Item P16 P.16
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
May 22, 2019
Agenda Item Number: P.16
Agenda Item Summary #5599
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Patricia Eables (305) 292-3477
N/A
AGENDA ITEM WORDING: Authorization for Mayor to execute a letter to Key Marina
Development, LLC and LV Lending LLC indicating that the County has no objection to Key Marina
executing a Leasehold Mortgage and Security Agreement with LV Lending, LLC, regarding the
"Mandalay" property on Second Avenue in Key Largo.
ITEM BACKGROUND: The County, in its capacity as the Lessor, approved a Right-of-Way
Lease Agreement and Consent to Assignment of Lease ("ROW Lease"), with Key Marina
Development, LLC, as Lessee, and Florida Keys Quality Foods, Inc., as Sub-Lessee, on October 18,
2017. This Lease involves a small historic encroachment upon the Second Avenue public right-of-
way in Key Largo, on which a restaurant building sits in the County right-of-way. The restaurant is
owned and operated by the aforementioned parties.
Key Marina is developing the entire site, known as the "Mandalay property" on which the
encroaching building is located. Paragraph 25 of the Lease (Prohibitions Against Liens or Other
Encumbrances), provides that the Lessee may mortgage its leasehold interest in the premises
provided such mortgage interest is subordinate to the terms and conditions of the ROW Lease. Key
Marina must provide any such mortgage documents to the County, however, prior to any closing to
verify that the appropriate language is in the proposed documents.
Key Marina executed a Mortgage and Security and Security Agreement with LV Lending, LLC, on
February 4, 2019, which is recorded in the Official Records of Monroe County at Book 2947, Page
2204, in which it granted a fee interest in its property to LV Lending. Due to the County Lease, Key
Marina now needs to execute an Amended and Restated Fee and Leasehold Mortgage and Security
Agreement and Spreader Agreement, which references the aforementioned February 2019 Mortgage,
in order to give a fee and leasehold interest to LV Lending.
If approved, this item would authorize the Mayor to execute a letter directed to Key Marina
Development and LV Lending that the County has no objection to the Amended and Restated
Leasehold Mortgage and Security Agreement, which will be executed by Key Marina. Execution of
this document will not trigger any default by Key Marina under the Right-of-Way Lease and the
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P.16
County's interest is still protected.
PREVIOUS RELEVANT BOCC ACTION:
October 18, 2017 BOCC approved a new Right-of-Way Lease agreement with Key Marina
Development, LLC, and Consent to Assignment of Lease to Florida Keys
Quality Foods, Inc.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
BOCC Letter on Restated Fee & Leasehold Mortage (May 2019)
AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE(2019)
Mortgage and Security Agreement (Recorded) - Key Marina
RECORDED ROW LEASE CONSENT TO ASSIGN (MANDALAY) BOCC 10 18 17 (N3)
FINANCIAL IMPACT:
Effective Date: N/A
Expiration Date:
Total Dollar Value of Contract: N/A
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details: This item does not affect the terms of the Right-of-Way Lease in any manner.
REVIEWED BY:
Bob Shillinger Completed 05/07/2019 4:33 PM
Patricia Eables Completed 05/07/2019 5:00 PM
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P.16
Budget and Finance Completed 05/07/2019 5:12 PM
Maria Slavik Completed 05/07/2019 6:54 PM
Kathy Peters Completed 05/07/2019 8:30 PM
Board of County Commissioners Pending 05/22/2019 9:00 AM
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BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia J.Murphy,District 5
The Florida Keys Mayor Pro TernDanny L.Kolhage,District 1
Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
May 22, 2019
Key Marina Development, LLC 0.
52 Riley Road 2
Unite 155
Celebration, FL 34747
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LV Lending, LLC
175 SW 7fh Street
Suite 2101
Miami, FL 33130
RE: Key Marina Development, LLC
Amended and Restated Fee and Leasehold Mortgage and Security
Agreement and Spreader Agreement
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To Whom It May Concern:
Key Marina Development, LLC, ("Key Marina"), is the Lessee under that certain Right-of-Way
Lease Agreement with Monroe County approved on October 18, 2017. The County has received for
review a proposed Amended and Restated Fee and Leasehold Mortgage and Security Agreement and 2
Spreader Agreement ("Amended Leasehold Mortgage and Security Agreement") from Key Marina 2
regarding property located in Key Largo and described on Schedule "A" attached to the aforementioned a
document. A copy of the proposed document submitted to the County for review is enclosed for your
convenience. Under paragraph 25 of its Right-of-Way Lease Agreement with Monroe County, Key
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Marina must submit any proposed mortgage documents to Monroe County to verify appropriate language
is included in such proposed documents to protect the County's interest. U-
The Leasehold Mortgage and Security Agreement has been reviewed by legal staff for the County
and this item was considered by the Board of County Commissioners ("BOCC") at its May 22, 2019,
meeting. This letter is to advise that the BOCC has no objections to Key Marina proceeding with
execution of the Amended Leasehold Mortgage and Security Agreement that is enclosed. The execution
of this document will not result in any default of Key Marina's Lease with the County. a�
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Please send a recorded copy of this document to the County Attorney's Office,Attention—Patricia
Eables, Esq., P. O. Box 1026, Key West, Florida 33041. If you need any additional information, please 00
contact the County Attorney's Office at 305-292-3470.
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Sincerely,
Mayor Sylvia Murphy
Enclosure
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Prepared by and after
recording return to: �
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Rebecca L. Mendez, Esq. 2
Holland &Knight LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE AND SECURITY
AGREEMENT AND SPREADER AGREEMENT
This AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE AND
SECURITY AGREEMENT AND SPREADER AGREEMENT dated , 2019
(together with any amendments or modifications hereto in effect from time to time, the
"Mortgage"),is made by KEY MARINA DEVELOPMENT,L.L.C., a Florida limited liability
company, having an address of 52 Riley Road, Unit 155, Celebration, Florida 34747 W
("Mortgagor") in favor of LV LENDING LLC, a Florida limited liability company, having an
office at 175 SW 7th Street, Suite 2101, Miami, Florida 33130 ("Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of Two Million
Two Hundred Thousand and No/100 Dollars ($2,200,000.00) (the"Loan"), together with interest
thereon, as evidenced by a Promissory Note dated as of February 4, 2019 from Mortgagor to
Mortgagee(the "Note");
WHEREAS,Mortgagor's obligations to Mortgagee as contained in the Note were secured
by (i) a Mortgage and Security Agreement executed as of February 4, 2019 by Mortgagor in favor U-
of Mortgagee encumbering the property more particularly described therein and recorded in W
Official Records Book 2947 at Page 2204, of the Public Records of Monroe County, Florida, (the
"Original Mortgage"), (ii) an Assignment of Leases, Rents and Profits by Mortgagor in favor of
Mortgagee, recorded in Official Records Book 2947 at Page 2241, of the Public Records of
Monroe County, Florida (the "Assignment of Rents"), (iii) a UCC Financing Statement recorded z
in Official Records Book 2947, Page 2252, of the Public Records of Monroe County, Florida(the
"UCC-1"), and(iv) other instruments, documents, security agreements and collateral assignments W
NOTE TO RECORDER: All documentary stamp and intangible taxes was paid on the Note
(defined above) at the time of the recordation of the Original Mortgage (defined above) that is
modified hereby. Therefore, no additional documentary stamp or intangible tax is due in
connection with the recordation of this instrument. E
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This instrument is to be filed and indexed in the real estate records and is also to be indexed in the
index of financing statements under the names of Mortgagor, as "Debtor," and Mortgagee, as
"Secured Party." this instrument shall also be effective from the date of its recording as a financing
statement filed as a fixture filing with respect to all goods constituting part of the Property which
are or are to become fixtures.
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executed and delivered by Mortgagor or its affiliates (collectively, the"Other Loan Documents",-
the Mortgage, the Assignment of Rents, the UCC-1 and the Other Loan Documents;
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WHEREAS, Mortgagor is the owner of fee simple title together with a leasehold estate in
and to that certain tract of land located in Monroe County, Florida, as more particularly described
in Schedule "A" attached hereto and made a part hereof(collectively, the "Real Estate"); and E
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WHEREAS, Mortgagor and Mortgagee desire hereby to amend and restate the Original
Mortgage in its entirety to secure all of the indebtedness evidenced by the Note.
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NOW THEREFORE, for and in consideration of the mutual covenants and conditions contained
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Mortgagor and Mortgagee hereby agree as follows:
1. The foregoing recitals are true and correct and constitute a material part of this
Mortgage.
2. Mortgagor acknowledges that it has no defenses, counterclaims or offsets with
respect to any of its obligations contained in the Original Mortgage or the Note.
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3. The Original Mortgage is hereby amended and restated in its entirety to read as
follows:
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all sums due under W
this Mortgage, the Note(and all extensions,renewals,replacements and amendments thereof) and
the other Loan Documents (as such term is defined in the Note, the "Loan Documents"); (ii) the
performance of all terms, conditions and covenants set forth in the Loan Documents; z
(iii) [reserved]; (iv) the repayment of all reimbursement obligations due or that may become due W
under or in connection with any present or future letters of credit issued by Mortgagee for the U_
account of Mortgagor; and(v) all other obligations or indebtedness of Mortgagor to Mortgagee of W
whatever kind or character and whenever borrowed or incurred, including without limitation,
principal, interest, fees, late charges and expenses, including attorneys' fees (subsections (i), (ii),
(iii), (iv)and(v) collectively, the"Liabilities"),Mortgagor has mortgaged, granted and conveyed
and by these presents DOES HEREBY MORTGAGE, GRANT AND CONVEY TO z
MORTGAGEE,ITS SUCCESSORS AND ASSIGNS,all of Mortgagor's right,title and interest
now owned or hereafter acquired in and to each of the following (collectively, the "Property"): W
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(A) The fee and leasehold estate of Mortgagor in the Real Estate, as applicable;
(B) All buildings, structures, facilities,utility lines and other improvements located on,
in, under or above or comprising any of the Real Estate (the "Improvements"); E
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(C) All easements, plants, landscaping, water rights, mineral rights, water taps, sewer
taps, rents, tenements, appurtenances and hereditaments located on, in, under or above, or
belonging or appertaining to, any of the Real Estate or the Improvements (collectively,
"Appurtenances");
(D) All awards and payments,including interest thereon, and the right to receive them
which may be made with respect to any part of the Real Estate or the Improvements as a result of
the exercise of the right of eminent domain, the alteration of the grade of any street, or any other
damage or injury to or decrease in the value of the Real Estate or the Improvements;
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(E) All fixtures, equipment and other goods now or hereafter located on and used in
connection with any of the Real Estate or the Improvements (all of the foregoing herein called the
"Service Equipment"),including without limitation: (i)all appliances,furniture and furnishings;
all articles of interior decoration, floor, wall and window coverings; all office, restaurant, bar
kitchen and laundry fixtures, utensils, appliances and equipment; all supplies, tools and
accessories; all storm and screen windows, shutters, doors, decorations, awnings, shades, blinds,
signs, trees, shrubbery and other plantings; (ii) all building service fixtures, machinery and
equipment of any kind whatsoever; all lighting,heating,ventilating, air conditioning,refrigerating
sprinkling,plumbing, security,irrigating, cleaning, incinerating, waste disposal, communications,
alarm, fire prevention and extinguishing systems, fixtures, apparatus, machinery and equipment; W
all elevators, escalators, lifts, cranes, hoists and platforms; all pipes, conduits, pumps, boilers,
tanks, motors, engines, furnaces and compressors; all dynamos, transformers and generators; (iii)
all building materials, building machinery and building equipment delivered on site to the Real
Estate during the course of, or in connection with any construction or repair or renovation of the
buildings and improvements; (iv) all parts, fittings, accessories, accessions, substitutions and
replacements therefor and thereof, and (v) all files, books, ledgers, reports and records relating to Z:
any of the foregoing;
(F) All leases, licenses, concessions, occupancy or other agreements for all or any
portion of the Real Estate or the Improvements now or subsequently entered into (collectively, the z
"Leases") and all rents, royalties, issues, profits, revenue, income and other benefits of the Real
Estate or the Improvements (collectively, "Rents") now or subsequently arising from the use or U-
enjoyment or from Leases pertaining to the Real Estate or the Improvements or arising from any W
of the Contracts (as defined below) or any of the General Intangibles (as defined below) and all
cash or securities deposited to secure performance by the tenants, lessees or licensees, as
applicable, of their obligations under any such leases, licenses, concessions or occupancy
agreements, whether said cash or securities are to be held until the expiration of the terms of said z
leases,licenses, concessions or occupancy agreements or applied to one or more of the installments
of rent coming due arising from or relating to any of the Real Estate or the Improvements; W
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(G) All of Mortgagor's right, title and interest in and to that certain Right of Way Lease
Agreement and Consent to Assignment of Lease by and between Monroe County, as lessor,
Mortgagor, as lessee, and Florida Keys Quality Foods, Inc., as sublessee, dated as of October 18,
2017, recorded in Official Records Book 2877, at Page 1916 of the Public Records of Monroe
County, Florida (as amended from time to time, the "Ground Lease"; the lessor, "Lessor"); and
the leasehold estates created by the foregoing Ground Lease, together with all modifications,
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extensions and renewals of the Ground Lease and all credits, deposits (including, without
limitation, any deposit of cash or securities or any other property which may be held to secure
Mortgagor's performance of its obligations under the Ground Lease), options,privileges and rights
of Mortgagor as lessee under the Ground Lease, including, but not limited to, the right, if any, to
renew or extend the Ground Lease for a succeeding term or terms and all the estate, right, title,
claim or demand whatsoever of Mortgagor either in law or in equity,in possession or expectancy E
of, in and to the Property or any part thereof, and 2
(H) All of the following personal property(collectively referred to as the"Contracts"):
instruments, chattel paper, letter-of-credit rights, investment property, deposit accounts (the
foregoing terms being used herein as defined in the Code (as defined herein) whether or not such
collateral is subject thereto), general intangibles and contract rights (including, but not limited to,
(i)all architectural contracts, construction contracts,plans and specifications, and construction and
other warranties, (ii) all service contracts, purchase contracts, reservation agreements,
management contracts, equipment leases and other contracts (including all deposits, prepaid
expenses thereon, insurance policies and unearned premiums thereon), (iii) all licenses, building
and other permits,books,records, customer lists,computer programs, software and printouts,trade
names and trademarks and (iv) all abstracts and other title evidence) and insurance policy rights
and claims arising from or related to any of the Real Estate or the Improvements, the construction C
thereof or any business or activity conducted thereon,but exclusively if such Contract relates to or W
is used in connection with the ownership, operation and/or maintenance of the Real Estate and/or
the Improvements;
(H) All insurance policies, claims and proceeds relating to the Real Estate or the
Improvements or any activity thereon; and
(I) All present and future funds, accounts, instruments, accounts receivable, (n
documents, causes of action, claims, general intangibles (including trademarks, trade names, W
service marks and symbols now or subsequently used in connection with any part of the Real Estate
or the Improvements, all names by which the Real Estate or the Improvements may be operated or z
known, all rights to carry on business under such names, and all rights, interest and privileges W
which Mortgagor has or may have as developer or declarant under any covenants, restrictions or U-
declarations now or subsequently relating to the Real Estate or the Improvements) and all notes or W
chattel paper now or subsequently arising from or by virtue of any transactions related to the Real
Estate or the Improvements, and all customer lists, other lists and business information relating in
any way to the Real Estate, the Improvements, other portions of the Property or its use
(collectively, "General Intangibles"); and z
(J) All water taps, sewer taps, certificates of occupancy, permits, licenses, franchises
plats, certificates,consents,approvals and other rights and privileges now or subsequently obtained z
in connection with the Real Estate or the Improvements and all present and future warranties and
guaranties relating to the Improvements or to any equipment, fixtures, furniture, furnishings,
personal property or components of any of the foregoing now or subsequently located or installed
on the Real Estate or the Improvements; E
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(K) All licenses and permits in the name of Mortgagor,including occupational, city and
county,used in connection with the operation of the Real Estate(the"Licenses"), and to the extent
assignable, all of Mortgagor's development rights, authorizations, approvals and entitlements in
connection with the Real Estate(the "Development Rights");
(L) All other or greater rights and interests of every nature in the Real Estate or the
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Improvements and in the possession or use thereof and income therefrom; and 2
(M) All extensions, additions, improvements, betterments, proceeds, products,
replacements, additions, substitutions, renewals and accessions of or to any of the foregoing
including the Real Estate or the Improvements and all inventory, accounts, chattel paper
documents, instruments, equipment, fixtures, farm products, consumer goods, general intangibles
and other property of any nature constituting proceeds acquired with proceeds of any of the
property described above,which term"proceeds" shall have the meaning given to it in the Uniform
Commercial Code, as amended, (the "Code") of the State in which the Property is located
(collectively, the "Proceeds") and shall additionally include whatever is received upon the use,
lease, sale, exchange, transfer, collection or other utilization or any disposition or conversion of
any of the Real Estate, Improvements, Service Equipment, Leases, Rents, Contracts, the Ground
Lease and Appurtenances, General Intangibles, Licenses and Development Rights voluntary or
involuntary,whether cash or non-cash,including proceeds of insurance and condemnation awards,
rental or lease payments, accounts, chattel paper, instruments, documents, contract rights, general
intangibles, equipment and inventory.
TO HAVE AND TO HOLD the above granted and conveyed Property unto and to the
proper use and benefit of Mortgagee and its successors and assigns, forever.
0
PROVIDED ALWAYS, and these presents are upon the express condition, that if(i) all W
the Liabilities, are paid in full, and (ii) each and every representation, warranty, agreement and
covenant of this Mortgage and the other Loan Documents are complied with and abided by, then
this Mortgage and the estate hereby created shall cease and be null and void and canceled of record. Z
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The terms of the Loan Documents are hereby made a part of this Mortgage to the same
extent and with the same effect as if fully set forth herein. All capitalized terms not otherwise a
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defined herein shall have the meaning ascribed to them in the Loan Documents.
AND Mortgagor covenants and agrees with and represents to Mortgagee as follows:
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall secure
any additional loans as well as any and all present or future advances and readvances under the W
Liabilities made by Mortgagee to or for the benefit of Mortgagor or the Property within twenty z
(20)years from the date hereof(whether such advances are obligatory or are made at the option of W
Mortgagee or otherwise), including, without limitation: (i) principal, interest, late charges, fees
and other amounts due under the Liabilities or this Mortgage; (ii) all advances by Mortgagee to
Mortgagor or any other person to pay costs of erection, construction, alteration,repair,restoration E
maintenance and completion of any improvements on the Property; (iii)all advances made or costs
incurred by Mortgagee for the payment of real estate taxes, assessments or other governmental
charges, maintenance charges, insurance premiums, appraisal charges, environmental inspection,
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audit, testing or compliance costs, and costs incurred by Mortgagee for the enforcement and
protection of the Property or the lien of this Mortgage; and (iv) all legal fees, costs and other
expenses incurred by Mortgagee by reason of any default or otherwise in connection with the
Liabilities. The total amount of the Liabilities that may be so secured may decrease to a zero
amount from time to time, or may increase from time to time,but the total unpaid balance secured a
at any one time shall not exceed Eight Million Eight Hundred Thousand and No/100 Dollars E
($8,800,000.00). 2
Mortgagor agrees that if, at any time during the term of this Mortgage or following the
commencement of a foreclosure action hereunder(whether before or after the entry of a judgment
of foreclosure), Mortgagor fails to perform or observe any covenant or obligation under this
Mortgage including, without limitation, payment of any of the foregoing, Mortgagee may (but
shall not be obligated to) take such steps as are reasonably necessary to remedy any such
nonperformance or nonobservance and provide payment thereof. All amounts advanced by
Mortgagee shall be added to the amount secured by this Mortgage and the other Loan Documents
(and, if advanced after the entry of a judgment of foreclosure, by such judgment of foreclosure),
and shall be due and payable on demand, together with interest at the Default Rate (as defined in
the Note) set forth in the Note, such interest to be calculated from the date of such advance to the
date of repayment thereof.
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2. REPRESENTATIONS,WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee all sums
required to be paid by Mortgagor under the Loan Documents,in accordance with their stated terms
and conditions; (b)perform and comply with all terms, conditions and covenants set forth in each
of the Loan Documents by which Mortgagor is bound; and (c) perform and comply with all of Z:
Mortgagor's obligations and duties as landlord under any Leases.
2.2. Seisin and Warranty. Mortgagor hereby warrants that(a) Mortgagor is seized of
an indefeasible estate in fee simple and leasehold estate in, and warrants the title to, the Property; z
(b)Mortgagor has the right, full power and lawful authority to mortgage, grant, convey and assign
the same to Mortgagee in the manner and form set forth herein; and (c) this Mortgage is a valid U-
and enforceable first lien on the Property. Mortgagor hereby covenants that Mortgagor shall W
(a)preserve such title and the validity and priority of the lien of this Mortgage and shall forever
warrant and defend the same to Mortgagee against all lawful claims whatsoever; and (b) execute,
acknowledge and deliver all such further documents or assurances as may at any time hereafter be
reasonably required by Mortgagee to protect fully the lien of this Mortgage.
2.3. Insurance. Mortgagor shall obtain and maintain at all times throughout the term
of this Mortgage the insurance required pursuant to the terms of the Loan Agreement. Z
2
2.4. Taxes and Other Charges. Mortgagor shall promptly pay and discharge all taxes,
assessments, water and sewer rents, and other governmental charges imposed upon the Property a
prior to delinquency, but in no event after interest or penalties commence to accrue thereon or E
become a lien upon the Property. Notwithstanding the foregoing, Mortgagor shall have the right
to contest, at its own expense, by appropriate legal proceedings conducted in good faith and with
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due diligence, the amount or validity of such taxes, assessments, water and sewer rents, or other
governmental charges, provided that: (a) Mortgagor has established on its books or by deposit of
cash with Mortgagee, at the option of Mortgagee, a reserve for the payment thereof in such amount
as Mortgagee may require; and (b) such contest operates to prevent collection, stay any
proceedings which may be instituted to enforce payment of such item, and prevent a sale of the a
Property to pay such item. Mortgagor shall promptly provide to Mortgagee, upon request, copies E
of receipted tax bills, canceled checks or other evidence satisfactory to Mortgagee evidencing that 2
such taxes, assessments, water and sewer rents, and other governmental charges have been timely
paid.
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2.5. Escrows. During the term of the Loan, the Mortgagor shall provide Mortgagee
with evidence of payment of all real estate taxes and insurance premiums with respect to the
Property. If required by Mortgagee at any time after the occurrence of an Event of Default,
Mortgagor shall pay to Mortgagee at the time of each installment of interest or of interest and
principal, as the case may be, due under the Note, and commencing with the first payment due
after the date of such request, a sum equal to (a) the amount of the next installment of taxes and
assessments levied or assessed against the Property, and/or (b) the premiums which will next
become due on the insurance policies required by this Mortgage, all in amounts as estimated by
Mortgagee, less all sums already paid therefor or deposited with Mortgagee for the payment
thereof, divided by the number of payments to become due before two (2)months prior to the date W
when such taxes and assessments and/or premiums, as applicable, will become due, such sums to
be held by Mortgagee to pay the same when due. If such escrow funds are not sufficient to pay
such taxes and assessments and/or insurance premiums, as applicable, as the same become due, 0
Mortgagor shall pay to Mortgagee, upon request, such additional amounts as Mortgagee shall
estimate to be sufficient to make up any deficiency. No amount paid to Mortgagee hereunder shall
be deemed to be trust funds but may be commingled with general funds of Mortgagee and no Z:
interest shall be payable thereon. Upon the occurrence of an Event of Default, Mortgagee shall
have the right, at its sole discretion, to apply any amounts so held against the Liabilities.
2.6. Transfer of Title. Without the prior written consent of Mortgagee in each instance
Mortgagor shall not cause or permit any transfer of the Property or any part thereof, whether W
voluntarily, involuntarily or by operation of law, nor shall Mortgagor enter into any agreement or U-
transaction to transfer,or accomplish in form or substance a transfer,of the Property. A"transfer" W
of the Property includes: (a) the direct or indirect sale, transfer or conveyance of the Property or
any portion thereof or interest therein; (b) the execution of an installment sale contract or similar
instrument affecting all or any portion of the Property, (c)if Mortgagor, or any general partner or
member of Mortgagor, is a corporation, partnership, limited liability company or other business z
entity, the transfer (whether in one transaction or a series of transactions and whether a direct or
indirect transfer) of any stock,partnership, limited liability company or other ownership interests W
in such corporation, partnership, limited liability company or entity; (d) if Mortgagor or any z
member of Mortgagor is a corporation,the creation or issuance of new stock by which an aggregate
of 10% or more of such corporation's stock shall be vested in a party or parties who are not now
4j
stockholders or has the effect of diluting by more than 10% of any current stockholder's, a
shareholder's equity or membership interests; and (e) an agreement by Mortgagor leasing all or a E
substantial part of the Property for other than actual occupancy by a space tenant thereunder or a
sale, assignment or other transfer of or the grant of a security interest in and to any Leases.
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Additionally, any change in the present ownership (directly or indirectly)of the Mortgagor or change
in ownership structure of Mortgagor(directly or indirectly) shall constitute a default hereunder.
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2.7. No Encumbrances. Mortgagor shall not create or permit to exist any mortgage,
pledge, lien security interest (including, without limitation, a purchase money security interest), a
encumbrance, attachment,levy, distraint or other judicial process on or against the Property or any E
part thereof (including, without limitation, fixtures and other personalty), whether superior or 2
inferior to the lien of this Mortgage, without the prior written consent of Mortgagee. Neither
Mortgagor nor its constituents shall obtain any mezzanine or other secondary financing. Any loans
between members of Mortgagor and Mortgagor shall be subordinate in all respects to the
repayment of the Loan.
2.8 No Modifications; No Construction Without Mortmee's Prior Written
Consent. Mortgagor shall obtain Mortgagee's written consent prior to making any modifications
to the existing improvements on the Property, which consent shall be in Mortgagee's sole
discretion. Furthermore, Mortgagor shall obtain Mortgagee's written consent prior to the
commencement of any construction at the Property, which consent shall be in Mortgagee's sole
discretion and may be conditioned upon Mortgagee's then applicable underwriting requirements
for such construction.
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2.9. Removal of Fixtures. Mortgagor shall not (except in the ordinary course of
business)remove or permit to be removed from the Property any fixtures presently or in the future
owned by Mortgagor as the term "fixtures" is defined by the law of the state where the Property is 0
located(unless such fixtures have been replaced with similar fixtures of equal or greater utility and
value).
2.10. Maintenance and Repair; Alterations. (a) Mortgagor shall (i) abstain from and W
not permit the commission of waste in or about the Property, (ii)keep the Property, at Mortgagor's W
own cost and expense, in good and substantial repair, working order and condition; (iii) make or
cause to be made, as and when necessary, all repairs and replacements, whether or not insurance Z
proceeds are available therefor; and (iv) not remove, demolish, materially alter, discontinue the W
use of, permit to become deserted, or otherwise dispose of all or any part of the Property. All U_
alterations, replacements, renewals or additions made pursuant hereto shall automatically become W
a part of the Property and shall be covered by the lien of this Mortgage.
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(b) Mortgagee, and any persons authorized by Mortgagee, shall have the right, but
not the obligation, to enter upon the Property at any reasonable time to inspect and photograph its z
condition and state of repair. In the event any such inspection reveals, in the sole discretion of
Mortgagee, the necessity for any repair, alteration, replacement, clean-up or maintenance, W
Mortgagor shall, at the discretion of Mortgagee, either: (i) cause such work to be effected Z
promptly; or(ii)promptly establish an interest bearing reserve fund with Mortgagee in an amount
reasonably determined by Mortgagee for the purpose of effecting such work.
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2.11. Compliance with Applicable Laws. Mortgagor agrees to observe, conform and
comply, and to cause its tenants (or subtenants) to observe, conform and comply with all federal,
state, county, municipal and other governmental or quasi-governmental laws, rules, regulations,
8
Packet Pg. 2843
P.16.b
ordinances, codes, requirements, covenants, conditions, orders, licenses, permits, approvals and
restrictions, including without limitation, Environmental Laws (as defined below) and the
Americans with Disabilities Act of 1990 (collectively, the "Legal Requirements"), now or
hereafter affecting all or any part of the Property, its occupancy or the business or operations now
or hereafter conducted thereon and the personalty contained therein, within such time as required a
by such Legal Requirements. Mortgagor represents and warrants that, to the best of Mortgagor's E
knowledge, the Property currently is in compliance with all Legal Requirements applicable to the 2
Property.
2.12. Damage, Destruction and Condemnation.
(a) If all or any part of the Property shall be damaged or destroyed, or if title to or
the temporary use of the whole or any part of the Property shall be taken or condemned by a
competent authority for any public or quasi-public use or purpose, there shall be no abatement or
reduction in the amounts payable by Mortgagor under the Loan Documents and Mortgagor shall
continue to be obligated to make such payments.
(b) If all or any part of the Property is partially or totally damaged or destroyed,
Mortgagor shall give prompt notice thereof to Mortgagee, and Mortgagee may make proof of loss
if not made promptly by Mortgagor. Mortgagor hereby authorizes and directs any affected
insurance company to make payment under such insurance, including return of unearned
premiums, to Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor appoints
Mortgagee as Mortgagor's attorney-in-fact to endorse any draft thereof,which appointment,being
for security, is coupled with an interest and irrevocable. Mortgagee is hereby authorized and
empowered by Mortgagor to settle, adjust or compromise, in consultation with Mortgagor, any
claims for loss, damage or destruction to the Property. Mortgagor shall pay all costs of collection 0
of insurance proceeds payable on account of such damage or destruction. Mortgagor shall have W
no claim against the insurance proceeds, or be entitled to any portion thereof, and all rights to the
insurance proceeds are hereby assigned to Mortgagee as security for payment of the Liabilities.
Mortgagee shall have the option, in its sole discretion, of paying or applying all or any part of the Z
insurance proceeds to: (i)reduction of the Liabilities; (ii)restoration,replacement or repair of the W
Property in accordance with Mortgagee's standard construction loan disbursement conditions and U_
requirements; or(iii) Mortgagor. a
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(c) Promptly upon obtaining knowledge of the institution of any proceeding for the
condemnation of all or any part of the Property, Mortgagor shall give notice to Mortgagee. W
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Mortgagor shall, at its sole cost and expense, diligently prosecute any such proceeding and shall
consult with Mortgagee,its attorneys and experts, and shall cooperate with it in the defense of any
such proceeding. Mortgagee may participate in any such proceeding and Mortgagor shall from a
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time to time deliver to Mortgagee all instruments requested by it to permit such participation.
Mortgagor shall not, without Mortgagee's prior written consent, enter into any agreement (i) for W
the taking or conveyance in lieu thereof of all or any part of the Property, or (ii) to compromise,
settle or adjust any such proceeding. All awards and proceeds of condemnation are hereby C
assigned to Mortgagee, and Mortgagor, upon request by Mortgagee, agrees to make, execute and E
deliver any additional assignments or documents necessary from time to time to enable Mortgagee
to collect the same. Such awards and proceeds shall be paid or applied by Mortgagee, in its sole
discretion,to: (i)reduction of the Liabilities; (ii)restoration,replacement or repair of the Property
9
Packet Pg. 2844
P.16.b
in accordance with Mortgagee's standard construction loan disbursement conditions and
requirements; or(iii) Mortgagor.
(d) Nothing herein shall relieve Mortgagor of its duty to repair, restore, rebuild or
replace the Property following damage or destruction or partial condemnation if no or inadequate a
insurance proceeds or condemnation awards are available to defray the cost of repair, restoration E
rebuilding or replacement. 2
2.13. Required Notices. Mortgagor shall notify Mortgagee within three (3) business
days of: (a)receipt of any notice from any governmental or quasi-governmental authority relating
to the structure,use or occupancy of the Property or alleging a violation of any Legal Requirement;
(b) a substantial change in the occupancy or use of all or any part of the Property; (c) receipt of
any notice from the holder of any lien or security interest in all or any part of the Property; (d)
commencement of any litigation affecting or potentially affecting the financial ability of
Mortgagor or the value of the Property; (e) a pending or threatened condemnation of all or any part
of the Property, (f) a fire or other casualty causing damage to all or any part of the Property; (g)
receipt of any notice with regard to any Release of Hazardous Substances (as such terms are
defined below) or any other environmental matter affecting the Property or Mortgagor's interest
therein; (h)receipt of any request for information,demand letter or notification of potential liability
from any entity relating to potential responsibility for investigation or clean-up of Hazardous W
Substances on the Property or at any other site owned or operated by Mortgagor; (i)receipt of any
notice from any tenant at the Property alleging a default,failure to perform or any right to terminate
its lease or to set-off rents; or 0) receipt of any notice of the imposition of, or of threatened or 0
actual execution on, any lien on or security interest in all or any part of the Property.
2.14. Books and Records; Inspection. Mortgagor shall keep and maintain(a) complete
and accurate books and records, in accordance with generally accepted accounting principles
consistently applied, reflecting all items of income and expense in connection with the operation
of the Property, and (b) copies of all written contracts, leases and other agreements affecting the
Property. Mortgagee or its designated representatives shall, upon reasonable prior written notice Z
to Mortgagor, have (a) the right of entry and free access to the Property during business hours W
(which may be without notice in any case of emergency) to inspect the Property, and (b) the right U_
to examine and audit all books, contracts and records of Mortgagor relating to the Property. W
2.15. Right to Reappraise. Mortgagee shall have the right to conduct or have conducted W
by an independent appraiser acceptable to Mortgagee updated appraisals of the Property in form
and substance satisfactory to Mortgagee at the sole cost and expense of Mortgagor, except that z
Mortgagor shall not be required to pay the cost of an appraisal more frequently than once every
calendar year unless (x) an Event of Default exists, or (y) the appraisal was required by a W
governmental or other regulatory agency. Z
2.16 Additional Warranties of Mort2a2or.
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(a) Mortgagor has good and marketable title to the Property, subject only to
those matters expressly set forth in the title insurance policy insuring the lien of this
Mortgage ("Permitted Exceptions"), and has full power and lawful authority to grant, bargain,
sell, convey, assign, transfer and mortgage its interest in the Property in the manner and form
to
Packet Pg. 2845
P.16.b
done or intended in this Mortgage. Mortgagor will preserve its interest in and title to the Property
and will forever warrant and defend to Mortgagee Mortgagor's interest in the Property against
any and all claims whatsoever and the validity and priority of the lien and security interest created
by this Mortgage against the claims of all persons and parties whomsoever, subject to the
Permitted Exceptions. The foregoing warranty of title shall survive the foreclosure of this a
Mortgage or transfer of the Property in connection with foreclosure proceedings and shall inure E
to the benefit of and be enforceable by Mortgagee in the event Mortgagee acquires title to the 2
Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or contemplated by
Mortgagor or, to Mortgagor's knowledge, against Mortgagor or by or against any endorser,
cosigner or guarantor of the Note;
(c) All reports, certificates, affidavits, statements and other data furnished by
Mortgagor to Mortgagee in connection with the Loan are true and correct in all material respects
and do not omit to state any fact or circumstance necessary to make the statements contained
therein not misleading;
(d) The execution, delivery and performance of this Mortgage and all other
Loan Documents have been duly authorized by all necessary action to be, and are, binding and
enforceable against Mortgagor in accordance with the respective terms and do not contravene, a
result in a breach of or constitute (upon the giving of notice or the passage of time or both) a
default under the organizational documents of Mortgagor or any contract or agreement of any
nature to which Mortgagor is a party or by which Mortgagor or any of its property may be bound
and do not violate or contravene any law, order, decree, rule or regulation to which Mortgagor is
subj ect; 0
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e The Property and its intended use b Mortgagor com 1 with all applicable <
O P Y Ycomply PP w
restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws,
applicable health and environmental laws and regulations and all other ordinances, orders or z
requirements issued by any state, federal or municipal authorities having or claiming jurisdiction
over the Property. The Property constitutes a separate tax parcel or parcels for purposes of ad W
valorem taxation. The Property does not require any rights over, or restrictions against, other a
property in order to comply with any of the aforesaid governmental ordinances, orders or
requirements;
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(f) All curb cuts, driveways and traffic signals shown on the survey delivered
to Mortgagee prior to the execution and delivery of this Mortgage are existing and have been fully z
approved by the appropriate governmental authority;
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(g) There are no judicial, administrative,mediation or arbitration actions, suits
or proceedings pending or threatened against or affecting Mortgagor, or its partners or members,
or the Property;
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(h) The Property is free from delinquent water charges, sewer rents, taxes and
assessments;
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Packet Pg. 2846
P.16.b
(i) As of the date of this Mortgage, no part of the Property has been taken in
condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to
Mortgagor's knowledge, threatened or contemplated; and
(j) There are no security agreements or financing statements affecting any of
the Property other than the security agreements and financing statements created in favor of E
Mortgagee. 2
2.17 Defense of Title. If title to, or the interest of Mortgagee in, the Property becomes
the subject, directly or indirectly, of any action at law or in equity, or is attached directly or
indirectly, or endangered, clouded or adversely affected in any manner,Mortgagor, at Mortgagor's
expense, shall take all necessary steps to defend the title or interest, including the employment of
counsel approved by Mortgagee. Should Mortgagee determine that Mortgagor is not adequately
performing its obligations under this Section, Mortgagee may, without limiting or waiving
Mortgagee's other rights, take such action as Mortgagee shall deem necessary or proper. Any and
all costs and expenses incurred by Mortgagee, together with interest thereon at the Default Rate
from the date incurred by Mortgagee until actually paid by Mortgagor, shall be immediately paid
by Mortgagor on demand and shall be secured by this Mortgage and by all of the other Loan
Documents.
2.18 Performance of Obligations. Mortgagor shall pay when due the principal of and
the interest on the Liabilities. Mortgagor shall also pay all charges, fees and other sums required
to be paid by Mortgagor as provided in the Loan Documents, and shall observe, perform and
discharge all obligations,covenants and agreements set forth in the Loan Documents in accordance
with their terms. Mortgagor shall promptly and strictly perform and comply with all covenants,
conditions, obligations and prohibitions required of Mortgagor in connection with any other 0
document or instrument affecting title to the Property, or any part thereof, regardless of whether W
such document or instrument is superior or subordinate to this Mortgage.
2.19 Construction Liens. Mortgagor shall pay when due all claims and demands of
mechanics, material men, laborers and others for any work or services performed or materials
delivered for the Property. Mortgagor shall have the right to contest in good faith any such claim W
or demand, so long as it does so diligently, by appropriate proceedings and without prejudice to a
Mortgagee and provided that neither the Property nor any interest therein would be in any danger
of sale, loss or forfeiture as a result of such proceeding or contest. In the event Mortgagor shall
contest any such claim or demand,Mortgagor shall promptly notify Mortgagee of such contest and W
thereafter shall,upon Mortgagee's request,promptly provide a bond, cash deposit or other security
satisfactory to Mortgagee to protect Mortgagee's interest and security should the contest be z
unsuccessful. If Mortgagor shall fail within twenty (20) days following the notice of such claim
or demand to discharge or provide security against any such claim or demand as aforesaid, z
Mortgagee may do so and any and all expenses incurred by Mortgagee, together with interest W
thereon at the Default Rate from the date incurred by Mortgagee until actually paid by Mortgagor,
shall be immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by
all of the other Loan Documents securing all or any part of the Liabilities. Mortgagee has not
consented, and will not consent: (i) to the granting of any security interest by Mortgagor to any
party other than Mortgagee in any goods constituting part of the Property which are or are to
become fixtures which would have the effect of giving such security interest priority over the
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Packet Pg. 2847
P.16.b
security interest of Mortgagee in said fixtures under Section 679.313 of Florida Statutes, or
otherwise, or(ii)to any contract, or to any work, or to the furnishing of any materials which might
be deemed to create a lien or liens superior to the lien of this Mortgage.
2.20 Payment of Utilities,Assessments,Charges,Etc. Mortgagor shall pay when due a
all utility charges incurred by Mortgagor or which may become a charge or lien against any portion E
of the Property for gas, electricity,water and sewer services furnished to the Property and all other 2
assessments or charges of a similar nature, or assessments payable pursuant to any restrictive �
covenants, whether public or private, affecting the Property or any portion thereof, whether or not
such assessments or charges are or may become liens thereon.
2.21 Access Privileges and Inspections. Mortgagee and its agents,representatives and
employees shall, subject to the rights of tenants, have full and free access to the Property and any
other location where books and records concerning the Property are kept at all reasonable times
for the purposes of inspecting the Property and of examining, copying and making extracts from
the books and records of Mortgagor relating to the Property,provided that Mortgagee shall provide
reasonable notice of such inspection, unless Mortgagee deems, in its reasonable discretion, such
inspection is of an emergency nature, in which event Mortgagor shall provide Mortgagee with
immediate access to the Property. Mortgagor shall lend assistance to all such agents,
representatives and employees of Mortgagee in connection with the foregoing.
2.22 Waste: Alteration of Improvements. Mortgagor shall not commit, suffer or
permit any intentional physical waste on the Property nor take any actions that might invalidate
any insurance carried on the Property. Mortgagor shall maintain the Property in good condition
and repair, regularly landscape the Real Estate, and maintain a fence around the perimeter of the
Real Estate. No part of the Improvements may be removed, demolished or materially altered, 0
without the prior written consent of Mortgagee,which consent shall not be unreasonably withheld W
or delayed. Except as expressly set forth in the Loan Agreement,without the prior written consent
of Mortgagee, Mortgagor shall not commence or allow any other person or entity to commence
construction of any improvements on the Real Estate other than improvements which constitute z
maintenance or repair of the Property. <
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2.23 Zoning. Without Mortgagee's prior consent in its reasonable discretion,Mortgagor
shall not seek, make, suffer, consent to or acquiesce in any change in the zoning or conditions of
use of the Property. Mortgagor shall comply with and make all payments required under any
covenants, conditions or restrictions affecting the Property. Mortgagor shall comply with all W
existing and future requirements of all governmental authorities having jurisdiction over the
Property. Mortgagor shall keep all licenses,permits, franchises and other approvals necessary for Z
the operation of the Property in full force and effect. Mortgagor shall operate the Property as
vacant land. If, under applicable zoning provisions, the use of all or any part of the Property is or z
becomes a nonconforming use, Mortgagor shall not cause or permit such use to be discontinued W
or abandoned without the prior consent of Mortgagee. Further,without Mortgagee's prior consent,
Mortgagor shall not file or subject any part of the Property to any declaration of condominium or
co-operative or convert any part of the Property to a condominium, co-operative or other form of E
multiple ownership and governance. Additionally, without Mortgagee's prior written consent,
Mortgagor shall not encumber the Property with any covenants, conditions, restrictions,
easements, declarations or similar documents of any kind.
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Packet Pg. 2848
P.16.b
2.24 Payment of Costs; Reimbursement to Mortgagee. Mortgagor shall pay all costs
and expenses incurred in connection with the closing of the Loan or otherwise attributable or
chargeable to Mortgagor as the owner of the Property, including appraisal fees, recording fees,
documentary stamp, mortgage or intangible taxes, brokerage fees and commissions, title policy
premiums and title search fees, uniform commercial code/tax lien litigation search fees, escrow a
fees and Mortgagee's attorneys' fees. If Mortgagor fails to make any such payment, which failure E
is not cured within any applicable grace or cure period, Mortgagee may pay the same and such 2
payment shall become part of the Liabilities. Mortgagor shall promptly notify Mortgagee in
writing of any litigation or threatened litigation affecting the Property, or any other demand or
claim which, if enforced, could impair or threaten to impair Mortgagee's security under this
Mortgage. Without limiting or waiving any other rights and remedies of Mortgagee under this
Mortgage, if Mortgagor fails to perform any of its agreements in the Loan Documents and such
failure is not cured within any applicable grace or cure period, or if any action or proceeding of
any kind(including any bankruptcy,insolvency, arrangement,reorganization or other debtor relief
proceeding)is commenced which might affect Mortgagee's interest in the Property or Mortgagee's
right to enforce its security,then Mortgagee may,at its option,with or without notice to Mortgagor,
make any appearances, disburse any sums and take any actions as may be necessary or desirable
to protect or enforce the security of this Mortgage or to remedy the failure of Mortgagor to perform
its covenants and agreements (without, however, waiving any default of Mortgagor). The
necessity for any such actions and any Mortgagee payments shall be determined by Mortgagee in W
its discretion. Mortgagee is empowered to enter and to authorize others to enter upon the Property
or any part thereof for the purpose of performing or observing any such defaulted term, covenant
or condition without thereby becoming liable to Mortgagor or any person in possession holding 0
under Mortgagor. Mortgagor acknowledges and agrees that the remedies in this Section shall be
exercisable by Mortgagee, and any and all payments made or costs or expenses incurred by
Mortgagee in connection therewith shall be secured by this Mortgage and the other Loan Z:
Documents as part of the Liabilities. Such payments shall be,without demand,immediately repaid
by Mortgagor with interest at the Default Rate from the date incurred by Mortgagee until W
reimbursed by Mortgagor, notwithstanding the fact that such remedies were exercised and such
payments made and costs incurred by Mortgagee after the filing by Mortgagor of a voluntary case Z
or the filing against Mortgagor of an involuntary case pursuant to or within the meaning of the W
Bankruptcy Reform Act of 1978, as amended, Title 11 U.S.C., or after any similar action pursuant U-
to any other debtor relief law (whether statutory, common law, case law or otherwise) of any W
jurisdiction whatsoever, now or subsequently in effect, which may be or become applicable to
Mortgagor,Mortgagee, any guarantor or indemnitor,the Liabilities or any of the Loan Documents.
Mortgagor shall indemnify and hold Mortgagee harmless from and against all loss, cost and
expenses with respect to any Event of Default, any liens,judgments, construction liens, charges z
and encumbrances filed against the Property, and from any claims and demands for damages or
injury, including claims for property damage, personal injury or wrongful death, arising out of or W
in connection with any accident or fire or other casualty on the Real Estate or the Improvements Z
or any nuisance made or suffered thereon, including, attorneys' fees. This indemnity shall survive
payment in full of the Liabilities. This Section shall not be construed to require Mortgagee to incur
4i
any expenses, make any appearances or take any actions. a
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2.25 Mortmor's Waivers. To the full extent permitted by law,Mortgagor agrees that:
14
Packet Pg. 2849
P.16.b
(a) Mortgagor shall not at any time insist upon,plead, claim or take the benefit
or advantage of any law now or subsequently in force providing for any appraisement, valuation,
stay, moratorium, extension, or reinstatement of the Liabilities prior to any sale of the Property
pursuant to this Mortgage or prior to the entering of any decree,judgment or order of any court
of competent jurisdiction, or any right under any statute to redeem all or any part of the Property
so sold. E
0.
(b) Mortgagor, for Mortgagor and Mortgagor's successors and assigns, and for >
any and all persons ever claiming any interest in the Property, knowingly, intentionally and
voluntarily with and upon the advice of competent counsel, waives, releases, relinquishes and
forever forgoes all rights to: (i) valuation, appraisement, stay of execution, reinstatement and
notice of election or intention to mature or declare due the Liabilities (except such notices
specifically provided for in this Mortgage); (ii) marshaling of the assets of Mortgagor, including
the Property, to a sale in the inverse order of alienation, or to direct the order in which any of the
Property shall be sold in the event of foreclosure of the liens and security interests created and
agrees that any court having jurisdiction to foreclose such liens and security interests may order
the Property sold as an entirety; (iii) redemption provided under applicable law; (iv) Mortgagor
shall not have or assert any right under any statute or rule of law pertaining to the exemption of
homestead or other exemption under any federal, state or local law now or subsequently in effect,
the administration of estates of decedents or other matters whatever to defeat, reduce or affect the W
right of Mortgagee under this Mortgage to a sale of the Property,for the collection of the Liabilities
without any prior or different resort for collection, or the right of Mortgagee under the terms of
this Mortgage to payment of the Liabilities out of the proceeds of sale of the Property in preference
0
to every other claimant whatever and (v) all present and future statutes of limitations as a defense
to any action to enforce the provisions of this Mortgage or to collect any of the Liabilities the
fullest extent permitted by law. �
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(c) Mortgagor agrees that upon the commencement of a voluntary or
involuntary bankruptcy proceeding by or against Mortgagor, Mortgagor shall not seek a
supplemental stay or otherwise pursuant to 11 U.S.C. 105 or any other provision of the Bankruptcy z
Reform Act of 1978, as amended, or any other debtor relief law(whether statutory, common law, W
case law, or otherwise) of any jurisdiction whatsoever, now or subsequently in effect, which may U-
be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of Mortgagee to a
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enforce any rights of Mortgagee against any guarantor or indemnitor of the secured obligations or
any other party liable with respect thereto by virtue of any indemnity, guaranty or otherwise.
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2.26 Prohibited Person Compliance. Mortgagor warrants, represents and covenants
that neither Mortgagor, any Guarantor of the Loan, nor any of their respective affiliated entities,
or any direct or indirect owner or member of any of the foregoing is or will be a person (i) that is a
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listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224 issued on
September 24, 2001 ("EO13224"), (ii) whose name appears on the United States Treasury W
Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically
Designated Nationals and Blocked Persons," (which list may be published from time to time in
various mediums including, but not limited to, the OFAC website,
E
http://www.treas.gov/ofac/tllsdn.pdf), (iii) who commits, threatens to commit or supports
"terrorism", as that term is defined in EO 13224, or(iv)who is otherwise affiliated with any person
listed above. (Any and all Persons described in subparts [i] — [iv] above are herein referred to as
15
Packet Pg. 2850
P.16.b
a"Prohibited Person".) Mortgagor covenants and agrees that neither Mortgagor, any Guarantor
of the Loan,nor any of their respective affiliated entities, or any direct or indirect owner or member
of any of the foregoing will(a) conduct any business, or engage in any transaction or dealing,with
any Prohibited Person,including,but not limited to the making or receiving of any contribution of
funds, goods, or services, to or for the benefit of a Prohibited Person, or (b) engage in or conspire a
to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or E
attempts to violate, any of the prohibitions set forth in EO13224. Mortgagor further covenants and 2
agrees to deliver(from time to time)to Mortgagee any such certification or other evidence as may
be requested by Mortgagee in its sole and absolute discretion, confirming that (a) neither
Mortgagor (nor any direct or indirect member of Mortgagor) nor any guarantor is a Prohibited
Person and (b) neither Mortgagor (nor any direct nor indirect member of Mortgagor) nor any
guarantor has engaged in any business, transaction or dealing with a Prohibited Person,including
but not limited to, the making or receiving of any contributions of funds, goods or services, to or
for the benefit of a Prohibited Person.
2.27 Indemnification: Subrogation.
(a) Mortgagor shall indemnify, defend and hold Mortgagee harmless against: F
(i) any and all claims for brokerage, leasing, Mortgagees or similar fees which may be made CD
relating to the Property or the Liabilities, and (ii) any and all liability, obligations, losses, W
damages, penalties, claims, actions, suits, costs and expenses (including Mortgagee's attorneys'
fees) of whatever kind or nature which may be asserted against, imposed on or incurred by
Mortgagee in connection with the Liabilities, the Loan Documents, the Property, or any part
thereof, or the exercise by Mortgagee of any rights or remedies under the Loan Documents.
(b) If Mortgagee is made a party defendant to any litigation or any claim is
threatened or brought against Mortgagee concerning the Liabilities, the Loan Documents, the W
Property, or any part thereof, or any interest therein, or the construction, maintenance, operation
or occupancy or use thereof, Mortgagor shall indemnify, defend and hold Mortgagee harmless
from and against all liability by reason of said litigation or claims, including attorneys' fees and z
expenses incurred by Mortgagee in any such litigation or claim, whether or not any such litigation <
or claim is prosecuted to judgment. If Mortgagee commences an action against Mortgagor to W
enforce any of the terms of the Loan Documents or to prosecute any breach by Mortgagor of any a
of the terms of the Loan Documents or to recover the Liabilities,Mortgagor shall pay to Mortgagee
its reasonable attorneys' fees, whether or not such action is prosecuted to judgment. If Mortgagor
breaches any term of the Loan Documents, Mortgagee may engage the services of an attorney or W
W
attorneys to protect its rights; Mortgagor shall pay Mortgagee's attorneys' fees and expenses
whether or not an action is actually commenced against Mortgagor by reason of such breach. All
references to "attorneys" in this Subsection and elsewhere in this Mortgage shall include without a
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limitation any attorney or law firm engaged by Mortgagee and Mortgagee's in-house counsel, and
all references to "fees and expenses" in this Subsection and elsewhere in this Mortgage shall W
include without limitation any fees of such attorney or law firm and any allocation charges and
allocation costs of Mortgagee's in-house counsel. C
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(c) A waiver of subrogation shall be obtained by Mortgagor from its insurance
carrier and, consequently, Mortgagor waives any and all right to claim or recover against
Mortgagee,its officers, employees, agents and representatives,for loss of or damage to Mortgagor,
16
Packet Pg. 2851
P.16.b
the Property, Mortgagor's property or the property of others under Mortgagor's control from any
cause insured against or required to be insured against by the provisions of the Loan Documents.
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2.28 Ground Lease. Mortgagor shall (a)pay all rents, additional rents and other sums
required to be paid by Mortgagor, as tenant under and pursuant to the provisions of the Ground a
Lease as and when such rent or other charge is payable, (b) diligently perform and observe all of E
the terms, covenants and conditions of the Ground Lease on the part of Mortgagor, as tenant 2
thereunder, to be performed and observed prior to the expiration of any applicable grace period
therein provided, and (c) promptly notify Mortgagee of the giving of any notice by the Lessor to
Mortgagor of any default by Mortgagor in the performance or observance of any of the terms,
covenants or conditions of the Ground Lease on the part of Mortgagor, as tenant thereunder, to be
performed or observed and deliver to Mortgagee a true copy of each such notice. Mortgagor shall
not, without the prior written consent of Mortgagee, surrender the leasehold estate created by the
Ground Lease or terminate or cancel the Ground Lease or without the prior written consent of
Mortgagee,modify, change, supplement, alter or amend the Ground Lease, in any material respect
(except that Mortgagor may extend the term of the Ground Lease without the prior written consent
of Mortgagee), either orally or in writing, and Mortgagor hereby assigns to Mortgagee, as further
security for the payment of the Liabilities and for the performance and observance of the terms,
covenants and conditions of this Mortgage and the other Loan Documents, all of the rights,
privileges and prerogatives of Mortgagor, which rights, privileges and prerogatives may be W
exercised by Mortgagee upon an Event of Default, as tenant under the Ground Lease, to surrender
the leasehold estate created by the Ground Lease or to terminate, cancel, modify, change,
supplement, alter or amend the Ground Lease, and any such surrender of the leasehold estate
0
created by the Ground Lease or termination, cancellation, modification, change, supplement,
alteration or amendment of the Ground Lease without the prior written consent of Mortgagee shall
be null and void and of no force and effect. If Mortgagor shall default in the performance or �
observance of any material term, covenant or condition of the Ground Lease on the part of
Mortgagor, as tenant thereunder, to be performed or observed, and such default shall remain
uncured after the expiration of any applicable grace or cure period, then, without limiting the
generality of the other provisions of this Mortgage and the other Loan Documents, and without
waiving or releasing Mortgagor from any of its obligations hereunder or thereunder, Mortgagee W
shall have the right, but shall be under no obligation, to pay any sums and to perform any act or U-
take any action as may be appropriate to cause all of the terms, covenants and conditions of the W
Ground Lease on the part of Mortgagor, as tenant thereunder, to be performed or observed or to
be promptly performed or observed on behalf of Mortgagor,to the end that the rights of Mortgagor
in, to and under the Ground Lease shall be kept unimpaired and free from default. If Mortgagee
shall make any payment or perform any act or take action in accordance with the preceding
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sentence, Mortgagee will notify Mortgagor of the making of any such payment, the performance
of any such act, or the taking of any such action. In any such event, subject to the rights of tenants, W
subtenants and other occupants under the Leases, and in accordance with the Loan Documents, z
Mortgagee and any person designated by Mortgagee shall have, and are hereby granted, the right
to enter upon the Property at any time and from time to time after such default by Mortgagor,
which remains uncured after the expiration of any applicable cure or grace period, for the purpose a
of taking any such action. Mortgagee may pay and expend such sums of money as Mortgagee E
deems reasonably necessary for any such purpose and upon so doing shall be subrogated to any
and all rights of the Lessor. Mortgagor hereby agrees to pay to Mortgagee promptly upon demand
therefor, all such sums so paid and expended by Mortgagee, together with interest thereon from
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P.16.b
the day of such demand at the Default Rate. All sums so paid and expended by Mortgagee and the
interest thereon shall be secured by the legal operation and effect of this Mortgage. If the Lessor
shall deliver to Mortgagee a copy of any notice of default sent by the Lessor to Mortgagor, as
tenant under the Ground Lease, such notice shall constitute full protection to Mortgagee for any
action taken or omitted to be taken by Mortgagee, in good faith, in reliance thereon as may be
permitted under this Section. Mortgagor shall not subordinate or consent to the subordination of E
the Ground Lease to any mortgage, security deed, lease or other interest on or in the Lessor's 2
interest in all or any part of the Property.
2.29. No Merger of Fee and Leasehold Estates. So long as any portion of the Liabilities
shall remain unpaid,unless Mortgagee shall otherwise consent, the fee title to the Property and the
leasehold estate therein created pursuant to the provisions of the Ground Lease shall not merge but
shall always be kept separate and distinct,notwithstanding the union of such estates in Mortgagor,
Mortgagee, or in any other person by purchase, operation of law or otherwise.
2.30. Mortgagor's Acquisition of Fee Estate. In the event that Mortgagor, so long as
any portion of the Liabilities remains unpaid, shall become the owner and holder of the fee title to
the entire Property, the lien of the Mortgage shall be spread to cover Mortgagor's fee title to the
Property and said fee title shall be deemed to be included in the Property without any further action.
Mortgagor agrees, at its sole cost and expense, including, without limitation, Mortgagee's
reasonable attorneys' fees, to (a) execute any and all documents or instruments reasonably
necessary to subject its fee title to the Property to the lien of this Mortgage; and (b)provide a title
insurance policy which shall insure that the lien of the Mortgage is a first lien on Mortgagor's fee
title to the Property. Notwithstanding the foregoing, if the Ground Lease is for any reason
whatsoever terminated prior to the natural expiration of its term, and if,pursuant to any provisions
of the Ground Lease or otherwise, Mortgagee or its designee shall acquire from the Lessor 0
thereunder another lease of the Property, Mortgagor shall have no right, title or interest in or to W
such other lease or the leasehold estate created thereby.
2.31. Reiection of the Ground Lease.(a) If the Ground Lease is terminated for any
reason in the event of the rejection or disaffirmance of the Ground Lease by Lessor pursuant to the <
Bankruptcy Code, or any other law affecting creditor's rights, (i)the Mortgagor,immediately after W
obtaining notice thereof, shall give notice thereto to Mortgagee, (ii) Mortgagor, without the prior a
written consent of Mortgagee, shall not elect to treat the Ground Lease as terminated pursuant to
Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or law, and any
election by Mortgagor made without such consent shall be null and void and (iii) this Mortgage W
W
and the other Loan Documents and all the liens, terms, covenants and conditions of this Mortgage
and the other Loan Documents hereby extends to and covers Mortgagor's possessory rights under
Section 365(h) of the Bankruptcy Code and to any claim by Mortgagor for damages due to the
rejection of the Ground Lease or other termination of the Ground Lease. In addition, Mortgagor a
z
hereby assigns irrevocably to Mortgagee Mortgagor's rights to treat the Ground Lease as
terminated pursuant to Section 365(h)of the Bankruptcy Code and to offset rents under the Ground
Lease in the event any case, proceeding or other action is commenced by or against the Lessor
under the Bankruptcy Code or any comparable federal or state statute or law. E
(b) Mortgagor hereby assigns to Mortgagee to the extent permitted by
applicable law (i) Mortgagor's right to reject the Ground Lease under Section 365 of the
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P.16.b
Bankruptcy Code or any comparable federal or state statute or law with respect to any case,
proceeding or other action commenced by or against Mortgagor under the Bankruptcy Code or
comparable federal or state statute or law and (ii) Mortgagor's right to seek an extension of the
sixty (60)-day period within which Mortgagor must accept or reject the Ground Lease under
Section 365 of the Bankruptcy Code or any comparable federal or state statute or law with respect
to any case,proceeding or other action commenced by or against Mortgagor under the Bankruptcy E
Code or comparable federal or state statute or law. Furthermore, if the foregoing assignment is 2
not effective under applicable law and Mortgagor shall desire to so reject the Ground Lease then
at Mortgagee's request, or upon Mortgagee's consent to Mortgagor's request, Mortgagor shall
assign its interest in the Ground Lease to Mortgagee in lieu of rejecting the Ground Lease, upon
receipt by Mortgagor of notice from Mortgagee of such request together with Mortgagee's
agreement to cure any existing defaults of Mortgagor under the Ground Lease.
(c) Mortgagor hereby agrees that if the Ground Lease is terminated for any
reason in the event of the rejection or disaffirmance of the Ground Lease pursuant to the
Bankruptcy Code or any other law affecting creditor's rights, any property not removed by the
Mortgagor as permitted or required by the Ground Lease, shall at the option of Mortgagee be
deemed abandoned by Mortgagor, provided that Mortgagee may remove any such property
required to be removed by Mortgagor pursuant to the Ground Lease and all costs and expenses
associated with such removal shall be paid by Mortgagor within ten (10) Business Days of receipt W
by Mortgagor of an invoice for such removal costs and expenses.
2.32. Renewal Terms. Mortgagor shall not fail to exercise any option or right to renew
or extend the term of the Ground Lease (in accordance with the terms of the Ground Lease) to the
extent necessary to prevent the term of the Ground Lease from expiring, and shall give immediate
written notice to Mortgagee and shall execute, acknowledge, deliver and record any document 0
requested by Mortgagee to evidence the lien of the Mortgage on such extended or renewed lease W
term. If the Mortgagor shall fail to exercise any such option or right as aforesaid prior to the date
that is ninety (90) days before the last date upon which Mortgagor may exercise such right under
the Ground Lease, then the Mortgagee may exercise the option or right as the Mortgagor's agent z
and attorney in fact as provided above in Mortgagee's own name or in the name of and on behalf w
of a nominee of Mortgagee, as Mortgagee may determine in the exercise of its sole and absolute
discretion. a
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2.33. Representations and Warranties With Respect to the Ground Lease.
Mortgagor hereby represents and warrants to Mortgagee the following with respect to the Ground
Lease:
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(a) The Ground Lease or a memorandum of the Ground Lease has been duly
recorded. The Ground Lease permits the interest of Mortgagor to be encumbered by a mortgage or a
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the Lessor has approved and consented to the encumbrance of the Property by the Mortgage. There
have not been amendments or modifications to the terms of the Ground Lease since recordation of
the Ground Lease (or a memorandum thereof), with the exception of written instruments which
have been recorded or as disclosed in this Mortgage. The Ground Lease may not be terminated,
surrendered or amended without the prior written consent of Mortgagee; provided that the Lessor
shall not be prevented from exercising its remedies in accordance with the Ground Lease if the
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Packet Pg. 2854
P.16.b
obligations of Mortgagor under the Ground Lease are not performed as provided in the Ground
Lease.
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(b) Except for the Permitted Encumbrances (as defined in the Loan Agreement)
and other encumbrances of record, Mortgagor's interest in the Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the Mortgage other than the Lessor's E
related fee interest.
(c) Mortgagor's interest in the Ground Lease is assignable without the consent
of the Lessor to Mortgagee, the purchaser at any foreclosure sale or the transferee under a deed or
assignment in lieu of foreclosure in connection with the foreclosure of the lien of this Mortgage or
transfer of Mortgagor's leasehold estate by deed or assignment in lieu of foreclosure. Thereafter,
the Ground Lease is further assignable by such transferee and its successors and assigns without
the consent of the Lessor.
(d) As of the date hereof, the Ground Lease is in full force and effect and no
default has occurred under the Ground Lease and there is no existing condition which, but for the
passage of time or the giving of notice, could result in a default under the terms of the Ground
Lease.
(e) Under the terms of the Ground Lease and the Loan Documents, taken
together, any related insurance and condemnation proceeds that are paid or awarded to Mortgagor
with respect to the leasehold interest will be applied either to the repair or restoration of all or part
of the portion of the Property consisting of Mortgagor's leasehold estate granted hereunder, with z
Mortgagee having the right subject to the terms of the Loan Documents to hold and disburse the
proceeds as the repair or restoration progresses, or to the payment of the outstanding principal 0
balance of the Loan together with any accrued interest thereon. W
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(f) The Ground Lease does not impose any restrictions on subleasing.
(g) The Ground Lease requires the Lessor to give notice of any default by
Mortgagor to Mortgagee prior to exercising its remedies thereunder. W
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(h) Mortgagee is permitted the opportunity to cure any default under the
Ground Lease, which is curable after the receipt of notice of the default before the Lessor
thereunder may terminate the Ground Lease. W
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2.21. Estoppel Certificates. Within twenty(20) days after receipt of written demand by
Mortgagee, but in no event more than two (2) times in any twelve (12) month period, Mortgagor
shall use reasonable efforts to obtain from Lessor under the Ground Lease and furnish to W
Mortgagee the estoppel certificate of Lessor stating the date through which rent has been paid and z
whether or not there are any defaults thereunder and specifying the nature of such claimed defaults,
if any.
3. SECURITY AGREEMENT.
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3.1 Security Agreement and Fixture Financing Statement. This Mortgage
constitutes a security agreement under the Code and shall be deemed to constitute a fixture
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Packet Pg. 2855
P.16.b
financing statement. Mortgagor hereby grants to Mortgagee a security interest in all of
Mortgagor's right, title and interest in the personal and other property (other than real property)
included in the Property, and all replacements of, substitutions for, and additions to, such property,
and the proceeds thereof. Mortgagor shall, at Mortgagor's own expense, execute, deliver, file and
refile any financing or continuation statements or other security agreements Mortgagee may
require from time to time to perfect, confirm or maintain the lien of this Mortgage with respect to E
such property. Without limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee
attorney-in-fact for Mortgagor to execute, deliver and file such instruments for or on behalf of
Mortgagor at Mortgagor's expense, which appointment, being for security, is coupled with an
interest and shall be irrevocable. Furthermore, this Mortgage creates a security interest in, and
Mortgagor grants to Mortgagee a security interest in (a) all sums on deposit with Mortgagee
pursuant to the provisions of any Section of this Agreement, (b) all fixtures, chattels, accounts,
equipment, inventory, contract rights, general intangibles and other personal property included
within the Property, (c) Mortgagor's leasehold interest in any of the foregoing property leased by
Mortgagor and (d) all renewals, replacements of any of the items described in (a), (b) and (c), or
articles in substitution or in addition or the proceeds thereof. To the extent permitted by law, all
of the foregoing property is to be deemed and held to be a part of and affixed to the Property.
Notwithstanding the foregoing, no leasing or installment sales or other financing or title retention
agreement in connection therewith shall be permitted without the prior written approval of
Mortgagee. Mortgagor shall, from time to time upon the request of Mortgagee, supply Mortgagee W
with a current inventory of all of the property in which Mortgagee is granted a security interest
under this Section,in such detail as Mortgagee may require. Mortgagor shall promptly replace all
of the Collateral subject to the lien or security interest of this Mortgage when worn or obsolete 0
with Collateral comparable to the worn out or obsolete Collateral when new and will not, without
the prior written consent of Mortgagee, remove from the Property any of the Collateral subject to
the lien or security interest of this Mortgage except such as is replaced by an article of equal Z:
suitability and value as above provided, owned by Mortgagor free and clear of any lien or security W
interest except that created by this Mortgage and the other Loan Documents, the Permitted W
Exceptions, and except as otherwise expressly permitted by the terms of this Mortgage. All of the
Collateral shall be kept at the location of the Real Estate except as otherwise required by the terms z
of the Loan Documents. Mortgagor shall not use any of the Collateral in violation of any W
applicable statute, ordinance or insurance policy. U_
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3.2 UCC. This Mortgage constitutes a security agreement between Mortgagor and
Mortgagee with respect to the Collateral. In addition to all other rights and remedies of Mortgagee
under this Mortgage, Mortgagee shall have all of the rights and remedies of a secured party under
the Uniform Commercial Code applicable to the Property("Applicable UCC"). Mortgagor agrees z
to execute and deliver on demand and irrevocably constitutes and appoints Mortgagee the attorney-
in-fact of Mortgagor to execute and deliver and, if appropriate, to file with the appropriate filing W
officer or office such security agreements, financing statements, continuation statements or other z
instruments as Mortgagee may request or require in order to impose, perfect or continue the
perfection of the lien or security interest created. Except with respect to Rents and profits to the
extent specifically provided in this Mortgage to the contrary, Mortgagee shall have the right of
possession of all cash, securities,instruments,negotiable instruments, documents, certificates and
any other evidences of cash or other property or evidences of rights to cash rather than property,
which are now or subsequently a part of the Property. Mortgagor shall promptly deliver the same
21
Packet Pg. 2856
P.16.b
to Mortgagee, endorsed to Mortgagee, without further notice from Mortgagee. Mortgagor agrees
to furnish Mortgagee with notice of any change in the name, identity, corporate structure,
residence, or principal place of business or mailing address of Mortgagor within 10 days of the
effective date of any such change. Upon the occurrence of any Event of Default, Mortgagee shall
have the rights and remedies as prescribed in this Mortgage, or as prescribed by general law, or as
prescribed by the Applicable UCC, all at Mortgagee's election. Without implying any limitation E
upon the foregoing, Mortgagee may, at its option, pursuant to Section 679.501(4) of Florida 2
Statutes,proceed against the Collateral in accordance with the provisions of the Applicable UCC
or Mortgagee may proceed as to both the real and personal property comprising the Property in
accordance with this Mortgage, or as otherwise provided at law or in equity. Any disposition of
the Collateral may be conducted by an employee or agent of Mortgagee.
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely,presently and unconditionally conveys, transfers and
assigns to Mortgagee all of Mortgagor's right, title and interest, now existing or hereafter arising,
in and to the Leases and Rents. Notwithstanding that this assignment is effective immediately, so
long as no Event of Default exists, Mortgagor shall have the privilege under a revocable license
granted hereby to operate and manage the Property and to collect, as they become due, but not
prior to accrual, the Rents. Mortgagor shall receive and hold such Rents in trust as a fund to be W
applied, and Mortgagor hereby covenants and agrees that such Rents shall be so applied, first to
the operation, maintenance and repair of the Property and the payment of interest, principal and
other sums becoming due under the Liabilities, before retaining and/or disbursing any part of the
0
Rents for any other purpose. The license herein granted to Mortgagor shall automatically,without
notice or any other action by Mortgagee, terminate upon the occurrence of an Event of Default,
and all Rents subsequently collected or received by Mortgagor shall be held in trust by Mortgagor �
for the sole and exclusive benefit of Mortgagee. Nothing contained in this Section 4.1, and no
collection by Mortgagee of Rents, shall be construed as imposing on Mortgagee any of the
obligations of the lessor under the Leases.
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4.2. Mortgagor shall timely perform all of its obligations under the Leases. Mortgagor
represents and warrants that: (a)Mortgagor has title to and full right to assign presently,absolutely U_
and unconditionally the Leases and Rents; (b) no other assignment of any interest in any of the W
Leases or Rents has been made by Mortgagor; (c) there are no leases or agreements to lease all or
any portion of the Property now in effect except the Leases and the Ground Lease, true and
complete copies of which have been furnished to Mortgagee, and no written or oral modifications
have been made thereto; (d) there is no existing default by Mortgagor or by any tenant under any
z
of the Leases or the Ground Lease, nor has any event occurred which due to the passage of time,
the giving or failure to give notice, or both,would constitute a default under any of the Leases and W
no tenant has any defenses, set-offs or counterclaims against Mortgagor; (e) the Leases are in full z
force and effect; and (f) Mortgagor has not accepted Rent under any Lease more than thirty (30)
days in advance of its accrual, and payment thereof has not otherwise been forgiven, discounted
or compromised.
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4.3. Mortgagor shall not,without the prior written consent of Mortgagee: (a) enter into
any lease at the Property, (b) amend or modify, or consent any assignment of or subletting under,
any Lease or the Ground Lease at the Property; (c)terminate or accept a surrender of any Lease or
22
Packet Pg. 2857
P.16.b
the Ground Lease; or(d)collect or accept rent from any tenant of the Property for a period of more
than one month in advance. Any acts that require Mortgagee's consent under this Section 4.3, if
done without the prior written consent of Mortgagee in each instance, shall be null and void.
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that Mortgagor a
has no knowledge of any offsets, counterclaims or defenses to the Liabilities either at law or in E
equity. Mortgagor shall, within three (3) days upon written request delivered in person or within 2
seven (7) days upon request by mail, furnish to Mortgagee or Mortgagee's designee a written
statement in form satisfactory to Mortgagee stating the amount due under the Liabilities and
whether there are offsets or defenses against the same, and if so, the nature and extent thereof.
6. ENVIRONMENTAL MATTERS.
6.1. Definitions. As used herein, "Environmental Laws" shall mean all existing or
future federal, state and local statutes, ordinances, regulations, rules, executive orders, standards
and requirements, including the requirements imposed by common law, concerning or relating to
industrial hygiene and the protection of health and the environment including but not limited to:
(a) those relating to the generation, manufacture, storage, transportation, disposal, release,
emission or discharge of Hazardous Substances (as hereinafter defined); (b) those in connection C
with the construction, fuel supply,power generation and transmission,waste disposal or any other W
operations or processes relating to the Property; and (c) those relating to the atmosphere, soil,
surface and ground water, wetlands, stream sediments and vegetation on, under, in or about the
Property. Any terms mentioned herein which are defined in any Environmental Law shall have 0
the meanings ascribed to such terms in said laws; provided, however, that if any of such laws are
amended so as to broaden any term defined therein, such broader meaning shall apply subsequent
to the effective date of such amendment. Z:
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6.2. Representations, Warranties and Covenants. Mortgagor represents, warrants
covenants and agrees as follows:
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(a) Neither Mortgagor nor the Property or any occupant thereof is in violation of
or subject to any existing, pending or threatened investigation or inquiry by any governmental U-
authority pertaining to any Environmental Law. Mortgagor shall not cause or permit the Property W
to be in violation of, or do anything which would subject the Property to any remedial obligations
under, any Environmental Law, and shall promptly notify Mortgagee in writing of any existing,
pending or threatened investigation or inquiry by any governmental authority in connection with
any Environmental Law. In addition, Mortgagor shall provide Mortgagee with copies of any and z
all material written communications with any governmental authority in connection with any
Environmental Law, concurrently with Mortgagor's giving or receiving of same. W
z
(b) Mortgagor has taken all steps reasonably necessary to determine and has
determined that there has been no release, spill, discharge,leak, disposal or emission(individually
4i
a "Release" and collectively, "Releases") of any hazardous material, hazardous substance or a
hazardous waste, including gasoline, petroleum products, explosives, toxic substances, solid E
wastes and radioactive materials (collectively, "Hazardous Substances") at, upon, under or
within the Property. The use which Mortgagor or any other occupant of the Property makes or
23
Packet Pg. 2858
P.16.b
intends to make of the Property will not result in Release of any Hazardous Substances on or to
the Property. During the term of this Mortgage, Mortgagor shall take all steps necessary to
determine whether there has been a Release of any Hazardous Substances on or to the Property
and if Mortgagor finds a Release has occurred, Mortgagor shall remove or remediate the same
promptly upon discovery at its sole cost and expense. a
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0.
(c) The Property has never been used by the present or previous owners and/or
operators nor will be used in the future to refine,produce,store,handle,transfer,process,transport,
generate, manufacture, heat, treat, recycle or dispose of Hazardous Substances.
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(d) The Property. (i) is being and has been operated in compliance with all
Environmental Laws, and all permits required thereunder have been obtained and complied with
in all respects; and(ii)does not have any Hazardous Substances present excepting small quantities
of petroleum and chemical products, in proper storage containers, that are necessary for the
construction or operation of the commercial business of Mortgagor and its tenants (or subtenants),
and the usual waste products therefrom ("Permitted Substances").
(e) Mortgagor will and will cause its tenants or subtenants to operate the Property
in compliance with all Environmental Laws and, other than Permitted Substances, will not place
or permit to be placed any Hazardous Substances on the Property. W
(f) No lien has been attached to or threatened to be imposed upon the Property, and
there is no basis for the imposition of any such lien based on any governmental action under 0
Environmental Laws. Neither Mortgagor nor any other person is or will be involved in operations
at the Property which could lead to the imposition of environmental liability on Mortgagor, or on
any subsequent or former owner of the Property, or the creation of an environmental lien on the Z:
Property. In the event that any such lien is filed, Mortgagor shall, within sixty (60) days from the
date that the Mortgagor is given notice of such lien (or within such shorter period of time as is W
appropriate in the event that steps have commenced to have the Property sold), either: (i)pay the
claim and remove the lien from the Property; or (ii) furnish a cash deposit, bond or other security Z
satisfactory in form and substance to Mortgagee in an amount sufficient to discharge the claim out W
of which the lien arises. U-
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6.3. Ri2ht to Inspect and Cure. Mortgagee shall have the right to conduct or have
conducted by its agents or contractors such environmental inspections, audits and tests as W
Mortgagee shall deem necessary or advisable from time to time at the sole cost and expense of
Mortgagor. The cost of such inspections, audits and tests shall be added to the Liabilities and shall z
be secured by this Mortgage. Mortgagor shall, and shall cause each tenant of the Property to,
cooperate with such inspection efforts; such cooperation shall include, without limitation, W
supplying all information requested concerning the operations conducted and Hazardous Z
Substances located at the Property. In the event that Mortgagor fails to comply with any
Environmental Law,Mortgagee may,in addition to any of its other remedies under this Mortgage,
4j
cause the Property to be in compliance with such laws and the cost of such compliance shall be a
added to the sums secured by this Mortgage in accordance with the provisions of Section 1 hereof. E
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Packet Pg. 2859
P.16.b
6.4 Environmental Indemnification. (a) Mortgagor agrees, jointly and severally,
to unconditionally and absolutely indemnify and hold Mortgagee, its officers, directors,
employees, agents and attorneys harmless from and against any loss, cost,liability, damage, claim
or expense, including reasonable attorneys' fees, suffered or incurred by Mortgagee in connection
with the Property at any time, whether before, during or after enforcement of Mortgagee's rights a
and remedies upon default under the Loan Documents, under or on account of, or as a result of(i) E
any violation of applicable Environmental Laws, (ii) any presence, release, or threat of release of
Hazardous Substances at, upon, under or within the Property, (iii) the presence of asbestos or
asbestos-containing materials, PCB's, radon gas, urea formaldehyde foam insulation or lead
(whether in paint,water, soil, or plaster) at the Property, (iv) any breach of the representations and
warranties made in this Section 6, (v) the failure of Mortgagor to duly perform the obligations or
actions set forth in this Section 6 with respect to: (A)the imposition by any governmental authority
of any lien upon the Property, (B) clean-up costs, (C)liability for personal injury or property
damage or damage to the environment, (D) any diminution in the value of the Property and (E)
fines,penalties and punitive damages, or(vi) otherwise pursuant to the terms of that certain ADA
and Environmental Indemnity Agreement, dated of even date herewith.
(b) Mortgagor further agrees that Mortgagee shall not assume any liability or obligation
for loss, damage, fines, penalties, claims or duty to clean up or dispose of wastes or materials on
or relating to the Property as a result of any conveyance of title to the Property to the Mortgagee W
or otherwise or as a result of any inspections or any other actions made or taken by Mortgagee on
the Property unless caused by the negligent or intentional acts of Mortgagee or anyone acting by
or through Mortgagee, and (ii) Mortgagor agrees to remain fully liable and shall indemnify and
0
hold harmless Mortgagee from any costs, expenses, clean-up costs,waste disposal costs,litigation
costs, fines and penalties, including without limitation any costs, expenses, penalties and fines
within the meaning of any applicable Environmental Laws. �
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W
(c) Mortgagor shall assume the burden and expense of defending Mortgagee, with
counsel selected by Mortgagor and reasonably satisfactory to Mortgagee, against all legal and
administrative proceedings arising out of the occurrences to which this Section 6 applies. Z
Mortgagee shall have the right, but not the obligation, to participate in the defense of any such W
proceedings; provided, however, that the costs thereof shall be borne by Mortgagee if Mortgagee W
engages separate counsel unless Mortgagee reasonably believes counsel selected by Mortgagor is a
not conducting an adequate defense and new counsel selected by Mortgagors and reasonably
approved by Mortgagee is not provided within ten (10) days following written notice from
Mortgagee, in which event the cost of Mortgagee's separate counsel shall be borne by Mortgagor. W
Mortgagor may compromise or settle any such proceedings without the consent of Mortgagee only a
if the claimant agrees as part of the compromise or settlement that Mortgagee shall have no
responsibility or liability for the payment or discharge of any amount agreed upon or obligation to a
take any other action. a
z
(d) Mortgagor shall pay when due any judgments against Mortgagee which have been
indemnified under this Section 6 and which are rendered by a final order or decree of a court of
competent jurisdiction from which no further appeal may be taken or has been taken within the E
applicable appeal period. In the event that such payment is not made, Mortgagee, in its sole
discretion, may pay any such judgments on five (5) Business Days prior written notice to
25
Packet Pg. 2860
P.16.b
Mortgagor, in whole or in part, and look to Mortgagor for reimbursement pursuant to this Section
6, or may proceed to file suit against Mortgagor to compel such payment.
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7. EVENTS OF DEFAULT. Each of the following shall constitute a default (each, an
"Event of Default")hereunder:
E
0.
7.1. Non-payment when due of any sum required to be paid to Mortgagee within five 2
(5) days after the due date under any of the Loan Documents, including without limitation,
principal and interest;
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7.2 A breach of any covenant contained in Sections 2.3., 2.4., 2.6. or 2.7. hereof,
7.3. A breach by Mortgagor of any other term, covenant, condition, obligation or
agreement under this Mortgage, and the continuance of such breach for a period of fifteen (15)
days after written notice thereof shall have been given to Mortgagor;
7.4. An Event of Default under the Note or any of the other Loan Documents;
7.5. Any representation or warranty made by Mortgagor or any guarantor in any Loan
Document or to induce Mortgagee to enter into the transactions contemplated hereunder shall W
prove to be false, incorrect or misleading in any material respect as of the date when made;
7.6. The filing by or against Mortgagor or any pledgor or guarantor of a petition seeking
relief, or the granting of relief, under the Federal Bankruptcy Code or any similar federal or state
statute; any assignment for the benefit of creditors made by Mortgagor or any pledgor or any
guarantor,unless with respect to any involuntary proceeding,it is dismissed within sixty(60) days Z:
after the filing thereof,the appointment of a custodian,receiver,liquidator or trustee for Mortgagor
or any guarantor or for any of the property of Mortgagor or any such pledgor or guarantor, or any
action b Mortgagor or an guarantor to effect an of the foregoing; or if Mortgagor or anpledgor
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or any guarantor becomes insolvent (however defined) or is not paying its debts generally as they
become due; W
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7.7. The death, dissolution, liquidation, merger, consolidation or reorganization of
Mortgagor or any pledgor or any guarantor, or the institution of any proceeding to effect any of
the foregoing;
7.8. A default under any other obligation by Mortgagor (or any affiliate of Mortgagor)
or any guarantor(or affiliate of any such guarantor)in favor of Mortgagee, or under any document
securing or evidencing such obligation, whether or not such obligation is secured by the Property; W
z
7.9. The filing, entry or issuance of any judgment, execution, garnishment, attachment,
distraint or lien against Mortgagor or any guarantor or pledgor or their property, unless such
judgment, execution, garnishment, attachment, distraint or lien is discharged by Mortgagor within
thirty (30) days after its filing, entry or issuance; E
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7.10. A default under any other obligation secured by the Property or any part thereof,
26
Packet Pg. 2861
P.16.b
7.11 The Property or any portion thereof shall be taken on execution or other process of
law in any action against Mortgagor;
7.12 Mortgagor abandons all or a portion of the Property; or a
E
0.
7.13 If(A)a breach or default by Mortgagor under any condition or obligation contained 2
in the Ground Lease is not cured within any applicable cure period provided therein, (B) there
occurs any event or condition that gives the Lessor under the Ground Lease a right to terminate or
cancel the Ground Lease, (C) any portion of the Property shall be surrendered or the Ground Lease
shall be terminated or cancelled for any reason or under any circumstances whatsoever, or(D) any
of the terms, covenants or conditions of the Ground Lease shall be modified, changed,
supplemented, altered or amended, without in each case the prior written consent of Mortgagee
(except that Mortgagor may extend the term of the Ground Lease without the prior written consent
of Mortgagee).
8. REMEDIES. If an Event of Default shall have occurred, Mortgagee may take any of the
following actions:
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8.1. Acceleration. Mortgagee may declare the entire amount of the Liabilities W
immediately due and payable, without presentment, demand, notice of any kind, protest or notice
of protest, all of which are expressly waived, notwithstanding anything to the contrary contained
in any of the Loan Documents. Mortgagee may charge and collect interest from the date of default 0
on the unpaid balance of the Liabilities, at the Default Rate set forth in the Note.
8.2. Possession. Mortgagee may enter upon and take possession of the Property, with
or without legal action, lease the Property, collect therefrom all rentals and, after deducting all
costs of collection and administration expense, apply the net rentals to any one or more of the
following items in such manner and in such order of priority as Mortgagee, in Mortgagee's sole
discretion, may elect: the payment of any sums due under any prior lien, taxes, water and sewer
rents, charges and claims,insurance premiums and all other carrying charges, to the maintenance W
repair or restoration of the Property, or on account of the Liabilities. Mortgagee is given full U-
authority to do any act which Mortgagor could do in connection with the management and W
operation of the Property. This covenant is effective either with or without any action brought to
foreclose this Mortgage and without applying for a receiver of such rents. In addition to the
foregoing, upon the occurrence of an Event of Default, Mortgagor shall pay monthly in advance
to Mortgagee or to any receiver appointed to collect said rents the fair and reasonable rental value z
for Mortgagor's use and occupation of the Property, and upon default in any such payment
Mortgagor shall vacate and surrender the possession of the Property to Mortgagee or to such
receiver. If Mortgagor does not vacate and surrender the Property then Mortgagor may be evicted z
by summary proceedings. Notwithstanding anything to the contrary contained herein, subject to
applicable law,Mortgagee may with or without taking possession of the Property, sue or otherwise
4i
collect the Rents and profits, including those past due and unpaid. a
E
8.3. Foreclosure. Mortgagee may institute any one or more actions of mortgage
foreclosure against all or any part of the Property, or take such other action at law, equity or by
27
Packet Pg. 2862
P.16.b
contract for the enforcement of this Mortgage and realization on the security herein or elsewhere
provided for, as the law may allow, and may proceed therein to final judgment and execution for
the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall bear interest
at the greater of(a) the statutory rate provided for judgments, or (b) the Default Rate. Without
limiting the foregoing, Mortgagee may foreclose this Mortgage and exercise its rights as a secured
party for all or any portion of the Liabilities which are then due and payable, subject to the E
continuing lien of this Mortgage for the balance not then due and payable. In case of any sale of
the Property by judicial proceedings, the Property may be sold in one parcel or in such parcels,
manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone
claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in
equity, be limited, except as herein provided, in the exercise of its rights in the Property or in any
other security hereunder or otherwise appertaining to the Liabilities or any other obligation secured
by this Mortgage, whether by any statute, rule or precedent which may otherwise require said
security to be marshalled in any manner and Mortgagor, for itself and others as aforesaid, hereby
expressly waives and releases any right to or benefit thereof. The failure to make any tenant a
defendant to a foreclosure proceeding shall not be asserted by Mortgagor as a defense in any
proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid
after the foreclosure sale of the Property.
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8.4. Appointment of Receiver. Mortgagee may petition a court of competent W
jurisdiction to appoint a receiver of the Property. Such appointment may be made either before or
after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time
of application for such receiver, without regard to the then value of the Property or whether the 0
Property shall be then occupied as a homestead or not, and without regard to whether Mortgagor
has committed waste or allowed deterioration of the Property, and Mortgagee or any agent of
Mortgagee may be appointed as such receiver. Mortgagor hereby agrees that Mortgagee has a Z:
special interest in the Property and absent the appointment of such receiver the Property shall
suffer waste and deterioration and Mortgagor further agrees that it shall not contest the
appointment of a receiver and hereby so stipulates to such appointment pursuant to thisparagraph.
PP Y P PP P �
Such receiver shall have the power to perform all of the acts permitted Mortgagee pursuant to Z
Section 8.2 above and such other powers which may be necessary or customary in such cases for W
the protection,possession, control, management and operation of the Property during such period. LL
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8.5. Ri2hts as a Secured Party. Mortgagee shall have, in addition to other rights and
remedies available at law or in equity, the rights and remedies of a secured party under the Code.
Mortgagee may elect to foreclose such of the Property as then comprise fixtures pursuant either to
the law applicable to foreclosure of an interest in real estate or to that applicable to personal z
property under the Code. To the extent permitted by law, Mortgagor waives the right to any stay
of execution and the benefit of all exemption laws now or hereafter in effect. W
z
8.6. Excess Monies. Mortgagee may apply on account of the Liabilities any
unexpended monies still retained by Mortgagee that were paid by Mortgagor to Mortgagee: (a) for
the payment of,or as security for the payment of taxes,assessments or other governmental charges,
insurance premiums, or any other charges; or (b) to secure the performance of some act by
Mortgagor.
28
Packet Pg. 2863
P.16.b
8.7. Other Remedies. Mortgagee shall have the right, from time to time, to bring an
appropriate action to recover any sums required to be paid by Mortgagor under the terms of this
Mortgage, as they become due,without regard to whether or not any other Liabilities shall be due,
and without prejudice to the right of Mortgagee thereafter to bring an action of mortgage
foreclosure, or any other action,for any default by Mortgagor existing at the time the earlier action a
was commenced. In addition, Mortgagee shall have the right to set-off all or any part of any E
amount due by Mortgagor to Mortgagee under any of the Liabilities, against any indebtedness 2
liabilities or obligations owing by Mortgagee in any capacity to Mortgagor, including any
obligation to disburse to Mortgagor any funds or other property on deposit with or otherwise in
the possession, control or custody of Mortgagee.
8.8 Miscellaneous.
(a) Application of Proceeds. To the fullest extent permitted by law, the proceeds of
any sale under this Mortgage shall be applied to the extent funds are so available to the following
items in such order as Mortgagee in its discretion may determine: (i) To payment of the costs,
expenses and fees of taking possession of the Property, and of holding, operating, maintaining,
using, leasing, repairing, improving, marketing and selling the same and of otherwise enforcing
Mortgagee's right and remedies under this Mortgage and under the other Loan Documents,
including receivers' fees, court costs, attorneys', accountants', appraisers', managers' and other W
professional fees, title charges and transfer taxes; (ii) To payment of all sums expended by
Mortgagee under the Loan Documents and not yet repaid, together with interest on such sums at
the Default Rate; (iii) To payment of the Liabilities and all other obligations secured by this
0
Mortgage, including interest at the Default Rate and, to the extent permitted by applicable law,
any prepayment fee, charge or premium required to be paid under the Note in order to prepay
principal,in any order that Mortgagee chooses in its sole discretion. The remainder,if any, of such �
funds shall be disbursed to Mortgagor or to the person or persons legally entitled thereto. W
(b) Right and Authority of Receiver or Mortgagee in the Event of Default: Power of
Attorney. Upon the occurrence of an Event of Default and entry upon the Property or appointment z
of a receiver, and under such terms and conditions as may be prudent and reasonable under the W
circumstances in Mortgagee's or the receiver's sole discretion, all at Mortgagor's expense, U_
Mortgagee or said receiver, or such other persons or entities as they shall hire, direct or engage, as a
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the case may be, may (but shall have no obligation to) do or permit one or more of the following,
successively or concurrently: (a) enter upon and take possession and control of any and all of the
Property; (b) take and maintain possession of all documents, books, records,papers and accounts
relating to the Property; (c) exclude Mortgagor and its agents,servants and employees wholly from
the Property; (d) manage and operate the Property; (e)preserve and maintain the Property, (f)make
repairs, alterations or improvements to the Property; (g) complete any construction or repair of the W
Improvements, with such changes, additions or modifications of the plans and specifications or z
intended disposition and use of the Improvements as Mortgagee may in its sole discretion deem W
appropriate or desirable to place the Property in such condition as will, in Mortgagee's sole
discretion, make it or any part thereof readily marketable or rentable; (h) conduct a marketing or a
leasing program with respect to the Property, or employ a marketing or leasing agent or agents to E
do so, directed to the leasing or sale of the Property under such terms and conditions as Mortgagee
may in its sole discretion deem appropriate or desirable; (i) employ such contractors
subcontractors, material men, architects, engineers, consultants, managers, brokers, marketing
29
Packet Pg. 2864
P.16.b
agents, or other employees, agents, independent contractors or professionals, as Mortgagee may
in its sole discretion deem appropriate or desirable to implement and effectuate the rights and
powers in this Mortgage granted; 0) execute and deliver,in the name of Mortgagor as attorney-in-
fact and agent of Mortgagor or in its own name as Mortgagee, such documents and instruments as
are necessary or appropriate to consummate authorized transactions; (k) enter into such contracts a
of sale, leases, whether of real or personal property, or tenancy agreements, under such terms and E
conditions as Mortgagee may in its sole discretion deem appropriate or desirable; (1) collect and 2
receive the Rents and profits from the Property; (m) eject tenants or repossess personal property,
as provided by law, for breaches of the conditions of their leases or other agreements; (n) sue for
unpaid Rents and profits, payments, income or proceeds in the name of Mortgagor or Mortgagee
or such receiver; (o) maintain actions in forcible entry and detainer, ejectment for possession and
actions in distress for rent; (p) compromise or give acquittance for Rents and profits, payments,
income or proceeds that may become due; (q) delegate or assign any and all rights and powers
given to Mortgagee by this Mortgage; and (r) do any acts which Mortgagee in its sole discretion
deems appropriate or desirable to protect the security and use such measures, legal or equitable,
as Mortgagee may in its sole discretion deem appropriate or desirable to implement and effectuate
the provisions of this Mortgage. This Mortgage shall constitute a direction to and full authority to
any lessee, or other third party who has previously dealt or contracted or may subsequently deal
or contract with Mortgagor or Mortgagee, at the request of Mortgagee, to pay all amounts owing
under any lease, contract, concession, license or other agreement to Mortgagee without proof of W
the default relied upon. Any such lessee or third party is irrevocably authorized to rely upon and
comply with(and shall be fully protected by Mortgagor in so doing)any request,notice or demand
by Mortgagee for the payment to Mortgagee of any Rents and profits or other sums which may be 0
or thereafter become due under its lease, contract, concession, license or other agreement, or for
the performance of any undertakings under any such lease, contract, concession, license or other
agreement, and shall have no right or duty to inquire whether any default under this Mortgage or Z:
under any of the other Loan Documents has actually occurred or is then existing. Mortgagor
constitutes and appoints Mortgagee, its assignees, successors, transferees and nominees, as
Mortgagor's true and lawful attorney-in-fact and agent, with full power of substitution in the
Property, in Mortgagor's name,place and stead, to do or permit any one or more of the foregoing Z
described rights, remedies, powers and authorities, successively or concurrently, and said power W
of attorney shall be deemed a power coupled with an interest and irrevocable so long as any of the U-
Liabilities is outstanding. Any money advanced by Mortgagee in connection with any action taken W
under this Section, together with interest thereon at the Default Rate from the date of making such
advancement by Mortgagee until actually paid by Mortgagor, shall be a demand obligation owing
by Mortgagor to Mortgagee and shall be secured by this Mortgage and by every other instrument
securing the Liabilities. z
(c) Occupancy After Foreclosure. Upon any foreclosure sale, Mortgagor or
Mortgagor's representatives, successors or assigns, or any other persons claiming any interest in z
the Property by, through or under Mortgagor (except tenants or subtenants under Leases entered
into prior to the date of this Mortgage), occupying or using the Property, or any part thereof,to the
extent not prohibited by applicable law, shall, at the option of the purchaser at such sale, a
immediately become the tenant of such purchaser, which tenancy shall be a tenancy from day-to- E
day, terminable at the will of either landlord or tenant, at a reasonable rental per day based upon
the value of the Property occupied or used, such rental to be due daily to the purchaser. To the
extent permitted by applicable law, in the event any tenant fails to surrender possession of the
30
Packet Pg. 2865
P.16.b
Property upon the termination of its tenancy, the purchaser shall be entitled to institute and
maintain an action for unlawful detainer of the Property in the appropriate court of the county in _
which the Real Estate is located.
(d) Notice to Account Debtors. Mortgagee may, at any time after an Event of Default,
notify the account debtors and obligors of any accounts, chattel paper, negotiable instruments or E
other evidences of indebtedness to Mortgagor included in the Property to pay Mortgagee directly. 2
Mortgagor shall at any time or from time to time upon the request of Mortgagee provide to �
Mortgagee a current list of all such account debtors and obligors and their addresses.
a
(e) Cumulative Remedies. All remedies in this Mortgage are cumulative and
Mortgagee shall also have all other remedies provided at law and in equity or in any other Loan
Documents. Such remedies may be pursued separately, successively or concurrently at the sole
subjective direction of Mortgagee and may be exercised in any order and as often as occasion
therefor shall arise. No act of Mortgagee shall be construed as an election to proceed under any
particular provisions of this Mortgage to the exclusion of any other provision of this Mortgage or
as an election of remedies to the exclusion of any other remedy which may then or thereafter be
available to Mortgagee. No delay or failure by Mortgagee to exercise any right or remedy under
this Mortgage shall be construed to be a waiver of that right or remedy or of any default under this
Mortgage. Mortgagee may exercise any one or more of its rights and remedies at its option without
regard to the adequacy of its security.
(f) Payment of Expenses. Mortgagor shall pay within seven (7) days after written
demand all of Mortgagee's expenses incurred in any efforts to enforce any terms of this Mortgage,
whether or not any lawsuit is filed and whether or not foreclosure is commenced but not completed,
including legal fees,foreclosure costs and title charges,together with interest thereon at the Default 0
Rate from the date incurred by Mortgagee until actually paid by Mortgagor. All of the same shall W
be secured by this Mortgage and the other Loan Documents securing the Liabilities.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage shall be in writing
and shall be given by either(a)hand-delivery, (b) first class mail (postage prepaid), or(c) reliable a
overnight commercial courier(charges prepaid), or(d)via electronic mail in portable document or
other format to the party intended to receive same, so long as in the case of electronic mail such
notice is simultaneously delivered in another permitted manner, to the addresses listed in this W
Mortgage. Notice shall be deemed to have been given and received: (a)if by hand delivery,upon a
delivery; (b) if by mail, three (3) calendar days after the date first deposited in the United States z
mail; (c) if by overnight courier, on the date scheduled for delivery; and (d) if by electronic mail,
on the date delivered to such party. A party may change its address by giving written notice to the z
other party as specified herein. W
If to Mortgagor:
Key Marina Development, LLC
E
52 Riley Road, Unit 155
Celebration, Florida 34747
Attn: Mark R. Gerenger
31
Packet Pg. 2866
If to Mortgagee: LV Lending LLC
175 SW 7th Street, Suite 2101
Miami, Florida 33130
Attn: Camilo Nino E
Email: cgig 0(�.Di,j�Yikvcs�tca,.italcori'i .2
.....................................
With a Copy to: Holland& Knight LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Attn: Rebecca L. Mendez, Esq.
Email: rcbcCca,..t1'ic1).dCZ.( I.�,Dt,
......................................................................................................
9.2. Remedies Cumulative. The rights and remedies of Mortgagee as provided in this
Mortgage or in any other Loan Document shall be cumulative and concurrent, may be pursued
separately, successively or together,may be exercised as often as occasion therefor shall arise, and
shall be in addition to any other rights or remedies conferred upon Mortgagee at law or in equity.
The failure, at any one or more times, of Mortgagee to assert the right to declare the Liabilities
due, grant any extension of time for payment of the Liabilities, take other or additional security for W
the payment thereof, release any security, change any of the terms of the Loan Documents, or
waive or fail to exercise any right or remedy under any Loan Document shall not in any way affect
this Mortgage or the rights of Mortgagee. 0
9.3. No Implied Waiver. Mortgagee shall not be deemed to have modified or waived
0
any of its rights or remedies hereunder unless such modification or waiver is in writing and signed Z:
W
by Mortgagee, and then only to the extent specifically set forth therein. A waiver in one event (n
shall not be construed as continuing or as a waiver of or bar to such right or remedy on a subsequent W
event.
Z
9.4. Partial Invalidity; Severability. The invalidity or unenforceability of any one or W
W
more provisions of this Mortgage shall not render any other provision invalid or unenforceable. U-
WIn lieu of any invalid or unenforceable provision, there shall be added automatically a valid and W
enforceable provision as similar in terms to such invalid or unenforceable provision as may be
possible.
W
9.5. Binding Effect; Successors and Assigns. The covenants, conditions, waivers, Z
releases and agreements contained in this Mortgage shall bind, and the benefits thereof shall inure
to, the parties hereto and their respective heirs, executors, administrators, successors and assigns W
a
and are intended and shall be held to be real covenants running with the land; provided, however, Z
W
that this Mortgage cannot be assigned by Mortgagor without the prior written consent of
Mortgagee, and any such assignment or attempted assignment by Mortgagor shall be void and of
no effect with respect to Mortgagee.
E
9.6. Entire Agreement. Modifications. This Mortgage and the other Loan Documents
contain the entire agreements between the parties relating to the subject matter described in such <
32
1 Packet Pg. 2867
P.16.b
documents. Any and all prior written agreements and any and all prior and contemporaneous oral
agreements which are not contained in this Mortgage or such other Loan Documents are
terminated. This Mortgage and the other Loan Documents may not be supplemented, extended,
modified or terminated except by an agreement in writing signed by the party against whom
enforcement of any waiver, change,modification or discharge is sought. Any alleged amendment,
revision, waiver, discharge, release or termination which is not so documented shall not be E
effective as to any party. 2
9.7. Commercial Loan. Mortgagor represents and warrants that the loans or other
financial accommodations included as Liabilities secured by this Mortgage were obtained solely
for the purpose of carrying on or acquiring a business or commercial investment and not for
residential, consumer or household purposes.
9.8. Governing Law. This Mortgage shall be governed by and construed in accordance
with the substantive laws of the State of Florida without reference to conflict of laws principles.
9.9. Joint and Several Liability. If Mortgagor consists of more than one person or
entity, the word"Mortgagor" shall mean each of them and their liability shall be j oint and several.
cv
9.10. Non-Merger. In the event Mortgagee shall acquire title to the Property by
conveyance from Mortgagor or as a result of foreclosure, this Mortgage shall not merge in the fee
estate of the Property but shall remain and continue as an existing and enforceable lien for the
Liabilities secured hereby until the same shall be released of record by Mortgagee in writing. 0
9.11 Waiver; Discontinuance of Proceedings. Mortgagee may waive any single
default by Mortgagor without waiving any other prior or subsequent default. Mortgagee may Z:
remedy any default by Mortgagor without waiving the default remedied. Neither the failure by
Mortgagee to exercise,nor the delay by Mortgagee in exercising, any right,power or remedy upon
any default by Mortgagor shall be construed as a waiver of such default or as a waiver of the right
to exercise any such right, power or remedy at a later date. No single or partial exercise by z
Mortgagee of any right, power or remedy shall exhaust the same or shall preclude any other or W
further exercise. Every such right,power or remedy under this Mortgage may be exercised at any U-
time and from time to time. No modification or waiver of any provision of this Mortgage nor W
consent to any departure by Mortgagor shall be effective unless the same shall be in writing and
signed by Mortgagee, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose given. No notice to nor demand on Mortgagor in any case
shall of itself entitle Mortgagor to any other or further notice or demand in similar or other z
circumstances. Acceptance by Mortgagee of any payment in an amount less than the amount then
due on any of the Liabilities shall be deemed an acceptance on account only and shall not in any W
way affect the existence of a default. In case Mortgagee shall have proceeded to invoke any right, z
remedy or recourse permitted under this Mortgage or under the other Loan Documents and shall
thereafter elect to discontinue or abandon the same for any reason, Mortgagee shall have the
unqualified right to do so. In such an event, Mortgagor and Mortgagee shall be restored to their
former positions with respect to the Liabilities, the Loan Documents, the Property and otherwise,
and the rights, remedies, recourses and powers of Mortgagee shall continue as if the same had
never been invoked
33
Packet Pg. 2868
P.16.b
9.12 Application of the Proceeds of the Note. To the extent that proceeds of the Note
are used to pay the Liabilities secured by any outstanding lien, security interest, charge or prior
encumbrance against the Property, Mortgagee shall be subrogated to any and all rights, security
interests and liens owned by any owner or holder of such outstanding liens, security interests,
charges or encumbrances, irrespective of whether said liens, security interests, charges or E
encumbrances are released. 2
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9.13 Unsecured Portion of Liabilities. If any part of the Liabilities cannot be lawfully
secured by this Mortgage or if any part of the Property cannot be lawfully subject to its lien and
security interest to the full extent of Liabilities, then all payments made shall be applied on the
Liabilities first in discharge of that portion which is unsecured by this Mortgage.
9.14 Cross Default. An Event of Default under this Mortgage shall be a default or Event
of Default under each of the other Loan Documents.
9.15 Interest After Sale. In the event the Property or any part thereof shall be sold upon
foreclosure as provided in this Mortgage, to the extent permitted by law, the sum for which the
same shall have been sold shall, for purposes of redemption (if there is any right of redemption
which has not been effectively waived pursuant to the laws of the state in which the Property is
located), bear interest at the Default Rate.
9.16 Inconsistency with Other Loan Documents. In the event of any inconsistency
between the provisions of this Mortgage and the provisions in any of the other Loan Documents, 0
it is intended that the provisions selected by Mortgagee in its sole subjective discretion shall be
controlling. 0
9.17 No Merger. It is the desire and intention of the parties that this Mortgage and the <
lien of this Mortgage will not merge in fee simple title to the Property. Should Mortgagee acquire W
any additional or other interests in or to the Property or its ownership,then,unless a contrary intent a
z
is manifested by Mortgagee as evidenced by an appropriate document duly recorded, this
Mortgage and its lien shall not merge in such other or additional interests in or to the Property, W
toward the end that this Mortgage may be foreclosed or sold pursuant to foreclosure proceedings a
as if owned by a stranger to said other or additional interests.
9.18 Rights With Respect to Junior Encumbrances. Any person or entity purporting
to have or to take a junior mortgage, deed of trust or other lien upon the Property or any interest
therein shall be subject to the rights of Mortgagee to (i) amend, modify, increase, vary, alter or Z
supplement this Mortgage, the Note or any of the other Loan Documents (ii) extend the maturity
date of the Liabilities (iii)increase the amount of the Liabilities (iv)waive or forebear the exercise a
of any of its rights and remedies under this Mortgage or under any of the other Loan Documents Z
and (v) release any collateral or security for the Liabilities, in each and every case without
obtaining the consent of the holder of such junior lien and without the lien or security interest of
this Mortgage losing its priority over the rights of any such junior lien.
9.19 Mortgagee May File Proofs of Claim. In the case of any receivership,insolvency, 2
bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting
34
Packet Pg. 2869
P.16.b
Mortgagor or the principals or general partners in Mortgagor, or their respective creditors or
property, Mortgagee, to the extent permitted by law, shall be entitled to file such proofs of claim
and other documents as may be necessary or advisable in order to have the claims of Mortgagee
allowed in such proceedings for the entire Liabilities at the date of the institution of such
proceedings and for any additional amount which may become due and payable by Mortgagor a
under this Mortgage after such date. E
c
9.20 After-Acquired Property. All property acquired by Mortgagor after the date of �
this Mortgage which by the terms of this Mortgage shall be subject to the lien and the security
interest created, shall immediately upon the acquisition by Mortgagor and without further
mortgage, conveyance or assignment, become subject to the lien and security interest created by
this Mortgage. Nevertheless, Mortgagor shall execute, acknowledge, deliver and record or file, as
appropriate, all and every such further mortgages, deeds of trust, deeds to secure debt, security
agreements, financing statements, assignments and assurances as Mortgagee shall require for
accomplishing the purposes of this Mortgage.
9.21 No Representation. By accepting delivery of any item required to be observed,
performed or fulfilled or to be given to Mortgagee pursuant to the Loan Documents,including any
officer's certificate,balance sheet, statement of profit and loss or other financial statement, survey,
appraisal or insurance policy, Mortgagee shall not be deemed to have warranted, consented to, or
affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of any term,
provision or condition thereof. Such acceptance of delivery shall not be or constitute any warranty,
consent or affirmation of Mortgagee.
2
9.22 Recording and Filing. Mortgagor will cause the Loan Documents and all
amendments and supplements and substitutions to be recorded, filed, re-recorded and re-filed in 0
such manner and in such places as Mortgagee shall reasonably request. Mortgagor will pay on W
demand all such recording, filing, re-recording and re-filing taxes, fees and other charges.
Mortgagor shall reimburse Mortgagee, or its servicing agent, for the costs incurred in obtaining a
tax service company to verify the status of payment of taxes and assessments on the Property. z
9.23 Maximum Interest. The provisions of this Mortgage and all other agreements
between Mortgagor and Mortgagee,whether now existing or subsequently arising,written or oral, a
are expressly limited so that in no contingency or event whatsoever, whether by reason of demand
or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreed to be
paid,to Mortgagee for the use,forbearance or retention of the money loaned under the Note exceed W
W
the maximum amount permissible under applicable law. If, from any circumstance whatsoever,
performance or fulfillment of any provision of this Mortgage or of any agreement between
Mortgagor and Mortgagee shall,at the time performance or fulfillment, exceed the limit for interest a
w
prescribed by law or otherwise transcend the limit of validity prescribed by applicable law, then
ipso facto the obligation to be performed or fulfilled shall be reduced to such limit. If, from any W
circumstance whatsoever, Mortgagee shall ever receive anything of value deemed interest by
applicable law in excess of the maximum lawful amount, an amount equal to any excess shall be C
applied to the reduction of the principal balance owing under the Note in the inverse order of its E
maturity (whether or not then due) or, at the option of Mortgagee, be rebated to Mortgagor, and
not to the payment of interest. All interest (including any amounts or payments deemed to be
interest) paid or agreed to be paid to Mortgagee shall, to the extent permitted by applicable law,
35
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be amortized,prorated, allocated and spread throughout the full period until payment in full of the
principal balance of the Note so that the Interest thereon for such full period will not exceed the
maximum amount permitted by applicable law. This paragraph will control all agreements
between Mortgagor and Mortgagee.
9.24 Servicing Agent. Mortgagor acknowledges that the Loan Documents may be0.
serviced by an agent designated by Mortgagee from time to time, and that such servicing agent 2
shall have the authority to collect payments on the Liabilities and to exercise the rights and
remedies of Mortgagee under the Loan Documents for and on behalf of Mortgagee.
a
9.25 Sole Discretion of Mortmee. Wherever pursuant to this Mortgage or any other
Loan Document (i) Mortgagee exercises any right given to it to approve or disapprove; (ii) any
arrangement or term is to be satisfactory to Mortgagee; or(iii) any other decision or determination
is to be made by Mortgagee,the decision of Mortgagee to approve or disapprove, all decisions that
arrangements or terms are satisfactory or not satisfactory and all other decisions and
determinations made by Mortgagee, shall be in the sole discretion of Mortgagee, except as may be
otherwise expressly and specifically provided herein or therein
9.26 Construction. The following rules apply to the construction and interpretation of
this Mortgage: (i) singular words connote the plural number as well as the singular and vice versa W
as used in the definitions and elsewhere in this Mortgage; (ii) unless specifically otherwise
provided, all references in this Mortgage to particular articles, sections, subsections, clauses,
schedules or exhibits are references to articles, sections, subsections, clauses, schedules or exhibits 0
of this Mortgage; (iii) the section headings are solely for convenience of reference and do not
constitute a part of this Mortgage nor affect its meaning, construction or effect; (iv) the terms
"include" or "including" are not restrictive and shall be deemed to include the terms "but not �
limited" or "without limitation"; (v) the term "attorney's fees" or similar phrases includes the
reasonable fees and disbursements of Mortgagee's counsel or law firm in reviewing the Loan
Documents, investigating,preparing and pursuing claims before or at trial and all appellate levels
g g�P P g P g � PP �
or in bankruptcy, and includes the fees of such counsel's or law firm's paralegals and consultants; Z
(vi) the term "days" means calendar days; provided that if any time period ends on a Saturday, W
Sunday or holiday officially recognized by the state within which the Real Estate is located, the U-
period shall be deemed to end on the next succeeding business day and the term "business day" W
means a weekday, Monday through Friday, except a legal holiday or a day on which banking
institutions in Marathon, Florida are authorized to be closed; and (v) this document may be
construed as a mortgage, security deed, deed of trust, chattel mortgage, conveyance, assignment,
security agreement,pledge, financing statement, hypothecation or contract, or any one or more of z
the foregoing, in order to fully effectuate the liens and security interests created and the purposes
and agreements in this Mortgage. W
z
9.27 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW,
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION
IN THE STATE WHERE THE PROPERTY IS LOCATED OVER ANY SUIT, ACTION
36
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OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE NOTE,
THIS MORTGAGE OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES _
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE
COUNTY WHERE THE PROPERTY IS LOCATED, (iii) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND, (iv) TO THE FULLEST EXTENT E
PERMITTED BY LAW,AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR
PROCEEDING IN ANY FORUM OTHER THAN THE COUNTY WHERE THE
PROPERTY IS LOCATED (BUT NOTHING IN THIS MORTGAGE SHALL AFFECT
THE RIGHT OF MORTGAGEE TO BRING ANY ACTION, SUIT OR PROCEEDING IN
ANY OTHER FORUM).
(b) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW,
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE
LIABILITIES OR ANY CONDUCT, ACT OR ACTION OF MORTGAGEE OR
MORTGAGOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS
AFFILIATED WITH MORTGAGEE OR MORTGAGOR, IN EACH OR THE W
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE.
[Remainder of page intentionally left blank;signature page to follow.]
4j
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IN WITNESS WHEREOF, Mortgagor, intending to be Legally bound, has duly executed
and delivered this Mortgage and Security Agreement as of the day and year first above written.
�s
WITNESS: MORTGAGOR:
CL
Name: KEY MARINA DEVELOPMENT, LLC
a Florida limited Liability company
a
Name: By: Key Marina Holdings, LLC,
a Delaware limited Liability company,
its Manager and Sole Member
By:
Name: Mark R. Gerenger
Its: Manager
cv
STATE OF FLORIDA )
SS.:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of 2019, (s
by Mark R. Gerenger as Manager of KEY MARINA HOLDINGS, LLC, a Delaware limited W
Liability company, the Manager of KEY MARINA DEVELOPMENT, LLC, a Florida limited
Liability company, on behalf of the company. He is personally known to me (YES) (NO) or has z
produced as identification. W
U-
Notary Public �s
[Notarial Seal]
Printed Name of Notary
w
4j
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Schedule A
Part I- Singleton Parcel
Parcel 1 0
E
CL
Lots I and 2, Block 4, MANDALAY, according to the Plat thereof, recorded in Plat Book 1, .2
Page 1,94, among the Public Records of Monroe County, Florida;
Together with parcel of submerged land in Sec. 6, Twp., 62 South, Rge, 39 East, Key Largo,
Florida,Monroe County, Florida, more particularly described as:
Frorn the intersection of the dividing line between Lots 2and 3, Block 4 with the Southeasterly
side of East Second Street, all as shown on Plat of MANDALAY, recorded in Plat Book 1, Page >%
194, Public Records of Monroe County, Florida, run Southeasterly along said dividing line, a
distance of 150 feet to the most Easterly corner ofLot 2 and the most Westerly comer of a parcel
heretofore conveyed to A.F. Meade by 'trustees LLF, Deed No. 22153 and the "Point of
Beginning of the parcel hereinafter described;thLnee continue Southeasterly along last described
course and along the Southwesterly side of the Meade parcel, a distance of 250 feet; thence
Southwesterly and parallel to the said Southeasterly side of East Second Street, a distance of
125.8 feet to the prolongation of the dividing line between Lot 1, Block 4, and Second Avenue, W
according to said 'Plat Book 1, Page .1.94; thence Northwesterly along said prolongation a
distance of 250 feet to the most Southerly corner of said Lot 1, Block 4; thence Northeasterly
along the Southeasterly side of Lots I and 2:, a distance of 125.8 feet to the Point urBeginning. 0
Part'll - Lively Parcel
0
Z:
A strip of land 125 feet wide and 250 feet in depth off the Southwesterly side of Block 3, said W
(n
strip being 125 feet on.East First Street and East Second Street, and 250 feet on Second Avenue, <
W
MANDALAY, according to the plat thereof recorded in Plat Book 1, Page 194 of the Public
RCCOTds of Monroe County, Florida, Also described as: A strip of land 125 feet wide and 250 z
feet in depth off the Southwesterly side of Block 3, said strip being 125 feet on East First Street <
W
on East Second. and East Avenue 250 :feet on Second Avenue, MANDALAY, according to the W
U-
plat thereof recorded in Plat Book 1, Page 194 of the Public Records of Monroe Courity, Florida. a
W
AND
W
A tract of land in Block 3 of MANDALAY, a subdivision of Key Largo, according to the Plat
recorded in Plat Book 1, at Page 194 Public Records of Mon-roe County, l7lorida, said tract z
having a frontage of 100 feet on East First Street, according to the plat of MANDALAY, and a
W
depth of'95 feet and further described as the Northwesterly '95 feet of the Northeasterly 100 feet a
z
of the Southwesterly 225 feet of said Block 3. W
E
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AND
'rhe Northeasterly 50 feet of the Sontliwesterly 175 feet, and the Northeasterly 50 feet of the
Southwesterly 225 feet, Block 3, MANDALAY, a subdivision of Key Largo, according to the
Plat recorded in Plat Book 1, Page 194 Public Records of Monroe County, Florida, less the
Northwesterly '95 feet of the Nartheasterly 100 feet of the Southwesterly 225 feet thereof of said E
Btack 3. CL
.2
Part IT[- Bennett Parcel
Lots 1, 2, 3, 4, 5, 6, 7, 8, 30, 31, 32 and 33, Block 2, MANDALAY, according to the Plat
thereof, as recorded in Plat Book 1, Page 194 of the Public Records of Monroe County, Florida.
Part IV-that certain leasehold interest in and to that premises described in Exhibit B to that Right of
Way Lease Agreement and Consent to Assignment of Lease recorded in Official Records Book 2877,
page 1916 of the Public Records of Monroe County, Florida,being:
A portion of an Amendment to Lease, as recorded in Official Records Book 2539,Page 1634, of the
Public Records of Monroe County, Florida, described as follows:
A portion of Second Avenue adjacent to Lot 1, Block 4, MANDALAY, according to the Plat thereof, as
recorded in Plat Book 1, Page 194, of the Public Records of Monroe County, Florida, described as W
follows:
COMMENCE at the intersection of the centerline of said Second Avenue with the centerline of East
Second Street, according to said Plat; thence S 44'37'16"E, along the centerline of said Second Avenue, 0
2
a distance of 25.00 feet to a point on the southwesterly projection of the southeasterly right-of-way line of
East Second Street;thence N 45'17'46"E along said southwesterly projection of East Second Street, 9.60
01 0
feet to a line being 20.40 feet southwesterly of and parallel with the northeasterly right-of-way line of said Z:
W
Second Avenue, said line also being the southwesterly limits of said Amendment to Lease; thence S
44'37'16"E along said parallel line and said southwesterly limits of said Amendment to Lease 19.99 feet W
to a point on the southeasterly limits of a proposed cul-de-sac and a point on a non-tangent curve, concave
to the east,having a radius of 20.75 feet and a central angle of 17'20'06" (a radial line bears S 75'05'47" z
E from said point), said point also being the POINT OF BEGINNING; thence northerly along said W
southeasterly limits of proposed cul-de-sac along the arc of and said non-tangent curve, a distance of 6.28 W LL
feet; (the next three courses and distance being along said southeasterly limits of proposed cul-de-sac) a
W
thence N 472 1'06"E, 3.52 feet;thence N 43'27'45"E, 3.27 feet to a point on a non-tangent curve,
concave to the northwest,having a radius of 50.00 feet and a central angle of 10'56'18"(a radial line
bears S 48'24'43"E to said point);thence northeasterly along the arc of said non-tangent curve a distance W
of 9.55 feet to the northeasterly line of said Amendment to Lease and a point of cusp with a non-tangent
curve, concave to the northeast,having a radius of 25.00 feet and a central angle of 20'34'30" (a radial z
line bears S 65'57'14"W from said point);thence southeasterly along said northeasterly line of
Amendment of Lease and the arc of said non-tangent curve, a distance of 8.98 feet to a point of tangency; W
thence S 44'3 7'16"E along said northeasterly line Amendment of Lease also being said northeasterly z
W
right-of-way line of said Second Avenue, a distance of 151.90 feet to the southeasterly limits of said
Amendment of Lease;thence S 45'22'44"W along said southeasterly limits of said Amendment of
Lease, a distance of 20.40 feet to said line being 20.40 feet southwesterly of and parallel with the
northeasterly right-of-way line of said Second Avenue and said southwesterly limits of said Amendment E
of Lease;thence N 44'37'16"W,along said parallel line and said southwesterly limits of said
Amendment of Lease, a distance of 156.84 feet to the POINT OF BEGINNING.
40
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P.16.c
DocH 2205126 02/07/2019 9:30AM
Filed & Recorded in Official Records of
MONROE COUNTY KEVIN MADOK
02/07/2019 9:30AM
MORTGAGELDOCASTAMP Brit
7:700.00
Prepared by and after Doc# 2205126
Bk# 2947 Pg# 2204 t3
recording return to:
Rebecca L. Mendez, Esq.
Holland&Knight LLP c0.
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
a
MORTGAGE AND SECURITY AGREEMENT
This MORTGAGE AND SECURITY AGREEMENT dated February 4, 2019 (together
with any amendments or modifications hereto in effect from time to time, the "Mortgage"), is
made by KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company, having
an address of 52 Riley Road, Unit 155, Celebration, Florida 34747 ("Mortgagor") in favor of
LV LENDING LLC, a Florida limited liability company, having an office at 175 SW 7th Street,
Suite 2101, Miami, Florida 33130 ("Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of Two Million
Two Hundred Thousand and No/100 Dollars ($2,200,000.00) (the "Loan"), together with
interest thereon, as evidenced by a Promissory Note of even date herewith from Mortgagor to
Mortgagee (the "Note");
WHEREAS, Mortgagor is the owner of fee simple title to that certain tract of land
located in Monroe County, Florida, as more particularly described in Schedule "A" attached
hereto and made a part hereof(the "Real Estate"); and
a�
WHEREAS, to induce Mortgagee to make the Loan and to secure payment of the Note
and the other obligations described below, Mortgagor has agreed to execute and deliver this
Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all sums due under c
this Mortgage, the Note (and all extensions, renewals, replacements and amendments thereof)
NOTE TO RECORDER:All documentary stamp in the amount of $7,700.00 and intangible
taxes in the amount of$4,400.00 are due in connection with the indebtedness evidenced by the
Note are being paid in connection with the recordation of this instrument.
This instrument is to be filed and indexed in the real estate records and is also to be indexed in
the index of financing statements under the names of Mortgagor, as "Debtor," and Mortgagee, as
"Secured Party." this instrument shall also be effective from the date of its recording as a
financing statement filed as a fixture filing with respect to all goods constituting part of the
Property which are or are to become fixtures.
Packet Pg. 2876
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and the other Loan Documents (as such term is defined in the Note, the "Loan Documents");
(ii) the performance of all terms, conditions and covenants set forth in the Loan Documents;
(iii) [reserved]; (iv) the repayment of all reimbursement obligations due or that may become due
under or in connection with any present or future letters of credit issued by Mortgagee for the
account of Mortgagor; and (v) all other obligations or indebtedness of Mortgagor to Mortgagee
of whatever kind or character and whenever borrowed or incurred, including without limitation,
principal, interest, fees, late charges and expenses, including attorneys' fees (subsections (i), (ii),
(iii), (iv) and (v) collectively, the "Liabilities"), Mortgagor has mortgaged, granted and 0.
conveyed and by these presents DOES HEREBY MORTGAGE, GRANT AND CONVEY
TO MORTGAGEE, ITS SUCCESSORS AND ASSIGNS, all of Mortgagor's right, title and
interest now owned or hereafter acquired in and to each of the following (collectively, the
"Property"):
(A) The Real Estate;
(B) All buildings, structures, facilities, utility lines and other improvements located
on, in, under or above or comprising any of the Real Estate (the "Improvements");
(C) All easements, plants, landscaping, water rights, mineral rights, water taps, sewer
taps, rents, tenements, appurtenances and hereditaments located on, in, under or above, or
belonging or appertaining to, any of the Real Estate or the Improvements (collectively,
"Appurtenances");
(D) All awards and payments, including interest thereon, and the right to receive
them, which may be made with respect to any part of the Real Estate or the Improvements as a
result of the exercise of the right of eminent domain, the alteration of the grade of any street, or
any other damage or injury to or decrease in the value of the Real Estate or the Improvements;
(E) All fixtures, equipment and other goods now or hereafter located on and used in E
connection with any of the Real Estate or the Improvements (all of the foregoing herein called
the "Service Equipment"), including without limitation: (i) all appliances, furniture and
furnishings; all articles of interior decoration, floor, wall and window coverings; all office,
restaurant, bar, kitchen and laundry fixtures, utensils, appliances and equipment; all supplies,
tools and accessories; all storm and screen windows, shutters, doors, decorations, awnings,
shades, blinds, signs, trees, shrubbery and other plantings; (ii) all building service fixtures,
machinery and equipment of any kind whatsoever; all lighting, heating, ventilating, air
conditioning, refrigerating, sprinkling, plumbing, security, irrigating, cleaning, incinerating,
waste disposal, communications, alarm, fire prevention and extinguishing systems, fixtures,
apparatus, machinery and equipment; all elevators, escalators lifts cranes hoists and platforms;
pP � Y
all pipes, conduits, pumps, boilers, tanks, motors, engines, furnaces and compressors; all
dynamos, transformers and generators; (iii) all building materials, building machinery and
building equipment delivered on site to the Real Estate during the course of, or in connection
with any construction or repair or renovation of the buildings and improvements; (iv) all parts,
fittings, accessories, accessions, substitutions and replacements therefor and thereof; and (v) all
files, books, ledgers, reports and records relating to any of the foregoing;
2
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(F) All leases, licenses, concessions, occupancy or other agreements for all or any
portion of the Real Estate or the Improvements now or subsequently entered into (collectively,
the "Leases") and all rents, royalties, issues, profits, revenue, income and other benefits of the
Real Estate or the Improvements (collectively, "Rents") now or subsequently arising from the
use or enjoyment or from Leases pertaining to the Real Estate or the Improvements or arising
from any of the Contracts (as defined below) or any of the General Intangibles (as defined
below) and all cash or securities deposited to secure performance by the tenants, lessees or �
licensees, as applicable, of their obligations under any such leases, licenses, concessions or c0.
occupancy agreements, whether said cash or securities are to be held until the expiration of the
terms of said leases, licenses, concessions or occupancy agreements or applied to one or more of
the installments of rent coming due arising from or relating to any of the Real Estate or the
Improvements;
(G) All of the following personal property (collectively referred to as the
"Contracts"): instruments, chattel paper, letter-of-credit rights, investment property, deposit
accounts (the foregoing terms being used herein as defined in the Code (as defined herein)
whether or not such collateral is subject thereto), general intangibles and contract rights
(including, but not limited to, (i) all architectural contracts, construction contracts, plans and
specifications, and construction and other warranties, (ii) all service contracts, purchase
contracts, reservation agreements, management contracts, equipment leases and other contracts
(including all deposits, prepaid expenses thereon, insurance policies and unearned premiums
thereon), (iii) all licenses, building and other permits, books, records, customer lists, computer
programs, software and printouts, trade names and trademarks and (iv) all abstracts and other
title evidence) and insurance policy rights and claims arising from or related to any of the Real
Estate or the Improvements, the construction thereof or any business or activity conducted
thereon, but exclusively if such Contract relates to or is used in connection with the ownership,
operation and/or maintenance of the Real Estate and/or the Improvements;
(H) All insurance policies, claims and proceeds relating to the Real Estate or the E
Improvements or any activity thereon; and
(I) All present and future- funds, accounts, instruments, accounts receivable,
documents, causes of action, claims, general intangibles (including trademarks, trade names,
service marks and symbols now or subsequently used in connection with any part of the Real
Estate or the Improvements, all names by which the Real Estate or the Improvements may be
operated or known, all rights to carry on business under such names, and all rights, interest and
privileges which Mortgagor has or may have as developer or declarant under any covenants,
restrictions or declarations now or subsequently relating to the Real Estate or the Improvements)
and all notes or chattel paper now or subsequently arising from or by virtue of any transactions c
related to the Real Estate or the Improvements, and all customer lists, other lists and business
information relating in any way to the Real Estate, the Improvements, other portions of the
Property or its use (collectively, "General Intangibles"); and
(J) All water taps, sewer taps, certificates of occupancy, permits, licenses, franchises,
plats, certificates, consents, approvals and other rights and privileges now or subsequently
obtained in connection with the Real Estate or the Improvements and all present and future
3
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warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture,
furnishings, personal property or components of any of the foregoing now or subsequently
located or installed on the Real Estate or the Improvements;
(K) All licenses and permits in the name of Mortgagor, including occupational, city
and county, used in connection with the operation of the Real Estate (the "Licenses"), and to the
extent assignable, all of Mortgagor's development rights, authorizations, approvals and
entitlements in connection with the Real Estate (the "Development Rights"); 0.
(L) All other or greater rights and interests of every nature in the Real Estate or the
Improvements and in the possession or use thereof and income therefrom; and
°
(M) All extensions, additions, improvements, betterments, proceeds, products,
replacements, additions, substitutions, renewals and accessions of or to any of the foregoing
including the Real Estate or the Improvements and all inventory, accounts, chattel paper,
documents, instruments, equipment, fixtures, farm products, consumer goods, general intangibles
and other property of any nature constituting proceeds acquired with proceeds of any of the
property described above, which term "proceeds" shall have the meaning given to it in the
Uniform Commercial Code, as amended, (the "Code") of the State in which the Property is
located (collectively, the "Proceeds") and shall additionally include whatever is received upon
the use, lease, sale, exchange, transfer, collection or other utilization or any disposition or
conversion of any of the Real Estate, Improvements, Service Equipment, Leases, Rents,
Contracts and Appurtenances, General Intangibles, Licenses and Development Rights voluntary
or involuntary, whether cash or non-cash, including proceeds of insurance and condemnation
awards, rental or lease payments, accounts, chattel paper, instruments, documents, contract
rights, general intangibles, equipment and inventory. 0
TO HAVE AND TO HOLD the above granted and conveyed Property unto and to the
proper use and benefit of Mortgagee and its successors and assigns, forever.
PROVIDED ALWAYS, and these presents are upon the express condition, that if(i) all
the Liabilities, are paid in full, and (ii) each and every representation, warranty, agreement and
covenant of this Mortgage and the other Loan Documents are complied with and abided by, then
this Mortgage and the estate hereby created shall cease and be null and void and canceled of
record.
The terms of the Loan Documents are hereby made a part of this Mortgage to the same
extent and with the same effect as if fully set forth herein. All capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Loan Documents.
AND Mortgagor covenants and agrees with and represents to Mortgagee as follows: a
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall
secure any additional loans as well as any and all present or future advances and readvances
under the Liabilities made by Mortgagee to or for the benefit of Mortgagor or the Property within
twenty (20) years from the date hereof(whether such advances are obligatory or are made at the
option of Mortgagee or otherwise), including, without limitation: (i) principal, interest, late
4
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charges, fees and other amounts due under the Liabilities or this Mortgage; (ii) all advances by
Mortgagee to Mortgagor or any other person to pay costs of erection, construction, alteration,
repair, restoration, maintenance and completion of any improvements on the Property; (iii) all
advances made or costs incurred by Mortgagee for the payment of real estate taxes, assessments
or other governmental charges, maintenance charges, insurance premiums, appraisal charges,
environmental inspection, audit, testing or compliance costs, and costs incurred by Mortgagee
for the enforcement and protection of the Property or the lien of this Mortgage; and (iv) all legal 0
fees, costs and other expenses incurred by Mortgagee by reason of any default or otherwise in 0.
connection with the Liabilities. The total amount of the Liabilities that may be so secured may
decrease to a zero amount from time to time, or may increase from time to time, but the total
unpaid balance secured at any one time shall not exceed Eight Million Eight Hundred Thousand
and No/100 Dollars ($8,800,000.00).
Mortgagor agrees that if, at any time during the term of this Mortgage or following the
commencement of a foreclosure action hereunder (whether before or after the entry of a
judgment of foreclosure), Mortgagor fails to perform or observe any covenant or obligation
under this Mortgage including, without limitation, payment of any of the foregoing, Mortgagee
may (but shall not be obligated to) take such steps as are reasonably necessary to remedy any
such nonperformance or nonobservance and provide payment thereof. All amounts advanced by
Mortgagee shall be added to the amount secured by this Mortgage and the other Loan
Documents (and, if advanced after the entry of a judgment of foreclosure, by such judgment of
foreclosure), and shall be due and payable on demand, together with interest at the Default Rate
(as defined in the Note) set forth in the Note, such interest to be calculated from the date of such
advance to the date of repayment thereof.
2. REPRESENTATIONS,WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee all sums
required to be paid by Mortgagor under the Loan Documents, in accordance with their stated E
terms and conditions; (b) perform and comply with all terms, conditions and covenants set forth
in each of the Loan Documents by which Mortgagor is bound; and (c) perform and comply with
all of Mortgagor's obligations and duties as landlord under any Leases.
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2.2. Seisin and Warranty. Mortgagor hereby warrants that (a) Mortgagor is seized of
an indefeasible estate in fee simple in, and warrants the title to, the Property; (b) Mortgagor has
the right, full power and lawful authority to mortgage, grant, convey and assign the same to
Mortgagee in the manner and form set forth herein; and (c) this Mortgage is a valid and
enforceable first lien on the Property. Mortgagor hereby covenants that Mortgagor shall
(a)preserve such title and the validity and priority of the lien of this Mortgage and shall forever
warrant and defend the same to Mortgagee against all lawful claims whatsoever; and (b) execute,
acknowledge and deliver all such further documents or assurances as may at any time hereafter 0
be reasonably required by Mortgagee to protect fully the lien of this Mortgage.
2.3. Insurance. Mortgagor shall obtain and maintain at all times throughout the term
of this Mortgage the insurance required pursuant to the terms of the Loan Agreement.
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2.4. Taxes and Other Charj4es. Mortgagor shall promptly pay and discharge all
taxes, assessments, water and sewer rents, and other governmental charges imposed upon the
Property prior to delinquency, but in no event after interest or penalties commence to accrue
thereon or become a lien upon the Property. Notwithstanding the foregoing, Mortgagor shall
have the right to contest, at its own expense, by appropriate legal proceedings conducted in good
faith and with due diligence, the amount or validity of such taxes, assessments, water and sewer
rents, or other governmental charges, provided that: (a) Mortgagor has established on its books 0
or by deposit of cash with Mortgagee, at the option of Mortgagee, a reserve for the payment 0.
thereof in such amount as Mortgagee may require; and (b) such contest operates to prevent 0
collection, stay any proceedings which may be instituted to enforce payment of such item, and
prevent a sale of the Property to pay such item. Mortgagor shall promptly provide to Mortgagee,
upon request, copies of receipted tax bills, canceled checks or other evidence satisfactory to
Mortgagee evidencing that such taxes, assessments, water and sewer rents, and other
governmental charges have been timely paid.
2.5. Escrows. During the term of the Loan, the Mortgagor shall provide Mortgagee
with evidence of payment of all real estate taxes and insurance premiums with respect to the
Property. If required by Mortgagee at any time after the occurrence of an Event of Default,
Mortgagor shall pay to Mortgagee at the time of each installment of interest or of interest and
principal, as the case may be, due under the Note, and commencing with the first payment due
°
after the date of such request, a sum equal to (a) the amount of the next installment of taxes and
assessments levied or assessed against the Property, and/or (b) the premiums which will next
become due on the insurance policies required by this Mortgage, all in amounts as estimated by
Mortgagee, less all sums already paid therefor or deposited with Mortgagee for the payment
thereof, divided by the number of payments to become due before two (2) months prior to the
date when such taxes and assessments and/or premiums, as applicable, will become due, such
sums to be held by Mortgagee to pay the same when due. If such escrow funds are not sufficient
to pay such taxes and assessments and/or insurance premiums, as applicable, as the same become
due, Mortgagor shall pay to Mortgagee, upon request, such additional amounts as Mortgagee E
shall estimate to be sufficient to make up any deficiency. No amount paid to Mortgagee
hereunder shall be deemed to be trust funds but may be commingled with general funds of
Mortgagee and no interest shall be payable thereon. Upon the occurrence of an Event of Default,
Mortgagee shall have the right, at its sole discretion, to apply any amounts so held against the
Liabilities.
2.6. Transfer of Title. Without the prior written consent of Mortgagee in each
instance, Mortgagor shall not cause or permit any transfer of the Property or any part thereof,
whether voluntarily, involuntarily or by operation of law, nor shall Mortgagor enter into any
agreement or transaction to transfer, or accomplish in form or substance a transfer, of the
Property. A "transfer" of the Property includes: (a) the direct or indirect sale, transfer or
conveyance of the Property or any portion thereof or interest therein; (b) the execution of an 0
installment sale contract or similar instrument affecting all or any portion of the Property; (e) if
Mortgagor, or any general partner or member of Mortgagor, is a corporation,partnership, limited
liability company or other business entity, the transfer (whether in one transaction or a series of
transactions and whether a direct or indirect transfer) of any stock, partnership, limited liability
company or other ownership interests in such corporation, partnership, limited liability company
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or entity; (d) if Mortgagor or any member of Mortgagor is a corporation, the creation or issuance
of new stock by which an aggregate of 10% or more of such corporation's stock shall be vested
in a party or parties who are not now stockholders or has the effect of diluting by more than 10%
of any current stockholder's, shareholder's equity or membership interests; and (e) an agreement
by Mortgagor leasing all or a substantial part of the Property for other than actual occupancy by
a space tenant thereunder or a sale, assignment or other transfer of or the grant of a security
interest in and to any Leases. Additionally, any change in the present ownership (directly or 0
indirectly) of the Mortgagor or change in ownership structure of Mortgagor (directly or indirectly) 0.
shall constitute a default hereunder.
2.7. No Encumbrances. Mortgagor shall not create or permit to exist any mortgage,
pledge, lien, security interest (including, without limitation, a purchase money security interest),
encumbrance, attachment, levy, distraint or other judicial process on or against the Property or
any part thereof (including, without limitation, fixtures and other personalty), whether superior
or inferior to the lien of this Mortgage, without the prior written consent of Mortgagee. Neither
Mortgagor nor its constituents shall obtain any mezzanine or other secondary financing. Any
loans between members of Mortgagor and Mortgagor shall be subordinate in all respects to the
repayment of the Loan.
2.8 No o Modifications; No Construction Without MortjZatZee's Prior Written
Consent. Mortgagor shall obtain Mortgagee's written consent prior to making any
modifications to the existing improvements on the Property, which consent shall be in
Mortgagee's sole discretion. Furthermore, Mortgagor shall obtain Mortgagee's written consent
prior to the commencement of any construction at the Property, which consent shall be in
Mortgagee's sole discretion and may be conditioned upon Mortgagee's then applicable
underwriting requirements for such construction.
2.9. Removal of Fixtures. Mortgagor shall not (except in the ordinary course of
business) remove or permit to be removed from the Property any fixtures presently or in the
future owned by Mortgagor as the term "fixtures" is defined by the law of the state where the
Property is located (unless such fixtures have been replaced with similar fixtures of equal or
greater utility and value).
a
2.10. Maintenance and Repair; Alterations. (a) Mortgagor shall (i) abstain from and
not permit the commission of waste in or about the Property; (ii) keep the Property, at
Mortgagor's own cost and expense, in good and substantial repair, working order and condition; �
(iii) make or cause to be made, as and when necessary, all repairs and replacements, whether orCU
CD
not insurance proceeds are available therefor; and (iv) not remove, demolish, materially alter, 1�
discontinue the use of, permit to become deserted, or otherwise dispose of all or any part of the
Property. All alterations, replacements, renewals or additions made pursuant hereto shall
automatically become a part of the Property and shall be covered by the lien of this Mortgage. 0
(b) Mortgagee, and any persons authorized by Mortgagee, shall have the right,
but not the obligation, to enter upon the Property at any reasonable time to inspect and
photograph its condition and state of repair. In the event any such inspection reveals, in the sole
discretion of Mortgagee, the necessity for any repair, alteration, replacement, clean-up or
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maintenance, Mortgagor shall, at the discretion of Mortgagee, either: (i) cause such work to be
effected promptly; or (ii) promptly establish an interest bearing reserve fund with Mortgagee in
an amount reasonably determined by Mortgagee for the purpose of effecting such work.
2.11. Compliance with Applicable Laws. Mortgagor agrees to observe, conform and
comply, and to cause its tenants (or subtenants) to observe, conform and comply with all federal,
state, county, municipal and other governmental or quasi-governmental laws, rules, regulations, a
ordinances, codes, requirements, covenants, conditions, orders, licenses, permits, approvals and c0.
restrictions, including without limitation, Environmental Laws (as defined below) and the
Americans with Disabilities Act of 1990 (collectively, the "Legal Requirements"), now or
hereafter affecting all or any part of the Property, its occupancy or the business or operations
now or hereafter conducted thereon and the personalty contained therein, within such time as
required by such Legal Requirements. Mortgagor represents and warrants that, to the best of
Mortgagor's knowledge, the Property currently is in compliance with all Legal Requirements
applicable to the Property.
2.12. Damage, Destruction and Condemnation.
(a) If all or any part of the Property shall be damaged or destroyed, or if title to or
the temporary use of the whole or any part of the Property shall be taken or condemned by a
°
competent authority for any public or quasi-public use or purpose, there shall be no abatement or
reduction in the amounts payable by Mortgagor under the Loan Documents and Mortgagor shall
continue to be obligated to make such payments.
(b) If all or any part of the Property is partially or totally damaged or
destroyed, Mortgagor shall give prompt notice thereof to Mortgagee, and Mortgagee may make
proof of loss if not made promptly by Mortgagor. Mortgagor hereby authorizes and directs any
affected insurance company to make payment under such insurance, including return of unearned
premiums, to Mortgagee instead of to Mortgagor and Mortgagee jointly, and Mortgagor appoints 0
Mortgagee as Mortgagor's attorney-in-fact to endorse any draft thereof, which appointment,
being for security, is coupled with an interest and irrevocable. Mortgagee is hereby authorized
and empowered by Mortgagor to settle, adjust or compromise, in consultation with Mortgagor,
any claims for loss, damage or destruction to the Property. Mortgagor shall pay all costs of
collection of insurance proceeds payable on account of such damage or destruction. Mortgagor
shall have no claim against the insurance proceeds, or be entitled to any portion thereof, and all
rights to the insurance proceeds are hereby assigned to Mortgagee as security for payment of the
Liabilities. Mortgagee shall have the option, in its sole discretion, of paying or applying all or
any part of the insurance proceeds to: (i) reduction of the Liabilities; (ii) restoration, replacement
or repair of the Property in accordance with Mortgagee's standard construction loan c
disbursement conditions and requirements; or(iii) Mortgagor.
0
(c) Promptly upon obtaining knowledge of the institution of any proceeding for
the condemnation of all or any part of the Property, Mortgagor shall give notice to Mortgagee.
Mortgagor shall, at its sole cost and expense, diligently prosecute any such proceeding and shall
consult with Mortgagee, its attorneys and experts, and shall cooperate with it in the defense of
any such proceeding. Mortgagee may participate in any such proceeding and Mortgagor shall
from time to time deliver to Mortgagee all instruments requested by it to permit such
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participation. Mortgagor shall not, without Mortgagee's prior written consent, enter into any
agreement (i) for the taking or conveyance in lieu thereof of all or any part of the Property, or (ii)
to compromise, settle or adjust any such proceeding. All awards and proceeds of condemnation
are hereby assigned to Mortgagee, and Mortgagor, upon request by Mortgagee, agrees to make,
execute and deliver any additional assignments or documents necessary from time to time to
enable Mortgagee to collect the same. Such awards and proceeds shall be paid or applied by
Mortgagee, in its sole discretion, to: (i) reduction of the Liabilities; (ii) restoration, replacement 0
or repair of the Property in accordance with Mortgagee's standard construction loan 0.
disbursement conditions and requirements; or(iii) Mortgagor.
(d) Nothing herein shall relieve Mortgagor of its duty to repair, restore, rebuild or
replace the Property following damage or destruction or partial condemnation if no or inadequate
insurance proceeds or condemnation awards are available to defray the cost of repair, restoration,
rebuilding or replacement.
2.13. Required Notices. Mortgagor shall notify Mortgagee within three (3) business
days of: (a) receipt of any notice from any governmental or quasi-governmental authority
relating to the structure, use or occupancy of the Property or alleging a violation of any Legal
Requirement; (b) a substantial change in the occupancy or use of all or any part of the Property;
(c) receipt of any notice from the holder of any lien or security interest in all or any part of the
Property; (d) commencement of any litigation affecting or potentially affecting the financial
ability of Mortgagor or the value of the Property; (e) a pending or threatened condemnation of all
or any part of the Property; (f) a fire or other casualty causing damage to all or any part of the
Property; (g) receipt of any notice with regard to any Release of Hazardous Substances (as such
terms are defined below) or any other environmental matter affecting the Property or
Mortgagor's interest therein; (h) receipt of any request for information, demand letter or
notification of potential liability from any entity relating to potential responsibility for
investigation or clean-up of Hazardous Substances on the Property or at any other site owned or
operated by Mortgagor; (i) receipt of any notice from any tenant at the Property alleging a
default, failure to perform or any right to terminate its lease or to set-off rents; or 0) receipt of
any notice of the imposition of, or of threatened or actual execution on, any lien on or security
interest in all or any part of the Property.
2.14. Books and Records; Inspection. Mortgagor shall keep and maintain
(a) complete and accurate books and records, in accordance with generally accepted accounting
principles consistently applied, reflecting all items of income and expense in connection with the
operation of the Property, and (b) copies of all written contracts, leases and other agreementsCU
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affecting the Property. Mortgagee or its designated representatives shall, upon reasonable prior 1�
written notice to Mortgagor, have (a) the right of entry and free access to the Property during
business hours (which may be without notice in any case of emergency) to inspect the Property,
and (b) the right to examine and audit all books, contracts and records of Mortgagor relating to 0
the Property.
2.45. Right to Reappraise. Mortgagee shall have the right to conduct or have
conducted by an independent appraiser acceptable to Mortgagee updated appraisals of the
Property in form and substance satisfactory to Mortgagee at the sole cost and expense of
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Mortgagor, except that Mortgagor shall not be required to pay the cost of an appraisal more
frequently than once every calendar year unless (x) an Event of Default exists, or (y) the
appraisal was required by a governmental or other regulatory agency.
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2.16 Additional Warranties of Mortgagor.
(a) Mortgagor has good and marketable title to the Property, subject only to 0
those matters expressly set forth in the title insurance policy insuring the lien of this 0.
Mortgage ("Permitted Exceptions"), and has full power and lawful authority to grant, bargain,
sell, convey, assign, transfer and mortgage its interest in the Property in the manner and form
done or intended in this Mortgage. Mortgagor will preserve its interest in and title to the
Property and will forever warrant and defend to Mortgagee Mortgagor's interest in the Property
against any and all claims whatsoever and the validity and priority of the lien and security
interest created by this Mortgage against the claims of all persons and parties whomsoever,
subject to the Permitted Exceptions. The foregoing warranty of title shall survive the
foreclosure of this Mortgage or transfer of the Property in connection with foreclosure
proceedings and shall inure to the benefit of and be enforceable by Mortgagee in the event
Mortgagee acquires title to the Property pursuant to any foreclosure;
(b) No bankruptcy or insolvency proceedings are pending or contemplated
by Mortgagor or, to Mortgagor's knowledge, against Mortgagor or by or against any endorser,
cosigner or guarantor of the Note;
(c) All reports, certificates, affidavits, statements and other data furnished by
Mortgagor to Mortgagee in connection with the Loan are true and correct in all material respects
and do not omit to state any fact or circumstance necessary to make the statements contained
therein not misleading;
(d) The execution, delivery and performance of this Mortgage and all other
Loan Documents have been duly authorized by all necessary action to be, and are, binding and 0
enforceable against Mortgagor in accordance with the respective terms and do not contravene, 2
result in a breach of or constitute (upon the giving of notice or the passage of time or both) a
default under the organizational documents of Mortgagor or any contract or agreement of any
nature to which Mortgagor is a party or by which Mortgagor or any of its property may be
bound and do not violate or contravene any law, order, decree, rule or regulation to which
Mortgagor is subject; C
(e) The Property and its intended use by Mortgagor comply with all
applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood
disaster laws, applicable health and environmental laws and regulations and all other
ordinances, orders or requirements issued by any state, federal or municipal authorities having
or claiming jurisdiction over the Property. The Property constitutes a separate tax parcel or
parcels for purposes of ad valorem taxation. The Property does not require any rights over, or
restrictions against, other property in order to comply with any of the aforesaid governmental
ordinances, orders or requirements;
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(f) All curb cuts, driveways and traffic signals shown on the survey
delivered to Mortgagee prior to the execution and delivery of this Mortgage are existing and
have been fully approved by the appropriate governmental authority;
(g) There are no judicial, administrative, mediation or arbitration actions,
suits or proceedings pending or threatened against or affecting Mortgagor, or its partners or
members, or the Property;
0.
(h) The Property is free from delinquent water charges, sewer rents, taxes
and assessments;
(i) As of the date of this Mortgage, no part of the Property has been taken in
condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to
Mortgagor's knowledge, threatened or contemplated; and
(j) There are no security agreements or financing statements affecting any of
the Property other than the security agreements and financing statements created in favor of
Mortgagee.
2.17 Defense of Title. If title to, or the interest of Mortgagee in, the Property becomes
the subject, directly or indirectly, of any action at law or in equity, or is attached directly or
indirectly, or endangered, clouded or adversely affected in any manner, Mortgagor, at
Mortgagor's expense, shall take all necessary steps to defend the title or interest, including the
employment of counsel approved by Mortgagee. Should Mortgagee determine that Mortgagor is
not adequately performing its obligations under this Section, Mortgagee may, without limiting or
waiving Mortgagee's other rights, take such action as Mortgagee shall deem necessary or proper.
Any and all costs and expenses incurred by Mortgagee, together with interest thereon at the
Default Rate from the date incurred by Mortgagee until actually paid by Mortgagor, shall be
immediately paid by Mortgagor on demand and shall be secured by this Mortgage and by all of
the other Loan Documents.
2.18 Performance of Obligations. Mortgagor shall pay when due the principal of and
the interest on the Liabilities. Mortgagor shall also pay all charges, fees and other sums required
to be paid by Mortgagor as provided in the Loan Documents, and shall observe, perform and
discharge all obligations, covenants and agreements set forth in the Loan Documents in
accordance with their terms. Mortgagor shall promptly and strictly perform and comply with all
covenants, conditions, obligations and prohibitions required of Mortgagor in connection with any
other document or instrument affecting title to the Property, or any part thereof, regardless of
whether such document or instrument is superior or subordinate to this Mortgage.
2.19 Construction Liens. Mortgagor shall pay when due all claims and demands of
mechanics, material men, laborers and others for any work or services performed or materials
delivered for the Property. Mortgagor shall have the right to contest in good faith any such claim
or demand, so long as it does so diligently, by appropriate proceedings and without prejudice to
Mortgagee and provided that neither the Property nor any interest therein would be in any danger
of sale, loss or forfeiture as a result of such proceeding or contest. In the event Mortgagor shall
contest any such claim or demand, Mortgagor shall promptly notify Mortgagee of such contest
11
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and thereafter shall, upon Mortgagee's request, promptly provide a bond, cash deposit or other
security satisfactory to Mortgagee to protect Mortgagee's interest and security should the contest
be unsuccessful. If Mortgagor shall fail within twenty (20) days following the notice of such
claim or demand to discharge or provide security against any such claim or demand as aforesaid,
Mortgagee may do so and any and all expenses incurred by Mortgagee, together with interest
thereon at the Default Rate from the date incurred by Mortgagee until actually paid by
Mortgagor, shall be immediately paid by Mortgagor on demand and shall be secured by this 0
Mortgage and by all of the other Loan Documents securing all or any part of the Liabilities. c0.
Mortgagee has not consented, and will not consent: (i) to the granting of any security interest by
Mortgagor to any party other than Mortgagee in any goods constituting part of the Property
which are or are to become fixtures which would have the effect of giving such security interest
priority over the security interest of Mortgagee in said fixtures under Section 679.313 of Florida
Statutes, or otherwise, or (ii) to any contract, or to any work, or to the furnishing of any materials
which might be deemed to create a lien or liens superior to the lien of this Mortgage.
2.20 Payment of Utilities, Assessments, Charlies, Etc. Mortgagor shall pay when
due all utility charges incurred by Mortgagor or which may become a charge or lien against any
portion of the Property for gas, electricity, water and sewer services furnished to the Property
and all other assessments or charges of a similar nature, or assessments payable pursuant to any
restrictive covenants, whether public or private, affecting the Property or any portion thereof,
°
whether or not such assessments or charges are or may become liens thereon.
2.21 Access Privileges and Inspections. Mortgagee and its agents, representatives
and employees shall, subject to the rights of tenants, have full and flee access to the Property and
any other location where books and records concerning the Property are kept at all reasonable
times for the purposes of inspecting the Property and of examining, copying and making extracts
from the books and records of Mortgagor relating to the Property, provided that Mortgagee shall
provide reasonable notice of such inspection, unless Mortgagee deems, in its reasonable
discretion, such inspection is of an emergency nature, in which event Mortgagor shall provide
Mortgagee with immediate access to the Property. Mortgagor shall lend assistance to all such
agents, representatives and employees of Mortgagee in connection with the foregoing.
2.22 Waste: Alteration of Improvements. Mortgagor shall not commit, suffer or
permit any intentional physical waste on the Property nor take any actions that might invalidate
any insurance carried on the Property. Mortgagor shall maintain the Property in good condition
and repair, regularly landscape the Real Estate, and maintain a fence around the perimeter of the
Real Estate. No part of the Improvements may be removed, demolished or materially altered, CD
without the prior written consent of Mortgagee, which consent shall not be unreasonably
withheld or delayed. Except as expressly set forth in the Loan Agreement, without the prior
written consent of Mortgagee, Mortgagor shall not commence or allow any other person or entity ..
4i
to commence construction of any improvements on the Real Estate other than improvements 0
which constitute maintenance or repair of the Property.
2.23 Zoning. Without Mortgagee's prior consent in its reasonable discretion,
Mortgagor shall not seek, make, suffer, consent to or acquiesce in any change in the zoning or
conditions of use of the Property. Mortgagor shall comply with and make all payments required
under any covenants, conditions or restrictions affecting the Property. Mortgagor shall comply
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with all existing and future requirements of all governmental authorities having jurisdiction over
the Property. Mortgagor shall keep all licenses, permits, franchises and other approvals
necessary for the operation of the Property in full force and effect. Mortgagor shall operate the
Property as vacant land. If, under applicable zoning provisions, the use of all or any part of the
Property is or becomes a nonconforming use, Mortgagor shall not cause or permit such use to be
discontinued or abandoned without the prior consent of Mortgagee. Further, without
Mortgagee's prior consent, Mortgagor shall not file or subject any part of the Property to any a
declaration of condominium or co-operative or convert any part of the Property to a 0.
condominium, co-operative or other form of multiple ownership and governance. Additionally,
without Mortgagee's prior written consent, Mortgagor shall not encumber the Property with any
covenants, conditions, restrictions, easements, declarations or similar documents of any kind.
a
2.24 Payment of Costs; Reimbursement to Mortgagee. Mortgagor shall pay all
costs and expenses incurred in connection with the closing of the Loan or otherwise attributable
or chargeable to Mortgagor as the owner of the Property, including appraisal fees,recording fees,
documentary stamp, mortgage or intangible taxes, brokerage fees and commissions, title policy
premiums and title search fees, uniform commercial code/tax lien litigation search fees, escrow
fees and Mortgagee's attorneys' fees. If Mortgagor fails to make any such payment, which
failure is not cured within any applicable grace or cure period, Mortgagee may pay the same and
such payment shall become part of the Liabilities. Mortgagor shall promptly notify Mortgagee
a
in writing of any litigation or threatened litigation affecting the Property, or any other demand or
claim which, if enforced, could impair or threaten to impair Mortgagee's security under this
Mortgage. Without limiting or waiving any other rights and remedies of Mortgagee under this
Mortgage, if Mortgagor fails to perform any of its agreements in the Loan Documents and such
failure is not cured within any applicable grace or cure period, or if any action or proceeding of
any kind (including any bankruptcy, insolvency, arrangement, reorganization or other debtor
relief proceeding) is commenced which might affect Mortgagee's interest in the Property or
Mortgagee's right to enforce its security, then Mortgagee may, at its option, with or without
notice to Mortgagor, make any appearances, disburse any sums and take any actions as may be 0
necessary or desirable to protect or enforce the security of this Mortgage or to remedy the failure
of Mortgagor to perform its covenants and agreements (without, however, waiving any default of
Mortgagor). The necessity for any such actions and any Mortgagee payments shall be
determined by Mortgagee in its discretion. Mortgagee is empowered to enter and to authorize
others to enter upon the Property or any part thereof for the purpose of performing or observing
any such defaulted term, covenant or condition without thereby becoming liable to Mortgagor or
any person in possession holding under Mortgagor. Mortgagor acknowledges and agrees that the
remedies in this Section shall be exercisable by Mortgagee, and any and all payments made or
costs or expenses incurred by Mortgagee in connection therewith shall be secured by this
Mortgage and the other Loan Documents as part of the Liabilities. Such payments shall be,
without demand, immediately repaid by Mortgagor with interest at the Default Rate from the
date incurred by Mortgagee until reimbursed by Mortgagor, notwithstanding the fact that such 0
remedies were exercised and such payments made and costs incurred by Mortgagee after the
filing by Mortgagor of a voluntary case or the filing against Mortgagor of an involuntary case
pursuant to or within the meaning of the Bankruptcy Reform Act of 1978, as amended, Title 11
U.S.C., or after any similar action pursuant to any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or subsequently in
effect, which may be or become applicable to Mortgagor, Mortgagee, any guarantor or
13
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indemnitor, the Liabilities or any of the Loan Documents. Mortgagor shall indemnify and hold
Mortgagee harmless from and against all loss, cost and expenses with respect to any Event of
Default, any liens, judgments, construction liens, charges and encumbrances filed against the
Property, and from any claims and demands for damages or injury, including claims for property
damage, personal injury or wrongful death, arising out of or in connection with any accident or
fire or other casualty on the Real Estate or the Improvements or any nuisance made or suffered
thereon, including, attorneys' fees. This indemnity shall survive payment in full of the a
Liabilities. This Section shall not be construed to require Mortgagee to incur any expenses, c0.
make any appearances or take any actions.
2.25 Mortaaaor's Waivers. To the full extent permitted by law, Mortgagor agrees
that:
(a) Mortgagor shall not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or subsequently in force providing for any appraisement,
valuation, stay, moratorium, extension, or reinstatement of the Liabilities prior to any sale of the
Property pursuant to this Mortgage or prior to the entering of any decree,judgment or order of
any court of competent jurisdiction, or any right under any statute to redeem all or any part of
the Property so sold.
c
(b) Mortgagor, for Mortgagor and Mortgagor's successors and assigns, and for
any and all persons ever claiming any interest in the Property, knowingly, intentionally and
voluntarily with and upon the advice of competent counsel, waives, releases, relinquishes and
forever forgoes all rights to: (i) valuation, appraisement, stay of execution, reinstatement and
notice of election or intention to mature or declare due the Liabilities (except such notices
specifically provided for in this Mortgage); (ii) marshaling of the assets of Mortgagor, including
the Property, to a sale in the inverse order of alienation, or to direct the order in which any of the
Property shall be sold in the event of foreclosure of the liens and security interests created and
agrees that any court having jurisdiction to foreclose such liens and security interests may order a
the Property sold as an entirety; (iii) redemption provided under applicable law; (iv) Mortgagor
shall not have or assert any right under any statute or rule of law pertaining to the exemption of
homestead or other exemption under any federal, state or local law now or subsequently in
effect, the administration of estates of decedents or other matters whatever to defeat, reduce or
affect the right of Mortgagee under this Mortgage to a sale of the Property, for the collection of
the Liabilities without any prior or different resort for collection, or the right of Mortgagee under
the terms of this Mortgage to payment of the Liabilities out of the proceeds of sale of the
Property in preference to every other claimant whatever and (v) all present and future statutes ofCD
limitations as a defense to any action to enforce the provisions of this Mortgage or to collect any `U
of the Liabilities the fullest extent permitted by law.
(c) Mortgagor agrees that upon the commencement of a voluntary or a
involuntary bankruptcy proceeding by or against Mortgagor, Mortgagor shall not seek a
supplemental stay or otherwise pursuant to 11 U.S.C. 105 or any other provision of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory,
common law, case law, or otherwise) of any jurisdiction whatsoever, now or subsequently in
effect, which may be or become applicable, to stay, interdict, condition, reduce or inhibit the
ability of Mortgagee to enforce any rights of Mortgagee against any guarantor or indemnitor of
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the secured obligations or any other party liable with respect thereto by virtue of any indemnity,
guaranty or otherwise.
2.26 Prohibited Person Compliance. Mortgagor warrants, represents and covenants
that neither Mortgagor, any Guarantor of the Loan, nor any of their respective affiliated entities,
or any direct or indirect owner or member of any of the foregoing is or will be a person (i) that is
listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224 issued
on September 24, 2001 ("EO13224"), (ii) whose name appears on the United States Treasury 0.
Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically
Designated Nationals and Blocked Persons," (which list may be published from time to time in
various mediums including, but not limited to, the OFAC website,
http://www.treas.gov/ofac/tllsdn.pdf), (iii) who commits, threatens to commit or supports
"terrorism", as that term is defined in EO 13224, or (iv) who is otherwise affiliated with any
person listed above. (Any and all Persons described in subparts [i] — [iv] above are herein
referred to as a "Prohibited Person".) Mortgagor covenants and agrees that neither Mortgagor,
any Guarantor of the Loan, nor any of their respective affiliated entities, or any direct or indirect
owner or member of any of the foregoing will (a) conduct any business, or engage in any
transaction or dealing, with any Prohibited Person, including, but not limited to the making or
receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited
Person, or (b) engage in or conspire to engage in any transaction that evades or avoids, or has the
°
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
E013224. Mortgagor further covenants and agrees to deliver (from time to time) to Mortgagee
any such certification or other evidence as may be requested by Mortgagee in its sole and
absolute discretion, confirming that (a) neither Mortgagor (nor any direct or indirect member of
Mortgagor) nor any guarantor is a Prohibited Person and (b) neither Mortgagor (nor any direct
nor indirect member of Mortgagor)nor any guarantor has engaged in any business, transaction or
dealing with a Prohibited Person, including, but not limited to, the making or receiving of any
contributions of funds, goods or services, to or for the benefit of a Prohibited Person.
2.27 Indemnification: Subrogation.
(a) Mortgagor shall indemnify, defend and hold Mortgagee harmless against:
(i) any and all claims for brokerage, leasing, Mortgagees or similar fees which may be made
relating to the Property or the Liabilities, and (ii) any and all liability, obligations, losses,
damages, penalties, claims, actions, suits, costs and expenses (including Mortgagee's attorneys'
fees) of whatever kind or nature which may be asserted against, imposed on or incurred by
Mortgagee in connection with the Liabilities, the Loan Documents, the Property, or any part
thereof, or the exercise by Mortgagee of any rights or remedies under the Loan Documents.
0
(b) If Mortgagee is made a party defendant to any litigation or any claim is ..
threatened or brought against Mortgagee concerning the Liabilities, the Loan Documents, the
Property, or any part thereof, or any interest therein, or the construction, maintenance, operation
or occupancy or use thereof, Mortgagor shall indemnify, defend and hold Mortgagee harmless
from and against all liability by reason of said litigation or claims, including attorneys' fees and
expenses incurred by Mortgagee in any such litigation or claim, whether or not any such
litigation or claim is prosecuted to judgment. If Mortgagee commences an action against
Mortgagor to enforce any of the terms of the Loan Documents or to prosecute any breach by
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Mortgagor of any of the terms of the Loan Documents or to recover the Liabilities, Mortgagor
shall pay to Mortgagee its reasonable attorneys' fees, whether or not such action is prosecuted to
judgment. If Mortgagor breaches any term of the Loan Documents, Mortgagee may engage the
services of an attorney or attorneys to protect its rights; Mortgagor shall pay Mortgagee's
attorneys' fees and expenses, whether or not an action is actually commenced against Mortgagor
by reason of such breach. All references to "attorneys" in this Subsection and elsewhere in this
Mortgage shall include without limitation any attorney or law firm engaged by Mortgagee and
Mortgagee's in-house counsel, and all references to "fees and expenses" in this Subsection and 0.
elsewhere in this Mortgage shall include without limitation any fees of such attorney or law firm
and any allocation charges and allocation costs of Mortgagee's in-house counsel.
(c) A waiver of subrogation shall be obtained by Mortgagor from its
insurance carrier and, consequently, Mortgagor waives any and all right to claim or recover
against Mortgagee, its officers, employees, agents and representatives, for loss of or damage to
Mortgagor, the Property, Mortgagor's property or the property of others under Mortgagor's
control from any cause insured against or required to be insured against by the provisions of the
Loan Documents.
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2.28 Ground Lease. Mortgagor shall (a) pay all rents, additional rents and other sums
required to be paid by Mortgagor, as tenant under and pursuant to the provisions of that certain
Right of Way Lease Agreement and Consent to Assignment of Lease by and between Monroe
County, as lessor, Mortgagor, as lessee, and Florida Keys Quality Foods, Inc., as sublessee, dated
as of October 18, 2017, recorded in Official Records Book 2677, at Page 1916 of the Public
Records of Monroe County, Florida (as amended from time to time, the "Ground Lease"; the
lessor, "Lessor") as and when such rent or other charge is payable, (b) diligently perform and
observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgagor,
as tenant thereunder, to be performed and observed prior to the expiration of any applicable
grace period therein provided, and (c) promptly notify Mortgagee of the giving of any notice by
the Lessor to Mortgagor of any default by Mortgagor in the performance or observance of any of
the terms, covenants or conditions of the Ground Lease on the part of Mortgagor, as tenant
thereunder, to be performed or observed and deliver to Mortgagee a true copy of each such
notice. Mortgagor shall not, without the prior written consent of Mortgagee, surrender the
leasehold estate created by the Ground Lease or terminate or cancel the Ground Lease or without
the prior written consent of Mortgagee, modify, change, supplement, alter or amend the Ground
Lease, in any material respect (except that Mortgagor may extend the term of the Ground Lease
without the prior written consent of Mortgagee), either orally or in writing, and Mortgagor
hereby assigns to Mortgagee, as further security for the payment of the Liabilities and for the
performance and observance of the terms, covenants and conditions of this Mortgage and the
other Loan Documents, all of the rights, privileges and prerogatives of Mortgagor, which rights,
privileges and prerogatives may be exercised by Mortgagee upon an Event of Default, as tenant
under the Ground Lease, to surrender the leasehold estate created by the Ground Lease or to
terminate, cancel, modify, change, supplement, alter or amend the Ground Lease, and any such
surrender of the leasehold estate created by the Ground Lease or termination, cancellation,
modification, change, supplement, alteration or amendment of the Ground Lease without the
prior written consent of Mortgagee shall be null and void and of no force and effect.
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2.29 Representations and Warranties With Respect to the Ground Lease.
Mortgagor hereby represents and warrants to Mortgagee the following with respect to the
Ground Lease:
(a) As of the date hereof, the Ground Lease is in full force and effect and no
default has occurred under the Ground Lease and there is no existing condition which, but for the
passage of time or the giving of notice, could result in a default under the terms of the Ground
Lease. 0.
(b) Under the terms of the Ground Lease and the Loan Documents, taken �
together, any related insurance and condemnation proceeds that are paid or awarded to
Mortgagor with respect to the leasehold interest will be applied to the repair or restoration of all
or part of the portion of the Property consisting of Mortgagor's leasehold estate granted
hereunder.
2.21. Estoppel Certificates. Within twenty (20) days after receipt of written demand
by Mortgagee, but in no event more than two (2) times in any twelve (12) month period,
Mortgagor shall use reasonable efforts to obtain from Lessor under the Ground Lease and furnish
to Mortgagee the estoppel certificate of Lessor stating the date through which rent has been paid
and whether or not there are any defaults thereunder and specifying the nature of such claimed
defaults, if any.
3. SECURITY AGREEMENT.
It Security Agreement and Fixture Financing Statement. This Mortgage
constitutes a security agreement under the Code and shall be deemed to constitute a fixture
financing statement. Mortgagor hereby grants to Mortgagee a security interest in all of
Mortgagor's right, title and interest in the personal and other property (other than real property)
included in the Property, and all replacements of, substitutions for, and additions to, such
property, and the proceeds thereof. Mortgagor shall, at Mortgagor's own expense, execute,
deliver, file and refile any financing or continuation statements or other security agreements
Mortgagee may require from time to time to perfect, confirm or maintain the lien of this
Mortgage with respect to such property. Without limiting the foregoing, Mortgagor hereby
irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to execute, deliver and file such
instruments for or on behalf of Mortgagor at Mortgagor's expense, which appointment, being for
security, is coupled with an interest and shall be irrevocable. Furthermore, this Mortgage creates
a security interest in, and Mortgagor grants to Mortgagee a security interest in (a) all sums on
deposit with Mortgagee pursuant to the provisions of any Section of this Agreement, (b) all
fixtures, chattels, accounts, equipment, inventory, contract rights, general intangibles and other
personal property included within the Property, (c) Mortgagor's leasehold interest in any of the ..
foregoing property leased by Mortgagor and (d) all renewals, replacements of any of the items
described in (a), (b) and (c), or articles in substitution or in addition or the proceeds thereof. To
the extent permitted by law, all of the foregoing property is to be deemed and held to be a part of
and affixed to the Property. Notwithstanding the foregoing, no leasing or installment sales or
other financing or title retention agreement in connection therewith shall be permitted without
the prior written approval of Mortgagee. Mortgagor shall, from time to time upon the request of
Mortgagee, supply Mortgagee with a current inventory of all of the property in which Mortgagee
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is granted a security interest under this Section, in such detail as Mortgagee may require.
Mortgagor shall promptly replace all of the Collateral subject to the lien or security interest of
this Mortgage when worn or obsolete with Collateral comparable to the worn out or obsolete
Collateral when new and will not, without the prior written consent of Mortgagee, remove from
the Property any of the Collateral subject to the lien or security interest of this Mortgage except
such as is replaced by an article of equal suitability and value as above provided, owned by
Mortgagor free and clear of any lien or security interest except that created by this Mortgage and
the other Loan Documents, the Permitted Exceptions, and except as otherwise expressly 0.
permitted by the terms of this Mortgage. All of the Collateral shall be kept at the location of the 0
Real Estate except as otherwise required by the terms of the Loan Documents. Mortgagor shall
not use any of the Collateral in violation of any applicable statute, ordinance or insurance policy.
a
3.2 UCC. This Mortgage constitutes a security agreement between Mortgagor and
Mortgagee with respect to the Collateral. In addition to all other rights and remedies of
Mortgagee under this Mortgage, Mortgagee shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code applicable to the Property ("Applicable UCC").
Mortgagor agrees to execute and deliver on demand and irrevocably constitutes and appoints
Mortgagee the attorney-in-fact of Mortgagor to execute and deliver and, if appropriate, to file
with the appropriate filing officer or office such security agreements, financing statements,
continuation statements or other instruments as Mortgagee may request or require in order to
a
impose, perfect or continue the perfection of the lien or security interest created. Except with
respect to Rents and profits to the extent specifically provided in this Mortgage to the contrary,
Mortgagee shall have the right of possession of all cash, securities, instruments, negotiable
instruments, documents, certificates and any other evidences of cash or other property or
evidences of rights to cash rather than property, which are now or subsequently a part of the
Property. Mortgagor shall promptly deliver the same to Mortgagee, endorsed to Mortgagee,
without further notice from Mortgagee. Mortgagor agrees to furnish Mortgagee with notice of
any change in the name, identity, corporate structure, residence, or principal place of business or
mailing address of Mortgagor within 10 days of the effective date of any such change. Upon the E
occurrence of any Event of Default, Mortgagee shall have the rights and remedies as prescribed
in this Mortgage, or as prescribed by general law, or as prescribed by the Applicable UCC, all at
Mortgagee's election. Without implying any limitation upon the foregoing, Mortgagee may, at
its option, pursuant to Section 679.501(4) of Florida Statutes, proceed against the Collateral in
accordance with the provisions of the Applicable UCC or Mortgagee may proceed as to both the
real and personal property comprising the Property in accordance with this Mortgage, or as
otherwise provided at law or in equity. Any disposition of the Collateral may be conducted by
an employee or agent of Mortgagee.
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely, presently and unconditionally conveys, transfers
and assigns to Mortgagee all of Mortgagor's right, title and interest, now existing or hereafter
arising, in and to the Leases and Rents. Notwithstanding that this assignment is effective
immediately, so long as no Event of Default exists, Mortgagor shall have the privilege under a
revocable license granted hereby to operate and manage the Property and to collect, as they
become due, but not prior to accrual, the Rents. Mortgagor shall receive and hold such Rents in
trust as a fund to be applied, and Mortgagor hereby covenants and agrees that such Rents shall be
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so applied, first to the operation, maintenance and repair of the Property and the payment of
interest, principal and other sums becoming due under the Liabilities, before retaining and/or
disbursing any part of the Rents for any other purpose. The license herein granted to Mortgagor
shall automatically, without notice or any other action by Mortgagee, terminate upon the
occurrence of an Event of Default, and all Rents subsequently collected or received by
Mortgagor shall be held in trust by Mortgagor for the sole and exclusive benefit of Mortgagee.
Nothing contained in this Section 4.1, and no collection by Mortgagee of Rents, shall be 0
construed as imposing on Mortgagee any of the obligations of the lessor under the Leases. 0.
4.2. Mortgagor shall timely perform all of its obligations under the Leases. Mortgagor
represents and warrants that: (a) Mortgagor has title to and full right to assign presently,
absolutely and unconditionally the Leases and Rents; (b) no other assignment of any interest in
any of the Leases or Rents has been made by Mortgagor; (c) there are no leases or agreements to
lease all or any portion of the Property now in effect except the Leases, true and complete copies
of which have been furnished to Mortgagee, and no written or oral modifications have been
made thereto; (d) there is no existing default by Mortgagor or by any tenant under any of the
Leases, nor has any event occurred which due to the passage of time, the giving or failure to give
notice, or both, would constitute a default under any of the Leases and no tenant has any
defenses, set-offs or counterclaims against Mortgagor; (e) the Leases are in full force and effect;
and (f) Mortgagor has not accepted Rent under any Lease more than thirty (30) days in advance
of its accrual, and payment thereof has not otherwise been forgiven, discounted or compromised.
4.3. Mortgagor shall not, without the prior written consent of Mortgagee: (a) enter
into any lease at the Property; (b) amend or modify, or consent any assignment of or subletting
under, any Lease at the Property or the Ground Lease; (c) terminate or accept a surrender of any
Lease or the Ground Lease; or (d) collect or accept rent from any tenant of the Property for a
period of more than one month in advance. Any acts that require Mortgagee's consent under this
Section 4.3, if done without the prior written consent of Mortgagee in each instance, shall be null
and void. E
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that
Mortgagor has no knowledge of any offsets, counterclaims or defenses to the Liabilities either at
law or in equity. Mortgagor shall, within three (3) days upon written request delivered in person
or within seven (7) days upon request by mail, furnish to Mortgagee or Mortgagee's designee a
written statement in form satisfactory to Mortgagee stating the amount due under the Liabilities
and whether there are offsets or defenses against the same, and if so, the nature and extent
thereof.
6. ENVIRONMENTAL MATTERS.
4j
C
6.1. Definitions. As used herein, "Environmental Laws" shall mean all existing or 0
future federal, state and local statutes, ordinances, regulations, rules, executive orders, standards
and requirements, including the requirements imposed by common law, concerning or relating to
industrial hygiene and the protection of health and the environment including but not limited to:
(a) those relating to the generation, manufacture, storage, transportation, disposal, release,
emission or discharge of Hazardous Substances (as hereinafter defined); (b) those in connection
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with the construction, fuel supply, power generation and transmission, waste disposal or any
other operations or processes relating to the Property; and (e) those relating to the atmosphere,
soil, surface and ground water, wetlands, stream sediments and vegetation on, under, in or about
the Property. Any terms mentioned herein which are defined in any Environmental Law shall
have the meanings ascribed to such terms in said laws; provided, however, that if any of such
laws are amended so as to broaden any term defined therein, such broader meaning shall apply
C
subsequent to the effective date of such amendment. 0
0.
6.2. Representations, Warranties and Covenants. Mortgagor represents, warrants,
covenants and agrees as follows:
(a) Neither Mortgagor nor the Property or any occupant thereof is in violation of
or subject to any existing, pending or threatened investigation or inquiry by any governmental
authority pertaining to any Environmental Law. Mortgagor shall not cause or permit the
Property to be in violation of, or do anything which would subject the Property to any remedial
obligations under, any Environmental Law, and shall promptly notify Mortgagee in writing of
any existing, pending or threatened investigation or inquiry by any governmental authority in
connection with any Environmental Law. In addition, Mortgagor shall provide Mortgagee with
copies of any and all material written communications with any governmental authority in
connection with any Environmental Law, concurrently with Mortgagor's giving or receiving of
same.
(b) Mortgagor has taken all steps reasonably necessary to determine and has
determined that there has been no release, spill, discharge, leak, disposal or emission
(individually a "Release" and collectively, "Releases") of any hazardous material, hazardous
substance or hazardous waste, including gasoline, petroleum products, explosives, toxic
substances, solid wastes and radioactive materials (collectively, "Hazardous Substances") at,
upon, under or within the Property. The use which Mortgagor or any other occupant of the C
Property makes or intends to make of the Property will not result in Release of any Hazardous E
Substances on or to the Property. During the term of this Mortgage, Mortgagor shall take all
steps necessary to determine whether there has been a Release of any Hazardous Substances on
or to the Property and if Mortgagor finds a Release has occurred, Mortgagor shall remove or
remediate the same promptly upon discovery at its sole cost and expense.
(c) The Property has never been used by the present or previous owners and/or
operators nor will be used in the future to refine, produce, store, handle, transfer, process,
transport, generate,manufacture,heat, treat, recycle or dispose of Hazardous Substances.
(d) The Property: (i) is being and has been operated in compliance with all
Environmental Laws, and all permits required thereunder have been obtained and complied with
in all respects; and (ii) does not have any Hazardous Substances present excepting small 0
quantities of petroleum and chemical products, in proper storage containers, that are necessary
for the construction or operation of the commercial business of Mortgagor and its tenants (or
subtenants), and the usual waste products therefrom ("Permitted Substances").
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(e) Mortgagor will and will cause its tenants or subtenants to operate the Property
in compliance with all Environmental Laws and, other than Permitted Substances, will not place
or permit to be placed any Hazardous Substances on the Property.
(f) No lien has been attached to or threatened to be imposed upon the Property,
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and there is no basis for the imposition of any such lien based on any governmental action under
Environmental Laws. Neither Mortgagor nor any other person is or will be involved in 0
operations at the Property which could lead to the imposition of environmental liability on c0.
Mortgagor, or on any subsequent or former owner of the Property, or the creation of an
environmental lien on the Property. In the event that any such lien is filed, Mortgagor shall,
within sixty (60) days from the date that the Mortgagor is given notice of such lien (or within
such shorter period of time as is appropriate in the event that steps have commenced to have the
Property sold), either: (i) pay the claim and remove the lien from the Property; or (ii) furnish a
cash deposit, bond or other security satisfactory in form and substance to Mortgagee in an
amount sufficient to discharge the claim out of which the lien arises.
6.3. Rij4ht to Inspect and Cure. Mortgagee shall have the right to conduct or have
conducted by its agents or contractors such environmental inspections, audits and tests as
Mortgagee shall deem necessary or advisable from time to time at the sole cost and expense of
Mortgagor. The cost of such inspections, audits and tests shall be added to the Liabilities and
shall be secured by this Mortgage. Mortgagor shall, and shall cause each tenant of the Property
to, cooperate with such inspection efforts; such cooperation shall include, without limitation,
supplying all information requested concerning the operations conducted and Hazardous
Substances located at the Property. In the event that Mortgagor fails to comply with any
Environmental Law, Mortgagee may, in addition to any of its other remedies under this
Mortgage, cause the Property to be in compliance with such laws and the cost of such
compliance shall be added to the sums secured by this Mortgage in accordance with the
provisions of Section 1 hereof.
6.4 Environmental Indemnification. (a) Mortgagor agrees, jointly and severally,
to unconditionally and absolutely indemnify and hold Mortgagee, its officers, directors,
employees, agents and attorneys harmless from and against any loss, cost, liability, damage,
claim or expense, including reasonable attorneys' fees, suffered or incurred by Mortgagee in
connection with the Property at any time, whether before, during or after enforcement of
Mortgagee's rights and remedies upon default under the Loan Documents, under or on account
of, or as a result of(i) any violation of applicable Environmental Laws, (ii) any presence, release,
or threat of release of Hazardous Substances at, upon, under or within the Property, (iii) the
presence of asbestos or asbestos-containing materials, PCB's, radon gas, urea formaldehyde
foam insulation or lead (whether in paint, water, soil, or plaster) at the Property, (iv) any breach c
of the representations and warranties made in this Section 6, (v) the failure of Mortgagor to duly
perform the obligations or actions set forth in this Section 6 with respect to: (A) the imposition 0
by any governmental authority of any lien upon the Property, (B) clean-up costs, (C) liability for
personal injury or property damage or damage to the environment, (D) any diminution in the
value of the Property and (E) fines, penalties and punitive damages, or (vi) otherwise pursuant to
the terms of that certain ADA and Environmental Indemnity Agreement, dated of even date
herewith.
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(b) Mortgagor further agrees that Mortgagee shall not assume any liability or
obligation for loss, damage, fines, penalties, claims or duty to clean up or dispose of wastes or
materials on or relating to the Property as a result of any conveyance of title to the Property to
the Mortgagee or otherwise or as a result of any inspections or any other actions made or taken
by Mortgagee on the Property unless caused by the negligent or intentional acts of Mortgagee or
anyone acting by or through Mortgagee, and (ii) Mortgagor agrees to remain fully liable and
shall indemnify and hold harmless Mortgagee from any costs, expenses, clean-up costs, waste a
disposal costs, litigation costs, fines and penalties, including without limitation any costs, c0.
expenses, penalties and fines within the meaning of any applicable Environmental Laws.
(c) Mortgagor shall assume the burden and expense of defending Mortgagee, with
counsel selected by Mortgagor and reasonably satisfactory to Mortgagee, against all legal and
administrative proceedings arising out of the occurrences to which this Section 6 applies.
Mortgagee shall have the right, but not the obligation, to participate in the defense of any such
proceedings; provided, however, that the costs thereof shall be borne by Mortgagee if Mortgagee
engages separate counsel unless Mortgagee reasonably believes counsel selected by Mortgagor is
not conducting an adequate defense and new counsel selected by Mortgagors and reasonably
approved by Mortgagee is not provided within ten (10) days following written notice from
Mortgagee, in which event the cost of Mortgagee's separate counsel shall be borne by
Mortgagor. Mortgagor may compromise or settle any such proceedings without the consent of
Mortgagee only if the claimant agrees as part of the compromise or settlement that Mortgagee
shall have no responsibility or liability for the payment or discharge of any amount agreed upon
or obligation to take any other action.
(d) Mortgagor shall pay when due any judgments against Mortgagee which have been
indemnified under this Section 6 and which are rendered by a final order or decree of a court of
competent jurisdiction from which no further appeal may be taken or has been taken within the
applicable appeal period. In the event that such payment is not made, Mortgagee, in its sole
discretion, may pay any such judgments on five (5) Business Days prior written notice to 0
Mortgagor, in whole or in part, and look to Mortgagor for reimbursement pursuant to this
Section 6, or may proceed to file suit against Mortgagor to compel such payment.
7. EVENTS OF DEFAULT. Each of the following shall constitute a default (each, an
"Event of Default") hereunder:
7.1. Non-payment when due of any sum required to be paid to Mortgagee within five
(5) days after the due date under any of the Loan Documents, including without limitation,
principal and interest;
0
7.2 A breach of any covenant contained in Sections 2.3., 2.4., 2.6. or 2.7. hereof;
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0
7.3. A breach by Mortgagor of any other term, covenant, condition, obligation or
agreement under this Mortgage, and the continuance of such breach for a period of fifteen (15)
days after written notice thereof shall have been given to Mortgagor;
7.4. An Event of Default under the Note or any of the other Loan Documents;
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7.5. Any representation or warranty made by Mortgagor or any guarantor in any Loan
Document or to induce Mortgagee to enter into the transactions contemplated hereunder shall
prove to be false, incorrect or misleading in any material respect as of the date when made;
7.6. The filing by or against Mortgagor or any pledgor or guarantor of a petition
seeking relief, or the granting of relief,under the Federal Bankruptcy Code or any similar federal
or state statute; any assignment for the benefit of creditors made by Mortgagor or any pledgor or
any guarantor, unless with respect to any involuntary proceeding, it is dismissed within sixty(60) 0.
days after the filing thereof, the appointment of a custodian, receiver, liquidator or trustee for 6
Mortgagor or any guarantor or for any of the property of Mortgagor or any such pledgor or
guarantor, or any action by Mortgagor or any guarantor to effect any of the foregoing; or if
Mortgagor or any pledgor or any guarantor becomes insolvent (however defined) or is not paying
its debts generally as they become due;
7.7. The death, dissolution, liquidation, merger, consolidation or reorganization of
Mortgagor or any pledgor or any guarantor, or the institution of any proceeding to effect any of
the foregoing;
7.8. A default under any other obligation by Mortgagor (or any affiliate of Mortgagor)
or any guarantor (or affiliate of any such guarantor) in favor of Mortgagee, or under any
document securing or evidencing such obligation, whether or not such obligation is secured by
the Property;
7.9. The filing, entry or issuance of any judgment, execution, garnishment,
attachment, distraint or lien against Mortgagor or any guarantor or pledgor or their property,
unless such judgment, execution, garnishment, attachment, distraint or lien is discharged by
Mortgagor within thirty(30) days after its filing, entry or issuance;
7.10. A default under any other obligation secured by the Property or any part thereof; E
7.11 The Property or any portion thereof shall be taken on execution or other process
of law in any action against Mortgagor;
7.12 Mortgagor abandons all or a portion of the Property; or
7.13 If (A) a breach or default by Mortgagor under any condition or obligation
contained in the Ground Lease is not cured within any applicable cure period provided therein,
(B) there occurs any event or condition that gives the Lessor under the Ground Lease a right to
terminate or cancel the Ground Lease, (C) any portion of the Property shall be surrendered or the
Ground Lease shall be terminated or cancelled for any reason or under any circumstances
whatsoever, or (D) any of the terms, covenants or conditions of the Ground Lease shall be
modified, changed, supplemented, altered or amended, without in each case the prior written
consent of Mortgagee (except that Mortgagor may extend the term of the Ground Lease without
the prior written consent of Mortgagee).
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8. REMEDIES. If an Event of Default shall have occurred, Mortgagee may take any of the
following actions:
8.1. Acceleration. Mortgagee may declare the entire amount of the Liabilities
immediately due and payable, without presentment, demand, notice of any kind, protest or notice
of protest, all of which are expressly waived, notwithstanding anything to the contrary contained
in any of the Loan Documents. Mortgagee may charge and collect interest from the date of 0
default on the unpaid balance of the Liabilities, at the Default Rate set forth in the Note. c0.
8.2. Possession. Mortgagee may enter upon and take possession of the Property, with
or without legal action, lease the Property, collect therefrom all rentals and, after deducting all
costs of collection and administration expense, apply the net rentals to any one or more of the
following items in such manner and in such order of priority as Mortgagee, in Mortgagee's sole
discretion, may elect: the payment of any sums due under any prior lien, taxes, water and sewer
rents, charges and claims, insurance premiums and all other carrying charges, to the
maintenance, repair or restoration of the Property, or on account of the Liabilities. Mortgagee is
given full authority to do any act which Mortgagor could do in connection with the management
and operation of the Property. This covenant is effective either with or without any action
brought to foreclose this Mortgage and without applying for a receiver of such rents. In addition
to the foregoing, upon the occurrence of an Event of Default, Mortgagor shall pay monthly in c°
advance to Mortgagee or to any receiver appointed to collect said rents the fair and reasonable
rental value for Mortgagor's use and occupation of the Property, and upon default in any such
payment Mortgagor shall vacate and surrender the possession of the Property to Mortgagee or to
such receiver. If Mortgagor does not vacate and surrender the Property then Mortgagor may be
evicted by summary proceedings. Notwithstanding anything to the contrary contained herein,
subject to applicable law, Mortgagee may with or without taking possession of the Property, sue
or otherwise collect the Rents and profits, including those past due and unpaid.
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8.3. Foreclosure. Mortgagee may institute any one or more actions of mortgage E
foreclosure against all or any part of the Property, or take such other action at law, equity or by
contract for the enforcement of this Mortgage and realization on the security herein or elsewhere
provided for, as the law may allow, and may proceed therein to final judgment and execution for
the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall bear
interest at the greater of (a) the statutory rate provided for judgments, or (b) the Default Rate.
Without limiting the foregoing, Mortgagee may foreclose this Mortgage and exercise its rights as
a secured party for all or any portion of the Liabilities which are then due and payable, subject to
the continuing lien of this Mortgage for the balance not then due and payable. In case of any sale
of the Property by judicial proceedings, the Property may be sold in one parcel or in such
parcels, manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and
anyone claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law
or in equity, be limited, except as herein provided, in the exercise of its rights in the Property or 0
in any other security hereunder or otherwise appertaining to the Liabilities or any other
obligation secured by this Mortgage, whether by any statute, rule or precedent which may
otherwise require said security to be marshalled in any manner and Mortgagor, for itself and
others as aforesaid, hereby expressly waives and releases any right to or benefit thereof. The
failure to make any tenant a defendant to a foreclosure proceeding shall not be asserted by
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Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Liabilities or
any deficiency remaining unpaid after the foreclosure sale of the Property.
8.4. Appointment of Receiver. Mortgagee may petition a court of competent
jurisdiction to appoint a receiver of the Property. Such appointment may be made either before
or after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the
time of application for such receiver, without regard to the then value of the Property or whether
the Property shall be then occupied as a homestead or not, and without regard to whether 0.
Mortgagor has committed waste or allowed deterioration of the Property, and Mortgagee or any
agent of Mortgagee may be appointed as such receiver. Mortgagor hereby agrees that Mortgagee
has a special interest in the Property and absent the appointment of such receiver the Property
shall suffer waste and deterioration and Mortgagor further agrees that it shall not contest the
appointment of a receiver and hereby so stipulates to such appointment pursuant to this
paragraph. Such receiver shall have the power to perform all of the acts permitted Mortgagee
pursuant to Section 8.2 above and such other powers which may be necessary or customary in
such cases for the protection, possession, control, management and operation of the Property
during such period.
8.5. Rights as a Secured Party. Mortgagee shall have, in addition to other rights and
remedies available at law or in equity, the rights and remedies of a secured party under the Code.
Mortgagee may elect to foreclose such of the Property as then comprise fixtures pursuant either
to the law applicable to foreclosure of an interest in real estate or to that applicable to personal
property under the Code. To the extent permitted by law, Mortgagor waives the right to any stay
of execution and the benefit of all exemption laws now or hereafter in effect.
8.6. Excess Monies. Mortgagee may apply on account of the Liabilities any
unexpended monies still retained by Mortgagee that were paid by Mortgagor to Mortgagee:
(a) for the payment of, or as security for the payment of taxes, assessments or other
governmental charges, insurance premiums, or any other charges; or (b) to secure the E
performance of some act by Mortgagor.
8.7. Other Remedies. Mortgagee shall have the right, from time to time, to bring an
appropriate action to recover any sums required to be paid by Mortgagor under the terms of this
Mortgage, as they become due, without regard to whether or not any other Liabilities shall be
due, and without prejudice to the right of Mortgagee thereafter to bring an action of mortgage
foreclosure, or any other action, for any default by Mortgagor existing at the time the earlier
action was commenced. In addition, Mortgagee shall have the right to set-off all or any part of
any amount due by Mortgagor to Mortgagee under any of the Liabilities, against any
indebtedness, liabilities or obligations owing by Mortgagee in any capacity to Mortgagor,
including any obligation to disburse to Mortgagor any funds or other property on deposit with or
otherwise in the possession, control or custody of Mortgagee.
8.8 Miscellaneous.
(a) Application of Proceeds. To the fullest extent permitted by law, the proceeds of
any sale under this Mortgage shall be applied to the extent funds are so available to the following
items in such order as Mortgagee in its discretion may determine: (i) To payment of the costs,
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expenses and fees of taking possession of the Property, and of holding, operating, maintaining,
using, leasing, repairing, improving, marketing and selling the same and of otherwise enforcing
Mortgagee's right and remedies under this Mortgage and under the other Loan Documents,
including receivers' fees, court costs, attorneys', accountants', appraisers', managers' and other
professional fees, title charges and transfer taxes; (ii) To payment of all sums expended by
Mortgagee under the Loan Documents and not yet repaid, together with interest on such sums at
the Default Rate; (iii) To payment of the Liabilities and all other obligations secured by this 0
Mortgage, including interest at the Default Rate and, to the extent permitted by applicable law, 0.
any prepayment fee, charge or premium required to be paid under the Note in order to prepay
principal, in any order that Mortgagee chooses in its sole discretion. The remainder, if any, of
such funds shall be disbursed to Mortgagor or to the person or persons legally entitled thereto.
a
(b) Right and Authority of Receiver or Mortgagee in the Event of Default: Power of
Attorney. Upon the occurrence of an Event of Default and entry upon the Property or
appointment of a receiver, and under such terms and conditions as may be prudent and
reasonable under the circumstances in Mortgagee's or the receiver's sole discretion, all at
Mortgagor's expense, Mortgagee or said receiver, or such other persons or entities as they shall
hire, direct or engage, as the case may be, may (but shall have no obligation to) do or permit one
or more of the following, successively or concurrently: (a) enter upon and take possession and
control of any and all of the Property; (b) take and maintain possession of all documents, books,
records, papers and accounts relating to the Property; (c) exclude Mortgagor and its agents,
servants and employees wholly from the Property; (d)manage and operate the Property; (e)
preserve and maintain the Property; (f) make repairs, alterations or improvements to the
Property; (g) complete any construction or repair of the Improvements, with such changes,
additions or modifications of the plans and specifications or intended disposition and use of the
Improvements as Mortgagee may in its sole discretion deem appropriate or desirable to place the
Property in such condition as will, in Mortgagee's sole discretion, make it or any part thereof
readily marketable or rentable; (h) conduct a marketing or leasing program with respect to the
Property, or employ a marketing or leasing agent or agents to do so, directed to the leasing or 0
sale of the Property under such terms and conditions as Mortgagee may in its sole discretion
deem appropriate or desirable; (i) employ such contractors, subcontractors, material men,
architects, engineers, consultants, managers, brokers, marketing agents, or other employees,
agents, independent contractors or professionals, as Mortgagee may in its sole discretion deem
appropriate or desirable to implement and effectuate the rights and powers in this Mortgage
granted; 0) execute and deliver, in the name of Mortgagor as attorney-in-fact and agent of
Mortgagor or in its own name as Mortgagee, such documents and instruments as are necessary or
appropriate to consummate authorized transactions; (k) enter into such contracts of sale, leases,
whether of real or personal property, or tenancy agreements, under such terms and conditions as
Mortgagee may in its sole discretion deem appropriate or desirable; (1) collect and receive the c
Rents and profits from the Property; (m) eject tenants or repossess personal property, as provided
by law, for breaches of the conditions of their leases or other agreements; (n) sue for unpaid 0
Rents and profits, payments, income or proceeds in the name of Mortgagor or Mortgagee or such
receiver; (o) maintain actions in forcible entry and detainer, ejectment for possession and actions
in distress for rent; (p) compromise or give acquittance for Rents and profits, payments, income
or proceeds that may become due; (q) delegate or assign any and all rights and powers given to
Mortgagee by this Mortgage; and (r) do any acts which Mortgagee in its sole discretion deems
appropriate or desirable to protect the security and use such measures, legal or equitable, as
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Mortgagee may in its sole discretion deem appropriate or desirable to implement and effectuate
the provisions of this Mortgage. This Mortgage shall constitute a direction to and full authority
to any lessee, or other third party who has previously dealt or contracted or may subsequently
deal or contract with Mortgagor or Mortgagee, at the request of Mortgagee, to pay all amounts
owing under any lease, contract, concession, license or other agreement to Mortgagee without
proof of the default relied upon. Any such lessee or third party is irrevocably authorized to rely
upon and comply with (and shall be fully protected by Mortgagor in so doing) any request, a
notice or demand by Mortgagee for the payment to Mortgagee of any Rents and profits or other c0.
sums which may be or thereafter become due under its lease, contract, concession, license or 0
other agreement, or for the performance of any undertakings under any such lease, contract,
concession, license or other agreement, and shall have no right or duty to inquire whether any
default under this Mortgage or under any of the other Loan Documents has actually occurred or
is then existing. Mortgagor constitutes and appoints Mortgagee, its assignees, successors,
transferees and nominees, as Mortgagor's true and lawful attorney-in-fact and agent, with full
power of substitution in the Property, in Mortgagor's name, place and stead, to do or permit any
one or more of the foregoing described rights, remedies, powers and authorities, successively or
concurrently, and said power of attorney shall be deemed a power coupled with an interest and
irrevocable so long as any of the Liabilities is outstanding. Any money advanced by Mortgagee
in connection with any action taken under this Section, together with interest thereon at the
Default Rate from the date of making such advancement by Mortgagee until actually paid by c°
Mortgagor, shall be a demand obligation owing by Mortgagor to Mortgagee and shall be secured
by this Mortgage and by every other instrument securing the Liabilities.
(c) Occupancy After Foreclosure. Upon any foreclosure sale, Mortgagor or
Mortgagor's representatives, successors or assigns, or any other persons claiming any interest in
the Property by, through or under Mortgagor (except tenants or subtenants under Leases entered
into prior to the date of this Mortgage), occupying or using the Property, or any part thereof, to
the extent not prohibited by applicable law, shall, at the option of the purchaser at such sale,
immediately become the tenant of such purchaser, which tenancy shall be a tenancy from day-to- 0
day, terminable at the will of either landlord or tenant, at a reasonable rental per day based upon �
the value of the Property occupied or used, such rental to be due daily to the purchaser. To the
extent permitted by applicable law, in the event any tenant fails to surrender possession of the
Property upon the termination of its tenancy, the purchaser shall be entitled to institute and
maintain an action for unlawful detainer of the Property in the appropriate court of the county in
which the Real Estate is located.
(d) Notice to Account Debtors. Mortgagee may, at any time after an Event of
Default, notify the account debtors and obligors of any accounts, chattel paper, negotiable
instruments or other evidences of indebtedness to Mortgagor included in the Property to pay c
Mortgagee directly. Mortgagor shall at any time or from time to time upon the request of
Mortgagee provide to Mortgagee a current list of all such account debtors and obligors and their a
addresses.
(e) Cumulative Remedies. All remedies in this Mortgage are cumulative and
Mortgagee shall also have all other remedies provided at law and in equity or in any other Loan
Documents. Such remedies may be pursued separately, successively or concurrently at the sole
subjective direction of Mortgagee and may be exercised in any order and as often as occasion
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therefor shall arise. No act of Mortgagee shall be construed as an election to proceed under any
particular provisions of this Mortgage to the exclusion of any other provision of this Mortgage or
as an election of remedies to the exclusion of any other remedy which may then or thereafter be
available to Mortgagee. No delay or failure by Mortgagee to exercise any right or remedy under
this Mortgage shall be construed to be a waiver of that right or remedy or of any default under
this Mortgage. Mortgagee may exercise any one or more of its rights and remedies at its option
without regard to the adequacy of its security.
0.
(f) Payment of Expenses. Mortgagor shall pay within seven (7) days after written
demand all of Mortgagee's expenses incurred in any efforts to enforce any terms of this
Mortgage, whether or not any lawsuit is filed and whether or not foreclosure is commenced but
not completed, including legal fees, foreclosure costs and title charges, together with interest
thereon at the Default Rate from the date incurred by Mortgagee until actually paid by
Mortgagor. All of the same shall be secured by this Mortgage and the other Loan Documents
securing the Liabilities.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage shall be in writing
and shall be given by either (a) hand-delivery, (b) first class mail (postage prepaid), or
(c) reliable overnight commercial courier (charges prepaid), or (d) via electronic mail in portable
document or other format to the party intended to receive same, so long as in the case of
electronic mail such notice is simultaneously delivered in another permitted manner, to the
addresses listed in this Mortgage. Notice shall be deemed to have been given and received: (a)
if by hand delivery, upon delivery; (b) if by mail, three (3) calendar days after the date first
deposited in the United States mail; (c) if by overnight courier, on the date scheduled for
delivery; and (d) if by electronic mail, on the date delivered to such party. A party may change
its address by giving written notice to the other party as specified herein.
If to Mortgagor: °8
Key Marina Development, LLC
52 Riley Road,Unit 155
Celebration, Florida 34747
Attn: Marl-,R. Gerenger
If to Mortgagee: LV Lending LLC
175 SW 7th Street, Suite 2101
Miami, Florida 33130 c
Attn: Camilo Nino
Email: cnino@linkvestcapital.com a
With a Copy to: Holland&Knight LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Attn: Rebecca L. Mendez, Esq.
Email:rebecca.mendez@hklaw.com
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9.2. Remedies Cumulative. The rights and remedies of Mortgagee as provided in
this Mortgage or in any other Loan Document shall be cumulative and concurrent, may be
pursued separately, successively or together, may be exercised as often as occasion therefor shall
arise, and shall be in addition to any other rights or remedies conferred upon Mortgagee at law or
in equity. The failure, at any one or more times, of Mortgagee to assert the right to declare the
Liabilities due, grant any extension of time for payment of the Liabilities,take other or additional
security for the payment thereof, release any security, change any of the terms of the Loan 0.
Documents, or waive or fail to exercise any right or remedy under any Loan Document shall not
in any way affect this Mortgage or the rights of Mortgagee.
9.3. No Implied Waiver. Mortgagee shall not be deemed to have modified or waived
any of its rights or remedies hereunder unless such modification or waiver is in writing and
signed by Mortgagee, and then only to the extent specifically set forth therein. A waiver in one
event shall not be construed as continuing or as a waiver of or bar to such right or remedy on a
subsequent event.
9.4. Partial Invalidity; Severability. The invalidity or unenforceability of any one or
more provisions of this Mortgage shall not render any other provision invalid or unenforceable.
In lieu of any invalid or unenforceable provision, there shall be added automatically a valid and
°
enforceable provision as similar in terms to such invalid or unenforceable provision as may be
possible.
9.5. Binding Effect; Successors and Assigns. The covenants, conditions, waivers,
releases and agreements contained in this Mortgage shall bind, and the benefits thereof shall
inure to, the parties hereto and their respective heirs, executors, administrators, successors and
assigns and are intended and shall be held to be real covenants running with the land; provided,
however, that this Mortgage cannot be assigned by Mortgagor without the prior written consent
of Mortgagee, and any such assignment or attempted assignment by Mortgagor shall be void and E
of no effect with respect to Mortgagee.
9.6. Entire Agreement. Modifications. This Mortgage and the other Loan
Documents contain the entire agreements between the parties relating to the subject matter
described in such documents. Any and all prior written agreements and any and all prior and
contemporaneous oral agreements which are not contained in this Mortgage or such other Loan
Documents are terminated. This Mortgage and the other Loan Documents may not be
supplemented, extended, modified or terminated except by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification or discharge is sought.
Any alleged amendment, revision, waiver, discharge, release or termination which is not so
documented shall not be effective as to any party.
9.7. Commercial Loan. Mortgagor represents and warrants that the loans or other
financial accommodations included as Liabilities secured by this Mortgage were obtained solely
for the purpose of carrying on or acquiring a business or commercial investment and not for
residential, consumer or household purposes.
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9.8, Governing Law. This Mortgage shall be governed by and construed in
accordance with the substantive laws of the State of Florida without reference to conflict of laws
principles.
9.9. Joint and Several Liability. If Mortgagor consists of more than one person or
entity, the word "Mortgagor" shall mean each of them and their liability shall be joint and
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several. 0
0.
9.10. Non-Merger. In the event Mortgagee shall acquire title to the Property by
conveyance from Mortgagor or as a result of foreclosure, this Mortgage shall not merge in the
fee estate of the Property but shall remain and continue as an existing and enforceable lien for
the Liabilities secured hereby until the same shall be released of record by Mortgagee in writing.
9.11 Waiver; Discontinuance of Proceedings. Mortgagee may waive any single
default by Mortgagor without waiving any other prior or subsequent default. Mortgagee may
remedy any default by Mortgagor without waiving the default remedied. Neither the failure by
Mortgagee to exercise, nor the delay by Mortgagee in exercising, any right, power or remedy
upon any default by Mortgagor shall be construed as a waiver of such default or as a waiver of
the right to exercise any such right,power or remedy at a later date. No single or partial exercise
by Mortgagee of any right, power or remedy shall exhaust the same or shall preclude any other
or further exercise. Every such right, power or remedy under this Mortgage may be exercised at
any time and from time to time. No modification or waiver of any provision of this Mortgage
nor consent to any departure by Mortgagor shall be effective unless the same shall be in writing
and signed by Mortgagee, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose given. No notice to nor demand on Mortgagor in any case
shall of itself entitle Mortgagor to any other or further notice or demand in similar or other
circumstances. Acceptance by Mortgagee of any payment in an amount less than the amount
then due on any of the Liabilities shall be deemed an acceptance on account only and shall not in
any way affect the existence of a default. In case Mortgagee shall have proceeded to involve any E
right, remedy or recourse permitted under this Mortgage or under the other Loan Documents and
shall thereafter elect to discontinue or abandon the same for any reason, Mortgagee shall have
the unqualified right to do so. In such an event, Mortgagor and Mortgagee shall be restored to
their former positions with respect to the Liabilities, the Loan Documents, the Property and
otherwise, and the rights, remedies, recourses and powers of Mortgagee shall continue as if the
same had never been involved
C
9.12 Application of the Proceeds of the Note. To the extent that proceeds of the Note
are used to pay the Liabilities secured by any outstanding lien, security interest, charge or prior
encumbrance against the Property, Mortgagee shall be subrogated to any and all rights, security
interests and liens owned by any owner or holder of such outstanding liens, security interests,
charges or encumbrances, irrespective of whether said liens, security interests, charges or 0
encumbrances are released.
9.13 Unsecured Portion of Liabilities. If any part of the Liabilities cannot be
lawfully secured by this Mortgage or if any part of the Property cannot be lawfully subject to its
lien and security interest to the full extent of Liabilities, then all payments made shall be applied
on the Liabilities first in discharge of that portion which is unsecured by this Mortgage.
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9.14 Cross Default, An Event of Default under this Mortgage shall be a default or
Event of Default under each of the other Loan Documents.
9.15 Interest After Sale. In the event the Property or any part thereof shall be sold
upon foreclosure as provided in this Mortgage, to the extent permitted by law, the sum for which
the same shall have been sold shall, for purposes of redemption (if there is any right of
redemption which has not been effectively waived pursuant to the laws of the state in which the
Property is located), bear interest at the Default Rate. 0.
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9.16 Inconsistency with Other Loan Documents. In the event of any inconsistency
between the provisions of this Mortgage and the provisions in any of the other Loan Documents,
it is intended that the provisions selected by Mortgagee in its sole subjective discretion shall be
controlling.
9.17 No Mercer. It is the desire and intention of the parties that this Mortgage and the
lien of this Mortgage will not merge in fee simple title to the Property. Should Mortgagee
acquire any additional or other interests in or to the Property or its ownership, then, unless a
contrary intent is manifested by Mortgagee as evidenced by an appropriate document duly
recorded, this Mortgage and its lien shall not merge in such other or additional interests in or to
the Property, toward the end that this Mortgage may be foreclosed or sold pursuant to foreclosure
proceedings as if owned by a stranger to said other or additional interests.
9.18 Rights With Respect to Junior Encumbrances. Any person or entity
purporting to have or to take a junior mortgage, deed of trust or other lien upon the Property or
any interest therein shall be subject to the rights of Mortgagee to (i) amend, modify, increase,
vary, alter or supplement this Mortgage, the Note or any of the other Loan Documents (ii) extend
the maturity date of the Liabilities (iii) increase the amount of the Liabilities (iv) waive or
forebear the exercise of any of its rights and remedies under this Mortgage or under any of the
other Loan Documents and (v) release any collateral or security for the Liabilities, in each and
every case without obtaining the consent of the holder of such junior lien and without the lien or E
security interest of this Mortgage losing its priority over the rights of any such junior lien.
9.19 Mortgagee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Mortgagor or the principals or general partners in Mortgagor, or their �s
respective creditors or property, Mortgagee, to the extent permitted by law, shall be entitled to
file such proofs of claim and other documents as may be necessary or advisable in order to have
the claims of Mortgagee allowed in such proceedings for the entire Liabilities at the date of the
institution of such proceedings and for any additional amount which may become due and
payable by Mortgagor under this Mortgage after such date.
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9.20 After-Acquired Property. All property acquired by Mortgagor after the date of E
this Mortgage which by the terms of this Mortgage shall be subject to the lien and the security
interest created, shall immediately upon the acquisition by Mortgagor and without further
mortgage, conveyance or assignment, become subject to the lien and security interest created by
this Mortgage. Nevertheless, Mortgagor shall execute, acknowledge, deliver and record or file,
as appropriate, all and every such further mortgages, deeds of trust, deeds to secure debt, security
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agreements, financing statements, assignments and assurances as Mortgagee shall require for
accomplishing the purposes of this Mortgage.
9.21 No Representation. By accepting delivery of any item required to be observed,
performed or fulfilled or to be given to Mortgagee pursuant to the Loan Documents, including
any officer's certificate, balance sheet, statement of profit and loss or other financial statement,
survey, appraisal or insurance policy, Mortgagee shall not be deemed to have warranted, a
consented to, or affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of 0.
any term, provision or condition thereof. Such acceptance of delivery shall not be or constitute
any warranty, consent or affirmation of Mortgagee.
9.22 Recordinlz and Filing. Mortgagor will cause the Loan Documents and all
amendments and supplements and substitutions to be recorded, filed, re-recorded and re-filed in
such manner and in such places as Mortgagee shall reasonably request. Mortgagor will pay on
demand all such recording, filing, re-recording and re-filing taxes, fees and other charges.
Mortgagor shall reimburse Mortgagee, or its servicing agent, for the costs incurred in obtaining a
tax service company to verify the status of payment of taxes and assessments on the Property.
9.23 Maximum Interest. The provisions of this Mortgage and all other agreements
between Mortgagor and Mortgagee, whether now existing or subsequently arising, written or
oral, are expressly limited so that in no contingency or event whatsoever, whether by reason of
demand or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreed
to be paid, to Mortgagee for the use, forbearance or retention of the money loaned under the
Note exceed the maximum amount permissible under applicable law. If, from any circumstance
whatsoever, performance or fulfillment of any provision of this Mortgage or of any agreement
between Mortgagor and Mortgagee shall, at the time performance or fulfillment, exceed the limit
for interest prescribed by law or otherwise transcend the limit of validity prescribed by
applicable law, then ipso facto the obligation to be performed or fulfilled shall be reduced to
such limit. If, from any circumstance whatsoever, Mortgagee shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excess shall be applied to the reduction of the principal balance owing under the
Note in the inverse order of its maturity (whether or not then due) or, at the option of Mortgagee,
be rebated to Mortgagor, and not to the payment of interest. All interest (including any amounts
or payments deemed to be interest) paid or agreed to be paid to Mortgagee shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread throughout the full
period until payment in full of the principal balance of the Note so that the Interest thereon for
such full period will not exceed the maximum amount permitted by applicable law. This
paragraph will control all agreements between Mortgagor and Mortgagee. `U
0
9.24 Servicing Agent. Mortgagor acknowledges that the Loan Documents may be
serviced by an agent designated by Mortgagee from time to time, and that such servicing agent 0
shall have the authority to collect payments on the Liabilities and to exercise the rights and
remedies of Mortgagee under the Loan Documents for and on behalf of Mortgagee.
9.25 Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage or any other
Loan Document (i) Mortgagee exercises any right given to it to approve or disapprove; (ii) any
arrangement or term is to be satisfactory to Mortgagee; or (iii) any other decision or
32
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determination is to be made by Mortgagee, the decision of Mortgagee to approve or disapprove,
all decisions that arrangements or terms are satisfactory or not satisfactory and all other decisions
and determinations made by Mortgagee, shall be in the sole discretion of Mortgagee, except as
may be otherwise expressly and specifically provided herein or therein
�s
9.26 Construction. The following rules apply to the construction and interpretation of
this Mortgage: (i) singular words connote the plural number as well as the singular and vice
versa as used in the definitions and elsewhere in this Mortgage; (ii) unless specifically otherwise c0.
provided, all references in this Mortgage to particular articles, sections, subsections, clauses,
schedules or exhibits are references to articles, sections, subsections, clauses, schedules or
exhibits of this Mortgage; (iii) the section headings are solely for convenience of reference and
do not constitute a part of this Mortgage nor affect its meaning, construction or effect; (iv) the
terms "include" or "including" are not restrictive and shall be deemed to include the terms "but
not limited or without limitation"; (v) the term attorneys fees or similar phrases includes the
reasonable fees and disbursements of Mortgagee's counsel or law firm in reviewing the Loan
Documents investigating, preparing and pursuing claims, before or at trial and all appellate
levels or in bankruptcy, and includes the fees of such counsel's or law fnm's paralegals and
consultants; (vi) the term "days" means calendar days; provided that if any time period ends on a
Saturday, Sunday or holiday officially recognized by the state within which the Real Estate is
located, the period shall be deemed to end on the next succeeding business day and the term
"business day" means a weekday, Monday through Friday, except a legal holiday or a day on
which banking institutions in Marathon, Florida are authorized to be closed; and (v) this
document may be construed as a mortgage, security deed, deed of trust, chattel mortgage,
conveyance, assignment, security agreement, pledge, financing statement, hypothecation or
contract, or any one or more of the foregoing, in order to fully effectuate the liens and security
interests created and the purposes and agreements in this Mortgage.
9.27 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW,
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION
IN THE STATE WHERE THE PROPERTY IS LOCATED OVER ANY SUIT, ACTION
OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE
NOTE, THIS MORTGAGE OR ANY OTHER OF THE LOAN DOCUMENTS, (ii)
AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN THE COUNTY WHERE THE PROPERTY IS LOCATED, (iii) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND, (iv) TO THE FULLEST EXTENT c
PERMITTED BY LAW, AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY FORUM OTHER THAN THE COUNTY WHERE THE
PROPERTY IS LOCATED (BUT NOTHING IN THIS MORTGAGE SHALL AFFECT
THE RIGHT OF MORTGAGEE TO BRING ANY ACTION, SUIT OR PROCEEDING
IN ANY OTHER FORUM).
(b) MORTGAGOR, TO THE FULL EXTENT PERMITTED BY LAW,
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
33
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ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE
LIABILITIES OR ANY CONDUCT, ACT OR ACTION OF MORTGAGEE OR
MORTGAGOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS
AFFILIATED WITH MORTGAGEE OR MORTGAGOR, IN EACH OR THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR 0.
OTHERWISE.
[Remainder of page intentionally left blank,signature page to follow.]
°
°
34
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IN WITNESS WHEREOF, Mortgagor, intending to be legally bound, has duly
executed and delivered this Mortgage and Security Agreement as of the day and year first above
written.
t.3
WITNESS: MORTGAGOR:
Name: KEY MARINA DEVELOPMENT, LLC
a Florida limited liability company
Na e: rv, By: Key Marina Holdings, LLC,
a Delaware limited liability company,
its Manager and Sole Member
By
44
_.........—
Name: Ma k R. Gerenger
Its: Manager
°
STATE OF FLORIDA )
SS.:
COUNTY OF )` e-6 ) 0
The foregoing instrument was acknowledged before me this day
2019, by Mark R. Gerenger as Manager of KEY MARINA HOLDINGS, LLC, a Delaware
limited liability company, the Manager of KEY MARINA DEVELOPMENT, LLC hlorida
limited liability company, on behalf of the company. He is personally known to me( (NO)
or has produced as identification.
/C4,
Notary Public
[Notarial Seal] � � je j I �
�j `1 1
Printed Name of Notary
DEE N.KIRBY
Commsssion GG M111
" EMpirresAugost8,2021
s .� U-Tm Fe1rt Insumnte 800 38ST018
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Schedule A
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Part I - Singleton Parcel
Parcel 1 0.
Lots 1 and 2, Block 4, MANDALAY, according to the Plat thereof, recorded in Plat Book 1,
Page 194, among the Public Records of Monroe County, Florida;
°
Together with a parcel of submerged land in Sec. 6, Twp. 62 South, Rge. 39 East, Key Largo,
Florida, Monroe County, Florida, more particularly described as:
From the intersection of the dividing line between Lots 2 and 3, Block 4 with the Southeasterly
side of East Second Street, all as shown on Plat of MANDALAY, recorded in Plat Book 1, Page
194, Public Records of Monroe County, Florida, run Southeasterly along said dividing line, a
distance of 150 feet to the most Easterly corner of Lot 2 and the most Westerly corner of a parcel
heretofore conveyed to A.F. Meade by Trustees L LF, Deed No. 22153 and the Point of
Beginning of the parcel hereinafter described; thence continue Southeasterly along last described
course and along the Southwesterly side of the Meade parcel, a distance of 250 feet; thence
Southwesterly and parallel to the said Southeasterly side of East Second Street, a distance of
125.8 feet to the prolongation of the dividing line between Lot 1, Block 4, and Second Avenue,
according to said Plat Book 1, Page 194; thence Northwesterly along said prolongation a
distance of 250 feet to the most Southerly corner of said Lot 1, Block 4; thence Northeasterly
along the Southeasterly side of Lots 1 and 2, a distance of 125.8 feet to the Point of Beginning.
Part II - Lively Parcel
A strip of land 125 feet wide and 250 feet in depth off the Southwesterly side of Block 3, said
strip being 125 feet on East First Street and East Second Street, and 250 feet on Second Avenue,
MANDALAY, according to the plat thereof recorded in Plat Book 1, Page 194 of the Public
Records of Monroe County, Florida. Also described as: A strip of land 125 feet wide and 250
feet in depth off the Southwesterly side of Block 3, said strip being 125 feet on East First Street
on East Second and East Avenue 250 feet on Second Avenue, MANDALAY, according to the
plat thereof recorded in Plat Book 1, Page 194 of the Public Records of Monroe County, Florida.
AND
A tract of land in Block 3 of MANDALAY, a subdivision of Key Largo, according to the Plat
recorded in Plat Book 1, at Page 194 Public Records of Monroe County, Florida, said tract
having a frontage of 100 feet on East First Street, according to the plat of MANDALAY, and a
depth of 95 feet and further described as the Northwesterly 95 feet of the Northeasterly 100 feet
of the Southwesterly 225 feet of said Block 3.
AND
36
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The Northeasterly 50 feet of the Southwesterly 175 feet, and the Northeasterly 50 feet of the
Southwesterly 225 feet, Block 3, MANDALAY, a subdivision of Key Largo, according to the
Plat recorded in Plat Book 1, Page 194 Public Records of Monroe County, Florida, less the
Northwesterly 95 feet of the Northeasterly 100 feet of the Southwesterly 225 feet thereof of said
Block 3.
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Pail III - Bennett Parcel c0.
a�
Lots 1, 2, 3, 4, 5, 6, 7, 8, 30, 31, 32 and 33, Block 2, MANDALAY, according to the Plat
thereof, as recorded in Plat Book 1, Page 194 of the Public Records of Monroe County, Florida.
a
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MONROE COUNTY
OFFICIAL RECORDS
37
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Elci:# 2142229 11/03/2017 12:20F
Filed & Recorded in Official Records
MONROE C.0UNTY KEVIN MADOK
Dat:n 2142229
E110 237*7 Pg# 1916
RMULDE-VAlizA&11�1
ND CQZjSLNj-T—Q-.A5&.11!1ijN E
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.2
THIS CHT-OF-WAY LEASE AGREEMENT ("LEASE"), made and entered into
by the parties on this 18th day of October, 2017, by and between MONROE COUNTY, a
political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key
West, Florida 33040, ("LESSOR") and KEY MARINA DEVELOPMENT, LLC, aFlorida
limited liability company, whose principal address is 52 Riley Road, Unit 155, Celebration,
Florida 34747 ("LESSEE") and FLORIDA KEYS QUALITY FOODS, INC., a Florida
corporation, whose principal address is 125 Milano Drive, Islamorada, Florida 33036, ("SUB-
LESSEE").
WITNESSETH:
z
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WHEREAS, the County owns the public right-of-way along Second Avenue in Key 00
Ir-
Largo, Monroe County,Florida; and CD
WHEREAS, there exists an historic encroachment upon the Second Avenue public right® 0
of-way, of a concrete building and a frame building, existing since 1944 and the early
1960's respectively; and
z
WHEREAS, on November 12, 1997, the Monroe County Board of County
Commissioners ("BOCC") entered into a Lease Agreement with Canalis Holding Corporation z
("Canalis") for ten (10) feet of county right-of-way on Second Avenue, Key Largo, Florida,
for a term of ten (10) years from December 1, .1997, until November 30, 2017 ("Original (n
Lease"); and 0
z
WHEREAS, on February 18, 2004, the Original Lease was assigned from Canalis to W
W
Ea mark Companies, LLC ("Earthmark"), which assignment was approved as required by z
0
paragraph 7 of the Original Lease by the BOCC; and U
W
(n
WHEREAS, on August 18, 2004, the BOCC approved the Lease assignment fromEarthmark W
to Ocean Sunrise Associates,LLC ("Ocean Sunrise"); and
0
WHEREAS, on July 20, 2011, the BOCC acknowledged the transfer of title through a W
a
foreclosure action from. Ocean Sunrise to Morgan Ocean Sunrise, LLC ("Morgan Ocean W
0
Sunrise"), and approved the assignment of the Lease to Morgan Ocean Sunrise on the same U
W
date; and W
WHEREAS, on July 20, 2011, the BOCC acknowledged and approved the Assignment of E
Packet Pg. 2913
[lei All :21,422:29
1-*11(13 2377 Pga 1917
Lease ("Assignment of Lease") from Morgan Ocean Sunrise to Florida Keys Quality
Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive,
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Islamorada, Florida 33036 ("Quality Foods"), a tenant of the contiguous property and 0.
.2
leased right-of-way upon which the existing historical encroachment is located; and
WHEREAS Morgan Ocean Sunrise was successor in interest to the rights and obligations set
forth in the Development Agreement between Ocean Sunrise and the BOCC, which was
approved by Resolution 493-2007 on November 1.4, 2007 ("Development Agreement"),
Which included the use of the leased property and Which was executed subsequent to the
Lease, thus allowing some modifications in the use of the property under the Original Lease;
and
WHEREAS, the survey and site plan provided at the time of the Development
Agreement approval showed encroachment of buildings or structures beyond the original z
I-
description of the leased Premises as well as allowing parking, wheel stops, an impervious Ir-
00
handicapped parking space, and landscaping on the County right-of-way; and Ir-
CD
WHERE AS, on September 21, 2011, the BOCC entered into an Amendment to Lease U
0
with Morgan Ocean Sunrise reflecting the above changes, among other revisions, to the
Original Lease; and
WHEREAS, the contiguous property is currently owned by Key Marina Development, LLC, z
a Florida limited liability company, whose principal address is 52 Riley Road, Unit 155,
z
Celebration, Florida 34747, as acquired through a Special Warranty Deed dated October a
21, 2013, and recorded in. Of Records Book 2655, Page 1209 in the Office of the Monroe (n
(n
County Clerk.of the Court("Key Marina"); and <
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WHEREAS, Key Marina is the current successor in interest to the rights and obligations z
W
(n
set forth in the Development Agreement and as outlined in the Key Marina Development, z
LLC Major Conditional Use at Mandalay Proposed Site Plan ("Site Plan"), attached hereto and 0
made a part hereof ("Exhibit A"), which was approved by the Monroe County Planning W
(n
Commission on January 27,2017, as part of its Resolution No. P34-16; and <
W
WHEREAS, Quality Foods is the current Lessee and Tenant of the leased property under 0
W
the Assignment of Lease with said lease tenn to expire on November 30, 201.7; and a
W
WHEREAS,on January 1.8, 2017, the BOCK' approved a new Right-of-Way Lease Agreement 0
U
with Key Marina, as Lessor, and Quality Foods, as Sub-Lessee, for an historic encroachment W
W
upon the Second Avenue public right-of-way in Key Largo, but the term of the Lease was
inadvertently omitted, and therefore,never executed by the Mayor on behalf of the BOCC; and
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2
Packet Pg. 2914
2142229
21377 Pg# 1918
WHEREAS, Key Marina and Quality Foods now desire to terminate the Original Lease and
the Assignment of Lease, and terminate and rescind the BOCC approval on January 18, 2017,
E
of the new Right-of-Way.Lease Agreement, which was never fully executed; and 0.
0
WHEREAS, Key Marina has provided a new Survey and Legal Description, dated
December 7, 201.6, incorporating the Site Plan revisions for the Mandalay property, a copy
of which is attached hereto and made a part hereof("Exhibit B"); and
WHEREAS, Key Marina is the legal title owner of the contiguous property and desires
to become the LESSEE; and
WHEREAS, Key Marina and Quality Foods entered into a Lease Agreement dated April 11,
2017, ("Lease Agreement"), for the lease by Quality Foods of the contiguous property,
together with the property owned by Monroe County, for an initial lease term of seven (7) z
V.-
years and for renewal terms of three(3) periods of Five(5) years each; and Ir-
00
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CD
WHERE AS, Quality Foods, as the current tenant of the contiguous property, desires to
become the SUB-LESSEE of the leased Premises;
0
WHEREAS, Key Marina, Quality Foods, and BOCC desire to enter into this Right-of-
Way Lease Agreement reflecting the revised survey and legal description; and
z
WHERE AS, this Right-of-Way Lease Agreement ("ROW LEASE") is entered into in order
to reflect the historic encroachment upon the Second Avenue public right-of-way, of a
concrete building and a frame building, existing since 1.944 and the early 1960's (n
(n
respectively, which buildings are currently owned by Key Marina, and the additional uses of <
0
parking spaces, wheel. stops, an impervious handicapped parking space, and landscaping on the
County right-of-way. z
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NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set 0
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.forth below, the parties agree as follows: W
(n
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MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ("LESSOR") for and
in consideration of the mutual covenants and agreements hereinafter contained, does hereby 0
lease to KEY MARINA ('LESSEE") the right—of-way on Second Avenue, Key Largo,
Florida, contiguous to the Mandalay development, more particularly described in W
paragraph two (2) below and subject to the following terms and conditions:
0
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W
1. IERM_.: J'he Original Lease dated November 12, 1997,which expires on November 30,
2017, is hereby terminated upon approval by the BOCC and full execution of this RC
LEASE. Additionally, the ROWLEASE approved by the BOCC on January 18, 2017, E
3
Packet Pg. 2915
114:1:0 :2142229
PUt 2377 13g# 1919
between the herein parties, but never executed by the Mayor on behalf of the BOCC is
hereby rescinded. The initial to of this ROW LEASE shall be for a period of
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seven (7) years commencing retroactively to the I Ith day of April, 2017, and 0.
.2
0
ending on the 1 01b day of April, 2024, unless sooner terminated pursuant to the >
provisions of this ROW LEASE. The term and renewal options of this ROW LEASE
coincide with the same terms set forth in that certain Lease Agreement dated April 11,
2017, between Key Marina Development, LLCM and Florida Keys Quality Foods, Inc.,
recorded on July 6, 2017, in the Official Records of Monroe County in Book 2863 at
Page 416.
2, RENEWAL TERMS: Lessor shall have the option to renew this ROW LEASE after
the original term, for three (3) additional periods of five (5) years each.
3. OPTION TO RENEW: Lessor hereby grants to Lessee the option to renew this,ROW z
LEASE for the renewal terms on the condition that at the time Lessee exercises each
00
option to renew, Lessee is not in default under this.ROW LEASE beyond the expiration Ir-
CD
of any applicable cure period. Lessee shall exercise its right to renew and extend the
Lease term, if at all, by providing written notice of extension to Lessor at least ninety
0
(90) days prior to the expiration of the lease term.
4. DY.$LHLE1JDN_Q.E_EREML,5M: The property subject to this Lease is situated, in
the County of Monroe, State of Florida, and is more particularly described in z
Exhibit "B" attached hereto and made a part hereof("Premises").
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5. f.Q.DJaLULB_,J_T=:_ LESSEE shall pay to LESSOR the sum of Four Hundred Six (n
(n
and 25/100 Dollars ($406.25) per month for a total amount of Four Thousand <
0
Eight Hundred Seventy-five and 00/100 ($4,875.00) Dollars annually. LESSOR agrees
to pay in advance the total amount of Fourteen Thousand Six Hundred Twenty-five and z
W
00/100 ($14,625.00) Dollars as payment in full for the initial three (3) years of the (n
z
seven (7) year term of this Lease, and to thereafter pay the remaining annual rental 0
U
payments in two-year increments on or before the annual renewal date of the Lease. W
(n
The initial rental payment for three (3) years shall be paid within ten (10) days of <
W
execution of this ROW LEASE. If this ROW LEASE should be terminated prior to the
expiration of the initial seven (7) year term by any party, or should the LESSEE default
p 0
in these terms hereof, LESSEE and any subsequent Sub-Lessee waives any and all
rights to any advance rental payment for any remaining rental fee which may not yet be W
due under the terms of the Lease. All subsequent rental payments due for any renewal 0
period shall also be paid in full in advance for the two-year incremental periods upon W
notice of exercising LESSEE'S option to renew the Lease. All rental payments shall be W
made payable to Monroe County and remitted to the Monroe County Clerk of Court
E
for the Monroe County Board of County Commissioners at 500 Whitehead Street,
4
Packet Pg. 2916
3
14221
29 j920
P90 a
Key West, Florida 33040.
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6, EjjHE=: This ROW LEASE is for the purpose of reflecting the historic 0.
.2
encroachment upon the Second Avenue public right-of-way, of a concrete building
and a frame building, existing since 1944 and the early .1960's respectively and
allowing the use of the existing buildings and accessory structures that exist on the
County right-of-way as shown on the survey, a copy of which is attached hereto
and made a part hereof as Exhibit"13".
7. LESSEE shall have the right of
ingress and egress to, from, and upon the leased Premises for all purposes necessary
to the full quiet enjoyment by said LESSEE of the rights conveyed herein.
8. JLNAjLTjJQBJZJD_jV_$L: LESSEE shall, through its agents and employees, prevent Z
the unauthorized use of the leased Premises or any use thereof not in conformance
with this ROW LEASE. Development shall only be as allowed by the Development
Agreement dated November 14, 2007, as modified pursuant to Resolution No. P34-16 of
the Monroe County Planning Commission on October 26, 2016, as to the current use
0
and commercial square footage, as provided by law. Only parking, wheel stops, an
impervious handicapped parking space, and landscaping are otherwise permitted within
the leased area, outside of the structures and buildings shown on Exhibit "A", in
accordance with the Development Agreement and any conditional use permit. Whether Z
the Development Agreement is in effect or not, there shall be no changes or
im rovements, which encroach or further increase the footprint of the existing
P
development as shown on Exhibit"A". (n
(n
0
9. IN f This ROW LEASE shall not be assigned or subleased
in whole or in part without the prior written consent of LESSOR. Any assignment or Z
W
sublease made either in whole or in part, without the prior written consent of (n
Z
LESSOR, shall be void and without legal effect. 0
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a. LESSOR hereby consents to the sub-lease of the Premises to Florida Keys Quality <
W
Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive,
Islamorada, Florida 33036, a tenant of the contiguous property and leased right- 0
of-way upon which the existing historical encroachment is located ("Quality
W
Foods"), so long as Quality Foods has a valid and enforceable lease with LESSEE
for the contiguous property, owned by LESSEE. 0
W
b. LESSEE shall provide LESSON with a copy of its Lease Agreement with Quality
Foods and any amendments or renewals thereto, within ten (10)days of execution
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thereof
Packet Pg. 2917
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1:1104 2377 PgN 1921
c. Should LESSEE and Quality Foods fail to enter into a valid lease for the
E
contiguous property, at this time or at any time in the future, the consent for sub- 0.
.2
lease will be automatically terminated.
& The consent authorized in.this OW LEASE is solely for the sub-lease of the leased
Premises to Quality Foods as the SUB-LESSEE and not to any subsequent Sub-
Lessee without prior written approval.
10. FAST; FATS This ROW LEASE is subject to any utility easement existing on
said leased Premises. Any other easement not approved in writing by LESSOR
shall be void and without legal effect.
11. RIGHT OF INaELLIM: LESSOR or its duly authorized agents, representatives, Z
or employees shall, have the right at any and all times during daylight hours to inspect
Ir-
the leased Premises and the works and operations of LESSEE in any matter pertaining 00
to this ROW LEASE.
12. IN During the term of this ROW LEASE, 0
M
LESSEE shall procure and maintain policies of fire, extended risk, and general
liability insurance coverage. The liability insurance coverage shall be in an amount not
less than Two Hundred Thousand Dollars and 00/100 ($200,000.00) per occurrence
and Three Hundred Thousand Dollars and 00/100 ($300,000.00) per occurrence for Z
personal injury, death, and property damage on the leased Premises. Such policies of
Z
insurance shall name LESSOR, Monroe County, as an additional insured. LESSEE a
shall submit written evidence of having procured all insurance policies required (n
(n
herein prior to the effective date of this ROW LEASE and shall submit annually <
0
thereafter written evidence of maintaining such insurance policies to the Monroe
County Clerk of the Court, 500 Whitehead Street, Ivey West, Florida 33040. LESSEE Z
W
(n
shall purchase all policies of insurance from a financially responsible insurer duly Z
0
authorized to do business in the State of Florida. LESSEE shall be financially U
responsible for any loss due to failure to obtain adequate insurance coverage, and the W
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.failure to maintain such policies or certificates in the amounts set forth shall constitute <
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a breach of this ROW LEASE.
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13. AL A LL, 1� '. ZLR
JL : _J2dJLhJN1fLCAJJM: Notwithstanding any minimum insurance W
requirements prescribed elsewhere in this agreement, LESSEE covenants and agrees
that it shall defend, indemnify, and hold the LESSOR and LESSOR'S elected and 0
appointed officers and employees harmless from and against (i) any claims, actions W
or causes of action, (ii) any litigation, administrative proceedings, appellate 4i
proceedings, or other proceedings relating to any type of injury (including death),
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loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses
6
Packet Pg. 2918
Dai:n :11,422:19
1:110 2377 I*g# 1922
that may be asserted against, initiated with respect to, or sustained by any
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indernnifted party by reason of, or in connection with., (a) any activity of LESSEE or 0
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any of its employees, agents, sub-lessees in any tier, or other invitees during the 0.
.2
term of this Agreement, (b) the negligence or willful misconduct of LESSEE or any
of its employees, agents, sub-lessees in any tier, or other invitees except to the
extent the claims, actions, causes of action, litigation, proceedings, costs, or expenses
arise from the intentional or sole negligent acts or negligent acts in part or omissions
of the LESSEE or any of its employees, agents, contractors, or invitees (other than
LESSEE). Insofar as the claims, actions, causes of action, litigation, proceedings,
costs or expenses related to events or circumstances that occur during the to of
this R 0 W LEASE, this section will survive the expiration of the term of this
ROW LEASE or any earlier ten-nination of this ROW LEASE. The extent of liability
is in no way limited to, reduced, or lessened by the insurance requirements contained
elsewhere within this ROW LEASE. z
V.-
Ir-
00
14, AYMENT
A LESSEE shall assume full
responsibility for and shall pay all liabilities that accrue to the [eased Premises or to
the improvements thereon, including any and all ad valorem taxes and drainage and
0
special assessments or taxes of every kind and all mechan.ic's or materialrnen s liens Co
which may be hereafter lawfully assessed and levied against the leased Premises.
15.ZLQJJAL)' A : The failure of LESSOR to insist in any one or z
more instances upon strict performance of any one or more of the covenants, terms,
and conditions of this ROW LEASE shall not be construed as a waiver of such. z
covenants, terms, or conditions, but the same shall continue in full force and effect, (n
(n
and no waiver of LESSOR of any of the provisions hereof shall in any event be <
0
deemed to have been made unless the waiver is set forth in writing, signed by
LESSOR. z
W
(n
z
16.J[M: Time is expressly declared to be of the essence of this ROW LEASE. 0
U
W
(n
17.ILTJJAIY JT�,LS.: LESSEE shall be responsible for the payment of all charges for <
W
the furnishing of gas, electricity, water, and other public utilities to the leased
Premises and for having all utilities turned off when the leased Premises are
0
surrendered.
W
a
18.MLNYHAL_JULjHj,S: This ROW LEASE does not cover petroleum or petroleum W
0
products or minerals and does not give the right to LESSEE to drill for or develop U
W
the same, and LESSOR specifically reserves the right to lease the leased Premises for W
4j
purpose of exploring and recovering oil and minerals by whatever means C
0
E
appropriate; provided, however, that LESSEE named herein shall. be fully compensated
7
Packet Pg. 2919
Cho41 1422''Z9
F1
'1#2377 it pga 1923
for any and all damages that might result to the leasehold interest of said LESSEE
by reason Of Such exploration and recovery operation.
E
0.
.2
19. IGHT OF Ali.=': LESSEE shall make available for LESSOR all financial and
other records relating to this ROW LEASE and LESSOR shall have the right to a
either audit such records at any reasonable time or require the submittal of an.
annual independent audit by a Certified Public Accountant during the term of this
ROW LEASE. This right shall be continuous until this ROW LEASE expires or
is terminated. This ROW LEASE may be terminated by LESSOR should LESSEE
fail to allow public access to all documents, papers, letters or other materials made or
received in conjunction with this Lease, pursuant to the provisions of Chapter 119,
Florida Statutes.
20,LQNPjJ1QDL JQF JERLMI LESSOR assumes no liability or obligation to z
LESSEE with reference to the condition of the leased Premises. The leased Premises
00
herein are leased by LESSOR to LESSEE in an "as is" condition, with LESSOR Ir-
assuming no responsibility for the care, repair, maintenance, or improvement of the
leased Premises for the benefit of the LESSEE.
0
21. QQhJMJAN_LEAJLJU_JA�W LESSEE agrees that this ROW LEASE is
contingent upon and subject to LESSEE obtaining all applicable permits and.
complying with all applicable permits, regulations, ordinances, rules, and laws of
z
Monroe County, the State of Florida or the United States or of any political
subdivision or agency of either.
22. JJREAQJ I Jumf- Vi , Should LESSEE (n
breach any of the covenants, terms or conditions of this ROW LEASE, LESSOR 0
shall give written notice to LESSEE to remedy such breach within sixty (60) days of
z
such notice. In the event LESSEE fails to remedy the breach to the satisfaction of W
(n
LESSOR within sixty (60) days of receipt of written notice, LESSOR may either z
0
terminate this ROW LEASE and recover from LESSEE all damages LESSOR may U
W
incur by reason of the breach including, but not limited to, the cost of recovering (n
the leased Premises and attorneys' fees or maintain this ROW LEASE in full force W
-J
and. effect and exercise all rights and remedies herein conferred upon LESSOR. 3:
0
23.
W
a. LESSEE shall not do, or suffer to be done, in, on or upon the leased Premises or 0
U
W
as affecting said leased Premises or adjacent properties, any act which may result W
in damage or depreciation of value to the leased Premises or adjacent properties,
or any part thereof. E
8
Packet Pg. 2920
Dai:n 2142229
13103 2377 PgN 1924
b. LESSEE shall not generate, store, produce, place, treat, release or discharge any
contarninants, pollutants or pollution, including, but not limited to, hazardous or
E
toxic substances, chemicals or other agents on, into, or from the leased Premises 0.
.2
0
or any adjacent lands or waters in any manner not permitted by law. For the >
purposes of this ROW LEASE, "hazardous substances" shall mean and include
those elements or compounds defined in 42 USC Section 9601 or which are
contained in the list of hazardous substances adopted by the United States
Environmental Protection Agency (EPA) and the list of toxic pollutants designated
by the United States Congress or the EPA or defined by any other federal., state
or local statute, law, ordinance, code, rule, regulation, order or decree regulating, .2
relating to or imposing liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance, material, pollutant or contaminant.
"Pollutants" and "Pollution" shall mean those products or substances defined in
Florida Statutes, Chapter 376 and Chapter 403, and the rules promulgated Z
thereunder, all as amended or updated from time to time. In the event of
00
LESSEE's failure to comply with this paragraph, LESSEE shall, at its sole cost Ir-
and expense, promptly commence and diligently pursue any legally required
closure, investigation, assessment, cleanup, decontamination, remediation, 0
restoration and monitoring of(1) the leased Premises, and (2) all of site ground
and surface waters and lands affected by LESSEE's such failure to comply, as
may be necessary to bring the leased Premises and affected off-site waters and.
lands into full compliance with all applicable federal, state, or local statutes, Z
laws, ordinances, codes, rules, regulations, orders and decrees, and to restore the
damaged property to the condition existing immediately prior to the occurrence
which caused the darnage. LESSEE's obligations set forth in this paragraph shall (n
(n
survive the termination or expiration of this ROW LEASE. 'rhis paragraph shall <
0
not be construed as a limitation upon LESSEE's obligations regarding
indemnification and payment of costs and fees as set forth in paragraph 11 of Z
.P W
(n
this ROW LEASE, nor upon any other obligations or responsibilities of the Z
0
LESSEE as set forth herein. Nothing herein shall relieve LESSEE of any U
responsibility or liability prescribed by law for fines, penalties and damages levied W
(n
by govenimental agencies, and the cost of cleaning up any contamination caused <
W
directly or indirectly by LESSEE's activities or facilities. Upon discovery of a
release of a hazardous substance or pollutant, or any other violation of local, state, 0
W
or federal law, ordinance, code, rule, regulation, order or decree relating to the a
W
generation, storage, production, placement, treatment, release or discharge of any
contaminant, LESSEE shall report such violation to all applicable governmental 0
U
agencies having jurisdiction and to LESSOR, all within the reporting period of the W
W
applicable agency.
E
c. Should the buildings which extend onto the leased Premises be substantially
9
Packet Pg. 2921
2142229
1.
11413 237*7 Pg# 1925
damaged for any reason and cannot be repaired but must, pursuant to law, be
removed and replaced by structure(s) meeting laws in existence at the time of such
E
occurrence, this ROW LEASE shall be automatically terminated. 0.
.2
2 E M Upon termination or expiration of this ROW
LEASE, LESSEE shall. surrender the leased Premises to LESSOR. In the event no
further use of the leased Premises or any part thereof is needed, LESSEE shall give
written notification to LESSOR at least six (6) months prior to the release of
any or all of the leased Premises. Notification shall include a legal description and
an explanation of the release. The release shall only be valid if approved by LESSOR >%
pp .2
through the execution of a release of the ROW LEASE instrument with the same
.formality as this ROW LEASE. Prior to surrender of all or any part of the leased
Premises, a representative of the Division of State Lands shall perform an on-site
inspection. If the leased Premises violate conditions set forth in paragraph 8 herein, Z
LESSEE shall pay all costs necessary to remove any unauthorized improvernents or
00
changes.
25. Fee title
0
to the leased Premises is held by LESSOR. LESSEE shall not do or permit anything
to be done which purports to create a lien or encumbrance of any nature against
the real property contained in the leased Premises including, but not limited to,
mortgages or construction liens against the leased Premises or against any interest of Z
LESSOR therein. Notwithstanding, LESSEE shall be entitled to mortgage its leasehold 2
interest in the Pre mices provided such mortgage interest is subordinate to the terrns and
conditions of the ROW LEASE. LESSEE shall provide the documents to LESSOR (n
(n
thirty (30) days before closing to verify that the appropriate language is in the proposed <
0
documents.
Z
W
26.LABILAL J Li�AI r Y : If any term, covenant, condition or provision of this M�N
Z
ROW LEASE shall be ruled by a court of competent jurisdiction to be invalid, void, or 0
unenforceable, the remainder shall remain in full force and effect and shall in no way U
W
(n
be affected, impaired.or invalidated. <
W
27. �, AND_ Execution of this ROW LEASE
0
in no way affects any of the parties' obligations pursuant to Chapter 267, Florida
Statutes. The collection of artifacts or the disturbance of archaeological and historic W
a
sites on state-owned lands is prohibited unless prior authorization has been obtained W
0
from the Department of State, Division of Historical Resources. U
W
W
4i
28.SD_YJBZLCANJY_311ffl���D : This ROW LEASE does not authorize
the use of any lands located waterward of the mean or ordinary high water line of E
10
Packet Pg. 2922
FP.16.d
T 2142229
E-11(1i 241377 p,# 19265
any lake, river, stream, creek, bay, estuary or other water body or the waters or
the airspace the.reabove.
E
0.
.2
29.D_TjELLLA'jf,_ I2 AI This ROW LEASE is executed in duplicate originals
each of which shall be considered an original for all purposes.
30.f,Z_TIHE_VliD_E_HS_T_A_N,D_IM: This ROW LEASE and the exhibits attached
hereto set forth the entire understanding between the parties and shall only be
amended.with the prior written approval of LESSOR.
31,hjALNjENAN_(X..QYjM_rHQ3Y�A�, T : LESSEE shall maintain the real
property contained within the leased Premises in a state of good condition
including, but not limited to, keeping the leased Premises free of trash or litter and
meeting all building and safety codes in the location situated. z
I-
Ir-
32. j IBC s This ROW LEASE shall be governed by and 00
interpreted according to the laws of the State of Florida and venue for any action arising
under this ROW LEASE shall be in Monroe County, Florida. The parties agree to U
U
mediate any disputes under this ROW LEASE, and further agree that it is not subject to 0
arbitration.
33. NELjjJjN_jLAEjjQn: Articles, subsections and other captions contained in this
z
ROW LEASE are for reference purposes only and are in no way intended to describe, <
interpret, define or limit the scope, extent or intent of this ROW LEASE or any 2
z
provisions thereof.
34. NOTICES. All notices given under this ROW LEASE shall be in writing and shall be
0
served by certified mail including, but not limited to notice of any violation served
pursuant to Sec. 253.04, Florida Statutes,to the last address of the party to whom notice z
is to be given, as designated by such party in writing. LESSOR, LESSEE, and SUB- z
0
LESSEE,hereby designate their addresses as follows:
LESSOR:
County Administrator
0
1100 Simonton Street
Suite 205
Key West, Florida 33040 0
LESSEE:
Key Marina Development, LLC
E
5 2 Riley Road, Unit .155
.0
Packet Pg. 2923
FP.16.d
Dw.-# :2142229
1`1104 2137*7 P0 1927 gj
Celebration,Florida 34747
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0.
.2
SUB-LESSEE:
Florida Keys Quality Foods,Inc.
125 Milano Drive
Islamorada, Florida 33036
35.JURY TRIAL. In the event of a dispute, all parties hereto agree to waive the right
to a jury trial.
36. ATTORNEY'S FEES AND COSTS. The LESSOR, LESSEE, and any
subsequent SUB-LESSEE agree that in the event of any cause of action or Z
administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this lease, the prevailing party shall be entitled to 00
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an
award against the non-prevailing party, and shall include attorney's fees, court costs,
investigative, and out-of-pocket expenses in appellate proceedings. Mediation 0
proceedings initiated and conducted pursuant to this ROW LEASE shall be in
accordance with the Florida Rules of Civil Procedure and usual and customary
procedures required by the Circuit Court of Monroe County.
Z
37.BINDING EFFECT. The terms, covenants, conditions, and provisions of this
ROW LEASE shall bind and inure to the benefit of the LESSOR and LESSEE and their
respective legal representatives,successors, and assigns.
0
38.AUTHORITY. Each party represents and warrants to the other that the execution,
Z
delivery, and performance of this ROW LEASE have been duly authorized by all W
(n
necessary County and corporate action,as required by law. Z
0
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12
Packet Pg. 2924
I:w.-N :2142229
mks 21377 1119101 1928
IN �3
TI° ° I1"&S' WITEIU,017,1 flee par tiles bereto have set their hands and Burls the dkiy
and above wfitten, M
SE BOARD OF COUNTY(, -MISS10
° �": ;�E tiTy "..m om. F'' (,:NRC)
_.. __ ..._.. o .. _ ..
M
WITNESSES, KEY MARR4AT T : dL " -1 rT,L]G:C
LESSEE
_m.. ._ _.. w . .. _... .... .........
.. :._. x ..._._...w.. .._ _ ..... ._.._.---
Print c
_.-._._.._-._.+ _.... _ . _... _.w .. _...........
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. ,
Print Name' u
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ini,Islam
sio RUE COUNTY ATTORNEYS OFFICE
JCR,R16Y D A.T FO U
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PATRICIA EABLES
ASSISTANT COUNTY ATTORNEY
DATE: 0
13
Packet Pg. 2925
:21,42229
Ellol< 2+377 Pg# 1929
�3
IN WITNIESS WHE�11 IRE OF, the parties hereto have set tl'xei° hands and seals I day
,a above written,
�$ a "m g m� pq ,ry q%�y�, BOA �: Off° COUNF °"COMMISSION ^� �
N �1 ✓S ' � hw� � N.. '4.w"IXYb, ritt..,ntlM.%#.Yw.,AI�'&i,�, FLORIDA M
a
ESSI
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�. ._ ...._... _.__.. ..._ . W...... _ 00
BY" Ir-
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Print Name"
WITNESSES.- FLORIDA KEYS QUALITY 1`001)S, INC,
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'...: . .��� rint�a^aa
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.10c�,Print Nami
ONROE COUNTY ATTORNEY°S OFFICE
ROyED s To oR
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PATRICIA EABLES
ASSISTANT COUNTY ATTORNEY
DATE: 1 17
13
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KEY MARINA DEVELOPMENT
PROOOS' ED, SITE i pl
xhl'6it Ar Packet Pg. 2927
SKETCH AND DESCRIPTION
A PORMON'OF AMENDMENT TO LEASE
(O.R.S.2M,PG.'i'34 M.C.R.)
KEY LARGO.MONROE CONTY,FLORIDA 91
SURVEYOR'S NOTES: c1IM 1377 2Pg
r�Icli 2�377 1 g1# 1931 >
1. Reproductions of this Sketch are not valid without the signature and the original raised seal of
a Florida licensed surveyor and mapper.
2. No Title Opinion or Abstract to the subject property has been provided. It is possible that
there are Deeds, Easements. or other Instruments (recorded or unrecorded) which may affect 2
the subject property. No search of the Public Records has been mode by the Surveyor,
3. The land description shown hereon was prepared by the Surveyor. .�
4. Bearings shown hereon are based on the adjoining plat of KEY LARGO NORTH. recorded in Plat
Hook 7. Pogo 22 of the Public Records of Monroe County, Florida with the northeasterly
oo
right—of--way line of Second Avenue having a bearing of N 44'37'16" W.
5. Data shown hereon was compiled from Instrument(s) of record and does not constitute a
boundary survey.
6. Abbreviation Legend: F.B. - Field Book; LB. - Licensed Business; M.C.R. - Monroe County
Records; No. = Number; O.R.B. - Official Records Book; P.B. - Plot Book; PG. - Page; P.L.S.
Professional Land Surveyor; P/0 - a Portion of; P.O.B. = Point of Beginning; P.O.C.
Point of Commencement; S.F. - Square Feet.
CERTIFICATION:
I HEREBY CERTIFY that the attached Sketch and Description of the hereon described property is true
and correct to the best of my knowledge and belief as prepared under my direction. I FURTHER W
CERTIFY that this Sketch and Description meets the Standards of Practice set forth in Chapter
W--17, Florida Administrative Code, pursuant to Section 472-027, Florid ?Stotutes.
I/ (n
Date: __ I G ;m f
K CkE-A--T'OW, P.L.S.
Florida Registration No. 5328
AVIROM & ASSOCIATES, INC.
L.B. No. 3300
NOT VAUD WITHOUT SHEETS 1-8 U
REVISIONS AWRON d ASSOCIAT S,INC. JOB#: 9881.E
oe'&Assp� SURVEYING&MAPPING SCALE: 1-=W
3tJ$iN 2ridAtiFJVt1E sum 102 CJA'rE; 12AJT13016 �
a 9 BOCA ROCK FLOR=3Ji32 BY: S.R.L.
(01)392-M.PAK(SPI=4-712$
WVAWA7 coat C ;SAM.
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S imr 1 OF 3
Exhibit" B, Page 1 of 3
Packet Pg. 2928
U
SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT TO LEASE
(ORB.2M9,PCB.i634,WC.R.)
KEY LARGO,MONROE COUNIY,FLORIDA 0.
r1t:,,:# 2142229
Blot 2377 Pg# 1932 >
LAND DESCRIPTION:
a
A portion of an Amendment to tease, as recorded in Official Records Book 2539, Page 1634, of
the Public Records of Monroe County, Florida, described as follows:
A portion of Second Avenue adjacent to Lot 1, Block 4, MANDALAY, according to the Plot
thereof, as recorded in Plat Book 1, Page 194, of the Public Records of Monroe County, Florida,
described as follows:
COMMENCE at the intersection of the centerline of sold Second Avenue with the centerline of East
Second Street, according to said Plot; thence S 4437'16" E along the centerline of said Second
Avenue, a distance of 25.00 feet to a point on the southwesterly projection of the southeasterly
right—of—way line of East Second Street; thence N 45'17'46" E along said southwesterly projection z
of East Second Street, 9.60 feet to a line being 20.40 feet southwesterly of and parallel with the
northeasterly right—of—way line of said Second Avenue, said line also being the southwesterly
limits of said Amendment to Lease; thence S 4437'16" E along said parallel fine and sold
southwesterly limits of said Amendment to Lease, 19.99 feet to a point on the southeasterly
limits of a proposed cul—de—sac and a point on o non—tangent curve, concave to the east,
having a radius of 20.75 feet and a central angle of 17tO'O6" (a radial line bears
S 75`05'47" E from said point), said point also being the POINT OF THE Bl:GtiVNING; thence
northerly along sold southeasterly limits of proposed cul-de—sac along the arc of and sold
non—tangent curve, a distance of 6.28 feet; (the next three courses and distances being along
said southeasterly limits of proposed cul—de—sac) thence N 47`2106" E, 3.52 feet; thence
N 4327'45" E. 3.27 feet to a point on a non-tangent curve, concave to the northwest, having a
radius of 50.00 feet and a central angle of 10'56'18" (a radial line bears S 482443" E to sold
paint); thence northeasterly along the arc of said non--tangent curve a distance of 9.55 feet to
the northeasterly line of said Amendment to Lease and a point of cusp with a non—tangent
curve, concave to the northeast, having a radius"of 25.00 feet and a central angle of 2D'34'30"
(a radial I'ne bears S 65'5714 W from sold point); thence southeasterly along said northeasterly
line of Amendment to Lease and the arc of said non—tangent curve, a distance of 8.98 feet to
a point of tangency, thence S W37'16" E along sold northeasterly line of Amendment to Lease
also being said northeasterly right—of—way line of said Second Avenue, a distance of 151.90 feet
to the southeasterly limits of sold Amendment to Lease; thence S 45'2VW W along sold cis
southeasterly limits of sold Amendment to Lease, a distance of 20.40 feet to sold line being
20.40 feet southwesterly of and parallel with the northeasterly right—of-way line of sold Second U
Avenue and sold southwesterly limits of said Amendment to Lease; thence N 4437'16" W, along
sold parallel line and said southwesterly limits of sold Amendment to Lease, a distance of 156.84 (n
feet to the POINT OF BEG;NNING.
Sold lands lying and situate In Key Largo, Monroe County, Florida, containing 3,249 square feet
(0.075 acres), more or less.
NOT VALiD WITHOUT SHEETS 1-3 U
REVISIONS AWROM 8 ASSOCIATES,JNC JOB* 9881.5
ads AS$* SURVEWIVG&MAPPING SCALE I*xs W
50&W.24dAV9rNuf Sum roe DAM 17lp7MS �
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� — Exhibit: H, Page 2 of 3
Packet Pg. 2929
0 P.16.d
1:1m.-N :21,422.29
Idol 24377 Pq# 1933
Ift
SKETCH AND DESCR1PilC}N
A PORTION OF AMENDMENT TO CEASE
(0.R9.2p ,PG.'!o,u"M.C.R.)
KEY LARGO,MONROE:COUNTY,FLORIDA
`.
50_ 0.
i 0 56 18 __....... ,. 0 30 50
�, �
C®9.55' ��` ��•��� `� � _ GRAPHjc scAc>=IN FEET'
N 43 27 45 E �,� soUTHEASTERLY
3.27' LIMITS PROPOSED
c$ , CUL-DE—SAC
N4702�ie'06"E 3.52' ` POINT OF CUSP
`, y
♦ ! ��irftf'�
roP.O.C. °1
� �.
IN TERNE _ Ir
CENTERLINE OF �= C400SECOND AVENUEAND q7•d'• �
EAST SECOND 57RTE �` ♦`� L-=8.98'O � �s
S . ~� os,� Eihia;lERt.Y �►�
44'37'16 E 19.99 NE OF LIE AMENDMENT
StK)7HWESIEER.Y LIMITS TO LEASE
AMENDMENT 70 EEASE . ;t� (O.R.9. 2539/16M M.C.R.)
{O.R.e. 2939/1634 M.QR.) '�
R=20.75' P.O.B. `.
L 6.28 '�, 4, ����o
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20.40' SOl1TELWESiERLY �Z.
OF AND PARALLELWITH `lam
NORINEASTERI.Y
RIGHT--OF-WAY cZ
SECOND AVENUE: n Zl. vG 1
NOT VALID WITHOUT SHEETS 1-3 0
REVISIONS AVIROM&ASSOCIATES,ING 9881-6
snsSO SURVEYING&MAPPING WALL- ru3c,
+r v„ti W I IndAYENU$SURE102 DATA Im712618 �
Q BOLA RATON.FLORUM 33432 BY: SIi L
TEL(Sat)39 2$R.''FAX(WI)3"7125
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Exhibit: B, Page 3 of 3 1'10,IdR01= i'OUNTY
CIFFICIAL RECORDS
Packet Pg. 2930