03/20/2007 Agreement Deep 1635227 63/30/2007 4:34PM
Filed L Recorded in Official Records of
MONROE COUNTY DANNY L. KOLHAGE
This Instrument Prepared By: Deep 1635227
Malcolm J. Pitchford, Esq. BAP 2283 POI 986
Abel Band,Chartered
P.O. Box 49948
Sarasota, FL 34230-6948
AGREEMENTS RELATING TO LEASEHOLD MORTGAGE
This agreement (the "Agreement") is entered as of the last date set forth on the signature
page hereof by and among Monroe County ("Owner"), and Overseas Redevelopment Company,
LLC, a Florida limited liability company ("Tenant") and Branch Banking and Trust Company, a
North Carolina banking corporation("Mortgagee").
SECTION 1. RECITATION OF FACTS.
•
1.1 Owner holds fee simple title to the real property located in Monroe County,
Florida, described on Exhibit "A"annexed hereto(the"Property").
1.2 Owner and Tenant have entered into that certain unrecorded Long-Term Ground
Lease Agreement dated July 19, 2006 (the "Lease"). The Lease provides, in pertinent part, for
an initial term of ninety-nine(99)years.
1.3 Concurrently herewith, Tenant has executed and delivered to Mortgagee that
certain Modification and Restatement of Mortgage and Security Agreement (Substitution of
Leasehold in Lieu of Fee) (the "Mortgage"). The Mortgage encumbers, inter alia, the leasehold
interest of Tenant in the Lease.
1.4 Mortgagee has agreed to allow the transfer of the Property by Tenant to Owner
and to permit the Tenant to substitute Tenant's leasehold interest under the Lease in place of
Tenant's fee ownership interest in the Property as heretofore encumbered by that certain
Mortgage and Security Agreement dated the 30th day of June,2005,and recorded on July 7,2006
in Official Records Book 2130, Page 1330, et seq. of the Public Records of Monroe County,
Florida, which said Mortgage shall secure and continue to secure the loan heretofore made by
Mortgagee to Tenant as evidenced by that certain Promissory Note dated June 30, 2006 in the
original principal amount of $6,500,000.00 (as heretofore modified of even date herewith to
secure an additional advance of$1,000,000.00), all of the foregoing on the express condition that
Owner agrees to certain provisions and conditions concerning the Lease as hereinafter set forth.
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SECTION 2. AGREEMENTS OF OWNER.
2.1 There shall be no cancellation, modification, amendment, surrender or acceptance
of surrender of the Lease, without the Mortgagee's prior written consent.
2.2 Owner shall, upon serving on Tenant any notice of default or any other notice
under the Lease simultaneously serve a copy of such notice upon the Mortgagee, and no notice
of such default shall be deemed to have been duly given until a copy thereof has been so served.
The Mortgagee shall thereupon have 15 business days (the "Cure Period") to remedy or cause to
be remedied the defaults complained of, and Owner shall accept such performance by or at the
instigation of the Mortgagee as if such performance had been accomplished by Tenant.
2.3 For the purpose of this Section 2, no default by Tenant in the performance of
work to be performed, acts to be done, or conditions to be remedied, which cannot reasonably be
completed within the Cure Period, shall be deemed to exist, if steps, in good faith, have been
commenced promptly by Tenant or Mortgagee to rectify the same, and are prosecuted to
completion with diligence and continuity.
2.4 Notwithstanding any other provision herein, Owner may not terminate the Lease,
or permit the same to be terminated, or terminate Tenant's right of possession of the Property,
while the Mortgage remains in effect, if. within the Cure Period, the Mortgagee has paid Owner
all rent and additional rent and has complied, or taken reasonable steps to comply, with the
requirements of the Lease, so as to cure the default or defaults claimed by Owner. In such case,
any notice of termination by Owner shall be void.
2.5 If Owner elects to terminate the Lease, by reason of any uncured default of
Tenant, the Mortgagee shall not only have and be subrogated to all rights of Tenant with respect
to curing such default, but shall also have the right to postpone and extend the specified date for
the termination of the Lease, as fixed by Owner in its notice of termination, for a period of not
more than six months, if: (1) the Mortgagee cures any existing default, and meanwhile pays the
rent and additional rent and performs all of Tenant's other obligations under the Lease; (2) no
further defaults accrue during such extended period; or(3) if the nature of the default is such that
the Mortgagee is unable to take reasonable steps to cure the same, the Mortgagee proceeds to
acquire Tenant's interest in the Lease, by foreclosure of its Mortgage or otherwise, in which
event the Lease shall continue in effect for so long as the Mortgagee is diligently seeking to
acquire Tenant's interest in the Lease through foreclosure or otherwise.
- 2.6 In the event that the Mortgagee shall acquire Tenant's interest in the Lease, by
foreclosure of its Mortgage or otherwise, Owner agrees that all of Tenant's rights and benefits in
and under the Lease shall inure to the benefit of the Mortgagee (and to Mortgagee's successors
or assigns). Further, Owner agrees that all of Tenant's rights and interest in and to those certain
thirty transferable ROGO rights appurtenant to, or benefiting the Property, shall, in the event that
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the Mortgagee (or its successors or assigns) acquires the Tenant's interest in the Real Property,
shall inure to and for the benefit of the Mortgagee (or its successors or assigns).
2.7 The name of the Mortgagee may be added to the "Loss Payable Endorsement" of
any and all insurance policies required to be carried by Tenant pursuant to the Lease. Owner will
make available jointly to Tenant and to Mortgagee, all insurance or condemnation proceeds to
which Tenant may be entitled hereunder, for purposes of restoration of the Property.
2.8 Owner, within 10 days after a written request by Tenant or Mortgagee, shall
furnish a written statement, duly acknowledged, that the Lease is in full force and effect and that
Tenant is not in default pursuant to the Lease. If there is a default, the statement shall specify the
nature thereof claimed by Owner.
2.9 Owner shall notify Mortgagee if Tenant fails to exercise any extension or renewal
option pursuant to the Lease. Mortgagee (provided that Tenant's indebtedness to Mortgagee has
not been fully paid) may exercise any such option on Tenant's behalf, within 10 business days
after receipt of such notice.
SECTION 3. AGREEMENT OF TENANT. Tenant hereby agrees to all of the terms,
covenants and conditions set forth in Section 2 above.
SECTION 4. MISCELLANEOUS.
4.1 Any notice required or given hereunder shall be in writing and shall be delivered
either by personal delivery, delivery by courier service, or by deposit with the United States
Postal Service or any official successor thereto, certified mail, return receipt requested, with
adequate postage prepaid,addressed to the appropriate party at the address set forth below. Such
notice shall be deemed delivered at the time of personal delivery or, if mailed, when it is
deposited as provided above. Rejection or other refusal by the addressee to accept the notice
shall be deemed to be receipt of the notice on the third day after the date postmarked.
4.2 This Agreement and the Lease contains all the terms, promises, covenants,
conditions and representations made or entered into by and between the parties hereto relative to
the subject matter hereof and no modification hereof shall be valid or binding unless in writing
and executed with the formalities hereof.
4.3 If any term, covenant, condition or provision of this Agreement shall be held to
any extent to be invalid or unenforceable under applicable law, the remaining terms shall not be
affected thereby,but shall remain in full force and effect.
4.4 This Agreement shall be construed under the laws of the State of Florida. The
venue of any action or suit brought in connection herewith shall be in Monroe County, Florida.
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4.5 No modification, amendment or renewal of the Mortgage shall affect the
validity of this Agreement. This Agreement shall be deemed to be terminated and of no
further force upon the recordation of a satisfaction of the Mortgage in the Public Records
of Monroe County, Florida.
4.6 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
4.7 Any party failing to comply with the terms of this Agreement and any
non-prevailing party in any litigation hereunder will pay all expenses, including
reasonable attorneys' fees, paralegal, legal assistant, and similar fees and costs, including
those incurred on the appellate level, incurred by any other party to this Agreement as a
result of such failure.
Dated as set forth below.
WITNESSES: ff Monroe County
1A' l /IA Let e ,//i74���/III !� f
Address. t %G-t--.n-6:..._ 1.Print
NamePia 1 bt,1 t. .L 4`a hi Print: Mario Di Gennaro
As its: Mayor
� ' Date: March 20. 2007
A ess: c as
rint Name: :J 4....tj ,2.�.gti= r
t "Owner"
Overseas Redevelopment Company,
LLC, a Florida limited liability
company
By: H-Try, LLC, a Florida limited
liability company, as its Manager
Print Name: /�
By: r1 s.�
Scot G. Oropeza, as Managing Member
Print Nam t :9//4 / Date: PI- aY-o i
Address: 3158 Northside Drive
Key West,FL 33040
"Tenant"
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Branch Banking and Trust Company,
a North lina bankin ration
Print Name: e Print 4 777vOre
As its: 5✓P
Date: 3—30—C 7
Address:1010 Kennedy Drive. Suite100
Print Name: Sheryl A Berman Kev West, FL 33040
"Mortgagee"
STATE OF FLORIDA
COUNTY OF I11C nV-CL--
The foregoing instrument was acknowledged before me this 4 C' day of
it :i; "tn , 2007,by f,1f)r; � i : -a-n0aft:. , as the I-1149Jr
,of Monroe County. _
TAM RALUNDSTROM
+" ' Nary Pubic.Slob el Rondo •
` /J. 1t(, - 'i'c�j"l ✓✓
itW Cominto Bra Jul 4,1000
, cq1 00D Print Name I .3ntara /.i•u1ti*i-z s1
"•�T' Bwa4tNnailNow�r Notary Public
/ My Commission Expires:)60J. !/20:7
Personally Known =(OR) Produced Identification_
Type of identification produced
DocI 1635227
BkIS 2283 Pfl 991
STATE OF FLORIDA
COUNTY OF
Th5,foregoing instrument was acknowledged before this or d y of
"r'V\ , 2007, by Scott G. Oropeza, as th g Member oqf H-Try,
LW, a Florida limited liability company, as the Manage erseas Redev4lopnient
Company, LLC, a Florida limited liability company,on behalf co ies.
of Publ c
t Name:
yC s
zY; SETH Y.PELLMAER
Personally Known ✓ (OR)Produced Identification " \Vi1 Y0M' TH •ebb a Fine
Type of identification produced R urro"1Mi1reeoleY1pr1
`wq�.;� C�YIbnI5D O03E1
rissoonworaisei
STATE OF FLORIDA
COUNTY OF MONROE
��� /rThe foregoing ms m, ntI ,was acknowledged before me this day of
%�/
Iic ♦cik. ,2007, by Dale L6-ctr4-tne2 , as the 3VQ
, of Branch Banking and Trust Company, a North Carol I - 'ng corporation,
behalf of the bank. tip/t—
on
SHER6. 9E996
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naval iA"nOWr'i01�ae.nm Notary Public
My Commission Expires: _
Personally Known ---(OR) Produced Identification
Type of identification produced
(MJP/js1N13970-53)
Deers 1635227
BAP 2283 PO 992
EXHIBIT "A"
On the Island known as Stock Island and being block 38, containing 20 lots, according to
GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in Plat Book 1, Page
55, Monroe County, Florida records.
ALSO
That portion of First Avenue lying and being between Block 38 and 39, GEORGE L.
McDONALD'S Plat of a part of Stock Island recorded in disclaimed by Resolution No.
33-1973, Board of County Commissioners, recorded in Official Records Book 537, Page
937, of the Public Records of Monroe County, Florida.
MONROE COUNTY
OFFICIAL RECORDS