HomeMy WebLinkAboutR-94-0193j
J
WHEREAS, the United States Department of Housing and Urban
Development ("HUD") has established the Section 108 Loan program to assist projects
located in the Community Development target areas; and
WHEREAS, repayment of the HUD Section 108 Loan e'Loan") shall be
made by the revenues generated from the Project; and
WHEREAS, the City will use its future Community Development Block
Grant allocations as collateral for the said loan; and
WHEREAS, the City Commission, pursuant to Resolution No. 92-812,
authorized the City Manager to submit an application ("Application") to HUD for a $2.5
Million loan under the HUD Section 108 Loan program; and
WHEREAS, said Application was approved by ' HUD on September 8,
-1993;and
WHEREAS, the Bank of Tokyo, Ltd. ("Bank") currently holds a mortgage
on the property where the Project is contemplated; and
WHEREAS, a separate agreement needs to be executed amongst the
Bank; Citadel and City of Miami in connection with the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
SECTION 1. The recitals and findings contained in the Preamble to this
Agreement are hereby adopted by reference thereto and incorporated herein as if fully
set forth in this Section.
SECTION 2. The City Manager is hereby authorized to execute a Loan
Agreement, Mortgage/Security Agreement, and Promissory Note, in substantially the
attached forms, with the Citadel Arena Corporation Inc., for a $2.5 million loan under the
-2- 94- 193
United States Department' of Housing and
Urban Development Section 108 Program,
and an agreement, in substantially the attached form, with the Citadel Arena Corporation
Inc. and the Bank of Tokyo, Ltd., for the
purpose of financing the development 'of; a ,
Restaurants/Sports Bar Complex, In the Southeast Overtown/Park West Community
Redevelopment District, at approximately
Northwest 5th Street and Northwest 1st
Avenue; ,Miami, Florida.
SECTION 3. This Resolution
shall become effective immediately upon its
adoption.
PASSED AND ADOPTED this 24th day of
March ,1994.
STE HEN P. CLARK, MAYOR
ATTEST:
ATTY HIRAI, CITY CLERK
PREPARED AND APPROVED BY:
APPROVED AS TO FORM AND
CORRECTNESS:
LINDA K. KEARS
A. QUI JO , III
ASSISTANT CITY ATTORNEY
CITY ATTO Y
23-Feb-94
02:33 PM
..,3_
94- 193
I'
j
MORTGAGE AND SECURITY AGREEMENT
This Mortgage made on this day of , 19 ,
by and between CITADEL ARENA CORPORATION, a Florida Corporation
hereinafter called, "Mortgagor", whose address is 2000 South'
Bayshore Drive, #62, Miami, Florida 33133 in the City of Miami,
County of Date and State of Florida, and the City of Miami,- a
Florida Municipal Corporation, acting by and through the Director
of the Department of Development and Housing Conservation or its
successors, hereinafter called "Mortgagee."
-WITNESSETH, that to secure the payment of an indebtedness in
the principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) with interest thereon, which shall be payable in
accordance with a certain Promissory Note, bearing even date
herewith (the "Note"), a true and correct copy of which,
exclusive of the signature of the Mortgagor, is attached hereto
and made a part hereof as Schedule "A", and all other
_indebtedness which the Mortgagor is obligated to pay to the
Mortgagee pursuant to the provisions of the Note and this
Mortgage', the Mortgagor hereby grants, conveys and mortgages to
the Mortgagee:
ALL that certain lot, piece or parcel of land situate in the
City of Miami, County of Dade, State of Florida commonly known
and legally described as follows:
SEE ATTACHED ADDENDUM
TOGETHER with all and singular tenements, hereditaments,
appurtenances thereto and all the estate and rights of the
94- 193
Mortgagor..in and to such property or in any wise appertaining
thereto, all buildings and other structures now or hereafter
...
thereon erected or installed, and all fixtures and articles of
t
personal property now or hereafter attached to, or used in the
t
f
operation of, and such land, buildings, or structures which are
necessary to the complete use and occupancy of such buildings or
structures for the purposes for which they were or are to be
i
erected or -installed, including, but not limited to, all heating,
t
r
plumbing, bathroom, lighting, cooking, laundry, ventilation,
refrigerating, incinerating and air conditioning equipment and
fixtures, and all replacements thereof and additions thereto,
whether or not the same are or shall be attached to such land,
i
buildings or structures, in any manner;
t
TOGETHER with any and all awards now or hereafter made for
the taking of the property mortgaged hereby, or any part thereof,
if the taking thereof shall affect the operation of the property
(including any easement) by the exercise of the power of eminent
domain,,including any award for change of grade of any street or
other roadway, which awards are hereby assigned to the Mortgagee
and are deemed a part of the property mortgaged hereby, and the
Mortgagee is hereby authorized to collect and receive- the
proceeds of such awards, to give proper receipts and acquittances
therefore and to apply the same toward the payment of the
indebtedness secured by this Mortgage, notwithstanding the fact
that the amount owing thereon may not then be due and payable;
and the Mortgagor hereby .agrees, upon request, to make, execute
and deliver any and all assignments and other instruments
f
94- 193
-a-
- t
aF
sufficient for the purpose of assigning each such award to the
Mortgagee, free, clear and discharged of any encumbrances_ of any
kind or nature whatsoever; and
TOGETHER with all right, title and interest of the Mortgagor
in and to the land lying in the streets and roads in front of and
adjoining the above described land (all the above described land,
buildings, other structures, fixtures, articles of personal
property, awards and other rights and interest being hereinafter
collectively called the "Mortgaged Property");
TO HAVE AND TO HOLD the Mortgaged Property and every part
'thereof unto the Mortgagee, its successors and assigns forever
for the purposes and uses herein set forth.
AND the Mortgagor further covenants and agrees with the
-Mortgagee, as follows:
ARTICLE I
INDEBTEDNESS SECURED
Section 1.01. The Mortgagor will promptly pay the principal
of and interest on the indebtedness evidenced by the Note, and
all other charges and indebtedness provided therein and in this
Mortgage. As additional security, in order to effectuate,
complete or perfect the obligation of the Mortgagor under his
mortgage, Mortgagor has executed that certain Guaranty Agreement,
that certain Assignment of Lease and Rents and that certain
Pledge of Stock Agreement executed of even date herewith.
Section 1.02. The Mortgagor will promptly pay when due, as
hereinafter provided, all, ground rents, if any, and all taxes,
assessments, garbage, waste, water rates and other governmental
94- 193
-3-
{
fees, charges, fines and impositions, of every kind and nature
whatsoever, now or hereafter imposed on the Mortgaged Property,;
or any part thereof, and will pay when due every amount of
indebtedness secured by any lien to which the lien of this
.,Mortgage is expressly subject.
Section 1.03. This Mortgage and the Note were executed and,
delivered to secure moneys advanced to the Mortgagor by the
Mortgagee as or on account of a loan evidenced by the Note for
the purpose of making the improvements described or referred to
in the Construction Contract dated , in, to
or on the Mortgaged Property, and for such other purpose, if any,
described or referred to therein, which improvements are
hereinafter collectively called "Improvements°. The Mortgagor
shall make or cause to be made all the Improvements. Ifthe
construction or installation of the Improvements shall be.
discontinued at any time for any reason, other than strikes,
lock -outs, acts of God, fires, floods, or other similar
catastrophes, riots, war or insurrection, the Mortgagee, after
due notice to the Mortgagor, is hereby authorized (a) to enter
upon the Mortgaged Property and employ any watchman, protect the
Improvements from depredation or injury and to preserve and
protect such property, (b) to carry out any or all then existing
contracts between the Mortgagor and other parties for the purpose
of making any of the Improvements, (c) to make and enter into
additional contracts and incur obligations for the purposes of
completing the Improvements pursuant to the obligations of the
Mortgagor hereunder, either in the name of the Mortgagee or the
94- 193
!
-a-
r
Mortgagor and (d) topayand discharge all debts, obligations and
liabilities incurred by reason of any action taken by the
Mortgagee as provided in this Paragraph, all of which amounts so
paid by the Mortgagee, with interest thereon from the date of
each such payment, at the maximum legal rate per annum permitted
by law shall be payable by the Mortgagor to the Mortgagee on
demand and shall be secured by this Mortgage and be deemed and
considered as additional advances under this Mortgage.
Section 1.04, The Mortgagor will not voluntarily create, or
permit or suffer to be created or to exist, on or against the
Mortgaged Property, or any part thereof, any lien superior to the
lien of this Mortgage, exclusive of that certain Mortgage and
Assignment Modification Assumption Agreement dated
and that certain Second Modification of
-Mortgage and Assignment Agreement, executed by Mortgagor in favor
of. the Bank of Tokyo, Ltd. (the "Bank"), to which this Mortgage
is expressly subject, and will keep and maintain the same free
from the claims of all parties supplying labor or materials which
will enter into the construction or installation of the.
Improvements.
ARTICLE II
ADDITIONAL SECURITY GRANTED BY THIS MORTGAGE
Section 2.01. Mortgage Constitutes a Security Constitutes a Security Agreement It
is the intent of the parties hereto that this Mortgage instrument
shall constitute a Security Agreement within the meaning of the
Florida Uniform Commercial Code with respect to so much of the
property encumbered hereby as is considered or as shall be
193
-5-
r
N
5, _ } � >�.'t��i ...� t ,. ,.. •: is Y :,. �'
.a
determined to bepersonalproperty and all replacements thereof',
substitutions therefor or additions thereto (said,property.being
-sometimes hereinafter referred to as the "Collateral"), and that
a security interest shall attach thereto for the benefit of the
Mortgagee to secure .the indebtedness evidenced by the Note and'
secured by this Mortgage, and all other sums and charges which'
may become due hereunder or thereunder. The Mortgagor agrees to
execute such financing and continuation statements as the
Mortgagee may request. If there shall exist a default under this
Mortgage, the Mortgagee pursuant to the appropriate provisions of
the Florida Uniform Commercial Code shall have the option of
proceeding as to both real and personal property in accordance
with its rights and remedies in respect of the real property, in
`
which, event the default provisions of the Florida Uniform
Commercial Code shall not apply. The parties agree that, in the
event the Mortgagee shall elect to proceed with respect to the
Collateral separately from the real property, unless a greater
period shall then be mandated by the Uniform Commercial Code,
twenty (20) days notice of the sale of the Collateral shall be
reasonable notice. The expenses of retaking, holding, preparing
for sale, selling and the like incurred by the Mortgagee shall be
assessed against the Mortgagor and shall include, but not be
limited to the legal expenses incurred by Mortgagee. The
Mortgagor agrees that it will not remove or permit to be removed
from the Mortgaged Property any of the Collateral without the
prior written consent of. the Mortgagee except as hereinabove
provided. All replacements, renewals and additions to the
94- 193
i
i
-6-
cn
Collateral ,shall be and becomeimmediately subject to the
security interest of this Mortgage and this agreement "and be
covered 'thereby. The Mortgagor shall, from time to time," on
request of the Mortgagee, deliver to the Mortgagee a complete
inventory of the Collateral in such detail as is satisfactory to
the Mortgagee. The Mortgagor warrants and represents that all
Collateral now is and that all replacements thereof, r
S
substitutions therefor or additions thereto, unless the Mortgagee
otherwise consents, will be free and clear of liens, encumbrances
or security interest of others, subject to any superior rights of "
the Bank.
Section 2.02. Assignment of Rents, Issues and Profits
(a) As additional security, Mortgagor hereby unequivocally
And unconditionally assigns, transfers and confers to Mortgagee
any and all leases affecting the Mortgaged Property as well as
the 'right, power and authority, during the continuance of this
Mortgage, to collect the rents, issues and profits of said
Mortgaged Property, reserving unto Mortgagor the right, prior to
any substantial and material-default.by Mortgagor in payment of
any indebtedness secured hereby or in performance of any material
agreement hereunder, to collect and retain such rents, issues and
profits as they become due and payable, and the Mortgagor shall '
not further assign nor encumber the rents, profits and income of
the Mortgaged Property or any part thereof, subject to the right
of the Bank, without the prior written consent of the Mortgagee.
Upon any such default, Mortgagee may after reasonable notice,
either in person, by agent, or by a receiver to be appointed by a
94- 193
-7-
f
, ' t ..'.1
.ems .. ; r •. ..
Y
I
t
court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of
the Mortgaged Property or any part thereof, in its own name sue
for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less -
reasonable costs and expenses of operation and collection,
including reasonable attorneys' fees upon any indebtedness'
secured hereby and in such order as the Court may determine. The
entering upon and taking possession of the Mortgaged Property,
the collection of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice and the enforcement of such right or
remedy by Mortgagee once exercised shall continue for so 'long as
Mortgagee shall elect notwithstanding that the collection and
application aforesaid of such rents, issues and profits of the
Mortgaged Property may have cured for the time the original
default. If Mortgagee shall thereafter elect to discontinue the
exercise of any such right or remedy, the same or any other right
or remedy under this Mortgage may be reasserted at any time and
from time to time following any subsequent default. Mortgagor
agrees to execute an Assignment of Rents and Leases Agreement at
the time of closing. The Assignment of Rents and Leases
Agreement is attached hereto and incorporated as Schedule "B".
(b) In the event that the Mortgagor occupies the
Mortgaged Property or any, part thereof, without paying rent for
the _same, the Mortgagor agrees to peaceably surrender possession
94- 193
-s-
r
4
of such prgperty to the Mortgagee immediately after. any, such
substantial and material' default hereunder, and if the Mortgagor.
remains in possession after such default, such possession "shall
be as a tenant of the Mortgagee, and the Mortgagor shall `pay in
advance, upon demand by the Mortgagee, as a reasonable monthly
3
rentall for the Mortgaged Property occupied by the Mortgagor, an
amount at least equivalent to one -twelfth of the aggregate of the
twelve monthly installments payable in the current calendar year,
_plus the ,actual amount of the annual ground rent, if any, taxes,
assessments, garbage, waste and water rates, other governmental
fees, charges, and insurance premiums payable in connection with
the Mortgaged Property during such year, and upon failure of the
Mortgagor to pay such monthly rental, the Mortgagor may also be
dispossessed by the usual summary proceedings applicable to
tenants:: In the case of foreclosure and the appointment of a
receiver of the rents, the within covenant shall inure to the
benefit of such receiver or any other similar representative of
the Mortgagee.
Section 2.03. Assignment of Contract of Sale of the
Mortgaged Property. All contracts now or hereafter entered into
by Mortgagor- for the sale of the Mortgaged Property or any
portion thereof will be and are hereby assigned to Mortgagee. as
collateral security for the loan evidenced by the Note, and.a
security interest therein is hereby created.
94- 193
-9-
ds sttt7l i,
t
} ARTICLE III
CONDITION OF THE MORTGAGED PROPERTY
Section 3.01. Mortgagor's action Affecting the Mortgaged
Property. No building or other structure or improvement,
fixture or personal property mortgaged hereby shall be removed or
demolished without the prior written consent of the Mortgagee.
The Mortgagor will not make, permit or suffer any alteration of
or,addition to any building or other structure or improvement now
or which may hereafter be erected or installed upon the Mortgaged
Property, except the Improvements required to be made pursuant to
Section 1.03 hereof, nor will the Mortgagor use, or permit or,
suffer the use of, any of the Mortgaged Property for any purpose
other than the purpose or purposes for which the same is now
intended to be used, without the prior written consent of the
Mortgagee.
Furthermore, without the prior written consent of the.
Mortgagee, Mortgagor shall not (a) convey or allow to be conveyed:
or suffer a transfer of title to the Mortgaged Property or any
portion thereof by conveyance or by operation of law; (b) sell,
all or any portion of the Mortgaged Property, or (c) further
encumber the Mortgaged Property or any part thereof or permit any
lien to be created thereon. The Mortgagee shall not unreasonably
withhold its consent to Mortgagor's transfer of the Mortgaged'
Property is contemplated in (a), (b) and (c) herein provided that
(i) the proposed transferee must be acceptable to the Mortgagee
in the reasonable exercise of its judgment, and (ii) there is no
default existing under the Note or this Mortgage or any of the
-10-
94, 193
r
4
other document securing this Mortgage either at the time of the,
request for consent to the transfer or at the time of the
transfer.
t
Section 3.02. Inspection. The Mortgagee, by any of its
agents or, representatives, shall have the right to inspect the'
Mortgaged Property from time to time at any reasonable business
hour of the day after reasonable notice of intent to inspect.
Should the Mortgaged Property, or any part thereof, require
repair, care or attention of any kind not required pursuant to
this Mortgage, which repair, care or attention may be reasonably
determined by the Mortgagee, the Mortgagee may, after thirty.(30)
days noticeto the Mortgagor, enter or cause entry to be made
upon the Mortgaged Property and repair, protect, care for or
maintain such Mortgaged Property, as the Mortgagee may,
reasonably deem necessary, and all costs therefor shall be paid
by the Mortgagee. It is specifically understood and agreed that
any action undertaken by the Mortgagee pursuant to this paragraph
shall not in any manner whatsoever 'be detrimental to the
interests of the Mortgagor, and, in any case, such actions shall
be undertaken without any cost or expense being attributable to
the Mortgagor.
Section 3.03. Maintenance of Mortgaged Property. The
r
Mortgagor will maintain the Mortgaged Property in good condition
and state of repair and will not suffer or permit any waste to
any part thereof excepting normal wear and tear,: and will
promptly comply with all .the requirements of federal, state and
local governments, or of any departments, divisions or bureaus
94- 193
tPIMA
(1
thereof, pertaining to such property or any part thereof;
notwithstanding the foregoing, the Mortgagee specifically
x
approves and authorizes rehabilitation of the properties
encumbered by this Mortgage substantially in conformity with
plans submitted to Mortgagee.
Section 3.04. Destruction of Mortgaged Property. Mortgagor.
`
agrees to give prompt written notice to Mortgagee after damage to
or destruction of the Mortgaged Property or any part thereof (the
"Casualty"). In the event of a Casualty, all proceeds of
insuranceshall be payable to Mortgagee and Mortgagor subject to
rights of the Bank hereby authorizes and directs any ,affected
insurance company to make payments of such proceeds directly to
Mortgagee. Mortgagor after consultation with and upon receipt of
written authorization from Mortgagee will settle, adjust or
compromise any claims for loss, damage or destruction under any
policy or policies of insurance without Mortgagor's consent.
After deducting therefrom all costs and expenses, including
attorneys' fees, incurred by Mortgagor in connection with
settling, adjusting or compromising such claims, Mortgagee shall
distribute the loss proceeds shall be distributed as hereinafter
provided in this Paragraph.
In the event of any Casualty, the proceeds shall be used to
the restoration of the Mortgaged Property subject to such
conditions as Mortgagee shall reasonably determine.
Nothing herein contained shall be deemed to excuse Mortgagor
from repairing or maintaining the Mortgaged Property as provided
herein or restoring all damage or destruction to the Mortgaged
94- 193
-12-
r
Property, 'regardlesswhether or not there are insurance proceeds
available, whether or not such proceeds are sufficient in amount'
or whether_ the allocation or release by Mortgagee of any
insurance proceeds shall not cure or waive any default or notice
of default underthis Mortgage or invalidate any act done
pursuant to such notice. Notwithstanding the foregoing, however,
Mortgagee is entitled to receive such proceeds which are in
excess of the costs of restoration and apply the same to reduce
the indebtedness secured hereby, subject to the rights of the
Bank.
If the Mortgaged Property shall have been sold on
foreclosure of this Mortgage prior to the receipt by the
Mortgagee of such insurance proceeds, the Mortgagee shall have
the right to receive such proceeds to the extent of any
deficiency found to be due upon such sale, with legal interest
thereon, provided a deficiency judgment on this Mortgage shall
have been sought and recovered, together with counsel fees and
the costs and disbursements incurred by the Mortgagee in
connection with the collection of such proceeds. No Casualty
shall in any way excuse the punctual performance of the payment
of the indebtedness under the Note or the performance of any
obligations under the Note or this Mortgage.
Section 3.05. Eminent Domain. In the event damages are
awarded for the taking of, or injury to all or any part of the
Mortgaged Property under the power of eminent domain or
otherwise, all such damages shall be paid to and received by the
Mortgagee to be applied as payment upon such part of the
94- 193
-13-
t
iy- !
x t t 7 �,, 4 :9i F • 'y, Fa #c vi r•>Yc4r tr
indebtedness hereby secured, as the Mortgagee may elect, without
affecting the amount of, or time for payment of, any, other
installments required hereunder, whether to not such indebtedness
to"which such damages may be applied is then due and payable.
ARTICLE IV
INSURANCE, TAXES AND ASSESSMENTS
Section 4.01. (a) Mortgagor will keep all buildings, other
structures and improvements, including equipment, now existing.or
which may hereafter be erected or installed on the land mortgaged
hereby', insured against loss by fire and other hazards, flood,
casualties and contingencies, in such amounts and manner, and for
such periods, all as may be required from time to time by the
Mortgagee, but in no event less than the aggregate amount of all
mortgages, liens and encumbrances on the Mortgaged Property. The
Mortgagor will pay promptly when due, any and all premiums .on
such insurance, and promptly submit to the Mortgagee for
examination receipts or other evidence of such payment as shall
be satisfactory to the Mortgagee. The Mortgagee may obtain and
pay the premium on (but shall be under no obligation to do so)
every kind of insurance required hereby if such premium has not
been paid when due as required by this Mortgage, in which event
the Mortgagor will pay to the Mortgagee every premium so paid by
the Mortgagee. Unless otherwise required by the Mortgagee, all
such insurance shall be effected by Standard Fire and Extended
Coverage Insurance policies, in amounts not less than necessary
to comply with the coinsurance clause percentage of the value
applicable to the location and character of the property to be
-14- 9193
r
r
covered. All such insurance shall be carried in companies
7
approved by the Mortgagee, said approval not to be unreasonably
withheld, whom are duly authorized to do business in Florida and
are rated A:X or better per A.M. Bests' Key Rating Guide, latest
edition and all policies therefore shall be in such form and
shall have attached thereto loss payable clauses in favor of the
Mortgagee and any other parties as shall be reasonably
satisfactory to the Mortgagee. All such policies and attachments
thereto 'shall be delivered promptly to the Mortgagee, unless they.
are, required to be delivered to the holder of a lien of a
mortgage' or similar instrument to which this Mortgage 'is
expressly subject, in which latter event, certificates thereof,
satisfactory to the Mortgagee, shall be delivered promptly to the
Mortgagee. All such policies and attachments shall remain in
operative 'force and effect throughout the term of this Mortgage.
The Mortgagor shall not allow a lapse or modification of such
insurance coverage to occur.
(b) In the event of loss or damage to the Mortgaged
Property, the Mortgagor will give to the Mortgagee immediate
notice thereof by mail, and the Mortgagee may make and file proof
of loss if not made otherwise promptly by or on behalf of the
Mortgagor. Each insurance company issuing any such policy is
hereby authorized and directed to make payment thereunder for.
such loss to the Mortgagor and the Mortgagee jointly, unless the
amount of loss is payable first to the holder of a lien under a
mortgage or similar instrument to which this Mortgage is
expressly subject; and the insurance proceeds, or any part
193
r -15-
thereof, if received by the Mortgagee, shall be applied by the
b
Mortgagee to the restoration or repair of the Mortgaged Property
..
damaged. Notwithstanding ng the foregoing, however, Mortgagee is
entitled to receive such proceeds which are in excess of the
'costs of restoration' and supply the same to reduce the
indebtednesssecured hereby, subject to the rights of the Bank.
In the event of foreclosure of this Mortgage, or of any
transfer of title of.'the Mortgaged Property in extinguishment of
`such indebtedness, all right, title and interest of the Mortgagor
in and to every such insurance policy then in force, subject to
the rights and interest of the holder of any such prior lien,
shall pass to the grantee acquiring title to the Mortgaged
Property together with such policy and appropriate assignment'of
such right, title and interest which shall be made by the
Mortgagor.
Section 4.02. Payment of Assessments and Other Taxes.
Mortgagor agrees to pay when due, and without requiring any
notice from Mortgagee, all taxes, assessments of any type or
nature and other charges levied or assessed against the Mortgaged
Property and provide Mortgagee with proof of payment of same.
Mortgagor agrees to pay and discharge, prior to delinquency, any
claim, lien or encumbrance against the Mortgaged Property which
may be or become superior to this Mortgage, and agrees not to
permit a default or delinquency on any other lien, encumbrance or
charge against the Mortgaged Property, whether inferior or
ql
superior to this Mortgage..
94- 193
-16-
[eJ \
t
p
Section 4.03. Mortgagee Permitted to. Satisfy Mortgagor's
obligations Hereunder. If Mortgagor fails, to pay when due any
claim, lien or encumbrance against the Mortgaged Property,
whether inferior or superior to this Mortgage within any
applicable grace period or bond or otherwise remove same as -a
lien on the Mortgaged Property, or, to pay ,when due, any tax or
assessment or insurance premium, or to keep the Mortgaged
Property in reasonable repair, or if Mortgagor shall commit or
permit waste or if any material obligation of the Mortgagor under
the Note and this Mortgage is not performed when due or if there
be commenced any action or proceeding affecting the Mortgaged
Property or the title thereto or adversely and materially
affecting the zoning or development rights thereof or thereto, or
the interest of Mortgagor therein, including, without limitation,
eminent domain and bankruptcy or reorganization proceedings, then
Mortgagee, at its option, after thirty (30) days notice to
Mortgagor, may pay said claim, lien, encumbrance, tax, assessment
or premium, with right of subrogation thereunder, may make such
repairs and take such steps as it reasonably deems advisable to
prevent or cure such waste, and may appear in any such action or
proceeding and retain counsel therein, and take such action
therein as Mortgagee reasonably deems advisable, and for any of.
said purposes Mortgagee may be advance such sums of money,
including all costs, attorneys' fees at trial and all levels of
appeal and other items of expense as it reasonably deems
necessary. Mortgagee shall not be held accountable for any delay
or failure in making any such payment or in fulfilling any such
9 4- 193
-17-
Y
1
}y'{a
obligations. when delay or failure may result in any loss or any
#
3
additional interest, costs; charges or expense 'otherwise not be
incurred.' _ In order to accelerate the maturity, of the
indebtedness hereby ecured, because of the failure of ;the
f
Mortgagor, prior to delinquency, to pay any tax, assessment,
liability, obligation, insurance premium or encumbrance upon the
Mortgaged Property as herein provided, it shall not be necessary
3.
nor requisite that the Mortgagee shall first pay the same..
ARTICLE V
HAZARDOUS OR TOXIC MATERIALS
Section 5.01. Definitions. The following definitions shall
be applicable to this Article.
(a) "Environmental Complaint" includes without
t
limitations any complaint, order, citation or notice issued
pursuant to or in connection with any Environmental Law affecting
Mortgagor or the Environmental Site from any person or entity or
governmental agency or body (including, without limitation, the
-
Federal Environmental Protection Agency and Florida Department of
Environmental Regulation).
(b) "Environmental Laws" means any law, ordinance,'
rule,, regulation or requirement, issued by any federal, state or
local government or quasi -governmental authority, whether now
existing or hereinafter enacted, and any judicial or
administrative interpretations thereof, regulating the use,
generation, handling, storage, transportation or Release (as
hereinafter defined) of Hazardous or Toxic Materials or relating
to the protection of the environment.
1
- 1 V -
- '
{r
_
it r
s
(c): "Environmental Permits" mean all permits,
t
1'icenses„ approvals, authorizations, consents or .registrations
`
required by, any applicable Environmental Law in connection with,
the ownership, use and/or operation of the Environmental Site, E
`
'including without limitation those required for the use,
generation, handling, storage, transportation or Release of
Hazardous or Toxic Materials.
(d)"Environmental Site" as used in this Article shall
include the surface of the Land and the entire subsurface of
soil, sand, gravel, stone and rock, all surface water and
subsurface water, whether flowing or stagnant, the ambient air,
and all structures, fixtures and buildings located, situated or
erected on the Land, and all Mortgaged Property located at or in
connection with any such structure.
(e) "Hazardous or Toxic Materials" means any material
whatsoever, which is or may potentially be harmful to the health
or safety of human or animal life or vegetation, regardless of
whether .such material be found on or below the surface of the
ground, in any surface or underground water, airborne in ambient
air or in the air inside of any structure built or located upon
or below the surface of the ground or in building materials or in
improvements of any structures, or in any Mortgaged Property
located or used in any such structure, including but not limited
to all hazardous materials, hazardous substances, imminently
hazardous substances, hazardous wastes, toxic substances,
infectious wastes, pollutants and contaminants from time to time
defined, listed, identified, designated or classified as such
94- 193
-19-
i
t
}
under any Environmental Law regardless of the quantity of any.
such material.
(f) "Release" includes without limitation, any
releasing, discharging, emitting, escaping, pouring, emptying,;
'
pumping, - injecting, seeping, leaking, dumping, disposing or
spilling.
Section 5.02. Mortgagor's Representations and Warranties.
The -Mortgagor; as a material inducement for Mortgagee agreeing to
make the loan,represents and warrants the following all of which
shall be true and correct as of the date hereof and which shall.
remain true and correct at all time while any portion of the
indebtedness secured hereby is outstanding:
(a) Mortgagor has investigated the Environmental Site
..and has no knowledge of any environmental condition on or
affecting the Environmental Site;
(b). Neither the Mortgagor, nor to Mortgagor;'s
knowledge, any existing or prior tenant of the Environmental
Site, any prior owner thereof nor any other person is the subject
of any civil or criminal investigation or enforcement proceeding,
whether administrative or judicial, respecting: (i) any Hazardous
Substance or threat of a Release on or affecting the
Environmental Site; or (ii) any violation of Environmental Law by
the Mortgagor, any existing or prior tenant of the Environmental
Site, any prior owner thereof or any other person with respect to
or affecting the Environmental Site;
(c) To Mortgagor's knowledge there is no litigation
involving the Environmental Site is pending against" the
94— 193
-ao-
P
AMk
Mortgagor, any existing or prior tenant of the Environmental
Site, any prior owner thereof or any 'other person in any Way g
related to any of the aforementioned persons, or to the best of
the Mortgagor's knowledge is any such litigation- threatened,_
whichseeks to enjoin, remove or remediate a Release or- }
threatened Release, or which seeks any remedy based upon a
z
violation of any Environmental Law or for any injury to any
person, property, animal life or vegetation caused by a Hazardous
Substance or which seeks to remove or remediate a Hazardous
Substance;
(d) To Mortgagor's knowledge neither the Mortgagor,
any existing or prior tenant of the Environment Site, any prior
owner thereof, or any other person has received any notice from
any governmental or quasi governmental agency with respect to any
Hazardous Substance or any threatened Release on or affecting the
Environmental Site, or any violation of Environmental Law by any
of the aforementioned persons with respect to or affecting the
Environmental Site;
(e) To the Mortgagor's knowledge the Environmental
Site is not currently used, nor has it been used in the past, by
the Mortgagor, prior owners, tenants or any other persons in a
manner which violates any Environmental Law or which could give
rise to liability for Hazardous Substances, nor do conditions
exist on or affect the Environmental Site which could violate any
such law or give rise to such liability;
(f) To the Mortgagor's knowledge there has not been a
Release on or affecting the Environmental Site nor is there the
threat of such a Release; and
1
94- 193
i
-21-
(g) The Mortgagor and all tenants, if any, of the
Environmental Site are in compliance with all Environmental Laws
and Environmental Permits affecting the Environmental Site.
Section 5.03. Status of the Environmental Site. In the
event any of the following shall occur with regard to the
Environmental Site, such shall constitute a default of this
Mortgage and Mortgagee may exercise any and all remedies
available hereunder, under the Note or under any other document
executed in connection therewith, including without limitation,
the immediate acceleration of the entire indebtedness secured
hereby and foreclosure of this Mortgage; provided, Mortgagor has
been given the opportunity to cure such default and has failed to
do so in the time prescribed therefor:
(a) Any Release of Hazardous or Toxic Materials on or
into the Environmental Site resulting in the material devaluation
of the real property.
(b) Any use, generation, handling, storage or
transportation of Hazardous or Toxic Materials resulting in the,
material devaluation of the real property.
-
(c) Any adverse change in the manner of use,
generation, handling, storage or transportation of Hazardous or
Toxic Materials resulting in the material devaluation of the real
property.
(d) If Mortgagor fails to timely and substantially
comply with each and every covenant and condition contained in
this Article.
94-- 19.3
-22-
(e� If any, representation or warranty contained in the
preceding' Section is incorrect or untrue at the time made or at
Aily time thereafter during the term of the loan secured hereby
resulting in the material devaluation of the real property.
Section 5.04. Notice of Potential Hazardous or Toxic
Materials. If the condition of the Environmental Site adversely
changes, Mortgagor agrees to immediately provide written notice
of such change to (i) the Mortgagee and (ii) the appropriate
federal, state and/or local governmental authority, if required
by applicable law. Additionally, if (i) any of the
representations or warranties contained in Section 5.02 hereof
shall at any time be untrue or incorrect or (ii) any of the
events described in Section •5.03 (a) through (e) hereof shall
occur, then Mortgagor shall immediately provide Mortgagee with
written notice of same. Finally, if Mortgagor receives an
Environmental Complaint or any other notice of the happening of
any material event involving the use, generation, handling,
storage, transportation or Release of any Hazardous or Toxic
-Materials on or at the Environmental Site or adjacent thereto, or
in connection with Mortgagor's operations thereon, then -Mortgagor
shall immediately notify Mortgagee orally and provide Mortgagee
with'a photocopy of said notice.
Section 5.05. Request For Environmental Audit and
-Environmental Risk Assessment.
(a) In addition to any environmental audit which may
have been required as a •precedent to the closing of the loan
evidenced by the Note and secured by this Mortgage, Mortgagor,
i
�.
�4' 193
i
-23-
if deemed necessary by an appropriate federal, state and/or 'local
governmental authority will cause to be conducted, at Mortgagor's
expense, an environmental audit of the Environmental Site
prepared by an independent engineer or other qualified
environmental consultant of the Mortgagee's choice which
evaluates (i) whether any Hazardous or Toxic Materials are
present in the soil, surface or ground water at the Environmental
Site, or at any adjacent property in quantities that would
violate applicable Environmental Laws, (ii) whether any Hazardous
or Toxic Materials have previously been Released, intentionally
or unintentionally, to the soil, surface or ground water at the
Environmental Site, (iii) whether the Environmental Site is in
compliance with all applicable Environmental Laws. The scope of
the environmental audit shall include, but shall not be limited,
to the following: (1) an investigation of the past uses of the
Environmental Site; (2) a review of government agency records;
(3) an examination of the use and condition of surrounding.
property and identification of hazardous waste disposal sites
within a mile of the Environmental Site; (4) tests for
polychlorinated biphenyls, asbestos, explosive gas and radon;'(5)
identification and examination of storage tanks and water sources
at the Environmental Site; (6) a general visual site inspection
of the Environmental Site; and (7) identification of the
Environmental Site as wetlands or floodplain. All sampling shall
be conducted using accepted and scientifically valid technology
and methodologies. The consultant shall prepare a written report
detailing its findings and conclusions.
9 4 - 193
-24-
r
p
I.
x}
Mortgagee, and the Mortgagee shall owe no duty of confidentiality
1
to any Obligor with respect to the contents thereof.. All
t
`
environmental consultants used to accomplish the audits and
assessments contemplated in this Section shall be deemed
independent and not an agent of the Mortgagee. Neither the
Obligors, nor any other party shall have any recourse to or claim
against the Mortgagee for any actions or inactions of any
environmental consultant used pursuant to the provisions of this
Section, except where Mortgagee's actions or inactions are
intentional or Mortgagee is deemed grossly negligent.
(e) All costs and expenses incurred by Mortgagee
pursuant to the exercise of its rights contained in this Section
shall 'be secured by the Mortgage and shall be payable by
Mortgagor upon demand, or charged to Mortgagor's loan balance at
the sole discretion of Mortgagee, except as set forth in
subparagraph (a) hereof.
Section 5.06. Corrective steps to be Taken in the Event of
Potential Hazardous or Toxic Materials. In addition to the
'provisions of Section 5.03 hereof, in. the event Mortgagee
requests an environmental audit or environmental risk assessment
pursuant to the preceding Section, and any such audit or
assessment, indicates any past or present Release of or threat of
Release of Hazardous or Toxic Materials on or into the
Environmental Site, Mortgagee may, take the following corrective
measures:
(a) Require that Mortgagor take all steps necessary to
further define the nature of the Hazardous or Toxic Materials,
-26- 94- 193
r
_
i
r
any risks ;related to or resulting therefrom and possible
corrective measures; and may also require Mortgagor, to cause the
appropriate corrective measures to be taken, including without
limitation, requiring that all violations of law with respect to
s
Hazardous or Toxic Materials be corrected and that Mortgagor -
obtain_ all necessary Environmental Permits and approvals in
connection therewith.
(b) Mortgagee shall have the right but not the
obligation, and without limitation of Mortgagee's rights under
i
this Mortgage, to enter onto the Environmental Site and/or to i
take such actions as Mortgagee deems necessary or advisable to `
clean up,,, remove, decontaminate, detoxify, resolve or minimize
the impact of or otherwise deal with, any Hazardous. or Toxic
Materials and obtain all necessary Environmental Permits and
approvals.in connection therewith, after thirty (30) days notice
of Mortgagee's.intent to do the same.
(c) All costs and expenses incurred by Mortgagee
pursuant to the exercise of any of its rights contained in this
Section shall be secured by this Mortgage and shall be payable by
Mortgagor upon demand or charged to the Mortgagor's loan balance
i
at the sole discretion of Mortgagee.
Section 5.07. Indemnity. Mortgagor hereby indemnifies, and
agrees to defend and save and hold Mortgagee and its officers,
i
employees, agents, successors and assigns harmless from and
against- any and all loses, liabilities (including, without
limitation, strict liability and common law liability),
obligations, damages (including, without limitation, all
r
-27- 9 4 - 193 IV
foreseeable.and unforeseeable consequential damages to any person
'
or entity including third parties), injuries (including, without`
limitation, injuries to the environment), defenses, charges,
penalties, interest, expenses, fees (including attorneys'. fees at
all administrative and judicial hearing, trial and appellate
levels), costs (including, without limitations, costs of any
settlement), judgments, administrative or judicial proceedings,
and orders, remedial action requirements, enforcement actions,
claims and demands of any and every kind whatsoever paid,
incurred, or suffered by, or asserted against Mortgagee by any
person or entity or governmental agency or body for, with respect,
of, in whole or in part, the violation of any Environmental Laws
applicable to the Environmental Site or any activity conducted
thereon, or the past, present and future use, generation,
handling, storage, transportation or Release at, on or under the
Environmental Site or adjacent property, or to the soil, air
surface or ground water thereat, or Release at any other site, of
any Hazardous or Toxic Materials. All sums paid and costs
incurred by Mortgagee with respect to the foregoing matters shall
bear interest at the highest applicable legal rate and shall be
secured by the lien of this Mortgage, and the Tien of this
Mortgage shall also s further secure this indemnity and any
liability of Mortgagor hereunder. Notwithstanding anything
contained herein, this indemnification shall survive the full
payment and performance of the Note and this Mortgage, and the
satisfaction of this Mortgage, as the continuing absolute and
i
unconditional liability of Mortgagor, and it shall inure to the
-as- 94— 193
Yi
low
_ }
iy
+z
benefit of any transferee of title to the Environmental- Site
through foreclosure of the Mortgage or through deed"in lieu of
foreclosure.
'
.Section 5.08. Certain Changes in Environmental . Laws.
Mortgagor recognizes and agree that a material inducement for
Mortgagee to make the loan and accept this Mortgage is the
protection afforded mortgagees and purchasers ,of real property
without notice of hazardous or toxic substance contamination set
forth, as of the date hereof, in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601, et. seq. as modified by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sections 11001, et.
seq.If the classes of potentially responsible parties
identified in those acts are expanded to include mortgagees whose
sole contact with property is through holding a mortgage on real
property as security for a loan or if defenses available to a
mortgagee or a purchaser of real property without notice defined
in those acts are abrogated (in whole or part) or eliminated or
otherwise modified in a manner towhichmay expose Mortgagee to
greater liability thereunder then Mortgagee may, at its option
and in its sole discretion, immediately accelerate the entire
indebtedness secured hereby and demand full repayment of said
indebtedness.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.01. Default and Remedies. Each of the following
events shall be deemed a default of Mortgagor's obligations
hereunder:
-29- 9 4 - 193
(a) The filing of any petition under the -Bankruptcy'
Act or 'Code, or any similar federal or state statute, by or
r
against Mortgagor;
(b) An application for the appointment of a receiver
or the making of a general assignment for the benefit of
creditors of Mortgagor;
(c) The issuing of any writ of attachment or writ of
garnishment against the Mortgaged Property which is not bonded
within thirty (30) days;
(d) The dissolution, merger, consolidation or
reorganization of any Mortgagor;
(e) If it appears at any time that any material
representation in any financial or other statement of Mortgagor,
delivered to Mortgagee in connection with the indebtedness
secured by this Mortgage is untrue or omits any material fact and
Mortgagee's security is materially affected;
(f) If Mortgagor shall become insolvent (however
evidenced), or upon the suspension of business of the Mortgagor;
(g) If default should be made in payment of any amount''
due under the Note secured hereby or any part thereof beyond any
applicable grace period, or in payment of any other sum secured
hereby, beyond any applicable grace period without notice or
demand which are hereby expressly waived;
(h) Except where otherwise provided, if default should
continue for more than thirty (30) days in the performance and
observance of any of Mortgagor's obligations, representations,
covenants and agreements hereunder; unless Mortgagor makes a good
-30- 94 -- 193
1
work, -materials or services provided by any mechanic, vendor,
supplier or materialman
(m) If the Mortgagor, pursuant to Florida Statutes
697(1)(b), as amended from time to time, shall file for record a',
limitation of the maximum amount which may be secured by this
Mortgage;`
(n) If the Mortgaged Property or any portion thereof
are taken or injured under the power of eminent domain or
otherwise;
(o) If, without the prior written consent of the
Mortgagee, (i) the Mortgaged Property or any part thereof or any
interest therein (including, without limitation, agreements or
contracts for the conveyance of the real property) shall be sold,
conveyed or otherwise transferred or further encumbered for debt
by, the Mortgagor or (ii) any amount of any Mortgagor's voting
stock, beneficial interests or partnership interests shall be,
sold or otherwise transferred or pledged, hypothecated or
otherwise transferred as security for debt. In determining-
whether to grant or withhold its consent under this provision,
{
the Mortgagee, without limitation on the generality" of the
requirement of such consent, may consider the character and
financial ability of the proposed purchaser, transferee or
encumbrancer. As a condition to granting its consent to a..sale,
conveyance or other transfer of the Mortgaged Property, Mortgagee
will charge a fee equal to one percent (1%) of the unpaid
principal balance of the Note plus all accrued and unpaid
interest thereon, plus a One Thousand Dollar ($1,000.00)
-32- 94- 193
processing fee and all reasonable out -of pocket costs related
thereto (including without limitation, any documentary stamps,
intangible taxes, Mortgagee's attorney fees, recording fees, and
title insurance endorsements);
(p) The occurrence of any event constituting a default
of this Mortgage per Section 5.03 hereof entitled "Status of
Environmental'Site."
Section 6.02. Mortgagee's Remedies Upon Default of
Mortgagor. -Upon the occurrence of any default described in the
preceding paragraph, and in addition to any other rights
available under the Note or any other document executed in
connection therewith or as security therefor, or at law or in
equity, Mortgagee may,. at its option, exercise any, some or all,
of the following remedies concurrently or consecutively:
(a) Mortgagee may declare all indebtedness of
Mortgagor to Mortgagee secured by his Mortgage, together with all
accrued interest thereon, immediately due and payable after
'notice
or demand, and upon such declaration all such indebtedness
shall immediately become due and payable as fully and completely
as if said indebtedness was originally stipulated to be paid on
such date, anything in the Note or this Mortgage to the contrary
notwithstanding.
(b) Mortgagee may institute proceedings for. the
partial or complete foreclosure of this Mortgage and Mortgagee
may, pursuant to any final judgment of foreclosure, sell the
Mortgaged Property as an entirety or in separate lots, units or
parcels. Any person, including the Mortgagee, may purchase the
-33- �" 193
l
Mortgaged Property or 'any portion thereof, at any foreclosure
sale. The reasonable expenses (including receiver's fees,
counsel fees, costs and agent's compensation) incurred pursuant
'
to the powers - herein contained shall be secured hereby.
Mortgagee is authorized to use the proceeds of such sale (after
4
payment of all costs and expenses incurred) to satisfy the 1
indebtedness secured hereby in such order as required by law or a
court of competent jurisdiction. Any sale or sales made under or
by virtue of this Mortgage, to the extent not prohibited by law,
shall operate to divest all the estate, right, title, interest,
property, claim and demand whatsoever, whether at law or in
equity,of the Mortgage or in, to and under the Mortgaged
Property, or any portions thereof so sold, and shall' be a
perpetual bar both at law and in equity against the Mortgagor and
against any and all persons claiming by, through or under the
Mortgagor.
(c) Mortgagee may obtain a court order after due
not to enter upon and take possession of the Mortgaged
Property or any part thereof, to perform any acts Mortgagee deems
necessary or proper to conserve the security and to collect and
receive all rents, issues and profits thereof, including those
past due as well as those accruing thereafter.
(d) Mortgagee shall be entitled, as a matter of strict
right and without regard to the value or occupancy of the
security, to have a receiver appointed to enter upon and take
possession of the Mortgaged Property, collect the rents, issues
and profits therefrom and apply the same as the court may direct,
-34- 9 4 - 193
Auk
y
such receiver to have all the rights and powers permitted under
the laws of Florida.
(e) In the event Mortgagee elects to exercise the
remedy provided in (c) or (d) above, Mortgagee or the receiver
may also take possession of, and for these purposes use, any and
all personal property contained in the Mortgaged Property, and
used by Mortgagor in the rental or leasing thereof or any part
thereof. The reasonable expenses (including receiver's fees,
counsel fees, costs and agent's compensation) incurred pursuant
to the powers herein contained shall be secured hereby.
Mortgagee shall (after payment of all costs and expenses
incurred) apply such rents, issues and profits received by it on
the indebtedness secured hereby in such order as the court
determines Mortgagee shall be liable to account only for such
rents, 'issues and profits actually received by Mortgagee.
Section 6.03. Remedies Cumulative. If the indebtedness
secured hereby is now or hereafter further secured by chattel
mortgages, security interests, pledges, contracts of guaranty
assignments of leases, collateral assignments, hypothecations, or
other securities, or if the Mortgaged Property hereby encumbered
consists of more than one parcel, Mortgagee may at its option,
exhaust any one or more of said securities and security
hereunder, or one or more of such parcels of the security
hereunder, either concurrently or independently, and in such
order as it may determine without regard to the right of the
Mortgagor or any person claiming under the Mortgagor to the
marshalling of assets.
-35- OV4 - 193
<r_
Aak
s
Section 6.04. Acts Not Constituting Waiver. No delay by
Mortgagee in exercising any right or remedy hereunder, or,
xx
otherwise afforded by. law, shall operate as a waiver thereof or
F
preclude the exercise thereof during the continuance of any
default hereunder. No waiver by Mortgagee of any defaultshall
constitute a waiver of or consent to subsequent defaults. No
failure of Mortgagee to exercise any option herein given to
accelerate maturity of the debt hereby secured, no forbearance by
Mortgagee` before or after the exercise of such option and no
withdrawal or abandonment of foreclosure proceedings by Mortgagee
shall be or construed as a waiver of its right to exercise
such option` or to accelerate the maturity of the. debt hereby
secured by reason of any past, present or future default on the
part of mortgagor, and, in like manner, the procurement of
insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be taken or construed as a waiver of its
right to accelerate the maturity of the debt hereby secured.
Section 6.05. Mortgagee May Cure'' Default Under Superior
Lien. the Mortgagee may from time to time cure each default
under any covenant or agreement in any instrument creating a lien
upon the. Mortgaged Property, or any part thereof, which shall
have priority over the lien of this Mortgage, to such extent at
the Mortgagee may exclusively determine, and each amount paid, if
any, by the Mortgagee to cure any such default shall be paid by
the Mortgagor to the Mortgagee, and the Mortgagee shall also
become subrogated to whatever rights the holder of the prior lien
might have under such instrument.
-36- (1
14- 193
f
ARTICLE'VII
t
MISCELLANEOUS
Section 7.01. Events or Circumstances not Affecting
MortcxacTor's Liability Hereunder. Without affecting the liability
of Mortgagor or any other person (except any person expressly
released in writing) for payment of any indebtedness secured
hereby or for performance of any obligation contained herein, and
without affecting the rights of Mortgagee with respect to any
-.
°security not expressly released in writing, Mortgagee may, at any
time and from time to time, either before or after the maturity
of said Note, and without notice or consent:
(a) Release any person liable for payment of all or
any part of the indebtedness or for performance of any
obligation;
(b) Make any agreement extending the time or otherwise
altering. the terms of payment of all or any part of the
indebtedness, or modifying or waiving any obligation, or
subordinating, modifying or otherwise dealing with the lien or
charge hereof;
(c) Exercise or refrain from exercising or waive any
right Mortgagee may have:
(d) Accept additional security of any kind;
(e) Release or otherwise deal with any property, real,
personal or intangible securing the indebtedness, including all
or any part of the Mortgaged Property.
Section 7.02. Priority or Mortgage and Modifications. Any
i
agreement hereafter made by Mortgagor and Mortgagee pursuant to
I
}
j
-37- 9 4 - 193
this Mortgage including extensions or modifications hereof or of
the Note hereby secured shall be superior to the rights of the
holder ofanyintervening lien or encumbrance. Mortgagee shall
be subrogated to the rights of the holder of any existing
i
{
mortgage or other lien encumbering the Mortgaged Property hereby
which is satisfied by application of any portion of the proceeds
of the loan evidenced by the Note secured hereby as though` said
mortgage or other lien had been purchased by Mortgagee by
assignment to Mortgagee, even though said mortgage or lien has-
been satisfied of record and the note thereby secured cancelled.
The parties hereto acknowledge that this is a second. mortgage,
„junior,
inferior and subordinate to that certain first mortgage
dated , executed by the Mortgagor in favor of the Bank -
of Tokyo, Ltd.
Section,7.03. Notices. All written notices in connection
with this Mortgage or otherwise which may be given by Mortgagee
shall be deemed properly given if mailed by registered or
certified mail, return receipt requested, or delivered to
Mortgagor at the address shown below or at such other address -as
Mortgagor may from time to time notify Mortgagee of in writing:
Citadel Arena Corporation
2000 South Bayshore Drive, #62
Miami, Florida 33133
All notices which Mortgagor may give Mortgagee in connection
with this Mortgage shall be in writing, mailed by registered or
certified mail, return receipt requested, or delivered to
Mortgagee at the address shown below or at such other address as
Mortgagee may from time to time notify Mortgagor of in writing:
-38- 60Q - 193
R�
City of Miami
Department of Development and
Housing Conservation
300'Biscayne.Boulevard Way,. Suite 400
Miami, Florida 33131"
Section 704. Waiver of Homestead Rights. Mortgagor hereby
WaiveS•all right of homestead or other exemption in the property
subject to this Mortgage.
Section 7.05. Successors and Assigns; Gender and Number.
The covenants and agreements herein contained shall bind and the
benefits and advantages shall inure to the respective heirs,
executors, administrators, successors and assigns of the parties
hereto, provided, however, Mortgagor must obtain the written
consent of Mortgagee, which consent may not be unreasonably
withheld, before assignment of any or all of its obligations
hereunder. Wherever used, the singular number shall include the
plural, and the plural the singular, and the use of any gender
shall be applicable to all genders. All covenants, agreements
undertakings shall be joint and several.
Section 7.06. Controlling Law. This Mortgage is to be
construed and enforced according •to the laws of the State of
Florida.
Section 7.07. Jurisdiction, Service of Process. Mortgagor
hereby waives any plea or claim of lack of personal jurisdiction
or improper venue in any action, suit or proceeding brought to
enforce this Mortgage or any of the obligations arising'
hereunder. Mortgagor specifically authorizes any such action; to
be instituted and prosecuted in any Circuit Court in Florida or
United States District Court of Florida, at the election of
Mortgagee, where venue would lie and be proper.
- -39- -- 193
t,
Section 7.08. Time of the Essence. Time is of the essence
Y,
in all matters herein.
Section 7.09. Severability. In the event any provision of
this Mortgage shall be invalid, illegal or unenforceable, such
s
provision or provisions shall be severable from the remainder of
this Mortgage and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired.
Section 7.10. Modification. No agreement unless in writing
and signed ,by an authorized officer of Mortgagee and no course of
dealing between the parties hereto shall be effective to change,
waive, terminate, modify, discharge, or release in whole or in
part any provision of this Mortgage. No waiver of any rights or -
powers of Mortgagee or consent by it shall be valid unless in
writing signed by an authorized officer. or Mortgagee and then
such waiver or consent shall be effective only ;in the specific
in and for the specific purpose of which given.
Section 7.11. Covenants Running With the Land. All
Covenants contained in this Mortgage shall be binding on the
Mortgagor and shall run with the Land.
Section 7.12. Headings. The headings contained herein are
inserted for convenience of reference only and shall in no way
affect the interpretation of this Mortgage.
Section 7.13. Waiver of Jury Trial. THE MORTGAGEE AND THE
MORTGAGOR HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER THEY OR THEIR SUCCESSORS,
PERSONAL REPRESENTATIVES OR ASSIGNS MAY HAVE TO A TRIM, BY JURY
9 4 - 193
-40-
A .
i
r
`
IN RESPECT 'OF ANY LITIGATION BASED
xf„}
UNDER OR IN,. CONNECTION WITH THE
CONTEMPLATED HEREBY TO BE .EXECUTED, I
`
ANY COURSE OF CONDUCT, COURSE OF DI
VERBAL OR WRITTEN) OR ACTIONS OF THE
A MATERIAL INDUCEMENT FOR THE MORTG1
SECURED HEREBY.
IN WITNESS WHEREOF, this Mortgal
sealed by the Mortgagor on or as of i
written.
Signed, sealed and delivered MO
in the presence of:
CI
By
[Print Name]
[Print 'Name]'
LKK/pb/M460
3/09/94 8:00 AM`
r
-41-
I .
Daniel Arias, President
T
r
,j! 1
�a
5
'
aA
,
2
s��} a
STATE OF FLORIDA)
' s
) SS:
COUNTY"OF DADE )
The foregoing
instrument" was acknowledged before me this"
i
day of
, 1994, by Daniel Arias, Preside nt'of
`!
Citadel Arena Corporation,. a Florida corporation. He is
personally known
to me .(YES) (NO), or has produced
r
-
as identification and did not take an oath.
.WITNESS my hand
and official seal the date aforesaid.
'
Notary Public State of
Florida at Large
[Print Name of Notary]
My Commission Expires:
LKK/pb/M460
Rev.`3/09/94 1:57 PM
Y
r
A.
-42- 4— 193 s
. k1
Members, shall operate police vehicles in a safe manner.at all times
and Will be held accountable for their own carelessness' or negligence.
If► ''in* *the event of an accident, carelessness or negligence on the
part ,Of the operating member is determined to be a contributing, factor;
it•shall be made the subject of appropriate disciplinary action. d
He is also in violation of Civil Service Rules and Regulations:
i
Sec. 14.2 GROUNDS FOR DISMISSAL, SUSPENSION AND DEMOTION. �
The following are declared to constitute a breach of duty and'to.be }•
grounds for -dismissal or suspension f omk the 'classified service or
grounds for demotion, though charges. may be based upon causes other
than those enumerated, viz that any emmR16yee who has been guilty of
conduct unbecoming any employee of the City*`af Miami, who:
i
(e) Has violated any lawful and reasonable official regulation or
order, or failed to obey any lawful or reasonable direction made and
given by his/her superior, where such violation or failure to obey
amounts to an act of insubordination or serious breach of proper
discipline,or resulted, or reasonably might be expected to result,
in loss or injury to the.,.City or;the...,prisoiners or wards of the City; or
(1) Is careless or negligent of the property of the City of 'Miami.
For violation of the above mentioned Departmental Order and Civil
Service Rules and Regulations,.•..andi-according'to Departmental Order 12,
Chapter 4.4.12.6-3, for the third.•.preven.table accident within twelve
(12) months, I recommend that Officer Gibson receive this reprimand, an
automatic suspension for forty (40) hours, loss of driver's privilege
for three (3) months and remedial driver's training.
i
11
;�pLIGE
Koh Qistrict Su�sl2iton �
tk 71�
r
GUARANTY AGREEMENT
This Guaranty Agreement (thin_ "Guaranty"), dated as of the
day of , 1994, made by DANIEL ARIAS and
MIRIAM ARIAS (each a uarantor" and collectively "the "G
Guarantors"), jointly and severally, in favor of THE CITY OF
MIAMI (the "CITY"), a municipal corporation of the State of
Florida;
WHEREAS, CITADEL ARENA CORPORATION, a Florida corporation
(the "Borrower") is indebted to the City in the principal amount
of $2,500,000 (the "Loan") evidenced by that certain Promissory
Note ("Note") of even date herewith made by Borrower to City,
secured by that certain Mortgage and Security Agreement and that
certain Assignment of Lease and Rents and that certain Pledge of
Stock Agreement dated of even date herewith and the mortgage and
assignment instruments -described therein (collectively, the
"Mortgage") encumbering certain real and personal property
located in the City of Miami, Dade County, Florida, including the
real property legally described in Exhibit A attached hereto (the
"Property") The Note and the Mortgage, together with any
renewals and other modifications thereof and substitutions
therefor, are hereinafter called the "Note" and the "Mortgage'.',
respectively;
WHEREAS, the Guarantors directly or indirectly own a
substantial interest in the Borrower or have derived or expect to
derive a benefit from the Obligations (as defined in Section 1
hereof) incurred by the Borrower; and
WHEREAS, it is a condition precedent to the City's making
and maintaining the Loan that the Guarantors shall have executed
and delivered this Guaranty; and
WHEREAS, this Guaranty is subject to the rights of the Bank
of Tokyo, Ltd. (the "Bank") as set forth in that certain Guaranty
Agreement executed by Guarantors in favor of Bank dated
NOW, THEREFORE, in consideration of the premises, Ten
Dollars ($10.00) and other good and valuable considerations
(receipt of which are hereby acknowledged), and in order to
induce the City to make the Loan, each Guarantor agrees as
follows:
Section 1. GUARANTY
The Guarantors hereby jointly and severally and
unconditionally guarantee ;the punctual payment when due, whether
at stated maturity, by acceleration or otherwise of all
obligations of the Borrower now or hereafter existing or arising
94- 193
`X
under or evidenced by the Note and the Mortgage or relating to
the 'borrowings evidenced thereby, whether for principal;
interest, fees, expenses, or otherwise and the performance,by the
Borrower of all of the covenants on its part to be performed and
observed pursuant to the provisions thereof (such obligations ,of
the Borrower referred to in this Section 1 being the
110bligations"), and agree to pay any and all expenses"(including
counsel fees and expenses at trial, on appeal, or otherwise)
incurred by the City in enforcing any rights under this Guaranty.
The obligations of each Guarantor hereunder are joint and several
with any other guarantor.
Section 2. GUARANTY ABSOLUTE
Each Guarantor guarantees that the Obligations will be paid
strictly in accordance with the terms of the Note and Mortgage,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the.City with respect thereto. The liability of each
Guarantor under this Guaranty shall be absolute and unconditional
irrespective of
(a) any lack of validity or enforceability of the Note or
any agreement or instrument securing the Note
(collectively, the "Security Documents");
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to
departure from the Note or the Security Documents;
(c) any exchange, release or non -perfection of any
collateral, any limitation as to the amount of the
Obligations secured by the Security Documents or any
invalidity, release, amendment or waiver of or consent
to departure from any other guaranty, for all or any of
the Obligations;
(d) the voluntary or involuntary bankruptcy of the Borrower
or any assignment for the benefit of creditors,
reorganization, receivership, liquidation or other
similar proceedings, affecting the Borrower or any of
its assets;
(e) any present or future action of any governmental
authority amending, varying, reducing or otherwise
affecting, or purporting to affect, vary, reduce or
otherwise affect, any of the Obligations, any of the
Security Documents or this Guaranty;
(f) any other event, or circumstance which might otherwise
constitute a defense available to, or a discharge` of,
the Borrower or a guarantor.
-2 94- 193
This Guaranty shall continue to be effective or be reinstated, as '
the cases may be, if at any time any payment of ,any of the
Obligations is rescinded or, must otherwise be returned by the
'
'City upon the_ insolvency, bankruptcy or reorganization of :the
Borrower or otherwise, all as though such payments had not been
-made.
Section 3. WAIVER
Each Guarantor hereby waivers promptness, diligence, notice
of acceptance and any other notice with respect to any of the
Obligations and this Guaranty, any requirement that the City
protect, secure, perfect or insure any security interest or lien
or any property subject thereto or exhaust any right or take any
action against the Borrower or any other person or entity or any
collateral, and any defense based on any event or circumstance
described in clause 2(a), 2(b), 2(c), 2(d), 2(d), or 2(f).
Section 4. NO SUBROGATION, Etc.
The Guarantors shall not have, and hereby waive, any right
of subrogation, contribution, indemnity or otherwise against the
Borrower that may arise by any payment made under this Guaranty,
any right to enforce any remedy that the City now has or may
hereafter have against the Borrower and any benefit of or right
to .participate in, any security now or hereafter held by the
city,-
Section 5. SUBORDINATION OF GUARANTOR'S CLAIMS
Each Guarantor -hereby agrees that any indebtedness of the
Borrower now or hereafter existing to such Guarantor is hereby
subordinatedto the indebtedness of the Borrower to the City; and
such indebtedness of the Borrower to such Guarantor during the
period of the existence of a default hereunder or by the Borrower
under any of the Security Documents shall be collected, enforced
and received by such Guarantor in trust for the benefit of the
'City, and shall be paid over to the City on account of the
indebtedness of the Borrower to the City; but without impairing
or 'affecting in any manner the liability of such Guarantor under '
the other, provisions of this Guaranty. So long as no default
exists hereunder or by the Borrower under the Note or any of the
Security Documents, each Guarantor may apply to its own account
payments made to such Guarantor by Borrower on Borrower's
indebtedness held by or due such Guarantor.
Section 6. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants (and as long
as:the Note or Mortgage is,in effect shall be deemed continuously
to represent and warrant) to the City as follows:
-3- 94- 193
s
i
,j
(a) The execution, delivery and performance by such
Guarantor of this Guaranty do not contravene law or any.,
contractual restriction binding on or affecting such
Guarantor, and do not result in or require the creation
of any lien, security interest or other charge or
encumbrance (other than pursuant thereto) upon or with
respect to any of such Guarantor's properties.
(b) No authorization or approval or other action by, and no
notice to or filing with, any person or any
governmental authority or regulatory body, is required
for the due execution, delivery and performance by such
Guarantor of this Guaranty.
(c) This Guaranty is the legal, valid and binding
obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms.
(d) There is no pending or threatened action or proceeding
affecting such Guarantor before any court, governmental
agency or arbitrator, which may materially adversely
affect such Guarantor's financial condition.
Section 7. AFFIRMATIVE COVENANTS
Each Guarantor covenants and agrees that, so long as any
part of the Obligations shall remain unpaid, such Guarantor will,
unless the City shall otherwise consent in writing:
(a) Compliance With Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations
and orders (such compliance to include, without
limitation, paying before the same become delinquent
all taxes, assessments and governmental charges imposed
upon such Guarantor or upon such Guarantor's property
except to the extent that such taxes, assessments or
governmental charges are contested in good faith and
such Guarantor has made adequate provision for payment
thereof) non-compliance with which would have a
material adverse effect on the financial condition or
business of such Guarantor.
Maintenance of of Properties, Etc. Maintain all of such
Guarantor's properties in good repair and condition.
Maintenance of Insurance. Maintain insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as
is usually carried by persons owning similar properties
in the same general areas in which such Guarantor's
properties are located.
-4-
94- 193
(P �j
}
'r
(d)
Maintenance of Insurance. Maintain insurance with
responsible and reputable insurance companies or'
associations in such amounts and covering such risks as
is usually,carried by persons owning similar properties
in the same general areas in which such Guarantor's
properties are located.
(e)
Reporting Requirements. Furnish to the City the
following:
(i) as soon as available and in any event within 90
days after the end of each fiscal year of such
Guarantor, an annual financial statement of such
Guarantor for such fiscal year in form
acceptable to the City and certified by such
Guarantor;
(ii) notice of any event' which has or may have a
material adverse effect upon the financial
condition of such Guarantor;
as soon as possible and in any event within five
days after the commencement thereof or any
adverse determination therein, notice of all
actions, suits and proceedings before any court
or governmental department, commission, board,
bureau, agency or. instrumentality materially
affecting such Guarantor; and
(iv) such information respecting the condition or
operations, financial or otherwise, of such
Guarantor as the City may from time to time
reasonably request.
Section
8. NEGATIVE COVENANTS
Each
Guarantor covenants and agrees that, so long as any
part of
the obligations shall remain unpaid, such Guarantor will
not, without the prior written consent of the City:
(a')
Asset Transfer, Etc. Sell or dispose of any of its
interest in the Borrower, except for transfers arising
by death or permanent disability of a Guarantor.
(b)
Net Worth Requirement. Take any action which will
reduce such Guarantor's net worth below the amount of
net worth shown on the financial statements previously
submitted by such Guarantor to the City in support of
the Borrower's request for the Loan.
-5- 94 193
Section 9. AMENDMENTS ETC.
' No amendment or waiver of any provision of this Guaranty nor
consent to any departure by, such Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed
by the -'City, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose of
which given.
Section 10. ADDRESSES FOR NOTICES
All notices and other communications provided for hereunder
shall be in writing and, if to the Guarantors, mailed or
telegraphed or delivered to them, addressed to them at the
following address:
2000 South Bayshore Drive
Villa 62
Miami, Florida 33134
and, if to the City, mailed or delivered to it, addressed to it
at the address of the City of Miami, Department of Development
and.Housing Conservation, 300 Biscayne Boulevard Way, Suite.400,,
Miami, Florida 33131, or as to each party at such other address
as shallbedesignated by such party in a written notice to the
other party. All such notices and other communications shall,
when mailed or telegraphed, respectively, be effective when
'deposited in the mails or delivered to the telegraph company,
respectively, addressed as aforesaid.
Section 11. NO WAIVER; REMEDIES
No failure on the part of the City to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of anyright
hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 12. RIGHT OF SET-OFF
Upon the occurrence of any event of default under any of the
Note or any of the Security Documents, the City is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisions or
final) at any time held and other indebtedness at any time owing
by the City to or for the credit or the account of any of the
Guarantors against any and all of the obligations of any of ,the
Guarantors now or hereafter existing under this Guaranty,
irrespective of whether or not the City shall have made any
demand under this Guaranty and although such obligations may be
contingent and unmatured. The City agrees promptly to notify the
94 193
-6-
'r
Guarantors after any such set off andapplication, provided that
the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the City under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the City may
have.
Section 13. CONTINUING GUARANTY; TRANSFER OF NOTE
This Guaranty is a continuing guaranty and shall (i) remain
in full force and effect until payment in full of the obligations
and all other amounts payable under this Guaranty and
cancellation and satisfaction of the, Note and Mortgage, (ii) be
binding upon the Guarantors and their respective heirs,
successors and assigns, and (iii) inure to the benefit of and be
enforceable by the City and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause
(iii), the City may assign or otherwise transfer the Note and
Security Documents to any other person or entity, and such other
person or entity shall thereupon become vested with all the
rights in respect thereof granted to be City herein or otherwise.
Section 14. GOVERNING LAW
This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Florida, United States
of America.
Section 15. SEVERABILITY
if any 'provision of this Guaranty shall be held invalid
under any applicable law; such invalidity shall not affect any
other provision of this Guaranty that can be given effect without
the invalid provision, and, to that end, the provisions hereof
are.severable.
Section 16. JURISDICTION
The Guarantors hereby irrevocably submit to the non-
exclusive jurisdiction of any state court of competent
jurisdiction sitting in the State of Florida and any United
State's District Court of competent jurisdiction sitting in the
State of Florida in any action or proceeding arising out of or,
relating to this Guaranty and the Guarantors hereby irrevocably
agree that all claims in respect of such action or proceedings
may held and determined in such court of the State of Florida`
or in such. United States District Court of Florida, The
-~Guarantors hereby irrevocably waive, to the fullest extent they
may effectively do so, the defense of an inconvenient forum to
he. maintenance of such action or proceeding and any right to
limit jurisdiction on account of their place of residence or
domicile.
94-- 193
a
J
r
Section 17. .COUNTERPARTS
This Guaranty may be executed by the Guarantors in 'separate
`
counterparts.
Section'18. HEADINGS
The headings of the various sections herein are for
convenience of reference only and shall not define or -limit any
of the terms or provisions hereof.
Section 19. WAIVER OF JURY TRIAL
THE CITY AND EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT THEY. MAY HAVE TO A TRIAL BY
- JURY IN RESPECT OF ANY -ACTION, PROCEEDING OR COUNTERCLAIM BASED
-:'
ON THIS:GUARANTY OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
�
THIS —GUARANTY SAND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE CITY TO ACCEPT
THIS GUARANTY AND TO MAKE, RENEW OR EXTEND A LOAN, ADVANCE. OR
OTHER FINANCIAL ACCOMMODATION TO THE BORROWER.
IN WITNESS -WHEREOF, each Guarantor has .duly executed and
delivered this Guaranty as of the date first above written.
WITNESSES:
DANIEL ARIAS
MIRIAM ARIAS
LKK/pb/M476
Rev. 3/07/94 5:06 PM
94— 193
y
Y
-STATE`.OF FLORIDA)
)SS:
COUNTY OF DADE )
This instrument
was acknowledged
before me.this
day of
1994, by
DANIEL ARIAS.
He is
personally
known. to me or has
produced
a Florida Motor
Vehicle Driver's
License as identification.
Notary Public
of Florida
State
DANIEL ARIAS
STATE OF FLORIDA)
)SS:
COUNTY OF DADS )
This- instrument
was acknowledged before me
this
day of
1994, by
MIRIAM ARIAS.
He is
personally
known to me or has
produced
a Florida Motor
Vehicle
Driver's
License as identification.
Notary Public State
of Florida
MIRIAM ARIAS
94- 193
`
-9-
f
Lessor's Interest in Lease dated March 18, 1988 and that certain
Second Modification of Mortgage and Assignment Agreement dated
executed by Assignor in favor of Bank
(collectively "Bank Assignment").
2. Subject to the Bank Assignment: (a) Assignor hereby
authorizes Assignee or Assignee's agents to collect the aforesaid
rents and revenues and hereby directs each tenant of the Property
to pay such rents to Assignee or Assignee's agents; (b) upon
breach by Assignor of any covenants or agreements of Assignor in
this instrument, the Note or the Mortgage, or in the. Loan
Agreement all of which are executed of even date herewith. by
Assignor and Assignee, and without the necessity of Assignee
either delivering written notice of such breach to Assignor or
entering upon and taking and maintaining full control of the
Property in person, by agent or by a court -appointed receiver,
-Assignee shall immediately be entitled to possession of all rents
and revenues of the Property as specified herein as the same
become due and payable, including but not limited to rents then
due and unpaid, and all such rents shall immediately be held by
Assignor as trustee for the benefit of Assignee only; and (c)
Assignor agrees that commencing upon Assignor's breach, each
tenant of the Property shall make such rents payable to and pay
such rents to Assignee or Assignee's agents without any liability
on the part of said tenant to inquire further as to the existence
of a default by Assignor.
3.Other than the Bank Assignment, Assignor hereby
covenants that Assignor has not executed any prior assignment of
94- 193
-2-
said rents, that: Assignor has not performed,and will not
f
perform, any acts or has not executed and will not, execute any
prior assignment of said rents, that Assignor has not performed;
o "
}
and will not perform, any acts or has not executed, and will not
execute, any instrument which would prevent Assignee from
exercising its rights under this paragraph and that at the time"
y
ofexecution of this instrument there has been no anticipation or
prepayment of any of the rents of the Property for more"than -two
(2) months prior to the due dates of such rents. Assignor
covenants; that, unless otherwise provided in the Mortgage,
Assignor will not hereafter collect or accept payment of any
rents of the Property more than two (2) months prior to the due
dates of such rents without prior written approval of the
Assignee. Assignor further covenants that Assignor will execute
and deliver to: Assignee such further assignments of rents and
revenues of the Property as Assignee may from time to time
request.
4. Assignor shall provide Assignee with a copy of all
future leases with respect to the Property which future leases
shall be properly executed and witnessed.
5. Subject to the rights of Bank, upon Assignor's breach
of any covenant or agreement of Assignor in this instrument or in
the Note, Mortgage, or Loan Agreement, Assignee may in person, by
agent- or by a court -appointed receiver, regardless of the K
adequacy of Assignee's security, enter upon and take and maintain `.
full control of the Property in order to perform all acts
'
- necessary; and _appropriate for the operation. and maintenance
-3- 94— 193
i,
1
u
of,
f including, but not limited to, the execution,
'
cancellation or modification of leases, the collection of all
rents and revenues of the Property, the making of repairs to the.
'
Property and the execution or termination of contracts providing
for the management or maintenance of the Property, all on such
terms as are deemed best to protect the security of the Mortgage.
In the event Assignee elects to seek the appointment of a
receiver for the Property upon Assignor's breach of any covenant
or agreement that Assignor made in this Assignment or in, the
Mortgage, Assignor hereby expressly consents to the appointment
of such receiver. Assignee or the receiver shall be entitled to
receive a management fee for so managing the Property.
6. All rents and revenues collected subsequent to the
breach by Assignor of any covenants or agreements of Assignor in
this Assignment or the Mortgage shall be applied, first to the
costs, if any, of taking control or managing the Property and
collecting the rents, including, but not limited to, attorney's
fees, receiver's fees, premiums on receiver's bonds, costs of
repairs „to the Property, premiums on insurance policies, taxes,
assessments and other charges on the Property, and the costs of
discharging any obligation or liability of Assignor as lessor or
landlord of the Property and then to the sums secured by the
Mortgage. Assignee or the receiver shall have access to the
books, and records used in the operation and maintenance of the
Property and shall be liable to account only for those rents
actually received. Assignee shall not be liable to Assignor, any,
one claiming under or through Assignor or any one having any
-4- 94- 193
t
d
1
_
`interest in, the Property by reason of anything done or. left .
t
undone by Assignee hereunder.
s
{
>>
7. If the re nts.of the Property are not sufficient to meet"
,t
t
the costs, if any, of taking control of and managing the Property "
and collecting the rents, any funds expended by Assignee.for such
purposes shall become an indebtedness of Assignor to Assignee
secured by the Mortgage. Unless. Assignee and Assignor agree in
writing to other terms of payment, such amounts shall be payable
upon notice from Assignee to Assignor requesting payment thereof
and shall bear interest at the highest rate which may be
collected from Assignor under applicable law.
8. Any entering upon and maintaining of control of the
Property by Assignee or the receiver and any application of rents
as provided herein shall not cure or waive any defaulthereunder
or invalidate any other right or remedy of Assignee under
applicable law or provided herein.
9. Nothing contained in this instrument, and no act done
or omitted by the Assignee pursuant to the powers and rights
granted it hereunder, shall be deemed to be a waiver by the
Assignee of its rights and remedies under the Note, the Loan
Agreement, and the. Mortgage, and this instrument is made and
accepted- without prejudice to any of the rights and remedies
possessed by the Assignee under the terms of the Note, the Loan
Agreement, and the Mortgage. The right of the Assignee to
collect said principal sum, interest and indebtedness and to
enforce any other security therefor held by it may be exercised
by the Assignee either prior to, simultaneously with or
subsequent to any action taken by it hereunder.
-5' 94— 193
)i
}
10. It. is understood that the Assignee may assign this
t,
instrument and upon such assignment the recipient and subsequent
Assignee(s) shall have, all of the rights and remedies with
respect to the Assignor and the collateral as the original::
Assignee hereunder.
11. -In the case of any conflict between the terms of this
instrument and the terms of the Mortgage, the terms of the
Mortgage shall prevail.
12. This instrument, together with the covenants and
warranties herein contained, shall inure to the benefit _of the
Assignee, and any subsequent holder of the Note, and Mortgage,
shall. be binding upon the Assignor, its successors and assigns,
and any subsequent owner of the.Property. This Assignment shall
terminate at such time as the Mortgage ceases to secure
indebtedness held by the Assignee.
13 THE ASSIGNOR AND THE ASSIGNEE HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT; EITHER
THEY OR THEIR SUCCESSORS, PERSONAL REPRESENTATIVES OR ASSIGNS MAY
'HAVE TO ,A TRIAL BY JURY IN RESPECT OF, ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
ASSIGNMENT AND ANY AGREEMENTS CONTEMPLATED HEREBY TO BE EXECUTED,
IN CONJUNCTION THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
ASSIGNEE ENTERING INTO THE LOAN SECURED HEREBY.
-6- 94- 193
t
*�-544 ;t
aAdak
PROMISSORY NOTE
Schedule "A" Place: Miami, Florida
Amount:` $2,500,000.00 Dates
FOR VALUE RECEIVED, Citadel Arena Corporation, a Florida.
Corporation (herein called the "Maker") with a mailing address at
2000;South Bayshore Drive, #62, Miami, Florida 33133, and Daniel
Arias and Miriam Arias, individually, (collectively called the
"Obligors"), with a mailing address at 2000 South Bayshore Drive,
#62, Miami, Florida 33131, the undersigned, promise(s) to pay to
the order of the City of Miami a Florida Municipal Corporation,
(herein called the "Lender"), acting by and through the Director
of the Department of Development and Housing Conservation, or his
or her successors, the sum of Two Million Five Hundred Thousand
Dollars ($2,500,000.00) with interest thereon computed on the
unpaid principal balance thereof from time to time outstanding
from the date hereof until the Maturity Date (as hereinafter
defined) at a variable interest rate during the first year and at
A fixed fair market rate per annum thereafter (hereinafter
referred to as "City Loan") in lawful money of the United States.
Such principal and interest shall be due and payable as follows:
1. Interest only or principal and interest payments
as set forth below shall be paid over a period not to exceed ten
(10) years, with principal and interest payments amortized over a
thirty (30) year period.
2. Interest only payments shall be due and payable,
-monthly in an amount equal to the pro rata amount of interest
94- 193
h
fir.
y
owed on the -disbursement `received by Maker, commencing the
t
A
day, of the first month after the initial disbursement and every
1 l
month thereafter, up to and including the third anniversary of
the execution date of this Note.
3. Commencing -on the fourth anniversary of the
execution date of this Note, principal and interest shall be due
and payable in equal monthly installments and on the same day of
each and every month thereafter. In each case the monthly
payments will be calculated based upon the then -remaining
principal balance and the number of months remaining until the
Maturity Date.
4. Notwithstanding anything contained herein to `the
contrary, the balance of all accrued but unpaid interest and all
principal then remaining unpaid shall be due and payable in full
on the tenth anniversary of the execution date of this Note (the
Maturity Date").
This Note is.secured inter alia by (i) that certain Mortgage
and Security Agreement executed of even date herewith by Maker in
favor, of. Lender (the "Mortgage"); (ii) that certain -Loan
Agreement executed of even date herewith by Maker and Lender (the
'
"Loan Agreement"); (iii) that certain Assignment of Leases and
Rents executed of even date herewith by Maker in favor of Lender,
(iv) that certain Guaranty Agreement executed of even. date
herewith by Maker in favor of Lender as a personal guaranty, and
(v) that certain Pledge of Stock Agreement executed of even date
herewith by Maker in favor of Lender.
94` 193
_2_
w
Y
The undersigned reserves) the right to prepay at any time
all or any part of the principal amount of this Note without
payment_ of penalties or premiums. All payments on this Note
shall be applied first to the interest due on the Note, and then
to the principal due on the Note, and the remaining balance shall
be applied to late charges, if any. Except as provided below,
all monthly installment payments on this Note shall be credited
as of the due date thereof without adjustment of interest because
paid either before or after such due date.
In the event the Maker shall fail to pay the interest on or
principal amount of this Note when due, and if such failure be
existing on the date the next installment payment under this Not
becomes due and payable, or should there be a failure to
substantially comply with any of the material terms and covenants
contained herein or in any agreement securing this Note,"
including but not limited to the Mortgage, beyond any applicable,
cure periods, if any, the unpaid principal amount of this Note,
together with accrued interest and late charges, shall become due
and payable, then such shall constitute an event of default
hereunder ("Event of Default"), at the option of the Lender, with
notice to the Maker. Failure of the City of Miami to exercise
such option shall not constitute a waiver of such default. No
default shall exist by reason of nonpayment of any required
installment of principal and interest so long as the amount of
optional prepayments already made pursuant hereto equals or
exceeds the amount of the required installments. If the interest
on, and principal of, this Note are not paid during the first
-3- 9 4_ 193
.'o
4
4
JON
j
fifteen (15� days of the calendar month which includes the due
1'
date of such installments, the undersigned shallpay to the City
of Miami, a late charge of five percent (5%) per calendar month,.
or fraction thereof, on the amount past due and remaining unpaid.
If this. Note be reduced to judgment, such judgment shall bear the
statutory interest rate on judgments.
Upon occurrence of an Event of Default, the tender may
institute appropriate legal proceedings against the Obligors (for
purposes of this Note, Obligor shall mean each and every party to
this. Note, whether as Maker, endorser, surety, guarantor or
otherwise) to obtain judgment on the Note and/or to exercise its
rights and remedies as a secured party under Florida's Uniform
Commercial Code or other applicable law. Upon the occurrence of
an :Event of Default, the Lender shall have the right, at its
option, immediately and without further action by it, to set off
against the Note all monies owed by the Lender in any capacity to
any of the Obligors and also to set off against the Note, all
other liabilities of the Lender to the Maker and all monies owed
by the Lender in any capacity to the Maker. The Lender shall be
deemed to have exercised such right of setoff and to have made a
charge against any such monies immediately upon the occurrence of
such Event of Default even though such charge is made or entered
on the books of the Lender subsequent thereto.
The Lender may at any time in its sole discretion
compromise, settle or extend the time of payment of any of the
demands or obligations under this Note, and all of the parties
liable for the payment hereof hereby make, constitute and appoint
-4- 94 1'93
t
4
the Lender,• his or their true and lawful attorney for this
_.
'
purpose with full power and authority to compromise, settle or
extend payment of said demands or obligations and to acquire,
satisfy, or discharge the same of record, or otherwise, as the
parties liable for the payment or collection hereof might, or
could, do if personally present.
Each Obligor hereby waives demand, except as herein set
forth, presentment, protest, notice of protest, and notice of
dishonor. Each Obligor agrees, jointly and severally, to pay all
costs of collection, including attorneys fees. Each Obligor
agrees, jointly and severally, to pay all costs and fees,
including without limitation, Lender's attorneys fees and costs
at trial. and all levels of appeal, in case any of the principal
and interest due on this Note shall not be paid or should there
be a failure to substantially comply with any of the terms
contained herein, or to enforce the terms of this Note, whether
suit be brought or not.
The Lender shall not by any act of omission or commission be
deemed to waive any of its rights or remedies hereunder unless
such waiver shall be in writing and signed by the Lender and then
only to the extent specifically set forth therein; a waiver in
-
one event shall not be construed as continuing or as a bar to or
waiver of such right or remedy on a subsequent event.
Notwithstanding anything contained herein to the contrary,
no payee or holder of this Note shall ever be entitled to
receive, collect, or apply as interest on the obligation any
'
amount in excess of the maximum lawful rate under applicable law,
9a- 193
-5-
5 r s+i t =h s iti h3 aqn i- a+ 'z Ry{'d l.f
tt
i
and in the event the payee or any holder hereof ever receives,
collects, or applies as interest any such excess, such amount
which would be excessive interest shall be applied o the
reduction of the ,principal debt; and, if the principal debt is
paid in full, any remaining excess shall forthwith be returned to
the Maker . In determining whether or not the interest paid or
payable under any specific contingency exceeds the highest lawful
rate, the Obligors and Lender shall, to the maximum extent
permitted under applicable law (a) characterize any non -principal
payment as an expense, fee or premium rather than as interest,
(b) exclude voluntary prepayments and the effects thereof, and
(c) "spread" the total amount of interest throughout the maximum
term(beingten years) of the obligation so that the interest
rate is uniform throughout the entire term of the obligation.
This Note can only be changed or modified by written
agreement executed by each Obligor and Lender. Lender may grant,
participation in all or any portion of, and may assign all or any
part of Lender's rights under, this Note. Lender may disclose to
any such participant or assignee any and all information held by
or known to Lender at any time with respect to Maker. All of the.
terms of this Note shall inure to the benefit of Lender and its
successors and assigns and shall be binding upon each and every
one of Maker and its respective heirs, executors, administrators
and personal representatives, jointly and severally. Wherever
used, the singular number shall include the plural, and the use
of any gender shall include all genders, wherever the context so
admits.
94- 193
k
'{
Maker hereby waives any plea or claim of lack of personal:
jurisdiction or improper ;venue in any action, suit or proceeding
brought to enforce this Note or any of the obligations 'arising
hereunder. The Maker specifically authorizes any such action to
4
be instituted and prosecuted in any Circuit Court in Florida or
United States District Court of Florida, at the election of
Lender, where venue would lie and be proper.
THE MAKER, THE OBLIGOR AND THE LENDER HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
THEY OR THEIR SUCCESSORS, PERSONAL REPRESENTATIVES OR ASSIGNS MAY
HAVE TO 'A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
AND ANY AGREEMENTS CONTEMPLATEDHEREBY TO BE EXECUTED, IN
CONJUNCTION` THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
'
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
ENTERING INTO THE LOAN.
IN WITNESS WHEREOF, the undersigned have caused this
instrument to be executed the day and year first above written.
MAKER:
CITADEL ARENA CORPORATION
WITNESSES: a Florida Corporation
By:
Daniel Arias, President.
OBLIGOR:
By:
-
Daniel Arias', Individually`
By:
Miriam Arias? Individually
LKK/pb/M459 -7- 4 193
3/08/94 3:29 PM
t
rC
F
LOAN AGREEMENT
This Loan 'Agreement entered into this day of:
t
19-, by and between the City of Miami, a
..
municipal corporation of the State of Florida, hereinafter
i
referred to as "LENDER", and CITADEL ARENA CORPORATION, a,Florida, 1
(
Corporation with offices located at '2000 South Bayshore Drive,
No. 62, Miami, Florida 33133, hereinafter referred to as
"BORROWER".
NOW, THEREFORE in consideration of the mutual covenants, and
obligations herein contained, and subject to the terms and
conditions hereinafter stated, the parties hereto understand and
agree as follows:
ARTICLE .I
DEFINITIONS
As used in this Loan Agreement, the following terms shall
have the following meanings:
1.01 Assignment of Leases - means that certain Assignment
of Leases and Rents executed of even date by Borrower in favor of
Lender and assigning Borrower's rights with respect to the leases
encumbering the Property as security for the Loan together with
any amendments or modifications thereto.
1.02. City Commission - means the Mayor and the
Commissioners of the City of Miami.
1.03. City Manager - means the Chief Executive Officer of
the City or any duly authorized designee.
1.04. Completion Date - means the date the Improvements are
required to be completed as set forth in the particular Request
for Proceeds that is approved in writing by Lender.
94_ 193
AOL
x`
1.05._,Contractor(s) - means a: Florida licensed contractor
reasonably acceptable to Lender.
`
1.06. Department - means the City's Department of
Development and Housing Conservation.
1.07. Effective Gross Income - means all rental income and
other revenue actually received by Borrower in connection with
the Property, including without limitation, all past due amounts
and late fees.
1.08. Governmental Authorities - means all governmental
authorities having jurisdiction over the Property.
1.09. HUD - means the United States Department of Housing
and Urban Development and/or any duly authorized, federal
employee.
1.10. Improvement Costs - means the actual costs of
constructing the Improvements not to exceed Two Million Five
Hundred Thousand Dollars ($2.5 million).
1.11. Improvements - means all major repairs, replacements,
renovations and improvements to the Property for which Borrower
has delivered to Lender a Request for Proceeds and which
improvementsareto be completed in strict compliance with the
applicable Plans and Specifications.
1.12. Inspector - means the inspector selected by Lender in
its sole discretion to inspect the condition and progress of any
Improvements at such intervals as Lender deems appropriate, the
fees and costs of which shall be paid for by Borrower.
1.13. Loan - means the indebtedness of Borrower to Lender
as evidenced by the Promissory Note.
94— 193
-2-
1
1.14.' .Mortgage = means that certain Mortgage executed of.
even date herewith by Borrower in favor of Lender encumbering the
Property and certain other assets of Borrower as security for the
Loan and any restatements, amendments or modifications thereto.
1.15.Obligations means the obligations of Borrower
hereunder, and under the Note, Mortgage, Assignment of Leases and
Rents, Guaranty Agreement and Pledge of Stock Agreement and any
other instrument now or hereafter executed by Borrower in
connection herewith, and any modifications, renewals,
replacements, or substitutions thereof made from time to time
thereafter.
1.16. Plans and Specifications -means those certain plans
and specifications for construction of each of the Improvements
to be prepared by an architect acceptable to Lender.
1.17. Project - means the construction of a
Restaurant/Sports Bar complex.
1.18. Property - means the real property owned by Borrower
and legally described on Exhibit "A" hereto, and the fixtures,,
equipment, appliances and other personalty located thereon.
1.19. Promissory Note - means that certain Promissory Note
executed of even date herewith by Borrower in favor of Lender in
the face amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) and any renewals and replacements thereof.
1.20. Request for Proceeds - means each request prepared by
Borrower and delivered to Lender for approval, which request
shall include the nature of the particular Improvements to be
completed, the estimated date of commencement and completion, the
-3- 94 - 193
ry i�
li n+M ,t
a
k
5.02. .The interest rate payable by Borrower on the Loan
Shall' be per annum, simple interest on the actual amount
disbursed.
5.03. Borrower hereby agrees to pay to Lender the principal
and interest of the Loan, in the amount set forth below, in
addition to -payments for local surtax, documentary stamps,
intangible taxes, recording fees, and any said other
miscellaneous costs generated in relation to the Loan, including
the purchase of various required insurance policies, said
miscellaneous costs not to exceed $
5.04. Interest shall be due and payable on the amount-
disbursed, commencing on the Commencement Date and monthly
thereafter until the end of the Term of the Loan. Principal
payments based upon a thirty (30) year amortization shall be due
and payable commencing on the fourth anniversary of the
Commencement Date and monthly thereafter until the end of the
Term of the Loan, at which time a balloon payment sufficient to
pay off the entire outstanding indebtedness of principal and any
interest outstanding shall be made by Borrower to Lender.
5.05. The entire outstanding principal balance of the Loan,
and all accrued unpaid interest thereon, shall become immediately
due and payable either upon the bankruptcy, reorganization,
dissolution, or liquidation of the Borrower, or upon the sale,
partial sale, refinancing, exchange, transfer, sale under
foreclosure, or other disposition of the Property or of the
Improvements situated thereon or any other Event of Default as _
set forth in Article X herein.
-6- 9 4 - 193
5.06. .The Loan maybe prepaid at any time without penalty.
j
5.07. All payments due the Lender under this Agreement are
payable to: City of Miami, c/o Finance Director, 300 Biscayne
Boulevard Way, Miami, Florida 33131 (or to such other address as
the Lender may, in writing, designate). All payments must be
made on weekdays during regular business hours and must be within
the times required by the Lender.
5.08. Davis -Bacon prevailing wage rates must be applied to
the proceeds of the Loan that are allocated to construction of
the Project. Borrower shall use the application and certificate -
for -payment forms AIA G702 and G703 and shall abide by the
Federal Labor Standards provisions of HUD Form 4010 of
Exhibit."
5.09. Loan disbursements shall be made monthly, based upon
vouchers submitted by the Borrower, verified by the Lender, and
certified by the architect or quantity surveyor and other
certifying official who shall otherwise be a corporate officer of
Borrower as shall be acceptable to the City. All submissions by
`
contractors of "monthly requisitions shall be on AIA forms 6702
and 6703 or their equivalent. Exhibit ".
5.10 The term of the Lender Loan shall be for ten (10)
years, from date of execution of this Agreement.
ARTICLE VI
SPECIAL PROJECT ACCOUNT
6.01. Establishment of Special Project Account. Lender
shall establish a Special Project Account with the Lender's
Finance Department for the depositing and disbursement of the
Section 108 Loan proceeds.
94- 193
-7-
(b) Borrower shall have obtained a Building Permit and
r ,
all other permits required by all applicable Governmental
Authorities for construction of the Improvements and shall have
delivered copies thereof to Lender;
(c) A Notice of Commencement for the Improvements
shall have been executed and recorded after the Mortgage in the
Public Records, and a certified copy thereof posted on the
Property prior to the time that any construction shall have
occurred on the Property;
(d) Construction of the particular Improvements
complies with the applicable Plans and Specifications and with
all applicable laws, rules, restrictions, orders and regulations
of the Governmental Authorities as reasonably determined by the
Inspector;
(e) No Event of Default shall exist and no condition
shall exist which, with the passage of time or the giving of
notice, or both, would constitute an Event of Default;
(f) Borrower shall have used all previous Special
Project Account disbursements in substantial compliance with this
Loan Agreement;
(g) Borrower shall have paid all subcontractors,
materialmen, and suppliers for all work previously performed for
which Special Project Account amounts have previously been
disbursed;
(h) Borrower shall have submitted a written request
for disbursement from the Special Project Account in the form
attached hereto as Exhibit ", and Lender shall have approved
-9- 94- 193
b
it for Each request for
payment. payment shall be accompanied by
{
,q
such waivers of Tien, requisitions for payment from
subcontractorsandmaterialmen, receipts and other documents as
may be reasonably required by Lender and set forth in Exhibit
(i) Borrower shall at all times comply with the
requirements of Florida's Mechanics Lien Law in order that all
payments made by Borrower in connection with the construction of
the Improvements can be characterized as "proper payments";
7.03. Conditions Precedent to Final Disbursement for
Improvements. As conditions precedent to the making of any
disbursement from the Special Project Account which constitutes
the final payment with respect to any Improvements,, Borrower
shall have satisfied all of the following conditions, if
applicable, in a manner approved by Lender, said approval shall
not be reasonably withheld.
(a) Borrower shall have complied with all of the
conditions precedent to the making of any disbursement as set
forth in Section 7.02 of this Loan Agreement;
(b) Borrower shall have furnished Lender with a copy
of the Certificate of Occupancy issued by the applicable
Governmental Authorities;
(c) The Title Company shall have issued an endorsement
to the mortgagee title policy reflecting that no liens,
encumbrances, or matters, whether senior or inferior to the
Mortgage, have occurred w}th respect to the status of title and
containing such affirmative assurances as Lender shall reasonably
require.
-10-
94- 193
1
7.04.'•Waiver of Conditions Precedent. In the event Lender
should, make any disbursements at a time when one or more of the
conditions precedent have not been satisfied, Lender shall
nevertheless be entitled to insist that all such requirements be
satisfied before any additional disbursement from the Special
Project Account is made, unless Lender has waived the same.
7.05. Amount and Manner of Disbursement.
(a) Each disbursement of the Loan shall be made, in
the whole or in part:
(i) by disbursing the amount thereof to the
: Borrower, or
(ii) in such other manner as required by this
Agreement. Lender shall make no more than two (2) disbursements
in any calendar month.
(b) Borrower further agrees that:
(i) Lender is authorized to pay any lienors in
full or pro rata when applicable in accordance with Section
713006(3)(c) and (d), Florida Statutes. If it becomes necessary
or proper to pay any person other than Borrower or the
contractor, and a notice to such contractor is required under
Chapter 713, Florida Statutes, Borrower shall promptly give such
notice to contractor upon the written request of Lender.
Borrower shall within a reasonable time
discharge or transfer to bond any claims of lien filed against
the Property. Borrower irrevocably designates Lender its
attorney in fact for the -sole purpose of recording a Notice of
Contest of Lien under Section 713.22, Florida Statutes. Lender
. -11- 94- 193
t
i
shall.give Borrower ten (10) days written notice of its intention
to do so and the filing of such Contests shall be in Lender's
`
reasonable discretion. Notwithstanding the above, Borrower, at
Borrower's sole cost and expense, shall file and diligently
prosecute such Contests if required by Lender. Nothing herein
shall prevent Borrower from Filing a Notice of Contest.
(iii) Lender may, after ten (10) days notice to
Borrower without incurring any liability to Borrower or the
Contractor, withdraw funds from the Special Project Account and
deposit the funds with the appropriate clerk of the circuit court
under Section 713.24, Florida Statutes, in order to transfer
liens to such deposit, and any such deposit shall be charged
against Borrower's account in the same manner as any disbursement
to Borrower or for Borrower's account.
7.07. Deficiency. The Lender shall not be required to
disburse any portion of the Special Project Account if, in the
reasonable opinion of the Lender, the undisbursed Special Project
Account balance after making such disbursement is less (the
amount by which it is less being hereinafter called the
Deficiency) than the actual sum,- as estimated by the Lender,
which will be required to complete construction of all of the
Improvements for which Borrower has submitted a Request for
Proceeds in accordance with the particular Plans and
Specifications and to pay all Improvement costs and all other
costs and expenses of any nature whatsoever incurred in
connection therewith. The Borrower shall provide evidence to
Lender that funds are available in an amount equal to the
-12- 94- 193
vljo f "'
lank
l
Deficiency Within ten'(10) days after the Lender shall notify the
f
Borrower of the Deficiency, specifying in such notice.the amount
thereof.
ARTICLE VIII
CONSTRUCTION OF THE IMPROVEMENTS
8.01. Manner of Construction. The Borrower shall cause the
Improvements to be constructed and equipped in substantial
compliance with the Plans and Specifications free and clear of
all liens, encumbrances and security instruments (other than the
Mortgage). The Plans and Specifications, and each addition or
modification, shall be approved in writing by the Lender, the
Inspector, the Contractor and the Governmental Authorities, if
applicable. The Plans and Specifications as approvedby. the
Lender shall become the property of the Lender. The Improvements
shall be constructed and equipped in compliance with requirements
of the Governmental Authorities in which the Property is
situated.
8.02. Completion of the Improvements. Notwithstanding
anything to the contrary contained in this Loan Agreement, the
Improvements shall be completed on or before the Completion Date
and shall not be deemed to have been completed until permanent
certificates of occupancy and all other necessary certificates,
licenses, consents and other approvals of Governmental
Authorities acting in and for the locality in which the Property
is situated have been issued or made with respect to the
Improvements.
94- 193
-13-
x
t
i t
r
t
t
Florida as .will be reasonably designated by the Lender or HUD
'
until the termination of this Agreement.
ARTICLE X
DEFAULT
10.01. Events of Default. Each of the following, if not
{
cured within any applicable grace period, if any, shall
constitute an Event of Default:
(a) A default by Borrower in the substantial
performance of any material covenant hereunder to be performed by
or on behalf of the Borrower;
(b) The occurrence of a default under the Promissory
-'Note, the Mortgage, the Assignment of Leases and Rents, the
Guaranty Agreement, or the Pledge of 'Stock Agreement;
(c) Any Improvements that are not completed in
accordance with the particular Plans and Specifications in the
reasonable judgment of the Lender, or the Inspector selected by
Lender,,on or before the Completion Date;
(d) The Borrower executes any chattel mortgage or
other security agreement with respect to any materials, fixtures
or articles used in the construction of the Improvements or in
the operation of the Property, or purchases any such item
pursuant to a conditional sales agreement;
(f) Any warranties or representations of Borrower
contained herein or in any other instrument executed in
connection with the Loan shall at any time be untrue; or
(g) A default by Borrower with respect to any other
obligation of Borrower to Lender arising out of or in connection
with the Loan.
-15- 94- 193
Yv.i1 T+-+2 wmgg �pi;s i£ wi-q:
10.02.. Remedies. Upon the occurrence of an Event of
{
Default, Lender:
(a) Shall not have any obligation to make any further
disbursements pursuant to the terms hereof;
(b) May declare the indebtedness evidenced and secured
by the Promissory Note, this Loan Agreement, the Mortgage, and
the Assignment of Leases and Rents, immediately due and payable;
(c) May pursue any and all remedies provided for
hereunder and in the Promissory Note, the Mortgage and the
Assignment of Leases and Rents, including without..limitation, the
remedies set forth in Section 10.03 below.
10.03. Other Remedies. Upon the occurrence of an Event of
Default, whether or not the indebtedness evidenced and secured by
the Promissory Note, the Mortgage and the Assignment of' Leases
and Rents , the Guaranty Agreement, and the Pledge of Stock
Agreement, shall be due and payable or the Lender shall have
instituted any foreclosure or other action for the enforcement of _
the Mortgage, the Assignment of Leases and Rents or the
Promissory Note, the Guaranty Agreement, and the Pledge of Stock
'Agreement, the Lender may, in addition to any other remedies
which the Lender may have hereunder and in the Lender's sole and
absolute discretion:
(a) Enter upon the Property and complete the
Improvements in accordance with the Plans and Specifications with
such changes therein as the Lender may deem appropriate all at
the risk, cost and expense of the Borrower;
g4- 193
-16-
(b) Assume any construction contract made by the
Borrower and take over and use all or any part of the labor,
materials, supplies and equipment contracted by for the Borrower,
whether or not previously incorporated into the Improvements;
(c) Engage builders, contractors, architects,
engineers and others for the purpose of furnishing labor,
materials and equipment in connection with any construction of
the Improvements;
(d) Pay, settle or compromise all bills or claims
which have been or may be incurred in connection with the
construction of the Improvements;
(e) Take or refrain from taking any action that Lender
may from time to time determine appropriate in the exercise of
any right otherwise granted to it at law or in equity; and
(f) The Borrower shall be liable to the Lender for all
sums paid or incurred by the Lender to construct and equip the
Improvements whether the same shall be paid or incurred pursuant
to the provisions of this Section or otherwise, and all payments
made shall be paid by the Borrower to the Lender upon demand with
interest at the rate of interest per annum equal to the rate
described as the default rate in the Promissory Note from the
date of payment by the Lender to the date of payment by Borrower
to Lender. For the purposes of exercising the rights granted by
this Section, the Borrower hereby irrevocably constitutes and
appoints the Lender its true and lawful attorney -in -fact to
execute, acknowledge and ,deliver any instruments and to do and
perform any acts in the name and on behalf of the Borrower.
-17- 94 193
k
A
:� jj qq
x' �45i,y'
�'�
+ pp
i i �•n a
K t r
f
t
j
t
ARTICLE. XI
. ASSIGNMENT/DELE(;ATION
Permitted As by the Lender. The Lender may
11.01.
and/or grant participation interests in all or any portion
assign the
in and to this Loan Agreement,
of Lender's interest
Note, the Mortgage, the Assignment of Leases and Rents
Promissory
executed in connection with the Loan, to
and any other documents
any other person, firm or corporation.
11.02. No Assi nment or Dele ation b the Borrower. The
by the Borrower pursuant to this Agreement.
bli ations undertaken
o g firm
be delegated or assigned to any other person or
shall not.
shall first consent in writing, by
unless the City Commission
enabling resolution, to said delegation or
ssa a of an
pa g
assignment.
ARTICLE XII
INDEMNIFICATION
Section 12.01 Borrower shall pay on behalf of, indemnify.
its officials_ and/or employees, jointly and
and save Lend
and all claims, demands';
11 harmless from and against any
severally,
s, actions, debts, liabilities, and
suits, proceedinglosses,
out of Borrower 's activities,
causes of action which may arise
the
and/or under this Agreement or
uses
actions, undertakings
therewith or arising from any .
Improvements or in connection
in construction of
defective workmanship or materials occurring
the Improvements including all other acts or omissions to act on
`
other agent or representative of the
the part of Borrower, or any
or its behalf; and
s including any person acting for on
Borrower ,
costs, attorneys' fees, expenses and
from and against all
94- �.93
-1a-
i
j
r
liabilities; incurred by the City in the defense of any such .
claims including appellate legal fees, or in the investigation
-thereof`. One hundred dollars ($100.00) of the Loan proceeds
constitute separate, distinct and independent consideration given
by the Lender to the Borrower for the granting of this indemnity.
The provisions of this Section shall survive the termination of
this Loan Agreement and the repayment of the Loan.
ARTICLE XIII
INSURANCE REQUIREMENTS
Section 13.01. The Borrower shall provide to the Lender
prior to the execution hereof, a Commercial General Liability,
Comprehensive General Liability or equivalent on an Occurrence
Form with a'minimum limit of One Million Dollars per occurrence
covering premises operations, bodily injury and property damage
which shall include the following endorsements:
a. contractual coverage;
b. the. Lender named as additional insured;
C. Broad Form property endorsements;
d. products and completed operations;
e. independent contractors;
f. personal injury liability; and
Borrower shall obtain additional insurance coverage to
include:
a. Builder's Risk Policy maintained to full value.
b. Property Policy to include fire and extended
coverage.
C. Flood coverage including contents to full value.
-19- 94- 193
t
d, Loss of Income Coverage.
e. Proof of Worker's Compensation shall be provided
per statutory limits (Chapter 440, Florida Statutes).
Section 13.02. Compliance with Insurance Requirements. The
Borrower shall not violate or permit any occupant of the Project,
or any part thereof, to violate any of the conditions or
provisions of any such policy, and Borrower shall so perform and
satisfy the requirements of the companies writing such policies
so that at all times companies of A+ III Rating by the latest
edition of Best's Key Rating Guide standing shall be willing to
write and/or continue such insurance
Section 13.03. Deposit of Certificates Copies of
Certificates of Insurance evidencing the coverage to be
maintained by Borrower herein shall be delivered to the Lender's
Insurance Manager. In connection with all insurance policies
required to be maintained in accordance with the provisions of
this Article, Borrower shall, at least thirty (30) days prior to
the expiration of any such policy, deliver to the Lender's
Insurance Manager copies of renewal policies evidencing the
existence thereof, to the parties hereinabove provided.
ARTICLE XIV
PAYMENT AND PERFORMANCE BONDS
Section 14.01. Borrower agrees to require its Contractor to
provide payment and performance bonds in compliance with Section
255.05, Florida Statues, issued by Florida licensed surety
companies and subject to the Insurance Manager and City
Attorney's approval. Said Bonds shall remain in operative force
-20- 9 4 - 193
15604.. Waivers. Except as may be otherwise provided;
Lender .may at any time and from timetotime waive any, one or,
more of the conditions contained herein, but any such waiver
shall be deemed to be made in pursuance hereof and not in
modification hereof, and any such waiver in any instance or under
any particular circumstance shall not be considered a waiver of
such condition in any other instance or any other circumstance.
15.05. Governing Law/Venue. This Agreement is and shall be
deemed to be a contract entered into pursuant to the laws of the
State of Florida and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of
the State of Florida. Venue in any civil action arising out of
this Agreement 'shall be in courts of competent jurisdiction
_situated in Dade County, Florida.
15.06. Severability. If any term, covenant or condition of
this Loan Agreement shall be held to be invalid, illegal or
unenforceable in any respect, this Loan Agreement shall be
construed without such term, covenant or condition.
15.07. Notices. All notices or other communications which`
shall or may be given pursuant to this .Agreement shall be in
writing and shall. be delivered by personal service, or by
registered mail, at the address indicated herein or as the same
may be changed from time to time. Such notice shall be deemed
given on the day on which personally served; or, if by mail, on
the fifth (5th) day after being posted or on the date of actual
receipt, whichever is earlier:
-az- 94- 193
r
ti
CITY OF MIAMI BORROWER
City Manager Citadel Arena Corporation
3500 Pan American Drive 2000 South Bayshore Drive, #62
Miami, Florida 33133 Miami, Florida 33133
WITH COPIES TO'=
Director of Department of
Development and Housing Conservation
300 Biscayne Boulevard Way
Suite 400
Miami, Florida 33131
15.08. Amendments, etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Lender and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 15.09. Independent Contractor/Lender Not a Partner
of Borrower. (a) Borrower and its employees and other agents,
shall be deemed to be independent contractors, and not agents or
employees of Lender, and shall not attain any rights or benefits
under the Civil Service or Pension Ordinances of Lender or any
rights generally afforded classified or unclassified employees.
They also shall not be deemed entitled to the Florida Worker's
Compensation or Unemployment Benefits as employees of the Lender.
(b) Nothing contained in this Agreement, nor any act
of HUD, the Lender, the Borrower, or any of the parties, shall be
deemed or construed by any of the parties, or by any third
persons, to create any relationship of third -party beneficiary,
principal and agent, authorized representative, a limited or
general partnership relationship, or joint venture, or of any
94- 193
-23-
t
i
,association, or relationship involving HUD and/or Lender. with
Borrower.
Section 15.10. Compliance with Federal, with FederalState and Localand Local
Laws. Both parties shall comply with all applicable liws',
ordinances, and technical codes of federal, state and local
governments.
Section 15.11. Award of Agreement. Borrower warrants that
it has not employed or retained any person employed by the Lender
to solicit or secure this Agreement and that it has not offered
to pay, paid, or agreed to pay any person employed by the Lender
any fee, commission percentage, brokerage fee, or gift for the
award of this Agreement.
Section 15.12. Recapture of Funds. Lender shall reserve
the right to recapture funds when the Borrower shall fail: (i)
to comply with the terms of this Agreement, its exhibits, and
relevant laws referred to therein, or (ii) to accept conditions
imposed by Lender at the direction of federal, state and local
agencies. This Section is provided for without prejudice to the
Lender's other rights and remedies, which it expressly reserves
and retains.
Section 15.13. Nondiscrimination. Borrower agrees that it
shall not discriminate as to race, sex, color, age, creed,
national origin or handicap in connection with its performance
-
under this Agreement.
Section 15.14. Entire Agreement. This Agreement and its
exhibits (whether attached or deemed as being incorporated by"
reference) contain the. entire agreement between the parties and
-24- 94_ 193
i
L
BORROWERt
CITADEL ARENA CORPORATION a
i"
Florida corporation,
the
WITNESSES:
general partner
t
B Y
F_
�
Daniel Arias
(Tithe);
President
(Seal),
APPROVED: AS TO INSURANCE
APPROVED AS TO FORM
AND
REQUIREMENTS:
CORRECTNESS:
Risk Management
A. QUINN JONES, III
City Attorney
LKK/pb/461
Attachments
Rev. 3/09/94 1:16 PM
t
i
-26- 94-
i,
193
i
r,.
r
r
AOL
+
EXHIBIT "B"
LOAN
ADVANCE REQUISITION
Loan No.:
Date:
Borrower:
Property:
Requisition No.
Amount Requested:
AFFIDAVIT
STATE OF FLORIDA)
)SS:
COUNTY OF DADE )
THE UNDERSIGNED AFFIANT
CERTIFIES:
1. THAT affiant is
authorized to requisition loan advances
under the Loan
-Agreement executed in connection with
this loan.
2. THAT the disbursement requested is for the item(s)
listed on Exhibit
"A" attached hereto each of which
constitutes a
proper payment under the terms of the'
Loan Agreement.
3. THIS AFFIDAVIT
is made for the purpose of inducing the
City of Miami ("Lender")
to advance and disburse funds
as heretofore
agreed upon by Borrower and Lender's
mortgage lien
in the aggregate amount of all
disbursements.
4. No notices or claims of lien have been received except:
-28-4- 193
y
ry
t
1F
f
i
5. No NOTICE TO OWNER
has been received except:
FURTHER.AFFIANT SAITH NOT.
Sworn to and subscribed
before me this
day of
1994.
is personally
known to me (YES) (NO) or has
produced
as identification and,did take an oath.
Notary Public,
State of Florida
at Large
(Print Name of
Notary]
My Commission Expires:
LKK/pb/M461
y
Rev. 3/08/94 2:50 PM
-
94- 193
-29-
f
AGREEMENT
THIS AGREEMENT made as of this day of ,
1994, between CITY OF MIAMI, a municipal corporation of the State
of Florida, having an address at 'c/o Director, Departmentof
Development and Housing Conservation, 300 Biscayne Boulevard Way,
Suite 400, Miami, Florida 33131 (hereinafter referred to as the
"Second Mortgagee"); THE BANK OF TOKYO, LTD., having an address at
2100 Ponce de Leon Boulevard, Penthouse Suite, Coral Gables,
Florida 33134 (hereinafter referred to as the "First Mortgagee");
and CITADEL ARENA CORPORATION, a Florida corporation having an
address at c/o Daniel Arias, 2000 South Bayshore Drive, Villa 62,
Miami, Florida 33133 (hereinafter referred to as the "Mortgagor");
W I T N E S S E T H:
WHEREAS,. Mortgagor is the fee owner of the property
legally described in Exhibit "A" attached hereto and is theowner
of the other property encumbered by the First Mortgage Documents
(all of the foregoing property being herein called the "Mortgaged
Property");
WHEREAS, First Mortgagee is the owner and holder of a
note in the original principal sum of $750,000.00 dated March 18,
1988, secured by a mortgage made by Daniel Arias and Miriam Arias
to First Mortgagee dated March 18, 1988, recorded in Official
Records Book 13614 at Page 552, as such note and mortgage are
modified by Amendment of Note and Mortgage Agreement dated as of
March 18, 1993, recorded in Official Records Book 16162 at Page
4398 and Modification of Mortgage Agreement dated as of August 23,
1993 recorded in Official Records Book 16162 at Page 4394, all in
the Public Records of Dade County, Florida, and a Renewal Note
dated August 23,.1993, as such documents are modified and assumed
by Note, Mortgage and Assignment Modification and Assumption
Agreement dated of even date herewith between Daniel Arias and
Miriam Arias, his wife, Mortgagor and First Mortgagee, and as
further modified by a Second Renewal Note dated of even date
herewith and a Second Modification of Mortgage and Assignment
Agreement of even date herewith to be recorded in the Public -
Records of Dade County, Florida, which mortgage instruments
encumber the Mortgaged Property (which mortgage as modified and any
other security instruments securing the aforesaid note as modified
by the Amendment of Note and Mortgage Agreement, the -Renewal Note
and the Second Renewal Note, including the Assignment of Lessor's
-Interest in Leases made by Daniel Arias and.Miriam Arias to First
Mortgagee dated March 18, 1988, recorded in Official Records Book
13614 at Page 569 of the Public Records of Dade County, Florida,
are herein collectively referred to as the "First Mortgage
Documents");
WHEREAS, Second Mortgagee is about to. make a
$2,500,000.00 construction loan to Mortgagor evidenced by a note in
the original principal sum of $2,500,000.00,"dated of even date
herewith, to be advanced pursuant to a loan agreement of even date
herewith and secured by a mortgage and security agreement and an
assignment of leases and rents from Mortgagor to Second Mortgagee
dated of even date herewith, to be recorded in the Public Records
of Dade County, Florida (which mortgage and security agreement,
PREPARED BY AND RETURN TO:
ROBERT C. SOMMERVILLE, P.A.
SHUTTS & BOWEN 1
222 Lakeview Avenue, Suite 1000 v 1, 4 - 193
West Palm Beach, Florida ' 33401
r-
assignment of leases and rents, loan. agreement and any other"
security instruments securing, the aforesaid $2,500,000.00 note.are,
herein collectively referred to as the "Second Mortgage (;
Documents"); G
WHEREAS, as an inducement and condition for Second
Mortgagee making the loan secured by the Second Mortgage Documents f
and for First Mortgagee consenting to such loan and modifying the
First Mortgagee's loan by the Second Renewal Note and-the'.Second
Modification of Mortgage and Assignment Agreement, the parties
hereto have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
sum of $10.00 and other good and valuable considerations, the
receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Notwithstanding any provision to the contrary in the
First Mortgage Documents, First. Mortgagee hereby consents to the
execution and delivery of the Second Mortgage Documents, and agrees
that the execution and delivery of the Second Mortgage Documents do
not cause, create or constitute a default under any provisions of
the First Mortgage Documents.
2. First Mortgagee hereby consents to the proposed
construction of a building and other improvements on, and
constituting a part of, the Mortgaged Property as more particularly
described in Exhibit "B" hereto (the "Work") in substantial
compliance with the plans and specifications for the Work to be
approved by the Second Mortgagee (the "Plans"). Mortgagor shall
deliver to First Mortgagee a copy of such Plans approved by Second
Mortgagee before beginning construction. Second Mortgagee and
Mortgagor agree that the estimated cost of the Work described by
the Plans 'shall not exceed a total maximum cost of $
3. Second Mortgagee does'hereby declare and agree that
the Second Mortgage Documents are and shall continue to be subject
and subordinate to the lien, security interest and all of the terms
and conditions of the First Mortgage Documents (including, without
limitation, any assignments of or rights with respect to leases or
rents or condemnation awards or insurance proceeds or any other
income or proceeds of the Mortgaged Property), as same may be from
time to time amended, supplemented, restated, renewed, extended,
consolidated or modified.
4. Any lien, security interest, encumbrance, estate,
right or any other interest which Second Mortgagee may hereafter
obtain or acquire, directly or indirectly, by subordination,
subrogation or otherwise, with respect to the Mortgaged Property or
any part thereof, and whether or not secured by.any of the Second
Mortgage Documents, shall be subject and subordinate to the First
Mortgage Documents.
5. If any action or proceeding shall be brought to
foreclose or otherwise enforce the Second Mortgage Documents, no
tenant of any portion of the Mortgaged Property will be named. as a
party defendant, nor will any action be taken with respect to the
Mortgaged Property which would terminate any tenancy of the
Mortgaged Property or service contract relating to the Mortgaged
Property without the prior written consent of First Mortgagee,
unless such tenant or service contractor is in default beyond any
grace period in its tenant lease or service contract.
6. All rights of Second Mortgagee with respect to
insurance proceeds, condemnation awards, rents, issues, profits and
other income or proceeds of the Mortgaged Property set forth in the
Second Mortgage Documents or otherwise shall be subject and
subordinate to the First Mortgage Documents and the rights of First
Mortgagee thereunder, subject to the further provisions of this
paragraph with respect to insurance 'proceeds and condemnation
4- 193
awards and the,provisions'of paragraph,10 of this Agreement with
respect to rents,.issues and profits. If First Mortgagee, Second
Mortgagee or Mortgagor shall receive any insurance proceeds or
condemnation awards with respect to the Mortgaged Property, same
shall be applied in accordance with the terms and provisions of the
First Mortgage Documents or any election made thereunder by First
Mortgagee.
7. Upon request of First Mortgagee, Second Mortgagee
shall execute and deliver to First Mortgagee such further documents
as First Mortgagee may reasonably request in order to confirm the
subordination of the Second Mortgage Documents to the First
Mortgage Documents, as the First Mortgage Documents may from time
to time be amended, supplemented, restated, extended, renewed,
consolidated or modified.
8. No failure to exercise and no delay in exercising on
the part of First Mortgagee of any right, power or privilege under
the First Mortgage Documents or this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, power or privilege under the First Mortgage Documents or
this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege provided by
law. The rights and remedies provided in this Agreement, the First
Mortgage Documents and all other agreements, instruments and
documents referred to in any of the foregoing shall be cumulative
and shall not be exclusive of any right or remedies provided by
law.
9. At least ten (10) days prior to accelerating the
indebtedness secured by the Second Mortgage Documents or the Second
Mortgagee's institution of any action or proceeding to enforce any
right or remedy under the Second Mortgage Documents, including
without limitation, any foreclosure action or the appointment of
any receiver, or action to become a mortgagee in possession or
action to enforce an assignment of rents or sequestration of rents
or otherwise obtain the income generated by the Mortgaged Property,
Second Mortgagee shall give First Mortgagee written notice of the
default by Mortgagor under the Second Mortgage Documents or other
event resulting in any such action by Second Mortgagee.
10. So long as the First Mortgage Documents and the
indebtedness secured thereby shall remain unsatisfied, the rents,
issues and profits and other income or proceeds of or generated by
the Mortgaged Property if collected through a receiver or by First
Mortgagee or by Second Mortgagee or by rent sequestration or other
legal procedure by virtue of First Mortgagee's or -Second
Mortgagee's exercise of its rights and remedies (herein
collectively referred to as "Collected Mortgaged Property Income")
shall be applied first to payment of taxes, insurance, maintenance.
and operating charges and- reasonable reserves for such items
(including, without limitation, payment of that portion of the
Monthly Deposit Payment due under the First Mortgage Documents into
the Sinking Fund Account for the payment of annual taxes and
insurance premiums); second to payment of the then current Monthly
Deposit Payment due under the First Mortgage Documents into the
Sinking Fund Account for the payment of monthly interest payments
and semiannual payments of principal due under the Second Renewal
Note and the First Mortgage Documents, any accrued unpaid
installments of principal or interest due under the Second Renewal
Note and any other obligations then due which are secured by the
First Mortgage Documents (including reasonable attorneys' fees and
other costs of collection incurred by the First Mortgagee) and
third to the payment of the then current monthly .interest and
principal payments due Second Mortgagee under the Second Mortgage
j: Documents and the note secured thereby and any accrued unpaid
j., installments of principal or interest due under the Second Mortgage
j Documents and the note secured thereby. Any remaining amount of
Collected Mortgaged Proper•Ly Income after payment of the items set
forth in the preceding sentence, if any, shall be paid to First
-3- 94- 193
Mortgagee to be applied to reduction of the unpaid principal
indebtedness secured by the First Mortgage Documents. . It is
further agreed that at any time while Second Mortgagee is
collecting any Collected Mortgaged Property Income, First
Mortgagee, at its option, may seek the appointment of a receiver to
collect such items or may collect such items itself, and Second
Mortgagee shall execute and deliver such documents and take such
action as may, be requested by First Mortgagee to enable First
Mortgagee to obtain the appointment of a receiver of its own choice
or to enable First Mortgagee to collect the Collected Mortgaged
Property Income and otherwise to provide First Mortgagee with
paramount. control of such remedies with respect to the Collected
Mortgaged Property Income. In the event First Mortgagee or Second
Mortgagee is collecting the Collected Mortgaged Property Income,'
then such collecting party shall furnish the other parties to this
Agreement with a monthly report of such collections and
disbursements in reasonable detail.
From such time as First Mortgagee shall give Second
Mortgagee Notice of any monetary default under the First Mortgage
Documents or the Second Renewal Note secured thereby, and until
such default shall be cured, waived or the First Mortgage Documents
and the indebtedness secured thereby be satisfied, Second Mortgagee
shall not receive. or accept any payment in respect of any sum
secured by the Second Mortgage Documents. Any payments received by
second Mortgagee after receipt from First Mortgagee of the Notice
of default by Mortgagor shall be promptly remitted to First
Mortgagee to the extent of the amount then due First Mortgagee
under the First Mortgage Documents and the indebtedness secured
thereby.and Second Mortgagee shall promptly notify First Mortgagee
of such receipt. Nothing in this Agreement shall, unless and until
such time Second Mortgagee has received Notice of a monetary
default under the First Mortgage Documents or the Second Renewal
Note secured thereby from First Mortgagee, preclude Second
Mortgagee from accepting and applying any payment received under
the Second Mortgage Documents or on the indebtedness secured
thereby.
11. Notwithstanding anything to the contrary which may
be contained in the First Mortgage Documents, so long as the Second
Mortgage and the indebtedness secured thereby shall remain
unsatisfied, First Mortgagee shall take no action to accelerate the
indebtedness secured by the.First Mortgage Documents or to file a
foreclosure action as a result of a default thereunder ("Default")
without first giving Second Mortgagee written notice of such
Default ("Default Notice To Second Mortgagee") and the right (but
Second Mortgagee shall not be obligated) to cure such Default
within a period of fifteen (15) days for monetary Defaults and
thirty (30) days for non -monetary Defaults after such notice is
given to Second Mortgagee; provided if such non -monetary Default
cannot reasonably be cured within such thirty (30) day period, and
Second Mortgagee or Mortgagor shall have given notice to First
Mortgagee that either of them intend to cure the Default and have
commenced a cure and shall be diligently prosecuting same within
such thirty (30) day period (and further delay does not jeopardize
or ,impair the lien or security of the First Mortgagee or subject
the First Mortgagee to criminal liability), then such thirty (30)
day period shall be extended for a reasonable period of time by
First Mortgagee, but in no event in excess of one hundred twenty
(120) days after such Default Notice to Second Mortgagee is given
(the foregoing cure periods set forth in this sentence are
hereinafter referred to as the "Initial Cure Periods"). First
Mortgagee agrees with Second Mortgagee that First Mortgagee shall
not hold a foreclosure sale in any foreclosure action filed as a
result of such Default until the expiration of one hundred eighty
(180) days after Default Notice To Second Mortgagee is given by
First Mortgagee to Second Mortgagee (the "Second Mortgagee's 180
Day Cure Period") and Second Mortgagee shall have the right (but
shall not be obligated) to cure the Default and all other
subsequent defaults continuing uncured under the First Mortgage
-4-
34-- 193
Documents to the date of Second Mortgagee's curing of the Default,'
including without limitation, the payment of all of ,First
Mortgagee's costs (including reasonable attorneys' fees) incurred
by First Mortgagee in the foreclosure action or in otherwise.
enforcing its rights and remedies under the First Mortgage
Documents (such subsequent defaults and costs are collectively.
referred to as "Subsequent Defaults"). In the event Second,
Mortgagee cures the Default and the Subsequent Defaults within the.
Second Mortgagee's 180 Day Cure Period so that there are then no
outstanding uncured defaults under the First Mortgage Documents,
then First Mortgagee shall file a voluntary dismissal of the
foreclosure action. if the Default and the Subsequent Defaults are
not both cured within the Second Mortgagee's 180 Day Cure Period
(it being agreed that any payment to First Mortgagee shall first be
applied to satisfaction of any outstanding Subsequent Defaults
before being applied to satisfaction of the Default and that all
Subsequent Defaults must be cured by Second Mortgagee before Second
Mortgagee may cure the Default), then the foreclosure sale may be
held at any time at First Mortgagee's sole option. Notwithstanding
the foregoing, if Second Mortgagee or its assignee or nominee
obtains title to the Mortgaged Property or any portion thereof by
purchase at a foreclosure sale with respect to the Second Mortgage
Documents or by a deed in lieu of foreclosure, or otherwise, then.
the Second Mortgagee's 180 Day Cure Period shall expire on the date
of such acquisition of title ("Expiration Date") and the
foreclosure sale with respect to the First Mortgagee Documents may
be held at any time after the Expiration Date.
It is understood and agreed that the provisions of
this paragraph it are solely for the benefit of First Mortgagee and
Second Mortgagee and the provisions of this paragraph may be
modified or waived by written agreement of First Mortgagee and
Second Mortgagee without prior notice to or the consent of the
Mortgagor. It is further agreed that nothing set forth in this
paragraph shall impair or adversely affect the lienandfirst
priority of the First Mortgage. Nothing in this paragraph 11 shall
impair or prevent or adversely affect First Mortgagee's right to
collect the rents, issues and profits and other income or proceeds
of or generated by the Mortgaged Property by appointment of a
receiver or as a mortgagee in possession or under the Assignment of
Lessor's Interest in Leases or any of the other First Mortgage
Documents or by rent sequestration or other legal procedure or
otherwise and to have .such. Collected Mortgaged Property Income
applied as provided in paragraph 10 of this Agreement during the
time that any default is continuing under any of the First Mortgage
Documents, whether during the Second Mortgagee's 180 Day Cure
Period or the Initial Cure Period and with or without the filing of
a foreclosure action.
12. First Mortgagee shall not make any future advances
under the First Mortgage ..Documents without the prior written
consent of Second Mortgagee, except for advances made for real
estate taxes, insurance premiums or.other advances to protect and
preserve its lien and security interest in, or the value of, the
Mortgaged Property. First Mortgagee shall not. modify the First
Mortgage Documents so as to increase the stated monthly interest
payments or principal payments without the prior written consent of
Second Mortgagee.
13. Second Mortgagee shall not make any future advances
under the Second Mortgage Documents without the prior written
consent of First Mortgagee, except for advances made for real
estate taxes, insurance premiums or other advances to protect and
preserve its lien and security interest in, or the value of, the
Mortgaged Property. Second Mortgagee shall not modify the Second
Mortgage Documents so as to increase the stated monthly interest
payments or principal payments without the prior written consent of
First Mortgagee. V ,t _,
193
-5-
;:r .
14. This Agreement shall terminate and cease to be of
any further force or effect upon release or satisfaction of the.
First MortgageDocumentsby instrument executedby the 'First
Mortgagee and recorded in the Public - Records of Dade County,
Florida; provided, however, that this. Agreement shall continue to
be effective, or be reinstated, as the case may be, if, at any
time, payment of the indebtedness secured by the First Mortgage
Documents, or any part thereof, is rescinded or must otherwise be
restored or returned by the First Mortgagee upon the insolvency,
liquidation or reorganization of Mortgagor, or upon or as a,result
of the appointment of a receiver, or conservator of, or trustee or
similar officer for, Mortgagor, or any substantial part of its
property, or otherwise, all as though such payments had not been
made.
15. Without any notice to or consent by Second
Mortgagee, without limiting or diminishing any rights or remedies
of First Mortgagee hereunder, and without any other action on the
part of First Mortgagee in respect of Second Mortgagee, any demand
for payment of the indebtedness secured by the First Mortgage
Documents made by the First Mortgagee may be rescinded, and the
indebtedness secured by the First 'Mortgage Documents and the
instruments evidencing and securing the indebtedness secured by.the
First Mortgage Documents, the liability of Mortgagor with respect "
thereto and any,collateral sec rity therefor may from time to_tima
be renewed, extended, modified,�ompromised, waived, surrendered or
release provided, however, F st MoXUAg,.9_g9Z9& •to mouse its best
efforts o g veo ec�Mortgages a courtesy notice of any of-fh
foregoing actions ("Actions"), but failure to givesuchnotic
shall not prevent, impair or invalidate in any manner whatsoeve
any of the Actions.
16 All notices, demands, requests, approvals, consents
or other communications (hereinafter collectively called"Notices")
required or permitted under this Agreement to be given by,any,of
the parties hereto to any other party shall be in writing and shall
be sent by registered or certified mail, postage prepaid, return
receipt requested,.addressed to the parties at the addresses set
forth below or such other address or addresses as they may
theretofore have specified by like Notices:
If to the First Mortgagee:
The Bank of Tokyo, Ltd.
2100 Ponce de Leon Boulevard
Penthouse Suite
Coral Gables, Florida 33134
Attention: Real Estate Lending
If to Second Mortgagee:
City of Miami
C/o Director
Department of Development
and Housing Conservation
300 Biscayne Boulevard Way
Suite 400
Miami, Florida 33131
If to Mortgagor:
Citadel Arena Corporation
c/o Daniel Arias
2000 South Bayshore Drive
Villa 62
Miami, Florida 33133
-6-
94_ 193
18. This Agreement shall be'binding upon and inure to
the benefit of the parties hereto, their respective heirs, personal
representatives, successors and assigns.
14. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed and
interpreted.in accordance with the laws of the State of Florida.•
20. The amount of principal indebtedness presently
unpaid and outstanding under the Second Renewal Note secured by the
First Mortgage Documents is $700,000,00.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
WITNESSES: FIRST MORTGAGEE:
THE BANK OF TOKYO, LTD.
By;
Print Name: Name:
Title:
Print Name: Address:
2100 Ponce de Leon Boulevard
Penthouse Suite
Coral Gables, Florida 33134
SECOND MORTGAGEE:
CITY OF MiAMr, a municipal
corporation of the State of
Florida
By:
Print Name: Name: Cesar H. Odio
Title: City Manager_
Print Name: Address:
c/o Director
Department of Development and
ATTEST: Housing Conservation
300 Biscayne Boulevard Way
Suite 400
Miami, Florida 33131
Name: Matty Hirai
Title:. City Clerk
_7_
V A 193
MORTGAGORS
CITADEL ARENACORPORATION, a
Florida corporation
By:
Print Name:
Name: Daniel Arias
Title: President
Print Name:
(CORPORATE SEAL)
Address:
c/o Daniel Arias
2000 South Bayshore Drive
Villa 62
Miami, Florida 33133
STATE OF FLORIDA
)
COUNTY OF DADE
)
The foregoing instrument was acknowledged before me this
day of
, 1994 by as
of THE BANK OF TOKYO, LTD., on behalf
of such entity.
He is personally known to me or has produced a
Motor Vehicle Driver License as identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My commission expires:
Serial No., if any:
STATE OF FLORIDA
)
COUNTY OF DADE
)
The foregoing instrument was acknowledged before me this:
day of
, 1994 by CESAR H. ODIO•as City Manager of. THE
CITY OF MIAMI, a
municipal corporation of the State of Florida, on
behalf of such
entity. He is personally known. to me or has
produced a Motor
Vehicle Driver License as identification.
NOTAR PUBLIC
Typed or Printed Name of Notary
My commission expires:
Serial No., if any:
9- 193
-B-
h.f'V r+2a.+W'bi 3f`i"'t,' i i1 ?"iVuN-4 xtti Lf*:tPT ✓15T+hty"
v' r4 r
A J
'
STATE OF FLORIDA )
r
COUNTY OF DADE )
n
The foregoing instrument was acknowledged before me this
{
day of , 1994 by DANIEL ARIAS, as President of
CITADEL ARENA CORPORATION, a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced a Motor.
Vehicle Driver License as identification.
NOTARY PUBLIC
Typed or Printed Name of Notary
My commission expires:
Serial No., if any:
WESTPALM 30777.1= MET
U4- 193
-9-
1Sz4�'3 r .i •�
� Rr
, i 3
f3..,.,.
EXHIBIT "S" .
0
'x+Y+
7
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
To": , Honorable Mayor and Members DATE : MAR 3 1994 FILE'
of the City Commission
SUBJECT: Section 108 Loan for
the Citadel Complex
FROM : REFERENCES
Ces City Commission Meeting
City ger ENCLOSURES: of March 24,1994 -
RECOMMENDATION:
It is respectfully recommended that the City Commission adopt the attached Resolution,
authorizing the City Manager to execute a Loan Agreement, Mortgage/Security
Agreement, and Promissory Note, in substantially the attached forms, with the Citadel
Arena Corporation Inc. (Citadel'), for a $2.5 million loan under the United States
Department of Housing and Urban Development {"HUD") Section 108 Program, and an
Agreement, in.substantially the attached form, with Citadel, the Bank of Tokyo, Ltd., for
the purpose of financing the development of a Restaurants/Sports Bar Complex, in the
S.E. Overtown/Park West Community Redevelopment District, at approximately NW'5th
Street and NW 1 st Avenue, Miami.
BACKGROUND:
The Department of Development and Housing Conservation recommends the approval
of the attached Resolution to lend $2.5 Million to the Citadel Arena Corporation Inc. for
the purpose of developing a vacant land and restoring an historic structure in the S.E.
Overtown/Park West District.
On December 10, 1992, the City Commission approved Resolution 92-812, authorizing
the City Manager to submit a loan application to HUD in connection with the financing of
the proposed project. The application was approved by HUD on September 8, 1993,
based on the projects location and its objective to create over 150 jobs.
4 The proposed loan is structured as a construction loan which will become a mortgage as
the construction is completed. The loan/mortgage shall be paid by the revenues from the,
22
` project and the City, as the applicant for the HUD Section 108 Loan, shall pledge its
future Community Development Block Grant entitlements as collateral.
94- 193