HomeMy WebLinkAboutSubmittal-Commissioner Francis Suarez-Aprroved Leasehold Mortgage SNDASubmitted into the public
record f r ite (s)
on �.��. City Clerk
APPROVED LEASEHOLD MORTGAGEE SNDA
Prepared By and Return to
Andrew S. Robins, Esq.
Gunster, Yoakley & Stewart P.A.
500 E. Broward Blvd., Suite 1400
Ft. Lauderdale, Florida 33394
SPACE ABOVE THIS LINE FOR RECORDING DATA
SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT
AGREEMENT (this "Agreement") made as of the t40" day of Ma ry4 , 2015 by and
among THE CITY OF AIIAW a municipal corporation of the State of Florida ("Lessor'l,
FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited 'ability company ("Lessee")YOA
and 0,1eq, �1� �aJPfiLla nd 1 i . !I ( `Leasehold Mortgagee �. s¢
or
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VVTTNESSETH:
WHEREAS, Lessor is the owner in fee simple of certain real property more particularly
described in EALibit "A", attached hereto and incorporated herein by this reference (the
"Property'l; andd "Grp- c t 1�
MAC;4a �en�Oanea�,,�,Mane" Q,e,� �t�.
WHEREAS, pursuant to that certainV Ground Lease dated j4cl V 'I , 24 (the
"Ground Lease", a memorandum of which was recorded in Official Records Book at
Page, of the Public Records of Miami -Dade County, Florida, Lessor has leased the
Property to Lessee, subject to and in accordance with the terms and conditions of the Ground
Lease (unless otherwise defined herein, all capitalized terms used herein shall have the respective
meanings ascribed to them in the Ground Lease); and
WHEREAS, pursuant to the Ground Lease, Lessee is the owner and holder of the
Leasehold Estate during the Lease Term, and Lessee is and shall be, during the Lease Term, the
owner and holder of all Leasehold lmprovements now or hereafter constructed on the Property;
and
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WHEREAS, Leasehold Mohas agreed to make a loan in the original face amount
of meg( ($i p,7T,>6to Lessee as the same may be amended, modified, restated, renewed
or extended from time to time, the "Loan"); and
WHEREAS, the Loan will be evidenced by a mortgage mote (as the saner may be
amended, modified, restated, renewed, substituted or extended from time to time, the "Note")
made by Lessee to the order of Leasehold Mortgagee and will be secured by, among other things,
a mortgage and other security documents more particularly described in Exhibit "B", attached
hereto (as the same may be amended, modified, restated, renewed, substituted or extended from
time to timer collectively, the `Leasehold Mortgage') made by Lessee to Leasehold Mortgagee,
which Leasehold Mortgage will encumber the Leasehold Estate and the Leasehold
Improvements (the Note, the Leasehold Mortgage and all other documents and instruments
which evidence, secure or are otherwise related to the Loss, as the same may be amended,
modified, restated, renewed, substituted or extended from time to time, are sometimes hereinaffer
collectively refected to the `Leasehold Loan Documents").
NOW, THEREFORE, the part= hereto, in consideration of the covenants coutmed
herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby agree as follows:
1. RECTTALS. The foregoing recitals are true and correct and incorporated herein
by this reference.
2. LESSOR'S FEE ESTATE NOT ENCUMBERED BY LEASEHOLD
MORTGAGE. Leasehold Mortgagee hereby acknowledges and agrees that the leasehold
Mortgagee does not and shall not encumber or constitute a lien upon Lessor's fee simple estate in
the Property.
3. LESSOR'S ACKNOWLEDGMENT OF LEASEHOLD MORTGAGE.
Pursuant to any and all applicable provisions of the Ground Lease, Lessor hereby irrevocably
and fully consents to the execution and delivery (and recordation, where applicable) of the
Leasehold Mortgage and other Leasehold Loan Documents. Lessor hereby further acknowledges
and agrees as follows: l
(a) Annroved Lender. Leasehold Mortgagee hereby is, and shall at all times
until all obligations secured by the Leasehold Mortgage have been paid in full or
the Leasehold Mortgage has been fully released and satisfied, whichevei► oc6m
first, be deemed an Approved Lender, an Approved Leasehold Mortgagee and an
Approved Mortgagee, as such terms are defined, described and used in the
Ground Leese. As used herein, the term "L.easehold Mortgagee" shall include: (x)
each and every successor of Leasehold Mortgagee; and (y) each and every
assignee of Leasehold Mortgagee, so Long as assignee independently meets the
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criteria set forth in clauses (i) through (vi) of the definition of Approved Lender
contained in the Ground Lease (subject to the last sentence of clause (viii) of such
definition).
(b) Approved Mcg.
(i) General. The Leasehold Mortgage hereby is, and shall at all tines
until all obligations secured by the Leasehold Mortgage have been
paid in full, or the Leasehold Mortgage has been fully released and
satisfied, whichever occurs first, be deemed an Approved
Mortgage and an Approved Leasehold Mortgage, as such terms are
defined, described, and used in the Ground Lease.
(ii) Optional Advances. Notwithstanding the provisions of
subparagraph (a) above, no Optional Advance (as hereinafter
defined) shall be deemed secured by an Approved Mortgage or an
Approved leasehold Mortgage unless and until the provisions of
clauses (iii) and (iv) of Section 6.1(b) of the Ground Lease are
independently satisfied as to such Optional Advance. Each such
Optional Advance shall be treated as a separate loan for purposes
of satisfying the provisions of claws (iu) and (Iv) of Section
6.1(b) of the Ground lease. Upon Leasehold Mortgagee's request
and delivery of evidence reasonably satisfactory to Lessor that the
provisions of clauses (iii) and (iv) of Section 6.1(b) of the Ground
Lease are independently satisfied as to any such Optional Advance,
Lessor shall execute a written acknowledgement confirming that
such Optional Advance independently satisfies the requirements of
such clauses (iii) and (iv).
(iii) Definition of Optional Advances. The term "Optional Advance"
shall mean: (x) a future advance under the Leasehold Mortgage
which is entirely within Leasehold Mortgagee's discretion to
make; or (y) any advance of additional funds pursuant to a fixture
modification of the Leasehold Mortgage; provided, however, that
in no event shall the term "Optional Advance" be deeded to
include any advances or disbursements for construction or other
purposes which are made upon the satisfaction or waiver of certain
terms and conditions specified in the leasehold Mortgage and/or
the other Leasehold Loan Documents, even if the Leasehold
Mortgage and/or the other Leasehold Loan Documents permit
Leasehold Mortgagee to determine in its sole discretion or
judgment whether to make such advances or disbursements if such
terms and conditions are not satisfied or if a default or event of
default under the Leasehold Mortgage and/or the other Leasehold
Loan Documents then exists. Moreover, the term "Optional
Advance" shall not include any advances for the purpose of paying
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unpaid taxes, assessments or levies against the Property or unpaid
insi$ance premiums with respect to the Property, protecting the
Collateral (as hereina$er defined), preserving leasehold
Mortgagee's lien upon and security interest in the Collateral,
curing defaults under the Leasehold Loan Documents and/or the
Ground lease and other protective, remedial and/or curative
advances.
(c) Rights and Benefits Under Ground Lease. All rights and benefits of an
approved Lender, Approved Leasehold Mortgagee and an approved
Mortgagee provided in the Ground Lease may be exercised and enjoyed
by Leasehold Mortgagee in accordance with the provisions of the Ground
Lease, including, but not limited to, those rights and benefits conferred by
Article VI {Leasehold and Subleasehold Mortgages) Section 8.7
(Approved Leasehold Mortgages, Leases and Subleases Article XVI
(Damage or Destruction) and Article XXIV (Condemnation) of the
Ground Lease, and Lessor is and shall be bound by all provisions in tate
Ground Lease applicable to Leasehold Mortgagee and the Leasehold
Mortgage.
(d) Conditions of Ground Lease Satisfied. Lessee hereby represents that it
has delivered to Lessor copies of the executed leasehold Mortgage and all
other Leasehold Loan Documents (as more particularly described in a
separate certificate signed by Lessee and delivered to Lessor), and that
same have not been modified or amended through the date hereof (except
as may be set forth in such certificate), Lessor hereby confirms that all
conditions of Section 6.4 of the Ground Lease have been fully satisfied
(and that this Agreement fully satisfies the requirements of Section 6.4 of
the Ground Lease concerning the execution and delivery of the
Subordination, Non -Disturbance and Attornment Agreement described
therein with respect to the leasehold Mortgage), such that Leasehold
Mortgagee shall have the rights and benefits described in Article VI of the
Ground Lease.
4. COLLATERAL FOR LEASEHOLD MORTGAGE. Until all obligations
secured by the Leasehold Mortgage have been paid in full or the Leasehold Mortgage has
been fully released and satisfied, whichever occurs first:
(a) Lien and Eneumbrance. Lessor hereby aelmowledges that the purpose
of the Leasehold Mortgage is to create a lien and encumbrance upon and security
interest in all of the collateral descnbed in the Leasehold Mortgage and the other
Leasehold Loan Doaunents and all additions, replacements and substitutions
therefor and proceeds thereof (collectively, the "Collateral" ), including, but not
limited to, the following items (except to the extmA the Leasehold Loan
Documents specifically provide that same are not part of the Collateral):
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(i) the Leasehold Estate (and related easements) and the Leasehold
Improvements;
(ir) all of Lessee's right, tithe and interest in and to any and all
furniture, fixtures, equipment, machinery, goods, merchandise,
inventory and other tangible personal property of Lessee located
upon or within or connected to the Property;
(M) all of Lessee's right, title and interest in and to any and all
ft=ign'ble personal property pertaining or related to or connected
with the Property, including, but not lunited to, plans and
specifications, permits, licenses, service contracts and other
agreements, and intellectual property; and
(iv) all other tangible and intangible personal property of Lessee of any
kind or nature whatsoever, wherever located, now or hereafter
acquired, all as more particularly set forth in the Leasehold
Mortgage.
(b) No Ownersh-in Rights of Lessor. At all times during the Lease Term
(and if a New Lease (as hereinafter defined) is entered into in accordance with the
terms of the Ground Lease and this Agreement, at all times during the term
thereof including any extension options when and if exercised, and any period
between the termination of the Ground Lease and the commencement of the term
of such New Lease), but not after the expiration of the Lease Term or the term of
any such New Lease, as the case may be:
(2) Lessor is not, and shall not claim to be, the owner of the Collateral
or any part of the Collateral; and
(n) All of the Collateral shall be conclusively presumed to be the
property of Lessee (subject to any rights therein of Leasehold
Mortgagee or any or any Persons claiming by, through or under
Leasehold Mortgagee), regardless of the nature of any item of the
Collateral or the manner in which it is or may become affixed to or
incorporated into the Property or otherwise acquired or obtained by
Lessee.
S. SUBORDINATION.
(a) Acknowledgment of Lessor's Lien ruts under Section 23.1 of
Ground Lease. Leasehold Mortgagee hereby acknowledges that pursuant
to Section 23.1 of the Ground Lease, Lessee has granted to Lessor a lien
upon the Leasehold Improvements and the Leasehold Estate to the extent
described therein.
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(b) Lessor's Lien„
(i) Definition. As used herein, the term `Lessor's Lien" shall
collectively mean and refer to: (l? the lien granted to Lessor upon
the Leasehold Improvements and the leasehold Estate to the extent
descrPnd in Section 23.1 of the Ground Lease; and (u) any and all
other claims, rights of distraint or levy, `landlord's lien" or othex
lien rights, or any other right, title or interest, if any, which Lessor
may have upon, in or to any portion of the Collateral from time to
time.
(u� ubardhmilan. Lessor acknowledges and agrees that each and
every Lessor's Lien (to the extent same may exist) is and shall at
all times and for all purposes and in all respects, be subject,
subordinate and inferior to the lien, operation, effect, tenors and
provisions of the leasehold Mortgage and other Leasehold Loan
Documents and the rights of Leasehold Mortgagee (and any
Approved Foreclosure Transferee and any Approved Subsequent
Foreclosure Purchaser) thereunder or otherwise in connection with
the Loan.
(iii) No Enforcement. Lessor acknowledges and agrees that without
Leasehold Mortgagee's prior mitten consent, no Lessor's Lien
may be enforced against any portion of the Leasehold
Improvements, the Leasehold Estate or any other portion of the
Collateral at the time such portion is encumbered by the Leasehold.
Mortgage and/or the other Leasehold Loan Documents.
(iv) Lessor's Lien Arising After Foreclosure Transfer.
Notwithstanding the provisions of subparagraphs 5(b)(U) and
5(b)(iiu7 above, any Approved Foreclosure Transferee and
Approved Subsequent Foreclosure Purchaser shall take subject to
any Lessor's Lien on account of any obligation arising after the
date of the Foreclosure Transfer by which such Approved
Foreclosure Transferee acquires title to the Collateral, and Lessor
may enforce such Lessor's Lien as permitted by the provisions of
the Ground Lease.
(c) Development Plans.
{i) Use Rights. Leasehold Mortgagee hereby acknowledges that
Lessee has granted to Lessor the right to: (i) use the Development
Plans, to the extent set forth in Section 6.14 of the Ground Lease;
and (ii) grant to other profwionals the right to use the
Development Plans (subject to the rights of the architect(s) and
engineer(s) who prepared the Development Plans and to the rights
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of any Approved Mortgagees therein), to the extent set forth in
Section 6.10 of the Ground Lease. Lessor hereby agrees not to
enforce such rights excerpt as provided by subparagraph (c)(iii)
below.
(ii) Subordination. Without limiting the generality of subparagraph
(b) above, Lessor hereby aclrnowledges and agrees that the rights
of Lessor described in clause (i) above are and shall, at all times
and for all purposes and in all respects, be subject, subordinate and
inferior to lien, operation, effect, terms and provisions of the
Leaseb:)ld Mortgage and the other Leasehold Loan Documents and
the rights of Leasehold Mortgagee (and any Approved Foreclosure
Transkree and any Approved Subsequent Foreclosure Plug)
thereunder with respect to the Development Plans and the Project
Approvals. If required by Leasehold Mortgagee, Lessor shall join
in any pledge of such rights as security for the Loan solely to
subordinate Lessor's interest in the same to the interest therein of
Leasehold Mortgagee on the terms set forth herein.
Bats Upon Termination of Lease. In the event of termination
of the Ciround Lease on account of an Event of Lessee's Default,
Lessor shall be entitled to the hill complete and unconditional use
and ownership ofthe Development Plans and the ability to grant to
other proi%~ssionals the right to use the Development Plans (subject
to the rights of the architect(s) and engineer(s) who prepared the
Development Plans}, and full, complete and unconditional
ownership of the Project Approvals, without payment of any
consideration therefor by Lessor to Lessee, provided that until the
expiration of the period within which Leasehold Mortgage or any
Approved Foreclosure Transferee or Approved Subsequent
Foreclosure Purchaser may enter into a New Lease pursuant to
Section 10 below, and thereafter if Leasehold Mortgagee or any
Approved Foreclosure Transferee or Approved Subsequent
Foreclosure Purchaser does enter into a New Lease pursuant to
Section 10 below, such rights of Lessor therein shall, at all times
and for a]R purposes and in all respects, be subject, subordinate and
inferior, to the rights therein of Leasehold Mortgage or such
Approved Foreclosure Transferee or Approved Subsequent
Foreclosure Purchaser.
6. NO SURRENDER, MODIFICATION, ETC. Until all obligations secured by the
Leasehold Mortgage have been paid in full or the Leasehold Mortgage has been fully released
and satisfied, whichever occurs first -2
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(a) No Tera ation of Ground Lease. Lessor shall not accept from Lessee, and
Lessee shall not offer to Lessor, any cancellation, surrender or termination of the
Ground Lease, and any purported cancellation, surrender or termination without
Leasehold Mortgagee's prior w7itto consent shall be null mW void and of no
force or of =L
(b) No Amendment of Ground Lease. Lessor and Lessee shall not amend or
modify, and shall not agree to amend or modify, in any material respect, any
provision of the Ground Lease, without Leasehold Mortgagee's prior written.
consent. Any such amendment or modification without Leasehold Mortgagee's
}Prior written consent shall be null and void and of no force or eflit.3
7. CERTAIN RIGHTS OF jXAnHQLD MORTGAGEE WITH RESPECT TO
GROUND LEASE. Until all obligations secured by the Leasehold Mortgagee have been paid in
full, or the Leasehold Mortgage has been fully released and satisfied, whichever occurs first,
Lessor shall have the obligations set forth below with respect to the Ground Lease, and
Leasehold Mortgagee shall have the rights, remedies and recourse set forth blow with respect to
the Ground Lease:
(a) Insurance Policies.. Lessor agrees that Leasehold Mortgagee shall, at Leasehold
Mortgagee's option, be named as an additional insured and loss payee under any
_ and aU insurance policies required to be carried by Lessee under the Ground
.Lease.
(b) Cases In the event of any Casualty, Leasehold Mortgagee may, to the extent
provided for by Leasehold Mortgage, apply all or any portion of Net Insurance
Proceeds to any principal, interest or other sums due and payable to Leasehold
Mortgagee under the Leasehold Mortgage and the other Leasehold Loan
Documents. No such application shall relieve Lessee of its obligations under
Article XVI of the Ground Lease. To the extent there remain any Net Insurance
Proceeds, or to the extent there remain any Net Insurance Proceeds after such
application, the provisions of Article XVI of the Ground Lease shall govern the
collection and disbursement of such Net insurance Proceeds mid the use of such
Net Insurance Proceeds for the completion of Restoration work. Without limiting
the generality of the foregoing, to the extent provided for by Article XVI of the
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Ground Lease, such Net Insurance Proceeds &W1 be deposited with an Insurance
Tnt_stee pursuant to an Insurance Escrow Agreement as contemplated by Section
16.2(b) of the Ground Lease, provided that such Insurance Escrow Agreement is
satisfactory in form and content to Leasehold Mortgagee, Lessee and Lessor.
Leasehold Mortgagee may require that such Insurance Escrow Agreement
incorporate (by reference or otherwise) the provisions of the Leasehold Loan
Documents setting Earth the terrmss and conditions for the disiJurwrnent and use of
Net Insurance Proceeds.
(c) Condemnation. In the event of any Condemnation, Leasehold Mortgagee may,
to the extent provided for by the Leasehold Mortgage, apply all or any portion of
the Condemnation Awards to any principal, interim or other sums due and
payable to Leasehold Mortgagee under the Leasehold Mortgage and the other
Leasehold Loan Documents. No such application shall relieve Lessee of its
obligations under Article XXIV of the Ground Lease. To the extent Leasehold
Mortgage does not so apply Condemnation Awards, or to the extent there remain
any Condemnation Awards after such application, the provisions of Article XXIV
of the Ground Lease shall govern the allocation and disbursement of such
Condemnation Awards and the use of such Condemnation Awards for restoring
any balance of the Project not taken (as contemplated by Section 24.3(bxi) of the
Ground Lease), provided, however, that Leasehold Mortgagee may impose such
additional terms and conditions for such disbursement and use of such
Condemnation Awards as are set forth in the Leasehold Mortgage.
(d) Consent and Participation Rights. Lessor and Lessee shall not settle or
compromise the mount or division of any Condemnation award in any
Condemnation proceeding without Leasehold Mortgagee shall be entitled to
participate in any such Condemnation proceeding and make claim for the share of
any award to which Lessee is entitled by the terms of Article XXIV of the Ground
Lease.
(e) Renewal Untions. Lessor shall give written notice to Leasehold Mortgagee of
Lessee's failure to timely exercise any Extension Option (the `Extension Option
Notice'). Leasehold Mortgagee (or an Approved Foreclosure Transferee, if
applicable) may, at its option, and without limiting the availability of other
" remedies under the Leasehold Loan Documents, exercise such Extension Option
on timely exercised by Lessee, and Lessor agreements to recognize and be bound
be the exercise of such Extension Option by Leasehold Mortgagee or such
Approved Foreclosure Transferee, provided that:
• (i) No Material Uncured Lessee's Default. No Material Uncured Lessee's
Default then exists, other than a Material Uncured Lessee's Default: (i) as
to which Leasehold Mortgagee or such Approved Foreclosure Transferee
' is diligently pursuing a cure (including initiating actions to obtain
possession of and title to the Collateral in order to facilitate such care) in
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the manner and within the time afforded by Section 8 below; or ('u) which
is not susceptible to cure; and
(n) Time to Exercise. Leasehold Mortgage or such Approved Foreclosure
Transferee exercises such Extension Option within thirty (30) days of
Leasehold Mortgagee's receipt of the Extension Option Notice; provided,
however, that if at any time during such thirty (30) day period, there are
pending foreclosure proceedings with respect to the Leasehold Mortgage
or any pending bankruptcy (or insolvency or similar) proceedings as to
which an automatic stay or other similar order affecting any such
foreclosure proceedings has been or may thereafter be issued, then the
deadline within which Leasehold Mortgagee or such Approved
Foreclosure Transferee may exercise such Extension Option shall be
extended to the date which is six (6) months after the later of; (i) the
termination of such 1hreclosure proceedings or the completion of
Foreclosure Transfer with respect to the Leasehold Mortgage; or (it) the
Iding in any banlauptcy (or insolvency or similar) proceedings of any
automatic stay or other similar order affecting Lessee.
8. NOTICE AND CURE RIGHTS. The term "lender Party" shall mean, as applicable. (i)
as to any period prior to a Foreclosure Transfer with respect to the Leasehold Mortgage,
Leasehold Mortgagee; (ii) as to any period alter such Foreclosure Transfer, but only with respect
to Defaults occurring before such Foreclosure Transfer, any Approved foreclosure Transferee or
any Approved Subsequent foreclosure Purchaser, as applicable. Until all obligations secured by
the leasehold Mortgage have been paid in full or the Leasehold Mortgage is felly released and
satisfied, whichever occurs first, Lessor shall have the obligations, and the applicable Lender
Party shall be afforded the notice and cure rights and other rights, set forth in this Section 8,
provided that in the case of any Approved Foreclosure Transferee or Approved Subsequent
Foreclosure Purchaser, such Lender Party shall have given Lessor written notice of its name and
address.
(a) Notice of Default. Whenever Lessor sends or gives Lessee any written notice of
or other written communication (a `Default Notice") from Lessor pertaining to a
default or any event which, if not remedied, would or could result in an Event of
Lessee's Default (collectively, a "Default), Lessor shall simultaneously send a
copy of such Default Notice to the applicable Lender Party. The applicable
Lender Party shall be afforded the applicable cure period with respect to such
Default as is specified in subparagraph (b) below.
(b) Leasehold Mortgage's right to Cure. Upon the applicable Lender Party's
receipt of a Default Notice, the applicable Lender Party shall have the same
period of time as is allowed to Lessee under the provisions of the Ground Lease,
plus an additional thirty (30) days, to cure the alleged Default or cause the same to
be cured, provided that such cure shall require payment of interest at the Default
Rate (as defined in Section I.5(s) of the Ground Lease) on sums due pursuant to
the Ground Lease for the period commencing on the date on which such Lender
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Parry first received such Defmh Notice until the date payment is received by
Lessor. Notwithstanding the foregoing:
()
Additional Notice and Care Period for Certain Monetary Default. In
the case of an alleged Default on account of Lessee's failure to pay Base
Rmit, Percentage Rent, Impositions or the cost of insurance, which Default
is not cured by the applicable Lender Party within the additional thirty
(30) day cure period specified above, Lessor shall give the applicable
Lender Party a second written Default Notice with respect to such alleged
Default, which Default Notice shall state in boldface: `Failure to cure the
Default(s) described herein within thirty (30) days from the date of this
Default Notice is given will entitle Lessor to terminate the Ground lase,
and in the event of such termination of the Ground Lease, you will not be
entitled to enter into a New Lease." The applicable Lender Party shall be
afforded thirty (30) days from its receipt of such second written Default
Notice within which it may cure any such alleged Default on account of
Lessee's failure: to pay Base Rent, Percentage Rent, Impositions or the
cost of insurance; and
(ii) Additional Care Period to Cure Certak Defaults. In the case of an
alleged Default which is not reasonably susceptible to being cured within
such additional thirty (30) day period, the applicable Lender Party, with
the exercise of due diligence and in good faith, to cure such alleged
Default or cause; same to be cured.
(c) Where Possession is Necessary; Foreclosure Proceedings.
(i) Additional Care Period. Notwithstanding the provisions of
subparagraph (b) above, in the case of any alleged Default not involving
the failure to pay money, which Default is capable of being cured but is
not reasonably susceptible to cure without having possession of the
Property (a "Curable Default"), the applicable Lender Party shall have the
right to further extend the period of time within which to cure such
Curable Default for such reasonable additional period as wM enable the
applicable Lender Party, with the exercise of due dfligence and in good
faith, to institute foreclosure proceedings, cause the leasehold Estate to be
acquired and cause lessee to be removed from the property through a
Foreclosure Transfer, and at the earliest reasonable opportunity thereafter,
cure such curable Default (unless such Default has been previously cured,
including any cure by a receiver appointed in connection with such
foreclosure proceedings). Nothing contained in this Agreement or in the
Ground Lease shall: (i) require any Lender party to cure such Curable
Default prior to the time when such Lender Party has actually obtained
such possession, so -long as the applicable Lender Party is actively seeking
to obtain such possession; or (ii) require any Lender party to cure any
Default which is not susceptible to cure.
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(in) Lessor's Cooperation. Lessor agrees to Cooperate in the prosecution of
any such forec,lowre or other proceedings brought by any Lender Party to
obtain possession of the property, provided, however, that Lessor shall not
be obligated to incur any cost in connection with such cooperation unless
Lessor is reimbursed for any actual and reasonable cost so incurred by
Lessor.
{iu7 Effect of Stair. Lessor agrees that if by reason of a bankruptcy,
insolvency or similar type proceeding, or by reason of any other judicial
order or legislative enactment, any Lender Party SMI be stayed from
commencing (or if commenced, from continuing) foreclosure proceedings,
then such Lender Party shall be deemed to be prosecuting such
proceedings in the exercise of due diligence and in good faith so long as it
is in good Earth attempting to obtain relief from any such stay.
(d) Acceptance of Care. Lessee irrevocably directs that Lessor accept, and Lessor
hereby agrees to accept„ any such cure of a Default made within the time periods
described in subparagraph (b), subparagraph (c)(t) and/or subparagraph (c)(iii)
above, as applicable, by or on behalf of any Lender Party, as if same had been
performer) by Lessee.
(e) Nnilification of any Termination. Any attempt by Lessor to terminate the
Ground Lease on account of any Default or Event of Lessee's Default shall be
null and void and of no force or effect for so long as any applicable lender Party is
pursuing a cure thereof pursuant to, and within the time periods set forth in,
subparagraph (b), subparagraph (c)(i) and/or subparagraph (c)(iii) above, as
applicable.
(a) Notice of Intent to Terminate. If any Default described above (or any
Default occurring while any applicable Lender Party is exercising its cure
rights) is not cured within the applicable time period set forth in
subPPh 8(b), subparagraph 8(c)(i) and/or subparagraph (c)(iii)
above, as applicable, Lessor may thereafter give the applicable Lender
Party written notice (by registered or certified mail, return receipt,
requested) of Lessor's intent to terminate the Ground lease on account of
the failure to care same in accordance with the Ground Lease on account
of the failure to cure same in accordance with the Ground Lease and this
Agreement.
(b) Termination. Such termination shall become effective if and only if the
applicable Lender Party shall fail to cure same within ten (10) days
thereafter in the case of a Default involving the payment of money due to
Lessor or thirty (30) days in the case of any other Default.
Marina Component Amended and Restated Ground Lease -Final 459875 Page 14
Submitted into the public
record f r ite (s) ^K_
on 5� City Clerk
(c) Surrender of Possession. If Lessee or any Lender party is in possession
of the Property, either personally or by a receiver, the applicable party
shall, upon any such termination of the Ground Lease, quit and peacefully
surrender the property to Lessor. Notwithstanding the foregoing, if any
such Lender party requests a New Lease pursuant to Section 10 below
within the period provided for in Section 10(a) below, then such Lender
Party shall not be required to so surrender possession of the property so
long as such Lender Party requests and thereafter enters into such New
Lease pursuant to Section 10 below. If such Lender party fails to request a
New lease within the period provided by Section 10(a) below but then
fails to enter into such New Lease within the period provided for by
Section 10(a) below, then such Lender Party (if it is then in possession of
the Property) shall so surrender promptly after the expiration of such
period.
10. NEW LEASE.
(a) Riaht to Obtain a New Lease. If the Ground Lease shall (i) terminate for
any reason other than a Default on account of Lessee's failure, beyond any
applicable cure period, to pay Base Rent, Percentage Rent, Impositions or
the cost of insurance, as to which Leasehold Mortgagee was provided
notice and an opportunity to cure in accordance with the Ground lease this
Agreement and lhiled to so cure within the time period provided for under
subparagraph 8(b), subparagraph 8(c)(i) and/or subparagraph (c)(iii)
above, as applicable), or (u) be rejected or disaffirmed pursuant to
bankruptcy law or other law affecting creditor's rights, any applicable
lender Party shall have the right, exercisable by written Mice to Lessor
(the "Exercise Notice") within thirty (30) days after such lender party
receives written notice of such termination, rejection or dinffrmation (as
applicable, a "Termination') to enter a New Lease of the property,
provided that such Lender Party shall have remedied all Defaults on the
part of lessee involving the payment of money to Lessor, and shall
continue to pay all Rent that would come due under the Ground lease but
for such Termination. Lessor and such lender party shall use good faith
efforts to ewer into the New lease as soon as practicable, but in no event
laxer than one hundred eighty (180) days after such lender party receives
such written notice of such Termination. From the date on which such
lender party shall serve the Exercise Notice upon Lessor until the New
Lease is entered into, such Lender Party may use and enjoy the Property
without hindrance by Lessor but subject to compliance with the terms of
the Ground Lease.
(b) Terms and conditions of New Lease. The term of the New Lease shall
begin on the date of the termination of the Ground lease and shall continue
for the remainder of the Lease Term, including any Extension Terms.
Marina Component Amended and Restaffed Ground Lease -Final 459875 Page 15
Submitted into the public
record for ite (s)__
on S51.5
City Clerk
Such New Lease small otherwise contain the same terms and conditions as
those set forth in the Ground lease (including, but not limited to, the
provisions of Section 13.4 of the Ground Lease), except fDr requirements
which are no longer applicable or have already been performed; provided,
however, that (i) such New Lease shall require the Lessee thereunder
promptly to commence, and expeditiously to continue, to remedy all other
defaults on the part of the Lessee hereunder to the extent reasonably
susceptible of being remedied; and (u) such New Lease, if entered into by
Leasehold Mortgagee or any Approved Foreclosure transfer, shall
permit such party to assign such New Lease to an Approved Subsequent
Foreclosure Purchaser without Lessor's consent.
(c) Subrontion. The Lender Party obtaining such New Lease shall be
subrogated to the rights of Lessor against Lessee as to any monetary
defaults of Lessee which are cured by such Lender Party as a condition to
obtaining such New Lease, and any other Defaults which are remedied as
described in clause (i) of subparagraph (b) above (but not as to any other
matters).
(d) Priority of New Lease. It is the intention of the parties hereto that such
New lease shall have the same priority relative to other rights or interests
to or in the Property as the Ground Lease.
(e) Execution of Other Documents. Simultaneously with the making of
such New Lease, the Lender Party obtaining such New Lease and Lessor
(together with all other Persons described in Section 6.6(a)(u) of the
Ground Lease, to the extent they are bound to do so pinsuant to the
provisions of the Ground Lease or otherwise) shall execute, acknowledge
and deliver such new instruments (including new mortgages and other
security documents, new Major Subleases, new Approved Time Share
Licenses, new Space leases, new Subordination, Non -Disturbance and
Attornment Agreements and new easements which were previously
granted, as the case may be), and shall make such payments and
adjustments among themselves, as shall be necessary and property for the
purpose of restoring to each of such Persons as nearly as reasonably
possible, the respective interests and status with respect to the property
and the Leasehold Improvements which was possessed by the respective
persons prior to the termination of the Ground Lease (including, but not
limited to, any rights and obligations under this Agreement and any other
applicable subordination, Non -disturbance and Attornment Agreements
entered into pursuant to the provisions of the Ground Lease).
(fl No Termination by Lessee of any Major Sublease or Space Lease.
Between the date of termination of the Ground Lease and the date of
execution and delivery of the New Lease, if any applicable Lender Party
shall have requested such New Lease as provided for by subparagraph (a)
Marina Component Amended and Restated Ground Lease -Final 459875 Page 16
Submitted into the public
record ficir it (s) _1_
on 1� IhA 19 City Clerk
above, lessee shall not cancel or terminate any Major Sublease or Space
Lease or any Approved time Share License, or accept any cancellation,
termination or surrender thereof (unless such termination shall be effective
as a matter of law on the termination of the Ground lease), without the
Prior written consent of such Lender Party.
(g) No Obligation to Care Uacurabk Defaults. Lathing contained herein or
in the Ground Lease shall require any applicable lender party, as a
condition to its exercise of its right to ender into a New Lease, to cure any
Default of lessee not reasonably susceptible of being awed by such Lender
Party.
(h) Priority as to Approved Lasebold Mortmes. It within the time
period specified in subparagraph (a) above for any applicable Lender Party
to enter into a New Lease with Lessor, more than one request for a New
Lease shall have been received by Lessor by more than one holder of an
Approved Leasehold Mortgage (or any Approved Foreclosure Transferee
or Approved Subsequent Foreclosure Purchaser with respect thereto),
priority with respect to the right to enter into such New lease shall be
given (regardless ofthe order in which such requests shall have been made
or received) to such holders (or any Approved Foreclosure Transferees or
Approved Subsequent Foreclosure Purchasers with respect thereto) in the
same order of priority of the liens of the applicable Approved Leasehold
Mortgages.
(i) UaLiability- No Lender party (or any assignee, designee or nominee thereofl
shall become liable for the performance or observance of any covenants or
conditions to be performed or observed by lessee, unless and until such
Lender Party acquires possession of the Leasehold Estate becomes the
owner of the Lessee's interest under the Ground Lease, or enters into a
New Lease with Lessor as provided above. Thereafter, such Lender Party
shall be liable for the performance and observance of those covenants and
conditions which arise during its possession and ownership as well as
those which predate such possession or ownership but as to which such
lender party is Liable pursuant to the terms of this Agreement. Such
Lender Party shall not be liable for the performance or observance of any
covenants or conditions to be performed or observed by Lessee which
accrue after the transfer of such Lender Party's interest in the Leasehold
Estate.
No Obligationto +Cure. Nothing herein comained shall require any
applicable Lender party to cure any Default by Lessee or Event of
Lessee's Default under the Ground Lease; provided, however, that if such
Lender party shell not: (i) cure same within the times provided by
subparagraph 8(b), subparagraph 8(cxi) and/or subparagraph (e)(iiij as
applicable; or (ii) request and obtain a New Lease within the times
Marina Component Amended and Restated Ground Lease -Final 4S987S Page 17
Submitted into the public
record frite s) sP, I
on _IM City Clerk
provided by subparagraph (a) of this Section 10, Lessor shall be permitted
to proceed with any rights or remedies under the Ground lease and/or
otherwise available at law or in equity (subject, however, to any prior
rights and remedies of such Lender party as to the Collateral, as provided
for by the Ground Lease, this Agreement and/or Applicable Laws).
(k) & ObIirr±+aflon as to Ac ,&rated Rent or Damages. Whenever this
Agreement refers to any Lender Party's curing monetary Defaults or
Events of Lessee's Default, such Lender Party shall not be required to pay
any accelerated sums or any damages, other than the payment of accrued
interest on monetary sums as required pursuant to Section 8(b) of this
Agreement, on account thereof which may otherwise be provided for by
the terms of the Ground Lease, and upon such care by such Lender party,
any such acceleration by Lessor shall be deemed to be nullified and of no
force or effect.
(I) Survival. The provisions of this Section 10 shall survive the termination
of the Ground Lease and shall continue in full force and effect thereafter
to the same extent as if this Section were a separate and independent
contract among Lessor, lessee and the applicable Lender Party.
(m) References to Groued Lease. As of the date the New Lease becomes
effective, all references herein to the Ground lease shall be deemed
references to the New Lease.
11. ATTORNAUNT. In the event any Lender Party suds to the rights of Lessee
under the Ground Lease through a Foreclosure Transfer or otherwise: (i) such Lender party shall
attorn to Lessor, (u') Lessor shall accept such attornment; and ('ii) such Lender party and Lessor
shall have the same rights and obligations toward one another which they would have had if the
Ground Lease had been entered into directly between them (subject, however, to the provisions
of this Agreement). Upon such attonoment, the respective rights and obligations of Lessor and
such Lender Party shall, for the remaining balance of the Lease Term, be the same as set forth
therein, and -the Ground Lease shall in accordance with its terms, remain in full force and effect
as a direct agreement between Lessor and such lender party with the same force and effect as if
originally entered into with Lessor (subject, however, to the provisions ofthis Agreement). The
foregoing provision shall be self -operative.
12. ASSIGNMENT OF GROUND LEASE. Notwithstanding anything to the
contrary contained in this Agreement or in the Grog Lease, in the event Leasehold Mortgagee
or any Approved Foreclosure Transferee with respect to the Ground Lease either succeeds to the
rights of Lessee under the Ground Lease through a Foreclosure Transfer or enters into a New
Lease pursuant to Section 10 above, Leasehold Mortgagee or such Approved Foreclosure
Transferee may freely assign or transfer, without Lessor's consent, the leasehold Estate or any
portion thereof to any Approved Subsequent Foreclosure Purchaser. Any subsequent assignment
Marina Component Amended and Restated Ground Lease -Final 459875 Page 18
Submitted into the public
record fo ite s) _
on City Clerk
or transfir thereof by such Approved Foreclosure Purchaser to any other Person must comply
with the provisions of Article VM of the Ground Lease.
13. NO MERGER Lessor and Lessee admowledge and agree that until all
obligations secured by Leasehold Mortgage have been paid in full or the Leasehold Mortgage
has been fully released and satisfied, whichever occurs fest, unless Leasehold Mortgagee
expressly consents in writing; the fee title to the property will not merge with the leasehold
Estate but will always remain separate and distinct, notwithstanding the union of such estates in
Lessor, Lessee or a third party by purchase or otherwise. In the event Lessee acquires the fee
title or any other estate, title or interest in any part of the Property, the Leasehold Mortgage shall
attach to and cover and be alien upon the fee title or other estate so acquired, and such flee title
and other estate will, without firrther assignment, mortgage or conveyance, become and be
subject to the lien of and covered by the Leasehold Mortgage.
14. OTHER APPROVED LEASHOLD MORTGAGEES. In the event Lessee
desires to encumber the Leasehold Estate with any Approved. Leasehold Mortgage(s) in addition
to the Leasehold Mortgage from time to time (to the extent permitted by the Ground leap, the
Leasehold Mortgage and other Leasehold Loan Documents or otherwise approved in writing by
Lessor or Leasehold Mortgagee, as applicable), Lessor, Lessee, Leasehold Mortgagee and the
anticipated holder(s) of such Approved. Leasehold Mortgage(s) shall enter into an agreement, in
form and substance reasonably acceptable to all such parties. Such agreement shall provide for
rights and obligations on the part of such holda(s) of Approved Leasehold Mortgage(s) which
�. are comparable to those set forth herein as to leasehold Mortgagee. Notwithstanding the
kregoing, such agreement shall fully recognize Leasehold Mortgagee's first priority position and
shall contain such "subordination and intercreditor" provisions recognizing and preserving such
first priority position as are acceptable to Leasehold Mortgagee, provided that such provisions do
not: (i) affect the business and financial terms of the Ground lease; (int) constMe a material
deviation from the Watson Island RFP and the Island Gardens Proposal; or (iii) significantly
impair the protections afforded to Lessor pursuant to the Ground lease and this Agreement or
impair the protections afforded to Lessor pursuant to the Ground lease and this Agent or
impose any additional material burdens on Lessor. Such provisions shall address, among other
things, priority as to lien rights and rights to receive payments, priority and timing as to cure
rights concerning Defaults, procedures for disbursing Condemnation Awards and Net insurance
Proceeds consistent with the provisions of the Ground Lease and this Agreement, foreclosure
rights and "standstill" requirements.
15. OTHER SNDA'S. Leasehold Mortgagee specifically recognizes that: n Major
Subleasehold Mortgagees, Major Subtenants, holders of Approved time Share Licenses, certain
Space Tenants and operators of the Hotels are entitled to enter into Subordination, Non
Disturbance and Attornment Agreements as contemplated by the provisions of the Ground
Lease, each in the form previously submitted in writing to LeasiUehold Mortgagee; and Ob
certain provisions ofthe Ground lease and such Subordination, Non -Disturbance and AttornmM
Agreements grant or will grant certain possessory and/or other rights to such parties that will
smmve any Foreclosures Transfer with respect to the Leasehold Mortgagee, the termination of
the Ground Lease, the granting of any New Lease and certain other events described therein.
`This p vdsiun wnt be mo&&d to add the Marina opmwr, if applicable.
Marina Component Amended and Restated Ground Lease -Final 459875 Page 19
Submitted into the public
record f r ite ) _
on (sCity Clerk
16. LESSOR'S CURE RIGHTS. Leasehold Mortgagee hereby acknowledges that
Section 15.2 of the Ground Lease permits Lessor, upon prior written notice to Lessee, to cure
any default under the Leasehold Mortgage not cued by lessee within the applicable notes and
cure period thereunder. Leasehold Mortgagee may, but shall not be obligated, to accept any such
cure.
17. dV QRMCATTONS. AMENDMENTS. ETC. No modification, amendment,
waiver or release of any provision of this Agreement or of any right, obligation, claim or cause
of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing
and duly executed by the parties against whom the same is sought and asserted.
18. NOTICES. All notices, demands and requests given or required to be given
hereunder or pursuant to the terms of the Ground Lease shall be in writing. All such notices,
demands and requests by Lessor to Leasehold Mortgagee shall be given by United States
Registered or Certified Mail, postage prepaid, by reputable overnight courier, addressed to:
Leasehold Mortgagee. S UITS I�wu Ll -1'
F6_ n>113 t
CA rLQ .
Attn: JCI:-�,U
With a copy to: >t4-16 %after
th c 'hie rda A .`t-� �e� �I&C t3
Attn: ate. f�rd�1 h � � _
or to such other address as Leasehold Mortgagee may from time to time designated by written
notice to Lessor.
All such notices, demands and request by Leasehold Mortgagee to Lessor shall be given
by United States Registered or Certified Mail, postage prepaid, by reputable overnight courier,
addressed to:
Lessor: City Manager, City of Miami
3500 Pan American Drive
Miami, FL 33133
With a copy to: Department of Public Facilities, City of Miami
444 SW 2 Avenue
Maori, FL 33130
With a copy to: City Attorney, City of Miami
444 SW 2 Avenue
Miami, FL 33130
Marina Component Amended and Restated Ground Lease -Final 459875 Page 20
Submitted into the public
record fo • ite (s)
on �6,. City Clerk
^ 19. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
Lessee without Leasehold Mortgagee's prior written consent, which_ may be granted or withheld
in Leasehold Mortgagee's sole discretion. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and pew assigns.
20. GOVERNING LAW. This Agreement shall be construed in accordance with the
provisions of the laws of the State of Florida, without application of its conflict of law principles.
21. AUTHORITY. Each party to this Agreement reprnts to the other parties that:
(i) it is duly organized, validly existing and in good standing in its state of formation; and (u) the
person executing this Agreement on its behalf is duly authorized to execute this Agreement and
to legally bind the party on whose behalf he .is executing this Agreement.
22. FURTHER ASSURANCES. Upon Leasehold Mortgagee's request, Lessor and
Lessee shall, each at its sole ems, execute, adsnowledge and deliver such further instruments
and do such further acts as may, in the opinion of Leasehold Mortgagees be nay, desirable,
or proper to carry out more effectively the purpose of this Agreement.
23. SEVERABILITY. In case any one or more of the provisions confined in this
Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions contained herein or thein shall not in any way be
affected or impaired thereby.
'-' 24. CAPTIONS. The captions and headings contained in this Agreement are for
convenience of reference only and shall not be construed as limiting or defining in any way the
provisions of this Agreement.
25. RECORDING. At Leasehold Mortgagee's option, this Agreement may be
recorded in the Public Records ofMiami Dade County, Florida.
26. WAIVER OF AMY TRIAL. The parties hereby knowingly, irrevocably,
voluntarily and intentionally waive any right any of them may have to a trial by jury in reged of
any action, proceeding or counterclaim based on, or arising out of under or in connection with
this Agreement or any amendment or modification of this Agreement, or,any other agreement
executed by and between the parties in connection with this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is x material inducement for each of the parties hereto to enter
into this Agreement and for Leasehold Mortgagee to make the Loan. _
27. TERMMTATION. This Agreement shall terminate at such time as all obligations
secured by the Leasehold Mortgage have been paid in full. Such obligations shall not be deemed
to have been `paid in fall" (as such term is used herein) unless and until any period under any
bankruptcy or similar laws during which any payment to Leasehold Mortgagee may be required
to be rescinded, disgorged or returned shall have expired without any such payment being
requh-ed to be rescinded, disgorged or returned.
Marina Component Amended and Restated Ground Lease -Final 459875 Page 21
Submitted into the public
E_
record f r ite (s)
on jj gU L 1'] City Clerk
1-8. QQUINTERPARTS. This Agreement may be executed n1 one or more
ec umerparts, eae12 of which shall be deemed an original and all of which shad be deemed but one
IN VNrFMSS WHEREOF. Lessor, Lessee and I..easehold Mortgagee have executed
this Agreement as of the dsty and date first ♦rhea above.
Sited, sealed and delivered
in the presence of YYME CITE' OF MLA1 HI a municipal corporation
of the State of P[orida
k
Y' ' r
_J Name: 14Ltift1�}���iLn�:.
l�$t7il': �r:l ✓, r o if f': [ .y_ ` title: -f ;T L t411%e,,t1j ycr
FLAGSTOM ISLAND GARDE -NS, LLC, a
Delaware Lunited Iiabilhy wrapany 4
mea. a
13y: Flagstone ago [-A, i'v, ,#�' ►-;
Delaware , as its
sole and managing member
BY-.
Mane: b U t4 J2���
LEAS ED L13 M ia{t'f ' AGUE
Mania ComponentAniended and Restated Ground Lease -Final 459875 Page 22
Name:
BY: --
Name Name
Title:
Submitted
record for
into the public
A
itcv� 5P
L -AY--
Cilly Clerk
[�A-4444N A449. �
Sit- wM. b (z
Matina Component Amended And Restated Ground Lease- Final 4S9875 Page 23
�40EO
Submitted into the public,
record f r ite s)
on City Clerk
The signatures of:
- Mr Kayhan �amil Acardag, born in Amasya (Turkey) on the 16th day of February 1957,
residing at 3065 LG Rotterdam (the Netherlands), Gerardus van Sillevoldtstraat 33,
acting in this matter in his capacity of director; and
- Mr Steven Walter Prins, born in Weststellingwerf (the Netherlands) on the 25" day of
April 1965, residing at 3992 CG Houten (the Netherlands), Hofineiersborch 6, acting in
this matter in his capacity of director;
of the public company organized and existing under the laws of the Netherlands: Demir-
Halk Bank (Nederland) N.V., having its registered office at Rotterdam (the Netherlands) and
principal place of business at 3016 BB Rotterdam (the Netherlands), Parklaan 8, registered
with the Dutch Commercial Register under file number 24199853 (the "Company'), and as
such duly authorized to jointly represent the Company, were authenticated by me, MrJohan
Kemper, civil -law notary in Rotterdam, the Netherlands.
The identity of:
- Mr K.$. Acardag was established by me on the basis of the Dutch passport with number
NNOOF1611, issued in Rotterdam (the Netherlands) on the 22nd day of November 2010;
- Mr S.W. Prins was established by me on the basis of the Dutch driving license with
number 4297576307, issued in Houten (the Netherlands) on the 20" day of August
2008.
I proceeded on the assumption that the signing of this document is in the Company's
interest.
This is an authentication of the signature of the directors and their authority to represent
the Company. However, the undersigned disclaims any liability arising from the further
contents of this document.
Signed in Rotterdam on the 20th day of May 2015.
Submitted into the public
record f r ite S)q,'
on 5 4 1 City Clerk
ACKNOWLEDGMENT OF LESSOR
STATE OF FLORIDA
COUNTY OF MIAMI -DARE
The£�oregoing instrument was acknowledged befo me this day of
Glr'C26 IS by %%ct �v as 7e . � G of TBB CITY OF
WANIL a political subdivision of The State of Florida, on behalf oftbk political subdivision.
Personally known to me �
or produced I.D.
(type of I.D.)
_.; . r MY COMMISSION i IT 004070
EXPIRES: April 20, 2017
WN110�' Wrdea Tt" ►f+y PoW UV*Wdn
Si
Name: iUYCA
Title: Notary Public
Serial No., if any: 1�F ON -40-1f)
My commission expires: n�e,i �0)VI
Marina Component A,-nended and Restated Ground Lease -Final 459875 Page 74
ACKNOWLEDGMENT OF LESSEE
STATE OF FLORIDA )
COUNTY OF )
e foregoing instrument was acknowle
20,6 by Mehmet Bayraktar, as the
a Delaware
Submitted into the public
record fo ite (s)
on �' 1 . City Clerk
befome this o1,� day of
of Flagstone Oft( 'el
as the sole and managing member
of FLAGSTONE .ISLAND GARDENS, LLC, a Delaware limited liability
company, on behalf of each company.
Personally known to me
or produced I.D. 13i (P2 3. 540 1. 149 • o
(type of I.D.)
Signature: LOQ Z
r p ••,,• ty;nWsla tutu R#drsg = Name: [Print or type] N a s 4zsr w r"t
CDMMMIONIFF14+809 Title: Notary Public
cEXPiRE& jW.1,2018
so 5
,st FUNUDA NOTAFM LLC My commission expires:
Marina Component Amended and Restated Ground Lease -Final 459875 Page 25
Submitted into the public,,
record fqqr ite (s) S
on 5l City Clerk
Prepared by and return to:
Terry B. Fein, Esq.
Shutts & Bowen LLP
201 South Biscayne Blvd., Suite 1500
Miami, Florida 33131
CFN: 20150315953 BOOK 29619 PAGE 2825
DATE:05/18/2015 10:44:57 AM
MTG DOC 79,338.00
HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY
FIRST LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS_
AND SECURITY AGREEMENT
Dated as of. May 11, 2015 (the "date hereof')
Mortgagor:
Mortgagor's Address
Mortgagee:
Mortgagee's Address:
Island Gardens Deep Harbour LLC, a Delaware limited
liability company
888 MacArthur Causeway
Miami, Florida 33132
Attn: Mehmet Bayraktar
Demir-Halk Bank (Nederland) N.V.
Parklaan 8, 3016 BB
Rotterdam, The Netherlands
Attn: Ozan Dereli, Head of Corporate Loans
THIS MORTGAGE SECURES THE REPAYMENT OF INDEBTEDNESS EVIDENCED BY THAT
CERTAIN LOAN AGREEMENT OF EVEN DATE HEREWITH IN THE ORIGINAL PRINCIPAL AMOUNT
OF $22,668,000.00. FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $79,338.00 ARE
BEING PAID UPON RECORDATION OF THIS INSTRUMENT IN MIAMI-DADE COUNTY, FLORIDA.
THIS INSTRUMENT IS EXEMPT FROM FLORIDA NON-RECURRING INTANGIBLE PERSONAL
PROPERTY TAXES BECAUSE IT IS A MORTGAGE OF A LEASEHOLD INTEREST.
MIADOCS 105940316
Submitted into the ubl'
record f r iteT111
s) gq,
1 CFN: 20150315953 BOOK 29619 PAGE 2826
on City Clerk
BACKGROUND
A. Mortgagor is the Lessee under that certain Marina Component Amended
and Restated Ground Lease, dated May 30, 2014, between the City of Miami, as lessor,
and Flagstone Island Gardens, LLC, as lessee, a Delaware limited liability company
("Original Lessee"), a memorandum of which dated May 30, 2014 is recorded in Official
Records Book 29436, Page 1498, of the Public Records of Miami -Dade County, Florida,
and assigned to Mortgagor as evidenced by that certain Memorandum of Transfer of
Rights to be recorded in the Public Records of Miami -Dade County prior to the
recordation of this Mortgage (together with any lease that replaces that Marina
Component Amended and Restated Ground Lease and any amendment or modification
thereto which are hereafter entered into, the "Ground Lease") and which covers, inter
aria, the land described in Exhibit "A" hereto (the "Land"), a portion of which is
submerged land.
B. Mortgagor is justly indebted to Mortgagee for repayment of the principal
amount of up to $22,668,000.00 pursuant to the terms of the Loan Agreement (as
hereinafter defined), together with interest thereon and all other sums which are due
and payable from time to time under the terms of the Loan Agreement, this Mortgage
and any other documents (collectively the "Loan Documents') evidencing and/or
securing the loan evidenced by the Loan Agreement (the "Loan").
GRANT OF MORTGAGE
For good and valuable consideration (the receipt and sufficiency of which
Mortgagor hereby acknowledges) and to secure the Secured Obligations (as such term
is hereinafter defined), Mortgagor hereby grants to Mortgagee a mortgage on, assigns
and conveys to Mortgagee and grants to Mortgagee a security interest in, the property
described in clauses A through I below, in each case whether presently or hereafter
existing and whether now owned or hereafter acquired by Mortgagor (all such property
being collectively the "Mortgaged Property"):
A. All of Mortgagor's rights and interests in and under, and its leasehold
estate created by, the Ground Lease, and all of the leasehold and other estate and
interest of Mortgagor in and to the Land (including the right to any payment owing at any
time by the Lessor under the Ground Lease to Mortgagor) (collectively, the "Leasehold
Estate");
B. All buildings, structures, facilities, utility lines and other improvements, and
components thereof and materials therefor (including all docks and other marina -related
components, building, structures and facilities), located, or planned or intended to be
located, on, in, under or above any of the Land (collectively, the "Improvements"); and
all materials and other goods intended to be incorporated into the Improvements;
C. All easements, plants, landscaping, water rights, mineral rights, water
taps, sewer taps, rents, tenements, appurtenances, hereditaments, and zoning rights
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and entitlements located on, in, under or above, or belonging, benefiting or appertaining
to, any of the Land or the Improvements;
D. All awards and payments, including interest thereon, and the right to
receive them, which may be made with respect to any part of the Mortgaged Property
as a result of the exercise of the right of eminent domain, the alteration of the grade of
any street, or any other damage or injury to or decrease in the value of the Land, the
Improvements or any other part of the Mortgaged Property;
E. All furniture, fixtures, equipment, machinery, goods, merchandise,
inventory and other tangible personal property now or hereafter located on or used in
connection with any of the Land or the improvements (collectively, "FF&E");
F. All Leases and Rents (as such terms are hereinafter defined);
G. All accounts, general intangibles (including software and payment
intangibles), instruments, chattel paper, letter -of -credit rights, investment property, and
deposit accounts (the foregoing terms being used herein as defined in the applicable
Uniform Commercial Code, whether or not such collateral is subject thereto) and
contract rights (including, but not limited to, (i) all architectural contracts, construction
contracts, plans and specifications, and construction and other warranties, (ii) all service
contracts, purchase contracts, reservation agreements, management contracts,
equipment leases and other contracts (including all deposits, prepaid expenses thereon,
insurance policies and unearned premiums thereon), (iii) all licenses, building and other
permits, books, records, customer lists, computer programs, software and printouts,
trade names, and trademarks, and (iv) all abstracts and other title evidence) arising
from or related to any of the Land or the Improvements, the construction thereof or any
business or activity conducted thereon;
H. All insurance policies and insurance rights and claims arising from or
relating to any of the Mortgaged Property or any activity or business conducted thereon
or therein; and
I. All proceeds, products, replacements, additions, substitutions, renewals
and accessions of or to any of the Mortgaged Property.
OBLIGATIONS SECURED
This instrument ("this Mortgage") secures the following obligations and liabilities
(collectively, the "Secured Obligations"):
A. Payment of all amounts now or hereafter owing under or evidenced by the
Loan Agreement, dated as of even date herewith, between Mortgagor and Mortgagee,
among other parties (the "Loan Agreement"), this Mortgage, and any of the Loan
Documents;
B. Payment of all future advances made pursuant to Section 3;
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C. Reimbursement of any and all advances made by Mortgagee to protect or
preserve the Mortgaged Property or the lien hereof thereon, to complete any
construction or renovation of any or all Improvements or for taxes, assessments,
insurance premiums or other costs or expenses as hereinafter provided; and
D. Performance of each agreement contained herein or in the Loan
Agreement.
FURTHER AGREEMENTS AND WARRANTIES
Mortgagor hereby agrees with and warrants to Mortgagee as follows:
1. Title Warranties. Mortgagor has full power and lawful right to mortgage
the Mortgaged Property. Mortgagor is the Lessee under the Ground Lease and entitled
to all of the rights and benefits of the Lessee thereunder. The Ground Lease is in full
force and effect and neither the Lessor nor the Lessee thereunder is in default of any
provision thereof. The Mortgaged Property is free from and unencumbered by any
charges, judgments, taxes, tax titles or certificates, liens, assessments, and
encumbrances of any kind except any listed in Schedule B -II or B-2 of the title insurance
commitment issued in connection with this Mortgage (as heretofore or hereafter
endorsed or marked -up). Mortgagor fully warrants its title to the Mortgaged Property
and shall defend that title, at Mortgagor's expense, against the claims of all persons
except those claims, if any, that are listed as exceptions in Schedule B -II or B-2 of the
title insurance commitment issued in connection with this Mortgage (as heretofore or
hereafter endorsed or marked -up). Mortgagor shall use its best efforts to ensure that
any contracts and other items described in paragraph G under "GRANT OF
MORTGAGE" above shall not prohibit their collateral assignment to Mortgagee.
2. Payment of Secured Obligations. Mortgagor shall pay the Secured
Obligations promptly as they become due in accordance with the terms thereof.
3. Future Advances. This Mortgage shall secure any and all advances
(however evidenced and whether or not obligatory and including those made on a
revolving basis) made by Mortgagee to Mortgagor within 20 years after the date hereof
to the same extent as though those advances were made on the date hereof even
though there may be no indebtedness outstanding at the time any such advance is
made; provided that, while the total amount of indebtedness secured hereby may
increase or decrease from time to time, the total amount at any one time secured
hereby shall not exceed a maximum principal amount of $45,336,000.00 plus interest
thereon and advances made hereunder for the payment of taxes, liens and insurance
with respect to any part of the Mortgaged Property. This Section shall not, however,
obligate Mortgagee to make any such advances.
4. Taxes and Assessments. Mortgagor shall pay or cause to be paid
promptly as they become due and payable all taxes, assessments and other charges,
whether public or private, that may be levied or assessed against the Mortgaged
Property (or any part thereof) and shall, upon the request of Mortgagee, deliver to
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Mortgagee receipts evidencing the payment of all such taxes, assessments and other
charges. If requested by Mortgagee, Mortgagor shall cause to be furnished to
Mortgagee, at Mortgagor's expense, a tax reporting service covering the Mortgaged
Property of a type and duration, and with a company, satisfactory to Mortgagee.
5. Insurance. Mortgagor's obligations to keep the Mortgaged Property
insured and provisions governing the disposition of insurance proceeds are set forth in
the Loan Agreement.
6. Taxes and Insurance Escrow. Starting upon Mortgagee's demand after
the occurrence of an Event of Default, Mortgagor shall deposit with Mortgagee monthly
installments in amounts sufficient to discharge Mortgagor's obligations under Sections 4
and 5 30 days before they become due, and, in the case of real estate taxes, 30 days
before the last date on which Mortgagor can obtain the maximum discount available
and, on the date of such demand, shall deposit with Mortgagee whatever amount
Mortgagee requires (based on its customary practices) to take account of the fact that
real estate taxes and insurance premiums will or may be initially payable in fewer than
12 months after the date hereof and to create a "cushion" of two months. The
determination of the amount of the installments to be deposited with Mortgagee, so that
the aggregate of such deposits shall be sufficient for these purposes, shall be made by
Mortgagee in its sole discretion. Such amounts shall be held by Mortgagee in a non-
interest bearing account (unless and except to the extent payment of interest thereon is
required by applicable law) and applied to the payment of the obligations in respect of
which such amounts were deposited or, at the option of Mortgagee, to the payment of
those obligations in such order or priority as Mortgagee determines, on or before the
respective dates on which they or any of them would become delinquent. If 30 days
before the date on which any such charges become due (or, in the case of real estate
taxes, the last day on which the maximum discount is available), the amounts then on
deposit with Mortgagee are insufficient for the payment of such obligations in full,
Mortgagor shall, within 10 days after Mortgagee's demand, deposit the amount of the
deficiency with Mortgagee or, if Mortgagee consents in writing, shall make over a period
designated by Mortgagee (but not to exceed 12 months) additional equal monthly
deposits with Mortgagee totaling the deficiency. Nothing contained herein shall affect
any right or remedy of Mortgagee under any provisions of this Mortgage or of any
statute or rule of law to pay any such amount and to add the amount so paid together
with interest as provided hereinafter to the Secured Obligations. Mortgagor shall cause
all bills and statements relating to Mortgagee's obligations under Sections 4 and 5 to be
sent or mailed directly to Mortgagee. Nothing herein shall cause Mortgagee to be
deemed a trustee of funds deposited with it under this Section or to be obligated to pay
any amounts in excess of the amount of funds so deposited.
7. Removal of Liens. Mortgagor shall not permit any construction,
mechanic's, materialman's, statutory or other lien (other than a lien for real estate taxes
or special assessments that are not yet due and payable) to encumber or affect any part
of the Mortgaged Property for more than 45 days.
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8. Repair and Restoration. Mortgagor shall keep the Mortgaged Properly in
good condition and repair and shall not commit or permit any waste or deterioration
thereof. Mortgagor shall promptly repair, restore, replace or rebuild (as appropriate) any
part of the Mortgaged Property which is damaged or destroyed.
9. Hazardous Substances. (a) Mortgagor shall comply with any and all laws,
regulations and orders with respect to the presence, storage, discharge and removal of
Hazardous Substances (as defined hereinbelow), shall immediately remove, in
accordance with applicable law, at Mortgagor's expense, any Hazardous Substances in,
on or near the Mortgaged Property and shall keep the Mortgaged Property free of any
lien imposed pursuant to such laws, regulations or orders. If Mortgagor fails to do so
promptly (in Mortgagee's judgment) after notice to Mortgagor, Mortgagee may cause the
Hazardous Substances in question to be removed from the Mortgaged Property (without
waiving its right to consider Mortgagor in default hereunder based on Mortgagor's failure
to do so). The cost of any such removal shall be part of the Secured Obligations and
shall become immediately due and payable upon demand with interest thereon at the
Default Rate. Mortgagor shall give to Mortgagee and its agents, contractors and
employees access to the Mortgaged Property and hereby specifically grants to
Mortgagee and such other persons a license to remove any Hazardous Substances.
Mortgagor shall defend, indemnify and hold Mortgagee, its officers, directors, agents,
successors and assigns (collectively "Indemnitees") harmless from and against
whatever losses, costs, damages (including consequential damages) and expenses
(including attorneys' fees and costs) any such Indemnitee may sustain by reason of any
assertion against such Indemnitee by anyone of any claim in connection with
Hazardous Substances on, in or near the Mortgaged Property. Nothing in this Section 9
shall be construed to impose any obligation on Mortgagee. As used herein, the term
"Hazardous Substance" means any substance that is at any time defined or listed in, or
otherwise classified pursuant to, any applicable laws or regulations (whether existing on
the date hereof or enacted thereafter and including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601, et seg., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the
Clean Air Act, 42 U.S.C. Section 7901, et seg., the Hazardous Substance
Transportation Act, 49 U.S.C. §1801 et seg.; the Federal Water Pollution Control Act, 33
U.S.C. §1251 et seg.; the Clean Air Act, 42 U.S.C. §7401 et seg.; the Toxic Substances
Control Act, 15 U.S.C. §2601 et seg.; the Safe Drinking Water Act, 42 U.S.C. §300f et
seq.; the Florida Resource Recovery and Management Act, The Water Quality
Assurance Act of 1983, The Florida Resource Conservation and Recovery Act, the
Florida Air and Water Pollution Control Act, the Florida Safe Drinking Water Act, and
The Pollution Spill Prevention and Control Act, each as amended from time to time), as
a "hazardous substance," "hazardous material," "hazardous waste," "infectious waste,"
"toxic substance," "toxic pollutant," or any other formulation intended to define, list or
classify substances by reason of deleterious properties such as ignitability, flammability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity or "EP toxicity",
including asbestos, polychlorinated biphenyls and petroleum products, by-products and
wastes and by-products associated with the extraction, refining or use of petroleum or
petroleum products, whether or not so listed or classified in such laws or regulations.
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(b) Within 30 days after Mortgagee requests it to (based on
Mortgagee's reasonable belief that any part of the Mortgaged Property may contain
Hazardous Substances), Mortgagor shall, at its expense, have performed on the
Mortgaged Property by an environmental engineering firm acceptable to Mortgagee
whatever testing Mortgagee requests and shall promptly furnish to Mortgagee the
resultant report (addressed to Mortgagee) of such firm.
(c) Immediately after receiving it, Mortgagor shall deliver to Mortgagee
a copy of each and any notice or other communication it receives from any
governmental authority or agency regarding Hazardous Substances affecting the
Mortgaged Property (or any part thereof).
10. Alterations. No Improvements or other property now or hereafter included
within the Mortgaged Property shall be removed, demolished or materially altered,
without the prior written consent of Mortgagee (which consent shall not be unreasonably
withheld if the value of such Improvements or other property as security for the Loan
Agreement will not be materially diminished as determined by Mortgagee based on
Mortgagee's normal review procedures or, if deemed necessary by Mortgagee, an
appraisal by a licensed appraiser retained at Mortgagor's expense), except that
Mortgagor shall have the right, without such consent, to construct the Improvements
pursuant to the Loan Agreement and to remove and dispose of, free from the lien of this
Mortgage, such equipment as from time to time becomes worn out, obsolete or no
longer needed, provided that either simultaneously with or prior to such removal, such
equipment shall be replaced with other equipment of a value at least equal to that of the
replaced equipment and free from any title retention, security agreement or other
encumbrance, and by such removal and replacement Mortgagor shall be deemed to
have subjected such equipment to the lien of this Mortgage.
11. Performance by Mortgagee. If Mortgagor fails to repair or insure the
Mortgaged Property as required hereby, to obtain and deliver the insurance policies (or
certificates therefor together with copies thereof) with premiums paid as required
hereby, to pay as they become due and payable any taxes, assessments or charges
assessed or imposed with respect to the Mortgaged Property (or any part thereof), to
satisfy, bond or otherwise release the liens or claims which may accrue on or with
respect to the Mortgaged Property (or any part thereof) or to perform any other
obligations of Mortgagor under this Mortgage and, except in the case of a failure
involving insurance, such failure continues for 30 days after notification thereof by
Mortgagee to Mortgagor, Mortgagee may, at its election (but without any obligation),
repair the Mortgaged Property, insure the Mortgaged Property, pay the aforesaid taxes,
charges, liens and claims (or any part thereof) and perform any of such other
obligations without in any such case waiving its right of foreclosure or any other right
hereunder and without in any such case the necessity of further notice to or demand on
Mortgagor. Mortgagor shall reimburse Mortgagee, immediately upon demand, the
amount of any and all costs and expenses incurred by Mortgagee in performing any of
these obligations together with interest on that amount at the Default Rate, and its
liability to do so shall be a part of the Secured Obligations. Mortgagee, in making any
payments, is hereby authorized: (a) to pay any taxes, assessments and insurance
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premiums according to any bill, statement or estimate procured from the appropriate
public office or vendor without inquiry into the accuracy of such bill, statement or
estimate or the validity of any tax, assessment, insurance premiums, sale, forfeiture, tax
lien or title or claim thereof, and (b) to purchase, discharge, compromise or settle any
other lien on any part of the Mortgaged Property, without inquiry as to the validity or
amount of the lien or the claim on which it is based.
12. No Sale or Further Encumbrance. Neither -the Mortgaged Property nor
any part thereof or interest therein may be voluntarily or involuntarily transferred,
assigned or conveyed, leased (except in strict compliance with Section 30 hereof) or
further mortgaged or encumbered (except to Mortgagee) without the prior written
consent of Mortgagee (which may be granted or withheld in Mortgagee's sole and
absolute discretion). Any sale or transfer of an interest in Mortgagor (or in a member,
shareholder or partner thereof that is an entity) shall be considered a transfer of the
Mortgaged Property for purposes of this Section 12. If Mortgagee does consent to a
further mortgage on the Mortgaged Property, Mortgagor shall keep that mortgage in
good standing and free from default. No right of first refusal or right of first offer
contained in any lease of all or any part of the Land or the Improvements (whether or
not the lease was consented to or approved by Mortgagee) shall be construed or
operate to require Mortgagee to release all or any part of the Mortgaged Property from
the lien of this Mortgage unless and until Mortgagee receives indefeasible payment in
full of the Secured Obligations.
13. Events of Default. Any of the following events or circumstances shall
constitute an Event of Default:
(a) Any payment of principal or interest or other amount included in the
Secured Obligations is not made when it becomes due;
(b) The occurrence of: (i) any default or event of default under the Loan
Agreement or any other loan document evidencing and/or securing the Loan which is
not cured within the applicable notice and/or cure period provided for in the Loan
Agreement or such other loan document; (ii) any Event of Default as defined in any
such loan documents; or (iii) any other event entitling Mortgagee to accelerate the
Secured Obligations;
(c) Any breach of an agreement in this Mortgage or the Loan
Agreement (other than a breach described in clause (a) above) occurs;
(d) Any warranty or representation by Mortgagor (or any guarantor of
any of the Secured Obligations) to Mortgagee (herein or elsewhere) is breached or
proves materially untrue;
(e) Any bankruptcy petition is filed by or against Mortgagor (or any
guarantor of any of the Secured Obligations) and, in the case of one filed against
Mortgagor (or any guarantor of any of the Secured Obligations), is not dismissed within
45 days after its filing;
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(f) Any breach of Section 7 occurs;
(g) Any breach of Section 9 occurs;
(h) Any breach of Section 12 occurs;
(i) Any Event of Default under the Ground Lease occurs and is
continuing;
6) A foreclosure of any other mortgage or lien on any part of the
Mortgaged Property is instituted (provided that this clause shall not be construed to
imply that the existence of any such mortgage or lien is permissible).
14. Acceleration, Foreclosure and Other Remedies. Upon and at any time
after an Event of Default occurs, all of the Secured Obligations in their entirety shall, at
Mortgagee's option, become immediately due and payable in full without notice or
demand (which Mortgagor hereby waives) and Mortgagee shall be entitled to foreclose
this Mortgage (in whole or in part) and otherwise to exercise all remedies available to it
hereunder or under applicable law.
15. Application of Foreclosure Proceeds. If this Mortgage is foreclosed by a
suit and the Mortgaged Property (or any part thereof) is sold to satisfy a decree of
foreclosure, the proceeds of such sale shall be applied as follows: first, to the expenses
and costs incurred, including reasonable attorneys' fees; second, to the payment of
whatever amounts Mortgagee may have paid or become liable to pay in carrying out the
terms and conditions of this Mortgage, together with interest thereon at the Default
Rate; and third, to the payment and satisfaction of the Secured Obligations (allocated
among them as Mortgagee determines).
16. Actions to Preserve Security. Upon and at any time after an Event of
Default occurs, Mortgagee, in its sole discretion, without any obligation so to do, without
notice to or demand upon Mortgagor and without releasing Mortgagor from any
obligation, may take any action in respect of the Mortgaged Property in such manner
and to such extent as Mortgagee considers necessary to protect the security hereof. In
connection therewith (and without limiting its general powers), Mortgagee shall have the
right, but not the obligation, in each case to the fullest extent permitted by applicable
law: (a) to enter upon and take possession of the Mortgaged Property, (b) to direct
Mortgagor to terminate any management agent employed by Mortgagor and to employ
such management agent as Mortgagee may determine in its sole discretion, (c) to make
additions, alterations, repairs and improvements to the Mortgaged Property which
Mortgagee may consider to be necessary or proper to keep the Mortgaged Property in
good condition and repair, (d) to cancel or terminate any Lease or sublease for any
cause which would entitle Mortgagor to cancel it and to disaffirm any Lease or sublease
which is then subordinate to the lien hereof, (e) to appear and participate in any action
or proceeding affecting or which may affect the security hereof or the rights or powers of
Mortgagee, (f) to pay, purchase, contest or compromise any encumbrance, claim,
charge, lien or debt which in the judgment of Mortgagee may affect or appear to affect
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the security of this Mortgage or be prior or superior hereto, (g) to exercise and avail
itself of any or all of Mortgagor's rights under and with respect to the contracts, licenses,
permits and other items described in Paragraph G under "GRANT OF MORTGAGE"
above, and (h) in exercising such powers, to pay necessary expenses, including
employment of counsel or other necessary or desirable consultants. Mortgagor shall
reimburse Mortgagee, immediately upon demand, the amount of any and all costs and
expenses incurred by Mortgagee in performing any of the aforedescribed actions
together with interest on that amount at the Default Rate, and its liability to do so shall
be a part of the Secured Obligations.
17. Appointment of Receiver. Mortgagee, in connection with any action to
foreclose this Mortgage or sell any part of the Mortgaged Property, or upon the actual or
threatened waste to any part of the Mortgaged Property, shall be entitled to apply for the
appointment of a receiver of the Mortgaged Property and the rents and profits thereof
without notice to Mortgagor, and shall be entitled to the appointment of such receiver as
a matter of right, without consideration of the value of the Mortgaged Property (or other
collateral) as security for the amounts due Mortgagee or of the solvency of any person
or other entity liable for payment of such amounts. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or similar cases and all the
powers and duties of Mortgagee in case of entry as provided in Section 16 and shall
continue as such and exercise all such powers until the date of confirmation of sale of
the Mortgaged Property unless the receivership is terminated sooner with Mortgagee's
consent.
18. Costs of Enforcement. Mortgagor shall pay (or, if. already paid by
Mortgagee, reimburse Mortgagee for) any and all costs, expenses (including without
limitation title insurance and title search expenses, inspection reports and consultants'
fees) and attorneys' fees reasonably incurred or paid by Mortgagee in connection
herewith after an Event of Default (or event or circumstance which with notice, the
passage of time or both would constitute an Event of Default) occurs, whether suit be
brought or not, and any such costs and expenses shall be secured by the lien of this
Mortgage.
19. Inspections. Upon prior notice, Mortgagee and any persons authorized by
Mortgagee shall be entitled to enter and inspect the Mortgaged Property at all
reasonable times, and Mortgagor shall cooperate fully with any such inspection.
20. Rights Cumulative. No enumeration of special rights or powers by any
provisions of this Mortgage shall be construed to limit any grants of general rights or
powers, or to take away or limit any rights granted to or vested in Mortgagee by virtue of
the laws of the State of Florida; and no right, power or remedy created or conferred by
this Mortgage shall be exclusive of any other right, power or remedy created or
conferred hereby or by the Loan Documents.
21. Mortgage Taxes. Mortgagor shall on demand pay (or, if already paid by
Mortgagee, reimburse Mortgagee for) any and all documentary stamp, intangible and
other taxes levied on, in connection with or as a result of this Mortgage, the Loan
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Agreement and/or any Secured Obligations (including any future advances included
therein) and shall indemnify Mortgagee from and against any liability resulting from any
breach of the foregoing agreement, including any interest and penalties. Mortgagee is
hereby authorized to deduct any such tax from any advance made under the Loan
Agreement or from any account of Mortgagor with Mortgagee.
22. Modification and Performance of Covenants and Restrictions. Mortgagor
shall not join in, terminate, initiate, consent to or permit any discharge, amendment, or
modification of, any public or private restrictions or covenants or any zoning ordinances
affecting the Mortgaged Property, without first having obtained the written consent of
Mortgagee to such action. Mortgagor shall perform all its obligations under any
declaration of covenants and restrictions or similar instrument now or hereafter affecting
the Mortgaged Property.
23. Subrogation. (a) The right of any person or entity to be subrogated to the
liens hereof by virtue of the payment or satisfaction of any portion of the Secured
Obligations shall be subordinated and remain inferior to the rights of Mortgagee
hereunder until all of the Secured Obligations shall have been paid in full and
Mortgagee shall have released its rights hereunder, and any such person or entity shall
be regarded as a junior lienholder at any foreclosure proceeding, shall not be entitled to
notice thereof and, until Mortgagee is fully paid, shall not be entitled to participate in any
proceeds therefrom.
(b) To the extent funds are at any time advanced by Mortgagee
hereunder or under the Loan Agreement for the purpose of paying any indebtedness
now or hereafter secured by any liens or security interests other than the liens and
security interests created by this Mortgage, Mortgagee shall be subrogated to any and
all rights, liens, security interests and equities owned or claimed by the holder of such
other liens and security interests. Such other liens and security interests, if any, are not
waived, but rather are hereby renewed, extended and continued in full force and effect
in favor of Mortgagee and are merged with the liens and security interests created
herein as cumulative security for the repayment of the Secured Obligations. Except
with respect to the priority of any lien to which Mortgagee is subrogated pursuant to this
provision, the terms and provisions of this Mortgage shall govern the rights and
remedies of Mortgagee and shall supersede the rights and remedies provided under
any instrument creating liens to which Mortgagee is subrogated.
24. Condemnation. If any part of the Mortgaged Property is condemned and
taken for public use under the power of eminent domain, Mortgagee shall have the right
to have any award or payment made or to be made on account of the taking of or
damage to the Mortgaged Property paid to Mortgagee up to the amount of the Secured
Obligations (to be applied by Mortgagee to the Secured Obligations when and in such
order as Mortgagee elects), and Mortgagor hereby assigns and transfers to Mortgagee
any such award or payment. Mortgagor shall reimburse Mortgagee, upon demand, for
any attorneys' fees and other expenses incurred by Mortgagee in connection with any
condemnation or eminent domain proceedings affecting the Mortgaged Property.
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25. Estoppel Letters. Within 10 days after Mortgagee's request, Mortgagor
shall certify, by a duly acknowledged writing, to Mortgagee or to any proposed assignee
of this Mortgage, the amount of principal and interest then owing with respect to the
Secured Obligations and whether any offsets or defenses exist against the Secured
Obligations; and, if Mortgagor fails to so respond within 10 days, the information
contained in Mortgagee's request shall be binding on Mortgagor.
26. No Waiver. Any failure by Mortgagee to insist upon the strict performance
by Mortgagor of any of the terms and provisions hereof shall not be considered to be a
waiver of any of the terms and provisions hereof, and Mortgagee, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict performance by
Mortgagor of any and all of the terms and provisions of this Mortgage to be performed
by Mortgagor. Neither Mortgagor nor any other person now or hereafter obligated for
the payment of the whole or any part of the Secured Obligations shall be relieved of any
obligation by reason of the failure of Mortgagee to comply with any request of Mortgagor
or of any other person so obligated to take action to foreclose this Mortgage or
otherwise enforce any of the provisions of this Mortgage or of any Secured Obligations,
or by reason of the release, regardless of consideration, of the whole or any part of
other security for the Secured Obligations, or by reason of any agreement or stipulation
between any subsequent owner or owners of the Mortgaged Property and the
Mortgagee extending the time of payment for amounts due under the Loan Agreement
or this Mortgage or modifying the terms thereof without first having obtained the consent
of Mortgagor or such other person, and, in the latter event, Mortgagor and all such other
persons shall continue to be liable to make such payments according to the terms of
any such agreement of extension or modification unless and until expressly released
and discharged in writing by Mortgagee. Regardless of consideration, and without the
necessity for any notice to or consent by Mortgagor or the holder of any subordinate lien
on the Mortgaged Property, Mortgagee may release the obligation of anyone at any
time liable for any of the Secured Obligations or any part of the security held therefor
and may extend the time of payment or otherwise modify the terms of the Loan
Agreement and/or this Mortgage without, as to the security or the remainder thereof, in
any way impairing or affecting the lien of this Mortgage or the priority of such lien, as
security for the payment of the Secured Obligations as it may be so extended or
modified, over any subordinate lien.
27. Resort to Other Collateral; Waiver of Certain Defenses. Mortgagee may
resort for the payment of the Secured Obligations to any other security therefor in such
order and manner as Mortgagee may elect in its sole discretion. Mortgagor agrees, to
the extent that it may lawfully so agree, that if an Event of Default occurs, neither
Mortgagor nor anyone claiming through or under Mortgagor shall or will set up, seek or
claim to take advantage of any appraisement, valuation, stay, extension, homestead,
redemption, moratorium or marshalling laws now or hereafter enforced in the jurisdiction
where the Mortgaged Property may be situated in order to prevent or hinder the
enforcement or foreclosure of this Mortgage, or the absolute sale of the Mortgaged
Property, or the final or absolute putting into possession thereof, immediately after such
sale, of the purchaser thereof, and Mortgagor for itself and its successors and assigns
hereby waives, to the full extent that it may lawfully do so, the benefit of all such laws
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and any and all right to have the estates comprising the security intended to be created
hereby marshaled upon any foreclosure of the lien hereof.
28. Superiority Over Intervening Liens. Any agreement hereafter made
between Mortgagor and Mortgagee relating to this Mortgage, the Mortgaged Property or
any Secured Obligations shall be superior to the rights of any holder of an intervening
lien or encumbrance recorded after the date this Mortgage is recorded.
29. Personal Property and Fixtures. This Mortgage constitutes and shall be
construed as a security agreement and financing statement under the applicable
Uniform Commercial Code for the purpose of evidencing and creating a lien on and
security interest in fixtures and personal property included in the Mortgaged Property
and shall be recorded in the real estate records of the county in which the Mortgaged
Property is located. Either the original or a photocopy of this Mortgage shall suffice as a
financing statement for the purposes of the applicable Uniform Commercial Code.
Notification of any sale or other disposition of such fixtures and personal property after
an Event of Default shall be considered reasonable if given 10 or more days before the
disposition in the manner set forth hereinafter. Mortgagor shall notify Mortgagee at
least 30 days before it makes any change in its name, identity or location (as defined in
the applicable Uniform Commercial Code or its then -current equivalent) and shall
execute and deliver to Mortgagee, before making any such change, all additional
financing statements and amendments that Mortgagee may require to establish or
maintain the validity and priority of Mortgagee's security interest with respect to the
Mortgaged Property.
30. Rents Assignment. (a) Mortgagor hereby assigns and transfers to
Mortgagee all of the rents, income and profits (the "Rents") arising from any and all
present and future leases, subleases, licenses or occupancy agreements of or with
respect to any part of the Land or the Improvements (the "Leases," each a "Lease," the
tenants, licensees and occupants thereunder being the "Lessees," each a "Lessee") as
further security for repayment of the Secured Obligations and hereby irrevocably grants
to Mortgagee the right to enter the Mortgaged Property for the purpose of collecting all
or any of the Rents, to apply all or any of the Rents (after deduction of collection costs)
to the Secured Obligations (and/or, in Mortgagee's discretion, to the costs and
expenses of operating and maintaining the Land and Improvements) and to generally
perform any other act with respect to the Leases and the Mortgaged Property to the
same extent as Mortgagor could or might do. This is a present, absolute and executed
assignment of the Rents and Leases; nevertheless, unless and until an Event of Default
occurs, Mortgagor shall have the right, under a license granted hereby, to collect the
Rents upon, but not prior to, their accrual. Mortgagor hereby irrevocably directs each
Lessee, upon demand and notice from Mortgagee of an Event of Default under this
Mortgage, to pay to Mortgagee all Rents hereafter accruing or due under such Lease;
and no Lessee shall be under any obligation, before making such payments, to inquire
into or determine the actual existence of any such Event of Default of which it is notified.
(b) Except if and as otherwise provided in the Assignment of Rents and
Leases, of approximately even date herewith, made by Mortgagor in favor of
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Mortgagee, without the prior written consent of Mortgagee, Mortgagor shall not enter
into any new Lease or any material modification of any Lease, shall not accept
prepayments of rents under any Lease for more than 1 month in advance or
prepayments thereunder in the nature of security in excess of 1 month's rent and shall
not consent to any assignment of any Lease or any subletting under any Lease.
Mortgagor shall notify Mortgagee of any material default under any Lease, shall enforce
each material term and condition of each Lease to be performed by Lessee and shall
not accept any surrender of any Lease except as a result of default by the Lessee
thereunder. Mortgagor shall furnish to Mortgagee, within 10 days after a request by
Mortgagee to do so, a certified rent schedule containing such data regarding Leases as
Mortgagee may reasonably request.
(c) Mortgagor shall indemnify and hold Mortgagee harmless from and
against any and all liability, damages and expenses that Mortgagee may incur under or
with respect to any of the Leases or by reason of any action taken or omitted to be
taken by Mortgagee in connection with any of the Leases (except for liability, damages
and expenses caused by Mortgagee's gross negligence or willful misconduct); and any
amount that may become due from Mortgagor to Mortgagee as a result of the foregoing
indemnity shall be paid by Mortgagor on demand, shall bear interest until paid at the
Default Rate and shall be secured by this Mortgage. Nothing contained herein shall
operate or be construed to obligate Mortgagee to perform any of the terms or covenants
of any Lease.
(d) If Mortgagee requests it to, Mortgagor shall cause each and any
Lessee to deliver to Mortgagee a tenant estoppel certificate in a form prepared by
Mortgagee and/or to enter into either (at Mortgagee's election) a subordination
agreement prepared by Mortgagee or a subordination, non -disturbance and attomment
agreement prepared by Mortgagee (though Mortgagee shall have no obligation to enter
into any such agreement).
(e) Mortgagee's rights in this Section shall be cumulative with and in
addition to its rights contained in any Assignment of Rents and Leases made by
Mortgagor in Mortgagee's favor. In the event of any conflict between this Section and a
provision of any such Assignment of Rents and Leases, the provision giving Mortgagee
greater rights and/or protection shall control.
31. Assignment of Development Rights. Mortgagor hereby collaterally
assigns to Mortgagee all Mortgagor's right, title and interest in and to (but not its
obligations and duties under) any and all building permits, plans and specifications,
architectural contracts, construction contracts and other agreements or items to or of
which Mortgagor is or at any time hereafter becomes a party or beneficiary or in which it
now or hereafter has an interest which relate to the development, construction and/or
renovation of the Improvements (collectively, the "Development Documents") and all
Mortgagor's rights (but not its obligations except to the extent expressly assumed by
Mortgagee in a recorded instrument signed by it) under any and all declarations of
covenants or restrictions and any and all land -use or zoning rights or entitlements
relating to the Land (collectively, the "Entitlements"). In the event the Secured
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Obligations become due and payable in full (whether as stated, by acceleration or
otherwise) the foregoing assignment shall, at Mortgagee's election, become absolute
and Mortgagee shall have the option, but not the obligation, to exercise the rights of
Mortgagor in and to any one or more of the Development Documents and any one or
more of the Entitlements. Mortgagee may assign by an express written instrument to
any purchaser at a foreclosure sale (or grantee of a deed -in -lieu thereof) of all or any
part of the Land or to any purchaser thereof from Mortgagee, all or any of the rights
assigned hereunder.
32. Reporting. Mortgagor shall furnish to Mortgagee, at Mortgagor's expense,
and promptly upon Mortgagee's request, whatever information respecting the condition
or operations, financial or otherwise, of Mortgagor or the Mortgaged Property as
Mortgagee may from time to time reasonably request.
33. Compliance with Laws. Mortgagor shall comply at all times with all laws,
codes and regulations applicable to the Mortgaged Property, including without limitation
zoning laws, building and safety codes and laws and regulations relating to persons with
disabilities.
34. Prior Mortgages. This Section shall apply if and as long as there is any
mortgage on all or any part of the Mortgaged Property that is superior to this Mortgage
(any and all such prior mortgages being the "Prior Mortgages"), but shall not be
construed to permit any Prior Mortgages or to undercut or negate any warranty or
covenant herein regarding further encumbrances. Mortgagor shall not apply for or
accept any future advances secured by any Prior Mortgage. Upon request by
Mortgagee, Mortgagor shall promptly execute and deliver all notices required under s.
697.04(1)(b), Florida Statutes, to limit the amount secured by each Prior Mortgage to
the amount secured thereby on the date hereof, and, if Mortgagor fails to do so,
Mortgagee is hereby granted a power of attorney to do so in place of Mortgagor (this
power is coupled with an interest and is irrevocable). Mortgagor shall keep each and
any Prior Mortgage in good standing and free from default. If Mortgagor fails to
promptly perform and comply with all obligations of Mortgagor under any Prior
Mortgage, Mortgagee may (but shall not be obligated to) take any such action, without
awaiting the expiration of any grace period, as Mortgagee deems necessary or
desirable to prevent or to cure any default thereunder by Mortgagor. Upon receipt by
Mortgagee of any written notice of default by Mortgagor in the observance or
performance of any of the covenants and conditions in any Prior Mortgage, Mortgagee
may rely thereon and may (but shall not be obligated to) take any such action required
to prevent or cure such default even though the existence of such default or the nature
thereof be questioned or denied by or on behalf of Mortgagor. Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and
immediate right to enter in and upon the Mortgaged Property or any part thereof to such
extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable
in order to prevent or to cure any such default by Mortgagor. Mortgagor shall pay to
Mortgagee, immediately and without demand, all sums paid by Mortgagee pursuant to
this Section, with interest thereon from the date of each such payment at the Default
Rate. All amounts so paid and expended by Mortgagee, and the interest thereon, shall
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be added to and be secured by the lien of this Mortgage. Mortgagor shall deliver to
Mortgagee at any time upon request by Mortgagee evidence satisfactory to Mortgagee
of the full force and effect of each Prior Mortgage without default thereunder by any
party thereto and without the occurrence of any event which would, upon the lapse of
time or the giving of notice, or both, result in a default thereunder. Mortgagor shall
promptly give written notice to Mortgagee (together with a copy of any written notice
received from the mortgagee under the Prior Mortgage in question) of any default by
Mortgagor under any Prior Mortgage. Mortgagor shall not agree to the amendment or
modification of any provision of any Prior Mortgage without first obtaining the written
consent of Mortgagee. Mortgagor shall notify Mortgagee in writing of any change in the
holder of the Prior Mortgage within 15 days after Mortgagor learns of the change.
Mortgagor hereby consents to Mortgagee's communicating with each holder of a Prior
Mortgage for any purpose regarding this Mortgage or Mortgagee's interest in the
Mortgaged Property.
35. Further Warranties. Mortgagor represents and warrants to Mortgagee as
follows:
(a) The Loan Documents constitute the valid, binding and enforceable
obligations of Mortgagor and do not violate or contravene any law, order, decree, rule or
regulation to which Mortgagor is subject.
(b) The Mortgaged Property and the intended use thereof by
Mortgagor comply with all applicable restrictive covenants, zoning ordinances,
subdivision and building codes, flood disaster laws, health and environmental laws and
regulations, and laws and regulations relating to persons with disabilities or handicaps
and all other ordinances, orders or requirements issued by any state, federal, county or
municipal authorities having or claiming jurisdiction over any of the Mortgaged Property.
The Mortgaged Property does not require any rights over, or restrictions against, any
other property in order to comply with any of the aforesaid governmental ordinances,
orders or requirements.
(c) Mortgagor will cause the Land and the Improvements to be
separated into a separate tax parcel for purposes of ad valorem taxation.
(d) All utility services necessary and sufficient for the full use
occupancy, operation and disposition of the Mortgaged Property for its intended
purposes (including water, storm sewer, sanitary sewer, gas, electric, cable and
telephone facilities) are or will be available thereto through public rights of way or
perpetual private easements approved by Mortgagee.
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(e) All streets, roads, highways, bridges and waterways necessary for
access to and full use occupancy, operation and disposition of the Mortgaged Property
have been or will be completed, will be dedicated to and accepted by the appropriate
municipal authority and are or will be open and available to the Mortgaged Property
without further condition or cost to Mortgagor. Any and all easements benefiting the
Mortgaged Property are included in the description of the Land in Exhibit A hereto.
(f) There are no judicial, administrative, mediation or arbitration
actions, suits or proceedings pending, or, to the best knowledge of Mortgagor,
threatened against, Mortgagor or any of the Mortgaged Property which, if adversely
determined, would materially impair the Mortgaged Property or Mortgagor's ability to
perform its agreements hereunder.
(g) The Mortgaged Property is free from delinquent water charges,
sewer rents, taxes and other assessments.
(h) As of the date hereof, the Improvements are free from unrepaired
damage caused by fire, flood, accident or other casualty.
(i) As of the date hereof, no part of the Mortgaged Property has been
taken in condemnation, eminent domain or similar proceedings nor is any such
proceeding pending or, to Mortgagor's knowledge, threatened or contemplated.
0) Mortgagor possesses all franchises, trade names, licenses and
permits adequate for the conduct of any business it now conducts.
(k) There are no security agreements or financing statements affecting
any of the Mortgaged Property other than those in favor of Mortgagee and any
disclosed in writing by Mortgagor to Mortgagee prior to the date hereof.
(1) No Leases exist as of the date hereof.
(m) Any credit secured hereby will be used exclusively for business,
commercial or agricultural purposes.
36. Usurer Negation. Nothing herein shall be construed or operate so as to
require Mortgagor to pay interest hereunder in an amount or at a rate greater than the
maximum allowed by applicable law, it being Mortgagor's and Mortgagee's intention not
to violate any law relating to usury. Should any interest or other charges paid or to be
paid hereunder result in the computation or earning of interest in excess of the
maximum rate or amount of interest which is permitted under applicable law, any and all
such excess interest shall be (and the same hereby is) waived by Mortgagee, and the
amount of such excess paid shall be automatically credited against, and be deemed to
have been payments in reduction of, the principal then due hereunder, and any portion
of such excess paid which exceeds the principal then due hereunder shall be paid by
Mortgagee to Mortgagor.
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37. Further Assurances. Mortgagor shall, at any time and from time to time,
execute and deliver whatever further instruments may be requested by Mortgagee to
confirm and perfect the lien of this Mortgage on any part of the Mortgaged Property, to
correct any errors or omissions herein, in the Loan Documents or in any related
documents or to otherwise fulfill or further the objectives hereof.
38. Amendments. This Mortgage may not be amended orally or by any
course of dealing between Mortgagor and Mortgagee, but only by an agreement in
writing signed by the party against whom enforcement of the amendment is sought. No
provision hereof may be waived orally or by any course of dealing but only by an
agreement in writing signed by Mortgagee.
39. Terminology. The term "attorneys' fees" whenever used herein shall be
deemed to include but not be limited to attorneys' fees and paralegal fees incurred in
any and all judicial, bankruptcy, and other proceedings, including appellate level
proceedings, whether such proceedings arise before or after entry of a final judgment.
The term "the Default Rate," whenever used herein means the rate of interest specked
in the section of the Loan Agreement entitled "Default." The term "Business Day"
whenever used herein means any day other than a Saturday, a Sunday or a holiday on
which most banks are closed for general commercial business in Miami -Dade County,
Florida. Whenever used herein, "acceptable to Mortgagee" or "satisfactory to
Mortgagee" shall be read to mean "acceptable and satisfactory to Mortgagee in
Mortgagee's sole and absolute discretion." Terms defined at the head of this Mortgage
are used herein as there defined.
40. Binding Effect. The term "Mortgagor" shall be construed to include the
heirs, executors, administrators, legal or personal representatives, successors and
assigns of each person or entity included within that term; and all agreements of
Mortgagor herein shall be binding upon all those persons and shall inure to the benefit
of Mortgagee, its successors and assigns. All obligations of Mortgagor hereunder shall
be the joint and several obligations of each person or entity included within that term.
41. Assignments and Participations. Mortgagee may at any time assign this
Mortgage together with all or any part of the Secured Obligations and may grant at any
time one or more participations in this Mortgage and all or any part of the Secured
Obligations. Mortgagee may make whatever disclosures regarding Mortgagor or the
Mortgaged Property it considers necessary or desirable in connection with any
assignment of this Mortgage or any sale of a participation herein.
42. Partial Invalidity. If any provision of this Mortgage or the application
thereof to any person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Mortgage and the application of such provision to other persons or
circumstances shall not be affected thereby and shall be enforced to the greatest extent
permitted by law.
43. Time of the Essence. Time is of the essence of this Mortgage.
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44. Modifications of Loan Agreement. This Mortgage secures, in addition to
the Loan Agreement itself, all extensions, renewals, consolidations, restatements and
modifications thereof and all substitutions and replacements therefor. Whenever used
elsewhere herein, the term "the Loan Agreement" includes all extensions, modifications,
renewals, restatements and consolidations of the Loan Agreement and all substitutions
and replacements therefor.
45. Survival of Indemnities. Mortgagor's liability under any indemnity or hold
harmless agreement contained herein shall survive the release or satisfaction hereof
and repayment of the Secured Obligations.
46. Ground Lease.
(a) Mortgagor shall pay all rent and other charges required under the
Ground Lease as and when the same are due and Mortgagor shall keep, observe and
perform, or cause to be kept, observed and performed, all of the other terms,
covenants, provisions and agreements of the Ground Lease on the part of the tenant
thereunder to be kept, observed and performed, and shall not in any manner, cancel,
terminate or surrender, or permit any cancellation, termination or surrender of the
Ground Lease, in whole or in part, or, without the written consent of Mortgagee, either
orally or in writing, modify, amend or permit any modification or amendment of any of
the terms thereof in any respect, and any attempt on the part of Mortgagor to exercise
any such right without such written consent of Mortgagee shall be null and void and of
no effect.
(b) Mortgagor shall do, or cause to be done, all things necessary to
preserve and keep unimpaired the rights of Mortgagor as lessee under the Ground
Lease, and to prevent any default under the Ground Lease, or any termination,
surrender, cancellation, forfeiture or impairment thereof; and, in the event of the failure
of Mortgagor to make any payment required or permitted to be made by Mortgagor
pursuant to the provisions of the Ground Lease or to keep, observe or perform, or cause
to be kept, observed or performed, any of the terms, covenants, provisions or
agreements of the Ground Lease, Mortgagee may (but shall not be obligated to) take
any action on behalf of Mortgagor, to make or cause to be kept, observed or performed
any such terms, covenants, provisions or agreements and to enter upon the Mortgaged
Property and take all such action thereof as may be necessary therefor, to the end that
the rights of Mortgagor in and to the leasehold estate created by the Ground Lease shall
be kept unimpaired and free from default, and all money so expended by Mortgagee,
with interest thereon at the Default Rate from the date of each such expenditure, shall
be paid by Mortgagor to Mortgagee promptly upon demand by Mortgagee and shall be
added to the Secured Obligations and Mortgagee shall have, in addition to any other
remedy of Mortgagee, the same rights and remedies in the event of non-payment of any
such sum by Mortgagor as in the case of a default by Mortgagor in the payment of any
sums due under the Loan Agreement.
(c) Mortgagor shall enforce the obligations of the lessor under the
Ground Lease to the end that Mortgagor may enjoy all of the rights granted to it under
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the Ground Lease, and shall promptly notify Mortgagee in writing of any default by
Mortgagor in the performance or observance of any of the terms, covenants and
conditions on the part of such Mortgagor, as the case may be, to be performed or
observed under the Ground Lease and Mortgagor shall promptly advise Mortgagee in
writing of the occurrences of any of the events of default enumerated in the Ground
Lease and of the giving of any notice by the landlord under the Ground Lease to
Mortgagor of any default by Mortgagor in performance or observance of any of the
terms, covenants or conditions of the Ground Lease on the part of the Mortgagor to be
performed or observed and shall immediately deliver to Mortgagee a true copy of each
such notice. If, pursuant to the Ground Lease, the landlord delivers to Mortgagee a
copy of any notice of default given to Mortgagor, such notice shall constitute full
authority and protection to Mortgagee for any action taken or omitted to be taken by
Mortgagee in good faith in reliance thereon.
(d) If any action or proceeding is instituted to evict Mortgagor or to
recover possession of any of the Premises or for any other purpose affecting the
Ground Lease or this Mortgage, Mortgagor shall, immediately upon service thereof on
or to Mortgagor, deliver to Mortgagee a true copy of each petition, summons, complaint,
notice of motion, order to show cause and of all other provisions, pleadings, and papers,
however designated, served in any such action or proceeding.
(e) Unless Mortgagee otherwise expressly consents in writing, the fee
title to the Mortgaged Property shall not merge with the leasehold interests created by
the Ground Lease but shall always remain separate and distinct, notwithstanding the
union of said estates either in the lessor, Mortgagor or a third party by purchase or
otherwise; and in case Mortgagor acquires the fee title or any other estate, title or
interest in any part of the Mortgaged Property, this Mortgage shall attach to and cover
and be a lien upon the fee title or such other estate so acquired, and such fee title, and
other estate shall, without further assignment, mortgage or conveyance, become and be
subject to the lien of and covered by this Mortgage.
(f) No release or forbearance of any.of Mortgagor's obligations under
the Ground Lease, pursuant to the Ground Lease, or otherwise, shall release Mortgagor
from any of its obligations under this Mortgage, including its obligation with respect to
the payment of rent as provided for in the Ground Lease and the performance of all of
the terms, provisions, covenants, conditions and agreements contained in the Ground
Lease, to be kept, performed and complied with by the lessee therein. Mortgagor shall
not make any election or give any consent or approval for which a right to do so is
conferred upon Mortgagor as the tenant under the Ground Lease without Mortgagee's
prior written consent. In case of any default continuing beyond applicable cure periods,
all such rights, together with the right of termination, cancellation, modification, change,
supplement, alteration or amendment of the Ground Lease, all of which have been
assigned for collateral purpose to Mortgagee, shall vest in and be exercisable solely by
Mortgagee. Mortgagor shall give Mortgagee prompt written notice of the
commencement of any arbitration or appraisal proceeding under and pursuant to the
provisions of the Ground Lease. Mortgagee shall have the right to intervene and
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participate in any such proceeding and Mortgagor shall confer with Mortgagee to the
extent which Mortgagee deems necessary for the protection of Mortgagee.
(g) (i) The lien of this Mortgage shall attach to all of Mortgagor's
rights and remedies at any time arising under or pursuant to Subsection 365(h) of the
Bankruptcy Code, 11 U.S.C. §365(h), including, without limitation, all of Mortgagor's
rights to remain in possession of the Premises.
(ii) Mortgagor shall not, without Mortgagee's prior written
consent, elect to treat the Ground Lease as terminated under Subsection 365(h)(1) of
the Bankruptcy Code, 11 U.S.C. §365(h)(1). Any such election made without
Mortgagee's prior written consent shall be void.
(iii) Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to the payment of damages
arising from any rejection of the Ground Lease by the landlord under the Ground Lease
or any fee owner of the Premises under the Bankruptcy Code. Mortgagee shall have
the right to proceed in its own name or in the name of Mortgagor in respect of any claim,
suit, action or proceeding relating to the rejection of the Ground Lease, including,
without limitation, the right to file and prosecute, to the exclusion of Mortgagor, any
proofs of claim, complaints, motions, applications, notices and other documents, in any
case with respect to the landlord or any fee owner under the Bankruptcy Code. This
assignment constitutes a present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in effect until all of the
indebtedness secured by this Mortgage has been satisfied and discharged in full. Any
amounts received by Mortgagee as damages arising out of the rejection of the Ground
Lease as aforesaid shall be applied first to all costs and expenses—of-Mortgagee--
(including, without limitation, attorneys' fees) incurred in connection with the exercise of
any of its rights or remedies under this section.
(iv) If pursuant to Subsection 365(h)(2) of the Bankruptcy Code,
11 U.S.C. §365(h)(2), Mortgagor seeks to offset against the rent reserved in the Ground
Lease the amount of any damages caused by the nonperformance by the landlord
under such Ground Lease or any fee owner of the Premises of any of its obligations
under the Ground Lease after the rejection by the landlord or any fee owner of the
Ground Lease under the Bankruptcy Code, Mortgagor shall, prior to effecting such
offset, notify Mortgagee of its intent to do so, setting forth the amounts proposed to be
so offset and the basis therefor. Mortgagee shall have the right to object to all or any
part of such offset that, in the reasonable judgment of Mortgagee, would constitute a
breach of the Ground Lease, and in the event of such objection, Mortgagor shall not
effect any offset of the amounts so objected to by Mortgagee. Neither Mortgagor's
failure to object as aforesaid nor any objection relating to such offset shall constitute an
approval of any such offset by Mortgagee. Mortgagor shall pay and protect Mortgagee,
and indemnify and save Mortgagee harmless from and against, any and all claims,
demands, actions, suits, proceedings, damages, losses, costs and expenses or every
nature whatsoever (including without limitation, attorneys' fees) arising from or relating
to any offset by Mortgagor against the rent reserved in the Ground Lease.
MIADOCS 10594031 6 21
Submitted into the publi
rec rd f r ite s) �, � CFN: 20150315953 BOOK 29619 PAGE 2846
on M IIICity Clerk
(v) If any action, proceeding, motion or notice is commenced or
filed in respect of the landlord under the Ground Lease or any fee owner, the Premises,
or the Ground Lease in connection with any case under the Bankruptcy Code,
Mortgagee shall have the option, exercisable upon notice from Mortgagee to Mortgagor,
to conduct and control any such litigation with counsel of Mortgagee's choice.
Mortgagee may proceed in its own name or in the name of Mortgagor in connection with
any such litigation, and Mortgagor agrees to execute any and all powers, authorizations,
consents or other documents required by Mortgagee in connection therewith.
Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses (including
attorneys' fees) paid or incurred by Mortgagee in connection with the prosecution or
conduct of any such proceedings. Any such costs or expenses not paid by Mortgagor
as aforesaid shall be secured by the lien of this Mortgage and shall be added to the
principal amount of the Secured Obligations. Mortgagor shall not commence any
action, suit, proceeding or case, or file any application or make any motion, in respect of
the Ground Lease in any such case under the Bankruptcy Code without the prior written
consent of Mortgagee.
(vi) Mortgagor shall, after obtaining knowledge thereof, promptly
notify Mortgagee of any filing by or against the landlord under the Ground Lease or any
fee owner of any part of the Premises of a petition under the Bankruptcy Code.
Mortgagor shall deliver to Mortgagee, promptly after its receipt thereof, copies of any
and all notices, summonses, pleadings, applications and other documents received by
Mortgagor in connection with any such petition and any proceedings relating thereto.
(vii) If there is filed by or against Mortgagor a petition under the
Bankruptcy Code and Mortgagor, as lessee under the Ground Lease, determines to
reject such Ground Lease pursuant to Section 365(a) of the Bankruptcy Code,
Mortgagor shall give Mortgagee not less than 30 days' prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court for authority to reject the Ground Lease.
Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within
such 30 day period a notice stating that Mortgagee demands that Mortgagor assume
and assign such Ground Lease to Mortgagee pursuant to Section 365 of the Bankruptcy
Code. If Mortgagee serves upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Ground Lease and shall comply with
the demand provided for in the preceding sentence.
(viii) Effective upon the entry of an order for relief with respect to
Mortgagor under the Bankruptcy Code, Mortgagor hereby assigns and transfers to
Mortgagee a non exclusive right to apply to the Bankruptcy Court under subsection
365(d)(4) of the Bankruptcy Code for an order extending the period during which the
Ground Lease may be rejected or assumed.
(h) As used in this Section 46, the term "the Premises" shall mean and
refer to the Land and the Improvements.
47. Notices. Any notice given in connection herewith shall be given in the
manner and with the effect set forth in the Loan Agreement except that any notice given
MIADOCS 105940316 22
Submitted into the public Q CFN: 20150315953 BOOK 29619 PAGE 2847
record f r ite s) 5i
on City Clerk
pursuant to s. 697.04(1)(b), Florida Statutes, (a "Future Advance Cutoff Notice") shall be
effective only when actually received and receipted for by an officer of Mortgagee. To
the fullest extent permitted by law, Mortgagor hereby waives any right it may have to
give, and agrees not to give, any Future Advance Cutoff Notice in connection with or
affecting any future advance which Mortgagee is now or hereafter committed to make
(whether pursuant to a standby letter of credit, a loan agreement or otherwise) and its
giving one anyway shall constitute an Event of Default.
48. Bankruptcy. In the event that Mortgagor shall seek protection under the
United States Bankruptcy Code, or should Mortgagor be adjudicated a debtor
thereunder, Mortgagor hereby consents to relief from the automatic stay pursuant to 11
U.S.C. §362(d) to allow Mortgagee to proceed to, and obtain, a final judgment of
foreclosure of this Mortgage, to complete a foreclosure sale pursuant thereto, to cause
the issuance of a certificate of title pursuant thereto, and to otherwise take all such
actions as Mortgagee may elect in its sole discretion in pursuance of the other rights
and remedies available to Mortgagee in the case of a default under this Mortgage.
Mortgagor hereby waives any protection under 11 U.S.C. §362(a).
49. Loan Agreement. This Mortgage is the Mortgage referred to in, and is
entitled to the benefits of, the Loan Agreement.
50. Cumulative Rights and Remedies. Mortgagee's rights and remedies
hereunder shall be cumulative with, and not exclusive of, those contained in the Loan
Documents.
51. Governing Law. This Mortgage will be governed by and interpreted in
accordance with federal law and the internal laws of the State of Florida, except for
matters related to interest and the exportation of interest, which matters shall be
governed by and interpreted in accordance with federal law (including, but not limited to,
statutes, regulations, interpretations and opinions) and the laws of the State of Florida.
However, if there is ever a question about whether any provision of this Mortgage is
valid or enforceable, the provision that is questioned will be governed by whichever
state or federal law would find the provision to be valid and enforceable.
52. Waiver of Jury Trial. MORTGAGOR AND (BY ACCEPTANCE HEREOF)
MORTGAGEE EACH HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS MORTGAGE.
(Signature page follows)
MIADOCS 10594031 6 23
Submitted into the public
record fo ite (s)�
on 1 . City Clerk
CFN: 20150315953 BOOK 29619 PAGE 2848
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on the date
hereof.
Witnessed by: ISLAND GARDENS DEEP HARBOUR LLC,
a Delaware limited liability company
Y
Print Name: Va TK 5 uci 1
STATE Of FLORIDA
SS:
COUNTY OF MIAMI-DADE
Flagstone Asset Management, LLC,
a Delaware limited liability company, its
Manager
0
--A - � 2�1� � —
M hme r kt r, Chairman
IV
The foregoing instrument was acknowledged before me this I I day of
M , 2015 by Mehmet Bayraktar on behalf of and as Chairman of
Flagst ne Asset Management, LLC, a Delaware limited liability company, as Manager
of Island Gardens Deep Harbour LLC, a Delaware limited liability company. He is
personally known tome or has produced pez: VES t.+'c-EvSE — f as identify
cation.
Notary Public, State Florida
Print Name: NAST4 Ssi M M • 0 d' VZ` &LA5 L
My commission expires: JUL • 19, Zo 115
Ga r4 -# 4:.r 1 `F l t� ai9
(SEAL)
. ," r n . Nastassia Mala RodZ
,? 60mmIsSION # FF 141899
-i -EXPIRES: JUL 15, 2018
i .... 3 BOWED
TtIRU
„ �;, •' tat FLORIDA NOTARY. LLC
MIADOCS 105940316 24
Submitted into the public,
record fo ite (s) SP, 11 CFN: 20150315953 BOOK 29619 PAGE 2849
on 51,n City Clerk
EXHIBIT "A"
LEGAL DESCRIPTION
Submitted into the publi
record f ite (S)� CFN: 20150315953 BOOK 29619 PAGE 2850
on TJ1 . City Clerk
SKETCH AND LEGAL DESCRIPTION
LEGAL DESCRIPTIO[: (UPLANDS
Commence of a point shown, marked by an 5/6" diameter Iron 'rod and Cop Stamped FDAT., shown
as P.T. Ste. 25+50 on the "Official Atop of Locotfon and Survey of a portion of Section 8706.
designated as pad of State Road A -1—A In Dodo County, Florida', prepared by the State Road
Department of the State of Florida, as recorded in Map Book 55, of Page 71 of the Public Records
of Dade County, Florida. Said point being the point of tongency of the orfginof centerfine of the
Douglas MadArthur Cousewoy running Easterly and South Easterly from the Westerly limits (West
Bridge) of Watson Island as shown on Sheet 3 of the State Road Department Right—of—Woy Map,
Section No. (8706-112) 8700-2117, revised March 25, 1939, said most Northerly curve having a
radius of 1432.69 feet and a central angle of 82' 00' 00'; thence South 59' 51' 26' West departing
radially from sold eenterflne a distance of 967.36 feet to o Projected Bulkhead One; thence North 17
12' 21' West along said bulkhead line, a distance of 238.116 feet to the Point and Place- of Beginning;
thence continue North 1T 12' 21' West, along void bulkhead tare, for a disfonce of 923.03 feet to a
point; Thence South 89' 1D' 55" East for a distance of 72.89 feet to o pant; Thence run North 88'
39' 49' East for a distance of 57.31 feet to a point on curve whose radius point bears North 39'
29' 13' Eost to the center of circular curve, concave to the Northeast and having for its elements o
Radius of 160.00 feet and a central angle of 22' 09' 28"; Thence run Southeasterly along the arc of
sold circular curve for on arc distance of 61.88 feet to o point of tcngencj Thence run South 17
21' 56' East for a distance of 774.52 feet to a point; Thence run South 54' 07' 39' West for a
distance of 150.14 feet to the Point of Beginning.
Sold described parcel of land containing 151.544 square feet (3.479 +/— acres)
LEGAL DESCRIPTION: (SUBMERGED. LANCIM
Comments at o point shawrn marked by an 5,/8' diameter iron rod and Cap Stomped F.D.D.T., shown
as P.T. Sto. 25+50 on .ths "Offtclol Mop of Location and Survey of a portion of Section 8706.
designated as port of $tate Rood A --1—A in Dade County. Florlde, prepared by the State Road
Deportment of the State of Florida, as recprded in Map Book 56, of Page 71 of the Public Records
of Dade County. Florida. Sold point being the point of tongency of the original centerline of the
Douglas MacArthur Causeway running Easterly and South Easterly from'the Westerly Emits (West
Bridge) of Watson island as shown on Sheet 3 of the Stott Rood Deportment Righl—of--Woy Map,
Section No. (8706-112) B7O60-2117, revised March 25, 1959, sold most Northerly curve having a
radius of 1432.89 feet and a central angle of 62' 00' DO '% thence South 59' 51' 26' West deporthe
rodIdX from sold centerfne a distance of 987.36 feet to a Projected Bulkhead tine; thence North 1
12 21 West Along sold bulkhead fine, a distance of 23&86 feet to the Point and Place of Beginning;
thence South 49' 32' 57" West departing said bulkhead line o distance of 550.82 feet to a Point of
intersection of fines of turning basin limit as established by U.S. Army Caps of engineers and
positron by coordinates North 527.'376.62 feet East 926,135.22 fast (booed on North American Datum
1983—NAC83) with the Northerly One of the Miami blain Ship Channel; thence North 31' 31 03'50'
West, along the limits of sold turning basin a distance o1 428.44 feat to a paint of intersection with
the East right of way line of the Intracoastal waterway. thence North 03' 27' 54' West along said
East fight of way line o distance of 874.43 feet to a point of intersection with the Southerly ewfit
of ray ilne of sold Douglas MacArthur Causeway, sold point of intersection being a point on a curve
=catie Southerty oad having a radius of 10,716.59 feet, a radio] be to said pont bears South 01'
15' 15' East: thence run Easterly for 387.46 feet along the ore of sold curve and along said
Southerly right of way lime. through a central angle of 02' 04' 17' to a point of tongency, thence
Soutic 59' 10 55" East continuing Easterly along the said Southerly right of troy line, a distance of
32.05 feet more or less to o point of Intersection with on existing bultdnod One; thence South 17'
12' 21' East along said bulkhead lime a distance of 924,70 feet to the Paint of Beginning.
a,0
NCL
t�t
Xya
O.J
Submitted into the publi
record foq ite s, _a
on 5 City Clerk CFN.: 20150315953 BOOK 29619 PAGE 2851
SKETCH AND LEGAL DESCRIPTION
Douglas MacArthur Causeway
S89'10'fi5'E �
589.10'55'8-172.59. N86'39'49'E
31.87' \ 6Z8t' —
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iF367.d8' D. 22*09*28'
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SUBMERGED PARCEL
> c 581.649. sq.ft.
_ 13.3a Dame -�
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NS»8UM PREPARM ft
-�R-�.O+�Y MDQ
' ! LA#4n 0UKVrY0jgA, INC.
WW 305-822-41882 �- FAR- 305 -827 -WS
8R5 W Ord 5111 V WE 321
WA LkW FL 33014
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