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HomeMy WebLinkAboutAgreement to Enter Group Lease (Part 3)EXHIBIT K LIST OF PRE -APPROVED LENDERS ABN Amro Abu Dhabi International Bank AEW Capital Management American Realty Advisors Apollo Real Estate ARC Global Partners Arcadia Investment Management Bain Capital Banco Santander Bank of America Corp. Charlotte, N.C. Bank of New York Mellon Bank of Nova Scotia Halifax, Canada Barclays PLC London Barclays Global Investors Bayerische Hypo-und Vereinsbanken AG (including HVB Real Estate) Munich Bayerische Landesbank Girozentrale Munich Blackacre Capital Management Blackrock Realty Advisors Blackstone Group BNP Paribas Paris BV Group Ventures Canadian Imperial Bank of Commerce (CIBC) Toronto Capmark Cargill Carlyle Group CB Richard Ellis Cigna Citigroup Inc. New York Colony Capital Commerzbank Frankfurt Cornerstone Real Estate Advisors Crescent Real Estate Credit Agricole Credit Lyonnais Calyon Credit Suisse Group Zurich De Shaw & Company Deutsche Bank Frankfurt Dubai International Capital First National Life Insurance Co. Fortis Fortress Fremont GE Capital GMAC Goldman Sachs GSO Capital Partners Harbourvest Partners Ground Lease -Final Page 1 EXHIBIT L APPROVED LEASEHOLD MORTGAGEE SNDA Prepared By and Return to Andrew S. Robins, Esq. Gunster, Yoakley & Stewart P.A. 500 E. Broward Blvd., Suite 1400 Ft. Lauderdale, Florida 33394 SPACE ABOVE THIS LINE FOR RECORDING DATA SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") made as of the day of , 20 by and among THE CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor"), FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company ("Lessee"), and , a ("Leasehold Mortgagee"). WITNESSETH: WHEREAS, Lessor is the owner in fee simple of certain real property more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, pursuant to that certain Ground Lease dated , 200_ (the "Ground Lease"), a memorandum of which was recorded in Official Records Book , at Page , of the Public Records of Miami -Dade County, Florida, Lessor has leased the Property to Lessee, subject to and in accordance with the terms and conditions of the Ground Lease (unless otherwise defined herein, all capitalized terns used herein shall have the respective meanings ascribed to them in the Ground Lease); and WHEREAS, pursuant to the Ground Lease, Lessee is the owner and holder of the Leasehold Estate during the Lease Term, and Lessee is and shall be, during the Lease Term, the owner and holder of all Leasehold Improvements now or hereafter constructed on the Property; and Ground Lease -Final Page 3 HSBC Holdings PLC London ING Group (including Clarion Partners) Investcorp iStar Financial Jamestown J.P. Morgan Chase New York John Hancock KeyCorp Cleveland Kumagai Gumi Co., Ltd. Leucadia International Lubert-Adler Partners Marubeni Corporation Mass Mutual Metropolitan Life Mitsubishi Corporation Mitsui Fudoson America Morgan Stanley MSD Capital Nationwide Life New York Life Investment Nippon Life Insurance Co. Northwest Mutual Oaktree Capital Management Pacific Life Insurance Company Pegasus Capital Perry Capital PNC Financial Services Corp. Pittsburgh Prudential Financial Royal Bank of Canada Toronto Royal Bank of Scotland Group PLC (RBS) Edinburgh RREEF Societe Generale Paris Soros Stark Investments Stanwood Capital Sumitomo Corporation Sumitomo Life Realty SunTrust Bank Inc. Atlanta TD Bank Teachers Insurance TIAA-CREF UBS AG Zurich US Bank Vulcan Ventures Wafra Investment Advisory Group Walton Street Capital Warburg Pincus Wells Fargo & Co. San Francisco (including Wachovia) Westdeutsche Landesbank Girozentrale Dusseldorf, Germany Whitehall Ground Lease -Final Page 2 WHEREAS, Leasehold Mortgagee has agreed to make a loan in the original face amount of $ to Lessee (as the same may be amended, modified, restated, renewed or extended from time to time, the "Loan"); and WHEREAS, the Loan will be evidenced by a mortgage note (as the same may be amended, modified, restated, renewed, substituted or extended from time to time, the "Note") made by Lessee to the order of Leasehold Mortgagee and will be secured by, among other things, a mortgage and other security documents more particularly described in Exhibit "B", attached hereto (as the same may be amended, modified, restated, renewed, substituted or extended from time to time, collectively, the "Leasehold Mortgage") made by Lessee to Leasehold Mortgagee, which Leasehold Mortgage will encumber the Leasehold Estate and the Leasehold Improvements (the Note, the Leasehold Mortgage and all other documents and instruments which evidence, secure or are otherwise related to the Loan, as the same may be amended, modified, restated, renewed, substituted or extended from time to time, are sometimes hereinafter collectively referred to the "Leasehold Loan Documents"). NOW, THEREFORE, the parties hereto, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows: 1. RECITALS. The foregoing recitals are true and correct and incorporated herein by this reference. 2. LESSOR'S FEE ESTATE NOT ENCUMBERED BY LEASEHOLD MORTGAGE. Leasehold Mortgagee hereby acknowledges and agrees that the leasehold Mortgagee does not and shall not encumber or constitute a lien upon Lessor's fee simple estate in the Property. 3. LESSOR'S ACKNOWLEDGMENT OF LEASEHOLD MORTGAGE. Pursuant to any and all applicable provisions of the Ground Lease, Lessor hereby irrevocably and fully consents to the execution and delivery (and recordation, where applicable) of the Leasehold Mortgage and other Leasehold Loan Documents. Lessor hereby further acknowledges and agrees as follows:1 (a) Approved Lender. Leasehold Mortgagee hereby is, and shall at all times until all obligations secured by the Leasehold Mortgage have been paid in full or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first, be deemed an Approved Lender, an Approved Leasehold Mortgagee and an Approved Mortgagee, as such terms are defined, described and used in the Ground Lease. As used herein, the tern "Leasehold Mortgagee" shall include: (x) each and every successor of Leasehold Mortgagee; and (y) each and every assignee of Leasehold Mortgagee, so long as assignee independently meets the 1 As a condition to Lessor's executing this Agreement, Lessor may require Lessee to provide such written representation or other evidence as Lessor may reasonably require in order to confirm that the conditions set forth in the definitions of Approved Lender, Approved Leasehold Mortgagee, Approved Mortgagee, Approved Leasehold Mortgagee, Approved Mortgage and Approved Leasehold Mortgage, as defined in the Ground Lease are satisfied. This footnote will be deleted from the final form of this Agreement before it is executed. Ground Lease -Final Page 4 criteria set forth in clauses (i) through (vii) of the definition of Approved Lender contained in the Ground Lease (subject to the last sentence of clause (viii) of such definition). (b) Approved Mortgage. (i) General. The Leasehold Mortgage hereby is, and shall at all times until all obligations secured by the Leasehold Mortgage have been paid in full, or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first, be deemed an Approved Mortgage and an Approved Leasehold Mortgage, as such terms are defined, described, and used in the Ground Lease. (ii) Optional Advances. Notwithstanding the provisions of subparagraph (a) above, no Optional Advance (as hereinafter defined) shall be deemed secured by an Approved Mortgage or an Approved leasehold Mortgage unless and until the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease are independently satisfied as to such Optional Advance. Each such Optional Advance shall be treated as a separate loan for purposes of satisfying the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground lease. Upon Leasehold Mortgagee's request and delivery of evidence reasonably satisfactory to Lessor that the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease are independently satisfied as to any such Optional Advance, Lessor shall execute a written acknowledgement confirming that such Optional Advance independently satisfies the requirements of such clauses (iii) and (iv). (iii) Definition of Optional Advances. The term "Optional Advance" shall mean: (x) a future advance under the Leasehold Mortgage which is entirely within Leasehold Mortgagee's discretion to make; or (y) any advance of additional funds pursuant to a future modification of the Leasehold Mortgage; provided, however, that in no event shall the term "Optional Advance" be deeded to include any advances or disbursements for construction or other purposes which are made upon the satisfaction or waiver of certain terns and conditions specified in the leasehold Mortgage and/or the other Leasehold Loan Documents, even if the Leasehold Mortgage and/or the other Leasehold Loan Documents permit Leasehold Mortgagee to determine in its sole discretion or judgment whether to make such advances or disbursements if such terns and conditions are not satisfied or if a default or event of default under the Leasehold Mortgage and/or the other Leasehold Loan Documents then exists. Moreover, the term "Optional Advance" shall not include any advances for the purpose of paying Ground Lease -Final Page 5 (c) unpaid taxes, assessments or levies against the Property or unpaid insurance premiums with respect to the Property, protecting the Collateral (as hereinafter defined), preserving leasehold Mortgagee's lien upon and security interest in the Collateral, curing defaults under the Leasehold Loan Documents and/or the Ground lease and other protective, remedial and/or curative advances. Rights and Benefits Under Ground Lease. All rights and benefits of an approved Lender, Approved Leasehold Mortgagee and an approved Mortgagee provided in the Ground Lease may be exercised and enjoyed by Leasehold Mortgagee in accordance with the provisions of the Ground Lease, including, but not limited to, those rights and benefits conferred by Article VI (Leasehold and Subleasehold Mortgages), Section 8.7 (Approved Leasehold Mortgages, Leases and Subleases), Article XVI (Damage or Destruction) and Article XXIV (Condemnation) of the Ground Lease, and Lessor is and shall be bound by all provisions in the Ground Lease applicable to Leasehold Mortgagee and the Leasehold Mortgage. (d) Conditions of Ground Lease Satisfied. Lessee hereby represents that it has delivered to Lessor copies of the executed leasehold Mortgage and all other Leasehold Loan Documents (as more particularly described in a separate certificate signed by Lessee and delivered to Lessor), and that same have not been modified or amended through the date hereof (except as may be set forth in such certificate), Lessor hereby confirms that all conditions of Section 6.4 of the Ground Lease have been fully satisfied (and that this Agreement fully satisfies the requirements of Section 6.4 of the Ground Lease concerning the execution and delivery of the Subordination, Non -Disturbance and Attornment Agreement described therein with respect to the leasehold Mortgage), such that Leasehold Mortgagee shall have the rights and benefits described in Article VI of the Ground Lease. 4. COLLATERAL FOR LEASEHOLD MORTGAGE. Until all obligations secured by the Leasehold Mortgage have been paid in full or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first: (a) Lien and Encumbrance. Lessor hereby acknowledges that the purpose of the Leasehold Mortgage is to create a lien and encumbrance upon and security interest in all of the collateral described in the Leasehold Mortgage and the other Leasehold Loan Documents and all additions, replacements and substitutions therefor and proceeds thereof (collectively, the "Collateral"), including, but not limited to, the following items (except to the extent the Leasehold Loan Documents specifically provide that same are not part of the Collateral): Ground Lease -Final Page 6 (i) the Leasehold Estate (and related easements) and the Leasehold Improvements; (ii) all of Lessee's right, title and interest in and to any and all furniture, fixtures, equipment, machinery, goods, merchandise, inventory and other tangible personal property of Lessee located upon or within or connected to the Property; (iii) all of Lessee's right, title and interest in and to any and all intangible personal property pertaining or related to or connected with the Property, including, but not limited to, plans and specifications, permits, licenses, service contracts and other agreements, and intellectual property; and (iv) all other tangible and intangible personal property of Lessee of any kind or nature whatsoever, wherever located, now or hereafter acquired, all as more particularly set forth in the Leasehold Mortgage. (b) No Ownership Rights of Lessor. At all times during the Lease Term (and if a New Lease (as hereinafter defined) is entered into in accordance with the terms of the Ground Lease and this Agreement, at all times during the term thereof, including any extension options when and if exercised, and any period between the termination of the Ground Lease and the commencement of the term of such New Lease), but not after the expiration of the Lease Term or the term of any such New Lease, as the case may be: (i) Lessor is not, and shall not claim to be, the owner of the Collateral or any part of the Collateral; and (ii) All of the Collateral shall be conclusively presumed to be the property of Lessee (subject to any rights therein of Leasehold Mortgagee or any or any Persons claiming by, through or under Leasehold Mortgagee), regardless of the nature of any item of the Collateral or the manner in which it is or may become affixed to or incorporated into the Property or otherwise acquired or obtained by Lessee. 5. SUBORDINATION. (a) Acknowledgment of Lessor's Lien rights under Section 23.1 of Ground Lease. Leasehold Mortgagee hereby acknowledges that pursuant to Section 23.1 of the Ground Lease, Lessee has granted to Lessor a lien upon the Leasehold Improvements and the Leasehold Estate to the extent described therein. Ground Lease -Final Page 7 (b) Lessor's Lien. (i) Definition. As used herein, the term "Lessor's Lien" shall collectively mean and refer to: (i) the lien granted to Lessor upon the Leasehold Improvements and the leasehold Estate to the extent described in Section 23.1 of the Ground Lease; and (ii) any and all other claims, rights of distraint or levy, "landlord's lien" or other lien rights, or any other right, title or interest, if any, which Lessor may have upon, in or to any portion of the Collateral from time to time. (ii) Subordination. Lessor acknowledges and agrees that each and every Lessor's Lien (to the extent same may exist) is and shall at all times and for all purposes and in all respects, be subject, subordinate and inferior to the lien, operation, effect, terms and provisions of the leasehold Mortgage and other Leasehold Loan Documents and the rights of Leasehold Mortgagee (and any Approved Foreclosure Transferee and any Approved Subsequent Foreclosure Purchaser) thereunder or otherwise in connection with the Loan. (iii) No Enforcement. Lessor acknowledges and agrees that without Leasehold Mortgagee's prior written consent, no Lessor's Lien may be enforced against any portion of the Leasehold Improvements, the Leasehold Estate or any other portion of the Collateral at the time such portion is encumbered by the Leasehold Mortgage and/or the other Leasehold Loan Documents. (iv) Lessor's Lien Arising After Foreclosure Transfer. Notwithstanding the provisions of subparagraphs 5(b)(ii) and 5(b)(iii) above, any Approved Foreclosure . Transferee and Approved Subsequent Foreclosure Purchaser shall take subject to any Lessor's Lien on account of any obligation arising after the date of the Foreclosure Transfer by which such Approved Foreclosure Transferee acquires title to the Collateral, and Lessor may enforce such Lessor's Lien as permitted by the provisions of the Ground Lease. (c) Development Plans. (i) Use Rights. Leasehold Mortgagee hereby acknowledges that Lessee has granted to Lessor the right to: (i) use the Development Plans, to the extent set forth in Section 6.10 of the Ground Lease; and (ii) 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 Ground Lease -Final Page 8 of any Approved Mortgagees therein), to the extent set forth in Section 6.10 of the Ground Lease. Lessor hereby agrees not to enforce such rights except as provided by subparagraph (c)(iii) below. (ii) Subordination. Without limiting the generality of subparagraph (b) above, Lessor hereby acknowledges and agrees that the rights of Lessor described in clause (i) above are and shall, at all times and for all purposes and in all respects, be subject, subordinate and inferior to lien, operation, effect, terms and provisions of the Leasehold Mortgage and the other Leasehold Loan Documents and the rights of Leasehold Mortgagee (and any Approved Foreclosure Transferee and any- Approved Subsequent Foreclosure Purchaser) thereunder with respect to the Development Plans and the Project Approvals. If required by Leasehold Mortgagee, Lessor shall join in any pledge of such rights as security for the Loan solely to subordinate Lessor's interest in the same to the interest therein of Leasehold Mortgagee on the terms set forth herein. (iii) Rights Upon Termination of Lease. In the event of termination of the 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 until the expiration of the period within which Leasehold Mortgage or any Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser may enter into a New Lease pursuant to Section 10 below, and thereafter if Leasehold Mortgagee or any Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser does enter into a New Lease pursuant to Section 10 below, such rights of Lessor therein shall, at all times and for all purposes and in all respects, be subject, subordinate and inferior, to the rights therein of Leasehold Mortgage or such Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser. 6. NO SURRENDER, MODIFICATION, ETC. Until all obligations secured by the Leasehold Mortgage have been paid in full or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first:2 2 Lessor agrees that this provision shall be modified, if Leasehold Mortgagee requires such modification, to prohibit Lessor and lessee from waiving any provision of the Ground Lease (which, in Lessor's case, shall mean an express waiver in a writing signed on behalf of Lessor) without Leasehold Mortgagee's prior written consent, to the extent such waiver would have an Ground Lease -Final Page 9 (a) No Termination of Ground Lease. Lessor shall not accept from Lessee, and Lessee shall not offer to Lessor, any cancellation, surrender or termination of the Ground Lease, and any purported cancellation, surrender or termination without Leasehold Mortgagee's prior written consent shall be null and void and of no force or effect. (b) No Amendment of Ground Lease. Lessor and Lessee shall not amend or modify, and shall not agree to amend or modify, in any material respect, any provision of the Ground Lease, without Leasehold Mortgagee's prior written consent. Any such amendment or modification without Leasehold Mortgagee's prior written consent shall be null and void and of no force or effect.3 7. CERTAIN RIGHTS OF LEASEHOLD MORTGAGEE WITH RESPECT TO GROUND LEASE. Until all obligations secured by the Leasehold Mortgagee have been paid in full, or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first, Lessor shall have the obligations set forth below with respect to the Ground Lease, and Leasehold Mortgagee shall have the rights, remedies and recourse set forth below with respect to the Ground Lease: (a) Insurance Policies. Lessor agrees that Leasehold Mortgagee shall, at Leasehold Mortgagee's option, be named as an additional insured and loss payee under any and all insurance policies required to be carried by Lessee under the Ground Lease. (b) Casualty. In the event of any Casualty, Leasehold Mortgagee may, to the extent provided for by Leasehold Mortgage, apply all or any portion of Net Insurance Proceeds to any principal, interest or other sums due and payable to Leasehold Mortgagee under the Leasehold Mortgage and the other Leasehold Loan Documents. No such application shall relieve Lessee of its obligations under Article XVI of the Ground Lease. To the extent there remain any Net Insurance Proceeds, or to the extent there remain any Net Insurance Proceeds after such application, the provisions of Article XVI of the Ground Lease shall govern the collection and disbursement of such Net Insurance Proceeds and the use of such Net Insurance Proceeds for the completion of Restoration work. Without limiting the generality of the foregoing, to the extent provided for by Article XVI of the adverse effect on Leasehold Mortgagee's security for the Loan. Furthermore, Lessor agrees that in the case of a Leasehold Mortgagee holding a first priority Leasehold Mortgage, this provision shall be modified, if such leasehold Mortgagee requires such a modification, to prohibit Lessor from consenting to any matters under the Ground Lease for which Lessor's consent is required, without such Leasehold Mortgagee's prior written consent. In the case of either such modification, there shall also be included language providing that where Leasehold Mortgagee's consent is so required, such consent shall be deemed given if leasehold Mortgagee fails to disapprove the proposed action in writing within ten (10) business days after leasehold Mortgagee receives written notice requesting such consent. This footnote shall not appear in the final Agreement and shall also be deleted from any proposed form submitted to Leasehold Mortgagee. 3 It is understood that Lessor may negotiate with Leasehold Mortgagee in good faith to permit certain types or classes of amendments or modifications or waivers without Leasehold Mortgagee's prior written consent to Leasehold Mortgagee, provided that no changes shall be made to Section 6(b) hereof unless agreeable to Leasehold Mortgagee). This footnote shall not appear in the final Agreement and neither this footnote nor the restriction set forth in subparagraph 6(b) shall be included in any proposed form submitted to Leasehold Mortgagee. Ground Lease -Final Page 10 (c) Ground Lease, such Net Insurance Proceeds shall be deposited with an Insurance Trustee pursuant to an Insurance Escrow Agreement as contemplated by Section 16.2(b) of the Ground Lease, provided that such Insurance Escrow Agreement is satisfactory in form and content to Leasehold Mortgagee, Lessee and Lessor. Leasehold Mortgagee may require that such Insurance Escrow Agreement incorporate (by reference or otherwise) the provisions of the Leasehold Loan Documents setting forth the terns and conditions for the disbursement and use of Net Insurance Proceeds. 'Condemnation. In the event of any Condemnation, Leasehold Mortgagee may, to the extent provided for by the Leasehold Mortgage, apply all or any portion of the Condemnation Awards to any principal, interest or other sums due and payable to .Leasehold Mortgagee under .the. Leasehold Mortgage and the other Leasehold Loan Documents. No such application shall relieve Lessee of its obligations under Article XXIV of the Ground Lease. To the extent Leasehold Mortgage does not so apply Condemnation Awards, or to the extent there remain any Condemnation Awards after such application, the provisions of Article XXIV of the Ground Lease shall govern the allocation and disbursement of such Condemnation Awards and the use of such Condemnation Awards for restoring any balance of the Project not taken (as contemplated by Section 24.3(b)(i) of the Ground Lease); provided, however, that Leasehold Mortgagee may impose such additional terms and conditions for such disbursement and use of such Condemnation Awards as are set forth in the Leasehold Mortgage. (d) Consent and Participation Rights. Lessor and Lessee shall not settle or compromise the mount or division of any Condemnation award in any Condemnation proceeding without Leasehold Mortgagee shall be entitled to participate in any such Condemnation proceeding and make claim for the share of any award to which Lessee is entitled by the terms of Article XXIV of the Ground Lease. (e) Renewal Options. Lessor shall give written notice to Leasehold Mortgagee of Lessee's failure to timely exercise any Extension Option (the "Extension Option Notice"). Leasehold Mortgagee (or an Approved Foreclosure Transferee, if applicable) may, at its option, and without limiting the availability of other remedies under the Leasehold Loan Documents, exercise such Extension Option on timely exercised by Lessee, and Lessor agreements to recognize and be bound be the exercise of such Extension Option by Leasehold Mortgagee or such Approved Foreclosure Transferee, provided that: (i) No Material Uncured Lessee's Default. No Material Uncured Lessee's Default then exists, other than a Material Uncured Lessee's Default: (i) as to which Leasehold Mortgagee or such Approved Foreclosure Transferee is diligently pursuing a cure (including initiating actions to obtain possession of and title to the Collateral in order to facilitate such cure) in Ground Lease -Final Page 11 the manner and within the time afforded by Section 8 below; or (ii) which is not susceptible to cure; and (ii) Time to Exercise. Leasehold Mortgage or such Approved Foreclosure Transferee exercises such Extension Option within thirty (30) days of Leasehold Mortgagee's receipt of the Extension Option Notice; provided, however, that if at any time during such thirty (30) day period, there are pending foreclosure proceedings with respect to the Leasehold Mortgage or any pending bankruptcy (or insolvency or similar) proceedings as to which an automatic stay or other similar order affecting any such foreclosure proceedings has been or may thereafter be issued, then the deadline within which Leasehold Mortgagee or such Approved Foreclosure. Transferee may exercise such Extension Option shall be extended to the date which is six (6) months after the later of: (i) the termination of such foreclosure proceedings or the completion of Foreclosure Transfer with respect to the Leasehold Mortgage; or (ii) the lifting in any bankruptcy (or insolvency or similar) proceedings of any automatic stay or other similar order affecting Lessee. 8. NOTICE AND CURE RIGHTS. The term "lender Party" shall mean, as applicable: (i) as to any period prior to a Foreclosure Transfer with respect to the Leasehold Mortgage, Leasehold Mortgagee; (ii) as to any period after such Foreclosure Transfer, but only with respect to Defaults occurring before such Foreclosure Transfer, any Approved foreclosure Transferee or any Approved Subsequent foreclosure Purchaser, as applicable. Until all obligations secured by the leasehold Mortgage have been paid in full or the Leasehold Mortgage is fully released and satisfied, whichever occurs first, Lessor shall have the obligations, and the applicable Lender Party shall be afforded the notice and cure rights and other rights, set forth in this Section 8, provided that in the case of any Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser, such Lender Party shall have given Lessor written notice of its name and address. (a) Notice of Default. Whenever Lessor sends or gives Lessee any written notice of or other written communication (a "Default Notice") from Lessor pertaining to a default or any event which, if not remedied, would or could result in an Event of Lessee's Default (collectively, a "Default"), Lessor shall simultaneously send a copy of such Default Notice to the applicable Lender Party. The applicable Lender Party shall be afforded the applicable cure period with respect to such Default as is specified in subparagraph (b) below. (b) Leasehold Mortgagee's right to Cure. Upon the applicable Lender Party's receipt of a Default Notice, the applicable Lender Party shall have the same period of time as is allowed to Lessee under the provisions of the Ground Lease, plus an additional thirty (30) days, to cure the alleged Default or cause the same to be cured, provided that such cure shall require payment of interest at the Default Rate (as defined in Section 1.5(s) of the Ground Lease) on sums due pursuant to the Ground Lease for the period commencing on the date on which such Lender Ground Lease -Final Page 12 Party first received such Default Notice until the date payment is received by Lessor. Notwithstanding the foregoing: (i) Additional Notice and Cure Period for Certain Monetary Default. In the case of an alleged Default on account of Lessee's failure to pay Base Rent, Percentage Rent, Impositions or the cost of insurance, which Default is not cured by the applicable Lender Party within the additional thirty (30) day cure period specified above, Lessor shall give the applicable Lender Party a second written Default Notice with respect to such alleged Default, which Default Notice shall state in boldface: "Failure to cure the Default(s) described herein within thirty (30) days from the date of this Default Notice is given will entitle Lessor to terminate the Ground lease, and in the event of such termination of the Ground Lease, you will not be entitled to enter into a New Lease." The applicable Lender Party shall be afforded thirty (30) days from its receipt of such second written Default Notice within which it may cure any such alleged Default on account of Lessee's failure to pay Base Rent, Percentage Rent, hnpositions or the cost of insurance; and (ii) Additional Cure Period to Cure Certain Defaults. In the case of an alleged Default which is not reasonably susceptible to being cured within such additional thirty (30) day period, the applicable Lender Party, with the exercise of due diligence and in good faith, to cure such alleged Default or cause same to be cured. (c) Where Possession is Necessary: Foreclosure Proceedings. (i) Additional Cure Period. Notwithstanding the provisions of subparagraph (b) above, in the case of any alleged Default not involving the failure to pay money, which Default is capable of being cured but is not reasonably susceptible to cure without having possession of the Property (a "Curable Default"), the applicable Lender Party shall have the right to further extend the period of time within which to cure such Curable Default for such reasonable additional period as will enable the applicable Lender Party, with the exercise of due diligence and in good faith, to institute foreclosure proceedings, cause the leasehold Estate to be acquired and cause lessee to be removed from the property through a Foreclosure Transfer, and at the earliest reasonable opportunity thereafter, cure such curable Default (unless such Default has been previously cured, including any cure by a receiver appointed in connection with such foreclosure proceedings). Nothing contained in this Agreement or in the Ground Lease shall: (i) require any Lender party to cure such Curable Default prior to the time when such Lender Party has actually obtained such possession, so long as the applicable Lender Party is actively seeking to obtain such possession; or (ii) require any Lender party to cure any Default which is not susceptible to cure. Ground Lease -Final Page 13 (ii) Lessor's Cooperation. Lessor agrees to cooperate in the prosecution of any such foreclosure or other proceedings brought by any Lender Party to obtain possession of the property; provided, however, that Lessor shall not be obligated to incur any cost in connection with such cooperation unless Lessor is reimbursed for any actual and reasonable cost so incurred by Lessor. (iii) Effect of Stay. Lessor agrees that if by reason of a bankruptcy, insolvency or similar type proceeding, or by reason of any other judicial order or legislative enactment, any Lender Party shall be stayed from commencing (or if commenced, from continuing) foreclosure proceedings, then such . Lender. Party shall be deemed to be prosecuting such proceedings in the exercise of due diligence and in good faith so long as it is in good faith attempting to obtain relief from any such stay. (d) Acceptance of Cure. Lessee irrevocably directs that Lessor accept, and Lessor hereby agrees to accept, any such cure of a Default made within the time periods described in subparagraph (b), subparagraph (c)(i) and/or subparagraph (c)(iii) above, as applicable, by or on behalf of any Lender Party, as if same had been performed by Lessee. (e) Nullification of any Termination. Any attempt by Lessor to terminate the Ground Lease on account of any Default or Event of Lessee's Default shall be null and void and of no force or effect for so long as any applicable lender Party is pursuing a cure thereof pursuant to, and within the time periods set forth in, subparagraph (b), subparagraph (c)(i) and/or subparagraph (c)(iii) above, as applicable. 9. LESSOR'S RIGHT TO TERMINATE. (a) Notice of Intent to Terminate. If any Default described above (or any Default occurring while any applicable Lender Party is exercising its cure rights) is not cured within the applicable time period set forth in subparagraph 8(b), subparagraph 8(c)(i) and/or subparagraph (c)(iii) above, as applicable, Lessor may thereafter give the applicable Lender Party written notice (by registered or certified mail, return receipt, requested) of Lessor's intent to terminate the Ground lease on account of the failure to cure same in accordance with the Ground Lease on account of the failure to cure same in accordance with the Ground Lease and this Agreement. (b) Termination. Such termination shall become effective if and only if the applicable Lender Party shall fail to cure same within ten (10) days thereafter in the case of a Default involving the payment of money due to Lessor or thirty (30) days in the case of any other Default. Ground Lease -Final Page 14 (c) Surrender of Possession. If Lessee or any Lender party is in possession of the Property, either personally or by a receiver, the applicable party shall, upon any such termination of the Ground Lease, quit and peacefully surrender the property to Lessor. Notwithstanding the foregoing, if any such Lender party requests a New Lease pursuant to Section 10 below within the period provided for in Section 10(a) below, then such Lender Party shall not be required to so surrender possession of the property so long as such Lender Party requests and thereafter enters into such New Lease pursuant to Section 10 below. If such Lender party fails to request a New lease within the period provided by Section 10(a) below but then fails to enter into such New Lease within the period provided for by Section 10(a) below, then such. Lender Party. (if it is then in possession of the Property) shall so surrender promptly after the expiration of such period. 10. NEW LEASE. (a) Right to Obtain a New Lease. If the Ground Lease shall (i) terminate for any reason other than a Default on account of Lessee's failure, beyond any applicable cure period, to pay Base Rent, Percentage Rent, Impositions or the cost of insurance, as to which Leasehold Mortgagee was provided notice and an opportunity to cure in accordance with the Ground lease this Agreement and failed to so cure within the time period provided for under subparagraph 8(b), subparagraph 8(c)(i) and/or subparagraph (c)(iii) above, as applicable), or (ii) be rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditor's rights, any applicable lender Party shall have the right, exercisable by written notice to Lessor (the "Exercise Notice") within thirty (30) days after such lender party receives written notice of such termination, rejection or disaffirmation (as applicable, a "Termination") to enter a New Lease of the property, provided that such Lender Party 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 the Ground lease but for such Termination. Lessor and such lender party shall use good faith efforts to enter into the New lease as soon as practicable, but in no event later than one hundred eighty (180) days after such lender party receives such written notice of such Termination. From the date on which such lender party shall serve the Exercise Notice upon Lessor until the New Lease is entered into, such Lender Party may use and enjoy the Property without hindrance by Lessor but subject to compliance with the terms of the Ground Lease. (b) Terms and conditions of New Lease. The term of the New Lease shall begin on the date of the termination of the Ground lease and shall continue for the remainder of the Lease Term, including any Extension Terms. Ground Lease -Final Page 15 Such New Lease shall otherwise contain the same terms and conditions as those set forth in the Ground lease (including, but not limited to, the provisions of Section 13.4 of the Ground Lease), 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, if entered into by Leasehold Mortgagee or any Approved Foreclosure transferee, shall permit such party to assign such New Lease to an Approved Subsequent Foreclosure Purchaser without Lessor's consent. (c) Subrogation. The . Lender. Party 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 Lender Party as a condition to obtaining such New Lease, and any other Defaults which are remedied as described in clause (i) of subparagraph (b) above (but not as to any other matters). (d) Priority of New Lease. 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 the Ground Lease. (e) Execution of Other Documents. Simultaneously with the making of such New Lease, the Lender Party obtaining such New Lease and Lessor (together with all other Persons described in Section 6.6(a)(ii) of the Ground Lease, to the extent they are bound to do so pursuant to the provisions of the Ground Lease or otherwise) 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, new Subordination, Non -Disturbance and Attornment Agreements and new easements which were previously granted, as the case may be), and shall make such payments and adjustments among themselves, as shall be necessary and property for the purpose of restoring to each of such Persons as nearly as reasonably possible, the respective interests and status with respect to the property and the Leasehold Improvements which was possessed by the respective persons prior to the termination of the Ground Lease (including, but not limited to, any rights and obligations under this Agreement and any other applicable subordination, Non -disturbance and Attornment Agreements entered into pursuant to the provisions of the Ground Lease). (f) No Termination by Lessee of any Major Sublease or Space Lease. Between the date of termination of the Ground Lease and the date of execution and delivery of the New Lease, if any applicable Lender Party shall have requested such New Lease as provided for by subparagraph (a) Ground Lease -Final Page 16 (g) above, lessee shall not cancel or terminate any Major Sublease or Space Lease or any Approved time Share License, or accept any cancellation, termination or surrender thereof (unless such termination shall be effective as a matter of law on the termination of the Ground lease), without the prior written consent of such Lender Party. No Obligation to Cure Uncurable Defaults. Nothing contained herein or in the Ground Lease shall require any applicable lender party, as a condition to its exercise of its right to enter into a New Lease, to cure any Default of lessee not reasonably susceptible of being cured by such Lender Party. (h) Priority as to Approved Leasehold Mortgages. If, within the time period specified in subparagraph (a) above for any applicable Lender Party to enter into a New Lease with Lessor, more than one request for a New Lease shall have been received by Lessor by more than one holder of an Approved Leasehold Mortgage (or any Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser with respect thereto), priority with respect to the right to enter into such New lease shall be given (regardless of the order in which such requests shall have been made or received) to such holders (or any Approved Foreclosure Transferees or Approved Subsequent Foreclosure Purchasers with respect thereto) in the same order of priority of the liens of the applicable Approved Leasehold Mortgages. (i) Liability. No Lender party (or any assignee, designee or nominee thereof) shall become liable for the performance or observance of any covenants or conditions to be performed or observed by lessee, unless and until such Lender Party acquires possession of the Leasehold Estate becomes the owner of the Lessee's interest under the Ground Lease, or enters into a New Lease with Lessor as provided above. Thereafter, such Lender Party shall be liable for the performance and observance of those covenants and conditions which arise during its possession and ownership as well as those which predate such possession or ownership but as to which such lender party is liable pursuant to the terms of this Agreement. Such Lender Party shall not be liable for the performance or observance of any covenants or conditions to be performed or observed by Lessee which accrue after the transfer of such Lender Party's interest in the Leasehold Estate. (j) No Obligation to Cure. Nothing herein contained shall require any applicable Lender party to cure any Default by Lessee or Event of Lessee's Default under the Ground Lease; provided, however, that if such Lender party shall not: (i) cure same within the times provided by subparagraph 8(b), subparagraph 8(c)(i) and/or subparagraph (c)(iii), as applicable; or (ii) request and obtain a New Lease within the times Ground Lease -Final Page 17 provided by subparagraph (a) of this Section 10, Lessor shall be permitted to proceed with any rights or remedies under the Ground lease and/or otherwise available at law or in equity (subject, however, to any prior rights and remedies of such Lender party as to the Collateral, as provided for by the Ground Lease, this Agreement and/or Applicable Laws). (k) No Obligation as to Accelerated Rent or Damages. Whenever this Agreement refers to any Lender Party's curing monetary Defaults or Events of Lessee's Default, such Lender Party shall not be required to pay any accelerated sums or any damages, other than the payment of accrued interest on monetary sums as required pursuant to Section 8(b) of this Agreement, on account thereof which may otherwise be provided for by the terms of •the Ground Lease, and upon such cure by such Lender party, any such acceleration by Lessor shall be deemed to be nullified and of no force or effect. (1) Survival. The provisions of this Section 10 shall survive the termination of the 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 applicable Lender Party. (m) References to Ground Lease. As of the date the New Lease becomes effective, all references herein to the Ground lease shall be deemed references to the New Lease. 11. ATTORNMENT. In the event any Lender Party succeeds to the rights of Lessee under the Ground Lease through a Foreclosure Transfer or otherwise: (i) such Lender party shall attorn to Lessor; (ii) Lessor shall accept such attornment; and (iii) such Lender party and Lessor shall have the same rights and obligations toward one another which they would have had if the Ground Lease had been entered into directly between them (subject, however, to the provisions of this Agreement). Upon such attornment, the respective rights and obligations of Lessor and such Lender Party shall, for the remaining balance of the Lease Term, be the same as set forth therein, and the Ground Lease shall in accordance with its terms, remain in full force and effect as a direct agreement between Lessor and such lender party with the same force and effect as if originally entered into with Lessor (subject, however, to the provisions of this Agreement). The foregoing provision shall be self -operative. 12. ASSIGNMENT OF GROUND LEASE. Notwithstanding anything to the contrary contained in this Agreement or in the Ground Lease, in the event Leasehold Mortgagee or any Approved Foreclosure Transferee with respect to the Ground Lease either succeeds to the rights of Lessee under the Ground Lease through a Foreclosure Transfer or enters into a New Lease pursuant to Section 10 above, Leasehold Mortgagee or such Approved Foreclosure Transferee may freely assign or transfer, without Lessor's consent, the leasehold Estate or any portion thereof to any Approved Subsequent Foreclosure Purchaser. Any subsequent assignment Ground Lease -Final Page 18 or transfer thereof by such Approved Foreclosure Purchaser to any other Person must comply with the provisions of Article VIII of the Ground Lease. 13. NO MERGER. Lessor and Lessee acknowledge and agree that until all obligations secured by Leasehold Mortgage have been paid in full or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first, unless Leasehold Mortgagee expressly consents in writing, the fee title to the property will not merge with the leasehold Estate but will always remain separate and distinct, notwithstanding the union of such estates in Lessor, Lessee or a third party by purchase or otherwise. In the event Lessee acquires the fee title or any other estate, title or interest in any part of the Property, the Leasehold Mortgage shall attach to and cover and be a lien upon the fee title or other estate so acquired, and such fee title and other estate will, without further assignment, mortgage or conveyance, become and be subjectto the lien of and covered by the Leasehold Mortgage. 14. OTHER APPROVED LEASHOLD MORTGAGEES. In the event Lessee desires to encumber the Leasehold Estate with any Approved Leasehold Mortgage(s) in addition to the Leasehold Mortgage from time to time (to the extent permitted by the Ground lease, the Leasehold Mortgage and other Leasehold Loan Documents or otherwise approved in writing by Lessor or Leasehold Mortgagee, as applicable), Lessor, Lessee, Leasehold Mortgagee and the anticipated holder(s) of such Approved Leasehold Mortgage(s) shall enter into an agreement, in form and substance reasonably acceptable to all such parties. Such agreement shall provide for rights and obligations on the part of such holder(s) of Approved Leasehold Mortgage(s) which are comparable to those set forth herein as to leasehold Mortgagee. Notwithstanding the foregoing, such agreement shall fully recognize Leasehold Mortgagee's first priority position and shall contain such "subordination and intercreditor" provisions recognizing and preserving such first priority position as are acceptable to Leasehold Mortgagee, provided that such provisions do not: (i) affect the business and financial terns of the 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 the Ground lease and this Agreement or impair the protections afforded to Lessor pursuant to the Ground Lease and this Agreement or impose any additional material burdens on Lessor. Such provisions shall address, among other things, priority as to lien rights and rights to receive payments, priority and tuning as to cure rights concerning Defaults, procedures for disbursing Condemnation Awards and Net Insurance Proceeds consistent with the provisions of the Ground Lease and this Agreement, foreclosure rights and "standstill" requirements. 15. OTHER SNDA'S. Leasehold Mortgagee specifically recognizes that: (i) Major Subleasehold Mortgagees, Major Subtenants, holders of Approved time Share Licenses, certain Space Tenants and operators of the Hotels4 are entitled to enter into Subordination, Non Disturbance and Attornment Agreements as contemplated by the provisions of the Ground Lease, each in the form previously submitted in writing to Leas34ehold Mortgagee; and (ii) certain provisions of the Ground lease and such Subordination, Non -Disturbance and Attornment Agreements grant or will grant certain possessory and/or other rights to such parties that will survive any Foreclosures Transfer with respect to the Leasehold Mortgagee, the termination of the Ground Lease, the granting of any New Lease and certain other events described therein. This provision will be modified to add the Marina operator, if applicable. Ground Lease -Final Page 19 16. LESSOR'S CURE RIGHTS. Leasehold Mortgagee hereby acknowledges that Section 15.2 of the Ground Lease permits Lessor, upon prior written notice to Lessee, to cure any default under the Leasehold Mortgage not cured by lessee within the applicable notice and cure period thereunder. Leasehold Mortgagee may, but shall not be obligated, to accept any such cure. 17. MODIFICATIONS, AMENDMENTS, ETC. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the parties against whom the same is sought and asserted. 18. NOTICES. All notices, demands and requests given or required to be given hereunder or pursuant to the terms of the Ground Lease shall be in writing. All such notices, demands and requests by Lessor to Leasehold Mortgagee shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to: Leasehold Mortgagee: With a copy to: Attn: Attn: or to such other address as Leasehold Mortgagee may from time to time designated by written notice to Lessor. All such notices, demands and request by Leasehold Mortgagee to Lessor shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to: Lessor: With a copy to: With a copy to: City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133 Department of Public Facilities, City of Miami 444 SW 2 Avenue Miami, FL 33130 City Attorney, City of Miami 444 SW 2 Avenue Miami, FL 33130 Ground Lease -Final Page 20 19. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by Lessee without Leasehold Mortgagee's prior written consent, which may be granted or withheld in Leasehold Mortgagee's sole discretion. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 20. GOVERNING LAW. This Agreement shall be construed in accordance with the provisions of the laws of the State of Florida, without application of its conflict of law principles. 21. AUTHORITY. Each party to this Agreement represents to the other parties that: (i) it is duly organized, validly existing and in good standing in its state of formation; and (ii) the person executing this Agreement on its behalf is duly authorized to execute this Agreement and to legally bind the party on whose behalf he is executing this Agreement. 22. FURTHER ASSURANCES. Upon Leasehold Mortgagee's request, Lessor and Lessee shall, each at its sole expense, execute, acknowledge and deliver such further instruments and do such further acts as may, in the opinion of Leasehold Mortgagee, be necessary, desirable, or proper to carry out more effectively the purpose of this Agreement. 23. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired thereby. 24. CAPTIONS. The captions and headings contained in this Agreement are for convenience of reference only and shall not be construed as limiting or defining in any way the provisions of this Agreement. 25. RECORDING. At Leasehold Mortgagee's option, this Agreement may be recorded in the Public Records of Miami -Dade County, Florida. 26. WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right any of them 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 Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, 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 each of the parties hereto to enter into this Agreement and for Leasehold Mortgagee to make the Loan. 27. TERMINATION. This Agreement shall terminate at such time as all obligations secured by the Leasehold Mortgage have been paid in full. Such obligations shall not be deemed to have been "paid in full" (as such term is used herein) unless and until any period under any bankruptcy or similar laws during which any payment to Leasehold Mortgagee may be required to be rescinded, disgorged or returned shall have expired without any such payment being required to be rescinded, disgorged or returned. Ground Lease -Final Page 21 28. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed but one agreement. IN WITNESS WHEREOF, Lessor, Lessee and Leasehold Mortgagee have executed this Agreement as of the day and date first written above. Signed, sealed and delivered in the presence of: THE CITY OF MIAMI, a municipal corporation of the State of Florida Name: Name: Name: Name: By: Name: Title: FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company 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: Mehmet Bayraktar, sole and Managing member LEASEHOLD MORTGAGEE ,a Ground Lease -Final Page 22 Name: Name: By: Name: Title: Ground Lease -Final Page 23 ACKNOWLEDGMENT OF LESSOR STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 20, by as of THE CITY OF MIAMI, a political subdivision of The State of Florida, on behalf of that political subdivision. Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 24 ACKNOWLEDGMENT OF LESSEE STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, by Mehmet Bayraktar, as the sole and managing member of Flagstone Property Group, LLC, a Delaware limited liability company, as the sole and managing member of Flagstone Miami Holdings, LLC, a Delaware limited liability company, as the sole and managing member of FLAGSTONE ISLAND. GARDENS, LLC, . a Delaware limited liability company, on behalf of each company. Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 25 ACKNOWLEDGMENT OF LEASEHOLD MORTGAGEE STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, by as of , a , on behalf of that Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 26 EXHIBIT "A" LEGAL DESCRIPTION OF LAND Ground Lease -Final Page 27 EXHIBIT "B" LEGAL DESCRIPTION OF SUBLEASED PROPERTY Ground Lease -Final Page 28 EXHIBIT M APPROVED MAJOR SUBLEASEHOLD MORTGAGEE SNDA Prepared By and Return to Andrew S. Robins, Esq. Gunster, Yoakley & Stewart P.A. 500 E. Broward Blvd., Suite 1400 Ft. Lauderdale, Florida 33394 SPACE ABOVE THIS LINE FOR RECORDING DATA SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") made as of the day of , 20_ by and among THE CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor"), , a ("Major Subtenant"), and , a ("Subleasehold Mortgagee"). WITNESSETH: WHEREAS, Lessor is the owner in fee simple of certain real property more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, pursuant to that certain Ground Lease dated , 200 (the "Ground Lease"), a memorandum of which was recorded in Official Records Book , at Page , of the Public Records of Miami -Dade County, Florida, Lessor has leased the Property to Flagstone Island Gardens, LLC, a Delaware limited liability company ("Lessee"), subject to and in accordance with the terms and conditions of the Ground Lease (unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings ascribed to them in the Ground Lease); and WHEREAS, pursuant to the Ground Lease, Lessee is the owner and holder of the Leasehold Estate during the Lease Term, and Lessee is and shall be, during the Lease Term, the owner and holder of all Leasehold Improvements now or hereafter constructed on the Property; and Ground Lease -Final Page 29 WHEREAS, pursuant to that certain Sublease dated , 20 (the "Sublease"), a memorandum of which was recorded in Official Records Book , at Page , of the Public Records of Miami -Dade County, Florida, Lessee has subleased to Major Subtenant a portion of the Property as more particularly described in Exhibit "B", attached hereto and incorporated herein by this reference (the "Sublease Property"), subject to an in accordance with the terms and conditions of the Sublease; and WHEREAS, the Sublease provides for Major Subtenant to construct and operate certain Leasehold Improvements on the Sublease Property (the "Subleasehold Improvements"), and further provides that during the term of the Sublease (the "Sublease Term"), Major Subtenant is and shall be the owner and holder of all such Subleasehold Improvements (with the ownership thereof reverting to Lessee, subject to and in accordance with the terms and conditions of the Ground lease and the Sublease, upon the expiration of the Sublease Term or the sooner termination of the Sublease); and WHEREAS, Subleasehold Mortgagee has agreed to make a loan in the original face amount of $ to Major Subtenant (as the same may be amended, modified, restated, renewed or extended from time to time, the "Loan"); and WHEREAS, the Loan will be evidenced by a mortgage note (as the same may be amended, modified, restated, renewed, substituted or extended from time to time, the "Note") made by Major Subtenant to the order of Subleasehold Mortgagee and will be secured by, among other things, a mortgage and other security documents more particularly described in Exhibit "C", attached hereto (as the same may be amended, modified, restated, renewed, substituted or extended from time to time, collectively, the "Subleasehold Mortgage") made by Major Subtenant to Subleasehold Mortgagee, which Subleasehold Mortgage will encumber the Major Subleasehold Estate with respect to the major Sublease (the "Subleasehold Estate") and the Subleasehold Improvements (the Note, the Subleasehold Mortgage and all other documents and instruments which evidence, secure or are otherwise related to the Loan, as the same may be amended, modified, restated, renewed, substituted or extended from time to time, are sometimes hereinafter collectively referred to the "Subleasehold Loan Documents"). NOW, THEREFORE, the parties hereto, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and incorporated herein by this reference. 2. Certain Defined Terms. As used herein, the following terms shall have the respective meanings ascribed to them below: (a) "Ground Lease Termination" shall mean the termination of the Ground Lease for any reason, or the rejection or disaffirmation of the Ground Lease in any bankruptcy, insolvency or other similar proceedings, if the Ground Lease -Final Page 30 effect of such rejection or disaffirmation is to cause the Ground Lease to terminate. (b) "Sublease Termination" shall mean the termination of the Sublease for any reason (including but not limited to, any such termination by operation of law on account of a Ground Lease Termination), or the rejection or disaffirmation of the Sublease in any bankruptcy, insolvency or other similar proceedings, if the effect of such rejection or disaffirmation is to cause the Sublease to terminate. (c) "New Lease" shall mean any new ground lease hereafter entered into between Lessor and a New Lessee pursuant to the terms of any Leasehold Mortgage. SNDA or. Major . Subtenant . SNDA, subsequent to a Ground Lease Termination. (d) "New Lessee" shall mean any: (i) Approved Leasehold Mortgagee or any other Person which enters into a New Lease with Lessor pursuant to the terms of any Leasehold Mortgage SNDA; or (ii) Major Subtenant which enters into a New Lease pursuant to the terms of any Major Subtenant SNDA. (e) "New Sublease" shall mean any new sublease hereafter entered into between Lessee and Subleasehold Mortgagee (or any other Person entitled to enter into same) pursuant to the terms of a lessee Subleasehold Mortgage SNDA, subsequent to a Ground Lease Termination. (f) (g) "Substitute Sublease" shall mean either of the following, as applicable: (i) a sublease entered into between a New Lessee, as sublessor, and any Subleasehold Lender Party, as sublessee, pursuant to Section 10 below; or (ii) a sublease entered into between a New Lessee, as sublessor, and Major Subtenant, as sublessee, pursuant to the terns of the Major Subtenant SNDA, in either case subsequent to a Ground Lease Termination. "Direct Lease" shall mean either of the following, as applicable; (i) a direct lease entered into between Lessor, as lessor, and any Subleasehold Lender Party, as lessee, pursuant to Section 10 below; or (ii) a direct lease entered into between Lessor, as lessor, and major Subtenant, as lessee, pursuant to the terns of the Major Subtenant SNDA, in either case subsequent to a Ground Lease Termination. (h) "Leasehold Mortgage SNDA" shall mean any Subordination, Non - Disturbance and Attornment Agreement or other similar agreement now or hereafter entered into among Lessor, lessee and an Approved Leasehold Mortgagee with respect to the Ground Lease. Ground Lease -Final Page 31 (i) "Lessee Subleasehold Mortgage SNDA" shall mean any Subordination, Non -Disturbance and Attorunent Agreement or other similar agreement now or hereafter entered into among Lessee, Major Subtenant and Subleasehold Mortgagee with respect to the Sublease. (j) "Major Subtenant SNDA" shall mean any Subordination, Non - Disturbance or other similar agreement now or hereafter entered into between Lessor and Major Subtenant. (k) "Subleasehold Mortgagee" shall include: (i) each and every successor of Subleasehold Mortgagee; and (ii) each and every assignee of Subleasehold Mortgagee, so long as such assignee independently meets the criteria set forth in clauses (i) through (vii) -of the definition of Approved Lender contained in the Ground Lease (subject to the last sentence of clause (viii) of such definition. (1) (m) "Subleasehold Lender Party" shall mean (i) as to any period prior to a Foreclosure Transfer with respect to the Subleasehold Mortgage, Subleasehold Mortgagee; and (ii) as to any period after such Foreclosure Transfer, any Approved Foreclosure Transferee (with respect to the Subleasehold Mortgage and the other Subleasehold Loan Documents), or any Approved Subsequent Foreclosure Purchaser (with respect to the Sublease Property, the Sublease Improvements and/or the Subleasehold Estate or any portion thereof), as applicable. "Default" shall mean any default or any event which, if not remedied, would or could result in an Event of Lessee's Default under the Ground Lease. (n) "Default Notice" shall mean any written notice of other written communication from Lessor to Lessee pertaining to an Event of Lessee's Default under the Ground Lease. (o) "Optional Advances" shall mean: (i) a future advance under the Subleasehold Mortgage which is entirely within Subleasehold Mortgagee's discretion to make; or (ii) any advance of additional funds pursuant to a future modification of the Subleasehold Mortgage; provided, however, that in no event shall the term "Optional Advance" be deemed to include any advances or disbursements for construction or other purposes which are made upon the satisfaction or waiver of certain terms and conditions specified in the Subleasehold Loan Documents, even if the Subleasehold Mortgage and/or the other Subleasehold Loan Documents permit Subleasehold Mortgagee to determine in its sole discretion or judgment whether to make such advances or disbursements if such terns and conditions are not satisfied or if a default or event of default under the Subleasehold Mortgage and/or the other Subleasehold Loan Documents Ground Lease -Final Page 32 (p) then exists. Moreover, the term "Optional Advance" shall not include any advances for the purpose of paying unpaid taxes, assessments or levies against the Sublease property or unpaid insurance premiums with respect to the Sublease Property, protecting the Collateral (as hereinafter defined), preserving Subleasehold Mortgagee's lien upon and security interest in the Collateral, curing defaults under the Subleasehold Loan Documents, the Ground Lease and/or the Sublease and other protective, remedial and/or curative advances. "Lessor's Lien" shall collectively mean and refer to: (i) the lien granted to Lessor upon the Leasehold Improvements and the Leasehold Estate to the extent described in Section 23.1 of the Ground Lease; and (ii) any and all other claims, rights of distraint or levy, "landlord lien" or other lien rights, or any other right, title or interest, if any, which Lessor may have upon, in or to any portion of the Collateral from time to time. 3. Lessor's Fee Estate Not Encumbered by Subleasehold Mortgage; Subordination. (a) Lessor's Fee Estate Not Encumbered. Subleasehold Mortgagee hereby acknowledges and agrees that the Subleasehold Mortgage does not and shall not encumber or constitute a lien upon Lessor's fee simple estate in the Property. (b) Subordination. The Subleasehold Mortgage, and all of the Subleasehold Mortgagee's right, title and interest in and to the Sublease, the Sublease Property, and the Subleasehold Improvements and all rights, remedies and options of Subleasehold Mortgagee under the Subleasehold Loan Documents, are and shall be unconditionally subject and subordinate to the right, title and interest of Lessor in and to the property and the Ground Lease, subject to the provisions of this Agreement. 4. Lessor's Acknowledgement. Pursuant to any and all applicable provisions of the Ground lease, Lessor hereby irrevocably and fully consents to the execution and delivery (and recordation, where applicable) of the Subleasehold Mortgage and other Subleasehold Loan Documents. Lessor hereby further acknowledges and agrees as follows.5 (a) Approved Lender. Subleasehold Mortgagee hereby is, and shall at all times until all obligations secured by the Subleasehold Mortgage have been paid in full or the Subleasehold Mortgage has been fully released and satisfied whichever occurs first, be deemed an Approved Lender, an Approved Major 5 As a condition to Lessor's executing this Agreement, Lessor may require Major Subtenant to provide such written representations or other evidence as Lessor may reasonably require in order to confirm that the conditions set forth in the definitions of Approved Lender, Approved Major Subleasehold Mortgagee, Approved Mortgagee, Approved Major Subleasehold Mortgage and Approved Mortgage, as defined in the Ground Lease, are satisfied. This footnote will be deleted from the final form of this Agreement before it is executed. Ground Lease -Final Page 33 Subleasehold Mortgagee and an Approved Mortgagee, as such terms are defined, described and used in the Ground Lease. (b) Approved Mortgage. (i) General. The Subleasehold Mortgage hereby is, and shall at all times until all obligations secured by the Subleasehold Mortgage have been paid in full, or the Subleasehold Mortgage has been fully released and satisfied, whichever occurs first, be deemed an Approved Mortgage and an Approved Major Subleasehold Mortgage, as such terms are defined, described, and used in the Ground Lease. (ii) Optional Advances. Notwithstanding the provisions of subparagraph (a) above, no Optional Advance shall be deemed secured by an Approved Mortgage or an Approved Subleasehold Mortgage unless and until the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease are independently satisfied as to such Optional Advance. Each such Optional Advance shall be treated as a separate loan for purposes of satisfying the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease. Upon Subleasehold Mortgagee's request and delivery of evidence reasonably satisfactory to Lessor that the provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease are independently satisfied as to any such Optional Advance, Lessor shall execute a written acknowledgement confirming that such Optional Advance independently satisfies the requirements of such clauses (iii) and (iv). (c) Rights and Benefits Under Ground Lease. All rights and benefits of an Approved Lender, Approved Major Subleasehold Mortgagee and an Approved Mortgagee provided in the Ground Lease, insofar as the Sublease is concerned, may be exercised and enjoyed by Subleasehold Mortgagee in accordance with the provisions of the Ground Lease, including, but not limited to, those rights and benefits conferred by Article VI (Leasehold and Subleasehold Mortgages), Section 8.7 (Approved Leasehold Mortgages, Leases and Subleases), Article XVI (Damage or Destruction) and Article XXIV (Condemnation) of the Ground Lease, and Lessor is and shall be bound by all provisions in the Ground Lease applicable to Subleasehold Mortgagee and the Subleasehold Mortgage. (d) Conditions of Ground Lease Satisfied. Major Subtenant hereby represents that it has delivered to Lessor copies of the executed Subleasehold Mortgage and all other Subleasehold Loan Documents (as more particularly described on a separate certificate signed by Major Subtenant and delivered to Lessor), and that same have not been modified or amended through the date all conditions of Section 6.4 of the Ground Lease have been fully satisfied (and that Ground Lease -Final Page 34 this Agreement fully satisfies the requirements of Section 6.4 of the Ground Lease concerning the execution and delivery of the Subordination, Non -Disturbance and Attormnent Agreement described therein with respect to the Subleasehold Mortgage), such that Subleasehold Mortgagee shall have the rights and benefits described in Article VI of the Ground Lease. 5. Collateral for Subleasehold Mortgage. Until all obligations secured by the Subleasehold Mortgage have been paid in full or the Subleasehold Mortgage has been fully released and satisfied, whichever occurs first: (a) Lien and Encumbrance. Lessor hereby acknowledges that the purpose of the Subleasehold Mortgage is to create a lien and encumbrance upon and security interest in all of the collateral described in the Subleasehold Mortgage and the other Subleasehold Loan Documents and all additions, replacements and substitutions therefor and proceeds thereof (collectively, the "Collateral"), including, but not limited to, the following items (except to the extent the Subleasehold Loan Documents specifically provide that same are not part of the Collateral): (i) the Subleasehold Estate (and related easements) and the Subleasehold Improvements; (ii) all of Major Subtenant's right, title and interest in and to any and all furniture, fixtures, equipment, machinery, goods, merchandise, inventory and other tangible personal property of Major Subtenant located upon or within or connected to the Sublease Property; (iii) all of Major Subtenant's right, title and interest in and to any and all intangible personal property pertaining or related to or connected with the Sublease property, including, but not limited to, plans and specifications, permits, licenses, service contracts and other agreements, and intellectual property, and (iv) all other tangible and intangible personal property of Major Subtenant of any kind or nature whatsoever, wherever located, now or hereafter acquired, all as more particularly set forth in the Subleasehold Mortgage. (b) No Ownership Rights of Lessor. At all times during the Sublease Term (and if a Substitute Sublease, a Direct Lease or a New Sublease is entered into pursuant to the Ground Lease, this Agreement or any Major Subtenant SNDA, at all times during the tern thereof, including any extension options when and if exercised, and any period between the Ground lease Termination and the commencement of the term of such Substitute Sublease, Direct Lease or New Sublease, as applicable), but not after the expiration of the Sublease Tern, or the Ground Lease -Final Page 35 tern of any such Substitute Sublease, Direct Lease or New Sublease, as the case may be: (i) Lessor is not, and shall not claim to be, the owner of the Collateral or any part of the Collateral; and (ii) all of the Collateral shall be conclusively presumed to be the property of Subtenant (subject to any rights therein of Subleasehold Mortgagee or any or any Persons claiming by, through or under Subleasehold Mortgagee), regardless of the nature of any item of the Collateral or the manner in which it is or may become affixed to or incorporated into the Sublease Property or otherwise acquired or obtained by Major Subtenant. 6. Lessor's Lien. (a) Acknowledgment. Subleasehold Mortgagee hereby acknowledges that pursuant to Section 23.1 of the Ground Lease, Lessee has granted to Lessor a lien upon the Leasehold Improvements and the Leasehold Estate to the extent described therein. (b) Subordination. Lessor acknowledges and agrees that each and every Lessor's Lien (to the extent same may exist) is and shall at all times and for all purposes and in all respects, be subject, subordinate and inferior to the lien, operation, effect, terms and provisions of the Subleasehold Mortgage and other Subleasehold Loan Documents and the rights of Subleasehold Mortgagee (and any Approved Foreclosure Transferee and any Approved Subsequent Foreclosure Purchaser) thereunder or otherwise in connection with the Loan. (c) No Enforcement. Lessor acknowledges and agrees that without Subleasehold Mortgagee's prior written consent, no Lessor's Lien may be enforced against any portion of the Subleasehold Improvements, the Subleasehold Estate or any other portion of the Collateral at the time such portion is encumbered by the Subleasehold Mortgage and/or the other Subleasehold Loan Documents. (d) Lessor's Lien Arising After Foreclosure Transfer. Notwithstanding the provisions of subparagraphs 5(b) and 5(c) above, any Subleasehold Lender Party shall take subject to any .Lessor's Lien on account of any obligation arising after the date of the Foreclosure Transfer by which such Subleasehold Lender Party acquires title to the Collateral, and Lessor may enforce such Lessor's Lien as permitted by the provisions of the Ground Lease. (e) Development Plans. Ground Lease -Final Page 36 (i) Use Rights. Subleasehold Mortgagee hereby acknowledges that Lessee has granted to Lessor the right to: (i) use the Development Plans, to the extent set forth in Section 6.10 of the Ground Lease; and (ii) 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), to the extent set forth in Section 6.10 of the Ground Lease. Lessor hereby agrees not to enforce such rights except as provided by subparagraph (c)(iii) below. (ii) Subordination. Without limiting the generality of subparagraph (b) above, Lessor hereby acknowledges and agrees that the rights of Lessor described in subparagraph (e)(i) above are and shall, at all times and for all purposes and in all respects, be subject, subordinate and inferior to lien, operation, effect, terms and provisions of the Subleasehold Mortgage and the other Subleasehold Loan Documents and the rights of each Subleasehold Lender Party thereunder with respect to the Development Plans and the Project Approvals (insofar as same relate to the Sublease Property and Subleasehold Improvements). If required by Subleasehold Mortgagee, Lessor shall join in any pledge of such rights as security for the Loan solely to subordinate Lessor's interest in the same to the interest therein of each Subleasehold Lender Party on the terms set forth herein. (iii) Rights Upon Termination of Lease. In the event of termination of the 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 such Development Plans and the ability to grant to other professionals the right to use such 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 such Project Approvals, without payment of any consideration therefor by Lessor to Major Subtenant, provided that until the expiration of the period within which a substitute Sublease, a Direct Lease or a New Sublease may be entered into, such rights of Lessor therein shall, at all times and for all purposes and in all respects, be subject, subordinate and inferior, to the rights therein of any Person entering into any such Substitute Sublease, Direct Lease or New Sublease. 7. Renewal Options. Until all obligations secured by the Subleasehold Mortgage have been paid in full or the Subleasehold Mortgage has been fully released and satisfied, whichever occurs first, Lessor shall give written notice to Subleasehold Mortgagee of Lessee's failure to timely exercise any Extension Option under the Ground lease (the "Extension Option Notice"). If such extension option: (i) is not timely exercised by any Approved Leasehold Mortgagee or any other Person entitled to exercise same pursuant to the terms of any Leasehold Mortgage SNDA, and (ii) is not exercised by Major Subtenant pursuant to the terms of the Major Subtenant SNDA with respect to the Subleased Property, then Subleasehold Mortgagee (or an Approved Foreclosure Transferee with respect to the Subleasehold Mortgage, if applicable) may, at its option, and without limiting the availability of other remedies under the Subleasehold Loan Ground Lease -Final Page 37 Documents, exercise such Extension Option solely with respect to the Sublease Property, in which event a Direct lease shall be entered into between Major Subtenant and lessor, in accordance with the terms of Section 10 below, for the same period of time as set forth in such Extension option, provided that: (a) No Material Uncured Lessee's Default. No Material Uncured Lessee's Default then exists, other than a Material Uncured Lessee's Default: (i) as to which Subleasehold Mortgagee or such Approved Foreclosure Transferee is diligently pursuing a cure in the manner and within the time afforded by Section 8 below; or (ii) which is not susceptible to cure; and (b) Time to Exercise. Subleasehold Mortgage or such Approved Foreclosure Transferee exercises such Extension Option within fifteen (15) days after the later of: (i) the date on which same may be exercised by any Approved Leasehold Mortgagee (or other Person entitled to exercise such Extension Option) pursuant to the terns of any Leasehold Mortgage SNDA; or (ii) the date on which same may be exercised by Major Subtenant pursuant to the terms of the Major Subtenant SNDA. In the event any such Person described in clauses (i) and (ii) above exercises such Extension Option, Lessor shall use reasonable efforts, within two (2) business days thereafter, to give Subleasehold Mortgagee or such approved Foreclosure Transferee, as applicable, written notice of such fact; provided, however, that Lessor shall not have any liability for failure to provide such written notice. Furthermore, Lessor agree to use reasonable efforts to respond to any written inquiries by Subleasehold Mortgagee or such Approved Foreclosure Transferee, as applicable, to the City Attorney of the City of Miami, Florida (the "City attorney") as to whether any of the Persons described in clauses (i) and (ii) above have exercised such Extension Option. 8. Notice and Cure Rights. Until all obligations secured by the Subleasehold Mortgagee have been paid in full, or the Subleasehold Mortgage is fully released and satisfied, whichever occurs first, Lessor shall have the obligations and the applicable Subleasehold Lender Party shall be afforded the notice and cure rights and other rights, set forth in Section 8 (unless an Approved Leasehold Mortgagee or a Major Tenant has already cured the alleged Default), provided that in the case of any Approved Foreclosure Transferee or Approved Subsequent Foreclosure Purchaser, such Subleasehold Lender Party shall have given Lessor written notice of its name and address. (a) Notice of Default. Whenever Lessor sends or gives Lessee any Default Notice, Lessor shall simultaneously send a copy of such Default Notice to the applicable Subleasehold Lender Party. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries by a Subleasehold Lender Party to the City Attorney with respect to the status of any such Event of Lessee's Default or cure related thereto. (b) Right to Cure. The applicable Subleasehold Lender Party shall be afforded same period of time as is allowed to any Approved Leasehold Ground Lease -Final Page 38 Mortgagee or other Person under the provisions of such Leasehold Mortgage SNDA, plus an additional thirty (30) days, to cure the alleged Default or cause the same to be cured, provided that such cure shall require payment of interest at the Default Rate (as defined in Section 1.5(s) of the Ground Lease) on sums due pursuant to the Ground Lease for the period commencing on the date on which such Subleasehold Lender Party first received such Default Notice until the date payment is received by Lessor. In the event an Approved Leasehold Mortgagee, Major Subtenant or any other Person cure the alleged Default or causes same to be cured, Lessor shall use reasonable efforts, within two (2) business days thereafter, to give such Subleasehold Lender Party written notice of such fact; provided, however that Lessor shall not have any liability for failure to provide such written notice. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries by such Subleasehold Lender Party to the city Attorney as to whether an Approved Leasehold Mortgagee, Major Subtenant or any other Person has cured the alleged Default or caused same to be cured. (c) Cooperation. In connection with any efforts by the applicable Subleasehold Lender Party to cure the alleged Default or cause same to be cured, Lessor agrees to cooperate in the prosecution of any foreclosure or other proceedings brought by any Subleasehold Lender Party to obtain possession of the Sublease Property (or if appropriate, the property); provided, however, that; (i) notwithstanding the foregoing, Lessor shall not be obligated to cooperate if Lessor determines in its sole and absolute discretion that such cooperation may expose Lessor to liability; and (ii) Lessor shall not be obligated to incur any cost in connection with such cooperation unless Lessor is reimbursed for any actual and reasonable cost so incurred by Lessor. (d) Effect of Stay. Lessor agrees that if by reason of a bankruptcy, insolvency or similar type proceeding, or by reason of any other judicial order or legislative enactment, any Subleasehold Lender Party shall be stayed from commencing (or if commenced, from continuing) foreclosure proceedings which are necessary to enable the Subleasehold Lender Party to cure such Event of Lessee's Default, then for purposes of determining whether such Subleasehold Lender Party is pursuing a cure of an alleged Default within the time set forth in subparagraph 8(b) above, such Subleasehold Lender Party shall be deemed to be prosecuting such proceedings in the exercise of due diligence and in good faith so long as it is in good faith attempting to obtain relief from any such stay. (e) Acceptance of Cure. Lessor hereby agrees to accept, any such cure of a Default made within the time periods described in subparagraph (b) above, as applicable, by or on behalf of any Subleasehold Lender Party, as if same had been performed by Lessee. Ground Lease -Final Page 39 (f) Nullification of any Termination. Any attempt by Lessor to terminate the Ground lease on account of any Default or Event of Lessee's Default shall be null and void and of no force or effect for so long as any applicable Subleasehold Lender Party is pursuing a cure thereof pursuant to this Section 8 within the time period set forth in subparagraph (b) above. 9. Lessor's Right to Terminate. (a) Notice of Intent to Terminate. If (i) any Default described above (or any Default occurring while any applicable Subleasehold Lender Party is exercising its cure rights) is not cured within the applicable time period set forth in subparagraph 8(b) above, and (ii) Lessor intends to terminate the Ground Lease, Lessor shall give the applicable Subleasehold Lender Party written notice in the manner provided by Section 37.2 of the Ground Lease of Lessor's intent to terminate the Ground lease on account of the failure to cure same in accordance with the Ground lease and this Agreement (provided that such Default is not timely cured pursuant to the terms of any Leasehold Mortgage SNDA or the major Subtenant SNDA). (b) Termination. Such termination shall become effective if and only if: (i) such Default has not theretofore been cured pursuant to the terms of any Leasehold Mortgage SNDA or Major Subtenant SNDA (or otherwise); and (ii) the applicable Subleasehold Lender Party shall fail to cure same within ten (10) days after the later of: (a) the date on which such Default may be cured pursuant to the terms of any Leasehold Mortgage SNDA; or (b) the date on which such Default may be cured pursuant to the terms of any Major Subtenant SNDA. In the event an approved Leasehold Mortgagee Major Subtenant or any other Person cures the alleged Default or causes same to cured, Lessor shall use reasonable efforts to give within two (2) business days thereafter, such Subleasehold Lender Party written notice of such fact; provided, however, that Lessor shall not have any liability for failure to provide such written notice. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries by such Subleasehold Lender Party to the City Attorney as to whether an Approved Leasehold Mortgagee, Major Subtenant or any other Person has cured the alleged Default or caused same to be cured. 10. Ground Lease Termination. (a) Preservation of Sublease. Upon the occurrence of any Ground lease Termination, the Sublease shall, unless it is deemed terminated by operation of law, remain in full force and effect notwithstanding such Ground Lease Termination and shall revert to Lessor as a Direct Lease between Lessor and Major Subtenant, subject to the terms and conditions set forth in subsection Ground Lease -Final Page 40 (b)(iii) below. If the Sublease remains in full force and effect notwithstanding such Ground lease Termination and reverts to Lessor, then in the event a New Lease is entered into between Lessor and any New Lessee pursuant to the terms of the Ground lease and any applicable Leasehold Mortgage SNDA or Major Subtenant SNDA, the Sublease shall be assigned and transferred, without recourse, by Lessor to the New Lessee, and shall continue in full force and effect as a Major Sublease under the New Lease. (b) Direct Lease. If upon any Ground lease Termination: (i) the Sublease is deemed terminated by operation of law; (ii) a Major Subtenant has not yet entered into a New Lease or a Direct lease pursuant to the terms of any major Subtenant SNDA; and (iii) an Approved Leasehold Mortgagee or any other applicable person has not yet entered into a new Lease or a Direct lease pursuant to the terms of any Leasehold Mortgage SNDA, the applicable Subleasehold Lender Party shall, upon satisfying the conditions set forth below, have the right (but not the obligation) to enter into a Direct lease with Lessor, subject to the terms and conditions set forth in subsection (iii) below.6 (i) Notice. Such Subleasehold Lender Party shall give Lessor written notice of its election to enter into such Direct Lease (the "Election Notice") within thirty (30) days after the later of: (i) the last date on which a Major Subtenant may elect to enter into a New Lease or a Direct lease pursuant to the terms of any Major Subtenant SNDA; and (ii) the last date on which an Approved Leasehold Mortgage or any other applicable Person may elect to enter into a New Lease or a Direct lease pursuant to the terns of any Leasehold Mortgage SNDA. Lessor and such Subleasehold Lender Party shall enter into such Direct Lease within sixty (60) days after the Election Notice is given. (ii) Cure of Defaults. As a condition to entering into such Direct lease, the applicable Subleasehold Lender Party shall: (i) have remedied all Defaults on the part of Lessee involving the payment of money to Lessor to the extent of the Sublease Proportionate Amount (as hereinafter defined) for the period such Default shall have existed (i.e., such monetary amount multiplied by such Sublease proportionate Amount), and all other Defaults specifically related to the Sublease property and/or the Subleasehold Improvements; and (ii) continue to pay all Rent that would come due under the Ground lease but for such Ground lease Termination to the extent of the Sublease proportionate amount during the term of the Direct Lease (i.e., such Rent amount multiplied by such Sublease proportionate amount), Lessor and such Subleasehold Lender Party shall use good faith efforts to enter into the Direct lease as soon as practicable. From the date on which such Subleasehold Lender Party shall serve the election Notice upon Lessor until such Direct Lease is entered into, such Lender Party may use and enjoy the Sublease property without hindrance by Lessor but subject to compliance with the terns of the Sublease. The term 6 If required by Subleasehold Mortgagee, this provision will be modified to provide for the Sublease to be deemed automatically converted to a Direct Lease where the conditions set forth in clauses (i), (ii) and (iii) have been met. Ground Lease -Final Page 41 "Sublease proportionate Amount" shall mean, for any applicable period of time, a fraction, the numerator of which is an amount equal to the base rent and percentage rent payable under the Sublease during such period, and the denominator of which is an amount equal to the aggregate base rent and percentage rent payable under all Approved Major Subleases then in existence (including the Sublease) during such period (plus any anticipated rents for any Major project Component which is not then subject to a major Sublease). (iii)Terms and Conditions of Direct Lease. The term of such Direct Lease shall begin on the date of the Ground Lease Termination and shall continue for the remainder of the Sublease Tenn, including any extension terms that were previously exercised or may thereafter be exercised thereunder (it being agreed that the lessee under the Direct Lease shall have the same rights to renew the teen of the Direct Lease as the Lessee had under the Ground Lease„ provided that such rights are exercised by the lessee under the Direct Lease within the original tirnefrarnes provided for in the Ground Lease, notwithstanding the fact that the Ground Lease has been terminated, and further provided that notwithstanding anything contained herein to the contrary, in no event shall the term of the Direct Lease extend beyond the maximum 75 year Lease Term). Such Direct Lease shall otherwise contain the same teens and conditions as those set forth in the Sublease, except for requirements which are no longer applicable or have already been performed; provided, however, that: (1) such Direct Lease shall require the lessee thereunder promptly to commence, and expeditiously to continue, to remedy all then existing Defaults on the part of the lessee (where such Defaults are specifically related to the Sublease Property and/or the Subleasehold Improvements) to the extent reasonably susceptible of being remedied; (2) such Direct Lease, if entered into by Subleasehold Mortgagee or any Approved Foreclosure Transferee with respect to the Subleasehold Mortgage, shall permit such party to assign such Direct Lease to an Approved Subsequent Foreclosure Purchaser without Lessor's consent; (3) such Direct Lease shall include any changes which are appropriate on account of the relationship between the parties being that of lessor and lessee rather than sublessor and sublessee; (4) such Direct Lease shall include at Lessor's option in its sole discretion, the remedies to which Lessor and lessee are entitled to under Sections 25.2, 25.3 and/or 25.4 of the Ground Lease; Ground Lease -Final Page 42 (5) such Direct lease shall provide that notwithstanding anything in the Sublease to the contrary, Lessor, as lessor under the Direct lease, shall not be: (A) liable for any act or omission of, or breach or default by, Lessee under the Sublease; (B) subject to any offsets or defenses which Major Subtenant or any Subleasehold Lender Party may have against Lessee under the Sublease; (C) bound by any rent or other payments, including without limitation, common area maintenance charges, taxes security deposits, etc., which Major Subtenant or any Subleasehold Lender Party may have paid under the Sublease to Lessee or any Person other than Lessor more than thirty (30) days in advance of the applicable due date therefor under such Direct Lease; (D) bound by any covenants and/or obligations to be performed by or on behalf of Lessee, as Lessor under the Sublease, including, without limitation, any obligation on the part of Lessee to perform capital improvements and/or to repair and/or replace the Sublease Property and/or Sublease Improvements due to casualty or condemnation, other than the covenant of quiet enjoyment by Lessor so long as no default exists under the Direct Lease, except and to the extent that any such covenant and/or obligation is expressly made or undertaken by Lesssor under the Ground lease; and (E) without limiting the foregoing subsections (A) through (D) above, be liable for any indemnity made by Lessee to Major Subtenant under the Sublease, including without limitation, with respect to hazardous and toxic substances and/or materials. (iv) No Cancellation of Space Leases or Approved time Share Licenses. Between the date of any Ground Lease Termination and the date of execution and delivery of such Direct Lease, Lessor shall not cancel or terminate any Space Lease or any Approved Time Share License related to the Sublease Property, or accept any cancellation, termination or surrender thereof (unless such termination shall be effective as a matter of law upon the Ground Lease Termination), without the prior written consent of the applicable Subleasehold Lender Party. (v) Approval by Lessor of Sublease. In connection with Lessor's agreement to grant a Direct Lease to the applicable parties provided herein on the same terms and conditions of the Sublease, subject, however, to the Ground Lease -Final Page 43 provisions of this Section 10, Lessee, Major Subtenant and Subleasehold Mortgagee hereby acknowledge and agree that it shall be reasonable for the City Manager to consider in its approval of the Sublease in accordance with Section 33.3 of the Ground Lease the possibility that the Lessor will be required to enter into a Direct Lease hereunder on the same terms and conditions of such Sublease, as such terms may be modified by this Section 10. (c) Substitute Sublease. If, after a Direct Lease has been entered into pursuant to subparagraph 10(b) above, a new Ground Lease is entered into between Lessor and a New Lessee pursuant to the terms of the Ground Lease and any applicable Leasehold Mortgage SNDA or Major Subtenant SNDA, such New Lessee and the Major Subtenant shall, without Lessor's consent, enter into a Substitute Sublease upon the same terms and conditions as those specified in the Direct lease for the remainder of the term that was set forth in the Direct lease, including any extension options, if applicable, whether exercised or remaining to be exercised. In such event, such Substitute Sublease shall be deemed effective as of the effective date of the New Lease, and such Direct Lease shall be deemed terminated as of the effective date of the New Lease. (d) Restoration of Positions. At the time of the execution and delivery of the Direct Lease or the New Lease and the Substitute Sublease, as applicable, Lessor, the New Lessee, Major Subtenant and all other parties having an interest in the Sublease Property, including, but not limited to, any tenants under Subleases, holders of Approved time Share Licenses and Approved Mortgagees 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, new Subordination, Non -Disturbance and Attornment Agreements and new easements which were previously granted, 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 interest and status with respect to the Sublease Property which was possessed by the respective parties prior to the Ground Lease Termination. (e) Subrogation. The Subleasehold Lender Party obtaining any Direct Lease shall be subrogated to the rights of Lessor against Lessee as to any monetary defaults of Lessee which are cured by such Lender Party as a condition to obtaining such Direct Lease, and any other Defaults which are remedied as described in subparagraphs (b)(i) and (b)(ii) above (but are not as to any other matters). (f) No Obligation to Cure Uncurable Defaults. Nothing contained herein or in the Ground Lease or the Sublease shall require any applicable Subleasehold Lender Party, as a condition to its exercise of its right to enter into a Direct Lease Ground Lease -Final Page 44 or a Substitute Sublease, to cure any Default of Lessee not reasonably susceptible of being cured by such Lender Party. (g) Priority as to Approved Subleasehold Mortgages. If, pursuant to the provisions of subparagraph (b) or subparagraph (c) above, more than one request for a Direct lease or Substitute Sublease shall have been received by Lessee from more than one holder of an Approved Subleasehold Mortgage (or any Approved Foreclosure Transferee of Approved Subsequent Foreclosure Purchaser with respect thereto), then in the absence of any written subordination and intercreditor agreement or other similar agreement between such holders, priority with respect to the right to enter into such Direct Lease or Substitute Sublease shall be given (regardless of the order in which such requests shall have been made or received) to such holders (or any Approved Foreclosure Transferees or Approved Subsequent Foreclosure Purchasers with respect thereto) in the same order as the order of recording of the applicable Approved Subleasehold Mortgages. (h) Liability. No Subleasehold Lender Party (or any assignee, designee or nominee thereof) shall become liable for the performance or observance of any covenants or conditions to be performed or observed by Major Subtenant, unless and until such Subleasehold Lender Party acquires possession of the Subleasehold Estate, becomes the owner of the Major Subtenant Interest under the Sublease or enters into a Direct Lease or Substitute Sublease as provided above. Thereafter, such Subleasehold Lender Party shall be liable for the performance and observance of those covenants and conditions which arise during its possession and ownership as well as those which predate such possession or ownership as to which such Subleasehold Lender Party is liable pursuant to the terms of this Agreement (which, in the case of a Direct lease, shall be only those items described in subparagraph 10(b)(ii) above). Such Subleasehold Lender Party shall not be liable for the performance or observance of any covenants or conditions to be performed or observed by Major Subtenant which accrue after the transfer of such Subleasehold Lender Party's interest in the Subleasehold Estate. (i) No Obligation to Cure. Nothing herein contained shall require any applicable Subleasehold Lender Party to cure any Default by Lessee or Event of Lessee's Default under the Ground lease; provided, however, that if such Subleasehold Lender Party shall not: (i) cure same within the time and in the manner provided by subparagraph (b) above; or (ii) request and obtain a Direct Lease within the time provided by subparagraph (b) above, Lessor shall be permitted to proceed with any rights or remedies under the Ground Lease and/or otherwise available at law or in equity (subject, however, to any prior rights and remedies of such Subleasehold Lender Party as to the Collateral, as provided for by the Ground lease, the Sublease, this Agreement and/or Applicable Laws). (j) No Obligation as to Accelerated Rent or Damages. Whenever this Agreement refers to any Subleasehold Lender Party's curing monetary Defaults or Ground Lease -Final Page 45 Events of Lessee's Default, such Subleasehold Lender Party shall not be required to pay any accelerated sums or any damages, other than the payment of accrued interest on monetary sums as required pursuant to Section 8(b) of this Agreement, on account thereof which may otherwise be provided for the terms of the Ground lease, and upon such cure by such Subleasehold Lender Party, any such acceleration by Lessor shall be deemed to be nullified and of no force or effect. (k) Survival. The provisions of this Section 10 shall survive any Ground lease Termination 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, Major Subtenant and the applicable Subleasehold Lender Party. (1) References to Sublease. As of the date any Direct Lease or Substitute Sublease becomes effective, all references herein to the Sublease shall be deemed references to such Direct Lease or Substitute Sublease. 11. Other Approved Subleasehold Mortgagees. In the event Major Subtenant desires to encumber the Subleasehold Estate with any. Approved Subleasehold Mortgage(s) in addition to the Subleasehold Mortgage from time to time (to the extent permitted by the Ground Lease, the Sublease, the Subleasehold Mortgage and other Subleasehold Loan documents or otherwise approved in writing by Lessor, lessee or Subleasehold Mortgagee, as applicable), Lessor, Lessee, Major Subtenant, Subleasehold Mortgagee and the anticipated holder(s) of such Approved Leasehold Mortgage(s) shall enter into an agreement, in form and substance reasonably acceptable to all such parties. Such agreement shall provide for rights and obligations on the part of such holder(s) of Approved Subleasehold Mortgage(s) which are comparable to those set forth herein as to Subleasehold Mortgagee. Notwithstanding the foregoing, such agreement shall fully recognize Subleasehold Mortgagee's first priority position and shall contain such "subordination and intercreditor" provisions recognizing and preserving such first priority position as are acceptable to Subleasehold Mortgagee, provided that such provisions do not: (i) affect the business and financial terms of the Ground Lease and the Sublease; (ii) constitute a material deviation from the Watson Island RFP and the Island Gardens Proposal; (iii) significantly impair the protections afforded to Lessor pursuant to the Ground Lease and this Agreement or impose any additional material burdens on Lessor; or (iv) significantly impair the protections afforded to Lessee pursuant to the Sublease and this Agreement or impose any additional material burdens on Lessee. Such provisions shall address, among other things, priority as to lien rights and rights to receive payments, priority and timing as to cure rights concerning Defaults, procedures for disbursing Condemnation Awards and Net Insurance Proceeds consistent with the provisions of the Ground lease, the Sublease and this Agreement, foreclosure rights and "standstill" requirements. In addition, there may be comparable agreements between or among one or more Approved Leasehold Mortgagees and one or more Approved Subleasehold Mortgagees. 12. Other SNDA's. Subleasehold Mortgagee specifically recognizes that: (i) Approved Leasehold Mortgagees, other Major Subleasehold Mortgagees, Major Subtenants, holders of Approved Time Share Licenses, certain Space Tenants and the operators of the Ground Lease -Final Page 46 Hotels are entitled to enter into Subordination, Non -Disturbance and Attornment Agreements as contemplated by the provisions of the Ground Lease, each in the form previously submitted in writing to Subleasehold Mortgagee; and (ii) certain provisions of the Ground Lease, the Sublease and such Subordination, Non -Disturbance and Attornment Agreements grant or will grant certain possessory and/or other rights to such parties that will survive any Foreclosure Transfer with respect to the Subleasehold Mortgage, the termination of the Ground Lease or the Sublease, the granting of any New Lease, Direct lease, Substitute Sublease or New Lease and certain other events described therein. 13. Lessor's Cure Rights. Subleasehold Mortgagee hereby acknowledges that Section 15.2 of the Ground Lease permits Lessor, upon prior written notice to Lessee, to cure any default under the Subleasehold Mortgage nor cured by Major Subtenant within the applicable notice and cure period thereunder. Subleasehold Mortgagee may, but shall not be obligated, to accept any such cure. 14. Modifications, Amendments, Etc. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the parties against whom the same is sought and asserted. 15. Notices. All notices, demands and requests given or required to be given hereunder or pursuant to the terms of the Ground Lease or the Sublease shall be in writing. All such notices, demands and requests shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to Major Subtenant in accordance with the notice provisions of the Sublease; and to Subleasehold Mortgagee, as follows: Subleasehold Mortgagee: With a copy to: Attn: Attn: or to such other address as Subleasehold Mortgagee may from time to time designated by written notice to Lessor. All such notices, demands and request by Leasehold Mortgagee to Lessor shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to: With a copy to: City Attorney, City of Miami 444 SW 2 Avenue 7 This provision will be modified to add the Marina operator, if applicable. Ground Lease -Final Page 47 Miami, FL 33130 or to such other address as Lessor may from time to time designate by written notice to Subleasehold Mortgagee. 16. Successors and Assigns. This Agreement may not be assigned by Major Subtenant without Subleasehold Mortgagee's prior written consent, which may be granted or withheld in Subleasehold Mortgagee's sole discretion. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 17. Governing Law. This Agreement shall be construed in accordance with the provisions of the laws of the State of Florida, without application of its conflict of law principles. 18. Authority. Each party to this Agreement represents to the other parties that: (i) it is duly organized, validly existing and in good standing in its state of formation; and (ii) the person executing this Agreement on its behalf is duly authorized to execute this Agreement and to legally bind the party on whose behalf he is executing this Agreement. 19. Further Assurances. Upon Subleasehold Mortgagee's request, Lessor and Major Subtenant shall, each at its sole expense, execute, acknowledge and deliver such further instruments and do such further acts as may, in the opinion of Subleasehold Mortgagee, be necessary, desirable, or proper to carry out more effectively the purpose of this Agreement. 20. Severability. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired thereby. 21. Captions. The captions and headings contained in this Agreement are for convenience of reference only and shall not be construed as limiting or defining in any way the provisions of this Agreement. 22. Recording. At Subleasehold Mortgagee's option, this Agreement may be recorded in the Public Records of Miami -Dade County, Florida. 23. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right any of them 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 Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, 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 each of the parties hereto to enter into this Agreement and for Subleasehold Mortgagee to make the Loan. 24. Termination. This Agreement shall terminate at such time as all obligations secured by the Subleasehold Mortgage have been paid in full. Such obligations shall not be Ground Lease -Final Page 48 deemed to have been "paid in full" (as such term is used herein) unless and until any period under any bankruptcy or similar laws during which any payment to Subleasehold Mortgagee may be required to be rescinded, disgorged or returned shall have expired without any such payment being required to be rescinded, disgorged or returned. 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed but one agreement. IN WITNESS WHEREOF, Lessor, Major Subtenant and Subleasehold Mortgagee have executed this Agreement as of the day and date first written above. Signed, sealed and delivered in the presence of: THE CITY OF MIAMI, a municipal corporation of the State of Florida Name: Name: Name: Name: Name: By: Name: Title: MAJOR SUBTENANT a By: Name: Title: SUBLEASEHOLD MORTGAGEE a Ground Lease -Final Page 49 Name: By: Name: Title: Ground Lease -Final Page 50 ACKNOWLEDGMENT OF LESSOR STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 20_, by as of THE CITY OF MIAMI, a political subdivision of The State of Florida, on behalf of that political subdivision. Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 51 ACKNOWLEDGMENT OF MAJOR SUBTENANT STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20_, by as of , a , on behalf of the Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 52 ACKNOWLEDGMENT OF SUBLEASEHOLD MORTGAGEE STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, by as of , a , on behalf of the Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 53 JOINDER AND CONSENT Lessee hereby joins in and consents to the foregoing Subordination, Non -Disturbance and Attornment Agreement and agrees to be bound by its terms, covenants and conditions. Name: Name: FLAGSTONE ISLAND GADENS, LLC, a Delaware limited liability company 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: Mehmet Bayraktar, sole and managing member Ground Lease -Final Page 54 ACKNOWLEDGMENT OF LESSEE STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 20, by Mehmet Bayraktar, as the sole and managing member of Flagstone Property Group, LLC, a Delaware limited liability company, as the sole and managing member of Flagstone Miami Holdings, LLC, a Delaware limited liability company, as the sole and managing member of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of each company. Personally known to me or produced I.D. (type of I.D.) Signature: Name: [Print or type] Title: Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 55 EXHIBIT "A" LEGAL DESCRIPTION OF LAND Ground Lease -Final Page 56 EXHIBIT "B" LEGAL DESCRIPTION OF SUBLEASED PROPERTY Ground Lease -Final Page 57 EXHIBIT "C" DESCRIPTION OF SUBLEASEHOLD MORTGAGE Ground Lease -Final Page 58 EXHIBIT N PROHIBITED USES Without limiting the generality of the other provisions of the Amended and Restated Ground Lease, the following uses of the Property shall not be permitted: (a) any unlawful or illegal business, including, without limitation, casino gambling, or games of chance or reward, the use of the Marina as a departures and arrival point for vessels which have casino gambling or other games of chance on board whether on or off -site (collectively, "Gambling Boats") unless otherwise permitted and/or approved by Lessor subject to the provisions and in accordance with Section 7.3 and Section 7.12 of the Lease; (b) the rental and/or operation of jet skis and/or any similar motorized personal watercraft, except for the noncommercial use thereof by owners, users and staff of Mega -Yachts using the Marina and their families and guests; (c) any adult entertainment and/or adult service establishments as defined in Article 25 of Ordinance 11000, as amended, of the Zoning Ordinance of the City of Miami or any peep show store, head shop store, topless or strip club or adult book store (which shall mean a store which sells or offers for sale sexually explicit printed materials, audio or videotapes or films or sexual devices) or any other similar store or club or any establishment selling, exhibiting or distributing pornographic materials; (d) hauling and/or dry land storage of vessels; (e) any residential uses, including, without limitation, time share and interval ownership other than Approved Time Share Licenses; provided, however, that the foregoing shall not be deemed to prohibit the Hotels from having the associated facilities and amenities described in the definitions of Hotel A and Hotel B; Ground Lease -Final Page 1 (f) private clubs (including, without limitation, private yacht clubs, other than any private clubs which are aboard vessels at the Marina or which otherwise do not operate on the Upland Parcel), except for ancillary uses such as staff lounges on the Upland Parcel; provided, however, that the foregoing shall not be deemed to prohibit: (i) the charging of fees or any other activities permitted by Section 7.6 of the Lease; or (ii) an "executive floor" club or similar arrangement offered or operated at either or both of the Hotels; (g) any use which emits an unreasonable degree of obnoxious odor, noise, or sound which can be heard or smelled outside of any building within the Project; provided, however, that, the foregoing shall not be deemed to prevent (i) the provision of outdoor music at the Hotels and Retail Space (and the restaurants and banquet spaces located therein) to the extent permitted under all Applicable Laws; or (ii) the use of any Major Project Component for an "outdoor special event" such as a festival or art fair, which may include outdoor music in connection therewith; (h) any operation primarily used as a warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agricultural, or mining operation; (i) any dumping, disposing, incineration, or reduction of garbage (exclusive of garbage compactors located near the rear of any building); (j) any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation; (k) any central laundry, dry cleaning plant, or Laundromat; provided, however, that this prohibition shall not be applicable to any such on -site service in connection with the operations of the Hotels or Marina; (1) any automobile, truck, trailer or recreational vehicle sales, leasing or repair facilities; provided, however, that the foregoing shall not be deemed to prevent: (i) sales, leasing or charters of or repair services for yachts or other marina vessels; or (ii) the interval rental of automobiles on a daily or weekly basis; (m) any veterinary hospital or animal raising facilities or pet supply shops; Ground Lease -Final Page 2 (n) any mortuary or funeral home; (o) any health club or spa fitness center or workout facility or massage parlor other than such facilities which are made available to guests of the Hotels (whether or not such facilities are located inside or outside the Hotels, and whether or not such facilities are also made available to persons who are not guests of the Hotels); (p) any training or educational facility, including, but not limited to, beauty schools; barber colleges, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to customers; provided however, this prohibition shall not be applicable to on -site employee training by an occupant incidental to the conduct of its business within the Premises or to any retail store that offers training or instruction as an ancillary service to its retail operations; (q) any store engaged in the sale of fireworks or drug paraphernalia; (r) any car wash other than a car wash service operated by the parking valet for Hotel or Marina guests and their families, guests, staff and employees; provided, however, that the foregoing shall not be deemed to prohibit the washing of marina vessels); (s) any liquor store or grocery store except in connection with a gourmet shop or sundry store or provisioning store serving guests and patrons of the Hotels and the Marina (provided, however, that the foregoing shall not be deemed to prohibit the sale of liquor in connection with any restaurant or the Hotels); or (t) any use which would constitute a material breach of the covenants described in Exhibit N-1. Ground Lease -Final Page 3 EXHIBIT N-1 COVENANTS AS TO PORT OF MIAMI (To be provided upon document execution) Ground Lease -Final Page 4 EXHIBIT 0 LIST OF PRE -APPROVED FINANCIAL ADVISORS HSBC Group Holliday Fenoglio Fowler Credit Suisse Group (CSFB) Lehman Brothers Bank of America JP Morgan Chase Goldman Sachs Morgan Stanley Bear Stearns Merrill Lynch Wachovia Securities Fleet UBS Warburg GMAC GE Capital CIBC World Markets Deutsche Bank Securities RBS Greenwich Capital Eastdil Realty CB Richard Ellis Cushman & Wakefield Granite Partners Rockwood Realty Insignia/ESG Trammell Crow Colliers International Jones Lang LaSalle BF Capital Partners The Greenwich Group International Ground Lease -Final Page 5 EXHIBIT P ORGANIZATIONAL DOCUMENTS Flagstone Property Group, LLC, a Delaware Limited Liability Company f/k/a Flagstone Properties, LLC 1. Certified Certificate of formation of flagstone Properties, LLC dated December 9, 2002 2. Certified Certificate of amendment of flagstone Properties,'LLC, dated December 11, 2002 3. Written consent of the Managing Member of flagstone Properties, LLC (a Delaware Limited Liability company) dated December 10, 2002 4. Application for Authority of Flagstone Properties, LLC 5. Certified Certificate of Good Standing of Flagstone Properties, LLC dated December 9, 2002 6. Form for filing an application for authority for a foreign limited liability company to conduct business in New York State dated December 10, 2002 7. Certificate of Amendment or Change of application for authority of Flagstone properties, LLC dated December 11, 2002 8. Certificate of amendment or Change of Application for authority of Flagstone Properties, LLC- Filer: Joel J. Goldschmidt, Esq. dated December 11, 2002 9. Certified qualification documents by Flagstone Property Group, LLC dated December 17, 2002 10. Management Agreement dated July 17, 2003 11. Written Consent of the Members of Flagstone Property Group, LLC dated March 1, 2003 12. Limited Liability Company Operating Agreement of Flagstone Property Group, LLC dated January 15, 2003 Ground Lease -Final Page 6 Flagstone Miami Holdings, LLC, a Delaware Limited Liability Company 1. Certified Certificate of Fonnation of flagstone Miami Holdings, LLC dated December 9, 2002 2. Written consent of the Managing Member of flagstone Miami Holdings, LLC (a Delaware Limited Liability Company) dated December 10, 2002 3. Certificate of Good Standing for Flagstone Miami Holdings, LLC dated December 9, 2002 4. Application for authority of Flagstone Miami Holdings, LLC dated December 10, 2002 5. Certified qualification documents by Flagstone Miami Holdings, LLC dated December 17, 2002 6. Application for authority of Flagstone Miami Holdings, LLC 7. Written Consent of the Members of Flagstone Miami Holdings, LLC dated March 1, 2003 8. Management Agreement dated July 17, 2003 9. Limited Liability Company Operating Agreement of Flagstone Miami Holdings, LLC dated January 15, 2003 Ground Lease -Final Page 7 Flagstone Island Gardens, LLC, a Delaware Limited Liability Company 1. Certified Certificate of formation of flagstone Island Gardens, LLC dated December 9, 2002 2. Consent of the sole Member of flagstone Island Gardens, LLC dated December 11, 2002 3. Certificate of Merger of Flagstone Properties, LLC Properties, LLC (a Florida Limited Liability company) and Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) dated December 11, 2002 4. Plan of Merger of Flagstone Properties, LLC (a Florida Limited Liability company) and Flagstone Island Gardens, LLC (a Delaware Limited Liability company) dated December 10, 2002 5. Certified Articles of Merger for Flagstone Island Gardens, LLC December 11, 2002 6. Articles of Merger of Flagstone Properties, LLC (a Florida Limited Liability Company) and Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) dated December 11, 2002 7. Plan of Merger of Flagstone Properties, LLC (a Florida Limited Liability Company) and Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) dated December 10, 2002 8. Written consent of the Managing Member of Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) December 10, 2002 9. Application for authority of flagstone Island Gardens, LLC 10. Certificate of Good Standing of flagstone Island Gardens, LLC dated December 9, 2002 11. Form for filing an application for authority for a foreign limited liability company to conduct business in New York State dated December 10, 2002 12. Certified qualification documents by Flagstone Island Gardens, LLC dated Decvember 17, 2002 13. Written Consent of the Members of flagstone Island Gardens, LLC dated March 1, 2003 14. Limited Liability Company Operating Agreement of Flagstone Island Gardens, LLC dated January 15, 2003 15. Management Agreement dated July 17, 2003 Ground Lease -Final Page 8 EXHIBIT R CIVIC ARTS ENDOWMENT TRUST 1. Trust. (a) Term. The term of the Trust shall coincide with the Lease Term (including any applicable Extension Terms); provided, however, that the Trust shall terminate upon any sooner termination of the Lease or Lessee's right to possession of the Property and the Leasehold Improvements, for any reason whatsoever (collectively, a "Lease Termination"). (b) Corpus and Trust Income. The amount which is funded into the Trust pursuant to Paragraph 2 below (the "Corpus"), and the income earned thereon (the "Trust Income") shall be held and disbursed in the manner provided below. (c) OperatingExpenses. Annual operating expenses of the Trust shall be paid out of the Trust Income and not the Corpus. 2. Funding. (a) Initial Term. During each year of the initial Lease Term, Lessee shall fund the Trust (or cause the Trust to be funded) in amounts equal to the following percentages of the net operating income for the Project during each such year as reflected in the operating statements of Lessee and each applicable Major Subtenant ("NOI"): (i) Seven Tenths Percent (.7%) during each of the first fifteen (15) years of the Lease Term; (ii) Six Tenths Percent (.6%) during each of the second fifteen (15) years of the Lease Term; and (iii) Five Tenths Percent (.5%) during each of the third fifteen (15) years of the Lease Term. (b) First Extension Term. If Lessee duly exercises the first (1st) Extension Option pursuant to Section 3.2 of the Lease, then during each year of the first (1st) Extension Term, Lessee shall fund the Trust (or cause the Trust to be funded) in an amount equal to Five Tenths Percent (.5%) of NOI for such year. Ground Lease -Final Page 1 (c) Second Extension Term. If Lessee duly exercises the second (2nd) Extension Option pursuant to Section 3.2 of the Lease, then during each year of the second (2nd) Extension Term, Lessee shall fund the Trust (or cause the Trust to be funded) in an amount equal to Five Tenths Percent (.5%) of NOI for such year. 3. Return of Funds. (a) End of Initial Lease Term. If Lessee does not duly exercise the first (1s`) Extension Option, then, at the end of the initial Lease Term (or any sooner Lease Termination), the Trust shall be terminated, and the entire Corpus shall be returned to and become the sole property of Lessee but all other funds then in the Trust shall be retained by and become the sole property of Lessor. If Lessee does duly exercise the first (1st) Extension Option, then at the end of the initial Lease Term, an amount equal to Seventy Percent (70%) of the Corpus of the Trust shall be returned to and become the sole property of Lessee. The remaining balance shall continue in the Trust, and Lessee shall continue to have the funding obligations described in Paragraph 2(b) above. (b) End of First Extension Term. If Lessee does not duly exercise the second (2nd) Extension Option, then, at the end of the first (1st) Extension Term (or any sooner Lease Termination), the Trust shall be terminated, and the entire Corpus shall be returned to and become the sole property of Lessee but all other funds then in the Trust shall be retained by and become the sole property of Lessor. If Lessee does duly exercise the second (2nd) Extension Option, then at the end of the first (1st) Extension Term, the then existing Corpus and all other funds then in the Trust shall continue in the Trust, and Lessee shall continue to have the funding obligations described in Paragraph 2(c) above. (c) End of Second Extension Term. If Lessee duly exercises the second (2nd) Extension Option, then at the end of the second (2nd) Extension Term (or any sooner Lease Termination), the Trust shall be terminated, and the entire Corpus shall be returned to and become the sole property of Lessee but all other funds then in the Trust shall be retained by and become the sole property of Lessor. Ground Lease -Final Page 2 Prepared By and Return to: Andrew S. Robins, Esq. Gunster, Yoakley & Stewart P.A. 500 E. Broward Blvd., Suite 1400 Ft. Lauderdale, Florida 33394 EXHIBIT S MAJOR SUBLEASE SNDA SPACE ABOVE THIS LINE FOR RECORDING DATA SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") made as of the day of , 20 by and among THE CITY OF MIAMI, a municipal corporation of the State of Florida ("Lessor"), FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company ("Lessee"), and , a ("Major Subtenant"). WITNESSETH: WHEREAS, Lessor is the owner in fee simple of certain real property more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, pursuant to that certain Ground Lease dated , 200_ (the "Ground Lease"), a memorandum of which was recorded in Official Records Book , at Page , of the Public Records of Miami -Dade County, Florida, Lessor has leased the Property to Lessee, subject to and in accordance with the terms and conditions of the Ground Lease (unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings ascribed to them in the Ground Lease); and WHEREAS, pursuant to the Ground Lease, Lessee is the owner and holder of the Leasehold Estate during the Lease Term, and Lessee is and shall be, during the Lease Tenn, the owner and holder of all Leasehold Improvements now or hereafter constructed on the Property; and WHEREAS, pursuant to that certain Sublease dated , 200 (the "Sublease"), a memorandum of which was recorded in Official Records Book , at Page , of the Public Records of Miami -Dade County, Florida, Lessee has subleased to Major Ground Lease -Final Page 3 Subtenant a portion of the Property as more particularly described in Exhibit "B", attached hereto and incorporated herein by this reference (the "Sublease Property"), subject to and in accordance with the terms and conditions of the Sublease; and WHEREAS, the Sublease provides for Major Subtenant to construct and operate certain Leasehold improvements on the Sublease Property (the "Subleasehold Improvements'), and further provides that during the term of the Sublease (the "Sublease Term"), Major Subtenant is and shall be the owner and holder of all such Subleasehold Improvements (with the ownership thereof reverting to Lessee, subject to and in accordance with the terms and conditions of the Ground Lease and the Sublease, upon the expiration of the Sublease Term or the sooner termination of the Sublease); and NOW, THEREFORE, the parties hereto, in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows: 1. Recitals. The foregoing recitals are true and correct and incorporated herein by this reference. 2. Certain Defined Terms. As used herein the following terms shall have the respective meanings ascribed to them below: (a) "Ground Lease Termination" shall mean the termination of the Ground Lease for any reason, or the rejection or disaffirmation of the Ground Lease in any bankruptcy, insolvency or other similar proceedings, if the effect of such rejection or disaffirmation is to cause the Ground Lease to terminate. (b) "New Lease" shall mean any new ground lease hereafter entered into between Lessor and a New Lessee, subsequent to a Ground Lease Termination. (c) "New Lessee" shall mean: (i) Major Subtenant, if Major Subtenant enters into a New Lease pursuant to the terms of this Agreement; (ii) any other Major Subtenant, if such Other Major Subtenant enters into a New Lease pursuant to the terms of any Other Major Subtenant SNDA; (iii) an Approved Leasehold Mortgagee or any other Person which enters into a New Lease pursuant to the terms of any Leasehold Mortgage SNDA; or (iv) an Approved Subleasehold Mortgagee or any other Person which enters into a New Lease pursuant to the terms of any Subordination, Non -Disturbance and Attornment Agreement to which such Approved Subleasehold Mortgagee is a party. (d) "Substitute Sublease" shall mean a sublease entered between a New Lessee, as sublessor, and Major Subtenant, as sublessee, pursuant to the terms of this Agreement, subsequent to a Ground Lease Termination. Ground Lease -Final Page 4 (e) "Direct Lease" shall mean a direct lease for the Sublease Property entered into between Lessor, as lessor, and Major Subtenant, as lessee, pursuant to the terms of this Agreement, subsequent to a Ground Lease Termination. (f) "Leasehold Mortgage SNDA" shall mean any Subordination, Non - Disturbance and Attornment Agreement or other similar agreement now or hereafter entered into among Lessor, Lessee and an Approved Leasehold Mortgagee with respect to the Ground Lease. (g) "Other Major Subtenant" shall mean any Major Subtenant with respect to any Major Project Component other than the Major Project Component which is subject to the Sublease. (h) "Other Major Subtenant SNDA" shall mean any Subordination, Non - Disturbance and Attornment Agreement to which Lessor and any Other Major Subtenant are parties. (i) "Default" shall mean any default or any event which, if not remedied, would or could result in an event of Lessee's Default under the Ground Lease. (j) "Default Notice" shall mean any written notice of other written communication from Lessor to Lessee pertaining to an Event of Lessee's Default. 3. Subordination of Sublease. The Sublease and all of Major Subtenant's right, title and interest in and to the Sublease, the Sublease Property and the Subleasehold Improvements are and shall be unconditionally subject and subordinate to the right, title and interest of Lessor in and to the property and the Ground Lease, subject to the provisions of the Ground Lease and this Agreement. 4. Lessor's Consent to Sublease. Pursuant to any and all applicable provisions of the Ground Lease, Lessor irrevocably and fully consents to the execution and delivery of the major Sublease and the recordation of a memorandum or short form thereof. Lessor hereby further acknowledges and agrees as follows: (a) Approval of Sublease. Lessor has approved the Sublease pursuant to Section 33.3 of the Ground Lease, and the Sublease qualifies as and constitutes a "Major Sublease" as such term is defined, described and used in the Ground Lease. (b) Approval of Major Subtenant. Lessor has approved Major Subtenant pursuant to Section 33.3 and Article VIII of the Ground Lease, and Major Subtenant qualifies as and is a "Major Subtenant" as such term is defined, described and used in the Ground Lease. All rights and benefits of a "Major Subtenant" provided in the Ground Lease may be exercised and enjoyed by Major Subtenant in accordance with the provisions of the Ground Lease, and Lessor is bound with respect to the Sublease and Major Subtenant by all provisions in the Ground Lease -Final Page 5 Ground Lease concerning Major Subtenants and major Subleases. As used herein, the term "Major Subtenant" shall include any assignee or successor of Major Subtenant after any Major Subtenant Transfer of Control or Major Subleasehold Estate Transfer which is permitted pursuant to Article VIII of the Ground Lease. (c) Condition of Ground Lease for SNDA Satisfied. This Agreement fully satisfies the requirements of Section 33.2 of the Ground Lease as to the execution and delivery of a Subordination, Non -Disturbance and Attormnent Agreement with respect to the Sublease. 5. Lessor's Lien Rights. The parties acknowledge and agree that Lessor has certain lien rights pursuant to Article XXIII of the Ground Lease, but that such lien rights are subject to the limitations set forth in Section 23.3 of the Ground Lease. 6. No Termination of Ground Lease. So long as the Sublease remains in effect, Lessor shall not accept from Lessee, and Lessor shall not offer to Lessee, any Ground Lease Termination without Major Subtenant's prior written consent. Any such purported Ground Lease Termination without Major Subtenant's prior written consent shall be null and void and of no force or effect. Notwithstanding the foregoing, the provisions of this Section 6 shall not preclude Lessor from exercising its right to terminate the Ground Lease on account of an Event of Default, subject to and in accordance with the terns and conditions of Sections 7 through 9 below. 7. Notice and Cure Rights. So long as the Sublease remains in full force and effect, Lessor shall have the obligations, and Major Subtenant shall be afforded the notice and cure rights and other rights, set forth in this Section 7 (unless an Approved Leasehold Mortgagee, Approved Subleasehold Mortgagee, Other Major Subtenant or any other Person entitled to cure the alleged Default has already cured the alleged Default. (a) Notice of Default. Whenever Lessor sends or gives Lessee any Default Notice, Lessor shall simultaneously send a copy of such Default Notice to Major Subtenant. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries by Major Subtenant to the City Attorney of the City of Miami, Florida ("City Attorney") with respect to the status of any such Event of Lessee's Default or cure related thereto. (b) Right to Cure. Major Subtenant shall be afforded the same period of time as is allowed to any Approved Leasehold Mortgagee or other Person under the provisions of any applicable Leasehold Mortgage SNDA, plus an additional fifteen (15) days, to cure the alleged Default or cause the same to be cured, provided that such cure shall require payment of interest at the Default Rate (as defined in Section 1.5(s) of the Ground Lease) on sums due pursuant to the Ground lease for the period commencing on the date on which Major Subtenant first received such Default Notice until the date payment is received by Lessor. In the event an Approved Leasehold Mortgagee or any other person cures the alleged Ground Lease -Final Page 6 Default or causes same to be cured, Lessor shall use reasonable efforts, within two (2) business days thereafter, to give Major Subtenant written notice of such fact, provided, however that Lessor shall not have any liability for failure to provide such written notice. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries Major Subtenant to the City Attorney as to whether an Approved Leasehold Mortgagee or any other Person has cured the alleged Default or caused same to be cured. (c) Cooperation. In connection with any efforts by Major Subtenant to cure the alleged Default or cause same to be cured, Lessor agrees to cooperate in the prosecution of any proceedings brought by major Subtenant to obtain possession of any portion of the Property other than the Sublease Property); provided, however, that: (i) notwithstanding the foregoing, Lessor shall not be obligated to cooperate if Lessor determines in its sole and absolute discretion that such cooperation may expose Lessor to liability; and (ii) Lessor shall not be obligated to incur any cost in connection with such cooperation unless Lessor is reimbursed for any actual reasonable cost so incurred by Lessor. (d) Effect of Stay. Lessor agrees that if by reason ,of a bankruptcy, insolvency or similar type proceeding, or by reason of any other judicial order or legislative enactment, Major Subtenant shall be stayed from commencing (Or if commenced, from continuing) proceedings described in subparagraph 7(b) above which are necessary to enable Major Subtenant to cure such Event of Lessee's Default within the time set forth in subparagraph 7(b) above, Major Subtenant shall be deemed to be prosecuting such proceedings in the exercise of due diligence and in good faith so long as it is in good faith attempting to obtain relief from any such stay. (e) Acceptance of Cure. Lessor herby agrees to accept, any such cure of a Default made within the time set forth in subparagraphs 7(b) and 7(d) above, as applicable by or on behalf of Major Subtenant, as if same had been performed by Lessee. (f) Nullification of any Termination. Any attempt by Lessor to terminate the Ground lease on account of any Default or Event of Lessee's Default shall be null and void and of no force or effect for so long as Major Subtenant is pursuing a cure thereof pursuant to this Section 7 within the time set forth in subparagraphs 7(b) and 7(d) above, as applicable. 8. Lessor's Right to Terminate. (a) Notice of Intent to Terminate. If (i) any Default described above (or any Default occurring while any Major Subtenant is exercising its cure rights) is not cured within the applicable time set forth in subparagraphs 7(b) and 7(d) above, as applicable, and (ii) Lessor intend to terminate the Ground Lease, Lessor shall give Major Subtenant written notice (by registered or certified mail, return receipt Ground Lease -Final Page 7 requested) of Lessor's intent to terminate the Ground Lease on account of the failure to cure same in accordance with the Ground Lease and this Agreement (provided that such Default is not timely cured pursuant to the terms of any Leasehold Mortgage SNDA). (b) Termination. Such termination shall become effective if and only if: (i) such Default has not theretofore been cured by any other Person; and (ii) Major Subtenant shall fail to cure same within fifteen (15) days after the date on which such default may be cured pursuant to the terms of any Leasehold Mortgage SNDA. In the event an approved Leasehold Mortgagee or any other Person cures the alleged Default or causes same to be cured, Lessor shall use reasonable efforts to give, within two (2) business days thereafter, major Subtenant written notice of such fat; provided, however, that Lessor shall not have any liability for failure to provide such written notice. Furthermore, Lessor agrees to use reasonable efforts to respond to any written inquiries by Major Subtenant to the City Attorney as to whether an Approved leasehold Mortgagee or any other Person has cured the alleged Default or caused same to be cured. 9. Ground Lease Termination. (a) Preservation of Sublease. Upon the occurrence of any Ground Lease Termination, the Sublease shall, unless it is deemed terminated by operation of law, remain in full force and effect notwithstanding such Ground lease Termination and shall revert to Lessor as a Direct Lease between Lessor and Major Subtenant subject to the terms and conditions set forth in subsection (e) (iii) below. If the Sublease remains in full force and effect notwithstanding such Ground Lease Termination and reverts to Lessor, then in the event a New Lease is entered into between Lessor and any new Lessee (other than Major Subtenant), the Sublease shall be assigned and transferred, without recourse, by Lessor to the new Lessee, and shall continue in full force and effect as a major Sublease under the New Lease. (b) New Lease or Direct Lease. If upon any Ground Lease Termination: (i) the Sublease is deemed terminated by operation of law; and (ii) no New Lessee (other than Major Subtenant) has yet entered into a New Lease, Major Subtenant shall, upon satisfying the conditions set forth below, have the right (but not the obligation) to enter into a New Lease or a Direct lease with Lessor upon the terms and conditions set forth below.8 (c) Notice. Major Subtenant shall give lessor written notice of its election to enter into such new Lease or Direct lease (the "Election Notice") within fifteen (15) days after the last date on which any Approved Leasehold Mortgagee (or any other Person entitled to enter into such New Lease pursuant to the provisions of 8 If required by Major Subtenant, this provision will be modified to provide for the Sublease to be deemed automatically converted to a new Lease or direct Lease where the conditions set forth in subparagraphs (c) and subparagraph (d)(i) or subparagraph (d)(ii), as applicable, have been met. Ground Lease -Final Page 8 any Leasehold Mortgage SNDA) may elect to enter into a New Lease provided that such election is not made by such Approved leasehold Mortgagee or other person so entitled. Such Election Notice must specify whether Major Subtenant elects to enter into a New Lease or to enter into a Direct Lease, and once such election is made Major Sublease shall not have the right to elect the other. Lessor and Major Subtenant shall enter into such New Lease or Direct Lease (whichever is applicable) within sixty (60) days after the Election Notice is given. If Major Subtenant timely gives such Election Notice, then from the date of the Ground Lease Termination until the earlier to occur of: (i) the date on which Major Subtenant enters into such New Lease or Direct Lease; or (ii) the expiration of the sixty (60) day period described above, Major Subtenant may use and enjoy the Sublease property without hindrance by Lessor but subject to compliance with the terms of the Sublease. (d) Cure of Defaults. (i) In the Case of a Request for a New Lease. As a condition to entering into a New Lease, Major Subtenant shall: (i) have remedied all Defaults on the part of Lessee involving the payment of money to Lessor, subject to the provisions of subparagraph 9(k) below; and (ii) continue to pay all Rent that would come due under the Ground lease but for such Ground Lease Termination. (ii) In the Case of a Request for a Direct Lease. As a condition to entering into a Direct Lease, Major Subtenant shall: (i) have remedied all Defaults on the part of Lessee involving the payment of money to Lessor to the extent of the Sublease Proportionate Amount (as hereinafter defined) for the period such Default shall have existed (i.e., such monetary amount multiplied by such Sublease Proportionate amount), and all other Defaults specifically related to the sublease Property and/or the Subleasehold hmprovements, subject to the provisions of subparagraph 9(k) below; and (ii) continue to pay all Rent that would come due under the Ground lease but for such Ground Lease Termination to the extent of the Sublease Proportionate amount during the term of the Direct Lease (i.e., such Rent amount multiplied by such Sublease Proportionate Amount). The term "Sublease Proportionate amount' shall mean, for any applicable period of time, a fraction, the numerator of which is an amount equal to the base rent and percentage rent payable under the sublease during such period, and the denominator of which is an amount equal to the aggregate base rent and percentage rent payable under all Approved Major Subleases or direct Leases then in existence during such period (plus any anticipated rents for any Major Project Component which is not then subject to a major Sublease or Direct Lease). (e) Terms and Conditions. Ground Lease -Final Page 9 (i) In the Case of a New Lease. The tenn of any such New lease shall begin on the date of the termination of the Ground Lease and shall continue for the remainder of the Lease Tenn, including any Extension Terns that were previously exercised or may thereafter be exercised thereunder (it being agreed that the lessee under the New Lease shall have the same rights to renew the term of the New Lease as the Lessee had under the Ground Lease, provided that such rights are exercised by the lessee under the New Lease within the original timeframes provided for in the Ground Lease, notwithstanding the fact that the Ground Lease has been terminated, and further provided that, notwithstanding anything contained herein to the contrary, in no event shall the tern of the New Lease extend beyond the maximum 75 year Lease Term). Such New Lease shall otherwise contain the same terms and conditions as those set forth in the Ground Lease including but not limited to, the provisions of Section 13.4 of the Ground Lease), except for requirements which are no longer applicable or have already been performed; provided, however, that 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 thereunder to the extent reasonably susceptible of being remedied. (ii) In the Case of a Direct Lease. The term of any such Direct Lease shall begin on the date of the Ground lease Termination and shall continue for the remainder of the Sublease Tenn, including any extension terns that were previously exercised or may thereafter be exercised thereunder (it being agreed that the lessee under the Direct Lease shall have the same rights to renew the tenn of the Direct Lease as the Lessee had under the Ground lease, provided that such rights are exercised by the lessee under the Direct Lease within the original timeframes provided for in the Ground Lease, notwithstanding the fact that the Ground Lease has been terminated, and further provided that, notwithstanding anything contained herein to the contrary, in no event shall the term of the Direct Lease extend beyond the maximum 75 year :ease Term). Such Direct Lease shall otherwise contain the same terms and conditions as those set forth in the Sublease, except for requirements which are no longer applicable or have already been performed; provided, however, that: (1) such Direct Lease shall require the lessee thereunder promptly to commence, and expeditiously to continue, to remedy all then existing Defaults on the part of Lessee (where such Defaults are specifically related to the Sublease Property and/or the Subleasehold Improvements) to the extent reasonably susceptible of being remedied; (2) such Direct Lease shall include any changes which are appropriate on account of the relationship between the parties Ground Lease -Final Page 10 being that of lessor and lessee rather than sublessor and sublessee; (3) such Direct Lease shall include, at Lessor's option in its sole discretion, the remedies to which Lessor and Lessee are entitled to under Sections 25.2, 25.3 and/or 25.4 of the Ground Lease; (4) such Direct Lease shall provide that notwithstanding anything in the Sublease to the contrary, Lessor, as lessor under the Direct Lease, shall not be: (A) liable for any act or omission of, or breach or default by, Lessee under the Sublease; (B) subject to any offsets or defenses which Major Subtenant or any Subleasehold Lender Party may have against Lessee under the Sublease; (C) bound by any rent or other payments, including without limitation, common area maintenance changes, taxes, security deposit, etc., which Major Subtenant or any Subleasehold Lender Party may have paid under the Sublease to Lessee or any Person other than Lessor more than thirty (30) days in advance of the applicable due date therefor under such Direct Lease; (D) bound by any covenants and/or obligations to be perfonned by or on behalf of Lessee, as lessor under the Sublease, including, without limitation, any obligation on the part of Lessee to perform capital improvements and/or to repair and/or replace the Sublease Property and/or Sublease Improvements due to casualty or condemnation, other than the covenant of quiet enjoyment by Lessor so long as no default exists under the Direct Lease, except and to the extent that any such covenant and/or obligation is expressly made or undertaken by lessor under the Ground Lease; and (E) without limiting the foregoing subsections (A) through (D) above, be liable for any indemnity made by Lessee to Major Subtenant under the Sublease, including, without limitation, with respect to hazardous and toxic substances and/or materials. Ground Lease -Final Page 11 (iii) No Cancellation of Space Leases or Approved time Share Licenses. Between the date of any Ground Lease Termination and the date of execution and delivery of such New Lease or Direct Lease, Lessor shall not cancel or terminate any Space Lease or any Approved Time Share License related to the Sublease Property, or accept any cancellation, termination or surrender thereof (unless such termination shall be effective as a matter of law upon the Ground Lease Termination), without the prior written consent of Major Subtenant. (iv) Approval by Lessor of Sublease. In connection with Lessor's agreement to grant a Direct Lease to the applicable parties provided herein on the same terms and conditions of the Sublease, subject, however, to the provisions of this Section 10, Lessee and Major Subtenant hereby acknowledge and agree that it shall be reasonable for the City Manager to consider in its approval of the Sublease in accordance with Section 33.3 of the Ground Lease the possibility that the Lessor will be required to enter into a Direct lease hereunder on the same terms and conditions of such Sublease, as such terms may be modified by this Section 10. (f) Substitute Sublease. If, after any such Direct Lease has been entered into, a New Lease is entered into between Lessor and a New Lessee (other than Major Subtenant), such New lessee and Major Subtenant shall, without Lessor's consent, enter into a Substitute Sublease upon the same terms and conditions as those specified in the Lease for the remainder of the term that was set forth in the Direct Lease, including any extension options, if applicable, whether exercised or remaining to be exercised. In such event, such Substitute Sublease shall be deemed effective as of the effective date of the New Lease, and such Direct Lease shall be deemed terminated as of the effective date of the New Lease. (g) Restoration of Positions. At the time of the execution and delivery of the Direct Lease or the New Lease and the Substitute Sublease, as applicable, Lessor, the New Lessee, Major Subtenant and all other parties having an interest in the Sublease Property, including, but not limited to, any tenants under Subleases, holders of Approved Time Share Licenses and Approved Mortgagees 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, new Subordination, Non -Disturbance and Attormnent Agreements and new easements which were previously granted, 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 interest and status Ground Lease -Final Page 12 with respect to the Sublease Property which was possessed by the respective parties prior to the Ground Lease Termination. (h) Subrogation. Major Subtenant shall be subrogated to the rights of Lessor against Lessee as to any monetary defaults of Lessee which are cured by major Subtenant as a condition to obtaining such New Lease or Direct Lease, and any other Defaults which are remedied as described in subparagraphs (d)(i) and (e)(i) or subparagraphs (d)(ii) and (d)(ii) above, as applicable (but not as to any other matters). (i) No Obligation to Cure Uncurable Defaults. Nothing contained herein or in the Ground Lease or the Sublease shall require Major Subtenant, as a condition to its exercise of its right to enter into Direct Lease or a Substitute Sublease, to cure any Default of Lessee not reasonably susceptible of being cured by such Major Subtenant. (j) No Obligation to Cure. Nothing herein contained shall require Major Subtenant to cure any Default by Lessee or Event of Lessee's Default under the Ground Lease, except as otherwise provided for in section (d)(i) and (ii) above. (k) No Obligation as. to Accelerated Rent or Damages. Whenever this Agreement refers to Major Subtenant's curing monetary Defaults or Events of Lessee's Default, Major Subtenant shall not be required to pay any accelerated sums or any damages, other than the payment of accrued interest on monetary sums as require pursuant to Section 7(b) of this Agreement, on account thereof which may otherwise be provided for by the terms of the Ground Lease, and upon such cure by Major Subtenant, any such acceleration by Lessor shall be deemed to be nullified and of no force or effect. (1) Survival. The provisions of this Section 9 shall survive any Ground Lease Termination 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 Major Subtenant. (m) References to Sublease. As of the date any Direct Lease to which Major Subtenant is a party or any Substitute Sublease becomes effective, all references herein to the Sublease shall be deemed references to such Direct Lease or Substitute Sublease. 10. Right to Enter into Direct Lease In the Event Extension Option Is Not Exercised. In the event Major Subtenant duly and timely exercises any extension option it has under the Sublease but Lessee (or any other Person entitled to do so) fails to duly and timely exercise any extension option under the Ground Lease which must be exercised in order to permit Major Subtenant to enjoy the benefits of such extension option under the Sublease, Major Subtenant shall be entitled to enter into a Direct Lease prior to the expiration of the then - applicable term under the Ground Lease, provided that: (i) Major Subtenant gives Lessor written Ground Lease -Final Page 13 notice of such election within fifteen (15) days after the date on which any such other Person is entitled to exercise such extension option under the Ground Lease; and (ii) Major Subtenant satisfies the conditions set forth in subparagraph 9(d)(ii) above. The commencement date of such Direct Lease shall be the date that would have been the first day of the extension option under the Ground Lease had such extension option been exercised. The provisions of subparagraphs (9)(e) and 9(g) through 9(m) above shall apply with respect to any such Direct Lease. 11. Priority as between Major Subtenants. In the event Major Subtenant requests a New Lease pursuant to an Election Notice given within the time set forth in subparagraph 9(c) above and any one or more Other Major Subtenants timely requests a New lease in accordance with the provisions of any applicable Other Major subtenant SNDA's, then priority as to the right to enter into such New Lease shall be given based on the chronological order in which such requests are made (i.e., first in time is first in right). 12. Modifications, Amendments, Etc. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the parties against whom the same is sought and asserted. 13. Notices. All notices, demands and requests given or required to be given hereunder or pursuant to the terms of the Ground Lease or the Sublease shall be in writing. All such notices, demands and requests shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to Lessee in accordance with the notice provisions of the Ground Lease and addressed to Major Subtenant in accordance with the notice provisions of the Sublease. All such notices, demands and request6s to Lessor shall be given by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to: With a copy to: City Attorney, City of Miami 444 SW 2 Avenue Miami, FL 33130 or to such other address as Lessor may from time to time designate by written notice to Subleasehold Mortgagee. 14. Successors and Assigns: This Agreement may not be assigned by Lessor or Lessee except in connection with an assignment of the Ground Lease by Lessor or Lessee, as applicable, as specifically permitted by the terns of the Ground Lease. This Agreement may not be assigned by Major Subtenant except in connection with an assignment of the Sublease by Major Subtenant as specifically permitted by the terns of the Sublease. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 15. Governing Law. This Agreement shall be construed in accordance with the provisions of the laws of the State of Florida, without application of its conflict of law principles. Ground Lease -Final Page 14 16. Authority. Each party to this Agreement represents to the other parties that: (i) it is duly organized, validly existing and in good standing in its state of foiivation; and (ii) the person executing this Agreement on its behalf is duly authorized to execute this Agreement and to legally bind the party on whose behalf he is executing this Agreement. 17. Further Assurances. Upon written request of any party to this Agreement, Lessor, Lessee and Major Subtenant shall, each at its sole expense, execute, acknowledge and deliver such further instruments and do such further acts as may be necessary, desirable, or proper to confirm the rights and obligations of the parties hereto and carry out more effectively the purpose of this Agreement. 18. Severability. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired thereby. 19. Captions. The captions and headings contained in this Agreement are for convenience of reference only and shall not be construed as limiting or defining in any way the provisions of this Agreement. 20. Recording. At Major Subtenant's option, this Agreement may be recorded in the Public Records of Miami -Dade County, Florida. 21. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right any of them 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 Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. 22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed but one agreement. Ground Lease -Final Page 15 IN WITNESS WHEREOF, Lessor, Lessee and Major Subtenant have executed this Agreement as of the day and date first written above. Signed, sealed and delivered in the presence of: THE CITY OF MIAMI, a municipal corporation of the State of Florida Name: Name: Name: Name: Name: Name: By: Name: Title: FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company 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: Mehmet Bayraktar, sole and Managing member MAJOR SUBTENANT a By: Name: Title: Ground Lease -Final Page 16 ACKNOWLEDGMENT OF LESSOR STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 20, by as of THE CITY OF MIAMI, a political subdivision of The State of Florida, on behalf of that political subdivision. Personally known to me or produced I.D. (type of I.D.) Signature: Name: Title: [Print or type] Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 17 ACKNOWLEDGMENT OF LESSEE STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, by Mehmet Bayraktar, as the sole and managing member of Flagstone Property Group, LLC, a Delaware limited liability company, as the sole and managing member of Flagstone Miami Holdings, LLC, a Delaware limited liability company, as the sole and managing member of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of each company. Personally known to me or produced I.D. (type of I.D.) Signature: Name: Title: [Print or type] Notary Public Serial No., if any: •My commission expires: Ground Lease -Final Page 18 ACKNOWLEDGMENT OF MAJOR SUBTENANT STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20_, by as of , a , on behalf of that Personally known to me or produced I.D. (type of I.D.) Signature: Name: Title: [Print or type] Notary Public Serial No., if any: My commission expires: Ground Lease -Final Page 19 EXHIBIT "A" LEGAL DESCRIPTION OF LAND Ground Lease -Final Page 20 EXHIBIT "B" LEGAL DESCRIPTION OF SUBLEASED PROPERTY Ground Lease -Final Page 21 EXHIBIT T FORM OF FIRST SOURCE HIRING AGREEMENT MIAMI FIRST SOURCE HIRING AGREEMENT COMMUNITY BENEFITS PROGRAM This Agreement is made this 1 Cv day of �Qc)i-Qr13urZ , 2004, by and between the City of Miami, a municipal corporation of the State of Florida (the "City") and Flagstone Island Gardens, LLC, a Delaware limited liability company, f/k/a and successor by merger to Flagstone Properties, LLC, a Florida limited liability company ("Developer"). RECITALS A. Developer and the City entered into an Agreement to Enter Into a Ground Lease dated as of January 22, 2003 and upon the completion of certain conditions precedent outlined in the Agreement to Enter Into a Ground Lease, will enter into a Ground Lease Agreement ("Ground Lease"), for the development, management, and operation of, among other things, a , mega -yacht marina, two (2) hotels, a retail/restaurant complex, a fish market and a maritime museum that is, the Project or the Development (as such terms are hereinafter defined) on a parcel of land owned by the City and located on Watson Island, in the City of Miami that is, the Site (as hereinafter defined). These two agreements shall hereinafter be collectively referred to as the "Development Agreements". B. To supplement the local community involvement in the Project, Flagstone has agreed to comply with Section 18-110 of the City of Miami Code to foster participation in the construction and operation of the Project by Low Income Individuals (as hereinafter defined) who are Residents (as hereinafter •defined) of the City of Miami and Miami -Dade County, including, but not limited to those who are participants of South Florida Workforce training and employment programs (as hereinafter set forth Low Income Individuals who are Residents are sometimes referred to as "Qualified Individuals"). NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable-consideration,-the-reCeipt-and sufficiency -of -which is -hereby -acknowledged, the parties hereby agree as follows: SECTION 1. DEFINITIONS Ground Lease -Final Page 22 As used in this Agreement, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Development Agreements. "Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3 organization, or some entity comparable to the foregoing reasonably acceptable to the City Manager. In the event the Agency ceases to exist, upon request of City or the Developer, the Developer shall be permitted to create or select a similar entity capable of handling the responsibilities designated to the Agency hereunder, acceptable to the City Manager. "Agreement" shall mean this First Source Hiring Agreement in its entirety. "Business User" shall mean any person or entity that (i) enters into a lease agreement or similar agreement for use of space at the Site, and (ii) intends to operate or actually operates an ongoing business at the Site other than development or construction of the Project or Retail Use (as hereinafter defined). The tenn "Business User" shall not include any person or entity that enters into a space lease in the retail areas, dining areas or other areas other than Hotels, Marina or Parking Garage, to sell or offer food, products or services (the "Retail Use"). "City" shall mean the City of Miami, as represented by the City Manager of the City of Miami. "Construction Contract" shall mean a contract with a total contract volume of $500,000 or more related to the construction of the Development or part thereof. "Construction Contract" shall not include lease agreements or contracts related to operations of ongoing business at Site. "Construction Contractor" shall mean a prime contractor, a subcontractor, or any other person or entity entering into a Construction Contract (as defined above) for the construction of the Development or part thereof. Ground Lease -Final Page 23 "Developer" shall mean the Flagstone Island Gardens, LLC, a Delaware limited liability company. "Development Agreements" shall have the meaning ascribed to it in the Recitals. "Effective Date" shall mean the Possession Date (as defined in the Ground Lease at Section 4.1 thereof, that is, the date the Ground Lease is signed and delivered by City and Developer and possession of the Site is turned over to Developer in commencement of the Lease Term. "Full Time Employee" shall mean an individual employed for a minimum of thirty-two (32) hours per standard five-day work week. "Low -Income Individual" shall mean an individual whose household income is no greater than 80% of the income limits of the City of Miami as issued and published by U.S. HUD on a yearly basis, or such other low income threshold as approved by the City Manager, or an individual who is unemployed. Developer may rely on the Agency to determine and advise as to who is a Low Income Individual and to make all determinations relating to employment, economic status, residency, nationality and other relevant information to the extent the Agency agrees to provide such service. "Occupancy Date" shall mean the date the Business User has taken possession of their respective lease area and is open for business to the general public. "Operations" shall mean all work (other than the initial Project development or construction work and Retail Use) conducted by a Business User on any portion of the Site. The commencement of Operations of one Business User shall not necessarily mean the conmiencement of Operations of another Business User. The commencement of Operations of the Project shall mean the Occupancy Date as defined herein. "Overtown Area" shall mean that area as depicted in Exhibit A attached hereto and made a part hereof. Ground Lease -Final Page 24 "Project" or "Development" shall mean all of the Leasehold Improvements (including but not limited to, all of the Major Project Components) to be completed pursuant to the Development Agreements. "Qualifying Individuals" shall mean Low -Income Individuals who are Residents. "Residents" shall mean a person who resides in the City of Miami (or the County of Miami -Dade) at the time of application for employment. The Developer shall implement or cause to be implemented a program that ensures priority among residents among otherwise equally qualified persons. The Developer will give priority to those residing within the City of Miami. In the event there is not a sufficient number of qualified Residents that reside within the City of Miami, then the balance of any percentage thresholds of Developer's performance can be met utilizing Residents that reside within Miami -Dade County. Developer may rely upon the Agency to determine who is a Resident and to make determination relating to employment, economic status, residency, nationality and other relevant information to the extent the Agency agrees to provide such service. "Site" or "On -Site" shall mean the approximately 10.8 acres of upland and 13.4 acres of adjacent submerged land located at the northwest quadrant of Watson Island in the City of Miami, Florida and other ancillary locations that the City has authorized Developer to use pursuant to a license or other written agreement, SECTION 2. CUSTOMIZED AND FIRST SOURCE HIRING PROGRAM CONSTRUCTION PHASE AND BUSINESS OPERATIONS PHASE A. Construction Phase 1. General Statement. This section is to develop reliable resources for the prescreening of resumes and operation of training programs that will facilitate the skills and the employment of Low -Income Individuals that reside in the City of Miami and Miami Ground Lease -Final Page 25 Dade County for the construction phase of the Project. This section aims to accomplish that goal (i) by establishing a mechanism whereby Low -Income Individuals can receive job training in the skills requested by employers in the Development, and (ii) by establishing a system for prompt reliable pre-screening and referral of applicants to employers as jobs become available. 2. Providing Employment Opportunities. Developer shall require each Construction Contractor to provide employment opportunities generated by the Project to Qualifying Individuals including in particular, but not limited to, those who are participants in the Agency's training and employment programs, subject to the Construction Contractor's obligation to fill vacancies generated by the Project with (i) Construction Contractor's employees from other jobs, and (ii) permanent full time employees laid off by Contractor within the last two (2) years due to work slow downs. It is understood that jobs may be offered on the basis of qualifications but if qualifications are equal such employment opportunities shall, subject to (i) and (ii) above, be offered by Developer (a) first to residents of the Overtown Area, (b) second to other City of Miami residents, and (c) third to residents of Miami -Dade County. 3. Specific Provisions designed to Benefit Residents. a) Not later than two months prior to the Effective Date, unless otherwise approved by the City Manager, the Developer will set up, or cause to be set up, a Skills Training Program ("Skills Training Program") during construction to provide for On -Site, or Off -Site as approved by the City Manager, with the objective of training for a minimum of ten percent (10%) of the entire anticipated On -Site Project construction workforce, whether union or non -union. The actual hiring requirements are set forth in various other Sections of this Agreement. The requirement for participation in the program will be included in each Construction Contract. The purpose of the Skills Training Program will be to teach the Qualifying Individuals marketable construction skills. The Developer will operate or cause to be operated the Skills Training Center, which will provide for the advancement of skills for the construction personnel at the Project. It will teach a tight curriculum of safety fundamental skills for untrained people, advanced skills for trained personnel, additional skills for certificates in alternate trades, and management of construction operations. Ground Lease -Final Page 26 b) The Developer and the Construction Contractor shall notify the Agency in a timely manner, as necessary and appropriate, when it wishes for the Agency to help develop customized training programs which enable Qualifying Individuals to qualify for and secure entry level and apprenticeship construction positions, whether union or non -union. The Developer may provide rent-free space within the Site or any areas it may license from the City, or elsewhere, for the site or local offices of the Agency. In the event the Agency does not perform in a timely manner, the Developer or Construction Contractor shall notify the Agency, with a copy to the City, of such deficiency. If the Agency does not implement steps to cure such deficiency within fifteen (15) days of such notice, unless modified by the City Manager, the Developer shall immediately identify or establish a new agency acceptable to the City Manager to fill the role of the Agency. c) The Developer and the Construction Contractor will notify the Agency in a timely manner of entry-level, apprenticeship positions and union or non -union job openings resulting from the Construction Contract requirements that will not be filled through the Developer's Skills Training Program including the number of positions needed and the minimum qualifications required for each position. d) The Developer and Construction Contractor will utilize the Agency as the "first source" in identifying candidates for its Skills Training Program and except for those positions filled through the Developer's Skills Training Program, will declare the Agency the "first source" to identify candidates for those entry-level, apprenticeship and union and non -union positions. e) The Developer and the Construction Contractor shall give preference and first consideration on the basis of qualifications. Should qualifications be equal among candidates, the Developer and Construction Contractor, subject to the Construction Contractor's obligation to fill vacancies generated by the Project with (i) Construction Contractor's employees from other jobs, and (ii) permanent full time employees laid off by Contractor within the last two (2) years due to work slow downs, and to the extent permitted by law and any existent labor agreements, such employment opportunities shall be offered by Developer and the Construction Contractor in the following order of priority: (a) first, to residents of the Overtown Area, (b) second, to other City of Miami residents, and (c) third, to residents of Miami -Dade County. Ground Lease -Final Page 27 f) The Developer and the Construction Contractor shall advertise or cause to be advertised through the Agency, in local minority media and City TV, the City of Miami community television channel, and hold job fairs seeking to attract Qualifying Individuals to seek training and employment at the Project. g) It is the objective of this Agreement (but not a covenant by City or Developer) that all of those that successfully complete Skills Training Program, which training was developed for the purpose of developing skills for construction jobs that can be utilized in the Project, shall receive job offers for the Project. It is understood that successful completion of training includes mastery of many performance, attitude, and team skills. As long as these persons remain employed at the Project, their positions will continue to be counted toward this threshold of Developer's performance regardless of any change in their status as a Qualifying Individual. Annual thresholds shall be pro -rated monthly as required. h) In the event that the Agency is unable to identify qualified persons to fill the positions identified by the Developer or the Construction Contractor within a reasonable time frame acceptable to the Developer or Contractor, any unfilled targeted positions may be filled by any qualified person, irrespective of their status as Qualifying Individuals. i) The Developer or Contractor shall use good faith to register a resident apprentice training program with the local unions for Construction Contracts in order to involve trained City residents and Qualifying Individuals as apprentices and ultimately as joumeypersons for the benefit of the Project. j) The City acknowledges that all employees of the Project will be required to have the necessary employment skills, as well as meeting the requirements of the Project insurance policy, including, without limitation, requirements for a drug free workplace. In addition, the City acknowledges that various employment opportunities may require union membership, and may require security clearances consistent with the Project's security policies and procedures. For purposes of this Agreement, to the extent the Agency provides the above services, the Developer may rely on the information provided by the Agency for verification purposes. k) To the extent that the procedures set forth in this section are in conflict with the procedures implemented by the Developer or Construction Contractor in order to comply with the applicable federal, state and local laws, the Construction Ground Lease -Final Page 28 Contractor may substitute other procedures, acceptable to the City Manager, in order to accomplish the purpose and intent of this Agreement. B. Business Users/ Business Operations Phase 1. General Statement. This section is to provide accredited coursework in Retail Management, Leisure Management, Customer Service, and basic educational high school diploma skills ("Career Training Program"). Included in this Career Training Program are accelerated programs in computers, basic mathematics, and language skills. The Developer and participating Business Users may depend upon the Agency to provide and implement such training subject to the Agency agreeing to provide such services. The Career Training Program will focus on developing alliances with organizations within the Miami area to produce educational programs for all employees of the Project that will substantially include the following courses of study: • Hospitality Training • Retail Training • Catering and Dining Training • Marina Operations Training • Public Space Management • Customer Service Training • Multiple Language Skills • Botanical Training • Educational Teaching for cultural facilities • Emergency Services Training (for immediate care prior to arrival of emergency service personnel or professional emergency services). 2. Specific Provisions Designed to Benefit Residents. a) Consistent with Project construction schedule, but no later than four (4) months prior to the Occupancy Date, the Developer will provide or cause to be provided operational skills training for the staff of the completed Project, which can be used by the Project's Business Users participating in the Program, which training shall be provided on site or at a location reasonably acceptable to the City Manager. This will include the courses of study listed above in Section 2 B. 1. This training shall continue to be provided for a term commensurate with the Ground Lease -Final Page 29 need but in no event shall the training terminate prior to one month after the Occupancy Date for each Major Project Component. b) The Developer may notify the Agency to assist in developing and maintaining customized training programs, and will notify the Agency in a timely manner, as necessary and appropriate, to assist in developing customized training programs, which enable Low Income Individuals to qualify for and secure the operations jobs, as well as to improve the skills and capabilities of employees for self improvement and career advancement. c) The Developer will maintain or cause to be maintained an up-to-date database accessible to the Developer and the Business Users who participate. The Developer and the Business Users who participate may notify the Agency electronically in a timely manner of applicable job openings containing the approximate number and type of jobs that will need to be filled, the basic qualifications necessary, and contact information for obtaining further information and information for applying for jobs. d) The Developer shall give preference and first consideration to the highest qualified candidates. Among equally qualified candidates, to the extent permitted by law and any existent labor agreements, preference shall be given to Qualifying Individuals. Developer may rely upon the Agency to determine who is a Resident and to make determination relating to employment, economic status, residency, nationality and other relevant information to the extent the Agency agrees to provide such service. e) The Developer shall advertise or cause to be advertised through the Agency in local minority media and City TV, the City of Miami community television channel, and hold, directly or through the Agency, job fairs seeking to attract Low Income Individuals residing in the City of Miami to seek employment at the Proj ect. f) With respect to Business Operations, the Developer shall offer, or cause to be offered, employment to a minimum of twenty-five percent (25%) of all the initial Full Time Employee job openings or seventy-five percent (75%) of those Qualifying Individuals who have successfully completed the Career Training Program, trained for the purpose of this Project, whichever is greater. As long as these same persons remain employed within the Project or in other locations of the same Business Users, their positions will continue to be counted toward this Ground Lease -Final Page 30 threshold, irrespective of their Qualifying Individual status. Should a Qualifying Individual be relocated, the vacated position shall still be counted towards the total jobs in the Project and the minimum percentage shall continue to apply. Priority will be given among equally qualified candidates to those residing within the City of Miami. In the event there is not a sufficient number of qualified Qualifying Individuals that reside within the City of Miami, then the balance of the threshold can be met utilizing Low Income Individuals that reside within Miami -Dade County. This shall apply to the initial job openings and shall continue so long as the Developer is in control of the project or on the tenth anniversary of the Occupancy Date of the last Major Project Component (excluding the Retail use) to open, whichever comes later. g) The Developer shall provide or cause to be provided to the City monthly reports defining the progress and employment status of those candidates who are hired. h) If Developer anticipates difficulty meeting the percentage threshold requirements referenced above, Developer shall, meet and confer with the City Manager to determine mutually agreeable additional steps which can be taken to meet the percentage threshold requirement. 3. Exemption for Small Businesses. Business Users' responsibilities with regard to the First Source Hiring shall not apply to jobs at businesses that employ fewer than ten (10) Full Time Employee workers, in addition to owner -workers or members of owner's immediate family, proof of which must be provided at City request. 4. Thresholds and Notice to Cure: If the City at any time determines that the Developer has not met the objectives set -forth in Exhibit `B" of this Agreement in accordance with the terms and mechanisms as set forth in Exhibit `B", the City agrees to first provide the Developer with a Notice of Non -Compliance specifying the points of non-compliance and the terms of cure, and provide the Developer with a thirty (30) day cure period; provided, however, such thirty (30) day period shall be extended so long as Developer promptly commences cure and diligently continues to pursue such cure. The successful completion of the cure shall be determined by the City Manager. To the extent required by institutional lenders, City agrees to provide duplicate notices of default to addresses specified by Developer. 5. Positive and Negative Points Systems: The City and Developer have agreed upon the point system described in Exhibit `B" attached hereto to monitor Developer performance. Target levels are set at 95% performance; however, Developer shall not be deemed to be non -performing unless or until Developer is at 75% threshold. Developers performance in any given year in Ground Lease -Final Page 31 excess of 95% will be cumulative and carried over to future years. Also, based upon monthly reporting results, if prevailing economic conditions warrant, the percentages may be modified with City Manager's concurrence. Developer will provide annual labor forecast to City, upon City's written request, but under no circumstances can performance be based on anything other than actuals in arrears. The point and value system may be modified at any time with mutual written consent of the Developer and the City Manager. SECTION 3. MONITORING AND ENFORCEMENT A. Monthly Reports: Construction. During Construction, the Developer, will provide, or cause to be provided, regular monthly electronic reports consistent with the timing and formats of normal employment operational reports, regarding the disposition of all individuals trained in the Skills Training Program including the position applied for and whether such individual was hired or not. If the individual was not hired, then the Developer's report should further provide a brief explanation of why any such candidate was not hired or considered qualified. Copies shall be provided by the Developer to the City Manager with copies to the appropriate departments as set forth in Section 5 of this Agreement. B. Monthly Reports: Business Users. During Operations, Developer will provide, or cause to be provided, the City with monthly reports consistent with the timing and formats of normal employment operational reports, regarding date and number of initial position requests, date required for candidate to commence work, the disposition of all individuals trained in the Career Training Program referrals, including the position applied for and whether such individual was hired or not. If the individual was not hired, then the report should further .provide a brief explanation of why any such candidate was not hired or considered qualified. C. Quarterly Reports Analysis. The Developer shall prepare, or cause to be prepared, detailed quarterly reports on the implementation of all sections of this Agreement during construction of the Project and as long as the Developer has control of the Project or through the tenth anniversary of the Occupancy Date for the last Major Project Component (excluding the Retail use) to open, whichever comes later, including those sections where the Construction Contractor, or Business User is the party hiring the individuals. These reports may be prepared by the Agency or other qualifying entity, as submitted to and approved by the City Manager, upon whom the Developer may rely, and shall provide, at a minimum, a listing of the individuals, ethnicity, residency, classification applied for, employer's naive, date of hire, status of employment (i.e., Ground Lease -Final Page 32 still employed or date terminated), total hours worked for the reporting period, gross monthly earnings, recruitment source and percentage of Qualifying Individuals when they were initially hired for any component of the Project, which status shall continue to be applicable to any thresholds that are set, no matter of changes in employee status as a Qualifying Individual. These reports should further provide a comprehensive summary of the above, including, but not limited to, the following: • total number of positions hired to -date • total number of positions held by Qualifying Individuals residing in the City at date of hire • total number of positions held by Qualifying Individuals residing in Miami -Dade County at date of hire • total new hires this reporting period • total new hires from prior reporting period • total new hires to -date • total number of individuals referred from each respective recruiting source • total number of individuals hired and not hired from each respective recruiting source. These reports shall be provided to the City, consistent with any security provisions of the Project. If the report indicates that the percentage threshold requirement is not being met, the Developer will include as part of the report a discussion of the reasons why that is the case. In compiling this report, Developer shall be entitled to rely on information provided by the Construction Contractors or Business Users, respectively, without responsibility to perform independent investigation. Further, in theevent the Agency prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the Developer shall be entitled to rely on information provided by the Agency to the extent the Agency has agreed to provide such information. D. Enforcement by the City. The City Manager shall determine the necessity of investigating complaints relating to implementation of this Agreement. The Developer shall cooperate fully and promptly with any such investigation, and shall make copies available at no cost, to the City Manager requested records and information the City reasonably deems relevant to monitoring the implementation of this Agreement, consistent with security procedures and policies. If the City Manager determines that the provisions of this Agreement are not being followed, he will determine the necessity of engaging and will proceed to engage in a good -faith effort to hear respective issues and to negotiate a resolution. During the process of such investigation, the Ground Lease -Final Page 33 investigation and its findings will be held in the most strict and confidential manner, reporting findings only to the City Manager and the Developer. If negotiations do not arrive at a resolution within a reasonable period of time, the City Manager may issue his written findings consistent with the terms and provisions of a Notice to Cure as per Section 2.D. above. If Developer fails to comply with the Notice to Cure the City Manager may pursue any available legal remedies, including but not limited to any or all of the following practices: 1. A legal action to enforce this Agreement and/or any term or covenant thereof. The court shall award reasonable attorneys fees and costs to the prevailing party in an action enforcing or interpreting the requirement of this Agreement. 2. A declaration of ineligibility for future City contracts and/or redevelopment agreements with the City until penalties and restitution have been paid in full. Nothing in this Section 4 shall derogate or limit the rights of the City to enforce this Agreement through pursuit of any available legal or equitable remedies. SECTION 4. IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM Inclusion of this Agreement in Leases and Contracts. A. Construction Contracts and Business Users Agreements. The Developer shall not execute any Construction Contract or Major Subleases of or any portion of the Site, unless this Agreement, or the most current draft of this Agreement is acknowledged to have been received and agreed to be complied with by such Construction Contracts and Major Subleases as a material term. Similarly, except for Retail Users, Developer shall not execute any lease agreement of the Site, or portion thereof, unless the written acknowledgement of this First Source Hiring Agreement (or its most current draft), by the Business User is contained within the contract or lease. B. Developer Assurance Regarding Preexisting Contracts. Developer warrants and represents that as of a date of mutual execution of this Agreement, it has executed no construction contract or agreement that would violate any provision of this Agreement had it been executed after the date of mutual execution of this Agreement. SECTION 5. NOTICES Correspondence. All correspondence shall be in writing and shall be addressed to the affected parties at the addresses set forth below. A party may change its address by giving notice in compliance Ground Lease -Final Page 34 with this Section 5 the addresses of the parties are: If to the Developer: With a copy to: With a copy to: With a copy to: If to the City: With a copy to: Flagstone Island Gardens, LLC 506 Celebration Avenue Celebration, Florida 34747 Attn: Mehmet Bayraktar Joseph L. Herndon, Project Director Flagstone Island Gardens, LLC 1674 Meridian Ave, Suite 300 Miami Beach, FL 33139 (electronically to jherndon@flagstonegroups.com) Shutts & Bowen LLP 1500 Miami Center 201 South Biscayne Miami, Florida 33131 Attn: Kevin D. Cowan, Esq. and Terry B. Fein, Esq. Latham & Watkins 885 Third Avenue New York, New York 10022 Attn: Richard L. Chadakoff, Esq. Chief Executive Officer (City Manager) City of Miami Florida 3500 Pan American Drive Miami, Florida 33133 Department of Economic Development City of Miami 444 SW 2 Avenue, 3rd Floor Ground Lease -Final Page 35 With copy to: With a copy to: Miami, Florida 33130 Department of Community Development City of Miami 444 SW 2 Avenue, 2nd Floor Miami, FL 33130 City Attorney, City of Miami 444 SW 2 Avenue, 9`h Floor Miami, Florida 33130 SECTION 6. GENERAL PROVISIONS A. Severability Clause. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect. B. Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the parties hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party. C. Intended Beneficiaries. The City is an intended third -party beneficiary of contracts and other agreements, which incorporate this Agreement, with regard to the terms of this Agreement. The City shall therefore have the right to enforce the provisions of this Agreement against all parties incorporating this Agreement into contracts or other agreements. D. Term. Section 3 Monitoring and Enforcement, of this Agreement shall become effective on the date of mutual execution of this Agreement, and shall remain in effect for as long as the Developer remain in control of the Project or for ten years from the Occupancy Date of the last Major Project Component (excluding Retail Space) to open, whichever comes later. E. Material Terms. The provisions of this Agreement are material terms of the Ground Lease Agreement for the Project. Ground Lease -Final Page 36 F. Waiver. The waiver of any provision or term of this Agreement shall not be deemed as a waiver of any other provision or term of this Agreement. The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement. G. Estoppel. Both parties agree to provide the other (and their designees) within fifteen (15) days of request an estoppel letter acknowledging that the other party is not in default of this Agreement. H. Construction. Each of the parties has been represented by counsel in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against any party, and the rule of construction that any ambiguities be resolved against the drafting party shall not apply to this Agreement. I. No termination of Existing Employees. Neither the Developer, the Business Users nor the construction teams shall be obligated to terminate any existing employees to comply with the terms and provisions of this Agreement. Should the Developer not be able to meet the thresholds or objectives of this Agreement due to low employment position vacancy, the threshold will be based upon the job openings that are available. J. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes any prior agreements, whether written or oral. This Agreement sets forth the general framework for a First Source Hiring Policy and may be supplemented by additional memoranda approved by the .Developer and the City Manager detailing the procedures and deadlines for carrying out this policy. K. Amendments. This Agreement may not be altered, amended or modified, except by an instrument in writing signed by the Developer and City Manager. L. Authority of Signatories. The individuals executing this Agreement represent and warrant that they have the authority to sign on behalf of the respective parties. M. Waiver of Jury Trial. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, 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 of the City and Developer entering into the subj ect transaction. Ground Lease -Final Page 37 IN WITNESS WHEREOF, the City and the Developer executed this Agreement the day and year first above written: ATT Priscilla A. Thom. son City Clerk APPROVED AKO RISK UIREMENT'S Dania F. Carrillo, Administrator Risk Management Attest: By: MekET Print Name and Title: "City" CITY By: oe ola City M nager APPROVE a AS TO FORM AND CORRECTNESS By:..JCuf Maria J. Chiaro Interim City Attorney FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company Date: '1 raQ� By: Mehl et Bayi t,�,ale and Managing Member -1- Ground Lease -Final Page 38 EXHIBIT A OVERTOWN AREA DA1X CO. , jzONE 21 j if / . ,; _; 771— ' 1ZONE 3 I ., ii Ci .} C • f LEGEND ti OCOuutSSION DISTRICS NUMBER - COMMISSION DISTRICT BOUNDARY UNCS ONIBP WOR* ZON( BOUNDARY UNCS C\I IAI 17v .�r�r.i•�.�.�. Ground Lease -Final Page 39 EXHIBIT B POINT SYSTEM Fldgslons lelnnd Gardena, LLC ANNUAL POINT CALCULATION SHEET 3/25/2004 NEAR 1 Phase Total Jobs' Solicit Train Offer Continued Employment 'onictionopenings• 100% 10% 50% 95% 95% 95 75% 95% Corr itruciiorl . New Jobs 0 Jobs Continuing from Precious Yr 0 paaratIona Films or Retains . New Jobs 0 Jobs Continuing from Previous Yr 0 Total PERFORMANCE CALCULATIONS YEAR 1 OPERATIONS NUMBER OF ' POINTS EACH 1st YEAR REQUIRED 1st YEAR ACTUAL Activities Points Activities Points Ors Trained QI'a Hired or Retained 100 125 0 0 0 Ors Conlinuir 5 Employment Subtotal 125 0 0 0 ADDED PMTS. So0c(ling Job Openings Soectiod PersonalJob Interviews Held 5 0 0 0 0 0 0 Trade Fair Days Held TV Ads Produced Other Ads Produced 10 5 5 0 0 0 0 0 -.0 0 0 0 Training Training Programs Set -Up Hiring Employed OI's Retrained Promotion Steps (5500) Made ID 50 50 0 0 0 0 0 0 Subtotal Added Points TOTAkROtNTq::J:3i:'Cz',A4C::i_�:.•�::w.t:; - r Mitt fh(UM ERF.,ORMANCBu: ti;A OPTIMIlM,PERFORMANCV UQ::., l::j •.75.05'. "i:�00.Ot 0 DIVIOV .- r The Total Jobs shall be multiplied by the fired percentages provided above. Total Jobs each reporting period shall be based upon actual jobs created and reported in arrears. Total Jobs is the cumulative total of ell Jobs created al the Project including, but not limited to. all positions vacated involunlerify and positions vacated due to resignations. 75% is the total or Training & Hiring ac(ivltes based on slated assumptions above end (s considered minimum performance. Below an annual performance of 75% requires corrective action. Based upon monthly reporting results if prevailing economic conditions warrant, minimum maybe lowered with City Manager's concurrence. s 95% is target pedarmancr, Percentage points over 95%can be accumulated and applied to future years. Byway of example, if Flagstone's Tola!Performance in year 1 is 100% and in year2 is 70%, the accumulated 5% in year 1 can be applied toyear2 fora -performance -level or-75%in year-2,-Iherebynotrequiring-carr0dive-aclkn Ground Lease -Final Page 40 • Performance Model Phase Total Annual Jobs Construction % of Job Openings on -site Operations % of Job Openings on -site Minimum % of Total Jobs to be: Trained Solicited Offered 30b 733 10% 30 25% 183_ 10% 30 25% 183 10% 30 25%1 183 Examples of Ops DESCRIPTION OF OPERATION Soliciting Job Openings Solicited POINTS EACH 1 NO. OF EVENTS TARGETED 183 POINTS TARGETED 183 N0:•OF ACTUA EVNr; 183 POINTS;: ;` EA:RNED:. solicited; training & • nffnrsl' %:. Job Interviews Held Trade Fairs Held 5 10 367 4 1,833 40 :366 ;1,830 `30 TV Ads Made 5 3 15 Other Ads Made 10 10 100 7 70 Training QI's Trained 100 183 18,300 '.137 13;725 Training Programs Set-up 10 10 100 7 Hiring QI's Hired or Retained 100 183 18,325 :13,744 Employed QI's Retrained Promotion Steps ($500) Made TOTAL 50 50 50 0 2,500 0 41,396 :.38 �'•'� ;1�,875 31,537 PERFORMANCE PERCENTAGE PERFORMANCE GRADE GOOD ACCEPTABLE --I00% 90% 85% 80% :-4 5% afid•tiBlow 76.18% a Ground Lease -Final Page 41 EXHIBIT 14.14 SKETCH OF ENTRANCE ROAD (To be provided upon document execution) 42 EXHIBIT 14.18 HOLD HARMLESS AND INDEMNIFICATION AGREEMENT KNOW ALL MEN BY THESE PRESENT: That Flagstone Island Gardens, LLC, a limited liability company ("Flagstone"), for and in consideration of the approval by the City of Miami (the "City") of the Amended and Restated Agreement to Enter into Ground Lease between the City and Flagstone pursuant to Resolution No. R-10-0402 dated September 23, 2010 and the sum of Ten and No/100 ($10.00) Dollars, receipt of which is hereby acknowledged, on behalf of itself, its successors and assigns, agrees to indemnify, hold harmless and defend the City from and against any and all liabilities, penalties, fines, suits, claims, demands, actions, losses, expenses, investigation and remediation costs, causes of action, proceedings, judgments, executions and reasonable costs of any kind or nature whatsoever (including reasonable attorneys' fees at trail, administrative proceeding or appeal) in connection with, arising out of or related to items listed on Exhibit "A" attached hereto and by this reference incorporated herein. IN WITNESS WHEREOF, Flagstone has caused this Indemnification and Hold Hainnless Agreement to be executed this day of , 2011. STATE OF FLORIDA ) COUNTY OF DADE The foregoing instrument was acknowledged before me this day of , 2011, by Mehmet Bayraktar on behalf of and Managing Member of Flagstone Property Group, LLC, Managing Member of Flagstone Miami Holdings, LLC, Managing Member of Flagstone Island Gardens, LLC, who is personally known to me or has produced as identification, and he did / did not take an oath. [NOTARY SEAL] 43 Print Name: Notary Public My Commission Expires: COMPOSITE ATTACHMENT 1 City's Authorizing Resolution No. 10-0402, adopted September 23, 2010 City of Miami Master Report Resolution R-10-0402 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID #: 10-01116a Enactment Date: 9/23/10 Version: 2 Controlling Office of the City Status: Passed Body: Clerk Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), APPROVING EXHIBIT A HERETO ("EXHIBIT A"), THE AMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE ("AMENDED AND RESTATED AGREEMENT TO ENTER"), AND THE AMENDED AND RESTATED GROUND LEASE(S) ("AMENDED AND RESTATED GROUND LEASE(S)") (EACH IN SUBSTANTIALLY THE ATTACHED FORM(S)), BETWEEN THE CITY OF MIAMI ("CITY") AND FLAGSTONE ISLAND GARDENS, LLC ("FLAGSTONE"), AND AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO EXECUTE THE AMENDED AND RESTATED AGREEMENT TO ENTER, AND THE AMENDED AND RESTATED GROUND LEASE PROVIDING FOR, INTER ALIA: (I) FLAGSTONES OPTION TO DEVELOP THE MEGA -YACHT MARINA WITH ITS ANCILLARY FACILITIES, RETAIL, PARKING, HOTELS AND ALL OTHER RELATED FACILITIES (THE "PROJECT') IN ITS ENTIRETY ALL AT ONCE OR THROUGH PHASED DEVELOPMENT ON A COMPONENT BY COMPONENT BASIS; (2) EXTENDING THE POSSESSION DATE FROM FEBRUARY 1, 2010 TO SEPTEMBER I, 2013, OR SOONER, AT FLAGSTONE'S OPTION; (3) ESTABLISHING AN ANNUAL PAYMENT SCHEDULE FOR ALL COMPONENTS COMMENCING WITH THREE HUNDRED THOUSAND DOLLARS.($300,000) AND INCREASING TO TWO MILLION DOLLARS ($2,000,000) NO LATER THAN THE YEAR 2018, SUBJECT TO CERTAIN CREDITS AND OTHER CONDITIONS RELATED TO DEVELOPMENT ON A COMPONENT BY COMPONENT BASIS; (4) EXTENDING CERTAIN MILESTONE DATES IN THE TIMELINES FOR CONSTRUCTION COMMENCEMENT, COMPLETION, AND OTHER DEVELOPMENT MATTERS AS SET FORTH IN EXHIBIT A;" AND (5) PROVIDING FOR SECURITY DEPOSIT(S), PROVIDED, HOWEVER THAT SUCH APPROVAL, AUTHORIZATION AND DIRECTION ARE ALL SUBJECT TO AND CONDITIONED UPON A SATISFACTORY DB ILRMINATION OF SECTION VIII, ENTITLED "STATE WAIVER" OF EXHIBIT A REGARDING PAYMENTS TO THE STATE OF FLORIDA ("STATE"); FURTHER DIRECTING THE CITY MANAGER TO RETURN TO THE CITY COMMISSION FOR APPROVAL REGARDING THE STATE WAIVER; FURTHER AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO MAKE NON -SUBSTANTIVE REVISIONS AS NECESSARY TO EXHIBIT A, THE AMENDED AND RESTATED AGREEMENT TO ENTER, THE AMENDED AND RESTATED GROUND LEASE(S) ALL DOCUMENTS RELATING TO THE STATE WAIVER Reference: Introduced: 9/16/10 Names—Flagston Requester. Honorable Mayor Cost: Final Action: 9/23/10 Tomas Regaledo Notes: Please include all attachments when certifying this resolution. City of Miami Page 1Printed on 10212011 44 Sections: Indexes: Attachments: 10-01116a Flagstone Resolution.pdf, 10-01116a Flagstone Exhibit A.pdf, 10-01116a Flagstone Liens and State Waiver Modification.pdf, 10-01116a Flagstone Agreement to Enter.pdf, 10-01116a Flagstone Ground Lease Part 1.pdf, 10-01116a Flagstone Ground Lease Part 2pdf, 10-01116a Attachment 4 of the Flagstone Ground Lease.pdf Action History Ver. Acting Body Date Action Sent To Due Date Returned Result 2 Office of the City 9/22/10 Review Pending Attorney 2 City Commission 9/23/10 ADOPTED 1 City orMiami Page 2 Printed on 10212011 45 ATTACHMENT 2 Flagstone's Authorization adopted 20 UNANIMOUS WRITTEN CONSENT OF THE MEMBERS OF FLAGSTONE ISLAND GARDENS, LLC The undersigned, being all of the members of Flagstone Island Gardens, LLC, a Delaware limited liability company (the "Company"), hereby consents to the adoption of the following resolutions: be it further be it further RESOLVED, that the Company shall enter into an Amended and Restated Agreement To Enter Into Ground Lease with the City of Miami, as approved by the Miami City Commission, via Resolution No. R-10-0402, on September 23, 2010, for the purpose of amending and restating the Agreement to Enter into Ground Lease and the exhibits thereto including, but not limited to, the Amended and Restated form of Ground Lease attached thereto as Exhibit C; RESOLVED, that Flagstone Development corporation, the managing member of the Company, through its officers, is hereby authorized and directed to execute and deliver, in the name and on behalf of the Company, any and all agreements, certificates, instruments, documents and plans, and to take any and all action and to do any all things, as may be necessary or desirable to carry out the intent and accomplish the purposes of the foregoing resolutions; and Resolved, that all previous resolutions previously adopted by the company that may be inconsistent with the foregoing resolutions are hereby superseded or modified by these resolutions. Dated as of February 1, 2010 Flagstone Miami Holdings, LLC By: Flagstone Development Corporation By: Mehmet Bayraktar, President 46 Flagstone Development Corporation By: Mehmet Bayraktar, President 47 COMPOSITE ATTACHMENT 3 City's Resolution No. 10-0402, adopted September 23, 2010 With Exhibit A and other attachments thereto City of Miami Master Report Resolution R-10-0402 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov,com File ID #: 10-01116a Enactment Date: 9/23/10 Version: 2 Controlling Office of rho City Body: Clerk Status: Passed Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), APPROVING EXHIBIT A HERETO ("EXHIBIT A"), THE AMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE ("AMENDED AND RESTATED AGREEMENT TO ENTER"), AND THE AMENDED AND RESTATED GROUND LEASE(S) ("AMENDED AND RESTATED GROUND LEASE(S)") (EACH IN SUBSTANTIALLY THE ATTACHED FORM(S)), BETWEEN THE CITY OF MIAMI ("CITY") AND FLAGSTONE ISLAND GARDENS, LLC ("FLAGSTONE"), AND AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO EXECUTE THE AMENDED AND RESTATED AGREEMENT TO ENTER, AND THE AMENDED AND RESTATED GROUND LEASE PROVIDING FOR, INTER ALIA: (1) FLAGSTONE'S OPTION TO DEVELOP THE MEGA -YACHT MARINA WITH ITS ANCILLARY FACILITIES, RETAIL, PARKING, HOTELS AND ALL OTHER RELATED FACILITIES (TILE "PROJECT') IN ITS ENTIRETY ALL AT ONCE OR THROUGH PHASED DEVELOPMENT ON A COMPONENT BY COMPONENT BASIS; (2) EXTENDING THE POSSESSION DATE FROM FEBRUARY 1, 2010 TO SEPTEMBER 1, 2013, OR SOONER, AT FLAGSTONES OPTION; (3) ESTABLISHING AN ANNUAL PAYMENT SCHEDULE FOR ALL COMPONENTS COMMENCING WITH THREE HUNDRED THOUSAND DOLLARS (5300,000) AND INCREASING TO TWO MILLION DOLLARS (52,000,000) NO LATER THAN THE YEAR 2018, SUBJECT TO CERTAIN CREDITS AND OTHER CONDITIONS RELATED TO DEVELOPMENT ON A COMPONENT BY COMPONENT BASIS; (4) EXTENDING CERTAIN MILESTONE DATES IN THE TIMELINES FOR CONSTRUCTION COMMENCEMENT, COMPLETION, AND OTHER DEVELOPMENT MATTERS AS SET FORTH IN EXHIBIT A; AND (5) PROVIDING FOR SECURITY DEPOSIT(S), PROVIDED, HOWEVER THAT SUCH APPROVAL, AUTHORIZATION AND DIRECTION ARE ALL SUBJECT TO AND CONDITIONED UPON A SATISFACTORY DETERMINATION OF SECTION VIII, ENTITLED "STATE WAIVER" OF EXHIBIT A REGARDING PAYMENTS TO THE STATE OF FLORIDA ("STATE"); FURTHER DIRECTING THE CITY MANAGER TO RETURN TO THE CITY COMMISSION FOR APPROVAL REGARDING THE STATE WAIVER; FURTHER AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY TO MAKE NON -SUBSTANTIVE REVISIONS AS NECESSARY TO EXHIBIT A, THE AMENDED AND RESTATED AGREEMENT TO ENTER, THE AMENDED AND RESTATED GROUND LEASE(S) ALL DOCUMENTS RELATING TO THE STATE WAIVER. Reference: Introduced: 9/16/10 Name: —Flagstone Requester. Honorable Mayor Cost: Final Action: 9/23/10 Tomas Regalado Notes: Please include all attachments when certifying this resolution. City o0Miem/ Page l Printed an torziaot l 48 Sections: Indexes: Attachments: 10-01116a Flagstone Resolution.pdf, 10-011 I6a Flagstone Exhibit A.pdf, 10-01116a Flagstone Liens and State Waiver Modification.pdf, 10-01116a Flagstone Agreement to Enter.pdf, 10-01116a Flagstone Ground Lease Part 1.pdf, 10-01116a Flagstone Ground Lease Part 2.pdf, 10-01116a Attachment 4 of the Flagstone Ground Lease.pdf Action History Ver. Acting Body Date Action Sent To Due Date Returned Result 2 Office of the City 9/22/10 Review Pending Attorney 2 City Commission 9/23/10 ADOPTED City of Miami Page 2 Printed on 1021/2011 EXHIBIT A 49 This Exhibit A is an attachment to City Commission Resolution No. 10-0402, adopted September 23„ 2010, contains material business terms, and becomes Composite Attachment 3 to the Amended and Restated Agreement to Enter Into Ground Lease (hereinafter, the "Agreement to Enter") and to the form of Amended and Restated Ground Lease(s) (hereinafter the "Ground Lease(s)"). All terms used herein but not defined herein shall have the definitions given to them in the Agreement to Enter or in the form of Ground Lease(s). I. GENERAL CONSTRUCTION SCHEDULE FOR ALL MAJOR PROJECT COMPONENTS. Flagstone/Ground Lessee shall have the time periods set forth below to commence and complete construction of the various Major Project Components, as such Major Project Components are approved in accordance with the Major Use Special Permit and as such are defined in the form of Ground Lease(s). Throughout this Exhibit A, (a) "Commence(s) Construction" or "Start(s) Construction" shall mean that all material plans and permits are approved and issued and the actual act of physical construction has begun; and (b) "Completion Date" shall mean the date upon which the earlier of the temporary certificate of occupancy ("TCO") or a certificate of occupancy ("CO"), has been issued for the completion of construction. Until 9/1/2013 36 months from 9/1/2010 to Start Construction of the Marina Component. (a) As described in Section VI(c) below, Marina Component construction may be started earlier and separately from the Parking/Retail Components once applicable conditions precedent for Marina Component have been met. Until 2/28/2015 54 months from 9/1/2010 to the Completion Date of the Marina Component. Until 9/1/2016 Until 8/31/2019 (a) If Marina Component Starts Construction earlier than 9/1/2013, then Flagstone shall have 18 months from such earlier start date to the Completion Date of the Marina Component. 72 months from 9/1/2010 to Start Construction of both the Retail/Parking Components 108 months from 9/1/2010 to the Completion Date of Retail/Parking Components. (a) Parking spaces for Hotels may be completed separately with construction of Hotels Components. (b) Flagstone agrees to design, construct and provide utility lines needed for each of the Major Project Components on a component by component basis as necessary and as approved by the City and as 50 required by the Master Declaration as a condition precedent to executing the first Ground Lease. Flagstone shall design, construct and provideutility lines needed for both Hotel Components in connection with the construction of utility lines for the Parking/Retail Components. Until 9/1/2018 96 months from 9/1/2010 to Start Construction of both Hotels Components, if the two (2) 5-year Options to extend described below are not exercised, therefore until 8/31/2020 (being twenty-four (24) months) to the Completion Date. Flagstone cannot exercise the second Option if no hotel construction has commenced by 8/31/2023. Until 9/1/2023 156 months from 9/1/2010 to Start Construction of a Hotel Component, if only the first 5-year Option to extend is exercised. Accordingly, the first Option period ends on 8/31/2023. (a) During the first Option period, a Hotel Component must be completed within twenty-four (24) months after Construction Commencement, therefore until 8/31/2025 to the Completion Date of at least one Hotel Component. Accordingly, both the Rent(s) payments schedule and the Option payments schedule in this Exhibit A would apply throughout the entire period of construction, even if the Completion Date of such construction period runs beyond the Option period. (b) The first 5-year Option period runs from 9/01/2018 through 8/31/2023. The first Option period payment is $250,000 per annum ($125,000 per Hotel Component per annum) with monthly payments beginning 9/01/2018 for the first Option period ending 8/331/2023. (c) All Option payments are to be paid monthly in advance beginning on the first day of the month. The first Option is exercised by Flagstone's giving not less than thirty (30) days advance written notice prior to 8/31/2018 to the City for the first Option period to begin. Until 9/1/2028 216 months from 9/1/2010 to Start Construction of the second Hotel Component if Flagstone exercises the second 5-year Option to extend; accordingly, the second Option period ends on 8/31/2028: (a) The second 5-year Option period runs from 9/01/2023 through 8/31/2028. The second 5-year Option period payment is $315,000 per annum ($157,500 per Hotel Component per annum) with monthly payments beginning 9/01/2023 for the second Option period ending 8/31/2028, but second 5-year Option is not available unless the first Hotel Component Starts Construction before the end of the first 5-year Option period on 8/31/2023. (b) All Option payments are to be paid monthly in advance beginning on the first day of the month. The second Option is exercised by Flagstone's giving not less than thirty (30) days advance written 51 notice prior to 8/31/2023 to the City for the second Option period to begin. (c) During the second Option period, the second Hotel Component must be completed within twenty-four (24) months after Flagstone Commences Construction, therefore until 8/31/2030 to reach the Completion Date of the second Hotel Component that commenced construction during the second Option period. Accordingly, both the Rent(s) payments schedule and the Section IV Option payments schedule in this Exhibit A would apply throughout the entire period of construction, even if such construction period runs beyond the Option period. II. GENERAL RENT(S) PAYMENT SCHEDULE FOR ALL MAJOR PROJECT COMPONENTS. During the periods outlined below, Flagstone/Ground Lessee shall pay to the City the amounts outlined below. Beginning nnual Amounts,, 2/1/2010 through 9/30/2010 $200,000 Consideration for Extension Period. This amount shall not be applied as a credit. 10/1/2010 $300,000 $300,000 is a Pre -Payment of Construction Rent/Base Rent to City 10/1/2011 $500,000 $500,000 is a Pre -payment of Construction Rent/Base Rent to City 10/1/2012 $750,000 $750,000 is a Pre -payment of Construction Rent/Base Rent to City 10/1/2013 $1,000,000 $1,000,000 Construction Rent, subject to II(h) below 10/1/2014 $1,000,000 $1,000,000 Construction Rent, subject to II(h) below 10/1/2015 $1,000,000 $1,000,000 Construction Rent, subject to II(h) below 10/1/2016 $1,140,000* $1,500,000 Construction Rent is the amount actually received by City since $360,000 was pre- paid for this year per above schedule and Section II below, unless there is no credit pursuant to Section VI(a) below. 10/1/2017 $1,315,000* $1,675,000 Construction Rent is the amount actually received by City since $360,000 was pre- paid pursuant to the above schedule and Sections II below, unless there is no credit pursuant to Section VI(a) below. 52 � Begmmngs,3 £� Annual E,� Amount .{x..t � .Y Y%°4 ��v q P r 10/1/2018 and annually thereafter $1,640,000* $2,000,000 Base Rent is the amount actually received by City since $360,000 was pre -paid pursuant to the above schedule and Section II below, unless there is no credit pursuant to Section VI(a) below. Base Rent continues until termination of Ground Lease(s). Additionally, Percentage Rent payments begin as described in (d) below. 10/1/2019 $1,640,000* $2,000,000 Base Rent is the amount actually received by City since $360,000 was pre -paid pursuant to the above schedule and Section II below, unless there is no credit pursuant to Section VI(a) below. Additionally, Percentage Rent payments continue as described in (d) below. 10/1/2020 $1,890,000* $2,000,000 Base Rent is the amount actually received by City since $110,000 was pre -paid pursuant to the above schedule and Section II below, unless there is no credit pursuant to Section VI(a) below. Additionally, Percentage Rent payments continue as described in (d) below until the termination of Ground Lease(s). *Notwithstanding the Annual Amounts set forth above and pursuant to Section II(g) below, credits of the Pre -Payment of Construction/Base Rent cannot be given until the Marina Component Starts Construction prior to 9/1/2013 and both of the Parking/Retail Components Start Construction prior to 9/1/2016 pursuant to the above General Construction Schedule for All Major Project Components. As stated in Section II(g) below, when all (i) of the Marina Component Starts Construction prior to 9/1/2013 and (ii) the RetaillParking Components Start Construction prior to 9/1/2016, then credit of the Pre -Paid Construction/Base Rent begins the month following the date upon which all of those three (3) specific Components have started construction. (a) As set forth in the State Waiver (as defined in Section VII below) at certain times Flagstone and at certain times the City is obligated to pay an annual fee to the State of Florida. (b) During the thirty-six (36) months after 9/01/2010 to 8/31/2013, Flagstone has a 10-day grace period beyond the first of each month to make each "Pre -Paid Construction Rent" payment, and agrees to not require any notice from the City in the event of non-payment of any "Pre -Paid Construction Rent" payment. In the event that Flagstone defaults for non-payment, Flagstone also agrees to waive its defenses as to non-payment against the City, immediately vacate and turn over to 53 the City for the City's possession all of Flagstone's rights, and interests in the Property and the easement areas, remove from such easement areas and from the Property all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the Property, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements which are in Flagstone's possession or in Flagstone's control. (c) All payments to the City (for various Rents and for Option payments) are to be paid monthly in advance. beginning on the first day of the month, except for the lump sum payment Flagstone shall pay to the City upon the date of City Commission Approval of the Agreement to Enter and the Ground Lease, for the Consideration of Extension Period amount from February 1, 2010 through September 30, 2010. (d) Additionally, if the Agreement to Enter is not signed in the same month of City Commission Approval, then Flagstone shall also pay a lump sum payment amount of $25,000 per month for each month from October 1, 2010 until the Agreement to Enter is executed. (e) Additional provisions regarding Percentage Rent payments are included in the form of each Amended and Restated Ground Lease(s). As stated therein, Percentage Rent on the Gross Revenues of each Component begins on the third anniversary after each Major Project Component is Open for Business. "Open for Business" means the earlier of the date that the applicable Major Project Component receives either its TCO or CO. Base Rent may begin sooner than 02/01/2018 (i.e., if both Hotels are Open for Business prior to that time as set forth in the Amended and Restated Hotel Ground Lease). (0 (g) As stated in the applicable Amended and Restated Ground Leases, once Base Rent begins, it continues each year for the remaining term of the applicable Ground Lease(s). On the first anniversary of the commencement of the Base Rent for each Major Project Component, the Base Rent thereafter becomes subject to an annual Consumer Price Index ("CPI") adjustment as set forth in the Ground Lease(s). Percentage Rent on the Gross Revenues of each Major Project Component begins on the third anniversary after each Major Project Component is Open for Business. If the Marina Component Starts Construction prior to 9/1/2013 and the Retail/Parking Component(s) both Start Construction prior to 9/1/2016, then on the first day of the month following the date when the Marina Component and the Retail/Parking Component(s) (all 3 such Components) have started construction, the Construction Rent payment (subject to credits described in (g) below) becomes at least $1,000,000 per year, as opposed to the lesser Prepaid 54 Construction/Base Rent payment amounts shown on the above Section II General Rents Payment Schedule for All Major Project Components. (h) If the Marina Component Starts Construction prior to 9/1/2013 and the Retail/Parking Component(s) (all 3 such Components) Start Construction by 9/1/2016, then as shown on the above Section II General Rent(s) Payment Schedule for All Major Project Components, Flagstone is entitled to a credit back of Pre -Paid Construction Rent/Base Rent each year beginning in the month following the date upon which construction has started on all 3 such Components in the amount of $30,000 per month for fifty-one (51) months and of $20,000 for the 52nd month until Flagstone has received a total aggregate credit of $1,550,000. This monthly credit is a return of Pre -Paid Construction/Base Rent paid by Flagstone between 9/1/2010 and 8/31/2013. If Flagstone Starts Construction of all three (3) of the Marina Component and the Retail/Parking Components prior to 9/1/2013, then the total credit back amount is reduced by 1/36th for each month prior to 2/1/2013 that all such Components have commenced. Conversely, if Flagstone does not Commence Construction of all three (3) of the Marina Component and the Retail/Parking Components by 8/31/2016, then no credit of Prepaid Construction Rent is allowed and the City keeps all of the Prepaid Construction Rent amount received. (i) If no construction begins by 9/1/2013 on any Major Project Component, then the City keeps all Prepaid Construction/Base Rent, Flagstone agrees to not require any notice from the City to terminate for failure to begin construction, and Flagstone also agrees to waive its defenses against the City, immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the Property and the easement areas, remove from such easement areas and from the Property all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the Property, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements which are in Flagstone's possession or in Flagstone's control. III. OPTION PAYMENT SCHEDULE (FIRST OPTION). Flagstone has two (2) 5-year Options ("Option(s)") to extend the date to Commence Construction of the Hotels Components, and Flagstone has the choice to build either one Hotel Component or two Hotel Components; that choice triggers Option payments for one Hotel Component or two Hotels Components accordingly. If Flagstone exercises the first Hotel Option period for only one Hotel Component, Flagstone must also pay to the City the following additional Option payment amounts. 55 y t Be mnin gg Annuaon l Opti y � a menu for pOne Hot 1) �a y� Annual Base ^ �Rent3 �� �'� Annual Amounts A ,, to theCrty" 9/1/2018 $125,000 $2,000,000 $2,125,000 (Base Rent plus Option payment) 9/1/2019 $125,000 $2,000,000 $2,125,000 (Base Rent plus Option payment) 9/1/2020 $125,000 $2,000,000 $2,125,000 (Base Rent plus Option payment) 9/1/2021 $125,000 $2,000,000 $2,125,000 (Base Rent plus Option payment) 9/1/2022 $125,000 $2,000,000 $2,125,000 (Base Rent plus Option payment) If Flagstone exercises the first Hotel Option period for two (2) Hotel(s) Components, Flagstone must also pay to the City the following additional Option payment amounts. Begmning Annual Option payments, (for �a�Rent Hotel)? Annual Base` 4�� ' ......'.... Annual Amounts, Ito the 9/1/2018 $250,000 $2,000,000 $2,250,000 (Base Rent plus Option payments) 9/1/2019 $250,000 $2,000,000 $2,250,000 (Base Rent plus Option payments) 9/1/2020 $250,000 $2,000,000 $2,250,000 (Base Rent plus Option payments) 9/1/2021 $250,000 $2,000,000 $2,250,000 (Base Rent plus Option payments) 9/1/2022 $250,000 $2,000,000 $2,250,000 (Base Rent plus Option payments) (a) As set forth in the the State Waiver (as defined in Section VII below) at certain times Flagstone and at certain times the City is obligated to pay an annual fee to the State of Florida. (b) Flagstone can exercise the Option for only one Hotel Component or for both Hotel Components, or stop Option payments at any time by giving written notice to the City at least thirty (30) days before the date that the next Option payment is due, but if Flagstone elects not to exercise the Option for one or both Hotel Component(s), or fails to make any Option payment(s), then Flagstone must turn over to the City immediately any applicable Hotel Ground Lease(s), Flagstone also agrees to waive its defenses as to failure to pay the required Option payments, immediately vacate and turn over to the City for the City's possession 56 all of Flagstone's rights and interests in the Hotel Component(s), any Hotel Ground Lease, and the applicable easement areas, remove from such easement areas all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the applicable Hotel Component(s), and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements relating to the applicable Hotel Component(s) which are in Flagstone's possession or in Flagstone's control, and City has the rights to seek a new developer for the applicable Hotel Component(s). (c) For Any Hotel(s) Component(s) that Start(s) Construction during the first Option period and continue construction into the second Option period, the Option payments shall increase on 9/01/2023 to the second Option period Option payment amount(s) set forth below in Section IV, and shall continue at such second Option payment amount(s) until the Completion Date. Such Option payments for the Hotel(s) Component(s) are in addition to the required Construction Rent, Base Rent, Percentage Rent, CPI Adjustments, Marina Rent, and any other Rents for the Hotels and any other Major Project Components. IV. OPTION PAYMENTS SCHEDULE (SECOND OPTION). If Flagstone exercises its second Hotel Option period for one Hotel Component only, Flagstone must pay to the City the following additional amounts: °s Begmn g §Annual Option 'r'payment (Fore one/Hotel Annual Base z Rent ,' µ Annual Amounts _ to'the City f 5 9/1/2023 $157,500 $2,000,000 $ 2,157,500 9/1/2024 $157,500 $2,000,000 $ 2,157,500 9/1/2025 $157,500 $2,000,000 $ 2,157,500 9/1/2026 $157,500 $2,000,000 $ 2,157,500 9/1/2027 $157,500 $2,000,000 $ 2,157,500 If Flagstone exercises its second Hotel Option period for two Hotel Components, Flagstone must pay to the City the following additional amounts: . Beginning Annual Option payments (For Annual Base, Rents e: Annual Amounts to the;Crty nd 9/1/2023 $315,000 $2,000,000 $ 2,315,000 9/1/2024 $315,000 $2,000,000 $ 2,315,000 57 P .Y,.`` s4 *o F: Be innin ✓. Y 'c 1 x"1 Annual Optioni a ments Ford �a y Hotel) ' {, '-? t✓ L Annual Base a_ Rent rYl ai:'q i ' f$S,v� T%is''"� Annual Amounts to the City 9/1/2025 $315,000 $2,000,000 $ 2,315,000 9/1/2026 $315,000 $2,000,000 $ 2,315.000 9/1/2027 $315,000 $2,000,000 $ 2,315,000 (a) (b) As set forth in the the State Waiver (as defined in Section VII below) at certain times Flagstone and at certain tunes the City is obligated to pay an annual fee to the State of Florida. Because Flagstone has twenty-four (24) months to complete construction of any Hotel(s) Component, Flagstone shall continue to make Option payments to the City beyond 8/31/2028 until such time that the final Hotel(s) Component(s) construction has reached the final Completion Date. Flagstone can stop Option payments at any time by giving written notice to the City at least thirty (30) days before the date that the next Option payment is due, but if Flagstone elects not to or fails to make any Option payment(s), then Flagstone must turn over to the City immediately the Hotel Ground Lease(s) for the Hotel which is not to be constructed, Flagstone also agrees to waive its defenses as to failure to pay the required Option payments, immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the Hotel Component(s), any Hotel Ground Lease, and the applicable easement areas, remove from such easement areas all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the applicable Hotel, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements relating to the applicable Hotel Component(s) which are in Flagstone's possession or in Flagstone's control, and City has the rights to seek a new developer for the applicable Hotel Component(s). (c) If Flagstone does not Start Construction of the second Hotel Component by 9/1/2028, then both the City and Flagstone have their separate rights to terminate the Agreement to Enter and Flagstone must immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the Property related to the second Hotel Component and the easement areas, remove from such easement areas and from the Property related to the second Hotel Component all of its property of whatever kind as requested in writing by the City Manager, and (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the applicable Hotel, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements relating to the applicable Hotel Component(s) which 58 are in Flagstone's possession or in Flagstone's control, and City has the rights to seek a new developer for the applicable Hotel Component(s). (d) Flagstone has a l0-day grace period beyond the first of each month to make each Option payment, and agrees to not require any notice from the City in the event of non-payment of any Option payment. In the event that Flagstone defaults for non- payment, Flagstone also agrees to waive its defenses as to non-payment against the City, immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the Second Hotel Component and the easement areas, remove from such easement areas and from the Second Hotel Component all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the Second Hotel Component, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements which are in Flagstone's possession or in Flagstone's control. V. ADDITIONAL AGREEMENTS CONCERNING HOTEL COMPONENTS. (a) No Hotel Component can Start Construction until both the Marina Component and the Parking/Retail Components Start Construction. (b) Once a Hotel Component reaches its Completion Date, the Option payments for that Hotel Component stop. For the portion of any construction period that extends into the Option period, all applicable Option payment(s) (and all ongoing Construction Rent payments) shall continue until the Completion Date. (Pursuant to the applicable Ground Lease(s), the "Percentage Rent Payment Beginning Anniversary Date" starts running for any Hotel on the date when it is Open for Business and Percentage Rent payments begin on the third anniversary of the Percentage Rent Payment Beginning Anniversary Date in order to give that Hotel a Stabilization Period). (c) The second Option period cannot be exercised unless one Hotel Component has started construction before the end of the first Option period. If one Hotel Component does not Start Construction before the end of the first Option period, then the Option period terninates and no second Option exists. If the second Hotel Starts Construction before the end of the first Option period and continues construction into the second Option period, then the Option payments applicable to the second Option period shall be due upon commencement of the second Option period until the second Hotel Component reaches its Completion Date. (d) Upon entering into the Ground Lease for any Hotel Component(s) and prior to Starting Construction for any such Hotel Component(s), Flagstone shall provide a Construction Bond to the City for the full amount of the construction cost of any such Hotel Component(s). 59 VI. ADDITIONAL AGREEMENTS CONCERNING FLAGSTONE FORFEITURE / CITY TERMINATION RIGHTS. (a) If the Marina Component does not Start Construction by 9/01/2013 or both the Parking/Retail Components do not Start Construction by 9/01/2016, then Flagstone's rights to build any Components expires and ceases, the Agreement to Enter is terminated, City retains all Prepaid Construction/Base Rent (as consideration for the extension of time until 9/1/2013 for the Marina Component and as consideration for the extension of time until 9/1/2016 for both the Parking/Retail Components) and. Flagstone must turn over to the City immediately the applicable Ground Lease(s), Flagstone also agrees to waive its defenses as to failure to begin construction against the City, immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the Property and the easement areas, remove from such easement areas and from the Property all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the Property, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements which are in Flagstone's possession or in Flagstone's control. (b) If any Hotel Component does not Start Construction according to the applicable deadline under the construction schedule and the Option schedule(s) (as applicable), then Flagstone's rights to build the applicable Hotel Component expires (but Flagstone's obligations under the payment schedule for the Marina Component, the Parking/Retail Component, and any Hotel Component that is/are complying continues to the end of the applicable Ground Lease(s)). Any time Flagstone loses the right to construct a Hotel(s) Component, then Flagstone must turn over to the City immediately the applicable Ground Lease(s), Flagstone also agrees to waive its defenses as to failure to begin construction against the City, immediately vacate and turn over to the City for the City's possession all of Flagstone's rights and interests in the applicable Hotel Component,. any Hotel Ground Lease, and the related easement areas, remove from such easement areas and from the Property all of its property of whatever kind as requested in writing by the City Manager, and immediately (i) return or sign over, as applicable, to the City all of Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements as necessary related to the applicable Hotel Component, and (ii) deliver to the City all of such permits, plans, specifications, and all related governmental approvals, documents, instruments, and agreements which are in Flagstone's possession or in Flagstone's control. 60 (c) Subject to Section VII(a), Flagstone may separately ground lease and separately construct the Marina Component prior to 9/1/2013 if the conditions precedent for the Marina Component are met (d) If construction is continuing during the Option period(s), then Flagstone shall pay both, Construction Rent or Base Rent in accordance with the General Rent Schedule in Section II above, and the applicable Option payments related to its choice to construct either one or two Hotel Components. VII. CROSS DEFAULTS; SEPARATE DEFAULTS. (a) During the period prior to the earlier of 96 months from 9/01/2010 (being 8/31/2018) or the date upon which the first Hotel is Open for Business, Ground Leases for the separate Major Project Components shall be cross -defaulted for any Base Rent payment defaults, Prepaid Construction/Base Rent payment defaults, and any Construction Rent payment defaults. (b) After the earlier of 96 months from 9/01/2010 (being 8/31/2018) or the date upon which the first Hotel is Open for Business, (i) the Base Rent, Percentage Rent, and all other payments to the City each year thereafter shall be apportioned to each separate Major Project Component Ground Lease for direct payments to the City by each separate Ground Lease lessee in an amount reflecting each separate Major Project Component's respective percentage share of the total Project Development Costs to that point in time, and (ii) the Ground Leases for the separate Major Project Components shall not be cross -defaulted for any defaults, including but not limited to any defaults in payments of Base Rent, Prepaid Construction Rent/Base Rent, Construction Rent, Percentage Rent, or any other Rent, with each separate lessee being solely responsible for any payment default(s) to the City. (a) Notwithstanding anything to the contrary in this Exhibit A, if the Retail/Parking Components do not Commence Construction by the 72nd month from 9/01/2010 (being 8/31/2016), then (i) there will be no crediting of Prepaid Construction/Base Rent, the City shall keep all Prepaid Construction/Base Rent received, (ii) the City can terminate the Agreement to Enter, all Ground Lease(s), and (iii) the City can take back the Marina Component, the Retail/Parking Components, any Hotel Components and the balance of the Project and the Property., VIII. STATE WAIVER. Upon approval of this Exhibit A by City Commission Resolution, the City will have forty-five (45) days to perform due diligence on the State Partial Waiver of Deed Restriction (the "State Waiver"). If the State conditions approval in any manner unacceptable to the City, and the City advises Flagstone that it intends to terminate due to such unacceptable conditions, then the City must send notice of such State action to Flagstone within such forty-five (45) days. Upon receipt of such notice, Flagstone will have thirty (30) days to resolve the dispute satisfactorily. If the dispute concerning such unacceptable conditions is not resolved, then the 61 City, may cancel the current Agreement to Enter Into Ground Lease without executing a new Amended and Restated Agreement to Enter Into Ground Lease. The parties intend to execute the Agreement to Enter at such time as the State Waiver is executed and delivered and recorded. IX. INDEMNIFICATION/HOLD HARMLESS FOR CITY; DISCHARGE OF EXISTING LIENS, JUDGMENTS, AND GARNISHMENTS. The City Commission in connection with Resolution No. 10-0144 of March 25, 2010 directed, and Flagstone agreed (a) that Flagstone will enter into a Hold Harmless, Indemnification, and Security Agreement (the "Hold Harmless, Indemnification, and Security Agreement") within thirty (30) days of the City's determination in Section X below to proceed under the new State Waiver, protecting the City against any and all lawsuits and related costs, (b) that Flagstone shall assist the City in defending against any -and all lawsuits involving liens, judgments, garnishments and any other matters against Flagstone related to the Property and the easement areas, (c) to the extent any lawsuit is pending against the City relating to any lien(s) on the subject Property, that Flagstone shall provide to the City not less than $200,000 in security in such form(s) as satisfactory to the City Manager at such time as the parties enter into the Hold Harmless, Indemnification and Security Agreement, and (d) Flagstone shall provide to the City Manager audited financial statements as soon as the same are completed, and any other information needed in connection with the Hold Harmless, Indemnification and Security Agreement. Additionally, Flagstone shall have up to one hundred and twenty (120) days from the date of City Commission approval of the Amended and Restated Agreement to Enter Into Ground Lease (the "City Commission Approval Date") to clear and discharge as many liens, garnishments, and judgments as possible, prior to making a deposit with the Miami -Dade County Clerk of Courts Registry for all remaining outstanding liens, garnishments, and judgments at the end of that one hundred and twenty (120) day period. Upon the one hundred and twenty first (121st) day after the City Commission Approval Date, Flagstone shall deliver to the Miami -Dade County Clerk of Courts Registry to be held in an escrow account, an amount not less than the total remaining outstanding balance of all liens, garnishments, and judgments not previously discharged during the one hundred and twenty (120) day period from the City Commission Approval Date (and update such deposit amount as and if necessary from time to time and at the time of execution of the Amended and Restated Agreement to Enter into Ground Lease, (and update such deposit amount as and if necessary at time of execution of the Amended and Restated Ground Lease). If Flagstone does not provide the foregoing, then the City shall terminate the existing Agreement to Enter with Flagstone, terminate all easements with Flagstone, and the City shall not enter into the contemplated new Amended and Restated Agreement to Enter Into Ground Lease and the Amended and Restated Ground Lease, as applicable at such time. X. SECURITY DEPOSITS. 62 The Amended and Restated Agreement to Enter Into Ground Lease and the form of Ground Lease(s) provide for security deposits in connection with the easement areas, the Pre -paid Construction Rent/Base Rent, and the Ground Lease(s). (a) Security for the Easements. Prior to the execution and delivery of the new Amended and Restated Agreement to Enter by City to Flagstone, 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. (b) Security Deposit for the Construction Rent/Base Rent: Prior to execution of the new and Amended and Restated Agreement to Enter, Flagstone shall either (a) deliver 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 of this Agreement to be performed or observed by Flagstone. During the periods outlined below, Flagstone shall deliver the Security Rent Deposits as defined below: Commencing Annual Amount Required for Rent Security Deposit October 1, 2010 $300,000 Octoberl, 2011 $500,000 October 1, 2012 $750,000 October 1, 2013 $1,000,000 October 1, 2014 $1,000,000 Octoberl, 2015 $1,000,000 63 October 1, 2016 $1,500,000 October 1, 2017 $1,675,000 Octoberl, 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 into Ground Lease to begin being deposited as of October 1, 2010 may be credited toward the following year's Security Rent Deposit. The annual amount due on September 1, 2018 of. $2,000,000 shall remain in effect for the life of the Agreement to Enter and of the Ground Lease(s), in accordance with the schedule listed in this section and in Section 5.2 of the Agreement to Enter. 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 Rent Deposit 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 Rent Deposit, 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 Rent Security Deposit by an equivalent amount. XI. LABOR PEACE AGREEMENTS. The parties acknowledge that the City Commission by Resolution No. 10-0144, adopted on March 25, 2010, has directed that the Project is subject to the provisions of earlier City Commission Resolution No. 09-0263, adopted May 28, 2009, regarding the establishment of labor peace agreements prior to and during the operation of hospitality operations on the Property. XII. COVENANT OF GOOD FAITH AND FAIR DEALING. All matters in this Exhibit A contain a covenant of good faith and fair dealing by Flagstone and the City in reasonably complying with their respective obligations. {Remainder of this page intentionally left blank} 64 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) City of Miami Master Report Resolution R-09.0263 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID #: 09-00450 Version: 1 Controlling Office of the City Body: Clerk Enactment Date: 5/28/09 Status: Passed Title: A RESOLUTION OF THE MIAMI CITY COMMISSION DIRECTING THE CITY MANAGER TO REQUIRE "LABOR PEACE AGREEMENTS" AS A CONDITION PRECEDENT TO THE ISSUANCE OR EXECUTION OF CERTAIN CONTRACTS DEPENDENT UPON REVENUES FROM HOSPITALITY OPERATIONS. Reference: Name: Labor Peace Agmt Introduced: 4/20/09 Requester: District 3- Cost: Final Action: 5/28/09 Commissioner Joe Sanchez Notes: Sections: Indexes: Attachments: 09-00450 Legislation.pdf Action History Ver. Acting Body Date Action Sent To Due Date Returned Result 1 Office of the City 5/19/09 Reviewed end Attorney Approved 1 City Commission 5/28/09 ADOPTED City of Miami Page 1 Primed on 17/6/1011 65 Sections: Indexes: Attachments: 10-01116a Flagstone Resolution.pdf, 10-01116a Flagstone Exhibit A.pdf, 10-01116a Flagstone Liens and State Waiver Modification.pdf, 10-01116a Flagstone Agreement to Enter.pdf, 10-01116a Flagstone Ground Lease Part I.pdf, 10-01116a Flagstone Ground Lease Part 2pdf, 10-01116a Attachment 4 of the Flagstone Ground Lease.pdf Action History Ver. Acting Body ' Date Action Sent To " Due Date Returned Result 2 Office of the City 9/22/10 Review Pending Attorney 2 City Commission 9/23/10 ADOPTED City of Miami Page 2 Printed on 10/212011 66 COMPOSITE ATTACHMENT 5 Amended Partial Modification and City Resolution No. R-11-0337, adopted September 15, 2011 City of Miami Master Report Resolution R•11.0337 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID #: 11-00767 Version: 1 Enactment Date: 9/15/11 Controlling Office of the City Status: Mayor's Office for Body: Clerk Signature Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDED AND RESTATED PARTIAL MODIFICATION OF RESTRICTIONS TO DEED NO. 19447-F, IN SUBSTANTIALLY THE ATTACHED FORM (THE "AMENDED AND RESTATED STATE PARTIAL WAIVER") WITH THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA (THE "BOARD OF TRUSTEES") AND FLAGSTONE ISLAND GARDENS, LLC ("FLAGSTONE"), WITH (1) ANY FUTURE CONTEMPLATED MATERIAL MODIFICATIONS TO THE REFERENCED AMENDED AND RESTATED GROUND LEASE(S) AND/OR AMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE(S) SUBJECT TO PRIOR DISCUSSION AND REVIEW WITH THE DIVISION OF STATE LANDS, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND (2) ANY FUTURE MATERIAL AMENDMENTS TO THE AMENDED AND RESTATED GROUND LEASE(S) AND/OR AMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE(S) SUBJECT TO PRIOR APPROVAL BY THE BOARD OF TRUSTEES. Reference: Introduced: 8/16/11 Name: Auth. Amend & Restated Partial Modification - Flagstone Requester Department of Public Facilities Notes: Cost: Final Action: 9/15/11 • Sections: Indexes: Attachments: 11-00767 Summary Form.pdf, 11-00767 Pre-Legislation.pdf, 11-00767 Legislation.pdf, 11-00767 Exhibit 1.pdf Action History Ver. Acting Body Date Action Sent To Due Date Returned Result 1 Office of the City 8/30/11 Reviewed and Attorney Approved City ofMiami Page 1 Printed on 12/6/2011 67 1 Office of the Mayor 9/15/11 Signed by the Mayor Office of the City Clerk 1 Office of the City Clerk 9/15/11 1 City Commission Signed and Attested by City Clerk 9/15/11 ADOPTED City of Miami Page 2 Printed an 12/6/2011 1 68 I IIIIII111111I111IIl!I IIIII IIIII I1111 I111111I CFH 2011R0624291 OR BK. 27328 Pss 3675 - 3695F (2 ss) RECORDED 09/16!2011 18:46:19 HARVEY RUVIH, CLERK OF COURT, MIAMI-DADE C[2UHTY, FLORIDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA AMENDED AND RESTATED PARTIAL MODIFICATION OF RESTRICTIONS DEED NO. 19447-F KNOW ALL MEN BY THESE PRESENTS: That WHEREAS, the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA ("BOARD OF TRUSTEES"), is by Section 253.03, Florida Statutes, authorized and empowered to modify restricted uses for certain lands under the terms and conditions set forth herein; and WHEREAS, the BOARD OF TRUSTEES conveyed to the City of Miami ("CITY") certain lands more particularly described in Deed No. 19447, recorded in Deed Book 3130, Page 257, Public Records of Miami -Dade County, Florida (the "Deed"); and WHEREAS, the Deed contains the following restrictions (the "Original Restrictions"): PROVIDED, HOWEVER, anything herein to the contrary notwithstanding, this 'deed is given and granted upon the express condition subsequent that the Grantee herein or its successors and assigns shall never sell or convey or lease the above described land or any part thereof to any private person, firm or corporation for any private use or purpose, it being the intention of this restriction that the said lands shall be used solely for public purposes, including municipal purposes and not otherwise. PROVIDED, FURTRER, anything herein to the contrary notwithstanding, this deed is given and granted upon the further express condition subsequent that the Grantee herein or its successors or assigns shall not give or grant any license or permit to any private person, firm or corporation to construct or make by any means, any islands, fills, embankments, structures, buildings or other similar things within or upon the above described lands or any part thereof for any private use or purpose, as distinguished from any public or municipal use or purpose. It is covenanted and agreed that the above conditions subsequent shall run with the land and any violation thereof shall render this deed null and void and the above -described lands shall, in any event, revert to the Grantors or their successors. WHEREAS, the BOARD OF TRUSTEES approved a modification of the Original Restrictions on June 24, 2004, and executed and delivered an instrument entitled "Partial Modification of Restrictions" on March 2, 2005, and same was recorded on March 18, 2005, in Official Records Book 23181, Page 775, Public Records of Miami -Dade County, Florida•.. CC(((ppp'`` �, CEEM1R KADOCS 5570952 2 69 WHEREAS, the CITY is still desirous of leasing that portion of the lands conveyed to the CITY by the Deed which is described in Exhibit "A". attached hereto and made a part hereof (the "Property"), to Flagstone Island Gardens, LLC, a Delaware limited liability company ("FLAGSTONE"), to allow for the construction and operation of a public and private commercial, marina, and mixed use, waterfront development, including any and all uses permitted under the Ground Lease, as defined below (as a whole or in phases, the "Development"), and in order to accomplish the same, it is necessary that the Original Restrictions be modified by the BOARD OF TRUSTEES; and WHEREAS, the Development is still in the public interest because it will convert the Property from a sparse, unimproved field to a location that will contain cultural, scenic, and recreational values that will benefit the public while at the same time retaining 60% of the Development as open space in the form of gardens, walkways, and a waterfront promenade available to residents and visitors for cultural and recreational activities; and WHEREAS, in furtherance of the public interest, the Development will still also aid tourism, provide training and employment opportunities to residents, and generate significant tax revenue for the CITY, Miami -Dade County and the State of Florida; and WHEREAS, the BOARD OF TRUSTEES, the CITY and FLAGSTONE desire to amend and restate the Partial Modification of Restrictions on the terms set forth in this Amended and Restated Partial Modification of Restrictions; and WHEREAS, the BOARD OF TRUSTEES approved this Amended and Restated Partial Modification of Restrictions on August 16, 2011; and WHEREAS, the CITY approved this Amended and Restated Partial Modification of Restrictions effective as of September 15, 2011. NOW THEREFORE, for and in consideration of the foregoing recitals and of the mutual covenants, tenns, and conditions herein contained, and other good and valuable consideration, the BOARD OF TRUSTEES, the CITY and FLAGSTONE hereby completely amend and restate the Partial Modification of Restrictions as follows: 1. Consent to Development and Ground Lease. Provided that the CITY and FLAGSTONE satisfy their respective obligations set forth in Paragraphs 2 and 3 below and subject to termination in accordance with the provisions of this Amended and Restated Partial Modification of Restrictions, the Original Restrictions and Partial Modification of Restrictions are hereby modified to permit, and the BOARD OF TRUSTEES hereby consents to, the following: (i) the leasing of the Property or parts thereof by the CITY to FLAGSTONE pursuant to the ground lease or leases between the CITY and FLAGSTONE (the "Ground Lease," which term shall include Exhibit "A" to the Ground Lease and any amendments made in accordance with the express tenns of the Ground Lease); (ii) FLAGSTONE's use of the Property for the development, construction and operation of the Development; (iii) the grant of any easements and/or license agreements which are necessary or appropriate for pre -development work related to the Development, such as utility relocation and access related to the Development and 2 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F M[ADOCS 5570952 3 70 which are necessary or appropriate for such construction or operation of the Development, and continued access related to the Development, all upon the Property or within the areas described in Exhibit "B", attached hereto and,made a part hereof (the `Basement Areas"), and (iv) that certain Amended and Restated Agreement to Enter into Ground Lease between the CITY and FLAGSTONE effective as of September 15, 2011 (the "Agreement to Enter"), a copy of which has been provided to the Division (defined below). hi the event that (i) FLAGSTONE and the CITY are contemplating any material modifications to the Ground Lease and/or the Agreement to Enter, FLAGSTONE and the CITY agree to discuss such proposed modifications with the Division (defined below) contemporaneously with any discussions on the proposed modifications between FLAGSTONE and the CITY, and (ii) any material amendments to the Ground Lease and/or the Agreement to Enter must fast receive prior approval by the BOARD OF TRUSTEES at a regularly scheduled meeting. 2. FLAGSTONE's Obligations. (a) Payments. Until the Development is completed or October 1, 2021, whichever occurs first ("Takeover Date"), FLAGSTONE shall make payments to the BOARD OF TRUSTEES, on a semi-annual basis, in an amount equal to 15% of the amount it pays to the CITY under the Agreement to Enter and the Ground Lease(s) pursuant to the rent schedule set forth on Exhibit "A" to City of Miami Resolution R-10- 0402, adopted September 23, 2010 (the "Resolution").. FLAGSTONE shall make these semi-annual payments to the BOARD OF TRUSTEES on January 1 and July 1 of each calendar year. Each payment shall be in an amount equal to 15% of the sums paid by FLAGSTONE to the CITY during the prior six (6) months, except for the first semi- annual payment which may be based on less than six (6) months of payments if less than six (6) months have elapsed since commencement of payments to the CITY. Notwithstanding the foregoing, the first payment by FLAGSTONE to the BOARD OF TRUSTEES under this Amended and Restated Partial Modification of Restrictions shall be in the amount of 15% of the amount of the fast payment (the "First Payment") to be made by FLAGSTONE to the CITY on or before September 29, 2011, and shall be made on the same date as the First Payment. (b) Certification. FLAGSTONE certifies to the BOARD OF TRUSTEES as follows: (i) FLAGSTONE is not the subject of a pending bankruptcy proceeding; (ii) FLAGSTONE is current with regard to all state and local tax payments for which it is responsible; and (iii) FLAGSTONE has executed an affidavit dated August 4, 2011, regarding undischarged judgments. Any breach of a statement in that affidavit or of the certifications in this paragraph shall constitute a default by FLAGSTONE under this Amended and Restated Partial Modification of Restrictions. (c) Discharge of Judgments. FLAGSTONE shall either discharge all undischarged judgments identified in the affidavit required. in Paragraph 2(b)(iii) above or deliver to the Miami -Dade County Clerk of the Courts' Registry on or before January 17, 2012, to be held in an escrow account, an amount not less than 125% of the total remaining outstanding principal balance of all undischarged judgments identified on Exhibit "C" attached hereto and made a part hereof. If FLAGSTONE fails to do the 3 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 71 foregoing, this Amended and Restated Partial Modification of Restrictions, shall automatically and immediately terminate and the cure rights provided for in Paragraph 5 below shall not apply. Additionally, FLAGSTONE agrees to comply with the CITY's requirements in Section IX, Indemnification/Hold Harmless for City; Discharge of Existing Liens, Judgments, and Garnishments in Exhibit "A" to the Resolution. 3. CITY's and FLAGSTONE's Obligations. (a) Payments. From and after the Takeover Date, the CITY shall make payments to the BOARD OF TRUSTEES, on a semi-annual basis, in the amount of 15% of the total gross rental payments received by the CITY under the Ground Lease (including, but not necessarily limited to, Base Rent and Percentage Rent, as defined in the Ground Lease), with the first semi-annual rental payment being made on the 30th day of the month in which the CITY receives its sixth month Base Rental payment pursuant to the Ground Lease, and each subsequent semi-annual payment being made on the 30th day of each and every sixth month thereafter for as long as the Development remains on the Property. In no event shall the BOARD OF TRUSTEES receive less than $300,000 during each 12-month period from and after the Takeover Date, regardless of whether the CITY actually collects Base Rent or Percentage Rent under the Ground Lease. (b) Permits. The CITY shall insure and guarantee the BOARD OF TRUSTEES that the CITY shall require FLAGSTONE to apply for and obtain all permits required by law for the Development. (c) Financial Audit Reports. Beginning on the date of the CITY's first semi- annual rental payment to the BOARD OF TRUSTEES as required by Paragraph 3(a) above, the CITY shall require FLAGSTONE to submit for each calendar year, annual financial audit reports to the BOARD OF TRUSTEES which have been completed by an independent certified public accounting firm in accordance with generally accepted accounting principles and which certify the accuracy of the semi-annual payments described in Paragraph 3(a) above. (d) Status Reports Regarding Development. Beginning one year after the Ground Lease Effective Date (defined below) of this Amended and Restated Partial Modification of Restrictions, the CITY shall require FLAGSTONE to submit annual status reports to the Division (defined below) that verify the progress of the proposed Development. The CITY shall be required to submit such information that the CITY receives from FLAGSTONE for these annual status reports to the Division until each phase of the Development has received a certifidate of completion. Each such report from FLAGSTONE shall include a list of all then -existing Curing Parties (defined below). (e) Completion of Development. The CITY shall require FLAGSTONE to insure and guarantee that the Development is completed in the mariner contemplated and required by the Ground Lease (including obtaining applicable permits) within the time periods set forth in the Ground Lease. 4 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 72 (f) Improvements to Additional Lands. The CITY shall require FLAGSTONE to insure and guarantee that any staging area located within the Easement Areas used by FLAGSTONE pursuant to any easement or license agreement shall, after its usage by FLAGSTONE, be left in a condition better than its condition when it was delivered to FLAGSTONE. In addition to the foregoing, the CITY shall require FLAGSTONE to insure and guarantee that FLAGSTONE will spend no less than $1,000,000.00 on improvements to (1) an open space of land on the southeast side of Watson Island known as Southside Park and (2) the Japanese Gardens. Some of these improvements shall include, but not be limited to, the following: master planning of Southside Park, open air pavilion or covered support facility, fencing, removal of invasive trees and plants, underground utilities, park pathways, bicycle and jogging trails, public restroom facilities, security cameras and/or devices, and parking area. (g) Executed Copy of Ground Lease. The CITY shall insure that the BOARD OF TRUSTEES receives a fully executed copy of the Ground Lease within 30 days of the execution and delivery of the Ground Lease by. the parties thereto and all subsequent amendments thereto. (h) Gambling. During the term of the Ground Lease and any renewals, extensions, modifications or assignments thereof, without the express consent of the BOARD OF TRUSTEES and notwithstanding any contrary provisions that now exist in the Ground Lease, the CITY and FLAGSTONE shall not permit: (1) casino gambling and all other forms of gambling on the Property and the Easement Areas and (2) the operation of or entry onto the Property and the Easement Areas of gambling cruise ships, or vessels that are used principally for the purpose of gambling, when these vessels are engaged in "cruises to nowhere," where the ships leave and return to the state of Florida without an intervening stop within another state or foreign country or waters within the jurisdiction of another state or foreign country, and any watercraft used to carry passengers to and from such gambling cruise ships. 4. Termination of BOARD OF TRUSTEES' Approval. (a) Default in the CITY's Obligations. Subject to the notice and cure provisions set forth in Paragraph 5 below and the unavoidable delays provision set forth in Paragraph 6(a) below, the BOARD OF TRUSTEES may terminate the approval set forth in Paragraph 1 above if any of the CITY's obligations as set forth above in Paragraph 3 are not performed in a timely manner or FLAGSTONE's obligations set forth above in Paragraphs 2 and 3 are not performed in a timely manner. (b) Termination of Ground Lease. Subject to the notice and cure provisions set forth in Paragraph 5 below, the BOARD OF TRUSTEES may terminate the approval set forth in Paragraph 1 above if the Ground Lease is terminated in accordance with its terms and it is not replaced with any new replacement lease(s) expressly provided for by the Ground Lease or by any Subordination, Non -Disturbance and Attornment Agreement entered into by any of the Curing Parties; provided, however, this termination right shall not apply if there are separate ground leases for components of the Development and at least one such Ground Lease has not been terminated. 5 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 73 (c) Reimposition of Original Restrictions. If the BOARD OF TRUSTEES terminates this Amended and Restated Partial Modification of Restrictions, the Original Restrictions shall automatically and immediately be reimposed on the Property and Easement Areas. 5. Cure Rights. The BOARD OF TRUSTEES agrees that in the event that the BOARD OF TRUSTEES or the Division of State Lands, State of Florida Department of Environmental Protection (the "Division"), determines that a default (a "Default") described in Paragraph 2(a), 2(b)(ii) or 3(a) above (a "Monetary Default") or Paragraph 2(b)(i), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g) or 3(h) above (a "Non -Monetary Default") has occurred, the following procedures shall apply: (a) Notice. The BOARD OF TRUSTEES or the Division shall provide notice to the CITY or FLAGSTONE (whichever is believed to have defaulted) of any Default, which notice shall identify the alleged Default. The BOARD OF TRUSTEES or the Division shall send a copy of such notice to each Approved Mortgagee and Major Subtenant and any association formed to administer the applicable regime(s) ("Association(s)") with respect to Approved Time Share Licenses, as such terms are defined in the Ground Lease, and to the CITY or FLAGSTONE (whichever is not believed to be the defaulting party) (the Major Subtenants, the Approved Mortgagees, such Association(s) and the CITY or FLAGSTONE (whichever is not the defaulting party), each a "Curing Party"). Notwithstanding the foregoing, the BOARD OF TRUSTEES or the Division shall be required to send a copy of any such notice only to each party as to which the BOARD OF TRUSTEES or the Division has been notified in writing of such party's status as a Curing Party. In the event the BOARD OF TRUSTEES or the Division fails to send a copy of such notice to any such Curing Party, such failure shall not affect the validity of the Default notice given to any other Curing Party, or the cure period set forth in Paragraph 5(b) below which is afforded to such other Curing Party. (b) Cure periods. The BOARD OF TRUSTEES agrees that if the BOARD OF TRUSTEES determines that the CITY or FLAGSTONE (as applicable) has failed to cure the Default after being given the opportunity to do so (which determination of the CITY's or FLAGSTONE's failure to cure the Default may be made in the sole and absolute discretion of the BOARD OF TRUSTEES), any Curing Party shall have the opportunity: (i) to cure any Monetary Default within 60 days from the date the BOARD OF TRUSTEES sends its notice of Default (the `Default Date"); and (ii) to cure any Non - Monetary Default within 120 days from the Default Date; provided, however, that if any Non -Monetary Default cannot, in the exercise of due diligence and good faith, be cured within such 120-day period, any Curing Party shall have such additional reasonable period as will enable such Curing Party, with the exercise of due diligence and in good faith, to cure the Non -Monetary Default; provided further that the cure period for such Non -Monetary Defaults shall not exceed 24 months from the Default Date (except that if possession of the Property by such Curing Party is reasonably necessary for such Curing Party to cure such Non -Monetary Default, the cure period for such Non -Monetary Default shall not exceed 24 months from the date such possession is obtained, so long as such Curing Party is diligently pursuing proceedings to obtain such possession). 6 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 74 6. Miscellaneous. (a) Unavoidable Delays. The BOARD OF TRUSTEES recognizes that there may be instances when unavoidable delays may be encountered which are caused by circumstances beyond the reasonable control of the CITY or any Curing Party and could not have been overcome by the CITY'S or such Curing Party's due diligence. A filing of a voluntary petition in bankruptcy or for reorganization or an arrangement pursuant to the Federal Banlc uptcy Code or any similar law, federal or state, now or hereinafter in effect, or an assignment for the benefit of creditors shall not be considered an unavoidable delay for purposes of this Paragraph 6(a). In the unlikely event of such an unavoidable delay, the BOARD OF TRUSTEES agrees to the following procedure: (i) upon occurrence of any. unavoidable delay, .the CITY or. any .Curing Party shall notify .the Director of the Division in writing within 30 days thereafter of the anticipated length and cause of the delay, the measures taken or to be taken to minimize the delay and the timetable by which the CITY and/or such Curing Party intends to implement these measures; (ii) the parties will then enter into discussions to determine the appropriate extension, to allow the CITY or such Curing Party adequate time to meet the delay or anticipated delay. The Division, acting on behalf of the BOARD OF TRUSTEES, shall agree to extend the time for performance hereunder for a period equal to the agreed delay from such circumstances. Such agreement shall adopt all reasonable measures necessary to avoid or minimize the delay; and (iii) if the parties cannot agree, the Division will provide the CITY or the Curing Party with notice and an opportunity for a hearing before the BOARD OF TRUSTEES to determine the amount of time for extension of performance hereunder. The provisions of this Paragraph 6(a) shall not apply to Paragraphs 2 or 3(a) above. (b) Application Only to Property and Easement Areas; Ratification. This Amended and Restated Partial Modification of Restrictions applies only to the Property and the Easement Areas, and shall not affect or modify the restrictions imposed upon the other lands described in the Deed which have not previously been waived or modified by the BOARD OF TRUSTEES. Except as expressly modified hereby, the terms of the Original Restrictions and Partial Modification of Restrictions shall remain unchanged in each and every respect, and the same are hereby ratified, approved and confirmed by the BOARD OF TRUSTEES and the CITY as of the date of this Amended and Restated Partial Modification of Restrictions (it being understood that any previous waiver or modification of the Original Restrictions or the Partial Modification of Restrictions made with respect to the Property is hereby superseded). (c) Effective Date. Except for Paragraphs 1(i) and (ii) above, this Amended and Restated Partial Modification of Restrictions shall be effective upon the mutual execution and delivery hereof. With respect to the BOARD OF TRUSTEES' consent pursuant to Paragraphs 1(i) and (ii) above, this Amended and Restated Partial Modification of Restrictions shall be effective only upon the Division's receipt of a copy of a fully executed Ground Lease and the Division's confirmation that the Ground Lease is in substantially the same form as the copy of the proposed Ground Lease that is attached to the Agreement to Enter ("Ground Lease Effective Date"). 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 75 IN WITNESS WHEREOF, the BOARD OF TRUSTEES, the CITY and FLAGSTONE have caused this Amended and Restated Partial Modification of Restrictions to be executed on this I S day of R.‘,44,4514.2011. Witn sses: Signature ot jWitness Printed/Typed Name of Witn s Signature of Witn ss -Prt ia--- J I "rlr� 4'=fl Printed/Typed Name of Witness STATE OF FLORIDA COUNTY OF LEON BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA By: Mike n Assistant Director, Division of State Lands, State of. Florida Department of Environmental Protection, as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida The foregoing instrument was acknowledged before me this g day of4 2011, by Mike Long, as Assistant Director, Division of State Lands, State of Florida epartment of Environmental Protection, as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. He s personally known to me. SEAL Approved to Form and Legality IIBy: DEP Attomey torf Signature of Not Printed/Typed N motif',„ •VISG.LOC ?' ,.,;= Commission DD 818021 ;. _ Expires September 19, 2012 htfek BiOW Commission Number: Commission Expires: 8 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MLAD005 5570952 3 76 APPROVE TO INSURANCE REQUII�E NHS vin Ellis, Director of Risk Management CITY OF MIAMI, a municipal corporation of the State of Florida By: Jo Purs t to Resolution No. - 17 — 0334- Martine P.E., City Manager • Priscilla A. Thompson City Clerk (OFFICIAL SEAL) APPROVED AS TO FORM AND CORRECTNESS: By: Julie 0. Bra, City Attorney STATE OF FLORIDA COUNTY OF MIAMI-DADE / The foregoing instrument was acknowledged before me this /5 day of Xrl14 ii-be! 2011, by Johnny Martinez, P.E. as City Manager, and Priscilla A. Thompson, as City Clerk, on behalf of the CITY OF MIAMI, FLORIDA. Each of them is personally known to me or produced identification. i OFEIIA E. PEREZ MY COMMISSION k EE 109209 ir EXPIRES: August 2, 2D15 „0- Bonded Thou Notary Public Underwriters Not./ Public, State 6Jlorida Printed/Typed/Stamped Name Commission Number: Commission Expires: 9 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 77 W Signature of Witness (.f4 a -CA I-ENITh Printed/Typed Name of Witness 5e,i/$aCtiY Signature of Witness SFyrvr4.n SA1elac Printed/Typed Name of Witness STATE OF FLORIDA COUNTY OF MIAMI-DADE FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company By: Flagstone Development Corporation, a Delaware Corporation, its manager The foregoing instrument was acknowledged before me this i day of 2011, by Mehmet Bayraktar as President of Flagstone Development Corporation, a Delaware corporation on behalf of the corporation acting as the manager of FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, on behalf of the company. He is personally lmown to me or produced as identification. NOTARY PUBLiGSTATE OF FLORIDA '..Juan Carlos Echeverria Commission # EE063267 Expires: FEB. 09, 2015 BONDED TARO ATLANTIC BONDBi000.., INC. u. sc, State of lorida Printed/Typed/Stamped Name Commission Number: Commission Expires: 10 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MI AD005 5570952 3 78 Exhibit "A" Legal Description of Lands Conveyed by Deed No. 19447 LEGAL DESCRIPTION (NW QUADRANT - UPLAND PARCEL): COMMENCE AT A POINT SHOWN MARKED BY A 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 N0. (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 LATE; THENCE NORTH 17°12'21" WEST 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 924.74 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 72.89 FEET; THENCE NORTH 86°39'49" EAST A DISTANCE OF 67.31. 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°09'28"; 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 SAIL) 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 LATE 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. LEGAL DESCRIPTION (SUBMERGED PARCEL): COMMENCE AT A POINT, MARKED BY A 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' ; 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 THE TURNING BASIN LIMIT AS ESTABLISHED BY U.S. ARMY CORPS OF ENGINEERS AND POSITIONED BY COORDINATES NORTH 527,878.62 FEET, EAST 926,135.22 FEET (BASED ON NORTH AMERICAN DATUM 1983-NAD83) WITH THE NORTHERLY LINE OF THE MIAMI MAIN SHIP CHANNEL; 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 THE INTRACOASTAL WATERWAY; THENCE NORTH 03°27'54" WEST ALONG SAID EAST RIGHT-OF-WAY LINE A DISTANCE OF 874.43 FEET TO A POINTS 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 PONT OF TANGENCY; THENCE SOUTH 89°I0'55" EAST CONTINUING EASTERLY ALONG THE SAID SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 32.06 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 924.74 FEET TO THE POINT OF BEGINNING. BSM: -VOA' DATE: MIADOCS 5570952 2 3/29/11 79 Exhibit B Legal Dcaczipti000 of Staging Acee9a end Dredging Aims IF.GAL'OmporlAXi FOR TEMPORARY EASEMENT 'A' PORBONS. OF WATSON ISLAND, CITY OF'M1IAMI, •TYING WITHIN SECTION 31. , TOWNSHIP'S] SOUM, RANGE 42 EAST, MIAMI—DADE COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED•AS FOLLOWS: COMMENCE AT POINT OF TANGENCY STATION 25+50 ON THE CENTERLINE OF GENERAL. DOUGLAS Moc ARTHUR CAUSEWAY (S.R, A-1—A) STATE PROJECT SECTION ND. (8706-112) 87080-21I7 RIGHT OF WAY MAP AS RECORDED IN 'PLAT BOOK '56 AT PAGE. 71 OF THE PUBLIC RECORDS OF M8MI DADE COUNTY, !FLORIDA; THENCE 559'51'28'W FOR 252.79,FEET•TO A POINT 'ON THE WESI(RLY RIGHT OF.WAY LINE Or GENERAL. DOUGLAS Mac ARTHUR • CAUSEWAY. (THE NEXT 115E (5) COURSES ARE ALONG - SAID WESTERLY RICHT OF WAY LINE), THENCE 526'22'35'E FOR 33.52 FEET: THENCE 51758'22'E FOR 275.81 FEET; THENCE' SO4'22'4TE FOR' 281.49 FEET TO THE POINT OF CURVATURE OF A'CIRCULAR CURVE TO THE LEFT HAVING A RADIUS 0F:190.00 FEET AND A•CENTRAL ANGLE OF 79'15'21'; THENCE SOUTHERLY AND EASTERLY ALONG THE ARC OF SAID CURVE AN MC DISTANCE OF 282.82 FEET; THENCE 583'38'08'E FOR 31.88 FEET TO THE POINT OF BEGINNING OF TEMPORARY EASEMENT %1'. (THE 'NEXT WETS) COURSES ARE ALONG SAID 'WESTERLY RIGHT OF WAY OF GENERAL DOUGLAS Mot ARTHUR CAUSEWAY); THENCE 553'35'08'E FOR 157.58 FEET TO THE POINT OF CURVATURE•OF A CIRCULAR CURVE TO • THE RIGHT HAVING A RADIUS OF' 227.50 FEET AND A CENTRAL ANGLE OF 45'2855', THENCE EASTERLY AND SOUTHERLY 40NG THE ARC 'OF SAID CURVE AN ARC DISTANCE OF 18059. FEET TO THE' POINT 0F. REVERSE C}1RVATURE OF A CIRCULAR CURVE TO THE LEFT H4NNO A RADIUS OF 2723.00 FEET AND A CENTRAL ANGLE OF 10'S3'111', THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE OF 517.47 FEET; THENCE N43'54'30'E FOR 26.98,FEET TO A POINT ON A CURVE THAT l5 CONCAVE TO THE NORTHEAST , AND HAVING A RADIUS OF 1975.08 FEET, SAID CURVE GEMS N454.317E, THENCE SOUTHEASTERLY ALONG THE MC OF SAID CURVE THROUGH A CENTRAL ANGLE or 1743'45"FOR AN MC DISTANCE OF 25.14 FEET; THENCE S25'01'24.14 FOR 118.20 FEET; THENCE N84'58'36'12 FOR 838.45 FEET; ' • THENCE N25'01'24'E FOR 251.11 FEET TO THE POINT OF BEGINNING. ' Book23181/Page783 CFN#20050267972 Exhibit B Page I of7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F M)ADOCS 5570952 2 80 ExhlbitB Legal Desaiptions of Staging, Access end Dredging Areas IE6v. DESCRIPTION FOR Tiaceokixe EA009S NT' 5 • • PORTIONS OF WATSON ISLAND, CRY OF MI MI, LYING WITHIN SECTION 31, TOWNSHIP 53 SOUTH, RANGE 42 EAST, MIAMI-DADE COUNTY. FLORIDA. , .BEING' MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT POINT OF.TANGENCY STATION 25+50 ON THE CENRERCINE 'OF GENERAL DOUGLAS Moc ARTHUR CAUSEWAY (S.R. A-1-A) STATE PROJECT SECTION' Na (8708-112) 87060-2117 RIGHT OF WAY MAP AS RECORDED IN PLAT 600.1( 56 AT PAGE.71 OF THE PUBLIC RECORDS OF MAW DADE COUNTY,• FLORIDA; THENCE 559'51'26'W'FOR 252.79 FEET TO A POINT ON THE WESTERLY RIGHT. OF. WAY UNE OF GENERAL DOUGLAS Mac ARTHUR CAUSEWAY. (THE NEXT FIVE (5) COURSES ARE ALONG SAID WESTERLY RIGHT OF WAY UNE),.7HENCE .S26'22'36'E FOR 3342 FEET; THENCE, • 51755'22'E FOR 275.61 FEET; THENCE ,504'22'47'E FOR 281.49 FEET TO THE POINT OF CURVATURE OF A CIRCULAR .CURVE .TO THE LEFT HAVING A RADIUS OF 190.00 FEET AND A CENTRAL ANGLE OF 79'15'211 THENCE SOUTHERLY AND EASTERLY ALONG•THE ARC OF SAID. CURVE AN ARC DISTANCE OF 262.82 FEET; THENCE 553'36'05'E FOR 31.68 FEET; THEt{CE 52501'24'W FOR 52.77 FEET TO THE POINT OF BEGINNING OF TEMPORARY EASEMENT '8`: THENCE CONTINUE S2501'24'E FOR 198.34 FELT; .THENCE • N64'58'3615, FOR 250,00 FEET;. THENCE N25'01'24'E FOR 219.10 FEET; .THENCE 564'56'36'E FOR 21.96 FEET 'TO 114E POINT OF CURVATURE OF A CIRCULAR CURVE TD'THE RIGHT HAVING A RADIUS OF 25.00 FEET AND A CENTRAL ANGLE 0F'31'08'46', THENCE' SOUTHEASTERLY ALONG THE ARC OF SAID CURVE AN ARC DISTANCE' OF 13.59 FEET TO THE POINT OF REVERSE CURVATURE OF A CIRCULAR CURVE 70 THE LEFT HAVING A RADIUS OF. 240.00 FEET AND A CENTRAL ANGLE OF 49'47'50', THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE, AN ARC. DISTANCE OF 208.59 FEET; THENCE 583'38'08'E FOR 15,00 FEET TO 'THE POINT. OF BEGINNING. Book23181/Page784 CFN#20050267972 ExhibitB Page 2 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 • / 81 Eildblt B ' Legal Demripdo111 of Singing, Access and Dicdging ATw LETSV. D6.CRIPTON roR TF38'OR.AR7 EA67IE4IT "G. PORTIONS OF WATSON 1SLAND, CRY CF ,MN. LYING 11041N SECTION 31, TOWNSHIP 53 SOUTH, RANGE 42.EAST, W WI-DADE COUNTY. FLORIDA BEING MORE PARTIC0LARLY DESOR19ED AS FOLLOWS: COMMENCE AT POINT OF TANGENCY STATION 25+50 ON THE CENIERUN7 OF GENERAL DOUGLAS M9c ARTHUR. CAUSEWAY. (S.R. A-1-A) STATE•PROIECT . ' SECTION No. (8705-112) 87060-2117 RIGHT OF WAY NAP .AS RECORDED IN PLAT BOON 56 AT PAGE 71 OF THE PUOUC RECORDS OF 18A641.DADE COUNTY, FLORIDA THENCE 559:51'28.W FOR 252.79 FEET 70 A PRIM. ON -THE • WESTERLY RIGHT OF WAY UNE OF GENERAL DOUGLAS Ucc ARTHUR • • CAUSEWAY; THENCE N26'22'34W ALONG SAID WESTERLY RIGHT 0S'WAY UNE 'FOR 169.21 FEET: THENCE 554'07'39 W FOR 484.19 FEET TO THE POINT OF BEGINNING OF TEMPORARY. EASEMENT •"C"; THENCE S35'S2'21"E FOR 143.31 FEET; THENCE S43'41'14 FOR 186.59 FEE; THENCE 544'28'41"'FOR 154.05 FEET; THENCE 552'14'06'E FOR 81.03 FEET; THENCE 564'58'361E FOR 242.86 . FEET 10 A POINT ON THE AFORESAID' WESTERLY RIGHT DF.WAY UNE' OF GENERAL DOUGLAS Moe ARTHUR CAUSEWAY, SAID POINT ALSO BEING ON A • CURVE THAT CONCAVE TO THE.NoRTHEA5T HAv190.00 . FF1T, THENCE550UTHEASTERLY ALONG THE ARC OFNSAD CURVE OTHROUGH A . CENTRAL ANGLE OF 179'15'21' FO5•AN ARC DISTANCE OF 26282 FEET: THENCE 583'38'08T ALONG SAD WESTERLY RIGHT' OF WAY UNE FOR 31.88 FEET: THENCE 525'01124W FOR 52.77 FEET; THENCE N63'35'08W FOR 15,00 FEET TO THE POINT OF CURVATURE OF A CIRCULAR CURVE To THE RIGHT HAVING A RADIUS OF 240.00 FEET AND A CENTRAL ANGLE OF 49'47'50', THENCE NORTRlESTERLY ALONG THE ARC DE SAID CURVE AN ARC DISTANCE OF 208.59 FEET TO THE POINT OF REVERSE CURVATURE OF A • CIRCULAR. CURVE TO'THE LER 144,ANG A RADIUS OF.25.00 FEET AND A CENTRAL ANGLE OF 31'08'46", THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE AND AR4, DISTANCE OF.13.59 FEET; 790140E N64'58'3611 FOR 232.65 FEET; THENCE N5214'06W FOR 90.00 FEET; THENCE N44'28'411Y FOR 165.00 FEET; THENCE N42'52'31W FOR 114.31 FEET: THENCE 547.07'29V FOR 114.15 FEET; 'THENCE NV-10'56W FOR 60.00 FEET; THENCE 57735'381V FOR 8.61 .FEET: THENCE N16. i9'53W FOR 61.30 FEE7;.TIENCE 570-36'43W FOR 149.03 FEET; IHENCE'H17'12'21W FOR 212.14 FEET; THENCE N54'07'39"E FOR 150:14.FEET; THENCE 535.54'03'E FOR 134.36 FEET; 'THENCE N54'07'39"E FOR 47.43 FEET TO THE p01NT OF BEGINNING. • . 600k23181/Page785 CFN#20050267972 Exhibit B Page 3 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 82 ZObibit B Legal Deslapdons of Staging, Access axed Dredging Areas LEGAL DESCR1PI101/ FOR PEPINTEHT EASEMENT. Ct' PORTIONS OF WATSON ISLAND, CRY OF MIAMI, LYING WITHIN SECTION 31, •TOWNSHIP 53 SOUl14, RANCE 42 EAST, MAW—DADE COUNTY, FLORIDA. • BEING MORE PARTICULARLY DESCRIBED AS' FOLLOWS: COMMENCE AT POINT OF TANGENCY 57471 N 25+50'ON THE CENTERLINE 9F. GENERA/ 000GLAS Moo ARTHUR CAUSEWAY (S.R. A-1—A) STATE PROJECT SECTION No, PLAY BOOK 566AT PACE2)73OF0 11E1(PUBLIC TRECORDS O MLUAIROADE O000NTY. • FLORIDA; THENCE 'S5r51'26 W FOR 252.7s FEET T0, A POINT ON THE WESTERLY RGH7 OF WAY LINE OF. GENERAL DOUCI,AS Mac ARTHUR CAUSEWAY; THENCE N2622'36'W AIONG'S410 WESTERLY RIGHT OF WAY UNE FOR 169.21 FEET: THENCE S6t1o7'30'W FOR 5}1.61 FEET TO THE PANT OF BEGINNING OF PERMANENT EASEMENT 7G1'; THENCE 1148'20'1 TIT FOR 137.6E FEET; THENCE N54.07'391 FOR 30.00 FEET; THENCE N35'54'03•0 FOR 134.36 FEET TO THE POINT OF BEGINNING, • Book23181/Page786 CFN#20050267972 Exhibit B Page 4 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 83 Exhibit B Lagat Descriptlons of atagm& Acocas and Dredging Areas LEGV. pep:kp1 N FOR PERM/NEW E'ASa1NT b' PORTIONS OF WATSON ISLAND, CITY OF ULWI, LYING WITHIN SECTION 31, 'TOWNSHIP 53 SOUTH. RANGE .42 EAST, MIAMI—DADE COUNTY. FLORIDA BEING MORE PARTICULARLY AESCRIBED A5 FOLLOWS: . COMMENCE AT.POINT'OF TANCENCY.:STATION 25;50 ON 114E CENTERLINE OF GENERAL DOUGLAS Mac ARTHUR CAUSEWAY (5.R. A-1—A) STATE PROJECT SECTION No. (8706-112) B7050-2117 RIGHT OF WAY MAP AS RECORDED IN PLAT BOOK 55 AT PAGE 71 OF 'THE PUBLIC RECORDS OF MIAMI OWE COUNTY, FIDRIOA; THENCE 658'51'26VY. FOR 252.79 TEST TO A POINT ON THE • WESTERLY RIGHT OF WAY LINE OF GENERAL DOUGLAS Mac ARTHUR . CAUSEWAY; THENCE N26'2266'W ALONG SAID WESTERLY RicKr OF WAY LINE FOR 114.36 FEET TO THE POINT OF BEGINNING OF PERMANENT EASEMENT `Or; THENCE. 534'07'39V FOR 475.15.FEED THENCE•N35'52'21Y/ FOR 54.00 FEET; THENCE NS407'39.E FOR 464.19 FEET TO A POINT ON THE AFORESAID WESTERLY RIGHT OF WAY UNE GE GENERAL DOUGLAG Mac ARRiUR CAUSEWAY THENCE SSF22'36'E ALONG SAID WESTERLY RIGHT OF WAY'UNE FOR 64.75 FEET TO THE POINT OF BEGINNING: Book23181/Page787 CFN#20050267972 Exhibit B Page 5 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 84 Exhibit 13 Lcgal Deacripfious of' Staging Ames so d Dredging Amu 0604L 055CRIPRON FOR TEMPORARY rthoserr PORTIONS OF SUBMERCED LANDS LYING WESTERLY OF WATSON ISLAND, CRY OF MIAMI, MIAMI—DAOE COUNTY, FLORUM. BUNG MORE PARTICULARLY DESCRIBED AS FOLLOWS; • COMMENCE AT POINT OF TANGENCY STATION 25+50 ON THE CENTERLINE OF GENERAL. DOUGLAS. Moo ARTHUR-CAUSEWAY (S.R. A-1-A) STATE PROJECT SECTION No., (13706-1.12) 67060-2117 RICHT OF WAY MAP AS RECORDED IN PLAT B00K, 56 AT PACE 71. OF THE PU9UC RECORDS OF MWJI DADE COUNTY, FLORIDA; THENCE 566'10'14'14 FOR 1384.81 FEET TO THE POINT OF BEGINNING OF TEMPORARY EASEMENT 'E'; THENCE 549'32'5714 FOR 101.36 FEET TO A Ny ALONG SAID EASTERLY.UMRSRFORF908.07 FEET TO A ONTCONNTHE 03'• S0'W CENTERLINE OF, THE INTERCOASTAL WATERWAY; THENCE • NO3'27'54'W ALOND SAID CENTERUNE FOR 402.93 FEET To A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF STATE ROAD A-1-A SAID POINT ALSO BEING ON A CURVE THAT 15 CONCAVE TO THE NORTH HAYING A RADIOS OF 10,716.59 FEET, THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1'20'14' FOR AN ARC DISTANCE OF 250.10 FEET TO A POINT ON THE FAST RIGHT OF WAY UNE OF SAID 0ERC0A57AL WATERWAY; THENCE 503'27'54'E ALONG SA10 EAST RIGHT OF WAY UNE FOR 656,57 FEET TO A POINT ON THE EASTERLY LINE OF AN EASEMENT THAT I5 RECORDED IN 'OFFICIAL RECORDS BOOK 3622 AT PAGE 751 OF THE PUBUC RECORDS OF MWAI-DADS COUNTY, FINICAL THENCE 531.03'50'E ALONG SAID EASTERLY UNE FOR '603.20 FEET TO THE POINT OF BEGINNING. • Book23181/Page788 CFN#20050267972 Exhibit B Page 6 of 7 .Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 85 BOOK 231B1 PAGE 0789 LAST PAGE Exhibit B Legal Descriptions of Staging, Access and Dredging Areas Book23181/Page789 CFN#2005D267972 Page 15 of 15 Exhibit B Page 7 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 55709522 86 Exhibit "C" FLAGSTONE JUDGMENTS Beach TowerLLC -- Judgment in amount of $236,203.95 Miller Legg -- Judgment in amount of $3,989.19 Lillian Ser -- Judgment entered in favor of Ser in amount of approximately $674,000, plus interest. Flagstone currently prosecuting independent action against Ser. Stephen James Assoc -- Judgment in amount of $33,155.82 (settlement stipulation will be signed shortly by Flagstone) Americas Media Group Worldwide -- Judgment in amount of $336,924.91 (settlement stipulation will be signed shortly by Flagstone) Pandisco (New York judgment) -- Judgment in amount of $131,471.18 Exhibit C Page 1 of 1 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 2 87