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Item H3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: February 18,2009 Division: Growth Management Bulk Item: Yes -1L- No Department: Staff Contact PersonJPhone #: Andrew Trivette Ext. 2517 AGENDA ITEM WORDING: Direction to staff regarding extension of a lease agreement, development agreement, development order, and renewal of building permits for the project known as Flagler Village in Stock Island. ITEM BACKGROUND: Overseas Redevelopment Company (ORC) entered into a development agreement with Monroe County allowing the transfer of 32 market rate units off of a property known as the Overseas Trailer Park in central Stock Island. This agreement required the County purchase the property for approximately 2.5 million dollars and then lease it to the ORC for 99 years for the purpose of constructing 49 affordable housing units for sale. This lease was subsequently approved on September 20, 2006 contingent upon the lessee substantially completing construction of the affordable units within 18 months of filing a notice of commencement. ORC will be considered in default on February 19,2009 if they have not previously satisfied this condition. At present the property has two semi completed units and the agent for ORC has supplied a letter requesting that the lease be unconditionally extended for a period of five (5) years. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes _No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No x AMOUNTPERMONTH_ Year APPROVED BY: County Atty -X- OMB/Purchasing _ Risk Management_ DOCUMENTATION: Included x Not Required_ DISPOSITION: AGENDA ITEM # Revised 1/09 FK&H FELDMAN KOENIG HIGHSMITH & VAN LOON, P.A. RECEIVED A17tJRNEYSATLAW ROBERT T. FElDMAN TIMOTHY J. KOENIG ROBERT E. HIGHSMITH'" DAVID VAN LOON GREGORY S. OROPEZA '8ONlDCEJrnflaJ MUS. TRIJSlSANl ESTATESAT10IlNEY JAN 2 2 2009 3158 NORTHSIDE DRIVE KEY WEST, RORIDA 33040 TELEPHONE (:ni) .296.a851 FACSIMILE (305) 29~575 GROWTH AmAGEMENT DIVISION ___".... Dear Suzanne, As indicated in my conversations with your office and with the office of the Growth Management director and the County Administrator's office, Overseas Redevelopment Company is Committed to completing the affordable housing project known as Flagler ViJlage. The continuing decline in the economy bas presented significant challenges, the most significant of which are the CUlTent credit fr~ combined with the collapse of the housing market which have made it impossible to obtain the funds necessary to continue construction. We have worked tirelessly to address this problem. The project is currently stable and should remain so indefinitely. We expect that we wilI be able to resume construction within the next two years or so as the credit markets and the housing markets improve. In order to maintain the stability of the project, we need to match the time frames in the development order and the lease with the current projection for resuming and completing the project as weD as lender requirements/expectations. We are, therefore, requesting that the county approve an amendment to the development order providing for an additional five years beyond the current expiration date. While we do not expect it to ta1ce that long for market conditions to improve, such an extension will give our lender the confidence it needs to have in order to resume funding. In this extremely risk averse environment, anything less would be viewed as too risky and uncertain. The bottom line is the lender must be certain that the project approvals won't expire during the term of the loan and the cODStruction/sales period We are also requesting a similar modification to the lease to extend the time frame within which to complete the construction. Although the lease currently extends automatically for matters beyond the developer's control which delay the project, we feel it is prudent to make it clear that the time frame bas affinnatively been extended. We certainly would assert that the current economic crisis and housing collapse are beyond the developer's control. We sincerely app'reciate the County working with us and others similarly situated in order to avoid any further difficulties and challenges in these extremely difficult and chaDenging times. Sincerely, Timothy J. Koenig REAL ESTATE + ESTATE PlANNING + PROBATE + LlTJGA nON Doc~ 1635225 03/30/2007 4:30P" FlIed & Recorded in Official Records of "ONROE COUNTY DANNY L. KOLHAGE C:\Documents and Settings\lorianne\Local Settings\Temporary Internet Files\OLK19\Overseas - AFFORDABLE 99 YEAR LEASE v1.doc7/6/2006 12:47 PM LEASE Doc~ 1635225 Bk~ 2283 Pg~ 910 BE1WEEN MONROYC()UNTY-------~------------- "LESSOR" AND OVERSEAS REDEVELOPMENT COMPANY, LLC "LESSEE" DATED ';~t 19 ,2006 r~ \JtJ Docll 1635225 Bk~ 2283 Pg~ 911 Table of Contents Article Title 1 Definitions II Demised Premises III Term IV mRent ---. v Non-Subordination VI Payment of Taxes VII Mechanics' Liens VIII Governing Law, Cumulative Remedies IX Indemnification of Lessor x Insurance XI Insurance Premiums XII Assignment XIII Condemnation XIV Construction xv Mortgage Financing XVI Default XVII Repair Obligations XVIII Additional Covenants of Lessee, Lessor XIX Representations, Warranties of Title and Quiet Enjoyment xx Miscellaneous Page 2 of 52 (-~.i Page No. 3 6 7 7 8 9 11 12 13 14 0.., .. 18 18 25 26 28 33 35 36 38 38 l.j ~ ,:,.iV Doc" 1635225 Bk~ 2283 p.~ 912 GROUND LEASE AGREEMENT :+ ~ THIS LEASE made and entered into in Key West, Monroe County, F1orida, on this ~ day of ~-\ to V't\bL (' ,2006, by and between MONROE COUNlY (referred to as the "Lessor") an OVERSEAS REDEVEI.OPMENT COMPANY, LLC (referred to as the "Lessee"). Rh(;IT~--'------ ----- ----- WHEREAS, Lessor is the owner in fee simple of the property located at . Monroe County, Florida, and more particularly described on the attached Exhibit "A" (hereinafter "Property"); and, WHEREAS, it is Lessor's intent that the Property be developed to provide affordable housing for Monroe County; and, WHEREAS, Lessee desires to develop the Property and build and sell at least forty- nine (49) affordable housing units (provided allowed by County regulations and hereinafter tbe "Affordable Housing UnitS), and Initial Lessee may rent/lease any Units not sold to qualified owner-occupants; and, ~ ~~,~.~iJ) WHEREAS, in order to preserve the affordability of the Units to be developed on the Property, Lessor desires to lease the Property to Lessee for ninety-nine (99) years, subject to the Affordable Restrictions as set forth and further defined herein; and, NOW THEREFORE, in consideration of the mutual covenants and obligations contained herein, and in any contemporaneous Related Agreements between the parties, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I Definitions , < "Affordable Housing Unit" shall mean a residential housing unit that meets the moderate or lesser income requirements set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land Development Regulations, as may be amended from time to time without limitation of Lessor's complete legislative prerogatives, said restrictions to encumber the Property for a term of ninety-nine (99) years. "Affordable Restrictions" shall mean the affordable or employee housing regulations as set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land Development Regulations or County Code, as hereinafter amended, except that in no event shall the Lessor decrease the lawfully permissible sales price for an Affordable Housing Unit to less than the specified sales price for moderate income hOUSing as set forth in the Land Page 3 of 52 ...:_~' Doc:1I 1633225 BkM 2283 PgII 913 n ,/ Development Regulations in effect at the time of execution of this Lease where the effect upon an owner jSublessee/mortgagee would be to divest such person or entity of value upon which such person reasonably and fairly relied to their detriment. The substance of the Affordable Restrictions may be freely amended in the Lessor's legislative discretion, particularly with respect to administrative, monitoring and enforcement mechanisms, but any such amendment shall not materially diminish the lawfully established and equitably vested resale value or the reasonable alienability of an Affordable Housing Unit. However, Lessor may restrict Affordable Housing Unit resales and rentals to use as "Employee Housing" as defined in the Affordable Restrictions, as amended from time to time. -- .-~.ioreover, Lessor may establish in its Affordable Restnctlons "means" or "assets" CrItena that limit potential buyer or rental pools. Any such amendment shall not increase Initial Lessee's responsibilities as set forth herein. It is the intent and purpose and shall be the effect of this Lease and any Mordable Restrictions to ensure that the affordability of Affordable Housing Units and dedicated real property upon which they are located is maintained and enforced such that any administrative rule, policy or interpretation thereof, made by Lessor or its designees relating to the maximum total amount of consideration and cost permitted to be in any way involved in a purchase or rental transaction (including but not limited to purchase price, lease assignment fees, rents or any other compensation given or received in or "outside" of a related transaction) shall never exceed the affordability criteria reasonably established by Monroe County for the dwelling units involved. In every case, the constmction and interpretation of terms, conditions and restrictions imposed by this Lease and the Affordability Restrictions shall be made in favor of an interpretation that ensures long term affordabi1ity benefits for the respective housing resources inure to tbe benefit of Monroe County, its economy and its community character. ,,,-'4 ,,;, ".Association" shan mean the condominium, homeowners or similar community association customarily used in planned developments (including any contemplated herein) to manage certain aspects of community or planned development living (e.g., infrastructure management, rules and regulations, enforcement mechanisms and recreational facilities). "Commencement Date" shall mean the date when Initial Lessee receives a Certificate of Occupancy for the first Affordable Housing Unit. "Demised Premises" shall mean the property leased pursuant to this Lease for development of the Affordable Housing Units. Tbe Demised Premises is legally described on attached Exhibit "A" and depicted on attached Exhibit "B ". Demised Premises, where the context requires and the construction is most appropriate, shan also mean portions of the Demised Premises and any improvements erected thereon. "Effective Date" shall mean the date this Lease is fully executed and delivered by aU parties and the date that the Lessee shall be entitled to begin to occupy the Demised Premises for purposes of development and construction of the Project. "Initial Lessee" means OVERSEAS REDEVELOPMENT COMPANY, LLC, developer of the Mordable Housing Units. Page 4 of 52 ~j ~ .....? Doell 1635225 Ski 2283 Pg" 924 "Lease" shaH mean this lease for the creation of the Affordable Housing Units on the Demised Premises, as may be amended from time to time by the parties. It is expressly contemplated and intended by Lessor, as fee title holder to the Demised Premises, that any limitations, restrictions and/or other covenants of any nature, whether established pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of enforceable covenants running with the land, equitable servitudes and an other cognizable legal and equitable real property conventions so as to ensure the overall public affordable housing purposes intended to be served, including appropriate application of cumulative enforcement theories. __.______ _______________________ _________ ___ "Lease Year" shall mean the twelve (12) month period beginning on the Commencement Date and each twelve (12) month period thereafter throughout the Term of this Lease. "Lessor" means MONROE COUN1Y, or its assigns or designees. Lessor as used herein and where the context requires, shall mean an agency or party designated by the Lessor, by written notice to all parties, to administer or enforce some Or any portion of the provisions of this Lease or the Affordable Restrictions. "Lessee" means the Initial Lessee and its successors and assigns, including the Association created by Initial Lessee for the Unit owners/tenants, as well as the individual Unit owners/tenants. ~ "Project" shall mean the required development oftbe Demised Premises, primarily 'i;"J the required construction of Affordable Housing Units as set forth in Article XIV, but also including related infrastructure, securing of required development approvals and permits, financing for the construction of the Affordable Housing Units, marketing of the Affordable Housing Units and creation of any required governing Association. "Related Agreements" shall mean any purchase and sale or other agreement entered into with Monroe County contemporaneously and in conjunction with this Lease and which is recorded. Related Agreements made to apply to this Lease are set forth in Exhibit F. "Rent" shall mean any sum of money due to the Lessor under this Lease for any reason. The term Rent as used herein, should not be misconstrued to preclude definition and distinguishing of rent, rental rates and other such other terms as may be provided for in Subleases and/or the Affordable Restrictions. "Sale" and Sell" as used herein shall he broadly and liberally construed so as to encompass, where contextually appropriate, any ground subleasing, sale, grant, assignment or other conveyance of an interest in any portion of the Demised Premises authorized pursuant to this Lease, but excluding any rental of an Affordable Housing Unit (which may be more particularly discussed herein or in the Affordable Restrictions) and any security, mortgage, note or other interest of a form and type customarily used with purchase money or home equity loans. "Sublease" shall mean any combination of instruments that grant, conveyor otherwise transfer a possessory use and/or title interest to any portion of the Demised Page 5 of 52 DocR 163622!1 Bklt 2283 Pilt 915 o Premis~s, but excluding rental of an Affordable Housing Unit (which may be more particularly discussed herein or in the Affordable Restrictions) and any security, mortgage, note or other interest of a form and type customarily used with purchase money or home equity loans. The title or exact nomenclature used to describe such instmments mayv3ryto suit particular circumstanc~s and shall lie within Initial Lessee's reasonable discretion and still remain within the meaning herein intended (e.g., a "deed of improvements" may in a given context be construed as an effective sublease for purposes herein). It is intended that the tenn Sublease encompasses such instruments that effectuate qualified end-user, title, possession and/or use of Affordable Housing Units developed on the Demised Premises. A SUblease, as used herein, regardless uf final CUI III amI Substance, lllust be approved by the Lessor, which approval shall not be unreasonably withheld. "Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an individual Affordable Housing Unit owner or tenant who, as of the Effective Date, would qualify for "Employee Housing" as defined under Chapter 9.5 of the Monroe County Code and who is gainfully employed in, and derives at least seventy percent (70%) oftheir income from, Monroe County from the time of their purchase (or rental as may be provided for or allowed by this Lease) of an Affordable Housing Unit. Additionally, except as may be otherwise permitted by this Lease, in order to remain eligible to retain ownership of and to reside in their Affordable Housing Unit into retirement, in addition to complying with any otherwise applicable provisions in the Affordable Restrictions, purchasers of all Affordable Housing Units must for the five (5) years immediately following their purchase continue to earn at least seventy percent (70%) of their family income from gainful employment within the County. "Term" shall mean the Commencement Date, and continuing for ninety-nine (99) years thereafter, plus any agreed upon extension of this Lease. and unless otherwise permitted by Lessor, all Subleases and rights or interests granted thereunder shall terminate at the end of the Term. ~ \.3 ARTICLE II Demised Premises Section 2.01 Lessor's Demise. Upon the terms and conditions hereinafter set forth, and in consideration of the payment of the Rents and the prompt and full pedormance by the Initial Lessee of these covenants and the terms and conditions of any Related Agreements, to be kept and performed bytbe Initial Lessee, the Lessor does lease, let, and demise to the Initial Lessee and the Initial Lessee hereby leases from the Lessor, the following described premises, situate, lying and being in Monroe County, Florida: See Attached Exhibits "A" and "B" Section 2.02 Conditions. The demise is likewise made subject to the following: Page 6 of 52 \~ ,~ , . >1 Doel:l 163!52~ Bkl 2283 P9~ 916 record; (a) Conditions, restriclions and limitations, if any, now appearing of (b) Zoning ordinances of the County of Monroe, State of Florida, and any other applicable governmental body now existing or which may hereafter exist by reason of any legal authority during the Term of this Lease; and (c) The proper performance by the Lessee of all of the terms and conditions contained in this Lease, the Af.[Q!d<ilile ResrrictiQD.s..andany Related Agre.ement& ----~_.._----~_._----- -~------._-_._-_._---- ARTICLE III Term c.", , ~') ~. Section 3.01 Term. To have and to hold the Demised Premises for a term of ninety- nine (99) years commencing on the Commencement Date, and ending ninety-nine (gg) years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter provided (the "Termination Date"). Lessee shall be given possession on the Effective Date and the tenns and conditions set forth herein shall be binding on the parties as of the Effective Date. Lessee shall have the right to occupy the Demised Premises as of the Effective Date in order to allow Lessee to commence construction, as well as other activities related to the development and construction of the Project. As herein set forth, the Term will not commence until the first Affordable Housing Unit is completed and a certificate of occupancy has been issued for said first Affordable Housing Unit. said date to be evidenced by the Commencement Date Agreement that the parties will execute in substantially the same form as that set forth in Exhibit C hereto, upon completion of construction. ARTICLE IV Rent Section 4.01 Annual Base Rent. Lessee covenants and agrees to pay to Lessor promptly when due, without notice or demand, and without deduction or offset, Annual Base Rent throughout the Term of this Lease beginning on the Commencement Date, in the amount of Ten Dollars ($10.00) per Lease Year or partial Lease Year. Lessee shall pay to Landlord said Annual Base Rent on the first day of the second month of each Lease Year throughout the term of this Lease, provided that upon transfer of control of the Association by Initial Lessee, Lessor agrees to provide written notice of the Annual Base Rent to the Association at least ten (10) business days prior to said Rent being due, which notice may be in the form of a single schedule of all rental due dates under the Term of the Lease duly recorded in the Public Records of Monroe County, F1orida, with a copy of such schedule provided to the Lessee and Association. The fonn of such notice may be similar to that in Exhibit D, hereto. Page 7 of 52 Doell 1635225 Bkll 2283 PgN 917 (- ) Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, each payment to be paid to Lessor at the address set forth herein or at such other place within the continental limits of the United States as Lessor shall from time to time designate by notice to Lessee. Except for any income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums othe:rwise set forth herein. SectiQn 4.0~. It is intended that the Rent shall be absolutely net to Lessor throughout the Term, free of any taxes, costs, utilities, insurance expenses, liabilities, charges or other deductions whatsoever, with respect to the Oem ised Premises and/or the ownership, leasing, operation, maintenance, repair, rebuilding, use or occupation thereof. Section 4.04. All amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when due as provided for in this Lease, shall bear interest at the highest rate allowable under Florida law from the time they become due until paid in full by Lessee. In addition, Lessee shall pay a late fee in the amount of ten (10%) percent of any amount due from Lessee to Lessor which is not paid within ten (10) days ofthe payment due date for any sums due for Rent and within thirty (30) days for any other sums due from Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall reimburse Lessor for collection charges incurred as a result of the overdue Rent which may include but shall not be limited to related attorneys' fees, regardless of whether suit is brought. Such late fee shall be in addition to any interest payable by Lessee as set forth herein from Lessee's failure to pay any Rent due hereunder. In the event that any check, bank draft, order for payment or negotiable instrument given to Lessor for any payment under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor shall be entitled to charge Lessee an administrative charge of Fifty Dollars ($50.00). In addition, Lessor shall be reimbursed by Lessee for any costs incurred by Lessor as a result of said instrument being dishonored. (-) ARTICLE V Non-Subordination Section ~.01 Non-Subordination. Notwithstanding anything to the contrary contained in this Lease, the fee simple interest in the Demised Premises shall not be subordinated to any leasehold mortgage, lien or encumbrance of any nature. Furthermore, the Lessor's right to receive payment or performance under the terms of this Lease or adherence to any of its conditions or to the Affordable Restrictions (or performance under or adherence to the terms of any Sublease or related instrument) shall not be subordinated to any debt or equity financing, leasehold mortgage, lien, encumbrance or obligation of any nature whatsoever. Page 8 of 52 , ' ..........~! ')..' ". ~ ) i.-' Doell 1635225 Bk~ 2283 Pg~ 918 ARTICLE VI Payment of Taxes and Utilities I.c"1; .--y Section 6.01 Lessee's Obligations. As additional Rent, the Lessee shall pay and discharge, as they become due, promptly and before delinquency, all taxes, assessments, water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levjes... license_5-and pp-nniL fees and- other- governmental- charges, generar-ajii.fspeciaJ~-------_n- ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever, which at any time during the Term of this Lease may be assessed, levied, confirmed, imposed upon, or grow or become due and payable out of or in respect of, or become a lien on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee from the sale of the Affordable Housing Units to Sublessees, or be associated with any document (to which the Lessee is a party) creating or transferring an interest or estate in the Demised Premises. With regard to special assessments, if the right is given to pay either in one sum or in installments, Lessee may elect either mode of payment and Lessee's election shall be binding on Lessor. Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee shall pay and discharge, as they become due, promptly and before delinquency, all taxes, assessments, water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levies, licenses and permit fees and other governmental charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever, which at any time during the term of this Lease may be assessed, levied, confirmed, imposed upon, or grow or become due and payable out of or in respect of, or become a lien on, the Sublessee's interest in the Demised Premises, or otherwise arise out of the revenue received by Sublessee from the sale of their Affordable Housing Unit, or be associated with any document (to which the Sublessee is a party) creating or transferring an interest or estate in the respective portion of the Demised Premises. Section 6.0~ Ob)i~ations Altered. Nothing herein shall require the Lessee to pay municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner of the fee of the Demised Premises; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the commencement of the tenn hereof shall be altered so as to cause the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed and imposed, wholly or partially as a capital levy, or otherwise, on the rents received therefrom, or of any tax, corporation franchise tax, assessments, levy (including, but not limited to any municipal, state or federal levy), imposition or charge, or any part thereof, shall be measured by or based in whole or in part upon the Demised Premises and shall be imposed upon the Lessor, then all such taxes, assessments, levies, impositions or charges. or the part thereof so measured or based, shall be paid and discharged by the Lessee. AIl rebates on account of any taxes, rates, levies, Page 9 of 52 Doct:l 1635225 Bk~ 2283 Pgt:l 919 'J charges or assessments required to be paid shall belong to Lessee. Section 6.04 Mode of Payment. The Lessee (and any Sublessee, as to their specific interests in the Demised Premises) shall pay the taxes and other charges as enumerated in this Article VI and shall deliver official receipts evidencing such payment to the Lessor (Sublessees shall only deliver receipts as may be required by the Affordable Restrictions), which payment of taxes shall be made and the receipts delivered, at least thirty (30) days before the tax, itself, would become delinquent in accordance with the law then in force governing the payment of such tax or taxes. If, however, the Lessee desires to contest the validity-of any tax or tax claim, lh~ Lt::ss~e-may-do so without being in default hereunder, provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes the Lessor or the applicable governmental agency with a bond with a surety made by a surety company qualified to do business in the State of Florida or pays cash to a recognized escrow agent in Monroe County, one and one half (1112) times the amount of the tax item or items intended to be contested, conditioned to pay such tax or tax items when the validity thereof shall have been determined, and which written notice and bond or equivalent cash shall be given by the Lessee to the Lessor, not later than sixty (60) days before the tax item or items proposed to be contested would otherwise become delinquent. Section 6.011 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any of the payments required in this Article, then the Lessor may, but shall not be required to, pay the same and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts, at the highest rate allowed by law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be conected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding the foregoing, Lessee shall have the right to contest any taxes and assessments levied against Lessee; and provided Lessee files the appropriate documentation to contest said tax or assessment, Lessee shall not be in default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the assessment measures and collection remedies lawfully available to any taxing authority. C) Section 6.06 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make any of the payments required in this Article, then the Lessor may, but shall not be required to, pay the same, and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts, at the highest rate allowed by law shall be repaid by the Sublessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the Page 10 of 52 I . ~J r~ , . ., Dod 1635225 Bk" 2283 Pg" 920 election of the Lessor to pay such taxes shall not waive the default thus committed by the Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any taxes and assessments levied against Sublessee; and provided Sublessee files the appropriate documentation to contest said tax or assessment, Sublessee shall not be in default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the assessment measures and collection remedies lawfully available to any taxing authority. Section 6.07 Proration. The foregoing notwithstanding, the parties here~__ understand-and agreethaHhe-taxesforthe-firstyear(Deginnfrig ontTie-EffectiVe Date) and the last year of the Term shall be prorated proportionately between the Lessor and the Lessee. Section 6.08 Appraiser to Respect Effect of Affordable Restrictions. It is the intent of the parties that any appraisal of any portion of the Demised Premises for taxation, public assessment or utility service purposes fully reflect the effect of this Lease and the Affordable Restrictions on the lawfully realizable value of relevant portiones) appraised. ARTICLE VII Mechanic's Liens : J Section 7.01 No Lien. Neither the Lessee nor any Soblessee shall have the power to subject the interest of the Lessor in the Demised Premises to any mechanic's or materialmen's lien of any kind. Section 7.02 Release of Lien. Neither the Lessee nor any Sublessee shall pennit or suffer to be filed or claimed against the interest of the Lessor in the Demised Premises during the continuance of this Lease any lien or claim of any kind, and if such lien be claimed or filed, it shall be the duty of the Lessee, or the Sublessee, to which the lien or claim is attributable, within thirty (30) days after the Lessee or Sublessee shall have been given written notice of such a claim having been filed, or within thirty (30) days after the Lessor shall have been given written notice of such claim and shall have transmitted written notice of the receipt of such claim unto the Lessee or Sublessee, as the case may be, (whichever thirty (30) day period expires earlier) to cause the respective portion of the Demised Premises to be released from such claim, either by payment or by the posting of bond or by the payment to a court of competent jurisdiction of the amount necessary to relieve and release the relevant portion of the Demised Premises from such claim, or in any other manner which, as a matter of law, will result, within such period of thirty (30) days, in releasing the Lessor and the title of the Lessor from such claim; and the Lessee covenants and agrees, with respect to any lien or claim attributable to it, within such period of thirty (30) days, so as to cause the affected portion of the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim. Page 11 of 52 Docl* 163~22! BkM 2283 PgM 921 o Section 7.0~ Lessee's Default. If the Lessee shall fail, refuse, or neglect to perlorrn its obligations as required in this Article, then the Lessor may, but shall not be required to, pay any sums required to cause the Demised Premises and the Lessor's interest therein to he released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest un all such amounts at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the-tefms-Gf-tbisLease to be paid-by the Lessee to the Lessor, upou the d(\y when the Lessor demands repayment thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to pay such amount shall not waive the default thus committed by the Lessee. Section 7.04 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to perform its obligations as required in this Article, then the Lessor may, but shall not be required to, pay any sums required to cause the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall not waive the default thus committed by the Sublessee. \') ARTICLE VIII Governing Law. Cumulative Remedies Section 8.01 Governing Law. All of the rights and remedies of the respective parties relating to or arising under this instrument and any related documents shall be governed by and construed under the laws of the State of Florida. Section 8.02 Cumulative Remedies. All rights and remedies accruing to the Lessor shall be assignable in whole or in part and be cumulative; that is, the Lessor may pursue such rights as the law and this Lease afford to it in whatever order the Lessor desires and the law permits. Lessor's resort to anyone remedy in advance of any other shall not result in waiver or compromise of any other remedy. Page 12 of 52 ~ r~ \,,) Doc' 1635225 Bk. 2283 PgN 922 ARTICLE IX Indemnification of Lessor Section q.Ol Indemnification by Lessee. l>uring the Term of the Lease, Lessee will indemnify, defend and save harmless the Lessor against any and all claims, debts, demands or obligations which may be made against the Lessor or against the Lessor's title in the Demised Premises, arising out of, or in connection with, or in any way related to the Demised Premises, except to the extent such claims may be ca~~ed hI th.~gross_ negli~ence or intentional misconduct oftheLessor tor its agents or empToyees in the conduct of work for or at the direction of the Lessor) and only with respect to any duty or obligation Lessor expressly assumes with respect to any portion of the Demised Premises, none of which duties and obligations are so assumed herein. If it becomes necessary for the Lessor to respond to any claim, demand or unanticipated matter or to defend any action seeking to impose any such liability, the Lessee will pay the Lessor all costs of court and reasonable attorneys' fees incurred by the Lessor in effecting and preparing for such response or defense in addition to any other reasonable sums which the Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor in any proceeding in which such claim is asserted. ,..~ ,.- """,-0..: ..:. 1., ....tJ '.~~:Y' Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise provided in Section 12.01, upon completion of the construction and sale or assignment of any portions of the Project in accordance with this Lease, Initial Lessee shall be released from any and all liability related to such transferred portions of the Demised Premises and the subsequent use thereof by the Sublessees, their employees, agents, contractors, guests or invitees, including without limitation any death, injury or damage to person or property in or about the transferred portions of the Demised Premises, except as otherwise set forth herein. However, this release shall not constitute a release or waiver of Lessor's rights, if any, or possible entitlement to insurance coverages required by this Lease. Lessor shall not be liable to Lessee, or to Lessee's assignees or Sublessees or their employees, agents, contractors, guests or invitees for any death, injury or damage to person or property in, about or relating to the Demised Premises. Lessee, on its and its assignees' and their successors in interests' behalves, including any future Sublessees, or grantees or licensees of the Initial Lessee or the Association, or any guests, invitees or tenants of any of the foregoing, hereby assumes and covenants for its own and their own acceptance of sole responsibility and liability to all persons for death, injury or damage related to or arising from the ownership, possession, occupancy and for use of any portion of the Demised Premises, and also, for all such future occupants, owners, Lessees, Sublessees, tenants, guests, invitees and licensees, waives and releases forever all claims, demands and causes of action against Lessor and its officers, employees, agents, successors, assigns, contractors and representatives for loss of life or injury to person or property, of whatever nature. Section Q.02 Insurance. On the Effective Date the Lessee shall cause to be written and put in full force and effect a policy or policies of insurance as noted in Article X insuring the Lessee against any and all claims and demands made by any person or persons Page 13 of 52 Doclt 1635225 Bklt 2283 Pglt 923 C.J whomsoever for death, injuries or damages received in connection with the possession, operation and maintenance of the Demised Premises. All such policies shall name the Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as their respective interests may appear, as the persons insured by such policies. Any loss adjustment shall require the written consent ofhoth the Lessor and Lessee. Section q.O::! Policy Limit Changes. The policy limits for the comprehensive liability insurance may be reviewed by Lessor every five (5) years and adjusted upward, if, in the reasonable discretion of Lessor such increase in coverage is prudent or if similar projects ~ve begun to require greater-Insurance coverage. ARTICLE X Insurance Section 10.01 Property Insurance. From and after the Effective Date, the Lessee will keep insured any and all buildings and improvements upon the Demised Premises against all loss or damage by fire, flood and windstorm, together with "aU risks" "extended coverage, .. which said insurance will be maintained in an amount sufficient to prevent any party in interest from being or becoming a co-insurer on any part of the risk. which amount shall not be less than the full Replacement Cost value of the relevant portions of the Demised Premises, and all of such policies of insurance shall include the name of the Lessor as an additional insured and shall fully protect both the Lessor and the Lessee as their respective interests may appear. In the event of destruction of buildings or improvements by fire, flood, windstorm or other casualty for which insurance shall be payable and as often as such insurance money shall have been paid to the Lessor and the Lessee, said sums so paid shall be deposited in a joint account of the Lessor and the Lessee in a bank designated by the Lessee and located in the County in which the Demised Premises is located, and shall be made available to the Lessee for the construction or repair (including any modification to the improvements sought by the Lessee and approved in writing by the Lessor with Lessor's approval not unreasonably withheld), as the case may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or other casualty for which insurance money shall be payable and shall be paid out by the Lessor and the Lessee from said joint account from time to time on the estimate of any reliable architect licensed in the State of Florida officially overseeing of such reconstruction and repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction or repair and at a reasonable cost therefor; provided, however, that the total amount of money necessary for the reconstruction or repair of any building or buildings destroyed or damaged has been provided by the Lessee for such purpose and its application for such purpose assured. (). \, In the event of the destruction or damage of the improvements located on the Demised Premises, or any part thereof, and as often as any portion of said Demised Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the Lessee shall, within fifteen (15) months from the date of such damage or destruction, rebuild and repair the same in such manner that the buildings or improvements so rebuilt Page 14 of 52 , :/ 1-~' ,~,;, Doe. 1635228 Bk. 2283 Pg. 924 and repaired. and the personal property so replaced or repaired, shall be of the same or of a value higher than were the buildings or improvements and the personal property prior to such damage or destruction, and Lessee shall diligently prosecute the reconstruction or repairs without delay and have the same rebuilt and ready for occupancy as soon as reasonably possible after the time when the loss or destruction occurred. The Is-month period for reconstruction shall be enlarged by delays caused without fault or neglect on the part of the Lessee, by act of God, strikes, lockouts, or other conditions (other than matters of refinancing the property) beyond the Lessee's control. Notwithstanding the foregoing, and only with respect to insurance proceeds, the provisions of any le?sehold Inortga~ ---'--'~8ubstant:iany-eomporting with-cusromary instffiilionallending industry standards and the foregoing Lessor's interests shall control as to the use and disbursement of insurance funds for reconstruction of the improvement."l in the event of any casualty or damage to such improvements. While the Project, or any replacement thereof, is in the course of construction, and whenever appropriate while any alterations are in the course of being made, the aforesaid fire and extended coverage insurance shall be carried by Lessee in builder's risk form written on a completed value basis. ), , .. , ~, Notwithstanding anything to the contrary in the immediately preceding paragraph, in case of destruction of all of the improvements on the Demised Premises from any cause so as to make all Affordable Housing Units untenantable occurring during the last ten (10) years of the Tenn of this Lease, Lessee, if not then in default under this Lease and if there is no leasehold mortgage or other similar encumbrance on the Lessee's interest in the Demised Premises. may elect to terminate this Lease by written notice to Lessor within thirty (30) days after the occurrence of the destruction. In the event this Lease has been assigned to the Association, the Association must obtain any necessary vote to terminate. In the event of termination, there shall be no obligation on the part of Lessee to restore or repair the improvements on the Demised Premises, nor any right of the Lessee to receive any proceeds collected under any insurance policies covering the improvements. If Lessee elects not to tenninate this Lease in the event of destruction during the last ten (10) years of this Lease, the proceeds of all insurance covering the improvements shall be made availahle to Lessee for repairs, and Lessee shall be obligated to repair as set forth above. Section 10.02 Commercial General Liability Insurance. The Initial Lessee and the Association (upon assignment to the Association) shall maintain Commercial General Liability Insurance beginning on the Effective Date and continuing during the entire Tenn of this Lease. The Commercial General Liability Insurance shall cover those Sources of liability which would be covered by the latest edition of the standard Commercial General Liability Coverage Form [ISO Form CG 00-01] as filed for use in Florida without the attachment of restrictive endorsements other than the elimination of medical payments and fire damage legal liability. .. General Aggregate $1,000,000 Products/Completed Operations $1,000,000 [coverage for one (1) year after project completion] Page 15 of 52 Doe" 1635225 Bk~ 2283 P9~ 925 n .....~. . Each Occurrence Contractual Liability $1,000,000 $1,000,000 Additional Named Insured: Lessor, or its assigns or designees, as from time to time designated by written notice to Lessee, shall be included as additional insureds for Commercial General Liability. Section 10.01 Environmental Impairment Responsibility. The lessee and/or its contractors acknowledge that the performance of this Lease is, or may be, subject to Federal, State and local laws and regulations enacted for the pllrpo~e uf IJllJLt:dilJ~, preserving or restoring the environment. The Lessee shall, at the sole cost of the Lessee or its contractors, be responsible for full compliance with any such laws or regulations. Section 10.04 Other Insurance. Lessee shall maintain such other insurance and in such amoWlts as may from time to time be reasonably required by the Lessor against other insurable hazards which at the time are commonly insured against in the case of construction of buildings and/or in the case of premises similarly situated, due regard being or to be given to the location, construction, use and occupancy. In the event the Lessee believes the Lessor's requirement for such additional insurance is unreasonable the reasonableness of Lessor's request shall be determined in accordance with the rules of the American Arbitration Association. Such determination as to the requirement of coverage and the proper and reasonable limits for such insurance then to be carried shall be binding on the parties and such insurance shall be carried with the limits as thus determined until such limits shall again be changed pursuant to the provisions of this Section. The expenses of such determination shall be borne equally by the parties. This procedure may only be requested on each five (5) year anniversary date of the Lease. () Section 10.0~ Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage created pursuant to the provisions of Article XV elects, in accordance with the tenus of such mortgage, to require that the proceeds of any casualty insurance be held by and paid out by the mortgagee, then such payment may be made, but in such event, it shall still be obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the manner set forth in this Article to assure complete payment for the work of reconstruction and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by Sublessee or Lessee. Section 10.06 Damages; Insurance Proceeds: Joint Bank Account. Any excess of money received from insurance remaining in thejoint bank account after the reconstruction or repair of such building or buildings, if the Lessee is not in default, shall be paid to the Lessee. In the case of the Lessee not entering into the reconstruction or repair of the building or buildings within a period of six (6) months from the date of payment of the loss, after damage or destruction occasioned by fire, windstorm, flood or other cause, and diligently prosecuting the same with such dispatch as may be necessary to complete the same in as short a period of time as is reasonable under the circumstances after the occurrence of such damage or destruction, then the amount so collected, or the balance Page 16 of 52 _vI '~ ) Doclf 163522~ Bka 2283 Pga 926 thereof remaining in the joint account, as the case may be, shaH be paid to the Lessor and it will be at the Lessor's option to terminate the Lease, unless terminated by Lessee within the last ten (10) years of the Lease as set forth above, and retain such amount as liquidated and agreed upon damages resulting from the failure of the Lessee to promptly, within the time specified, complete such work of reconstruction and repair. Section 10.07 Direct ReDayment. The foregoing notwithstanding, in the event the insurance proceeds are the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) or less, then such QI:Qeeeg$_shJ!ll be P-aid.direct4Uo-theLe..~ee-witoout-t-he- . ---necessIty otcreating tlieJolntbank account, and Lessee shall use such funds to make the replacements or repairs. Lessee shall provide proof satisfactory to Lessor that repairs are completed as required within fifteen (15) months from the date of such damage or destruction, unless said period is enlarged by delays caused without fault or neglect on the part of the Lessee. ~ , ~jj/ Section 10.08 General Requirements. All insurance to be provided by Lessee under this Lease shall be effected under valid and enforceable policies in such forms, issued by insurers of recognized financial responsibility qualified to do business in Florida which have been approved by Lessor, which approval shall not be unreasonably withheld. All policies of insurance provided for in this Article shall, to the extent obtainable, contain clauses or endorsements to the effect that (i) no act or negligence of Lessee or anyone acting for Lessee or for any Sublessee or occupant of the Demised Premises which might otherwise result in a forfeiture of such insurance or any part thereof shall in any way affect the validity or enforceability of such insurance insofar as Lessor, and that (ii) such policy of insurance shall not be changed or cancelled without at least thirty (30) days written notice to the Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or subject to any assessments thereunder. Section 1O.Oq Subsequent Lessees. Assignees. Sublessees and Grantees. Notwithstanding anything contained herein to the contrary, in the event the Association chooses not to 0 btain insurance coverage to protect against loss or damage by fire, flood and windstorm for the individual Affordable Housing Units and therefore does not charge the Sublessees for said coverage as part of the Association fees to be paid by the individual Unit Owners; then, in such event Sublessees shall secure the above-described insurance coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled to require replacement cost and other customary and reasonable insurance coverage(s) at least but only to the full replacement value of any Sublessees' and/or any governing Association's insurable interest in the Demised Premises. Any parties who subsequently become holders of any title or possessory interest to a portion of the Demised Premises, shall upon request provide, in a fonn satisfactory to Lessor, proof of customary and reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor as set forth in this Article X, at least to the extent and value of that subsequent interest holder's insurable interest. The same or similar procedures for the use and application of insurance proceeds as set forth above may be required for subsequent interest holders and the same remedies available to Lessor for Initial Lessee's failure to comply with such insurance requirements shall be available to Lessor with respect to any future interest holders. Future interest Page 17 of 52 .' Docll 1635225 Bk~ 2283 Pg~ 927 o holders (including all Sublessees) shall name Lessor as an additional insured on any required insurance policies. ARTICLE XI Insurance Pn:miums Section 11.01 Insurance Premiums. The Lessee shall pay premiums for all of the insurance policies which the Lessee is obligated to carry under the terms of this Lease. In the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the right, but not the obligation, without notice to Lessee, to procure such insurance andJ or pay the premiums of such insurance, in which case Lessee shall repay Lessor immediately upon demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies with respect to procurement of such insurance and/or payment of such insurance premiums in the event a future subsequent partial interest holder (e.g., Sublessee, Association) fails to obtain and pay for the necessary insurance. ARTICLE XII AssimmentlTransfer ~ IV Section 12.01 Assi&nment by Initial Lessee. Without the written consent of Lessor, Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change management of the Demised Premises, except as otherwise provided herein. Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable Housing Units are to be developed as units for sale or rent to moderate or lesser income qualified third parties, as defined in the Affordable Restrictions. Therefore, the Affordable Housing Units may be sold, rented and occupied without the Initial Lessee obtaining consent from Lessor for such sale/subletting, provided that Initial Lessee shall follow the guidelines set forth herein. In the event an Affordable Housing Unit is to be rented to a qualified third party by Initial Lessee, said Unit shall only be rented at rates allowable under the Affordable Restrictions for moderate or lesser income qualified third parties. Additionally, in the event Initial Lessee retains ownership of Affordable Housing Units for rental purposes, Initial Lessee shall have the right to assign its duties as property manager for said Units to a third party without obtaining consent from Lessor. Furthermore, Lessor hereby agrees that in the event Initial Lessee elects not to sell all of the Affordable Housing Units to separate qualified individuals, then in such event, Initial Lessee shall be authorized to sell the remaining unsold Units in bulk (no fewer than three (3) Unit blocks, unless otherwise agreed by Lessor) at prices allowed under the Affordable Restrictions to an entity or individual that may not qualify under the Affordable Restrictions as of the date hereof. Said entity or individual shall have the same sale rights as the Developer/Initial Lessee and same rights to rent it~ Units at affordable rates as set forth herein; provided that Developer/Initial Lessee obtains the prior written consent of the Page 18 of 52 / 0" ~. 'J ~ -} <' () Doell 1635225 Ski 2283 PgI 928 Lessor, said consent not to be unreasonably withheld. Developer (Initial Lessee shall notify Lessor in writing of its intent to sell Units in bulk, specifying which Units it proposes to sell in bulk, the proposed sale prices and identifying details about the proposed purchaser, and Lessor shall have fifteen (15) business days from receipt of such notice to provide written consent or denial. In the event Lessor fails to respond within fifteen (15) business days of receipt of Initial Lessee's notice, said failure to respond shall be deemed consent to sell the Affordable Housing Units in bulk at prices alluwed under the Affordable Restrictions to the identified party. Additionally, Initial Lessee shall also have the right, with Lessor's consent (which shall not be unreasonablywithheldl1o sell in hulktb..e UnitS-thatitelectsinitiallyro---------,-- --retarn as rentaIS1iio fewer than three (3) Unit blocks, unless otherwise agreed by Lessor) at prices allowed unuer the Affordable Restrictions to an entity or individual that does not qualify for affordable housing pursuant to the foregoing notice procedures; provided that said entity or individual retains ownership of the Units and rents them at affordable rates and in compliance with the Affordable Restrictions. Initial Lessee shall provide Lessor with written notice of its intent to sell the rental Units in bulk and Lessor shall have fifteen (15) business days to respond as set forth above and any failure to respond shall be deemed consent. It is also agreed that any subsequent bulk purchaser shall have the right to sell the rental Units in bulk to another entity or individual provided said subsequent bulk purchaser obtains the prior written consent of the Lessor as set forth above and said Units are sold at prices allowed under the Affordable Restrictions. Upon the transfer/sale of each Affordable Housing Unit to be sold by Initial Lessee> or any successor Lessee hereunder, Lessor or its designee shall attorn to the rights ofInitial Lessee, or subsequent Lessee, as the case may be, with respect to each transferred/sold Affordable Housing Unit. Any proceeds received by Initial Lessee from the sale of the Affordable Housing Units shall remain the property of the Initial Lessee unless otherwise provided herein. In conjunction and contemporaneously with the sale or transfer of each Affordable Housing Unit, Initial Lessee, or any successor Lessee, shall ensure the release of any and all mortgage, mechanic's lien or other similar claims with respect to the relevant portion of the Demised Premises other than new Sublessee purchase money mortgages and the like, as such may be permitted by Article XV. Upon transfer/sale of seventy-five percent (75%) of the Affordable Housing Units to be sold by Initial Lessee as authorized by this Lease, or as otherwise required or permitted by Florida law, Initial Lessee will be authorized to assign its interest in this Lease for any portions of the Demised Premises not part of the Affordable Housing Units (i.e., common area) to a homeowners', condominium or similar Association to be created by the Initial Lessee. Any such Association and its related declaration, articles of incorporation, bylaws and any other governing documents, as may be amended, shall first be approved by Lessor or its designee for compliance with the goals, purposes and intent of this Lease and the Affordable Restrictions, which approval shall not be unreasonably withheld. Where such documents comply with the foregoing, Lessor shall join in any community ownership governing documents as may be required by Initial Lessee in order to conform its planned unit community governance to state law. No governing document related to such Association shall materially alter or impair the tenns and conditions of this Lease or the applicability of the Affordable Restrictions. Monroe County shall have fifteen (15) business days from receipt of said documents to review and object to any contents thereof. In the event Monroe County fails to provide written notice Page 19 of 52 Docll 1635225 Bk~ 2283 P9~ 929 (-; of its consent or denial in regard to said documents, said failure shall be deemed acceptance of the documents. Upon the foregoing contemplated assignments by lnitial Lessee, the Affordable Housing Unit owners (as Sublessees) and the Association shall assume and thereby be assigned Lessee responsibilities to Lessor for their respective portions of the Demised Premises, releasing Initial Lessee from same for all such portions, except for design and construction defect liability for which developers/builders are otherwise responsible under Florida law. Sublessees, however, shall not he construed to have assumed or have assigned to them by thiS prOVISIOn any mdemnIficatIon duty to Lessor relatmg to any portIOns of the Demised Premises for which they hold no interest. Notwithstanding the foregoing, Initial Lessee's right to find or identify a qualified purchaser, as set forth below, shall attorn to the Lessor (unless assigned by Lessor as set forth below) and the Initial Lessee shall be released from further duty or responsibility to the Lessor for the resale of the Affordable Housing Units. It is hereby acknowledged that Lessor shall have the right to assign any of its duties and rights related to the assignment of Subleases, i.e. finding a qualified purchaser for resales, or renters in the case of rental units (unless the rental units are owned by Initial Lessee and Initial Lessee chooses to manage the retained units, then in such event Initial Lessee shall have the right to find qualified renters for said rental units where that right is not in conflict with the Affordable Restrictions), to the Monroe County Housing Authority, or to any other governmental entity or profit or non-profit organization designated and approved by Lessor. In the event such duties or rights are assigned, reference to "Lessor" in this Section 12.01 shall also refer to any assignee. (-.1 '0..;:;/ Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee. Initial Lessee shall be authorized to sell the Affordable Housing Units to individuals qualified to own/occupy the Affordable Housing Units and subject to aU other affordable housing covenants of record. Notwithstanding anything contained herein to the contrary, all purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's requirements of moderate or lesser income affordable housing, adjusted for family size, and any other applicable Affordable Restrictions. Initial Lessee shall upon Lessor's request provide verification in a fonn and manner reasonably determined by Lessor that purchasers/sublesseesjtenants for all Affordable Housing Units meet the requirements herein. If Lessor is entitled to a reservation for initial purchase or assignment of the rights to purchase all or a portion of the newly completed Affordable Housing Units, such right and related procedures will be set forth in Exhibit F to this Lease. Section 12.0~ Assignment/Transfer by Sublessees. At such time as any individual Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable Housing Units and interests, the Sublessee shall be required to follow the procedures set forth herein and any procedure that may be set forth in the Affordable Restrictions, and any conveyance, transfer or other disposition and the acceptance of such transfers shall be automatically deemed an agreement to the conditions set forth herein. Section 12.04 Reouired Notice of Restrictions. Any conveyance, lease, assignment, grant or other disposition of any interest made with respect to any portion of the Demised Page 20 of 52 ) ,~~ ...." " .d Doc" 1635225 Ska 2283 Pg_ 930 Premises, including but not limited to any recorded Association governing documents, other than those mortgage interests provided for in Article XV, shall contain the following required Notice of Restrictions in a conspicuous location on the upper one-half of the first page of the relevant instrument effectuating the interest in bold capital typed letters greater than or equal to 14 point font: NOTICE OF RESTRICTIONS ANY INSTRUMENT OF CONy!WAN.cE,J,..EASE,.ASSIGNMEm,--G~ OROTH~K DISPOSITfONOF-ANY INTEREST IN OR TO ANY PORTION OF THE DEMISED PREMISFS OR TO ANY IMPROVEMENTS ERECTED THEREON WILL BESU8JECTTO CERTAIN RFSTRICIlONS INCLUDING BUT NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME, MEANS, RESALE PRICE, RENTAL AND MORTGAGE UMITATIONS, INCLUDING BUT NOT UMITED TO mOSH SET FORTH IN OFFlCIAL RECORDS BOOK _, PAGE _ OF THE PUBUC RECORDS OF MONROE COUNTY, FLORIDA. The recorded book and page of the first recorded page of this Lease and, for recordable sale or sublease instruments, the first recorded page of the Association governing documents affecting the respective portion of the Demised Premises shall be set forth in the Notice of Restrictions. Any instrument of conveyance, lease, assignment or other disposition made . .ct;'J without following the notice procedures set forth herein shall be void and confer no rights (, .) upon any third person, though such instruments may in some cases be validated by fully correcting them according to procedures established by Lessor, as determined in Lessor's sole discretion, so as to ensure compliance with the public affordability purposes furthered by this Lease and the Affordable Restrictions. Section 12.0~ Follow-on Sales and Assignments of Ground Lease Requirements; Right of First RefusaL Unless authorized by the Affordable Restrictions or unless otherwise as set forth in subsection e., below, or in another provision herein, rentals of Affordable Housing Units are prohibited. In order for an owner or subsequent owner to sell their Affordable Housing Unit and assign their Sublease they shall be required to comply with the following: a. Sublessee shall notify the Lessor or its designee in writing of their desire to sell the Affordable Housing Unit and assign the sublease, said notice hereinafter referred to as a "Transfer Notice." The Transfer Notice shall include the proposed purchase price for the Affordable Housing Unit, and any other compensation permitted the Seller relating to the proposed sale, which shall be in accordance with the Affordable Restrictions. Undisclosed compensation to a Seller or to any other party is prohibited and where it is found to have existed with respect to any transaction, the amount thereof shall be recoverable in law and equity from any party to or facilitating and benefiting from such transaction with knowledge thereof. Page 21 of S2 Doctt 163~225 BkM 2283 Pg~ 931 A V b. Lessor shall have thirty (30) days from the date of receipt of the written Transfer Notice to exercise its option granted hereunder to purchase the Affordable Housing Unit or to find 0 r identify to the selling party in writing a qualified purchaser who meets the income and other requirements for purchasing the Affordable Housing Unit. Additionally: 1. The total sales price for all interests to be transferred shall be the purchase price set forth in the Transfer Notice, which shall not cx-cecd the highest price permitted under the Affordah1p Restrictions. All additional terms of the contract shall be consistent with the Affordable Restrictions. Sublessee hereby agrees to execute a contract with a pre-qualified purchaser identified by the Lessor and to cooperate with reasonable closing procedures not in conflict with the Affordable Restrictions. c. 2. In the event Lessor finds a qualified purchaser, lessor will assist in coordinating the closing on the Affordable Housing Unit. The closing shall he scheduled to occur within seventy- five (75) days from the effective date of the contract for the sale of the Affordable Housing Unit, unless extended by the mutual agreement of the parties and Lessor. In the event Lessor elects not to purchase or fails to identify a qualified purchaser who enters into a purchase contract within thirty (30) days and who closes as provided above, and provided that Sublessee has fully complied with all required procedures set forth in the Lease and the Affordable Restrictions, Sublessee shall be entitled to sell the property to a qualified purchaser pursuant to the Affordable Restrictions and the terms set forth in the complying Transfer Notice. In this event, Sublessee shall allow Lessor to review and approve all proposed contract terms to ensure that the terms and the proposed purchaser meet the requirements for purchasing the Affordable Housing Unit, which approval shall not be unreasonably withheld or delayed. Sublessee shall provide Lessor with a full copy of a written purchase and sale contract (and all addenda) within three (3) business days offuU execution of each contract document, and all contracts shall state that they and the proposed purchaser are subject to this Lease and the approval of the Lessor. Lessor shall have fifteen (15) business days from receipt to review the tenus of the contract documents. In the event Lessor fails to provide Sublessee with written approval or any written objections within fifteen (15) business days from receipt of a contract document, Lessor shall be deemed to have not objected to closing of the proposed transaction though not to have waived enforceability of any applicable provisions of this Lease or the Affordable Restrictions, whether or not any non-compliance may have been apparent from or may have been indicated in documents provided. Sublessee and the potential buyer shall also provide any other information Lessor reasonably Page 22 of 52 --"- Cj ~ ~ -"''b. , ') , . j Doc~ 1635225 Bka 2283 Pg~ 932 deems necessary to verify purchaser/Sublessee qualifications. All purchase and sale contracts shall be deemed to be contingent on the buyer and transaction being qualified under the Affordable Restrictions. Lessor and the proposed parties to a transfer transaction may agree to additional time periods necessary to verify full compliance with all aspects of the Affordable Restrictions. In no case shall Lessor, or its designees, be deemed to waive with respect to any party any requirement applicable to that party under the Affordable Restrictions where it turns out that such requirement was not in ------ f~ct met,.lru.e.Dl:.1:ompliedwith-.--L.€ssoF-feserves,-t-o- itselfandtoits--desigtrees,-------------- --- ------.---------- all legal and equitable rights it deems necessary or appropriate to ensure that all portions of the Demised Premises are used for Affordable Housing, the purpose for which they were intended, including but not limited to termination of the sublease for any portion of the Demised Premises and forcing sale and reassignment of any improvements thereon. "0 .1.,. d. Lessor shall be deemed reasonable in withholding its approval for any proposed. sale if the contract terms and proposed purchaser do not meet requirements set forth herein or in the Affordable Restrictions. After the Lessor has reviewed and approved a contract, Sublessee shall not have the ability to amend the terms of the contract unless Sublessee obtains Lessor1s approval of the amendment as set forth in Paragraph Co, above. The Sublessee shall only transfer their interest to approved persons, as defined by the Affordable Restrictions for moderate or lesser incomel or to Lessor in the event Lessor and Sublessee are unable to find a qualified purchaser, so long as Lessor chooses to purchase the Affordable Housing Unit, in Lessor's sole and absolute discretion. Additionally, after the expiration of the thirty (30) day period described in Paragraph b. above, and before Sublessee has found a qualified purchaser, Lessor may, but is not obligated to, continue the search for a qualified purchaser. In the event Lessor finds and identifies a qualified purchaser prior to Sublessee doing so, the procedure set forth in Paragraph b.2., above, shall be followed. e. Lessee and Sublessees are deemed to understand and agree that Lessor may, in its absolute discretion, require that any Affordable Housing Unit originally sold as an affordable "ownership" and "occupancy" Affordable Housing Unit which is made the subject of any unauthorized offer to rent, or which is attempted to be or is actually rented absent specific written Lessor authorization or as authorized in the Affordable Restrictions, be deemed to have become the subject of an irrevocable offer to sell the Affordable Housing Unit and thus subject to the right of first refusal provisions of this Article XII and allow Lessor or its designee to purchase the Affordable Housing Unit at the highest price permitted under the Affordable Restrictions. Lessor may establish rental first right of refusal procedures similar to those set forth in Paragraphs a. - d., above, for Affordable Housing Units to be used for affordable rentals in accordance with the terms contained herein and in the Mordable Restrictions. In such case, a Sublessee may rent their Unit so long Page 23 of 52 Docll 163!5225 Bk~ 2283 Pi~ 933 o (-v) as all rental agreements follow the guidelines and procedures set forth herein and in the Affordable Restrictions, including but not limited to providing Monroe County with a copy of the proposed rental agreement for review and approval. Additionally, the rental agreement must include a copy of the Association rules and regulations, as well as an acknowledgement by the tenant that they will abide by the rule.';; and regulations of the Association, and Sublessee shall provide the Association with a copy of said rental agreement to ensure compliance. Furthermore, no Sublessee shall be authorized to enter into a rental agreement for an _Affordable Housing TTnit cOlltl'linine :l term greater than one (1) year, or containing an automatic renewal term that would frustrate Lessor's rights or continued affordability expectations established under this Lease or the Affordable Restrictions. Additionally, in the event a tenant has been cited fOl a violation of the rules and regulations of the Association more than twice in any calendal year, Sublessee hereby agrees not to renew said lease without first obtaining the approval of the Association Board of Directors, and said approval may be withheld in their sole and absolute discretion. Any rental agreement shall contain the following warning prominently set forth in writing: BY SIGNING TIllS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAFfER 83 FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSmON OF THE LESSEE'S PERSONAL PROPERlY. r'"""'J ~:7 Section 12.06 Assimment bv Lessor. This Lease is freely assignable by the Lessor, and upon such assignment, the Lessor's liability shall cease and Lessor shall be released from any further liability. In the event the ownership of the land comprising the Leased Premisl'.8 is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any other person or entity, this Lease shall not cease, but shall remain binding and unaffected. Section 12.07 Death of a Unit Owner or Permanent Absence From Occupan~. In the event the Owner of an Affordable Housing Unit dies, Lessor shall, unless for good cause shown, consent to a transfer of the leasehold interest to the spouse, child(ren) or other heirs, devisees, legatees or beneficiaries of the Affordable Housing Unit Owner provided that such persons state, in writing, under oath that they have reviewed the terms of this Lease and any related documents, and that they understand and accept the terms of this Lease by signing an aclmowledgement, which is substantially in a form similar to that attached hereto as Exhibit E. All spouses, heirs, devisees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable satisfaction that they qualify for ownership and/ or occupancy of an affected Affordable Housing Unit as provided. for under this Lease and in the Affordable Restrictions. All estates and leasehold or other interests granted in or conveyed with respect to any of the Demised Premises do not extend to any degree so as to limit or inhibit the intent and operation of this Lease and the Affordable Restrictions, it being expressly and irrevocably accepted on behalf of all future Sublessees and all those who would or might succeed to their interests, that these Demised Premises and each and Page 24 of 52 ."-" "'>., ( .} Dod 1635225 Bka 2283 Pg" 934 every portion thereof, for the entire Term of this Lease, are to be used as affordable housing according to the Affordable Restrictions. In the event the spouse, heirs, devisees, legatees or beneficiaries of a deceased Owner do not meet the requirements for affordable housing, such persons shall not OCCU py the premises and shall not be entitled to possession, except and only to the extent that the Lessor permits same, under conditions that it determines furthers the goals and public purposes of this Lease and the Affordable Restrictions. Therefore, in such event, the heirs of the decedent shall, if required by Lessor, transfer their interest in the Affordable Housing Unit in accordance with the provisions of this Article XII an9 cooperate. with the Lessor inaccomplishiag--same-;- It is--the-intent-ofthisLease, to the full extent F10rida law permits, that constitutional homestead rights not be construed to inhibit or limit the intended operation of this provision. (~~ Section 12.08 Administrative Fees. With the exception of the initial sales by Initial Lessee, the Lessor or its designee shall be entitled to charge three and one-half percent (3 V2 %) of the Purchase Price (gross compensation however described) for any transferred interest (other than simple security mortgage interests or rental agreements) in which Lessor identified the purchaser, as an administrative fee for coordinating the closing on any Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of closing. This fee does not include other seller and buyer closing related costs such as title insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions, insurance, homeowners' assessments, loan expenses and the like, or rental management or processing fees for rental units. In the event Lessor was unable to identify a purchaser, Lessor shall still be entitled to an administrative fee of one and one-half percent (11f2 %) of the Purchase Price for review of the contract and assistance with coordinating the closing on the Affordable Housing Unit. Mer the initial sales by Initial Lessee, the Lessor or its designee shall be authorized to designate closing, escrow and title agents involved in all transactions involving interests subject to this Lease. After the initial sale of each Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from time to time, establish, promulgate, revise and/or waivc all or part of such fees related to the administration of this Lease and any Subleases, but in no event may Lessor increase the amount of the administrative fee to an amount in excess of three and one-half percent (3 1/2 %) for an owner who purchased his or her Affordable Housing Unit without actual, constructive or regulatory notice of the potential applicability of a greater percentage fee. ARTICLE XIII Condemnation Section 1~.01 Eminent Domain; Cancellation. If, at anytime during the continuance of this Lease, the Demised Premises or any portion thereof is taken, appropriated or condemned by reason of eminent domain, there shall be such division of the proceeds and awards in such condemnation proceedings and such abatement of the Rent and other adjustments made as shall be just and equitable under the circumstances. If the Lessor and the Lessee are unable to agree upon what division, annual abatement of Rent or other adjustments as are just and equitable, within thirty (30) days after such award has been Page 25 of 52 Doc~ 1635225 Bka 2283 Pg. 935 (~ ",J made, then the matters in dispute shall be determined in accordance with the rules of the American Arbitration Association. Such determination made by the arbitration shall be binding on the parties. If the legal title to the entire Demised Premises be wholly taken by condemnation, the Lease shall be cancelled. Section 1~.02 Apportionment. Although the title to the building and improvements placed by the Lessee upon the Demised Premises win on the Termination Date pass to the Lessor, nevertheless, for purpose of condemnation, the fact that the Lessee placed such bui1dm~ . . loo-taken into account, and the deprivation ofthe Lessee's use (and any use of a Sublessee) of such buildings and improvements shall, together with the Term of the Lease remaining, be an item of damage in determining the portion of the condemnation award to which the Lessee or Sublessee is entitled. In general, it is the intent of this Section that, upon condemnation, the parties hereto shall share in their awards to the extent that their interests, respectively, are depreciated, damaged, or destroyed by the exercise of the right of eminent domain. In this connection, if the condemnation is total, the parties agree that the condemnation award shall be allocated so that the then value of the property, as though it were unimproved property, shall be allocated to the Lessor, and the then value of the building or buildings thereon shall be allocated between the Lessor and Lessee after giving due consideration to the number of years remaining in the Term of this Lease and the condition of the buildings at the time of condemnation. 0.'. !:.. ,.< ARTICLE XIV Construction Section 1.1.01 Requirement to Construct Project. (a) Initial Lessee shall commence construction of the Project no later than one hundred twenty (120) days after the issuance of the building permits necessary for the construction of the Project, and shall substantially complete construction of all forty-nine (49) Affordable Housing Units within eighteen (18) months thereafter. The foregoing limitation of time for the completion of the Project may be extended by written agreement between the parties hereto. (b) During the course of construction of the Project, Initial Lessee shall provide to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in their possession or under their control where such information is subject to public disclosure under the provisions of Chapter 119, F.S., or successor or supplemental statutes. However, nothing contained herein shall be construed to render documents or records of Initial Lessee or any other persons that would not be deemed public records under Chapter 119 to be such records only because of this provision. Lessees (but not individual sublessees occupying an Affordable Housing Unit as their primary residence) shall maintain all books, records, and documents directly pertinent to Page 26 of 52 '; J "".. i Doc~ 163!522!5 Bka 2283 Pg~ 936 performance under this Lease in accordance with generally accepted accounting principles consistently applied. The County Clerk, State Auditor, or a designee of said officials or of the Lessor, shall, during the term of this Agreement and for a period of five (5) years from the date of termination of this Agreement, have access to and the right to examine and audit any Records of the Lessee involving transactions related to this Agreement. '?>" -'I -ii' (c) The Project shall be constructed in accordance with the requirements of all laws, ordinances, codes, orders, rules and regulations o~!llLgQY!!D}m_entaLentities having- jurisdietion-over-the-Project;includffig, out n01Timitecfto, the Lessor. (d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all necessary approvals, permits and licenses required by applicable governmental authorities for the construction, development, zoning, use and occupation of the Project. Lessor agrees to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals, permits and licenses, provided that such approvals, permits and licenses shall be obtained at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be construed to obviate or lessen any requirements for customary development approvals from any permitting authority, including the Lessor . Nothing in this Lease shall he construed as the Lessor's delegation or abdication of its zoning authority or powers and no zoning approval that Initial Lessee may require to complete its performance under this Lease has been or shall be deemed agreed to, promise or contracted for by this Lease. (e) Construction of the Project on the Demised Premises prior to and during the Term of this Lease shaU be performed in a good and workmanlike manner, pursuant to written contracts with licensed contractors and in accordance with any and all requirements of local ordinances and with all rules, regulations and requirements of all departments, boards, officials and authorities having jurisdiction thereof. It is understood and agreed that the plans and specifications for all construction shall be prepared by duly qualified architects/engineers licensed in the State of Florida. (f) At aU times and for all purposes hereunder, the Initial Lessee is an independent contractor/lessee and not an employee of the Board of County Commissioners of Monroe County or any of its agencies or departments. No statement contained in this Lease shall be construed as to find the Initial Lessee or any of its employees, contractors, servants or agents to be employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits of County employees. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Lease or be subject to any personal liability or accountability by reason of the execution of this Lease. (g) Initial Lessee agrees that it will not discriminate against any employees, applicants for employment, prospective Sublessees or other prospective future subinterest holders or against persons for any other benefit or service under this Lease because of their race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap Page 27 of 52 DDd 1635225 Bka 2283 Pg~ 937 o where the handicap does not affect the ability of an individual to perform in a position of employment, and to abide by all federal and state laws regarding non-discrimination. 14.02 Access to the Project and Inspection. The Lessor or its duly appointed agents shall have the right, at all reasonable times upon the furnishing of reasonable notice under the circumstances (except in an emergency, when no notice shall be necessary), to enter upon the common area of the Leased Premises to examine and inspect said area to the extent that such access and inspection are reasonably justified to protect and further the beS80r's--eontinuing-ffit~rest-~n-theDemised Er--emises,liS op.tennined in Lessor's reasonable discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county or State code or building inspectors, and the like, without limitation. Initial Lessee shall permit building and code inspectors access customary to the performance of their duties related to projects of the nature contemplated herein, said notice requirements notwithstanding. 14.0~ Forced Delay in Performance. Notwithstanding any other provisions of this Lease to the contrary, the Initial Lessee shall not be deemed to be in default under this Lease where delay in the construction or performance of the obligations imposed by this Lease are caused by war, revolution, labor strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, labor disputes, governmental restrictions, embargoes, litigation (excluding litigation between the Lessor and the Initial Lessee), tornadoes, hurricanes, tropical stonns or other severe weather events, or excusable inability to obtain or secure necessary labor, materials or tools, delays of any contractor, subcontractor, or supplier, or unreasonable acts or failures to act by the Lessor, or any other causes beyond the reasonable control of the Initial Lessee. The time of performance hereunder shall be extended for the period of any forced delay or delays caused or resulting from any of the foregoing causes. ()i' ,.. ARTICLE XV Mortgage Financing Section 15.01 Construction Financing By Initial Lessee. Initial Lessee shall have the right to mortgage its interests in the Demised Premises. (a) The Initial Lessee shall have the right to encumber by mortgage or other proper instrument Initial Lessee's interest under this Lease, together with all buildings and improvements placed by Initial Lessee on the Demised Premises, to a Federal or State Savings & Loan Association, Bank or Trust Company, Insurance Company, Pension Fund or Trust (or to another private lender so long as the terms and conditions of the financing from private lender are on substantially similar tenns to those then existing by the other lenders referred to in this Section), or to similar lending institutions authorized to make leasehold mortgage loans in the State of Florida, or to any public or quasi-public lender. (b) Until the time any leasehold mortgagees) shall be satisfied of record, Page 28 of 52 (~i -'J (,./: Ooe.. 163~225 8k" 2283 Pger 938 when giving notice to the Initial Lessee with respect to any default under the provisions of this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s) (including assignments thereof) as recorded in the Public Records of Monroe County, Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a copy of such notice has been mailed to such leasehold mortgagee(s), which notice must specify the nature of each such default. Initial Lessee shall provide Lessor with written notice of the book and page number of the Public Records of Monroe County, Florida for _______~~ch ~ort~_~~ by w~~~i~_t:l!cuml>ers__tb~D..emised Prf>T11ises _____________________ (c) In case the Initial Lessee shall default under any of the provisions of this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such default whether the same consists of the failure to pay Rent or the failure to perform any other matter or thing which the Initial Lessee is required to do or perfonn and the Lessor shall accept such perfonnance on the part of the leasehold mortgagee(s) as though the same had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section 15.01 shall have, in addition to any period of grace extended to the Initial Lessee under the terms and conditions of this Lease for a non-monetary default, a period of sixty (60) days within which to cure any non-monetary default or cause the same to be cured or to commence to cure such default with diligence and continuity; provided, however, that as to any default of the Initial Lessee for failure to pay Rent, or failure to pay any amount otherwise required (. ~ under the terms of this Lease (e.g., including, but not limited to, taxes or assessments), the -.;.-"'" leasehold mortgagee(s) shall have thirty (30) days from the date the notice of default was mailed to the mortgagee(s) within which to cure such default. (d) In the event of the termination of this Lease with Initial Lessee for defaults described in this Article XV, or of any succeeding Lease made pursuant to the provisions of this Section 15.01(d) prior to the cure provisions set forth in Section 15.ol(e) above, the Lessor will enter into a new Lease of the Demised Premises with the Initial Lessee's leasehold mortgagee(s), Of, at the request of such leasehold mortgagee(s), to a corporation formed by or on behalf of such leasehold mortgagee(s) or by or on behalf of the holder of the note secured by the leasehold mortgage, for the femainder of the term, effective on the date of such tennination, at the Rent and upon the covenants, agreements, tenns, provisions and limitations contained in this Lease, provided that such leasehold mortgagee(s) make written request and execute, acknowledge and deliver to the Lessor such new Lease within thirty (30) days from the date of such termination and such written request and such new Lease is accompanied by payment to the Lessor of all amounts then due to the Lessor, including reasonable counsel fees, court costs and disbursements incurred by the Lessor in connection with any such default and termination as well as in connection with the execution, delivery and recordation of such new Lease, less the net income collected by the Lessor subsequent to the date of termination of this Lease and prior to the execution and delivery of the new Lease, and any excess of such net income over the aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due under such new Lease. Page 29 of 52 ........ ' Cacla 163!!l225 Bklt 2283 Pga 939 /''' \ ~ _0"1 ".i,f Any new Lease referred to in this Section IS.DI(d) shall not require any execution, acknowledgement or delivery by the Lessor in order to become effective as against the Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed to have executed, acknowledged and delivered any such new Lease immediately upon receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the Lessor all amounts then due to the Lessor of which the leasehold mortgagee(s) shall theretofore have received written notice; and (ii) an agreement by the leasehold mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold mortgagee(~) "h~l1 not theretofore have received written notice. In addition, immediately upon receipt by the Lessor such new Lease, as provided in this Section IS.Ol(d), the Lessor shall be deemed to have executed, acknowledged and delivered to the leasehold mortgagee(s) an assignment of all Subleases covering the Demised Premises which theretofore may have been assigned and transferred to the Lessor and all Subleases under which Sublessees shall be required to attorn to the Lessor pursuant to the tenus and conditions of such Subleases or this Lease. Such assignment by the Lessor shall be deemed to be without recourse as against the Lessor. Within ten (10) days after a written request therefore by the leasehold mortgagee(s), such assignment or assignments shall be reduced to a writing in recordable form and executed, acknowledged and delivered by the Lessor to the leasehold mortgagee(s). ee) The Initial Lessee's leasehold mortgagee(s) may become the legal owner and holder of this Lease by foreclosure of its(their) mortgageCs) or as a result of the assignment of this Lease in lieu of foreclosure, which shall not require Lessor's consent, whereupon such leasehold mortgagee(s) shall immediately become and remain liable under this Lease as provided in Section 15.01(f) below. o (f) In the event that a( ) leasehold mortgagee(s) shall become the owner or holder of the Lessee's interest by foreclosure of its (their) mortgagees) or by assignment of this Lease in lieu of foreclosure or otherwise, the term "Initial Lessee," as used in this Lease, means only the owner or holder of the Lessee's interest for the time period that such leasehold mortgagee(s) is(are) the owner or holder of the Lessee's interest. Accordingly, in the event of a sale, assignment or other disposition of the Initial Lessee's interest in this Lease by the leasehold mortgagee(s), where leasehold mortgagee(s) took title or ownership of or to any or all of the Initial Lessee's interest in the Lease and/or any portion of the Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof, the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and obligations of performance relating to construction, marketing and transfer to Sublessees and it shall be deemed and construed, without further agreement between the Lessor and the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees' purchaser(s) or assignee(s) at any such sale or upon assignment of Initial Lessee's interest by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's interest has assumed and agreed to carty out any and all covenants and obligations ofInitia] Lessee, including but not limited to the construction of the Affordable Housing Units contemplated herein. In no event shall any protections afforded a( ) leasehold mortgagee(s) under this Lease be construed to permit eventual use of the Demised Premises for purposes ' inconsistent with this Lease or the Affordable Restrictions. Page 30 of 52 .- ~.... \...) "'"" \ I .~~ Dod 1635225 Bk. 2283 Pg. 940 (g) Within ten (10) days after Lessor's receipt of written request by Initial Lessee or by Initial Lessee's leasehold mortgagee(s), or after receipt of such written request in the event that upon any sale, assignment or mortgaging ofInitial Lessee's interest in this Lease by Initial Lessee or Initial Lessee's leasehold mortgagec(s), an offset statement shall be required from the Lessor, and the Lessor agrees to deliver in recordable form a certificate to any proposed leasehold moltgagee(s), purchaser(s), assignee(s) or to Initial Lessee, certifying (if such be the case) (i) that this Lease is in full force and effect; (ii) that the ~ssor has I)Q.knowJedge.ofany default undeF-tbis--bease-,--or-ifanY-defal1treXi:sts,specifying~----~------ _ __ ~..- .-------- the nature of the default; and (iii) that there are no defenses or offsets which are known and may be asserted by the Lessor against the Lessee with respect to any obligations pursuant to this Lease. ."'" j .~ (h) So long as the Initial Lessee's interest in this Lease shall be mortgaged to a ( ) leasehold mortgagee(s), the parties agree for the benefit of such leasehold mortgagee(s), that they shall not surrender or accept a surrender of this Lease or any part of it, nor shall they cancel, abridge or otherwise modify this Lease or accept material prepayments of installments of Rent to become due without the prior written consent of such mortgagee(s) in each instance. (i) Reference in this Lease to acquisition of the Initial Lessee's interests in this Lease by the () leasehold mortgagee(s) shall be deemed to refer, where circumstances require, to acquisition of the Initial Lessee's interest in this Lease by any purchaser at a sale of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold mortgagee(s) in such instance or instances shall also be applicable to any such purchaser(s). (j) So long as the Initial Lessee's interest in this Lease shall be mortgaged to a ( ) leasehold mortgagee(s). the parties agree for the benefit of such leasehold mortgagee(s) that the Lessor shall not sell, grant or convey to the Initial Lessee all or any portion of the Lessor's fee simple title to the Demised Premises without the prior written consent of such leasehold mortgagee(s). In the event of any such sale, grant or conveyance by the Lessor to the Initial Lessee, the Lessor and the Lessee agree that no such sale, grant or conveyance shall create a merger of this Lease into a fee simple title to the Demised Premises. This subparagraph (j) shall not be construed to prevent a sale, grant Of conveyance of the Lessor's fee simple title by the Lessor to any person, firm or corporation other than the Initial Lessee, its successors, legal representatives and assigns, so long as this Lease is not terminated. (k) Reference in this Lease to the Initial Lessee's leasehold mortgagee(s) shall be deemed to refer where circumstances require to the leasehold mortgagee(s)'s assignee(s); provided that such assignee(s) shall fecord proper assignment instruments in the Public Records of Monroe County, Florida, together with written notice setting forth the name and address of the assignee(s). Page 31 of 52 Doell 1635225 Bkll 2283 Pga 941 (~ 0) I n conjunction and contem poraneously with the sale or transfer of each Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the release of any and all applieable portions of its (their) mortgagees) on the entire Demised Premises so as to grant clear title to the Sublessee. The details and release payment requirements shall remain within the reasonable business discretion of the Initial Lessee and the leasehold mortgagee(s). (m) Lessor shall be entitled, in the event of any of the foregoing CIrcumstances or eveub ~eL fVl LIJ in this Paragraph 15.01, to elect to deal primarily or exclusively with a mortgagee whose position is primary or in first order of priority with respect to foreclosable interests or rights according to the laws of the State of Florida or as contractually agreed by and among multiple mortgagees, where there are such. Section 1~.02 Permitted Mortgages for Sublessees (Unit Owners). The individual Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage their interests in any Sublease, improvements or any associated portions of the Demised Premises related to their interests in the individual Affordable Housing Units to a Federal or State Savings Loan Association, Bank, Trost Company or similar lending institution, subject to the following requirements: (a) The mortgagees) encumbering the Affordable Housing Unit shall not exceed 100% of the maximum allowable sale price of the Affordable Housing Unit as set forth in the Affordable Restrictions; o (b) Sublessees shall not be entitled to mortgage their respective leasehold interests in the event the terms of the note, which is secured by the mortgage, may result in negative amortization, unless otherwise approved by Lessor; (c) For informational and record keeping purposes, Sublessees shall present to Lessor (i) a copy of approval(s) for loans encumbering their Affordable Housing Unit within five (5) business days after such loans are approved, and eii) no sooner than five (5) business days before the scheduled loan closing date, a copy of the owner's and/or any lender's title insurance commitment. Lessor's failure to approve or object to any of the foregoing documents prior to the closing of a relevant loan shall not preclude closing of the relevant loan and shall not constitute an opinion or confirmation by Lessor that the corresponding loans or title insurance policies comply with or conform to the requirements of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of Lessor's rights to enforce same; Page 32 of 52 \ ) .,-, I r:.., ) Doc~ 16352213 Bk~ 2283 PglI 942 (d) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery of an assignment or other conveyance to a Su blessee' s mortgagee in lieu of foreclosure with respect to any real property subject to the provisions of this Lease, said mortgagee, or the purchaser at foreclosure, shall comply with the provisions of Article XII. No sale of any Affordable Housing Unit shall be permitted at an amount in excess ofthat allowed under the Affordable Restrictions and shall otherwise fully comply with all applicable Affordable Restrictions. Any Affordable Housing Unit accepted in lieu offoreclosure or as to which a mortgagee intends to foreclose shall be subject to the Lessor's right of first refusal as set forth in Article 12.05. Nothing.herein shalL pre~lude-petent-iat-pnrcha:s-ers approved by- ---,.-------,.--r:;essor-fforn lJidillrig-at any foreclosure sale and, where successful, purchasing the subject Affordable Housing Unit at the foreclosure sale price in accordance with Article XII; and (e) The parties recognize that it would be contrary to the fundamental affordable housing concept of this Lease and an incentive to abuse Sublessee's authorization to encumber its leasehold interest with a mortgage if Sublessee could realize more in loan or sale proceeds than their permitted purchase or resale price as a result of any transaction. Accordingly, Sublessee hereby irrevocably assigns to Lessor (or the Monroe County Housing Authority or other Lessor designee) any and all net proceeds from the sale of any interest in the Demised Premises remaining after payment of costs of foreclosure and satisfaction of the lien of any mortgage which would have otherwise been payable to Sublessee, to the extent such net proceeds exceed the net proceeds that Sublessee would have received had the interests been sold pursuant to the Affordable Restrictions. Sublessee hereby authorizes and instructs the mortgagee or any party conducting the closing of a sale or through an unauthorized transfer to pay the amount of said excess directly to Lessor. In the event, for any reason, such excess proceeds are paid to Sublessee, Sublessee hereby agrees to promptly pay the amount of such excess to Lessor. ('~ ....\-;.,;........... ARTICLE XVI Default Section 16.01 Notice of Default. Lessee shall not be deemed to be in default under this Lease in the payment of Rent or the payment of any other monies as herein required unless Lessor shall first give to Lessee ten (10) days written notice of such default and Lessee fails to cure such default within ten (10) days of receipt of said notice. Except as to the provisions or events referred to in the preceding paragraph of this Section, Lessee shall not be deemed to be in default under this Lease unless Lessor shall first give to Lessee thirty (30) days written notice of such default, and Lessee fails to cure such default within the immediate thirty (30) day period thereafter, or, if the default is of such a nature that it cannot be cured within thirty (30) days, Lessee fails to commence to cure such default within such period of thirty (30) days or fails thereafter to proceed to the curing of such default with all possible diligence. I) Page 33 of 52 Dodl 1635225 Ski 2283 Pg~ 943 ('J..c, t.- . ..,(~? Regardless of the notice and cure periods provided herein, in the event that more rapid action is required to preserve any right or interest of the Lessor in the Demised Premises or other detrimental occurrence (such as, but not limited to, payment of insurance premiums, actions to prevent construction or judgment lien foreclosures or tax sales), then the Lessor is empowered to take such action and to request reimbursement or restoration from the Lessee as appropriate. Section 16.02 Default. In the event of any breach of this Lease by Lessee, Lessor, _____ -and after- the -neeessary notice pf-(wirted to Initial Lessee's leasehold mortgagee(s), in addition to the other rights or remedies it may have, shall have the immediate nght to terminate this Lease according to law. Termination of the Lease under such circumstances shall constitute effective, full and immediate conveyance and assignment to Lessor of all of Initial Lessee's property and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protections as provided herein. Furthennore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and personal property from the affected portions of the Demised Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Lessee, or where statutory abandonment or unclaimed property law permits. disposed of in any reasonable manner by Lessor without liability or any accounting therefore. Included in this right of reentry shall be any instance wherein a Sublessee renounces the Lease or a Sublease or abandons the Demised Premises, in which case Lessor may, at its option, in an appropriate case and subject to any rights of a mortgage holder, obtain possession of the abandoned property in any manner allowed or provided by law, and may, at his option, re-Iet the repossessed property for the whole or any part of the then unexpired term, receive and collect all Rent payable by virtue of such reletting, and hold Sublessee liable for any difference between the Rent that would have been payable under this Lease and the net Rent for such period realized by Lessor, by means of such reletting. However, such Lessor rights shall not abrogate a mortgagee's rights to the extent those rights do not conflict with or injure Lessor's interests as established under this Lease. Personal property left on the premises by a Sublessee may be stored, sold, or disposed of by Lessor. and Lessor accepts no responsibility other than that imposed by law. 0." -, Page 34 of 52 I~W>~ .0 ,,"",\ \ I. ~ '.;9 Doc~ 163S22!5 Ski 2283 Pg" 944 Should Lessor elect to re-enter, as herein provided, or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may either terminate this Lease or it may from time to time, without terminating this Lease, re- let the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such Rent or Rents and on such other terms and conditions as Lessor in its sole reasonable discretion may deem advisable with the right to make alterations and repairs to the Demised Premises. On each sllch re-Ietting Lessee shall be immediately liable to pay to Lessor, in addition to any indcbtedness other _______ tha~ Rent !it;l~__under this J ,eflS€', the expenses-afstlch re~letting amtofsuch alterations ana -------- ~-------.--.-repairs, incurred by Lessor, and the amount, if any, by which the Rent reserved in this Lease for the period of such re-Ietting (up to but not beyond the term of this Lease) exceeds the amount agreed to be paid as Rent for the Demised Premises for such period of such re-Ietting. ,,"..;",), A :.. ..~,-I ",,-. Notwithstanding any such re-Ietting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should Lessor at anytime terminate this Lease for any breach, in addition to any other remedy it may have, Lessor may recover from Lessee all damages incurred by reason of such breach, including the cost of recovering the Demised Premises, which amounts shall be immediately due and payable from Lessee to Lessor. Section 16.0~ Lessor's Right to Perform. In the event that Lessee, by failing or neglecting to do or perfonn any act or thing herein provided by it to be done or perfonned, shall be in default under this Lease and such failure shall continue for a period of thirty (30) days after receipt of written notice from Lessor specifying the nature of the act or thing to be done or performed, then Lessor may, but shall not be required to, do or perform or cause to be done or performed such act or thing (entering on the Demised Premises for such purposes, with notice, if Lessor shall so elect), and Lessor shall not be or be held liable or in any way responsible for any loss, inconvenience or annoyance resulting to Lessee on account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof, including compensation to the agents and employees of Lessor. Any act or thing done by Lessor pursuant to the provisions of this section shall not be construed as a waiver of any such default by Lessee, or as a waiver of any covenant, term or condition herein contained or the performance thereof, or of any other right or remedy of Lessor, hereunder or otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when the amounts become due as provided in this Lease, shall bear interest from the date they become due until paid at the highest rate allowed by Jaw. Lessor shaH have the same rights set forth in this Section with respect to any future subinterest holder's respective portion of the Demised Premises. Section 16.04 Default Period. All default and grace periods shall he deemed to run concurrently and not consecutively. Section 16.o.~. Affordable Restrictions. In the event any portion of the Demised Premises is used for purposes other than affordable hOUSing by an interest holder of such portion, or if Lessee or any Sublessees fail to comply with the Affordable Restrictions, as Page 35 of 52 Doca 163!5225 Bka 2283 PgU 945 (') .;..;. they pertain to their respective interests in or portions ofthe Demised Premises, such an occurrence will be considered a material default by the offending party. In the foregoing event, Lessor (or the Initial Lessee (or its assigns) in the event of and with respect only to a default by a particular Sublessee) may immediately terminate the Lease or Sublease. Lessee hereby agrees that all occupants shan use the Leased Premises and Improvements for affordable residential purposes only and any incidental activities related to the residential use as well as any other uses that are permitted by applicable zoning law. ARTICLE XVII Repair Obligations Section 17.01 Repair Obligations. During the continuance of this Lease the Lessee, and every Sublessee with respect to their leased or purchased portions of the Demised Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures, landscaping and equipment which are brought or constructed or placed upon the Demised Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste or neglect of any building or other property to be committed, except for that of normal wear and tear. The Lessee will repair, replace and renovate such property as often as it may be necessary in order to keep the buildings and other property which is the subject matter of this Lease in first class repair and condition. Additionally, Lessor shall not be required to furnish any services or facilities, including but not limited to heat, electricity, air conditioning or water or to make any repairs to the premises or to the Affordable Housing Units. o ARTICLE XVIII Additional Covenants of Lessee/Lessor Section 18.01 Legal Use. The Lessee covenants and agrees with the Lessor that the Demised Premises will be used primarily for the construction and operation of a multi-unit affordable housing complex and the other matters as may be set forth in this Lease, with related amenities and facilities, and for no other purposes whatsoever without Lessor's written consent. Section 18.02 Termination. Upon termination of this Lease, the Lessee will peaceably and quietly deliver possession of the Demised Premises, unless the Lease is extended as provided herein. Therefore, Lessee shall surrender the improvements together with the leased premises. Ownership of some or aU improvements shall thereupon revert to Lessor. Page 36 of 52 (" \",j l) Doc*' 163522!5 Bk~ 2283 Pg*, 946 Section 18.0~ Recovery of Litigation Expense. In the event of any suit, action or proceeding, at law or in equity, by either of the parties hereto against the other, or any other person having, claiming or possessing any alleged interest in the Demised Premises, by reason of any matter or thing arising out of or relating to this Lease, including any eviction proceeding, the prevailing party shall recover not only its legal costs, but reasonable attorneys' fees including appellate, bankruptcy and post-judgment collection proceedings for the maintenance or defense of said action or suit, as the case may be. Any judgment rendered in connection with any litigation arising out of this Lease shall bear interest at the_ _.....hjghest rate allowed-by law. Lesser may-recovel reasunabte legal ana professionaffues attributable to administration, enforcement and preparation for litigation relating to this Lease or to the Affordable Restrictions from any person or persons from or to whom a demand or enforcement request is made, regardless of actual initiation of an action or proceeding. ~~... r\~ :~:) Section 18.04 Condition of the Demised Premises. Lessee agrees to accept the Demised Premises in its presently existing condition "as-is". It is understood and agreed that the Lessee has determined that the Demised Premises are acceptable for its purposes and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or cause to be brought to the Demised Premises adequate connections for water, electrical power, telephone, stormwater and sewage and shall arrange with the appropriate utility companies for furnishing such services with no obligation therefore on the part of Lessor. The Lessor makes no express warranties and disclaims aU implied warranties. Lessee accepts the property in the condition in which it currently is without representation or warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the nature, condition or usability of the Demised Premises, or the uses to which the Demised Premises may be put. The Lessor shall not be responsible for any latent defect or change of condition in the improvements and personalty, or of title, and the Rent hereunder shall not be withheld or diminished on account of any defect in such title or property, any change in the condition thereof, any damage occurring thereto, or the existence with respect thereto of any violations of the laws or regulations of any governmental authority. < ~, "\ ig,~, Section 18.0f; Hazardous Materials. Lessee, its Sublessees and assignees shall not permit the presence, handling, storage or transportation of hazardous or toxic materials or medical waste ("hazardous waste") in or about the Demised Premises, except in strict compliance with all laws, ordinances, rules, regulations, orders and guidelines of any government agency havingjurisdiction and the applicable board of insurance underwriters. In no event shall hazardous waste be disposed of in or about the Demised Premises. For purposes herein, the term hazardous materials or substances shall mean any hazardous, toxic or radioactive substance material, matter or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement and shall include petroleum products and asbestos as well as improper or excessive storage or use of common household cleaning and landscaping chemicals, pesticides, batteries and the like, and those materials defined as hazardous substance or hazardous waste in the Comprehensive Environmental Response Compensation and Liability Act and/or the Resource Conservation and Recovery Act. Page 37 of 52 Doc~ 1635225 Bk~ 2283 P9~ 947 ~, Lessee shall notify Lessor immediately of any discharge or discovery of any hazardous waste at, upon, under or within the Demised Premises. Lessee shall, at its sole cost and expense, comply with all remedial measures required by any governmental agency having jurisdiction. Lessor and Initial Lessee hereby warrant and represent that to the best of their knowledge, the Demised Premises is free of any hazardous waste. Section 18.06 Recordation. Lessee, within five (5) business days after execution of this Lease, shall record a complete, true and correct copy of the Lease and any addenda or exhibits thereto and any Related Agreement(s) in the Public Records of Monroe County, Florida and shall provide Lessor with the written Clerk's receipt of the book and page number where recorded and the original Lease and Related Agreement( s) after recordation. ARTICLE XIX Representations. Warranties of Title and Ouiet Enjovrnent and No Unlawful or Immoral Pur.pose or Use Section 19.01 Repr~sentations. Warranties otTitle and Ouiet Enjoyment. Lessor represents and warrants that to its knowledge, there are no material claims, causes of action or other proceedings pending or threatened in respect to the ownership, operation or environmental condition of the Demised Premises or any part thereof. Additionally, the Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of the covenants and conditions required by the Lessee to be kept and performed, the Lessee shall have quiet and undisturbed and continued possession of the Demised Premises from claims by Lessor. () --" Section 1Q.02 No Unlawful or Immoral Purpose or Use. The Lessee will not use or occupy said premises for any unlawful or immoral purpose and will, at Lessee's sole cost and expense, conform to and obey any present or future ordinance and/or rules, regulations, requirements and orders of governmental authorities or agencies respecting the use and occupation of the Demised Premises. ARTICLE XX Miscellaneous Section 20.01 Covenants Running with Land. All covenants, promises, conditions and obligations contained herein or implied by law are covenants running with the land and, except as otherwise provided herein, shall attach and bind and inure to the benefit of the Lessor and Lessee and their respective heirs, legal representatives, successors and assigns, though this provision shall in no way alter the restrictions on assignment and Page 38 of 52 ~L ~ ~.. \) Doc" 1635225 BkA 2283 Pg~ 948 subletting applicable to Lessee hereunder. The parties agree that all covenants, promises, conditions, terms, restrictions and obligations arising from or under this Lease and the Affordable Restrictions benefit and enhance the communities and neighborhoods of Monroe Co II nty and the private and publiclands thereof, and have been imposed in order to assure these benefits and enhancements for the full Term of this Lease. It is intended, where appropriate and to serve the public purposes to be furthered by this Lease, that its provisions be construed, interpreted, applied and enforced in the manner of what is commonly referred to as a "deed restriction." Section 20.02 No Waiver. Time is of the essence in the performance of the obligations of the parties hereto. No waiver of a breach of any of the covenants in this Lease shall be construed to be a waiver of any succeeding breach of the same covenant. Section 20.0.~ Written Modifications. No modification, release, discharge or waiver of any provisions hereof shall be of any force, effect or value unless in writing signed by the Lessor and Lessee, or their duly authorized agents or attorneys. .,~ r . '~~ . -Y Section 20.04 Entire Agreement. This Lease, including the Preamble and any written addenda and all exhibits hereto (all of which are expressly incorporated herein by this reference) shall constitute the entire agreement between the parties with respect to this instrument as of this date. No prior written lease or prior or contemporaneous oral promises or representations shall be binding. Section 20.05 Notices. If either party desires to give notice to the other in connection with and/or according to the terms of this Lease, such notice shall be given by certified mail return receipt requested or by national overnight tracked and delivery-receipt courier service, and unless otherwise required to be "received", it shall be deemed given when deposited in the United States mails or with the courier service with postage or courier fees prepaid. Nothing herein contained shall be construed as prohibiting the parties respectively from changing the place at which notice is to be given, or the addition of one additional person or location for notices to be given, but no such change shall be effective unless and until it shall have been accomplished by written notice given in the manner set forth in this Section. Notification to Lessor shall be as set forth herein, to both of the following offices, unless a different method is later directed as prescribed herein or by the Affordable Restrictions: Monroe County Attorney PO Box 1026 Key West, Florida 33041 Tel. 305-292-3470 Director - Monroe County Division of Housing & Community Development F10rida Keys Marathon Airport 9400 Overseas Highway, Suite 200 Marathon, Morida 33050 Tel. 305-289-6002 Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee) consist of more than one person, such persons shall be jointly and severally liable on the covenants of this Lease. Page 39 of 52 Dod 1&352215 BkA 2283 PgA 949 (~ Section 20.07 Liability Continued. Lessor Liability. All references to the Lessor and Lessee mean the persons who, from time to time, occupy the positions, respectively, of Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for liabilities that may have been incurred prior to the date ofthe assignment or as specifically dealt with differently herein, the Lessor's liability under this Lease shall terminate upon such assignment. In addition, the Lessor's liability under this Lease, unless specifically dealt with differently herein, shall be at all times limited to the Lessor's interest in the -Demised-Premises:-- Section 20.08 Captions. The captions used in tbis Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of or in any way affect this Lease. Section 20.0Q Table of Contents. The index preceding this Lease under the same cover is for the purpose of the convenience of reference only and is not to be deemed or construed in any way as part of this Lease, nor as supplemental thereto or amendatory thereof. Section 20.10 Governing Law. Venue. This Agreement shall be constroed under the laws ofthe State of F1orida, and the venue for any legal proceeding to enforce or determine the terms and conditions of this Lease shall be Monroe County, Florida. o Section 20.11 Holding Over. Any holding over after the expiration ofthe Term of this Lease, with consent of Lessor, shall be construed. to be a tenancy from month to month, at twice the monthly Rent as required to be paid by Lessee for the period immediately prior to the expiration of the Term hereof, and shall otherwise be on the terms and conditions herein specified, so far as applicable. Section 20.12 Brokers. Lessor and Lessee covenant, warrant and represent that no broker was instrumental in consummating this Lease, and that no conversations or negotiations were had with any broker concerning the renting of the Demised Premises. Lessee and Lessor agree to hold one another harmless from and against, and agree to defend at its own expense, any and all claims for a brokerage commission by either of them with any brokers. Section 20.1~ Partial Invalidi13'. If any provision of this Lease or the application thereof to any person or circumstance shall at any time or to any extent be held invalid or unenforceable, the remainder of this Lease or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby. Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or other severe weather events, war or other reasons oflike nature not the fault of the party Page 40 of 52 0\ ""'j . ,. Doc" 1635225 BkM 2283 pga 950 delayed, in performing work or doing acts required under this Lease, the period for the penonnance of any such act shall be extended for a reasonable period. Section 20.1~ Lessor/Lessee Relationship. Non-Reliance by Third Parties. This Lease creates a lessor/lessee relationship, and no other relationship, between the parties. This Lease is for the sole benefit of the parties hereto and, except for assignments or Subleases pennitted hereunder and to the limited extent thereof, no other person or entity shall be a third party beneficiary hereunder. No person or entity shall be.~n~tle4 to J:~Ix-___-__ ________ upon the-terms, -oF-anY-i)f them;--of thi-s-1:;ea:sero enforce' or attemptto enforce any third- party claim or entitlement to or benefit of any service or program contemplated hereunder, and the Lessor and the Lessee agree that neither the Lessor nor the Lessee or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Lease separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Lease. .~ \...J Section 20.16 Contingencies. This Lease Agreement is contingent upon Initial Lessee obtaining construction financing; all necessary permits to build the Affordable Housing Units described herein; as well as Initial Lessee obtaining adequate access for the Unit Owners to access their Affordable Housing Units at all times. Therefore, in the event Initial Lessee is unable to obtain financing, permits or adequate access within the time for performance set forth herein, Initial Lessee may terminate this Lease. Termination of the Lease under such circumstances shall constitute effective, full and immediate conveyance and assignment to Lessor of all ofInitial Lessee's property and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protections as provided herein. Initial Lessee hereby acknowledges that in the event Initial Lessee terminates this Agreement, Initial Lessee will not receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to such termination. Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may pose health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings. Additional information regarding radon and radon testing may be obtained from your county health unit. Lessor shall not be responsible for radon testing for any persons purchasing, leasing or occupying anyportion of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or claims related thereto and releases Lessor from same. Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that, when it has accumulated in a building in sufficient quantities, may pose health risks to persons who are exposed to it over time. Mold has been found in buildings in Monroe County. There are no measures that can guarantee against mold, but additional information regarding mold and mold prevention and health effects may be obtained from your county health unit or the EP A or COC. Lessee and Sublessees accept responsibility to inspect for mold and take measures to reduce mold. Lessor shall not be responsible for Page 41 of 52 Doell 163~225 Bkll 2283 PglI 951 C) mold testing for any persons purchasing, leasing or occupying any portion of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or claims related thereto and releases Lessor from same. Sectio~ih!9.. Subsequent Changes in Law or Regulation. Where a change can reasonably be applied to benefit, enhance or support Lessor's affordable housing goals, objectives and policies, Lessor shall have the right to claim the benefit from any subsequent change to any applicable state or federal law or regulation that might in any way affect this bease,tne rl Agreements or their respective application and enforceability, without limitation. In such instance, this Lease shall be construed or, where necessary, may be reformed to give effect to tbis provision, but such construction shall not permit a fundamentally inequitable result for any party. Section 20.20 Government PUlpose. Lessor, through this Lease and the Affordable Restrictions, furthers a government housing purpose, and, in doing so, expressly reserves and in no way shall be deemed to have waived, for itself or its assigns, successors, employees, officers, agents and representatives any sovereign, quasi-govemrnental and any other similar defense, immunity, exemption or protection against any suit, cause of action, demand or liability. Section 20.21 Breach of Related Agreements/Remedies. To the extent that any purchase and sale or Related Agreement relating to the Demised Premises incorporates, relates to and/or is contingent upon the execution of and/or any performance under this Lease, any material breach under such other agreement shall be a material breach of this Lease and any material breach under this Lease shall be a material breach of such other agreement. Moreover, the parties agree that any remedy available for any breach under this Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's complete discretion, with any election to avail itself or proceed under any particular remedial mechanism in no way to be construed as a waiver or relinquishment of Lessor's right to proceed under any other mechanism at any time or in any particular sequence. o Section 20.22 Supplemental Administrative Enforcement. Lessor, or its appropriate agency, may establish under the Affordable Restrictions, as amended from time to time during the Term of this Lease, such rules, procedures, administrative forms of proceedings and such evidentiary standards as deemed reasonable within Lessor's legislative prerogative, to implement enforcement of the terms of this Lease and the Affordable Restrictions. Such forums may include but in no way be limited to use of Code Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and only by way of one example, and not as any limitation, the facts and legal effect of an allegedly unauthorized "offer to rent", or, for another example, an unauthorized "occupancy." However, nothing herein shall be deemed to limit Lessor, Initial Lessee or any mortgagee from access to an appropriate court of competent jurisdiction where the resolution of any dispute would be beyond the competence or lawful jurisdiction of any administrative proceeding. Page 42 of 52 \.-../' ~ " >' Doc. 163!522!5 Bk~ 2283 PgI 9~2 Section 20.23 Exceptions to Lease/Rental Prohibition. In addition to privileges recognized herein for Initial Lessee and certain "bulk" purchasers, Lessor or its designee, in its sole discretion, shall have the right to adopt as part of future Affordable Restrictions provisions to allow Sublcssef:'s the limited privilege to rent or lease their Affordable Housing Units to qualified persons. Requests for such approval shall be made in accordance with such procedures Lessor may in the future choose to adopt. It is contemplated, though not promised or required, that certain limited rental provisions may be adopted in the future for circumstances such as, for example, but vvithout limitation: duty. (a) A Sublessee's required absence from the local area for official military (b) An illness that legitimately requires a Sublessee to be hospitalized for an extended period. (c) A family emergency legitimately requiring a Sublessee to leave the Keys for a period longer than thirty (30) days. Lessor, in its discretion, shall have the right to amend, modify, extend, decrease or terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at any time. l1 ..... .~:.:..' Section 20.24 Drafting- of Lease and any Related AlITeement. The parties acknowledge that they jointly participated in the drafting of this Lease and any Related Agreements with the benefit of counsel, or had the Opportunity to receive such benefit of counsel, and that no term or provision of this Lease or a Related Agreement shall be construed in favor of or against either party based solely on the drafting of this Lease or the Related Agreement. Section 20.2~ Lessor's Duty to Cooperate. Where required under this Lease or Related Agreement, Lessor shall, to ensure the implementation of the public affordability pUrpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee, Sublessees, mortgagees, title insurers, closing agents, government agencies and the like regarding any relevant terms and conditions contained herein. IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands and seals, the day and year above written. Signed, Sealed and Delivered in the presence of two witnesses: -, , Printed Name I' l::'~ ,I ;~:rJ.~A~ . ; -. ,~''''.:TVCLf;l~ ' .....:.. _. r;OR: MO~ COUNTY m~( ChQ'lu."~~"rn('c, Page 43 of 52 MONROECOUNTY~ ~~ ,,---:~ S ~!...~ ~""PV N /V .J0~' .~ -'-1:.; Printed Name (both as to Lessor) .---- Printed Name ~k ~ ~hd~M.$~ (both as to Lessee) () Ooc" 1635225 Bkl 2283 PgR 953 COMPANY, ("?J ? Page 44 of 52 .. , , ) ~j """\ ~. j EXHillIT "A" Doell 1635225 Bkl 2283 pga 954 LEGAL DESCRIPTION Deal 2I27t8I .. 2IJI .... U2I tf~. V 011. t:ha :r.1aDd bown - 8t:ook .le1aad aad II6lIag B100k 38, 001&.......1_ 20 1ou, aGGUdtag 1:0 ~ _ L. ~''tD'. "~t: oC . ~ t4 ftoak :t.1aDd zoeoozde4 .f.A P1.at: Book 1, ~ 55, Moazoe Co1ID.t:.r, rJ.Drid& Z'e~ . ALSO 'f'Jaai: port::l.oa ~ '.:i~f: A..... ~~ ... baU9 -t.... B1oa't '8 aacI 3', ~ r.. ~"'I'''''II JP1at: ~ . pu1: ~ IIAcIk l'~d zeaoZ'ded U di..ol."--d _ ....01"1:1.011 110. 33-11'73, 8o&I:d ~ CoaAq ec..i...-., -=-oo~ 1.a o'E't~ ....l. It.eooz:ct. IIooIc 53" , page 93"1, ~ the hl:tUo a.aol:de ~ ......Z'M CoaIlt:;y, 1'1.o~i.da. - CGIIf'rY ClfPZCIM. --. ...... ..: Page 45 of 52 Dod 163~225 Bk~ 2283 P9~ 955 () RESOLUTION NO. JJ -1973 WHEREAS, the Board oi CO\U1ty CommiuioDen of Monroe Co~ty. Florida. hae been petitioned to renonnce and disclaim any right of the Count)!' And the pnblic ill and to tM hereinafter described street, a.lley-way, r01!d or highway .... J",l~.~llted. on tbe ll.areio.uter de.crib.d ...up n.. plAt, And WHEREAS, <hle notice Me ~en p\Jbli.8.tUld ADd A ptlblic hearias bas beeD held in accordance with Ch&pter 336, Florida Statutes. and WHEREAS, at laid publ1c heariDs ~o objactiOlls wen nade to the renouncing and diacl&bning ot any right of the COllDty aDd tho public ill aDd to the hereiAa1ter de.cribed Btreet. alley-way, road or b1gbwa, - c1elbleate4 on the hereinafter descrio.cl map or plat. now therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that lI~d BoU'd bereby renoUJIce. aDd dbclaimll aAY rilht of the COllDty an4 the p\Jblic hi and to the followinl de- o scribed street. alley-w.,.. road or highway a. delineated on the hereinafter described map or put, to-wit: That portion of First Avell\UI l,.u.S and being bet1ll'eon Blocks 38 and 3'1. McDonald's Plat, Stock leland. recorded in Plat Book I, page 55 of the Public Records Of Monroe CO\U1ty. Florid.. BE IT FURTHER .RESOLVED BY SAID BOARD that the Clerk of said Board be, and he ie hereby ordered to publish notice of said meetilla in accordance with the provisiozllJ of Cbaptez 336. Flo~id.& Statut.lI. DATED March 27, 1973. :.,"';, ",j' Page 458 of 52 (,) lEJUHBIl' U6B9~ Doc~ 163!5225 Bk~ 2283 p~ 956 DEPICTION OF PROJECT LAYOUT 0) I I Page 46 of 52 OF. ~ 'U 'P"lIflll 'l00lS aA.' Ploa~ ~aPl 001S ne~ ee! (S1IE) "U lDltS. ~ "1:o"""W ~1't11 Ol.,p PIVuOa ~V)'{ OOGIii .r.:Y.lJ.lH:JHV 'Y. d ':ldOd '3 SVKOIU Doell 1635225 Bklt 2283 Pg~ 957 ..._~~.-~... -- -. .--- ----~. - --~--~- ---.---~ ---... ...---- -~..-- ~_..... -- ..... ~II -- I I i ~ ill ~ n . _1'/ n ~ I k i f I :...\ 1"~1.1//....._ "/ ~~ i i $~ II b; I 00 1~1 ~ 1 0.,- . . ~ ~ i! (.) V _,.-,-._......-... ____._.-ooou.-..,,........~,.~r ",",. U"'_6 I.t'.n nf: It.? l~ .,j o p~a ~VJII OOS!; ...~ 1>10""11 ""t"1 00.."9 .r.:>:J.1IHJHV 'r d ':idOcl: '2 S'YJ{OIU -,., V . ... ~ !J if 1 ~ s g .. .a III II .. III .. . o ~ a i ~ i 'U 't><>~PI 'l""lS ---ill Q If ", J ltClS - (ax) TAl =/l &ox .~ 0UIlA QI9 Doc" 163522!5 BkR 2283 p.~ 958 ~ ~ ilf ~ Page 46b of 52 -. ...........""'.r:w._.... ......... .~"..... .~'WO"........... .__" o , 1-"'- 1I.~ u'! PI""O(! """ OO~ prvuoa :lVft OO~ !IS; see: (l::Ii:l U 1""0 &GJI ~'""'"IS '"1l1L!l ilIa J.:>3J.nI:>HV 'Y'd ':ildOd '1 S'VROHJ. ~ .jo. df ~ ~ ~ ":') .. ~ -a c p 0 e ::I ., 0 I- 0 III il ~ .. d\ t ~ f. an:;r :It'O un . N N.... fle or N -v~ , I fO C] .., ft .':.:.J :a ~ E E ill .. Ii .., .: iH .. Ii .Q ~ ;: ! 1 oS i (~\, \ ' .-/ pD..~.aa;oc:u"'''...-.c.a(''''':&.o =-~.""';.l__~'''_~''''''''~.'-'''~'''''' n..__ I.&.~ _~ 1;'1 ~ I, _>' o Plllaoa :Jen oo~ 'U 'puo'S! ll~"'1S .A'f PJVlloa nrl 009l: - 4>>0 @ 40- -t- I ~ ~ I> U jiQ u '0 is ... ..d ~ 11:1 ng~ 0&2 <OOCl 1AI I""".c..,l '1<"'1:0: "'Ill/). ~19 ~3JJH~v T d '~ciOd '3 b'VftOW d o :1/ ;I~ " : IE: 1 40- ,... I j E ~I: !j 1~ 111 l~1 ~ i t j;i .. =a ::> e o o ... "f1 II JIl ~ --~.~.. r:! . II o ~ !:I l:i F:: tDg ;11:'0 .n a ~ N... ClDGl CoIbC N .,,~ lGlII . to en C5J 7W..o.n~''''8I'Ua_a4'''~ ~........_...................~ n .....;=o~ Doe. 1&3~225 Bk. 2283 PVM 961 This Instrument Prepared By' JERRY COLEMAN, P.L. 201 Front Street, Suite 20J Key West, Florida 33040 EXHIBIT "C" ..€OMMENCEMEN-'J- DA1:E.AGREEM"F.NT 200 by and between ("Lessee") . This Agreement IS made as of ("Lessor") and WHEREAS, Lessor and Lessee have entered into a Lease dated ,200_ for Premises designated on Exhibit A attacbed to the Lease, whicb was duly recorded at Book _ Page _, along with a Related Agreement, that certain Agreement for Sale and Purchase, dated -' 200-> recorded at Book_Page _ all of the Public Records of Monroe County, Florida. WHEREAS, the Commencement Date, as further defined in Article ill of the Lease, has occurred; and pursuant to the Lease, Lessor and Lessee desire to confinn various dates relating to the Lease. NO W THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth below is true and accurate. 0' _.i:" Commencement Date: .200_ Initial Term Expiration Date: .210_ The execution of this Agreement shall not constitute an exercise by Lessee of its option with respect to any Extended Term. EXECUTED as a sealed instrument on the date first set forth above. LESSOR: LESSEE: By: By: its its Witness 1 Witness 1 Witness 2 Witness 2 Page 47 of 52 , '"'\ I j '-- " \.'l ,,' Doctl 1635225 Bktl 2283 Pgtl 962 EXHIBIT "D" Term PO""'" Due Dale fu!!l! TennJ'ort'!m Due Dale RQ.n! Ledge Yea, 1 Aug 1 2006 $10 00 Lease Yea, 51 Aug 1 2056 SI0_00 Lease Y ca, 2 Aug 1 2007 $1000 Lease Yeil' 52 Aug 1 2057 5fO 00 Lease Yea, 3 Aug 1 2008 $1000 Lease YeM 53 Aug 1 20511 $1000 ------. ----- --------. --- ----- !:-~~~~~----- Aug...1-2l109- Slo-00--'----.~--'Lease Yea, ~ Aug 1 2059 $10,00 ~~--,~~.~ Lease Yea, 5 Aug 1 2010 $fO.OO Lease Yea, 55 Aug 1 2060 $10,00 Lease Yea, 6 Aug 1 2011 51000 Lease Yea, 56 Aug 1 2061 $10.00 Lease Yea, 7 Aug 1 2012 51000 Lease Yea, 1ST Aug 1 2062 510_00 Lease Yea, 8 Aug 1 2013 510.00 Lease Yea, 58 Aug 1 2063 51000 Lsase Year 9 Aug 1 2014 $10.00 Lease Year 59 Aug 1 2084 $10.00 Lease Year 10 Aug 1 201S $10.00 Lease Yaar 60 Aug 1 2065 $ 10.00 Lease Yea, 11 Aug 1 2016 510.00 Lease Yea, 61 Augl2066 510_00 Lease Yea, 12 Aug 12017 510.00 Lease Yea, 62 Aug 1 2067 $10.00 Laase Yea, 13 Aug 1 2018 510.00 Lease Yea, 63 Aug121l6B $10.00 Lease Year 14 Au" 12019 $10.00 Lease Yea, 64 Aug 1 2069 $10.00 Lease Yea, 15 Aug12020 $10_00 Lease Year 65 Aug 1 2070 $10.00 Lease Year 16 Aug 1 2021 $10_00 Lease Yea, 88 Aug 1 2071 510.00 Leaae Year 17 Aug 1 2022 S10.00 Lease Yea, 67 Aug 1 2012 510.00 "'A r ..~~. Lease Vear 18 Aug 1 2023 SI0_00 Leasa Yea, 68 Aug 1 2073 510.00 \'r: """"';:.0' Lease Yea, 19 Aug 1 2024 $10_00 Lease Yea, 69 Aug 1 2074 SI0_00 Lease Veilr 20 Aug 1 2025 $10.00 Lease Year 70 AUQ 1 2075 $10.00 Lease Vear 21 Aug 1 2026 $1000 Lease Yea, 71 Aug 1 2076 $10.00 Lease Year 22 Aug 1 2027 $1000 Lease Vea, 72 Aug 1 2077 510,00 Lease Yea, 23 Aug 1 2028 $10.00 Lease Yea, 73 Aug 1 2078 510.00 Lease Yea, 24 Aug 1 2029 51000 Leasa Vea, 74 AU9 1 2079 $10.00 Lease Year 25 Aug 1 2030 $1000 Lease Yea, 75 Aug 1 2080 $10.00 Lease Year 26 Aug 1 2031 $10 00 Lease Yea, 78 Aug 1 2081 $10_00 Lease Year 27 Aug 1 2032 $10 00 Lease Yea, 77 Aug 1 2082 510.00 Lease Year 28 Aug 1 2033 $1000 Lease Yea, 78 Aug 1 2083 510.00 Lease Vaar 29 Aug 1 2034 51000 Leass Yea, 79 Aug 1 2084 $10_00 LeaseYearJO Aug 1 2035 $1000 Lsass Yea, 80 Aug 1 2085 $10.00 Lease Year 31 Aug 1 2038 $1000 Lease Year 81 Aug 1 2086 $10_00 Laase Year 32 Aug 1 2037 $1000 Lease Year 82 Aug 1 2087 $10_00 Lease Year 33 Aug 1 2038 $10_00 Lease Yea, 83 Aug 1 2088 $10.00 Lease Year 34 Aug 1 2039 $1000 Lease Year 84 Aug 1 2089 $10_00 Lease Year 35 Aug 1 2040 $10.00 Lease Y"8r 85 Aug 1 2090 $10_00 Lease Yea, 38 Aug 12041 $1000 Lease Vear86 Aug 1 2091 $10.00 Lease Vea, 37 Aug 1 2042 SID 00 Leale Yea, 87 Aug 1 2092 "0_00 Lease Vear 38 Aug 1 2043 $1000 Lea5e Year 8ll AU9 1 2093 "000 Lease Yea, 39 Aug 1 Z044 $1000 Lease Yea, 89 AUlll 2094 $10.00 Lease Yaa,~ Aug 1 2045 510 00 Lease Yea, 90 Aug 1 2095 $10.00 Lease Year 41 Aug 1 2IUS $1000 I..eese Vaar '" Aug 1 2OlI6 $10.00 Lease Yesr 42 Aug 12047 $1000 Lease Yea, 112 Aug 1 20117 $10.00 Page 48 of 52 ODell 1635225 Skll 2283 Pg~ 963 Lease Year 43 Aug 1 2048 $1000 Lease Year 93 Aug 1 2098 $1000 Lease Year 44 Avg 1 2049 $10_00 Lease Year 94 Aug 1 2099 $10.00 Lease Yllar ~5 Aug 12050 510 00 Lease Year 95 Aug 1 2100 $1000 Lease Year 46 Aug 1 2051 $1000 Lease Yoar 96 Aug 1 2101 $10 00 Lease Vear 47 Aug 1 2052 $10.00 Lease Year 97 Aug 1 2102 $1000 Leaso YP,or 48 Aug 1 2053 $10GO Lease Yea, \lij Aug 1 21CKl $1000 Lease Year 49 Aug 1 2054 $1000 Lease Year 99 Aug 1 2104 $1000 Lease Year 50 Aug 1 2055 $1000 .-..--- -------- -- .------ --. ------- Page 49 of 52 n . ..~./! o ~'.i l1 Do~ 163!22S Bk~ 2283 Pg~ 964 EXHIBIT "E" LETTER OF ACKNOWLEDGEMENT TO: Initial Lessee, or its assigns Address of InitiaJ Lessee, or its assigns DATE: This letter is given to (.....Initial Lessee. ...) as an acknowledgement in regard to the Affordable Housing Unit that I am purchasing. 1 hereby acknowledge the following: I ~, ......~...... · That r meet the requirements set forth in the Affordable Restrictions to purchase an affordable unit. I understand that the unit I am buying is being sold to me at a price restricted below fair market value for my, future similarly situated persons and Monroe County's benefits. · That the Affordable Housing Unit that I am purchasing is subject to a 99-year ground lease by and between Monroe County, a political subdivision of the State of Florida, and (hereinafter "Lease") and therefore I will be subleasing a parcel of land. · That my legal counsel, , has explained to me the tenus and conditions of the Lease, including without limitation the meaning of the teon "Affordable Restrictions", and other legal documents that are part of this transaction. · That I understand the tenns of the Lease and how the tenns and conditions set forth therein will affect my rights as an owner of the Mfordable Housing Unit, now and in the future. · That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I understand and agree for myself and my successors in interest that Monroe County may change some of the Affordable Restrictions over the 99-year tem of the Lease and that I will be expected to abide by any such changes. · That I understand and agree that one of the goals of the Lease is to keep the Affordable Housing Units affordable from one owner to the next, and I support this goal. · That in the event I want to sell my Affordable Housing Unit, I must comply with the requirements set forth in the Lease, including but not limited to the price at which r might be allowed to sell it, the persons to whom 1 might be allowed to sell it to and that the timing and procedures for sales will be restricted. · That my lease prohibits me from severing the improvements from the real property. · That my family and I must occupy the Affordable Housing Unit and that it cannot be rented to third parties without the written approval of the Lessor. · r understand that in the event that I die, my home may be devised and occupied by my wife, my children or any other heirs so long as they meet the requirements for Page 50 of 52 Doc., 1635225 Bk~ 2283 Pg~ 96~ affordable housing as set forth in the Lease. . That I have reviewed the terms of the Lease and transaction documents and that I consider said terms faiT and necessary to preserve affordable housing and of special benefit to me. . I hereby warrant that I have not dealt with any broker other than in connection with the consummation of the purchase of the Affordable Housing Unit. Page 51 of 52 (!j)..i.;,. t.,,~# () ( "': \,.~,/ .~ "'I ') () ~''':~ -. "r ~ - This modification or additional condition shall : NOT APPLY X APPLY to this Lease. This modification or additional condition shall: NOT APPLY APPLY to this Lease. Doc~ 1635225 SkI 2283 Pgl 966 EXHIBIT "F" ModiJied or Additional Conditions S~t19n 12.0~ Initial Sale/Lease of Unit lh::.J)eve]oI1WInitiaJ Lessee (ADDITIONAL PROVISIONl. Initial Lessee acknowledges that there shall be reselVed by this Lease a right of first refusal in favor of Lessor to J?ur!;~e OL- designat.e purchasers-ml' any-Affordabfe-Housing UmtSoff'ereu for sale or lease. J nitial Lessee shall provide Lessor with written notice of its intent to commence marketing efforts and Lessor shall have ninety (90) days from the date of Lessor's receipt of the notice to enter into a reservation agreement with Initial Lessee for the purchase/lease of all or a portion of the Affordable Housing Units, unless Initial Lessee has been authoriz;ed, in writing (which the omission of this provision may itself constitute), by Lessor to sell the Affordable Housing Units to individuals otherwise qualified to own/rent the Affordable Housing Units and subject to all other affordable housing covenants of record. Notwithstanding anything contained herein to the contrary, all purchasersjIessees of such Affordable Housing Units shall meet Lessor's requirements of moderate or lesser income affordable housing, adjusted for family size, and any other applicable Affordable Restrictions. N/A HoNROE COUNTY OFFICI~ RECORDS Page 52 of 52 IM!~O C~ ClarIk'I 0JJke.0If&ImII ( """. .,"\ .-:....... AGREEMENT Pursuant to Section 380.032(3), Florida Statutes THIS SECTION 380.032 AGREEMENT is entered into between the Department of Community Affairs, an agency of the State of Florida (hereinafter referred to as "DCA" or Department"), Overseas Redevelopment Company, LLC (hereinafter ~efe~ed to as "ORC"~!1d ~onroe ~oun!IL~~IiticaLs.ubdiYisIDILofthe State oiEIorida------------ ~~*~.~~~ --.-- (hereinafter referred to as "County"), pursuant to the tellDS and conditions herein and ~ 380.032(3), Florida Statutes. WHEREAS, Monroe County, Florida includes within its boundaries all of the Florida Keys and is known as an Area of Critical State Concern, as designated under Sections 380.05, Florida Statutes, and Chapter 28-36, F.A.C.; and WHEREAS, the DCA is the state land planning agency having the power and duty to exercise general supervision of the administration and enforcement of Chapter 380, Florida Statutes, the Environmental Land and Water Management Act (the "Act"), which includes provisions relating to areas of critical state concern; and WHEREAS, DCA is authorized by ~ 380.032(3), Florida Statutes, to enter into an agreement with any landowner, developer or other governmental agency as may be necessary to effectuate the provisions and purposes of the Act, or any related rule; and WHEREAS, in March, 2005 ORC entered into a contract to purchase a parcel of real property located on Stock Island, Florida comprising approximately 3.56 acres, as is more fully described in Appendix "A", also known Overseas Trailer Park (the "Property"), pursuant to which contract ORC. as contract vendee, is entitled to seek and obtain government approvals for the development of the Property; and WHEREAS, after acquiring the Property, ORC presented an application for an amendment to a conditional use to the County to convert sixty-three (63) mobile home sites to forty-nine (49) market rate housing units on the property; and WHEREAS, ORC negotiated with the County the terms of an agreement to resolve vested rights and other development issues that were the subject of protracted discussions between the County and ORC; and () l May 3,2006 Page lof6 (~ ',J WHEREAS, the goal of the parties was to seek a means to preserve affordable housing by identifYing a plan that would create workforce housing units and recognize certain remaining market rate units on the Property; and WHEREAS, it is in the public interest and consistent with current County ordinances and planning initiatives that Overseas Trailer Park be developed as workforce housing, rather than market rate units; and ~~-----~~---~--WHER.EAS-, -it- is----i~-publie-interest_lIIld consistent with County plannmg initiatives that private lands capable of supporting workforce housing developments be purchased and brought into public ownership when possible; and WHEREAS. the County recognizes that to achieve this public purpose it is necessary to provide Rate of Growth Ordinance rights (ROGO units) as part of the purchase price incentive to private landowners in the position ofORC. NOW, THEREFORE, in consideration of the mutual covenants and the terms and conditions set forth hereafter. the County, ORC and DCA agree as follows: 1. Incorooration or Recitals. All of the foregoing recitals are incorporated into Q this Agreement. 2. DeveloDment A2reements. 2.1. The parties agree that the Property that is subject of this agreement, based on the most accurate historical information available. has sixty-three (63) ROGO units allocated to the Property. 2.2. The parties agree that ORC currently has the lawful right to construct forty-nine (49) market rate units on the Property. 2.3. The parties agree that there presently are an additional fourteen (14) market rate ROGO units on the Property that may be transferred off site by ORC. 2.4. The County will purchase the Property from ORC pursuant to the following terms and conditions: a. The County will pay to ORC the sum of Two Million Five Hundred Thousand Dollars ($2.500,000.00) in cash in exchange for the transfer of ORC' s fee simple ownership in the Property. b. The County will lease the Property back to ORC in a lease format approved by the County and ORC for a tenn of ninety-nine ., l :; May 3, 2006 Page 2 of6 c; (~ \.Y May 3, 2006 (99) years for a rental rate of Ten Dollars ($10.00) per year. As tenant, ORC shall assume all expenses and obligations of ownership of the Property. As set forth below, ORC will redevelop the Property into a workforce housing community, which ORC will operate and manage consistent with the County's workforce housing regulations, as amended from time to time, -----inchldir)g.oversight-by--theCounty-Housing-Authority. -------- -- c. The County will allocate eighteen (18) of its affordable ROGO units in its inventory to ORC for the redevelopment project, and ORC will provide thirty-one (31) of its ROGO units to the project. Said eighteen (18) County units and thirty-one (31) ORC units shall be used by ORC to redevelop the Property into a forty-nine (49) unit workforce housing community. The County may substitute thirty-one (31) of its affordable housing ROGO allocations for the 31 ORC units and in which event ORC will assign the 31 ORC market rate ROGO allocations to the County for its use. Thereafter, ORC shall own all forty-nine (49) units and shall be able to sell the same to third parties in accordance with the County's workforce housing guidelines. The parties agree that ORC shall have the greatest possible latitude under the workforce housing guidelines in its selling of units in the community, and shall be able to sell such units at the maximum prices permissible under the workforce housing guidelines, including but not limited to those prices chargeable to people in the "moderate" income classification. d. The remaining thirty-two (32) market rate ROGO units retained by ORC may be sold by ORC upon such terms and conditions as it in its sole and absolute discretion deems appropriate, and such units may be transferred off the Property singly, in groups or all together to a receiver site or sites. ORC shall be entitled to transfer such units at such time as it has been issued a building permit for Page 3 of6 r~ (,j) the redevelopment of the Property as set forth above. Each of the thirty-two (32) ROGO units to be transferred off the Property is deemed to meet the transfer criteria established by County regulations and ordinances and shall be transferable as of right to a receiver site. The units transferred off may not be transferred beyond the Lower Keys District boundaries unless and until the ------------------------nutrient redudion--system-is-eff'lCiaUy-dispensed witlrullTeSUh of official state action or judicial decree. The units being transferred off-site may not be transferred in a Tier 1 zoning district; or a special protection area if the construction of the units would require clearing of natural habitat; or if evaluated under ROGO the site would receive negative points under habitat protection, threatened or endangered species, or critical habitat. e. The transfer of affordable units from one owner to another will be monitored by the County in a manner to be detennined by the County from time to time. r Until such time as Monroe County shall adopt "workforce housing" regulations ORC shall comply in all respects with the definition of "affordable housing" in the Monroe County Code and shaJJ additionally require each unit purchaser or adult occupant to be a member of the Monroe County workforce, i.e. to be gainfully employed, fuII time, in Monroe County at the time of purchase or occupancy and to remain so employed for not Jess than five years thereafter. 3. Constnction of the A2reement. The parties hereto have entered into this Section 380.032 agreement in recognition of the unique circumstances applicable to the Property, and in consideration of the public benefits to be obtained by preserving workforce housing stock. Accordingly, this Section 380.032 Agreement should not be construed as establishing precedent or procedure for any other development application. ') I '- \<.;",:~ i May 3.2006 Page 4 of6 (0) 4. General Provisions. The County will not take any official action through its agents or employees which would contravene, interfere with or alter any provision in this agreement. 5. Autborized SUmatures. The Board of County Commissioners of Monroe County, or its authorized designee, shaH execute this Section 380.032 Agreement on behalf of the County foUowing approval of this Agreement by the Board of County __~omrnissioners. _ThcLDiTP.ctor of- the- Division-of--€ommunit y Planning;or-JUslfier authorized designee, shall execute this Agreement on behalf of DCA. ORe shall execute this Agreement by its duly-authorized officer. 6. Entirety of Aueement. The County, DCA and ORe further agree that this Section 380.032 Agreement contains the entire and exclusive understanding and agreement among the parties and may not be modified in any manner except by an instrument in writing and duly signed by the County, DCA and ORC. 7 -..alieatM erimab:. This Section 380.032 Agreement may be executed in any number of originals, aU of which evidence one agreement, and only one of which I..r-:::.~ ~) need be produced for any purpose. 8. Enforcement. In the event ofa breach of this Section 380.032 Agreement, or failure to comply with any condition of it, the County, DCA and ORC may enforce this Agreement pursuant to ~~ 380.05 and 380. I I, Florida Statutes, or as otherwise provided by law. 9. SeoDe of Autboritv. This Section 380.032 Agreement affects the rights and obligations of the County, DCA and ORC as provided under the tenns herein and Chapter 380, Florida Statutes. This Section 380.032 Agreement is not intended to influence or determine the authority or decisions of any other state or local government or agency in issuance of any other permits or approvals that might be required by state law or local ordinance for any development authorized by this Agreement except as otherwise provided herein. 10. EfI'~tive Date. This Agreement shaJl take effect upon signature of the last of the parties to sign this Agreement. May 3, 2006 Page 50f6 () IN WITNESS WHEREOF, the parties by and through their respective undersigned duly authorized representatives have executed this Agreement on the dates and year below written. OVERSEAS REDEVELOPMENT DCA COMPANY, LLC Cleghorn, its nager irecto Commu Planning, DCA <(Ilk" Date' Ii ed JUl.1.. 7htt D4te I ed Date signed . ~ ~ 1.-11 :J: r-.) 0 0 :I -r'I :z: ~ CII" I ::O(")Z 2:110 ,." c:: o,....z c:") C"J IT!=,,-< " n. r 0 on' .&'" :;;0 c: - ;J:: :t:?Oc;. .." :-:1 --t .- :x 1"1 :-<n_ . ~~ (") s:.- O 'TI Cl .. ;r,) r IT! 0 > 0 .\ , ;. May 3, 2006 Page 6 of6 () EXHffiIT "A" ~-'.~---~LEGAL DESCRIPTION Doell ..,. ..... '-If.. O',i~ . . ~ I , , Qa t:1aa %-I.ad Juaowaa - 8t:oCIk 1.1a'" ... IIe1Dg' Uook ", CIOD.......t... 20 1oU, ~ .. ~ L. -- TW\-'V\'. .J.a1: ~ . ~ ~ ftoak blaad zaacz'*d I.a >>1a1: JIook 1, ~ SI, IIDIu:oe CoIIDtr, l'1orida ~. AIa80 ftaf: poft:l.oD ~ ~t aT.... 1~ ..... ~1....... II1aat& 38 ... ", .=1 - I.. ~""W'. .1at: o~ . paot: ~ 8t;oak %.-.... z._.~.d .ill clt.lCr'.oI--<< . "8011&1doa *. 13-1..,., ...... 01 eaaat;r ~ ....-lin.. J:IeOOI:de4 .:I.a. oft4ftf.l ..~ IIook 517, ~ .'7, d tIae ,~io 1IlHoat. ~ ~J:IOe Ccraat;r.. 1"1oJ:ida. - ...." WI... ..,... \, Page 45 of 52 ~ \,~...Y c;,' ~,"" RESOLUTION NO. JJ -1973 WHEREAS, tbo Board of County Comlni..iDDers of Monroe COlU1ty, Florida, has beeD petitiol1ed to renounce and disclaim any right of the County and the public ~ and to the hereinafter described street, alley-way, road 01' highway as deliDeated on the hereiDafter described map or plat, and ---'-~-'-_._----"'----'--~-WHERE;;S:-due not!;;;' bas been pubUshed and a public heariDS bas been held in accord_ce with Chapter 336, Florida Statutes, ed WHEREAS. at said public hearmi AO objection. were made to the 1'8I10lmcmg ed clisclaimiJIg of ey right of tbe County lIDd the public in aDd to the hereinafter deecribed strlliet, alloy-way, road 01' hiJhwa, a. dellDoatecl on tbe bereinafter described map 01' plat, now therefore, BE IT BESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA. that s~id BOB1"d hereby rel10uneee and disclaims a,. dlht of the Coon'y and the public in and to the following de- 8cdbed str_t. &lley-way, road or hip"ll.' a8 delineated on the hereiDafter d.scZ'ibed map or plat, to-wit: That portion 0/. First Aveol&e lyia. aDd beiB, betwe_ Blocks 38 and 39. McDonald'. Plat, Stock I.land, recorded in Plat Book 1, pa,. 55 of the Public Records a! MODroe Cousaty. Flodcla. BE IT Ji1RTHEB RESOLVlCD BY SAID BOARD tbat the Clerk of .aid. Board be. and he is hereby ordered to pabUeh Ilotice of said meetin(r 1.11. accozodlUu:e with the pro.,bion. of Cbapt.", 336, Florid. Statute.. DATED March Z7, 1973. " r, Doca 1635227 03/30/2007 4:34P" Filed & Recorded in OffIcial Records of "ONROE COUNTY DANNY L. KOLHAGE This Instrument Prepared By: Malcolm J. Pitchford, Esq. Abel Band, Chartered P.O. Box 49948 Sarasota, FL 34230-6948 Doca 1&39227 Bka 2283 Pga 986 -------------AGREEMENTS R:EEk'f~EASEHOr:JYMORiGA-GE~"----~-------------------~--- ~ __a..__u__.._______ This agreement (the "Agreement") is entered as of the last date set forth on the signature page hereof by and among Monroe County ("Owner"), and Overseas Redevelopment Company, LLC, a Florida limited liability company ("Tenant") and Branch Banking and Trust Company, a North Carolina banking corporation r'~ortgagee"). SECTION l. RECITATION OF FACTS. 1.1 Owner holds fee simple title to the real property located in Monroe County, Florida, described on Exhibit "A" annexed hereto (the "Property"). ("~ ~;J 1.2 Owner and Tenant have entered into that certain unrecorded Long-Term Ground Lease Agreement dated July 19, 2006 (the "Lease"). The Lease provides, in pertinent part, for an initial term of ninety-nine (99) years. ].3 Concurrently herewith, Tenant has executed and delivered to Mortgagee that certain Modification and Restatement of Mortgage and Security Agreement (Substitution of Leasehold in Lieu of Fee) (the "Mortgage"). The Mortgage encumbers, inter aJi~ the leasehold interest of Ten ant in the Lease. 1.4 Mortgagee has agreed to allow the transfer of the Property by Tenant to Owner and to permit the Tenant to substitute Tenant's leasehold interest under the Lease in place of Tenant's fee ownership interest in the Property as heretofore encumbered by that certain Mortgage and Security Agreement dated the 30lh day of June, 2005, and recorded on July 7,2006 in Official Records Book 2130, Page 1330, et seq. of the Public Records of Monroe County, Florida, which said Mortgage shall secure and continue to secure the loan heretofore made by Mortgagee to Tenant as evidenced by that certain Promissory Note dated June 30, 2006 in the original principal amount of $6,500,000.00 (as heretofore modified of even date herewith to secure an additional advance of $1,000,000.00). all of the foregoing on the express condition that Owner agrees to certain provisions and conditions concerning the Lease as hereinafter set forth. 1l70172~ 2 -1- ,j ('""'" ." SECTION 2. AGREEMENTS OF OWNER. DOd 1635227 Ski 2283 PgI 987 2.1 There shaH be no canccJJation. modification. amendment. surrender or acceptance of surrender of the Lease, without the Mortgagee' s prior written consent. 2.2 Owner shall. upon serving on Tenant any notice of default or any other notice under the Lease simultaneously serve a copy of such notice upon the Mortgagee, and no notice of such default shaH be deemed to have been duly given until a copy thereof has been so served. The Mortgagee shaH thereupon have 15 business days (the "Cure Period") to remedy or cause to be remedied the defaults ~ml?!llined of. and Owner shalL accept such perfOfmance- by or at lfie- -rnSfigatfonOfThe-Nfortgagee as if such performance had been accomplished by Tenant. 2.3 For the purpose of this Section 2, no default by Tenant in the performance of . work to be perfonned, acts to be done, or conditions to be remedied, which cannot reasonably be completed within the Cure Period, shall be deemed to exist, if steps, in good faith, have been commenced promptly by Tenant or Mortgagee to rectify the same, and are prosecuted to completion with diligence and continuity. (:) 2.4 Notwithstanding any other provision herein, Owner may not tenninate the Lease, or pennit the same to be terminated, or terminate Tenant's right of possession of the Property, while the Mortgage remains in effect, if. within the Cure Period, the Mortgagee has paid Owner all rent and additional rent and has complied, or taken reasonable steps to comply, with the requirements of the Lease, so as to cure the default or defaults claimed by Owner. In such case, any notice of termination by Owner shall be void. 2.5 If Owner elects to terminate the Lease, by reason of any uncured default of Tenant, the Mortgagee shall not only have and be subrogated to all rights of Ten ant with respect to curing such default, but shaH also have the right to postpone and extend the specified date for the termination of the Lease, as fixed by Owner in its notice of termination, for a period of not more than six months, if: (1) the Mortgagee cures any existing default, and meanwhile pays the rent and additional rent and perfonns all of Tenant's other obJigations under the Lease; (2) no further defaults accrue during such extended period; or (3) if the nature of the default is such that the Mortgagee is unable to take reasonable steps to cure the same, the Mortgagee proceeds to acquire Tenant's interest in the Lease, by foreclosure of its Mortgage or otherwise, in which event the Lease shaH continue in effect for so long as the Mortgagee is diligently seeking to acquire Tenant's interest in the Lease through foreclosure or otherwise. 2.6 In the event that the Mortgagee shall acquire Tenant's interest in the Lease, by foreclosure of its Mortgage or otherwise, Owner agrees that all of Tenant's rights and benefits in and under the Lease shall inure to the benefit of the Mortgagee (and to Mortgagee's successors or assigns). Further. Owner agrees that all of Tenant's rights and interest in and to those certain thiny transferabJe ROGO rights appurtenant to, or benefiting the Property. shaH, in the event that 870172~ 2 ~2- Docll 1635227 Bkll 2283 PgII 988 r.'~ -"," the Mortgagee (or its successors or assigns) acquires the Tenant's interest in the Real Property. shall inure to and for the benefit of the Mortgagee (or its successors or assigns). 2.7 The name of the Mortgagee may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant pursuant to the Lease. O\\ner will make available jointly to Tenant and to Mortgagee, all insurance or condemnation proceeds to which Tenant may be entitled hereunder, for purposes of restoration of the Property. 2.8 Owner, within 10 days afte~l:!_~i!!.en request by Tena.nt. or.. Mortgagee, shall fumis1Ja~writteii-sTiileniei1-r,-oiily acknowledged, that the Lease is in full force and effect and that Tenant is not in default pursuant to the Lease. If there is a default, the statement shall specify the nature thereof claimed by Owner. 2.9 Owner shall notify Mortgagee if Tenant fails to exercise any extension or renewal option pursuant to the Lease. Mortgagee (provided that Tenant's indebtedness to Mortgagee has not been fully paid) may exercise any such option on Tenant's behalf, within 10 business days after receipt of such notice. SECTION 3. AGREEMENT OF TENANT. Tenant hereby agrees to all of the terms, covenants and conditions set forth in Section 2 above. f) SECTION 4. MISCELLANEOUS. 4.1 Any notice required or given hereunder shaH be in writing and shall be delivered either by personal delivery, delivery by courier service, or by deposit with the United States Posta) Service or any official successor thereto, certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate party at the address set forth below. Such notice shall be deemed delivered at the time of personal delivery or, if mailed, when it is deposited as provided above. Rejection or other refusal by the addressee to accept the notice shall be deemed to be receipt of the notice on the third day after the date postmarked. 4.2 This Agreement and the Lease contains aU the tenns. promises, covenants, conditions and representations made or entered into by and between the parties hereto relative to the subject matter hereof and no modification hereof shall be valid or binding unless in writing and executed with the formalities hereof. 4.3 If any tenn, covenant. condition or provision of this Agreement shall be held to any extent to be invalid or unenforceable under applicable law, the remaining tenns shall not be affected thereby, but shall remain in full force and effect. 4.4 This Agreement shalI be construed under the Jaws of the State of Florida. The venue of any action or suit brought in connection herewith shall be in Monroe County, Florida. .,' H70172\ :1 -3- Doc. 1&35227 Bk. 2283 Pg. 989 r- 4.5 No modification, amendment or renewal of the Mortgage shall affect the validity of this Agreement. This Agreement shall he deemed to be terminated and of no further force upon the recordation of a satisfaction of the Mortgage in the Public Records of Monroe County, Horida. 4.6 This Agreement shall he binding upon and inure to the benefit of the parties hereto and their successors and assigns. 4.7 Any party failing to comply with the terms of this Agreement and any non-prevailing party in any litigation hereunder will pay all expenses, including _______________J~asonableattome)l~ fees,.-paralegal, legal- assistant;- 3mrsimita::t fees and costs, me luding - - ----- those incurred on the appellate level, incurred by any other party to this Agreement as a result of such failure. Dated as set forth below. 'J WITNESSES: fi~ fL~ eLl Address: t ') (~'-I- "r.L - ~_ ~ ). };k _ ~ . :Pla. I ~ 'lL"}~ Pnnt Name! \ t)c.' I C.L ~. k: f/ ~ M",,/ County C ~'1"l~ ~!/f- Print: Mario Di Gennaro As its: Mayor Date: March 20. 2007 "Owner" Overseas Redevelopment Company, LLC, a Florida limited liability company ~ By: H- Try, LLC, a Horida limited liability company, as its Manager ~ G. Oropeza. as Managing Member ~~ Date: 3- ~)'-o 1 Address: 3158 Northside Drive Kev West. FL 33040 "Tenant" ,~it;i 1\..1,' ,,-":'-., DoclI 1635227 SkI 2283 p._ 990 ~ ~VP Date: 3 - 3D -€J 7 Address: 1010 Kennedv Drive. Suitel00 Print Name: Sheryl A Berman Kev West. FL 33040 ~~ ....-.....-_-- --- ----------- -------------------- ------------------------"Mortgagee" STATE OF FLORIDA COUNTY OF f} ,it (0 v' CL.-- -~ . " The foregoing instrument was acknowledged before me this ~~ G) day of , I -" -,' " r ) , ) 1 ~ J) ) ~ I.- ' .,t;' 'j , 2007, by ,I,;U--,(: L I ~:7i.flnuT':", , as the ',,,(It.f . of \1onroe County. J /~ (, J; "';--IJo:Ji<7_. _ ,l-~l(~6.h'-n"L Print Name n' rO-_t,.t1(.......J fl {)"1 Notary Public My Commission EXPires:~Zt(,rCl Personally Known ~R) Produced Identification _ "- Type of identification produced 1I":.li~N"" TAMARA LUNDSTROM ~~ :'\ NoIIfr PubIlc . SIIII 01 FbIdI b . j M, CcImlUssIu.I er,Rsob 4. 2CIlIt -~ ~ Conwnlulon' DO 441M2 ..9:'..','(. BondIId NIIIDnII .-... .~.. (;> STATE OF FLORIDA COL'l\TY OF Doc. 1635227 8ka 2283 Pia 991 T~ foregoing instrument was acknowledged before ff~ '. , 2007, by Scott G. Oropeza. as th LLC. a Florida limited liability company, as the Manage Company, LLC, a Florida limited liability company, on behalf '1o-~ this otL day of . g Member ~f H-Try, erseas Rede~lopn1ent . \ COJ les. o Publ c --- - ----------------------------------- . t-Narne:--~------- ------------ yC S' .-r . 11TH II. PEU/CIfIt Personal I y Known .!:::::::' (OR) Produced Identilic':"n . . _ __ . _"_ Type of identification produced -~. ~EIiIIhI"'H ...... -::==:.. STATE 0"'- FLORIDA COUNTY OF MONROE ~e foregoin&.... instru~ni!as acknowledged before me this ,3l) day of ~r; .2007,by~}e., nea. ,asthe~ , of Branch Banking and Trust Company, a North Carol' ing corporation, on behalf of the bank. /'~~ :;? - - -~ - ~ -~ -- - nnt Notary Public My Commission Expires: Personally Known """"""'-(OR) Produced Identification_ Type of identification produced (MJP/jsmlI3970-53) r> " J Doc. 163!5227 Ski 2283 PgI 992 EXHIBIT "A" On the Island kno....n as Stock Island and being block 38, containing 20 lots, according to GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in Plat Book 1. Page 55, Monroe County, Rorida records. ALSO That portion of First Avenue lying and being between Block 38 and 39, GEORGE L. McDO:--IALD'S Plat of a part of Stock Island recorded in disclaimed by Resolution No. 33-1973, Board of County Commissioners, recorded in Official Records Book 537, Page 937, oftbe Public Records of Monroe County, Florida. 0.., '."1 ., , 1'I0NROE COUNTY OFFICIAL RECORDS ----...... \ .... 7 14/13/2187 11:48Aft Doell 183728 .......d i Off icial Recarela of Fileel & Recor_ ~ L KOLHAGE I1ONROE COUNTY UI'lnn I . This Instrument Prepared By: Malcolm J. Pitchford, Esquire Abel, Band, Russell, CoDier, Pitchford & Gordon, Chartered P.O. Box 49948 Sarasota, FL 34230-6948 2N'7 11 ..aM 14/131 BLE TRX 'CL' PW :~=& DOC STMP' CL; PU $2,164.41 $5..13.. DodI 1831287 aka 2286 P" 1178 ---.---. -----.- --.----.----- ---- ----- --.-- -_._'_._'---'--TOIS-iNSTRUMENT IS BEING RE-RECORDED TO REFLECT mE CORRECf PRINCIPAL AMOUNT OF THE FUTURE ADVANCE NOTE REFERENCED HEREIN. DOCUMENTARY STAMP TAX IN THE ADDITIONAL AMOUNT OF S5~013.05 AND INTANGIBLE TAX IN THE ADDITIONAL AMOUNT OF $1,864.41 ARE BEING PAID CONTEMPORANEOUSLY WITH THE RECORDA nON OF mIS CORRECTIVE INSTRUMENT. DOCUMENTARY STAMP TAX AND INTANGIBLE TAX ON THE FULL AMOUNT OF THE REMAINING SECURED INDEBTEDNESS HAS BEEN PREVIOUSLY PAID IN FULL F-) ...........~...J CORRECTlVE MODIFICATION AND REST^ TEl\jENT OF MORTGAGE AND SECURITY AGREEMENT AND WAN DOCUMENTS (SUBSTITUTION OF LEASEHOLD IN LIEU OF fEE) This Corrective Modification and Restatement of Mortgage and Security Agreement and Loan Documents is made this /~-H... day of April, 2007, by and between Overseas Redevelopment Company, LLC, a Florida limited liability company ("Mortgagor"), and Branch Banking and Trust Company, a North Carolina banking corporation ("Mortgagee"), the address of which is 1010 Kennedy Drive, Suite 100, Key West, FL 33040. WITNESSEm: WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of $7,500,000.00 (the "Loan") together with interest thereon. as evidenced by (a) that certain commercial promissory note dated June 30, 2005 in the original principal amount of $6,500,000.00 (which said promissory note has an outstanding principal balance, as of the date hereof, of $5,067,797.36) and (b) that certain future advance commercial promissory note dated of even date herewith in the original principal amount of $2,432,202.64, executed by Mortgagor and delivered to Mortgagee (hereinafter collectively referred to as the "Notes"), which by reference is made a part hereof to the same extent as though set out in full herein; WHEREAS, in order to secure the indebtedness evidenced by the Notes, the Mortgagor executed and delivered to Mortgagee a Mortgage and Security Agreement dated the 30th day of June, 2005, which said Mortgage and Security Agreement was recorded in Official Records Book 2130, Page 1330, et seq. of the Public Records of Monroe County, Florida on July 7,2005 (the "Fee Mortgage"); and 811I022v.1 \,; DaaII 1137287 .. 22. p.. 1171 WHEREAS, Mortgagor has heretofore or herewith executed and delivered to Mortgagee certain other documents, instruments or agreements evidencing andlor securing the Loan, including, but not limited to, a Loan Agreement (the "Loan Agreement") dated as of June 30, 2005 (said Loan Agreem@t and all other such additional documents, instruments or agreements may hereafter be collectively referred to as the "Loan Documents"); and WHEREAS, Mortgagor has, of even date herewith, sold, transferred and conveyed the real property described in the Fee Mortgage to Monroe County, and has, contemporaneously therewith, entered into a long term lease dated July 19, 2006 between Mortgagor as "Lessee" _2P1~__ - ________Monroe..County- ~besso?_pertaining_to--tl1e1easeanademise oftlie rea'-property described in the aforesaid Fee Mortgage. The long term lease referred to herein shall be hereafter referred to as the "Lease" and the interests of Mortgagor thereunder shall be herein referred to collectively as the "Leasehold Estate;" and WHEREAS, Mortgagor has requested that the Mortgagee accept a substitution of the Leasehold Estate held by Mortgagor in lieu of the Fee Estate pledged as security for the Notes as evidenced by the Fee Mortgage and Mortgagee is agreeable thereto. 1~I,'jf'l {; - .'-" NOW, THEREFORE, to continue to secure the performance by Borrower of all covenants and conditions in the Notes and to secure the performance by Mortgagor of all covenants and conditions in this Leasehold Mortgage and in all other instruments securing the Notes, and in order to charge the properties, interests and rights hereinafter described with such payment and perfonnance and to secure additional advances, renewals, extensions and modifications thereof and for and in consideration of the sum of Ten and No/tOO Dollars ($] 0.00), and other good and valuable considerations, receipt whereof is hereby acknowledged, does hereby grant, bargain, sell, alien. remise, release, convey, confirm and mortgage unto the said Mortgagee: All of Mortgagor's right, title and interest in, to and under that unrecorded Long-Term Ground Lease Agreement dated as of July ] 9, 2006, between Mortgagor, as "Lessee," and Morrroe County as 'cLessor," pertaining to the lease and demise of that certain property located in Monroe County, Florida, described in Exhibit "A" attached hereto (the "Real Property,t). TOGETHER with the following described property: (A) All rights and benefits of whatsoever aature derived or to be derived by the Mortgagor under or by virtue of the Lease of any POrtion of the Real Propertyt including, without limitation, the right to exercise options, to renew the Lease or, if applicable, to purchase the fee interest in and to the said Real Property, give consents, receive monies, terminate, cance~ modify, change, supplement, alter or amend the Lease, and any such termination, cancellation, modification, change, supplement, alteration or amendment of the Lease without the prior written consent thereto by the Mortgagee shall be void and of no force and effect. So long as there is no default or event of defauh under the Notes, the Lease, this Mortgage or any other 2 881022\1.1 l ,~, _ ,f Dacal 1137287 .. 228& 'II 1188 -~' document, instrument or agreement executed and delivered in connection therewith, the Mortgagee shall no right to terminate, canceL modify, change, supplement, alter or amend the Lease; (B) All of the Mortgagor's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the United States Bankruptcy Code (the "Bankruptcy Code"), I ) USC 365(h), including, without limitation, all of the Mortgagor's rights to remain in possession of the Real Property. (C) AU subleases of the Real Property or any part thereof now or hereafter entered intq______ b:L!tt~__Mortgagor.- and all rights- and- benefits-- derived-or to be derived oy-tJie Mortgagor ------------th-erefrom; (D) All rents, income, issues and profits of the fee and/or Leasehold Estate in the Real Property encumbered hereby; and ,3", I ""0" \. .~. -- (E) All right, title and interest of the Mortgagor in and to aU and singular the tenements, hereditaments, leasehold or fee estate at any time belonging or in any wise appertaining thereto, and all right, title and interest of the Mortgagor in and to any streets, ways, alleys, gores or strips of land adjoining the Real Property or any part thereof; (F) All right, title and interest of Mortgagor in and to all buildings, structures and other improvements now or hereafter located on, above or below the surface of the Real Property, or any part or parcel thereof; (0) All rights, title and interest of Mortgagor in and to tbe minerals, soil, flowers, shrubs, crops, trees, timber and other emblements now or hereafter on the Real Property or under or above the same or any part of parcel thereof; and (H) All and singular tenements, hereditaments, easements, riparian and littoral rights, and appurtenances thereunto belonging or in any wise appertaining, whether now owned or bereafter acquired by Mortgagor, and including all parking easements or agreements and rights of ingress and egress to and from any adjoining or other property benefitting the Real Property (whether such rights now exist or subsequently arise) together with the reversion or reversio~ remainder or remainders, rents issues and profits thereof; and also all the estate, right, title, interest, homestead, dower, right of dower, elective share, separate estate property, possession, claim and demand whatsoever of Mortgagor of, in and to the same and of. in and to every part and parcel thereof; (I) All machinery, apparatus, equipment, fittings, fixtures, whether actually or constructively attached to said property and including all trade, domestic and ornamental fixtures, and articles of personal property of every kind and nature whatsoever (hereinafter collectively caJ/ed "Equipment"), now or hereafter located in, upon or under the Rea) Property or any part thereof and used or usable in connection with any present or future operation of the Real Property and now owned or hereafter acquired by Mortgagor; together with aU additions and 3 II 1022v. I ......... \ --;" () .....~ :Y'" Doell 1837287 ... 2281 'II 1181 accessions thereto and replacements thereof (Mortgagor hereby agreeing with respect to all additions and replacements to execute and deliver from time to time such further instruments as may be requested by Mortgagee to confinn the conveyance, transfer and assignment of the foregoing) ; (J) All of the water, sanitary and storm sewer systems now or hereafter owned by the Mortgagor which are now or hereafter located by, over, and upon the Real Property hereinbefore described, or any part and parcel thereof, and which water system includes all water mains, service laterals, hydrants, valves and appurtenances, and which sewer system includes all sanitary sewer lines, including mains, laterals, manholes and appurtenances; ______.___ .-.-------.----.- -------(K) A"pavj~g-fur streets, roads, walkways or entrance ways now or hereafter owned by Mortgagor and which are now or hereafter located on the Real Property hereinbefore described or any part or parcel thereof; (L) AJI rents, royalties, issues, profits, revenue, income and other benefits from the property encumbered by this instrument to be applied against the indebtedness and other sums secured hereby, provided, however, that permission is hereby given to Mortgagor, so long as no default has occurred hereunder, to collect, receive, take, use and enjoy such rents, royalties, issues, profits, revenue, income and other benefits as they become due and payable but not in advance thereof. The foregoing assignment shall be fuJJy operative without any further action on the part of either party and specifically Mortgagee shall be entitled, at its option upon the occurrence of a default thereunder, to all rents, royalties, issues, profits, revenue, income and other benefits from the property encumbered by this instrument whether or not Mortgagee takes possession of the property. Upon any such default hereunder, the pennission hereby given to Mortgagor to collect such rents, royalties, issues, profits, revenue, income and other benefits from the encumbered property shall terminate and such permission shall Dot be reinstated upon a cure of the default without Mortgagee's specific consent. The exercise of any rights under this paragraph by Mortgagee or the application of any such rents. royalties, issues, profits, revenue, income or other benefits to the indebtedness and other sums secured hereby, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant hereto or any such notice, but shaH be cumulative of all other rights and remedies; This instrument constitutes an absolute and present assignment of the rents, royalties, issues, profits, revenue, income and other benefits from the Real Property, subject, however, to the condition permission given to Mortgagor to collect, receive, take, use and enjoy the same as provided hereinabove; provided, further, that the existence or exercise of such right ofMoltgagor shall not operate to subordinate this assignment to any subsequent assignment, in whole or in part, by Mortgagor, and any such subsequent assignment by Mortgagor shall be subject to the rights of Mortgagee hereunder; (M) All right, title and interest of Mortgagor in and to any and all subleases now or hereafter on or affecting the propeny encumbered by this instrument together with all security therefore and all monies payable thereunder, subject, however, to the conditional permission hereinabove given to Mortgagor to collect the rentals under any such lease. The foregoing 4 1II0000.l \~ .....-;~ .'-",,!,\ .;.\ ~~.'\.... DocIe 1837287 Ilea 2288 p.. 2182 assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations or duties of Mortgagor provided in any such lease, and Mortgagor agrees to fully perform all obligations of the lessor under all such leases. Mortgagee shall have the right, at any time and from time to time, to notify any Jessee of the rights of Mortgagee as provided by this paragraph. From time to time, upon request of Mortgagee, Mortgagor shall specificaJIy assign to Mortgagee as additional security hereunder. by an instrument in writing in such form as may be approved by Mortgagee aU right, title and interest of Mortgagor in and to any and all leases now or hereafter on or affecting the Real Property, together with all security therefore and aU monies payable thereunder, subject to the conditional permission hereinabove given to Mortgagor to collect the rentals under any such lease. Mortgagor shall also execute and_ de!!ver _~~_ M~ng~ee_an)L______ notification,tinancing statement or-other dOcument reasona6Jyfeqwred by Mortgagee to perfect the foregoing assignment as to any such lease; (N) All awards or payments, including interest thereon. and the right to receive the same, as a result of (i) the exercise of the right of imminent domain. or (ii) any other injury to, taking of: or decrease in the value of the property encumbered by this instrument to the e~ent of all amounts which may be secured by this Mortgage at the date of receipt of any such award or payment by Mortgagee and of the reasonable attorneys) fees. costs and disbursements incurred by Mortgagee in connection with the collection of such award or payment; (0) AU of the right, title and interest of the Mortgagor in and to all unearned premiums accrued, accruing or to accrue under any and all insurance policies now or hereafter provided pursuant to the terms of this Mortgage, and all proceeds or sums payable for the loss of or damage to (a) any property encumbered hereby, or (b) rentSy revenues. income, profits or proceeds from leases) franchises, concessions or license of or on any part of the property encumbered by this instrument. (P) All rights of the Mortgagor to any contracts relating to the Real Property such as. but not limited to, all contracts with any general contractors with regard to improvements constructed or to be constructed on the Real Property. engineer contracts, architects contracts, marketing and management contracts. and to any engineering. architectural and other plans, drawings and specifications in connection therewith. (Q) All accounts receivable and general intangibles rights of the Mortgagor regarding the Real Property such as., but not limited to, all impact fee credits, sewer and water fee credits. sewer and water rights, and development rights. including, but not limited to (i) rights regarding concurrency and the right to develop said Real Property; aDd (ii) 32 transferable RooO rights and 49 affordable ROGO rights appurtenant to, or benefiting the Real Property. (R) An of Mortgagor's rights under any payment bonds and/or performance bonds regarding any development and/or construction on the Real Property. (5) All of Mortgagor's rights in any construction and other materials stored on the Real Property or elsewhere. 5 81C1022v.1 Doc. 1837287 .. 2288 PtI 1183 ~ ( )) The Real Property and everything referred to in Paragraphs (A) through (S) hereof and any additional property hereafter acquired by Mortgagor and subject to the lien of this Mortgage or any part of these properties is herein referred to as the "Mortgaged Property". CONDITIONED, HOWEVER, that if the maker of the Notes hereafter described shall payor cause to be paid to Mortgagee, at its office and principal place of business in Key West, Florida, or at such other place which may hereafter be designated by Mortgagee, its or their successors or assigns, with interest, the principal sum of $7,500,000.00 as stated in the Notes executed of even date herewith, as well as aU future advances and all other sums. indebtedness, obligations and liabilities for which this instrument is security (the "Secured Indebtedness"), and __________ if th~_.M(mgagor shall also-- tUlly- perform-- all the-covenants, conditions iOOTerms oTihis- --'--'---Mortgage, then these presents shall be void, otherwise to remain in full force and effect, REPRESENTATIONS AND WARRANTIES: Q (I) The Mortgagor represents and warrants to the Mortgagee that the Mortgagor has good and marketable title to the Leasehold Estate in the Real Property (as identified herein) and aJJ improvements located or to be located thereon and has all right, title and interest in all other property constituting a part of the Mortgaged Property, in each case free and clear of all liens and encumbrances and that the Mortgagor has the right and authority to convey and encumber its interests in the Mortgaged Property, without violating or causing a default under the Lease or under any other agreement, instrument or document affecting the Real Property or any portion thereof. This Mortgage is a valjd and enforceable first lien on the Mortgagor's Leasehold Estate in the Mortgaged Property and the Mortgagee shall, subject to the Mortgagor's right of possession prior to an Event of Default,. quietly enjoy and possess the Mortgaged Property. The Mortgagor shall preserve such title as it warrants herein and the validity and priority of the lien _,- hereof and shalJ forever Warrant and defend the same to the Mortgagee against the claims of all persons. (2) The Mortgagor represents and warrants that the Lease is a valid and subsisting lease of the Real Property for the term therein set forth (which said term is initially for a period of thirty-three (33) years for two (2) consecutive, automatic renewal periods of thirty-three (33) years each thereafter) and are in full force and effect in accordance with the terms thereof and has not been modified and there are no existing defaults by the Lessor or by the Mortgagor thereunder; and the Mortgagor is the owner and holder of the L~ and has the right and authority to mongage the same to the Mortgagee hereunder without the need to obtain the consent of any person, including the Lessor or, if needed, such consent has been obtained. (3) The Mortgagor warrants and represents that the Mortgagor has complied, and shall hereafter comply, with all valid laws, rules, ordinances and regulations of the federal, state and local government, and all agencies and subdivisions thereof which laws, rules, ordinances, and regulations apply or relate to the Mortgaged Property, the development, construction and improvements existing or contemplated thereon or as a part thereof, and the use, lease, sale or other disposition of the Mortgaged Property or portion thereof. or the improvements now or hereafter located thereon or a part thereof, including but not Jimited to aJI such laws, rules, 6 881022v.1 Doc. 1837287 .. 2281 p.. 1184 -~-, ) ordinances, and regulations regarding land use. zoning. building, subdivision, environment, OSHA. ADA. pollution and sales practices. . COVENANTS: I. Compliance with Lease. The Mortgagor will at aU times fully perform and comply with all of the agreements, covenants, terms and conditions imposed upon OT assumed by the Mortgagor as tenant under the Lease and, if Mortgagor shall fail to do so, the Mortgagee may (but shall not be obligated to) take any action the Mortgagee deems necessary or desirable to prevent or to cure any defauk by the Mortgagor in the performance of or compliance with any ~f____ ______ __the MQJtgagoCs.-COvenants ()I: obligations under- tfte-Lease-: --upon receIpt tJy tfieYortgagee of ------- any notice of default under the Lease, from the Lessor (which such term shall be deemed to collectively refer to the Lessor(s) identified in the Lease and to their successors and/or assigns) or from the Mortgagor, as aforesaid, the Mortgagee may rely thereon and take any action to cure such defauh even though the existence or nature of such default shall be questioned or denied by the Mortgagor or by any party on behalf of the Mortgagor. The Mongagor hereby expressly grants to the Mortgagee and agrees that the Mortgagee shall have the absolute and immediate Tight to enter in and upon the Real Property or any pan thereof to such extent and as often as the Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by the Mortgagor or to take any requested or required action or to inspect the Real Property. The Mortgagee may pay and expend such sums of money as the Mortgagee in its sole discretion deems necessary for any such purpose, and the Mortgagor hereby agrees to pay to the Mortgagee, immediately and without demand, all such sums so paid and expended by the Mortgagee, together with itUerest thereon from the date of each such payment at the Default Rate (as defined in the Notes). All sums so paid and expended by the Mongagee, and the interest thereon. shall be added to and be secured by the lien of this Mortgage. ~ ~} Mortgagor further agrees that it shall, contemporaneously with the execution of this Mortgage, deposit with Mortgagee a sum equal to one (J) year's yearly rental amounts required to be paid pursuant to the provisions of the Lease, as determined by Mortgagee (the "Rent Reserve Account"). Mortgagee shall have the right, but not the obligation, to disburse funds from the Rent Reserve Account in payment of the monthly rental payments required to be paid pursuant to the Lease, as the same shall become due. Upon demand by Mortgagee, Mortgagor shall deliver to Mortgagee such additional monies as are necessary to make up any deficiencies in the amounts which may be necessary to enable Mortgagee to pay such rental payments when due. Commencing on the first day of the I I th month after the date hereof, and continuing on the same day of each one (1) year period during the term of the Notes, the Mortgagee shaD deposit into the Rent Reserve Account a sum sufficient to pay the rental payments required to be paid pursuant to the provisions of the Lease for a one (1) year period, as detennined by the Mortgagee_ Notwithstanding anything herein to the contrary, Mortgagor shalJ at all times be primarily responsible for the payment of rental payments under the said Lease and the failure of the Mortgagee to disburse funds from the Rent Reserve Account in payment of the monthly rental payments under the Lease shall in no wise impose any liability upon the Mortgagee and the Mortgagor does hereby specifically release and discharge the Mortgagee, its successors and assigns, agents, employees, attorneys. officers and directors, from any and all liability, claims, 7 XII J022v.I Doell 1637287 IIkI 228& p.. 1185 '""" ,,') demands or causes of action whatsoever arising out of or in connection with Mortgagee's failure to disburse rent reserve funds in payment of rental payments under the Lease. 2. No Merger. So long as.any portion of the Secured Indebtedness sbaU remain unpaid, and unless the Mortgagee shalf otherwise consent, the fee title to the Real Propeny and the improvements thereon and the Mortgagor's Leasehold Estate shall not merge, but shall always be kept separate and distinct, notwithstanding the union of such estates in the Mortgagor or in any other person, by purchase, operation of law or otherwise. If the Mortgagee shall acquire the fee title to the Real Property and the Mortgagor's Leasehold Estate under the Lease by foreclosure of this Mortgage or otherwise, such estates shall not merge as a result of such acquisition and shall remain sep..arate.. and distinct for -aU- purposes- after- such-- acquisitiorr"untess -ana urifil-tlie Mortgagee shall elect to merge such estates by a writing evidencing such election. If the Mortgagor's Leasehold Estate and fee estate merge at any time before payment in full of the Secured Indebtedne~ the lien of this Mortgage shall immediately and without the need for further documentation attach, extend to, cover and be a lien upon such fee title or other greater estate. The Mortgagor upon request wilJ confmn same by documentation satisfactory to the Mortgagee. 3. No Lease Termination. The Mortgagor will not swrender the Leasehold Estate, nor terminate or cancel the Lease, and win not, without the eKpress written consent of the Mortgagee, modifY, change, supplement, alter or amend the Lease either orally or in writing. ~.~ 4. Mortgaae Obligation$, No release or forbearance of any of the Mortgagor's obligations under the Lease, pursuant to the Lease or otherwise, shall release the Mortgagor from any of its obligations under this Mortgage, including its obligations with respect to the payment of rent as provided for in the Lease and the performance of all of the terms, provisions, covenants, conditions and agreements contained in the Lease, to be kept, performed and complied with by the Mortgagor therein. 5. Lease Notices. The Mortgagor shaJJ give prompt notice to the Mortgagee of the receipt by the Mortgagor of (i) any notice of the intention of the Lessor or the holder of any mortgage of or other interest in the fee of the Real Propeny (collectively, a "Superior Instrument") to exercise any remedy under the Lease or a Superior Instrument, or (ii) any notice, summons or legal process which may affect the Lease or which may affect either the Mortgagor's or the Mortgagee's interests in or possession of the Real Property or any part thereo~ or which relates to any payment, act or thins. which is required by this Mortgage, the Lease, or a Superior Instrument to be paid, done or perfonned. The Mortgagor acknowledges that an Event of Default by Lessor under a Superior Instrument shall, at the Mortgagee's option, constitute an Event of Default hereunder. The Mortgagor shall not consent to the subordination of the Lease to any Superior Instrument without the prior written consent of the Mortgagee. The Mortgagor will furnish to the Mortgagee, promptly upon request, any and all information concerning the performance by the Mortgagor of its obligations under the Lease and any and all information which the Mortgagor has concerning a Superior Instrument, and shall permit the Mortgagee or its agents at all reasonable times to make investigation or examination concerning such perfonnance and information. The Mortgagor will take all reasonable steps, including legal 8 881022\'.1 '\ ( ,,'I Doell 1837287 ... 22. 'II 1188 proceedings, to protect its own right, title and interest in any of the Real Property and to enable the Mortgagee to defend its interest therein. 6. Estoppel. The Mortgagor shall, within ten (J 0) days of request by the Mortgagee, obtain from tbe Lessor such certificates of estoppel with respect to compliance by the Mortgagor with the terms of the Lease as may be requested by the Mortgagee. 7. Lease Renewal. The Mortgagor shaD exercise each individual option, if any, to extend or renew the term of the Lease upon demand by the Mortgagee made at any time within one (I) year of the last day upon which any such option may be exercised, and the Mortgagor hereb.Y~~P!~~~JYJllJJhorizes and appoints the--MoRgagee as- the- Mortgagor's- atrorney-in-faCt to ------ ------- -------- --exercise, either jointly or individually, any such option in the name of and upon behalf of the Mortgagor, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest. '~ L:.;.!; 8. Bankruptcy. The Mortgagor shall not, without the Mortgagee's prior written consent, eject to treat the Lease as terminated under Subsection 36S(h)(a) of the Bankruptcy Code and any such election made without the Mortgagee's prior written consent shall be void. If there shall be tiled by or against the Mortgagor a petition under the Bankruptcy Code and the Mortgagor, as lessee under the Lease, shall determine to reject the Lease (or either of them) pursuant to Section 365(a) of the Bankruptcy Code, the Mortgagor shall give the Mortgagee not less than twenty (20) days prior notice of the date on which the Mortgagor shan apply to the Bankruptcy Court for authority to reject the Lease (or either of them). The Mortgagee shaU have the right, but not the obligation, to serve upon the Mortgagor within such twenty (20) day period a notice stating that (i) the Mortgagee demands that the Mortgagor assume and assign the Lease to the Mortgagee pursuant to Section 365 of the Bankruptcy Code; (ii) the Mortgagee may, in its discretion and if deemed prudent by the Mortgagee, cure or provide adequate assurance of prompt cure of aU defauJts and provide adequate assurance of future performance under the Lease. If the Mortgagee serves upon the Mortgagor the notice described in the preceding sentence, the Mortgagor shall not seek to reject the Lease (or either of them) and shall comply with the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the notice shall have been given; and (ii) without limitation, if any action, proceeding, motion or notice shall be commenced or filed in respect to the Lease of the Mortgaged Property in connection with any case under the Bankruptcy Code the Mortgagee shall have the option, to the exclusion of the Mortgagor, exercisable upon notice from the Mortgagee to the Mortgagor, to conduct and control any such litigation with counsel of the Mortgagee's choice. The Mortgagee may proceed in its own name or in the name of the Mortgagor in connection with any such litigation, and the Mortgagor agrees to execute any and all pow~ authorizations, consents and other documents required by the Mortgagee in connection therewith. The Mortgagor shall, upon demand, pay to the Mongagee all costs and expenses (including attorneys' fees) paid or incurred by the Mortgagee in connection with the prosecution or conduct of any such proceedings. Any such costs or expenses not paid by the Mortgagor as aforesaid shall be secured by the lien of this mortgage and shall be added to the principal amount of the indebtedness secured hereby. The Mortgagor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of the Lease or with respect to the Mortgagor'i fee ownership 9 /all022v_1 Dodt 1137281 Ski 2211 '.. 1187 (. {i~ interest in any portion of the Mortgage Property in any such case under the Bankruptcy Code without the prior written consent of the Mortgagee. 9. No Pledsze or Encumbrance. The Mortgagor shaH not (a) execute an assignment of pledge of leases, rents and profit~ with respect to the Mortgaged Property other than in favor of the Mortgagee; (b) accept any prepayment of an instaIlment of any rents with respect to the Mortgaged Property prior to the due date of such installment; or (e) enter into or amend any of the terms of any of the Lease without the Mortgagee's prior written consent. Any and aU Lease or subleases of all or any part of the Real Property shall be subject in all respects to the Mortgagee's prior written consent, shall be subordinated to this Mortgage and to the Mortgagee's rights and, together_~th _@ID'__Ml~all re~issues or-profits -relating- thereto-,-shaltbe--wig-nect at-------------. ----------ilieiimeofexecution to the Mortgagee as additional collateral security for the indebtedness secured hereby, all in such form, substance and detail as is satisfactory to the Mortgagee in its sole discretion. 10. Compliance. Mortgagor shall do any and all acts and to execute any and all documents which in the reasonable opinion of the Mortgagee may be necessary or desirable to preseIVe any rights of the Mortgagor in. to or under the Lease, or any occupancy lease, license or concession, including, without limitation, the right (but not the obligation) to cure any defaults of the Mortgagor as tenant under the Lease. preserve any rights of the Mortgagor whatsoever in respect of any part of the Real Property or to execute an extension or renewal of the Lease as hereinafter set forth. l )., \ ; ,~. 11. legal Requirements. Promptly comply with and conform to all present and future laws, statutes, codes, ordinances, orders and regulations and all covenants, restrictions and conditions which may be applicable to the Mortgagor or to any of the Mortgaged Property, including but not limited to the Lease (the "Legal Requirements"). Within five (5) days after learning of any default by any party under the Lease or under any subleases of any portion of the Mortgaged Property, the Mortgagor shall notify the Mortgagee of such default. 12. Impositiogs, Before interest or penalties are due thereon and otherwise when due, the Mortgagor shan pay all taxes of every kind and nature, aU rents and other amounts due from the Mortgagor by virtue of its fee ownership of any Portion of the Mortgaged Property or under the Lease, an charges for any easement or agreement maintained for the benefit of any of the Mortgaged Property, all general and special assessments (incruding any condominium or planned unit development assessments, if any), levies, permits, inspection and Jicense fees, all water and sewer rents and charges, and aU other charges and liens, whether of a like or different nature, imposed upon or assessed against the Mortgagor of any of the Mortgaged Property (the "Impositions"). Within thirty (30) days after the payment of any Imposition, the Mortgagor shall deliver to the Mortgagee evidence acceptable to the Mortgagee's taking title to the Mortgaged Property through foreclosure, deed-in-lieu or otherwise. 13. Sublease Provisions. The Mortgagor covenants that it will cause each sublease or license granted in respect to the Mortgaged Property to contain a clause whereby the sublessee or licensee thereunder agrees that upon an Event of Default occurring hereunder and upon demand 10 18 I 022v.I / --..., I ',;', Doc:Ir 1837287 Ilea 2281 'II 1188 by the Mortgagee it will attorn to or become a tenant or licensee of the Mortgagee, or of any purchaser from the Mortgagee in the event of the sale of the Mortgaged Property pUnuant to foreclosure proceedings for the then unexpired balance of the term of, and upon all the tenns and conditions of, such sublease or license, 14, Advance Payments. The Mortgagor will not without the consent of the Mortgagee accept or require payment of any of the rents or other monies payable to the Mortgagor under any sublease or license granted in respect of the Mortgaged Property more than one (1) month in advance of the due date for payment thereof, or (excepting payment of arrears) in an amount referable to a period exceeding one (I) month, provided that the MO!!B~ m@Y-____ _______________requir.e prepayment of-such- rent- or other monies by--Wayorsecurity 'lOr peffurmance of the sublessee's or licensee's covenants under a sublease or license if the amount of such prepayment is promptly paid over to the Mortgagee to be held by the Mortgagee as part of the Mortgaged Property. ~ ~.,). ( "'J . ~ _OJ.''' 15. P~ment of Monies. That the said Mortgagor shall pay aU and singular the principal and interest and other sums of money payable according to tbe tenor of said Notes and this Mortgage, and of any other Secured Indebtedness according to its terms. . 16 . Taxes and Assessments_ Mortgagor shall pay all the taxes, assessments, levies, Iiabilitiest obligations and encumbrances of every nature now on the Mortgaged Property or that hereafter may be imposed, levied or assessed upon this Mortgage or the Mortgaged Property or upon the indebtedness secured hereby. All such payments to be made when due and payable according to law before they become delinquent and before any interest attaches or any penalty is incurred. Insofar as any indebtedness is of record the same shall be promptly satisfied and evidence of such satisfaction shaJ1 be given to Mortgagee_ Mortgagee shall deposit with Mortgagee on the first day of each month, in addi~ion to making payments of principal and interest, until the Notes is fuIly paid, an amount equal to on~tvvelfth (1112) of the annual taxes and assessments, including but not limited to condominium and homeowner association assessments, payable with respect to the Mortgaged Property. Such deposits shall not be nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, and no interest sha1I be payable in respect thereof. Upon demand by Mongagee, Mortgagor shall deliver to Mortgagee such additional monies as are necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such taxes and assessments when due. In the event of default under any of the terms, covenants and conditions in the Notes, this Mortgage or any other instrument securing the Notes to be performed or observed by Mortgagor, Mortgagee may apply to the reduction of the sums secured hereby, in such manner as Mortgagee shall determine, any amount under this paragraph remaining to Mortgagor's credit, Mortgagor agrees that. contemporaneously with the execution of this Mortgage, Mortgagor shall deposit with Mortgagee a sum deemed by Mortgagee to be equal to two (2) months ad valorem real property taxes (based upon the most recent ad valorem real property tax bill issued for the Mortgaged Property) (the 'Tax Reserve"). The Mortgagee shall have the right to disburse funds from the Tax Reserve in payment of ad valorem real property taxes assessed against the Mortgaged Property as and when the same become due. Commencing on the first day of the eleventh (J I~ month after the date hereof, and continuing on the same day of each one (1) year period during 1I 1l8!022v.! (~\ -./ '.- -,Y o Doell 1137287 Bkl 228& PgI 1189 the term of the Notes, the Mortgagee shall continue to deposit a sum deemed by Mortgagee to be equal to two (2) months ad valorem real property taxes into the Tax Reserve. Notwithstanding anything herein to the contrary, Mortgagor shall at all times be primarily responsible for the payment of the ad valorem real property taxes under the said Lease and the fililure of the Mortgagee to disburse funds from the Tax Reserve in payment of the ad valorem real property taxes under the Lease shall in no wise impose any liability upon the Mortgagee and the Mortgagor does hereby specifically release and discharge the Mortgagee, its successors and assigns, agents, employees, attorneys, officers and directors, from any and aJl liability, claims, demands or causes of action whatsoever arising out of or in connection with Mortgagee's failure to disburse tax reserve funds in payment of ad valorem real property taxes under the Lease--'-___ .---- 17. Waste. That the Mortgagor will pennit, commit or suffer no waste, impairment or deterioration of said Mortgaged Property and will keep and maintain all improvements now or hereafter on the land in sound condition and good repair; land excavation, clearing and improvement related to subdividing the real property shall not be considered waste as provided herein. Should said Mortgagor fail to make such necessary repairs, then said Mortgagee may, at its option, make such repairs or remedy any waste, and any such sums expended by said Mortgagee shall be immediately due and payable and shall bear interest at the maximum legal rate and shall be secured by the lien hereof. 18. Insurance. Mortgagor sha]) keep the Mortgaged Property and the improvements now existing or hereafter erected on the Mortgaged Property insured as may be required from time to time by Mortgagee against loss by fire, other hazards and contingencies (including flood hazards and related OCcurrences in the event any portion oftbe Mortgaged Property is located in a flood hazard area as may be identified from time to time) in such amounts and for such periods as may be required by Mortgagee. Mortgagor shall pay promptly, when due, any premiums on such insurance. All insurance shall be carried with companies approved by Mortgagee and the policy and renewals thereof shall be held by Mortgagee and have attached thereto loss payable clauses in favor and in form acceptable to Mortgagee. In the event of loss, Mortgagor shall give immediate notice by mail to Mortgagee and Mortgagee may make proof of loss if not made promptly by Mortgagor. Each insurance company concerned is hereby authorized and directed to make payments for such loss directly to Mortgagee instead of either to Mortgagor or Mortgagor and Mortgagee jointly. Insurance proceeds or any part thereof may be applied. by Mortgagee at its option, after deducting therefrom all its expenses including attorney's fees, either to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damaged. Mortgagee is hereby authorized. at its option, to settle and compromise any claims, awards, damages, rights of action and proceeds, and any other payment or relief under any insurance policy. In the event offoreclosure of this Mortgage or other transfer of title to the Mortgaged Property in extinguishment of the indebtedness secured hereby, all right, title, and interest of Mortgagor in and to any insurance policies then in force shall pass to the purcha.c;er or grantee. Mortgagee shall deposit with Mortgagee on the first day of each month, in addition to making payments of principal and interest, until the Notes are fully paid. an amount equal to one- twelftb (1/12) of the yearly premiums for aU insurance. Such deposits shall not be, nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, and no interest shall be payable in respect thereof Upon demand by Mortgagee, Mortgagor shall deliver 12 1181022v.1 Doc. 1637287 BkI 2281 'II 1111 fie!bl~ i ,~ .'.~;~ "" ~ to Mortgagee such additionaJ monies as are necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such premiums when due. In the event of default under any of the tenos, covenants and conditions in the Notes, this Mortgage or any other instrument securing the Notes to be performed or observed by Mortgagor, Mortgagee may apply to the reduction of the sums secured hereby, in such manner as Mortgagee shall detennine, any amount under this paragraph remaining to Mortgagor's credit and any return premium received from cancellation of any insurance policy by Mortgagee upon foreclosure of this Mortgage. 19. Condemnation. If the Mortgaged Property or any p~ thereof shall be damaged or taken through condemnation (which term when used herein shall include any damage or taking by any.Kovemmental_auth2rit): oI-any .other authority authorized-by the-Iaws of the- State---------.-------- --------- of Florida or the United States of America to so damage or take and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness and other sums secured hereby shan, at the option of Mortgagee, become immediately due and payable. Mortgagee shafl be entitled to afl compensations, awards, damages, claims, rights of action and proceeds ot: or on account of any damage or taking through condemnation and is hereby authorized, at its option, to commence, appear in and prosecute, in its own or Mortgagor's name, any action or proceeding relating to any condemnation, and to settle Of compromise any claim in connection therewith. All such compensations, awards, damages, claims, rights of action and proceeds, and any other payments or relief. and the right thereto, are hereby assigned by Mortgagor to Mortgagee and Mortgagee after deducting therefrom aU its expenses including attorney's fees may release any monies so received by it without affecting the lien of this Mortgage or may apply the same in such manner as Mortgagee shall determine, to tile redUCtion of the sums secured hereby and to any prepayment charge provided ii1 the Notes, this Mortgage or any other instrument securing the Notes. Any balance of such monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute such further assignments of any compensations, awards, damages, claims, rights of action and proceeds as Mortgagee may require. (".~ ".-' / "'-"'" IT IS FURTHER AGREED that if any ofthe Mortgaged Property herein described is of a nature so that a security interest therein can be perfected under the Uniform Commercial Code, this instrument shall constitute a Security Agreement and Mortgagor agrees, if requested by Mortgagee, to join with the Mortgagee in the execution of any financing statements and to execute any other instruments that may be required for the perfection of any renewal of such security interest under the Uniform Commercial Code. In regard thereto, the Mortgagee shall have, as additional and cumulative rights and remedies, all of the rights and remedies provided in said Uniform Commercial Code. This Mortgage is also given as security for any and all othef sums, indebtedness, obligations and liabilities of any and every kind now or hereafter, during the term hereof, owing and to become due from the Mortgagor to the Mortgagee or to the holder of the Notes, or to the assignees thereof, howsoever created, incurred, evidenced, acquired or arising, whether under the Notes, this Mortgage, or any other instrument, obligations, contracts, or agreements or dealings of any and every kind now or hereafter existing or entered into between the Mongagor and the Mortgagee, or otherwise, as amended or modified or supplemented from time to time, and 13 UI022v.1 ~_..:/ Doca 1837287 INc. 2288 p.. 1181 .-;-..~ ! / whether direct, indirect, primary, secondary, fixed or contingent. and any and all renewals, modifications or extensions of any or all of the foregoing. [t is agreed that any additional sum or sums advanced from the then holder of the Notes secured hereby to or for the benefit of Mongagor. whether such advances are obligatory or are made at the option of Mortgagee, or otherwise, at any time within twenty (20) years from the date of this Mortgage, with interest thereon at the rate agreed upon at the time of each additional loan or advance. shall be equally secured with and have the same priority as the oriJinal indebtedness and be subject to all of the terms and provisions of this Mortgage, whether or not such additional loan or advance is evidenced by a promissory note of the Mortgagor and whether _ - O_~_JloJj9~ntified by a -recitaLthat-- it-i5--secured by- this Mortgage;-ptoviQeQ tliat the aggregate- ----- amount of principal outstanding and so secured at anyone time shall not exceed the sum of twice the race amount of the Notes referred to hereinabove, plus interest and disbursements made for the payment of taxes, levies or insurance on the property covered by this Mortgage with interest on such disbursements, and provided further that it is understood and agreed that this future advance provision shall not be construed to obligate the Mortgagee to make any such additional loans or advlIDces. Any reference hereafter to the Notes shall include any promissory note or other instrument evidencing such future advance. '~"" {J .,:. It is the intent hereof to secure payment of the aforesaid Notes and Secured Indebtedness whether the entire amount shall have been advanced to the Mongagor at the date hereof: or at a later date, and to secure any other amount or amounts that may be added to the mortgage indebtedness under the terms of this instrument, the entire Secured Indebtedness being equally secured with and having the same priority as any amounts advanced at the date hereof. 20. Financial ReqJ,1irements. Mortgagor shall furnish annual financial statements to the Mongagee during the term of the Notes, together with copies of its federal income tax returns, inclusive of all schedules thereto. All tax returns to be provided pursuant to the provisions hereof shan be furnished to Lender within thirty (30) days after filing of the same with the Internal Revenue Service. All financial statements to be furnished pursuant to the provisions of this paragraph shall be certified to Mortgagee and must be in form and content satisfactory to Mortgagee. Mortgagor shall keep. and cause to be kept, adequate records and books of account. in which complete entries were made in accordance with generally accepted accounting practices (GAAP) consistently applied. reflecting all financial transactions of Mortgagor during the term of the Notes secured hereby. 21. Event of Default. Anyone of the following shall constitute an event of default: (A) Failure by Mortgagor or any other obligor thereon to pay, as and when due and payable, any portion of the Secured Indebtedness. any installments of principal or interest due under the Notes, or any deposits for taxes and assessments or insurance premiums due hereunder, or any other sums to be paid by Mortgagor or any such other obligor hereunder or under any other instrument securing the Notes, 14 811 J 022v_1 " -'. Doell 1837287 Ilea 22. p.. 1112 j (B) Failure by Mortgagor or any such other obligor to duly keep, perfonn and observe any other covenant, condition or agreement in the Notes, this Mortgage, the Lease, or any other instrument securing the Notes or any other instrument co))ateraJ to the Notes or executed in connection with the sums secured hereby for a period of ten (10) days after Mortgagee gives written notice specifying the breach. (C) If either Mortgagor or any guarantor or endorser of the Notes: (i) tiles a voluntary petition in bankruptcy, (ii) dies or is adjudicated incompetent, a bankrupt or insolvent; or (iii) files any petition or answer seeking or acquiescing in any reorganization, management, composition, readjustment, liquidation, dissolution or similar relief for itself under any la."" _._.._____r~latinB__ tQbankruptcy~ insolvency- or-other-relief for debrors.,-'or-"'(ivy ~sor consents to or --- acquiesces in the appointment of any trustee, receiver, master or liquidator of itself or of all or any substantial part of the Mortgaged Property or of any or all of the rents, revenues, issues, earnings, profits or income thereof, or (v) makes any general assignment for the benefit of creditors, or (vi) makes any admission in writing of its inability to pay its debts generally as they become due; or (vii) a court of competent jurisdiction enters an order, judgment or decree approving a petition filed against Mortgagor or any guarantor or endorser of the Notes, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, which order, judgment or decree remains unvacated and unstayed for an aggregate of sixty (60) days whether or not oonsewtive from the date of entry thereof; or (viii) any trustee, receiver or liquidator of Mortgagor of aU or any substantial part of the Mortgaged Property or of any or al1 of the rents, revenues, issues, earnings, () profits or income thereof, is appointed without the prior written consent of Mortgagee, which appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days whether or not consecutive. (D) Any breach of any warranty or material untruth of any representation of Mortgagor contained in the Notes, this Mortgage or any other instrument securing the Notes. (E) The OCCurrence of any default under the terms of any mortgage or other security instrument which creates a lien or other security interest on or in the Mortgaged Property. 22. Acceleration. If an event of default shall have occurred, Mortgagee may declare the outstanding principal amount of the Notes and the interest accrued thereon, and all other sums secured hereby, to be due and payable immediately. Upon such declaration such principal and interest and other sums shall immediately be due and payable without demand or notice. 23. Remedies after Defaul!.. Upon an event of default, Mortgagee may proceed by suit or suits at law or in equity or by any other appropriate proceeding or remedy to: (a) enforce payment of the Notes or the performance of any term hereof or any other right; (b) foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, Mortgagor's Leasehold Estate in the Mortgaged Property under the judgment or decree of a court or courts of competent jurisdiction; (c) collect all rents, issues, profits, revenue, income and other benefits from the Mongaged Property; (d) appoint a receiver to enter upon and take possession of the Mortgaged 15 881022v.1 :, DOCII 1837287 lka 22" p.. 1113 r'~ '-";/ Property and to coHeet all rents, issues, profits, revenue, income, and other benefits thereof and apply the same as a coun may direct and such receiver shall have all rights and powers permitted under law; and (e) pursue any other remedy available to it including, but not limited to taking possession of the Mortgaged Property without notice or bearing to Mortgagor. Mortgagee shall take action either by such proceedings or by the exercise of its power with respect to entry or taking possession. or both, as Mortgagee may determine. 24. No Waiver. No delay or omission of Mortgagee or of any holder of the Notes to exercise any right, power or remedy accruing upon any event of default shall exhaust or impair any such right, power or remedy or shall be construed to waive any event of default or to _____.__ _____..~~titut~.!~q~enc.e therein.-____________.____________________________ 25. Non-Exclusive Remedies. No right, power or remedy conferred upon or reserved to Mortgagee by the Notes, this Mortgage or any other instrument securing the Notes is exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or under the Notes or any other instrument securing the Notes, now or hereafter existing at law, in equity or by statute. \',) . .''-'' , ,~. 26. Successors and Assigns Bound. Whenever one of the parties hereto is named or referred to herein, the heirs, successors and assigns of such party shall be included and all covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee, shall bind and inure to the benefits of their respective heirs, successors and assi~ whether or not so expressed. 27. Miscellaneous. In the event that any of the covenants, agreements, terms or provisions contained in the Notes, this Mortgage or any other instrument securing the Notes shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions contained herein and in the Notes and any other instrument securing the Notes shall be in no way affected, prejudiced or disturbed thereby. AU oftbe Loan Documents are hereby modified and amended so as to evidence and secure this Modification and Restatement of Mortgage and Security Agreement. Further. S~on 2.7 of the Loan Agreement shall be, and is hereby, further modified so as to provide as follows: "Section 2.7 Interest Reserve. The sum of Seven Hundred Thousand and No/100 ($700,000.00) DoJlars shall be withheld from the proceeds of the Loan and shall be deposited by Lender into an interest reserve account (the <<Interest Reserve") to be maintained with Lender. So long as no event of default has occurred and is continuing, the Interest Reserve funds shall be applied by Lender as available and as may be necessary to pay any interest due and payable on the Loan on the due date thereofby debiting the Interest Reserve in the appropriate amount. Ifat any time the Interest Reserve shall be insufficient to fully pay such accrued interest, the Borrower shall thereafter be responsible for, and shall pay, such accrued interest as and when required by the Loan Documents." 16 ., 88 I 0Z2v. 1 , i ~ (~,::'- Doell 1837287 lie. 2288 p.. 1184 28. Attorney's Fees. The tenn "attorney's fees" as used in this Mortgage includes any and all legal fees of whatever nature including, but not limited to, attorneys' fees, paralegals' fees, legal assistants' fees and fees resulting from any appeal of any interlocutory order or final judgment or any other appellate proceeding arising out of any litigation. 29 Obligation of MortsUll!Or. Mortgagor shaJI pay the cost of releasing or satisfying this Mortgage of record. 30. No Transfer. It is understood and agreed by Mortgagor that as part of the indu~Jl'!~P.J_~_MQrtgagee to make- the loan -evidenced by- the No~- Mortgagee-'w considered - - --------- ---- aild relied on the creditworthiness and reliability of Mortgagor. Mortgagor covenants and agrees not to sell, convey, rransfer. lease or further encumber any interest in or any part of the Mortgaged Property without the prior written consent of Mortgagee. and any such sale. conveyance, transfer, Jease or encwnbrance made without Mortgagee's prior written consent shall be void. If any person should obtain an interest in all or any part of the Mortgaged Property pursuant to the execution or' enforcement of any lien, security interest or other right, whether superior. equal or subordinate to this Mortgage or the lien hereof, such event shall be deemed to be a transfer by Mortgagor and an evem of default hereunder. law. 31. Default Rate. The Default Rate shall be the highest rate permitted by applicable () 32. Chanees to Mortgage. All changes, alterations. deletions or additions to the substance of any paragraph in this Mortgage which have been agreed to between Mortgagor and Mortgagee have been initialed by Mortgagor as additional proof of Mortgagor's consent. 33. Future Advance~. This Mortgage is given to secure not only existing indebtedness. but also such future advances, whether such advances are obligatory or are to be made at the option of Mortgagee. or otherwise. as are made within twenty years from the date hereof. to the same extent as if such future advances were made on the date of the execution of this Mortgage. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at one time shall not exceed twice the face amount of the Note, plus interest thereon, and any disbursements made for the payment of taxes, levies or insurance on the Mortgaged Property, with interest on such disbursements at the Default Rate as hereafter defined. 17 1I11I022v,I Doc.. 1837287 Ski 2288 p. 1195 C, IN WITNESS WHEREOF. said Mongagor has duly sillDed. seuled ODd executed this instrument in the presence of the subscribing witnesses the day and year first aforesaid. WITNESSES; MORTGAGOR: Overseas Redevelopment Company, LLC, a Florida limited Jiability company By: H- Try, LLC, a Florida limited liability comJ28llY, as its Manager ~ --------------- --_. .. ............--------.......--.-...--------.----- ~ Scott G. Oropeza, as its Managing Member Address: 3158 Northside Drive Kev West. FL 33040 STATE OF FLqRPA _ _ A COUNTY OF ~ The foregoing instrument was acknowledged before me this JJ.. day of April, 2007, by Scott G. Oropeza, as the Managing Member ofH-Try, LLC, a Florida limited liability company, as the Manager of Overseas Redevelopment Company, LLC, a Florid . 'ted liability company, ( ,~~\ on behalf of the companies. . .'!j .i;.,:.-" Notary Print My Co on Expires: Personally Known \/(OR) Produced Identification _ . ....1lII Type ofidentificati;;;r ~Uced ~ " .~n;lllI2I393Il * · ~ FebNaIy 2", 2008 I '~QIt ~ --....,..---- __7lIlt I 18 8tI J022v.1 j (~~" DooIt 1837287 ltc, 2281 p.' 1181 CONS-ENT AND JOIND.g For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the undersigned, the undersigned hereby consents to the foregoing Modification and Restatement of Mortgage and Security Agreement (Substitution of Leasehold in Lieu of Fee) and to the encumbrance thereby of the Real Property described in Exbibit "A" attached hereto. WITNESSES: VNT(-: ) b !fe' I ~---- ';r' fl.,- 41.4: :d A:l.{---- -- ------- - ----- ---- -- -- By: - /(l..+'Z . Print Narnft. -~l'- '- .f. Lc. k., C . Name: Mario Di Gennaro Title: Mayor. Monroe County Address: 9400 Overseas Hwv. Ste. 210 Marathon. FL 33050 Jtltt--._ '\. M~ Print ~e: Stll (J 'It. .02JJ:..... STATE OF fLORIDA COUNTY OF MONROE (~1 \.Ji The foregoing instrument was acknowledged before me this 5th day of April, 2007, by Mario Di Gennaro, as the Mayor of Monroe County, on behalf of the County. My Commission Expires: 07/0412fX)C) c=- la~(Vla~HJ!J.Jlc1}'b Notary Public Print Name: Tamara Lundstrom Personally Known XX (OR) Produced Identification _ Type of identification produced (MIP:dhl13970-53) 19 881022v.J EXHIBIT uAu DooIr 1837287 Bk. 2286 p.. 1197 ,r '-'. On the I~land known as Stock Island and being block 38. containing 20 lots, according to GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in Plat Book I. Page 55, Monroe County, Florida records. ALSO That portion of First A venue lying and being between Block 38 and 39, GEORGE L. McDONALD'S Plat of a part of Stock Islan~trecQ!'ded in disc1ailfled by Resolution-No; 33-197-3-,-------------- --------.----Board- or COiinW-COmiiiissioneis~ reCOrded in Official Records Book 537, Page 937, of the Public Records of Monroe County, Aorida. o "ONROE COllfrt OFFICI" RECORDS 20 88J022v_' .. (~I..' .~.,.J~ ,....,. \. ~ \J \... " . . Dool 1147857 11/08/2187 11:1I~ Fjled & Recorded in Official Records of tIONROE COUNTY DANNY L. l<OLHAGE Doo. 1847117 Bkl 2311 PI' 711 MONROE COUNTY, FLORIDA AMENDMENT TO A MINOR CONDITIONAL USE DEVELOPMENT ORDER # 02-07 A DEVELOPMENT ORDER APPROVING THE REQUEST BY OVERSEAS REDEVELOPMENT COMPANY, LLC FOR AN AMENDMENT TO A MINOR CONDITIONAL USE FOR THE REDEVELOPMENT OF A SIXTY-THREE (63) UNIT MOBILE HOME PARK INTO FORTY-NINE (49) ATTACHED AND DETACHED AFFORDABLE UNITS AND TO ESTABLISH 32 MARKET RATE UNITS ELIGffiLE FOR TRANSFER. THE PROPERTY IS LEGALLY DESCRIBED AS LOTS 1-20, MALONEY SUBDIVISION, STOCK ISLAND, MONROE COUNTY, FLORIDA, HAVING REAL ESTATE NUMBERS: 00125350.000000 AND 00125360.000100. WHEREAS, during a regularly scheduled meeting held on March 6, 2007, the Development Review Committee (DRe) of Monroe County, Florida, conducted a review and consideration ofthe request by Overseas Redevelopment Company (ORC) LLC., for an amendment to a minor conditional use pursuant to Sections 9.5-24 and 9.6-68 of the Monroe County Code; and WHEREAS, the subject property is located at 5302 MacDonald Ave, Stock Island, at approximate mile marker 5 and is legally described as Lots 1-20, Maloney Subdivision, Stock Island, Monroe County, Florida, having Real Estate Numbers: 00125350.000000 and 00125360.000100; and WHEREAS, the Development Review Committee reviewed the following documents and other infonnation relevant to the request: 1. Application for and amendment to a minor conditional use approval of (49) attached and detached employee housing units, which included all documents required; and Staff Report prepared by Heaven Lashley, Monroe County Planner, and Ralph Gouldy Sr. Director of Planning and Environmental Resources dated February 23,2007; and Monroe County Property Record Card; and 2. 3. D.O. 02-07 File # 25089 IDitials~ Page 1 of6 () \. \.., ~l \...;;,; \.. Doc' 1&47057 Sk. 2301 p" 711 4. Monroe County Land Use District Map and Monroe County Future Land Use Map; and Conceptual Drainage Plan (C-I) by Perez Engineering & Development Inc, received February 14, 2007; and Site Plan (SI) by Thomas E. Pope. PA, signed and sealed dated 7/8/06, revised 2/12/07; and Sworn Testimony of the Growth Management Staff; and 5. 6. 7. WHEREAS, on May 3, 2006 Monroe County, the Department of Community Affairs (DCA), and ORC entered into an agreement pursuant to Section 380.023(3) of the Florida Statutes; and WHEREAS, per this agreement, the parties agreed that ORC had 63 ROGO units allocated to the property; and WHEREAS, per this agreement, ORC exchanged with Monroe County thirty one (31) market rate ROGa units for thirty one (31) affordable housing units; in addition Monroe County allocated eighteen (18) affordable ROGO units to redevelop the property into a 49 unit workforce housing community; and WHEREAS, on July 19, 2006 the Monroe County Board of County Commissioners adopted Resolution Number 273-2006, granting the aforementioned forty nine (49) affordable ROGO allocations to ORC; and WHEREAS, per the agreement, the remaining 32 market rate ROGO units retained by ORC shall be entitled for transfer at such time ORC has been issued a building pennit for the redevelopment of the property; and WHEREAS, the Applicant is seeking development approval to convert sixty- three (63) mobile home sites to forty-nine (49) attached and detached employee housing units, pursuant to the 380 agreement mentioned above; and WHEREAS, the redevelopment proposal includes forty nine (49) attached and detached employee housing units, as well as the establishment of the subject property as a sender site for the transfer of thirty two (32) Transfer ofROGO Exemptions (TREs); and WHEREAS, the property is located in an Urban Residential (DR) Land Use District and has a Future Land Use Map designation of Residential High (RH); and WHEREAS, pursuant to Section 9.5-233 of the Monroe County Code, in the UR District, the redevelopment requires conditional use approval by the Monroe County Development Review Committee; and WHEREAS, based upon the infonnation and documentation submitted, the Development Review Committee found: D.O. 02-07 File -# 25089 Initials~ Page 2 of 6 CiJ\. \. r0 \.jJP ~ Docl 1847057 Ski 2308 P.I 782 1. Section 9.5-65 of the Monroe County Code provides the standards which are applicable to all conditional uses. When considering applications for a conditional use pennit, the Development Review Committee shall consider the extent to which: (a) The conditional use is consistent with the purposes, goals, objectives and standards of the Monroe County Year 2010 Comprehensive Plan and Monroe County Code; and (b) The conditional use is consistent with the community character of the immediate vicinity of the parcel proposed for development; and (c) The design of_the proposed development minimizes adv.eISe- effects, "----- -----InciudIDg vIsual impacts, or the proposed use on adjacent properties; and (d) The proposed use will have an adverse effect on the value of surrounding properties; and (e) The adequacy of public facilities and services, including but not limited to roadways, park facilities, police and fire protection, hospital and Medicare services, disaster preparedness program, drainage systems, refuse disposal, water and sewers, judged according to standards from and specifically modified by the public facilities capital improvements adopted in the annual report required by the Monroe County Code; and (f) The Applicant for conditional use approval has the financial and technical capacity to complete the development as proposed and has made adequate legal provision to guarantee the provision and development of any open space and other improvements associated with the proposed development; and (g) The development will adversely affect a known archaeological, historical or cultural resource; and (h) Public access to public beaches and other waterfront areas is preserved as a part of the proposed development; and (i) The proposed use complies with all additional standards imposed on it by the particular provision of this chapter authorizing such use and by all other applicable requirements of the Monroe County Code; and 2. Staff found that the Applicant has demonstrated that all of the required standards shall be met and recommended approval of the amendment to a minor conditional use application with conditions; and 3. The Monroe County Development Review Committee found that the Applicant has demonstrated that all of the required standards shall be met; and WHEREASs the Development Review Committee recommended approval with conditions of the application to the Director of Planning & Environmental Resources; and WHEREASs the Director of Planning & Environmental Resources has duly considered the recommendation of the Development Review Committee and the infonnation and documentation submitted by the Applicant; and D.O. 02-07 File # 25089 InitialSU Page 3 of6 Dooll 1147157 akl 2318 Pt' 713 () ~ WHEREAS, the applicant submitted a revised final site plan (STl) on 4/13/07 by Thomas E. Pope, PA, signed and sealed dated 3/6/07; and WHEREAS, the applicant submitted a final Landscape Plan (Ll) on 4/13/07 by Thomas E. Pope, P A, signed and sealed dated 3/6/07; and WHEREAS, the record established, the testimonies offered, and the evidence submitted, support the findings of fact adopted by the Development Review Committee; and NOW THEREFORE, BE IT RESOL YED BY THE DlRECTO~ OF fl:;;}\NNfNc--&-ENVIR.ONMENTAL'RESOURCES OF MONROE COUNTY, FLORIDA that the request by Overseas Redevelopment Company, LLC. for an amendment to a minor conditional use pennit to redevelop the existing mobile home park by constructing forty nine (49) attached and detached employee housing units, as well as the establishment of the subject property as a sender site for thirty two (32) Transfer of ROGO Exemptions (TREs), at property legally described as Lots 1-20, Maloney Subdivision, Stock Island, Monroe County, Florida, having Real Estate Numbers 00125350.000000 & 00125360.000100, is hereby APPROVED with the following conditions: \., 1. Prior to a certificate of occupancy, permanent structures shall be placed at least ten (10) feet from any other permanent structure; and 2. Prior to a certificate of occupancy, no structures shall be permitted in the required buffer yards and set backs; and 3. Prior to the issuance of a building permit, a letter of coordination from Key West Resort Utilities (KWRU) shall be received indicating that the site in question does at this time have the capacity to treat sewage generated at this site; and 4. Prior to the issuance of a building pennit, a letter of coordination and approval for either a General Environmental Resource Permit, or a notice of "no pennit required" given for the proposed development shall be received from the South Florida Water Management District; and 5. Prior to the issuance of a building pennit, approval from the Monroe County Fire Marshall shall be received by the building department; and 6. The 32 sender units shall be assigned the following unique identifier numbers; A-0267 through A-0298, to be used for tracking and monitoring by the Planning & Environmental Resources Department; and 7. The 32 sender units may not be transferred beyond the Lower Keys District boundaries unless and until the nutrient credit reduction system is officially dispensed as a result of official state action or judicial decree; and 8. The 32 sender units may not be transferred to a Tier I zoning district; or a special protection area requiring the clearing of natural habitat; or to a site if evaluated under ROGO would receive negative points under habitat protection, threatened or endangered species, or critical habitat; C~ \.... D.O. 02-07 File # 25089 Initials /7' 0\: Page 4 of6 " . Docll 2847057 Ski 2318 II,. 784 o~ 9. The 32 sender units shall not be eligible for transfer until ORC has been issued a building permit for the redevelopment of the property; and 10. Prior to a certificate of occupancy, ORC shall comply in all respects with the definition of "affordable housing" and "employee housing" in the Monroe County Code and shall additionally require each unit purchaser or occupant to be a member of the Monroe County workforce, i.e. to be gainfully employed, full time in Monroe County at the time of purchase or occupancy and to remain so employed for not less than five (5) years thereafter. WHEREAS, condition three (3) has been partially satisfied by submittal of a letter of coordination from Key West Resort Utilities (KWRU) dated October 4, 2006 "indicating that the site In question does at this time have the capacity to treat sewage generated from forty-three (43) residential units. The lett~r indicates that KWRU will guarantee the capacity for a period of one (1) year from the date of the letter. Additional coordination shall be conducted to demonstrate capacity for the remaining six (6) units once those are ready to be constructed on the property; and \. WHEREAS, condition four (4) has been partially satisfied by submittal ofa letter of coordination from the South Florida Water Management District dated November 8, 2006 indicating that the project will require a General Environmental Resource Permit, this pennit shall be allocated prior to building permit approval, or a letter from the South Florida Water Management District stating that a notice of "no permit required" is given for the proposed development; and o WHEREAS, condition five (5) has been partially satisfied by submittal of a letter of coordination from the Monroe County Fire Marshal dated July 18, 2005 stating that fire protection plans indicating improvements to water supply via fire hydrant, for plan review, .baIl be submitted prior to~ buildi'ngjermit; and Date ""II 'IIDr Aref Joulani, Senior Director of Planning & Environmental Resources I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State aforesaid and in the County aforesaid, to take acknowledgments, personally appeared Aref Joulani, to me known to be the person described in and who executed the foregoing instrument and she acknowledged before me the she executed the same. ~ WITNESS my hand and official seal in the County and State of +,;/ .2007. ~~7/~ NOTARY PUBLIC, STATE OF FL D.O. 02-07 File # 25089 Initials~ . Page 5 of6 c:,l. I, , .. Dool 1147l1J!57 Ika 2380 p.. 71! REFERENCE: In the event that this development order constitutes an amendment, extension, variation, or alteration of a previous conditional use permit, that document may be referenced by the following: Deemer Clause 9.5-2 (c). NOTICE Section 9.5-72(a)(1) of the Monroe County Code states that a conditional use permit shall not be transferred to a successive owner without notification to the Development Review Coordinator within five (5) days of the transfer. ()\.. \..., .....J Under the authority of Section 9.5-72(a) of the Monroe County Code, this development order shall become null and void with no further notice required by the County, unless a complete building permit application for site preparation and building construction with revised plans as required herein is submitted to the Monroe County Building Official within six (6) months of the expiration of the Florida Department of Community Affairs appeal period or the date when the Florida Department of Community Affairs waives its appeal and all required certificates of occupancy are procured with two (2) years of the date of this development order is approved by the Director of Planning & Environmental Resources. If this development order is appealed under Monroe County code or by the Florida Department of Community Affairs, the above time limits shall be tolled until the appeals are resolved. This instrument shall not take effect for thirty (30) working days following the date of memorialization thereof, and during that time permit shall be subject to appeal as provided in Section 9.5-521(d) of the Monroe County Code. An appeal shall stay the effectiveness of this instrument until resolved. In addition, please be advised that pursuant to Chapter 9J-I, Florida Administrative Code, this instrument shall not take effect for forty-five (45) days following the rendition of the Florida Department of Community Affairs. During those forty-five days, the Florida Department of Community Affairs may appeal this instrument to the Florida Land and Water Adjudicatory Commission, and that such an appeal stays the effectiveness of this instrument until the appeal is resolved by agreement or order. "OMROE COUNTY OFFICIAL RECORDS D.O. 02-07 File # 25089 Initials& Page 60f6 '"""" TillS INSTRUMENT WAS PREPARED BY AND RETURN TO: Robert E. Highsmith.. Esq. FELDMAN. KOENIG & HIGHSMITH. P.A_ 3158 Norlhsidt: Drive Key lYw. Florida J3040 (305) 296-8851 Doc~ 163!224 03/30/2007 4:30PM Filed & Recorded in Official Records of I'fONROE COUNTY DRNNY L. /(OLHAGe _I~~ 03/38/2007 4:30PM DEED DOC STAMP CL: p~ $17,500.00 Folio Number: 00125350-000000 Doc" 1635224 BkU 2283 PglI 908 SPACE ABOVE THIS LINE FOR RECORDING DATA , ----.- .-----------...---WARRANTVDEED ------------ ~ THIS INDENTURE, made thisd.<ll day of (fu(~007, between, OVERSEAS REDEVELOPMENT COMPANY, LLC, a Florida limited liability company, party of the first part, Grantor, and MONROE COUNTY, a political subdivision of the State of Florid~ whose address is: clo County Administrator, 1100 Simonton Street, Key West, FI 33040: Grantee. ("Grantor" and "Grantee" are used lor singular or plural. as context requires) ~~ ",9 WITNESSETH, that said Grantor, for and in consideration of the sum of $ J 0.00 and other good and valuable considerations to said Grantor in hand paid by said Grantee, the receipt whereof is hereby acknowledged. has granted. bargained and sold to the said Grantee, and Grantee's heirs and assigns forever, the following described lot, piece or parcel of land, situate, lying and being in the County of Monroe, State of Florida, to wit: On the Island known as Stock Island and being Block 38, containing 20 Jots, according to GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in Plat Book J, Page 55, and Monroe County, Florida records. ALSO That portion of First Avenue lying and being between Block 38 and 39, GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in disclaimed by Resolution No. 33-] 973, Board of County Commissioners. recorded in Official Records Book 537, Page 937, of the Public Records of Monroe County, Florida. SUBJECT TO: Property taxes for the year 2007 and subsequent years. AND GRANTOR does hereby fully warrant the title to said land, and will defend the same against the lawful claims of a1l pen;ons whomsoever. 2602.330 W 8I1'anty Deed o Doc" 1635224 Bkl 2283 PIR 909 IN wrTNESS WHEREOF, Grantor has signed and sealed these presents the day aDd year first written above. OVERSEAS REDEVELOPMENT COMPANY, LLC, a Florida limited liability company. by H-TRY, L C. a Florida limited liability company, Manager _D BY: ~ COTT G. OROPEZA, Managing Manager STATEOFFLORJDA ) COUNTY OF MONROE) On thi~ <W'-- day of l\ YlfckL, 2007, before me personally came scon G. OROPEZA, Managing Manager of H-TRY, LLC, a Florida limited liability company, as Manager of OVERSEA~ REDEYElc.OPMENT COMPANY, LLC, a nda Ii~ liability company, who is <.~rsona11y k1)o'Yl:lJProe-er' who has produced .' as i~cation to me, and who acknowledged execution of the foregoing instrument; . - ~.., / r ~ 'j '".. I ,/ , ~~-<-..."'-'. " C"- .....--- otary Pub c, State of Florida I .Y / Name: My (':) V MONROI: COUNTY OFFICIAL RECORDS ( ..~, VJ 2602-330 Warranty Deed