Permanent Loans and Approved Mezzanine Financings secured by Approved Leasehold Mortgages and all Approved Permanent Loans and Approved Mezzanine Financings Ground Lease -Final Page 44 (P) secured by Approved Major Subleasehold Mortgages shall not exceed (exclusive of advances to protect security and overdue and default interest) Eighty Five Percent (85%) of the Fair Market Value of the Project, unless the prospective Debt Service Coverage Ratio for all such Approved Permanent Loans and Approved Mezzanine Financings combined will, based on reasonable pro formas, be less than 1.3, in which case such percentage shall be Seventy Five Percent (75%) instead of Eighty Five Percent (85%). "Maximum Project Component Debt to Value Ratio" means, with respect to any applicable Major Project Component, that: (i) the aggregate principal indebtedness of all Approved Pennanent Loans secured by Approved Major Subleasehold Mortgages with respect to such Major Project Component shall not exceed (exclusive of advances to protect security and overdue and default interest) Seventy Five Percent (75%) of the Fair Market Value of such Major Project Component; and (ii) the aggregate principal indebtedness of all Approved Permanent Loans and Approved Mezzanine Financings secured by Approved Major Subleasehold Mortgages with respect to such Major Project Component shall not exceed (exclusive of advances to protect security and overdue and default interest) Eighty Five Percent (85%) of the Fair Market Value of such Major Project Component, unless the prospective Debt Service Coverage Ratio for all such Approved Permanent Loans and Approved Mezzanine Financings combined will, based on reasonable pro formas, be less than 1.3, in which case such percentage shall be Seventy Five Percent (75%) instead of Eighty Five Percent (85%). Ground Lease -Final Page 45 (q) "Fair Market Value" means the fair market value of the Project or any Major Project Component, as applicable, based on the most current "as -built" appraisal, prepared by an MAI appraiser licensed to perform appraisal services within the State of Florida, obtained by an Approved Mortgagee as a condition to making any loan or advance (including any future advance) by such Approved Mortgagee secured or to be secured by an Approved Mortgage. In the event that the most current appraisal is more than two (2) years old, either Party may require a new appraisal or an update and recertification of the prior appraisal. The cost of such new or recertified appraisal shall be the responsibility of Lessee, but any such new or recertified appraisal shall be certified to Lessor as well as to Lessee. (r) "Foreclosure Transfer" means a foreclosure sale with respect to an Approved Leasehold Mortgage or Approved Major Subleasehold Mortgage or as a result of the assignment or transfer of the Leasehold Estate or applicable Major Subleasehold Estate in lieu of foreclosure or other similar transaction, which foreclosure sale transfer shall also be subject, if the Property is being developed on a component by component basis, to the applicable, if any, additional terns and conditions of Composite Attachment 3 attached to and incorporated by this Amended and Restated Ground Lease. (s) "Approved Foreclosure Transferee" means any Person (including, but not limited to, any Approved Lender or any Affiliate, designee, nominee or assignee thereof) acquiring the Leasehold Estate or any Major Subleasehold Estate pursuant to a Foreclosure Transfer; provided, however, that such Person must: (i) not appear on a Terrorist List at the time of such Foreclosure Transfer; Ground Lease -Final Page 46 (ii) not have had (or be controlled by a Person who has had) any criminal felony convictions within the immediately preceding ten (10) years prior to such Foreclosure Transfer; (iii) have substantial experience in owning or operating projects which are comparable to the Project or the applicable Major Project Component, or retain, within a reasonable period of time, an operator having such experience to operate the Project or the applicable Major Project Component; and (iv) assume in writing all of the obligations of Lessee hereunder, or all of the obligations of any applicable Major Subtenant under the applicable Major Sublease, accruing from and after the effective date of such Foreclosure Transfer, and provide a copy of such assumption agreement to the City Manager within ten (10) days after the effective date of such Foreclosure Transfer. (t) "Approved Subsequent Foreclosure Purchaser" means any Person acquiring the Leasehold Estate or any Major Subleasehold Estate from an Approved Foreclosure Transferee, provided that such Person must: (i) not appear on a Terrorist List at the time of such acquisition; (ii) not have had (or be controlled by a Person who has had) any criminal felony convictions within the immediately preceding ten (10) years prior to such acquisition; (iii) have substantial experience in owning or operating projects which are comparable to the Project or the applicable Major Project Component, or retain, within a reasonable period of time, an operator having such experience to operate the Project or the applicable Major Project Component; and Ground Lease -Final Page 47 (iv) assume in writing all of the obligations of Lessee hereunder, or all of the obligations of any applicable Major Subtenant under the applicable Major Sublease, accruing from and after the effective date of such acquisition, and provide a copy of such assumption agreement to the City Manager within ten (10) days after the effective date of such acquisition. Section 6.2 Prohibited Mortgages. (a) Leasehold Estate. Other than pursuant to an Approved Leasehold Mortgage, Lessee may not mortgage, pledge or otherwise encumber all or any part of Lessee's interest in the Leasehold Estate and/or the Leasehold Improvements (and no such mortgage, pledge or other encumbrance shall be valid or effective) without Lessor's prior written consent, which may be withheld in its sole and absolute discretion. (b) Major Subleasehold Estate. Other than pursuant to an Approved Major Subleasehold Mortgage, no Major Subtenant may mortgage, pledge or otherwise encumber all or any part of such Major Subtenant's interest in its Major Subleasehold Estate (and no such mortgage, pledge or other encumbrance shall be valid or effective), without Lessor's prior written consent, which may be withheld in its sole and absolute discretion. Section 6.3 Permitted Mortgages. (a) Leasehold Estate. Lessee is freely permitted to grant any and all Approved Leasehold Mortgages. (b) Major Subleasehold Estates. Each Major Sublessee is freely permitted to grant any and all Approved Major Subleasehold Mortgages. (c) Mortgages Encumbering Space Leasehold Estates. Nothing contained herein shall be deemed to prevent: (i) any Space Tenant from granting any mortgage, deed of trust or other similar security instrument encumbering its right, title and interest in, to and under the Ground Lease -Final Page 48 applicable Space Lease; or (ii) any holder of any such mortgage, deed of trust or other instrument from foreclosing upon such instrument or accepting an assignment or transfer in lieu thereof and thereafter assigning or transferring the collateral under such instrument to another Person, all subject to and in accordance with the terms and conditions of the applicable Space Lease. (d) Amendments. Upon the request of any actual or prospective Approved Leasehold Mortgagee or Approved Major Subleasehold Mortgagee or any Approved Mezzanine Financer, Lessor and Lessee shall enter into a modification or amendment of this Amended and Restated Ground Lease to incorporate such commercially reasonable modifications, additions or deletions to this Amended and Restated Ground Lease as such party may reasonably request so as to render this Amended and Restated Ground Lease and any applicable Major Sublease "financeable" based on criteria for "financeability" typically imposed in comparable transactions, provided that such modification or amendment does not: (i) affect the business and financial terms of this Amended and Restated Ground Lease; (ii) constitute a material deviation from the Watson Island RFP and the Island Gardens Proposal; or (iii) significantly impair the protections afforded to Lessor pursuant to. this Amended and Restated Ground Lease and the Subordination, Non -Disturbance and Attornment Agreements described below, or (iv) impose any add itional material burdens on Lessor. Section 6.4 Notification of Lessor. Notwithstanding any actual or constructive notice that Lessor may have of an Approved Leasehold Mortgage or an Approved Major Subleasehold Mortgage, no such Approved Leasehold Mortgagee, Approved Major Subleasehold Mortgagee or other Approved Lender shall have the rights or benefits described in this Article, nor shall the provisions of this Article be binding upon Lessor with respect to any such mortgage or any assignment thereof, unless or until such Approved Leasehold Mortgagee, Approved Major Subleasehold Mortgagee or other Approved Lender shall deliver to Lessor a copy of such applicable Approved Leasehold Mortgage or Approved Major Ground Lease -Final Page 49 Subleasehold Mortgage and/or any other applicable security documents encumbering the collateral thereunder, together with an executed Subordination, Non -Disturbance and Attornment Agreement, substantially in form and substance as that attached hereto as Exhibit L for Approved Leasehold Mortgages and Exhibit Mfor Approved Major Subleasehold Mortgages; provided, however, that the City Manager shall not unreasonably withhold his or her consent to any commercially reasonable modifications to such forms as may be reasonably requested by the applicable Leasehold Mortgagee or Major Subleasehold Mortgagee so as to render this Amended and Restated Ground Lease and any applicable Major Sublease "financeable" based on criteria for "financeability" typically imposed in comparable transactions, provided, that such modifications do not: (i) affect the business and financial terms of this Amended and Restated Ground Lease; (ii) constitute a material deviation from the Watson Island RFP and the Island Gardens Proposal; or (iii) significantly impair the protections afforded to Lessor pursuant to this Amended and Restated Ground Lease and such Subordination, Non -Disturbance and Attornment Agreements described above, or (iv) impose any additional material burdens on Lessor. Nothing contained in any such mortgage or contained herein, whether express or implied, shall have the effect of subordinating any interest or estate of Lessor in and to the Property, to the lien of such mortgage. Section 6.5 Foreclosure. (a) Leasehold Estate. Subject to and in accordance with the provisions of the applicable Subordination, Non -Disturbance and Attormnent Agreement, any Approved Foreclosure Transferee may become the legal owner of the Leasehold Estate through a Foreclosure Transfer. Thereafter, such Approved Foreclosure Transferee may freely assign or transfer the Leasehold Estate without Lessor's consent to any Approved Subsequent Foreclosure Purchaser; provided however, that subsequent assignment or transfer thereof by such Approved Subsequent Foreclosure Purchaser to any other Person must comply with the provisions of Article VIII hereof. (b) Major Subleasehold Estate. Subject to and in accordance with the provisions of the applicable Subordination, Non -Disturbance and Attormnent Agreement, any Approved Ground Lease -Final Page 50 Foreclosure Transferee may become the legal owner of the applicable Major Subleasehold Estate through a Foreclosure Transfer. Thereafter, such Approved Foreclosure Transferee may freely assign or transfer such Major Subleasehold Estate without Lessor's consent to any Approved Subsequent Foreclosure Purchaser; provided, however, that any subsequent assignment or transfer thereof by such Approved Subsequent Foreclosure Purchaser to any other Person must comply with the provisions of Article VIII hereof. Section 6.6 New Lease. (a) Leasehold Estate. (i) Obtaining New Lease. If this Amended and Restated Ground Lease shall (x) terminate for any reason other than an Event of Lessee's Default on account of Lessee's failure, beyond the applicable cure period, to pay Pre -Paid Construction Rent/Base Rent, Construction Rent, Option Payments, Base Rent, Percentage Rent, Impositions, any other Rents, or the cost of insurance required hereunder, as to which Event of Lessee's Default, the Approved Mortgagee was provided notice and an opportunity to cure in accordance with this Agreement and any applicable Subordination Non -Disturbance and Attomment Agreement and failed to so cure within the time provided for therein, or (y) be rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditor's rights, any Approved Leasehold Mortgagee or Approved Foreclosure Transferee shall have the right, exercisable by written notice to Lessor within thirty (30) days after the effective date of such termination, to enter into a new lease of the Property with Lessor (the "New Lease"), provided that such Approved Leasehold Mortgagee or Approved Foreclosure Transferee shall have remedied all defaults on the part of Lessee involving the payment of money to Lessor, and shall continue to pay all Rent that would come due under this Amended and Restated Ground Lease but for such termination. The term of the New Lease shall begin on the date of the termination of this Amended and Restated Ground Ground Lease -Final Page 51 Lease and shall continue for the remainder of the term of the Lease Term, including any Extension Terms. Such New Lease shall otherwise contain the same terms and conditions as those set forth herein, except for requirements which are no longer applicable or have already been performed; provided, however, that: (i) such New Lease shall require the lessee thereunder promptly to commence, and expeditiously to continue, to remedy all other defaults on the part of the Lessee hereunder to the extent reasonably susceptible of being remedied; and (ii) such New Lease shall permit such Approved Leasehold Mortgagee or Approved Foreclosure Transferee to assign the New Lease to an Approved Subsequent Foreclosure Purchaser without Lessee's consent; provided however, that any subsequent assignment or transfer thereof by such Approved Subsequent Foreclosure Purchaser to any other Person must comply with the provisions of Article VIII hereof. The Person obtaining such New Lease shall be subrogated to the rights of Lessor against Lessee as to any monetary defaults of Lessee which are cured by such Person as a condition to obtaining such New Lease, and any other defaults which are remedied by such Person as provided by clause (i) above (but not as to any other matters). It is the intention of the parties hereto that such. New Lease shall have the same priority relative to other rights or interests to or in the Property as this Amended and Restated Ground Lease. The provisions of this Section shall survive the termination of this Amended and Restated Ground Lease and shall continue in full force and effect thereafter to the same extent as if this Section were a separate and independent contract among Lessor, Lessee and the Approved Leasehold Mortgagee. From the date on which any Approved Leasehold Mortgagee or any Approved Foreclosure Transferee shall serve upon Lessor the aforesaid notice of the exercise of its rights to a New Lease, such Approved Leasehold Mortgagee or Approved Foreclosure Transferee may Ground Lease -Final Page 52 use and enjoy the Property without hindrance by Lessor but subject to compliance with the terms of this Amended and Restated Ground Lease as aforesaid. (ii) Execution of Other Documents. Simultaneously with the making of such New Lease, the party obtaining such New Lease, Lessor, all Major Subtenants, all Approved Major Subleasehold Mortgagees, the holders of any and all Approved Time Share Licenses (through their duly appointed agent) and their respective lenders, and any Space Tenants (to the extent such Space Tenants are entitled to enter into Subordination, Non -Disturbance and Attornment Agreements pursuant to Section 33.5(d), and have done so) and their respective lenders shall execute, acknowledge and deliver such new instruments, including new mortgages and other security documents, new Major Subleases, new Approved Time Share Licenses, new Space Leases, and new Subordination, Non -Disturbance and Attomment Agreements, as the case may be, and shall make such payments and adjustments among themselves, as shall be necessary and proper for the purpose of restoring to each of such parties as nearly as reasonably possible, the respective interests and status with respect to the Property which was possessed by the respective parties prior . to the termination of this Amended and Restated Ground Lease (including, but not limited to, any rights and obligations under any applicable Subordination, Non -Disturbance and Attornment Agreements entered into pursuant to the provisions of this Amended and Restated Ground Lease. (iii) No Termination by Lessee of any Major Sublease or Space Lease. Between the date of termination of this Amended and Restated Ground Lease and the date of execution and delivery of the New Lease, if the Approved Leasehold Mortgagee or Approved Foreclosure Transferee shall have requested such New Lease as provided for in this Section 6.6, Lessee shall not cancel or terminate any Major Sublease or Space Lease or accept any Ground Lease -Final Page 53 cancellation, termination or surrender thereof (unless such termination shall be effective as a matter of law on the termination of this Amended and Restated Ground Lease) without the prior written consent of such Approved Leasehold Mortgagee or Approved Foreclosure Transferee. (iv) No Condition to Cure Uncurable Defaults. Nothing contained in this Amended and Restated Ground Lease shall require any Approved Leasehold Mortgagee or Approved Foreclosure Transferee as a condition to its exercise of its right to enter into a New Lease to cure any default of Lessee or any Major Subtenant not reasonably susceptible of being cured by such Approved Leasehold Mortgagee or Approved Foreclosure Transferee, in order to comply with the provisions of Section 6.6. Section 6.7 Subordination, Non -Disturbance and Attornment Agreement. The Subordination, Non -Disturbance and Attornment described in Exhibit L shall include provisions addressing other matters concerning any New Lease, among other things: (a) the disclaimer of any representation or warranty by Lessor as to title to, the condition of, or other matters with respect to the Property and/or the Leasehold Improvements, to the extent provided for herein; (b) the responsibility of the applicable Approved. Leasehold Mortgagee to remove Lessee from possession with Lessor's cooperation; (c) procedures for obtaining a New Lease where more than one Approved Leasehold Mortgagee requests same. Section 6.8 Major Subleasehold Estates. Lessee agrees (and Lessor acknowledges) that each Major Sublease shall contain provisions therein comparable to those set forth in Section 6.6 for the benefit of each Approved Major Subleasehold Mortgagee. Section 6.9 Liability of Approved Mortgagee. (a) Leasehold Estate. No Approved Leasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee shall become liable for the performance or observance of any covenants or conditions to be performed or observed by Lessee, unless and Ground Lease -Final Page 54 until such Approved Leasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee acquires possession of the Leasehold Estate, becomes the owner of the Lessee's interest hereunder, or enters into a New Lease with Lessor pursuant to Section 6.6 above. Thereafter, such Approved Leasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee shall be liable for the performance and observance of those covenants and conditions only for so long as such Approved Leasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee remains in possession, owns such interest or is lessee under such New Lease (and thereafter to the extent of any proceeds from the transfer or conveyance of such interest, but only as to any such covenants and conditions accruing to the date of such transfer or conveyance). (b) Major Subleasehold Estate. No Approved Major Subleasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee shall become liable for the performance or observance of any covenants or conditions to be performed or observed by the applicable Major Subtenant, unless and until such Approved Major Subleasehold Mortgagee (or any assignee, designee or nominee .thereof) or Approved Foreclosure Transferee acquires possession of the applicable Major Subleasehold Estate, becomes the owner of the Major Subtenant's interest under the applicable Major Sublease, or enters into a new sublease pursuant to provisions in the applicable Major Sublease described in Section 6.7 above. Thereafter, such Approved Major Subleasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee shall be liable for the performance and observance of those covenants and conditions only for so long as such Approved Major Subleasehold Mortgagee (or any assignee, designee or nominee thereof) or Approved Foreclosure Transferee owns such interest or is sublessee under such new sublease (and Ground Lease -Final Page 55 thereafter to the extent of any proceeds from the transfer or conveyance of such interest, but only as to any such covenants and conditions accruing to the date of such transfer or conveyance). Section 6.10 Assignment of Development Plans and Project Approvals. (a) Grant of Right to Use. Lessee hereby grants Lessor the right to use the Development Plans and the ability to grant to other professionals the right to use the Development Plans (subject to the rights of the architect(s) and engineer(s) who prepared the Development Plans and to the rights of any Approved Mortgagees therein) and all Project Approvals. Lessor agrees not to enforce such use right until after the occurrence and during the continuance of an Event of Lessee's Default. Furthermore, such use right shall be subject, subordinate and inferior to any rights with respect to the Development Plans and the Project Approvals which are granted to any Approved Leasehold Mortgagee or Approved Major Subleasehold Mortgagee as security for any applicable loan. If required by any Approved Mortgagee, Lessor shall join in any pledge of such rights as security for any Approved Leasehold Mortgage or Approved Major Subleasehold Mortgage solely to subordinate Lessor's interest in the same to the interest of such Approved Leasehold Mortgage or Approved Major Subleasehold Mortgage. (b) Ownership Upon Termination of Lease. In the event of termination of this Amended and Restated Ground Lease on account of an Event of Lessee's Default, Lessor shall be entitled to the full, complete and unconditional use and ownership of the Development Plans and the ability to grant to other professionals the right to use the Development Plans (subject to the rights of the architect(s) and engineer(s) who prepared the Development Plans), and full, complete and unconditional ownership of the Project Approvals, without payment of any consideration therefor by Lessor to Lessee, provided that these rights shall be subject, Ground Lease -Final Page 56 subordinate and inferior to the rights therein of any Approved Leasehold Mortgage or Approved Major Subleasehold Mortgage (or any applicable Approved Foreclosure Transferee), to the extent that a New Lease is entered into pursuant to Section 6.6 or a new Major Sublease is entered into pursuant to the comparable provisions of any Major Sublease. (c) Comparable Assignment in Major Subleases. Lessee covenants that each Major Sublease shall include an assignment (which assignment shall be comparable to that set forth in subparagraph (b) above) of such Major Subtenant's rights in and to any portion of the Development Plans and the Project Approvals, as the same pertain to the Major Sublease, such that the rights granted by Lessee herein shall include Lessee's rights to use any such Development Plans and Project Approvals which were prepared in connection with such Major Subleasehold Estate. (d) Survival. The provisions of this Section 6.9 shall survive any termination of this Amended and Restated Ground Lease. Section 6.11 .Mezzanine Financing. (a) . . Secured By. Approved Mortgage. Any. Approved Mezzanine Financing may be secured in whole or in part by an Approved Mortgage. In such case, the applicable Approved Mezzanine Financer shall be deemed to be an Approved Mortgagee and entitled to all the rights and benefits hereunder of an Approved Mortgagee. (b) Secured by a Pledge. Any Approved Mezzanine Financing made by an Approved Mezzanine Financer may be secured in whole or in part by a pledge or hypothecation of, or any other security interest in, any membership interests, shares or other ownership and/or voting interests in or rights of Lessee or any applicable Major Subtenant. Any Approved Mezzanine Financing made by an Approved Mezzanine Financer, and any such pledge, hypothecation or Ground Lease -Final Page 57 other granting of any such security interest, may be made freely and without Lessor's consent; provided that if such Approved Mezzanine Financing is secured by an Approved Mortgage, it shall be in compliance with the applicable provisions of this Article VI. Furthermore, subject to subparagraph (c) below, any Approved Mezzanine Financer or Approved Lender (or any assignee who meets the criteria for an Approved Mezzanine Financer or Approved Lender, and any nominee or designee of an Approved Mezzanine Financer or Approved Lender) may, at any time, without Lessor's consent: (i) realize upon any such pledge, hypothecation or security interest in accordance with the terms of any applicable security agreements or instruments (or accept an assignment, conveyance or transfer in lieu thereof) and become the owner and holder of the applicable membership interests, shares or other ownership and/or voting interests in or rights of Lessee or any applicable Major Subtenant (collectively, a "Realization Upon Mezzanine Collateral"); and (ii) thereafter sell, convey, assign or transfer same to any other Person(s), provided that: (A) such Person(s) or Investors (as defined in Section 8.1) therein satisfy the requirements of Section 8.14 and Section 8.15; and (B) such sale, conveyance, assignment or transfer does not violate the teens and conditions of Section 8.2. (c) Transfer of Control Upon Realization of Collateral. In the case of any Realization Upon Mezzanine Collateral which results in a Lessee Transfer of Control or a Major Subtenant Transfer of Control, as applicable (as such terms are defined in Section 8.1): (i) such event shall deemed a Foreclosure Transfer (even if the applicable Approved Mezzanine Financing is not secured by an Approved Mortgage, or if the Approved Mezzanine Financer holds an Approved Mortgage but elects not to exercise its rights and remedies thereunder), and any Person which obtains Voting and Operational Control of Lessee or the applicable Major Subtenant, as applicable, shall be deemed an Approved Foreclosure Transferee (provided that such Person Ground Lease -Final Page 58 satisfies the requirements of clauses (i), (ii), (iii), and (iv) in the definition of an Approved Foreclosure Transferee), and such Person shall thereupon be entitled to all of the rights and benefits afforded hereunder to an Approved Foreclosure Transferee, including, without limitation, the right to transfer its interest in Lessee or the applicable Major Subtenant to an Approved Subsequent Foreclosure Purchaser; provided however, that any subsequent assignment or transfer by such Approved Subsequent Foreclosure Purchaser to any other Person must comply with the provisions of Article VIII hereof. (d) Absolute Grant of Equity As a Condition to Approved Mezzanine Financing. In the event any Approved Mezzanine Financer requires, as a condition to extending any Approved Mezzanine Financing, that Lessee or any applicable Major Subtenant, as applicable, grant to such Approved Mezzanine Financer an absolute ownership or equity interest, direct or indirect, in Lessee or any applicable Major Subtenant (i.e., where such grant does not serve as collateral or security for any Approved Mezzanine Financing), such grant may be made, provided that such grant of ownership does not violate the terms and conditions of Article VIII (it being understood, however, that. such Approved Mezzanine Financer shall be deemed to be a Non -Disclosed Investor, as defined in Section 8.1). Section 6.12 Purchase Money Financing. Notwithstanding anything to the contrary contained herein: (i) Lessee shall have the right to take back a purchase money mortgage in connection with any Leasehold Estate Transfer (as defined in Article VIII) and to exercise all of its rights and remedies thereunder, but subject to the superior rights of any Approved Mortgagee; and (ii) any Major Subtenant shall have the right to take back a purchase money mortgage in connection with any Major Subleasehold Estate Transfer (as defined in Article VIII) and to exercise all of its rights and remedies thereunder, but subject to the superior rights of any Ground Lease -Final Page 59 Approved Mortgagee. The indebtedness secured by any such purchase money mortgage encumbering the Leasehold Estate and/or Leasehold hnprovements and the indebtedness secured by any such purchase money mortgage encumbering any Major Subleasehold Estate shall be included in any calculation of the Maximum Project Debt to Value Ratio. The indebtedness secured by any such purchase money mortgage encumbering any Major Subleasehold Estate shall be included in any calculation of the Maximum Project Component Debt to Value Ratio with respect to such Major Subleasehold Estate. No such purchase money mortgage may be assigned by the holder thereof to another Person unless such other Person qualifies as an Approved Lender under the criteria set forth in the definition thereof in Section 6.1. ARTICLE VII USE OF SUBJECT PROPERTY Section 7.1 Certain Conditions Of Leasing. Lessee shall be subject to and bound by the covenants and agreements set forth in this Article VII. Such covenants and agreements shall run with the Leasehold Estate and burden any interests subordinate thereto. Section 7.2 Major Subleases and Space Leases. (a) Comparable Covenants in Major Subleases and Direct Space Leases. Lessee shall require that each Major Sublease and Direct Space Lease include covenants on the part of the applicable Major Subtenant and Direct Space Tenant which are comparable to those covenants set forth in Section 7.3(a) and Section 7.4 through Section 7.12. Lessee shall use reasonable, good faith efforts to enforce such covenants. Nothing contained herein shall be deemed to prevent Lessee from imposing more stringent requirements on any such Major Subtenant and/or Direct Space Tenant. Ground Lease -Final Page 60 (b) Comparable Covenants in Other Space Leases. Each Major Sublease shall provide for each Major Subtenant to: (i) include in each of its Space Leases covenants on the part of the applicable Space Tenant which are comparable to those covenants set forth in Section 7.3(a) and Section 7.4 through Section 7.12; and (ii) use reasonable, good faith efforts to enforce such covenants. Nothing contained herein shall be deemed to prevent any Major Subtenant from imposing more stringent requirements on any of its Space Tenants, or to prevent Lessee from requiring any Major Subtenant to impose such more stringent requirements. (c) Compliance. So long as Lessee complies with the provisions of subparagraphs (a) and (b) above, Lessee shall not be deemed to have breached any of the covenants set forth in this Section 7.3(a) and Section 7.4 through Section 7.12 on account of any breach thereof by any Space Tenant. Section 7.3 Permitted Uses; Long -Term Changes. (a) Permitted Uses. The Property shall be used solely for the Permitted Uses and no other use whatsoever (subject, however, to the provisions of Section 7.12 below), unless the City Manager,- in his or her sole discretion, approves in writing in advance any additional or other uses and such uses are lawful and have received all necessary approvals from applicable Governmental Authorities. (b) Changes As to Hotels Where There is Another Hotel on Watson Island. Notwithstanding the foregoing, in the event that Lessor, at any time during the Lease Term, enters into a lease agreement or other agreement for the construction and/or operation of another hotel on Watson Island, or Lessor (in either its proprietary or municipal capacity) otherwise authorizes, permits or causes the construction and/or operation of any such hotel on Watson Island, Lessee may make a request in writing to the City Manager to change any of the Permitted Ground Lease -Final Page 61 Uses with respect to either or both of the Hotels. Provided that any such change in the Permitted Uses: (A) receives all necessary approvals from applicable Governmental Authorities (including the City in its municipal capacity); and (B) complies with Applicable Law (including, but not limited to, passage of a public referendum, if then required by Applicable Law), the City Manager shall approve or disapprove such change in writing in advance in accordance with the City Manager Approval Procedures; subject, however, to any appropriate adjustment in Base Rent and/or Percentage Rent on account of any such change in the Permitted Uses as the Parties shall mutually agree upon (with each Party acting reasonably and in good faith). For purposes of this provision, the reasonable discretion of the City Manager shall include such policy considerations as are deemed appropriate by the Mayor and/or the City Commission at such time. Section 7.4 No Discrimination. Lessee shall not discriminate in violation of any Applicable Laws upon the basis of race, color, religion, sex, disability, marital status, or national origin in the sale, lease or rental, or in the use or occupancy, of the Property or the Leasehold Improvements. Section 7.5 Use of the Property. Lessee shall not use or occupy the Property at any time or do anything on the Property, or permit anything to be done in, brought into or kept on the Property, which: (i) violates any insurance policies required to be maintained hereunder; (ii) causes or is likely to cause injury to the Property; or (iii) constitutes a common law or statutory nuisance, public or private. Section 7.6 Leasehold Improvements to be Open to Public. As a general matter, the Project is intended to be "open to the public" as much as practical. Accordingly, during the Lease Term, the Project shall be open to the general public without discrimination, subject to Ground Lease -Final Page 62 reasonable operational rules, regulations and restrictions typically imposed by operators of mixed uses projects similar to the Project; provided, however, that: (i) the businesses operating on the Property may charge fees for goods, commodities or services (including, without limitation, Marina slips and guest rooms at the Hotels, whether or not subject to an Approved Time Share License program) as they may establish from time to time, so long as such services are made available to the general public on a nondiscriminatory basis upon the payment of such fees; (ii) Lessee may operate or allow the operation of membership clubs (unless they are specifically listed herein as Prohibited Uses) which may charge membership fees, so long as such clubs are made available to the general public on a nondiscriminatory basis upon the payment of such membership fees; and (iii) nothing contained herein shall be deemed to require public access to any vessels at the Marina except as specifically required by clauses (i) and (ii) above, or to any areas not typically made available to the public (e.g., service areas, storage areas, "back of the house" areas, etc.). Section 7.7 Safety. Lessee shall take commercially reasonable actions to ensure that the Property is a safe environment for the general public. Lessor, as owner of the Property, shall have no responsibility for, or liability whatsoever to Lessee, the Major Subtenants, the Space Tenants, Direct Space Tenants, Approved Leasehold Mortgagees, Approved Subleasehold Mortgagees, Approved Mezzanine Financer, Approved Foreclosure Purchaser, Approved Subsequent Foreclosure Purchaser, the Bayraktar Family, Investors, Disclosed Investor, Non - Disclosed Investors, Time Share Licensee, and any other Person(s) having any interest in the Leasehold Estate and in any Major Subleasehold Estate in connection with provision of security services to the Property. Ground Lease -Final Page 63 Section 7.8 Continuous Operation. Subject to any interruptions or closures on account of any Force Majeure Events, emergencies or other exigent circumstances or on account of any repairs or alterations required or permitted hereunder, and depending on which Major Project Components have received temporary certificates of occupancy or certificates of occupancy, as applicable, Lessee shall at all times during the Lease Tenn: (i) operate the Property in such manner as will, in Lessee's good faith reasonable business judgment, be reasonably likely to maximize the Gross Revenues produced by the Project; and (ii) keep the Project open for business on a continual basis during the usual days and hours for such business as are customary for the applicable type of use (it being understood, however, that certain businesses and activities are seasonal in nature and therefore may be closed or operate for fewer days or hours during certain periods of the year). The foregoing provisions shall not be deemed to require Lessee to ensure that all of the available facilities at the Property are open or leased to third parties at all times, inasmuch as: (A) there will need to be occasional adjustments of usage of facilities; and (B) there will be some portion of space that will be remain vacant from time to time given then - existing market conditions and turnover of Space Tenants. Furthermore, Lessor acknowledges and agrees that it is likely that most (if not all) of the businesses operating on the Property will be operated by Persons other than Lessee. Section 7.9 Compliance with Laws. (a) Compliance. Lessee shall throughout the Lease Term, at Lessee's sole expense, promptly comply in all material respects with all Applicable Laws now in effect or that may hereafter be adopted by any Governmental Authority (including, without limitation, the Minority and Women Business Affairs and Procurement Program Ordinance of the City of Miami). Specifically, but without limitation, Lessee shall construct and maintain the Leasehold Ground Lease -Final Page 64 Improvements to accommodate the disabled and comply in all material respects with the applicable requirements of the Americans with Disabilities Act of 1990, as amended, as well as other Applicable Laws pertaining to handicapped access, including, without limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities. (b) Notice. Lessee agrees to give Lessor prompt notice of the receipt by Lessee of any written complaints related to any material violation of any Applicable Law and of the commencement of any proceedings or investigations which relate to compliance with any Applicable Law. (c) Right to Contest Compliance. Lessee shall have the right in good faith to contest by appropriate legal proceeding and without cost or expense to Lessor, the validity of any Applicable Law. If compliance with any Applicable Law may legally be held in abeyance (i) without the incidence of any lien, charge or liability of any kind against the title to the Property, the Leasehold Improvements or the Leasehold Estate (unless Lessee transfers such lien to bond or delivers an appropriate indemnity to Lessor), and (ii) without subjecting Lessee or Lessor to any liability of whatsoever nature for failure so to comply, Lessee may postpone compliance until the final determination of any proceedings, provided that all proceedings shall be prosecuted with all due diligence and dispatch. Section 7.10 Compliance with Insurance Requirements. Lessee shall observe and comply in all material respects with the requirements of all policies of public liability, fire and other insurance in force with respect to the Leasehold hmprovements. Section 7.11 Prohibited Uses. Notwithstanding anything contained herein to the contrary, Lessee hereby agrees that the Property shall not be used for any of the uses set forth on Ground Lease -Final Page 65 Exhibit N attached hereto (collectively, the "Prohibited Uses") without the City Manager's express prior written consent, which may be withheld in his or her sole discretion. Section 7.12 Casino Gambling. In the event that casino gambling or other forms of gambling or games of chance, including but not limited to Gambling Boats either on or off site, which are presently illegal in the City of Miami shall in the future become legal for similar properties, and Lessee or any Major Subtenant or Affiliate desires to offer the same on any portion of the Project either on or off -site: (i) Lessee.Major Subtenant, or such Affiliate (or the applicable casino or other operator) shall be entitled to make application for a license therefor in the same manner as similarly situated parties in conjunction with properties that are not leased by the City; (ii) any such application by Lessee, Major Subtenant, or such Affiliate (or the applicable casino operator or other operator) for any such license or approval required by the City (in its municipal capacity) shall be considered by the City on the same basis as the City shall consider comparable proposals for properties in which the City is not a ground lessor; (iii) in the City's role as ground lessor of the Project, the City shall not object to Hotel A and Hotel B, at Lessee's option, being treated as a single hotel (e.g., for requirements as to the minimum number of hotel rooms or keys or units); provided, however, that this clause (iii) shall not prevent the City from refraining from according such treatment to the two Hotels in the City's role (in its municipal capacity) in licensing, approving or overseeing gaming activity; and (iv) in its role as Lessor hereunder, the City may condition any approval of such gaming activities on receiving, over and above the Base Rent and Percentage Rent payable under this Amended and Restated Ground Lease or any such sublease as may be entered into by the Lessee, the Casino Rent (as hereinafter defined). Ground Lease -Final Page 66 (a) Casino Rent. For purposes hereof, the term "Casino Rent" means the fair market rent attributable to the operation of casino gaming, including but not limited to Gambling Boats, or other games of chance on the Property, taking into consideration the rent payable on account of comparable gaming activities at those properties within the United States which are most comparable to the Project, but with any appropriate adjustments for regional differences, as determined in accordance with the procedure set forth in subparagraph (b) below. Casino Rent shall not be treated as or be in lieu of a tax or levy by a municipal body on gaming activity. (b) Procedure for Determining Casino Rent. The procedure for determining the Casino Rent shall be as follows: (i) Selection of Lessor's Expert and Lessee's Expert. Lessor shall select an expert who shall be paid by Lessor ("Lessor's Expert"), and Lessee shall select an expert who shall be paid by Lessee ("Lessee's Expert"). Each expert shall be reasonably experienced or have consultants who are reasonably experienced with appraisal considerations involving casino operations. (ii) Selection of Third Expert. A. third expert (the "Third Expert") shall be jointly selected by Lessor's Expert and Lessee's Expert. The cost of the Third Expert shall be evenly split between Lessee and Lessor. If Lessor's Expert and Lessee's Expert fail to agree on the Third Expert within thirty (30) days after their appointment, the Third Expert shall be appointed by the President of the American Institute of Real Estate Appraisers ("AIREA") on the application of either Lessee's Expert or Lessor's Expert. Such application shall be made by Lessor's Expert or Lessee's Expert, as applicable, on fifteen (15) days' prior written notice to the other. The Third Expert appointed by the President of the AIREA may or may not be a member of the AIREA, in the discretion of such President, but in any event shall, in the judgment of such Ground Lease -Final Page 67 President, have appropriate experience for such appointment and shall not have undue connections or influence with either Lessor or Lessee. (iii) Procedure if Either Party Fails to Select Expert. If either Lessor or Lessee shall fail to appoint an expert within forty-five (45) days after demand from the other to make the appointment, then the expert appointed by the party making the demand shall appoint the second expert, and the two experts so appointed shall appoint the Third Expert. If the first two experts so appointed shall fail to agree on such third expert within thirty (30) days after their appointment, the Third Expert shall be appointed by the President of AIRWA in the same manner provided in clause (ii) above. (iv) Proposals. Within thirty (30) days after appointment of all three (3) experts, Lessee's Expert and Lessor's Expert shall each prepare and submit a proposal for Casino Rent, together with written evidence supporting such proposal, to the Third Expert. (v) Selection of One Proposal. The Third Expert shall have fifteen (15) days to discuss the respective proposals with each submitting expert and an additional thirty (30) days thereafter to select between the two (2) proposals;. it being understood that the Third Expert may only select one (1) expert's proposal or the other and may not select portions of both or attempt to combine proposals. The proposal for Casino Rent selected by the Third Expert shall be binding and conclusive on Lessor and Lessee. (vi) Extension of Time Frames. Notwithstanding anything contained herein to the contrary, either Lessor or Lessee shall be entitled to extend any of the tiinefraines set forth in subparagraphs (ii) through (v) above for up to an additional thirty (30) day period if deemed necessary or desirable by either Party. Section 7.13 Signage. Ground Lease -Final Page 68 (a) Lessee's Installation of Signage on Property. Lessee, at its sole cost and expense, shall be permitted to install signage within the Property (including, but not limited to, any signage required by any franchisors or licensors with respect to the Hotels), subject to: (i) the prior written approval of the City Manager pursuant to the City Manager Approval Procedures as to design, location, size and materials of any exterior signage; and (ii) Lessee's obtaining all applicable permits from the applicable Governmental Authorities as may be required in connection therewith. (b) Lessee's Installation of Signage Outside Property. Any request to install signage outside of the Property, including, without limitation, any request to the State of Florida Department of Transportation ("FDOT") for signage in State rights -of -way, must be approved in advance in writing by the City Manager pursuant to the City Manager Approval Procedures. Such signage shall, to the extent permissible by FDOT, be consistent as to design, location, size and materials with other signage approved by Lessor for Watson Island. (c) Participation in Cost of Watson Island Pathfinder Signage System. Lessee shall participate in and pay, no later than thirty (30). days .after. receipt of a written invoice(s) from Lessor therefor, Lessee's proportionate share of the reasonable cost of an island -wide pathfinder signage system to provide unifonn and efficient direction to all destinations on Watson Island. (d) MUSP. The exact form of all signage shall be subject to and in compliance with the requirements of the Major Use Special Permit for the Project. Section 7.14 Cure of Defaults Under Approved Leasehold Mortgages and Approved Major Subleasehold Mortgages. (a) Approved Leasehold Mortgages. Upon receiving written notice from any Approved Leasehold Mortgagee of any material default under any its Approved Leasehold Ground Lease -Final Page 69 Mortgage(s), Lessee shall use diligent efforts to cure such default in the manner and to the extent required by such Approved Leasehold Mortgage. (b) Approved Major Subleasehold Mortgages. Including any applicable additional terms and conditions of Composite Attachment 3 attached to and incorporated by this Amended and Restated Ground Lease regarding certain provisions if the Property is developed on a component by component basis, Lessee shall require each Major Subtenant to require each of such Major Subtenant's Approved Major Subleasehold Mortgagees to send a copy to Lessee of any written notice of a material default under the applicable Approved Major Subleasehold Mortgage. Upon Lessee's receipt of any such written notice, Lessee shall use diligent efforts to cause such default to be cured in the manner and to the extent required by such Approved Major Subleasehold Mortgage; provided, however, that Lessee shall not be required to cure any such default which cannot reasonably be cured by Lessee or cannot be cured without having possession of the applicable Major Project Component. (c) No Third Party Beneficiaries. The Parties specifically acknowledge and agree that no Approved Mortgagees, Major Subtenants or other Persons shall be third -party beneficiaries of the provisions of this Section 7.14. Section 7.15 Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Article VII shall be binding upon the Parties and their successors in interest and assigns, as covenants running with the land and shall be for the benefit and in favor of, and enforceable by, either Lessor and/or Lessee; provided however, that such covenants shall be binding on Lessor and Lessee, and their respective successors in interests and assigns, only for such period as each shall have (i) fee title to the Property, as to the City, and (ii) the Leasehold Estate, as to Lessee. Ground Lease -Final Page 70 ARTICLE VIII RESTRICTIONS ON TRANSFERS AND APPROVAL OF INVESTORS Section 8.1 Definition of Terms. For purposes of this Article VIII, the following terms shall have the meanings attributed to them in this Section 8.1: (a) As to Leasehold Estate. (i) "Leasehold Estate Transfer" means any direct or indirect, voluntary or involuntary, sale, transfer, or assignment of any right, title or interest in and to this Amended and Restated Ground Lease, the Leasehold Improvements and/or the Leasehold Estate. (ii) "Lessee Interest Assignment" means: (A) any direct or indirect, voluntary or involuntary, sale, assignment or transfer of any legal or beneficial interest in, or any grant of a security interest with respect to, Lessee; (B) any direct or indirect, voluntary or involuntary, sale, assignment or transfer of all or substantially all of the assets of Lessee; or (C) any merger or consolidation with or of, or recapitalization or other similar transaction with respect to, Lessee or any Person having any legal or beneficial interest in Lessee. (iii) "Lessee Transfer. of Control" means any Lessee Interest Assignment which results in a change in Voting and Operational Control of Lessee. (b) As to Major Subleasehold Estates: (i) "Major Subleasehold Estate Transfer" means any direct or indirect, voluntary or involuntary, sale, transfer, or assignment of any right, title or interest in and to any Major Sublease or any Major Subleasehold Estate. (ii) "Major Subtenant Interest Assignment" means: (A) any direct or indirect, voluntary or involuntary, sale, assignment or transfer of any legal or beneficial interest in, or any grant of a security interest with respect to, any Major Subtenant; (B) any direct or indirect, Ground Lease -Final Page 71 voluntary or involuntary, sale, assignment or transfer of all or substantially all of the assets of such Major Subtenant; or (C) any merger or consolidation with or of, or recapitalization or other similar transaction with respect to, such Major Subtenant or any Person having any legal or beneficial interest in such Major Subtenant. (iii) "Major Subtenant Transfer of Control" means any Major Subtenant Interest Assignment which results in a change in Voting and Operational Control of the applicable Major Subtenant. (c) Other Terms. (i) "Bayraktar Permitted Transfer Date" means for each Major Project Component, three (3) years after the Completion Date with respect to such Major Project Component. (d) "Major Sublease Unrestricted Transfer Date" means the date on which: (i) the Project shall have achieved a trailing Debt Service Coverage Ratio of 1.3 with respect to all applicable Approved Leasehold Mortgages; and (ii) the applicable Major Project Component shall have achieved a trailing Debt Service Coverage Ratio of 1.3 with respect to all applicable Approved Major Subleasehold Mortgages encumbering the Major Subleasehold Estate with respect to such Major Project Component. (e) "Allocated Rent" means: (i) the total Base Rent payable by Lessee to Lessor hereunder during any applicable calendar year, multiplied by a fraction, the numerator of which is the total acreage of the Property subleased pursuant to any applicable Major Sublease, and the denominator of which is the total acreage of the Property; and (ii) the total Percentage Rent payable by Lessee to Lessor hereunder during any calendar year which is attributable to the Major Project Component operated pursuant to such Major Sublease and (iii) the total of any Ground Lease -Final Page 72 other Rent(s) payable by Lessee to Lessor hereunder during any applicable calendar year, which is attributable to the Major Project Component operated pursuant to such related Major Sublease. The foregoing definition of Allocated Rent shall not bind the City Manager in the approval of any Major Sublease hereunder. (f) "Lessee's Net Worth" means the net worth of Lessee, taking into account the Major Sublease Rent Present Value and such other assets as Lessee may then have. (g) "Major Sublease Rent Present Value" means the present value (based on a commercially reasonable interest factor agreed upon by the Parties) of the estimated aggregate rental stream (including Base Rent Percentage Rent and all other Rents) required to be paid to Lessee under all of the Major Subleases during the then remaining balance of the respective terms thereof. (h) "Ground Lease Rent Present Value" means the present value (based on a commercially reasonably interest factor agreed upon by the Parties) of the total estimated Prepaid Construction Rent/Base Rent (and credit related thereto), Construction Rent, Option Payments, Base Rent, Percentage Rent and all other Rents payable from Lessee to Lessor during the then remaining balance of the Lease Term. (i) "Sufficient Lessee Economic Interest" means that either of the following requirements is met: (A) the aggregate rental stream (including Base Rent, Percentage Rent and all other Rents) required to be paid to Lessee under each Major Sublease during each calendar year of the tern thereof exceeds, by Twenty Percent (20%) or more, the Allocated Rent with respect to such Major Sublease which is payable by Lessee to Lessor hereunder during such calendar year; or (B) Lessee's Net Worth exceeds, by Twenty Percent (20%) or more, the Ground Lease Rent Present Value. Ground Lease -Final Page 73 (j) "Existing Investment Fund" means any existing, widely recognized investment vehicle (such as a widely recognized mutual fund, real estate investment trust, pension fund, insurance company or other investment fund) which has or obtains any direct or indirect legal or beneficial interest in the Project, which investment vehicle: (i) also invests in investments other than the Project and/or other projects which are owned and/or operated by the Bayraktar Family; and (ii) was not formed for the specific purpose of investing in the Project. (k) "Investors" means: (i) all Persons now or hereafter having an equity interest in the Project; (ii) any direct or indirect legal or beneficial owners of interests in all of the equity investors in the Project; and (iii) holders of any note, debenture, mortgage or other security instrument encumbering any Major Project Component(s) and/or any interest in Lessee, other than any Approved Mortgagee. (1) "Non -Disclosed Investors" means those Investors: (i) whose investments in the Project are made through an Existing Investment Fund; or (ii) who are or will become Investors on account of any transaction described in Section 8.8. (m) "Disclosed Investors" means all Investorsother than Non -Disclosed Investors. (n) "Financial Advisor" means any financial advisor for the Project designated by Lessee. Such financial advisor initially shall be (TO BE SUPPLIED PRIOR TO LEASE EXECUTION) . Any replacement thereof shall be subject to the City Manager's prior written approval in accordance with the City Manager Approval Procedures, but the City Manager shall approve any such financial advisor which is: (i) not a Disqualified Person; and (ii) is listed in Exhibit 0 or otherwise has a level of business experience and expertise comparable to that of HSBC (U.S.) Securities Inc. Ground Lease -Final Page 74 (o) "Investor Questionnaire" means a questionnaire prepared by the Financial Advisor as part of the initial screening process for Disclosed Investors, the form of which shall have been mutually agreed upon by the Financial Advisor, the City Manager and Lessee. Section 8.2 Bayraktar Interests. (a) All Transfers by Bayraktar Prohibited PRIOR TO Bayraktar Permitted Transfer Date. Lessee recognizes and agrees that: (i) the experience of Lessee and Mehmet Bayraktar was given special consideration by Lessor in the selection process which resulted in the award of this Amended and Restated Ground Lease; (ii) the qualifications and identity of Lessee and Mehmet Bayraktar are of particular concern to the community and Lessor; and (iii) it is partially because of such qualifications and identity that Lessor is entering into this Amended and Restated Ground Lease. Accordingly, at all times prior to the Bayraktar Permitted Transfer Date: (A) the Bayraktar Family Equity Contribution shall be maintained; (B) Mehmet Bayraktar shall retain Voting and Operational Control of Lessee; (C) Mehmet Bayraktar or Lessee shall retain Voting and Operational Control of each Major Subtenant then in existence; and (D) Lessee shall own more than . Fifty Percent (50%) . of the ownership interests in each Major Subtenant then in existence. Furthermore, at all times prior to the Bayraktar Permitted Transfer Date, there shall be no Leasehold Estate Transfer, Lessee Transfer of Control or Major Subleasehold Estate Transfer. Any waiver of the foregoing requirement shall require the City Manager's prior written consent, which may be granted or withheld in his or her sole and absolute discretion. Lessee agrees to pay Lessor an amount equal to the greater of ten percent (10%) of Net Sale Proceeds, as hereinafter defined, or six percent (6%) of any and all consideration paid or agreed to be paid, directly or indirectly, to Tenant in connection with any Transfer, or for the sale of Lessees' business in connection with any such Transfer, or in connection with the sale of fifteen percent (15%) or Ground Lease -Final Page 75 more of Lessee's stock (the "Transfer Fee"). The Lessee shall pay to the Lessor the Transfer Fee at the time the Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the shares of stock are sold. (b) Transfers by Bayraktar Permitted AFTER Bayraktar Permitted Transfer Date. From and after the Bayraktar Permitted Transfer Date: (i) the Bayraktar Family may divest itself of any and all equity it has in the Project; and (ii) Mehmet Bayraktar may divest himself of Voting and Operational Control of Lessee and/or any Major Subtenant. Any such actions shall require Lessor's prior written consent; provided, however, that: (i) any such action shall be in compliance with the provisions of Section 8.14; (ii) any such action which results in a Leasehold Estate Transfer, a Lessee Transfer of Control, a Major Subleasehold Estate Transfer or a Major Subtenant Transfer of Control shall comply with the applicable provisions of this Article VIII. Lessee agrees to pay Lessor an amount equal to the greater of seven percent (7%) of Net Sale Proceeds, as hereinafter defined, or four and one-half percent (4.5%) of any and all consideration paid or agreed to be paid, directly or indirectly, to Tenant in connection with any Transfer, or for the sale of Lessees' business in connection with any such. Transfer, or in connection with the sale of fifteen percent (15%) or more of Lessee's stock (the "Transfer Fee"). The Lessee shall pay to the Lessor the Transfer Fee at the time the Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the shares of stock are sold. For purposes hereof, "Net Sale Proceeds" shall mean the net proceeds to Lessee, or Owner transferring such interest, remaining after payment of: (i) any Leasehold Mortgage or other debt relating to the Premises as prorated proportionately to the interest being transferred; and (ii) all reasonable costs and expenses of the sale or Transfer, including commissions, fees, and closing costs. Ground Lease -Final Page 76 Section 8.3 Leasehold and Major Subleasehold Estates. (a) Leasehold Estate Transfer or Lessee Transfer of Control AFTER Bayraktar Permitted Transfer Date. From and after the Bayraktar Permitted Transfer Date, any Leasehold Estate Transfer or Lessee Transfer of Control shall be permitted, provided that: (i) Approval. The City Manager shall have given, in accordance with the Transfer Review Procedures (as defined in Section 8.4), his or her prior written approval of: (i) the new Lessee, in the case of a Leasehold Estate Transfer; or (ii) the Person obtaining or having Voting and Operational Control of Lessee, in the case of any Lessee Transfer of Control; (ii) Assumption. In the case of a Leasehold Estate Transfer, the new Lessee shall assume, by written instrument in recordable form and reasonably satisfactory to the City Attorney, all of the obligations of Lessee under this Amended and Restated Ground Lease; (iii) Voting and Operational Control. At least one Person shall have Voting and Operational Control of the new Lessee (in the case of a Leasehold Estate Transfer) or of Lessee (in the case of a Lessee Transfer of Control), and such Person shall have (or shall have retained an operator having) not less than ten (10) years of experience in owning or operating projects which are comparable to the Project; (iv) No Disqualified Person. The new Lessee (in the case of a Leasehold Estate Transfer) or the Person acquiring Voting and Operational Control of Lessee (in the case of a Lessee Transfer of Control) shall not be a Disqualified Person; and (v) Investors. The requirements of Section 8.14 shall be satisfied as to all Investors in the new Lessee (in the case of a Leasehold Estate Transfer) or all new Investors in Lessee (in the case of a Lessee Transfer of Control). Ground Lease -Final Page 77 (b) Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control AFTER Bayraktar Permitted Transfer Date and BEFORE the Major Sublease Unrestricted Transfer Date. During any period from and after the Bayraktar Permitted Transfer Date and before the Major Sublease Unrestricted Transfer Date, any Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control shall be permitted, provided that: (i) Approval. The City Manager shall have given, in accordance with the Transfer Review Procedures, his or her prior written approval of: (i) the new Major Subtenant, in the case of a Major Subleasehold Estate Transfer; or (ii) the Person obtaining or having Voting and Operational Control of the applicable Major Subtenant, in the case of any Major Subtenant Transfer of Control (provided, however, that notwithstanding anything contained to the contrary in the Transfer Review Procedures, the City Manager may grant or withhold his or her approval of a proposed transferee under this Section 8.3(b) in his or her sole and absolute discretion); (ii) Assumption. In the case of a Major Subleasehold Estate Transfer, the new Major Subtenant shall assume, by written instrument in recordable form and reasonably satisfactory to the City Attorney,all of theobligations of the applicable Major Subtenant under the applicable Major Sublease; (iii) Voting and Operational Control. At least one Person shall have Voting and Operational Control of the new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or of the applicable Major Subtenant (in the case of a Major Subtenant Transfer of Control), and shall have (or shall have retained an operator having) not less than ten (10) years of experience in owning or operating large scale projects which are comparable to the applicable Major Project Component; Ground Lease -Final Page 78 (iv) Sufficient Lessee Economic Interest. There exists a Sufficient Lessee Economic Interest with respect to such Major Sublease; (v) No Disqualified Person. The new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or the Person acquiring Voting and Operational Control of the applicable Major Subtenant (in the case of a Major Subtenant Transfer of Control) shall not be a Disqualified Person; and (vi) Investors. The requirements of Section 8.14 shall be satisfied as to all Investors in the new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or all new Investors in the applicable Major Subtenant (in the case of a Major Subtenant Transfer of Control). (c) Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control AFTER Bayraktar Permitted Transfer and also AFTER Major Sublease Unrestricted Transfer Date. From and after the Major Sublease Unrestricted Transfer Date, any Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control shall be pennitted, provided that: (i) Approval. The. City. Manager . shall have given, in accordance with the Transfer Review Procedures, his or her prior written approval of: (i) the new Major Subtenant, in the case of a Major Subleasehold Estate Transfer; or (ii) the Person obtaining or having Voting and Operational Control of the applicable Major Subtenant, in the case of any Major Subtenant Transfer of Control; (ii) Assumption. In the case of a Major Subleasehold Estate Transfer, the new Major Subtenant shall assume, by written instrument in recordable form and reasonably satisfactory to the City Attorney, all of the obligations of the applicable Major Subtenant under the applicable Major Sublease; Ground Lease -Final Page 79 (iii) Voting and Operational Control. At least one Person shall have Voting and Operational Control of the new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or of the applicable Major Subtenant (in the case of a Major Subtenant Transfer of Control), and shall have (or shall have retained an operator having) not less than ten (10) years of experience in owning or operating large scale projects which are comparable to the applicable Major Project Component; (iv) Sufficient Lessee Economic Interest. There exists a Sufficient Lessee Economic Interest with respect to such Major Sublease; (v) No Disqualified Person. The new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or the Person acquiring Voting and Operational Control of the applicable Major Subtenant (in the case of a Major Subtenant Transfer of Control) shall not be a Disqualified Person; and (d) Investors. The requirements of Section 8.14 shall be satisfied as to all Investors in the new Major Subtenant (in the case of a Major Subleasehold Estate Transfer) or all new Investors in the. applicable Major. Subtenant. (in the case of a Major Subtenant Transfer of Control). Section 8.4 City Manager Review and Approval Procedures. In the event of a proposed Leasehold Estate Transfer or Lessee Transfer of Control described in Section 8.3(a) or any Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control described in Section 8.3(b) or Section 8.3(c), the following procedures (collectively, the "Transfer Review Procedures") shall apply: (a) Notice to City Manager. Not less than forty-five (45) days prior to any such proposed transaction, Lessee shall give or cause to be given to the City Manager written notice Ground Lease -Final Page 80 of (and request from the City Manager's written approval of) the applicable Person described in Section 8.3(a)(i), Section 8.3 (b)(i) or Section 8.3(c)(i), as applicable (the "Proposed Transferee") of which Lessee or its officers shall have knowledge, together with the following information: (i) the name and address of the Proposed Transferee; (ii) a description of the nature and character of the experience and business operations of the Proposed Transferee; (iii) disclosure of the ownership of such Proposed Transferee (with back up third -party written information, if possible); (iv) a proposed form of any assignment and assumption agreement, if required pursuant to Section 8.3(a)(ii), Section 8.3(b)(ii) or Section 8.3(c)(ii); and (v) banking references and/or financial information with respect to the Proposed Transferee reasonably sufficient to enable the City Manager to determine the financial responsibility of the Proposed Transferee. Such notice and information shall also be accompanied by an administrative fee of One Thousand Dollars ($1,000.00) paid to Lessor in order to reimburse Lessor for all of its internal costs and expenses, including, without limitation, reasonable costs incurred in connection with the review of financial materials, meetings with representatives of the Proposed Transferee, and review and approval of the required assignment documents. (b) Response by City Manager. Within thirty (30) days of the City Manager's receipt of the written notice and information described in subparagraph (a) above, the City Manager shall give Lessee written notice either: (i) that the City Manager has approved the Proposed Transferee; or (ii) the City Manager is refusing to approve the Proposed Transferee, in which case the City Manager shall, as part of such written notice, include a statement (with specificity and reasonable back up information for his or her conclusion and as to which of the five (5) criteria described in clauses (i) through (v) of subparagraph (a) above are not satisfied and why) of the reasons for such refusal to approve the Proposed Transferee. If the City Manager fails to Ground Lease -Final Page 81 timely give such written approval, he or she shall be deemed to have approved the Proposed Transferee. The City Manager's determination shall be made reasonably and in good faith solely on the basis of such five (5) criteria (except as otherwise provided in Section 8.3(b)(i)). Any such approval shall not waive any of Lessor's rights to approve any subsequent Proposed Transferee for which approval is required under this Article VIII. (c) Payment of All Sums Then Due. All Rent, Impositions, insurance, permitting and other charges due and owing as of the date of the transaction and required to be paid by Lessee under this Amended and Restated Ground Lease shall have been paid by Lessee and all other covenants and agreements to be kept and performed by Lessee shall have been complied with as of the date of the transaction (but for purposes of satisfying the foregoing requirement, the Proposed Transferee may rely upon an estoppel certificate from Lessor given pursuant to Section 30.2). (d) Assumption of Obligations. If applicable pursuant to Section 8.3(a)(i), Section 8.3(b)(i) or Section 8.3(c)(i), the Proposed Transferee shall, for itself and its successors and assigns, and especially for the benefit of Lessor, by. written .instrument in recordable form and reasonably satisfactory to the City Attorney, expressly assume all of the obligations of Lessee under this Amended and Restated Ground Lease, or all obligations of the Major Subtenant under any applicable Major Sublease, as applicable. The Proposed Transfer shall deliver to Lessor, or shall cause to be delivered to Lessor, within thirty (30) days after the effective date of the transfer, true and correct copies of all of the instruments effectuating the transfer, including any applicable instrument of assignment and assumption. Section 8.5 Release from Liability. Upon compliance with any applicable provisions of Section 8.3 and/or Section 8.4, the applicable transferor shall, in the case of a Leasehold Ground Lease -Final Page 82 Estate Transfer or a Major Subleasehold Estate Transfer, be released from all liability under this Amended and Restated Ground Lease or the applicable Major Sublease, as applicable, for actions or obligations arising or accruing subsequent to such transfer. Section 8.6 City Manager's Consent Required for Affiliate or Related Party Transfer. Notwithstanding anything to the contrary contained herein, any Lessee Interest Assignment or Major Subtenant Interest Assignment: (i) resulting from the death of any Person, provided that such Person's interest is transferred to any spouse, sibling(s) and/or lineal descendant(s) (collectively, "Permitted Relatives") of the deceased Person or to one or more trusts or legal entities for the benefit of any of the Permitted Relatives; (ii) made by any Person to one or more trusts or legal entities for the benefit of such Person's Permitted Relatives, provided that the transferring Person (prior to his or her death) has control over the management and decision making of such trusts or legal entities; or (iii) made by any Person to Affiliate(s) of such Person, may be completed at any time with the City Manager's consent, provided that: (a) Notice. Lessee or the applicable Major Subtenant shall give the City Manager prior written notice thereof (or in the case of clause (i), prompt written notice thereof); (b) No Release. Any Person liable for the obligations of Lessee under this Amended and Restated Ground Lease or the obligations of any Major Subtenant under any Major Sublease (or in the case of clause (i), such Person's estate) shall not be released from such liability on account of any such Lessee Interest Assignment or Major Subtenant Interest Assignment; (c) No Change in Voting and Operational Control. Such Lessee Interest Assignment or Major Subtenant Interest Assignment shall not result in any change in the Person(s) having Voting and Operational Control of Lessee or the applicable Major Subtenant (except in the case of the death of any natural Person(s) who has Voting and Operational Control), although such Ground Lease -Final Page 83 Voting and Operational Control may be exercised through different or additional intermediary Person(s); (d) No Disqualified Person. Any applicable transferee shall not be a Disqualified Person; and (e) Investors. The provisions of Section 8.14 below shall apply to any new Investors on account of any such Lessee Interest Assigmment or Major Subtenant Interest Assignment. In connection with any such Lessee Interest Assignment or Major Subtenant Interest Assignment, nothing contained herein shall be deemed to prevent Lessee or any Major Subtenant from complying, if it so elects, with the applicable provisions of Section 8.4, in which case the transferor (provided that the City Manager approves the Proposed Transfer pursuant to the Transfer Review Procedures) shall be released from liability as provided for by Section 8.5. Section 8.7 Approved Leasehold Mortgages, Leases and Subleases. The provisions of this Article VIII shall not apply to or prohibit: (i) any Approved Leasehold Mortgages, Foreclosure Transfers (including any such Foreclosure Transfer described in Section 6.11(c) above), transfers to Approved Subsequent Foreclosure Purchasers (including any such transfer described in Section 6.11(c) above) or any other transactions governed by this Article VI; or (ii) any Major Subleases, Space Leases or other leasing or subleasing transactions governed by Article XXXIII (except that Section 8.14 shall be applicable to any Investors in any Major Subtenants). Section 8.8 Going Public. Notwithstanding anything to the contrary contained herein, the City Manager's consent shall be required for, and the provisions of this Article VIII shall apply to: (i) the public offering of securities by any Person which is effected pursuant to a registration statement filed with the Securities & Exchange Commission under the Securities Act Ground Lease -Final Page 84 of 1933 or any successor act (or pursuant to any comparable or similar procedure used outside the United States); provided, however, that if such public offering with respect to Lessee or any Major Subtenant occurs prior to the Bayraktar Permitted Transfer Date, Mehmet Bayraktar must retain Voting and Operational Control of Lessee or such Major Subtenant, as applicable; and (ii) any subsequent transaction in which such securities are publicly traded. Section 8.9 Other Transactions for Which Consent Is Required. Except for the procedures as to Investors set forth in Section 8.14, any Lessee Interest Transfer or Major Subtenant Interest Transfer or other transaction not constituting a Lessee Transfer of Control or a Major Subtenant Transfer of Control (including, but not necessarily limited to, any transfer or conveyance of any portion of the Leasehold Improvements which is subject to any Direct Space Lease) shall require consent by Lessor pursuant to this Article VII1. Section 8.10 Violation. Any Leasehold Estate Transfer, Lessee Transfer of Control, Subleasehold Estate Transfer or Major Subtenant Transfer of Control made in violation of the terms of this Article is strictly prohibited and shall be null and void and no force and effect and shall be deemed an Event of Lessee's Default hereunder. Section 8.11 Acceptance of Rent from Transferee. The acceptance by Lessor of the payment of Rent following any Leasehold Estate Transfer, Lessee Transfer of Control, Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control prohibited by this Article VIII shall not be deemed to be a consent by Lessor to any of the foregoing for which such consent is required, nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder. Section 8.12 Lessor's Participation In Proceeds. Ground Lease -Final Page 85 (a) Leasehold Estate Transfer or Lessee Transfer of Control. Upon the first time that there occurs either a Leasehold Estate Transfer or a Lessee Transfer of Control (whether occurring in a single transaction or in a series of transactions over a five (5) year period), Lessor shall be entitled to receive, within five (5) Business Days thereafter, a sum equal to One Tenth of One Percent (0.1 %) of the total purchase price payable in consideration of such Leasehold Estate Transfer or Lessee Transfer of Control. (b) Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control. With respect to each Major Project Component, upon the first time that there occurs either a Major Subleasehold Estate Transfer with respect to such Major Project Component or a Major Subtenant Transfer of Control (whether occurring in a single transaction or in a series of transactions over a five (5) year period) with respect to the Major Subtenant for such Major Project Component, Lessor shall be entitled to receive, within five (5) Business Days thereafter, a sum equal to One Tenth of One Percent (0.1%) of the total purchase price payable in consideration of such Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control. (c) Excluded Transactions. Notwithstanding the provisions of subparagraphs (a) and (b) above, no such sum described therein shall be due and payable in connection with: (i) any of the transactions or events described in Section 8.7 or (ii) any public offering described in Section 8.8 where the securities being offered constitute debt and the proceeds from the sale of such securities are used to retire indebtedness secured by one or more Approved Leasehold Mortgages. (d) No Double Counting. Notwithstanding the provisions of subparagraph (a) and (b) above: (i) the sum described in subparagraph (b) shall not be payable with respect to any Major Ground Lease -Final Page 86 Project Component if the sum described in paragraph (a) has been previously paid with respect to the entire Project; and (ii) to the extent any sum described in subparagraph (b) has been paid as to any particular Major Project Component, such sum shall be deducted from any amount thereafter payable under subparagraph (a) with respect to the entire Project. Section 8.13 Organizational Documents of Lessee. As of the Possession Date, the documents listed in Exhibit P attached hereto constitute all of the organizational documents of Lessee, including, without limitation, any operating and/or voting agreements among the members thereof (collectively, the "Organizational Documents"), and Lessee hereby represents and warrants to Lessor that Lessee has provided to Lessor true, correct and complete copies of all such Organizational Documents. Lessee shall promptly provide Lessor with written notice of any amendments, modifications, additions or terminations of the Organizational Documents, together with written copies thereof. Prior to the Bayraktar Permitted Transfer Date, the member(s) or other Investor(s) of Lessee shall not enter into any voting agreements, the effect of which would cause Mehmet Bayraktar to relinquish Voting and Operational Control of Lessee. Section 8.14 Investors. (a) Non -Disclosed Investors. Lessee shall be required to disclose and provide to the City the identity of or any documents or other information (including, but not limited to, financial statements or other information) concerning Non -Disclosed Investors. (b) Disclosed Investors. (i) Information to be Provided to City Manager. With respect to each initial Disclosed Investor and each proposed subsequent Disclosed Investor, Lessee shall deliver or cause to be delivered to the City Manager the following information: (A) the name and address of the Investor; and (B) the Social Security Number or U.S. Federal Taxpayer Identification Ground Lease -Final Page 87 Number of the Investor, if one exists (or in the case of foreign investors who do not have a Social Security Number or U.S. Federal Taxpayer Identification Number, any similar identification number (if one exists) provided for in the country of their primary residence or domicile). Disclosed Investors shall not be required to provide any financial statements or information to Lessor. (ii) Investment Questionnaire. Lessee shall cause the Financial Advisor to require each Disclosed Investor to complete the Investment Questionnaire. Based on the responses to the questions in the Investor Questionnaire and such other due diligence the Financial Advisor may perform in the normal course of its fiduciary duties, the Financial Advisor shall determine, in its good faith, commercially reasonable judgment, whether or not such Disclosed Investor is a Disqualified Person. The Financial Advisor shall not propose to Lessee (and Lessee shall not allow) any Disclosed Investor which the Financial Advisor has concluded is a Disqualified Person. The Parties acknowledge and agree that no Disqualified Person shall hold a legal or beneficial interest in the Project. (c) .. .City Manager's Right to Object. Notwithstanding anything to the contrary contained in this Article VIII, the City Manager shall have the right to object to any Disclosed Investor (and therefore require that such Disclosed Investor not have any equity investment in the Project), if such Person is a Disqualified Person. Any such objection shall be made by a written notice given by the City Manager to Lessee within twenty (20) days after Lessee (and, if applicable, the Financial Advisor) provides the information required by Section 8.14(b)(i) above. Such notice shall state the specific basis for the objection. Ground Lease -Final Page 88 Section 8.15 Transfers of the City's Interest. (i) Conveyance of Interest. During the Lease Term, Lessor may convey its fee and reversionary interest in the Property or its interest in this Amended and Restated Ground Lease to another Person or Persons, provided that: (i) Lessor gives Lessee prior written notice thereof; (ii) such other Person or Persons shall assume in writing all of Lessor's obligations hereunder; (iii) if more than one Person acquires any such interest, only one such Person shall be irrevocably designated in writing by all such Persons to take any actions which shall be binding of all such Persons as Lessor hereunder; and (iv) in the event such other Person is not a Governmental Authority, the provisions set forth in Exhibit Q shall no longer be applicable. (ii) Subject to this Amended and Restated Ground Lease. Any conveyance or transfer by Lessor of its fee or reversionary interest shall be made subject to the terms and conditions set forth in this Amended and Restated Ground Lease and the rights of Lessee and any Person claiming by, through or under Lessee; provided, however that, any approvals to be made by the "City Manager" hereunder shall be made by the transferee of Lessor's interest hereunder in the same manner as described in Section 38.7. The Person to which Lessor assigns or conveys such fee or reversionary interest shall, for itself and its successors and assigns and especially for the benefit of Lessee, by written instrument in recordable form, expressly assume all of the obligations of Lessor under this Amended and Restated Ground Lease arising and accruing after the date of the transfer and agree to be subject to all terms and conditions hereof to which Lessor is subject. (iii) Mortgage of Fee Interest. The lien, operation and effect of any mortgage encumbering Lessor's fee simple estate or other interest in the Property or any portion thereof shall, at all times and for purposes, be subject, subordinate and inferior to this Amended and Ground Lease -Final Page 89 Restated Ground Lease (including all of the terms, covenants, conditions and provisions hereof) and the Leasehold Estate and all rights of Lessee hereunder and any Major Subtenant, Space Tenant or other Person claiming by, through or under Lessee, including, without limitation, holders of Approved Time Share Licenses and their respective lenders. ARTICLE IX EASEMENTS AND LICENSES Section 9.1 Utility Easements. (a) In Favor of Lessor. Lessee agrees to grant to Lessor and/or any public utility company, pursuant to separate instruments, non-exclusive perpetual easements for the installation, operation, maintenance, repair, replacement, relocation, and removal of utility lines and facilities (together with access incidental thereto) such as water lines, fire lines, gas mains, electrical power lines, telephone lines, storm and sanitary sewers and other utility lines and facilities (collectively, "Utility Facilities"), and such other easements as Lessor and/or such public utility companies may reasonably require from time to time. All such easements shall be over, under and/or across: (i) those portions of the Property shown on the approved Construction Plans and Specifications; or (ii) such other locations on the Property as may be requested by Lessor or such public utility companies from time to time, so long as such locations are reasonably acceptable to Lessee, considering, among other things, whether such locations cause unreasonable interference with the construction, use and operation of the Project or undue expense to Lessee. The instruments granting such easements shall provide, among other things, that the grantee(s) thereunder shall not exercise their rights thereunder in such a manner as would cause unreasonable interference with the construction, use and operation of the Project or undue expense to Lessee. Any such easement instrument in favor of Lessor shall include an appropriate Ground Lease -Final Page 90 indemnification from Lessor and insurance obligations on the part of Lessor with respect to any Persons entering onto the Property and/or the Leasehold Improvements pursuant to the easement rights granted therein. (b) For the Benefit of Lessee. Subject to the rights of adjacent property owners (other than Lessor) and other lessees of property on Watson Island (and to the condition that the same shall not cause any undue expense or interference to such parties), Lessor agrees to grant unto any applicable provider of Utility Facilities servicing the Property and/or the Leasehold Improvements, and such provider's employees, contractors or agents and their respective successors and assigns, the non-exclusive right and easement to install, operate, maintain, repair, relocate, replace and remove Utility Facilities underground within all portions of Watson Island owned by Lessor, provided that such Utility Facilities are shown on the approved Construction Plans and Specifications, or are located at such other locations as may be requested by Lessee and approved by Lessor from time to time during the Lease Tenn. Section 9.2 Easements in Favor of Lessee. In order to facilitate the construction, use and operation of the Project consistent with the Watson Island RFP and the Island Gardens Proposal, Lessor agrees to consider in good faith granting to Lessee, any Major Subtenant, any Space Tenant and their respective employees, agents, contractors, invitees, licensees, guests, and customers, and their respective successors and assigns, such other easements and access rights as Lessee may reasonably require from time to time, all subject to and in accordance with such terms, covenants and conditions as may be reasonably imposed by Lessor and in accordance with Applicable Laws. Section 9.3 Access Easement in favor of the Public. Lessor shall execute and deliver and cause to be recorded in the Public Records of Miami -Dade County, Florida an instrument, in Ground Lease -Final Page 91 form and substance mutually satisfactory to Lessor and Lessee, pursuant to which Lessor shall grant an easement in favor of the public over, across and upon the waters (the "Adjacent Waters") above the submerged land adjacent to the Marina which is owned by the City (the "Adjacent Submerged Land"), for the purpose of affording to marine vessels using the Marina: (i) ingress and egress to and from the Marina; and (ii) the ability to turn around and otherwise maneuver in connection with entering and exiting and docking at the Marina, all so as to facilitate the proper use and operation of the Marina consistent with the Watson Island RFP and the Island Gardens Proposal. Section 9.4 Duration of Easements. Unless a shorter term is provided, each of the rights and easements granted or reserved in this Article shall be for the Lease Term. Section 9.5 Dredging to Facilitate Safe Passage of Vessels. Lessee shall obtain any permits from applicable Governmental Authorities which are required to complete such dredging of the Adjacent Submerged Land as may be required to facilitate the safe passage of marine vessels arriving at and departing from the Marina over, across and upon the Adjacent Waters. All such dredging shall be completed in accordance with such permits and Applicable Laws. Lessor shall reasonably cooperate with Lessee in conjunction with Lessee's obtaining all such permits, and shall not object to Lessee's completion of such dredging in accordance with such permits and Applicable Laws. Section 9.6 Confirmatory Instruments. Each Party covenants and agrees that from time to time at the request of the other Party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Article, or more precisely showing their location, as such requesting Party shall reasonably deem to be necessary or desirable. Ground Lease -Final Page 92 ARTICLE X PAYMENT OF IMPOSITIONS Section 10.1 Payment of Impositions. Lessee shall pay, or cause to be paid, all Impositions before they become delinquent (i.e., before any penalty, fine or interest is added to the amount due, but without any requirement that the amount due be paid by any date which will take advantage of any discounts available for early payment). If by law any Imposition is payable or may, at the option of the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance of the lnposition), Lessee may pay the same (and any accrued interest on the unpaid balance of the Imposition) in installments, but same shall in all events be paid before they become delinquent. Any Imposition relating to a fiscal period of the taxing authority, a part of which period is included before the Possession Date and a part of which is included after the Possession Date shall be adjusted as between Lessor and Lessee as of the Possession Date, so that Lessee shall pay (before same becomes delinquent) that proportion of the hnposition attributable to that part of the fiscal period included in the Lease Term, and Lessor shall pay the remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part of which is included within the Lease Term and a part of which is included in a period of time after the Lease Term, shall be adjusted as between Lessor and Lessee as of the expiration or sooner termination of this Amended and Restated Ground Lease, so that Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and Lessor shall pay the remainder, if applicable. Section 10.2 Taxes on Lessor. Any sales, excise, transaction, use or privilege tax now or hereafter imposed by any Governmental Authority upon Lessor, the Property or the Leasehold Improvements on account of, attributed to, or measured by Rent or other charges payable by Ground Lease -Final Page 93 Lessee shall be paid by Lessee to Lessor as additional Rent, even though the taxing statute or ordinance may purport to impose such tax against Lessor. Nothing herein contained shall require Lessee to pay municipal, state or federal income taxes assessed against Lessor, or corporate excess profits or franchise taxes imposed upon Lessor unless the method of taxation prevailing at the commencement of the term hereof shall be altered so that such taxes shall be assessed in lieu of or as a substitute for the whole or any part of the Impositions, in which event, such income, profits or franchise taxes shall be included within the term "Impositions" for purposes hereof, and Lessee shall pay and discharge the same as herein provided. Section 10.3 Lessee's Right to Contest Impositions. Notwithstanding anything to the contrary contained herein, Lessee shall have and retain the right to contest in good faith by legal proceedings, diligently pursued, any Imposition, or any valuation in connection therewith, provided that: (i) to the extent required by Applicable Laws, Lessee shall first make all contested payments under protest; (ii) Lessee shall pursue such action in accordance with Applicable Laws such that neither the Property nor the Leasehold Improvements nor any part thereof or interest therein would be in any danger of being sold, forfeited, lost or interfered with; and (iii) all expenses incurred in connection with such proceedings shall be paid by Lessee. Such legal proceedings may include appropriate proceedings to review tax assessments and appeals from orders in connection therewith and appeals from any judgments, decrees or orders. Section 10.4 Proof of Payment. Lessee shall furnish (or arrange for an outside service to furnish) to Lessor, within thirty (30) days after the date when any Imposition is paid by or on behalf of Lessee, official receipts of the appropriate taxing authority, photocopies thereof or other proof of payment satisfactory to Lessor. ARTICLE XI Ground Lease -Final Page 94 INSURANCE Section 11.1 Insurance on the Leasehold Improvements. Beginning on the Possession Date and at all times during the Lease Term, Lessee shall, at Lessee's sole cost and expense but for the benefit of Lessor and Lessee as their interests may appear, maintain the following insurance: (a) Property Insurance. "All risk" property insurance with extended coverage against loss or damage by earthquake, mudslide, windstorm, flood with an endorsement for amended coverage, vandalism, malicious mischief, sprinkler leakage and special coverage, including flammable materials used for cooking. (i) Amounts. Such coverage shall be in the following amounts: (A) as to windstorm, $100,000,000; (B) as to flood, $12,500,000; and (C) as to all other perils, One Hundred Percent (100%) of the replacement cost of the Leasehold Improvements (exclusive of foundation and excavation costs), Lessee's alterations, improvements, fixtures, equipment, furniture, trade fixtures and floor coverings, including the expense of the removal of debris as a result of damage by an insured peril (collectively, the "Insured Property") on the Property. (ii) Deductibles. The maximum deductibles for such coverage shall be as follows: (A) as to flood and windstorm, Five Percent (5%) of the completed building value; and (B) as to all other perils, One Percent (1%) of the insured value. (iii) Loss Payees and Insureds. Lessor, Lessee and any Approved Leasehold Mortgagee shall be named as loss payees. Lessee shall be the first named insured, and Lessor and any Approved Mortgagee shall be named as additional insureds. (iv) Special Considerations for Casualty and Windstorm Insurance. Notwithstanding the foregoing, the Parties acknowledge and agree that coastal properties are Ground Lease -Final Page 95 often precluded from being insured by private insurers and that any casualty and windstorm insurance may have to be written through the Florida Joint Underwriters Association and/or another govermnental or other insurance pool which may include certain prohibitions such as no replacement cost coverage. (v) Determination of Replacement Cost. Unless expressly waived in writing by the City Manager, the replacement cost of the Insured Property shall be determined every seven (7) years during the Lease Term by an insurance appraiser selected and paid for by Lessee, provided that Lessee shall obtain Lessor's approval (which approval shall not be unreasonably withheld) of the appraiser before commencement of the appraisal. The appraiser selected by Lessee shall submit to Lessor and Lessee a written report of the appraised replacement cost. If Lessor or Lessee is not satisfied with such report, the dissatisfied party shall serve upon the other a notice of dissatisfaction within thirty (30) days after receipt of the report, and the Parties shall in good faith attempt to resolve any disputes concerning the appraised replacement cost. During this period of the dispute, Lessee shall continue to maintain insurance in an amount equal to that maintained before the dispute arose. Promptly upon receipt of the appraiser's report and resolution of any such dispute, Lessee shall procure and deliver to Lessor written confirmation from the insurer(s) evidencing the adjustment in insurance amounts which may be required pursuant to this clause (v). (b) Business Interruption Insurance. Business interruption insurance with limits not less than an amount equal to the sum of: (i) the Base Rent for a twelve (12) month period; plus (ii) an amount equal to the average annual Percentage Rent payable during the three (3) year period immediately preceding the issuance or renewal of such insurance (or, in the case of each of the first (3) three years from and after the date on which Percentage Rent is first payable Ground Lease -Final Page 96 hereunder, the amount of annual Percentage Rent estimated by Lessee in good faith which will be payable during such year). Lessor, Lessee and any Approved Leasehold Mortgagee shall be named as loss payees. Lessee shall be the first named insured. (c) Boiler and Machinery Insurance. Boiler and machinery insurance covering repair and replacement of all boilers and machinery serving or benefiting the Leasehold Improvements. The policies of insurance shall be endorsed so as to provide use and occupancy coverage for the Leasehold Improvements in such amount as may be reasonably acceptable to Lessor. Lessor, Lessee and any Approved Leasehold Mortgagee shall be named as loss payees. Lessee shall be the first named insured, and Lessor and any Approved Leasehold Mortgagee shall be named as additional insureds. Section 11.2 Other Insurance To Be Carried. Lessee shall also, at Lessee's sole cost and expense but for the mutual benefit of Lessee and Lessor (with Lessor being named as an additional insured thereunder and with leasehold mortgage clauses for the benefit of any Approved Mortgagee, which clauses shall be consistent with the terms of this Amended and Restated. Ground Lease), maintain the following.insurance: (a) CGL Insurance. Commercial General Liability insurance on a commercial general liability coverage form with "broad form" coverage, or its equivalent, including contractual liability, products and completed operations, personal injury, liquor legal liability, garage keepers liability (which coverage shall not be required until the Parking Garage is operating), and products and completed operations, personal injury, and premises coverage against sums adjudicated to be payable by the insured on account of bodily injury, death or property damage occurring in or about the Property (it being understood, however, that such coverage does not extend to damage to property in the insured's care, custody and control). Ground Lease -Final Page 97 (i) Amounts. The limits of such coverage shall not be less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate single limit for bodily injury and property damage. No deductible in excess of $50,000 will be carried under this coverage without the City Manager's prior written consent, which shall not be unreasonably withheld. (ii) Umbrella Policy. Lessee shall further maintain an excess liability umbrella policy whose limits shall not be less than a combined single limit of Five Million Dollars ($5,000,000). (iii) Adjustments in Amounts. Such insured amounts as provided in clauses (i) and (ii) above shall be adjusted as of the fourth (4`1') anniversary of the January 1 following the Possession Date, and every three (3) years thereafter, by any increase and/or decrease (which decrease shall not result in an amount less than the amounts initially required as set forth above) in the Consumer Price Index (as defined in Section 5.2) from the Possession Date to the date on which the adjustment is to be made. (b) Builder's Risk. During_ any -periods of: (i) excavation and/or construction; (ii) alteration; (iii) restoration in the event of damage or destruction or condemnation; or (iv) razing or demolitionat, in or on the Property, the Leasehold Improvements or any part of it, an all risk Builder's Risk policy (including extended coverage for fire, lightning, earth movement, flood, collapse, business interruption, hurricane, boiler and machinery) covering the interests of Lessor and Lessee. Such policy shall insure that portion of the Leasehold Improvements which is affected by such activities for not less than One Hundred Percent (100%) replacement cost on a completed value basis (including foundations and pilings), and shall include coverage for the increased cost of construction due to the enforcement of any laws, as well as the contingent Ground Lease -Final Page 98 liability from the operation of buildings, and coverage for the demolition cost of undamaged portions of buildings. (i) E & 0 Coverage. In addition, Lessee shall cause all of the key or primary professionals retained by it in connection with any construction (e.g., architects and engineers) to procure errors and omission coverage reasonably satisfactory to Lessee for Lessee's and Lessor's benefit, in such amounts as are customarily carried by such professionals in Miami -Dade County, Florida. (ii) "Wrap -Up" Policy. Lessor acknowledges and agrees that the coverage required by this subparagraph (b) and any other coverages required hereunder may be obtained through a so-called "wrap-up" policy. (c) Pollution/Environmental Impairment Liability. Pollution/Environmental Impairment Liability Insurance coverage on a claims made basis with limits of One Million Dollars ($1,000,000) per occurrence (with the policy period extending at least six (6) years from and after the expiration or sooner termination of this Amended and Restated Ground Lease), providing coverage for the damage caused by spillage of any fuel, petroleum, products or any other "hazardous substances", "hazardous materials" or "toxic substances" (as defined in any and all Applicable Laws), whether those substances are solid, liquid or gaseous. Such policy of insurance shall also provide coverage for the cost of cleanup of the affected area and for the removal, transportation and safe disposal of any contaminated area. Lessor and Lessee shall be named as loss payees. Lessee shall be the first named insured, and Lessor and any Approved Leasehold Mortgagee shall be named as additional insureds. Ground Lease -Final Page 99 (d) Worker's Compensation. Worker's compensation and occupational disease coverage in the amounts and types required by Chapter 440, F.S., or any successor thereto. Only Lessee shall be named as an insured. (e) Automobile Liability. Automobile liability insurance covering all owned, non - owned and hired vehicles used in conjunction with operations covered by this Amended and Restated Ground Lease. The policy or policies of insurance shall contain such limits as may be reasonably requested by Lessor from time to time but not less than Five Hundred Thousand Dollars ($500,000). Such insured amount shall be increased as of the fourth (4th) anniversary of the January 1 following the Possession Date, and every three (3) years thereafter by any increase in the Consumer Price Index from the Possession Date to the date on which the adjustment is to be made. (f) Other Coverage. In the event that any other type of legislation may be enacted imposing special liability upon Lessor or Lessee by virtue of its use for any special purposes, before Lessee shall so use the Property and/or the Leasehold Improvements or any part of it for such purposes, Lessee shall provide insurance in form and substance, and with insurers and limits reasonably satisfactory to Lessor and meeting commercial standards insuring the interests of Lessor and Lessee and naming Lessor as additional insured. Section 11.3 Policies Obtained by Independent Contractors. Lessee may cause its independent contractors to provide some or all of the insurance coverages required hereunder. To the extent that such independent contractors carry such coverages, Lessee shall not be required to carry such coverages, so long as the coverages obtained by Lessee and such independent contractors together satisfy the requirements of this Article XI. Lessor, Lessee and Ground Lease -Final Page 100 any Approved Mortgagees shall be named as additional insureds as to any such coverages obtained by Lessee's independent contractors. Section 11.4 Policies Obtained by Major Subtenants. Lessee may, at its option, include provisions in any Major Sublease (or Direct Space Lease) requiring the applicable Major Subtenant (or Direct Space Tenant) to carry insurance coverages as to the applicable Major Project Component (or premises covered by such Direct Space Lease) corresponding to those required to be obtained hereunder by Lessee. To the extent that Major Subtenants (or their Space Tenants) carry such coverages, Lessee shall not be required to carry such coverages as to such Major Project Component (or premises covered by such Direct Space Lease), so long as the coverages obtained by all of the Major Subtenants, Space Tenants and Lessee together satisfy the requirements of this Article XI. Lessor, Lessee and any Approved Mortgagees shall be named as additional insureds as to any such coverages obtained by Major Subtenants or Space Tenants. Section 11.5 Delivery of Insurance Policies. All public liability and worker's compensation policies shall be retained by Lessee. Subject to the rights of any Approved Mortgagee, all other policies of insurance required to be furnished pursuant to this Article XI shall be held jointly by Lessor and Lessee. Insurance company certificates evidencing the existence of all of these policies of insurance shall be delivered to Lessor. (a) Required Policy Provisions. All policies of insurance required to be provided and obtained pursuant to this Article XI shall provide that they shall not be amended or canceled on less than thirty (30) days' prior written notice to Lessor and all insureds and beneficiaries of the policies; provided, however, that if thirty (30) days' notice is ever commercially unavailable, then the required number of days' notice shall be reduced to such number as is commercially available. All such policies shall contain waiver of subrogation rights endorsements as required Ground Lease -Final Page 101 below. Lessor shall have no obligation to pay premiums or make contributions to the insuring company or any other Person or satisfy any deductible. (b) Delivery. On or before the Possession Date and then not less than thirty (30) days prior to the expiration date of any policy required to be carried pursuant to this Article XI, Lessee shall deliver to Lessor and any Approved Leasehold Mortgagee the applicable respective policies and insurance company certificates evidencing all policies of insurance and renewals required to be furnished hereunder. Receipt of any documentation of insurance by Lessor or by any of its representatives which indicates less coverage than required shall not constitute a waiver by Lessor of Lessee's obligation to fulfill the insurance requirements herein. Section 11.6 Lessor's Right to Obtain. If Lessee fails to pay insurance premiums when due or to comply with other insurance requirements set forth in this Amended and Restated Ground Lease, Lessor shall have the right, at its option, to order insurance policies and to advance such sums as are required to maintain or procure such insurance, and to the extent of the money so advanced, Lessor shall be entitled to reimbursement by Lessee pursuant to Article XV hereof. Unless there would ensue a lapse of coverage, Lessor shall, before making any such advance, provide Lessee with ten (10) days' prior written notice and the opportunity to obtain the required policies. Section 11.7 Insurer To Be Approved; Premium Receipts. All policies of insurance of the character described in Sections 11.1 and Section 11.2 shall be effected under policies issued by insurers permitted to do business in the State of Florida and rated in Best's Insurance Guide, or any successor thereto (or, if there is none, an organization having a national reputation for rating insurance companies) as having a general policyholder rating of "A" and a financial rating of at least "VII". On written request by Lessor, Lessee shall provide photocopies of receipts Ground Lease -Final Page 102 showing the payment of premiums for all insurance policies required to be maintained by this Amended and Restated Ground. Lease. Section 11.8 Waiver of Subrogation. (a) Mutual Waiver. Each Party waives all rights to recover against the other Party for any damage arising from any cause covered by any insurance required to be carried by the waiving Party, or any insurance actually carried by the waiving Party; provided, however, that such waiver shall apply only to the extent the applicable insurers issue the appropriate waiver of subrogation rights endorsements described in subparagraph (b) below. (b) Endorsements. Each Party shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Property. (c) Major Subtenants. Lessee shall require each Major Subtenants to execute and deliver to Lessor, and Lessor shall execute and deliver to each Major Subtenant, a waiver of claims comparable to the waiver in subparagraph (a) above. In addition, Lessee shall cause each Major Subtenant to obtain, and Lessor shall obtain in favor of each Major Subtenant, waivers of subrogation rights endorsements comparable to those described in subparagraph (b) above. ARTICLE XII RECORDS AND AUDITING Section 12.1 Records of Sales. (a) Maintenance of Records. During the Lease Tenn, Lessee shall maintain and keep, or cause to be maintained and kept, at the Property, a full, complete and accurate record and account of all Gross Revenues (on an accrual basis) arising or accruing by virtue of the operations conducted at or from the Property, for each day of the Lease Term, together with Ground Lease -Final Page 103 audited annual financial statements, federal and state (if applicable) income tax returns, Florida sales tax returns and other returns or evidence reasonably acceptable to Lessor of the payment of all other required Impositions, statements of revenues and fees charged, agreements entered into by Lessee with respect to the Project, bank statements and deposit slips, cash receipt journals, general ledgers and any other appropriate documentation as may be reasonably required by generally accepted accounting practices for the applicable industry(ies). (b) Availability of Records for Inspection. At all times during the Lease Term, upon providing fourteen (14) days' prior written notice to .Lessee, all then existing records and accounts and all other supporting records which are located at the Property pursuant to this Section 12.1 shall be available for inspection and audit by Lessor and its duly authorized agents or representatives during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday each Business Day. All such records and accounts shall be in accordance with generally accepted accounting principles. (c) Accounting Control Equipment. Lessee must provide point of sale machines or such other cash registers or accounting - control - equipment reasonably necessaryfor proper control of cash and payments, whether such transaction is a cash or credit transaction. (d) Required Period for Preserving Records. Lessee shall keep and preserve, or cause to be kept and preserved, the records described in subsection (a) above for not less than sixty (60) months after the payment of the Percentage Rent due under the terms hereof to which such records relate. For the same period of time, Lessee shall also retain copies of all sales and tax returns covering its operations at the Property, and any other governmental tax or other returns which show Lessee's sales therein, and shall, upon demand, deliver photographic copies or computer disks thereof to Lessor at no cost to Lessor. Ground Lease -Final Page 104 (e) Cooperation. Lessee shall cooperate with Lessor's internal auditors (or such other auditors designated by Lessor) in order to facilitate Lessor's examination of records and accounts. Lessee shall allow Lessor or Lessor's auditors to inspect all or any part of the compilation procedures for such records and accounts. Such inspection shall be reasonable but may be made at the sole discretion of Lessor. Section 12.2 Audit. (a) Audit by Lessee. Lessee shall deliver or cause to be delivered within one hundred twenty (120) days after the end of each calendar year to Lessor's Office of Asset Management, currently located at 444 SW 2 Avenue, Suite 325, Miami, FL 33130, audited financial statements for such calendar year, prepared and certified by a nationally recognized auditor employed at Lessee's sole cost and expense (the "Auditor"). Such Auditor shall certify that: (i) it made a complete examination of the books, state sales tax returns, and federal income tax returns of Lessee, all Major Subtenants and all Direct Space Tenants which are Affiliates of Lessee; and (ii) such statement is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Revenues of Lessee, the Major Subtenants and such Direct Space Tenants for the period indicated therein (on an accrual basis). Within twenty (20) days after the delivery of such audited statements, Lessee shall pay to Lessor any unpaid balance of the Rent or underpayment of Percentage Rent, if any, and Lessor shall credit any overpayments, if any, towards next accruing Rent installments. (b) Lessor's Remedies for Failure to Deliver Audit. In the event Lessee fails to prepare or deliver the required audited financial statements to Lessor within the time set forth in subparagraph (a) above, Lessor, upon thirty (30) days' written notice to Lessee, may elect to exercise either or both of the following remedies: (i) to treat any continuing omission as a default Ground Lease -Final Page 105 of this Amended and Restated Ground Lease, subject to applicable notice and cure periods specified in Section 25.1(k); and/or (ii) to cause an audit and/or accounting pursuant to the provisions of this Amended and Restated Ground Lease to be made by any auditor of Lessor's choosing at the sole cost and expense of Lessee. Such audit shall be binding on Lessee. Lessee shall pay the reasonable cost of such audit within thirty (30) days of receipt of an invoice for same. (c) Audit by Lessor. In addition to the audit rights specified in subparagraph (b) above, Lessor shall have the right, upon fifteen (15) days' prior written notice to Lessee, to cause a complete audit by a nationally recognized auditor to be made of the accounting records of Lessee, the Major Subtenants, and any Direct Space Tenants which are Affiliates of Lessee, in connection with the sales on, from or related to the Property for the period covered by any Percentage Rent statement furnished by Lessee to Lessor. Any such audit shall be made at Lessor's sole cost and expense and must be completed within sixty (60) months of Lessee's delivery of such applicable Percentage Rent statement to Lessor. If such audit. shall disclose an underpayment of Rent, Lessee shall. pay Lessor any unpaid balance within thirty (30) days of receipt of notice from Lessor that such balance is due. If such audit shall disclose an overpayment, Lessor shall credit such overpayment towards next accruing Rent installments. (d) Continuing Right to Examine. The acceptance by Lessor of payments of Percentage Rent shall be without prejudice to Lessor's right to conduct an examination of Lessee's books and records of its Gross Revenues and inventories of merchandise on the Property in order to verify the amount of annual Gross Revenues made by Lessee in and from the Property. Neither the receipt by Lessor of any statement or any payment of Percentage Rent for any period, nor the failure of Lessor to make any audit for any such period shall bind Lessor as to Ground Lease -Final Page 106 the correctness of any statement or payment, nor bar Lessor from collecting at any time thereafter the correct Percentage Rent due for such period. Notwithstanding the foregoing, Lessor shall not re-examine an accounting period which has previously been audited, unless it has reasonable cause to do so, and Lessor shall in no event go back further than sixty (60) months from Lessee's delivery of any applicable Percentage Rent statement. (e) Major Subleases and Space Leases. (i) Major Subleases and Non -Direct Space Leases. In each Major Sublease, Lessee shall include comparable provisions which shall require that the applicable Major Subtenant comply with the provisions of this Article XXII or require, as to any portion of the applicable Major Project Component covered by Space Leases, that all of such Major Subtenant's Spaces Tenants comply with same. So long as Lessee is using good faith efforts to enforce such compliance by Major Subtenants, Lessee shall be relieved from any making or keeping any duplicative reports or otherwise complying with any duplicative procedures. (ii) Direct Space Leases. In each Direct Space Lease, Lessee shall include comparable provisions which shallrequire that the applicable. Direct Space Tenant comply with the foregoing reporting and auditing procedures. So long as Lessee is using good faith efforts to enforce such compliance by such Direct Space Tenants, Lessee shall be relieved from any making or keeping any duplicative reports or otherwise complying with any duplicative procedures. (iii) Affiliates. Notwithstanding the foregoing, in the case of Major Subtenants or Direct Space Tenants which are Affiliates of Lessee, only actual compliance by such Major Subtenants or Direct Space Tenants shall relieve Lessee from any making or keeping any duplicative reports or otherwise complying with any duplicative procedures. Ground Lease -Final Page 107 ARTICLE XIII REPRESENTATIONS AND COVENANTS Section 13.1 Limited Representations by Lessor. Lessor makes the following representations, covenants and warranties, which shall survive the execution of this Amended and Restated Ground Lease and the taking of possession of the Property by Lessee: (a) Marketable Title. Lessor is indefeasibly seized of marketable, fee simple title to the Property, and is the sole owner of and has good right, title and authority to convey and transfer the Leasehold Estate to Lessee, free and clear of all liens and encumbrances other than the Permitted Title Exceptions and subject to the terms and conditions of the Partial Modification of Restrictions. From and after the Possession Date, Lessor shall take no action and shall record no documents in the Public Records which would materially impair Lessee's estate, rights or interest in and to the Leasehold Estate or otherwise be binding on Lessee or run with the Leasehold Estate, without the prior written consent of Lessee. (b) No Parties in Possession. No party except Lessee shall, on the Possession Date, be in or have any right to possession of the Property. (c) No Pending Litigation. There is no suit, action, claim, audit, arbitration, or legal, administrative, judicial or other proceeding (including, without limitation, any of the foregoing relating to violations of any Applicable Law), litigation, investigation or proceeding pending, or, to the knowledge or belief of Lessor, threatened, which relates to, affects, or involves the Property, or which would impair or otherwise adversely affect Lessor's ability to perform its obligations under this Amended and Restated Ground Lease, any of which would have a material adverse effect on the Property or the Project, or which is or could become a lien upon the Property. Ground Lease -Final Page 108 (d) Compliance with Laws. The execution and delivery of this Amended and Restated Ground Lease has been duly authorized and is in accordance with and pursuant to all Applicable Laws (including, without limitation, those of Lessor in its municipal capacity) and the Constitution of the State of Florida. Section 13.2 Authority. Each Party represents to the other that: (i) such Party has, and has exercised, the applicable legal requirements necessary to adopt, execute and deliver this Amended and Restated Ground Lease and perform its obligations hereunder; and (ii) this Amended and Restated Ground Lease has been duly executed and delivered by such Party and constitutes a valid and binding obligation of such Party, enforceable in accordance with its terns, conditions and provisions. Section 13.3 Lessee's Representations and Covenants. (a) Funding of Project. To the best of Lessee's knowledge: (i) Lessee has access to sufficient funds to satisfy the Initial Equity Requirement (as defined in Section 6.1); (ii) as of the Possession Date, Lessee will have closed upon an Approved Construction Loan regarding one or more Major Project Components -(as defined in Section 6.1); and (iii) the total of such sums will be sufficient to carry out the development and construction of the relevant Major Project Component and to operate that Major Project Component and comply with the terms and conditions of this Amended and Restated Ground Lease. (b) Due Diligence. Lessee has done such studies and has made such evaluations as it deems appropriate regarding the tourism and local markets in the area surrounding Watson Island and has deemed it desirable to invest in the Project, recognizing the risks inherent therein. (c) No Liability for Municipal Actions. Lessee acknowledges that Lessor shall not be liable under this Agreement for any actions taken by the City, acting in its municipal capacity, Ground Lease -Final Page 109 including, without limitation, any actions which may adversely impact tourism, crime, the local economy, the success of the Project, etc., and that in no event shall any actions taken by the City in its municipal capacity be the basis for any cause of action or defense of any obligation by Lessee hereunder. (d) No Other Business Activities. Lessee covenants that at all times during the Lease Term, Lessee shall not engage in any business activities unrelated to the development, construction, use and operation of the Project as contemplated by this Amended and Restated Ground Lease. Section 13.4 Disclaimer of Lessor's Representations. (a) "As Is" Condition. Lessee acknowledges that it has examined the Property, and hereby accepts the Property in its present "AS -IS, WHERE -IS" condition and without any additional representations or warranties of any kind or nature by Lessor whatsoever, express or implied, as to the Property, the condition thereof, or the accuracy of any information furnished to Lessee with respect thereto. Lessee assumes the sole responsibility for the condition and demolitionof the present improvements and other structures located on the Property in order that Lessee may construct, operate, maintain and manage the Leasehold Improvements upon the Property; and Lessor shall not be required at any time to make any repairs, replacements, changes (structural or otherwise), additions or alterations to the Property, the Leasehold Improvements and/or any other property of any kind demised by this Amended and Restated Ground Lease. (b) No Other Representations. Lessee hereby expressly acknowledges and agrees that except as and to the extent expressly provided to the contrary in Section 13.1 and Section 13.2 or in the Agreement to Enter into Ground Lease between the Parties having an effective Ground Lease -Final Page 110 date of January 1, 2003 or in the Amended and Restated Agreement to Enter Into Ground Lease having an effective date of February 1, 2010: (i) Lessor makes and has made no warranty or representation whatsoever as to the condition or suitability of any portion of the Property for Lessee's purposes; (ii) Lessor makes and has made no warranty, express or implied, with regard to the accuracy of any information furnished to Lessee, and Lessor shall not be bound by any statement of any broker, employee, agent or other representative of Lessor; (iii) Lessee has made a complete and thorough independent examination and inspection of all portions of the Property utilizing such experts and consultants as Lessee deemed appropriate and, on the basis of its inspection, Lessee is thoroughly familiar with all portions of the Property (including, without limitation, whether or not hazardous or toxic materials are or have heretofore been located on or under or generated from any portion of the Property), and all other matters relevant to Lessee; (iv) Lessee has determined that the condition of all portions of the Property is satisfactory to Lessee; and (v) Lessor makes and has made no warranty, express or implied, concerning any portion of the Property, its condition, the use to which it may be put, any environmental matters, or anyother thing or matter directlyor indirectly related thereto or hereto, including, without limitation, NO WARRANTY OF MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR RELATING TO THE ABSENCE OF LATENT OR OTHER DEFECTS. Section 13.5 Survival. The provisions of this Article XIII shall survive the expiration or sooner termination of this Amended and Restated Ground Lease. ARTICLE XIV DEVELOPMENT AND CONSTRUCTION; REPAIRS, MAINTENANCE, ALTERATIONS AND IMPROVEMENTS Ground Lease -Final Page 111 Section 14.1 Construction of Project Components. Lessee shall cause the Project Components, or the applicable Major Project Component, as the case may be, to be constructed on the Property, pursuant to and substantially in accordance with all of the terms and conditions of the Construction Plans and Specifications (which shall be subject to the review and approval of the City Manager in accordance with the City Manager Approval Procedures) and all Applicable Laws, including, without limitation, the Project Approvals (as amended from time to time). All of the Project Components, or the applicable Major Project Component, as the case may be, shall be constructed, maintained and operated in accordance with all Applicable Laws, including, without limitation, Environmental Laws. The Marina Component shall include the construction, maintenance, and operation of the public promenade in accordance with Exhibit H. Additionally, the Master Declaration for the Project Development shall set forth in detail the responsibilities of each Major Project Component for the construction, maintenance, and operations of all other public areas so no public area is without those responsibilities being covered by one or more Major Project Components. The City has approved [TO BE SUPPLIED] as the Construction Manager(s) for the applicable Major Project Component (collectively, the "Construction Manager(s)"). Lessee may replace such Construction Manager(s) but: (i) such replacement shall have qualifications, experience and reputation which_are comparable to or better than the respective individual(s) or entity(ies) being replaced; and (ii) the City Manager shall have provided his or her prior written approval thereto. Any such approval shall: (i) be given or withheld reasonably and in good faith; (ii) be delivered within fourteen (14) days after Lessee makes a written request for approval (with a legend thereon advising City of required turnaround tune) together with information as to qualifications, background, experience and reputation of such proposed replacement; and (iii) be deemed to Ground Lease -Final Page 112 have been given if Lessor does not respond within the stated time. If the City Manager disapproves such replacement pursuant to the foregoing procedures, the City Manager shall provide a written statement setting forth with particularity all reasons for disapproval. The Construction Manager(s) may subcontract with individual contractors, subcontractors and/or vendors as it deems reasonably necessary or beneficial in connection with different components and subcomponents. Section 14.2 Commencement and Completion of Construction. (a) Subject to Unavoidable Delay, construction of the applicable Major Project Components shall commence in accordance with the construction schedule set forth in Composite Attachment 3. (b) Once started, construction on such Major Project Component shall be diligently and continuously pursued by Lessee until completion, subject to Unavoidable Delays. Lessee agrees that construction of each Major Project Component shall be substantially completed in a good and workmanlike manner and in accordance with good construction practices no later than the dates set forth in Composite . Attachment 3, . subject .to Unavoidable Delays (the "Completion Date"). For purposes of this Agreement, each Major Project Component shall be considered substantially completed on the date that all of the following conditions are satisfied: (i) the Major Project Component is sufficiently complete so that the Lessee or the Major Subtenant therefor can legally occupy and utilize such Major Project Component for its intended use; (ii) all applicable governmental agencies having jurisdiction over the Work have issued a final Certificate of Occupancy (with no unreasonable conditions), with respect thereto, including landscaping and common areas; and (iii) completion of the Work has been approved by the Ombudsman or the Consultant (as hereinafter defined), which approval shall be given or Ground Lease -Final Page 113 withheld in good faith and shall not be unreasonably withheld, delayed or conditioned. To the extent that the Retail and/or Parking Components share common foundations or other construction or infrastructure with either Hotel Component, commencement of construction of the Retail and/or Parking Components shall not be deemed commencement of construction of either Hotel Component. However, the utilities for the Hotel Components are to be constructed in connection with the completion of the Rtail/Parking Components as per Composite Attachment 3. Section 14.3 Ombudsman and Consultant. (a) Lessor shall appoint an internal representative who is experienced and qualified to (i) report directly to the City Manager, and (ii) have authority to coordinate, expedite and respond for the City on behalf of the City Manager through the final permitting process (the "Ombudsman"). Among other things, the Ombudsman shall (i) lead and set schedules for the internal City review process with respect to Construction Plans and Specifications, (ii) expedite and help deliver construction inspection approvals (including building and fire department approvals), (iii) monitorand inspect the development- and construction process on Lessor's behalf, and (iv) otherwise represent and assist the City in coordinating the City's roles and responses and approvals. (b) In addition to the Ombudsman, Lessor shall, at Lessee's request, retain on Lessor's behalf outside, qualified construction development and fire and building consultant(s) to coordinate and assist in the development process and advise the Ombudsman and the City Manager in connection therewith (collectively, the "Consultant"). The person(s) selected as the Consultant shall be mutually acceptable to Lessor and Lessee. The fees and costs charged by the Consultant (the amount of which shall be mutually acceptable to the Parties) shall be paid for by Ground Lease -Final Page 114 Lessee, and Lessor shall have no responsibility or liability for same; provided, however, that the arrangements for payment of the fees and costs and the amounts thereof shall be subject to Lessee's prior written approval before the Consultant begins any work. Responsibilities of the Consultant shall include reviewing plans and development issues, permitting and inspection issues during the construction and development process and making recommendations directly to the City Manager and the Ombudsman. Lessee shall provide on -site desk, telephone and storage space to the Consultant. The Consultant shall not serve any role in connection with the City's capacity as a governmental body. (c) Lessee shall cooperate fully with the Ombudsman and the Consultant, and shall promptly forward to same complete copies of draw requests and other reports and information customarily provided to an institutional mortgage lender, and such other information and materials as may be reasonably requested by the Ombudsman, the Consultant or Lessor. Lessee agrees to provide the Ombudsman and the Consultant with access to all portions of the Property, including, without limitation, access to inspect the Project Components, including, without limitation, review of the preparation work andwork in progress. No such inspection by the Ombudsman and the Consultant shall impose upon Lessor responsibility or liability for any failure by Lessee to observe any requirements or safety practices in connection with such construction work, or constitute an acceptance of any work which does not comply with the provisions of this Section. The Ombudsman and the Consultant shall provide copies to Lessee of all reports and records concerning construction inspections. Section 14.4 Landscaping and Roadways. Lessee shall be required to install landscaping on the Property and roadways, if any, as set forth in the Construction Plans and Specifications related to the applicable Major Project Ground Lease -Final Page 115 Component. If the Project is constructed on a component by component basis, then the Master Declaration for all Major Project Components shall set forth which Major Project Components are responsible for the construction, maintenance, and operation of areas for landscaping and roadways and for the traffic control of the roadways. The landscaping and roadways shall be completed by Lessee with respect to those portions of the Property abutting the applicable Major Project Components by no later than the date of issuance of a final Certificate of Occupancy for such Project Components. The roadways, if any, shall be completed by the time such roadways are needed for the particular Major Project Component(s) to Open for Business. (a) Coordination of Horizontal Control. Final horizontal control elevation ("Horizontal Control") shall mean the lowest occupiable elevation of any Project Component, including loading dock. Lessor acknowledges and agrees that Horizontal Control shall be reasonably acceptable to Lessee, based on (i) reasonable and competitively priced insurance availability, (ii) regulatory agencies' approvals, (iii) financing entities' approvals, (iv) feasibility of accommodating direct connections to basement back of house of each individual component, or in the case of the Marina, a direct access to the lower of the proposed two level marina pier, and (v) feasibility of accommodating reasonable and customary east -west directional pedestrian slopes at ground floors and entry and exit roadways, without the need of stairs or handicapped ramps, in order to accommodate sheet drainage flow. Subject to applicable permitting requirements, Lessee shall provide transition features such as drainage culverts, pumps, and/or utility modifications, if required, at north -south transitions to roadways on the perimeter of the Property. Such features may be located within the roadways or on adjacent City owned property. Ground Lease -Final Page 116 Section 14.5 Pre -Construction Maintenance. At all times prior to construction of any Project Components, the Property on which such Project Components are located shall be maintained in a reasonably neat manner (taking into account the work being performed). Section 14.6 Maintenance of Construction Site. Lessee shall maintain its construction site in a safe condition and a reasonably orderly manner and shall, as reasonably necessary, remove all major debris on a regular basis (including debris that has accumulated on adjacent lands, parcels or streets if created by Lessee; it being understood that in no event shall the same be deemed to be permission to store=debris on any such adjacent lands, parcels or streets) and store all equipment in a neat manner when not in use. Section 14.7 Construction Traffic; Coordination. (a) Lessee shall keep driving lanes or extension roads and pedestrian access walkways located on or near the Property relating to the applicable Major Project Component free from storage of equipment, building materials and dirt. Lessee may relocate roads and walkways and barriers located within the Property to other reasonable locations with three (3) days' advancenotice to the Ombudsman and the. Consultant Inspector. (b) If so requested by Lessee, Lessor may, in its discretion and for a fee to be determined by Lessor, provide Lessee with a nonexclusive, temporary license to use other property within Watson Island, if available (i.e., such property is not being leased by any party or otherwise being used by Lessor) for Lessee's construction -related storage or parking. Parking of vehicles for workers within the Project shall be in accordance with Applicable Laws, and if such parking will be on roadways, it must be done in such a manner as will not interfere with the safety and passage of others. The surface of the public streets must be kept reasonably clean of mud and dust brought onto the streets during construction. During the construction of the Project Ground Lease -Final Page 117 Components, Lessee shall take reasonable and customary action to coordinate traffic to and from the Property for the applicable Major Project Component, materials delivery, scheduling and temporary access, storage and utilities. Section 14.8 Avoidance of Nuisance. To the extent practical in connection with a Project of this size and scope, Lessee shall take such precautions as may be reasonably necessary to minimize the impact of noise, dust, truck traffic, nuisances and other consequences of construction activities. Lessor may, at Lessee's sole cost and expense, install a barrier or fence around attractive nuisances if Lessee fails to do so within ten (10) days after Lessor's demand therefor. Such construction fence may be relocated by Lessee from time to time, at Lessee's expense. Initially, such construction fence will (i) extend north from the wall of Children's Museum along the FDOT right-of-way to the Intracoastal, and (ii) be an eight (8) feet high chain link fence, in order to minimize resistance and avoid the necessity of removal during hurricane warnings; provided that such fence shall have a decorative cover which shall shield the construction site from view from the MacArthur Causeway. Such cover must be detached during a hurricane warning. Section 14.9 Other Construction. Lessee expects Lessor, to the extent it has the legal right to do so, to assist in causing other developments and construction on Watson Island to be accommodating when necessary for Lessee's development and construction. Lessee acknowledges, recognizes and agrees, however, that: (a) the development and construction of other projects on Watson Island may occur simultaneously with the development and construction of the Project, and the development and construction of the Project will not materially interfere with other projects on Watson Island; (b) the cooperation and coordination among Lessee, Lessor and the developers of other projects on Watson Island shall be necessary Ground Lease -Final Page 118 with respect to site access, temporary and pennanent utility delivery and other construction - related activities; (c) Lessee shall comply with all schedules and procedures established by Lessee and Lessor with respect to the foregoing; and (d) occasional delays with respect to site access, temporary and permanent utility delivery and other services may occur from time to time during the development and construction of the various projects on Watson Island (although same may constitute Unavoidable Delays subject to and in accordance with the terms and conditions of the Lease). Lessee shall be responsible for compliance with all of the foregoing requirements and for ensuring that all of its contractors, subcontractors, agents, employees and workers comply with the same. Section 14.10 Payment and Performance Bond. If Lessee fails to commence and/or complete construction timely and perform all other construction obligations in accordance with the terms of this Section, Lessor may (in its good faith, reasonable judgment and not thereby waiving any other remedies hereunder), subject to the rights of all Approved Mortgagees, elect to make effective all or any portion of the Payment and Performance Bond (as defined in the Amended and Restated Agreement to Enter into Ground Lease between the Parties having an effective date of February 1, 2010) applicable to that Major Project Component as satisfaction of Lessee's failure to perforn its obligations hereunder. Upon completion of Construction of each Major Project Component substantially in accordance with the Construction Plans and Specifications, and performance by Lessee of all other construction obligations hereunder for that Major Project Component, the Payment and Performance Bond (or such remaining lesser portion thereof) applicable to that Major Project Component shall be returned to Lessee. Use of a Payment and Performance Bond by Lessor shall be in addition to all other remedies of Lessor hereunder, which remedies are cumulative and non-exclusive. Ground Lease -Final Page 119 Section 14.11 Damage to Other Improvements; Interference. Construction and other activities conducted by Lessee shall not result in any damage to any improvements constructed by Lessor or other private developers on Watson Island, and shall not unreasonably interfere with adjacent parties' rights of access to and from their developments. Lessee shall indemnify, defend and hold harmless Lessor, other private developers on Watson Island and all Lessor Indemnified Parties from and against any and all claims, damages, expenses (including reasonable attorney's fees and court costs) and liabilities of any nature whatsoever asserted against, or incurred by the same, in connection with any damage to improvements constructed by Lessor or other private developers on Watson Island on account of such construction and other activities conducted by Lessee. Section 14.12 Underground Utilities. Lessee shall cause, at its sole cost and expense, the utility lines on the south side of Watson Island pertaining to the Property to be installed underground (whether or not such utility lines are located within or outside of the Property boundaries) up to FDOT right-of-way and to the north wall of the Children's Museum (this line continuing west to point of intersection with. the Visitors Center). Inthe event that the Lessor relocates any existing above -ground utility lines on the south side of Watson Island pertaining to the Property underground prior to the execution of the Lease and same are pre -approved in writing by Lessee (including, but not limited to, all necessary drawings, budgets, schedules, etc.), then upon terms to be agreed upon prior to such relocation, Lessee shall reimburse the Lessor for the costs incurred by Lessor in connection with such underground relocation. Lessor shall cooperate with Lessee to the extent Lessee can obtain or deliver the aforesaid facilities at a cost saving to Lessee and with no adverse effect to Lessor. Ground Lease -Final Page 120 Section 14.13 Liability. Lessor shall not be responsible or liable in damages (whether direct, indirect, consequential or otherwise) to any Person arising out of or in connection with any defects in the Construction Plans and Specifications or any revisions thereto approved in accordance with the City Manager Approval Procedures, any loss or any damage to any Person arising out of the approval or disapproval of the Construction Plans and Specifications, any loss or damage arising from non-compliance of the Construction Plans and Specifications with any Applicable Laws, or any defects in construction of the Project Components on the Property by Lessee. The City Manager's approval of the Construction Plans and Specifications shall not be considered to be permission to encroach on any other parcel or to interfere with another property owner's or occupant's right to use and enjoy other parcels not within the Property. Unless caused by Lessor's own gross negligence or willful misconduct, Lessor shall not be responsible for any injury or damage to any property or to any Person happening on, in or about the Property, nor for any injury or damage to the Property or the Project Components, and Lessor shall not in any event be responsible for damages to vehicles and their contents, belonging to Lessee or any other Person or. for damages suffered by merchandise, furniture, improvements or other things of value found on or in the vicinity of the Property. Section 14.14 Entrance Road. Lessee agrees to design, construct and maintain, at Lessee's sole cost and expense, an entrance road for the Project across a portion of Watson Island. The configuration of such entrance road shall be substantially as shown in Exhibit 14.14. Prior to commencing the construction of such entrance road, Lessee shall prepare Construction Plans and Specifications for such entrance road, which Construction Plans and Specifications shall be subject to Lessor's prior written approval in accordance with the terms hereof. Lessor shall grant to Lessee such temporary easement over (or otherwise permit Lessee to have access Ground Lease -Final Page 121 to) such areas of Watson Island as are reasonably required by Lessee to complete the construction of such entrance road. The construction of the Entrance Road shall be completed by the Completion Date of the first Major Project Component. Upon the completion of such construction, Lessor shall, in accordance with Applicable Laws, elect either: (i) to cause such entrance road to be dedicated (by deed of conveyance) to the perpetual use of the public; or (ii) to grant to Lessee, all Major_Subtenants, all Space Tenants, all holders of Approved Time Share Licenses and other occupants and users of the Property and/or the Leasehold Improvements, and all of their guests, invitees, employees, agents, contractors (and other Persons typically granted such rights), as appropriate, together with the successors and assigns of all such Persons, an easement over, across and upon such entrance road for ingress and egress to and from the Property and the Leasehold Improvements, and an easement over, across and upon such entrance road and areas adjacent thereto for the maintenance and repair of such entrance road from time to time. Section 14.15 Joinders. Provided that Lessor does not incur any liability or expense of account thereof, Lessor agrees to give its reasonable cooperation to Lessee with respect to (and if necessary or appropriate, join in and consent to) any applications for Project Approvals or other licenses, authorizations or permits from any Governmental Authorities requested by Lessee from time to time. Section 14.16 Maintenance and Repair. (a) Maintenance. Throughout the Lease Term, Lessee shall, at Lessee's sole cost and expense, maintain or cause to be maintained in a first-class, good, clean, safe and orderly condition and repair the Property and the Leasehold Improvements relating to the applicable Major Project Component(s) as set forth in the Master Declaration. Such maintenance for the Ground Lease -Final Page 122 Marina Component shall include, without limitation, maintenance of the docks, seawalls and submerged areas, subject to Lessee's obtaining such permits, approvals and authorizations from all applicable Governmental Authorities as are necessary to perform such maintenance of such docks, seawalls and submerged areas. (b) Repairs. Throughout the Lease Tenn, Lessee shall, at Lessee's sole cost and expense, promptly make or cause to be made to the Leasehold Improvements, relating to the applicable Major Project Component(s) as set forth in the Master Declaration, all necessary repairs, renewals and replacements, interior and exterior, structural and nonstructural, whether made necessary or caused by fire or other casualty (but subject to the provisions of Article XVI), or by ordinary wear and tear. All repairs, renewals and replacements shall be of good quality sufficient for the proper maintenance and operation of the Leasehold Improvements relating to the applicable Major Project Component(s) as set forth in the Master Declarationand shall be constructed and installed in compliance with all Applicable Laws. (c) Removal of Dangerous Condition. Promptly after receiving written notice from Lessor or any other Person of any dangerous condition from time to time existing on the Property relating to the applicable Major Project Component(s) as set forth in the Master Declaration,Lessee shall, at Lessee's sole cost and expense, do or cause to be done all things necessary to remove such condition, including, but not limited to, taking appropriate measures to prevent or repair any erosion, collapse or other unstable condition on the Property. (d) Accumulation of Debris. Lessee shall not permit the accumulation of waste, dirt, rubbish, debris or refuse matter upon the Property or the Leasehold Improvements relating to the applicable Major Project Component(s) as set forth in the Master Declaration. Ground Lease -Final Page 123 (e) Insurance. Lessee shall not permit anything to be done upon the Property or the Leasehold Improvements relating to the applicable Major Project Component(s) as sct forth in the Master Declaration., which would invalidate or prevent the procurement of all insurance policies required pursuant to the provisions of Article XI. (f) No Lessor Repair or Maintenance Obligations. Nothing contained in the Lease shall impose on Lessor the obligation to make any repairs or expend any monies for the maintenance of the Property, or the renewal, replacement or repair of the Leasehold Improvements; provided, however that if Lessee fails to do any of the foregoing in accordance with the terns of this Amended and Restated Ground Lease, then Lessor, upon reasonable prior written notice to Lessee, may elect, in its sole discretion, to perform or cause the same to be performed on Lessee's behalf, and all of the costs and expenses reasonably incurred by Lessor in connection with the same shall be deemed to be additional Rent due from Lessee to Lessor hereunder. Section 14.17 Alteration and Modification to Leasehold Improvements After Completion of Leasehold Improvements. (a) Definition of Terms. For purposes of this Section 14.17, the following terms shall have the meanings attributed to them below: (i) "Exterior Alterations" means any alteration or addition to any Project Component (from that which was originally constructed pursuant to the Development Plans) which: (i) results in a material change to the original exterior elevation, design or overall appearance of such Project Component (including the basic landscaping scheme thereof); and (ii) is visible from the MacArthur Causeway; provided, however, that such term shall not include Ground Lease -Final Page 124 periodic maintenance activities such as replanting, repainting exteriors and replacing damaged, worn or obsolete fixtures. (ii) "Major Interior Alterations" means any alteration or addition to any Project Component (whether done as a single project or as a series of projects within a twelve (12) month period) whose cost exceeds ten percent (10%) of the Fair Market Value (as defined in Section 6.1) of such Major Project Component immediately prior to the commencement of such alteration or addition. (b) City Manager Approval. Lessee shall not make or permit any Exterior Alterations or Major Interior Alterations to be made unless and until detailed plans and specifications for same have been approved in writing by the City Manager, in accordance with the City Manager Approval Procedures. 14.18 Removal of Liens. (a) With respect to the liens listed on Exhibit 9.2.1 attached hereto as of the Effective Date of this Agreement (collectively, the "Existing Liens"), Flagstone shall either discharge all existing liens and alleged liens, judgments and garnishments as required by Attachment 3, Section IX, Section 9 herein, and Section 2(c) of the Amended and Partial Modification or deliver to the Miami -Dade County Clerk of Courts Registry, to be held in an escrow account as follows: (a) under Section 2(c) under the Amended Partial Modification an amount not less than one hundred twenty five percent (125%) of all judgments not previously discharged on or before January 17, 2012; and (b) under Section IX of Attachment 3, an amount not less than the total remaining outstanding balance of all liens, garnishments and judgments not previously discharged within one hundred and twenty (120) days from September 15, 2011, as set forth in Composite Attachment 3. If Flagstone elects to discharge all existing and alleged liens, Ground Lease -Final Page 125 judgments and garnishments prior to the execution of this Agreement, Flagstone shall provide satisfactory evidence of such discharges to the City prior to this Agreement being executed. The escrow amount shall remain until the first Ground Lease is executed. Such escrow deposit amount shall be incremented as and if necessary to cover any alleged additional liens, claims of liens, judgments, and garnishments. (b) After the Effective Date of the Amended and Restated Agreement to Enter (except as provided in 9.2.1 thereof for Existing Liens) and during the term thereafter of this Amended and Restated Ground Lease, if any Lien shall at any time be filed against the Property, or any part thereof, within forty-five (45) days after notice of filing thereof, Flagstone shall cause the same to be discharged, removed, or transferred to bond in accordance with the requirements of law. If Flagstone fails to cause such Lien to be discharged or transferred to bond within such forty-five (45) day period, then City may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such Lien by deposit or by bonding proceedings, or by any other manner permitted by law (provided, however, that before City pays any amounts on behalf of Flagstone in connection herewith, City shall provide Flagstone five (5) days prior written notice of its intent to so do so hereunder). Any amount so paid by City and all costs and expenses incurred by City in connection with the discharge of such Lien shall be reimbursed to City by Flagstone, together with interest thereon at the highest lawful rate permitted by law from the date of City's making of any such payment or incurring of any such costs and expenses until paid in full. City shall notify Flagstone in writing of the dates and amounts of any such payments and related interest rates thereon, and Flagstone shall reimburse City within seven (7) calendar days following receipt of such notification. (c) As required by City Commission Resolution No. 10-0144 adopted March 25, 2010, Ground Lease -Final Page 126 Flagstone has provided the Hold Harmless and Indemnification Agreement attached hereto and incorporated hereby as Exhibit 14.18. Any default by Flagstone under the Hold Harmless and Indemnification Agreement shall be an Event of Flagstone's Default under the Amended and Restated . Agreement to Enter and an Event of Lessee's Default under the related Ground Lease(s). ARTICLE XV LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS; REIMBURSEMENT OF LESSOR FOR AMOUNTS SO EXPENDED Section 15.1 Performance of Lessee's Covenants to Pay Money. Lessee covenants that if it shall at any time default in the payment of any Impositions pursuant to the provisions of Article X, or shall fail to make any other payment to any third party required to be paid hereunder, and any such failure shall continue for thirty (30) days after written notice by Lessor to Lessee ("Notice of Non -Payment of Imposition"), then Lessor may, but shall not be obligated to, and without further notice to or demand upon Lessee and without waiving or releasing Lessee from any obligations of Lessee set forth in this Amended and Restated Ground Lease, pay any such Imposition or make any other payment which Lessee has improperly failed to pay as set forth in the Notice of Non -Payment of Imposition. No such action shall be taken, however, if Lessee is duly contesting the payment of same as permitted by the provisions hereof, including, but not necessarily limited to, contests pursuant to Section 7.1, Section 10.3 and Section 18.6. Section 15.2 Lessor's Right to Cure Lessee's Default. Notwithstanding anything herein to the contrary, if there shall be any default by Lessee, beyond notice and any applicable cure period, under this Amended and Restated Ground Lease, any Approved Mortgage or any Major Sublease (including, but not limited to, any default involving Lessee's failure to keep the Ground Lease -Final Page 127 Leasehold Improvements in good condition and repair, to make any renewals or replacements or to remove any dangerous condition, all in accordance with any applicable requirements set forth in this Amended and Restated Ground Lease), then upon prior written notice to Lessee, Lessor may, but shall have no obligation to, cure any such default in addition to any and all of Lessor's other remedies hereunder. Section 15.3 Reimbursement of Lessor and Lessee. All sums advanced by Lessor pursuant to the provisions of Sections 15.1 and Section 15.2, and all necessary and incidental costs, expenses and reasonable attorneys' fees in connection with the performance of any acts described therein, together with interest at the Default Rate from the date of the making of such advances to the date reimbursed to Lessor by or behalf of Lessee, shall be deemed additional Rent, and shall be promptly paid by Lessee, in the respective amounts so advanced, to Lessor. Such reimbursement shall be made on demand, or, at the option of Lessor, may be added to any Rent then due or becoming due under this Amended and Restated Ground Lease, and Lessee covenants to pay the sum or sums with interest as provided above. In the event of nonpayment of such reimbursement, Lessor shall have, in addition .to any other right or remedy of Lessor, the same rights and remedies as in the case of default by Lessee in the payment of any installment of Rent (subject to the applicable notice and cure period hereunder for non-payment of Percentage Rent). ARTICLE XVI DAMAGE OR DESTRUCTION Section 16.1 Definitions of Terms. For the purposes of this Article XVI, the following words shall have the meanings attributed to them in this Section: Ground Lease -Final Page 128 (a) "Casualty" means any casualty to the Leasehold Improvements or any portion thereof. (b) "Damage" means any damage to the Leasehold Improvements or any portion thereof on account of a Casualty. (c) "Net Insurance Proceeds" means the actual amount of insurance proceeds paid following a Casualty, less all costs and expenses, including reasonable attorneys' fees incurred by Lessee, any affected Major Subtenant and/or Lessor, with respect to the collection thereof. (d) "Restoration Work" means the repair, restoration or replacement of that portion of the Leasehold Improvements which has sustained Damage. (e) "Insurance Trustee" means an insurance trustee mutually acceptable to Lessor, Lessee, and any Approved Mortgagee having an interest in any Net Insurance Proceeds which are to be used for completing any Restoration Work. (f) "Insurance Escrow Agreement" means any escrow agreement among an Insurance Trustee, Lessor, Lessee and any Approved Mortgagee having an interest in any Net Insurance Proceeds which are to be used for completing any Restoration Work, which escrow agreement provides for such Net Insurance Proceeds and any another funds deposited for the purpose of completing such Restoration Work to be deposited in escrow with such Insurance Trustee and to be disbursed to fund the completion of such Restoration Work, all under such terms, conditions and procedures as are set forth therein. (g) "New Loan" means any new Approved Permanent Loan obtained by Lessee or any affected Major Subtenant from an Approved Lender for the purpose of completing any Restoration Work. Section 16.2 Net Insurance Proceeds; Obligation to Fund Restoration Work. Ground Lease -Final Page 129 (a) Adjustment of Net Insurance Proceeds. Upon the occurrence of any Damage, Lessee shall promptly and diligently pursue the adjustment of any applicable insurance and take reasonable measures to require any affected Major Subtenant to do the same, to the end that all applicable Net Insurance Proceeds shall be made available to complete the applicable Restoration Work. (b) Rights of Approved Mortgagees. If any Approved Leasehold Mortgagee or affected Approved Major Subleasehold Mortgagee shall have entered into a Subordination, Non - Disturbance and Attornment Agreement, or comparable agreement, with Lessor, providing for rights to receive and/or control the disbursement of such Net Insurance Proceeds, such rights shall control over the provisions of this Amended and Restated Ground Lease. In such event, to the extent that any such Approved Leasehold Mortgagee or Approved Major Subleasehold Mortgagee agrees to permit such Net Insurance Proceeds to be used for such Restoration Work, all such sums shall be deposited with an Insurance Trustee pursuant to an Insurance Escrow Agreement. (c) Insurance Trustee. The Insurance Trustee may (but shall not be required to) be an Approved Mortgagee. Each Approved Leasehold Mortgagee may elect to be the Insurance Trustee in the order of the priority of the applicable Approved Leasehold Mortgages. If no such Approved Leasehold Mortgagee elects to be the Insurance Trustee, then each affected Approved Major Subleasehold Mortgagee may elect to be the Insurance Trustee in the order of the priority of the applicable Approved Major Subleasehold Mortgages. (d) New Loan. If any Approved Leasehold Mortgagee or Approved Major Subleasehold Mortgagee does not permit all or any portion of the Net Insurance Proceeds to be applied to the Restoration Work, Lessee or the affected Major Subtenant shall nonetheless be Ground Lease -Final Page 130 required to cause the Restoration Work to be performed and shall deposit funds adequate to fund the Restoration Work with an Insurance Trustee pursuant to an Insurance Escrow Agreement; provided, however, that Lessee or such Major Subtenant may elect to obtain a New Loan for such purposes, in which event Lessee or such Major Subtenant shall use prompt and diligent efforts to obtain such New Loan. (e) Other Shortfalls. To the extent that the Net Insurance Proceeds are inadequate in amount to fund the completion of such Restoration Work for reasons other than those described in subparagraph (d) above, Lessee or any affected Major Subtenant shall be required to fund such shortfall, including, without limitation, a shortfall related to a deductible in the applicable insurance policy. Such shortfall shall be deposited with an Insurance Trustee pursuant to the applicable Insurance Escrow Agreement within sixty (60) days of the date of adjustment of Net Insurance Proceeds, unless the parties thereto agree to any alternative mechanism for funding such shortfall. Section 16.3 Restoration Work. (a) Plans.. Lessee shall diligently proceedtocause plans and specifications for the Restoration Work, together with a proposed construction schedule, to be prepared and submitted to the City Manager. Such plans and specifications shall be designed to restore the Property to substantially the condition prior to such Damage, or as similar as is practicable and reasonable. Unless such plans and specifications are materially different from original Construction Plans and Specifications applicable to the portion of the Leasehold Improvements to be restored, the City Manager shall have no approval rights with respect to such plans and specifications. If such plans and specifications are materially different from such original Construction Plans and Ground Lease -Final Page 131 Specifications, then same shall be subject to the City Manager's approval in accordance with the City Manager Approval Procedures. (b) Completion of Restoration Work. (i) After: (A) such submission and approval, if applicable, of such plans and specifications; (B) the applicable Insurance Escrow Agreement has been entered into and the applicable Net Insurance Proceeds and other funds deposited have been deposited with the applicable Insurance Trustee or otherwise made available for disbursement in accordance with such Insurance Escrow Agreement; and (C) any necessary permits have been obtained from applicable Governmental Authorities (which permits Lessee or any affected Major Subtenant shall use diligent efforts to obtain), Lessee or such affected Major Subtenant shall complete such Restoration Work, all subject to and in accordance with such requirements and conditions as an applicable Approved Leasehold Mortgagees and Approved Major Subleasehold Mortgagees, if any, may impose in accordance with the applicable Approved Leasehold Mortgages and Approved Major Subleasehold Mortgages and the Insurance Escrow Agreement. (ii) Lessee or the affected Major Subtenant shall commence the Restoration Work on such date (the "Restoration Commencement Date") as the Insurance Trustee or any Approved Lender making the New Loan, if applicable, first begins disbursing portions of such Net Insurance Proceeds or loan proceeds to Lessee for such purpose (it being understood that such disbursement may be conditioned upon such requirements as any such Approved Leasehold Mortgage or Approved Major Subleasehold Mortgagee may be entitled to impose). (iii) The Insurance Escrow Agreement shall provide, among other things, that the applicable Insurance Trustee shall, with written notice thereof to all parties thereto, disburse the Net Insurance Proceeds and other available funds as the Restoration Work progresses upon Ground Lease -Final Page 132 certificates of the architect or engineer supervising the Restoration Work that the disbursements then requested, plus all previous disbursements, do not exceed the cost of the Restoration Work already completed and paid for, and that the balance in the escrow fund, plus any amounts to be contributed by Lessee, is sufficient to pay for the reasonably estimated cost of completing the Restoration Work; provided, however, that the foregoing "funds in balance" requirement may be superseded by any similar requirement which any Approved Mortgagee is entitled to impose. (iv) Subject to Unavoidable Delays, Lessee shall, from and after the Restoration Commencement Date, diligently and in good faith prosecute such Restoration Work to completion. (v) Subject to the rights of any Approved Mortgagee, any Net Insurance Proceeds remaining after completion of and payment for such Restoration Work shall be disbursed to and be the sole property of Lessee. Section 16.4 Termination. Notwithstanding the provisions of Section 16.3. if any Damage occurs with ten (10) years of the end of the then applicable Lease Term and the budget for the Restoration .Work is, as to any particular Major Project Component, greater than Three Percent (3%) of the replacement cost for such Major Project Component, Lessee may, by giving written notice thereof to Lessor with ninety (90) of the adjustment of any applicable insurance, terminate this Amended and Restated Ground Lease, effective as of the date of the Casualty; provided, however, that any such termination shall be subject to the prior written consent of any Approved Leasehold Mortgage. Upon any such termination of this Amended and Restated Ground Lease: (i) Lessee shall remain obligated to pay to Lessor all Base Rent, Percentage Rent and other sums accruing under this Amended and Restated Ground Lease to (but not including) the date of the Casualty; (ii) the Parties shall be relieved of all further obligations under this Ground Lease -Final Page 133 Amended and Restated Ground Lease, other than those obligations which expressly survive such termination; and (iii) any applicable Net Insurance Proceeds shall be applied as follows: (A) first, to pay any principal, interest and other sums owed to each and every Approved Leasehold Mortgagee and any affected Approved Major Subleasehold Mortgagee; (B) second, to pay for the cost for debris removal; and (C) third, to pay any accrued and unpaid liabilities of Lessee under this Amended and Restated Ground Lease to the date of termination. The remaining balance of such Net Insurance Proceeds shall be allocated between Lessor and Lessee in accordance with their respective interests in the Project. Section 16.5 No Other Right to Terminate. Except for Lessee's right to terminate this Amended and Restated Ground Lease pursuant to Section 16.4 above, Lessee waives the provisions of any Applicable Law which may grant Lessee the right to terminate this Amended and Restated Ground Lease in the event of a Casualty. Section 16.6 Rights of Approved Leasehold Mortgagee. The provisions of this Article XVI shall be subject to the rights of any Approved Leasehold Mortgagee and to the provisions of any Approved Leasehold Mortgage, and in the event of any conflict between the provisions of this Article and the provisions of any Approved Leasehold Mortgage, the provisions of the Approved Leasehold Mortgage shall control. Section 16.7 Major Subleases. Lessee shall cause each Major Sublease to contain comparable casualty provisions as those set forth in this Article XVI with respect to each Major Project Component; provided, however, that each such Major Sublease may, but shall not be required to, have provisions comparable to Section 6.8 below. Lessor agrees that any such comparable provisions shall be binding upon Lessor. Ground Lease -Final Page 134 Section 16.8 Deferral of Base Rent. No Abatement of Base Rent or Percentage Rent. Lessee's obligations with respect to the payment of Base Rent and/or Percentage Rent shall in no event be abated on account of any Casualty, but Base Rent and Percentage Rent, as to any portion of the Leasehold Improvements which has sustained Damage, shall be deferred upon the terms and conditions set forth in subparagraph (b) below. (a) Deferral of Base Rent and Percentage Rent. If, during any period from and after the occurrence of a Casualty and until the applicable Restoration Work has been completed and the applicable portion of the Leasehold Improvements once again Opens for Business: (i) Lessor does not receive sufficient insurance proceeds under any business interruption insurance policy to cover the Base Rent and/or Percentage Rent payable during such period; and (ii) any failure by Lessor to receive such insurance proceeds is not due to Lessee's failure to maintain same in accordance with Section 11.1(b), Lessee shall be entitled, during the Deferral Period (as hereinafter defined) to defer the payment of Base Rent and Percentage Rent not covered by such business interruption insurance proceeds. In addition, Lessee shall not be required to pay any Base Rent and/or Percentage Rent to the extent Lessor receives business interruption insurance proceeds covering same. The term "Deferral Period" shall mean the period of time commencing when the Casualty occurs and ending on the date when the applicable Restoration Work has been completed and the applicable portion of the Leasehold Improvements once again Opens for Business, or on such earlier date as Lessee shall have received any written notice from any applicable insurance company in the form of a pleading or similar document whereby such insurance company specifically rejects Lessee's claim for such insurance. The amount of Base Rent and Percentage Rent so deferred during the Deferral Period is hereinafter collectively referred to as the "Deferred Amount". Ground Lease -Final Page 135 (b) Resumption of Payments. Once the Deferral Period ends, Lessee shall pay each month, together with the Base Rent and Percentage Rent then due and payable, an amount equal to fifty percent (50%) of a fraction, the numerator of which is the total Deferred Amount and the denominator of which is the number of months of the Deferral Period. Such monthly installments of the Deferred Amount shall continue until the Deferred Amount is paid in full. ARTICLE XVII ARBITRATION Section 17.1 Binding Arbitration. Any controversy, dispute or breach arising out of or related to this Amended and Restated Ground Lease (including all monetary and non -monetary matters) shall be submitted to binding arbitration in accordance with the provisions of this Article XVII; provided, however, that no such controversy, dispute or breach with respect to the payment of Base Rent or Percentage Rent shall be submitted to binding arbitration. The matters to be submitted to binding arbitration in accordance with this Article XVII shall include, without limitation: (i) whether Lessor or Lessee's actions hereunder are "reasonable" where this Amended and Restated Ground Lease requires such actions to be reasonable; and (ii) whether either Party has complied with any provisions hereof requiring that any approval by such Party "shall not be unreasonably withheld or delayed". Section 17.2 Procedures. Any binding arbitration pursuant to this Article XVII shall be governed by the following procedures: (a) Demand. Either Party (the "Demanding Party") may make written demand upon the other Party (the "Non -Demanding Party") to commence arbitration. Such demand shall include a statement of the question to be arbitrated. Ground Lease -Final Page 136 (b) Selection of Proposed Arbitrators. Upon any such demand being made by either Party, the Demanding Party shall, within five (5) Business Days thereafter, make a written request to the President of the Florida Chapter of the American Arbitration Association that he or she independently provide, within thirty (30) days after such request is made, a list (the "List of Proposed Arbitrators") with the names and addresses of eleven (11) proposed arbitrators (the "Proposed Arbitrators"). The Non -Demanding Party shall be copied on any such written request. (c) Qualifications. Every Proposed Arbitrator must be a member of the American Arbitration Association or any successor organization and be neutral and independent of the Parties, and no Proposed Arbitrator shall: (i) be a person who is or has been an employee of either Lessor or Lessee during the five (5) year period immediately preceding his or her appointment; (ii) be affiliated with either Parties' auditors; (iii) be affiliated with any contractor of Lessee; or (iv) have a conflict of interest with either Party or any bias towards or against either Party. (d) Selection of Arbitrator. Within three (3). Business Days after its receipt of the List of Proposed Arbitrators, the Non -Demanding Party shall give written notice to the Demanding Party of three (3) Proposed Arbitrators that the Non -Demanding Party strikes from the List of Proposed Arbitrators. Within three (3) Business Days after its receipt of such written notice, the Demanding Party shall send written notice to the Demanding Party of three (3) additional Proposed Arbitrators that the Demanding Party strikes from the List of Proposed Arbitrators. Commencing with the Non -Demanding Party, each Party shall thereafter have successive one (1) Business Day periods in which to strike one (1) additional Proposed Arbitrator from the List of Proposed Arbitrators, until there is only one (1) Proposed Arbitrator remaining on the List of Ground Lease -Final Page 137 Proposed Arbitrators. The remaining Proposed Arbitrator shall constitute the sole arbitrator hereunder (the "Arbitrator"). Neither Party shall be required to have or provide a reason for striking a particular Proposed Arbitrator. If either Party fails to strike a Proposed Arbitrator within the time specified above, then the other Party may exercise the unused strike or strikes prior to its next strike or strikes. (e) Code of Ethics. The Arbitrator selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. (f) Hearing. Within thirty (30) days following the selection of the Arbitrator, the Arbitrator shall commence a hearing in accordance with the following procedures: (i) All actions, hearings and decisions of the Arbitrator shall be conducted, based upon and made in accordance with the Commercial Arbitration Rules (or in the case of construction related issues, the Construction Industry Rules) of the American Arbitration Association or any successor organization, or any other rules then prevailing in substitution of such rules. (ii) The Parties shall be entitled to such pre -hearing discovery as they may agree upon, or as otherwise determined by the Arbitrator. (iii) Each Party shall make a good faith effort to cooperate with the other in all respects in connection with the exchange of documents relevant to the matter being arbitrated. (iv) To the extent that either Party would be required to make confidential information available to the other Party, an agreement or an order shall be entered in the proceeding protecting the confidentiality of and limiting access to such information before such Party is required to produce such information. Information produced by either Party shall be Ground Lease -Final Page 138 used exclusively in the arbitration or litigation that may arise, and shall not otherwise be disclosed. (v) A court reporter shall make a transcript of the hearing. (vi) The hearing shall be held in the City of Miami at a place designated by the Arbitrator. (vii) The Parties and the Arbitrator shall use their best efforts to conclude the hearing within ten (10) days of its commencement. (viii) Each Party shall have the right to be represented by counsel, to call witnesses and to cross-examine witnesses on the question at issue, and to submit evidence. (ix) The Arbitrator shall have the right to question witnesses at the hearing, but not to call witnesses. (x) Each Party shall be entitled to one (1) continuance for up to a maximum fifteen (15) days as a matter of right. (xi) No additional request for continuance may be made in any manner to the Arbitrator unless there has been consent given in writing by the other Party. (x i) The Arbitrator shall not grant any continuance without a request from a Party in compliance with this subparagraph (f). (xiii) The Arbitrator may render a decision at the close of the hearing or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed on the terms and on the schedule set by the Arbitrator, but in no event later than forty-five (45) days following the commencement of the hearing. Ground Lease -Final Page 139 (xiv) The Arbitrator shall render a determination within thirty (30) days from the conclusion of the hearing, or in the event briefs are submitted, within thirty (30) days after receipt of such briefs. (xv) In determining any matter before him or her, the Arbitrator shall apply the terms and provisions of this Amended and Restated Ground Lease, and shall not have the power to vary, modify or reform any such terms and provisions in any respect. (xvi) The Arbitrator shall not be authorized to make an award of consequential, punitive or exemplary damages. (xvii) Each Party shall bear its own fees and costs and those of the Arbitrator. (xviii) The Arbitrator shall provide a written explanation of the basis for the Arbitrator's decision. (xix) The Arbitrator's decision shall be final and binding on the Parties and may be enforced according to the laws of the State of Florida, and judgment upon the award rendered by the Arbitrator shall be entered in any court having jurisdiction thereof. Section 17.3 No Delay in Completion of Work. There shall be no interruption of Work pending the completion of any arbitration proceeding hereunder, unless the dispute or matter which is subject to arbitration involves the nature of the Work or whether the Work was required by Article 14 hereof (in which case Lessee may suspend the Work until the dispute is resolved, and same shall be deemed an Unavoidable Delay). Section 17.4 Right of Approved Mortgage to Participate. Notwithstanding anything to the contrary contained herein, a copy of each notice given under this Article XVII shall be given to each and every Approved Leasehold Mortgagee, and each and every Approved Major Subleasehold Mortgagee to the extent the matter being arbitrated involves the Major Project Ground Lease -Final Page 140 Component encumbered thereby, and each such Approved Mortgagee shall have the right, upon providing written notice to both Parties at any time prior to the commencement of the Arbitrator's hearing, to participate in the hearing and to have all rights afforded to each Party with respect thereto. In addition, to the extent that any applicable Approved Mortgage provides for consent rights on the part of any such Approved Mortgagee as to the selection of the Arbitrator, Lessee shall not exercise its rights to strike any Proposed Arbitrator from the List of Arbitrators without such' Approved Mortgagee's consent -in accordance with the provisions of such Approved Mortgage. ARTICLE XVIII MECHANICS' LIENS Section 18.1 Definition. For purposes of this Article XVIII, the term "Mechanic's Lien" means any mechanic's, laborer's, vendor's, materialman's, construction or other similar statutory lien, whether pursuant to Chapter 713, F.S., or otherwise. Section 18.2 No Consent by Lessor. Nothing in this Amended and Restated Ground Lease shall be construed as: (i) constituting the consent by Lessor, express or implied, by inference or otherwise, to (or the request by Lessor for) any contractor, subcontractor, laborer or materiahnan for the performance of any labor or the furnishing of any materials for any specific improvement, alteration or repair of or to the Property or the Leasehold Improvements or any part thereof; or (ii) giving Lessee any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials, which, in the case of either clause (i) or clause (ii) above, would give rise to the filing of any Mechanic's Lien against Lessor's fee simple interest in the Property or any part thereof, the assets of Lessor, or Lessor's interest in any Rent. Ground Lease -Final Page 141 Section 18.3 Notice of No Liability of Lessor. Notice is hereby given, and Lessee shall cause all construction agreements, Major Subleases and Space Leases to provide, that to the extent enforceable under Florida law: (i) Lessor shall not be liable for any work performed or to be performed at or on the Property or the Leasehold Improvements or any part thereof for Lessee, any Major Subtenant or any Space Tenant, or for any materials furnished or to be furnished to the Property or the Leasehold Improvements or any part thereof for any of the foregoing; and (ii) no Mechanic's Lien for such work or materials shall attach to or affect Lessor's fee simple interest in the Property or any part thereof or any assets of Lessor or Lessor's interest in any Rent. Section 18.4 Inclusion in Memorandum of Lease. Any short form or memorandum of this Amended and Restated Ground Lease shall include the foregoing prohibition on Mechanic's Liens for the purposes of giving constructive notice under Section 713.10, F.S., and a copy thereof shall be conspicuously posted on the Property. Section 18.5 Discharge of Mechanics' Liens. Lessee shall not cause, suffer or permit any. Mechanics' .Liens to be filed against the fee simple title to the Property, or against the Leasehold Estate or the Leasehold Improvements by reason of any labor, services or materials supplied or claimed to have been supplied to Lessee, any Major Subtenant or any Space Tenant. If any such Mechanics' Lien is filed, Lessee shall cause it to be discharged of record by payment, deposit, bond (including any notice of bond in the case of any work which is covered by a payment and performance bond), order of a court of competent jurisdiction or otherwise, within ninety (90) days after the date Lessee has knowledge of its filing. If Lessee shall fail to do so within such ninety (90) day period, and such failure shall continue for an additional thirty (30) days after written notice thereof by Lessor to Lessee, then in addition to any other right or Ground Lease -Final Page 142 remedy available to Lessor hereunder, Lessor may, but shall not be obligated to, discharge such Mechanics' Lien, either by paying the amount claimed to be due or by procuring the discharge of same by deposit in court or bonding. All such amounts paid by Lessor in connection therewith, including, without limitation, interest, costs and allowances, shall constitute additional Rent due and payable under this Amended and Restated Ground Lease and shall be repaid to Lessor by Lessee immediately upon rendition of an invoice or bill by Lesor. Section 18.6 Right to Contest. Notwithstanding the provisions of Section 18.5, Lessee shall not be required to pay or discharge any Mechanics' Lien so long as Lessee shall: (i) in good faith and with diligence proceed to contest such Mechanics' Lien by appropriate proceedings; (ii) give Lessor written notice of its intention to contest the validity of such Mechanic's Lien; and (iii) upon written request of Lessor, furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to Lessor or other security reasonably satisfactory to Lessor in an amount sufficient to pay One Hundred Ten Percent (110%) of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it (provided, however, that no such bond shall be required if the amount contested is less than $25,000). If, despite Lessee's efforts to contest such Mechanics' Lien, Lessor reasonably believes that a court judgment or order foreclosing such lien is about to be entered or granted and so notifies Lessee in writing, Lessee shall, within ten (10) days of notice to such effect from Lessor (but not later than three (3) Business Days prior to the entry or granting of judgment or order of foreclosure), cause such Mechanics' Lien to be discharged of record. If Lessee fails to do so within such period, Lessor may thereafter discharge such Mechanic's Lien and look to the security furnished by Lessee for reimbursement of Lessor's cost in so doing. Nothing contained herein shall be deemed to Ground Lease -Final Page 143 prevent Lessee from contesting any action or proceeding on account of any Work for which a Mechanics' Lien was filed and thereafter bonded off or transferred to security other than the Property or the Leasehold Improvements pursuant to Applicable Laws. Section 18.7. Releases. To the extent permitted under Florida law, Lessee shall obtain releases or waivers of any contractor, subcontractors and any other Persons furnishing work and materials discharging all liens and claims for all Work and materials furnished and similar releases from the architect or other recipient in the case of payments out of the funds to the architect or other recipient. ARTICLE XIX COVENANT AGAINST WASTE; INSPECTION Section 19.1 Waste. Except as otherwise permitted by this Amended and Restated Ground Lease, Lessee covenants not to allow any waste (as defined by any Applicable Law) with respect to the Property or the Leasehold Improvements or any part thereof. The provisions of this Section 19.1 shall not apply to any demolition or disfigurement required in connection with repairs, renovations, upgrading or new construction, or to the deposit of clean fill at the Property or the removal of fill from the Property for such purposes. Section 19.2 Inspection of Property. (a) Right of Inspection. Lessor, its agents, employees and authorized representatives may enter the Property at any time in response to an emergency, and at reasonable times upon reasonable prior written notice, as Lessor deems necessary to, incident to, or connected with the performance of Lessor's duties and obligations hereunder or in the exercise of its rights and functions, including, without limitation, to inspect the operation, sanitation, safety, maintenance and use of the same, or any portions of the same, and to assure itself that Lessee is in full Ground Lease -Final Page 144 compliance with its obligations under this Amended and Restated Ground Lease (but Lessor shall not thereby assume any responsibility for the performance of any of Lessee's obligations hereunder, nor any liability arising from the improper performance thereof). In furtherance and not in limitation of the foregoing, Lessor and its agents, employees and authorized representatives shall have the right of access to the Property, upon reasonable prior written notice, to conduct from time to time an ADA inspection or audit of the Property or the Leasehold Improvements, and Lessee agrees to cooperate in the conduct of such investigation or audit. (b) Compliance. If any inspection or audit detects a violation of Lessee's obligation to comply and to keep the Property and/or the Leasehold Improvements in compliance with the requirements of the Lease, then Lessee shall bear the cost and take whatever action isreasonably necessary to comply, and bring the Property and/or the Leasehold Improvements into compliance, with this Amended and Restated Ground Lease and any reasonable fee or cost incurred by Lessor for such investigation or audit shall be borne by Lessee and shall be paid by Lessee as additional Rent under this Amended and Restated Ground Lease on demand by Lessor. (c) _ Action . by Lessor. If. Lessee .fails to. keep . the Property or the Leasehold Improvements in compliance with the requirements of this Amended and Restated Ground Lease (including, without limitation, the requirement that the Property and the Leasehold Improvements be in compliance in all material respects=with the ADA) and an Event of Lessee's Default has occurred and is continuing on account thereof, then Lessor, upon reasonable prior written notice to Lessee, may take whatever action is reasonably necessary to bring the Property and/or the Leasehold Improvements into compliance, to the extent required by Applicable Laws. Lessee agrees to provide Lessor access to the Property and the Leasehold Improvements and pay, as additional Rent, all costs reasonably incurred by Lessor in bringing the Property and/or the Ground Lease -Final Page 145 Leasehold Improvements into such compliance. Lessor, however, shall have no affirmative obligation to bring the Property or the Leasehold hmprovements into . compliance and nothing herein shall be construed as creating such an obligation on Lessor. (d) Minimizing Interference with Business Operations. Any inspection or audit described in this Section 19.2 shall be done in such a manner so as to reasonably minimize any interference with any business operations on the Property. Section 19.3 Major Subleases and Space Leases. (a) Comparable Covenants in Major Subleases and Direct Space Leases. Lessee shall require that each Major Sublease and Direct Space Lease include covenants on the part of the applicable Major Subtenant and Direct Space Tenant which are comparable to those covenants set forth in this Article XIX. Lessee shall use reasonable, good faith efforts to enforce such covenants. Nothing contained herein shall be deemed to prevent Lessee from imposing more stringent requirements on any such Major Subtenant and/or Direct Space Tenant. (b) Comparable Covenants in Other Space Leases. Each Major Sublease shall provide for each Major Subtenant to: (i) include in each of its Space Leases covenants on the part of the applicable Space Tenant which are comparable to covenants on the part of the applicable Space Tenant as those covenants set forth in this Article XIX; and (ii) use reasonable, good faith efforts to enforce such covenants. Nothing contained herein shall be deemed to prevent any Major Subtenant from imposing more stringent requirements of any of its Space Tenants, or to prevent Lessee from requiring any Major Subtenant to impose such more stringent requirements. (c) Compliance. So long as Lessee complies with the provisions of subparagraphs (a) and (b) above, Lessee shall not be deemed to have breached any of the covenants set forth in this Article XIX on account of any breach thereof by any Major Subtenant or Space Tenant. Ground Lease -Final Page 146 ARTICLE XX ENVIRONMENTAL LIABILITY Section 20.1 Definition of Tenns. For purposes of this Article XX, the following terms shall have the meanings attributed to them in this Section: (a) "Hazardous Materials" means (i) petroleum and its constituents; (ii) radon gas, asbestos in any form which is or could become friable, urea formaldehyde, foam insulation, transformers or other materials which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (iii) any substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances", "hazardous materials", "hazardous wastes", "pollutants or contaminants", "solid wastes" or words of similar import under any Environmental Law; and (iv) any other chemical, material, gas or substance, the exposure to or release of which is regulated by any Governmental Authority. (b) "Environmental Laws" means all applicable requirements relating to the protection of human health or the Environment, including, without limitation, requirements relating to reporting, licensing, permitting, investigation and remediation of any Release or Threat of Release of Hazardous Materials, into the Environment, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials or pertaining to the protection of the health and safety of employees or the public, as such requirements are contained in all applicable federal, state and local environmental, public health, and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, now or hereafter in effect, including, but not limited to, all applicable requirements of Ground Lease -Final Page 147 the Clean Air Act (42 U.S.C. §401 et seq.); the Clean Water Act; the Resource Conservation, and Recovery Act, as amended by the hazardous and Solid Waste Amendments of 1984 (42 U.S.C. §901 et seq.); the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §061 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §801 et seq.); the Occupational Health and Safety Act; the Toxic Substances Control Act; the Federal Water Pollution Prevention and Removal Act, as amended (33 U.S.C. §251 et seq.); the Florida Pollutant Discharge Prevention and Removal Act (Florida Statutes, Chapter 376); the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; Florida Environmental Reorganization Act of 1975 (Florida Statutes, Chapter 403). (c) "Enviromnent" means soil, surface waters, groundwaters, land, stream sediments, surface or subsurface strata and ambient air. (d) "Costs" means all costs incurred in connection with correcting any violations of any Environmental Laws and/or the Clean Up of Existing Contamination, including the Original Phase I and II Assessments, if applicable. (e) "Existing Contamination" means any Hazardous Materials revealed by the Original Phase I and II Assessments, if applicable. (f) "Original Phase I and II Assessments" means the environmental investigation and testing on the Property undertaken by Lessee, as may be applicable, pursuant to the Access and Indemnification Agreement between the Parties, and the Agreement to Enter into Ground Lease between the Parties having an effective date of January 1, 2003. Ground Lease -Final Page 148 (g) "Release" means any releasing, seeping, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, or dumping into the Environment. (h) "Threat of Release" means a substantial likelihood (as determined by an environmental consultant selected by Lessee and reasonably acceptable to Lessor) of a Release which requires action to prevent or mitigate damage to the Environment which may result from such Release. (i) "Clean Up" means any remediation and/or disposal of Hazardous Materials at or from the Property which is ordered by any federal, state, or local environmental regulatory agency, if necessary, to avoid injury to persons or property in connection with the Existing Contamination, if any. Section 20.2 Environmental Obligations of Lessee. Lessee hereby covenants and agrees that during the Lease Term it shall not: (a) cause or pen -nit any Hazardous Materials to be generated, produced, brought, used, stored, treated, discharged, released, spilled or disposed of upon, in, under or about the Property or Watson Island by Lessee or any of Lessee's Affiliates, or by any Major Subtenants or Space Tenants, or by any subsidiaries, assignees or invitees thereof, or by any of the employees, agents, contractors or subcontractors of any of the foregoing (all the foregoing collectively, "Related Parties"), which activity is, in any case, in violation of the Environmental Laws, or (b) otherwise cause or permit the violation of any Environmental Law in connection with the Property. Upon termination or expiration of the Lease, Lessee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Property by Lessee or its Related Parties, or, at their direction, to be removed from Ground Lease -Final Page 149 the Property and transported for use, storage or disposal in accordance and compliance with all applicable Environmental Laws. Section 20.3 Lessee's Liability for Contamination During Lease Term. Lessee shall undertake} at Lessee's sole cost and expense, any necessary action, including any remediation and/or disposal reasonably required, as determined by Lessee in good faith, as a result of a Release of a Hazardous Material occurring on or from the Property in connection with any activity or acts of Lessee or any of its Related Parties, during the Lease Term. Section 20.4 Indemnity. Lessee shall defend, indemnify, and hold harmless Lessor and its agents, officials, and employees, to the fullest extent permitted by law, from and against all expenses of remediation, disposal or other similar type of clean up or action necessary for compliance with the Environmental Laws, and any and all claims, causes of action, or demands, in law or in equity, including, but not limited to, all lien claims, administrative claims, claims for injunctive relief, claims of property damage, natural resources damages, environmental response and clean up costs, fines, penalties, and expenses (including, without limitation, counsel fees, consultant fees and expert fees, costs and expenses incurred in investigation and defending against the assertion of such liabilities), which may be sustained, suffered or incurred by Lessee, its agents, officials or employees in connection with failure by Lessee or its Related Parties to fully comply with the provisions of this Article. The Parties acknowledge and agree that the indemnification provided above in this Section is conditioned upon the failure of Lessee to fully comply with the provisions of this Article and that such indemnification does not cover any Costs of clean-up required by the presence of any Hazardous Materials on the Property or other portions of Watson Island resulting solely from the acts or negligence of any third party or parties other than Lessee or Lessee's Related Parties. Ground Lease -Final Page 150 Section 20.5 Notices. If Lessee or Lessor receives any written notice of a Release, Threat of Release or environmental condition at the Property or a written notice with regard to air emissions, water discharges, noise emissions, recycling, or any violation of any Environmental Law (any such notice, an "Environmental Complaint") independently or by notice from any Governmental Authority, or with respect to any litigation regarding environmental conditions at or about the Property, then such Party shall give prompt written notice of the same to the other Party detailing all relevant facts and circumstances. Section 20.6 Lessor's Remedies. Promptly after becoming aware of any violation of any Environmental Law at the Property, Lessee shall commence to reinediate in accordance with its obligations hereunder and thereafter diligently pursue the completion thereof in a reasonable time (and in any event in accordance with Environmental Laws). If Lessee fails to do so, Lessor may give written notice of such failure to Lessee, and if such failure continues for five (5) days after Lessee receives such notice, Lessor shall have the right, but not the obligation, to enter onto the Property and to take such action as it reasonably deems necessary or advisable to clean up, remove, resolve or minimize the impact of or otherwise deal with any Hazardous Materials, Release, Threat of Release or Environmental Complaint upon its obtaining knowledge of such matters independently or by receipt of any notice from any Person or Governmental Authority, and all of the reasonable costs and expenses of Lessor in connection therewith shall be deemed to be additional Rent due from Lessee to Lessor hereunder. Section 20.7 Phase I Environmental Assessment at End of Lease Term. (a) End -Term Audit. At any time within the twelve (12) months before the expiration or earlier termination of the Lease Term, upon written request by Lessor, Lessee, at Lessee's sole cost and expense, shall cause a Phase I environmental audit (the "End -Term Audit") of the Ground Lease -Final Page 151 Property and the Leasehold hnprovements to be completed by a professional environmental consultant approved by the City Manager. If practicable, such consultant shall be the same finn which completed the Original Phase I and II Audits or its successor. If the End -Term Audit indicates the presence of Hazardous Materials which were either (i) not present as indicated in either the Original Phase I and II Assessments or (ii) if present as indicated in either or both of such Original Phase I and II Assessments, were previously subject to and satisfied by all Clean - Up requirements, it shall first be determined whether the presence of such contamination is due to the acts or negligence of Lessee, Lessor, or a third party. If it is determined that the presence of such contamination is due to the acts, omissions or negligence of Lessee and/or its Related Parties, Lessee shall pay or cause to be paid all reasonable Costs associated with the required remediation and clean-up. (b) Cooperation. In the event that it is determined that neither Lessor, nor Lessee and/or its Related Parties, is responsible for the presence of such contamination, but that the presence of such new Hazardous Materials was caused by the acts or negligence of a third party, Lessor and Lessee shall reasonably cooperate with each other in all matters relating to the identification and clean-up responsibilities of such third party contaminator and its Clean -Up responsibilities; provided, however, that such obligation to cooperate shall not be deemed to impose on either Party the obligation to expend any funds. Section 20.8 Major Subleases and Space Leases. (a) Comparable Covenants in Major Subleases and Direct Space Leases. Lessee shall require that each Major Sublease and Direct Space Lease include covenants on the part of the applicable Major Subtenant and Direct Space Tenant which are comparable to those covenants set forth in this Article XX. Lessee shall use reasonable, good faith efforts to enforce such Ground Lease -Final Page 152 covenants. Nothing contained herein shall be deemed to prevent Lessee from imposing more stringent requirements on any such Major Subtenant and/or Direct Space Tenant. (b) Comparable Covenants in Other Space Leases. Each Major Sublease shall provide for each Major Subtenant to: (i) include in each of its Space Leases covenants on the part of the applicable Space Tenant which are comparable to covenants on the part of the applicable Space Tenant as those covenants set forth in this Article XX; and (ii) use reasonable, good faith efforts to. enforce such covenants. Nothing contained herein shall be deemed to prevent any Major Subtenant from imposing more stringent requirements of any of its Space Tenants, or to prevent Lessee from requiring any Major Subtenant to impose such more stringent requirements. (c) Compliance. So long as Lessee complies with the provisions of subparagraphs (a) and (b) above, Lessee shall not be deemed to have breached any of the covenants set forth in this Article XX on account of any breach thereof by any Major Subtenant or Space Tenant. Section 20.9 Survival of Lessee's Obligations. The respective rights and obligations of Lessor and Lessee under this Article XX shall survive the expiration or termination of this Amended and Restated Ground Lease. ARTICLE XXI PUBLIC UTILITY CHARGES Section 21.1 Lessee to Provide and Pay for Utilities. Lessee shall pay, or cause to be paid, all proper charges, including connection and tapping fees, for the use of gas, electricity, light, heat, water, sewer, storm sewer, power, fire lines, television, cable, telephone, protective services and other communication services, and for all other public or private utility services, which shall be used, rendered or supplied upon or in connection with the applicable Major Project Component on the Property and the related Leasehold Improvements or any part thereof, Ground Lease -Final Page 153 at any time during the Lease Term (or its proportionate share of any such charges for any such services supplied both to the applicable Major Project Component on the Property and the related Leasehold Improvements and to other properties and/or improvements). Section 21.2 Compliance with Utility Services. Lessee shall, at its sole cost and expense, comply with all contracts relating to any utility services and do all other things required for the maintenance and continuance of all utility services as are necessary for the proper maintenance and operation of the Property and the Leasehold- Improvements. Section 21.3 Permits. Lessee shall, at its sole cost and expense, procure any and all necessary permits, licenses or other authorizations required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such utility services or substitutes to the Property and the Leasehold Improvements. Lessor shall, at no cost to Lessor, cooperate with and assist Lessee in such endeavor. Section 21.4 No Obligation for Utilities not on Property. In no event shall Lessee be responsible for the installation, upgrading or alteration of any utility lines or facilities located or to be located on any portions of Watson Island other than the Property or for the Major Project Components it does not construct except as provided in Composite Attachment 3 Section 21.5 Notice and Disclaimer as to Utility Services and Other Services. Lessor (in its proprietary capacity only) shall not be required to supply any services or utilities whatsoever to the Property or the Leasehold Improvements. However, Lessor and its successors, assignees or franchisees may enter into contracts for the provision of services to Watson Island, including, but not necessarily limited to, water supply, sewer, gas, electric current, cable, television or telephone services. Neither Lessor nor any operator or concessionaire, as provider Ground Lease -Final Page 154 of such service (a "Service Provider"), guarantees or warrants, expressly or impliedly, the merchantability or fitness for use, or the quality of any such services. Lessee acknowledges that neither Lessor nor any Service Provider nor any successor, assignee or franchisee thereof shall be responsible or liable for losses, injuries or deaths resulting from such services or the failure or interruption of such services, except to the extent any of the foregoing is caused by or arises out of the gross negligence of Lessor or any of its agents, servants and employees. Notwithstanding anything contained herein to the contrary, the failure of such services at any time or from time to time shall in no event be deemed to be a defense to an Event of Lessee's Default hereunder unless the same is deemed to be in connection with a Force Majeure Event hereunder. ARTICLE XXII INDEMNIFICATION AND RELEASE OF LESSOR Section 22.1 General Indemnification of Lessor Without Limitation of Any Other Indemnity Given Hereunder. Lessee shall indemnify, defend and save harmless Lessor and Lessor's successors, permitted assigns, officials, employees and agents (the "Lessor Indemnified Parties") from and against any and all claims, actions, proceedings, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) by or on behalf of any Person, arising out of, resulting from, or in any way connected to: (i) any development, construction or other work in or about the Property and/or the Leasehold Improvements; (ii) a hazardous condition of or present on the Leasehold Improvements and/or Property (it being understood, however, that the matters related to Hazardous Materials shall be governed by Article XX); (iii) any breach or default on the part of Lessee in the performance of any of Lessee's obligations pursuant to the terms of this Amended and Restated Ground Lease; (iv) any act or negligence of Lessee or any of its officers, employees, agents, servants, Ground Lease -Final Page 155 representatives, contractors, invitees, or licensees; or (v) any accident, injury, or damage caused to any Person occurring during the Lease Term in or on the Property; provided, however, that Lessor shall not be indemnified, defended or held harmless from any of the foregoing to the extent caused by Lessor's intentional acts or gross or wanton negligence upon the Property (collectively, the "Indemnified Matters"). Section 22.2 Defense. In case any action or proceeding is brought against Lessor by reason of any of the Indemnified Matters, Lessee, upon sixty (60) days' written notice from Lessor, shall, at its expense, resist or defend the action or proceeding by counsel reasonably satisfactory to Lessor. Section 22.3 Lessor's Participation. If Lessee is required to defend any action or proceeding pursuant to this Article XXII to which action or proceeding Lessor is made a party, Lessor shall also be entitled to appear, defend, or otherwise take part in the matter involved, at its election, and at the sole expense of Lessor by counsel located within Miami -Dade County, Florida of its own choosing, provided that: (i) such action by Lessor shall not limit or make void any liability of any insurer of Lessor or Lessee with respect to the claim or matter in question; and (ii) Lessor shall not, without Lessee's prior written consent, settle any such action or proceeding or interfere with Lessee's defense or prosecution of such action or proceeding. Section 22.4 No Limitation. The foregoing agreements of indemnity are in addition to and not by way of limitation of any other covenants in this Amended and Restated Ground Lease to indemnify Lessor. Section 22.5 Challenges to Lease. Lessee acknowledges and agrees that the Watson Island RFP, the Island Gardens Proposal, the Agreement to Enter Into Ground Lease between the Parties having an effective date of January 1, 2003, and this Ground Lease may be challenged by Ground Lease -Final Page 156 private third parties for various reasons. Lessee further acknowledges and agrees that: (i) Lessor shall haveno liability whatsoever to Lessee or any Investors (as defined in Article VIII) in Lessee and/or the Project in connection with any such challenge, and Lessee hereby forever waives and releases Lessor from any such liability, now or hereafter arising; and (ii) Lessee shall, at its expense, undertake the defense of (but not indemnify Lessor against) any action brought against Lessor seeking to set aside or invalidate this Amended and Restated Ground Lease on the theory that this Amended and Restated Ground Lease constitutes a material deviation from the Watson Island RFP and/or the Island Gardens Proposal. Lessor may participate in any such defense, but neither Party shall settle or compromise any such action without the prior written consent of the other Party. Section 22.6 Survival. The provisions of this Article XXII shall survive the expiration or sooner termination of this Amended and Restated Ground Lease. ARTICLE XXIII LIEN FOR RENT AND OTHER CHARGES Section 23.1 Lien for Rent. Subject to the limitations set forth in Section 23.3, the whole amount of the Rent, and each and every installment, and the amount of all taxes, assessments, water rates, insurance premiums and other charges and Impositions paid by Lessor under the provisions of this Amended and Restated Ground Lease, and all costs and reasonable attorneys' fees which may be incurred by Lessor in enforcing the provisions of this Amended and Restated Ground Lease or in carrying out any of the provisions of this Amended and Restated Ground Lease, shall be and are deemed to constitute a valid lien upon the Leasehold Improvements and the Leasehold Estate, which lien may be enforced by all remedies available at law and in equity. Ground Lease -Final Page 157 Section 23.2 Other Liens. Subject to the limitations set forth in Section 23.3, Lessor shall be entitled to have and enforce any and all common law, statutory or other liens for non- payment of Rent or other sums due hereunder. To the extent that any such liens would not otherwise be subject to the limitations set forth in Section 23.3, Lessor hereby irrevocably waives same. Section 23.3 Limitations. All of the liens described in this Article XXXIIIIXXIII shall be subject to the following limitations: (i) each such lien shall, for all purposes and in all respects, be subject and subordinate to the lien, operation, effect, terms and provisions of any Approved Mortgage and to the rights of any Approved Mortgagee, and no such lien may be enforced against any portion of the Leasehold Improvements or the Leasehold Estate at any time such portion is encumbered by any Approved Mortgage without the applicable Approved Mortgagee's prior written consent in its sole discretion; (ii) no such lien shall attach to or be enforceable against any portion of the Project subject to any Approved Time Share Licenses; (iii) no such lien shall attach to or be enforceable against any Personal Property which is owned by an equipment lessor or other third party lessor of Personal Property and leased to Lessee, any Major Subtenant, any Space Tenant or any other Person; (v) each such lien shall, for all purposes and in all respects, be subject and subordinate to the lien and security interest of any third party providing financing secured by Personal Property owned by Lessee, any Major Subtenant or any Direct Space Tenant which is an Affiliate of Lessee, and without the prior written consent of such third party in its sole discretion, no such lien may be enforced against any such Personal Property unless and until such lien and security interest is fully released; and (v) no such lien shall attach to or be enforceable against any other Personal Property, including any Personal Property owned by any other Space Tenant. Upon the request of any such third party lessor of Ground Lease -Final Page 158 Personal Property or third party providing financing secured by Personal Property, Lessor shall execute any documentation reasonably required by such third party consistent with the foregoing limitations (it being understood that nothing contained herein shall be deemed to prohibit or impair any such leasing or financing with respect to Personal Property). ARTICLE XXIV CONDEMNATION Section 24.1 Definition of Terms. For purposes of this Article, the following words shall have the meanings attributed to them in this Section: (a) "Condemnation" means the acquisition by a governmental or quasi -governmental agency with the power of eminent domain, by the exercise of that power, of title to all or part of the Property and/or Leasehold Improvements, or other conveyance of the Property and/or Leasehold hmprovements in lieu of eminent domain. The term "Condemnation" shall also include any case of inverse condemnation as may be detennined by a court of competent jurisdiction. A Condemnation shall not be deemed a Leasehold Estate Transfer or Major Subleasehold Estate Transfer (as defined in Section 8.1). (b) "Total Taking" means the Condemnation of the entirety of the Property. The term "Total Taking" shall also include the Condemnation of a portion of the Property and Leasehold Improvements that renders restoration of the remaining Property and Leasehold Improvements for continued use economically unfeasible in the sole and reasonable opinion of Lessee. (c) "Partial Taking" means the Condemnation of a portion of the Property and/or the Leasehold Improvements where it is economically feasible in the sole and reasonable opinion of Lessee to effect restoration of the balance of the Property and Leasehold Improvements for continued use. Ground Lease -Final Page 159 (d) "Temporary Taking" means a Total Taking or Partial Taking for a period of time less than the remainder of the Lease Term as of the Date of Taking. (e) "Date of Taking" means the date upon which title to any of the Property and/or Leasehold Improvements transfers to the governmental or quasi-govemmental agency which is Condemning the Property. (f) "Condemnation Award" means the actual amount paid for the Property and/or the Leasehold Improvements; or portion thereof, which is taken by Condemnation, including, but not limited to, the decline in value of any Property and/or Leasehold Improvements not taken, if any. In the event of Condemnation by the United States Government, or other Governmental Authority where reasonable attorney's fees and costs are not paid in addition to the Condemnation Award, Condemnation Award shall mean such actual amount paid, less all reasonable attorney's fees and costs incurred in connection with securing such award. (g) "Fee Value" means the present value of the Base Rent and Percentage Rent payable pursuant to this Amended and Restated Ground Lease for the remaining balance of the Lease Term, and the fair market value of Lessor's reversionary interest in the Property and the Leasehold hmprovements, both as of the Date of Taking. The Parties stipulate and agree that for purposes of the foregoing, the Percentage Rent payable pursuant to this Amended and Restated Ground Lease for the remaining balance of the Lease Term shall be deemed to be an amount equal to the average annual Percentage Rent payable during the three (3) year period immediately preceding the Date of Taking, multiplied by the number of years (including any portion thereof) left for the remaining balance of the Lease Term. (h) "Leasehold Value" means the fee simple fair market value of the Property and Leasehold Improvements as of the Date of Taking, less the Fee Value. Ground Lease -Final Page 160 Section 24.2 Entire Property Taken by Condemnation. In the event of a Total Taking: (a) Tennination. This Amended and Restated Ground Lease shall be deemed terminated as of the Date of Taking; (b) Remaining Obligations. Lessee shall remain obligated to pay to Lessor all Base Rent, Percentage Rent and other sums accruing under this Amended and Restated Ground Lease to (but not including) the Date of Taking, and the Parties shall be relieved of all further obligations under this Amended and Restated Ground Lease, other than those obligations which expressly survive such termination; and (c) Apportionment of Condemnation Award. Unless otherwise agreed to in writing by Lessor and Lessee (with the prior written consent of any Approved Leasehold Mortgagee), the Condemnation Award shall be apportioned by a court of competent jurisdiction based on Lessor's and Lessee's property rights as set forth herein. Specifically, (i) Lessor shall be entitled to receive the Fee Value (which sum shall be paid directly to Lessor and shall not be required to be held in escrow); and (ii) Lessee shall be entitled to the remainder of any Condemnation Award not payable to Lessor, including, but not necessarily limited to, the Leasehold Value; provided, however, that to the extent that any Approved Leasehold Mortgagee has any rights under any Subordination, Non -Disturbance and Attornment Agreement described herein to receive and/or control the disbursement of such sums, such rights shall control over any provisions of this Amended and Restated Ground Lease. Section 24.3 Part of Property Taken by Condemnation In the event of a Partial Taking: (a) Continuation of Lease; Reduction of Base Rent. This Amended and Restated Ground Lease shall remain in full force and effect as to all of the Property not taken by Ground Lease -Final Page 161 Condemnation, except that the Base Rent, after the Date of Taking, shall be reduced on an equitable basis for the remainder of the Lease Term (it being understood that after the Date of Taking, Percentage Rent shall continue to be payable subject to and in accordance with the terms and conditions of this Amended and Restated Ground Lease for that portion of the Property not included in the Condemnation); and (b) Apportionment of Condemnation Award. Unless otherwise agreed to in writing by Lessor and Lessee (with the prior written consent of any Approved Leasehold. Mortgagee), the Condemnation Award shall be apportioned by a court of competent jurisdiction based on Lessor's and Lessee's property rights as set forth herein. Specifically, (i) Lessee shall receive and be obligated to apply the amount necessary to restore the balance of the Project to as new a condition as existed immediately prior to the Taking; and (ii) the balance of the Condemnation Award shall be divided among Lessor and Lessee based upon their proportionate shares and remaining interests in this Amended and Restated Ground Lease, the Leasehold Improvements taken, the fee interest, the remainder interest, and the diminution in value of the Project; provided, however, that to the extent that any Approved Leasehold Mortgagee has any rights under any applicable Subordination, Non - Disturbance and Attornment Agreement described herein to receive and/or control the disbursement of such sums, such rights shall control over any provisions of this Amended and Restated Ground Lease. Section 24.4 Takings for Temporary Period. Where the Condemnation is for a temporary period of time, the provisions of this Section shall apply: Ground Lease -Final Page 162 (a) No Termination; Force Majeure. In the event of a Temporary Taking, this Amended and Restated Ground Lease shall not terminate and Lessee shall continue to perform and observe all of its obligations (including, but not limited to, payment of Base Rent and Percentage Rent as provided throughout this Amended and Restated Ground Lease without adjustment) as though the Temporary Taking had not occurred and Lessee shall be entitled to the entirety of the Condemnation Award for the Temporary Taking; provided, however, that to the extent Lessee may be prevented from- performing its obligations (excluding payment of Base Rent and Percentage Rent as provided throughout this Amended and Restated Ground Lease without adjustment) by the terns of the Condemnation or by the conditions resulting from the Condemnation, including Lessee's use of all or any part of the Property, same shall be deemed to constitute an Event of Force Majeure. (b) Temporary Taking For Same Period As Lease Term. In the event of a Total Taking or Partial Taking for a period of time which extends for exactly the remainder of the Lease Term as of the Date of Taking, Lessor and Lessee shall each receive that portion of the award as though the Condemnation had not been for a limited period of time, all subject to and in accordance with the provisions of Section 24.2 or Section 24.3, as applicable. (c) Temporary Taking For Period Beyond Lease Term. In the event of a Total Taking or Partial Taking for a period of time which extends beyond the remainder of the Lease Tenn as of the Date of Taking, Lessee shall be entitled to that portion of the Condemnation Award equal to what Lessee would have received had the Condemnation not been for a limited period of time, all subject to and in accordance with the provisions of Section 24.2 or Section 24.3, as applicable; provided, however, that Lessee shall not be entitled to any monies awardable for any time period after the Lease Tern would otherwise have ended. Ground Lease -Final Page 163 Section 24.5 Event of Lessee's Default. Notwithstanding any provisions contained herein to the contrary, in the Event of Lessee's Default described in Section 25.1(a), Section 25.1(b) or Section 25.1(c) (subject to an Approved Mortgagee's exercise of any applicable cure rights therefor) prior to or at the time of a final judgment or other determination as to the amount of the Condemnation Award, or payment of the Condemnation Award, Lessor shall be entitled to receive such portion of the Condemnation Award as is necessary to cure such Event of Lessee's Default, in addition to such other portion of the Condemnation Award to which Lessor is otherwise entitled under this Article XXIV. Section 24.6 Rights of Approved Leasehold Mortgagee. (a) Consent and Participation Rights. Lessor and Lessee shall not settle or compromise the amount or division of any Condemnation Award in any Condemnation proceeding without any Approved Leasehold Mortgagee's prior written consent. Any such Approved Leasehold Mortgagee shall be entitled to appear in any such Condemnation proceeding and make claim for the share of any award to which Lessee is entitled by the terns of this Article XXIV. (b) Assignment. Lessee may assign to any Approved Leasehold Mortgagee any and all rights of Lessee with respect to Condemnation Awards and proceedings. (c) Provisions of Approved Leasehold Mortgage. The provisions of this Article XXIV shall be subject to the rights of any Approved Leasehold Mortgagee pursuant to anany Subordination, Non -Disturbance and Attornment Agreement described herein. Section 24.7 Major Subleases. Lessee shall cause each Major Sublease to contain comparable condemnation provisions as those set forth in this Article XXIV with respect to each Major Project Component. Ground Lease -Final Page 164 ARTICLE XXV DEFAULT PROVISIONS Section 25.1 Events of Default by Lessee. Each of the following events is defined as an "Event of Lessee's Default": (a) Base Rent. If Lessee shall fail to pay any installment of Base Rent when and as due and payable, and such failure shall continue for a period of fifteen (15) days after written notice from Lessor to Lessee; (b) Percentage Rent. If Lessee shall fail to pay any installment of Percentage Rent when and as due and payable, and such failure shall continue for a period of thirty (30) days after written notice from Lessor to Lessee; (c) Other Sums of Money. If Lessee shall fail to pay any other sums of money due hereunder when and as due and payable, and such failure shall continue for a period of forty five (45) days after written notice from Lessor to Lessee; (d) Voluntary Bankruptcy. If, at any time during the Lease Term, Lessee shall file: (i) a consent to or petition for the appointment of a receiver, trustee or liquidator of itself or all its assets; (ii) a voluntary petition in bankruptcy or a pleading, memorandum, affidavit or other paper in any court of record admitting in writing its inability to pay its debts as they come due; (iii) a general assignment for the benefit of creditors; or (iv) an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; (e) Involuntary Bankruptcy. If, at any time during the Lease Term, there shall be filed against Lessee or any of its constituent entities, in any court of competent jurisdiction pursuant to any statute of the United States or of any State, a petition in bankruptcy or Ground Lease -Final Page 165 insolvency, or for reorganization, or for the appointment of a receiver or trustee of all or a portion of Lessee's or any of Lessee's constituent entities' property, including, without limitation, the Leasehold Estate or the Leasehold Improvements, and any such proceeding against Lessee or any of its constituent entities shall not be dismissed within ninety (90) days following the commencement thereof (which period may be extended up to an additional sixty (60) days so long as Lessee is diligently pursuing such dismissal); (f) Seizure. If the Leasehold Estate or the Leasehold Improvements thereon shall be seized under any levy, execution, attachment or other process of court where the same shall not be vacated or stayed on appeal or otherwise within sixty (60) days thereafter, or if the Leasehold Estate or the Leasehold Improvements thereon are sold by judicial sale and such sale is not vacated, set aside or stayed on appeal or otherwise within any period for vacating, setting aside, staying or appealing same, if any such period is applicable; (g) Certain Defaults Under Major Subleases. If: (i) a Major Subtenant of the Leased Property defaults in the performance of or otherwise breaches any covenant under its Major Sublease which is specifically required by the provisions of this Amended and Restated Ground Lease to be included in such Major Sublease (including, but not limited to, those covenants described in Article VII hereof), or which is otherwise a material provision of such Major Sublease; (ii) such Major Subtenant fails to cure such default within the applicable notice and cure period for same under such Major Sublease; and (iii) Lessee fails to cause such default to be cured within forty five (45) days after the expiration of such notice and/or cure period, or if such default is not reasonably capable of being cured within such forty five (45) day period, Lessee shall have failed to commence to cure such default within such forty five (45) day period or thereafter failed to continue diligently prosecuting all action reasonably necessary to cure the Ground Lease -Final Page 166 default (it being understood that if legally authorized possession of the applicable Major Project Component is required in order to cure such default, such forty five (45) day cure period shall not be deemed to have commenced until Lessee is able, through diligent efforts, to obtain such possession); (h) Certain Defaults Under Operating Agreements. If: (i) Lessee or any Major Subtenant defaults under any applicable Operating Agreement for the operation and management on the Leasehold Estate hereunder of the applicable Major Project Component on the Leasehold Estate hereunder; (ii) such Operating Agreement is properly terminated by any such operator or manager on account of such default; and (iii) an Operating Agreement with a replacement operator approved by the City Manager pursuant to the City Manager Approval Procedures is not executed and delivered within ninety (90) days after Lessee or any Approved Mortgagee or Approved Foreclosure Transferee is able to take possession of such Major Project Component; and (i) Certain Cross Defaults under Composite Attachment 3 .To the extent and for the time periods set forth in Section VII of Composite Attachment 3, there shall be cross -default provisions among the Amended and Restated Ground Leases for the Major Project Components; and (j) Unpermitted Transfer. If any Leasehold Estate Transfer or Lessee Transfer of Control of Lessee under this Amended and Restated Ground Lease shall be made in violation of the provisions of Article VIII, or if Lessee consents in writing to any Major Subleasehold Estate Transfer or Major Subtenant Transfer of Control under this Amended and Restated Ground Lease as to which any approval or consent of the City Manager is required under the provisions of Article VIII, without Lessee's having first obtained such approval or consent of the City Ground Lease -Final Page 167 Manager, and any such transaction is not unwound or nullified within thirty (30) days after its occurrence; (k) Insurance. If any insurance required to be maintained by Lessee hereunder lapses or is cancelled, and the same is not replaced within five (5) Business Days after Lessee receives written notice thereof from Lessor; provided, however, that no such Event of Lessee's Default shall give rise to any right on the part of Lessor to terminate this Amended and Restated Ground Lease or Lessee's possession of the Property; or (1) Other Defaults. If Lessee shall fail to perform any of the other covenants, conditions and agreements of this Amended and Restated Ground Lease on the part of Lessee to be performed (other than those described in subparagraphs (a) through (j) above), and such failure shall continue for a period of sixty (60) days after written notice from Lessor to Lessee (stating with particularity the respects in which Lessor contends that Lessee has failed to perform any such covenants, conditions and agreements), or if such default is not reasonably capable of being cured within such sixty (60) day period, Lessee shall have failed to commence to cure such default within such sixty (60) day period or thereafter failed to continue diligently prosecuting all action reasonably necessary to cure the default (it being understood that if legally authorized possession of the applicable Major Project Component is required in order to cure such default, such sixty (60) day cure period shall not be deemed to have commenced until Lessee is able, through diligent efforts, to obtain such possession). Section 25.2 Remedies in Event of Lessee's Default. Lessor may treat any one or more of the Event(s) of Lessee's Default as a breach of this Amended and Restated Ground Lease, and thereupon at its option, by serving written notice on Lessee and any and all Approved Mortgagees of the Event of Lessee's Default, Lessor shall have, in addition to every other right Ground Lease -Final Page 168 or remedy existing at law or equity (to the extent consistent with any limitations on remedies specified herein), any one or more of the following remedies: (a) Completion of Work. During the development or construction of the Leasehold Improvements, Lessor shall have the right, but not the obligation, to carry out or complete any applicable Work on behalf of Lessee without terminating this Amended and Restated Ground Lease, utilizing the proceeds of any applicable payment and performance bonds for the benefit of Lessor. In connection with the foregoing, Lessee hereby grants to Lessor an exclusive license to occupy the Premises in order to perform such Work. Notwithstanding the foregoing, all rights of Lessor under this subparagraph (a) shall be subject and subordinate in all respects to the rights of any Approved Mortgagee with respect to completing the Work and the proceeds of any payment and performance bonds. (b) Termination of Right to Possession; Termination of Lease. After use of appropriate summary process or other legal process, Lessor may either: (i) terminate this Amended and Restated Ground Lease; or (ii) terminate Lessee's right to possession of the Property and the Leasehold Improvements (without terminating this Amended and Restated Ground Lease) and re-enter the Property and the Leasehold Improvements and without further demand or notice, remove all persons and all or any property therefrom, by summary eviction proceedings or by any suitable action or proceeding at law, without being liable to indictment, prosecution or damages therefor, and repossess and enjoy the Property and the Leasehold Improvements. If Lessor elects to terminate the right of possession (without terminating this Amended and Restated Ground Lease), thereafter, Lessor may make such alterations and repairs as may be necessary in order to relet the Property or the Leasehold Improvements and relet the Property or the Leasehold Improvements. Lessor shall not be liable in any way whatsoever for Ground Lease -Final Page 169 failure to relet the Property or the Leasehold Improvements or, in the event that the Property or the Leasehold Improvements or any part or parts thereof are relet, for failure to collect the rent thereof under such reletting. In connection with any such reletting, Lessee, for Lessee and Lessee's successors and assigns, hereby irrevocably constitutes and appoints Lessor as Lessee's and their agent to collect the Rents due and to become due under all Major Subleases or Space Leases or any parts thereof. Notwithstanding any such reletting without termination, Lessor may at any time thereafter elect to terminate this Amended and Restated Ground Lease for such previous breach. (i) Lessee's Right to Cure. Notwithstanding the foregoing, Lessee shall have the right to cure any Event of Lessee's Default at any time prior to the issuance of a final order or judgment granting Lessor possession of the Property (subject to any pending appeal brought within the applicable appeals period), so long as Lessee also pays to Lessor any applicable interest due on previously unpaid sums at the Default Rate for the period from the due date thereof until the date paid in full, and all reasonable court costs and attorneys' fees. (ii) No Acceleration of Rent. The Parties specifically acknowledge and agree that Lessor shall not be entitled to accelerate any Rent due hereunder on account of an Event of Lessee's Default. (c) Demand On Major Subtenants. Subject to the rights of any Approved Leasehold Mortgage or Approved Major Subleasehold Mortgagee, Lessor may demand that the applicable Major Subtenant and the applicable Direct Space Tenant pay the applicable rent due under such Major Sublease or Direct Space Lease directly to Lessor, and to exercise any and all of Lessee's rights and remedies thereunder if such Major Subtenant or Direct Space Tenant, as applicable, fails to pay rent directly to Lessor or otherwise comply with the terms of such Major Sublease or Ground Lease -Final Page 170 Direct Space Lease. Each Major Sublease and Direct Space Lease shall include a provision whereby the applicable Major Subtenant or Direct Space Tenant acknowledges and agrees that Lessor has the rights described in this subparagraph (c). (d) Injunctive Relief Lessor may seek injunctive relief against, or a court order restraining, any affirmative violation of any of Lessee's covenants hereunder. (e) Damages. Lessor shall have the right to seek recovery from Lessee of all actual damages to Lessor proximately caused by any Event of Lessee's Default for which Lessor has terminated Lessee's right to possession of the Property and the Leasehold Improvements or terminated this Amended and Restated Ground Lease in accordance with the provisions of this Article XXV. In no event shall Lessor be entitled to recover consequential or punitive damages from Lessee. (f) Other Remedies. No remedy conferred upon or reserved to Lessor shall be considered exclusive of any other remedy, but shall be cumulative and in addition to every other remedy given under this Amended and Restated Ground Lease or existing at law or in equity or by statute, and every power and remedy given by this Amended and Restated Ground Lease to Lessor may be exercised from to time and as often as occasion may arise, or as may be deemed expedient by Lessor; provided, however, all such remedies shall be consistent with the limitations of Lessor's rights with respect to termination of this Amended and Restated Ground Lease and any other limitations set forth in this Article XXV. (g) SNDA's. Lessor acknowledges and agrees that certain rights and remedies of Lessor specified herein will, in certain respects, be limited by the provisions of any applicable Subordination, Non -Disturbance and Attormnent Agreements entered into by Lessor with respect to the Project as contemplated herein, including any such agreements with Approved Leasehold Ground Lease -Final Page 171 Mortgagees, Approved Major Subleasehold Mortgages, Major Subtenants, Space Tenants and holders of Approved Time Share Licenses. Section 25.3 Events of Default — Lessor. (a) Events of Lessor's Default. An "Event of Lessor's Default" shall be deemed to have occurred upon the failure of Lessor to perform any of the covenants, conditions and agreements of this Amended and Restated Ground Lease which are to be performed by Lessor and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Lessee to Lessor (which notice shall specify the respects in which Lessee contends that Lessor has failed to perform any of such covenants, conditions and agreements); provided, however, that if such default is one which cannot be cured within thirty (30) days, no such Event of Lessor's Default shall be deemed to have occurred if Lessor shall have commenced such cure within such thirty (30) day period and thereafter shall have continued diligently to prosecute all actions necessary to cure such default. (b) Lessee's Remedies in Event of Lessor's Default. If an Event of Lessor's Default shall occur, Lessee may treat same as a breach of this Amended and Restated Ground Lease, and thereupon at its option, by serving written notice on Lessor, Lessee shall have, in addition to every other right or remedy existing at law or equity, one or more of the following remedies: (i) Termination. The right and option to terminate this Amended and Restated Ground Lease and all of its obligations hereunder upon prior written notice to Lessor (except those which specifically survive termination of this Amended and Restated Ground Lease); Ground Lease -Final Page 172 (ii) Injunctive or Other Relief. The right to specific performance, injunction or other similar relief available to it under applicable law against Lessor (including any or all of the members of its governing body, and its officers, agents or representatives); and (iii) Damages. The right to obtain actual damages resulting from such default, but only to the extent that any such damages are not first or cannot be redressed through the relief described in clause (ii) above. Notwithstanding the foregoing, in no event shall: (i) any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Lessee hereunder; or (ii) Lessee be entitled to recover consequential or punitive damages from Lessor. To the maximum extent permitted by Applicable Laws, Lessor hereby waives the right to raise any defense to Lessee's seeking or obtaining such damages, or otherwise to claim that Lessee is not entitled to seek or obtain such damages, based on the principle of sovereign immunity or any similar principle or requirement of Applicable Law. (iv) Setoff Notwithstanding anything to the contrary contained herein, Lessee shall be entitled to set off against next accruing Rent payments the amount of any such damages awarded to Lessee payable by Lessor pursuant to any judgment or order by a court of competent jurisdiction, which judgment or order is no longer appealable. Section 25.4 Mitigation. Lessor and Lessee hereby expressly acknowledge and agree that each shall have an affirmative obligation to reasonably mitigate their respective damages as a consequence of a default by the other. ARTICLE XXVI COVENANTS OF LESSOR AND LESSEE Ground Lease -Final . Page 173 Section 26.1 Partial Modification of Restrictions. (a) Lessor's and Lessee's Compliance. Lessor and Lessee shall comply with all the teens and conditions of the Partial Modification of Restrictions. (b) Proof of Payments. (i) Upon written request of Lessee from time to time, Lessor shall provide Lessee and any Approved Mortgagee with adequate proof that any payments required to be made by Lessor thereunder are being made in a timely manner; (ii) Upon written request of Lessor from time to time, Lessee shall provide Lessor and any Approved Mortgagee with adequate prrof that any payments required to be made by lessee thereunder are being made in a timely manner. (c) Right to Make Payments. Lessor and Lessee shall use reasonable good faith efforts to obtain from the Trustees (or other applicable Governmental Authority) written confirmation that the Trustees (or such other applicable Governmental Authority) shall provide to Lessor or Lessee, as applicable, written notice of any failure by Lessor or Lessee, as applicable, to make any payments when due as required pursuant to such Partial Modification of Restrictions and a reasonable period of time within which to afford Lessor or Lessee, as applicable, (or any Approved Leasehold Mortgagee on Lessee's behalf) the opportunity to cure such default; provided, however, that if the Trustees do not agree to the same: (i) Lessor or Lessee, as applicable, shall not be deemed to be in default under this Amended and Restated Ground Lease in connection therewith; and (ii) Lessor or Lessee, as applicable, shall use reasonable good faith efforts to promptly provide copies to Lessor or Lessee, as applicable, of any such written notices it receives from the Trustees. If Lessor or Lessee, as applicable, fails to make any such payments when due, then Lessor or Lessee or any Approved Mortgagee may make the payment, in which case Lessor or Lessee, as applicable, may set off or add to, as applicable, the amount of such payment against the next accruing Rent payments due. If Lessor Ground Lease -Final Page 174 or Lessee, as applicable, anticipates not making the payment to the Trustees when due, Lessor or Lessee, as applicable, shall notify Lessor or Lessee and any Approved Mortgagee thirty (30) days prior to the applicable due date (it being understood that Lessor or Lessee's, as applicable, failure to make any such payment shall be deemed a default by Lessor or Lessee, as applicable, hereunder, subject to the applicable cure periods hereunder and under the Partial Modification of Restrictions, as applicable). If Lessor, Lessee or any Approved Mortgagee, as applicable, makes the payment to the Trustees, then, at Lessor or Lessee's option or any Approved Mortgagee's option and upon providing advance written notice to Lessor, Lessee or any Approved Mortgagee may continue to make the annual payments to the Trustees, in which case Lessee may deduct or the Lessor may add to, as applicable, the amount of the payments made to the Trustees from the next accruing Rent payments upon submitting proof of such payment to the reasonable satisfaction of Lessor or Lessee, as applicable. Section 26.2 Civic Arts Endowment Trust. (a) Creation. Lessee shall create a "Civic Arts Endowment Trust" for the Project (the "Trust"). Creation of the Trust, and conditions or restrictions applicable to the Trust, shall be set forth in and governed by a separate written agreement in form and substance reasonably acceptable to Lessor and Lessee. Such agreement shall be entered into prior to the Possession Date. (b) Control. Lessee shall retain control of the Trust, but the Trust's managing board shall include, but not necessarily be limited to, a member from each of the City, Fairchild Tropical Garden and The Historical Museum of South Florida. (c) Funding. Lessee shall fund the Trust in accordance with the provisions of Exhibit R. Ground Lease -Final Page 175 (d) Investment of Funds. Funds contributed to the Trust shall be invested in such manner as is directed by the managing board of the Trust. (e) Use of Income. The income earned from the investment of the funds in the Trust (but not the corpus of the Trust) shall be used for operations, maintenance and repair of all civic spaces within the Project, which shall deemed to include all areas of the Project open to the public other than the Parking Garage, the Retail Space, rooms within the Hotels, and other areas of the Project which are subject to membership or user fees, such as spa and fitness facilities. Such income shall be used, among other things, to maintain the gardens and reflecting pools and the sculptures and other physical objects of art located within the public spaces within the Project in good condition and repair, which art shall be more specifically described on Exhibit E-1 attached hereto (the "Public Art"), and for "public -art" related purposes within the Project, such as visual or performance related art and/or art related festivals or functions. Notwithstanding anything contained herein to the contrary, in no event shall any funds from the Trust be used for the maintenance of areas of the Project which do not constitute civic spaces (as described above) nor shall such funds in any way reduce or be credited against the Rent and other obligations hereunder. ARTICLE XXVII QUIET ENJOYMENT Lessor represents, warrants and covenants that Lessee, upon paying the Rent and all Impositions and other charges, and performing all the covenants and conditions of this Amended and Restated Ground Lease, shall lawfully and quietly hold, occupy and enjoy the Property during the Lease Term without hindrance or molestation by Lessor (solely in its proprietary Ground Lease -Final Page 176 capacity) or any Persons claiming, by, through or under Lessor (solely in its proprietary capacity). ARTICLE XXVIII LESSEE NOT TO ENCUMBER LESSOR'S INTEREST Lessee shall have no right or power to, and shall not in any way encumber the title of Lessor in and to the Property, or the title of Lessor's remainder or residual interest in the Leasehold Improvements. The fee simple estate of Lessor in the Property and the residual interest of Lessor in the Leasehold Improvements shall not be in any way subject to any claim by way of lien or otherwise, whether claimed by operation of law or by virtue or any express or implied lease or contract or other instrument made by Lessee and any claim by way of lien or otherwise upon the Property or in the Leasehold Improvements arising from any act or omission of Lessee shall accrue only against Lessee's interest in the Leasehold Improvements. ARTICLE XXIX LIMITATION OF LIABILITY Section 29.1 Limitation of Liability of Lessee. (a) General Limitation on Liability. It is expressly understood and agreed by and between the Parties, anything herein to the contrary notwithstanding, that each and all of the representations, covenants, undertakings and agreements herein made on the part of Lessee are made and intended not as personal representations, covenants, undertakings and agreements by the members, officers, agents and investors of Lessee or any officers, agents, shareholders, directors, members, partners, investors or any other Person of any of Lessee's constituent entities or for the purpose or with the intention of binding any of the foregoing personally; but are made Ground Lease -Final Page 177 and intended for the purpose of binding Lessee and the Leasehold Estate and Leasehold Improvements only. (b) Limited Carve -out. Notwithstanding the foregoing, in the event of: (i) an actual and intentional fraud committed by any of Lessee's members or officers in any written document prepared by Lessee and submitted to Lessor; or (ii) any misappropriation of Net Insurance Proceeds or Condemnation Awards by Lessee (should same be paid directly to Lessee), any such members or officers committing the fraud orcausing such misappropriation shall have personal liability to the extent of any actual damages sustained to Lessor proximately caused by such fraud or misappropriation, and the property and assets of such member or officer committing the fraud or causing the misappropriation shall be subject to levy of execution or enforcement procedure for the satisfaction of Lessor's remedies hereunder, but only to the extent that Lessor is unable to look to the Leasehold Improvements for recovery of such damages. The provisions of this subparagraph (b) shall not apply to any Approved Foreclosure Transferee or any Approved Subsequent Foreclosure Purchaser. Section 29.2 Limitation of Liability of Lessor. It is expressly understood and agreed by and between the Parties, anything herein to the contrary notwithstanding, that each and all of the representations, covenants, undertakings and agreements herein made on the part of Lessor while in form purporting to be the representations, covenants, undertakings and agreements of Lessor are nevertheless, each and every one of them, made and intended not as personal representations, covenants, undertakings and agreements by Lessor, or any commission member, employee, official, representative, attorney or agent of Lessor or for the purpose or with the intention of binding any of the foregoing personally; but are made and intended for the purpose of binding the Lessor's fee simple interest in the Property only. NOTWITHSTANDING ANYTHING TO Ground Lease -Final Page 178 THE CONTRARY IN THIS AMENDED AND RESTATED GROUND LEASE, NEITHER LESSOR NOR ANY COMMISSION MEMBER, EMPLOYEE, OFFICIAL, REPRESENTATIVE, ATTORNEY OR AGENT OF LESSOR, SHALL BE PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN CONNECTION WITH THIS AMENDED AND RESTATED GROUND LEASE, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE SECURING OR OTHERWISE EXECUTED IN CONNECTION WITH THIS AMENDED AND RESTATED GROUND LEASE, OR ANY AMENDMENTS OR MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR TIMES, HERETOFORE OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION, INJURY OR LOSS RELATED TO THIS AMENDED AND RESTATED GROUND LEASE OR THE PROPERTY AND ONLY LESSOR'S INTEREST IN THE PROPERTY (OR PROCEEDS THEREOF) SHALL BE AVAILABLE TO SATISFY ANY CLAIMS AGAINST LESSOR; AND LESSEE AND EACH OF ITS SUCCESSORS AND ASSIGNEES WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL LIABILITY. As used in this Amended and Restated Ground Lease, the term "Lessor" means only the current owner or owners of the fee title to the Property. Each lessor is obligated to perform the obligations of Lessor under this Amended and Restated Ground Lease only during the time such lessor owns such interest or title. Any lessor who transfers its title or interest is relieved of all liability with respect to the obligations of Lessor under this Amended and Restated Ground Lease to be perfonned on or after the date of transfer. However, each lessor shall deliver to its transferee all funds previously paid by Lessee if such funds have not yet been applied under the terns of this Amended and Restated Ground Lease. Ground Lease -Final Page 179 ARTICLE XXX ESTOPPEL CERTIFICATES Section 30.1Estoppel Certificates from Lessee. Lessee shall, at any time and from time to time, so long as this Amended and Restated Ground Lease shall remain in effect, upon not less than fifteen (15) and not more than (30) days' prior written request by Lessor, execute, acknowledge and deliver to Lessor, or any other Person specified by Lessor, a written statement (which may be relied on by such Person) (a) certifying that (i) this Amended and Restated Ground Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified, stating the modifications and if so requested, that the annexed copy of the Lease is a true, correct and complete copy of the Lease) and (ii) the date to which the Rent and other charges have been paid, if any, and (b) stating (i) whether Lessee has given Lessor written notice of any default, or any event that, with the giving of notice or the passage of time, or both, would constitute a default, by Lessor in the performance of any covenant, agreement, obligation or condition contained in this Amended and Restated Ground Lease, and (ii) whether, to the actual knowledge of Lessee (but without independent inquiry), Lessor is in default in the performance of any covenant, agreement, obligation or condition contained in this Amended and Restated Ground Lease, and, if so, specifying in detail each such default. Section 30.2 Certificates from Lessor. Lessor shall, at any time and from time to time, so long as this Amended and Restated Ground Lease shall remain in effect, upon not less than fifteen (15) and not more than thirty (30) days' prior written request by Lessee, execute, acknowledge and deliver to Lessee, and/or any other Person(s) specified by Lessee (including, but not limited to, any Approved Mortgagee or Approved Foreclosure Transferee and any Ground Lease -Final Page 180 Approved Subsequent Foreclosure Purchaser or other proposed transferee of the Leasehold Estate, Leasehold Improvements or any Major Subleasehold Estate), a written statement addressed to Lessee and such other Person(s) (which may be relied on by such Person(s)) (a) certifying that (i) this Amended and Restated Ground Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified, stating the modifications and if so requested, that the annexed copy of the Lease is a true, correct and complete copy of the Lease) and (ii) the date to which the Rent and other charges have been paid in advance, if any, and (b) stating (i) whether an Event of Lessee's Default has occurred or whether Lessor has given Lessee notice of any event that, with the giving of notice or the passage of time, or both, would constitute an Event of Lessee's Default, and (ii) whether, to the actual knowledge of Lessor (but without independent inquiry), Lessee is in default in the performance of any covenant, agreement, obligation or condition contained in this Amended and Restated Ground Lease, and, if so, specifying in detail each such default or Event of Lessee's Default. ARTICLE XXXI NO WAIVER Section 31.1 Delays in Exercising Rights. No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any such right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. Section 31.2Waivers to be in Writing. No waiver of any breach or violation of any of the covenants or conditions contained in this Amended and Restated Ground Lease shall be implied but must be evidenced by a written instrument signed by the waiving Party, and no waiver of any breach of any of the covenants or conditions of this Amended and Restated Ground Lease shall Ground Lease -Final Page 181 be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to; any further or succeeding breach of the same or similar covenant or condition. No failure on the part of Lessor to enforce any covenant or provision contained in this Amended and Restated Ground Lease, and no waiver of any right under this Amended and Restated Ground Lease by Lessor, shall discharge or invalidate such covenant or provision or affect the right of Lessor to enforce same in the event of a subsequent breach or default, except to the extent Lessor has specifically waived same in writing. Section 31.3 Receipt of Rent. The receipt of Rent by Lessor, with knowledge of any breach of this Amended and Restated Ground Lease by Lessee or of any default on the part of Lessee in the observance or performance of any of the conditions, agreements or covenants of this Amended and Restated Ground Lease, shall not be deemed to be a waiver of any provision of this Amended and Restated Ground Lease. The receipt by Lessor of any Rent or any other sum of money or any other consideration paid by Lessee after the termination of this Amended and Restated Ground Lease or the entry of a judgment granting possession of the Property to Lessor, shall not reinstate or continue the Lease Term unless so agreed to in writing and signed by the City Manager and Lessee. Section 31.4 Consents. Consent of Lessor to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve Lessee from the obligation, wherever required under this Amended and Restated Ground Lease, to obtain the consent of Lessor to any other act or matter. ARTICLE XXXII SURRENDER AND HOLDING OVER Section 32.1 Surrender at End of Term. Ground Lease -Final Page 182 (a) Delivery of Property. Upon the expiration or sooner termination of this Amended and Restated Ground Lease, Lessee shall peaceably and quietly leave, surrender and deliver to Lessor, in their "as is" condition, the entire Property in accordance with Section 2.2, together with the following items: (i) the Leasehold Improvements; (ii) all alterations, changes, additions and other improvements made upon the Property; and (iii) any and all Personal Property owned by Lessee or any Major Subtenant or Affiliate of either, but only to the extent such Personal Property has been permanently affixed to the Property or the Leasehold Improvements for use in connection with the operation and/or maintenance of the Property and the Leasehold Improvements. In addition, Lessor shall have the right to assume, as of the expiration or sooner termination of this Amended and Restated Ground Lease, all remaining lessee obligations under any leases of Personal Property where Lessee or any Major Subtenant or any Affiliate of either is the lessee of the Personal Property, but subject to any consent rights of the applicable Personal Property lessor. Such assumption shall be made pursuant to written assumption agreement(s) in form and substance mutually acceptable to Lessor and Lessee or the applicable Major Subtenant or Affiliate, which assumption agreement(s) shall include, among other things, an appropriate indemnity from Lessor for the period from and after the date of assumption. (b) Delivery of Other Items. At the time of the surrender, Lessee shall also deliver to Lessor all of the following to the extent within Lessee's possession or immediate control (i.e., in the possession of a manager for Lessee or similar Person having a contractual duty to supply such documents to Lessee), all without representation, warranty or recourse: (i) Lessee's original executed counterparts, if available (and if not, then true and correct copies), of all Major Subleases and Space Leases then in effect pursuant to Article XXXIII hereof; (ii) any and all security deposits and rent advances under all Major Subleases and Direct Space Leases then in Ground Lease -Final Page 183 effect pursuant to Article XXXIII hereof; (iii) any service and maintenance contracts then affecting the Property or the Leasehold Improvements; (iv) recent maintenance records for the Property and the Leasehold Improvements; (v) all currently effective original licenses and permits then pertaining to the Property or the Leasehold Improvements; (vi) permanent or temporary Certificates of Occupancy then in effect for the Property or the Leasehold Improvements; (vii) all warranties and guarantees then in effect that Lessee shall have received in connection with any work or services .perfonned or building equipment installed on the Property or in the Leasehold Improvements, together with a duly executed quit -claim assignment thereof to Lessor in a recordable form approved by the City Attorney; and (viii) all financial reports specifically required by this Amended and Restated Ground Lease which are less than sixty (60) months old and which were not previously furnished to Lessor. Section 32.2 Rights Upon Holding Over. At the expiration of the Lease Term, or any earlier termination of this Amended and Restated Ground Lease, Lessee shall yield up immediate possession of the Property and the Leasehold Improvements to Lessor. In the event that Lessee fails to do so, Lessee shall pay to Lessor for the whole time such possession is withheld beyond the date of expiration or termination of this Amended and Restated Ground Leas; a sum per day equal to Two Hundred Percent (200%) times 1/365th of the aggregate of the Rent paid or payable to Lessor for the immediately preceding calendar year as set forth in Article V. Section 32.3 No Waiver. The provisions of this Article shall not be held to be a waiver by Lessor of any right of entry or reentry as set forth in this Amended and Restated Ground Lease, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Amended and Restated Ground Lease for any Ground Lease -Final Page 184 breach of Lessee under this Amended and Restated Ground Lease (subject to any applicable notice and/or cure periods). Section 32.4 Survival. The provisions of this Article shall survive the expiration or earlier termination of this Amended and Restated Ground Lease. ARTICLE XXXIII MAJOR SUBLEASES, SPACE LEASES AND APPROVED TIME SHARE LICENSES Section 33.1 Leasing and Subleasing. Except as provided by this Article XXXIII, Lessee shall not sublease or license or grant any other use or occupancy rights with respect to the Property, the Leasehold Improvements or the Leasehold Estate without the City Manager's prior written consent, which may be granted or withheld in the City Manager's sole discretion. Section 33.2Major Subtenant SNDA's. On Lessee's request, Lessor shall enter into Subordination, Non -Disturbance and Attornment Agreements with each Major Subtenant substantially in form and substance attached hereto as Exhibit S; provided, however, that the City Manager shall not unreasonably withhold his or her consent to any commercially reasonable modifications to such form as may be requested by the applicable Major Subtenant, any Approved Major Subleasehold Mortgagee or any Approved Mezzanine Financer providing Approved Mezzanine Financing to such Major Subtenant. Section 33.3 Major Subleases. Subject to the provisions of this Article XXXIII, Lessee shall have the right at any time during the Lease Tenn to enter into a Major Sublease for each of the five (5) Major Project Components with a Major Subtenant, provided that: (i) the provisions of Article VIII are satisfied as to each such Major Subtenant; and (ii) each such Major Sublease shall meet the requirements set forth in subparagraph (a) below. Ground Lease -Final Page 185 (a) Requirements for Major Subleases. Lessee shall provide to Lessor copies of all Major Subleases and amendments thereto. Each Major Sublease (as well as any material modification or amendment thereof) shall be subject to the City Manager's prior written approval in accordance with the City Manager Approval Procedures. Each Major Sublease shall: (i) Term. Be for a term equal to or less than the presently existing Lease Tenn (i.e., which shall include any properly exercised Extension Options and shall not include any unexercised Extension Options but may have corresponding Extension Options); (ii) Covenants. Include the covenants required by the applicable Sections of this Amended and Restated Ground Lease; (iii) Subordination. Provide that such Major Sublease shall be subject and subordinate to the terns of this Amended and Restated Ground Lease (but subject to the provisions of any applicable Subordination, Non -Disturbance and Attornment Agreement described in Section 33.2); (iv) Bank and Records. Provide that the applicable Major Subtenant shall maintain full and accurate books and records of such Major Subtenant's business, operation or enterprise, in accordance with the requirements under Article XII, and that Lessor shall have the same rights, including, without limitation, the audit rights, set forth therein with respect to such Major Subleases; (v) Mortgagee Cure Rights. Include provisions permitting any Approved Leasehold Mortgagee to cure defaults by Lessee thereunder, and any applicable Approved Major Subleasehold Mortgagee to cure defaults by such Major Subtenant thereunder; (vi) Lessor Cure Rights. Include provisions permitting Lessor to cure defaults by Lessee thereunder; Ground Lease -Final Page 186 (vii) No Action Causing Default under Lease. Provide that such Major Subtenant shall not take any action (or fail to act) which would result in an Event of Lessee's Default hereunder; (viii) Compliance With Laws and Insurance. Provide that such Major Subtenant shall comply in all material respects with all Applicable Laws as to the applicable Major Project Component, and any and all requirements of public liability, fire and other policies of insurance which may be applicable to its operations, activities, rights and obligations under such Major Sublease; (ix) Maintenance of Insurance. Provide that such Major Subtenant shall maintain the insurance coverages set forth in Article XI with respect to the applicable Major Project Component governed by the Major Sublease; (x) Casualty and Condemnation. Include casualty and condemnation provisions with respect to the applicable Major Project Component which are substantially similar to those contained in this Amended and Restated Ground Lease; (xi) Use Restrictions. Include restrictions on Major Subtenant Transfers of Control with respect to the applicable Major Subtenant and Major Subleasehold Estate Transfers with respect to the applicable Major Subleasehold Estate which are substantially similar to those contained in Article VIII; (xii) Notice of Default under Operating Agreements. Include a provision requiring Lessee and the applicable Major Subtenant to promptly provide to Lessor a copy of any written notice(s) received or sent by Lessee and/or the applicable Major Subtenant which either: (A) claims or alleges that any party to an Operating Agreement(s) (including, without limitation, the applicable Major Subtenant) is in default under such Operating Agreement(s): or (B) Ground Lease -Final Page 187 expresses an intention to terminate any such Operating Agreement(s) by any party to such Operating Agreement(s); (xiii) Notice of Default under Mortgages. Include a provision requiring Lessee and the applicable Major Subtenant to promptly provide to Lessor copies of any written notice(s) received by Lessee or the applicable Major Subtenant, which notice(s) claims or alleges that such Major Subtenant is in default under any Approved Major Subleasehold Mortgage(s); (xiv) Advance Rent. Provide that in no event shall Lessee be permitted to accept more than two (2) months rent in advance of the then current month under any Major Sublease. and (xv) Rentals. Provide for such rentals as are necessary to maintain a Sufficient Lessee Economic Interest (as defined in Section 8.1). Section 33.4 No Cross -Defaults. Except as expressly set forth in Composite Attachment 3, unless Lessee elects otherwise, (a) no default or Event of Lessee's Default under any Major Sublease, separate Major Project Component lease (if applicable) or the surviving provisions of the Agreement to Enter (if applicable), shall constitute or give rise to a default under any other Major Sublease..-, separate Major Project Component lease (if applicable) or the surviving provisions of the Agreement to Enter (if applicable); and (b) no default or Event of Lessee's Default with regard to any Major Project Component shall constitute or give rise to a default under any other Major Project Component. Section 33.5 Space Leases. (a) Approval of Certain Space Leases. Any single Space Lease for more than 50,000 net rentable square feet shall require the prior written consent of the City Manager in accordance with the City Manager Approval Procedures. Ground Lease -Final Page 188 (b) Right to Enter into Space Leases. Lessee and/or any Major Subtenant shall have the right to enter into any other Space Leases with respect to each of the Major Project Components or any other Project Components without Lessor's consent, provided that all such Space Leases shall: (i) be for a Permitted Use and not for any Prohibited Use; (ii) be entered into in a non-discriminatory fashion; (iii) be negotiated at arm's length; (iv) have adequate security deposits in the good faith judgment of Lessee or the applicable Major Subtenant; (v) be on lease forms previously supplied to Lessor or on another form typically required by any national tenant (but in each case with such modifications as shall have been negotiated with the applicable Space Tenant); (vi) be within the tenant improvement guidelines prepared by Lessee reasonably and in good faith and submitted by Lessee to Lessor from time to time (or as to Space Leases with national tenants, as required by such national tenants); (vii) be within the rental rate guidelines prepared by Lessee reasonably and in good faith and submitted by Lessee to Lessor from time to time (it being understood that such guidelines shall generally provide for market rents to be charged, unless specified circumstances or conditions are applicable to particular Space Leases as agreed upon by Lessor and Lessee reasonably and in good faith); (viii) result in a complementary tenant mix, including a variety of restaurants with varied price points; and (ix) result in first-class operations befitting the Project. (c) Assignment of Rents. As security for the prompt payment of Rent hereunder, Lessee hereby: (i) assigns to Lessor all of its right, title and interest in and to any and all existing and future Major Subleases and Space Leases and all rents due and to become due thereunder; and (ii) grants to Lessor the right to collect such rents and apply same to the Rent due hereunder; provided, however, that Lessee shall be entitled to collect and receive such rents in accordance with the terms of such Major Sublease and Space Leases unless and until an Event of Lessee's Ground Lease -Final Page 189 Default has occurred and is continuing. Lessor's rights under this subparagraph (c) shall be (and are hereby made) subject, subordinate and inferior in all respects and for all purposes to any right, title and interest of each and every Approved Mortgagee in and to all such Major Subleases and Space Leases and all such rents due and to become due thereunder. Upon the written request of any such Approved Mortgagee, Lessor shall execute such instruments as such Approved Mortgagee may request for the purpose of confirming the foregoing subordination. (d) Non -Disturbance. Upon Lessee's request, Lessor shall enter into a Subordination, Non -Disturbance and Attorn vent Agreement with any Space Tenant which meets one or more of the following criteria: (i) such Space Tenant will occupy more than 50,000 net rentable square feet; (ii) such Space Tenant will have a Space Lease having a term exceeding five (5) years; or (iii) such Space Tenant is a national tenant which requires non -disturbance protection. The form of such Subordination, Non -Disturbance and Attormnent Agreement shall be comparable to the form for Major Subtenants set forth in Exhibit S; provided, however, that the City Manager shall not unreasonably withhold his or her consent to any commercially reasonable modifications to such form as may be requested by the applicable Space Tenant (with due consideration to the particular requirements of any national tenant). Section 33.6 Approved Time Share Licenses. (a) Acknowledgment. The Parties acknowledge and agree that Lessee or the applicable Major Subtenant is entitled to create and sell Approved Time Share Licenses at the Marina and/or within the Hotels (subject to the limitation of the number of keys allocated therefor as described in the definitions of Hotel A and Hotel B and in Exhibit E). (b) SNDA's. In order to assure the marketability and continued existence of all such Approved Time Share Licenses at all times during the Lease Term, Lessor agrees that Lessor, Ground Lease -Final Page 190 Lessee and any applicable Approved Mortgagees shall, upon Lessee's request from time to time, enter into one or more Subordination, Non -Disturbance and Attornment Agreements with the holders of Approved Time Share Licenses and their respective lenders. Each such Subordination, Non -Disturbance and Attornment Agreement shall: (i) be in form and substance reasonably satisfactory to all of the parties thereto; (ii) be binding upon and inure to the benefit of each holder of such Approved Time Share Licenses; (iii) provide, among other things, that for the entire duration of the Lease Term, the possessory and other rights of each such holder of an Approved Time Share License shall not be disturbed or impaired on account of any termination of this Amended and Restated Ground Lease or any termination of any applicable Major Sublease prior to the stated expiration date of the Lease Term. (c) Lessor Protections. Subject to the provisions of clause (iii) of subparagraph (b) above, the Parties acknowledge and agree that the Subordination, Non -Disturbance and Attornment Agreements described in subparagraph (b) above shall in no event: (i) affect the business and financial terms of this Amended and Restated Ground Lease; (ii) constitute a material deviation from the Watson Island RFP and the . Island Gardens Proposal; or (iii) significantly impair the protections afforded to Lessor pursuant to this Amended and Restated Ground Lease. ARTICLE XXXIV MINORITY AND WOMEN PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITIES Section 34.1 First Source Hiring Agreement. Simultaneously with the execution hereof by Lessee, Lessee shall enter into a First Source Hiring Agreement with the City, in form and substance substantially as set forth in Exhibit T. Ground Lease -Final Page 191 Section 34.2 Minority and Women Participation and Equal Employment Opportunity. During the Lease Term, Lessee agrees that it will: (a) take reasonable affirmative action in the recruitment and recruitment advertising to attract and retain qualified minority and female contractors and subcontractors; (b) provide a reasonable opportunity in the recruitment, recruitment advertising and hiring for contractors and subcontractors residing within the City of Miami; (c) take reasonable affirmative action to retain employees regardless of race, color, place or birth, religion, national origin, sex, age, marital status, veteran and disability status; (d) maintain equitable principles in the recruitment, recruitment advertising, hiring, upgrading, transfer, layoff, termination, compensation and all other terms, conditions and privileges of employment; (e) monitor and review personnel practices to guarantee that equal opportunities are being provided to all employees, regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veteran and disability status; (f) post in conspicuous places, available to employees and applicants for employment, notices in a form to be provided by Lessor setting forth provisions of this non-discrimination clause; (g) in all solicitations or advertisements for employees placed by or on behalf of Lessee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color or national origin; and (h) send to each labor union or representative of workers with which the construction contractor or other operator within the Project has a collective bargaining agreement or other contract or understanding a notice in a form to be provided by Lessor, advising the union or representative of Lessee's commitments and posting copies of the notice conspicuous places available to employees and applicants for employment. Section 34.3 Skills, Training and Employment Center. Lessee shall establish and maintain a "Skills Training Center" during the construction of the Project and a "Career Training Ground Lease -Final Page 192 Center" at all times during the Tenn to provide for training of the construction and operations personnel associated with the Project at the Property or other location(s) within the City. The Skills Training Center shall be run by a construction management team to be assembled by Lessee and shall provide for the advancement of skills for the construction personnel at the Project, which shall include, without limitation, a curriculum of safety, fundamental skills for untrained workers, advance skills for trained workers, additional skills for certificates in alternate trades and management of construction operations. Such Skills Training Center shall provide opportunities for the chronically unemployed within Miami -Dade County, with priority (as a general proposition) being given to residents of the City. The Career Training Center will provide accredited courses for all employees of the Project (which shall be offered at no cost to participants), including, . without limitation, hospitality training, retail training, catering and dining training, marina operations training, public space management, customer service training, multiple language skills, historical ambassador training, botanical training, educational teaching for cultural facilities and emergency services training (for immediate care prior to arrival of professional emergency services). Section 34.4 Tax Credits. To the extent available, Lessor agrees to cooperate with Lessee, at no cost or expense to Lessor, in connection with Lessee's efforts to obtain any tax credit under Applicable Laws associated with employment, such as the State of Florida "Enterprise Zone" program and/or the Miami -Dade County "Empowerment Zone" program. In no event shall the foregoing agreement to cooperate be deemed to apply to any municipal programs offered or operated by the City, but nothing contained herein shall be deemed to prevent Lessee from submitting any applications to the City with respect to any such municipal programs for which Lessee may be eligible. Ground Lease -Final Page 193 Section 34.5 Labor Peace Agreement(s). The parties acknowledge that the Amended and Restated Agreement to Enter and the Amended and Restated Ground Lease(s) are subject to the requirements of City Commission Resolution No. 09-0263, adopted May 28, 2009 (attached hereto and made a part hereof as Composite Attachment 4). ARTICLE XXXV OPERATING AGREEMENTS FOR HOTELS AND MARINA Section 35.1 Approval. During the Lease Term, any operating and management agreement entered into by Lessee or any Major Subtenant for the operation and management of the Hotels and Marina (collectively, the "Operating Agreements"), and any material amendments or modifications thereto, shall be subject to the prior written approval of Lessor in accordance with the City Manager Approval Procedures (it being understood that the City Manager shall not object to any terms and conditions which are customary in the industry and/or are typically required by any nationally or internationally recognized operator or manager, provided that such terns and conditions do not violate any City policies, legal or otherwise). Section 35.2 Approved Operators. Any such Operating Agreement shall only be with a member of the Operating Team approved in accordance with the provisions of Section 4.4 (the "Approved Operator(s)"). Section 35.3 Terms. Each such Operating Agreement shall: (i) be subject and subordinate to the terms of this Amended and Restated Ground Lease; and (ii) be for a term which is equal to or less than the presently existing Lease Term (i.e., which shall include any properly exercised Extension Options and shall not include any unexercised Extension Options but may have corresponding Extension Options). Ground Lease -Final Page 194 Section 35.4 Non -Disturbance and Attornment Agreement. Upon Lessee's request, Lessor and the Approved Operator(s) shall enter into a Non -Disturbance and Attornment Agreement in form and substance to be mutually acceptable to the parties thereto. ARTICLE XXXVI UNAVOIDABLE DELAY Section 36.1 Unavoidable Delay(s). For the purpose of any of the provisions of this Amended and Restated Ground Lease (except the payment of Rent), neither Lessor nor Lessee, as the case may be, nor any successor in interest, shall be considered in breach of or in default of any obligations under this Amended and Restated Ground Lease in the event of an Unavoidable Delay(s), in accordance with the provisions of Section 36.2 below. In addition, each cure period specified in Section 25.1 or elsewhere in this Amended and Restated Ground Lease shall be extended on account of any Unavoidable Delays. Section 36.2 Manner of Notice of Unavoidable Delay(s) and Conditions With Respect to Performance of Obligations. In the event of Unavoidable Delay(s), the time for performance of obligations, covenants, and/or agreements which are affected by the Unavoidable Delay(s) shall be extended for the period of time of the Unavoidable Delay(s) or for such period of time as may be necessary under the circumstances, provided that the Party seeking the benefit of the provisions of this Section shall: (a) Notice. As soon as reasonably possible, but no later than ten (10) days after such Party shall have become aware of the Unavoidable Delay(s), give notice, in writing, to the other Party of the Unavoidable Delay(s), which notice shall specify which of the obligations, covenants, and/or agreements of this Amended and Restated Ground Lease the notifying Party is Ground Lease -Final Page 195 unable to perform at the time of such notice and how the Unavoidable Delay(s) has affected the Party's performance of such obligations, covenants, and/or agreements; and (b) Performance. As soon as reasonably possible after the event or circumstance giving rise to such Unavoidable Delay(s) ceases to exist, the Party claiming such Unavoidable Delay(s) shall commence and shall diligently continue the performance of such obligations, covenants and/or agreements so delayed. ARTICLE XXXVII NOTICES Section 37.1 Notices. All notices, consents, approvals and other communications under this Amended and Restated Ground Lease shall be in writing and shall be deemed to have been duly given or made: (i) upon delivery if hand delivered; (ii) one (1) Business Day after delivery to any nationally recognized overnight courier service for next Business Day delivery, fee prepaid; (iii) on the date of any facsimile transmission (if made before 5:00 p.m., Miami time, otherwise on the next Business Day), with transmission verified and a hard copy of the transmission promptly sent by U.S. Priority Mail; or (iv) three (3) Business Days after deposit with the United States Postal Service as registered or certified mail, postage prepaid, and in each case addressed as follows (or to such other addresses as either party may subsequently designate in writing to the other): If to Lessor, at: City Manager (City Manager), City of Miami, Florida 3500 Pan American Drive Miami, FL 33133 Ground Lease -Final Page 196 with a copy to: with a copy to: Department of Public Facilities/Asset Management, City of Miami 444 SW 2 Avenue Miami, FL 33130 City Attorney, City of Miami 444 SW 2 Avenue Miami, FL 33130 All Rent payments shall be made to (unless otherwise designated in writing by Lessor): if to Lessee, at: with a copy to: with a copy to: Finance Director, City of Miami 444 SW 2 Avenue Miami, FL 33130 Flagstone Island Gardens; LLC 888 MacArthur Causeway Miami, Florida 33132 Attn: Mehmet Bayraktar Shutts & Bowen LLP 1500 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Attn: Kevin D. Cowan, Esq., and Alexander I. Tachmes, Esq. Latham & Watkins 885 Third Avenue New York, New York 10022 Attn: Richard L. Chadakoff, Esq. Each party from time to time may change its address or add addresses for purposes of receiving declarations or notices by giving notice of the changed address, to become effective ten (10) days following the giving of such notice. Section 37.2 Notice to Approved Mortgagees. All notices, demands or requests which may be required to be given by Lessor or Lessee to any Approved Mortgagee shall be sent in writing, in the manner or manners set forth in Section 37.1 for the giving of notices, addressed to Ground Lease -Final Page 197 the Approved Mortgagee at such place as the Approved Mortgagee may from time to time designate in a written notice to Lessor and Lessee. Copies of all notices shall simultaneously be sent to the other of Lessor or Lessee, as the case may be. Section 37.3 Sufficiency of Service. Service of any demand or notice as provided for by this Article XXXVII shall be sufficient for all purposes. ARTICLE XXXVIII MISCELLANEOUS PROVISIONS Section 38.1 Captions. The captions of this Amended and Restated Ground Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Amended and Restated Ground Lease, nor in any way affect this Amended and Restated Ground Lease. Section 38.2 Conditions and Covenants. All the provisions of this Amended and Restated Ground Lease shall be deemed and construed to be conditions as well as covenants, as though the words specifically expressing or importing covenants and conditions were used in each separate provision. Section 38.3 Entire Agreement. This Amended and Restated Ground Lease (together with all of the Exhibits and other attachments (if any) hereto and any future easement agreements or other documents contemplated hereby) and the Agreement to Enter=collectively contain the entire agreement between the Parties concerning the Property. This Amended and Restated Ground Lease shall supersede and control over any and all prior agreements and negotiations between the Parties, whether oral or in writing (which are hereby expressly merged into this Amended and Restated Ground Lease), except for the Agreement to Enter. To the extent of any Ground Lease -Final Page 198 conflict between this Amended and Restated Ground Lease and the Watson Island RFP and/or the Island Gardens Proposal, this Amended and Restated Ground Lease shall control. Section 38.4 Modification. None of the covenants, terms or conditions of this Amended and Restated Ground Lease to be kept and performed by either party to this Amended and Restated Ground Lease shall in any manner be waived, modified, changed or abandoned except by a written instrument duly signed, acknowledged and delivered by both Lessor and Lessee. Section 38.5 Time of Essence as to Covenants of Lease. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of each and every of the provisions of this Amended and Restated Ground Lease by Lessee and Lessor. Section 38.6 Recording. The Parties shall, at the request of either Party, execute a short- form lease or memorandum of lease and have it properly acknowledged for the purpose of recording in the Public Records of Miami -Dade County, Florida. Such short -form lease or memorandum of lease shall include those provisions hereof as may be reasonably requested by either of the Parties, provided that the financial terms of this Amended and Restated Ground Lease shall not be contained therein if Lessee so requests. Lessee shall bear the cost of any such recordation thereof Section 38.7 City Manager Approval Procedures. Except for those circumstances in this Amended and Restated Ground Lease which expressly provide to the contrary or specifically call for an approval to be given or withheld in the "sole discretion" or "sole and absolute discretion" of the City Manager, the following provisions shall apply to any matter for which approval is required hereunder to be obtained from the City Manager (individually and collectively, an "Approval -Requiring Matter"), and shall be deemed to be the "City Manager Approval Procedures": Ground Lease -Final Page 199 (a) Standard of Approval. Approval shall not be unreasonably withheld, delayed or conditioned and shall be considered by the City Manager in good faith; (b) Disqualified Persons. Where approval of a particular Person is required, the City Manager may withhold such approval if such Person is a Disqualified Person; (c) Response Time. Response by the City Manager shall be given within fourteen (14) days of submission to the City Manager of all information which is fundamentally required in order to make a decision; provided, however, that in the case of any request for approval of the Construction Plans and Specifications: (i) response as to any initial Construction Plans and Specifications shall be given within twenty five (25) days of submission; (ii) response to any changes, modifications, additions or supplements thereto and any additional details with respect thereto which are required to be approved shall be given within ten (10) days of submission of same, and shall be limited to a review of only such changes, modifications, additions, supplements or additional detail, and the City Manager shall not raise any objections to any matters or items previously approved in accordance with this Section 38.7 (except to the extent that the City Manager learns that any such matter or item was approved contrary to the requirements of Applicable Laws or the Major Special Use Permit for the Project). (d) Request for Approval. Any submission for approval shall be accompanied by a written request for approval which shall include a legend at the top of the first page in a typeface larger than that used elsewhere in the request for approval indicating that Lessor is to provide comments within fourteen (14) days (or other applicable period) pursuant to this Section, 38.7, together with a copy of such submission to the City's Ombudsman and the City's Consultant (as such terms are defined in Article 14 hereof); and Ground Lease -Final Page 200 (e) Reasons for Denial, If Applicable. In the case of the denial of any request, such denial shall be made with reasonably specific written comments as to why and as to what alternatives might be acceptable (with the understanding that denial may be based on any reasonable grounds). (f) City Manager Approvals; Disclaimer. (i) Notwithstanding anything to the contrary contained in this Amended and Restated Ground Lease, Lessee acknowledges that any approvals by the City Manager of any Approval -Requiring Matter shall in no event be deemed to be a guarantee of the approval of such Approval -Requiring Matter by the City Commission or any other Governmental Authority. Any approval by the City Manager of an Approval -Requiring Matter shall be made solely in the City's capacity as the owner of the Property and not in any governmental capacity, and Lessee shall remain responsible for obtaining whatever permits, licenses and approvals may be necessary to improve the Property in accordance with any such Approval -Requiring Matter, as well as all Applicable Laws. (ii) In addition, approval by the City Manager of any Approval -Requiring Matter shall not constitute a warranty or representation by City that the Project Components meet all building codes or other Applicable Laws, or that such plans, will, if followed, result in properly designed or constructed Project Components, or that any Project Component built in accordance therewith will be built in good or workmanlike manner. (iii) Notwithstanding anything to the contrary contained in this Amended and Restated Ground Lease, the Parties recognize and agree that certain provisions of this Amended and Restated Ground Lease may require the City and/or its boards, departments or agencies, acting in their governmental capacity, to consider certain changes in applicable City codes, Ground Lease -Final Page 201 ordinances, plans, regulations or policies, as well as to consider other govermnental actions. All such considerations and actions shall be undertaken in accordance with established requirements of state statute and City ordinances, in the exercise of the City's jurisdiction under the police power. (iv) Nothing in this Amended and Restated Ground Lease is intended to limit or restrict the powers and responsibilities of the City in acting on applications for MUSP Approval and applications for other Project Approvals by virtue of the fact that the City may have consented to such applications as a property owner hereunder. The Parties further recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Amended and Restated Ground Lease shall entitle Lessee to compel the City to take any such actions, save and except the consents to the filing of such applications for MUSP Approvals, land use approvals or the required approvals, as more fully set forth herein, and to timely process such applications. Section 38.8 Governing Law. This Amended and Restated Ground Lease shall be construed and enforced in accordance with the laws of the State of Florida, without application of its conflicts of law principles. Section 38.9 Jurisdiction and Venue. The parties acknowledge that a substantial portion of the negotiations, anticipated performance and execution of this Amended and Restated Ground Lease occurred in Miami -Dade County, Florida. Except in connection with matters to be resolved in accordance with Article XVII hereof, the Parties agree that any disputes, civil action or legal proceeding arising out of or relating to this Amended and Restated Ground Lease shall be brought in the courts of record of the State of Florida in Miami -Dade County, Florida or the Ground Lease -Final Page 202 United States District Court, Southern District of Florida, Miami -Dade County Division. Each Party consents to the jurisdiction of such courts in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Service of any court paper may be effected on such Party by mail, as provided in this Amended and Restated Ground Lease, or in such other manner as may be provided under applicable laws, rules of procedure or local rules. Section 38.10 Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Amended and Restated Ground Lease or any amendment or modification of this Amended and Restated Ground Lease, or any other agreement executed by and between the parties in connection with this Amended and Restated Ground Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any Party hereto. This waiver of jury trial provision is a material inducement for Lessor and Lessee to enter into the subject transaction. Section 38.11 Conflict of Interest. Lessee agrees to comply with the conflict of interest provisions of the Miami City Code, Miami -Dade County Code and the State of Florida. No member, official, or employee of Lessor shall have any personal interest, direct or indirect, in this Amended and Restated Ground Lease, nor shall any member, official, or employee participate in any decision relating to this Amended and Restated Ground Lease which affects his or her personal interests or the interests of any other Person in which he or she is, directly or indirectly, interested. No member, official, or employee of Lessor shall be personally liable to Lessee, its successors and assigns, or anyone claiming by, through or under Lessee or any Ground Lease -Final Page 203 successor in interest to the Property, in the event of any default or breach by Lessor or for any amount which may become due to Lessee, its successors and assigns, or any successor in interest to the Property, or on any obligation under the tenns of this Amended and Restated Ground Lease. Section 38.12 Covenants to Run with the Leasehold Estate. All covenants, agreements conditions and undertakings in this Amended and Restated Ground Lease shall extend and inure to the benefit of and be binding upon the successors and permitted assigns of each of the Parties and be construed as covenants running with the Leasehold Estate and the Leasehold Improvements. Subject to all provisions respecting the rights of assignment or subleasing, this Amended and Restated Ground Lease shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties. Wherever in this Amended and Restated Ground Lease reference is made to any of the Parties, it shall (unless expressly provided to the contrary in such reference) be held to include and apply to, wherever applicable, also the successors and assigns of each Party. Section 38.13 No Merger. Without the express written consent of all Approved Mortgagees, there shall be no merger of this Amended and Restated Ground Lease or any interest therein or of the Leasehold Estate, with the fee estate in the Property or any portion thereof by reason of the fact that this Amended and Restated Ground Lease or such interest therein or the Leasehold Estate may ever be held directly or indirectly by or for the account of any Person who shall also hold the fee estate in the Property or any portion thereof or any interest of Lessor under this Amended and Restated Ground Lease. Section 38.14 Brokerage. Each Party represents and warrants to the other that it has not dealt with any broker or finder in connection with the transactions contemplated and each Party Ground Lease -Final Page 204 agrees to indemnify, defend and hold the other harmless of and from any and all manner of claims, including, but not limited to, reasonable attorneys' fees and expenses, incurred by the other Party and arising out of any claim by any broker or finder if it is ultimately determined that the indemnifying Party has breached the foregoing representation and warranty. The provisions of this Section 38.14 shall survive the expiration or sooner termination of this Amended and Restated Ground Lease. Section 38.15 Counterparts. This Amended and Restated Ground Lease may be executed in any number of counterparts, each of which shall constitute an original of this Amended and Restated Ground Lease, and all of which shall constitute but one Lease. Section 38.16 No Third Party Beneficiaries. Nothing in this Amended and Restated Ground Lease shall confer upon any person, other than the Parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Amended and Restated Ground Lease; provided, however, that each Approved Mortgagee, Approved Foreclosure Transferee and Approved Subsequent Foreclosure Purchaser shall be a third party beneficiary hereunder to the extent such Persons are granted rights hereunder. Section 38.17 Attorney's Fees and Expenses. In the event of any litigation between the parties, all expenses, including reasonable attorneys' fees and court costs at both the trial and appellate levels, incurred by the prevailing party, shall be paid by the non -prevailing party. The tern "attorneys' fees", as used in this Amended and Restated Ground Lease, shall be deemed to include, without limitation, any paraprofessional fees, investigative fees, administrative costs and other charges billed by the attorney to the prevailing party (including any fees and costs associated with collecting such amounts). The provisions of this Section 38.17 shall survive the expiration or any sooner termination of this Amended and Restated Ground Lease. Ground Lease -Final Page 205 Section 38.18 Invalidity of Provisions. If any provision of this Amended and Restated Ground Lease or the application of it to any Person or circumstances shall to any extent be finally determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Amended and Restated Ground Lease, and the application of such provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Amended and Restated Ground Lease shall be valid and be enforced to the fullest extent permitted by law. Section 38.19 No Conflicts of Interest. Flagstone agrees to comply with the applicable conflict of interest provisions of the Code of the City of Miami, the Miami -Dade County Code, and the laws of the State of Florida as such are amended from time to time. No member, official, or employee of the City shall have any personal interest, direct or indirect, in the Amended and Restated Agreement to Enter or the Amended and Restated Ground Lease(s), nor shall any member, official, or employee participate in any decision relating to the Amended and Restated Agreement to Enter or the Amended and Restated Ground Lease(s) which affects his or her personal interests or the interests of any other Person (as defined in the form of Amended and Restated Ground Lease(s)) in which he or she is, directly or indirectly, interested. No member, official, or employee of the City shall be personally liable to Flagstone, its successors or assigns, or anyone claiming by, through, or under Flagstone or any successor in interest to the Property, in the event of any default or breach by the City or for any amount which may become due to Flagstone, its successors, and assigns, or any successor in interest to the Property, or on any obligation under the terms of the Amended and Restated Agreement to Enter or under the Amended and Restated Ground Lease(s). Ground Lease -Final Page 206 Ground Lease -Final Page 207 IN WITNESS WHEREOF, Lessor has caused this Amended and Restated Ground Lease to be executed in its name and on its behalf by the City Manager of the City of Miami, Florida and the City Clerk of the City of Miami, Florida, and Lessee has executed this Amended and Restated Ground Lease, as of the date and year first above written. Signed, sealed and delivered LESSOR: in the presence of: Name: Name: ATTEST: City Clerk CITY OF MIAMI, a municipal corporation of the State of Florida By: , City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: , Chief Division of Risk Management City Attorney Signed, sealed and delivered LESSEE: in the presence of: FLAGSTONE ISLAND GARDENS LLC, a Delaware limited liability company Ground Lease -Final Page 208 Name: Name: By: Flagstone Miami Holdings, LLC, a Delaware limited liability company, as its sole and managing member By: Flagstone Property Group, LLC, a Delaware limited liability company, as its sole and managing member By: Name: Title: Ground Lease -Final Page 209 EXHIBIT A SKETCH OF WATSON ISLAND Aerial Photography - 2009 0 This map was created on 10/26/2011 7:42:38 AM for reference purposes only. Web Site © 2002 Miami -Dade County. All rights reserved. 308 ft Ground Lease -Final Page 210 EXHIBIT B UPLAND PARCEL Commence at a point shown marked by an 5/8" diameter iron rod and Cap Stamped F.D.O.T., shown as P.T. Sta. 25+50 on the "Official Map of Location and Survey of a portion of Section 8706, designated as part of State Road A-1-A in Dade county, Florida", prepared by the State Road Department of the State of Florida, as recorded in Map Book 56, at Page 71 of the Public Records of Dade County, Florida. Said point being the point of tangency of the original center line of the Douglas MacArthur Causeway running Easterly. and South Easterly from the Westerly limits (West Bridge) of Watson Island as shown on Sheet 3 of the State Road Department Right - of -Way Map, Section No. (8706-112) 87060-2117, revised March 25, 1959, said most Northerly curve having a radius of 1432.69 feet and a central angle of 62? 00' 00 seconds"; thence South 59? 51' 26" West departing radially from said centerline a distance of 987.36 feet to a projected Bulkhead line; thence North 17? 12' 21" West continuing along said bulkhead line a distance of 238.86 feet to the point and place of beginning; thence North 17? 12' 21" West continuing along said bulkhead line a distance of 924.70 feet to the Southerly right of way line of State Road A-1- A Douglas MacArthur Causeway; thence along said Southerly right of way line the following courses and distances; South 89? 10' 55" East, a distance of 73.08 feet; thence North 86? 44' 00" East, a distance of 67.09 feet to non -tangent curve concave to the Northeast whose radial line bears North 39? 29' 18" East having a radius of 160.00 feet and central angle of 22? 09' 33"; thence along said curve an arc length of 61.88 feet; thence South 72? 40' 15" East continuing along said Southerly right of way line a distance of 276.49 feet; to a curve concave to the Southwest having a radius of 600.00 feet and central angle of 46? 17' 39" thence along said curve an arc length of 484.79 feet to a point of tangency; thence South 26? 22' 36" East continuing along the southwesterly right of way line of State Road A-1-A, a distance of 196.59 feet; thence south 54? 07' 39" West Departing Said right of way line, a distance of 532.16 feet; thence North 35? 54' 03" West, a distance of 132.74 feet; thence South 54? 07' 39" West, a distance of 150.14 feet to the point of beginning. Ground Lease -Final Page 211 EXHIBIT C SUBMERGED PARCEL Commence at a point shown marked by an 5/8" diameter iron rod and Cap Stamped F.D.O.T., shown as P.T. Sta. 25+50 on the "Official Map of Location and Survey of a portion of Section 8708, designated as part of State Road A-1-A in Dade County, Florida", prepared by the State Road Department of the State of Florida, as recorded in Map Book 56, at Page 71 of the Public Records of Dade County, Florida. Said point being the point of tangency of the original center line of the Douglas MacArthur Causeway running Easterly and South Easterly from the Westerly limits (West Bridge) of Watson Island as shown on Sheet 3 of the State Road Department Right - of -Way Map, Section No. (8706-112) 87060-2117, revised March 25, 1959, said most Northerly curve having a radius of 1432.69 feet and a central angle of 62? 00' 00"; thence South 59? 51' 26" West departing radially from said centerline a distance of 987.36 feet to a projected bulkhead line; thence North 17? 12' 21" West along said bulkhead line a distance of 238.86 feet to the point and place of beginning; thence South 49? 32' 57" West departing said bulkhead line a distance of 550.92 feet to a point of intersection of lines of turning basin limit as established by U.S. Army Corps of engineers and position by coordinates North 527,878.62 feet, East 926135.22 feet (based on North American Datum 1983-NAC83); thence North 31? 03' 50" West, along the limits of said turning basin a distance of 428.44 feet to a point of intersection with the East right of way line of intracoastal waterway; thence North 03? 27' 54" West along said East right of way line a distance of 874.43 feet to a point of intersection with the Southerly right of way line of said Douglas MacArthur Causeway, said point of intersection being a point on a curve concave Southerly and having a radius of 10,716.59 feet, a radial line to said point bears South 01? 15' 15" East; thence run Easterly for 387.46 feet along the arc of said curve and along said Southerly right of way line, through a central angle of 02? 04' 17" to a point of tangency; .thence South 89? 10' 55" East continuing Easterly along the said southerly right of way line, a distance of 31.87 feet more or less to a point of intersection with an existing bulkhead line; thence South 17? 12' 21" East along said bulkhead line a distance of 924.70 feet to the point of beginning. Ground Lease -Final Page 212 EXHIBIT D SURVEY (To be provided upon document execution) Ground Lease -Final Page 213 EXHIBIT E DESCRIPTION OF PROJECT COMPONENTS AND AMENITIES General Description. 1. The Major Project Components, consisting of the Marina, Hotel A, Hotel B, the Retail Space and the Parking Garage. 2. A fish market (the "Fish Market"). 3. A Maritime Gallery containing a minimum of 4,000 square feet. 4. Areas of public access and assembly, as more particularly described in the Island Gardens Proposal, which shall include, without limitation, the following: a. a roof garden to contain not less than Five Percent (5%) less than the proposed amount of square feet as described in the Island Gardens Proposal with swimming pools, cabanas, and garden room for special occasion rental, which shall supply the hospitality amenities for the Hotel guests and be available to the public on a fee basis; b. salt water gardens; and c. a 100' setback to include a grand promenade along the sea wall (the "100' Setback") 5. Public Art as more particularly described in Exhibit E-1 attached hereto. 6. A boat basin for model boats adjacent to the entry boulevard for the Project. 7. Adequate facilities for passenger pick-up and drop-off by water taxi service and/or ferry service. 8. Any and all other infrastructure, landscaping and improvements which are more particularly described in the Island Gardens Proposal (it being understood, Ground Lease -Final Page 1 however, that the details concerning such infrastructure, landscaping and improvements, including any adjustments thereto, shall be as set forth in the approved Construction Plans and Specifications). II. Number of Hotel Units. 1. For purposes hereof: (i) the term "Time Share Units" shall mean those units in either or both Hotels which are allocated for Approved Time Share Licenses; (ii) the term "Time Share Users" shall mean any person having an interest in any particular Approved Time Share License, or in any entity holding a particular Approved Time Share License; and (iii) the term "Sharing Arrangements" shall mean sharing arrangements entered into by Time Share Users so as to permit the shared usage of any Tirne Share Unit pursuant to any Approved Tirne Share License. 2. The total number of units in both Hotels (other than Time Share Units) shall not exceed 500 plus 5% in the aggregate. The plans submitted with the application for the Major Special Use Permit issued in connection with the Project show 120 units in Hotel A and 380 units in Hotel B (other than Time Share Units). If such total number of units in each Hotel (other than Time Share Units) is changed, and such change results in a substantial modification under the Major Use Special Permit, such change shall be subject to all required approvals of all applicable Governmental Authorities. City Manager. 3. Lessee shall be obligated to have Time Share Units. The Time Share Units shall be in addition to those units described in Paragraph II. 2 above. The total number of Time Share Units in both Hotels shall not exceed 105 in the=aggregate. Subject to the foregoing maximum amount for both Hotels combined, Lessee shall have the right to Ground Lease -Final Page 2 determine the number of Time Share Units in each Hotel, and shall have the right, if it so elects, to have all the Time Share Units in one Hotel and no Time Share Units in the other Hotel. 4. Each Time Share Unit shall be limited to a specified number of Approved Time Share Licenses as determined by Lessee. The Approved Time Share Licenses shall not be for overlapping periods of time (i.e., for any particular interval of time, there shall be only one Approved Time Share License issued as to any particular Time Share Unit). Furthermore, no "locked off' portions of the Time Share Units will be permitted to be separately conveyed or rented out, and each Approved Time Share License shall be for the entire applicable Time Share Unit; provided, however, that Time Share Users shall be permitted to enter into Sharing Arrangements. By way of example, if a particular Time Share Unit has a foyer and two wings, and certain Time Share Users want to use the Time Share Unit on the same weekend, they may enter into a Sharing Arrangement to allow some of the Time Share Users to use one wing while the other Time Share Users use the other wing. 5. It is recognized that cabana, spa and fitness and other Hotel facilities and amenities may or may not be located within the structure of the Hotels. III. Marina. The Marina Component shall be as described in Composite Attachment 3. IV. 100' Setback. Lessee may construct and operate within the 100' Setback such facilities and improvements as are approved to be within the 100' Setback pursuant to the Major Use Special Pen -nit for the Project and any and all other applicable Project Approvals (including any such Ground Lease -Final Page 3 Project Approvals required by the City in its municipal capacity). Such facilities and improvements may be constructed and operated within the 100' Setback without the prior written consent of Lessor (in its capacity as lessor under this Amended and Restated Ground Lease) or the City Manager, subject only to the City Manager's approval of specific Construction Plans and Specifications for same in accordance with the City Manager Approval Procedures. The Parties acknowledge and agree that in no event shall the foregoing waiver of Lessor's right, in its capacity as lessor under this Amended and Restated Ground Lease, to object or consent to the construction and operation of such facilities and improvements within the 100' Setback be deemed to be a waiver of any and all rights of Lessor (or any of its applicable planning boards or agencies) to object to same in its municipal or regulatory capacity. V. Measurement of Retail Space. The 221,000 square feet of Retail Space shall be calculated based on "Usable Area" within each store under the Standard Method for Measuring Floor Area in Office Buildings (American National Standard) approved on June 7, 1996 by American National Standards Institute, Inc. and the Building Owners and Managers Association International (ANSI/BOMA Z65.1-1996); it being understood and agreed, however, that in addition to such 221,000 square feet: (i) there may be common area factor Lwhich shall mean any area outside of a store or restaurant) of up to Twenty Five Percent (25%) of such 221,000 square feet; and (ii) such Twenty Five Percent (25%) common area factor shall not be permitted to include common areas not directly related to the Retail Space (i.e., it shall exclude general Project common areas). Ground Lease -Final Page 4 DEC-04-2092 KED .09:43 .N Jeff IEDM EXHIBIT E-1 DESCRIPTION OF PUBLIC ART FAX KO. 7. 01 AWARDS 1797 Osalr R. Gm, F.,dah, CKwriiriw Mrtmrial FoodadoA haurrbp PUBLIC COMMISSIONS Per_fotaric AriS lf,',0iDade Art 1. PAS& Naw F:601,x SELeCTED POBLIC COLLECTIONS AM:ohs-Art Lthie 11.5,4,4: Alt rallaa'AiVII;Mi 1.41Ndit ./in; Alakra Co .0aturel Arts Gretworrites, MeAio Op. rigt Ad fxrrov, Heagnif.51:71,114 Camir.4, AfarAubluan CvLoabg4.Alw.s. 4,1 N )1,k. NY. 1-ltrAborx MRsaott rad Striptftre CAldc; Warbirocr,flC L.:4711.iPpvilthrgariogaisF&4 Ao;iRe, Germao Migsrf Mmiewn. MARM gun, AiA74ConiemparlivecA -ViwarrIri, A. Td,15 del3dIem CarcaL, Voudyld Ikrxie:ov RhodfleaNd ith,a, Dad4g, Protidlgo scumd Cod!,,,parragAr:. Sa ,1444aa or khdAr• An; K Nd,Jo. e Vau P4 Iked, P:onda .Pb&de4thia Mve.,,x4 Aa, PJAM:Aalla itDamix Ar! M bizom Mxarta PALIrd of Arn.rirrn Aa, PAGE 1/3' RX)D0T1/14)20029:47:02A1 [Eastm Standard Tim) ' 6VRIAXSERVEM5DRIS:1167' CSID:' DURATION (miniss):01•12 Ground Lease -Final Page 5 DEC-04-20C2 (ET' 09!43 AN 0 • • INCHES OM DOE O FAX KO. .. 02 An latcmarionally acclaimed artist. her work is in major pnblic c L'ecanms including the hictropcli- tan Mu.scwu of Art in New York; the Art j nsttture of Chicago, Virgnia Mueuc cf Firtr. Arcs, and thn >`lecnna I)esi t Mureurn •Smichrooia-•t Tts,Li• tuuu:,, New i'osic. Her acd,arred puhbc arc Metes include Radiant Site, a 150 fe nt Inng w,L corn_ posedof 11,000 gold lustre rhea at the Herald Square Subway corr,pterrs New YYIt, Codex Sacramento at the Su'.ramenm Central Library, and A Walk on the Btooh, the celebrated 22,000 S' floor of C;onco•_rse A, tivii i International Aip wt. Oka Donal- has paesinipated in saummee of distinguished ealibititns, among then: Fotmcd by Fire, Carnegie Museum of Arc, Pittsburgb; De- sign Resource, Cooper -Hewitt Museum, Ne., York; L,idustrial Elegance, Ctgcnheiin t.9uscurt, Newyork; Repert, PJatocrl M1laeum of Rine Arta, de Janeiro, Err^ail; and Archixotruc and Ai., Interr-adona: Contemporary Art 1 ai , Yokohama. Japan. A retrospective of Ma T)oner',i wilt is ba inkorganhedby-thclists viau:ziiit Miami Beath and is scheduled to travel to muaeurn in the United 5ra.tes, Eutopt, and Lan- America. Het work has bccn reviewed by ' _c New.Yark Times, The Wall et. j•-unal,The New Yorker, the Washington. Pcs. , Metropolis Magazine and the Los An gcles Times. Oka Dotter is :he rer:iTli- enr or a number of awards and gran rs The Kie,e Fetenlatior, The Neu York State Council for the Arta, and -the Lydia 1Vinatnn Mo8,•n Prima at tie Detnu: taut, of tht A. A narivr. r.f Miami Beach, Oha Doncr received her BS/Design and *.f.Pri from rhe university of Michigan. Ir.1994 she was honored with t. e Dit- rin2i;hed Alumnus Award From th,: School c f Ali, A Trustee of The ulfsonian-1•1 U in Miaoi Beath, ahc alto acr,ves or. the Advisor}, Council o= the (AM -stains of Mid.igau SSr!:uvl of Ar; PACE 213 t RCVD AT 12'4E2D021E41:02 AN [Extern Standard Time]' ViR:FAXSERUERA 5' DNIS:7109' CSID: t DURATION (mm'ssi:02.12 Ground Lease -Final Page 6 b DEC-O4-20C2 09:44 AN FAY KO. 7. 03 Vlardaea C..i•,ra cr-mds the bouutlaiet Ir9di11:Maf asst;cited with the medium of phorograt h . One of her mole celebrated woaks Anus Copt n'o.'s, a ermmiee;on from she Kam; hide Au in Pu•;l;c P;acci Proo;.ns 1,cr ltuuten:l' De vines u itfiami International ?.:rpoeri Con- course T2 Lsrng 1ri evuung atrium ;211sa mall 22 a base for the work. the ariet crnteri a rem.] d.rt rr:lr`-ts Lprn the udea:: of eearcl anal d.spLecm;emt o+><J rheir,sie,:firutce to tar_ :nitre. The 98 pr.nel, IO' x all' saarPlaited photograplt:c mt_ral on.¢la,,a was completed un)aa•.ury 199.5. A rxip:.. t c. + C.itcz> Fc7tra•sh:p. a National 1_'ndcµmen: for the Ant r z,.rd and a I'`•alreright- Hays Grant, her artwork has been ttnde$• exhthrrari in the United Srn tcs and altto.a Her .-o.L- as included ea :nc permanent ,.vliectirins of rke Miami Arc Museum, the Centre George Pompidou, Putt, Museum of Madera Art. New York, Intematinnsf f:Piller of paoenynaphy, Nzv.!'ork, Nem York, the Nx:urr. of Contompcnnty A:':, Ca;cagi, Cernea for Cs>a:ir•c Photograph.); •luesott, Arizona, Museum of Morlcre Ar., San Frrneucr', Centro Cultural An! Cnnrrriporinen, Wet,:icD City. Lor Angeles County hfuse.em of .let, I.;aAngeles, Cni;fornn PAGE Gil 'RUG AT 1V4120029:41:02 AM (Extern Standard Time]' EVR:FAXSERVERHQ IIIE:i1Q0' CSID:' DURATIQH (rmn•ss:02.12 Ground Lease -Final Page 7 �J EXHIBIT F CONCEPTUAL SITE PLAN T Ili '€1 fF'?�lcE€a9pE}��ay [[ fr��lljFf e�F �` sl_. e9 fF3�°pl[ d�y 7Pl itiiiitgl0 F8,LTiRTflJftf UI Fi�:sea`se;Pi$(T'S�sT � 1. �Yd LO'lliti,49 411 al 'i aFt tr [ {{ �4 l,ail}'tll�1'1t t`zzpppp ME I.1 it III=filltii }kjif: d � l{16� d��t4S`Fr.lYti�`A�1?C }17 jig :fl f l i�Fl111' 1;1lrli '' +i�i• ; Ground Lease -Final Page 8 1,1Pfi11:1.: 11141i t11,11 'i I '111jull'i t1t1kji 1‘r 1!1 [ill TM! • •• i riptippv..-- Hilfil r 1.1.1V111.k nun! ...,1 1.,,•:0, ...., • 0 c•-t,t14 f ITI:i41 14:1 1 . 1 till's!: -...---.11.1. ttl,/ 1 r:i 1 rE /1111-114,..t, /10,tz • /:-,L •-, :.',E/, III I tl t : • • litlitrifttisfhl 9lL141',01 0 • ;is > t 1iff t I: • rn 1/1 Ground Lease -Final Page 9 111; tprial 1111 ilatt• 111tItiql '111 iilt fl 41 ;1„1 Ground Lease -Final Page 10 Ground Lease -Final Page 11 r, -1T1l1�i17T1TI l Ground Lease -Final Page 12 • Fte tF ill, T Pis F,�, F �. � .� ,� pip Ci, i b r F F " ."II tti Erll61(1N111,1f, dZil •AttrSF�iC�C°Cihfq ilri( q sti ff qt 41! . 1111.Y U F11 t ECP"J 6 g 'nT�¢ l3FFPY Z:i3 � } fP. t.t•t ..te`d3 Ftttt•fs itth F3f +Ce C',� jp fist qt�y� t C rE•F" f ri o r tt? t'e$�I:eltiq^i 611€ AEif 4q,o gle9 14114 Ground Lease -Final Page 13 Ground Lease -Final Page 14 G • . o Ground Lease -Final Page 15 Ground Lease -Final Page 16 o � R � a• n n c C � a O n 9 4• o � o- an w a`, � � �. -a . = Pam c� fl. i g � A EE a c �. 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As used in this Lease, the term "Gross Revenues" shall have the respective meanings ascribed to it in this Exhibit G with respect to the applicable Project Componentsdescribed below, subject in each case to: (i) the specific exclusions listed below with respect to each Project Component; and (ii) the General Exclusions listed below (collectively, the "Exclusions"). I. Hotels. A. With respect to the Hotels, the term "Gross Revenues" shall mean all Hotel Operational Revenues and all Hotel Space Lease Rents, as hereinafter defined. If a Hotel is not subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to such Hotel or portion thereof, to all such Hotel Operational Revenues and Hotel Space Lease Rents received by Lessee. If a Hotel or any portion thereof is subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to such Hotel or portion thereof, to all such Hotel Operational Revenues and Hotel Space Lease Rents received by the applicable Major Subtenant. B. The term "Hotel Operational Revenues" shall mean all receipts, revenues, income, and proceeds of sale of every kind or nature derived directly or indirectly from the operation of the Hotels (including all departments and parts thereof), and all services provided at or from the Hotel and all facilities of the Hotel (other than such receipts, revenues, income and proceeds attributable to the operation by Space Tenants of the Hotels of their respective businesses), subject to the applicable Exclusions. 1. Such term shall include, but not necessarily be limited to, those Hotel Operational Revenues received by Lessee or the applicable Major Subtenant, permitted licensees or concessionaires, whether for cash or credit (whether collected or not) as applicable, from the following (subject, in each case, to the applicable Exclusions) rentals of Hotel guest rooms Ground Lease -Final Page 1 (including any Approved Time Share Licenses being operated as guest rooms) and all revenues attributable to the operation of Approved Time Share Licenses as Hotel guest rooms including but not limited to: food and beverage sales or operations; bar and lounge sales or operations; rentals of meeting room facilities; mechanical or other vending machines; pay telephones; stamp machines; music machines; or amusement machines; parking; wholesale and retail sales of merchandise to include any orders taken on the Property although filled elsewhere and whether made by store personnel, any "lay -away" sales or like transaction or otherwise involving the extension of credit, shall be treated as a sale for the full price at the time of the transaction, irrespective of the time of payment or when title passes; and service charges to Hotel guests and patrons; proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to Hotel Operational Revenues, to the extent not paid over to Lessor; any amount recovered in any legal action or proceeding or settlement thereof which arose out of the operation of the Hotel other than with respect to the Space Leases at the Hotel, to the extent such amount is properly included in gross revenues pursuant to the Uniform System; and any deposit not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) all taxes required by law to be collected from guests or patrons of the Hotels or with respect to goods or services sold at or from the Hotel, such as sales taxes or "bed" taxes (but only to the extent -such taxes are actually remitted to duly -constituted taxing authorities having jurisdiction); (ii) tips and gratuities collected for payment to employees of the Hotels (but only to the extent such amounts are actually paid to employees); and the other general exclusions described below. Ground Lease -Final Page 2 C. The term "Hotel Space Lease Rents" shall mean all rents actually paid by Space Tenants permitted licensees or concessionaires, whether for cash or credit (whether collected or not) of the Hotels under their respective Space Leases to Lessee or the applicable Major Subtenant, as applicable. 1. Such term shall include, but not necessarily be limited to: (i) "base rents" and "percentage rents" payable under such Space Leases; (ii) proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to such Space Leases, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof in connection with such Space Leases, to the extent such amount is properly included in gross revenues pursuant to the Uniform System; (iv) income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; and (iv) any deposits not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) any amounts received by the landlord under any applicable Space Lease as payment for real estate and personal property taxes and assessments, common area and maintenance charges and insurance premiums, if same are separately stated in such Space Lease (but only to the extent of the actual costs thereof paid by the landlord thereunder); (ii) any reimbursements due to the landlord under any applicable Space Lease for costs incurred or sums advanced by such landlord, whether or not same are designated as "additional rent"; (iv) any taxes required by law to be collected from Space Tenants at the Hotels on account of any Hotel Space Lease Rents or other rentals payable by such Space Tenants; (v) any credit card commissions payable on account of any payment of rents made by Ground Lease -Final Page 3 credit card provided such commissions will not provide a source of income revenue to the operator; and (vi). to the extent applicable, the General Exclusions described below. D. For purposes of the Gross Revenues definition for Hotels, the term "Uniform System" refers to the latest edition (currently the Ninth Revised Edition) of the Uniform System of Accounts for the Lodging Industry as adopted by the American Hotel and Lodging Association, from time to time. II. Approved Time Share Licenses. With respect to Approved Time Share Licenses, the teen "Gross Revenues" shall mean all proceeds with respect to each First Sale (as defined in Section 5.3(b) of the Lease), after deducting therefrom: (i) repayment of the allocated capital cost (including the required return); and (ii) marketing program costs. III. Marina. A. With respect to the Marina, the tern "Gross Revenues" shall mean all Marina Operational Revenues and all Marina Space Lease Rents (if any), as hereinafter defined. If the Marina or any portion thereof is not subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to any portion of the Marina not so subleased, to all such Marina Operational Revenues and Marina Space Lease Rents received by Lessee. If the Marina or any portion thereof is subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to any portion of the Marina so subleased, to all such Marina Operational Revenues and Marina Space Lease Rents received by the applicable Major Subtenant; provided, however, that if any Space Tenant with respect to the Marina is an Affiliate of Lessee or such Major Subtenant, then, as to the area covered by the Space Lease for such Ground Lease -Final Page 4 Space Tenant, the term "Gross Revenues" shall refer to the Marina Operational Revenues of such Space Tenant. B. The tern "Marina Operational Revenues" shall mean all receipts, revenues, income, and proceeds of sale of every kind or nature derived directly or indirectly from the operation of the Marina (including all departments and parts thereof), and all services provided at or from the Marina and all facilities of the Marina (other than such receipts, revenues, income and proceeds attributable to the operation by Space Tenants, if any, of the Marina of their respective businesses), subject to the applicable Exclusions. 1. Such term shall include, but not necessarily be limited to, those Marina Operational Revenues received by Lessee or the applicable Major Subtenant, permitted licensees or concessionaires, whether for cash or credit (whether collected or not) as applicable, from the following (subject, in each case, to the applicable Exclusions): (i) rentals and revenues of all kinds payable by non-commercial guests, licensees and/or occupants of boat slips, storage or other space at the Marina (including any Approved Time Share Licenses at the Marina being operated as "guest" facilities) to include by reason of orders taken at any location, whether on the property or elsewhere and regardless of the location the order is filled and/or whether the order is made by personnel or other mechanism or devices; (ii) "profits" attributable to the operation of Approved Time Share Licenses as "guest" facilities in addition to the rental amounts described in clause (i) above (i.e., any assessments, service charges or other charges, fees or income collected from the owners of Approved Time Share Licenses, which exceed the total of: (A) common expenses or other expenses attributable to the operation of such Approved Time Share Licenses (similar to condominium assessments); and (B) other expenses attributable to the operation of any such Approved Time Share Licenses as "guest" facilities pursuant to the generally accepted Ground Lease -Final Page 5 accounting principles applied on a consistent basis ("GAAP"); (iii) gasoline sales; food and beverage sales or operations; facilities or property rentals; income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; income from parking; wholesale and retail sales of merchandise to include any orders taken on the Property although filled elsewhere and whether made by personnel or vending machine, any "lay -away" sales or like transaction or otherwise involving the extension of credit, shall be treated as a sales for the full price at the time of the transaction, irrespective of the time of payment or when title passes; and service charges to Marina guests and patrons; (iv) revenues from any Gambling Boats (as defined in Exhibit N) operated directly by Lessee or a Major Subtenant or Direct Space Tenant which is an Affiliate of Lessee; (v) proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to Marina Operational Revenues, to the extent not paid over to Lessor; (vi) any amount recovered in any legal action or proceeding or settlement thereof which arose out of the operation of the Marina other than with respect to the Space Leases at the Marina, to the extent such amount is properly included in as an income item under GAAP; and (vii) any deposits not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) all taxes required by law to be collected from guests or patrons of the Marina or with respect to goods or services sold at or from the Marina, such as sales taxes or "bed" taxes (but only to the extent such taxes are actually remitted to duly -constituted taxing authorities having jurisdiction); (ii) tips, service charges and gratuities collected for payment to employees of the Marina (but only to the extent such amounts are actually paid to employees); (iii) proceeds from the sale or other disposition of capital assets Ground Lease -Final Page 6 or other items not in the ordinary course of the Marina's business, provided the revenues received from such disposition of items are not related to a "special event", "boat show", or other type of revenue making event conducted on -site; (iv) proceeds of loans; (v) proceeds of insurance, other than from any "business interruption", "business income", "use and occupancy" or other loss of income insurance and provided such proceeds will not provide a source of income revenue to the operator; (vi) credit card commissions provided such commissions will not provide a source of income revenue to the operator; (vii) travel agency commissions provided said commissions are not derived from any Lessee, its permitted licensees or concessionaires and such commissions will not provide a source of income revenue to the operator; (viii) interest received or accrued with respect to the funds in any reserve or operating accounts of the Marina; and (ix) the General Exclusions described below. C. The term "Marina Space Lease Rents" shall mean all rents actually paid by Space Tenants permitted licensees or concessionaires, whether for cash or credit (whether collected or not) of the Marina under their respective Space Leases to Lessee or the applicable Major Subtenant, as applicable. For purposes hereof, such Space Leases shall include Space Leases for any portion of the Marina on the Upland and any Space Leases for commercial operations on the Submerged Land, including, but not necessarily limited to, Space Leases for Gambling Boats (other than a Direct Space Lease with a Direct Space Tenant which is an Affiliate of Lessee). 1. Such tern shall include, but not necessarily be limited to: (i) "base rents" and "percentage rents" payable under such Space Leases; provided, however, that there shall be deducted from each rental payment an amount equal to the cost of any tenant improvements paid for by the landlord amortized over the then applicable tern of the applicable Space Lease; (ii) Ground Lease -Final Page 7 proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to such Space Leases, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof in connection with such Space Leases, to the extent such amount is properly included in income pursuant to GAAP; (iv) income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; and (iv) any deposits not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) any amounts received by the landlord under any applicable Space Lease as payment for real estate and personal property taxes and assessments, common area and maintenance charges and insurance premiums, if same are separately stated in such Space Lease (but only to the extent of the actual costs thereof paid by the landlord thereunder); (ii) any reimbursements due to the landlord under any applicable Space Lease for costs incurred or sums advanced by such landlord, whether or not same are designated as "additional rent"; (iii) any taxes required by law to be collected from Space Tenants at the Marina on account of any Marina Space Lease Rents or other rentals payable by such Space Tenants; (iv) any credit card commissions payable on account of any payment of rents made by credit card provided such commissions will not provide a source of income revenue to the operator; and (v) to the extent applicable, the General Exclusions described below. IV. Retail Space. A. With respect to the Retail Space, the term "Gross Revenues" shall mean all Retail Operational Revenues (if any) and all Retail Space Lease Rents, as hereinafter defined. If the Retail Space or any portion thereof is not subleased pursuant to a Major Sublease, then the Ground Lease -Final Page 8 term "Gross Revenues" shall refer, as to any portion of the Retail Space not so subleased, to all such Retail Operational Revenues and Retail Space Lease Rents received by Lessee. If the Retail Space or any portion thereof is subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to any portion of the Retail Space so subleased, to all such Retail Operational Revenues and Retail Space Lease Rents received by the applicable Major Subtenant; provided, however, that if any Space Tenant with respect to the Retail Space is an Affiliate of Lessee or such Major Subtenant, then, as to the area covered by the Space Lease for such Space Tenant, the term "Gross Revenues" shall refer to the Retail Operational Revenues of such Space Tenant. B. The term "Retail Operational Revenues" shall mean all receipts, revenues, income, and proceeds of sale, if any, of every kind or nature derived directly or indirectly from the operation of the Retail Space (including all departments and parts thereof), and all services provided at or from the Retail Space and all facilities of the Retail Space (other than such receipts, revenues, income and proceeds attributable to the operation by Space Tenants, if any, of the Retail Space of their respective businesses, subject, however, to the proviso in Paragraph IV.A above as to Space Tenants which are Affiliates of Lessee or the Major Subtenant for the Retail Space), subject to the applicable General Exclusions. 1. Such term shall include, but not necessarily be limited to, those Retail Operational Revenues received by Lessee or the applicable Major Subtenant, permitted licensees or concessionaires, whether for cash or credit (whether collected or not) as applicable, from the following (subject, in each case, to the applicable General Exclusions): (i) food and beverage sales or operations; facilities or property rentals; income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or Ground Lease -Final Page 9 amusement machines; income from parking; wholesale and retail sales of merchandise to include any orders taken on the Property although filled wlsewhere and whether made by store personnel or vending machine, any "lay -away" sales or like transaction or otherwise involving the extension of credit, shall be treated as a sale for the full price at the time of the transaction irrespective of the time of payment or when title passes; and service charges to Retail Space patrons; (ii) proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to Retail Space Operational Revenues, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof which arose out of the operation of the Retail Space other than with respect to the Space Leases within the Retail Space, to the extent such amount is properly included in as an income item under GAAP; and (iv) any deposit not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) all taxes required by law to be collected from patrons of the Retail Space or with respect to goods or services sold at or from the Retail Space, such as sales taxes (but only to the extent such taxes are actually remitted to duly - constituted taxing authorities having jurisdiction); (ii) tips, service charges and gratuities collected for payment to employees of the Retail Space (but only to the extent such amounts are actually paid to employees); (iii) proceeds from the sale or other disposition of capital assets or other items not in the ordinary course of the business of operating the Retail Space; (iv) proceeds of loans provided such proceeds will not provide a source of income revenue to the operator; (v) proceeds of insurance, other than from any "business interruption", "business income", "use and occupancy" or other loss of income insurance and provided such proceeds will not provide a source of income revenue to the operator; (vi) credit card commissions Ground Lease -Final Page 10 provided such commissions will not provide a source of income revenue to the operator; and (vii) the General Exclusions described below. C. The term "Retail Space Lease Rents" shall mean all rents actually paid by Space Tenants, permitted licensees or concessionaires, whether for cash or credit (whether collected or not) of the Retail Space to the landlord under their respective Space Leases. 1. Such term shall include, but not necessarily be limited to: (i) "base rents" and "percentage rents" payable under such Space Leases; provided, however, that there shall be deducted from each rental payment an amount equal to the cost of any tenant improvements paid for by the landlord amortized over the then applicable teen of the applicable Space Lease; (ii) proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to such Space Leases, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof in connection with such Space Leases, to the extent such amount is properly included in income pursuant to GAAP; and (iv) income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; and (v) any deposits not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) any amounts received by the landlord under any applicable Space Lease as payment for real estate and personal property taxes and assessments, common area and maintenance charges and insurance premiums, if same are separately stated in such Space Lease (but only to the extent of the actual costs thereof paid by the landlord thereunder); (ii) any reimbursements due to the landlord under any applicable Space Lease for costs incurred or sums advanced by such landlord, whether or not same are designated Ground Lease -Final Page 11 as "additional rent"; (iii) any taxes required by law to be collected from Space Tenants within the Retail Space on account of any Retail Space Lease Rents or other rentals payable by such Space Tenants; (iv) any credit card commissions, provided such commissions will not provide a source of income revenue to the operator, payable on account of any payment of rents made by credit card; and (v) to the extent applicable, the General Exclusions described below. V. Parking Garage. A. With respect to the Parking Garage, the term "Gross Revenues" shall mean all Parking Operational Revenues and all Parking Lease Rents, as hereinafter defined. If the Parking Garage or any portion thereof is not subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to any portion of the Parking Garage not so subleased, to all such Parking Operational Revenues and Parking Lease Rents received by Lessee. If the Parking Garage or any portion thereof is subleased pursuant to a Major Sublease, then the term "Gross Revenues" shall refer, as to any portion of the Parking Garage so subleased, to all such Parking Operational Revenues and Parking Lease Rents received by the applicable Major Subtenant; provided, however, that if any Space Tenant with respect to the Parking Garage is an Affiliate of Lessee or such Major Subtenant, then, as to the area covered by the Space Lease for such Space Tenant, the tenn "Gross Revenues" shall refer to the Parking Operational Revenues of such Space Tenant. B. The term "Parking Operational Revenues" shall mean all receipts, revenues, income, and proceeds of sale, if any, of every kind or nature derived directly or indirectly from the operation of the Parking Garage, and all services provided at or from the Retail Space and all facilities of the Parking Garage (other than such receipts, revenues, income and proceeds Ground Lease -Final Page 12 attributable to the operation by Space Tenants, if any, within the Parking Garage of their respective businesses), subject to the applicable Exclusions. 1. Such term shall include, but not necessarily be limited to, those Parking Operational Revenues received by Lessee or the applicable Major Subtenant, permitted licensees or concessionaires, whether for cash or credit (whether collected or not) as applicable, from the following (subject, in each case, to the applicable Exclusions): (i) parking charges or fees and service charges payable by patrons and users of parking spaces and other facilities within the Parking Garage, pursuant to any subleases, licenses or other arrangements for the use of same, regardless of the duration of the term of such sublease, license or other arrangement (collectively, "Parking Licenses"), excluding, however, any portion of such charges or fees or other sums collected by or paid over to any third -party manager or operator of the Parking Garage or any portion thereof; facilities or property rentals; and income from vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; (ii) proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to Parking Garage Operational Revenues, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof which arose out of the operation of the Parking Garage other than with respect to the Space Leases within the Parking Garage, to the extent such amount is properly included in as an income item under GAAP; and (iv) any deposit not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) all taxes required by law to be collected from patrons or users of the Parking Garage or with respect to goods or services sold at or from the Retail Space, such as sales taxes (but only to the extent such taxes are actually Ground Lease -Final Page 13 remitted to duly -constituted taxing authorities having jurisdiction); (ii) tips, service charges and gratuities collected for payment to employees of the Parking Garage (but only to the extent such amounts are actually paid to employees); (iii) proceeds from the sale or other disposition of capital assets or other items not in the ordinary course of the business of operating the Parking Garage provided such sales will not provide a source of income revenue to the operator; (iv) proceeds of loans provided such proceeds will not provide a source of income revenue to the operator; (v) proceeds of insurance, other than from any "business interruption", "business income", "use and occupancy" or other loss of income insurance and provided such proceeds will not provide a source of income revenue to the operator; (vi) credit card commissions provided such commissions will not provide a source of income revenue tothe operator; and (vii) the General Exclusions described below. C. The tern "Parking Lease Rents" shall mean all rents actually paid by Space Tenants of the Parking Garage under their respective Space Leases to Lessee or the applicable Major Subtenant permitted licensees or concessionaires, whether for cash or credit (whether collected or not), as applicable. For purposes hereof, the term "Space Lease" includes, but is not necessarily limited to, any sublease or other arrangement pursuant to which all or a portion of the Parking Garage is leased by Lessee or the applicable Major Subtenant to another Person which operates parking facilities within the Parking Garage. For purposes hereof, the term "Space Lease" does not include any Parking License. 1. Such term shall include, but not necessarily be limited to: (i) "base rents" and "percentage rents" payable under such Space Leases; provided, however, that there shall be deducted from each rental payment an amount equal to the cost of any tenant improvements paid for by the landlord amortized over the then applicable term of the applicable Space Lease; (ii) Ground Lease -Final Page 14 proceeds from any "business interruption", "business income", "use and occupancy" or other loss of income insurance with respect to such Space Leases, to the extent not paid over to Lessor; (iii) any amount recovered in any legal action or proceeding or settlement thereof in connection with such Space Leases, to the extent such amount is properly included in income pursuant to GAAP; and (iv) income from mechanical or other vending machines, including but not limited to, pay telephones, stamp machines, music machines, or amusement machines; and (v) any deposits not refunded. 2. Such term shall exclude, or if included shall be deducted therefrom (but only to the extent they have been included), the following: (i) any amounts received by the landlord under any applicable Space Lease as payment for real estate and personal property taxes and assessments, common area and maintenance charges and insurance premiums, if same are separately stated in such Space Lease (but only to the extent of the actual costs thereof paid by the landlord thereunder); (ii) any reimbursements due to the landlord under any applicable Space Lease for costs incurred or sums advanced by such landlord, whether or not same are designated as "additional rent"; (iii) any taxes required by law to be collected from Space Tenants within the Parking Garage on account of any Parking Lease Rents or other rentals payable by such Space Tenants; (iv) any credit card commissions payable on account of any payment of rents made by credit card provided such commissions will not provide a source of income revenue to the operator; and (v) to the extent applicable, the General Exclusions described below. VI. Other Project Components. To the extent that there is any Project Component not included in the foregoing categories, the calculation of Gross Revenues shall be treated in the same manner as the category Ground Lease -Final Page 15 which is closest in character to the particular Project Component and with such modifications as are appropriate, all as mutually agreed upon by Lessor and Lessee reasonably and in good faith. VII. General Exclusions. A. The term "Gross Revenues" shall in no event include any of the following items: (i) exchanges of merchandise between different locations of Lessee or Major Subtenants or Space Tenants where such exchanges are made solely for the operation of such Person's business and not for the purpose of consummating a sale which has been made at, in, or on the Property; (ii) returns to shippers and manufacturers for credit; (iii) sale of trade fixtures or operating equipment after use thereof in the conduct of Lessee's or any other Person's business on the Property; (iv) all sums and credits received in settlement of claims for loss or damage to merchandise and all credit company charges; (v) proceeds from any financing, sale or assigmnent of the Leasehold Estate, any Major Subleasehold Estate, or any portion thereof or interest therein, or any other similar transaction; (vi) collection of insurance proceeds; (vii) collection of Condemnation Awards; (viii) monies that are collected for events that are done for charities wherein the amounts collected are paid to the charitable sponsor or not -for -profit organizations; and (ix) any rebates, tax credits (including, but not limited to, those described in Section 34.4) or other credits, direct payments or other incentives of any kind given by any Governmental Authority or otherwise authorized by Applicable Laws, including, but not limited to, any of the foregoing authorized pursuant to the State of Florida Qualified Target Industry Tax Refund program. B. Gross Revenues shall be reduced by the following items: (i) amounts of any refunds or allowances made on merchandise claimed to be defective or unsatisfactory, provided that such amounts had been previously included as part of Gross Revenues (but if such refunds, Ground Lease -Final Page 16 allowances or discounts are in the form of credits to customers, such credits shall be included in Gross Revenues when issued); (ii) uncollectible credit accounts (those accounts which are more than one hundred eighty (180) days delinquent), provided that such amounts are included in Gross Revenues upon payment, if made; and (iii) all reasonable costs of collection associated with collecting Gross Revenues. VIII. Rentals. As used in this Exhibit G, the term "rents" shall be deemed to include any lump -sum payments or series of payments (regardless of whether the same is classified as rent or otherwise) made in consideration of the opportunity to lease or enter into a concession or similar arrangement. IX. No Double Counting. Lessee may from time to time establish facilities or perform services on the Property (e.g., master laundry facilities) for which Major Subtenants, Space Tenants and/or customers, guests, invitees and other users (collectively, "Users") are charged. Such services and facilities are hereinafter collectively referred to as "Direct Lessee Services". The charges by Lessee for such Direct Lessee Services are hereinafter referred to as "Direct Lessee Charges". The Parties acknowledge and agree that Major Subtenants, Space Tenants or other Persons may pass on the cost of Direct Lessee Charges to other Persons, including other Space Tenants and Users, for services and facilities which are the same or substantially the same as the Direct Lessee Services (collectively, "User Services"), either with or without a surcharge or other additional charges. The amounts charged for such User Services are hereinafter collectively referred to as "User Charges". In such cases, User Charges shall (to the extent they are covered by the definition of Ground Lease -Final Page 17 Gross Revenues above) be included in the calculation of Percentage Rent, and the corresponding Direct Lessee Charges shall be excluded from the calculation of Percentage Rent. Ground Lease -Final Page 18 EXHIBIT H DEFINITION OF MARINA; MARINA APPROVAL PROCEDURES Definition of Marina Component: The "Marina Component" shall be constructed as and shall provide the necessary services as other marinas accommodating the quality and services of the proposed tenants of the mega -yacht facility and must include among other things: (i) fractional ownership provided that the same can be structured as an Approved Time Share License in accordance with State law requirements; (ii) slips, dockage, or other accommodations for (in addition to other marine vessels) water taxis, as well as amphibious aircraft, seaplanes, and other air-sea amphibious craft (so long as such amphibious aircraft, seaplanes, and other air-sea amphibious craft are not brought or allowed upon the Upland Parcel of the Property); (iii) the 100-foot Setback improvements constructed within the 100-foot Setback which shall include only and be limited to a fish market and dock master facilities. From Section 7. 7. Of the Amended and Restated Agreement to Enter: Marina Approvals. Flagstone has obtained its required Marina Approvals from the County and Flagstone shall use its "best efforts" (as such term is defined below) to maintain in full force and effect throughout the term of Amended and Restated Agreement to Enter related to the Marina Component and throughout the term of the Amended and Related Ground Lease for the Marina Component all permits and approvals from Governmental Authorities (collectively, the "Mega -Yacht Marina Permits") which are required to construct and operate a marina substantially similar in size and capacity as the marina depicted in the Island Gardens Proposal (a "Mega -Yacht Marina"). If deemed necessary or desirable by the City Manager, any applications for renewals for Mega -Yacht Marina Permits shall be made with the City as the named applicant or co -applicant, as required by law. In the event Flagstone is able to maintain in full force and effect all of the Mega -Yacht Marina Permits as a condition precedent to executing the Ground Lease for the Marina Component, then the term "Marina" as used in the Ground Lease shall mean and refer to such Mega -Yacht Marina and the Marina Component (as defined above and in Composite Attachment 3 hereto), and Flagstone shall develop and operate such Mega -Yacht Marina subject to and in accordance with the terms and conditions of the Ground Lease for the Marina Component. 7.7.1 Best Efforts. For purposes hereof, the term "best efforts" shall mean that Flagstone shall take all of the following actions: 7.7.1.1 Flagstone has made and shall continue to make good faith efforts, including expending commercially reasonable amounts of funds, and use all due diligence (including retaining consultants, professionals and experts and taking their advice) in pursuing and in continuing to maintain in full force and effect throughout the term of the Amended and Restated Agreement to Enter relating to the Marina Component and throughout the term of the Ground Lease related to the Marina Component, all necessary Mega -Yacht Ground Lease -Final Page 1 Marina Permits (and specifically in taking all of the actions described in subsections 7.7.1.2 through 7.7.1.5 below). 7.7.1.2 Flagstone has diligently developed and shall continue to diligently develop such detailed plans and specifications, drawings, schematics, sketches and other documentation with respect to a Mega -Yacht Marina (as defined above) as may be necessary or appropriate in connection with its good faith efforts in pursuing and in maintaining in full force and effect the Mega -Yacht Marina Permits (collectively, the "Mega -Yacht Marina Plans"). Should any of the Mega -Yacht Marina Permit for the Marina temporarily lapse, (i) such lapse shall not be a reason to extend the Outside Dates for construction commencement of the Marina Component, and (ii) such temporary lapse shall not constitute an Event of Flagstone's Default as long as Flagstone continues to use good faith efforts to reinstate any such lapsed Mega -Yacht Marina Permit,as applicable. 7.7.1.3 Flagstone submitted the Mega -Yacht Marina Plans to the City Manager for his or her approval in accordance with the City Manager Approval Procedures and obtained such approval. 7.7.1.4 After approval of the Mega -Yacht Marina Plans by the City Manager, with whatever modifications as were agreed upon at that time, all subject to and in accordance with the City Manager Approval Procedures, Flagstone submitted the Mega -Yacht Marina Plans to all necessary Governmental Authorities and obtained the Mega -Yacht Permits (it being understood that the applicable Governmental Authorities include, but are not necessarily limited to, the State of Florida Department of Environmental Protection, the Army Corps of Engineers (the "Corps"), the South Florida Water Management District ("SFWMD") and the Miami -Dade County Department of Environmental Resources Management ("DERM"), after responding to and accommodating, in a commercially reasonable manner, any reasonable requests by such Governmental Authorities for modifications to the Mega -Yacht Marina Plans. Flagstone informed the City Manager in writing of such modifications at that time. For any future modifications, the City Manager shall be informed, in writing, of such modifications by Flagstone, which shall include a legend at the top of the first page in a type face larger than that used elsewhere in the notice indicating that City is to provide approval or denial with comments within ten (10) business days pursuant to this Section 7.7.1.4. The City Manager shall have ten (10) business days from the date of receipt of such notice to review the modifications and advise Flagstone in writing that the modifications are disapproved. If notice of disapproval is not delivered within the ten (10) Business Day period, Flagstone shall give a written reminder notice to the City Manager. If notice of disapproval is not delivered within five (5) Business Days after such reminder notice is given, the modifications shall be deemed approved. The notice to review and the reminder notice shall each contain legends at the top of the first page, in a typeface larger than that used elsewhere in the request, identifying the applicable required response time. 7.7.1.5 After Flagstone obtained consensus among the staff of the applicable Governmental Authorities for the Mega -Yacht Marina Plans, Flagstone (a) submitted the Mega -Yacht Marina Plans (as same may have been modified as described above) and an application for a Class I Permit for the Mega -Yacht Marina (the "Class I Permit Application") to the Miami -Dade County Board of County Commissioners (the "Board") for final approval for the construction and operation of the Mega -Yacht Marina substantially in accordance with such Ground Lease -Final Page 2 Mega -Yacht Marina Plans, and had its representatives attend the hearing before the Board concerning same and persuaded the Board to approve same: and (b) submitted to the other applicable Governmental Authorities, including the SFWMD and the Corps., the Mega Yacht Marina Plans and the appropriate application(s) required for the issuance of the applicable Mega - Yacht Marina Permits and Flagstone thereafter continued to follow up with such application(s) including, but not limited to, appearing before the SFWMD Governing Board, until such Mega - Yacht Marina Pernit(s) were issued by such Governmental Authorities. 7.7.2 Notice and Meetings with City. Flagstone has in the past provided and from the Effective Date of this Agreement shall continue to provide City with at least seven (7) days prior written notice of any meeting with the staff of applicable Governmental Authorities. City shall have the right to have a representative present (by telephone or in person) at each such meeting. In addition, Flagstone. shall provide City with copies of any written correspondence between Flagstone and such Governmental Authorities in connection with the "best efforts" steps described in Section 7.7.1 above for any future matters regarding the Mega -Yacht Marina. 7.7.2.1 Flagstone has in the past held and from the Effective Date of this Agreement hereby agrees to continue to have monthly meetings with City's designated representatives to discuss the status of Flagstone's "best efforts" regarding the Mega -Yacht Marina, and to keep City regularly apprised through written updates as to what "best efforts" have been and are being taken by Flagstone in order to satisfy its continuing obligations regarding any future Governmental Approvals in Section 7.7.1 above and the status thereof. If, after any such monthly meeting or after City receives any such written update, City believes, reasonably and in good faith, that Flagstone is not using its best efforts as described in subparagraph (c) above, City shall, within seven (7) Business Days after receiving any such meeting or written update, give written notice to Flagstone stating with particularity City's belief and the specific basis for such belief. If City fails to give such written notice within such seven (7) Business Day period, the actions by Flagstone which are described in such meeting or written update shall be deemed to constitute best efforts as described in Section 7.7.1 above up to the last step taken by Flagstone as described in such meeting or written update, and City shall not be entitled to submit to arbitration the question of whether such actions by Flagstone constitute best efforts. 7.7.2.2. Notwithstanding the foregoing, Flagstone shall not be required to accept any unreasonable conditions for continued approval(s) or renewal(s) which would compromise the feasibility of the proposed Mega -Yacht Marina or place unreasonable financial or economic burdens on Flagstone (either in terms of increased costs or reduced income) or unreasonable covenants, conditions and/or restrictions with respect to the development and operation of the proposed Mega -Yacht Marina Component. 7.7.2.3 In the event Lessee is unable, after using such best efforts, to obtain all of the Mega -Yacht Marina Permits, then Lessee shall provide written notice thereof to Lessor. If Lessor agrees, reasonably and in good faith, that Lessee has used such best efforts and that the MegaYacht Marina Permits cannot be obtained, then term "Marina" as used herein shall mean such marina as Lessee is able to construct and operate based on the existing Marina permits or such other permits and approvals from Governmental Authorities Lessee is able to Ground Lease -Final Page 3 obtain. If Lessor does not agree that Lessee has used such best efforts to obtain the Mega -Yacht Marina Pen -nits, and Lessee disputes same, then no later than thirty (30) days after Lessor's receipt of written notice from Lessee, Lessor shall provide written notice to Lessee that Lessor is submitting the matter to arbitration in accordance with subparagraph (i) below; provided, however, that Lessor shall not be entitled to submit the matter to arbitration to the extent subparagraph (f) provides otherwise. 7.7.2.4 If at any time (including, without limitation, at the time Lessee provides written notice to Lessor that Lessee is unable to obtain the Megayacht Marina Permits) Lessor believes, reasonably and in good faith, that Lessee has not or is not using "best efforts" to obtain the Mega -Yacht Marina Permits, then Lessor shall refer such dispute to binding arbitration in accordance with Article XVII. In determining whether Lessee has used its best efforts as described in subparagraph (c). above, the Arbitrator may consider whether Lessee should pursue any administrative appeals. In no event shall Lessee be required to pursue litigation (although it may, at its option, elect to do so). 7.7.2.5 Nothing contained herein shall be deemed from preventing Lessee, if Lessee is unable to obtain the Mega -Yacht Marina Permits after using its best efforts as described herein, from later pursuing the Mega -Yacht Marina Permits, and if Lessee is thereafter able to obtain the Mega -Yacht Marina Permits and elects to develop and operate the Mega Yacht Marina, then the term "Marina" as used herein shall, from and after the date Lessee obtains the last of the Mega -Yacht Marina Permits, mean and refer to the Mega -Yacht Marina, and Lessee shall develop and operate such Mega -Yacht Marina subject and in accordance with the terms and conditions of this Lease. Ground Lease -Final Page 4 EXHIBIT I 1To be Updatedl PERMITTED TITLE EXCEPTIONS 1. Bulkhead line as shown on the plat recorded in Plat Book 74, Page 4. 2. Oil, gas and mineral reservations as set forth in that Deed from the Trustees of the Internal Improvement Fund to the City of Miami, filed April 11, 1949 in Deed Book 3130, Page 257 under Clerk's File No. Y-29610.• Note: The right of entry has been released pursuant to [TO BE FILLED IN]. 3. Agreement for Water Facilities recorded March 13, 1998, in Official Records Book 18016, Page 2892. 4. Agreement for Sanitary Sewage Facilities recorded April 14, 1998, in Official Records Book 18058, Page 112. 5. Resolution No. 98-23, recorded January 19, 1999, in Official Records Book 18699, Page 1236. 6. Easement in favor of the United States of America set forth in that Grant of Easement for Miami Harbor Turning Basin, recorded April 22, 1963, in Official Records Book 3622, Page 751. 7. Perpetual Easement in favor of Florida Department of Transportation recorded March 13, 1998 in Official Records Book 18018, Page 1181. NOTE:A11 recording references are as to the Public Records of Miami -Dade County, Florida. Ground Lease -Final Page 5 EXHIBIT J LIST OF PRE -APPROVED HOTEL FRANCHISORS • Hilton group, including, but not limited to, Conrad Hotels • Starwood group, including, but not limited to, W Hotels, St. Regis Hotels, Starwood Luxury Collection and Le Meridien • Rosewood Hotels • Hyatt group, including, but not limited to, Park Hyatt • Raffles Group, including, but not limited to, Raffles Hotels • Marriott group, including, but not limited to, Bulgari Hotels • The Peninsula Group • Four Seasons Group, including, but not limited to, The Regent hotels • The Rocco Forte group, including, but not limited to, RF Hotels • Kempinski Hotels & Resorts • Six Continents Hotels • Mandarin Oriental • Fairmont Hotels & Resorts • Orient Express Hotels • Shangri-La Hotels & Resorts • Kimpton Hotels • Morgans Hotel Group • Aman Resort • Rixos Ground Lease -Final Page 6