GARAGE LEASE
Exhibit 10.36
This Garage Lease (“Lease”) is entered into by and between DTS 3MC PARKING LLC, a Delaware limited liability company (“Landlord”) and ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company (“Tenant”) as of
this 2nd day of September, 2016.
The above recitals are true and correct and are incorporated herein as if set forth in full.
The terms set forth below, when used in this Lease, shall be defined as follows. Other terms are defined in other provisions of this Lease.
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1.04 DCRE: That certain Declaration of Covenants, Restrictions
and Easements for 3 MiamiCentral dated as April 29, 2016 and recorded on April 29, 2016 in Official Records Book 30057, Page 1899 of the Public Records of Miami-Dade County, Florida, as amended by Amendment to Declaration of Covenants, Restrictions
and Easements for 3 MiamiCentral dated as of May 5, 2016 and recorded on May 6, 2016 in Official Records Book 30065, Page 3615 of the Public Records of Miami-Dade County, Florida (as so amended and as hereafter amended and supplemented from time to
time).
1.07 Ground Lease: Ground Lease has meaning set forth in the
recitals to this Lease.
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1.13 Leasehold Estate: The rights granted to Tenant under this
Lease.
1.14 Leasehold Mortgage: A mortgage or mortgages or other similar security agreements given to any Leasehold Mortgagee of the leasehold interest of Tenant hereunder, and
shall be deemed to include any mortgage or trust indenture under which this Lease shall have been encumbered, and including any and all renewals, modifications, advances, additions, and extensions of or to a Leasehold Mortgage.
1.17 Operating Costs: Operating Costs has meaning set forth in
Article 3.0.
1.18 Overlandlord: Overlandlord has meaning set forth in the
recitals to this Lease.
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1.22 Rail Service: Rail Service has meaning set forth in the
recitals to this Lease.
1.25 Renewal Term: Renewal Term has the meaning set forth in
Article 14.0.
1.31 Tenant’s Share: Tenant’s Share has meaning set forth in
Article 3.0.
1.32 Term: The Initial Term and any exercised Renewal Terms.
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(a) Tenant shall, upon paying the Rent reserved hereunder and observing and performing all of the terms, covenants and
conditions on Tenant’s part to be observed and performed, peaceably and quietly have and hold, the Leased Premises, without hindrance or molestation by any person or persons claiming by, through, or under Landlord, subject, however, to the terms of
this Lease (including the Permitted Exceptions).
(b) Landlord has full right and
authority to enter into this Lease and perform Landlord’s obligations under this Lease, and has leasehold title to the Leased Premises.
(c) Landlord shall at all times comply with all applicable Laws governing the division or parcelization of real property for
purposes of lease, sale or financing, so that this Lease shall constitute a lawful conveyance to Tenant of the Leasehold Estate in the Leased Premises.
(d) This Lease is and shall be binding upon and enforceable against Landlord in accordance with its terms, and the transaction
contemplated hereby will not result in a breach of, or constitute a default or permit acceleration and maturity under any indenture, mortgage, deed of trust, loan agreement or other agreement to which Landlord or the Leased Premises are subject or by
which Landlord or the Leased Premises are bound.
(e) Landlord has not (i) made a general assignment for the benefit of creditors, (ii) filed any involuntary petition in
bankruptcy or suffered the filing of any involuntary petition by Landlord’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of Landlord’s assets, (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Landlord’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
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Landlord shall indemnify, protect, defend and hold Tenant forever harmless from and against any and all claims, actions, judgments,
liabilities, liens, damages, penalties, fines, costs and expenses, including but not limited to reasonable attorneys’ fees, costs of defense and expert/consultant fees, and increased costs of construction, asserted against, imposed on, or suffered or
incurred by Tenant (or the Leased Premises) directly or indirectly arising out of or in connection with any breach of the foregoing representations and warranties.
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(a) Commencing on the Rent
Commencement Date, Tenant shall pay to Landlord the Tenant’s Share of Operating Costs, as hereinafter defined, plus sales tax. The amount of Operating Costs payable to Landlord may be reasonably estimated by Landlord for such period as Landlord
determines from time to time (not to exceed twelve (12) months), and Tenant agrees to pay to Landlord the amounts so estimated in equal installments, in advance, on the first day of each month during such period. Notwithstanding the foregoing, when
bills for all or any portion of Operating Costs so estimated are actually received by Landlord, Landlord may xxxx Tenant for Tenant’s Share thereof, less any amount previously paid by Tenant to Landlord on account of such item(s) by way of
estimated Operating Costs payments.
(b) Within one hundred eighty
(180) days after the end of the period for which estimated payments have been made, Landlord shall submit to Tenant a reasonably detailed statement from Landlord setting forth the actual amounts payable by Tenant based on actual costs. If the
amount Tenant has paid based on estimates is less than the amount due based on actual costs, Tenant shall pay such deficiency within ten (10) business days after submission of such statement. If the amount paid by Tenant is greater than the amount
actually due, the excess may be retained by Landlord to be credited and applied by Landlord to the next due installments of Tenant’s Share of Operating Costs, or as to the final Lease Year, provided Tenant is not in default, Landlord will refund
such excess to Tenant. Tenant’s Share of actual Operating Costs for the final estimate period of the Term of this Lease shall be due and payable even though it may not be finally calculated until after the expiration of the Term.
(c) For purposes of this Lease,
Tenant’s Share shall be calculated as set forth in Exhibit “C”
attached hereto.
(d) The term “Operating Costs”
shall mean any amounts paid or payable whether by Landlord or by others on behalf of Landlord, arising out of Landlord’s maintenance and repair of the Garage and the common areas of the Project and the Real Property Taxes allocated to the Leased
Premises, including, without limitation, (i) the cost of insurance which Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by Landlord under such insurance; (ii) the cost of
security, janitorial, landscaping, garbage removal, and trash removal services; (iii) the cost of fuel, water, electricity, telephone, sewer, sprinkler and any other utilities used in the maintenance, operation, or administration of the Leased
Premises and common areas; (iv) assessments and expenses charged to Landlord under the DCRE; and (v) a reasonable management fee paid to Landlord or an affiliate or the Garage operator and an allocation of payroll costs. The pass-through of Real
Property Taxes may be charged as a separate pass-through item from the other Operating Costs, which Real Property Taxes shall otherwise be billed to Tenant in the same manner as the pass-through of Operating Costs as provided herein.
If Tenant or an affiliate causes the Leased Premises to be centrally assessed for tax purposes by the State of Florida in connection with
Tenant’s or its affiliate’s railroad operations, causing Landlord’s tax xxxx for Real Property Taxes to exclude the Leased Premises, then there shall be no pass-through of Real Property Taxes to Tenant under this Lease, and Tenant shall pay Real
Property Taxes in accordance with such central assessment. Notwithstanding, the Landlord may charge Tenant an allocation related to the Shared Facilities under the DCRE.
(e) For the first Lease Year,
Tenant’s Share of Operating Costs (including Real Property Taxes) is estimated (but not guaranteed or capped) to be [$________] per month.
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(f) Personal Property. Tenant shall be responsible for and shall pay before delinquency all municipal, county or state taxes, levies and fees of every kind and nature, including but not limited to general or special assessments, assessed
during the Term against any personal property of any kind, owned by or placed in, upon or about the Leased Premises.
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(a) The Leased Premises shall be
used solely for parking garage purposes. Tenant shall not commit or permit any waste on the Leased Premises, or permit the Leased Premises to be used in any way which would be extra hazardous on account of fire. Tenant acknowledges that the Ground
Lease provides that the Air Rights may not be used for any of the following uses: adult entertainment establishment or adult bookstore (except that a video store or bookstore operating in compliance with applicable Laws and which derives a portion
of its income from the sale of adult movies or books is permissible); massage parlor (except that massage services as part of a bona fide health club or spa operating in compliance with applicable Laws is permissible); facility for the sale of
paraphernalia for use with illegal drugs; or a facility for off-track betting.
(b) Nothing contained in this
Lease shall be deemed to impose upon Tenant, either directly, indirectly, constructively or implicitly, an obligation to construct improvements upon the Leased Premises, open for business, or remain open and operating for any period or in
accordance with any operating schedule, procedure or method. Without limiting the generality of the foregoing, Tenant shall have sole discretion and control over the operating the parking garage operation on the Leased Premises, including without
limitation parking rates to be charged by Tenant.
(c) Landlord shall maintain the
Garage for the benefit of the Project. Notwithstanding anything to the contrary contained in this Lease, Landlord may provide parking after business hours on weekdays and all day on Saturdays, Sundays, and holidays for third party users (including
without limitation for special events occurring after business hours on weekdays and all day on Saturdays, Sundays, and holidays). Any such use will not interfere with the amount of parking Tenant is entitled to within the Garage pursuant to this
Lease. Tenant’s parking shall be accessible 24 hours a day, 7 days a week. Landlord may elect to retain a third party garage manager or garage operator in order to operate the Garage on Landlord’s behalf.
(d) Tenant shall comply with the
requirements of the DCRE, as applicable.
(a) During the Term of this
Lease, Tenant shall, at its own cost and expense, promptly observe and comply with all Laws, whether the same are in force at the commencement of the Term of this Lease or may in the future be passed, enacted or directed.
(b) Without limiting the
generality of the foregoing, Tenant covenants that any activity on the Leased Premises shall be conducted in full compliance with all applicable Environmental Laws, and Tenant agrees to indemnify and hold harmless Landlord against any and all
claims, costs, expenses, damages, liability, and the like, which Landlord may hereafter be liable for, suffer, incur, or pay arising under any applicable Environmental Laws and resulting from or arising out of any Release or other breach of this
subsection, arising out of any act, activity, or violation of any applicable Environmental Laws on the part of Tenant, its agents, employees, or contractors, or Sublessees (but Tenant retains the right to pursue any available remedies as against
any third party that may be liable for any such violation of any applicable Environmental Laws). Landlord agrees to indemnify and hold harmless Tenant against any and all claims, costs, expenses, damages, liability, and the like, which Tenant may
hereafter be liable for, suffer, incur, or pay arising under any applicable Environmental Laws and resulting from or arising out of any Release or other breach of this subsection arising out of any act, activity, or violation of any applicable
Environmental Laws on the part of Landlord, its agents, employees, or contractors (but Landlord retains the right to pursue any available remedies as against any third party that may be liable for any such violation of any applicable Environmental
Laws).
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(c) Tenant shall have the right
to contest by appropriate legal proceedings diligently conducted in good faith, in the name of the Tenant or Landlord (if legally required), without cost or expense to Landlord, the validity or application of any Law required to be complied with by
Tenant pursuant to Section 4.02(a) above and, if by the terms of any such Law, compliance therewith may legally be delayed pending the prosecution of any such proceeding, Tenant may delay such compliance therewith until the final determination of
such proceeding. Landlord (at no cost to Landlord) agrees to execute and deliver any appropriate papers or other instruments which may be reasonably necessary or proper to permit Tenant so to contest the validity or application of any such Law, and
to cooperate with Tenant in such contest in all reasonable respects.
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(a) If the Leased Premises are partially or totally destroyed due to fire or other casualty, Landlord shall diligently repair
the Improvements, and Rent shall xxxxx proportionately to the portion of the Leased Premises, if any, rendered untenantable from the date of the casualty until Landlord’s repairs have been substantially completed. Tenant agrees that during any period
of reconstruction or repair of the Leased Premises, it will continue the operation of the Leased Premises to the extent reasonably practicable.
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(b) Notwithstanding anything to the contrary contained herein, if
the casualty damage to the Leased Premises is such that in the reasonable opinion of a reputable general contractor retained by Landlord (which Landlord shall provide to Tenant within forty-five (45) days after the date of the damage or destruction),
such reconstruction or repair cannot be completed within two hundred seventy (270) days after the date of the damage or destruction (the “Repair Period”), Landlord or Tenant may, at its option, terminate this Lease on notice to the other party within
thirty (30) days after Landlord delivers to Tenant such general contractor’s opinion, and Tenant shall deliver vacant possession of the Leased Premises in accordance with the terms of this Lease.
(c) In addition, if this Lease is not terminated pursuant to the termination rights set forth above, and Landlord’s
reconstruction or repair of the Premises is not completed within the Repair Period, then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within thirty (30) days after the expiration of the Repair Period.
(a) Except to the extent caused
by the negligence or willful misconduct of Landlord, its agents, employees or contractors, and subject to Section 7.02, Tenant will indemnify and save harmless Landlord against and from all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses, including reasonable attorneys’ fees, which may be imposed upon, incurred by or asserted against Landlord or which involve Landlord directly or indirectly during the Term for: (i) any work or thing done in, on or about
the Leased Premises; (ii) any use, non-use, possession, occupation, condition, operation, maintenance or management of the Leased Premises; (iii) any negligence on the part of Tenant or any of its agents, contractors, servants, employees,
licensees, invitees, tenants or occupants; (iv) any injury or death to any person or damage to or loss of property occurring in, on or about the Leased Premises; and (v) any failure on the part of Tenant to perform or comply with any provisions of
this Lease (subject to applicable notice and cure periods). If any action or proceeding is brought against Landlord by reason of any claim described in this subparagraph (a), Tenant, upon notice from Landlord, will either defend such action or
proceeding with counsel approved by Landlord, such approval not to be unreasonably withheld or delayed, or satisfy the claim. If Landlord, without fault on its part, shall be made a party to any litigation commenced by or against Tenant, then
Tenant shall indemnify, defend and hold harmless Landlord there from and shall pay Landlord all costs and expenses, including reasonable attorneys’ fees, which Landlord may sustain by reason thereof.
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(b) Except to the extent caused
by the negligence or willful misconduct of Tenant, its agents, employees or contractors, and subject to Section 7.02, Landlord hereby indemnifies and holds Tenant harmless from and against any and all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable attorneys’ fees, which may be imposed upon, incurred by or asserted against Tenant or which involve Tenant directly or indirectly arising from the negligence or willful misconduct of
Landlord or its agents, employees or contractors in or about the Leased Premises. If any action or proceeding is brought against Tenant by reason of any claim described in this subparagraph (b), Landlord, upon notice from Tenant, will either defend
such action or proceeding with counsel approved by Tenant, such approval not to be unreasonably withheld or delayed, or satisfy the claim. If Tenant, without fault on its part, shall be made a party to any litigation commenced by or against
Landlord, then Landlord shall indemnify, defend and hold harmless Tenant therefrom and shall pay Tenant all costs and expenses, including reasonable attorneys’ fees, which Tenant may sustain by reason thereof.
(c) The provisions of this
Section shall survive the termination of this Lease.
(a) Tenant shall provide, at its
expense, and keep in force during the Term of this Lease, general liability insurance (currently referred to as commercial general liability) in a good and solvent insurance company or companies licensed to do business in the State in which the
Leased Premises is located, selected by Tenant, in the amount of at least five million dollars ($5,000,000) combined single limit for bodily injury and for property damage per occurrence with respect to the Leased Premises (which amount may be
satisfied through liability umbrella coverage). Such policy or policies shall include Landlord (and Landlord’s Lender, as defined in Section 10.02) as an additional insured. At the commencement of each Renewal Term, the limits of such liability
insurance shall be adjusted based on such then-industry standard liability insurance coverage limits as would be carried by a prudent owner of a comparable real estate project of similar size, age, and location.
(b) During the Term of this
Lease, Landlord (as part of Operating Costs) shall maintain:
(i) commercial general
liability insurance naming Tenant as an additional insured in amounts no less than that required of Tenant pursuant to subsection (a).
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(ii) standard all risk
(currently referred to as “special form”) property insurance (or such other type of property insurance as may be generally obtained from time to time by prudent owners of comparable properties in the vicinity of the Leased Premises), for the
Improvements erected or caused to be erected, at any time, by Landlord on the Air Rights in a minimum amount as required by Landlord’s Lender (or if none, then in such replacement amount as would be obtained from time to time by prudent owners of
comparable properties in the vicinity of the Leased Premises). All proceeds payable at any time and from time to time by any insurance company under such policies shall be payable to Landlord’s Lender to be used and applied as provided in the loan
document evidencing and securing the Landlord’s Financing (as defined in Section 10.02). In the event that, at such time, there is no Landlord’s Financing in existence, such proceeds shall be payable to the Leasehold Mortgagee, as the Leasehold
Mortgage or other loan documents pertaining to the Leasehold Mortgage (“Loan Documents”) may provide, or, if none, to Landlord (subject to Section 7.01). If any such proceeds are paid to such Leasehold Mortgagee, Landlord shall be entitled to
receive the full amount thereof in accordance with the terms of such Leasehold Mortgage or Loan Documents, and Tenant shall not be entitled to, and shall have no interest in, such proceeds or any part thereof. Any proceeds paid directly to Landlord
shall be retained by Landlord and Tenant shall not be entitled to, and shall have no interest in, such proceeds or any part thereof (except as otherwise expressly provided in Section 7.01(a)). Tenant shall, at Landlord’s cost and expense, cooperate
with Landlord in all reasonable respects in order to obtain the largest possible recovery and execute any and all consents and other instruments and take all other actions reasonably necessary or desirable in order to effectuate the same and to
cause such proceeds to be paid as hereinbefore provided, and Tenant shall not carry any insurance concurrent in coverage and contributing in the event of loss with any insurance required to be furnished by Landlord hereunder if the effect of such
separate insurance would be to reduce the protection or the payment to be made under Landlord’s insurance. Except for property insurance proceeds relating to alterations made by Tenant at its expense, Tenant agrees to pay any property insurance
proceeds received by Tenant in connection with any damage to the Leased Premises to Landlord immediately upon receipt thereof by Tenant and agrees that Tenant shall have no interest therein, except as otherwise expressly set forth in this Lease.
(c) Any insurance required to be
provided pursuant to this Lease may be provided by blanket insurance covering the Leased Premises and other locations of the insuring party and affiliates, provided such blanket insurance complies with all of the other requirements of this Lease
with respect to the insurance involved (and such blanket insurance is acceptable to any Landlord’s Lender and any Leasehold Mortgagee).
(d) At all times during which
construction is being performed in connection with the Leased Premises, the party contracting for the construction shall maintain builder’s risk insurance with limits of coverage not less than those specified in subsection 7.04(b) above.
(e) Each party shall provide
Certificates of Insurance evidencing that it has procured the insurance required to be maintained hereunder. The Certificates will provide that the insurer will endeavor to give the other party at least thirty (30) days’ notice prior to
cancellation or reduction in coverage of such policies or any one of them (although each party will request that its insurers agree to delete the words “endeavor to” from such Certificates).
8.01 Condemnation. If the whole of the Leased Premises, or such portion thereof as will make the Leased Premises unusable for the purposes leased hereunder, shall
be taken by any public authority under the power of eminent domain or sold to any public authority under threat or in lieu of such taking, the Term shall cease as of the day possession or title shall be taken by such public authority, whichever is
earlier (“Taking Date”), whereupon the Rent shall be paid up to the Taking Date with a proportionate refund by Landlord of any Rent paid for a period subsequent to the Taking Date. If less than the whole of the Leased Premises, or less than such
portion thereof as will make the Leased Premises unusable for the purposes leased hereunder, shall be taken, the Term shall cease only as to the part so taken as of the Taking Date, and Tenant shall pay Rent up to the Taking Date, with appropriate
credit by Landlord (toward the next installment of Rent due from Tenant) of any Rent paid for a period subsequent to the Taking Date. Base Rent and other charges payable to Landlord shall be reduced in proportion to the amount of parking spaces in
the Garage taken.
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8.02 Award. All compensation awarded or paid upon a total or partial taking of the Leased Premises including the value of the leasehold estate created hereby shall belong to and be the
property of Landlord without any participation by Tenant or any Leasehold Mortgagee; neither Tenant nor any Leasehold Mortgagee shall have any claim to any such award based on Tenant’s leasehold interest. However, nothing contained herein shall be
construed to preclude Tenant, at its cost, from independently prosecuting any claim directly against the condemning authority in such condemnation proceeding for damage to, or cost of moving and other relocation expenses.
8.03 Repairs. Upon receipt of the condemnation award, Landlord shall restore the remainder of the Leased Premises to an architectural whole and as near as reasonably possible to the
condition existing prior to the Taking Date.
9.01 Landlord Transfers. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations in this Lease and in the Leased Premises. Provided that the transferee assumes in writing each of Landlord’s obligations arising under this Lease following the date of such sale,
transfer or assignment, any such sale, transfer or assignment shall operate to release Landlord from any and all liabilities under this Lease arising after (but not before) the date of such sale, assignment or transfer.
9.02 Tenant Transfers. Tenant shall have the right to sell,
transfer, assign, and/or Sublease, in whole or in part, its rights and obligations in this Lease. Tenant’s right to sell, transfer, assign and/or Sublease shall be a continuing right and shall not be exhausted by a single exercise. In connection
with any such sale, transfer, assignment or Sublease, the following shall apply:
(a) Sublease. Tenant shall not be released of any obligations under this Lease in the event of a Sublease. In the event of a termination of this Lease because of any
Tenant Default (as hereinafter defined), Landlord will not terminate any Sublease of the Leased Premises, or disturb the possession or leasehold rights of the Sublessee thereunder, unless such Sublessee is in default under the provisions of the
Sublease beyond applicable notice and cure periods (if any). Landlord further agrees, subject to the provisions of the preceding sentence, to continue any such Sublease in full force and effect and, if requested by such Sublessee, to enter into a
direct lease between Landlord and such Sublessee. Upon request, Landlord shall enter into a non-disturbance agreement with such Sublessee whereby the Landlord will agree to not disturb such Lessee during the term of such Sublease in the event of a
termination of this Lease or the exercise of its rights and remedies under the Lease.
(b) Sale, Transfer or Assignment. Provided Tenant complies with Section 9.03, and provided that the transferee assumes in writing each of Tenant’s obligations arising
under this Lease following the date of such sale, transfer or assignment, any sale, transfer or assignment shall operate to release Tenant from any and all liabilities under this Lease arising after (but not before) the date of such sale,
assignment or transfer.
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9.03 No Transfer to a Disqualified Person. Notwithstanding the
provisions of Section 9.02, Tenant may not transfer this Lease to a Disqualified Person. For purposes hereof, a “Disqualified Person” means any person or entity (or affiliate thereof, or an entity controlled by a person or entity) that:
(a) has been convicted of or has
pleaded guilty in a criminal proceeding for a felony or that is an on-going target of a grand jury investigation convened pursuant to applicable Laws concerning organized crime; or
(b) is organized in or
controlled from a country, the effects of the activities with respect to which are regulated or controlled pursuant to the following United States laws and the regulations or executive orders promulgated thereunder: (i) the Trading with the Enemy
Act of 1917, 50 U.S.C. App. §1, et seq., as amended; (ii) the International Emergency Economic Powers Act of 1976, 50 U.S.C. §1701, et seq., as amended; (iii) the Anti-Terrorism and Arms Export Amendments Act of 1989, codified at Section 6(j) of the Export Administration Act of
1979, 50 U.S.C. App. § 2405(j), as amended; or (iv) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, commonly known as the USA Patriot Act, Pub. L. No. 107-56 (2001)
(codified as amended in various sections of 12, 15, 18, and 31 U.S.C.); or
(c) has owned at any time in the
preceding three (3) years any property which, while in the ownership of such person or entity, was acquired by any political subdivision of the State of Florida or any city in the State of Florida by tax deed foreclosure or other proceeding
relating to the failure of taxes to be paid, other than a property in which the applicable taxing authority has released (or is in the process of releasing) its interest to such person or entity.
10.01 Mechanics Liens.
(a) In the event of the filing
of any construction lien against the Leased Premises as a result of any work performed by or on behalf of Tenant or a Sublessee, Tenant shall cause same to be contested, bonded or discharged within thirty (30) days after Tenant’s receipt of written
notice thereof. If Tenant shall fail to timely contest, bond around or discharge the same, Landlord shall have the option, but not the obligation, to pay the same and any amount so paid shall be payable by Tenant to Landlord on demand.
(b) Notwithstanding any
provision of this Lease to the contrary, Tenant shall not, under any circumstances, have the power to subject the interest of Landlord in the Leased Premises to any construction liens or liens of any other kind, nor shall any provision contained in
this Lease ever be construed as empowering Tenant to encumber or cause Landlord to encumber the title or interest of Landlord in the Leased Premises. All parties with whom Tenant may deal are hereby put on notice that Tenant has no power to subject
Landlord’s interest in the Leased Premises to any claim or lien of any kind or character and any persons dealing with Tenant must look solely to the credit of Tenant for payment and not to Landlord’s interest in the Leased Premises or otherwise.
The Memorandum of Lease described in Section 13.04 shall include this Section 10.01(b).
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(c) In the event of the filing
of any construction lien against the Leased Premises as a result of any work performed by or on behalf of Landlord, Landlord shall cause same to be bonded or discharged within thirty (30) days after Landlord’s receipt of written notice thereof. If
Landlord shall fail to timely bond around or discharge the same, Tenant shall have the option, but not the obligation, to pay the same and any amount so paid shall be payable by Landlord to Tenant on demand. If Landlord does not pay such sums to
Tenant within thirty (30) days following receipt of Tenant’s demand therefor, Tenant shall be entitled to offset such sums against the Rent next becoming due under this Lease.
10.02 Mortgages against Reversionary Estate.
(a) Subject to the terms and
conditions hereof, Landlord may obtain mortgage financing (such financing and any refinancing thereof or new financing and any renewal or extension thereof being referred to as “Landlord’s Financing”) from a bona fide lender (“Landlord’s Lender”);
provided, however, that (i) Landlord’s Lender shall not be a Disqualified Person, and (ii) Landlord’s Lender shall execute a subordination, non-disturbance and attornment agreement (“SNDA”) in favor of Tenant in form and content reasonably
acceptable to Tenant and Landlord’s Lender. Tenant agrees that an acceptable form of SNDA is attached hereto as Exhibit “D.” Such form is not intended to be the only form that would be acceptable to Tenant and/or deemed to be reasonable.
(b) The provisions of this
Section 10.02 will be included in the Memorandum of Lease described in Section 13.04.
10.03 Mortgages against Leasehold Estate.
(a) Tenant may, without the
consent of Landlord, execute, deliver and cause or permit to be recorded against the Leasehold Estate, one or more Leasehold Mortgages. Tenant or any Leasehold Mortgagee shall notify Landlord, in the manner hereinafter provided for the giving of
notice, of the execution of such Leasehold Mortgage and the name and place for service of notice upon such Leasehold Mortgagee. The terms of Exhibit “E”hereto shall be applicable with respect to any Leasehold Mortgage. Upon such notification to Landlord that Tenant has entered, or is about to enter, into a Leasehold Mortgage,
Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and within twenty (20) days after written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee the Recognition, Attornment and Assent to Leasehold Mortgage
(“Recognition Agreement”) containing terms substantially identical to the terms set forth in Exhibit “E” hereto. Landlord further agrees that it will comply with all of the covenants and obligations contained in Exhibit “E”and any such Recognition Agreement.
(b) If a Leasehold Mortgagee
does not cure a Tenant Default (as hereinafter defined), and this Lease is terminated as provided in Exhibit
“E”, such Leasehold Mortgagee shall be entitled to obtain a new Lease from Landlord on the same terms and conditions as this Lease, as provided in Exhibit “E”; and further, any and all improvements owned by Tenant prior to such termination (if any) shall automatically pass to, vest in and belong to such Leasehold Mortgagee, and shall not become the
property of Landlord unless and until the final expiration or sooner termination of this Lease not followed by a new Lease as provided in Exhibit “E” hereto.
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(c) Notwithstanding anything to
the contrary herein provided, if Tenant or any successor in interest of Tenant shall be a Leasehold Mortgagee, it is specifically understood and agreed that there shall be absolutely no personal liability on the part of such Leasehold Mortgagee
with respect to any of the terms, covenants and conditions of this Lease, and Landlord shall look solely to the Leasehold Estate for the satisfaction of each and every remedy of Landlord in the event of any breach by such Leasehold Mortgagee as
Tenant of any of the terms, covenants and conditions of this Lease to be performed by Tenant, such exculpation of personal liability to be absolute and without any exception whatsoever (subject as aforesaid).
(d) If a Leasehold Mortgagee
requests reasonable modifications or clarifications to the Lease which do not adversely affect Landlord’s rights or obligations under this Lease in any material respect, then Landlord will cooperate with Tenant in order to execute reasonable
documentation in connection therewith.
(e) Any Leasehold Mortgage shall
encumber solely the Leasehold Estate and shall not encumber or be consolidated with any other lands owned or leased by Tenant (unless the Leasehold Mortgage contains a fixed release price applicable solely to the Leased Premises, which release
price is based on the value of the Leased Premises as if the Leasehold Mortgage encumbered solely the Leasehold Estate).
10.04 Landlord’s Lien. Landlord hereby waives and releases any
statutory, constitutional and/or contractual lien for rents against the assets or property of Tenant (other than judgment liens). Although such waiver and release is hereby deemed to be automatic and self-executing, Landlord agrees to execute and
deliver to Tenant within fifteen (15) business days following request therefor such waivers and confirmations as Tenant may request to evidence the foregoing waiver and release, in form and content reasonably acceptable to Landlord.
11.01 Default by Tenant.
(a) The following shall be
deemed to be events of default by Tenant under this Lease (each, a “Tenant Default”): (i) Tenant shall fail to pay when due any installment of Rent or any other payment required pursuant to this Lease within twenty (20) days after Tenant’s receipt
of written notice of nonpayment thereof (a “Monetary Default”); or (ii) Tenant shall fail to comply with any term, provision or covenant of this Lease, other than the payment of Rent, and the failure is not cured within thirty (30) days after
Tenant’s receipt of written notice thereof, or such longer period as may be reasonable under the circumstances so long as Tenant commences to cure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion (a
“Non-Monetary Default”); or (iii) Tenant shall file a petition or be adjudged bankrupt or insolvent under any applicable federal or state bankruptcy or insolvency law or a receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant or Tenant shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors and same is not dismissed within ninety (90) days thereafter; or (iv) this Lease or the Tenant’s Leasehold Estate is
transferred in violation of the requirements of this Lease. Any permitted assignee or lender (including a Leasehold Mortgagee) may cure any Tenant Default hereunder.
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(b) If Landlord shall claim that
Tenant Default exists, Landlord shall have the right, subject to the provisions of Exhibit “E” and any Recognition Agreement executed pursuant to the provisions of this Lease, to institute from time to time an action or actions (i) to recover damages (exclusive of
consequential, punitive, or special damages), (ii) for injunctive and/or other equitable relief, or (iii) only in the event of Monetary Default, or a Non-Monetary Default which has resulted or is reasonably likely to result in irreparable and
material damage to the Leased Premises, to recover possession of the Leased Premises and terminate this Lease. Notwithstanding the foregoing, Landlord agrees that Tenant shall have thirty (30) days after commencement by Landlord of any proceedings
to file an appropriate pleading in the action initiated by Landlord to contest the claim of Tenant Default or to cure such Tenant Default; no action shall be taken by Landlord during such thirty (30) day period to regain possession of the Leased
Premises from Tenant or to terminate this Lease. If the Tenant Default is not cured, Landlord’s rights and Tenant’s obligations shall be resolved by the final determination made by the court in which Landlord’s proceedings were initiated. For
purposes hereof, a “final determination” shall occur when the judgment or order entered can be enforced by execution, issuance of a writ of restitution, judicial sale or specific enforcement and no such judgment or order shall be considered final
for purposes hereof during the pendency of a stay of execution in connection with an appeal. Notwithstanding anything herein to the contrary, if there is a Monetary Default which arises out of a dispute as to an amount owed or the amount of an
offset, this Lease shall not terminate if Tenant pays to Landlord the amount the court determines to be owed within the period of time permitted by law, or ten (10) days after such determination if no such grace period is permitted.
(c) Tenant shall have no
personal, corporate or entity liability under this Lease, and in the event of a Tenant Default, (i) the recourse of Landlord against Tenant with respect to any Tenant Default shall extend only to Tenant’s Leasehold Estate, and not to any other
assets of Tenant or any of its directors, officers, shareholders, employees, agents, constituent partners, members, beneficiaries, trustees or representatives; and (ii) except to the extent of Tenant’s interest in the Leasehold Estate (and the
proceeds therefrom), no personal liability or personal responsibility shall be asserted or enforceable against Tenant or any of its directors, officers, shareholders, employees, agents, constituent partners, members, beneficiaries, trustees or
representatives. The foregoing paragraph shall not be applicable to (A) Tenant’s liability under Section 4.02(b) of this Lease, (B) misappropriation of insurance or condemnation proceeds in contravention of this Lease, (C) conversion of Sublease
rentals and other income from the operation of the Leased Premises following a court order to deliver such amounts to Landlord, (D) willful failure to maintain the insurance coverages required of Tenant hereunder, and (E) a sale, transfer, or
assignment of this Lease and/or the Leased Premises in contravention of Article 9.0 hereof.
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11.02 Default by Landlord. If Landlord fails to comply with any
obligation of Landlord contained in the Lease and such failure continues uncured for a period of thirty (30) days following written notice thereof from Tenant to Landlord, or such longer period as may be reasonable under the circumstances so long
as Landlord commences to cure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion (a “Landlord Default”), then Tenant shall have the right to pursue any and all remedies permitted at law (exclusive of
consequential, punitive, or special damages) or in equity, including, without limitation, specific performance of Landlord’s obligations under this Lease; provided, however, that unless the default by Landlord renders the Leased Premises unusable
for the purposes leased hereunder, Tenant may not seek to terminate this Lease. Notwithstanding anything to the contrary in this Lease, Landlord shall not have any personal liability for any of its obligations as landlord under this Lease except to
the extent of its interest in the Project (which interest includes, without limitation, the proceeds of insurance and condemnation). Tenant will not institute, seek or enforce any personal or deficiency judgment against Landlord or any of
Landlord’s officers, directors, shareholders or partners or their property, except the Project, which shall be available to satisfy any such judgment. If Tenant receives a final, nonappealable judgment for damages against Landlord as a result of an
uncured default by Landlord under this Lease, which is not satisfied within thirty (30) days after it becomes final and nonappealable, then Tenant will have the right to deduct the unpaid amount of such judgment (plus interest) against the Base
Rent and Tenant’s Share of Operating Costs to become due under this Lease until fully credited.
11.03 Rights to Cure. Each party shall have the right, but shall not be required, to pay such sums or do any act which requires the expenditure of monies which may be
necessary or appropriate by reason of the failure or neglect of the other party to perform any of the provisions of this Lease, if such failure or neglect is not cured within the notice and cure period set forth herein. In the event of the exercise
of any such right by Landlord, Tenant agrees to pay to Landlord forthwith upon demand all such sums, as an additional charge. In the event of the exercise of such right by Tenant, Landlord agrees to pay to Tenant forthwith upon demand all such
sums.
11.04 Waiver. Failure of Landlord or Tenant to declare an event of default immediately upon its occurrence, or delay in taking any action in connection with an event
of default, shall not constitute a waiver of the default, but the nondefaulting party shall have the right to declare the default at any time and take such action as is lawful or authorized under this Lease. Pursuit of any one or more of the
remedies set forth in this Article 11.0 above shall not preclude the simultaneous or later pursuit of any one or more of the other remedies provided above or elsewhere in this Lease or provided by law or in equity, nor shall pursuit of any remedy
constitute forfeiture or waiver of any Rent or damages accruing to the nondefaulting party by reason of the violation of any of the terms, provisions or covenants of this Lease. Failure by the nondefaulting party to enforce one or more of the
remedies provided upon an event of default shall not be deemed or construed to constitute a waiver of the default or of any other violation or breach of any of the terms, provisions and covenants contained in this Lease.
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If to Landlord: |
DTS 3MC Parking LLC
0000 XxXxxxx Xxxx, 0xx Xxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxxx E-mail: Xxxx@xxxxxxxxxxxx.xxx |
If to Tenant: |
All Aboard Florida - Operations LLC
0000 XxXxxxx Xxxx, 0xx Xxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxxx E-mail: Xxxxx.Xxxxx@xxxxxxxxxxxxxxxx.xxx |
or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided. All such notices, requests and
other communications shall be deemed to have been sufficiently given for all purposes hereof upon receipt at such address if delivered in person or by overnight delivery, or if mailed, upon deposit of both the original and any required copies in a
post office or official depository of the United States Postal Service. E-mail addresses are for reference only and any required notices must be delivered by one of the other specified methods of delivery in order to be effective.
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13.06 Governing Law; Venue. This Lease and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. The
exclusive venue with respect to any action or proceeding arising hereunder shall be in the County in which the Leased Premises is located, and each party waives, to the fullest extent permitted by law, any objection that it may have to the venue of
any such action or proceeding being in any federal court or state court in the County in which the Leased Premises is located.
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13.12 Radon. Florida law requires the following notice to be provided with respect to the contract for sale and purchase of any building, or a rental agreement for any
building: “RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present 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 in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.”
Exhibit “A”
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Floor Plans of Leased Premises
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Exhibit “B”
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Permitted Exceptions
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Exhibit “C”
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Calculation of Tenant’s Share
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Exhibit “D”
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Subordination, Non-Disturbance and Attornment Agreement
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Exhibit “E”
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Leasehold Mortgage Provisions
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Exhibit “F”
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Memorandum of Lease
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(a) Landlord hereby grants
Tenant the option to renew (the “Renewal Option”) the Initial Term (not to include, for purposes of this Section, the Renewal Terms, as hereinafter defined) for four (4) additional terms of sixty (60) months each (each, a “Renewal Term” and
collectively, the “Renewal Terms”), commencing as of the date immediately following the expiration of the then-current Term, such option to be subject to the covenants and conditions set forth in this Section.
(b) Tenant shall give Landlord
written notice (the “Renewal Notice”) of Tenant’s election to exercise its Renewal Option not later than twelve (12) months prior to the expiration of the then-current Term; provided that Tenant’s failure to give the Renewal Notice by said date,
whether due to Tenant’s oversight or failure to cure any existing defaults or otherwise, shall render the Renewal Option null and void and of no further force or effect.
(c) Tenant shall not be
permitted to exercise the Renewal Option at any time during which Tenant is in default under this Lease, subject to applicable notice and grace periods. If Tenant fails to cure any default under this Lease prior to the commencement of the upcoming
Renewal Term, subject to applicable notice and grace periods, the Renewal Terms shall be immediately cancelled, unless Landlord elects to waive such default, and Tenant shall forthwith deliver possession of the Premises to Landlord as of the
expiration or earlier termination of the then-current Term of this Lease.
(d) Tenant shall be deemed to
have accepted the Premises in “as-is” condition as of the commencement of each Renewal Term, subject to any other repair and maintenance obligations of Landlord under this Lease, it being understood and agreed that Landlord shall have no additional
obligation to renovate or remodel the Leased Premises or any portion of the Project as a result of Tenant’s renewal of this Lease.
(e) The covenants and conditions
of this Lease in force during the Initial Term, as the same may be modified from time to time, shall continue to be in effect during the Renewal Terms, except as follows:
(i) The “Commencement Date” and
“Rent Commencement Date” for the purpose of this Lease shall be the first day of the applicable Renewal Term.
(ii) The Base Rent for the
first year of each Renewal Term shall be an amount equal to the Base Rent for the immediately prior year, plus ten (10%) percent, which Base Rent shall then remain fixed for the remainder of the applicable Renewal Term.
(iii) Following expiration of the
fourth Renewal Term, Tenant shall have no further right to renew or extend this Lease.
[signatures on next page]
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Signed, sealed and delivered in the presence of:
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LANDLORD:
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||||||
DTS 3MC PARKING LLC, a Delaware limited liability company | |||||||
/s/ Xxxxxxxx Xxxxxxxxx
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By:
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/s/ Xxxxxxx Xxxx
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|||||
Print Name:
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Xxxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx Xxxx
|
||||
Title:
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Vice President
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||||||
/s/ Xxxxxxx Xxxxx
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|||||||
Print Name:
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Xxxxxxx Xxxxx
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Date: | ________________________, 20__ |
TENANT: | |||||||
ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company
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|||||||
/s/ Xxxxxxxx Xxxxxxxxx
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By:
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/s/ Xxxxxxx Xxxx
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|||||
Print Name:
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Xxxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx Xxxx
|
||||
Title:
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Vice President
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||||||
/s/ Xxxxxxx Xxxxx
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|||||||
Print Name:
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Xxxxxxx Xxxxx
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Date: | ________________________, 20__ |
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CONSENT OF OVERLANDLORD AND RECOGNITION OF TENANT
3MC PARKING LLC, a Delaware limited liability company (“Overlandlord”), being the Overlandlord described in the foregoing Garage Lease
(“Garage Lease”), does hereby consent to the foregoing Garage Lease and does hereby agree as follows: Overlandlord shall not, in the exercise of any of the rights arising or which may arise out of the Ground Lease or of any instrument modifying or
amending the same or entered into in substitution or replacement thereof (whether as a result of default by Landlord or otherwise), disturb or deprive Tenant in or of its possession or its rights to possession of the Leased Premises or of any right
or privilege granted to or inuring to the benefit of Tenant under the Garage Lease, provided that Tenant is not in default under the Garage Lease beyond the expiration of any applicable notice and cure period. In the event of the termination of the
Ground Lease by reentry, notice, conditional limitation, surrender, summary proceeding or other action or proceeding, or otherwise, or, if the Ground Lease shall terminate or expire for any reason before any of the dates provided in the Garage Lease
for the termination of the initial or renewal terms of the Garage Lease and if immediately prior to such surrender, termination or expiration the Garage Lease shall be in full force and effect, Tenant shall not be made a party in any removal or
eviction action or proceeding nor shall Tenant be evicted or removed of its possession or its right of possession of the Leased Premises be disturbed or in any way interfered with, and the (as Garage Lease shall continue in full force and effect as a
direct lease between Overlandlord and Tenant. In addition, Overlandlord hereby acknowledges and agrees that it shall recognize the rights of a Leasehold Mortgagee and that a Leasehold Mortgagee shall have full benefit of those terms and provisions
contained in the Garage Lease applicable to a Leasehold Mortgage and the rights of a Leasehold Mortgagee in connection therewith, including but not limited to those set forth in Exhibit “E” to the Garage Lease. Defined terms herein have the same
meaning as in the Garage Lease, except as otherwise noted.
Signed, sealed and delivered in the presence of: | OVERLANDLORD: | ||||||
3MC PARKING LLC, a Delaware limited liability company
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|||||||
/s/ Xxxxxxxx Xxxxxxxxx
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By:
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/s/ Xxxxxxx Xxxx
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|||||
Print Name:
|
Xxxxxxxx Xxxxxxxxx
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Name:
|
Xxxxxxx Xxxx
|
||||
Title:
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Vice President
|
||||||
/s/ Xxxxxxx Xxxxx
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|||||||
Print Name:
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Xxxxxxx Xxxxx
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Date: | ________________________, 20__ |
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